FEDERAL COURT OF AUSTRALIA Kulik v Administrative Appeals Tribunal [2009] FCA 716 VITALY KULIK v ADMINISTRATIVE APPEALS TRIBUNAL and CENTRELINK ACD 40 of 2008 RARES J 29 JUNE 2009 SYDNEY (VIA VIDEOLINK TO CANBERRA) IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 40 of 2008 BETWEEN: VITALY KULIK Applicant AND: ADMINISTRATIVE APPEALS TRIBUNAL First Respondent CENTRELINK Second Respondent JUDGE: RARES J DATE OF ORDER: 29 JUNE 2009 WHERE MADE: SYDNEY (VIA VIDEOLINK TO CANBERRA) THE COURT ORDERS THAT: 1. The applicants file and serve on or before 13 July 2009 an affidavit that annexes a copy of each decision by the second respondent that he contends was the subject of his three applications to the Administrative Appeals Tribunal referred in paragraph 1 of his notice of appeal filed in the court on 5 November 2008 being described as AAT ref 2007/2359, 2007/3676 and 2008/4063. 2. The applicant file and serve on or before 15 July 2009 an affidavit of service deposing to his service on the solicitor for the second respondent of the affidavit required by Order 1. 3. In default of compliance with Order 1: (a) the application will stand dismissed; (b) the applicant pay the second respondent's costs; 4. If Order 1 is complied with the proceedings stand over for directions on 3 August 2009 at 9.15 am. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 40 of 2008 BETWEEN: VITALY KULIK Applicant AND: ADMINISTRATIVE APPEALS TRIBUNAL First Respondent CENTRELINK Second Respondent JUDGE: RARES J DATE: 29 JUNE 2009 PLACE: SYDNEY (VIA VIDEOLINK TO CANBERRA) REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This application has been in the directions list for some time. Mr Vitaly Kulik commenced these proceedings by filing an application on 5 November 2008. He claimed that questions of law were raised by his appeal from the Administrative Appeals Tribunal. On 8 October 2008 the tribunal had concluded pursuant to s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth), that it did not have the power to review three decisions in respect of applications Mr Kulik had made to it. 2 Mr Kulik's notice of appeal in this Court asserted "questions of law" as being, first, whether the tribunal had power to review the decisions and, secondly, wether it had the power to review Centrelink's decisions because of s 25 of the Administrative Appeals Tribunal Act. The grounds of appeal were that s 25 of the Administrative Appeals Tribunal Act gave the tribunal "the power to control Centrelink and their decision". The findings of fact sought in the notice of appeal were: "Falsification of data by Centrelink computer in the FAX of Centrelink to AAT." The notice of appeal is, to my understanding, unintelligible. 3 The matter has come before the Court for directions on a number of occasions and on 26 March 2009, it came before me. On that occasion, I directed Mr Kulik to file any affidavit upon which he proposed to rely on or before 9 April 2009. I directed the second respondent to file and serve all affidavits upon which it proposed to rely together with its written submissions on or before 22 April 2009, and stood the matter over before Stone J for directions on 24 April 2009. 4 Mr Kulik did not file any evidence in support of his application. However, Centrelink, filed an extensive affidavit of Catherine Johnston dated 21 April 2009 and written submissions in support of its case in conformity with the directions. 5 Nevertheless, Mr Kulik sent a number of letters to the Court. He did not serve a copy of those letters on the solicitors for Centrelink but he said that he left copies of those documents at Centrelink's office. That was, of course, entirely unsatisfactory. During the course of today I caused three letters and attached documents that Mr Kulik identified as documents he relied upon, that he had sent to the Court, to be copied from here in Sydney, to Canberra where he and Mr Bird, who appears for Centrelink, are located so that they could be considered for the purposes of seeing what justiciable issue could possibly be raised in this application. 6 The first of those documents is Mr Kulik's letter dated 14 April 2009 addressed to the Court. It read, in part, referring to a proposed timetable put forward on 23 March 2009 by the solicitors for Centrelink prior to the orders that I made on 26 March 2009: "Please change schedule of proceedings, pages 2 and 3." Next, the letter continued: "Centrelink is above any law, so there is no choice but to give Centrelink more time to provide info that is necessary for affidavit. The first day of the schedule can be calculated with the formula D=today + CTU (Centrelink Time Unit) + 2 weeks." 7 The fourth page of the document is another handwritten note of Mr Kulik's indicating that he claimed Centrelink had not provided the T documents and that it was necessary for him to have those documents or a copy of his Centrelink file. He said that he had lodged a freedom of information form two weeks ago but had not had a reply. Another part of the document complained of a defective Centrelink computer system that was incapable of executing any order of an Australian or international authority. Mr Kulik also made complaints about the Centrelink computer system in other parts of the document. 8 The next document on which he indicated he relied was his letter dated 13 May 2009, again addressed to the Court. It was headed "Electronic sabotage of Legal Aid system" and commenced: "After approval of the 'second respondent short order', enforced on Federal Court of Australia, Centrelink cancelled the old age pension to disable again the Legal Aid." The letter concluded: "The file is now 'frozen' and application form for Legal Aid cannot be processed … . Please revise the 'short minutes of order' to give Centrelink to fix their computer system." 9 The last letter was sent to the Court on 23 June 2009. It was headed "Electronic Homicide". It was in these terms: "If FCA does not want [these proceedings] to become a post mortem case, please issue a restraining order. Centrelink computer is conducting a large operation to spread the swine flu by canceling health cards … and even sending to victims, money for funerals. Please adjourn case to give Centrelink enough time to fix their computer." (emphasis in original) 10 I have spent some time during today's hearing, endeavouring to ask Mr Kulik to identify the decision or decisions made by Centrelink which he took to the tribunal and about which he complains that it was wrong to find it did not have jurisdiction to deal with them. Mr Kulik continued to express his dissatisfaction about Centrelink's computer system. I understand him to have a real grievance in his own mind about that system. However, that does not give him any justiciable controversy with which to engage the jurisdiction of this Court to review the tribunal's decisions that it did not have jurisdiction to deal with his matters. 11 I also invited Mr Kulik to identify whether there was any decision or application that he had made to the tribunal that was contained in Ms Johnson's affidavit which gave the tribunal jurisdiction, contrary to its finding that it did not have jurisdiction. Mr Kulik was unable to give me any reply that I could understand. He asserted that the affidavit was in some way not independent, that the "decision" he complained of was on all the pages of the affidavit and that Centrelink had to recognise that, in some way, this material was the doing of its computer. Again, this was incomprehensible to me. 12 Within the papers provided as annexures to Ms Johnston's affidavit, there appear to be a number of different claims by Mr Kulik. Ms Johnston's affidavit identified that in July 2006, Centrelink released Mr Kulik's personal Centrelink file in full to him. On 18 May 2007 he lodged a claim with Centrelink to access or change documents. This asked Centrelink to transfer all the documents containing the word "Cypum" from electronic files to paper files in archive that would have the result of "moderating automatic actions of defective Centrelink computer." By that, I think Mr Kulik meant that his association in the computer system with a company, Cypum Pty Ltd, in some way resulted in the computer assuming that Cypum was a profitable business, leading to his pension being cancelled and his associated pension card, ambulance and medical benefit entitlements being affected. Centrelink responded to this claim that the Centrelink computer system could not have deleted from it references to Cypum while Mr Kulik retained an interest in that company. In effect, he appears to have been seeking that Centrelink re-organise its computer system in some way that I do not properly understand. 13 Centrelink's response stated that where a person claimed that a document of an agency to which access had been lawfully provided to the person, contained personal information about that person that was incomplete, incorrect, out of date or misleading and had been used or was being used or is available for use by the agency or Minister for an administrative purpose, the person could apply under s 48 of the Freedom of Information Act 1982 (Cth) to the agency or Minister for an amendment or a notation of the record of that information kept by the agency or Minister. Centrelink also told him that the agency had power to make such amendments by altering the document to make the information complete, correct, up to date or not misleading, or by adding to the document a note specifying the respects in which the agency was satisfied the information was incomplete, incorrect, out of date or misleading or updating the material. The freedom of information officer of Centrelink found that Mr Kulik's request did not meet the provisions of s 48 because he was not asking for an amendment or annotation but for deletion of the material from his computer record. 14 Mr Kulik responded on 23 June 2007. He asked for Centrelink to "… organise records to mitigate the automatic actions of the virus infected Centrelink computers. … You are asked to transfer historical info[rmation] into the archive". Centrelink responded in August 2007, pointing out that it could not change its main frame system and that its computer was not infected by a virus. Moreover, Centrelink said that it was required to maintain on its computer records information necessary to determine correctly Mr Kulik's payments and that his interest in Cypum had to be recorded on the computer record maintained in respect of him. His request for reorganisation of the record could not be accommodated. 15 Next, Mr Kulik applied to the Ombudsman for review of the decision. The Ombudsman wrote back to him on 6 December 2007 declining to investigate his complaint. 16 Mr Kulik then applied to the tribunal on 21 August 2008 for a review of a decision "… To stop all these cancellations of pensions, falsification of data and pensioners' files and other criminal activities". He said that the decision was made by the Social Security Appeals Tribunal and identified a number of documents. One of those documents was the letter of 23 August 2007 from Centrelink. 17 On 16 September 2008, Mr Kulik had also filed an application in the tribunal for an extension of time for lodging an application to review a decision he described as a decision of 21 August 2008. The reason he gave for it being late was that he had the flu. Centrelink opposed the application. It asserted to the fact that the relevant decision had been made on 13 July 2007 by the Social Security Appeals Tribunal and that Mr Kulik's application had referred to an earlier decision made by the Social Security Appeals Tribunal in 2006. So that if the former decision was what Mr Kulik sought to appeal against, it was well outside the 28 day time limit. And if it were the latter, the Social Security Appeals Tribunal decided in Mr Kulik's favour in 2006 so that he had nothing to appeal from to the tribunal. Secondly, Centrelink asserted that Mr Kulik's claim that his Freedom of Information Act request had been wrongly denied, was not within the tribunal's jurisdiction because an internal review in Centrelink had not occurred. 18 The tribunal, somewhat irregularly, constituted a jurisdiction hearing on 8 October 2008. I say, somewhat irregularly, because as the submissions by Centrelink pointed out, s 42A(4) of the Administrative Appeals Tribunal Act required 14 days' notice of the listing of the jurisdiction hearing had to be given pursuant to reg 8A of the Administrative Appeals Tribunal Regulations. However, its notice of listing dated 30 September 2008 for a hearing on 8 October 2008 gave insufficient notice. 19 The tribunal concluded that it did not have jurisdiction in any of the three different matters which it thought it had before it. It may well be that Mr Kulik has some frustration with computerised information systems. But that did not give him a grievance that was capable of being of itself reviewed by the tribunal. Mr Kulik is unable to identify what decision or decisions made by Centrelink were the subject of the tribunal's decisions that it did not have jurisdiction to determine his matters. 20 I have sought to make every allowance I can for the fact that Mr Kulik is unrepresented and is obviously finding the involvement he has in legal proceedings difficult. That is entirely understandable for a litigant in person, the more so for someone who has no experience in litigation or administrative appeals. As I have said, I have sought to elicit from Mr Kulik some idea of what his case involves. Regrettably, I am not able to discern any intelligible claim. Mr Kulik asserts that he needs the T documents in order to be able to put forward his case in this Court. However, I am not satisfied that that is so. What he needs to put forward in this court is the decision, or decisions, of Centrelink which he claims the tribunal wrongly determined that it did not have jurisdiction to consider on appeal under s 25 of the Administrative Appeals Tribunal Act. 21 Currently the application to this court is embarrassing and, at least at the moment on the material before me, appears to be an abuse of the process of the court in the sense that it does not disclose any justiciable cause of action that I can identify. Mr Kulik has not been able to assist me in understanding what, if any, decision made by Centrelink he claimed was properly before the tribunal that it had jurisdiction to decide. I think the time has come when Mr Kulik should identify on affidavit, with precision, the decision, or decisions, made by Centrelink that he challenges and that if he fails to do so within a time I shall allow him to address me about, the proceedings should be dismissed automatically with costs. In that regard it will be essential for Mr Kulik to serve his evidence on the solicitors for Centrelink. 22 If he persists in sending private correspondence to the Court, I will direct the registrar to reject it and return it to him. I will require him to swear an affidavit of service, having regard to his conduct up to now in not serving material on Centrelink's solicitors to which it is entitled as an active party in the proceeding against him. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 2 July 2009 Applicant: Appeared in person Solicitor for the Second Respondent: Mr Bird of Blake Dawson Date of Hearing: 29 June 2009 Date of Judgment: 29 June 2009