REPATRIATION COMMISSION ApplicantAndKAZIMIR KOWALSKI

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Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 6

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3352

VETERANS’ APPEALS DIVISION )
Re REPATRIATION COMMISSION

Applicant

And

KAZIMIR KOWALSKI

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date7 January 2009

PlaceAdelaide

Decision

The Tribunal dismisses the application lodged on 2 November 2008 by Mr Kowalski to declare the Repatriation Commission’s application for review frivolous or vexatious and to dismiss that application or direct a permanent stay in respect of that application and/or to dismiss the application pursuant to s 33 of the Administrative Appeals Tribunal Act 1975 (Cth).

JG Short

(Signed)
  (Member)

as the case may be.”

10. Section 27 of the AAT Act relevantly provides:

“27       Persons who may apply to Tribunal

(1)Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision.

…”

11. Section 176(2) of the VE Act identifies the Commission as a “person whose interests are affected by a reviewable decision”.

12.      On 7 July 2008, the VRB set aside a decision of the Commission and substituted a new decision that Mr Kowalski’s GORD is defence-caused as defined in s 70 of the VE Act.

13. Section 175(1) of the VE Act provides in these circumstances that application may be made to this Tribunal for review of the VRB’s decision. Section 27 of the VE Act provides that such an application for review may be made by or on behalf of any person, including the Commonwealth or an authority of the Commonwealth whose interests are affected by the decision.

14.     In the light of the above mentioned legislation, I find that the Commission has a statutory right to seek review of the decision made by the VRB on 7 July 2008.

frivolous or vexatious?

15. Section 42B(1) of the AAT Act provides:

“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.

…”

16. Further, s 33(1) of the AAT Act provides:

“33       Procedure of Tribunal

(1)      In a proceeding before the Tribunal:

(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)the proceeding shall be…

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Details
Case
[2009] AATA 6
Decision Date

CaseChat Overview and Summary

The applicant, the Repatriation Commission, sought a review of a decision made under the Veterans’ Entitlements Act 1986 (Cth) and the Administrative Appeals Tribunal Act 1975 (Cth). The respondent, Kazimir Kowalski, applied to the Administrative Appeals Tribunal to have the Commission's application for review declared as frivolous or vexatious, and for it to be dismissed or permanently stayed. The Tribunal was called upon to decide whether the application was frivolous or vexatious and whether it was subject to Anshun estoppel, which would prevent the Tribunal from hearing the matter on the basis that it had not been raised before.

The primary legal issues before the Tribunal were whether the Repatriation Commission’s appeal was frivolous or vexatious and whether Anshun estoppel applied, barring the Tribunal from hearing the matter. In determining whether the application was frivolous or vexatious, the Tribunal considered the definition under section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) and the case law, including Attorney-General v Wentworth and Burton v Bairnsdale Shire. The Tribunal also examined whether Anshun estoppel applied, which would prevent the Tribunal from hearing the matter as it had not been previously considered. The Tribunal considered the principles established in Port of Melbourne Authority v Anshun Pty Ltd and the applicability of Anshun estoppel in the context of the present case.

The Tribunal dismissed Mr Kowalski's application, finding that the Repatriation Commission’s appeal was not frivolous or vexatious. It concluded that the application was not brought in bad faith and did not lack an arguable case. Furthermore, the Tribunal determined that Anshun estoppel applied, as the matter had not been previously considered by the Tribunal. Consequently, the Tribunal was precluded from hearing the matter on these grounds.

The Tribunal dismissed the application lodged by Mr Kowalski on 2 November 2008, finding it to be without merit and barred by Anshun estoppel. The Tribunal found that the Repatriation Commission’s application for review was neither frivolous nor vexatious and that the matter was not subject to the principles of Anshun estoppel.

Orders

Orders of the court

The Tribunal dismisses the application lodged on 2 November 2008 by Mr Kowalski to declare the Repatriation Commission’s application for review frivolous or vexatious and to dismiss that application or direct a permanent stay in respect of that application and/or to dismiss the application pursuant to s 33 of the Administrative Appeals Tribunal Act 1975 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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