Andrew Dunn and Secretary, Department of Defence

[2015] AATA 351

[2015] AATA 351 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/6233
Re	Andrew Dunn
APPLICANT
And	Secretary, Department of Defence
RESPONDENT

DECISION

Tribunal

Senior Member Bernard J McCabe

Date

Date of written reasons

11 May 2015

21 May 2015

Place

Brisbane

The application is dismissed pursuant to section 42B of the Administrative Appeals Tribunal Act 1975.

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Senior Member Bernard J McCabe

CATCHWORDS

PRACTICE AND PROCEDURE – dismissal application – no prospect of meaningful review – no jurisdiction to review aspect of decision which constitutes sole dispute in proceedings – meaning of expression “frivolous and vexatious” – application dismissed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

Defence Home Ownership Assistance Scheme Act 2008 (Cth)

REASONS FOR DECISION

Senior Member Bernard J McCabe

21 May 2015

1. A decision was made in this matter and oral reasons were given on 11 May 2015.

   
   

   These written reasons for the decision have been prepared based on the hearing transcript.

2. The applicant, Mr Andrew Dunn, was the recipient of a subsidy under the

   
   Defence Home Ownership Assistance Scheme Act 2008

   (“the Act”). Mr Dunn was paid the subsidy for periods commencing in January 2009 and ending in June 2014. 

   
   

   The subsidy was paid in respect of his occupancy of a particular property.  Mr Dunn did not claim he was entitled to receive a payment in respect of the property. He says,

   
   

   and I have no reason to doubt, that he informed the decision-maker at all times he was not residing at the property.

3. On 3 July 2014, Mr Dunn contacted the Department of Veterans’ Affairs (which administers the DHOAS Scheme on behalf of the Department of Defence) and told them the payments should be discontinued. Mr Dunn accepts there is no entitlement to any future payments. His dispute appears to be solely in relation to the amount the Department of Defence (“the Department”) has now said was an overpayment.

   
   

   The Department says Mr Dunn must now pay that money back. Mr Dunn has asked the Tribunal to review the decision.

4. On 20 April 2015, the respondent wrote to the Tribunal requesting that the matter be dismissed on the grounds that it is futile. The respondent says Mr Dunn’s concerns in respect of the overpayment cannot be addressed by the Tribunal, and that there are other avenues for redress that Mr Dunn should pursue.

5. These proceedings were convened to hear the parties’ views about whether the application should be dismissed. Mr Dunn was informed of the time and date of the hearing but did not appear. However, Mr Dunn provided written submissions to which I had regard in the course of the discussion.

6. I am satisfied the Tribunal does not have jurisdiction under the Act to review decisions with respect to recovering the value of overpayments. The Tribunal does have jurisdiction to review the decision that the applicant is not entitled to future payments, but Mr Dunn does not dispute that decision.

7. It follows there is nothing the Tribunal can do for Mr Dunn, other than to affirm the decision that was made in respect of future payments. The Tribunal cannot provide meaningful relief for Mr Dunn in respect of the recovery of the overpayment. In those circumstances, there is nothing to be gained by progressing the proceedings any further.

8. The proceedings are therefore “frivolous or vexatious” within the meaning of that unfortunate expression in s 42B of the Administrative Appeals Tribunal Act 1975
   (“the AAT Act”). I should emphasise that s 42B, when it uses the words “frivolous or vexatious”, does not mean the application is not serious or that it has not been treated seriously. The expression simply means there is no possibility of the Tribunal providing a meaningful conclusion to the dispute.

9. In those circumstances, the matter is dismissed pursuant to section 42B of the AAT Act.

   
   

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 21 May 2015

Date of hearing	11 May 2015
Date final submissions received	6 May 2015
Applicant	In person
Solicitors for the Respondent	Sparke Helmore Lawyers