Marchlewski and Secretary Department of Family and Community Services

[2004] AATA 1027

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1027

ADMINISTRATIVE APPEALS TRIBUNAL      )           

)          N2004/1028     

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROMAN MARCHLEWSKI

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date30 September 2004

PlaceSydney

Decision The Tribunal has no jurisdiction to hear the application and the application is dismissed pursuant to section 42A(4) of the Administrative Appeals  Tribunal Act1975.

................................................

Ms N Bell   Senior Member

SOCIAL SECURITY – Decision Made by Consent – Whether Tribunal Has Jurisdiction to Review Social Security Appeals Tribunal Decision Notwithstanding that a Determination has Already Been Made – No Jurisdiction – s42A of the Administrative Appeals Tribunal Act 1975

Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Bogaards v McMahon (1988) 15 ALD 313

Comcare v Grimes (1994) 50 FCR 60

Re Quinn v Australian Postal Commission (1992) 15 AAR 519

Re Hospital Benefit Fund of Western Australia Inc and Department of Health Housing and Community Service (No1) (1992) 28 ALD 25.

REASONS FOR DECISION

30 September 2004   Ms N Bell, Senior Member         

1.On 10 April 2002, this Tribunal made a consent decision under section 42C(2) of the Administrative Appeals  Tribunal Act1975 (“the Act”), setting aside the decision of the Social Security Appeals Tribunal (“the SSAT”) dated 23 January 2001, and substituting a decision that 50 per cent of a compensation charge imposed upon Mr Marchlewski be waived and refunded.

2.The consent decision was based on an agreement to that effect signed by a representative of the Secretary of the Department of Family and Community Services and the then solicitor for Mr Marchlewski.

3.On 11 August 2004, Mr Marchlewski lodged an application for an extension of time to lodge an application for review of the SSAT’s decision of 23 January 2001.  Notwithstanding advice from the Deputy District Registrar of the Tribunal that review of the SSAT’s decision had already been determined by consent, Mr Marchlewski sought to pursue his application.

4.The issue for me to determine is whether the Tribunal has jurisdiction to entertain Mr Marchlewski’s application.  A hearing was held and Mr Marchlewski took part by telephone.  Mr Zhang for the Respondent was present and made submissions, both written and oral, to the Tribunal.

5.Mr Marchlewski made statements about the injustice he considered he had suffered at the hands of Centrelink, the Supreme Court, the Court of Appeal and the Tribunal.  His statements and arguments were very difficult to understand and his tone was very angry and upset.

6.I attempted to ask Mr Marchlewski on a number of occasions whether his solicitor had acted on his instructions in signing the terms of settlement on which the consent decision was based.  On each occasion he spoke over me, preventing me from concluding my question and consequently did not answer my questions.  It was clear, however, that he was unhappy with the result of the consent decision.  In the end I was presented with no evidence as to the authenticity or otherwise of the terms of settlement, the details of his instructions to his solicitor or the basis of his desire to revisit the matter.

7.Mr Zhang drew my attention to a number of authorities for the proposition that, once a decision is made by the Tribunal on an application for review, the same decision may not, or should not, be reviewed again.

8.It should be kept in mind at the outset that Mr Marchlewski has a right to appeal the Tribunal’s decision to the Federal Court on an error of law.

9.There is authority for the proposition that the Tribunal is estopped from entertaining further applications for review of a decision, where an earlier application for review of the same decision has been disposed of.  In Administration ofthe Territory ofPapua New Guinea v Daera Guba (1973) 130 CLR 353, Gibbs J held that the doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties. This was followed by the then President of the Tribunal, O’Connor J, in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 in which the decision of Pincus J in Bogaards v McMahon (1988) 15 ALD 313 was also cited.

10.In Bogaards Pincus J held that a consent decision of the Tribunal can support a plea of res judicata and a decision of the Tribunal may create an estoppel.  His Honour concluded  that the Tribunal cannot review a determination when it has already dealt with that precise dispute.

11.There is also, however, authority against the proposition that a decision by the Tribunal can create estoppel.  In Comcare v Grimes (1994) 50 FCR 60, Wilcox J held that the doctrine of cause estoppel does not apply to a Tribunal’s decisions. However, His Honour also referred to the decision of O’Connor J in ReQuinn v Australian Postal Commission (1992) 15 AAR 519, where Her Honour noted the Tribunal’s power to determine and control its process under s.33 of the Act and the inappropriateness of re-litigation without reason of the same issues before the Tribunal.

12.The view expressed by O’Connor J in Quinn was confirmed by Her Honour in Re Hospital Benefit Fund of Western Australia Inc and Department of Health Housing and Community Service (No1) (1992) 28 ALD 25.

13.There is ample authority, therefore, for the proposition that an application already decided by the Tribunal, even if decided under section 42C on the basis of terms of settlement, should not be re-litigated before the Tribunal. This is so, whether on the basis of res judicata or on the basis that the Tribunal may, by determining its own process under section 33 of the Act, decline to permit the parties to re-litigate an issue which has previously been determined by it.

decision

14.The Tribunal has no jurisdiction to hear the application and the application is dismissed pursuant to section 42A(4) of the Administrative Appeals  Tribunal Act 1975.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         ....(Linda Blue)..................................................
  Associate

Date of Hearing  8 September 2004
Date of Decision  30 September 2004
Solicitor for the Respondent     Mr Andrew Zhang