[2013] AATA 954
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/6428
Re
Mohinder Singh
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 19 December 2013 Date of written reasons 15 January 2014 Place Melbourne 1. The Tribunal does not have jurisdiction to review the decision contained in paragraph 1 made by the Tribunal on 3 July 2006 in application V2006/314.
2. The application to discharge Direction No. 2 made by the Tribunal on 3 July 2006 in V2006/314 is dismissed.
..........................[sgd].............................................
Deputy President J W Constance
CATCHWORDS
PRACTICE AND PROCEDURE - jurisdiction - frivolous and vexatious application – rights of appeal exhausted – Tribunal has no power to review its own decisions – direction requiring applicant to seek leave is not discharged or varied - no jurisdiction - application dismissed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 42B, 44
REASONS FOR DECISION
Deputy President J W Constance
15 January 2014
On 19 December 2013 I decided to refuse an application by Mr Singh to set aside a decision of the Tribunal made on 3 July 2006 and to discharge a direction made the same day under section 42B of the Administrative Appeals tribunal Act 1975 (Cth).
At the request of Mr Singh I now provide the reasons for my decision in writing.
BACKGROUND
In April 2006 Mr Singh filed in the Tribunal an application (No. V 2006/314) to review a decision of the Social Security Appeals Tribunal.
On 3 July 2006, following a hearing of the application , the Tribunal made the following decision and direction:
(1)The application issued on 20 April 2006 to review a decision of the Social Security Appeals Tribunal made on 22 March 2006 is frivolous and vexatious and shall be dismissed.
(2)The applicant must not without leave of the Tribunal make any application with respect to recovery of sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999.
The application before me was filed on 6 December 2013. It sought a review of the Tribunal’s decision of 3 July 2006. In a detailed written submission dated 19 December 2013 Mr Singh stated, in part:
Therefore the proceeding V314/2006 in which the applicant alleged the fraud occurred, on the part of the Respondent, in the decision of the AAT in matter V580/2002, were neither frivolous nor vexatious as fraud is exempt from the re-litigation. Therefore the operation of section 42B of the AAT Act 1975 on my application V314/2006 was totally erroneous.
Thereby the erroneous and defective direction given by the AAT dated 3 July 2006 should be discharged under paragraph 3 of section 42B of the AAT Act 1975 and the AAT have the right to review its own decision under section 42A(10) of the Act 1975. Section 42A(10) states that: “If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of the party to the proceeding or on its own initiative, reinstate the [sic] and give such directions as appear to it to be appropriate in the circumstances.” Therefore, there is a basis to not discharge the direction [sic].
CONSIDERATION
This is the fourth application made by Mr Singh since August 2013 in which he has sought to have the Tribunal review its decision made 3 July 2006 to dismiss his application to review the decision of the Social Security Appeals Tribunal. In my written reasons given 17 December 2013 ( see [2013] AATA 987) I set out my reasons for deciding that the Tribunal does not have jurisdiction to review its own decision. My reasons for dismissing the present application to review this decision are unchanged from my earlier decision and I repeat them in the following three paragraphs.
In 2007 Mr Singh appealed to the Federal Court to review the decision of 3 July 2006. The Court varied the decision of the Tribunal by adding the words “to the Administrative Appeals Tribunal” after the words “the applicant must not without leave of the Tribunal make any application” and otherwise dismissed the appeal. An appeal to the Full Court of the Federal Court was dismissed.
Mr Singh then applied to the High Court of Australia for special leave to appeal the judgement of the Federal Court. On 15 May 2008 special leave was refused. The Court said, in part:
The applicant’s draft notice of appeal fails to raise any ground with respect to the decision of the Full Court. He does not identify a special leave question but returns to the alleged failure by the SSAT to review the decision of Centrelink refusing to review the decision of 4 November 1999. It is clear that the matters put forward by the applicant have been previously decided, and it was open to the AAT to dismiss the application summarily. The applicant has insufficient prospects of success in this Court to warrant a grant of special leave to appeal.
The power to set aside a decision of this Tribunal is conferred on the Federal Court of Australia by section 44 of the Administrative Appeals Tribunal Act 1975 (Cth). This section gives an applicant in the Tribunal a right of appeal on a question of law from any decision of the Tribunal in the proceeding lodged by him or her. Clearly Mr Singh has exhausted his rights of appeal. The Tribunal does not have the power to review its own decisions.
The reasons advanced by Mr Singh for discharging the direction contained in paragraph (2) of the Tribunal’s decision of 3 July 2006 were limited to his making allegations that the decision of the Social Security Appeals Tribunal was affected by fraud. He did not advance any reasons why the direction requiring him to obtain leave should be discharged or varied. Rather than providing a basis for discharging the direction, Mr Singh’s repeated applications seeking to have the Tribunal review its decision of 3 July 2006 re-enforces the need for such a direction.
CONCLUSION
The application made 6 December 2013 was dismissed as the Tribunal does not have jurisdiction to review the decision made by it on 3 July 2006 by which it dismissed the application by Mr Singh to review the decision of the Social Security Appeals Tribunal made 20 April 2006. Further there were no grounds established by Mr Singh to justify the Tribunal discharging or varying its direction under section 42B of the Administrative Appeals Tribunal Act made on 3 July 2006.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. ..........................[sgd]..............................................
Associate
Dated 15 January 2014
Date(s) of hearing 19 December 2013 Applicant In person
- AGLC
- Mohinder Singh and Secretary, Department of Social Services [2013] AATA 954
- Case
- [2013] AATA 954
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal were whether it had the jurisdiction to review its own decision, and if there were grounds to discharge a direction made in 2006 that Mr Singh must obtain leave from the Tribunal to make further applications regarding certain pensions. The Tribunal needed to determine if Mr Singh's arguments, particularly his allegations of fraud, provided a basis for discharging or varying the 2006 direction.
The Tribunal held that it does not have the jurisdiction to review its own decisions, a matter reserved for the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975. The Tribunal found that Mr Singh had exhausted his rights of appeal as his application to the High Court for special leave to appeal was refused. Furthermore, Mr Singh did not provide any valid reasons for discharging the direction requiring him to obtain leave. The Tribunal concluded that Mr Singh's repeated applications to review its earlier decision reinforced the necessity of the direction.
The application was dismissed as the Tribunal did not have jurisdiction to review its 2006 decision, and there were no grounds to discharge or vary the direction made under section 42B of the Administrative Appeals Tribunal Act 1975.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The application before me was filed on 6 December 2013. It sought a review of the Tribunal’s decision of 3 July 2006. In a detailed written submission dated 19 December 2013 Mr Singh stated, in part:Therefore the proceeding V314/2006 in which the applicant alleged the fraud occurred, on the part of the Respondent, in the decision of the AAT in matter V580/2002, were neither frivolous nor vexatious as fraud is exempt from the re-litigation. Therefore the operation of section 42B of the AAT Act 1975 on my application V314/2006 was totally erroneous.Thereby the erroneous and defective direction given by the AAT dated 3 July 2006 should be discharged under paragraph 3 of section 42B of the AAT Act 1975 and the AAT have the right to review its own decision under section 42A(10) of the Act 1975. Section 42A(10) states that: “If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of the party to the proceeding or on its own initiative, reinstate the [sic] and give such directions as appear to it to be appropriate in the circumstances.” Therefore, there is a basis to not discharge the direction [sic].CONSIDERATION This is the fourth application made by Mr Singh since August 2013 in which he has sought to have the Tribunal review its decision made 3 July 2006 to dismiss his application to review the decision of the Social Security Appeals Tribunal. In my written reasons given 17 December 2013 ( see [2013] AATA 987) I set out my reasons for deciding that the Tribunal does not have jurisdiction to review its own decision. My reasons for dismissing the present application to review this decision are unchanged from my earlier decision and I repeat them in the following three paragraphs. In 2007 Mr Singh appealed to the Federal Court to review the decision of 3 July 2006. The Court varied the decision of the Tribunal by adding the words “to the Administrative Appeals Tribunal” after the words “the applicant must not without leave of the Tribunal make any application” and otherwise dismissed the appeal. An appeal to the Full Court of the Federal Court was dismissed. Mr Singh then applied to the High Court of Australia for special leave to appeal the judgement of the Federal Court. On 15 May 2008 special leave was refused. The Court said, in part:The applicant’s draft notice of appeal fails to raise any ground with respect to the decision of the Full Court. He does not identify a special leave question but returns to the alleged failure by the SSAT to review the decision of Centrelink refusing to review the decision of 4 November 1999. It is clear that the matters put forward by the applicant have been previously decided, and it was open to the AAT to dismiss the application summarily. The applicant has insufficient prospects of success in this Court to warrant a grant of special leave to appeal. The power to set aside a decision of this Tribunal is conferred on the Federal Court of Australia by section 44 of the Administrative Appeals Tribunal Act 1975 (Cth). This section gives an applicant in the Tribunal a right of appeal on a question of law from any decision of the Tribunal in the proceeding lodged by him or her. Clearly Mr Singh has exhausted his rights of appeal. The Tribunal does not have the power to review its own decisions.