Atkins

[2008] AATA 781

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR DECISION [2008] AATA 781

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1147

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JOHN ATKINS

Applicant

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date of decision                5 August 2008

Date of written reasons   2 September 2008

Place  Sydney

Decision The Tribunal is satisfied that the application for review is frivolous and vexatious. Pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 the Tribunal dismisses the application.

....................[sgd]..........................

Senior Member
  Mrs Josephine Kelly

CATCHWORDS

PRACTICE AND PROCEDURE – Jurisdiction – Whether reviewable decision – No reviewable decision identifiable – Whether frivolous or vexatious – Tribunal satisfied frivolous and vexatious - Application dismissed

Administrative Appeals Tribunal Act 1975, ss 25, 42A, 42B, 43

Attorney-General v Wentworth (1988) 14 NSWLR 481

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Re Vernazza [1960] 1 QB 197

Re Williams and Australian Electoral Commission (1995) 38 ALD 366

WRITTEN REASONS FOR DECISION

2 September 2008 Senior Member, Mrs Josephine Kelly     

BACKGROUND

1.      Since 2002, Mr John Atkins has communicated with numerous Commonwealth, and some State government, agencies on many occasions.  He has lodged countless complaints with many of them. He feels that he has been defamed, his character, veracity and honour deliberately assassinated.

2. On 4 April 2007 he lodged an application in this Tribunal which I dismissed on 5 August 2008 because I was satisfied that the application is frivolous and vexatious, pursuant s s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (the Act). I now provide written reasons for my decision, as Mr Atkins requested pursuant to s 43 (2A) of the Act.

MR ATKINS’ CASE

3.      Mr Atkins wrote in his application that he seeks review of:

A continuity of decisions relating to rejection of FOI, Admin law, reasons for decisions, privacy, claims, complaints, proposed resolutions with refusals to respond during 4 ½ years, or selective responses using false info, lies + breaches of many Acts designed to guide + protect Australians.

4.      In each of the boxes on the application form provided for "Date the decision was made" and "Date you received notice of the decision", Mr Atkins had written “SEE SCHEDULE/CHRONOLOGY.”    The accompanying Schedule/Chronology was 10 mm thick.  

5.      In the box beside "Who made the decision, if known", Mr Atkins wrote “DVA” (Department of Veterans’ Affairs), the “Ombudsman,” the “DOD” (Department of Defence), "FPC", and the “Dept of Finance.”

6.      Mr Atkins continued to send voluminous correspondence to the Tribunal after he filed his application. 

7.      On 8 October 2007 and 18 January 2008 the Tribunal requested that Mr Atkins provide a copy of the decision he wished to have reviewed.   No decision was provided.

8.      The matter was listed on 3 June 2008 for a hearing via telephone to determine whether the Tribunal had jurisdiction.  That hearing date was vacated at Mr Atkins' request because he said he was seeking legal representation.   

9.      The interlocutory hearing proceeded by telephone on 18 June 2008.  Mr Atkins represented himself.  At that hearing I was trying to determine whether there was any reviewable decision that this Tribunal has the jurisdiction to review, and, if so, who the proper respondent was.

10.     Mr Atkins took me through Parts A, B and C of a chronology he had compiled, and attempted to identify reviewable decisions.

11.     Mr Atkins had many complaints about his treatment by various government agencies. He made allegations of criminal and illegal behaviour by various people.

12.     On 30 June 2008, after Mr Atkins refused to attend a further telephone directions hearing to participate in formulating the direction to be made, I directed that Mr Atkins file copies of documents which contain the decisions he seeks to have reviewed by this Tribunal on or before 1 August 2008. Mr Atkins did not comply with that direction. He did, however, file a further eighty-five pages of material he had prepared setting out what he considered to be the reviewable decisions. 

THE LAW

13. Section 42B of the Act empowers the Tribunal to dismiss an application at any stage of the proceeding if it is satisfied that the application is frivolous or vexatious. Such a power is to be used sparingly and cautiously: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Re Williams and Australian Electoral Commission (1995) 38 ALD 366.

14.     The terms “frivolous” and “vexatious” are not defined in the Act. In Re Williams and Australian Electoral Commission this Tribunal, constituted by President Matthews J, Beaumont and Hill JJ, endorsed the test propounded in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, by Roden J. The third test is relevant in this case:

3. (Proceedings) are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

15.     The question is not whether the proceedings have been instituted vexatiously, but whether they are in fact vexatious:  Re Vernazza [1960] 1 QB 197 at 208.

16.     Mr Atkins has been given several opportunities to provide to the Tribunal copies of the decision or decisions that he seeks to have reviewed, but has not done so.  His understanding, and his summary of correspondence, as set out in the voluminous documentation he has provided, does not assist the Tribunal to determine what the decision is or decisions are that he seeks to have reviewed.

17.     It has not been possible to identify any reviewable decision and therefore it has also not been possible to identify an appropriate respondent.      

18. In those circumstances, it is my opinion that the current proceedings are frivolous and vexatious and should be dismissed pursuant to s 42B of the Act.

19. If I be wrong in coming to that conclusion, in my opinion, the Tribunal has no jurisdiction because no reviewable decision has been identified and the proceedings should be dismissed pursuant to s 42A(4) of the Act.

DECISION

20. The application is frivolous and vexatious and is dismissed pursuant to s 42B(1)(a) of the Act.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly.

Signed: ………[sgd]……………

Steven Mulipola, Associate

Date of interlocutory hearing:       3 June 2008

Date of final submissions:             1 August 2008

Date of decision:  5 August 2008

Date of written reasons:                 2 September 2008

Respresentive for the Applicant:   Self-represented