Sutcliffe and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 859
•15 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 859
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2918
GENERAL ADMINISTRATIVE DIVISION ) Re Mark Sutcliffe Applicant
And
Secretary, Department of Education, Employment and Workplace Relations
Respondent
DECISION
Tribunal Deputy President G. L. McDonald Date15 September 2008
PlaceMelbourne
Decision The application is dismissed under s 42B(1) of the Administrative Appeals Tribunal Act 1975.
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Deputy President
CATCHWORDS – SOCIAL SECURITY – applicant did not sign activity statements relying on the grounds of slavery and restraint of trade – applicant was partially successful at the Social Security Appeals Tribunal but wanted a judicial review – whether application was frivolous or vexatious – whether applicant’s case could succeed on grounds of slavery and restraint of trade – application dismissed.
Administrative Appeals Tribunal Act 1975 s 42B(1)
Social Security Act 1991 s 624(1)
REASONS FOR DECISION
25 September 2008 Deputy President G. L. McDonald
1. At a dismissal hearing set to determine whether or not the substantive application should be dismissed as being frivolous or vexatious the Tribunal gave an oral decision and brief reasons. The Tribunal undertook to issue written reasons. These are the reasons for that decision.
2. The applicant is seeking review of a decision of the Social Security Appeals Tribunal (the SSAT) dated 17 June 2008. In that decision the SSAT affirmed a decision of an authorised review officer of the respondent to set aside an eight week suspension non payment period originally imposed on the applicant on the grounds that he failed to participate in three Newstart participation commitments (s 624(1) of the Social Security Act 1991) (the Act). In fact the applicant had not signed any activity agreements on the three nominated occasions because he did not agree with the terms of the proposed agreement. The SSAT found that the applicant proposed his own wording for the agreements and this was not acceptable.[1]
[1] (para 3 of the SSAT reasons)
3. The authorised review officer set aside the original decision because Centrelink had not informed the applicant that he could be subject to an eight week suspension of his benefit if he failed to sign the proposed agreement. Accordingly the applicant received no suspension in the payment of his benefits.
4. The reason the applicant wishes to persist with his appeal to the Tribunal is to test the validity of the terms of the proposed agreement. There are two grounds on which he relies namely that the proposed agreement:
(i)is unlawful because it constitutes the crime of slavery, and
(ii)is not contractually enforceable because it is in restraint of trade (the applicant expressed this by saying that the proposed contract breached principles of laissez-faire).
5. The former ground was expressed in his written application to the Tribunal and the latter he expressed orally at a dismissal hearing. The applicant maintained that the SSAT had stated that his appeal was partially successful. This Tribunal could find no mention of such a conclusion in the SSAT reasons. What it seems the applicant was wanting to do before the SSAT and this Tribunal is to agitate that he has a reasonable excuse for not entering into the agreement based on the grounds set out above and that therefore no suspension period could be applied.
6. In the section requesting reasons in support of the application to this Tribunal the applicant stated that he wanted “a fair and competent judicial process to decide the important matters”. As the Tribunal explained to the applicant, both the SSAT and this Tribunal provide administrate 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.
7. The Tribunal adjourned the original date on which this case was listed to consider its dismissal in order to permit the applicant to consider other means by which he may have his grounds considered. He has not pursued that process. In addition to the Tribunal not existing to undertake judicial functions, the Tribunal considers that it would be a waste of public resources to permit his case to be argued before the Tribunal when he has the most which the Tribunal could, in any event, grant him. Indeed a potential disadvantage arises to him, because the Tribunal may, on a de novo hearing, decide that the eight week suspension is justified.
8. The applicant expressed some disquiet over his application being dismissed on the basis of it being frivolous or vexatious, they being the words appearing in s 42B of the Administrative Appeals Tribunal Act 1975. The applicant apparently felt that those words characterised the grounds of his application as being trivial, whereas he maintained their seriousness. As the Tribunal explained to him the words used in s 42B have the acknowledged meaning that the application has no basis for success. The Tribunal does not make decisions to dismiss applications lightly, the power is exercised cautiously. The general test to be applied has been enunciated in General Steel Industries Inc v Commissioner for Railways:
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".
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".[2]
[2] General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 per Barwick CJ at 128-129.
9. The Tribunal does not have jurisdiction to review the decision on the grounds the applicant put forward, namely the crime of slavery and the law of contract. Accordingly, the applicant’s case cannot possibly succeed on these grounds.
10. Additionally, as stated earlier, the applicant has succeeded by being granted all that the Tribunal could possibly give him and therefore the Tribunal cannot assist him further.
11. The application is dismissed under s 42B(1) of the Administrative Appeals Tribunal Act 1975.
I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President G. L. McDonaldSigned: .....................................................................................
Associate Grace HorzitskiDate of Hearing 15 September 2008
Date of Decision 15 September 2008
Date of Written Reasons 25 September 2008
Solicitor for the Applicant Self-representedSolicitor for the Respondent Mr Tim Noonan,
Centrelink Legal Services Branch
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