Richards and Secretary, Department of Social Services - [2017] AATA 522

Richards and Secretary, Department of Social Services [2017] AATA 522 (14 March 2017)
Division:GENERAL DIVISION
File Number: 2017/1182
Re:Andrew Richards
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Senior Member T. Tavoularis
Date:14 March 2017
Date of written 13 April 2017
reasons:
Place:Brisbane

The Tribunal refuses to stay the operation or implementation of the decision under review.
.................................[sgd].......................................
Senior Member T. Tavoularis
Catchwords
INTERLOCUTORY PROCEEDING – Application for Stay of Decision – cancellation of Disability Support Pension – whether desirable or appropriate to stay decision under review - refusal to stay the operation or implementation of the decision under review
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 41
Cases
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Roy Frederick Griffiths, Grif-Air Helicopters Pty Ltd and Civil Aviation Authority [1993] AATA 274
Wildlife Protection Association of Australia Inc. and Minister for the Environment and Heritage and Ors [2006] AATA 29
WorldAudio Limited and AusCoast Broadcasting Pty Limited and Australian Communications and Media Authority [2006] AATA 177
Zoric and Australian Postal Corporation [2013] AATA 594
WRITTEN REASONS
Senior Member T. Tavoularis
13 April 2017
INTRODUCTION

On 2 February 2017, the Social Services & Child Support Division of this Tribunal (“AAT1”) affirmed a decision by the Respondent to cancel the Applicant’s Disability Support Pension (“DSP”).
On 1 March 2017, the Applicant filed an Application for Review of a Decision, specifically the abovementioned decision of AAT1 (“decision under review”).
Filed contemporaneously with the abovementioned application for review was an application seeking an order staying or otherwise affecting the operation or implementation of the decision under review. The chief objective of the stay application is to achieve resumption of DSP payments to the Applicant pending finalisation of the substantive application for review of a decision.
ISSUE
The primary issue before the Tribunal in determining this application for a stay is whether it is desirable in the circumstances to make an order affecting the operation or implementation of the decision under review.
Section 41(2) of the Administrative Appeals Tribunal Act 1975 (“the Act”) provides that:
The Tribunal may, on request being made 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 is desirable to do so after taking into account the interests of any such 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.
The main factors to be considered when deciding whether to stay the operation of a decision under review were collectively discussed in the following decisions: Wildlife Protection Association of Australia Inc. and Minister for the Environment and Heritage and Ors [2006] AATA 29, WorldAudio Limited and AusCoast Broadcasting Pty Limited and Australian Communications and Media Authority [2006] AATA 177 and Re Repatriation Commission and Delkou (1985) 8 ALD 454. Stated cumulatively, those factors inform a decision-maker that s 41(2) of the Act invites consideration of issues such as:
·the prospects of success or otherwise of the substantive application;
·any prejudice to a party if the stay is granted or not granted;
·the interests of persons affected by the review;
·the public interest;
·whether the substantive application will be rendered nugatory if the stay is not granted; and
·any difficulty that may arise in the recovery of monies paid as a result of a grant, or refusal to grant, a stay order.
During the hearing of this application, it was contended on behalf of the Respondent that the factors most relevant to the present application related to (1) the Applicant’s prospects of success in the substantive application for review of a decision and (2) the interests of the parties to this review. I agree with that contention.
the Applicant’s grounds for seeking a stay order
The Applicant’s aforementioned Request for a Stay Order sets out his grounds behind the request for a stay. The Applicant says:
1.he needs more time to attend specialists that have been apparently recommended to him by his current local medical officer, Dr Singh;
2.the AAT1 decision is, apparently, “based on false, created metadata i.e. prefabricated evidence”; and
3.there has been a denial of natural justice and procedural fairness and a breach of the Privacy Act.
evaluation of the grounds behind the requested stay
1. The apparent “need for time to attend specialists”
The Applicant told the hearing that Dr Singh had, post the delivery of the AAT1 decision, apparently told him to go and see certain additional doctors. The Applicant made certain largely incoherent submissions about (1) an apparent referral to a neurologist, (2) that he had recently had an MRI examination performed on his spine and (3) that he is booked for a “nerve conduction study”.
It was politely pointed out to the Applicant that any further medical evidence he may be assembling for the present substantive application must relate to his condition(s) as at “the relevant date”. That relevant date is the date his DSP was originally cancelled, that being 8 August 2016. The Applicant was told that the medical evidence for the substantive review must relate to his condition(s) as it/they then were at the relevant date, not post the AAT1 decision and certainly not now.
The Applicant had little or nothing to say in response to that suggestion and, to my mind, either did not comprehend it or deliberately chose to ignore it. In any event, I consider this first submission from the Applicant regarding more time to see doctors, to be misplaced and misconceived and, on any plain application of the legal principles relevant to the grant of a stay, irrelevant.
Perhaps most importantly, the Applicant had no response to the factual reality that the most recent medical report of possible relevance to the substantive application is a report of a general practitioner, Dr Phillip Smith, dated 8 March 2006.
2. The AAT1 decision is “based on false, created metadata i.e. prefabricated evidence”
The Applicant also told the hearing that the Tribunal Member who heard and determined the AAT1 review had apparently been “misled by the JCA”[1] and that the JCA’s report was “made by joint corporations who are all against me”. To my mind, this is an incoherent and illogical submission that has no relevance to the issues applicable to the grant or refusal of any stay.
[1] Job Capacity Assessor/Report Writer.
The Applicant then sought to attack the veracity and/or accuracy of the JCA report taken into account by the AAT1 review. As best as I could understand it, the essence of this attack was based on his request for a face to face assessment with a JCA but that in the end, a file assessment was done by the JCA. What this submission conveniently ignores is the fact that the Applicant failed to attend the scheduled face to face assessment with the JCA report writer. During the hearing of this stay application, the Applicant sought to tell me that he “did not get the letter” notifying him of the time and date of the JCA appointment. This submission, to my mind, goes nowhere because the JCA has noted that telephone contact was sought to be made with the Applicant on 31 May 2016 at 11.28am.[2] The purpose of this attempted telephone contact was to further notify and remind him of the time and date of the appointment but that contact could not be established because his mobile telephone was switched off. The Applicant plainly and with no reasonable excuse denies this.
[2] See Respondent’s Submissions dated 8 March 2017, specifically Attachment B thereto. The JCA report writer specifically notes “Client not attend… Assessor attempted contact at 11.28am on 31/05/16 on mobile number which was switched off. Therefore the assessment was completed as a file assessment with the medical information on file.’
Based on this alleged denial of an opportunity for a face to face appointment with the JCA, the Applicant then purports to assert some kind of procedural flaw with the drafting and preparation of the JCA report and, by implication, the entire decision-making process resulting in the AAT1 outcome. I attach no credence to this submission. Nor do I give any credence to his related submission of some type of procedural flaw based on an asserted breach of the “Patrick McClure Report 2000” which, according to the Applicant, sets out certain best practice guidelines or procedures to be followed by the Respondent in the conduct of DSP reviews. Interestingly, the Applicant ran this argument before the AAT1 reviewer and, not surprisingly, it gained no traction at all. I similarly afford it no traction.
The Applicant sought to further develop the “flawed process” line of argument by telling this stay hearing that the JCA report was invalid because of an apparent deletion or omission of his middle name. The Respondent’s representative confirmed there is absolutely no doubt that the person comprising the subject matter of the JCA report is one and the same person as this Applicant. I accept the Respondent’s submission and reject that of the Applicant.
3. A denial of natural justice and/or procedural fairness and/or a breach of the Privacy Act
The Applicant’s third ground for seeking a stay order was perhaps the one most devoid of any logic or other basis of reasonable comprehension. According to him, the fact that his middle name may have been either omitted or deleted from the JCA report somehow results in a breach of privacy should a party, such as the Respondent, purport to rely on it. Somehow, according to this Applicant, this would amount to “a breach of the PrivacyAct”. The contention is plainly illogical and does not address any of the elements applicable to the grant of a stay.
The Applicant then propounded a line of argument based on an alleged denial of natural justice, presumably by the Respondent, in the course of reassessment of his DSP payments. As best as I could understand this submission, he asserted that his apparent non-receipt of a certain document dated 16 May 2016[3] constituted some type of breach of procedural fairness and/or a denial of natural justice. He made no mention of the abovementioned attempt by the JCA to contact him by telephone. Therefore, the Applicant bases this submission on (1) a letter he says he never received and (2) a telephone call he says he never received. I consider any suggestion of a lack of procedural fairness and/or a denial of natural justice by this Applicant to be (at best) misconceived, opportunistic and (perhaps, more likely) mischievous. Ultimately, the submission is irrelevant to the grant of a stay.
[3] Presumably the Respondent’s (Centrelink) letter apparently stipulating details of the JCA appointment.
Interestingly, the Applicant then told the hearing he had obtained the 16 May 2016 letter by way of FOI application. He further contended the mere fact that this particular document was obtainable via FOI was, in some way, also a breach of his privacy. I invited him to make a suitably worded application to the appropriate entity dealing with privacy issues and told him this was not a matter relevant to this stay application.
I therefore agree with the Respondent’s contention that none of the grounds put forward by the Applicant support a conclusion that it is desirable to stay the operation or implementation of the decision under review.
relevant issues to the grant of a stay
Prospects of success or otherwise of substantive application
I agree with the contention made on behalf of the Respondent that the substantive application has only minimal prospects of success.
As mentioned earlier in these reasons, it was pointed out to the Applicant that for his substantive application to have any genuine prospects of success, it is necessary for him to establish that his spinal condition(s) was fully diagnosed, treated and stabilised as at the date of cancellation. That date is 8 August 2016.
A review of the AAT1 decision clearly indicates there is a dearth of medical evidence relevant to his medical condition(s) at the date of cancellation. As also mentioned above, it was pointed out to the Applicant that his most substantive medical report is the report of Dr Phillip Smith that was prepared some 10 years ago in March 2006.
The Applicant responded with a submission that this deficiency in his medical evidence would be resolved by reports by any or all of Dr Singh and/or a neurologist – Dr Taneja – and/or MRI imaging of his spine and/or the results of a nerve conduction study. It was pointed out to the Applicant that there are no medical reports and/or accompanying imaging or similar material from either Dr Singh or Dr Taneja before the Tribunal. In addition to this, it was pointed out to the Applicant that these (and any other) medical experts would have to isolate and focus their findings on the Applicant’s spinal condition(s) as at the relevant date (8 August 2016), not as he is now.
The Applicant had no response to the submission put on behalf of the Respondent that there is simply no medical evidence before the Tribunal to demonstrate his spinal condition(s) could be regarded as fully diagnosed, treated and stabilised such as to warrant the allocation of impairment points to that condition. It was made plain to him that his prospects of success in the present substantive application – on the strength of the medical evidence currently proffered by him – are no greater than his prospects at the AAT1 review. Accordingly, is it not appropriate or correct to grant a stay in these circumstances.
Interests of party affected by the review (financial hardship and risk of a debt)
Financial hardship of the Applicant
The Applicant told the hearing that he was experiencing financial hardship. He said this hardship primarily derived from the fact that he “…was living on a carer’s allowance of $120 a fortnight at the moment.”
The Respondent’s representative helpfully pointed out that it is possible for the Applicant to alleviate his financial circumstances by making an immediate application for the newstart allowance. Expressed in monetary terms, if this Applicant had continued to receive the DSP, he would have been in receipt of $877.10 per fortnight. If he were to qualify for the newstart allowance, he would receive $528.70 per fortnight, resulting in a difference of $348.40 per fortnight. In addition, the Applicant will continue to receive $124.70 per fortnight by way of carer allowance.[4]
[4] Respondent’s submissions dated 8 March 2017, Attachment C.
I therefore agree with the contention made on behalf of the Respondent that this Applicant’s situation is not greatly different from other recipients of the newstart allowance and the mere fact that newstart allowance is paid at a lower rate than DSP is not a basis for concluding the Applicant is in financial hardship.
I also note that nowhere in his written Request for Stay Order does the Applicant nominate financial hardship as a ground for the making of such an order.
The risk of a debt arising
During this hearing, three things were sought to be made clear to the Applicant:
(1)if a stay was granted, thus enabling him to resume receipt of the DSP and he was unsuccessful in the present substantive application, then the full amount of all pension payments made to him following the making of the stay would become a debt due to the Commonwealth; and
(2)there is no mechanism to offset any notional entitlement to another payment such as newstart allowance. In other words, if a stay were to be granted and if he were run this application and fail, then the full amount of what was paid to him following the making of the stay would become a debt due to the Commonwealth;[5] and
(3)if a stay was granted and the substantive application was not concluded for say, another 3 months and he was ultimately unsuccessful, the level of his exposure to any such debt would be in the order of approximately $5,000. In similar circumstances, if the substantive application took 6 months to be finalised, the debt would be in the order of approximately $10,000.
[5] As a matter of courtesy and completeness, it was also pointed out to the Applicant that if a stay were not granted, and he were he to succeed in the present substantive application, then arrears would be payable to him as a result of a decision.
At the hearing, the Applicant acknowledged that exposure to this level of debt would result in him suffering financial hardship. When asked how he proposed to repay such a debt should it arise, he responded by saying that he would deal with it if and when it arose and that he would otherwise “roll with the punches”.
I find there is a significant risk of a debt arising and that such risk acts against any conclusion that a stay order should be granted.
I also find there would be prejudice to the Respondent due to a less than convincing likelihood of recovering any such debt. This finding is based on the Applicant’s unimpressive explanation of how he would repay such a debt should it arise.
Conclusion
I take note of the Tribunal’s comments in Roy Frederick Griffiths, Grif-Air Helicopters Pty Ltd and Civil Aviation Authority [1993] AATA 274 that the word desirable in section 41 of the AAT Act implies a positive aspiration and something more than merely advisable.[6]
[6] Cited in Zoric and Australian Postal Corporation [2013] AATA 594 at [11] (Senior Member Friedman).
I attach little or no weight to the Applicant’s grounds for seeking a stay.
Taking into account (1) the minimal and unconvincing prospects of success of the substantive application, (2) the absence of hardship to the Applicant should the stay be refused,[7] and (3) the consequence of the Applicant having to repay monies to the Respondent, I do not consider a stay order is appropriate for the purpose of securing the effectiveness of the hearing and determination of the substantive application.
[7] Due to his capacity to alleviate any financial hardship by testing his eligibility for newstart allowance.
decision
The application to stay the implementation of the decision under review dated 2 February 2017 is refused.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

...................................[sgd].....................................
Associate
Dated: 13 April 2017

Date(s) of hearing: 14 March 2017

Applicant: By phone

Advocate for the Respondent: Ms D Smith

Solicitors for the Respondent: Department of Human Services

Date(s) of hearing:	14 March 2017
Applicant:	By phone
Advocate for the Respondent:	Ms D Smith
Solicitors for the Respondent:	Department of Human Services