Skarzynski v Secretary, Department of Education, Employment and Workplace Relations

[2009] FCA 1581

FEDERAL COURT OF AUSTRALIA

Skarzynski v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1581

KRZYSZTOF SKARZYNSKI v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

SAD 168 of 2009

LANDER J
21 DECEMBER 2009
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 168 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	KRZYSZTOF SKARZYNSKI Appellant
AND:	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	LANDER J
DATE OF ORDER:	21 DECEMBER 2009
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 168 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	KRZYSZTOF SKARZYNSKI Appellant
AND:	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	LANDER J
DATE:	21 DECEMBER 2009
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application by the appellant for an order pending disposal of his appeal that this Court suspends that part of the decision of the Administrative Appeals Tribunal (AAT) made on 10 December 2008, which decided that the amount of Newstart Allowance paid to the respondent during the period from 1 July 2001 to 31 December 2005 is a debt due by the appellant to the Commonwealth.  In that same decision, the AAT dealt with the appellant’s entitlement to a Newstart Allowance under the Social Security Act 1991 (Cth) in relation to Newstart Allowances received by the appellant from on or about 19 September 1997 to 4 May 2006.

2. The AAT decided that the appellant was not entitled to a Newstart Allowance during the period 1 July 2001 to 31 December 2005, and that the amount of the Newstart Allowance paid to him during that period was a debt due by him to the Commonwealth, on the basis that the appellant was not unemployed during the relevant period.  The appellant appealed to this Court from that decision.  After filing that notice of appeal from the AAT decision, the appellant sought an order staying the effect of the decision of the AAT which required him to repay the Newstart Allowance during the period to which I have referred.  The respondent undertook to the Court not to seek to recover that amount pending the disposal of that appeal.

3. On 9 October 2009, Besanko J dismissed the appeal.  On 19 November 2009, the respondent sent the appellant an “Account Payable” seeking payment by the appellant of the sum of $44,980.67.  The amount was due to be paid on 18 December 2009.  The appellant issued this application on 3 December 2009 seeking to suspend that part of the AAT decision of 10 December 2008, which required the repayment of the amount to which I have referred.  The appellant seeks the suspension of the decision, pending his appeal to the Full Court of this Court from the orders made by Besanko J dismissing his appeal from the AAT.

4. The respondent opposes the application on the basis that the appeal to the Full Court lacks merit.  The respondent said that an application was to be made to have the appeal summarily dismissed.  The respondent has indicated today that if the appellant is not in a position to pay the sum of $44,980.67, he is entitled to approach Centrelink to arrange for payments on a weekly or monthly basis or some periodic basis.

5. In my opinion, it would not be appropriate to make the orders sought.  The appellant has had his appeal from the AAT determined by a judge of this Court.  During the period whilst that matter was being considered by his Honour, the respondent refrained from exercising its right to proceed upon the decision made by the AAT.

6. The appellant, of course, is entitled to appeal from Besanko J’s orders but during the period of the appeal, in my opinion, the appellant should approach the respondent for the purpose of agreeing to terms for the repayment of the amount.  If, in due course, the appeal is successful, then the appellant would be entitled to repayment of any sum which he had paid in the meantime.  The appellant’s appeal seems to raise issues as were raised before his Honour in much the same terms.  His Honour thought all of those grounds lacked merit.  I am not persuaded that it would be in the interests of justice to make the orders sought.  The application is dismissed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:
Dated:       23 December 2009

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Ms E Reed
Solicitor for the Respondent:	Minter Ellison Lawyers

Date of Hearing:	21 December 2009
Date of Judgment:	21 December 2009