Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 811

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 811

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2008/0174

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MARGARET WICKE-FITZGERALD

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date12 September  2008

PlaceCanberra

Decision The Tribunal has jurisdiction to hear Mrs Wicke-Fitzgerald’s application.

..........[Signed]....................................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - initial application for review withdrawn and dismissed - request for reinstatement not proceeded with - application not dismissed in error - no reinstatement - fresh application for review of same decision – re-litigation- matter not dealt with on merits-– Tribunal has jurisdiction

Social Security (Administration) Act 1999

Administrative Appeals Tribunal Act 1975 ss 42A, 43.

Lower v Comcare [2002] FCA 1394.

Brehoi v Minister for Immigration and Multicultural Affairs (1999) FCA 772

Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 72 ALD 652

Re Nicholson and Secretary, Department of Social Security (1991) 21 ALD 537.

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353

Bogaards v McMahon (1988) 15 ALD 313

Re 4218 and Commissioner of Taxation [1988] ST86/801

Re Matsukop and Australian Postal Corporation (1995) 21 AAR 9.

Comcare v Grimes (1994) 50 FCR 60

Re Quinn and Australian Postal Commission (1992) 15 AAR 519)

Re Chae Sun Lee and Department of Immigration, Local Government and Ethnic Affairs [1990] 6350A

Re Head and Australian Telecommunications Corporation [1992] W91/216 and W92/107

REASONS FOR DECISION

12 September 2008 Mr S. Webb, Member         

1.      Margaret Wicke-Fitzgerald has made two applications to the Tribunal for review.  The first application was made on 13 January 2005[1] .On 19 January 2005 this application was withdrawn and purportedly dismissed by the Tribunal pursuant to subs 42A(1B) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). On 15 January 2008 Mrs Wicke-Fitzgerald made a second application to the Tribunal for review.

[1] Application number N 2005/53.

2.      The issue presently raised for determination is whether the Tribunal has jurisdiction to hear Mrs Wicke-Fitzgerald’s application.

3.      The background facts can be shortly stated.  On 13 January 2005 Mrs Wicke-Fitzgerald made application to the Tribunal[2] for review of a 7 December 2004 decision of the Social Security Appeals Tribunal.[3]. The SSAT decision affirmed the decision of a Centrelink authorised review officer to raise and recover an overpayment debt in the amount of $26,831.38 in relation to Parenting Allowance and Parenting Payment paid to Mrs Wicke-Fitzgerald in the period from 11 April 1996 to 29 May 2001. 

[2] Applicant’s documents filed on 28 July 2008.

[3] T 1 folio 6-21.

4.      Subsequently on 19 January 2005 Mrs Wicke-Fitzgerald wrote and informed the Tribunal that “I would like to withdraw my appeal”.  On 21 January 2005 the Tribunal wrote and informed Mrs Wicke-Fitzgerald that “Under section 42A(1B) of the AAT Act, the effect of the notification [of withdrawal of the application] is that the Tribunal has dismissed the application without proceeding to review the decision”.

5.      Curiously, on 14 March 2005, in a hand-written note, an officer of the Tribunal wrote to Mrs Wicke-Fitzgerald in the following terms:[4]

[4] Applicant’s documents filed with the Tribunal on 28 July 2008.

“The tribunal has received your letter dated 11 January, 2005 the letter doesn’t advise if you wish to request the tribunal to review the SSAT decision. You have 28 days from the date you received the SSAT decision – if its more than 28 days you need to apply for an extension of time. If you apply please include a copy of the SSAT decision.”

On 4 April 2005 Mrs Wicke-Fitzgerald replied in the following terms:[5]

[5] Applicant’s documents filed with the Tribunal on 28 July 2008.

“In response to your hand written note dated 14 March 2005.

I thought that everything was concluded, so I didn’t respond.

I have written a letter to Centrelink, stating what I will be doing to pay back.

…

I am getting a letter of expectance soon saying that they will accept my payment offer.

I am in half a mind to take this further, but I think that I will be wasting my time, which I don’t have much of.

I know I have made some mistakes in the past, but I think Centerlink have made more.

I would like the whole debt reviewed, my shareholders loan, at the end of the day when the business is sold and the company is dissolved will not be there anymore and will never be paid back.

So that is an asset that is NOT an asset really.

I anything further can be done about it would be good, because how will I ever be able to pay back $27,766.09.”

6.      It appears that no further action was taken in relation to Mrs Wicke-Fitzgerald’s application at that time.

7.      On 15 January 2008 the Tribunal received a fresh application from Mrs Wicke-Fitzgerald for review of the SSAT decision on 7 December 2004.[6]   Mrs Wicke-Fitzgerald gave the following reasons for her application:[7]

“My reason for a review, is at the time the Company Tasman Dental Castings Pty Ltd, had a shareholders loan of X dollars, the main part of that loan was derived from a life insurance to pay outstanding bills when my late husband passed away. I said at the time that, that loan would probably not be financially able to be paid back.

We are appealing the decision to repay payments made to us in the past on the grounds that we do not have the means to re-pay the payments to Centrelink.

“The Shareholders Loan” was absorbed in paying outstanding accounts when the business was sold, as is stated by the accompanying letter from the accountant. The reason given for the decision to have us repay the allowance was that the “SHAREHOLDERS LOAN” would be re-paid to us when the business was sold and as there were no funds left to do this it didn’t happen.

…”

[6] T1

[7] T 1 folio 3.

8.      The Tribunal informed the parties that Mrs Wicke-Fitzgerald’s application for review was out of time.  On 31 January 2008 the Respondent Secretary consented to Mrs Wicke-Fitzgerald being granted an extension of time in which to lodge her application.  This was subsequently granted by order of the Tribunal on 5 February 2008.

9.      On 31 March 2008 the Respondent Secretary informed the Tribunal that “a final decision has already been made by the AAT in relation to the SSAT decision that is the subject of the current proceedings…the AAT does not have jurisdiction to hear this matter”.

10.     A hearing was listed before me on 31 July 2008 to determine whether the Tribunal has jurisdiction to hear Mrs Wicke-Fitzgerald’s application.  However, Mrs Wicke-Fitzgerald requested vacation of the hearing.  On 23 July 2008 I heard the parties on that point in a telephone directions hearing and ordered, by agreement, that no vacation would be granted, written submissions were to be filed and the matter would be heard on the papers.  Written submissions were duly filed on 3 July 2008 by the Respondent Secretary. In submissions filed by Mrs Wicke-Fitzgerald on 28 July 2008, she stated:

“We would like our appeal reinstated on the grounds, that we feel the decision made on 7 December 2004 was incorrect. Now that the business is sold and the company has been de-registered and the “shareholders loan” “was not able to be reclaimed” because of lack of funds, which justifies our basis for the appeal and our arguments that the “Shareholders Loan” is a non-event, as time proved.

We discontinued the appeal due to the stress that it was causing, and were of the impression that we could continue the appeal at a further date.

…”

11.     As can be seen, Mrs Wicke-Fitzgerald is pressing for review of the SSAT decision she previously sought to challenge in 2005.  It is not controversial that her application in 2005 and her present application are for review of the same decision. Insofar as I comprehend Mrs Wicke-Fitzgerald’s case, she asserts that the Tribunal has jurisdiction to hear her present application or, alternatively, she is seeking reinstatement of her previous application.

12.     I will deal with each issue in turn.

reinstatement

13.     As Tamberlain J said in Lower v Comcare:[8]

“Generally, a withdrawal of an application or proceeding in whole or part will not affect a party's right to commence new proceedings against the same party based on the same complaint. On the other hand, an order dismissing a proceeding may give rise to a res judicata or issue estoppel.”

[8] [2002] FCA 1394 at [11].

14. The well settled principle that a withdrawal of a proceeding is not the same as the determination of a proceeding is conditioned, for present purposes, by the operation of subs 42A(1A) and (1B) of the AAT Act, in the following terms:

42A(1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.

(1B) If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.

15. On 19 January 2005 Mrs Wicke-Fitzgerald notified the Tribunal that she wanted to withdraw her application. She did not notify any intention to discontinue the application. Nevertheless, by operation of subs 42A(1B) her application is deemed to have been dismissed: the withdrawal of the application is to be treated as if it were a dismissal of the application.[9]. Thus, as of 19 January 2005 that application is taken to have been dismissed. 

[9] Lower v Comcare (supra) [at 20].

16. Once an application has been dismissed, or is deemed to be dismissed, the applicant may apply for reinstatement of the application. However, the reinstatement provisions at subs 42A(8), (9) and (10) only apply in certain circumstances (see Brehoi v Minister for Immigration and Multicultural Affairs;[10]  Goldie v Minister for Immigration and Multicultural and Indigenous Affairs.[11] Following the Full Court’s decision in Brehoi’s case subs 42A(8) concerns an application for reinstatement following dismissal as a result of failure to appear, pursuant to subs 42A(2), and imposing a 28 day time limit, and subs 42A(9) confers a discretion on the Tribunal to reinstate the application. Subs 42A(10) confers a discretion on the Tribunal to reinstate an application that has been dismissed in error. The word ‘error’ in subs 42A(10) is to be given a broad interpretation and is not limited to an administrative error of the Tribunal.[12]

[10] (1999) FCA 722 at [23]-[29].

[11] (2002) 72 ALD 652 at [23]-[36].

[12] Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [29].

17. In Mrs Wicke-Fitzgerald’s case subs 42A(8) is not applicable – her application was not dismissed pursuant to subs 42A(2).

18. Thus, the only discretion to reinstate her 2005 application is that conferred by subs 42A(10), which is essentially preconditioned by error. If there is no error, the Tribunal is functus officio.

19.     In Mrs Wicke-Fitzgerald’s case there is no administrative error.  However, Mrs Wicke-Fitzgerald asserts that she understood that by withdrawing her application she could “continue with the appeal” at a later time.  The letter she wrote to the Tribunal on 4 April 2005 indicates that she did not intend to continue the application at that stage – “I am in half a mind to take this further, but I think that I will be wasting my time”, but remained interested in having the SSAT decision reviewed – “I [sic – If] anything further can be done about it would be good”.  I do not accept that that letter is a request for reinstatement at that time.

20.     There is no evidence before me that Mrs Wicke-Fitzgerald was wrongly or badly advised about the effects of withdrawing her previous application.  There is no evidence that she sought advice or obtained advice from the Tribunal or from any other source prior to effecting the withdrawal.  It appears that Mrs Wicke-Fitzgerald decided to withdraw her application for reasons relating to stress.  There is no evidence that she experienced symptoms of a psychological nature or that her mental capacity to make the decision was in any way impaired.  In all likelihood she was simply unaware of the effect of withdrawing her application.  In her submission she expected that she would be able to challenge the SSAT decision in question at a later date.  However, by her own contemporaneous account on 4 April 2005, she “thought everything was concluded”.   On that basis, it appears that Mrs Wicke-Fitzgerald acted deliberately to discontinue her application and rested on her rights at that time.  Her expectation that she would be able to continue with her “appeal” against the decision in issue is not attended by error. 

21.     The fact that the Tribunal wrote to Mrs Wicke-Fitzgerald on 14 March 2005 concerning the subject of her application after the application had been withdrawn was plainly an error.  However, the Tribunal error occurred after the withdrawal and cannot be said to have caused the application to be dismissed in error.

22.     Acting to withdraw an application in an ill-informed or precipitate manner, ignorant of the effect of the withdrawal, does not mean that the application was dismissed in error.  Ignorance may lead to error.  It does not follow, however, that action taken in ignorance is action predicated on error.

23.     There are no grounds to reinstate Mrs Wicke-Fitzgerald’s 2005 application.

second application

24.     The next question is whether the Tribunal has jurisdiction to entertain her 2008 application.

25.     If, as in this case, an application has been dismissed and it has not been reinstated, the Tribunal’s power in relation to that application is spent; the Tribunal in those circumstances is functus officio. However, it does not follow that the Tribunal’s powers in relation to the decision under challenge are exhausted. Those powers are unlikely to have been spent unless there has been a review on the merits or a consent decision within the meaning of s43 of the AAT Act.[13] No such review or decision has occurred in this case.

[13] Re Nicholson and Secretary, Department of Social Security (1991) 21 ALD 537 at [544].

26.     Proceeding on the basis that Mrs Wicke-Fitzgerald’s letter is a fresh application, it is necessary to determine whether a cause of action estoppel is raised by res judicata.[14]  If so, the Tribunal has no jurisdiction to consider the application.  If not, and the application is out of time, it is necessary to consider whether it is appropriate to grant an extension of time.

[14] Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 at [313]- [314].

27. The dismissal of an application by operation of subs 42A(1B), without reviewing the merits of the subject decision, is to be distinguished from the disposal of an application under applicable sections of Division 3 or Division 6 of the AAT Act. In either such case the application is decided with finality, whether by consent or at hearing; the decision of the Tribunal can be said to have ‘passed into judgement’ and is concluded. In those circumstances it is doubtful whether the Tribunal has power to entertain further litigation of that same settled matter, on the basis of cause of action estoppel on res judicata[15] or even if there is power, whether the power would be exercised to permit any such relitigation.  There are numerous decisions of the Tribunal, relying on settled Federal Court and High Court authority, resisting such relitigation.[16] I see no reason to depart from those authorities in this case.

[15] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353; Bogaards v McMahon (1988) 15 ALD 313; Re Mulheron v Australian Telecommunications Corporation (supra) at [311]- [312]; Re 4218 and Commissioner of Taxation [1988] ST86/801 and 802 at [24]- [29].

[16] Re Matsukop and Australian Postal Corporation (1995) 21 AAR 9 at 20-21; Comcare v Grimes (1994) 50 FCR 60; ReQuinn v Australian Postal Commission (1992) 15 AAR 519.

28. That, however, is not the end of the matter. As can be seen, the dismissal of Mrs Wicke-Fitzgerald’s application did not involve any decision of the Tribunal; it was a technical matter that did not involve any consideration of the merits pursuant to subs 42A(1B). In such cases the jurisdiction of the Tribunal is not wanting and the fresh application may be entertained subject to considerations of time.[17]

[17] Re Chae Sun Lee and Department of Immigration, Local Government and Ethnic Affairs [1990] 6350A; Re Mulheron and Australian Telecommunications Corporation (supra); Re Head and Australian Telecommunications Corporation [1992] W91/216 and W92/107 at pp 8-11.

29. Carefully considering the changed circumstances that have given rise to Mrs Wicke-Fitzgerald’s application and the extensive authorities to which reference has been made, I am satisfied that the Tribunal has jurisdiction to receive her recent application and no cause of action estoppel arises. Simply put, Mrs Wicke-Fitzgerald’s 2005 application was not ‘heard’ and no decision was made under either Division 3 or Division 6 of the AAT Act. There is no res judicata.

30.     Mrs Wicke-Fitzgerald’s 2008 application was made out of time. As it appears that the Tribunal has granted an extension of time, by consent of the parties, there is no bar to that application proceeding in the usual course.

31.     It follows that the Respondent Secretaries submissions are rejected.  The application is to be listed for a preliminary conference before a conference registrar at the earliest convenient date.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member.

Signed: .....................................................
  Demelza-Rose Gale           
  Associate