Ryan and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 1058
•7 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1058
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nº 2008/2995
GENERAL ADMINISTRATIVE DIVISION )
Re: CHRISTOPHER RYAN
Applicant
And:SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
| Tribunal | GD Friedman, Senior Member |
Date7 November 2008
PlaceMelbourne
| Decision | The Tribunal dismisses the application under s 42B(1) of the Administrative Appeals Tribunal Act 1975. |
(sgd) GD Friedman
Senior Member
SOCIAL SECURITY – cancellation of newstart allowance – newstart allowance restored – no practical utility in continuing proceedings – whether application now frivolous or vexatious
Administrative Appeals Tribunal Act 1975 s 42B
Social Security (Administration) Act 1999 ss 80, 81
Attorney-General v Wentworth (1998) 14 NSWLR 481
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Re Gowing and Civil Aviation Authority (1990) 11 AAR 411
Re Kavanagh and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 474
Re Reddish and Civil Aviation Safety Authority [1999] AATA 721
Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118
Re Sutcliffe and the Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 859
Re Williams and Australian Electoral Commission (1995) 38 ALD 366
REASONS FOR DECISION
25 November 2008 GD Friedman, Senior Member
Christopher Ryan is seeking a review of the decision of the Social Security Appeals Tribunal dated 6 June 2008 to cancel his newstart allowance. After Mr Ryan had lodged his application Centrelink restored his newstart allowance from 5 June 2008 having previously been paid up to 4 June 2008.
The issue before the Tribunal is whether Mr Ryan’s application should be dismissed under s 42B of the Administrative Appeals Tribunal Act 1975, which states that the Tribunal may, at any stage of the proceeding, dismiss an application if satisfied that the application is frivolous or vexatious.
MR RYAN’S POSITION
In summary, Mr Ryan stated to the Tribunal that he wished to persist with his application in order to establish that the SSAT decision was incorrect and for the Tribunal to declare its wrongfulness. He said that Centrelink incorrectly cancelled his newstart allowance under s 81 of the Social Security (Administration) Act 1999 (Administration Act), and that the SSAT acknowledged this. He said that the SSAT should not have then proceeded to affirm the decision to cancel his payments under s 80 of the Administration Act in light of its finding. Mr Ryan said that it would be in the public interest for the Tribunal to address the issue of the proper use of s 80 of the Administration Act and to provide guidance to the SSAT and to Centrelink.
Mr Ryan also said that Centrelink’s conduct and attitude towards him has constituted a gross and persistent abuse of [his] human and civil rights. He believes he has been the victim of a sustained campaign of vexatious attacks on his entitlements and his reputation. He wanted the Tribunal to hear and determine his application so that he could clear his name.
CONSIDERATION
The general test for dismissing proceedings was stated in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at [128]-[129]:
The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
In Re Reddish and Civil Aviation Safety Authority [1999] AATA 721 the Tribunal considered Re Gowing and Civil Aviation Authority (1990) 11 AAR 411; Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118; and Re Williams and Australian Electoral Commission (1995) 38 ALD 366 and concluded at [33]:
…an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant…
In Attorney-General v Wentworth (1998) 14 NSWLR 481 Rodan J at 491 considered that proceedings would be vexatious if:
…they are brought for collateral purposes, and not for the purposes of having the Court adjudicate on the issues to which they give rise…
In Re Kavanagh and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 474 the applicant wanted the Tribunal to provide him with an opportunity to demonstrate that Centrelink was at fault in incorrectly assessing his pension entitlement. The Tribunal concluded that a hearing could not result in any practical benefit to the applicant, and dismissed the application.
In Re Sutcliffe and the Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 859 the Tribunal stated at [6]:
As the Tribunal explained to the applicant, both the SSAT and this Tribunal provide administrative review of disputed decisions. That is undertaken by a de novo hearing and does not involve a judicial review, that is neither Tribunal exercises the judicial power of the Commonwealth. The most which the Tribunal could achieve for him would be to give him what he has already been given by the authorised review officer, namely the reinstatement of his benefit for the previously imposed eight week suspension. While the applicant may urge the Tribunal to do so on other grounds than those considered by the authorised review officer to be determinative that will not result in a different outcome than currently persists.
The Tribunal dismissed the application on the basis that it would be a waste of public resources to permit the case to be argued before the Tribunal when the applicant had the most which the Tribunal could, in any event, grant him.
If Mr Ryan’s application proceeded to a hearing and determination and he was successful in establishing that his newstart allowance should not be cancelled, no practical benefit would flow from the Tribunal’s decision as his newstart allowance has already been restored. To continue this matter would be a waste of public resources when Mr Ryan already has all the benefit that the Tribunal could grant him.
In any event the Tribunal’s role as a merits review tribunal is to make the correct or preferable decision on an application and not to provide a forum for debate on public administration generally or the policies and practices of individual agencies.
For these reasons the Tribunal concludes that the application should be dismissed. However in reaching this decision the Tribunal emphasises that it does not consider Mr Ryan to be a frivolous or vexatious applicant or that the issues raised by him could be described in any way as trivial.
DECISION
The Tribunal dismisses the application under s 42B(1) of the Administrative Appeals Tribunal Act 1975.
I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision of:
GD Friedman, Senior Member
(sgd) Mara Putnis
Associate
Date of hearing: 7 November 2008
Date of decision: 7 November 2008
Date of written reasons: 25 November 2008
Advocate for the applicant: Self-represented
Advocate for the respondent: Mr A Carson, Centrelink Legal Services
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