Sweeney; Secretary, Department of Social Services and (Social services second review)
[2021] AATA 455
•23 February 2021
Sweeney; Secretary, Department of Social Services and (Social services second review) [2021] AATA 455 (23 February 2021)
Division:GENERAL DIVISION
File Number(s): 2021/0224
Re:Secretary, Department of Social Services
APPLICANT
AndPeter Sweeney
RESPONDENT
DECISION
Tribunal:Mr Chris Puplick AM, Senior Member
Date:23 February 2021
Date of written reasons: 10 March 2021
Place:Sydney
For the reasons given orally at the conclusion of the interlocutory hearing on the stay application in this matter the Tribunal orders, pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), that the operation of the decision of the Social Services and Child Support Division dated 10 December 2020 is stayed until the decision of the Tribunal on the application for review comes into operation or until further order of the Tribunal.
..................................[sgd]......................................
Mr Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – stay orders – consideration to the interests of all parties who might be affected by the granting or refusal of a stay order – Secretary has established that there is an arguable case for the AAT1 decision to be reviewed – stay granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 41(2) & s 43(2A)
Social Security Act 1991 (Cth)
CASES
Hajjar and Secretary, Department of Social Services (Social services second review) [2020] AATA 2476
WRITTEN REASONS FOR DECISION
Mr Chris Puplick AM, Senior Member
10 March 2021
It is well accepted that successful litigants should be entitled to the fruits of their judgements and that stay orders granted by this Tribunal under section 41(2) of its Act[1] should be granted only sparingly and primarily with an eye to ensuring the effectiveness of an application for a review of an original decision.
[1] Administrative Appeals Tribunal Act 1975 (Cth).
Such applications for review need to demonstrate to the Tribunal that they have some reasonable prospect of success and that failure to grant a stay would render the appeal process nugatory.
It is also incumbent upon the Tribunal to give due consideration to the interests of all parties who might be affected by the granting or refusal of a stay order.
This appeal arises from an application by the Secretary to stay a decision of the Social Services and Child Support Division of this Tribunal (AAT1) made on 10 December 2020[2] which determined that certain payments made by the Respondent to three specific and separate entities should, for various reasons, not be counted as constituting part of the Respondent’s assets for the purposes of calculating his entitlement or otherwise to the Age Pension. The matter was remitted to the Chief Executive of Centrelink for reconsideration in line with certain directions given by the AAT1.
[2] Peter Edward Sweeney and Chief Executive Centrelink, no. 2020/S152463.
I understand fully that aspects of the decision of the AAT1 clearly excite the Applicant in her belief that they are wrong in law and that their precedential value would be inimical to the future operations of the Department in administration of the Social Security Act 1991 (Cth).
I also appreciate that the Respondent has indicated that, at any future hearing, evidence would be forthcoming to clarify the question of whether or not the monies in question were a loan via calling of the Company accountants to give evidence. Presumably this would amplify the evidence referred to in the original AAT1 decision.
To the extent that resolution of such a question is clearly in the public interest and that the determinations made by the AAT1 are not, prima facie, immune from review, then clearly the Applicant has a strong case to advance.
The Tribunal notes the reliance of the Respondent, in part, on a decision given by me in the matter of Hajjar and Secretary, Department of Social Services (Social services second review) [2020] AATA 2476, in which I discussed the meaning of a “loan” in social security legislation. However, in line with the reasoning of the AAT1, I am not persuaded that that decision is not distinguishable on its relevant facts from the facts in this matter.
I note that there would be a degree of prejudice to the Respondent were the stay order to be granted and were it to be the case that granting such a stay would occasion the Respondent a degree of financial distress or hardship, that would have to be weighed against the Applicant’s claims. However, it appears that the Respondent is in a relatively comfortable financial position following an inheritance received by his wife in September 2018. This is counted as contributing to the assets of Mr Sweeney as a member of a couple under social security law. Nevertheless, if this is not presently the case, it is open to the Respondent to make another application for Age Pension outlining his current financial position.
Were a stay not to be granted, payments would be made immediately to the Respondent, following a reconsideration by the Secretary, in line with the AAT1 decision and, in the event that the Applicant succeeds on review in this Tribunal, those payments would become repayable. Such situations are often difficult for individuals to manage, especially if the delay in arriving at a final decision is protracted. The Tribunal does however, take note of the submission of the Applicant’s representative that the Respondent would be in a position to make repayments if so required.
In my opinion, the evidence before the Tribunal today is such that the Secretary has established that there is an arguable case for the AAT1 decision to be reviewed; there is a public interest in the principles in that decision being clearly delineated and the prejudices which might be visited upon any of the interested parties are not such as to warrant refusal of a stay order.
The Tribunal grants the Secretary’s application for a stay of the AAT1 decision in the matter of Secretary, Department of Social Services and Sweeney.
I will publish these reasons to the parties if requested in writing within 28 days as provided for in section 43(2A) of the AAT Act.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Mr Chris Puplick AM, Senior Member
..................................[sgd]..................................
Associate
Dated: 23 February 2021
Date of hearing: 23 February 2021
Solicitor for the Applicant: Ms Glenda Heggen
Solicitor for the Respondent: Mr Ian Turton
0
1
0