Ford and Anor and Secretary, Department of Family and Community Services

[2005] AATA 42

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 42

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Q2004/238, 239  

GENERAL ADMINISTRATIVE  DIVISION		)
Re		FRANCES FORD and GARY DUNN

Applicants

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President Don Muller

Date14 January 2005

PlaceBrisbane

Decision

WHEREAS: 
1.  These applications for review were set for hearing at 10.00am on Thursday 9 December 2004, at Atherton Court House;  and
2.  Both Frances Ford and Gary Dunn appeared at the appointed time and place but refused to proceed with their applications;

THE TRIBUNAL dismisses these applications without proceeding to review the decisions to which they relate, pursuant to the provisions of section 42A(5)(a) of the Administrative Appeals Tribunal Act 1975.

................SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

PRACTICE AND PROCEDURE – applicants refusing to proceed with their applications – applications dismissed

Administrative Appeals Tribunal Act 1975: s42A(5)(a)

REASONS FOR DECISION

Deputy President Don Muller        

1.      Frances Ford and Gary Dunn, the Applicants sought review by the AAT of decisions to raise and recover overpayments of rent assistance in the respective sums of $3,710.98 in the case of Ms. Ford and $12,301.51 in the case of Mr. Dunn.

Background

2.      The material placed before the Social Security Appeals Tribunal reveals the following history:

(a)Since mid-1996 Frances Ford and Gary Dunn have occupied a property described as Lot 4 on CO884804 at Wyndham Creek, Mt. Garnet.

(b)The title to the land is registered in the name of Roslyn Haydon.

(c)There is a dispute between Ms. Ford and Ms. Haydon as to the ownership of the land.  Ms. Ford claims that Ms. Haydon merely holds the title in trust for the benefit of Ms. Ford’s son, Frank Ford.

(d)Gary Dunn has an account at McDonald’s Hardware Store, Mt. Garnet, into which Ms. Ford and Mr. Dunn have been paying as much as $250 per fortnight.  They draw supplies and materials from the store.  Sometimes their account is in credit, sometimes it is in debit, depending on what they purchase from time to time.

(e)Ms. Ford and Mr. Dunn have been receiving rent assistance as part of their newstart allowance.

(f)They have not been paying rent to anyone.

(g)The payment of $240 per fortnight to McDonald’s Hardware does not constitute “rent” under the Social Security Act 1991.

(h)Since 1 June 1996, Ms. Ford has been paid rent assistance totalling $3,710.98 to which she was not entitled.  This constitutes a debt to the Commonwealth which she will have to repay.

(i)Since 1 June 1996, Mr. Dunn has been paid rent assistance totalling $12,301.51 to which he was not entitled.  This constitutes a debt to the Commonwealth which he will have to repay.

The Hearing

3.      The hearing was originally scheduled for 9.00am on Friday 10 December 2004, at Cairns Court House.

4.      About three weeks prior to 10 December 2004, a staff member of the AAT spoke to Ms. Ford and Mr. Dunn by telephone and ascertained from them that the Atherton Court House would be a more suitable venue because it was closer than Cairns to where they lived at Mt. Garnet.

5.      The hearing was re-scheduled for 10.00am on Thursday 9 December 2004, at Atherton Court House.

6.      At approximately 10.00am on 9 December 2004, I entered the courtroom at the Atherton Court House.  As I entered, I noticed a tall, well-built man standing at the bar table with his back to the bench (Mr. Dunn).  Mr. Dunn was shouting and gesticulating towards three elderly people (two women and a man) who were seated in the public gallery.  My personal assistant, Ms. Hitchcock, said, “This is a hearing in the matter of Frances Ford and Gary Dunn and the Secretary, Department of Family and Community Service”.  Mr. Dunn said, “No it’s not.  There are people here in the court room – we are not staying – we were told that this would be heard in private.”.

7.      I said to Mr. Dunn, “Well these matters are open to the public.  Do you want to apply to have the matter heard in private?”  He said, “No, I’m going.”  He then left the room through a side door.

8.      Ms. Ford remained at the bar table and said that there were substantial reasons for her wanting to have her matter heard in private.

9.      I asked the three people who were in the public gallery to leave the room.  They left the room and sat on a bench outside.

10.     Ms. Ford appeared to be about to make submissions about the hearing being conducted in private when Mr. Dunn re-entered the room through the side door.  He said to Ms. Ford, “Come on, we’re going.”

11.     Mr. Dunn then embarked on a speech to the effect that he had been promised a closed hearing and that the people who had been in the gallery created a security risk.  Mr. Dunn and Ms. Ford then went and stood in the doorway.

12.     I told Mr. Dunn and Ms. Ford that no clerical assistant had the power to promise them a closed hearing.

13.     Mr. Dunn then came back inside and said that he was “taking the whole thing to the media”, that he was intending to sue.  He also said other things about lies being told, all of which made no sense to me.

14.     He then moved back to the doorway and stood there with Ms. Ford.  I said to Mr. Dunn and Ms. Ford, “Do you want a hearing or don’t you?”  Mr. Dunn said, “No, I don’t”.  I do not know if Ms. Ford replied or not.

15.     I then asked Mr. Dunn to leave the room.  I told him I would dismiss his case.

16.     He started to say something about seeing his local member and having his case heard in a proper court.  I ordered Mr. Dunn to leave the room.  Mr. Dunn and Ms. Ford then left the room and did not come back.

17.     I ascertained from Ms. Hamilton, representative of the Respondent, that one of the persons in the public gallery was Ms. Haydon, the registered owner of the land, who had attended in answer to a subpoena initiated by the Respondent.  The other two were friends of Ms. Haydon.  Any suggestion that they posed a security risk was ludicrous.

18. I have dismissed the applications of both Mr. Dunn and Ms. Ford pursuant to section 42A(5)(a) of the Administrative Appeals Tribunal Act 1975, which provides:

“42A.(5)  If an applicant for a review of a decision fails within a reasonable time:

(a)       to proceed with the application;

(b)       ….

A presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision.”

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
B. Hitchcock, Personal Asst

Date/s of Hearing  9 December 2004          
Date of Decision  14 January 2005
Applicants   Ms. Ford and Ms. Dunn
Respondent   Ms. J. Hamilton, departmental advocate