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 of reparation order in the Local Court, the applicable provisions of      the Act apply. Amounts paid by way of social security [are] recoverable under the Act...”  

The Tribunal further found:

“there is some evidence that a reparation order was made, although it may not have been recorded.  There is also evidence that Mr Smith indicated a willingness to repay the sum of $50 per fortnight.  However, this Tribunal does not find that any agreement was made with the Department at this time.”  

The Tribunal concluded:

“His application to reduce payments to $25 per week appears to be based upon his view of the Local Court decision (where he also argued that no reparation order was made) and his view that repaying debt is not a priority. There appears to be no particular hardship suffered by Mr Smith who is in full time employment.”

8.          On 30 September 2003, Mr Smith again appealed to the Social Security Appeals Tribunal (“the SSAT”) and requested a review of Centrelink’s decision which declined to review the issues he raised as they had already been reviewed by this Tribunal.  By that application, Mr Smith again requested a review of Centrelink’s decision to continue to recover the debts by way of garnishee at 10% of his fortnightly income.  On 25 November 2003, the SSAT declined Mr Smith’s request for review, deciding that he had pursued his right of appeal in relation to recovery of his debts at various levels including the SSAT, the AAT and Federal Court (T19, pages 69-75).  On 27 April 2004, this Tribunal affirmed the decision of the SSAT by holding that it had no jurisdiction in the matter as all the issues raised by Mr Smith had been dealt with comprehensively by the Tribunal in his earlier applications (T20, pages 76-80).

9.          In a notice of assessment from the Australian Taxation Office (“the ATO”) for the year ending 30 June 2004, Mr Smith’s taxable income was $65,743.  From 5 November 2004, Centrelink continued to garnish Mr Smith’s wages.  On 27 April 2005, Mr Smith returned a financial circumstances information form and offered to repay his debts at $25 per week.  After Centrelink made enquiries from his employer, Australia Post, about Mr Smith’s earnings, it decided to continue garnisheeing his wages at 10%.

10.        Mr Smith sent a number of letters to Centrelink questioning the decision to continue to recover the debt by garnisheeing his wages at 10% of his fortnightly income, each of which referred to the reparation order and the offer to pay $25.00 per week, even though these matters had been considered in various decisions of the SSAT and this Tribunal as detailed above.

11.        On 2 November 2005, Centrelink wrote to Mr Smith advising him of the decision to continue garnisheeing his wages.  That decision was affirmed on review, and by the SSAT.  On 3 July 2006, Mr Smith appealed to this Tribunal.

This application

12.        In his application, Mr Smith has again raised issues with regard to the reparation order.

13.        At the outset of the hearing I invited Mr Smith to identify the outcome he was seeking before the Tribunal.  He told me that if he could just see a copy of the reparation order he would ‘go away’, because he would ‘respect’ that order. 

14.        In the course of the hearing I endeavoured to explain to Mr Smith that whether or not there was a reparation order, Centrelink was still entitled to recover excess payments which had been made to him: see paragraph 5 of the Tribunal’s decision of 27 April 2004 (T20, pages 76-80).     

15.        By his application Mr Smith seeks to again review decisions that have been previously made by Centrelink, by the SSAT, this Tribunal and the Federal Court.  It would also appear that he considers that he may bring the proceedings for the same reasons, namely from his belief that there was a reparation order made to repay the debt at the rate of $25.00 per week. Curiously, notwithstanding that I asked him directly several times in the course of the hearing, he neither conceded the debt, nor indicated a willingness to comply with the ‘reparation order’. 

16.        I was referred to Re Quinn v Australian Postal Corporation (1992) 15 AAR 519 and Re The Hospital Benefit Fund of Western Australia Inc. v Department of Health, Housing and Community Services (1992) 16 AAR 158, which held that the Tribunal has the power to control its own proceedings and decline to permit parties to re-litigate an issue which has previously been decided.

17.        In Comcare v Grimes (1994) 50 FCR 60, Wilcox J referred to the decision of Pincus J, as he then was, in Bogaards v McMahon, stating: “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 …The AAT, which is master of its own procedures, will not allow a finally determined matter to be re-litigated.”

18.        I have come to the view that Mr Smith’s application is an attempt to re-litigate the matters that gave rise to this Tribunal’s decisions on 8 April 2003 and 27 April 2004.

19.        As to Mr Smith’s request for a copy of the reparation order, even on the assumption that it exists, the Tribunal has no jurisdiction to require its production to Mr Smith.  More importantly, the existence of the reparation order, including whether an order may have been made verbally and apparently not reduced to writing, has also been previously canvassed.

20. I also find that section 42B of the Administrative Appeals Tribunal Act 1975, applies.  That section provides that an application may be dismissed if it is frivolous or vexatious.  The Respondent contends that the current proceedings are frivolous as the appeal mechanism available to Mr Smith has been thoroughly exhausted.

21.        I note that in Re Williams and Australian Electoral Commission and The Greens (party joined) (1995) 38 ALD 366 the power to dismiss an application under section 42B should be exercised “cautiously and sparingly” and I proceeded on that basis.

22. Most recently the Tribunal’s powers under section 42B were considered in Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3. The Tribunal, applying Re Williams (supra) had found that there could be no practical outcome for Mr Fearnley.  The Full Federal Court approved the Tribunal’s approach.

23.        In this matter there is no practical outcome which will satisfy Mr Smith.  I therefore find that continuation of the proceedings would be futile and hence vexatious.

DECISION

24. 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.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:         Associate

Date of Hearing  15 September 2006

Date of Decision     4 October 2006

Representative for the Applicant               Mr Smith, Self-Represented

Representative for the Respondent          Ms Sharma,

Centrelink Legal Services Team