SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES and KELLIE HOLLAND Ms N Bell, Senior Member

[2006] AATA 204

Administrative

Appeals

Tribunal

 

STAY ORDER AND REASONS [2006] AATA 204

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1641

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And KELLIE HOLLAND

Respondent

STAY ORDER AND REASONS

Tribunal Ms N Bell, Senior Member

Date7 March 2006 

PlaceSydney

Decision  The application for a Stay Order is refused.

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

Ms N Bell
  Senior Member 

INTERLOCUTORY PROCEEDING – Application to Stay Decision of Social Security Appeals Tribunal – No Hardship – Recovery of Money Would Not Be Problematic – Some Prospects of Success – Not Desirable to Grant Stay of the Decision of the Social Security Appeals Tribunal – Request for Stay Refused

Administrative Appeals Tribunal Act 1975

Delkou v Repatriation Commission (1986)69ALR406

Re Commonwealth Banking Corporation and Iannello, (1988) 15 ALD 418

Re Griffiths Grif-Air Helicopters Pty Ltd and  Civil Aviation Authority (1993) 31 ALD 380

STAY ORDER AND REASONS FOR ORDER

7 March 2006 Ms N Bell, Senior Member

1.Ms Kellie Holland made an application in March 2005 for maternity payment in respect of her daughter, Isabel, born on 22 September 2004.  An application for this payment is not effective unless it is made within 26 weeks of the birth of a child.  Centrelink maintained it received Ms Holland’s application on 30 March 2005 – 7 days outside the 26 week period, and so rejected Ms Holland’s claim for the payment.  Ms Holland maintains that she sent the application by express post to Centrelink on 14 March 2005.

2.The Social Security Appeals Tribunal (“the SSAT”) decided that Ms Holland lodged the application on 23 March 2005 and so her claim for the payment was effective.  The Secretary, Department of Family and Community Services made an application to this Tribunal for review of the SSAT’s decision and now seeks an order staying that decision.

3.Section 41(2) of the Administrative Appeals Tribunal Act 1975 provides :

" The Tribunal or a presidential member 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 or presidential member 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 as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review."

4.      There are 3 principal factors to be considered when deciding whether to make a stay order (see Delkou v Repatriation Commission (1986) 69 ALR 406, Re Commonwealth Banking Corporation and Iannello, (1988) 15 ALD 418):

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

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

·The prospect of success of the application for review.

5.Mr Duri, for the applicant Secretary, submitted that the SSAT’s decision is “manifestly incorrect” and that there is “overwhelming evidence” that Ms Holland’s claim for the payment was lodged after the relevant time limit.  In this regard he pointed to the claim form bearing Centrelink’s date stamp of 30 March 2005 and to an absence of any record of contact made by Ms Holland with Centrelink or of her file being accessed by a Centrelink officer prior to 31 March 2005.

6.In its decision, the SSAT referred to a computer generated file note which is marked (at T8) as having a “receipt date” of 23 March 2005 and a “storage date” of 18 April 2005 and which says:

“Customer contacted TORONTO on 23 MAR 2005 regarding Claim for Family Tax Benefit.  Information was obtained via Family Tax Benefit (FTB) Claim Form using Personal – In Office.  Document created by YMG772 on 18 APR 2005. Child, Nicholas Marcus Fanning linked to cust per FA001 lodged for new baby Isabel.”

7.Mr Duri submitted that it was wrong of the SSAT to have taken this to indicate that Ms Holland had lodged her claim (referred to as a FA001) by the date of the recorded contact.  He also said that the use of the date “23 March 2005” in the file note was an error by the officer who made the file note and that, at the hearing of the Secretary’s application for review, that officer will provide a statement and give evidence to that effect.  No statement by the officer was provided at the hearing of the stay application.  Mr Duri also said, in his written submission in support of the stay application, the file note was in fact written on 12 April 2005.  That date does not appear anywhere on the copy of the file note contained in the T documents.  I also note that T9 is another computer file note in similar terms but marked with a “receipt date” of 30 March 2005 and noting contact by Ms Holland with the Toronto office for identical reasons.

8.Centrelink computer access records relevant to Ms Holland, provided by Mr Duri, make no mention of any contact by Ms Holland on either 30 March or 12 April 2005.

9.The matter is far from clear.  It will be necessary, at the hearing of the substantive application, to closely question the Centrelink officer whose evidence will, according to Mr Duri, be that her file note was made in error.  The significance of various entries on the Centrelink computer access record will also have to be examined and explained.  It will also be necessary to question Ms Holland as to why she is so certain that she posted her claim for the payment on 14 March.  I do not consider that the evidence is “overwhelming” or that the decision under review is “manifestly incorrect”.  The substantive application may have some prospects of success, but I can put it no higher than that.

10.On the question of hardship, Ms Holland was candid in her evidence that she would suffer no financial hardship if the stay is granted.

11.In relation to the likelihood of recovery, Ms Holland gave evidence that she readily accepts that if the Secretary’s substantive application is successful she will have to repay any moneys paid to her.  I note the amount of the payment is $3,047.  Ms Holland said she did not make her application to the SSAT because of financial need but because she considered the decision made by Centrelink to be unfair and wrong.  She said she has the means to repay the moneys if the Tribunal decides against her and is prepared and willing to do so.

12.I note that in its decision in Re Griffiths Grif-Air Helicopters Pty Ltd and  Civil Aviation Authority (1993) 31 ALD 380, the Tribunal said that the word ``desirable'’ in s41 of the Act connotes a positive aspiration and something worthy of achievement rather than merely advisable. Taking into account the prospects of success of the substantive application, the absence of hardship to Ms Holland should the stay be granted and the consequent unlikelihood of the dissipation of the moneys that must be paid to her if a stay is not granted, I do not consider that it is desirable to make a stay order nor do I think such an order is appropriate or necessary for the purpose of securing the effectiveness of the hearing.

13.The application for a stay order is refused.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the Stay Order of Ms N Bell, Senior Member

Signed:         ...............[Linda Blue].......................................
  Associate

Date of Hearing  1 March 2006
Date of Interlocutory Decision   7 March 2006      
Solicitor for the Applicant          Centrelink, Legal Services