Social Security - claim for refund - applicant sought to withdraw first application and application was dismissed - applicant lodged second application - second application dismissed on grounds of lack of jurisdiction - applicant lodged third application for review - quaere whether application for review in second and third applications is in respect of same decision under consideration in first application - considered: whether, where an application for review of a decision has been dismissed under section 42A(1), it is open to the Tribunal to accept a fresh application for review in respect of that same decision - whether Tribunal functus officio - question of validity of dismissal of first application not considered - Tribunal functus officio as regards first application for review; Tribunal not functus officio as regards decision itself as powers of review had not yet been exercised, but it is functus officio regarding jurisdiction to accept application at all.

Administrative Appeals Tribunal Act 1975 - Sections 20, 21, 33, 34, 34(1), 34(2), 35, 37, 38, 40, 42A, 42A(1), 42A(2), 43

Veterans' Entitlements Act 1986

Social Security (Review of Decisions) Act 1988 - Paragraph 206(3)(d)

Administrative Decisions (Judicial Review) Act 1977

Re Eastman and Department of Treasury (Decision No.1731, 17 August, 1984)

Stevenson and Commonwealth of Australia (Decision No.3811, 5 October, 1987)

Storrie and Repatriation Commission (Decision No.4652, 30 September, 1988)

Re Taxation Appeals (Decision No.4218, 18 March, 1988)

Re Nolan and Minister for Immigration and Ethnic Affairs (Decision No.3557, 29 April, 1987)

Re Babiker and Minister for Immigration and Ethnic Affairs (Decision No.3745, 26 June, 1987)

Bailey v. Marinoff [1971] HCA 49; (1971) 125 CLR 529

Re Kretchmer and Repatriation Commission [1988] AATA 323; (1988) 16 ALD 206

Bogaards v. McMahon [1988] FCA 161; (1988) 80 ALR 342

FAI General Insurance Co Ltd and Ors v. Southern Cross

Corporation NL and Ors [1988] HCA 13; (1988) 77 ALR 411

Goodwin v. Southern Tablelands Finance Co Pty Ltd (unreported, 1968)

Gamser v. Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145

Hanna and Australian Postal Commission (unreported, 17 May, 1990)

Re Lombardo and Commonwealth of Australia (1985) 8 ALD 334

The Tribunal decides that it has no jurisdiction to accept the application dated 30 March, 1990 and seeking review of a decision of a delegate of the Department of Social Security dated 25 May, 1988.

Since 1980 when he was injured in a motor vehicle accident the applicant, Mr Ian Colin Nicholson has, at various times, been in receipt of a sickness benefit or an invalid pension. In November, 1984, he accepted an out of court settlement in respect of his injuries arising out of that accident. Of the total sum he received, some $32,853 was paid to the Department as reimbursement for the sickness benefit it had paid to Mr Nicholson from 1980 to 1984. A further $3,365.50 was repaid in respect of rehabilitation costs which it had incurred in respect of him. Mr Nicholson claimed that these monies should not have been paid to the Department and sought a refund. The Department refused to refund the monies and the Social Security Appeals Tribunal ("the SSAT"), to whom Mr Nicholson applied for review, recommended that the Department's decision be affirmed. The Department did so affirm its decision. Mr Nicholson has since applied to this Tribunal on three occasions for review of the decision relating to this matter.

2. For ease of reference, I have referred to the three applications which have been lodged by Mr Nicholson as the "first application" (i.e. that lodged on 27 March, 1987), the "second application" (i.e. that lodged on 9 June, 1988) and the "third application" (i.e. that lodged on 30 March, 1990 and the application with which I am concerned). The first application sought review of a decision dated 25 February, 1987 affirming an earlier decision

"of an officer made under the Social Security Act 1947,

which decision was reviewed by a Social Security Appeals

Tribunal, that the applicant was liable to refund $31,517.10

to the Department of Social Security."

On 2 March, 1988, a "direction pursuant to sub-section 42A(1) of the Administrative Appeals Tribunal Act 1975" was made in the following terms:

"Both parties to this application having consented, I

HEREBY DIRECT that the application be dismissed without

the Tribunal proceeding to review the decision to which it

relates."

"of a decision by the Department of Social Security on 25

May, 1988 to reaffirm a decision to refuse to refund monies

already paid to the Department."

"the Tribunal has no jurisdiction to receive this application

for review, the jurisdiction of the Tribunal in respect of the

decision to which the application relates having been

exhausted by an order dated 2nd March, 1988 validly

dismissing the matter pursuant to sub-section 42A(1)."

"decision by the Department of Social Security on 25th

May, 1988 to reaffirm a decision to refuse to refund monies

already paid to the Department."

That third application is the subject of these proceedings.

5. It follows that the first issue for consideration is whether the applications do in fact seek review of the same decision. If they do, only then does it become relevant to consider whether the Tribunal is functus officio in relation to the third application.

ARE THE APPLICATIONS SEEKING REVIEW OF THE SAME DECISION?

6. The first application sought review of a decision dated 25 February, 1987 whereas the second and third sought review of a decision dated 25 May, 1988. That later decision, however, affirmed the earlier decision dated 25 February, 1987. It seems to me that, applying the principles set out by the Tribunal in Re Gee and Director-General of Social Services (1980-81) 3 ALD 132 at 139, the decision under review pursuant to the second and third applications is in fact that earlier decision dated 25 February, 1987. The later affirmation of the earlier decision leaves that earlier decision in place. This conclusion accords with the position adopted by both Mrs Green and Mr Nicholson.

IS THE TRIBUNAL FUNCTUS OFFICIO IN RELATION TO THE THIRD APPLICATION?

7. The essence of Mr Nicholson's argument at the first hearing was that he had withdrawn his application and so there was nothing left in the Tribunal, as it were, in relation to which the Department could consent to a dismissal. He did not consent to the application's being dismissed. An order for dismissal, he argued, should not have been made. In this regard, he relied on the cases of Re Eastman and Department of Treasury (Decision No.1731, 17 August, 1984, Deputy President Thompson) and Stevenson and Commonwealth of Australia (Decision No. 3811, 5 October, 1987 Deputy President Thompson). Mr Nicholson later made written submissions elaborating his argument in detail.

8. Mr Nicholson argued that the dismissal order should never have been made in the first place. I do not wish to express any view on that one way or the other. However, I do make the following comments in relation to his argument. If he were correct and he did not consent to the dismissal but only to a withdrawal and if a dismissal order should not have been made on that basis, that does not make the dismissal order a nullity. It was made by a Tribunal constituted in accordance with the Act. If Mr Nicholson wishes to argue that the Tribunal exceeded its powers in dismissing the application, he may apply to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 for an order setting it aside. Unlike Kretchmer's case with which we deal later in this decision, it cannot be argued that the dismissal order is a nullity at the outset and so an application cannot be made to this Tribunal to set the order aside of its own motion as it were. I have given no consideration to whether the dismissal order was properly made pursuant to section 42A(1) and it would be inappropriate for me to do so.

9. On behalf of the Department, Mrs Green argued that the Tribunal was functus officio as dismissal pursuant to sub-section 42A(1) is final and the jurisdiction exhausted. She also argued that the Tribunal has no power to review its own decisions and referred to Eastman's case and Stevenson's case.

10. I have approached this matter by considering the law first largely in isolation from the facts of this case and then considering the facts in relation to that law. I think that it is important to proceed in this way so that it is clear why I have reached the conclusion that I have in relation to his third application. I have also taken some care in setting out the law in view of Mr Nicholson's long and careful submissions and also in view of his deep concern which was obvious at the hearings relating to the third application.

11. Both Eastman's case and Stevenson's case were concerned with the question whether an applicant has a right or otherwise to withdraw an application and the effect of any such purported withdrawal. In both cases the Tribunal concluded that "an applicant who has withdrawn his application can `come again, subject to obtaining an extension of time' under section 29(7) of the AAT Act, if such an extension is necessary, (Stevenson's case at paragraph 22 quoting also from Eastman's case). In Stevenson's case, Deputy President Thompson adopted the view that after withdrawal, there is no longer a subsisting application or an effective application (paragraph 21). Although the application of the Veterans' Entitlements Act 1986 led to a different conclusion on the facts of the particular case, similar principles were adopted by Deputy President Layton in Storrie and Repatriation Commission (Decision No. 4652, 30 September, 1988).

12. It seems to me that there is a distinction between an applicant's withdrawing his or her application and the Tribunal's dismissing his or her application. The effect of a dismissal order has been considered by the Tribunal in several cases including Re Taxation Appeals (Decision No.4218, 18 March, 1988, Deputy President Layton), to which the respondent referred and Re Nolan and Minister for Immigration and Ethnic Affairs (Decision No. 3557, 29 April, 1987) and Re Babiker and Minister for Immigration and Ethnic Affairs (Decision No. 3745, 26 June, 1987) both of which were heard by Deputy President Thompson. All cases concerned an application which had been dismissed pursuant to sub-section 42A(2) on the basis that the applicant, had failed to appear at a conference conducted pursuant to section 34 or, in the case of Re Taxation Appeals, at a directions hearing. In Nolan's case, Deputy President Thompson concluded at paragraph 3 of his decision:

"that, where an application to review a decision has been

dismissed under section 42A of the AAT Act, the

Administrative Appeals Tribunal has power to extend time

for a fresh application to be made to it for review of that

decision. Section 42A provides simply for the dismissal of

an application. Such dismissal results in the termination of

the proceedings on the application; consequently the

decision of which review was sought remains unchanged.

But no decision is made to affirm the decision under review,

as may be made after the hearing of the application for

review."

13. Deputy President Thompson adopted the same approach in Babiker's case. Neither of these cases, nor those referred to in the following paragraphs, was referred to by the parties but their attention was drawn to them after the first hearing and they were given an opportunity to make submissions on them at the second hearing. Mr Nicholson adopted the approach taken in Nolan's case and Babiker's case. Mrs Green relied upon the decision in Re Taxation Appeals and said that the approach it adopted be preferred to that adopted in the other cases on the basis that the issue had been more fully argued in that case and that it had been decided after the others. She also distinguished Nolan and Babiker on the basis that they concerned cases decided under the Migration Act and not the Social Security Act and that the Tribunal's jurisdiction in relation to the deportation decisions under review could be recommendatory only.

14. I cannot accept Mrs Green's last submission at face value. In both cases, Deputy President Thompson was concerned with the interpretation of the provisions of the Administrative Appeals Tribunal Act. In the absence of any provisions to the contrary in the Migration Act (and there were none) his statements of principle are not affected by the fact that the Tribunal's jurisdiction in relation to a deportation decision is limited to making a recommendation.

15. In Re Taxation Appeals Deputy President Layton considered the issue in the context of whether an application that had been dismissed could be "reinstated". She took a contrary view from Deputy President Thompson. She referred to the passage from Barwick J's judgement in Bailey v. Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530-537 reproduced in paragraph 20 of these reasons and to a passage from that of Walsh J when he made similar observations at page 535. She concluded

"24. If a court of superior jurisdiction does not have

inherent jurisdiction to review orders or judgements which

have been perfected, then I cannot see how this Tribunal

could be imbued with such inherent jurisdiction.

29. In addition, there is no doubt that a dismissal of an

action at common law must be an end to that action unless

there is power to set aside such a judgement (as exists in

various Supreme Court and Local Court Acts). Such a

statutory provision does not exist in the Administrative

Appeals Tribunal Act (supra) and, in the absence of such

provision, there is no power to set aside a dismissal. An

order for dismissal, therefore, is in contrast to the specific

provisions which allow the varying or revoking of an order

as contained in sub-s.41(3) of the Act and also the varying or

revoking of a direction made pursuant to sub-s.33(3).

30. In these circumstances, I find that this Tribunal

has no jurisdiction to entertain any application for

reinstatement of the matters by either varying or setting

aside the dismissal orders made on 16 December 1987."

16. During the course of the directions hearing, the parties were also referred by the Tribunal to the case of Re Kretchmer and Repatriation Commission [1988] AATA 323; (1988) 16 ALD 206 (Hartigan J, President, Deputy President Bannon QC and Mr McMahon, then Senior Member). That case concerned an application which had been dismissed by a Tribunal pursuant to section 42A, for non appearance at a conference. The Tribunal, however, was not properly constituted to dismiss an application as no direction had been given under section 20 of the AAT Act 1975 and it was not constituted by a presidential member or senior member authorised under section 21. The Tribunal concluded that the error in the constitution made the decision a nullity and no court was required to establish its invalidity. Consequently, the matter could be re-listed and the Tribunal noted that the parties consented to this course of action.

17. In reaching that conclusion, the Tribunal did preach a note of caution when it said at page 212:

"... a person aggrieved by such a decision would, as a matter

of prudence, normally be advised to seek judicial review of

such a decision and have it declared a nullity. Here,

however, we are confronted with a fairly novel situation.

The Tribunal, as reconstituted, itself recognises the voidness

of its original decision and is prepared to treat it as a nullity.

The parties to the proceeding are both agreeable to that

course being taken. The respondent, by its counsel Mr

Vivekananda, agrees if the Tribunal comes to the opinion

that the order for dismissal was made by a Tribunal not

properly constituted under s21A of the Act, that the matter

should be relisted despite the void order made by the

member. That being the case there seems nothing standing

in the Tribunal's way to relist the matter. This is not a case

where the rights of third parties are involved. It also appears

to be an unnecessary expense and inconvenience to the

parties to suggest that in this case the question of voidness

be the subject of curial proceedings at this stage. In the

circumstances of this case, we consider that we are able to

take an exceptional course. We are mindful that consent

cannot give rise to jurisdiction. But in this case, which is a

clear case of the order being made by a Tribunal not

lawfully constituted according to the specific requirements

of the Act, and where the parties offer no objection to the

relisting of the case, should the Tribunal consider that the

order was made by a wrongly constituted Tribunal, we are

prepared to give directions to relist this matter for hearing ...

."

18. The Tribunal in Kretchmer's case also referred to a judgement of Pincus J in Bogaards v. McMahon [1988] FCA 161; (1988) 80 ALR 342 which decided that the Tribunal did not have jurisdiction to review a determination which had been made strictly in accordance with orders which it had earlier made. Those orders had been made by consent. It is not clear from his judgement, but it may be that the consent orders had been made by the Tribunal pursuant to its powers under section 34(2) to make a decision in accordance with a consent agreement lodged with the Tribunal. He dealt with them on the basis that they had been made pursuant to the Tribunal's powers to review decisions within the meaning of section 43 of the Act. Pincus J said that the Tribunal cannot review that determination as it has already dealt with that precise dispute (page 351). In the course of his judgement, Pincus J noted that the Tribunal had said in the decision which he was considering, that consent orders could, if ultra vires, be set aside by the Tribunal itself. He did not comment on that but said that even assuming it to be so, there was no question of the orders being ultra vires in the case before him.

19. After the decision in Kretchmer's case was handed down, the High Court's judgement in FAI General Insurance Co Ltd and Ors v. Southern Cross Corporation NL and Ors [1988] HCA 13; (1988) 77 ALR 411 was delivered. The High Court considered whether a court, which had made an order dismissing an application unless certain conditions had been fulfilled by a certain date, had the power to extend the time within which those steps could be taken. The Rules of the Supreme Court provided that time could be extended whether or not an application for extension is made before the time expires. The Court decided the issue in the light of that Rule and did not need to consider the power of a court to re-open a case where such a rule did not exist. On the basis that no such Rule of Court was relevant in the proceedings before the High Court on earlier occasions, the High Court distinguished the case before it from those earlier cases in which it had decided that a case could not be re-opened once an order had been made (Bailey v. Marinoff [1971] HCA 49; (1971) 125 CLR 529, Goodwin v. Southern Tablelands Finance Co Pty Ltd, unreported, 1968 and Gamser v. Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145). The High Court's approach in the words of Menzies J in Bailey's case at page 531-2 had been:

"This appeal is not concerned with the power of a court to

alter orders in pending litigation. It is concerned with the

power of a court to make an order in litigation which,

without any error or lack of jurisdiction, has been regularly

concluded and is no longer before the court. To recognise

the problem is, I think, to solve it. However wide the

inherent jurisdiction of a court may be to vary orders which

have been made, it cannot, in my opinion, extend (to) the

making of orders in litigation that has been brought regularly

to an end."

20. The words of Barwick CJ are also relevant when he said at page 530-531:

"Once an order disposing of a proceeding has been

perfected by being drawn up as the record of a court, that

proceeding apart from any specific and relevant statutory

provision is at an end in that court and is in its substance, in

my opinion, beyond recall by that court. It would, in my

opinion, not promote the due administration of the law or the

promotion of justice for a court to have a power to reinstate

a proceeding of which it has finally disposed. In my opinion,

none of the decided cases lend support to the view that the

Supreme Court in this case had any inherent power or

jurisdiction to make the order it did make, its earlier order

dismissing the appeal having been perfected by the

processes of the Court. I would add that, however hard the

case might seem for the would be appellant the loss of its

right of appeal derived from its own conduct or from that of

persons for whom it must take responsibility. The finality of

the order dismissing the appeal does not seem to me to

partake of injustice in the circumstances or to call for any

departure from well settled principles, themselves essential

in my opinion to the due administration of our system of

law."

21. It is also relevant to note that the Rules of Court considered by the High Court in the FAI case also specifically provided that an order for dismissal does not, subject to any terms or conditions on which the order for dismissal was made, prevent the plaintiff or claimant from bringing fresh proceedings or claiming the same relief in fresh proceedings.

22. None of these cases deals specifically with a case in which an application has been dismissed by consent in a tribunal, as opposed to a court. I have been unable to find any authority which does so. The cases of Nolan and Babiker considered by Deputy President Thompson both concerned applications dismissed for non-appearance of the applicant at a conference.

23. The powers of the Tribunal are found in the AAT Act and it has no inherent jurisdiction from which it can be said to draw its powers. Consequently, I turn to the provisions of that Act. The Act sets out the Tribunal's powers and procedures quite comprehensively. So the Act deals with the Tribunal's powers to adjourn proceedings, to take evidence and to proceed in the absence of a party who has had reasonable notice (section 40), and to conduct conferences (section 34) and to give directions (section 33). Others deal with other matters such as the Tribunal's procedures (section 33), the conduct of hearings (section 35), the lodgement of documents (section 37) and the Tribunal's powers to obtain additional statements (section 38).

24. In relation to what could be described as the "finalisation" of a matter, the Act expressly contemplates that this may come about in three ways. The first is provided for in sub-section 34(2) which provides that where a conference has been held pursuant to sub-section 34(1), the parties have reached agreement and have lodged that written agreement with the Tribunal and, finally, that the Tribunal is satisfied that a decision in those terms would be within its powers, the Tribunal may make a decision in accordance with those terms. The second is found in section 43. That provides that, for the purpose of reviewing a decision, the Tribunal may exercise the powers of the decision-maker and may affirm or vary the decision under review or may set aside the decision. If it decides to set it aside, it may either substitute its own decision or remit the matter for reconsideration in accordance with any directions it might make. The third is found in section 42A which provides that an application may be dismissed either for non appearance at a conference or the hearing of a proceeding (sub-section 42A(2)) or pursuant to sub-section 42A(1) which provides:

"Where all parties to an application before the Tribunal for a

review of a decision consent, the Tribunal may dismiss the

application without proceeding to review the decision or, if

the Tribunal has commenced to review the decision, without

completing the review."

As withdrawal is not expressly mentioned in the Act I have not dealt with it as a fourth category. I observe, however, that since the amendments to the Social Security Act 1947 were made by the Social Security (Review of Decisions) Act 1988 and came into force on 1 November, 1988, an applicant may withdraw his or her application in the social security jurisdiction (paragraph 206(3)(d)). In that jurisdiction, at least, there is no need to rely on either Eastman's case or Stevenson's case for authority (see paragraph 11 above).

25. Unlike the Supreme Court Rules considered in the FAI case, the Act does not contain any provision that an order for dismissal, a decision entered by consent or a decision made after a review has been held does not prevent the applicant bringing fresh proceedings. It is silent on the subject. The authorities themselves are not silent on the point. In Bogaards v. McMahon, Pincus J, by whose judgement I am bound, decided that the Tribunal could not review a matter expressly determined by its previous decisions. He reached that conclusion on the basis that those previous decisions had been made as a result of consent orders made pursuant to the Tribunal's powers under section 43. Consequently, it is settled by Bogaard's case that when the Tribunal deals directly with a decision under review by exercising its powers under section 43, it is functus officio. This view has also been adopted by Davies J in Hanna and Australian Postal Commission (unreported, 17 May, 1990, Judgement No.196/90). It is arguable that this is also applicable to decisions made in accordance with sub-section 34(2).

26. Bogaard's case does not deal with an order made under section 42A(1) and I do not consider that it is applicable in its terms to such an order. Section 43 deals with the Tribunal's powers "for the purpose of reviewing a decision". Sub-section 34(2) deals with the Tribunal's power to make a decision in certain circumstances where the parties agree on what the terms of that decision should be. The Tribunal must be satisfied that it is within its powers and these powers would include its powers under section 43 for the purpose of reviewing a decision. There is a distinction then between the provisions in sections 34 and 43 which deal with the power of the Tribunal to make decisions and, directly or indirectly, to exercise powers of review and sub-section 42A(1) which specifically provides that the Tribunal may dismiss an application "without proceeding to review the decision" or if it has commenced to do so, without completing that review. If an order is made under section 42A(1) it may be that the Tribunal has never exercised its powers of review pursuant to section 43.

27. It follows that I would draw a distinction between the Tribunal's powers to deal with an application under section 42A(1) and those under section 43. It may dismiss an application without ever exercising its powers to review the decision in respect of which the application was brought in the first place. In considering whether to dismiss an application, it may follow from cases such as Re Lombardo and Commonwealth of Australia (1985) 8 ALD 334 (Davies J, President, Mr Brewer and Dr Sutherland, Members) that the Tribunal is not bound to accept the parties' agreement to dismiss the application but that does not alter the conclusion that the Tribunal may dismiss the application without ever starting the review at all. So the Tribunal's powers in respect to sections 42A and 43 relate to two different matters; the first to the application and the second to the review of the decision. In reaching this conclusion I am in agreement with Deputy President Thompson's decisions in Nolan's case and Babiker's case.

28. It follows that the Tribunal may have exercised all of its powers in relation to a particular application when it dismisses it but it does not follow that it has exercised all of its powers in relation to the review of a decision. It follows that the applicant may bring a fresh application to review that decision. There is some weight added to this view by the fact that there is no condition or limitation placed on the power given to the Tribunal under section 43 to review a decision i.e. it is not limited to review of decisions in relation to which no application has previously been made. In adopting this view I am mindful of the words of Gaudron J in the FAI case where she said at page 422:

"Where a power or discretion is conferred upon a court it is

inappropriate that such power or discretion be treated as

subject to limitations not contained in the grant of that power

or discretion. The position was put, in relation to statutory

discretion, by Earl Loreburn LC in Hyman v. Rose (1912)

AC 623 at 631 in these words: `It is one thing to decide

what is the true meaning of the language contained in an Act

of Parliament. It is quite a different thing to place conditions

upon a free discretion entrusted by statute to the court

where the conditions are not based upon statutory enactment

at all'."

29. Against this interpretation, it may be said that the administration of justice is prolonged. Whether or not that is so is a matter for the Parliament. I would observe that this interpretation does not give carte blanch to any applicant whose application has been dismissed to bring an endless line of fresh applications. Once the original application has been dismissed, his subsequent applications will usually be out of time. He will need to seek an extension of time and make out a case for such an extension.

30. It is apparent from the file and from the order made dismissing the first application that the Tribunal had not commenced to review the merits of the decision i.e. that Mr Nicholson not be reimbursed certain monies which he had been paid from the settlement of his court action for damages. The Tribunal had only engaged in preliminary matters such as conferences. Applying the law as I have found it to this situation, the Tribunal is functus officio in relation to that first application in so far as it could not, for example, reinstate that application once it had been dismissed. At that stage, however, it was not functus officio in relation to the review of the decision as it had not commenced the review on the merits.

31. That brings me to the second application in relation to which a direction has been given that the Tribunal had no jurisdiction to entertain it. The grounds for that conclusion were that the Tribunal's jurisdiction had been exhausted by the earlier decision. Whether or not that conclusion was correct is not a matter which I have considered. Nor is it appropriate for me to do so for, as Mrs Green correctly observed, one Tribunal cannot review the decisions of another. However, I have had to consider the effect of that decision in order to determine whether the Tribunal is functus officio.

32. As the order made in the second application stated that "the Tribunal has no jurisdiction to receive" the application, I have considered whether I should draw a distinction between Mr Nicholson's second and third applications on the basis that, the Tribunal has decided that it had no jurisdiction to receive the second application at all but that I am dealing with his third application which has actually been "lodged" within the meaning of section 29. The term "lodge" has been considered by the Full Court of the Federal Court in Angus Fire Armour Australia Pty Ltd v. Collector of Customs [1988] FCA 339; (1988) 9 AAR 421 (Sweeney and Northrop JJ, Jenkinson J dissenting). At pages 432-3, Northrop J said

"The word "lodge", when used as a verb, has a number of

meanings. In the Shorter Oxford English Dictionary the

relevant meaning is "a. To place, deposit". A number of

examples are set out including: "To put and leave in a place

of custody or security 1666. To lodge money in the hands

of a banker 1882. b. To deposit in court or with an official a

formal statement of (an information, complaint, objection,

etc)." Thus, in s68 of the Act, the word "lodged" is used in

the sense of placing or depositing a document at the office

of the Registry or a Deputy Registrar. It appears to be the

practice of the Tribunal to allow this to be done by post.

Whether the lodging is done by post or by depositing the

document at the office, a concept of acceptance is required

in a sense similar to that required with respect to the

presentation of a document. There must be a physical

acceptance of the document by an officer of the Registry.

Thus, if an application is posted but not delivered to a

Registry, the application is not lodged. In all probability, it is

lodged when it is received at the office of the Registry.

Similarly, a document deposited on a counter at the office of

a Registry may not be lodged, but if taken by an officer, or

in other words received by that officer, it is accepted for the

purpose of lodging. Regulation 9(1) of the regulations is

consistent with this construction. In that regulation the

words "lodged or received" seem to be used in the sense of

deposited and accepted.

As in Purden, a difference exists between the Act and the

regulations. An application to the Tribunal is made by the

lodging of an application. Under reg19(1) a fee is payable

on the lodging with the Tribunal of applications made under

certain enactments. Once an application has been lodged

with the Tribunal in the sense that it has been received by

an officer of a Registry, officers are required to determine

whether the application is in the prescribed form and

whether a fee is to be paid. If all is in order, internal

procedures apply, for example an identifying number is

given to the application, and under s29(11) of the Act, the

relevant officer is required to give notice in writing of the

application to the person who made the decision. The

procedures required for the determination of the application

for review are thus set in motion. If the officer decides that

the application is not in proper form or if the required fee

has not been lodged, he is not required to set in motion the

procedures just described. The second passage quoted from

Purden, with necessary adaptations, has equal application to

the facts of this case."

33. Taking into account the decision in the Angus Armour case it seems to me that a distinction on the grounds I have considered in the preceding paragraph would be fallacious in fact although not necessarily on the face of it. Both the second and third applications were received by the Tribunal, acknowledged and a 29(11) letter sent to the Department pursuant to sub-section 29(11) and the Department requested to send material pursuant to section 37.

34. I have also considered whether the order was effectively stating that the first application could not be reinstated. In considering the matter I have taken into account the following passages from the reasons given for making the decision on the second application

"Subsequent to that (the dismissal) the applicant, Mr

Nicholson, has sought in effect to have the matter reinstated.

He did this by lodging personally a further application for

review of the original decision. The respondent argues that

the Tribunal has no jurisdiction to entertain this subsequent

application. The matter has been the subject of argument

and submissions both personally and in writing. It is my

view that the submissions of the respondent that the Tribunal

is without jurisdiction are correct.

If an unsuccessful applicant were to seek a second chance

by seeking to lodge a fresh application and by hoping to

secure an extension of time within which to lodge it, clearly

the Tribunal could not entertain that application for

extension of time. (paragraph 13)

The Tribunal has no jurisdiction to review the decision upon

the application received on the 9th June 1988 which is thus

a nullity. (paragraph 18)

What is involved is a fundamental question of statutory

interpretation. The Tribunal has only those powers which

are expressly conferred upon it and when its powers have

been exhausted in respect of a particular decision, then the

matter is at an end." (paragraph 19)

35. Taking the decision and these passages in particular into account together with the terms of the direction, it seems to me that the Tribunal has considered whether an application can be made to review the decision. It decided on the second application that it had no jurisdiction to do so. It seems to me that it follows that the Tribunal is functus officio on that point. Had it been decided on the second application that, for example, the first application could not be reinstated then the third application could still have been brought. The Tribunal would only have been functus officio in relation to the issue of reinstatement. The direction on the second application, however, was far more wide ranging and cannot be limited simply to reinstatement or to the lodgement of the second application itself. It is expressed in far more wide reaching terms.

36. In view of the law as I understand it to be, I feel that this is a most unfortunate result for Mr Nicholson who still has not been able to have the merits of the decision reviewed. I can see no way around what I regard as a contrary result i.e. that the Tribunal is functus officio in relation to the question of whether it has jurisdiction to receive an application even though it has not exercised its powers to review the decision. I must, however, follow the law even though I would wish to find otherwise.

37. Having reached this conclusion, there are two general matters on which I wish to comment. Mr Nicholson submitted at the hearing that his first application should not have been dismissed. I have not dealt with that argument as it is not appropriate for me to do so. I have been concerned only with what has been done and not with whether it should have been done. If Mr Nicholson is unhappy with that first decision, he could consider his rights both under the Administrative Decisions (Judicial Review) Act 1977.

38. The second general comment concerns certain steps which were taken by the Department during these proceedings. A directions hearing was convened on 23 May, 1990 in order to determine whether the third application was seeking review of the same decisions as the earlier applications and whether it could be lodged. At that directions hearing, both Mr Nicholson and Mrs Green made submissions. At my instigation a further directions hearing was held on 26 June to consider any submissions which they wished to make regarding additional cases to which no reference had been made at the earlier hearing but to which I intended to make reference.

39. After the first hearing but before the second, the Department reviewed its decision and, by letter dated 18 June, 1990 notified Mr Nicholson that

"I refer to your recent application to the Administrative

Appeals Tribunal for review of a decision to recover

$29,488.24 sickness benefit paid to you. As you are aware

the AAT has previously found that it no longer has

jurisdiction to hear this matter. Nevertheless this does not

prevent the Department from reviewing the decision under

section 172 of the Social Security Act. Such a review has

been conducted in the past but only in terms of your

application to have part of your settlement disregarded

because of what you considered to be the special

circumstances of your case. That review confirmed the

original decision.

As delegate of the Secretary I have now reviewed the

original calculation of the Department's charge and have

varied the original decision.

The amount of the settlement you received included

$32,853.54 for loss of income. Apportioning that amount

over the remainder of your working life from the date of the

accident gives a figure of $34.69 per week. As you were

paid sickness benefit for 239 weeks the amount recoverable

is $34.69 x 239, a total of $8290.91. The Department

originally recovered from you $29,488.24 sickness benefit

(there was also $3,365.30 rehabilitation costs recovered).

Of that $1,336.44 was repaid to you following the grant of

invalid pension. As the Department's charge has now been

reduced to $8290.91 there is $19,860.89 to be refunded and

payment will be arranged as soon as possible.

This decision does not dispose of your current application to

the AAT and you should notify the AAT of your intentions

in regard to that application."

The letter then went on to advise Mr Nicholson that he had a right to appeal to the Social Security Appeals Tribunal.

40. When the hearing resumed, Mr Nicholson indicated that he wished to proceed with his application in any event. He was particularly concerned that special circumstances should be taken into account. Mrs Green argued that the decision now under review is that dated 18 June, 1990 and it is in respect of that decision that Mr Nicholson may now seek review. In order to do so, she submitted, he would now have to apply to the Social Security Appeals Tribunal ("the SSAT") before returning to this Tribunal. For reasons which I have set out above, she submitted that the Tribunal is functus officio in relation to the decision of the Department on 25 May, 1988. By extrapolating her argument, it followed that she submitted that the decision of 18 June, 1990 was not the decision for review by virtue of section 206 of the Social Security Act 1947 ("the Act").

41. In my view, the decision of 18 June, 1990 does not alter the matter which is before me for consideration i.e. whether Mr Nicholson might lodge his application dated 30 March, 1990 when his two earlier applications had been lodged and dismissed. If it were found that he could lodge that application, his course of action would have been that stated by Mrs Green. If he might lodge it, section 206 of the Act provides that the decision under review would become the new decision (i.e. 18 June, 1990) which has been substituted for the old.

42. Some aspects of the review and the Department's subsequent correspondence with Mr Nicholson have caused me some concern. It is quite proper for the Department to conduct a review at anytime, even if an application has been made to this Tribunal (sub-section 172(2) of the Act). This is what happened in Mr Nicholson's case and it has benefited him considerably. I am concerned, however, with the terms in which Mr Nicholson was advised. While noting that the decision on review did not dispose of his current application, the letter dated 18 June, 1990 took no account of the fact that, if Mr Nicholson were successful in his current application, that decision would be substituted for the original decision by virtue of section 206. It expressly gave Mr Nicholson the impression that he had to start all over again. That has been the conclusion I have in fact reached but, for the Department to so advise an applicant while proceedings were on foot in this Tribunal causes me considerable disquiet.

43. Nor was that disquiet alleviated by the letter which the Department wrote to Mr Nicholson on 19 June, 1990 and which said

"Following the settlement of your damages claim, an amount

of $32,853.54 representing Sickness Benefit and

Rehabilitation charges was refunded to this Department. An

amount of $1336.44 was subsequently refunded to you.

The Administrative Appeals Tribunal has requested that a

further refund of $19,860.89 be processed and a cheque will

be forwarded to you shortly."

This letter was written between the first and second hearings regarding the third application. The Tribunal has made no "request" at all, let alone a request that a refund be processed.

44. I do not consider that the issue in these proceedings has been easily determined. Mr Nicholson has, to date, well represented himself. While I would not wish to presume to give him advice, he may, if he wishes to pursue this matter further, care to seek legal advice.

45. I have decided that the Tribunal does not have jurisdiction to accept the application of Mr Nicholson dated 30 March, 1990.