ay IN THE FETERAL COUPT OF AUSTEALTA 1 VICTORIA DISTRICT REGISTRY ) Ve. tin. G 149 cf 1925 SENERAL DIVISION ' SETWEEN COMMTESIONER POR SUPERANNUATION Applicant and ROY JAMES HASTINGS Respondent COURT: NORTHPOP J. DATE: 11 JULY 1986 PLACE: MELBOURNE ~5 AUG 1986 b COURT OF AUSTRALI/ THE COURT ORDERS THAT: - 1. Upon the Commissioner for Superannuation wyaying ints fourt within seven days the sum of $55,674.52 to await the outcome of the hearing and determination of this appeal, the decision of the Administrative Appeals Tribunal given herein on 7 April 1396 Le stayed, insofar as it relates to arrears of pension to 7 April 1596, until the hearing and determination of the apreal or until further order. 2. The said decision, aunsofar as ait relates to those arrears, be stayed until 21 July 1986. 3. Costs of the motion be costs in the cause. ry fad ba iT Settlement and entry of Orders is dealt with in 0.36 Rules of Court.) * Not considered appropriate for further distribution. Til THE FEREPAL TOUPRT OF AUETPALTA ) VICTOPIA DISTRLTTT PESTETEY } T. No. G 140 of 1336€ GLUEFAL DIVISION ) BETWEEN : COMMISSIONEP FOR SUPERANNUATION Applicant and ROY JAMES HASTINGS Respondent COUFT: NORTHROP J. DATE: 11 JULY 1986 PLACE: MELEOUPNE EX TEMPORE REASONS FOR JUDGMENT There 1s before the Court a motion under s.444 of the Administrative Appeals Tribunal Act 1975 for an order that until the hearing and determination of the appeal, or further order, the decision of the Administrative Appeals Tribunal given at Adelaide on 7 April 1986 not operate or he implemented insofar as it requires the payment by the applicant, the Commissioner for Superannuation, to the respondent of arrears cf invalidity due in respect of the period prior to 7 April 1986. The appeal to this Court 15 from a decision of the Tribunal made in relation to matters arising with respect ta QO at the respondent, Ray James Hastings, and his antatlemert ¢t id cension under the Superannuation Act 1376. The facts giving yise fo th D 15s8ue are contained in the reasons Fee decisis = Tribunal on April 19846, and ik a7 ul given by £ 15 apparant that the mh n i) 15io0n was given Following a conzideratisan of the construction to be given to provisions of the Suyerannuation Act 1375 and in particulac 3.7 of that Ack. Ik 1s sufficient to say, for present wurposes, that th= ressondent was in receipt of & pension under the Tuperannuation Act 19376 and 1ts oredecessor up to and inciuding sometime in 1326 when he was employed ain the Northern Territory ain relation to an office under Northern Territory legislation. He Was occupying a permanent position but while still on the six month probationary period his employment was terminated and the question has arisen whether that termination was such as to bring anto operation the provisions contained in sub-section 7(2). That sub-section provides: - "(2) Where a person has, before attaining his Maximum retiring age, ceasei to be an eligible employee otherwise than by reason of death or by reason of his having been retired, or Ai= services having been otherwise terminated, on the ground of physical oc mental incapacity to perform his duties, but the Commissioner is satisfied that, at the time he ceased to be an eligible employee, he was, by reason of physical or mental incapacity, unfit to perform his duties, the Commissioner may direct that the person shall, for the purposes of this Act, be deemed to have been retired on the ground of that physical or mental incapacity." If the Commissioner makes a direction under that sub-section, the respondent 1s entitled to a pension. If he does not make that direction, the respondent, in all Probability, 15 not entitled to that pension, and the issue decided by the Tribunal was that in that sub-sectiin, the reference to his duties referred to the duties for which he was employed ta perform, in other words, the duties attaching to the office which he occupied and did not relata te other duties which he 'tould perform while in the employment, and that in the context the word "may" in the phrase "may direct" imposed a mandatory obligation upon the Commissioner as Opposed to a discretion. The form of the decision made by the Tribunal is unusual when une has regard to the functions and powers of the Tribunal as conferred by 5.43 of the Administrative Appeals Tribunal Act. In exercising its powers of review, the Tribunal is empowered to exercise all the powers and discretions that are conferred by the relevant anactmant on the person who made the decision and the Tribunal then 15 required to make a decision in writing:- "(a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and - (1) making a decision in substituticn for the decision so set aside; or (ii) remitting the matter for reconsideration im accordance with any directions or recommendations of the Tribunal." In the present case, the decisicrm made by the Tribunal was as frcllows:- "The Tribunal con the Commissioner's Mecasian should 5 side, and in lieu thereof, the Commissicner be dAirectrzd to dsem that the applicant had been retired on 15 August 13980 aon the ground of physical incapaciry ts perform his duties." Difficulties ar1ise from the form of that order but I do not need to elaborate upon that at the present time. It is sufficient to say that the applicant, the Commissioner for Superannuation, is treating that decision as a decision directing the payment of a pension to the respondent pursuant to the provisions of the Superannuation Act. In the course of preparing to comply with that order, calculaticns were made which, on one view, the view of the applicant, shows that by way oF antitlement of arrears and after maxing allowances for contra entries, the respondent's entitlament at 5 June L986 was S55 respondent's calculations show that a larger amount than that is owing. The applicant 15 currently paying the fortnightly payments of pension under the Superannuation Act, an amount of $592.06, and has paid those amounts as from 7 April 19936. Those payments will be continued into the future but what iu5 being sought by the stay motion 15 that the amount of $55,674.52 be not paid until the hearing and determination of the appeal on the basis that aif 1t 1s paid it may well he dissipated and the applicant may well be in a position of not being ables to recover that amount from the respondent if he Section 44A of tha Administrative Appeals Tribunal Act enables the Court to make orders of this nature. By sub-section 4484/1), the Act provides that the institution of an appeal does not affect the operation of the decision ar prevent the taking of action o umplement the decisisn appealed From. S3ub-section (2) provides as fFollows:- "(2) Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court of a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation af 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. For present purposes, the relevant provision 15 that the Court may make an order staying or otherwise affecting the operation of the decision of the Tribunal as the Court or a Judge considers appropriate far the pucpase of securing the effectiveness of the heacing and determinaticn ia) a the appeal. In that resoacc, the Court considers that orima facie, and I use that expression in -entisnmally, a stay arder should not be made, but that in an apptr7peiate case, the Court will make an order. Under similar but differently worded provisions applicable in Suprame Court proceedings, the Supreme Court of Victoria constituted by Adam J. in Scarborough v. Lew's Junction Stores Pty. Limited, £19631] V.R. 129, at wage 130, set out considerations which are relevant in considering whether to grant a stay of an appeal in that Court. Those views were supported by Dawson J. in the case of Commissioner of Taxation v. Myer Emporium Limited, (1386) 60 A.L.J.R. 300, at page 301. One of the special circumstances which 15 relevant is that if the appeal were to be successful, whether the successful appellant would be deprived of the fruits of his appeal if a ww tay of execution were mot granted. In the present case, the Court is empowered to make such order as to a stay for the purpose of securing the effectiveness of the hearing and determination of the appeal. In my opinion, if there is evidence supporting the view that if the appeal is successful, the successful applicant would not be in a position to recover the money paid to the gespondent, the Court should, in the exercise of 1ts discretion, grant an order staying the operation of the decision under appeal or part of that decision. This depends also on the question of whether the Court is satisfied that the appeal is not merely a sham. In the prasent case, T am satisfied that there Ls a serious question to be tried on the appeal as to the osroper construction of sub-section 7(2}) of the Superannuation Act and therefore the appeal is not a sham. I am satisfied also, having regard ta the fact that the applicant 15 paying the fortnightly pension sums currently due te the respondent and wili continue to make those payments and thak the stay is sought only in relation to the sum of $55,874.52 arrears, a question of balancing, as a matter of canvenience, of the rights of the parties, is appropriate. I am satisfied on the material before the Court, that if that money 1s paid over, there is a real possibility that the applicant would not be able to recover it from the respondent aif the applicant succeeds in its appeal. In saying that, I am conscious of the fact that, aven if the appeal succeeds, it may be necessary for the matter to be referred back to the Tribunal for further consideration and the Tribunal may, on Proper material, come to the conclusion that the respondent is antitied to the pension and always was entitled to the pension, in which circumstances appropriate orders could he made, but that would depend upon future orders, not on past orders, If the applicant does succeed, eaven in those circumstances, it would be entitled to recover the sum of money paid immediately, and there are real problems associated with the recovering of 1t, therefore I am disposed to grant the order sought. As opposed to that, under normal circumstances, in a case of this kind, where the applicant wad has the Funds in trust, naturally, and the respondent 135 being deprived af woneys which, on one view, which he might be antitled to, any order would be on the basis that the applicant would need to pay some interest on the moneys which are stayed and which would be paid if the respondent were to succeed on the appeal. I am informed that there are problems involved as far as the applicant 1s concerned in coming to any agreement as to that but, nevertheless, it seems that any stay order can be made on the basis of a condition that the applicant pay that money into Court pending the hearing and determination of the appeal and be paid out at the directzron of the Court which hears and determines the apoeal and that order could involve and include in at the payment of any interest which has been received in relation ta that money paid into Courk. The applicant then has a choice of sither paying the money to the respondent and taking the risk of recovering it or not recovering it if it succeeds, or paying the money into Court pursuant to the order I am about te Make. Two questions arise in this regard. First, the amount of the payment in, whether it should be the $55,000 or a larger sum which is suggested by the respendent as being the appropriate amount. In the circumstances, I am disposed to order the amount of $55,000, not the larger sum. The question of the amount to which the respondent may become antitled is a matter which the Court will not determine; it 15 a matter which will need to be determined elsewhere but, on any view, the applicant admits that sum of money and it seems, in my opinion, to he the appropriate sum to be considered for payment into Court. The second matter relates to whether, as an alternative, the amount to be paid into A special trust account to be invested in appropriate investments to await cr the ou me of the order of the Court but that, in the Q c meantime, the respondent have the benefit of the interest payments on that investment. In my opinion, that is a course which the Court should not adopt in this case. The Court should retain control of moneys by directing them to be paid into Court and not into a trust account and, in any event, if the applicant were to succeed, it may well have trouble fag recovering those payments of interest from the respond ii) n + and, in the circumstances, it i5 inappropriate to place h applicant at risk, as it were, particularly when one has regard to the fact that the applicant has obligations to other persons who participate in the superannuation fund apart from the resgondent. Finally, on the question of costs, 1t has heen urged upon me that, in reality, an irdulgence 13 being granted to the applicant and that the respondent should be entitled to his costs of this motion. Again, this depends upon the eventual outcome of the proceedings. If the appeal succeeds, one would expect that the respondent should pay the costs of the appeal, including the costs of the motion; if the appeal fails, the applicant should pay those costs. In all the circumstances, I propose to make the costs, casts the cause. sought:- iy lw Accordingly, the Court will grant in part the order Upon the Commissioner for Superannuation paying ints Court within seven days the sum of $55,674.52 to await the outcome of the hearing and determination of this appeal, the decision of the Administrative Appeals Tribunal given herein on 7 April 1986 be stayed, insofar as it relates to arrears of pansion to 7 April 1986, until the hearing and determination of the appeal or until further order. It is ordered that the said decision, insofar as it relates to those arrears, be stayed until 21 duly 1986. Costs of the motion, costs in the cause. Tt should be noted that, subject to any order the Full Court might make, 1t 1s anticipated that any order made directing the refund or repayment of the sum to the applicant or the respondent, should include an order that interest on it be paid out also ta the person so entitled. I certify that this and the nine (9) preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Northrop. Ren dene clhe "associate 11 July 1986