McCabe and Secretary, Department of Social Services (Social services second review)
[2018] AATA 4038
•8 October 2018
McCabe and Secretary, Department of Social Services (Social services second review) [2018] AATA 4038 (8 October 2018)
Division:GENERAL DIVISION
File Number: 2018/4473
Re:Shirley McCabe
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:8 October 2018
Date of written reasons: 25 October 2018
Place:Brisbane
The application for review is dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
.........................[sgd]...............................................
Senior Member Theodore Tavoularis
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – where Applicant historically had a case decided by the Tribunal – where Applicant lodged fresh application for review of previous Tribunal matter – where Applicant did not appear at the jurisdiction hearing – whether the Tribunal has jurisdiction to hear appeals against its own decisions – Tribunal has no such jurisdiction – application for review dismissed
PRACTICE AND PROCEDURE – adjournment request – interlocutory hearing on a jurisdiction question – where Applicant made oral request to adjourn interlocutory hearing on the business day before the interlocutory hearing – whether the Tribunal should adjourn the interlocutory hearing – examination of all the circumstances – adjournment request refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 42A, 43, Part IVA
CASES
Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1309
Rana and Defence Force Retirement and Death Benefits Authority[2009] AATA 404
Re Bienstein and Commonwealth Ombudsman[2003] AATA 1197
Re Dennis and Secretary, Department of Transport(1979) 2 ALD 255
Re Laird and Australian Broadcasting Tribunal[1979] AATA 52
Re McLindin and Acting Commissioner for Superannuation(1979) 2 ALD 261
SECONDARY MATERIALS
General Practice Direction
REASONS FOR DECISION
Senior Member Theodore Tavoularis
25 October 2018
PROCEDURAL HISTORY
In March 1989, the then-Social Security Appeals Tribunal made a decision, the effect of which was to refuse to waive a debt raised against Mrs Shirley McCabe (“the Applicant”) due to an apparent social security overpayment. She appealed this decision to the Tribunal, which affirmed the decision under review in an oral decision in October 1989.
The Applicant did not take up her right of review with the Federal Court of Australia. Further, available records indicate that she did not contact the Tribunal in the nearly thirty-year period between her receiving the Tribunal’s decision in October 1989 and lodging a fresh claim with the Tribunal on 9 August 2018. The precise decision the Applicant sought to be reviewed was not clearly enunciated; instead of completing an application form, she had sent a handwritten letter to the Tribunal. What is clear from the letter, though, is that the Applicant was deeply dissatisfied with the decision not to waive her debt.
On 10 August 2018, the Tribunal wrote to the Applicant, asking her to clarify the decision she sought to be reviewed. It is apparent on my reading of the Applicant’s response that the decision with which she took issue – and the one which she sought to appeal – was that of the Tribunal in October 1989.
The Tribunal wrote to the Respondent in a letter dated 31 August 2018, and invited it to make submissions on whether or not the Tribunal has jurisdiction to hear this matter. The Respondent took up this invitation and provided detailed submissions to the Tribunal on 14 September 2018, submitting that the Tribunal did not have jurisdiction to review its own decision.
The Tribunal proceeded to list an interlocutory hearing by telephone to discuss the question of whether the Tribunal has jurisdiction to hear this case. This was listed for 10:00am on Monday, 8 October 2018. The Applicant called the Tribunal’s Brisbane Registry in the morning of Friday, 5 October 2018 and requested that the interlocutory hearing be adjourned to another day on the grounds of her illness. Although my Associate tried to contact the Applicant on several occasions between when the Registry received the Applicant’s call on Friday morning and the listed start time for the interlocutory hearing, he was unable to reach her. I did not grant the Applicant’s request to adjourn the interlocutory hearing.
At the interlocutory hearing, the Tribunal tried to contact the Applicant on three occasions, but she did not answer the phone. Accordingly, the Tribunal proceeded to hear the matter ex parte – that is, with only the Respondent in attendance. At the interlocutory hearing, the Tribunal sought submissions from the Respondent as to how to proceed with the matter. The Respondent resiled from making submissions on the Applicant’s non-appearance and instead submitted that the Tribunal lacked jurisdiction to hear this matter. For the reasons below, I have decided that the Tribunal does not have jurisdiction to hear this case. Accordingly, I dismissed this application for review.
On 17 October 2018, the Tribunal received a letter from the Applicant, which purported to explain her non-attendance. In that letter, she sought written reasons for why the Tribunal went ahead with the interlocutory hearing and for my decision to dismiss the application for review. I will address each of those questions in turn below.
THE NON-ADJOURNMENT OF THE INTERLOCUTORY HEARING
As a preliminary matter, I consider it important to address my reasons for going ahead with the interlocutory hearing in the absence of the Applicant. This is, however, a matter of relatively short compass.
Although I recognise that the Applicant made a request for the interlocutory hearing to be adjourned to another day, this request was (1) made orally by way of a phone call; and (2) made on the business day before the hearing. The Applicant has also not provided the Tribunal with an email address, so the only means of contacting her were by phone and by post.
It is, to my mind, of some significance that the Applicant’s request was not made in writing. The Tribunal’s General Practice Direction requires that requests to adjourn hearings must be made in writing.[1] Further, while the Tribunal tried to contact the Applicant to seek further information after receiving her request, she could not be contacted. While the Applicant has subsequently provided information – and, might I say, compelling reasons – for why she requested the adjournment, those reasons were not before the Tribunal in any detail at the time the Applicant made her adjournment request. The only information that I had before me at the time I had to assess whether to grant the Applicant’s request was a phone note taken by a Tribunal Officer. This phone note recorded that the Applicant had told the Tribunal Officer that she had been put on four weeks’ bed rest by her doctor. No supporting evidence was provided with this oral request.
[1] General Practice Direction, [4.39].
Taking all of these circumstances into account, alongside the fact that the Applicant was due to attend the interlocutory hearing by phone, not in person, I determined that the Applicant’s request to adjourn the interlocutory hearing was insufficient to grant her request to adjourn the interlocutory hearing. Accordingly, the interlocutory hearing proceeded as discussed above.
I will now turn to addressing the substance of my decision – whether or not the Tribunal has jurisdiction to hear the Applicant’s claim.
DOES THE TRIBUNAL HAVE JURISDICTION TO HEAR THIS MATTER?
The Tribunal’s ability to review decisions is grounded in ss 25(1) and 25(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), which relevantly provide:
1An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
…
3Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:
(a)shall specify the person or persons to whose decisions the provision applies;
(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c)may specify conditions subject to which applications may be made.
Essentially, this means that the Tribunal has jurisdiction to review a decision where the legislation under which that decision was made provides for the Tribunal to review that decision. The review rights to the Tribunal must be explicit,[2] and provisions conferring jurisdiction must be interpreted strictly by the Tribunal.[3] While the Applicant has in her letters suggested the Tribunal has a broad power to review and overturn decisions, that is simply incorrect.
[2] See, e.g. Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309.
[3] See Re McLindin and Acting Commissioner for Superannuation (1979) 2 ALD 261; Re Dennis and Secretary, Department of Transport (1979) 2 ALD 255; Rana and Defence Force Retirement and Death Benefits Authority [2009] AATA 404; Re Bienstein and Commonwealth Ombudsman [2003] AATA 1197; Re Laird and Australian Broadcasting Tribunal [1979] AATA 52.
The Respondent, impressively, provided to the Tribunal historical information relating to the Applicant’s claims before the Tribunal in the 1980s. Crucially, it provided a copy of the Tribunal’s decision in October 1989. The document the Respondent provided was cast in the following terms:
For the reasons given orally at the hearing, the decision under review is affirmed.
Although no explicit statutory reference was made, it is clear on its face that the Tribunal affirmed the decision under review in exercise of its power under s 43 of the AAT Act. As the AAT Act was the legislation under which the decision of which the Applicant seeks review was made, it is there that I must look to determine whether the Tribunal has jurisdiction.
Helpfully, the AAT Act does have provisions which explicitly set out where its decisions may be reviewed.[4] Unfortunately for the Applicant, those provisions do not allow for the AAT to review its own decisions. Rather, they provide for review by the Federal Court or the Federal Circuit Court.
[4] See Administrative Appeals Act 1975 (Cth), Part IVA.
Therefore, the Tribunal simply does not have the power to review decisions of the kind that the Applicant seeks review.
CONCLUSION
Accordingly, I have dismissed the application for review under s 42A(4) of the AAT Act.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
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Associate
Dated: 25 October 2018
Date of hearing: 8 October 2018 Applicant: Did not appear Advocate for the Respondent: Andrew Summers Solicitors for the Respondent: Department of Human Services
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