FEDERAL COURT OF AUSTRALIA

Theo v The Secretary, Department of Family Services

[2004] FCA 1748

SOLON THEO (also known as SOL THEO) v THE SECRETARY, DEPARTMENT OF FAMILY SERVICES

Q268 of 2004

COOPER J

BRISBANE

24 DECEMBER 2004

THE COURT ORDERS THAT:

1.         The application for a stay be dismissed.

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

REASONS FOR JUDGMENT

1                     This is an application for a stay of the decision of the Administrative Appeals Tribunal (‘the AAT’) made on 1 December 2004.  On that date the AAT affirmed four decisions of the Social Security Appeal Tribunal (‘the SSAT’) which had been reviewed by the AAT on the application of Mr Sol Theo, the applicant in the present proceedings.

2                     The first decision of the SSAT was to affirm a decision of the Secretary of the Department of Family Services as to the calculation of arrears of age pension payable to Mr Theo.  The second decision of the SSAT was to affirm a decision of the Secretary to cancel on 10 September 2003 the age pension payable to Mr Theo on the ground that he had failed to provide information as requested.  The third and fourth decisions of the SSAT were to affirm decisions of the Secretary to reject claims made by Mr Theo in October 2003 and April 2004 for payment to him of an age pension.

3                     Mr Theo filed a notice of appeal on 15 December 2004 seeking that the decision of the AAT be set aside and that orders be made reinstating his age pension and for payment of moneys under-paid by Centrelink in consequence of its erroneous calculation of his entitlement of arrears of pension.  By notice of motion filed 15 December 2004 Mr Theo seeks ‘Suspension of the AAT’s decision 1.12.04 while the appeal is heard’.

4                     The power of this Court to stay a decision is contained in s 44A of the Administrative Appeals Tribunal Act 1975 (Cth).  Section 44A(2) provides:

‘(2)      Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:

(a)               the decision of the Tribunal or a part of that decision; and

(b)               the decision to which the proceeding before the Tribunal related or a part of that decision;

as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.’

5                     The power granted by s 44A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) to stay a decision of the AAT is only to be used where it is appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.  The purpose of the section is to ensure that the subject matter of the appeal is not rendered nugatory by the implementation or coming into effect of the decision under appeal:  see Broadbent v Civil Aviation Safety Authority [1999] FCA 1871 at [5] – [6]; Hartnett v Migration Agents Registration Authority [2003] FCA 998 at [4].

6                     Mr Theo’s right to appeal the AAT decision remains totally effective whether or not a stay is granted.  He does not lose or cease to receive any benefit or pension which he presently receives.  Whether or not a stay in granted the decisions of the SSAT to affirm the decisions of the Secretary remain in effect.

7                     If Mr Theo is successful in his appeal the decision of the AAT will be set aside and the matter remitted for redetermination in accordance with law.  A stay of the present decision is unnecessary to secure to Mr Theo his right to obtain such relief on the final determination of his appeal to this Court.

8                     I am not satisfied that a stay of the decision of the AAT made on 1 December 2004 is either necessary or appropriate for the purpose of securing the effectiveness of the hearing and determination of Mr Theo’s appeal.

9                     The application for a stay is dismissed.

Associate:

Dated:              24 December 2004