Smith and Secretary, Department of Family and Community Services

[2004] AATA 438

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 438

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1984

GENERAL ADMINISTRATIVE DIVISION		)
Re		COLIN LESLIE SMITH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Michael Sassella
Senior Member

Date27 April 2004

PlaceSydney

Decision The application for review is dismissed on the basis that the Administrative Appeals Tribunal has no jurisdiction to deal with the matter.

[sgd] M J Sassella

Senior Member

CATCHWORDS

SOCIAL SECURITY – debt recovery – successful prosecution for debt not a precondition to Commonwealth recovery of social security debt – existence of reparation order not a precondition to Commonwealth recovery of social security debt – Administrative Appeals Tribunal lacks jurisdiction to hear new application on issues previously determined in tribunal decision – Administrative Appeals Tribunal can hear application for review relating to issues previously the subject of a decision where earlier decision did not dispose of all issues – no jurisdiction for Administrative Appeals Tribunal to hear this application for review

Administrative Appeals Tribunal Act 1975 s 42A(4)

Social Security Act 1991 s 1222A

Re Smith and Department of Family and Community Services [2001] AATA 281

Re Smith and Secretary, Department of Family and Community Services [2003] AATA 412

House v Department of Defence (1996) 41 ALD 793

REASONS FOR DECISION

27 April 2004 Michael Sassella
Senior Member     

RESULT

The tribunal has no jurisdiction in this matter.  The issues raised by Mr Smith have all been dealt with comprehensively by the tribunal in earlier applications by Mr Smith.

BACKGROUND

1.      Colin Leslie Smith (“the applicant”) incurred a social security debt totalling over $26,000.  The debt arose over three periods during which it was alleged that Mr Smith was in receipt of income-tested social security benefits while also in receipt of undeclared earnings income.  He was prosecuted in respect of these debts and was convicted and sentenced on 12 August 1999.  The court record does not show that Mr Smith was subjected to a reparation order.  However, contemporaneous notes by a Ms Gayler, who represented the Director of Public Prosecutions in the court prosecution, show that a reparation order for $19,326.19 was imposed which Mr Smith undertook to pay at $50 a fortnight.

2.      Mr Smith has attempted to resist repaying to the Secretary, Department of Family and Community Services (“the respondent”) the debt on several bases.  First, he has argued that there is no reparation order.  He seems to regard this as meaning that he does not have to repay the Secretary.  Second, he told me in his hearing at the Administrative Appeals Tribunal (“the tribunal”) on 23 April 2004 that he did not understand that he had been actually convicted of any offence.  Third, he has argued at other times, notably at the tribunal in Re Smith and Department of Family and Community Services [2001] AATA 281, that the reparation order was for only $19,000-odd yet the Secretary was seeking to recover over $26,000. In the 2001 tribunal matter Mr Smith did not succeed in avoiding repayment of the debt. This was the array of matters that have brought Mr Smith yet again to the tribunal.

3.      The tribunal heard Mr Smith a second time in Re Smith and Secretary, Department of Family and Community Services [2003] AATA 412. The tribunal in that decision ruled on several issues. Mr Smith there argued that in fact there had been no reparation order. The tribunal found that there was evidence of a reparation order that had not been recorded. It found that Mr Smith was not querying the accuracy of the Secretary’s calculations of the amounts owing. It found that the Secretary was not confined to a rate of recovery of the debts of only $25 a week as Mr Smith offered at court. The tribunal noted that Mr Smith had come into a legacy of some $85,000 and could have fully repaid the debt from that money with some funds left over. However, he had elected to spend that money in other ways.

ISSUES

4.      The Secretary sought a directions hearing in the present matter on the basis that Mr Smith was seeking to do no more than reopen matters already decided by the tribunal.  It was said he was not appealing against any new primary decision.  In fact, there have been new authorised review officer and Social Security Appeals Tribunal decisions to the effect that they have no jurisdiction as the matter has been decided finally by the tribunal.  The issues are:

(a)Did the tribunal decisions in 2001 and 2003 deal finally with the issues raised by Mr Smith?

(b)Is there any new issue raised for tribunal decision by Mr Smith in this current application?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL EXPLAINING THOSE FINDINGS

(a) Did the tribunal decisions in 2001 and 2003 deal finally with the issues raised by Mr Smith?

5. I find that the tribunal’s decisions in 2001 and 2003 did deal with the matters raised by Mr Smith in his current application. More particularly, both accepted that he was convicted in the criminal courts, both accepted that a social security debt due under s 1222A of the Social Security Act 1991 (“the Act”) is recoverable regardless of whether a court has recorded a conviction associated with the incurring of the debt, both regarded a reparation order as having been made and both did not see the existence of a reparation order as a precondition to the Secretary being able to recover money owed under the Act.

(b) Is there any new issue raised for tribunal decision by Mr Smith in this current application?

6.      There is no new issue raised as part of this application.  Mr Smith wrote to the tribunal registrar on 19 March 2004 requesting a hearing and explaining the matters he wished to raise.  These were the matters in [2] above. 

7.      There is authority for the proposition that issue estoppel does not apply in the tribunal and that relitigation of an issue is not necessarily foreclosed.  In House v Department of Defence (1996) 41 ALD 793 the Federal Court held that a tribunal decision does not create an issue estoppel preventing later decision-makers, armed with appropriate powers, from reviewing that decision unless the previous decision resolved all issues that are before the later decision-maker. However, in the case now before me there is nothing of relevance in the earlier tribunal decisions left open for a final decision.

8. Section 42A(4) of the Administrative Appeals Tribunal Act 1975 provides that the tribunal may dismiss an application for review where the applicant is unable to show within a time set by the tribunal that the decision is reviewable by the tribunal. Mr Smith has, unfortunately, not been able to show that the tribunal has jurisdiction in his case. I find that the tribunal lacks jurisdiction to entertain the current application for review.

DECISION

9.      The application for review is dismissed on the basis that the Administrative Appeals Tribunal has no jurisdiction to deal with the matter.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella
Senior Member

Signed:         .....................................................................................
  Associate

Date of hearing  23 April 2004
Date of decision  27 April 2004
Advocate for the applicant        Self-represented
Advocate for the respondent     Mr J Kenny, Centrelink Service Recovery Team