Kulik v Administrative Appeals Tribunal

[2009] FCA 1006

FEDERAL COURT OF AUSTRALIA

Kulik v Administrative Appeals Tribunal [2009] FCA 1006

VITALY KULIK v ADMINISTRATIVE APPEALS TRIBUNAL and CENTRELINK

ACD 40 of 2008

STONE J
4 SEPTEMBER 2009
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 40 of 2008

BETWEEN:

VITALY KULIK
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

CENTRELINK
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	4 SEPTEMBER 2009
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.        The application is dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 40 of 2008

BETWEEN:

VITALY KULIK
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

CENTRELINK
Second Respondent

JUDGE:	STONE J
DATE:	4 SEPTEMBER 2009
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. This application was commenced by filing of a notice of appeal on 5 November 2008. Dr Kulik seeks judicial review of a decision of the Administrative Appeals Tribunal made on 8 October 2008. The Tribunal’s decision was made under s 25(4) of the Administrative Appeals Tribunal Act1975 (Cth) and was that the Tribunal did not have power to review decisions made by Centrelink and the Commonwealth Ombudsman in respect of applications Dr Kulik had made.

2. The factual background to these proceedings is contained in an affidavit of Kathryn Louise Johnson affirmed on 21 April 2009 and filed by the second respondent on 22 April 2009.  Ms Johnson’s evidence has not been challenged by the applicant.

3. On 18 April 2006 following a refusal by Dr Kulik to provide additional information requested by Centrelink the second respondent cancelled the applicant’s age pension.  The applicant appealed this decision on 14 June 2006 to the Social Security Appeals Tribunal and provided the information sought by Centrelink to that tribunal. 

4. On 20 July 2006 the Tribunal remitted the matter to Centrelink for reconsideration.  Centrelink subsequently reviewed the decision and the age pension was restored on 16 August 2006.  On 16 June 2006 Dr Kulik made a freedom of information request to see his Centrelink file.  His personal Centrelink file was released to him in full.  He then made a number of additional FOI requests which form the basis of these proceedings and which I will describe in more detail shortly.  This purported FOI request was refused by Centrelink.  On 21 August 2008 the applicant lodged an application for review of that decision with the AAT. 

5. On 16 September 2008 Dr Kulik filed an application for an extension of time in relation to the proceedings before the AAT. Centrelink lodged a notice opposing this application on 29 September 2008 and on 30 September 2008 the Tribunal sent a letter to the parties indicating that it had listed the application for an interlocutory hearing on 8 October 2008. On 8 October 2008 the Tribunal decided that pursuant to s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) it did not have the power to review the decisions.

6. The notice of appeal initially filed in this Court on 8 October 2008 identified the Tribunal as the only respondent.  The Tribunal filed a submitting appearance and on 1 December 2008 I ordered that Centrelink be joined as a respondent to these proceedings and referred the matter to mediation.

7. The mediation was not successful.  On 26 March 2009 Rares J ordered that Dr Kulik file and serve all affidavits on which he proposed to rely by 9 April.  This was an attempt to understand the basis for the applicant’s claim.  The applicant did not comply with this order and, at a directions hearing on 18 March 2009, I indicated that if he had not filed the required evidence by the next directions hearing I would be inclined to strike out the matter on the Court’s initiative. 

8. The matter was next before the Court for directions before Rares J on 29 June 2009.  His Honour spent a very substantial amount of time in Court attempting to come to grips with Dr Kulik’s claims.  The transcript of those proceedings records that the hearing commenced via video conference at 11.12 am and concluded, after numerous adjournments of varying lengths, at 4.44 pm.  At the conclusion of that hearing Rares J gave an ex tempore judgment; [2009] FCA 716. His Honour ordered Dr Kulik to file and serve on or before 13 July 2009 an affidavit that annexed a copy of each decision by the second respondent that he contends form the subject of his application to the AAT. In default of this order Rares J ordered that the proceedings be dismissed with costs.

9. It is clear from Justice Rares’ reasons that his Honour experienced the same difficulty as I in understanding the basis of the applicant’s complaint.  His Honour said at [20] of his reasons:

   I have sought to make every allowance I can for the fact that Dr Kulik is unrepresented and is obviously finding the involvement he has in legal proceedings difficult. …   Regrettably I am not able to discern any intelligible claim.

10. On 10 July 2009 Dr Kulik filed an affidavit which presumably was intended to satisfy Order 1 made by Rares J on 29 June 2009 described above.  This affidavit annexed three letters.  These letters appear to be the source of the decisions for which review was sought in the Tribunal.  Dealing with the letters chronologically, the earliest is dated 30 May 2007 and was sent to the applicant by Ms Scanlon, a Centrelink Freedom of Information Officer, in response to a freedom of information request sent to Centrelink by the applicant on 23 March 2007.  In this letter Dr Kulik requests that Centrelink transfer:

    …all documents containing the word “Cypum” from electronic files to paper files (archive).

11. The word “Cypum” appears to refer to a corporation, Cypum Proprietary Limited, with which Dr Kulik had some association. It is not necessary to consider the details of that association here.  Dr Kulik indicated in his FOI request that this would:

    …moderate automatical actions of defective Centrelink computer.

12. Ms Scanlon’s letter indicates that the request was refused as it did not meet the requirements of s 48 of the Freedom of Information Act 1989 (Cth).  In particular it did not seek to have information amended or annotated but rather requested that material be deleted from a computer record.  The letter then advised the applicant of his appeal rights, including internal review, review by the Tribunal and complaint to the Commonwealth Ombudsman. 

13. The second letter annexed to Dr Kulik’s affidavit is dated 23 August 2007.  It is addressed to the applicant and, again, signed by Ms Scanlon.  In this letter Ms Scanlon refers to a letter sent by Dr Kulik on 23 June 2009.  That letter is also annexed to the affidavit presumably to inform the Court of the context in which the purported decision was made.  Ms Scanlon notes that Dr Kulik objected to the notion that he was requesting deletion of records and insisted that he was merely requesting that records be reorganised.  It would appear that Dr Kulik’s primary concern was that Centrelink computers were infected with a malicious virus and that moving his records to paper records was the only way to mitigate the automatic actions of those computers.  Ms Scanlon stated that, on the basis of having consulted an information technology specialist at Centrelink, the computers were not virus infected and if the applicant had an interest in Cypum it must be recorded on his computer record in order to determine his payments correctly.  Ms Scanlon further notes that a complaint to the Ombudsman’s office would be the next appropriate step if Dr Kulik is not satisfied. 

14. The third letter annexed to the applicant’s affidavit is dated 6 August 2007 and is addressed to Dr Kulik. The letter is on the letterhead of the Commonwealth Ombudsman’s office and is signed by Mr Bowen, a legal/policy officer with that office. In the letter Mr Bowen indicates that he has made a decision not to investigate Dr Kulik’s complaint pursuant to s 64 of the Ombudsman Act 1976 (Cth). As Mr Bowen explains in his letter, the Ombudsman’s office is entitled to refuse to investigate a complaint if the evidence indicates that there is adequate provision for an internal administrative review of the action about which the complaint has been made.

15. While not raised by the applicant, the second respondent, quite properly, notes in its written submissions that there is some irregularity with the decision of the AAT.  Under s 42A(4) of the AAT Act the Tribunal is authorised to dismiss an application without proceeding to review a decision if, within such time as is prescribed after being notified in writing that the decision does not appear to be reviewable by the Tribunal, the applicant is unable to show that the decision is so reviewable.  Under reg 8A of the AAT Regulations the prescribed period is 14 days. 

16. The second respondent concedes that the Tribunal did not comply with this section when it dismissed the application.  However, it submits that the Court should exercise its discretion to uphold the Tribunal’s findings because, irrespective of any questions of procedural fairness or individual merits, the decision maker was bound by the governing statute to refuse the application.  This submission is made in reliance on the authority of SZBYR v Minister for Immigration and Citizenship, a decision of the High Court (2007) HCA 26 at 28 to 29.

17. The discretion to which the respondent refers is the Court’s discretion to refuse relief even in the face of jurisdictional error if to do so would be a futility.  Assuming that s 42A(4) is a necessary condition of the Tribunal dismissing the application without proceeding to review the decision, then its failure to provide the applicant with the prescribed period of notice would be a jurisdictional error.  Consequently the discretion to which the second respondent refers would arise. 

18. Since filing his affidavit on 10 July 2009 Dr Kulik has filed two subsequent affidavits on 28 July and 27 August 2009.  He has also filed what purports to be an outline of written submissions on 20 August 2009.  Those documents raise a number of additional issues and are, for me, quite incomprehensible.  They refer to swine flu, electronic homicide, hidden dragons and a document allegedly entitled, Licensed to Kill.  At the hearing of the present application Dr Kulik said that he relied on his written submissions and when he was asked for some clarification referred only to the deficiencies in the Centrelink decisions as he saw them.  I explained to Dr Kulik that this application concerned the decision of the Tribunal and as such he had the onus of showing that the Tribunal was in error before any question of reviewing the underlying decisions arose.  Understandably, given his lack of legal training, he was unable to assist the Court. 

19. Despite my best endeavours I am unable to identify any sensible application which the additional documents that have been filed seek to make.  I have therefore confined my reasons to the matters that I have previously described.  Having reviewed the material quite carefully I am unable, to the extent that I can understand it, to see that it makes a case for any error in the decision of the Tribunal.  In my view the Tribunal was entitled to make the decision it made, namely that it did not have jurisdiction to review the decisions that were troubling Dr Kulik, and I can see no error in it so deciding. 

20. In relation to the failure to comply with s 42A(4) in my view it would be futility to uphold the application and send the matter back to the Tribunal only to have the decision that there is no jurisdiction again made.  This matter has been in the processes of the Court for some time.  Significant time and expenditure has been incurred by Centrelink in responding to a case entirely without merit.  It is an important element of the justice to which this Court is committed that the respondent be no longer compelled to be engaged in an entirely futile process.  Exercising my discretion I declined to grant the relief sought by the applicant. The application must be dismissed.

21. There is no reason why costs should not follow the event and therefore the orders of the Court are the application is dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:        10 September 2009

Counsel for the Applicant:	Appeared in person
Solicitor for the Respondents:	J Bird, Blake Dawson

Date of Hearing:	4 September 2009
Date of Judgment:	4 September 2009