Chen v Secretary, Department of Social Services

• Jurisdiction: Australia Federal only
• Judge: ABRAHAM J
• Judgment Date: 29 July 2019
• Neutral Citation: [2019] FCA 1155
• Court: Federal Court
• Date: 29 July 2019

FEDERAL COURT OF AUSTRALIA

Chen v Secretary, Department of Social Services [2019] FCA 1155

File number:	NSD 609 of 2019
Judge:	ABRAHAM J
Date of judgment:	29 July 2019
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application – application for stay of decision of the Administrative Appeals Tribunal – stay order sought pursuant to s 44A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) and r 33.17 of the Federal Court Rules 2011 (Cth) – stay refused
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 41 44 and 44A Federal Court Rules 2011 (Cth) r 33.17 Social Security Act 1991 (Cth) ss 117, 643, 1061PA, 1064 and 1068 Social Security (Administration) Act 1999 (Cth) ss 126, 179, 142 and 235
Cases cited:	Aspen Pharma Pty Ltd v H Lundbeck A/S [2013] FCA 324 Broadbent v Civil Aviation Safety Authority [1999] FCA 1871 Chen and Secretary, Department of Social Services [2018] AATA 4672 Chen and Secretary, Department of Social Services [2019] AATA 560 Comcare v Nicolas [2014] FCA 638 Evans v Secretary, Department of Social Services [2014] FCA 491 Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 Hartnett v Migration Agents Registration Authority [2003] FCA 998 Kara v Comcare [2011] FCA 951 Lim v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1058 Minister for Home Affairs v Zadeh [2018] FCA 1452 Rana v Repatriation Commission [2011] FCAFC 124; (2011) 126 ALD 1 Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis [2010] FCA 880 Theo v The Secretary, Department of Family Services [2004] FCA 1748
Date of hearing:	16 July 2019
Registry:	New South Wales
Division:	General
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	58
Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Dr S Thompson of Sparke Helmore Lawyers
Solicitor for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		NSD 609 of 2019
BETWEEN:	CHIA HUEY CHEN First Applicant
AND:	SECRETARY, DEPARTMENT OF SOCIAL SERVICES First Respondent
	ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
	CHRIS PUPLICK AM Third Respondent

JUDGE:	ABRAHAM J
DATE OF ORDER:	29 JULY 2019

THE COURT ORDERS THAT:

1. The application for a stay made by the notice of motion filed on 29 May 2019 is refused, with costs.

THE COURT NOTES THAT:

2. The respondent informed the Court that it is the policy of the Department of Social Services not to enforce a debt to the Commonwealth while there are Court proceedings on foot challenging the debt.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1. The applicant applies for an order pursuant to section 44A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and rule 33.17 of the Federal Court Rules 2011 (Cth) staying the decision which is the subject of the applicant’s substantive appeal to this Court. The respondent opposes the order.

2. The applicant is unrepresented in these proceedings. The description by the Administrative Appeals Tribunal (the Tribunal) of the applicant’s evidence before it, largely reflects her conduct on this application: see Chen and Secretary, Department of Social Services [2019] AATA 560 (Chen 3) at [3], [4]. In this Court, the applicant was again advised of the desirability of her obtaining some legal assistance.

3. The applicant relied upon 8 affidavits filed prior to the hearing, in support of her interlocutory application: affidavit dated 29 May 2019; affidavit dated 19 June 2019; affidavit dated 25 June 2019; affidavit dated 26 June 2019; affidavit dated 3 July 2019; affidavit dated 4 July 2019; affidavit dated 9 July 2019; and an affidavit dated 12 July 2019. In addition, two further affidavits were filed: one on the day of the hearing after the completion of the argument, and another, filed on 22 July 2019, several days following the hearing of the application. The applicant also sent three emails containing various materials to chambers on the day following the hearing of the application (17 July 2019).

4. It is unclear on the face of some of the affidavits and materials filed prior to and after the hearing whether they relate to the stay application (as opposed to the final hearing). However, given the time at which they were filed, I have assumed that they do relate to this application and have acted accordingly. The respondent has confirmed that there is no objection to this additional information being taken into account in this instance. No written submission was filed by the applicant. I take the affidavits and materials emailed to chambers, to be the applicant’s written submissions in relation to this matter. I note that a number of affidavits were filed in breach of my orders made on 26 June 2019 for the filing of material for the hearing of this application (both in terms of length and the date by which they were due to be filed). Nonetheless, I take them into account. I note also that one affidavit (the affidavit dated 12 July 2019) attaches the respondent’s submission with handwritten comments on it, presumably made by the applicant.

5. The applicant has applied for a stay to enable her Disability Support Pension (DSP) to be reinstated so that it can continue to be paid pending the appeal. The applicant seeks that the payment of the DSP is backdated to 2 April 2019, the date on which (as the respondent informs the Court in its written submissions) the Department of Human Services (the Department) reconsidered and remade decisions in relation to the applicant’s matter in accordance with the reasoning of the decision under appeal.

6. For the reasons below, the application for a stay is refused.

Procedural history

7. These proceedings stem from the applicant’s receipt of various Centrelink benefits, the decision by the respondent to cancel those benefits, and a subsequent order for the recovery of certain moneys previously paid.

8. From 11 October 1999 to 18 August 2006, the applicant received the Newstart Allowance (NSA) under the Social Security Act 1991 (Cth) (SS Act). The NSA is payable subject to a means test (an asset and income test) in accordance with sections 643 and 1068 of the SS Act.

9. On 19 August 2006, the applicant was granted a DSP under the SS Act on the basis that she was suffering from a mental health condition. The DSP is also subject to a means test in accordance with sections 117 and 1064 of the SS Act. Ms Chen was paid the DSP until 2 March 2018.

10. From 17 January 2017 to 1 December 2017, and from 2 December 2017 to 2 February 2018, the applicant was paid the Pensioner Education Supplement (PES) under the SS Act, which is also subject to a means test, with initial eligibility being dependent upon qualification for either the NSA or DSP at first instance, in accordance with section 1061PA of the SS Act.

11. This litigation arose in the context of five original decisions made by officers of the Department, as follows:

1. on 15 March 2018, a decision to cancel the applicant’s DSP with effect from that day;

2. on 16 March 2018, a decision made to raise a debt against the applicant for overpayment of the PES for the period 17 January 2017 to 1 December 2017, amounting to $1,421.81;

3. on 16 March 2018, a decision made to raise a debt against the applicant for overpayment of the PES for the period 2 December 2017 to 2 February 2018, amounting to $280.80 (being a total PES debt of $1,702.61);

4. on 19 March 2018, a decision made...