Pieri; Secretary, Department of Employment and Workplace Relations and Anor and

[2007] AATA 86

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 86

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2006/409

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

First Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Second Applicant

And VASILIOS PIERI

Respondent

DECISION

Tribunal Mr J Short (Member)

Date2 February 2007

PlaceAdelaide

Decision The application under s 41 of the Administrative Appeals Tribunal Act 1975 to stay a decision of the Social Security Appeals Tribunal dated 27 November 2006 is refused.

..............................................

J G SHORT
  (Member)

CATCHWORDS

PRACTICE AND PROCEDURE – stay order – financial hardship – likelihood of recovery of overpaid sums – prospect of success of application – stay order refused

Administrative Appeals Tribunal Act 1975 ss 41(1), 41(2)

Re Repatriation Commission and Delkou (1985) 8 ALD 454

REASONS FOR DECISION

2 February 2007   Mr J Short (Member)

1. The Secretary of the Department of Employment and Workplace Relations and the Secretary of the Department of Education, Science and Training (the Department) contends that it is appropriate in the circumstances of this case for the Tribunal to exercise its discretion prescribed in s 41(2) of the Administrative Appeals Tribunal Act 1975 (the Act) to stay the affect of a decision made by the Social Security Appeals Tribunal (the SSAT) on 27 November 2006 to waive recovery of a debt found by the SSAT to exist, in the sum of $3,679.08.  The debt is said to have arisen out of Mr Pieri’s failure to qualify for Youth Allowance on the basis that he was not a full-time student during the period 28 February 2005 until 17 June 2005.

2.      The Department said that Mr Pieri had, prior to the SSAT decision to waive recovery of all of the debt, repaid the sum of $500.00.  The Department said that if a stay order were granted, it would not seek to recover the remainder of the alleged debt, but  would retain the $500.00 already paid.  Mr Pieri opposed the application.

3.      The SSAT appears to have based its decision to waive recovery of all of the debt on the understanding that although Mr Pieri was not entitled to receive the suggested overpaid amount, he nevertheless genuinely believed that he was a full-time student and consequently was entitled to receive the money.  The SSAT also considered that the educational institution at which Mr Pieri was training to become a physiotherapist, could have amended Mr Pieri’s study regime to reflect a period of illness in 2004, in such a way that he would have understood that he was not entitled to Youth Allowance and consequently could have either tested his eligibility for one of the unemployment benefits, or alternatively found employment.

consideration

4. I start from a consideration of s 41(1) of the Act. This sub-section reads as follows:

“41(1)  Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.”

The clear intent therefore is that the lodgement of an appeal to this Tribunal should not affect the implementation of a decision made by the SSAT.

5. The Tribunal has however been granted power in appropriate circumstances, to stay the implementation of a decision. Section 41(2) of the Act reads as follows:

“41(2)   The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), 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, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”

Section 41(2) aims to ensure, to the extent desirable, that the effect of a successful appeal to this Tribunal is not rendered nugatory by events or payments made during the time leading up to the consideration of an appeal.

6.      In Re Repatriation Commission and Delkou (1985) 8 ALD 454 Deputy President Hall suggested that in considering a stay application one should consider the following matters:

·any hardship a party may suffer by reason of the grant or refusal to grant a stay; 

·the likelihood of recovery by the Commonwealth of monies paid under the determination sought to be stayed; and

·the prospect of success of the application for review.

7.      Both the applicant and the Department conceded that no hardship would be experienced by either party by the grant or refusal to grant a stay.  Noting the Department’s indication that pending the determination of the substantive issue of the appeal, it would not seek to recover any further monies from Mr Pieri, the likelihood of recovery by the Commonwealth of monies paid under the determination sought to be stayed is not directly relevant to the success or otherwise of the application.  In relation to the prospect of success of the application for review, the Department argued that the SSAT did not have before it circumstances warranting a finding that special circumstances existed.

8.      I have considered the circumstances raised by the application.  In this case the suggestion is that the SSAT inappropriately applied its discretion.  I do not consider that it is obvious on the face of the documents that the SSAT’s decision was inappropriate.  In these circumstances, I have not been shifted to the view that it would be desirable to stay the effect of that decision.  The application is dismissed.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Short (Member)

Signed:         ............J Coulthard..........................................
  Associate

Date of Hearing  19 January 2007
Date of Decision  2 February 2007

Advocate for the Applicants     Ms J Kitto

Centrelink Legal Services Branch
Advocate for the Respondent   In person