Luke Weller and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 697
•10 October 2012
[2012] AATA 697
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1295
Re
Luke Weller
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 10 October 2012 Place Brisbane The decision is stayed until 18 October 2012.
............................[Sgd].....................................
Senior Member Bernard J McCabe
CATCHWORDS
SOCIAL SECURITY – disability support pension – application for a stay of the reviewable decision – nature of the Tribunal's power to stay a decision – danger of a large debt accruing – failure of applicant to appear at hearing – effect of delay – stay not appropriate where it is an incentive to delay resolution of proceedings – decision stayed until 15 October 2012.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 41(2)
Social Security Act 1991 (Cth) s 94(1)(ea).
REASONS FOR DECISION
Senior Member Bernard J McCabe
Dated 10 October 2012
Mr Luke Weller is the applicant in these proceedings. Mr Weller is currently receiving disability support pension (DSP) because he is unable to work as a result of an acquired brain injury. The respondent cancelled his DSP in January 2012 because it concluded Mr Weller was no longer an Australian resident. The requirement that someone be an Australian resident in order to qualify for DSP was inserted into the Social Security Act 1991 comparatively recently. It is found at s 94(1)(ea). As the explanatory memorandum which accompanied the amendments explained, the provision was targeted at individuals who effectively lived overseas but only returned to Australia occasionally in order to maintain their entitlement to DSP. DSP is intended for Australian residents, and the portability provisions are designed to accommodate those who have short trips abroad but who intend remaining in this country.
Centrelink explained in its statement of facts and contentions that Mr Weller was overseas for 107 of the 162 weeks before the cancellation decision was made. The cancellation decision was affirmed by the Social Security Appeals Tribunal.
Mr Weller applied to the Tribunal for a review of the cancellation decision. He was represented by a lawyer at the time. In order to facilitate the review, the cancellation decision was stayed pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975. That meant Mr Weller continued to receive payments while the matter made its way to a hearing. If the Tribunal were to decide the cancellation decision should be affirmed, the amount of the payments Mr Weller continued to receive after the original cancellation decision would become a debt due to the Commonwealth that would presumably have to be repaid. It was therefore in Mr Weller’s interests that he co-operate so the matter could be brought to a hearing as soon as possible.
This is not a matter which can be resolved simply by looking at the file. Determining whether someone is an Australian resident for the purposes of the Act requires that I examine a good deal of evidence. Mr Weller’s evidence is likely to be particularly important, and the respondent and I will almost certainly wish to question Mr Weller about his claims. It is a serious business: DSP is a valuable entitlement, and those who are responsible for administering the system must be careful to ensure public monies are only paid to those who qualify for them. As it is, Mr Weller has made a number of claims in writing to the Tribunal. Some of them are scandalous allegations that are irrelevant on any view of the matter. Some of the claims and arguments are just difficult to follow; it would certainly be necessary to talk to him in person to clarify what he means.
The Tribunal and a representative from Centrelink travelled to Darwin in August on a circuit. A listing notice was sent to Mr Weller on 26 June 2012 informing him the hearing had been listed for 3 August in that Darwin circuit. A few days before the scheduled hearing, after the Tribunal was already committed to the circuit, Mr Weller contacted the registry and said he would not be attending because he was still in Bali.
Circuits are a very expensive exercise. If a person does not appear at a hearing on circuit, thousands of dollars of the taxpayer’s money are effectively wasted. The matter has to be relisted for another occasion, which means delay. The delay is particularly troubling in Mr Weller’s case because he continued to receive his regular payments of DSP.
When the hearing convened in Mr Weller’s absence on 3 August, I discussed what should be done. The respondent did not press for the matter to be dismissed under s 42A(2) of the AAT Act, although that option was open given the applicant had not turned up to the hearing or provided a satisfactory excuse for his non-appearance. After considering the matter, I decided I would not dismiss the application but I formed the view it was appropriate to lift the stay.
The power to stay a decision under s 41(2) may only be exercised “for the purpose of securing the effectiveness of the hearing and determination of the application for review”. The interests of the parties must be carefully examined before granting a stay: on the one hand, the interests of the applicant will obviously be affected if he or she is cut off from payments - but there is also a danger that a large and growing debt will accrue if the applicant is ultimately unsuccessful after the hearing and he or she has continued to receive payments pursuant to a stay. A stay would also be inappropriate if it created an incentive to delay the proceedings. In those circumstances, a stay would tend to obstruct rather than secure the effective resolution of the proceedings.
Given Mr Weller’s case did not appear on its face to be particularly compelling, and given Mr Weller did not appear to be committed to seeing the proceedings through to their conclusion in a timely way, I decided it was appropriate to lift the stay at the hearing on 3 August. Out of consideration for the applicant, I decided the stay would not be lifted until 16 August 2012 so he would have the opportunity to return to Australia. I did not want him to be stranded in Bali without access to payments if he were in fact an Australian resident.
Mr Weller contacted the Tribunal when his payments ceased after 16 August. He was irate. He also contacted various ministers to complain and threatened to have Tribunal staff prosecuted. He wanted the stay reimposed. A telephone hearing was convened on 27 August 2012 to discuss whether that was appropriate.
Mr Weller was in Darwin at the time of the telephone directions hearing. He was angry and threatening over the phone. He made a series of allegations against the Tribunal and its staff, the Australian Labor Party and others. He insisted he was being harassed because there was no basis for cancelling his pension in the first place. He also said he was due to undergo surgery in Darwin in the next few days, and that he would take a few weeks to recover.
The Tribunal had another circuit set down for Darwin in early October. I told Mr Weller I would order a fresh stay so his payments would resume from 27 August (although there would be no payment of arrears pending the outcome of the hearing) until 5 October, or such later date as may be ordered. (The Tribunal subsequently extended the operation of the stay until 10 October in its order of 24 September 2012 once the listings process was finalised.) He agreed he would turn up at the hearing so the matter could be dealt with.
The hearing was subsequently re-listed for 9 October, but Mr Weller rang the registry on 3 October and said he was still ill following his surgery in Darwin and that he was $20 short of the cost of an airfare. The registrar and my associate subsequently corresponded with Mr Weller but he insisted by email that he would not be in attendance for a range of reasons, including his health.
I note Mr Weller was complaining he was still recovering from surgery but he underwent the surgical procedure in Darwin and was obviously fit enough to return to Bali. It is unclear why he was unable to return to Darwin today in time for the hearing after recuperating. I was not provided with any medical evidence that would explain his inability to travel, although he was specifically asked to provide that evidence in correspondence in the days before the hearing.
The Tribunal cancelled the Darwin circuit. There was no point incurring still more expense traveling to Darwin if Mr Weller was not going to attend. Mr Weller was told the hearing would proceed by telephone so we could discuss what should occur. He was warned the respondent might ask for the matter to be dismissed. If the matter was not dismissed, the question of the stay would be revisited. As it is, the stay will lapse on 10 October and the applicant’s payments will cease in the absence of a further order from the Tribunal under s 41(2).
Mr Weller was belligerent and threatening during the course of the telephone hearing. He again made scandalous allegations about a number of people that were, in any event, irrelevant to the questions at hand. He referred to ongoing medical problems and the difficulties he experiences functioning because of his disability. But he also expressly denied he was aware of the hearing on 3 August. He is mistaken in that claim: he contacted the Tribunal in advance of that hearing to say he would not be attending, so he must have been aware it was on. He also made a number of other allegations that were so outlandish that I am left unsure as to what weight I should give any of his evidence.
Mr Weller said he was prepared to return to Australia as soon as he received his next payment on 14 October, although at another point in the conversation he insisted it would be impossible for him to do so because his carer resided in Indonesia. He also said he proposed bringing Federal Court proceedings where he could call witnesses that would expose the conspiracy against him rather than waste time in the Tribunal.
I was not left with the clear impression Mr Weller has any intention of progressing this application. He remains militantly of the view that there is no case to answer: he says the provisions of a “grandfather Act” mean he is not affected by the recent amendments. It may be his condition is such that he cannot progress the proceedings without assistance. In any event, it is not clear that extending the stay will secure the effectiveness of a hearing that cannot be scheduled until December. In particular, it is unclear whether Mr Weller will again be unable to return to Darwin at the last minute if he remains in Bali in receipt of the pension if the payments continue.
I think the best approach for me to take would be to extend the stay until the day after Mr Weller’s next scheduled payment so he has the means to return to Australia. I understand the next payment is due on 17 October 2012.If he is truly a resident of Australia, that should not be unduly burdensome. He says he anticipates receiving further medical treatment in Australia shortly in any event. The matter will be listed for hearing in Darwin on Thursday, 6 December. If Mr Weller is successful at that hearing, he will presumably be entitled to receive payment of arrears.
Once he has returned to Australia, Mr Weller is free to make a fresh request for a stay so that his payments might resume pending the outcome of that hearing. If he were willing to offer an undertaking that he would remain in Australia before the hearing on 6 December that might be a relevant consideration because it would offer some comfort that he was serious about seeing his application through to its conclusion. But that is a question for another day. For now, the Tribunal orders that the decision be stayed until 18 October 2012.
I certify that the preceding 20 (twenty ) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
..........................[Sgd]...................................
Associate
Dated 10 October 2012
Dates of hearing 3 August 2012 and 9 October 2012 Applicant Self- represented Solicitors for the Respondent Mr Guthrie
0
0
0