Dudzinski and Department of Family and Community Services
[2000] AATA 560
•7 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 560
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/949
GENERAL ADMINISTRATIVE DIVISION )
Re ANNA DUDZINSKI
Applicant
And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal WJF Purcell, Senior Member
Date7 July 2000
PlaceBrisbane
Decision The Tribunal dismisses the application for review dated 26 August 1999.
(Sgd) WJF Purcell
Senior Member
CATCHWORDS
SOCIAL SECURITY – variation of decision before review by Administrative Appeals Tribunal – whether applicant's wishing to continue with application was for a collateral purpose – dismissal – frivolous or vexatious.
Administrative Appeals Tribunal Act 1975 ss 42B, 45
Social Security (Administration) Act 1999 s 180
Williams v Australian Electoral Commission 38 ALD 366
Re Bergen v Secretary, Department of Social Security 36 ALD 717
REASONS FOR DECISION
7 July 2000 WJF Purcell, Senior Member
On 26 August 1999, the applicant lodged an application for review of a decision of the Social Security Appeals Tribunal (SSAT) of 29 July 1999, which affirmed a decision to impose an activity test breach rate reduction of 18% on payment of the applicant's newstart allowance for the 26 weeks commencing on 12 March 1999.
On 27 April 2000 the Tribunal forwarded notification to the parties that the Hearing of the matter would take place on 3 July 2000 at 10.15am, and that a Directions Hearing would be held on 19 June 2000 at 9.45am. On 19 June 2000, Mr Dudzinski, who represented the applicant, stated that she was no longer seeking adjournment of the Hearing, and that she wished to subpoena some twelve (12) Centrelink officers to attend the Hearing and to give evidence. Mr Walsh, who represented the respondent (the Department) stated that the Department had conceded the matter, and had forwarded Consent Minutes to the applicant. He stated also, that the delegate would in any event make a decision favourable to the applicant, prior to the date of the Hearing. I informed the applicant that the matter was listed for Hearing for 1 day only; that in the absence of a favourable decision the Hearing would proceed on 3 July 2000. The question of the issue of subpoenas, and the fixing of a date for the resumption of the Hearing on a part-heard basis, would be dealt with at that time.
On 28 June 2000 a delegate, pursuant to section 180 of the Social Security (Administrative) Act 1999 (the Act), set aside the decision and advised the applicant by letter in part, as follows:"Dear Mrs Dudzinski,
I am writing to you about your Newstart Allowance.
Your Newstart Allowance breach during the period 12 March 1999 to 9 September 1999 has been overturned on review by the Secretary. Under section 180(1) of the Social Security (Administration) Act I have set aside the decision to impose a rate reduction penalty for Newstart Allowance. Therefore no breach has been imposed for this period.
An arrears payment of $685.80 was made to you on 26 June 2000, being the amount withheld due to application of an 18% rate reduction during the period 12 March 1999 to 9 September 1999.
I have attached an explanation of the arrears payment as requested."
Section 180 of the Act as far as is relevant, provides:
"180 Variation of decision before AAT review completed
(1) If an officer varies a decision after an application has been made to the AAT for review of that decision but before the determination of the application, the application is to be treated as if:
(a) the decision as varied had been affirmed by the SSAT; and(b)the application were an application for review of the decision as varied.
(2) If an officer sets a decision aside and substitutes a new decision after an application has been made to the AAT for review of the original decision but before the determination of the application, the application is to be treated as if:
(a)the SSAT had set aside the original decision and substituted the new decision; and
(b)the application were an application for review of the new decision.
(3) If:
(a) a person applies to the AAT for review of a decision; and(b)before determination of the application, an officer varies the decision or sets the decision aside and substitutes a new decision;
the applicant may, instead of proceeding with the application under subsection (1) or (2), withdraw the application."
On 3 July 2000 Mr Dudzinksi and the applicant were not in attendance at 10.15am, but entered the Hearing Room at about 10.45am. The matter was called on, and Mr Kanowski, who was representing the Department, requested that the application for review be dismissed. He submitted that the decision under review was now the decision of 28 June 2000, which set aside the decision of the SSAT, and substituted a decision that no breach be imposed for the period 12 March 1999 to 19 September 1999. This decision was the best possible outcome that the applicant could have hoped for if the review of the SSAT decision had taken place. The proceedings had become vexatious and should be dismissed in accordance with section 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act). He relied on Williams v Australian Electoral Commission 38 ALD 366 and re Bergen v Secretary, Department of Social Security 36 ALD 717.
The applicant argued that the Hearing should proceed, and that twelve (12) Departmental officers should answer subpoenas and attend. She had requested on previous occasions that the Department review its decision. The decision was unreasonable because she was sent for intensive assistance. She has tertiary qualifications and should not have been put in the category of requiring intensive assistance. She requests that the Tribunal find as a fact, that she should not have been so classified. The applicant maintains she showed the SSAT all the necessary documentation which the SSAT did not take into account. She argues that the Department is still pressuring her to sign a Newstart Activity Agreement, as a result of the decision that she requires intensive assistance.
The applicant submits also, that the Department has falsified her history of employment during the period 1996 to 1998, and that such falsified history had the applicant working for 1 day for one employer, and 1 day for another employer, and 2 - 3 days for a third employer. The Department used these instances as a reason for referring her for intensive assistance. The applicant has a list of some of the Departmental officers who were part of the decision making process in sending her for intensive assistance, and wants to call these people to attend the Hearing so that this Tribunal can make findings of facts as to why the people did what they did.
The applicant requests, in addition, that I refer questions which she describes as questions of law, to the Federal Court of Australia, in accordance with section 45(1) of the AAT Act, which provides:
"Reference of questions of law to Federal Court of Australia
45. (1) The Tribunal may, of its own motion or at the request of a party, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision but:
(a) in the case of a proceeding before the Tribunal constituted by 2 or more members at which a presidential member presides - a question shall not be so referred without the concurrence of that presidential member; and
(b) in the case of a proceeding before the Tribunal at which a presidential member does not preside - a question shall not be so referred without the concurrence of the President; and
(c) in respect of a proceeding before the Small Taxation Claims Tribunal-in so referring a question, the interests of the applicant seeking review of a relevant taxation decision must be taken into account. "
The questions are:
(1) Whether it was unreasonable for Centrelink to refer the applicant for intensive assistance. The decision was made in bad faith, there was collusion, falsification of employment records, negligence, defamation and a misuse of statutory powers, and the Department did not distinguish between "may" and "must" appearing in Section 601 of the Social Security Act 1991. There was a misapplication of law to the applicant, because different statutes should have been applied such as Section 44 of the Employment Services Act 1994 (Cwth) instead of the Social Security Act 1991. She stated that further grounds will be provided to the Federal Court at the Hearing.
(2) Whether the conduct of certain numbers of employees of Centrelink, such as Brian Harris and Steve Ulhman, falls within the wording of certain sections of the Crimes Act 1914 (Cwth) including forging and falsifying documents and withholding social security payments which should be paid to her as a matter of fact and law.
(3) Whether the conduct of the Salvation Army Employment Plus was misleading and deceptive in relation to the provision of employment, and whether Centrelink and the Salvation Army Employment Plus personnel harassed and coerced the applicant to use the services that she did not wish to use because they were of no use to her.
Section 45(1) of the AAT Act provides that the Tribunal may, at the request of a party, refer a question of law arising in a proceeding before it to the Federal Court. In my view the matters raised by the applicant are not questions of law arising in a proceeding before the Tribunal; and in any event I decline her request to refer these questions to the Federal Court of Australia.
Section 42B of the AAT Act gives the Tribunal power to dismiss an application if it is satisfied that the application is frivolous or vexatious. The subsection provides:
"Power of Tribunal where a proceeding is frivolous or vexatious
42B. (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.
(2) A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.
(3) The Tribunal may discharge or vary such a direction."
When the applicant lodged her application on 26 August 1999 she had standing under the AAT Act to pursue the review of a decision which was unfavourable to her. The decision of the delegate of 28 June 2000, by operation of section 180 of the Act, has become the reviewable decision. This decision rescinded the earlier unfavourable decision, and the question is whether the applicant has lost standing now, to pursue her application.
The Full Court of the Federal Court in the matter of Williams considered this question, and said at p 372:
"(27) The question thus arises as to whether a person who had standing under the AAT Act to apply for review of a disputed decision should be entitled to maintain the proceedings notwithstanding that the underlying interest which provided that standing has ceased to exist"
and at p 373:
"(33) It is questionable whether the AAT, being a statutory Tribunal outside the Court system, has inherent powers to control its processes similar to those which are possessed by the Courts. We do not seek to address that issue in this case. It is unnecessary to do so in our view, for we consider that the situation in any event falls within the provisions of section 42B. It does so not only because of the futility of the proceedings, but also because they are being pursued by the applicant for a collateral purpose - a purpose which is irrelevant to any issue which could legitimately be raised in these proceedings. Moreover that collateral purpose is itself a futile one. Whatever the outcome of this case, were it to proceed to a final hearing, it could have no effect whatsoever upon the one matter which appears to concern the applicant, namely the validity of the structural changes effected by the Greens in August 1992. Nor could it have any effect upon any other matter which is of interest to the applicant. Indeed it could have no effect upon anything. If the applicant were to succeed in these proceedings it would mean that the position of registered officer of the Greens was vacant between November 1991 and December 1992. As no election was called during that period, and the registered officer was thus not called upon to perform his sole function under the Electoral Act, the vacancy of the position would be of no significance at all. Nothing now would turn upon it. The continuance of the proceedings would indeed be futile.
In the matter of re Bergen the applicant had applied for review of a decision of the SSAT affirming a decision to reject her claim for Disability Support Pension. Prior to the application for review coming on for hearing, a delegate set aside the earlier decision and decided to grant Disability Support Pension. The applicant indicated that she wished to proceed with her application for review because she was dissatisfied with the Department's reasons for granting her a Disability Support Pension, which she described as discrediting her good name and health. Senior Member Hallowes dismissed the application for review and in the course of her Reasons for Decision said at p 718:
"(7) In Re Hewett and Australian Postal Corporation AAT 9099; 29 October 1993,Deputy President Thompson noted that sub-section 62(1) of the Safety,Rehabilitation and Compensation Act 1988 provided that a determining authority may reconsider a determination of its own motion whether or not an application has been made to the Tribunal. Deputy President Thompson was satisfied that if that application had been heard and determined by the Tribunal any decision made by the Tribunal would not encompass more than had been encompassed by the new determination. He dismissed the application under sub-section 42B(1) of the AAT Act. Similarly, in this application, I am satisfied that, were this application to be heard by the Tribunal, any decision of the Tribunal could not encompass more than that which has been encompassed by the decision which is now, by virtue of sub-section 1284(2) of the Act, the decision before the Tribunal. Sub-section 43 of the AAT Act provides that the Tribunal shall make a decision in writing affirming, varying or setting aside the decision under review.
(8) The Tribunal makes a decision on the merits of the matter rather than reviewing the reasons given for the decision under review.8. It is for these reasons that the Tribunal decided that the application should be dismissed pursuant to section 42B of the Act. The applicant's attention was drawn to the provisions of the Freedom of Information Act 1982 with respect to the annotation of personal records.
In the present matter, the decision under review is such that any decision of the Tribunal could not encompass more than is encompassed by the new determination. It is not the role of this Tribunal, in the absence of a disputed decision, to provide a forum for an applicant to pursue allegations that Departmental officers have acted against his best interests. The Commonwealth Ombudsman has the responsibility of investigating such allegations, and the applicant may consider it appropriate to raise her concerns with that office.
I consider that this application for review has become frivolous or vexatious, and should be dismissed in accordance with section 42B(1)(a) of the AAT Act.
For these reasons I dismiss the application for review dated 26 August 1999.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of WJF Purcell, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 3 July 2000
Date of Decision 7 July 2000
Representative for Applicant Mr W Dudzinski
Advocate for the Respondent Mr P Kanowski, Departmental Advocate
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