KARAM and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 374

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 374

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5078

GENERAL ADMINISTRATIVE  DIVISION		)
Re		TANIA KARAM

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal M D Allen

Date29 April 2010

PlaceSydney

Decision Pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 this application for review is DISMISSED.

..................[sgd]...........................

M D Allen, Senior Member  

CATCHWORDS

SOCIAL SECURITY: Debt recovery by garnishee notice.  All monies refunded.  Proceedings frivolous and vexatious. Application for Review Dismissed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 subsections 42B(1), 43(2A)

Administrative Decisions (Judicial Review) Act 1977 section13

CASES

RE Williams and Australian Electoral Commission and Anor (1995) 38 ALD 366

REASONS FOR DECISION

19 May 2010 M D Allen               

1. By Direction dated 29 April 2010, I dismissed this matter pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 (“AAT”), on the grounds that it was frivolous and vexatious.

2. The Applicant has requested that I give written reasons for my decision. Section 43 of the AAT Act states inter alia:

(1)     For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)   affirming the decision under review;

(b)   varying the decision under review; or

(c)    setting aside the decision under review and:

(i)making a decision in substitution for the decision so set aside; or

(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

(2)     Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

(2A)   Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement.

3. As in this matter the Tribunal did not proceed to a review of the decision regarding which the Application for review was made, I do not regard myself as being required by subsection 43(2A) AAT Act to furnish reasons for my decision. I have, however, treated the Applicant’s request for reasons as being pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977.

4.      By Application made on 29 October 2008, the Applicant sought review of a decision of the Social Security Appeals Tribunal that affirmed a prior decision of Centrelink to recover part of a debt owed by the Applicant to Centrelink by a garnishee notice served on Westpac Banking Corporation.

5. The matter was listed before me on 29 April 2010 for a Directions Hearing following the failure of the Applicant to comply with a direction given by a Senior Member of the AAT on 24 March 2010.

6.      Prior to the hearing of that Direction Hearing, the Tribunal received a letter from Centrelink Legal Services, which letter read inter alia:

“Westpac complied with the notice, in part, by paying to Centrelink an amount of $20,811.79 on 11 October 2006.  Between 5 and 13 October 2006, after reconsideration of the original decision, $10,726.60 were refunded to Ms Berberian.  Ms Berberian sought the return of her remaining funds of $10,084.19.

I wish to advise that, upon consideration of the original decision, and taking into account the terms of s1233, the Respondent has formed the view that the garnishee notice could be seen as being technically defective.  As a consequence, the Respondent has changed the decision under review and substituted a new decision that the garnishee notice was to be revoked and the money refunded to Ms Berberian.  Thus, on 5 May 2009 an amount of $10,084.19 was paid to Ms Berberian.  I enclose a letter sent to Ms Berberian on 1 May 2009 advising the amended decision.

The Respondent therefore advises, in accordance with s180 of the Social Security (Administration) Act 1999 the decision under review has been set aside and substituted with a new decision to the effect, that the money obtained under the garnishee notice was refunded to the Applicant. Thus the decision under review is the decision made on or about 1 May 2009 to refund the remaining funds to Ms Berberian.”

7.      The Ms Berberian referred to in the letter from Centrelink is one and the same person as the Applicant.

8.      At the Direction Hearing on 29 April 2010 I informed Counsel appearing for the Applicant that as all monies seized had now been refunded to the Applicant, there was no decision which could be made by the Tribunal that could afford any relief to the Applicant and for that reason the proceedings had become frivolous and vexatious.  See Re Williams and Australian Electoral Commission and Anor (1995) 38 ALD 366 at 374 paragraph 39.

9. Counsel for the Applicant raised the question of costs. It is trite law that the AAT in its social security jurisdiction has no power to award costs.

10.     I was informed from the Bar table that an Application for Costs made against the Scheme for Compensation for Detriment Caused by Defective Administration had been refused.  That is not a matter that is within the purview of this Tribunal.  The Applicant is of course quite entitled to raise the question of her costs with the Ombudsman.

11. Pursuant to s42B(1) of the AAT Act, this Application for Review is DISMISSED.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member.

Signed:         .....................[sgd]...................................
  K. Lynch, Associate

Date of Direction Hearing  29 April 2010
Date of Decision  29 April 2010
Date of Written Reasons  19 May 2010
Counsel for the Applicant  D Bresniak 
Representative for the Respondent          Centrelink Legal Services