CTHFCA

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis

[2010] FCA 880

Federal Court of Australia|2010-08-17|Before: Streeton J

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Court

Federal Court of Australia

Decision date

2010-08-17

Before

Streeton J

Source

Original judgment source is linked above.

Judgment (37 paragraphs)

[1]

Introduction 1 By notice of motion dated 5 August 2010, the applicant, the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs ("Secretary"), seeks pursuant to s 44A of the Administrative Appeals Tribunal Act 1975 ("AAT Act") a partial stay of the decision of the Administrative Appeals Tribunal ("Tribunal") made on 30 April 2010 affirming the decision of the Social Security Appeals Tribunal ("SSAT") that the respondent, Michael Mouratidis, is entitled to a continuation of the payment of his disability support pension from 29 March 2009. The partial stay is sought until 2 December 2009, pending the hearing and determination of the Secretary's appeal from the Tribunal's decision. 2 The application is supported by the affidavit of Emily Jane Nance, an employee of the solicitors for the Secretary, affirmed on 5 August 2010. 3 The application is opposed. The affidavit of Gavan Blau, an employee of the solicitors for the respondent, was sworn on 13 August 2010 in opposition. 4 The Secretary's appeal brought by notice of appeal dated 28 May 2010 is fixed for hearing on 11 October 2010. 5 The partial stay sought in this application relates to a "back payment" of arrears of the respondent's disability support pension for the period 29 March 2009 to 2 December 2009, in the sum of about $11,500.

[2]

Background 6 As appears from the affidavit of Ms Nance and related material, the respondent, who migrated to Australia as a child with his family from Greece in about 1965, suffered an injury in about 1990, from which time he received a disability support pension. 7 In around May 2008, the respondent travelled to Greece with his mother, who was then aged 90 and suffering from Alzheimer's disease. Centrelink, prior to the respondent's departure, advised him of the 13 week maximum portability period during which, under ss 1216 and 1217 of the Social Security Act 1991 (Cth), he could remain out of Australia before his disability support pension would be suspended. 8 On 22 August 2008 the respondent returned to Australia within the portability period, but returned to Greece on 12 September 2008. Subsequently, the health of his mother (who had remained in Greece) deteriorated to the extent that she was unable to travel and required two carers. 9 The respondent again returned to Australia on 9 December 2008 in conformity with the 13 week portability period. While he was in Australia, his mother fell and broke her right hip. 10 On 28 December 2008, the respondent returned to Greece, where he remained. 11 On 14 January 2009, the respondent's mother was discharged from hospital, but her condition was such as to require two carers. The respondent thereafter stayed in Greece to provide care to his mother. 12 Centrelink, on 30 March 2009, advised the respondent that his disability support pension had been suspended, as the maximum portability period had been exceeded. 13 On 24 June 2009, the respondent applied for an extension of the portability period, which Centrelink refused. 14 The respondent requested a review of that decision which, on 14 September 2009, was affirmed by an authorised review officer. The respondent requested a further review of the decision, upon which the decision was again affirmed. 15 The respondent applied for review of the decision to the SSAT which, on 3 December 2009, determined that his pension remained payable while he was overseas. The payment of the respondent's pension resumed on 3 December 2009. The Secretary sought review of the SSAT decision and on 30 April 2010 the Tribunal affirmed the SSAT's decision. 16 The Tribunal's decision is the subject of the appeal to be heard on 11 October 2010. The principal issue on appeal is whether there was an event within terms of s 1218C(1)(b) of the Social Security Act ("a serious illness of [the respondent] or a family member of [the respondent]") which "occurred or began during [the respondent's] period of absence" within the meaning of s 1218C(2)(a) of the Social Security Act, thereby permitting the Secretary to extend the portability period for the respondent's disability support pension beyond the maximum portability period specified in s 1217. 17 The Secretary submits that there was no event satisfying the requirements for an extension, because the respondent was in Australia when his mother broke her hip and was hospitalised. 18 The respondent seeks to uphold the decisions of the Tribunal, submitting that the relevant events were the deterioration in his mother's health to the point that she was unable to travel and, or alternatively, her discharge from hospital, both of which took place while he was in Greece.

Discussion 41 Prima facie, the respondent is immediately entitled to the fruits of his judgment, despite the institution of an appeal. The Court's jurisdiction to grant a stay is discretionary. The Secretary, who bears the onus of displacing that entitlement by establishing special circumstances, alleges that the appeal would be rendered nugatory because there are no reasonable prospects of recovering the sum paid pursuant to the judgment subject to appeal, or a real risk that the Secretary could not be restored to his former position. 42 In the present case, it was conceded that the Secretary has reasonable prospects of success on the construction point the subject of the appeal. In my opinion, however, the Secretary has not discharged the burden of establishing the existence of special circumstances. 43 In the present case, in contrast to Myer and Delkou, the Secretary, as I understood it, did not submit that there was no power to order repayment of the sum in issue or that the sum would or might not be recoverable as a matter of law should the appeal succeed. Rather, he submitted that there was no (or doubt as to the existence of a) statutory mechanism to facilitate or ensure the reclamation of the payment should the Secretary's appeal succeed. 44 While counsel for the Secretary questioned whether s 1222A of the Social Security Act would apply, no detailed or developed submissions on the issue were advanced. It is unnecessary to determine in the present context whether s 1222A or any other statutory avenue for recovery would apply. The absence of a special statutory mechanism for repayment of a successful appellant is unexceptional, and does not preclude recovery, for which a number of possible avenues have been identified. Possible doubts about the availability of lawful recovery are, in any event, but one matter to be weighed in the discretionary balance. 45 Further, the respondent's material makes clear, to a sufficient degree, that he is not affluent and requires extra money to satisfy the current needs of himself and his seriously ill mother. While the respondent's statement that the payment would "greatly assist" tended to minimise his need for it, the matters to which he deposed, including the inability to provide personal items necessary for the care of his mother, in my view demonstrated hardship in the relevant sense. It was unnecessary that the respondent make a formal demand for the amount in order to demonstrate hardship. There was no evidence of the respondent's total assets, potential resources, financial position or prospects. It was not clear whether such information was available to the Secretary, who bears the onus in the stay application. Nevertheless, although the respondent is in receipt of a disability pension, it cannot be inferred from that circumstance that he would not, in the future, command the wherewithal to repay the sum of $11,500. The respondent has asserted that he would repay the relevant amount should the Secretary's appeal succeed. There is no evidence to suggest that the respondent would not comply with orders of the court or fail to fulfil any lawful obligation to repay the money. There is no evidence that he intends permanently to absent himself from Australia or to sever his ties with the jurisdiction. 46 The evidence suggests that the respondent's immediate cash requirements are greater and more urgent at present, due to particular needs associated with his mother's advanced illness. The respondent's account of his mother's illness and his explanation for his failure to return to Australia within the portability period were unchallenged. The denial of access for the period pending the hearing and determination of the appeal to the amount to which, under the Tribunal's decision, the respondent is lawfully entitled may impose particular hardship out of proportion to the time involved. 47 In all the circumstances, I am not satisfied, on the evidence, that there are no reasonable prospects of recovering the amount of the arrears should the Secretary's appeal succeed. The hardship posed to the respondent by a partial stay likewise militates against it. 48 In my opinion, the application for a partial stay should be refused. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds‑Streeton.

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis

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