Kavanagh and Secretary, Department of Families, Housing, Community Services, and Indigenous Affairs
[2008] AATA 474
•20 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 474
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5617
GENERAL ADMINISTRATIVE DIVISION ) Re DANNY KAVANAGH Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES, AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal
Mr D Connolly AM Member
Date20 March 2008
PlaceSydney
Decision The Tribunal is satisfied that the application for review of the decision is vexatious.
The Tribunal, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act1975:
1. Dismisses the application; and
2. Directs that the Applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal of the following kind:
a. Seek review of the decision by Centrelink to waive all debts for the period 5 May 2000 to 10 April 2007.
...........................................
Mr D Connolly AM Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – Irish pension – debt raised – debt waived – decision of the Tribunal that application for review is vexatious – application dismissed.
Administrative Appeals Tribunal Act 1975 – section 42B
Re Reddish and Civil Aviation Safety Authority (1999) AATA 721
Attorney-General v Wentworth (1998) 14 NSWLR 481
REASONS FOR DECISION
20 March 2008 Mr D Connolly AM, Member 1. In a directions hearing by telephone on 20 March 2008, the Administrative Appeals Tribunal (the Tribunal) made an oral decision that the application by Mr Kavanagh (the Applicant) be dismissed, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 (the Act), on the grounds that the application was vexatious.
2. In a letter dated 15 April 2008 the Applicant requested that written reasons for the decision be provided. Those reasons for the Tribunal’s decision are set out below. Annexed to these reasons are the Respondent’s submissions for dismissal, dated 18 March 2008 (Annexure A), and the transcript of the directions hearing recorded by Telstra Phone Conferencing and transcribed by Auscript Australasia (Annexure B).
3. The matter involved a debt of $883.33, raised against Mr Kavanagh by the Department of Families, Housing, Community Services and Indigenous Affairs, for the period 5 May 2000 to 10 April 2007. As a result of a series of determinations by the Department (discussed below) the status of that debt as at 20 March 2008 was, in practical terms, that Mr Kavanagh no longer owed a debt to the Department.
Background
4. The background to the Tribunal’s decision, as submitted by the Department and agreed to by the Applicant, is outlined below.
5. On 15 July 2007 Centrelink advised Mr Kavanagh that as a result of increases in his Irish Pension he had been overpaid disability support pension by $883.33 for the period 5 May 2000 to 10 April 2007. On 17 July 2007 an authorised review officer (ARO) affirmed that Mr Kavanagh had been overpaid disability support pension, but decided to waive $466.75 of the debt. Thus, Mr Kavanagh’s debt was reduced to $416.58.
6. Mr Kavanagh appealed the ARO’s determination to the Social Security Appeals Tribunal (SSAT). On 18 September 2007 the SSAT affirmed the ARO determination dated 17 July 2007.
7. On 23 October 2007, in response to a suggestion made in the decision of the SSAT - which had been adopted by Mr Kavanagh - the decisions relevant to Mr Kavanagh were again reviewed by an ARO. In that internal review the debt owed was recalculated to properly consider Mr Kavanagh’s actual business income for the period 5 May 2000 to 10 April 2007. The ARO decided that the correct calculation of the debt was $38.58. Pursuant to section 1236(1A) of the Social Security Act 1991 that debt was written off as it was “not cost effective … to recover the debt”.
The application to the Administrative Appeals Tribunal
8. Mr Kavanagh made an application to the Tribunal on 20 November 2007. In his application for review of decision, he noted that “[t]he SSAT affirmed a decision by a Centrelink review officer, that because I failed to inform Centrelink of increases to a foreign pension I had been overpaid.”
9. In a directions hearing on 20 March 2008, Mr Kavanagh submitted that the remedy he sought was that the Tribunal provide him with the opportunity to demonstrate that it was the Department (and not Mr Kavanagh) who was at fault in incorrectly assessing his pension entitlement (and thus the debt raised) in light of the fact that he had also been in receipt of an Irish pension. Mr Kavanagh contended that he had correctly advised the Department of the amount of pension when requested.
10. The Department submitted that as there was no longer, in practical terms, a debt owed by Mr Kavanagh, there was nothing for the AAT to decide in the matter and that therefore the matter should be dismissed pursuant to section 42B(1) of the Act.
11. The grounds for the dismissal pursuant to section 42B(1) of the Act were more fully set out in the Respondent’s written submissions, as:
(i) Applicant’s case is devoid of merit;
(ii) No prospects of success;
(iii) There is no debt to be recovered from the applicant and therefore, no sensible practical purpose in pursuing this application for review;
(iv) The prejudice to the respondent is considerable and proceeding with this application for review would be an unnecesary burden on the resources of the Commonwealth and the Tribunal.
12. In the directions hearing Mr Kavanagh acknowledged that there is now no debt to be paid, however he stated:
[Centrelink] refunded the money but as far as the Department is concerned I’m still at fault. They have never accepted liability for anything that’s gone wrong, for all the screw ups… I am still the one at fault as far as the Department is concerned
And later:
I just want Centrelink to acknowledge that it was their screw up and not mine.
13. In response to these concerns, the Respondent’s representative stated:
Centrelink is not arguing that [Mr Kavanagh] is at fault. … [that] the authorised review officer … decided in the end that there [is] no debt would suggest that Mr Kavanagh wasn’t at fault…
Consideration
14. Section 42B(1) of the Act, relevantly states:
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.
15. The term “vexatious” was considered in Attorney-General v Wentworth (1998) 14 NSWLR 481. That case stated, at 491, proceedings would be vexatious, if:
…they are brought for collateral purposes, and not for the purposes of having the Court adjudicate on the issues to which they give arise;
…irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
16. The Respondent submitted that “taking this matter to hearing will not result in the positive outcome that the applicant is seeking… the Applicant’s application could be argued as being utterly hopeless in light of the latest Centrelink decision to find that there was no recoverable debt owed by the applicant”. With respect to the application for review of the 18 September 2007 SSAT decision and in light of the 23 October 2007 ARO determination, I agree.
17. In the matter of Re Reddish and Civil Aviation Safety Authority (1999) AATA 721 it was held that an application may be dismissed as “frivolous” if the Tribunal is unable to make a decision that would be of any practical benefit. To the Applicant. The respondent contended, and I agree, that this is a case where a hearing could not result in any practical benefit to the Applicant.
18. Finally, the Tribunal does not have jurisdiction to review the decision to reduce the debt owed by Mr Kavanagh and to waive the outstanding $38.58 made by the ARO on 23 October 2007 because that decision has not been reviewed by the SSAT.
Decision
19. For the reasons given above the Tribunal is satisfied that the application for review of the decision is vexatious.
20. The Tribunal, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act1975:
1.Dismisses the application; and
2.Directs that the Applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal of the following kind:
a.Seek review of the decision by Centrelink to waive all debts for the period 5 May 2000 to 10 April 2007.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D Connolly AM, Member
Signed:..........................[sgd]....................................................
AssociateDate of Hearing 20 March 2008
Date of Decision 20 March 2008
Date of written reasons: 6 June 2008
Appearance for the Applicant Self-represented
Appearance for the Respondent Mr George Lozynsky
Annexure A
IN THE ADMINISTRATIVE APPEALS TRIBUNAL 2007/5617
SYDNEY REGISTRY
B E T W E E N:
Daniel Kavanagh
(Applicant)
-and-
Secretary, Department of
Families, Housing, Community
Services & Indigenous Affairs
(Respondent)
REQUEST FOR DISMISSAL OF APPLICANT’S APPLICATION FOR REVIEW- RESPONDENT'S SUBMISSION
These submissions are made in relation to the applicant’s application for review to appeal a decision of the Social Security Appeals Tribunal (SSAT).
Brief History
13 August 1992 - Mr Kavanagh was granted disability support pension.
25 June 1996 - Centrelink was advised that Mr Kavanagh had been granted an Irish pension with effect from 25 August 1994.
8 May 2006- Centrelink notified Mr Kavanagh that his Irish pension was being reviewed and details were sought from him in order to undertake a data match. Subsequently, information was provided by Mr Kavanagh.
14 March 2007 - Centrelink requested Mr Kavanagh provide his Irish pension statement.
13 June 2007 - Centrelink discovered that Mr Kavanagh’s Irish pension had increased over the years with such increases not being assessed by Centrelink over this period.
15 July 2007 - Centrelink advised Mr Kavanagh that he had been overpaid disability support pension as his Irish pension had not been properly assessed. It had been calculated that he had been overpaid $883.33 covering the period 5 May 2000 to 10 April 2007. Mr Kavanagh sought a review of this decision.
17 July 2007 - The authorised review officer agreed that Mr Kavanagh had been overpaid disability support pension in the amount of $883.33 but decided to waive $466.75 of the debt leaving an amount of $416.58 to be repaid by Mr Kavanagh.
3 August 2007 - Mr Kavanagh appealed to the Social Security Appeals Tribunal (SSAT).
18 September 2007 - The SSAT affirmed the decision under review.
23 October 2007 - Another authorised review officer reviewed Mr Kavanagh’s DSP rate paid as a result of decisions dated 21 January 1999 and 15 April 1999 and the amount of debt covering the period 5 May 2000 to 10 April 2007. She decided that arrears were only payable in respect of the decision dated 21 January 1999 however, there was no recoverable debt in respect of the debt period.
20 November 2007 - Mr Kavanagh appealed to the Administrative Appeals Tribunal (AAT).
Submissions In Relation To This Case
1. In determining whether an application for review should be dismissed on the grounds of ‘frivolous or vexatious’, the legislation relevant to this application is contained in the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) which provides:
s.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.There are a number of reasons that the AAT may consider in deciding to have the applicant’s application dismissed under section 42B(1) of the AAT Act. In this case, these reasons include the following:
(i) Applicant’s case is devoid of merit;
(ii) No prospects of success;
(iii) There is no debt to be recovered from the applicant and therefore, no sensible practical purpose in pursuing this application for review;
(iv) The prejudice to the respondent is considerable and proceeding with this application for review would be an unnecesary burden on the resources of the Commonwealth and the Tribunal.
3.In Attorney-General (Vic) v Wentworth (1998) 14 NSW LR 481 at 491, Roden J expressed the test for vexatiousness in the following terms:
(i) Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought;
(ii) They are vexatious if they are brought for collateral purposes, and not for the purposes of having the Court adjudicate on the issues to which they give arise;
(iii) They are also... vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
4. That test was applied with approval by Matthews J (PRES), Hill and Beaumont JJ in Re Wiliams and Australian Electoral Commission (1995 )38 ALD366.
5.An application may be dismissed as frivolous if the Tribunal is unable to make a decision that would be of any practicable benefit as held in Re Reddish and Civil Aviation Safety Authority (1999) AATA 721 at [33}. The respondent contends that this is the case here.
6.On 23 October 2007, an authorised review officer had reviewed the disability support pension debt for the period 5 May 2000 to 10 April 2007 and decided that there was no recoverable debt. The respondent submits that by taking this matter to hearing will not result in the positive outcome that the applicant is seeking. Instead, the applicant’s application could be argued as being utterly hopeless in light of the latest Centrelink decision to find that there was no recoverable debt owed by the applicant.
7.In the event that the applicant wishes to seek a review of the authorised review officer’s decision of 23 October 2007 with regard to arrears of disability support pension in respect of the decision made on 15 April 1999, the tribunal would not have jurisdiction to review the officer’s decision. The reason being that it has not been reviewed by the Social Security Appeals Tribunal.
Conclusion
8 In summary, there is little to be achieved by allowing the applicant’s application for review to proceed to a substantive hearing. The prejudice to the respondent is considerable and proceeding with this matter would be an unnecesary burden on the resources of the Commonwealth and the Tribunal. Furthermore, it would be unfair and unjust to the applicant to be allowed to pursue an application and create an expectation of possible success where that application has no prospects of success. The respondent submits that the application should be dismissed under section 42B(1) of the AAT Act.
George Lozynsky
for the Respondent18 March 2008
Annexure B
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
Level 10, MLC Court, 15 Adelaide St BRISBANE QLD 4000
PO Box 13038 George St Post Shop BRISBANE QLD 4003
Tel:1300 308 420 Fax:(07) 3503-1199
Email: [email protected] Website:TRANSCRIPT OF PROCEEDINGS
O/N 81496
ADMINISTRATIVE
APPEALS TRIBUNALMR D.M. CONNOLLY, Member
S2007/5617
KAVANAGH
and
SECRETARY, DEPARTMENT OF FAMILY, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
SYDNEY
THURSDAY, 20 MARCH 2008
MR KAVANAGH appears in person
MR G. LOZYNSKY appears for the respondent
MR CONNOLLY: Good morning, Mr Kavanagh.
MR KAVANAGH: Good morning.
MR CONNOLLY: And Mr Lozynsky.
MR LOZYNSKY: Good morning.
MR CONNOLLY: Good morning. Mr Kavanagh, I’ve had a few problems getting your material today. In fact I haven’t got it because I’m not in Sydney and arrived too late just to get it copied but that shouldn’t restrain us from at least having a full discussion on this issue and then we’ll decide where we go from there. So ‑ ‑ ‑
MR KAVANAGH: Well, I was sent some stuff too; I didn’t get it by mail.
MR CONNOLLY: Yes, so I gather, yes, which is unfortunate.
MR KAVANAGH: My email is down this morning ‑ ‑ ‑
MR CONNOLLY: At the very worst we’ll have to adjourn to May because I will be going overseas next week.
MR KAVANAGH: Yes.
MR CONNOLLY: But we’ll see where we go today. Would you just like to tell me what the problem is as you see it now in view of the fact that the department has refunded your money?
MR KAVANAGH: They’ve refunded the money but as far as the department is concerned I am still at fault. They have never accepted liability for anything that’s gone wrong, for all the screw ups; they’ve never acknowledged that they’ve done anything wrong. I am still the one at fault as far as the department is concerned.
MR CONNOLLY: That’s the essence of your complaint, is it?
MR KAVANAGH: That’s the essence of it.
MR CONNOLLY: That’s very short and sharp. Thank you very much. We’ll ask Mr Lozynsky now to respond.
MR LOZYNSKY: Well, Mr Connolly, I guess I’ve outlined the department’s case in our brief submission to the tribunal. It’s basically the situation that what Mr Kavanagh is requesting of this tribunal cannot be achieved by proceeding with this application for review. The matter has already been resolved, that the debt that Mr Kavanagh was contesting which was previously $883.33 which was later reduced to $416.58 and then eventually it was reviewed again by another authorised review officer and that amount was in the end reduced to a figure of only $38.58.
For reasons being not cost effective in terms of recovering this amount the department has basically waived that amount so in effect we’ve got no debt. Mr Kavanagh owes no debt. The amount has been fully refunded and therefore there’s really no outstanding issue before this tribunal and I guess this tribunal cannot – well cannot rule on anything because there’s basically nothing to be decided and the fact that Mr Kavanagh is arguing that Centrelink believes he’s at fault; now, I don’t know where he sees this. Generally if someone – if for example the department has made a decision a person has a right of appeal and this is what Mr Kavanagh has sought in this case.Centrelink is not arguing that he is at fault. I guess the reason why the authorised review officer has decided in the end that there was no debt would suggest that Mr Kavanagh wasn’t at fault in the end but really I don’t see anything that can be achieved by proceeding to a hearing when there is nothing to be decided by this tribunal.
MR CONNOLLY: Yes.
MR LOZYNSKY: That’s the reason why the department has requested for this directions hearing in order to have the matter dismissed because there’s simply nothing to be argued and nothing to be decided by this tribunal.
MR CONNOLLY: Before I ‑ ‑ ‑
MR KAVANAGH: Could I respond to what George has just said there?
MR CONNOLLY: Yes, yes, yes.
MR KAVANAGH: Now they’re saying it has not been cost effective to recover the money; that’s just crap. They could have just stopped it out of my pension if they thought that that $38.58 cents was owed. It would’ve been cost effective, it would’ve been simply. They just stop it, that’s it and they stop it from the money they – the allowance they paid me, from the money they owed me. That wasn’t the case. Now, this amount of $38.58; earlier Christine Ball waived all of the debt from 2004 to 2007. When she did the other review, the next review, the last review she found another debt and waived it again. I don’t know whether she reinstated the debt to waive it the second time but what she waived, the $38.58 ‑ ‑ ‑
MR CONNOLLY: It’s the $38 she waived?
MR KAVANAGH: Yes, what was it? As far as I was concerned she waived that in the first place.
MR LOZYNSKY: Well this all relates to the same debt between 5 May 2000 to 10 April 2007, Mr Kavanagh so I don’t know exactly what you’re contesting here. It’s the same debt that was reviewed by another authorised review officer. This time they took into account your business income and decided that the original decision to raise and recover a debt of $883.33 wasn’t correct and therefore they’ve made a decision in your favour so I don’t know what you are disagreeing with. You have been repaid the full amount. You know, as you see at page 26 of the T documents an arrears payment of $560.40 was made to you and, you know ‑ ‑ ‑
MR KAVANAGH: But what was waived on the second time, George, did she waive it twice or did she reinstate the first debt?
MR LOZYNSKY: Sorry?
MR KAVANAGH: Did she reinstate the first debt again after she waived it?
MR LOZYNSKY: I don’t know ‑ ‑ ‑
MR KAVANAGH: Waived the second amount.
MR LOZYNSKY: Mr Kavanagh, there’s no debt. If you look at your record at page 27 of the T documents, there’s no debt.
MR KAVANAGH: Oh there is a debt, yes.
MR LOZYNSKY: There’s no debt, for this period in question. Now, I don’t know what other debt you’re bringing up now. If that’s another debt you’re questioning then that’s not before this tribunal.
MR KAVANAGH: The debt has been waived.
MR LOZYNSKY: Well, the debt has been waived, that’s right and there’s no debt before this tribunal so that’s my point.
MR KAVANAGH: The amount of the debt is $38.58.
MR LOZYNSKY: That debt no longer exists, Mr Kavanagh.
MR KAVANAGH: No, ..... of the debt, the debt has been waived.
MR LOZYNSKY: It has been waived and there’s no debt.
MR KAVANAGH: As far as Centrelink is concerned I am still at fault; Now, she waived that debt twice. She is trying to ‑ ‑ ‑
MR LOZYNSKY: I don’t know, Mr Kavanagh, I don’t ‑ ‑ ‑
MR KAVANAGH: Use one screw up to cover for another.
MR LOZYNSKY: Well, look, all I can say is that the department is not arguing that you are at fault. We just say that you have been over paid and you would understand that initially it was raised on the fact that you hadn’t declared your Irish pension correctly. Now, the department has taken into account your concerns about your business income and made a favourable decision and that is, there is no debt and let me repeat, no debt for the period between 5 May 2000 and 10 April 2007. That is it.
MR KAVANAGH: To begin with, George, I did declare the Irish pension. Now the Centrelink didn’t record it, that’s up to them. They screwed up everything else so it’s not surprising that they screwed that up too. Now, on 22 July 1996, this is on page 19 of the T documents, they accepted – I was granted the invalidity pension in Ireland of £13.9 backdated to 25.8.94. It increased to £14.20 from 15.6.95 and increased again to £14.60 on 13.6.96. Now, they got that information from me and they got information from me right along up til 2007 but when I got my stuff from Centrelink, the stuff from the files there’s a great lump of stuff missing. All the documents from October 2001 to 5 April 2006 is missing; it’s just gone. Centrelink can’t explain where it’s gone to. They didn’t want to admit that it’s actually missing and then the stuff I sent down I did get finally get like an acknowledgement from them in writing that their stuff can’t be found; they’ve lost it.
MR LOZYNSKY: Well let me just say that we have set administrative procedures in place where if for example you say you did lodge documents and those documents would be stored for a certain period of time and then destroyed but ‑ ‑ ‑
MR KAVANAGH: No, hold on a minute, hold on a minute.
MR LOZYNSKY: Let me just ‑ ‑ ‑
MR KAVANAGH: Yeah.
MR LOZYNSKY: Now, let me just say that you stated to the tribunal and I say this at page 5 of the T documents that you clearly acknowledged that you weren’t aware of the fact that you were required to tell Centrelink of any changes to income ‑ ‑ ‑
MR KAVANAGH: Hold on there, George, let me get to page 5.
MR LOZYNSKY: So, you know, when you say you notified Centrelink at all times then I would have to question whether that was – that was the case or not because you said to the SSAT that that wasn’t the situation. So, you know, but bearing – if we take that aside; the fact is that, Mr Kavanagh, I don’t know what you want to achieve with this application for review. There’s nothing to be achieved and if you want to argue that Centrelink is treating you like some sort of criminal or that you know – let me say that we’re not. We’ve gone out of our way to reconsider our position and found in your favour.
MR KAVANAGH: Oh whoopee do, George, whoopee do.
MR LOZYNSKY: And, you know, I just don’t see any – any reason why this matter should proceed any further.
MR KAVANAGH: You haven’t gone out of your way, George.
MR LOZYNSKY: Pardon?
MR KAVANAGH: I didn’t – I haven’t offered any new evidence to Centrelink. I just pointed them in the direction of the stuff they already had. They screwed up.
MR LOZYNSKY: Well, you know, that ‑ ‑ ‑
MR KAVANAGH: And they’re trying to put it on me. Now, in the documents that’s missing from between October 2001 and April 2005 or 2006 rather there’s an income and asset review in 2002, another one in 2004. Now they’re gone missing, vanished off the face of the earth and Centrelink are assuming that I either didn’t tell them or something. I don’t know what they’re assuming. Are they assuming that I told lies in those documents? I set a search in motion last year with Centrelink to try and find them through the Freedom of Information and they’re just not available.
Now, everything has gone from 24 October 2001 to 5 April 2006 and on the basis of no documents Centrelink are saying it’s my fault, that I didn’t tell them. That is still Centrelink’s position, that I did not inform them. Well, I can tell you I did inform them. I know damned well I did and if they’ve lost the documents that’s up to them but I believe those documents are out there somewhere. I don’t believe there’s any great conspiracy by Centrelink, I think it’s just a screw up.
MR CONNOLLY: Can I just interrupt here, Mr Kavanagh. Rather than get ourselves mixed up into arguments about what documents have been lost and what not has so forth, the reality is that at the very worst you’ve been given the benefit of any doubt which may exist and so forth and I have no evidence that Centrelink has any doubt. They’ve given you the benefit of that and they’re saying there’s no debt to be paid.
MR KAVANAGH: There’s no debt to be paid but I’m still at fault according to Centrelink; that I still owe that $38.58.
MR CONNOLLY: But no, you’ve just been told that you don’t owe that amount.
MR KAVANAGH: It has been waived.
MR CONNOLLY: It has been waived.
MR KAVANAGH: And which waiver was that, the first one or the second one when it was waived to begin with?
MR CONNOLLY: Well I assume and Mr Lozynsky will clarify this, is it correct that prior to the waiver of the last amount in an accounting sense that there still was a small debt?
MR LOZYNSKY: From my understanding, yes, there was and prior to that, the latest calculation by the authorised review officer, the amount that the department believes was – well was – which represented an over payment was $41.6.58 so I’m assuming the department maybe recovered part of that amount and therefore when the authorised review officer reconsidered this case on 23 October 2007 they decided to make an arrears payment so of $560.40 so basically the entire debt hadn’t been recovered; a part of it had been and in the process the department decided well in light of the information about the business income an arrears payment of $560.40 was payable but this $38 ‑ ‑ ‑
MR CONNOLLY: How much is that amount again?
MR KAVANAGH: Pardon?
MR CONNOLLY: How much do you say?
MR LOZYNSKY: An arrears payment of $560.40 was payable.
MR CONNOLLY: 550?
MR LOZYNSKY: 560.
MR CONNOLLY: $560.
MR LOZYNSKY: And 40 cents. That is at page 26, Mr Connolly.
MR CONNOLLY: T docs?
MR LOZYNSKY: Of the T documents. It just sets out exactly what the authorised review officer had decided. So there’s no – like even though the debt was recalculated and the outstanding amount was $38.58 in the end the department said, well we’re not going to recover that, that’s the end of the matter so – and for administrative purposes it was simply waived or written off, that’s it so we weren’t going to recover that small amount from Mr Kavanagh.
MR CONNOLLY: That’s $38.58.
MR LOZYNSKY: That’s right.
MR KAVANAGH: The department could have recovered that with no trouble, not a problem, they could have just taken that out of the amount they refunded me so that is crap. Now, if the tax office say to Jimmy Paddy you owe us $400 million but we’re not going to take it off you would Jimmy accept that?
MR CONNOLLY: Good, well is that all you wanted to say, Mr Kavanagh?
MR KAVANAGH: No, I just want Centrelink to acknowledge that it was their screw up and not mine. I did tell them about the Irish pension.
MR CONNOLLY: Yes, now tell me ‑ ‑ ‑
MR KAVANAGH: And there’s one other thing here, with all this calculation. During the period that the debt covered from May 2000 to April 2007 Centrelink under paid me about $1260. Now they weren’t so generous in giving that back to me. George said that they’ve bent over backwards to help me. Like hell they have. They’re still holding that money.
MR CONNOLLY: Do you want to comment on that, Mr Lozynsky?
MR LOZYNSKY: Well I must say that Mr Kavanagh is just complicating this matter by bringing different issues and different matters which I’m not even aware of.
MR CONNOLLY: I accept that.
MR KAVANAGH: It was in the documentation I sent down there.
MR CONNOLLY: Mr Kavanagh, Mr Kavanagh, you’ve got to stick to the grounds upon which you made this initial appeal to the AAT. You have not made an omnibus appeal, your appeal was quite specific.
MR KAVANAGH: That’s right, yes.
MR CONNOLLY: So don’t bring in all other issues. If you want to do that separately with the department well that’s up to you.
MR KAVANAGH: Well if George doesn’t want to bring up any issues about Centrelink’s generosity I will leave that out because Centrelink has not been generous and I don’t believe they’ve been particularly nasty. It’s just the law or the law as they were told to apply it and it wasn’t very nice to their victims.
MR CONNOLLY: Now tell me, Mr Lozynsky, have you actually written a sort of comprehensive letter to Mr Kavanagh explaining this whole sequence?
MR LOZYNSKY: In terms of what, the new decision that was made by ‑ ‑ ‑
MR CONNOLLY: Yes, yes.
MR LOZYNSKY: Well he was notified by the authorised review officer. That’s the – when he lodged his appeal I don’t think I was aware of – well, maybe at the time when he lodged it we weren’t aware until we prepared the T documents but everything was explained to him in that letter which I’ve included in the T documents, So there was just no reason why I was required to provide him with another letter; the authorised review officer had sent him a letter and setting out exactly what was decided, how she had recalculated the debt, taken into account particular findings of fact and in the end the reasons for her decision. So that was clearly self explanatory.
I don’t see why the department should be – or in this case legal services branch should be preparing another letter. It’s not our decision. The decision has been made by the authorised review officer. If he is questioning that decision then he needs to go to the SSAT which he hasn’t done and that matter is not before this tribunal.
MR CONNOLLY; That’s right.
MR KAVANAGH: If you look at page 27 of the T documents, it says total for this debt is $38.58. Now as to arrangements, they’re not going to take it. The debt is still there.
MR LOZYNSKY: And do you notice what the balance outstanding is, Mr Kavanagh?
MR KAVANAGH: The balance outstanding is zero; they’re not going to take it but the debt is still there.
MR LOZYNSKY: I think, Mr Kavanagh ‑ ‑ ‑
MR KAVANAGH: Centrelink have not acknowledged that they screwed up and they have.
MR LOZYNSKY: Mr Kavanagh, you’re just going round in circles. There’s no debt.
MR CONNOLLY: Yes.
MR LOZYNSKY: And I’m repeating it; there is no debt to be recovered from you.
MR KAVANAGH: The debt is not the issue here, George.
MR LOZYNSKY: Well the issue before this tribunal ‑ ‑ ‑
MR KAVANAGH: No, it’s not. The debt is not the issue before the tribunal. I’m not after money. I don’t want any more money off Centrelink on this particular complaint anyhow.
MR CONNOLLY: Well, Mr Kavanagh ‑ ‑ ‑
MR KAVANAGH: As far as Centrelink is concerned I am still at fault. This whole thing was brought about because I did not inform them of increases in the Irish pension.. I maintain I did. Centrelink have lost about 80 per cent of the documentation for the period they claim I’ve done this and they still claim I’m wrong, that I haven’t given them the information. Now, in the documentation that they lost, they’ve lost two income and asset statements. One for 2002, one for 2004.
MR CONNOLLY: Well, look, Mr Kavanagh you are now repeating the evidence that you have previously given. I just want to remind you that the terms upon which you came to the AAT are quite specific and I have to make a ruling on those terms and those terms alone.
MR KAVANAGH: Yes.
MR CONNOLLY: I will say this however that if you are not happy with the decision that was finally made by the SSAT then there is a procedure under the rules relating to the SSAT which you can follow but those procedures do not include the AAT as I understand it. So I think the only situation – the only situation before me that I have to make a determination on is is there a ground for the AAT to make a decision and in view of the fact that you now no longer owe anything and the money has been refunded and repaid in all directions and that has been accepted by the Department of Social Security I don’t think there’s any decision therefore that the Administrative Appeals Tribunal can effectively make in this regard.
MR KALANG: Well, can the AAT tell me this ‑ ‑ ‑
MR CONNOLLY: And you put me in a position where I have no alternative but to dismiss the case.
MR KAVANAGH: No, well I think that’s wrong.
MR CONNOLLY: Well, if you think it’s wrong ‑ ‑ ‑
MR KAVANAGH: Centrelink clearly believe I still have a debt, it’s just that they are not going to collect it.
MR CONNOLLY: I don’t know where you ‑ ‑ ‑
MR KAVANAGH: Centrelink’s position that I am still at fault. The debt is still there. They’ve decided not to collect it. Now George came on with some stuff about it not being cost effective to recover the debt then that’s just not right.
MR CONNOLLY: Mr Kavanagh, it’s quite obvious that you feel aggrieved, I accept that. What I cannot accept is that the AAT is the right place for you to go in that situation and what I’m saying to you is if you really believe that the decision was wrong that came out of the SSAT tribunal that that’s where you should go back and go through that procedure. 5.4 of the act establishing the AAT, it’s 42A(5) of the Administrative Appeals Tribunal Act quite clearly says if the AAT is satisfied that the application is frivolous or vexatious it has the power to dismiss an application without proceeding to complete the review in those circumstances and I have not heard any evidence from you that detracts me from that view.
MR KAVANAGH: Well I don’t think it’s frivolous or vexatious. Could the AAT at least make a finding on which of the waivers stands?
MR CONNOLLY: Well my understanding is ‑ ‑ ‑
MR KAVANAGH: Is the answer that it was waived four times.
MR CONNOLLY: My understanding ‑ ‑ ‑
MR KAVANAGH: Or was it reinstated and waived again?
MR CONNOLLY: Well that’s not what the evidence suggests. Mr Lozynsky has made it quite clear that the waiver is absolute, it’s in place. Will you confirm that, Mr Lozynsky?
MR LOZYNSKY: That’s correct.
MR CONNOLLY: Right.
MR KAVANAGH: No, well the waiver made, the first waiver made was in October last year then she did another – she did another ‑ ‑ ‑ .
MR LOZYNSKY: Well, that’s not correct.
MR KAVANAGH: ‑ ‑ ‑ another review and waives something else. Now, what was waived the second time?
MR LOZYNSKY: In July 2007, the first review – authorised review officer waived $466.75 of the original debt leaving the amount of $416.58 to be repaid by you, Mr Kavanagh.
MR KAVANAGH: Do you have the dates now, George, do you have the dates for that?
MR LOZYNSKY: Then it was reviewed by another officer, that amount – that debt for that entire period was reconsidered, the debt was recalculated and it was decided that taking into account your business income which you had complained had not been taken into account by Centrelink the final figure that the department decided was owing was $38.58.
MR KAVANAGH: So you’re saying the debt was reinstated?
MR CONNOLLY: No, it wasn’t reinstated, it was recalculated. It’s a different thing.
MR LOZYNSKY: That’s right and in the end it was decided that that $38.58 was not cost effective to be recovered from you, Mr Kavanagh and it was waived under section 1237AAA of the Social Security Act and that was the end of the matter and basically the department decided to make an arrears payment which was owing to you in the sum of $560.40. So that’s the end of the matter, Mr Kavanagh and the department would like to move on and you know and not to proceed with this application any further.
MR KAVANAGH: The bit about it not being cost effective to recover the debt, that’s crap, George and you know it. They could have just deducted it out of the money they refunded me if they wanted to but the first waiver was everything from 2004 up to 2007 ‑ ‑ ‑
MR CONNOLLY: I’m sorry, Mr Kavanagh, we are going around in circles now for the ‑ ‑ ‑
MR KAVANAGH: The second waiver was for 2006 and 2007.
MR CONNOLLY: It’s now for the third time. All I just want to ask Mr Lozynsky just to confirm that if my terminology is correct; there actually were three waivers, right? There was the first one in July 2007, the second one was recalculated the numbers for the first and came down to $38.58 and the third waiver was on the $38.58?
MR LOZYNSKY: Yes, well I guess that’s how you could maybe argue that. Yes, I think that’s maybe how we could say that’s what happened but in actual fact there was one decision on 17 July ‑ ‑ ‑
MR CONNOLLY: 17 July?
MR LOZYNSKY: That was the first decision and then there was a second decision in October 2007 which finally decided there was no debt. So, I don’t know, member if you consider there were three waivers or two. In the end there’s no debt; that’s the point that I’m trying to make to Mr Kavanagh; there’s no debt and we’re not recovering anything from him and we’re not saying that he’s at fault.
MR KAVANAGH: That’s exactly what Centrelink are saying.
MR CONNOLLY: Yes, well thank you, Mr Kavanagh and thank you, Mr Lozynsky. As I said, I’ve effectively made my determination that I am dismissing the application without proceeding to complete the review because I do not believe there’s anything to be reviewed; the debt has been completely nulled and there is no debt and if you have any issues that you wish to address further than that I would suggest you take it to the SSAT. So that completes the matter.
MR LOZYNSKY: Thank you very much.
MR KAVANAGH: Well I’ll go back to them and I’m not very happy with the whole thing.
MR CONNOLLY: I understand that but I’ve told you where to go if you want to do anything more.
MR KAVANAGH: Yes, I understand you’re constrained by legislation.
MR CONNOLLY: Yes, I am.
MR KAVANAGH: But I’m still being screwed here on this one.
MR CONNOLLY: Fine, thank you very much.
MR KAVANAGH: Okay, thank you.
MR CONNOLLY: Bye bye.
MR LOZYNSKY: Thank you, member.
MR CONNOLLY: Bye bye.
MR LOZYNSKY: Bye bye.
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