' oo a BIS) TSH i es) Ye Do IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. G40 of 1980 ) GENERAL DIVISION ) BETWEEN : DIRECTOR-GENERAL OF SOCIAL SERVICES Appellant AND: ROSEMARY CHANEY Respondent Coram: Bowen C.J. 4 June 1980. REASONS FOR JUDGMENT BOWEN C.J.: Davies J. sitting as the Administrative Appeals Tribunal held that he had jurisdiction to entertain an appeal from a decision of the Director-General given on 14 April 1980 and an appeal against the decision of Davies J. has been lodged which will be heard by the Full Court on 18 June next. To cover the situation in the meantime Davies J., in his decision which was given on 22 May 1980, made an order pursuant to sub-s.41(2) that he would suspend the order or decision of 14 April 1980 and added: 2. /2 "I think I had better say as from the start of the next pension period until the hearing and determination of this review or order made prior to that date." His Honour indicated that he was so deciding having in mind taking pressure off the Tribunal and to avoid having to hurry into the hearing or decision in the matter, which could be a significant matter because it was the first application under the Social Services Act. I think it is plain that Davies J. intended by his interim order to suspend the operation of the Director- General's decision of 14 April 1980 in such a way that the pension as from the next pension period would be reinstated until the hearing. Considerable argument has taken place before me as to whether he had power to do this having regard to the fact that he is authorised by the section, to which I have referred, to make "an order staying or otherwise affecting the operation or implementation of the decision" of the Director-General. It was argued that in the case of an order simply confirming an earlier order refusing a pension the power does not extend to making an order leading to the payment of pension. It was also argued before me that the power which I have under sub-s.44A(2) of the Administrative Appeals Tribunal Act which is in similar terms, to make an "order staying or otherwise affecting the operation or implementation of the decision", which refers to the decision of the Tribunal, is 22/3 no wider. I note that one of the grounds in the notice of appeal to be heard by the Full Court on 18 June 1980 is that the decision of Davies J. to suspend the decision of 14 April 1980 had no effect with regard to the respondent's entitlement to a pension, so the power to make interim orders will, therefore, be argued before the Full Court. In the meantime, I have to make a decision whether it is in my power to make an order which will give effect to what was the obvious intention of Davies J. I have found this a very difficult question. The original form of interim order which might be made by the Tribunal and by the Court was simply an order "staying" decisions. This having been found inadequate in the case of negative orders or decisions, additional words giving power to affect the "operation or implementation" of decisions were added by Act No. 143 of 1979. I think the intention of the Legislature certainly has been to place the Tribunal and, in appropriate cases, the Court or a Judge in the position of dealing with the interim situation adequately, even where there was a negative decision under appeal. However, the words may be said to be of only doubtful effectiveness to achieve this objective. In the circumstances, however, I have come to the conclusion that in the interim period I should endeavour to give effect to the obvious intention of Davies J. and that I should also endeavour to give effect to the obvious remedial effect intended by the amendment brought about by Act No. 143 of 1979. 2/4 This being so, I order in pursuance of sub-s.44A(2) of the Administrative Appeals Tribunal Act that the order of Davies J. be so affected that it operates to direct the payment of pension from today until the date of the hearing of the appeal or further order. I express the view that if any delay takes place in bringing on the appeal, this particular order will be subject to immediate review on the application of the respondent to this motion. I reserve liberty to any party to apply. I will stand the question of costs over until further order. ' dee ee Teert:. » 5 ee ee EE eA | Prev. . .ccrvaf sae hee. . tee - Ast b lt babe , ') the Cae wha ty eee eo ah bo Ae ) , io ' { i H } t { i BBW IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. G40 of 1980 ) GENERAL DIVISION ) BETWEEN: DIRECTOR-GENERAL OF SOCIAL SERVICES Appellant AND: ROSEMARY CHANEY Respondent Coram: Bowen C.J. 4 June 1980. REASONS FOR JUDGMENT BOWEN C.J.: Davies J. sitting as the Administrative Appeals Tribunal held that he had jurisdiction to entertain an appeal from a decision of the Director-General given on 14 April 1980 and an appeal against the decision of Davies J. has been lodged which will be heard by the Full Court on 18 June next. To cover the situation in the meantime Davies J., in his decision which was given on 22 May 1980, made an order pursuant to sub~-s.41(2) that he would suspend the order or decision of 14 April 1980 and added: 22/2 "I think I had better say as from the start of the next pension period until the hearing and determination of this review or order made prior to that date." His Honour indicated that he was so deciding having in mind taking pressure off the Tribunal and to avoid having to hurry into the hearing or decision in the matter, which could be a significant matter because it was the first application under the Social Services Act. I think it is plain that Davies J. intended by his interim order to suspend the operation of the Director- General's decision of 14 April 1980 in such a way that the pension as from the next pension period would be reinstated until the hearing. Considerable argument has taken place before me as to whether he had power to do this having regard to the fact that he is authorised by the section, to which I have referred, to make "an order staying or otherwise affecting the operation or 1mplementation of the decision" of the Director-General. It was argued that in the case of an order simply confirming an earlier order refusing a pension the power does not extend to making an order leading to the payment of pension. It was also argued before me that the power which I have under sub-s.44A(2) of the Administrative Appeals Tribunal Act which is in similar terms, to make an "order staying or otherwise affecting the operation or implementation of the decision", which refers to the decision of the Tribunal, is «2/3 no wider. I note that one of the grounds in the notice of appeal to be heard by the Full Court on 18 June 1980 is that the decision of Davies J. to suspend the decision of 14 April 1980 had no effect with regard to the respondent's entitlement to a pension, so the power to make interim orders will, therefore, be argued before the Full Court. In the meantime, I have to make a decision whether it is in my power to make an order which will give effect to what was the obvious intention of Davies J. I have found this a very difficult question. The original form of interim order which might be made by the Tribunal and by the Court was simply an order "staying" decisions. This having been found inadequate in the case of negative orders or decisions, additional words giving power to affect the "operation or implementation" of decisions were added by Act No. 143 of 1979. I think the intention of the Legislature certainly has been to place the Tribunal and, in appropriate cases, the Court or a Judge in the position of dealing with the interim situation adequately, even where there was a negative decision under appeal. However, the words may be said to be of only doubtful effectiveness to achieve this objective. In the circumstances, however, I have come to the conclusion that in the interim period I should endeavour to give effect to the obvious intention of Davies J. and that I should also endeavour to give effect to the obvious remedial effect intended by the amendment brought about by Act No. 143 of 1979. 22/4 This being so, I order in pursuance of sub-s.44A(2) of the Administrative Appeals Tribunal Act that the order of Davies J. be so affected that it operates to direct the payment of pension from today until the date of the hearing of the appeal or further order. I express the view that if any delay takes place in bringing on the appeal, this particular order will be subject to immediate review on the application of the respondent to this motion. I reserve liberty to any party to apply. I will stand the question of costs over until further order. Patea': 7