Penelope Fischer and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 555

[2012] AATA 555  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1279
Re	Penelope Fischer
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	7 August 2012
Place	Sydney

The Applicant's application for adjournment of the proceedings is refused.

The decision of the Social Security Appeals Tribunal decision of 9 September 2011 is stayed until the substantive application is determined or further orders are made.

.............................[sgd]...........................................

Senior Member A K Britton

CATCHWORDS

PRACTICE AND PROCEDURE - applicant's adjournment application - inappropriate to adjourn proceedings in circumstances - application refused

PRACTICE AND PROCEDURE - respondent's stay application - prospects of success of substantive decision under review unclear as applicant sought review of essentially favourable decision - applicant not materially prejudiced if stay granted - third party insurer likely to be prejudiced if stay application not granted and implemented decision later reversed - no specific public interest affected if stay granted or refused – application granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) - s 41, 41(1)

WRITTEN REASONS FOR DECISION REVISED FROM THE TRANSCRIPT

Senior Member A K Britton
7 August 2012

1. These reasons deal with two applications. The first is Ms Fisher’s application for an adjournment. The second is the respondent Secretary’s application for a stay of the decision made by the Social Security Appeals Tribunal (SSAT) handed down on 9 September 2011.

   The adjournment application

2. Ms Fischer seeks an adjournment of the stay application listed for determination today. She argues that a combination of health problems, study commitments and inability to secure legal representation means that she is unable to effectively represent herself in this stay application.

3. To put Ms Fischer’s submission in context it is necessary to set out the background to the stay application. On 20 October 2011 the respondent Secretary applied for a stay of the decision made by the SSAT. That application was listed for hearing on 13 December 2011. At the request of Ms Fischer, an adjournment was granted, apparently to allow her to obtain legal advice. The Secretary later withdrew his application for review of the SSAT decision. Ms Fisher subsequently applied for leave to make an application for review of the SSAT decision out of time.

4. At a hearing on 3 May 2012 Ms Fisher’s application for an extension of time was granted. The respondent then sought determination of the stay application. At Ms Fisher’s request that application was adjourned to today’s date.

5. I accept that Ms Fischer has a number of health problems that may be relevant to the timetabling of the substantive application. I also accept, and Ms Fischer has provided some information to support this, that she has made an application to Legal Aid to assist her in the substantive proceedings, and is yet to hear whether that application has been successful.

6. It is unfortunate that the Legal Aid issue has not been resolved since this matter was last before me in early May. But given the rather complex history to this matter including the respondent Secretary’s previous application for a stay, I think it inappropriate to further adjourn the hearing of the stay application. In making this decision, I am mindful of the fact, for the reasons that I am about to give, that I am unable to agree with Ms Fischer’s analysis that in the event that a stay was granted she would suffer significant prejudice.

7. For those reasons, and notwithstanding that I have accepted that Ms Fisher has some medical problems, (though from the discussions today she strikes me as someone who is more than capable than of running her case, at least in respect of the stay application) I refuse the application for an adjournment.

   Stay application

8. Turning to the respondent’s application for a stay, it is necessary to sketch in some background facts. As noted, Ms Fischer now seeks review of the decision made by the SSAT handed down in September of last year.

9. In 2003 and 2004, Ms Fischer was involved in a number of motor vehicle accidents. She made a claim for compensation against the insurers of the other parties involved in those accidents, and following a purported settlement, the insurers drew a number of cheques in her favour in varying amounts. Those cheques have not been presented. The SSAT, in its decision handed down in September 2011, did two things. First, it reversed the decision made by the respondent Secretary that Ms Fischer had “received compensation” in the form of the cheques made out to her. Second, it directed that the Secretary recalculate the debts owned by Allianz Australia and Zurich Australia, on the basis of various findings it made in respect of the lump sum preclusion period.

10. As canvassed with the parties this afternoon, on one view it may be that the decision has been implemented in that, as advised by the respondent in his letter to the Tribunal of 9 July 2012, the amounts recoverable from the insurers has been recalculated. But for present purposes, I will proceed on the basis that, at this point in time, the decision has not been implemented.

11. Section 41 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) gives the tribunal the power to grant a stay:

    … if the tribunal is of the opinion that it is desirable to do so, after taking into account the interests of any persons who may be affected by the review, makes such orders or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceedings relates.

12. The question, therefore, is whether or not it is appropriate, in the circumstances, for a stay to be granted. In making that decision three main issues must be considered: firstly, the prospects of success of the substantive application; secondly, the consequence for any person if the stay is granted or refused and thirdly, the public interest.

13. Turning first to the prospects of success: this is an unusual matter. As discussed, originally it was the Secretary that challenged the SSAT’s decision. After the Secretary withdrew his application for review, Ms Fischer applied for and was granted leave to, lodge an application out of time for review of the SSAT decision.

14. I mention that this is an unusual case because, as the Secretary contends, Ms Fischer was essentially successful in her application before the SSAT. The assessment of the prospects of success is therefore difficult because, as I understand it, Ms Fischer contends that the SSAT decision is correct and nonetheless seeks for it to be reviewed.

15. At this point, it is unknown whether or not the respondent will raise what he says are the legal defects of the underlying SSAT decision. Therefore, at this point in time, I am unable to reach any firm conclusion as to the prospects of success of the application for review now made by Ms Fischer.

16. Turning to the second issue: the consequences for any person of the refusal of the stay. The Secretary contends that Ms Fischer would not be prejudiced if the decision was stayed. As he points out, Ms Fischer currently receives the maximum rate of DSP less $15 per fortnight. He contends that if the underlying decision were to be implemented that position would remain unchanged.

17. Ms Fischer takes a different view. In her view, if the decision were stayed, she would, in effect, be denied the benefit of the roll-on of that decision. These extend to, as I understand, various inter-related decisions made by Centrelink including an earlier decision made by the Administrative Appeals Tribunal in relation to another application. I must say, from hearing from Ms Fischer today, I am not entirely persuaded that she is correct as to the so-called roll-on effect of the subject decision if it were to be implemented. But leaving that to one side, the other parties who arguably would be affected by the stay of the decision are the relevant insurers. I have received no submissions from them. They would arguably be prejudiced if the stay were granted, in that Centrelink would not be obliged to repay the sum of approximately $18,000, at least until the substantive application had been determined.

18. In my view, while the Insurers would suffer a degree of prejudice, they would suffer even greater prejudice if a stay was not granted and the SSAT’s decision was later reversed, because they would be required to repay the $18,000 to Centrelink. If that were to occur the Insurers and Centrelink would incur significant administrative costs. For these reasons I conclude there is no effective utility in granting the stay application.

19. The third issue is the public interest. There is a general public interest in decisions of administrators, be it the SSAT or Centrelink, being implemented at the time they are made. Section 41(1) of the AAT Act states that the making of an application to the Tribunal does not prevent the implementation of that decision. Apart from this general public interest, I see no specific public interest that would be affected if the stay was granted (or refused).

20. While it is regrettable that for a range of reasons this stay application is now being determined close to 12 months after the decision under review was made, the balance of factors, in my opinion, favour the granting of the stay. In reaching that conclusion, I am mindful that I am unable, after hearing the submissions of the parties today, to identify any material prejudice that Ms Fischer would suffer if the stay were granted. And, secondly, I am mindful of the fact that it is in the interests of all parties to have this matter finally determined at the first possible opportunity. If the stay were not to be granted, and the SSAT’s decision reversed (by the AAT), Centrelink and the insurers would incur not inconsiderable administrative costs with no net benefit either for Ms Fischer or anyone else. 

21. For these reasons my decision is this — to grant the stay application. It is open to Ms Fischer at some later point, if she so elects, to make an application for that to be reconsidered. Maybe that is something she would like to discuss with her solicitors, in the event that she is able to obtain legal representation.

22. I now want to talk briefly about the timetabling of the substantive matter. Going back to the adjournment application, my plan today was to set in place a timetable for the determination of the substantive matter. The AAT Act, as both parties are aware, requires matters to be dealt with as quickly as reasonably possible in the circumstances. I hear, however, what Ms Fischer has said about her medical difficulties and her application for Legal Aid. So rather than set a timetable and discuss with the parties the issues that need to be determined today, I will list this matter for a directions hearing in six weeks from today’s date. I am happy for parties to attend by phone if they so elect, providing that 24 hours before the listed hearing they provide the registrar with a landline number. The matter is adjourned for the purposes of further directions, to 12 September 2012 at 4:15pm.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

...............................[sgd].........................................

Associate to Senior Member A K Britton

Dated  24 August 2012

Date(s) of hearing	7 August 2012
Applicant	In person
Solicitors for the Respondent	Mr B Slattery, Centrelink Program Litigation and Review Branch