Condren v Secretary, Department of Family & Community Services

REASONS FOR JUDGMENT (ex tempore) 1 Mr Condren appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against a decision of the Administrative Appeals Tribunal ("the AAT") given on 4 August 1999. The AAT affirmed the decision under review. 2 The decision under review was a decision of the Social Security Appeals Tribunal ("the SSAT") made on 14 January 1998. The SSAT had affirmed a decision of an authorised review officer of the Department of Social Security, now known as the Department of Family and Community Services ("the Department"), dated 7 August 1997. That decision was that an over-payment of Disability Support Pension ("DSP") in a sum of $2,140 was made to Mr Condren during the period from 3 April 1997 to 29 May 1997 and that the amount was recoverable from him as a debt due by him to the Commonwealth. 3 In general terms the background is that Mr Condren was in prison for a period and what was said was that he had not notified the Department of that fact, in consequence of which the Department had continued to pay him the DSP in circumstances in which he was not entitled to receive it. 4 Section 1237AAD of the Social Security Act 1991 (Cth) empowers the Secretary of the Department to waive the right to recover all or part of a debt if the Secretary is satisfied that: "(a) the debt did not result wholly or partly from the debtor or another person knowingly: (i) making a false statement or a false representation; or (ii) failing or omitting to comply with a provision of this Act …; and (b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and (c) it is more appropriate to waive than to write off the debt or part of the debt." 5 The AAT found that there were no special circumstances in Mr Condren's case making it desirable and appropriate to waive the debt. At present $25.00 per fortnight is being deducted from Mr Condren's DSP and credited off his debt. 6 Section 44A of the Administrative Appeals Tribunal Act 1975 (Cth) provides in subs (2) that where an appeal is instituted in this Court from a decision of the AAT, the Court or a judge may make such order or orders staying or otherwise affecting the operation or implementation of, relevantly, the decision of the AAT or a part of that decision, as the Court or judge considers appropriate, for the purpose of securing the effectiveness of the hearing and determination of the appeal. The Court can vary or revoke such an order. 7 Mr Condren's application to this Court for review of the AAT's decision is fixed for hearing on 9 and 10 March next. The effectiveness of the hearing and determination of Mr Condren's appeal will be secured if he is able, without hindrance, to prosecute that appeal. He has made it clear that he will be representing himself on the hearing of the appeal. In these circumstances it is difficult to see how the enforcement of recovery of the debt will touch upon Mr Condren's prosecution of the appeal. 8 Mr Condren has put two matters to the Court today: first, financial hardship if the stay order is not made, and, second, that he has good prospects of success on the hearing of the appeal. In relation to the question of financial hardship, however, the evidence in the form of a budget statement which he tendered shows that a surplus of $41.80 per fortnight remains even after the sum of $25 per fortnight due to the Department has been deducted. Apparently the sum of $41.80 per fortnight has been accumulating for some time but there is no evidence before me of the total amount accumulated. 9 It is true that Mr Condren will need some $133 to pay for a court hearing at Mudgee on 18 November in certain litigation between his mother and himself. But this does not show that if the stay is refused he will be unable to prosecute his appeal in this Court. 10 In relation to the question of the existence of an arguable case, I think all that needs to be said is that the discretion provided for in s 1237AAD is a very broad one and no less than four decisions have now been given (by the delegate, by the Departmental review officer, by the SSAT and by the AAT) maintaining Mr Condren's liability to refund the overpayment and declining to waive. The AAT's reasons for decision, in particular, occupy eighteen pages and sixty-six paragraphs. 11 This is not to say that Mr Condren will not succeed on the final hearing on 9 and 10 March. No doubt on that occasion the matter will be much more closely investigated. All that I am concerned with this afternoon is the question of a stay. However, it suffices to say that on the material placed before me this afternoon I am not satisfied that there is a serious question as to the likelihood of success of the appeal. I emphasise, however, that this is not a concluded view: the fact is that little has been said this afternoon by either party about the underlying merits of the case. 12 The important consideration, to my mind, is simply that it is not shown that a stay is necessary in order to secure the effectiveness of the hearing and determination of Mr Condren's appeal. I will decline the stay, but reserve liberty to Mr Condren to apply for a revocation or variation of that order by notice of motion on no less than fourteen days' notice. 13 For the above reasons the orders of the Court are that: 1. The application in paragraph 3 of the notice of appeal filed on 31 August 1999 for a stay of the decision of the Administrative Appeals Tribunal dated 4 August 1999 is refused subject to order 2 below. 2. The applicant have liberty to apply for a revocation or variation of order 1 on giving not less than fourteen days' notice by notice of motion. I reserve the costs of today's hearing and I confirm the hearing dates of 9 and 10 March, next year. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.