Mohinder Singh and Administrative Appeals Tribunal
[2014] AATA 460
[2014] AATA 460
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/2312
Re
Mohinder Singh
APPLICANT
And
Administrative Appeals Tribunal
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 9 July 2014 Place Melbourne The application filed in the Tribunal by Mr Singh on 7 May 2014 is dismissed as the Tribunal does not have jurisdiction to hear and determine the application.
.........................[sgd]..................................
Deputy President J W Constance
CATCHWORDS
PRACTICE AND PROCEDURE - frivolous and vexatious application – request for referral to Federal Court of Australia - request for referral refused - Tribunal has no power to review its own decisions - no jurisdiction - application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) sub-ss 42B(1), 45(1)
CASES
Singh v Secretary, Department of Employment and Workplace Relations (2006) 95 ALD 569
Singh and Administrative Appeals Tribunal [2013] AATA 897
Singh and Secretary, Department of Employment and Workplace Relations (2006) 90 ALD 789Singh and Secretary, Department of Social Services [2013] AATA 954
REASONS FOR DECISION
INTRODUCTION
Mr Singh has applied to set aside a decision of the Tribunal made on 3 July 2006. In that decision the Tribunal dismissed Mr Singh’s application to set aside a decision of the Social Security Appeals Tribunal relating to a debt owed by Mr Singh to the Department of Social Security.
I have decided that Mr Singh’s application before me should be dismissed.
My reasons for this decision follow. In part these reasons repeat reasons I gave on 15 January 2014 (see [2013] AATA 954), however for clarity I set them out again.
BACKGROUND
The decision of the Tribunal made 3 July 2006
In April 2006 Mr Singh filed in the Tribunal an application (No. V2006/314) to review the decision of the Social Security Appeals Tribunal to which I have referred.
On 3 July 2006, following a hearing of the application, the Tribunal made the following decision and direction:
(1)The application issued on 20 April 2006 to review a decision of the Social Security Appeals Tribunal made on 22 March 2006 is frivolous and vexatious and shall be dismissed.
(2)The applicant must not without leave of the Tribunal make any application with respect to recovery of sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999.[1]
[1] Singh and Secretary, Department of Employment and Workplace Relations (2006) 90 ALD 789.
In the reasons for the decision of 3 July 2006 the Tribunal set out in detail Mr Singh’s previous applications to the Tribunal which related to the decision that he was indebted to the Department in the sum claimed. These applications dated back to 2000.
The present application
The present application was filed on 7 May 2014. It seeks to have the decision of 3 July 2006 set aside on the ground that “[t]he AAT made an error of law (jurisdictional error) in dismissing my application V314/2006 under section 42B of the AAT Act 1975 as being an abuse of process.”
The application also seeks to have a claimed question of law arising from the requirement that Mr Singh obtain the leave of the Tribunal (set out in paragraph (2) of the decision referred to) referred to the Federal Court of Australia.
CONSIDERATION
This is the fifth application made by Mr Singh since August 2013 in which he has sought to have the Tribunal review its decision made 3 July 2006. All of the four previous applications have been either withdrawn by Mr Singh or dismissed by the Tribunal.
Application filed 16 August 2013
In this application Mr Singh sought to have the decision of 3 July 2006 set aside and the direction requiring that he obtain the leave of the Tribunal discharged.[2] A jurisdiction hearing was listed for 30 September 2013. On 25 September 2013 Mr Singh withdrew his application.
[2] Application no.2013/4118.
Application filed 30 September 2013
On this occasion Mr Singh applied to have the direction requiring the leave of the Tribunal set aside. On 22 October 2013 the Tribunal conducted a hearing at which Mr Singh appeared, and made the following decision:
The Tribunal is satisfied that the application for review of the decision is frivolous and dismisses the application in accordance with s 42B(1)of the Administrative Appeals Tribunal Act 1975.[3]
[3] Application 2013/4940.
Application filed 28 October 2013
Mr Singh applied to the Tribunal to review its decision of 3 July 2006. On 20 November 2013 I dismissed Mr Singh’s application as I decided that the Tribunal did not have jurisdiction to deal with it.
In providing written reasons for this decision I said, in part:
7. In 2007 Mr Singh appealed to the Federal Court to review the decision of 3 July 2006. The Court varied the decision of the Tribunal by adding the words “to the Administrative Appeals Tribunal” after the words “the applicant must not without leave of the Tribunal make any application” and otherwise dismissed the appeal. An appeal to the Full Court of the Federal Court was dismissed.
8. Mr Singh then applied to the High Court of Australia for special leave to appeal the judgement of the Federal Court. On 15 May 2008 special leave was refused. The Court said, in part:
The applicant’s draft notice of appeal fails to raise any ground with respect to the decision of the Full Court. He does not identify a special leave question but returns to the alleged failure by the SSAT to review the decision of Centrelink refusing to review the decision of 4 November 1999. It is clear that the matters put forward by the applicant have been previously decided, and it was open to the AAT to dismiss the application summarily. The applicant has insufficient prospects of success in this Court to warrant a grant of special leave to appeal.
9. The power to set aside a decision of this Tribunal is conferred on the Federal Court of Australia by section 44 of the Administrative Appeals Tribunal Act 1975 (Cth). This section gives an applicant in the Tribunal a right of appeal on a question of law from any decision of the Tribunal in the proceeding lodged by him or her. Clearly Mr Singh has exhausted his rights of appeal. The Tribunal does not have the power to review its own decisions.[4]
[4] [2013] AATA 897.
Application filed 6 December 2013
I repeated these reasons when I dismissed an application filed by Mr Singh on 6 December 2013 which again sought to have the decision of 3 July 2006 set aside and the requirement that he obtain the leave of the Tribunal discharged.[5]
The present application filed 7 May 2014 to refer a question of law to the Federal Court of Australia in accordance with section 45 of the Administrative Appeals Tribunal Act
[5] [2013] AATA 954.
Subsection 45(1) provides:
(1)The Tribunal may, of its own motion or at the request of a party, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision but:
(a)a question must not be so referred without the concurrence of the President; and
…
Mr Singh has provided no basis for making such a referral. The issue has already been dealt with. His appeal to the Federal Court against the Tribunal’s decision was substantially dismissed in 2006[6] and his application to the High Court for special leave to appeal was dismissed in 2008.
[6]Singh v Secretary, Department of Employment and Workplace Relations (2006) 95 ALD 569. The appeal was allowed only for the limited purpose of a minor amendment to the Tribunal’s direction.
For the reasons I have quoted from my previous decision, I am satisfied that the Tribunal does not have jurisdiction to determine this application to set aside the decision of the Tribunal made 3 July 2006 in matter no. V2006/314.
Is the present application “frivolous or vexatious” in accordance with section 42B of the Act?
Subsection 42B(1) provides:
(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.
Taking into account Mr Singh’s repeated applications seeking to have the Tribunal review its own decision in the face of the Tribunal’s repeated decisions that it has no jurisdiction to do so, I am satisfied that the present application is vexatious.
In dismissing Mr Singh’s 2006 appeal to the Federal Court Weinberg J. said, in part:
[49] Although s 42B(1)(b) is couched in language that differs from that used in O 21 r 1 of the Federal Court Rules 1979 (Cth) the principles that underlie the making of a direction by the tribunal are not dissimilar to those that apply to vexatious litigants in this court. Order 21 r 1 requires a person to have instituted a vexatious proceeding and the court to be satisfied that the person has “habitually, persistently and without reasonable grounds” instituted other vexatious proceedings. Section 42B does not require that the person act “habitually and persistently”, but can be triggered by a single application which is frivolous or vexatious. Nonetheless, it is implicit in the section that a direction under s 42B(1)(b) will not be lightly made, and will normally require some element of habitual or persistent conduct.
…
[54] In my view, similar principles are applicable to s 42B(1)(b), and therefore to Mr Singh. The tribunal was entitled to have regard to his persistence, over many years, in seeking to have set aside the 4 November 1999 decision. It was entitled to have regard to his entire course of dealings in relation to social security benefits since his accident in 1991, and the fact that his latest foray before it involved an argument that could, and should, have been addressed years earlier. In those circumstances, I can see no error in the tribunal’s having concluded that a limited direction of the kind given was warranted.[7]
[7] (2006) 95 ALD 569, 577-78.
Notwithstanding the conclusion I have reached, the power to make a direction under section 42B(1)(b) is not enlivened in this application. As the application was listed to deal with the question of jurisdiction, no other party was involved. As there has been no application by a party to the proceedings for a direction under subsection 42B(1)(b), there is no basis for the Tribunal to make such a direction. However, had such an application been before me I would have made a direction. Should Mr Singh make another application in similar terms to the present and an application is made for a direction under subsection 42B(1)(b), in my opinion it is likely that such a direction would be made. The direction would be likely to require Mr Singh to seek the leave of the Tribunal to make an application to set aside the Tribunal’s decision contained in paragraph (1) of its decision of 3 July 2006.
CONCLUSION
The application filed in the Tribunal by Mr Singh on 7 May 2014 will be dismissed as the Tribunal does not have jurisdiction to hear and determine the application.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. ..............................[sgd]..........................................
Associate
Dated 9 July 2014
Date(s) of hearing 3 June 2014 Applicant In person
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