Burgess and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 387

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 387

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0734

GENERAL ADMINISTRATIVE DIVISION		)
Re		DARREN BURGESS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date24 May 2010  

PlaceBrisbane

Decision The application is dismissed pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

...............Signed................

Deputy President

CATCHWORDS

SOCIAL WELFARE – pensions, payments and allowances – disability support pension – rent assistance – claim entirely devoid of merit – application frivolous or vexatious – application dismissed

Administrative Appeals Tribunal Act 1975 (Cth), s 42B(1)(a)

Burgess v Centrelink [2006] FMCA 1952

Burgess and Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 450

Burgess and Secretary, Department of Employment and Workplace Relations [2006] AATA 756 

Burgess and Secretary, Department of Employment and Workplace Relations [2007] AATA 1601

Burgess and Secretary, Department of Family and Community Services [2006] AATA 27 

REASONS FOR DECISION

24 May 2010   Deputy President P E Hack SC    

1. The applicant, Mr Darren Burgess, is a long-term recipient of disability support pension, including rent assistance. He has an apparently unshakeable belief that he is entitled to be paid a lump sum of rent assistance or an advance of disability pension in excess of $500 to enable him to acquire the premises in which he currently resides as a tenant. He has articulated those claims in a number of proceedings in the Tribunal.

2. The first articulation appears to have been made in late 2005. It was the subject of a decision I made on 16 January 2006[1]. An appeal against that decision was subsequently dismissed when Mr Burgess was unable to identify any error of law. Later in 2006 Mr Burgess sought review of another, similar, decision of Centrelink that resulted in the decision of Senior Member McCabe of 6 September 2006[2]. An appeal from that decision was dismissed[3].

   [1] See [2006] AATA 27.

   [2] See [2006] AATA 756.

   [3] See [2006] FMCA 1952.

3. Mr Burgess sought, unsuccessfully, to agitate the correctness of these two decisions in 2007 however Senior Member Isenberg held that the Tribunal did not have jurisdiction[4]. Mr Burgess returned to the Tribunal in 2009 however Dr Denovan, Member, affirmed the decision refusing him an advance payment in excess of $500[5]. Again, an appeal from that decision was dismissed.

   [4] See [2007] AATA 1601.

   [5] See [2009] AATA 450.

4. The respondent seeks an order from the Tribunal dismissing the present application under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) i.e. on the footing that the Tribunal ought be satisfied that the application is frivolous or vexatious, and a direction under s 42B(1)(b) of that Act that Mr Burgess must not, without the leave of the Tribunal, make a subsequent application to the Tribunal of a kind arising under the Social Security Act 1991 (Cth).

5. Mr Burgess has been provided with a copy of the respondent’s written submissions in support of the application and given an opportunity to respond to those submissions. He has not done so and I assume that he is content to rely only on the submissions lodged with his original application on 22 February 2010 and subsequent submissions received on 2 March and 10 March 2010.

6. It is plain from the material lodged by Mr Burgess (to the extent that it touches upon the matters within this Tribunal’s jurisdiction) that he is seeking to again advance the claims for a lump sum and payment in advance that have already been determined and rejected in earlier decisions of the Tribunal. His claim, as set out in his submissions dated 26 February 2010, is expressed thus:

   “Concise Case, a Claim (and amend Grant details by applying Maximum Entitlement

   (a)for 6% annual advance loan access.

   (b)arrear housing payment to cease from Applicant;

   (c)reclaim of Individual’s Housing Invested, paid to Him as 100% single

   (d)plus the Full Pension as a whole Share, as Sum lent/paid or invested since 1991 dsp [disability support pension] startdate is reached exceeding tabulated Sum of Provision to be a Homeowner. Maximum Entitlement $307,250.00 total.”

7. The material accompanying the application makes it plain that the intent of Mr Burgess’ present claim is unchanged. He seeks payment of a lump sum – whether in arrears or in advance is not at all clear. However it remains the case that Mr Burgess cannot be paid in the manner that he seeks; to do so would be to make a payment of public money without statutory authority to do so. Mr Burgess’ claim is entirely devoid of merit. I am satisfied that the application is frivolous or vexatious and that it would be wasteful of public resources to allow the matter to proceed any further. I propose to accede to the first part of the respondent’s application and will dismiss Mr Burgess’ application under s 42B(1)(a) of the Administrative Appeals Tribunal Act.

8. I have, however, decided not to grant the second aspect of the relief sought by the respondent, the direction under s 42B(1)(b) of the Administrative Appeals Tribunal Act. I think it preferable at this stage to point out to Mr Burgess that the power to make the direction exists and that if he persists in making applications on a basis that has been again and again rejected by the Tribunal it is likely that the Tribunal will be persuaded to make such a direction.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ............Signed..........................................................
  Associate

Heard on the papers                  
Date of Decision  24 May 2010