Callaghan and Secretary, Department of Family and Community Services
[2005] AATA 595
•11 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 595
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/790
GENERAL ADMINISTRATIVE DIVISION )
Re THOMAS CALLAGHAN Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Ms MJ Carstairs, Member Date11 May 2005
PlaceGladstone
Decision Pursuant to s42B(1) of the Administrative Appeals Tribunal Act 1975 the Tribunal dismisses the application for review.
..........[Sgd]..........
M J Carstairs
Member
CATCHWORDS
SOCIAL SECURITY – age pension – income test – whether application for review should be dismissed as being frivolous or vexatious under s 42B(1) of the Administrative Appeals Tribunal Act 1975.
Social Security Act 1991 s8
Administrative Appeals Tribunal Act 1975 s42B(1)
Re Callaghan and Secretary, Department of Family and Community Services [2004] AATA 258
Re Cooper and Repatriation Commission (1995) 38 ALD 164WRITTEN REASONS FOR ORAL DECISION
21 June 2005 Ms MJ Carstairs, Member 1. This is an application by Thomas Callaghan (the applicant) for review of the decision of Centrelink to assess Mr Callaghan’s rate of age pension on the basis that his United Kingdom war disablement pension must be taken into account as income under the Social Security Act 1991. This decision was affirmed by the Social Security Appeals Tribunal (“the SSAT”) on 16 September 2004.
2. The applicant represented himself at the hearing. The respondent was represented by its advocate Ms S Oliver. The Tribunal delivered oral reasons. On 16 May 2005, the respondent requested written reasons, as did the applicant at a later date. These reasons answer that request and incorporate part of the respondent’s Statement of Facts and Contentions which were read at the hearing.
3. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the Act”) numbered T1-T14. The respondent lodged a Statement of Facts and Contentions dated 22 April 2005, the primary submission of which was that the application should be dismissed pursuant to s42B(1) of the Act.
4. Section 42B(1) of the Act provides as follows:
“42B Power of Tribunal where a proceeding is frivolous or vexatious
(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application; and
(b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.”
BACKGROUND
5. The applicant is aged seventy-nine. He receives a 30% war disablement pension from the United Kingdom (T5, T6, T10). Since 13 February 2001, Centrelink has assessed the applicant’s rate of age pension on the basis that the war disablement pension was to be taken into account as income.
6. In June 2004, the applicant requested a review of the decision to treat his war disablement pension as income. On 10 August 2004, an authorised review officer reviewed and affirmed the decision (T11). On 16 August 2004, the applicant sought review of this decision by the SSAT which on 16 September 2004 affirmed the decision (T2).
7. On 7 October 2004, the applicant applied to the Tribunal for review (T1).
8. Neither the decision of the authorised review officer or the SSAT mentioned that the applicant, on two previous occasions has lodged applications with the Tribunal, one of them identically relating to the question of the income treatment under the Social Security Act of the war disablement pension.
9. The history of those previous applications was as follows:
·On 8 August 2001, the applicant applied to the Tribunal for review of a decision to reject his claim for age pension at the blind rate (Q2001/698). During the course of these proceedings, an issue arose as to how the rate of Mr Callaghan’s age pension was being calculated. On 26 October 2001, Centrelink wrote to the Tribunal and Mr Callaghan advising that, amongst other things, his war disablement pension was being treated as standard income and was, therefore affecting the rate of pension payable to him (T7). The Tribunal gave an oral decision in this matter affirming the decision under review on 10 December 2001.
·On 8 July 2003, Mr Callaghan applied to the Tribunal for review of a decision to reject his claim for age pension at the blind rate (Q2003/551). The Tribunal gave a decision in this matter affirming the decision under review on 12 March 2004 (see Re Callaghan and Secretary, Department of Family and Community Services [2004] AATA 258). During the hearing of matter Q2003/551, the applicant raised the issue of whether his war disablement pension should be treated as income. The Tribunal addressed these issues at paragraphs 13 – 19 and paragraphs 21 – 22 of its reasons.
10. The Tribunal found:
“21. The Tribunal accepts the respondent’s submission that the definition of income in the Act is wide, and includes the payments made under overseas pensions such as the UK pension received by the applicant. Whilst it may seem anomalous that such a pension might receive different treatment under different pieces of legislation, the Tribunal must apply the provisions of this Act without regard to what might be defined as income under other legislation. It has been noted in Court and Tribunal decisions that the definition of income in the Act is widely drawn, and that it is far wider than the definition in the Income Tax Assessment Act 1936. The Tribunal also notes that, though adopting the same definition of income as the Act, the Veterans’ Entitlements Act 1986 specifically exempts (at s5H(8)(e)) the following:
a payment … in respect of incapacity or death resulting from employment in connection with a war or war-like operations in which the Crown has been engaged;
There is no similar exemption in the Act. The Tribunal was satisfied that the applicant’s UK pension is not a pension or allowance about which the Minister has made a written determination under s35A, which is a requirement for an exemption under s8(8)(zi).
22. The Tribunal was satisfied that the UK pension must be treated as income under the Act as moneys … received, and that none of the exemptions in s8(8) applies to it.”
RESPONDENT’S SUBMISSIONS
11. Ms Oliver submitted that Mr Callaghan’s current application to the Tribunal should be dismissed under s42B(1) of the Act. She submitted that Mr Callaghan is seeking to re-litigate matters before the Tribunal which have previously been decided.
12. Ms Oliver submitted that there has been no legislative change to s8(8) of the Social Security Act since the applicant’s previous appeal was decided by the Tribunal in March 2004 which would make Mr Callaghan’s UK war disablement pension exempt from the definition of income in s8(1) of the Social Security Act.
13. In Re Cooper and Repatriation Commission (1995) 38 ALD 164, Deputy President Blow held that in cases where an applicant was seeking to re-litigate issues that have previously been determined, it is appropriate for the Tribunal to exercise its power to dismiss the application under s42B(1) of the Act as frivolous. The Deputy President stated:
“In this context, ‘frivolous’ means ‘obviously unsustainable’: Attorney-General (Duchy of) Lancaster v London and North Western Railway Co [1892] 3 Ch 274.
The power to dismiss proceedings as frivolous should be exercised only in the clearest of cases. O’Connor J, explained the relevant principle in Burton v The President &c.; of the Shire of Bairnsdale (1908) 7 CLR 76 at 92 as follows:
Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.
Whilst those remarks concerned court proceedings, they are equally applicable to the discretion which the tribunal possesses under s42B(1)(a).”
14. Section 8(1) of the Social Security Act provides a very wide definition of income defined as follows:
“8(1) Income test definitions
(a)an income amount earned, derived or received by the person for the person's own use or benefit; or
(b) a periodical payment by way of gift or allowance; or
(c) a periodical benefit by way of gift or allowance;…”
Ms Oliver submitted that under the definition, any income amount that has been earned, derived or received by a social security recipient is taken to be income.
15. The Social Security Act provides for exemptions from the definition of income in s 8(1) but none apply to the applicant’s circumstances. Taking into account that there have been no changes to these income provisions in the Social Security Act, the Tribunal in its decision dated March 2004 ([2004] AATA 258) has made a final determination, and in the course of its reasons, has interpreted s8 of the Social Security Act and applied that interpretation to the facts of the applicant’s case.
16. In the course of the hearing, the Tribunal discussed with the applicant the content of the respondent’s Statement of Facts and Contentions and canvassed with the applicant that the issues that he now wished to litigate had been determined substantively by a previous Tribunal. The Tribunal explained that the powers of the Tribunal do not extend to reviewing its own decisions. Had the applicant wished to take the previous decision further, the proper recourse was an appeal to the Federal Court.
17. The Tribunal invited the applicant to explain why he wished to have his decision reviewed. He reiterated the matters that had been canvassed before Member Cowdroy in two previous appeals, namely, that he considered his blindness was the result of medical negligence in the State hospital system and his deep concern that having his age pension reduced by the receipt of overseas income leaves him unable to meet the increased needs that he has as a result of his eye injury.
18. The Tribunal explained to the applicant that the terms “frivolous” and “vexatious” are not terms intended to minimise the significance of the matters on which an applicant appeals, nor are they necessarily intended to imply bad intention or bad faith on the part of the applicant himself in pursuing the claim. Rather, they are directed at the integrity of court or administrative review processes, in not re-litigating matters already comprehensively determined.
19. The Tribunal pointed out to the applicant that matters raised about his decreased vision required a fresh application based on additional medical evidence to show that deterioration. That would require a fresh claim with Centrelink. That, however, was never part of the applicant’s current appeal with the Tribunal.
20. The Tribunal also pointed out to the parties that it was surprising that this appeal, which concerned only the income testing of his overseas pension, could have been reviewed by both an authorised review officer and by the SSAT without either review body making any reference to Ms Cowdroy’s decision, dealing with exactly that issue, a decision delivered in the same year as the authorised review officer and SSAT each re-looked at the question. In ordinary circumstances, one would expect both levels of review would have declined jurisdiction based on that matter having already been determined by this Tribunal. The matter then might not have gone as far as it has.
21. However, as it has, it remains for this Tribunal to decide what the proper course for dealing with the application. That course is provided by s42B(1) of the Act which allows the Tribunal to dismiss the application for review.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member
Signed: Jenny Tran
Associate
Date/s of Hearing 11 May 2005 [at Gladstone]
Date of Decision 11 May 2005
Date of Written Reasons 21 June 2005
The Applicant appeared in person
For the Respondent Ms S Oliver, Departmental Advocate
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