COLIN SMITH - [2006] AATA 845

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION 2006 AATA 845
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/807

GENERAL ADMINISTRATIVE DIVISION )

Re COLIN SMITH

Applicant
SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONS
Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member
Date4 October 2006
PlaceSydney

Decision The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints. Further, the Administrative Appeals Tribunal dismisses the application pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.

[Sgd] Ms N Isenberg, Senior Member

CATCHWORDS
JURISDICTIONAL ISSUE – Social Security – Applicant paid Newstart Allowance from December 1992 and was overpaid Newstart Allowance between 15 January 1993 and 31 June 1997 – debt is the subject of appeal to the Tribunal – consideration of case law and legislation – continuation of proceedings would be futile and hence vexatious – the Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints – application dismissed pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.
Administrative Appeals Tribunal Act 1975 – section 25
Re Quinn v Australian Postal Corporation (1992) 15 AAR 519
Re The Hospital Benefit Fund of Western Australia Inc. v Department of Health, Housing and Community Services (1992) 16 AAR 158
Comcare v Grimes (1994) 50 FCR 60
Re Williams and Australian Electoral Commission and The Greens (party joined) (1995) 38 ALD 366
Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3

REASONS FOR DECISION

4 October 2006

Ms N Isenberg, Member

1.          A hearing was held before me on 15 September 2006 at which Mr Smith appeared without representation, and Ms Sharma appeared for the Respondent.
Background
2.          Mr Smith was paid Newstart Allowance from December 1992. He had casual part time work and declared earnings on only some of his fortnightly forms. As a result, Mr Smith was overpaid newstart allowance of $26,400.65 between 15 January 1993 and 31 June 1997.
3.          On 12 August 1999, Mr Smith was convicted of several charges of knowingly obtaining a social security payment which was not payable. He was ordered to perform a total of 400 hours community service. No formal reparation order appears to have been recorded.
Recovery of the debt
4.          To recover the debt in respect of the charges for which he was convicted (an amount of $19,326.19) Centrelink withheld some benefits, and Mr Smith made some intermittent payments. Then Centrelink commenced garnisheeing Mr Smith’s wages.
5.          The debt was the subject of appeal to this Tribunal. Mr Smith’s appeal from that decision to the Federal Court was dismissed on 30 August 2001.
6.          In June 2002, Mr Smith appealed against Centrelink’s decision to recover the whole debt by garnisheeing his gross salary at the rate of 10% per fortnight. On 8 April 2003, the Tribunal affirmed the decision under review to recover the whole debt.
7.          The Tribunal found:
“ ...that in absence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading COLIN SMITH

Details

AGLC: COLIN SMITH [2006] AATA 845
Case: [2006] AATA 845
Decision Date: 4 October 2006

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal involved Colin Smith, who contested the overpayment of Newstart Allowance received between 15 January 1993 and 31 June 1997, and the subsequent debt appeal to the Tribunal. The Tribunal was tasked with determining whether it had the jurisdiction to hear the Applicant's complaints regarding the overpayment of social security benefits.

The central legal issue before the Tribunal was whether it possessed the jurisdiction to hear the Applicant's complaints under section 25 of the Administrative Appeals Tribunal Act 1975. The Tribunal also had to consider the principle of futility as articulated in various case precedents, such as Re Quinn v Australian Postal Corporation, Re The Hospital Benefit Fund of Western Australia Inc. v Department of Health, Housing and Community Services, Comcare v Grimes, Re Williams and Australian Electoral Commission and The Greens, and Fearnley v Australian Fisheries Management Authority. The Tribunal needed to ascertain if the continuation of the proceedings would be futile, and thus, vexatious.

In its judgment, the Tribunal meticulously examined the statutory provisions and the relevant case law. It found that the Applicant's complaints were essentially regarding the overpayment of social security benefits, a matter that fell within the purview of the Social Security Act 1991, not the Administrative Appeals Tribunal Act 1975. The Tribunal concluded that the continuation of the proceedings would be futile, as the appropriate forum for such complaints was not the Tribunal but the Department of Human Services. Consequently, the Tribunal determined that it lacked jurisdiction to hear the Applicant's complaints. As a result, the Tribunal dismissed the application under section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.

The Tribunal made an order that it had no jurisdiction to hear the Applicant's complaints under section 25 of the Administrative Appeals Tribunal Act 1975. Additionally, the Tribunal dismissed the application pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.

Orders

Orders of the court

The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints. Further, the Administrative Appeals Tribunal dismisses the application pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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