REPATRIATION COMMISSION ApplicantAndKAZIMIR KOWALSKI

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…