Stay and Department of Family and Community Services

[2000] AATA 532

DECISION AND REASONS FOR DECISION [2000] AATA 532

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q96/10

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      RONALD EDWARD STAY          
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date2 June 2000

PlaceBrisbane

Decision      For the reasons given orally at the hearing, the Application for Reinstatement is refused.        

(Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS

SOCIAL SECURITY – procedure – reinstatement application – persistent non-appearance of applicant.

REASONS FOR DECISION

2 June 2000 Deputy President DP Breen, Presidential Member                  

1. This matter was listed before me at 10.15 am on 2 June 2000 to determine an application for reinstatement made by the applicant.  At the hearing there was no appearance by or on behalf of the applicant.  Mr J Walsh, Departmental Advocate appeared for the respondent.

2. On 17 June 2000 Mr Stay wrote to the Deputy Registrar of the Tribunal and asked for written reasons of the decision given on 2 June 2000.  I now propose to set out fully what transpired at the hearing for reinstatement.

   "The D. President:     Mr Walsh, what on earth am I to do with this man?
   Mr J Walsh:     Deputy President, can I tell you something about the chronology relevant to this case which might usefully put some context to the most recent communication from Mr Stay?
   The D. President:       Yes.
   Mr J Walsh:     Mr Stay was in receipt of what was, once upon a time, invalid pension now known as disability support pension from about May of 1991.
   The D. President:       Yes.
   Mr Walsh:       A review was conducted by the then Department of Social Security towards the end of 1993.  In the context of that review, the department became aware that the only address the department held for Mr Stay was not where Mr Stay was living and his whereabouts were unknown so payment was suspended in December of 1993.  There was no contact from him subsequently and in April of 1994 a decision was taken to cancel his payment and a notice issued to the last known address at Herston Road, Kelvin Grove.  Upon internal review - - -
   The D. President:       Just pardon me if I interrupt, Mr Walsh.  What do we know about who does live at 21 Herston Road, Kelvin Grove and the connection with Mr Stay?  Do we know anything?  You see, it occurred to me maybe, maybe – I was far from persuaded to do it, but it occurred to me that maybe we should go to 21 Herston Road, Kelvin Grove and take his evidence anyway.
   Mr Walsh:       Whose evidence, Deputy President?
   The D. President:       Mr Stay.
   Mr Walsh:       He doesn't live there.
   The D. President:       But presumably it's regarded by him as some sort of haven or safe place which I guess is what a haven is anyway.
   Mr Walsh:       You will note that even on the most recent communication the address is care of 21 Herston Road.
   The D. President:       Yes. Yes.
   Mr Walsh:       And he doesn't present himself at that address ever.  He wouldn't be at liberty if he did.
   The D. President:       So that authorities know the address as well.
   Mr Walsh:       They do.
   The D. President:       You haven't answered my question about what do we know about who does live there.  Perhaps you'd prefer not to if that's your preference - - -
   Mr Walsh:       I simply don't - - -
   The D. President:       - - - exercise it.
   Mr Walsh:       I simply don't know, Deputy President.
   The D. President:       Fair enough.  Well, you know my attitude to – and I know yours is the same.  People are entitled to have their cases heard and in some instances we're really required to go out of our way to hear them although that's not an attitude held in other registries of this institution, might I say.  However, it is one that's always been held here.  Should I have the Registrar write to this fellow care of this address and say, 'You nominate a place for us to come and take your evidence and we will take it, otherwise you're out'.
   Mr Walsh:       Deputy President, Mr Stay has made it abundantly clear over the almost five years that this matter has been before and then not before the Tribunal that he is not going to appear in person at all ever before the Tribunal and there are obvious reasons for that.
   The D. President:       Well, they're not necessarily obvious to me.  He might have perceptions of some risk to him of being arrested by the authorities if he comes here but I've just been outside and, funny thing, there is no drove of Commonwealth policemen out there.
   Mr Walsh:       No.
   The D. President:       There is no sign of anyone.
   Mr Walsh:       Not uniformed, that's so.
   The D. President:       Well, if they're plain clothes, they have done a pretty good job of disguising themselves.  Anyway - - -
   Mr Walsh:       Deputy President - - -
   The D. President:       Well, without evidence from him to explain the matters that you have just defined to me, a decision to overturn the cancellation decision couldn't possibly be made, could it?
   Mr Walsh:       There are two things.  No, it can't but perhaps this is somewhat procedural but his matter has been dismissed by the Tribunal in December of 1995.
   The D. President:       By me.
   Mr Walsh:       By Senior Member Muller initially.
   The D. President:       Muller.  Yes.
   Mr Walsh:       Subsequently he applied for an extension of time which is somewhat unusual given that his original application was within time and ultimately after any number of adjournments granted to him, that was dismissed by you, Deputy President, and then in April of 1997 a direction issued that his reinstatement application be adjourned to a date to be fixed and the Tribunal's Act only permits a reinstatement application where the original application is dismissed for non-appearance to be made within 28 days.
   The D. President:       Yes.  That's right.
   Mr Walsh:       so he is, in fact - - -
   The D. President:       Well, he hasn't got an application.
   Mr Walsh:       He doesn't have an application properly before the Tribunal and there is no power to reinstate unless the Tribunal came to the view that the original dismissal by Senior Member Muller in 1995 was a course taken in error.  And, with respect, it's difficult to see how that could be made out.
   The D. President:       That view is simply not open.
   Mr Walsh:       The man didn't appear and the Tribunal member exercised his discretion.
   The D. President:       Yes.
   Mr Walsh:       so there is no application properly before the Tribunal and really what the respondent seeks is finality, properly so called.
   The D. President:       Well, if there is no application then I have no powers whatsoever.
   Mr Walsh:       Other than to put an end to the - - -
   The D. President:       Other than to rule that there is no application.
   Mr Walsh:       That's so.  Deny the reinstatement application and put the matter to rest.
   The D. President:       What was the date of the reinstatement application being lodged?
   Mr Walsh:       I don't have the detail.  My file, I think for the third time around, was closed in February of 1997 and then a direction issued on 4 April of 1997, Deputy President, that the application for reinstatement be adjourned to a date to be fixed.
   The D. President:       That was me, was it not?
   Mr Walsh:       Yes.  It was.
   The D. President:       All right.  Well, today is now fixed.  It's today and the application for reinstatement is refused.
   Mr Walsh:       Thank you.
   The D. President:       Anything else?
   Mr Walsh:       Nothing else.
   The D. President:       That's about all I can say, isn't it?
   Mr Walsh:       Nothing further to do.
   The D. President:       For once I'm silenced.
   Mr Walsh:       Thank you, Deputy President.
   The D. President:       Righto, Mr Walsh.  Have you got a copy of this letter for your file?
   Mr Walsh:       I do.  I do, thank you.
   The D. President:      All right.  Thanks.  Good morning.
   Mr Walsh:       Good morning."

I certify that the 2 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

Signed:         Emma Oettinger
  Associate

Date/s of Hearing  2.6.00
Date of Decision  2.6.00
Rep. for Applicant  No appearance by applicant    
Counsel for the Respondent    Mr J Walsh, Departmental Advocate
Solicitor for the Respondent