Said and Secretary, Department of Social Services
[2014] AATA 439
•3 July 2014
[2014] AATA 439
Division General Administrative Division File Number
2014/1257
Re
Michael Said
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
ORDER
Tribunal Deputy President S D Hotop
Date 15 May 2014 Date of written reasons 3 July 2014 Place Perth The applicant's request, dated 1 May 2014, that the Tribunal make an Order pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 staying the operation of the decision under review, is refused.
...................[sgd]................................................
S D Hotop
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – request for order staying decision under review – relevant factors – hardship – likelihood of recovery of moneys – prospects of success of application for review – stay order not appropriate for purpose of securing effectiveness of hearing and determination of application for review – Tribunal not of opinion that desirable to make stay order – applicant's request for stay order refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 41
CASES
Re Cremona and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 349
Re Opie and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 132 ALD 584
REASONS FOR ORDER
Deputy President S D Hotop
3 July 2014
Introduction
On 12 March 2014 Michael Said (“the applicant”) lodged with the Tribunal an application for review of a decision of the Social Security Appeals Tribunal (“SSAT”), dated 26 February 2014, which affirmed a decision of a Centrelink Authorised Review Officer (“ARO”), dated 11 November 2013, that the applicant’s disability support pension (“DSP”) was correctly suspended for the period from 15 August 2013 to 2 September 2013.
On 1 May 2014 the applicant made a request, in the prescribed form, to the Tribunal for an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) staying the abovementioned decision of the SSAT.
At the conclusion of an interlocutory hearing held on 15 May 2014, the Tribunal orally refused the applicant’s request for a stay order. The Tribunal subsequently made a formal written Order, dated 15 May 2014, in the following terms:
“ The applicant’s request, dated 1 May 2014, that the Tribunal make an Order pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 staying the operation of the decision under review, is refused.”
On 11 June 2014 the applicant made a request, in writing, to the Tribunal for a written statement of reasons for its abovementioned Order of 15 May 2014.
Relevant Legislation and Principles
Section 41 of the AAT Act relevantly provides:
“ 41 Operation and implementation of a decision that is subject to review
(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.
(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(1) of the AAT Act provides that the making of an application to the Tribunal for review of a decision does not affect the operation or implementation of that decision. Subsection (2) of s 41, however, confers on the Tribunal a broad discretionary power to make such order staying or otherwise affecting the operation or implementation of the decision under review “as the Tribunal consider appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review”, 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”.
In considering whether to make an under under s 41(2) of the AAT Act in cases like the present, where the decision under review involves the cessation of payments of money to the person who has applied to the Tribunal for review of that decision and who has requested the Tribunal to make an order staying that decision, the Tribunal has customarily had particular regard to three main factors, namely:
·the degree of hardship (if any) which may be suffered by that person as a result of the refusal to make a stay order;
·in the event that the person’s application for review is unsuccessful, the likelihood of recovery (by the payer) of moneys paid to that person as a result of the making of a stay order; and
·the prospects of success of the person’s application for review.
See, for example, Re Opie and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 132 ALD 584; Re Cremona and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 349.
Consideration
As regards hardship to the applicant, it is common ground that payment of the applicant’s DSP (which he has been receiving since 1978) was relevantly suspended from 15 August 2013 until 2 September 2013, and was restored on 3 September 2013 and presently continues. At the interlocutory hearing the applicant asserted that he had wrongly been deprived of his DSP for the abovementioned period, that he was “grossly” financially disadvantaged thereby, and that he needed those funds to avoid bank overdraft charges and to pay debts and medical expenses. The applicant, however, did not provide any specific evidence regarding his present financial circumstances. That being the case, the Tribunal is not satisfied that financial hardship is a significant factor militating in favour of the making of a stay order in this case.
The respondent conceded that, if a stay order is now made and the amount of DSP for the period from 15 August 2013 to 2 September 2013 is paid to the applicant but the applicant’s substantive application for review is ultimately unsuccessful, there would be no significant difficulty in the Commonwealth’s recovering that amount from the applicant because such recovery could readily be effected by appropriate deductions from the applicant’s ongoing DSP payments. Accordingly, this factor does not militate against the making of a stay order in this case.
As regards the applicant’s substantive application for review, the Tribunal notes that the decision under review, which the applicant asserts was wrong, was a decision to suspend the payment of his DSP, pursuant to s 1158 of the Social Security Act 1991 (Cth), for the period from 15 August 2013 to 2 September 2013 when (it is common ground) he was incarcerated in Hakea Prison and subsequently confined in Graylands Hospital (a psychiatric hospital) – an incarceration and confinement which he claims were illegal. The applicant reiterated that claim at the interlocutory hearing and it is clear to the Tribunal that he will vigorously seek to establish that claim at the substantive hearing (which, the Tribunal notes, is listed for 26 September 2014). In the meantime the Tribunal expresses no view regarding the prospects of success of the applicant’s substantive application for review. In these circumstances the Tribunal does not regard this factor as militating either in favour of, or against, the making of a stay order in this case.
Finally, the Tribunal turns to the determinative issue for present purposes, namely, whether, having regard to the abovementioned considerations, it considers that the making of a stay order is, in terms of s 41(2) of the AAT Act, “appropriate for the purpose of securing the effectiveness of the hearing and determination of the [applicant’s] application for review”. The only submission made by the applicant in relation to this issue was that the immediate payment to him of the DSP payments, which were suspended for the period from 15 August 2013 to 2 September 2013 and of which he was thereby deprived, would assist him to prepare the necessary documentation in support of his case in a timely manner (without the necessity for an extension of time or an adjournment) and to pay debts and medical expenses. The Tribunal, however, is not satisfied that those considerations render the making of the stay order requested by the applicant “appropriate for the purpose of securing the effectiveness of the hearing and determination of [his] application for review”. More specifically, the Tribunal is not satisfied that, if such stay order is not presently made, the applicant would necessarily be disadvantaged thereby in preparing his case and presenting his case at the substantive hearing, or that a substantive determination in his favour would be rendered nugatory, or that the hearing and determination of his application for review would otherwise be adversely affected.
Conclusion
Having regard to the considerations referred to in paragraphs 8–11 above, the Tribunal is not “of the opinion that it is desirable” to make an order “staying or otherwise affecting the operation or implementation” (within the meaning of s 41(2) of the AAT Act) of the decision under review in this proceeding, namely, the ARO’s decision of 11 November 2013 as affirmed by the SSAT on 26 February 2014 (see s 179(1), (2)(a) of the Social Security (Administration) Act 1999 (Cth)).
Accordingly, the Tribunal declines to make an order under s 41(2) of the AAT Act staying the decision under review.
Order
For the above reasons, the applicant’s request, dated 1 May 2014, that the Tribunal make an order pursuant to s 41(2) of the AAT Act staying the operation of the decision under review, is refused.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the order herein of Deputy President S D Hotop
.............[sgd D Brodie]...............................................
Administrative Assistant
Dated 3 July 2014
Date of interlocutory hearing
15 May 2014
Date of request for written reasons
11 June 2014
Representative of the applicant
In person (unrepresented)
Representative of the Respondent
Ms A Ladhams
Solicitors for the Respondent
Australian Government Solicitor
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