Mohinder Singh and Secretary, Department of Social Services
[2013] AATA 825
[2013] AATA 825
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4940
Re
Mohinder Singh
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 22 October 2013 Date of written reasons 20 November 2013 Place Melbourne The Tribunal dismisses the application in accordance with s 42B(1) of the Administrative Appeals Tribunal Act 1975.
................................[sgd].......................................
G. D. Friedman, Senior Member
SOCIAL SECURITY ––– Application Groundless – Dismissed under s 42B(1)
Administrative Appeals Tribunal Act 1975 ss 42A(10), 42B
Ettridge and Secretary, Department of Employment and Workplace Relations [2007] AATA 1950
REASONS FOR DECISION
G. D. Friedman, Senior Member
20 November 2013
On 3 July 2006 this Tribunal dismissed an application by Mr Singh for review of a decision made by the Social Security Appeals Tribunal on 22 March 2006.
On 30 September 2013 Mr Singh lodged an application for review of the 3 July 2006 decision.
Mr Singh’s application also sought review of actions taken by the Federal Court of Australia.
In his application to the Tribunal Mr Singh argues:
1The AAT made an error to determine my application v314/2006 under section 42B of the AAT Act.
2The AAT made an error in its given direction under section 42B(1)(b) subject to the prescribed direction in the AAT Act 1975.
3[The] Federal Court made error to not follow the given direction of the AAT to determine my application in its judgement dated 27 July 2011.
ISSUE
The issues before the Tribunal are:
(a)Does the Tribunal have the power to review actions of the Federal Court of Australia in relation to Mr Singh?
(b)Does the Tribunal have the power to review the 3 July 2006 decision?
RELEVANT LEGISLATION AND PRINCIPLES
Section 42B of the Act states:
42B Power of Tribunal where a proceeding is frivolous or vexatious
(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.
(2)A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.
(3)The Tribunal may discharge or vary such a direction.
In Ettridge and Secretary, Department of Employment and Workplace Relations [2007] AATA 1950 the Tribunal discussed the relevant principles:
14.The concept of a frivolous and vexatious application has been considered on many occasions. The Tribunal refers to Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 in which Roden J stated as follows:
“it seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2They are vexatious is they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise.
3They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
CONSIDERATION
Mr Singh maintained that s 42B(2) of the Act gave the Tribunal power to review actions of the Federal Court of Australia. Mr Singh submitted:
Justice Bromberg erred in that he altered the given direction of the AAT under subsection 1(b) of 42B, in his reasons for judgement at [1] by using the words ‘before the Tribunal’, Justice Bromberg made error subject to subsection 2 of 42B, to determine the Applicant’s application VID234/2010 under Order 21 Rule 1 or Rule 6.02. Therefore, on the basis of the above explanation, the AAT should discharge the erroneous given direction no V314/2006 in its decision dated 3 July 2006, so that I can seek within my right, the judicial review of the 4 November 1999 under the ADJR Act 1977, in the Federal Court of Australia.
The relevant section cited by Mr Singh does not give the Tribunal jurisdiction to review any action taken by the Federal Court of Australia. There is no merit in Mr Singh’s argument in relation to this point.
Mr Singh told the Tribunal that section 42B(3) of the Act enables the Tribunal to review the 3 July 2006 decision by this Tribunal. Under s42A(10) of the Act an applicant has the right to request reinstatement of a dismissed application:
42A Discontinuance, dismissal, reinstatement etc. of application
(10)If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
Mr Singh has lodged a fresh application seeking review of the 3 July 2006 decision. Mr Singh cannot bypass s 42A(10) by lodging a fresh application. Section 42B(3) does not give the Tribunal jurisdiction to review the 3 July 2006 decision. Mr Singh’s interpretation of the section is incorrect.
Mr Singh’s arguments about the scope and nature of the Tribunal’s power to review the cited decisions are untenable and groundless.
CONCLUSION
The Tribunal dismisses the application in accordance with s 42B(1) of the Act.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. ...............................[sgd].........................................
Associate
Dated 20 November 2013
Date of hearing
22 October 2013
Applicant
In person
Advocate for the Respondent
Mr T de Uray
Solicitors for the Respondent
Program Litigation and Review Branch, Department of Human Services
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