Burgess and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1601

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1601

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2275

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DARREN BURGESS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date30 July 2007

PlaceSydney

Decision The Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints.

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

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – jurisdiction – attempt to relitigate matters previously decided by the Tribunal – Tribunal has no jurisdiction to hear the Applicant’s complaints

Administrative Appeals Tribunal Act 1975 – section 25

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

Re Hospital Benefit Fund of Western Australia Inc and Department of Health Housing and Community Service (No 1) (1992) 28 ALD 25

Comcare v Grimes & Anor (1994) 50 FCR 60

Bogaards v McMahon & Anor (1988) 80 ALR 342

REASONS FOR DECISION

30 July 2007 Ms N Isenberg, Senior Member   

1.      A hearing was held before me on 18 July 2007 at which the Applicant appeared by telephone without representation and Ms Quinn of Centrelink also appeared by telephone, representing the Respondent.

2.      At the outset I invited Mr Burgess to identify the decision in relation to which he sought review, because, notwithstanding the voluminous material provided by him, it was unclear as to the decision about which he complains.

3.      He told me, in essence, that he seeks a review of the decision by Centrelink not to advance him either his disability support pension or rent assistance.

4.      He agreed that these issues had been canvassed previously before the Administrative Appeals Tribunal (“the Tribunal”):

(a)in relation to rental assistance before Deputy President Hack who gave his decision on 16 January 2006 (Q2005/648), and

(b)in relation to disability support pension before Senior Member McCabe who gave his decision on 6 September 2006 (Q2006/213).

5.      Ms Quinn informed me that each of these decisions had been appealed.

6.      The first matter was appealed to the Federal Court which dismissed the appeal and awarded costs against Mr Burgess.  An application for an extension of time to appeal to the Full Federal Court has been dismissed.

7.      In the second, the application to the Federal Court was remitted to the Federal Magistrates Court where the application for an extension of time to file and serve a notice of appeal was dismissed with costs.  An appeal against that decision to the Federal Court has been stayed because of a security for costs order.

8.      No fresh decision has been made by Centrelink in respect of these issues.

9.      By his application, Mr Burgess seeks to have decisions made by Centrelink that have already been reviewed by the Social Security Appeals Tribunal, this Tribunal and the Federal Court to be again reviewed by this Tribunal.  It would also appear that he considers that he may bring the proceedings for the same reasons, namely an entitlement to an advance of his pension entitlements calculated up to a very old age.

10.     I note the decision in Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 and Re Hospital Benefit Fund of Western Australia Inc and Department of Health Housing and Community Service (No 1) (1992) 28 ALD 25, which held that the Tribunal has the power to control its own proceedings and decline to permit parties to relitigate an issue which has previously been decided.

11.     I also note that in Comcare v Grimes & Anor (1994) 50 FCR 60, Wilcox J referred to the decision of Pincus J, as he then was, in Bogaards v McMahon (1988) 80 ALR 342, who stated at 350:

It would seem easy enough to conclude that, to the extent that the Tribunal deals directly with a decision under review (for example, by substituting another), its functions are exhausted. It would be absurd to suppose that the legislature intended that the Tribunal, having on Monday set aside a decision under review, should have jurisdiction on Tuesday (on precisely the same facts) to affirm it, perhaps acting by a different member.  The same result must follow where the Tribunal's decision is made by consent.

12.     Wilcox J, after stating that the conclusion reached in that matter was “clearly correct”, stated at 67:

the AAT, which is master of its own procedures, will not allow a finally determined matter to be relitigated.

13.     I have come to the view that Mr Burgess’s application is an attempt to relitigate the matters that gave rise to this Tribunal’s decisions on 16 January 2006 and 6 September 2006 and the appeals from those decisions.

DECISION

14. The Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:         ................[sgd]................................................................
  Associate

Date of Hearing  18 July 2007
Date of Decision  30 July 2007
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Ms R Quinn, Centrelink Legal Services