Ettridge and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1950

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1950

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2517

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN ETTRIDGE

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date14 November 2007

PlaceAdelaide

Decision The Tribunal dismisses the application for review pursuant to s 42B of the Administrative Appeals Tribunal Act 1975.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

PRACTICE AND PROCEDURE – application for review of SSAT decision –applicant wholly successful before SSAT – Department applied to strike out review application as being frivolous and vexatious – review application brought for collateral purposes – issues raised in review application not within jurisdiction of this Tribunal – application manifestly groundless – application dismissed as being frivolous and vexatious

Administrative Appeals Tribunal Act 1975 ss 33, 42B

Attorney-General v Wentworth (1988) 14 NSWLR 481

REASONS FOR DECISION

14 November 2007   Senior Member L Hastwell

1.      John Ettridge (the applicant) is a recipient of Newstart Allowance.  In November 2006 he signed an activity agreement requiring him to make two job search contacts per fortnight.  In January 2007 Centrelink negotiated that he enter into a new activity agreement that required that he make ten job search contacts per fortnight.  He requested a review of this decision and an Authorised Review Officer concluded that no decision had been made under Social Security law and therefore there was no jurisdiction to conduct a review.

2.        The applicant sought review of that decision to the Social Security Appeals Tribunal (the SSAT).  On 30 May 2007 the SSAT set aside the decision under review and referred the case back to the Chief Executive Officer of Centrelink for reconsideration in accordance with a direction that the decision to increase the applicant’s job search contacts per fortnight from two to ten was a decision and could be reviewed by Centrelink.  His application for review to the SSAT was successful.

3.      There is a typing error in the decision of the SSAT whereby the words “ten” and “two” were reversed and so there was a reference to “job search contacts per fortnight from 10 to 2”.  Nevertheless it was clear from the context of the decision that this was a typing error and that the applicant's appeal had been successful.

4.      The applicant then lodged an application for review to this Tribunal on 14 June 2007 setting out the following reasons for application:

“Social Security Appeals Tribunal failed to order discovery as required by legislation which was required and as a result of not having the discovery wanted to send it back to Centrelink to make another decision, in so doing avoid legal scrutiny and delay justice.”

5. The respondent (the Department) has asked the Tribunal to dismiss the application for review on the basis that it is frivolous and vexatious and should be dismissed, pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act) or that it should be dismissed as an abuse of process pursuant to s 33 of the AAT Act.

6.      The interlocutory application to dismiss the application for review was heard initially on 21 August 2007.  It was evident at that hearing that the applicant took particular issue with the fact that the SSAT had declined to alter the reversal of numbers (supra paragraph 3) in their decision and he considered this to be a basis to come to this Tribunal.  The matter was adjourned to see if the SSAT would issue a correction to that aspect of their decision.  At that first hearing the applicant indicated that he would probably not proceed with his application for review if that correction was made

7.      The matter came back on before the Tribunal on 7 September 2007.  In the interim, the SSAT had corrected the typing error in their decision and despite that the applicant had lodged a document headed “Revised Summary of Argument 240807” which raised numerous further issues.  He told the Tribunal that he wished to continue with his application for review despite the correction in the SSAT decision.

8. In his revised summary of argument, the applicant requested that the presiding member disqualify herself and refrain from hearing this matter on the basis of perceived bias. This arose from the discussion at the earlier hearing with respect to s 42B of the AAT Act. The presiding member declined to disqualify herself. A discussion of legislation is part of a hearing and at no stage had there been any comments at the earlier hearing that could have been perceived as demonstrating bias against the applicant. The relevant section of the legislation was discussed and was brought to the attention of the applicant.

9.      In the revised summary of argument the applicant raised numerous complaints against Centrelink, including complaints of harassment and bullying.  He continued to complain about the reversal of numbers in the SSAT decision and about the time that it had taken him to have his complaint remedied.  He claimed that a request for discovery had been ignored by the SSAT and that he had been denied natural justice.

10.     The applicant did not appear to appreciate that such complaints were not within the jurisdiction of this Tribunal and this Tribunal must focus solely on the application for review, the applicable legislation and relevant legal principles.

discussion of the case and application of the law

11.     The applicant has been entirely successful in his application for review to the SSAT. 

12. Section 42B(1) of the Act provides:

“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.

…”

13.     The Department argues that the application for review in this instance is frivolous and/or vexatious.

14.     The concept of a frivolous and vexatious application has been considered on many occasions.  The Tribunal refers to Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 in which Roden J stated as follows:

“It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds.  I believe that the test may be expressed in the following terms:

1.        Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2.        They are vexatious if they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise.

3.        They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

…”

15.     This statement of principles has been widely affirmed since.

16.     It is the Tribunal’s view that the original application for review and the revised summary of argument raise issues that are not within the jurisdiction of this Tribunal.  The applicant’s complaints are with Centrelink.  He wants this Tribunal to assist him in that process.  He has complaints about the internal practice and procedures of Centrelink and the SSAT.  These are not matters for this Tribunal and are matters that fall within the jurisdiction of other departments.  In that regard the Tribunal notes that the applicant lodged a complaint in early 2007 with the Ombudsman with respect to his dealings with Centrelink. 

17.     It is the Tribunal’s view that the particular application for review before this Tribunal has been brought for collateral purposes.  There are no outstanding issues for the Tribunal to consider with respect to the decision of Centrelink about which the applicant complains.  He has been wholly successful in his application for review of that decision to the SSAT.

18.     The application for review falls within each of the categories outlined by Roden J in Wentworth.  There appears to be an element of the applicant wishing to make a nuisance of himself to the Department which in his mind has caused him problems.  The application is also brought for the purpose of inquiring into allegations of bullying and harassment at Departmental level.  The application for review is manifestly groundless in that the applicant has already succeeded in his argument before the SSAT.

19. In the circumstances, the Tribunal has no hesitation in dismissing the applicant's application for review lodged on 14 June 2007 on the basis that it is frivolous and vexatious within the meaning of s 42B of the AAT Act.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

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

Dates of Hearing        21 August 2007 & 7 September 2007
Date of Decision  14 November 2007
Representative for the Applicant    Self represented

Advocate for the Respondent        Mr Peter Edwards

Centrelink Legal Services Branch