Mack; Secretary, Department of Social Services and (Social services second review)

The Administrative Appeals Tribunal (AAT) considered an application by the Secretary of the Department of Social Services for a stay of a previous AAT decision that found Mr Mack eligible for a Disability Support Pension from the date of his claim. The Secretary sought this stay pending a review of the AAT's initial decision by the General Division of the Tribunal. Mr Mack opposed the application for a stay.

The central legal issue before the Tribunal was whether to grant a stay of the AAT's earlier decision, and if so, the extent to which that stay should operate. The Tribunal had the discretion to grant a total or partial stay of the decision.

In determining whether to grant a stay, the Tribunal considered the principles outlined in s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), which requires the Tribunal to consider the interests of affected persons and the desirability of securing the effectiveness of the hearing and determination of the review application. The Tribunal noted that, by analogy with Federal Court practice regarding stays pending appeal, a stay should only be granted in special circumstances to prevent the review from being rendered nugatory, as a successful litigant is generally entitled to the fruits of their judgment. Therefore, special circumstances were required to justify depriving Mr Mack of the benefits of his successful AAT1 decision.

The Tribunal granted a partial stay of the AAT1 Decision.