LES SZARAZ and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 151

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 151

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2802

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LES SZARAZ

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date19 January 2009

PlaceSydney

Decision For the reasons given orally at the conclusion of the Hearing on 19 January 2009, the Tribunal is satisfied that this application for review is frivolous and vexatious. Pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 this application is DISMISSED.

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

M D Allen

SeniorMember

CATCHWORDS

DISMISSAL AS FRIVOLOUS OR VEXATIOUS: Debt waived by Respondent – no effective relief could be given by Tribunal – matter dismissed

CASE LAW

Re Williams and the Australian Electoral Commission and the Greens (1995) 21 AAR 467

LEGISLATION

Administrative Appeals Tribunal Act (1975): s42B

REASONS FOR DECISION

19 January 2009 Senior Member M D Allen

At the conclusion of the hearing of this application for review, I stated orally the decision intended to be made. After service upon the Applicant and Respondent of the decision that was in fact made, the Applicant requested pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975 that the Tribunal furnish in writing the reasons for the said decision. Those reasons are stated below and will be furnished to the Applicant and the Respondent.

1.        By Application lodge the 24^th July 2004, the Applicant sought review of a decision by a Social Security Appeals Tribunal (“SSAT”) that affirmed a prior determination by the Respondent that the Applicant had been over-paid carer allowance in the sum of $232.18.

2.        The actual decision of the SSAT reads:

“On 26 May 2008, the Tribunal decided to affirm the decision under review.

The Tribunal agrees with Centrelink that the debt of carer allowance should be waived in full but has decided it should be waived under section 1237AAD of the Social Security Act 1991. The Tribunal finds that the amount of the debt was $232.18.

As the debt has already been waived in full and Mr Szaraz was refunded the amount of $232.18 on 2 November 2007, no further action is required by Centrelink.”

3.        In his application for review, the Applicant stated inter alia as the grounds for his review:

“The SSAT failed to correctly apply the social security law when deciding that Centrelink could lawfully raise a debt to the Commonwealth on 7 September 2007. In addition, the SSAT failed to correctly apply the social security law when calculating the amount of debt and when waiving the debt.”

4.        When the matter came on for hearing before me, the Applicant submitted that the correct amount of overpayment was in fact $14.07 and that Centrelink had erred in its calculations. Upon being questioned by me, the Applicant conceded that in terms of financial relief there was no effective relief the Tribunal could give him as the debt which Centrelink claimed had existed had been waived.

5.        As there was no effective relief the Administrative Appeals Tribunal could afford the Applicant and I took the Applicant to concede that the only decision the Tribunal could make was to affirm the decision under review, I applied the decision of the Tribunal in Re Williams and the Australian Electoral Commissionand the Greens (1995) 21 AAR 467 at 475, namely:

“In this case the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect…

The interest which gave the Applicant standing to commence the proceeding has long since ceased to exist. He has no legitimate interest in pursuing them further. Accordingly, in our opinion, while the proceedings were not instituted vexatiously they have become vexatious. They have been thus ever since 22 December 1992, when the only interest of the Applicant which could possibly been affected by the disputed decision, ceased to exist.”

6.        I am satisfied that at no stage could proceedings in this Tribunal have had any practical effect, the SSAT having confirmed the decision of Centrelink to waive any debt allegedly incurred by the Applicant.

7. Section 42B of the Administrative Appeals Tribunal Act (1975) states:

“ (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…”

Accordingly, for the reasons given above being satisfied that these proceedings were vexatious, the matter is dismissed.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed: ...M.Corcoran.....................................................................
  Associate

Date of Hearing  19 January 2009
Date of Decision  19 January 2009
Solicitor for the Applicant           Appeared on own behalf          
Solicitor for the Respondent       P. Lee, Centrelink Legal Services