Re Singh and Secretary, Department of Employment and Workplace Relations
[2006] AATA 584
•3 July 2006
Singh and District Registrar, Administrative Appeals Tribunal (Social services second review) [2015] AATA 493 (9 July 2015)
Division GENERAL DIVISION File Number
2015/0563
Re
Mohinder Singh
APPLICANT
And
District Registrar, Administrative Appeals Tribunal
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 9 July 2015 Place Melbourne The Tribunal dismisses Mr Singh’s application. The Tribunal does not have jurisdiction to hear and determine this application.
[sgd]........................................................................
Miss E A Shanahan, Member
SOCIAL SECURITY – question of jurisdiction – matter litigated on numerous occasions since the year 2000 – appeals to Federal Magistrates Court, Federal Court, Full Court of the Federal Court, High Court of Australia – all appeals dismissed
Legislation
Administrative Appeals Tribunal Act 1975
Cases
Re Mohinder Singh and Secretary, Department of Employment and Workplace Relations [2006] AATA 584
Mohinder Singh and Administrative Appeals Tribunal [2014] AATA 460
REASONS FOR DECISION
Miss E A Shanahan, Member
9 July 2015
Mr Singh has applied once more to set aside the decision of the Administrative Appeals Tribunal (AAT) of 3 July 2006, wherein Senior Member Handley dismissed his application for review, and to set aside the Social Security Appeals Tribunal (SSAT) decision that Mr Singh and his wife owed a debt to the Commonwealth following his receipt of a permanent impairment lump sum payment for injuries sustained in the course of his work in 1991.
Mr Singh argues that the decision of 3 July 2006 (V 2006/314 ) was wrong in that Senior Member Handley should have considered Mr Singh’s application in relation to review of the SSAT decision first, independently of the Senior Member’s decision to dismiss the application as frivolous and vexatious.
This is the fifth such application that Mr Singh has made to the AAT since 2013. Applications were also made on 16 August 2013, 30 September 2013, 28 October 2013 and 7 May 2014. These applications were either dismissed by the AAT or withdrawn by Mr Singh. The application of 7 May 2014 was dismissed by Deputy President Constance on the grounds that the Tribunal did not have jurisdiction to hear and determine it. On that occasion Mr Singh, relying on his interpretation of s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (the Act), submitted that the AAT made an error of law in not considering his 2006 application in accordance with that section of the Act. .
In his decision of 9 July 2014, Deputy President Constance quoted his decision of 20 November 2013 wherein at paragraphs 7,8 and 9 he said:
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 Full 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.
In this fresh application Mr Singh based his arguments on his interpretation of s 42A(10) of the Act, which states:
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.
Clearly this does not apply to a matter which has been heard in full and dismissed because the application is frivolous and vexatious.
At the commencement of the hearing of the current application Mr Singh advised that this application was instead based on a different section of the Act, namely s 40(7), which relates to incidental proceedings in the form of a directions hearing or alternative dispute resolution processes. Section 3(h) of the Act states:
proceeding, in relation to the Tribunal, includes:
(h)an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.
The preceding paragraphs deal with applications to the AAT as well as with matters referred to the Tribunal for inquiry and/or review under any Act
In his written submission Mr Singh stated:
The application of this section extends to a directions hearing under this Act or an alternative dispute resolution process under Division 3 (an incidental proceeding) as if it were a proceeding before the Tribunal and a power that under this section is conferred on the Tribunal or a member of the Tribunal for the purpose of reviewing a decision may be exercised for the purposes of an incidental proceeding by the person holding the directions hearing or the person conducting the alternative dispute resolution process, as the case may be.
Incidental = happening as a result of some event or activity unplanned
Incidental proceeding = the term applied to a course of action that comes from the main action or proceedings
Apart from jurisdiction to deal with the merits, a tribunal may have to deal with other matters which are only connected with the case on the merits. The jurisdiction to deal with these matters comes within the scope of the incidental jurisdiction of the tribunal.
Incidental proceedings by definition must be those which are incidental to a case which is already before the court and thus, an incidental proceeding cannot be one which transforms that case into a different case with different parties.
Incidental proceedings are the proceedings which arose as a result of a substantial matter.
At the hearing of this application on 29 May 2015, Mr Singh expanded at length on this submission. However, it did not make the submission any more acceptable. Section 40(7) of the Act does not permit the AAT to review its own decisions; in particular, s 40(7) does not permit the AAT to review Mr Singh’s decision of 3 July 2006, a decision which has been dealt with by the AAT, the Federal Court and the Full Court of the Federal Court, all of which have dismissed the matter; and by the High Court, which refused leave to appeal as no question of law was identified.
The Tribunal dismisses this application as it has no jurisdiction to revisit one of its previously litigated decisions.
I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member [sgd]........................................................................
Administrative Assistant
Dated 9 July 2015
Date of hearing 29 May 2015 Applicant In person Respondent In person
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