FEDERAL COURT OF AUSTRALIA

Lee v Secretary, Department of Social Services [2019] FCA 1855

ORDERS

THE COURT ORDERS THAT:

1.    The direction made by the Administrative Appeals Tribunal on 1 March 2019 that the applicant must not, without leave of the Tribunal, make any application to the Tribunal to review the decision of the Social Services and Child Support Division dated 15 November 2017 is set aside.

2.    The appeal is otherwise dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    On 1 March 2019 the Administrative Appeals Tribunal (the Tribunal) summarily dismissed an application made by the applicant on the basis that it was vexatious. The Tribunal also directed that the applicant must not, without leave, apply to the Tribunal for review of a particular decision. The applicant has appealed against the Tribunal’s decision.

2    The respondent concedes that the Tribunal’s decision involved an error of law, but contends that the appeal should be dismissed because the error made no difference to the outcome.

3    The issues are, first, whether the concession made by the respondent should be accepted and, second, whether any error was material.

Background

4    The applicant was paid New Start Allowance (NSA) from 2001 to 2002. She was paid Disability Support Pension (DSP) from 2002 to 2011. She was paid both benefits at the rates applicable to a single person.

5    On 17 May 2011, the respondent determined that the applicant had been overpaid because she had been a member of a couple since 30 March 2001. The respondent raised debts against the applicant of approximately $9,000 for overpayment of NSA and $146,000 for overpayment of DSP.

6    The applicant sought review of the Department’s decision. On 20 July 2011, an Authorised Review Officer found that the applicant had not been a member of a couple until 14 April 2005 (the ARO decision). The consequence was that the NSA debt was cancelled, but the DSP debt remained.

7    On 1 September 2017, the applicant applied to the Social Services and Child Support Division of the Tribunal for review of the ARO decision. On 15 November 2017, the Tribunal affirmed the decision under review, finding that the applicant had lived in a de facto relationship since at least 14 April 2005 (the First Tribunal Decision).

8    On 28 November 2017, the applicant applied to the Tribunal for review of the First Tribunal Decision. At the hearing on 25 July 2018, the applicant withdrew her application by providing a Notice of Withdrawal form to the Tribunal. Under s 42A(1B) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the Tribunal was then taken to have dismissed the application without proceeding to review the decision.

9    On 26 July 2018, a Tribunal officer wrote to the respondent, copying in the applicant, saying that the Tribunal had received notification from the applicant that she wanted to withdraw her application and that the application was dismissed with effect from 25 July 2018. The letter contained a reference number “2017/7054”.

10    On 14 August 2018, the applicant wrote to the Tribunal seeking to revoke her withdrawal. On 24 August 2018, a Tribunal officer responded stating that a Deputy President had decided that the application would not be reinstated. The Tribunal officer wrote again on the same date saying there was no opportunity for further review. Both letters had the reference number “2017/7054”.

11    On 3 September 2018, the applicant filed an Application for Review of Decision form with the Tribunal. The form asked, “What is the decision you want us to review about?” and required a review number. She identified the decision she wanted reviewed as “2017/7054”. That was apparently a reference to the deemed dismissal of the application to review the First Tribunal Decision upon the withdrawal of the application. In answer to the question, “Why do you claim the decision was wrong?”, the applicant wrote:

Regarding the Notice of Withdrawal form AAT asked me to signed on the listing hearing room on 25/7/2018 AND my application of the appeal with Secretary, Department of Social Services decision of the alleged debts against my name and records.

(Errors in original.)

12    On 24 September 2018, the Tribunal conducted a hearing and then dismissed the application. In its reasons, the Tribunal stated that the applicant’s initial request to revoke the withdrawal had been refused by a Deputy President because, under s 42A(8) of the AAT Act, an applicant cannot seek reinstatement after an application is withdrawn. The Tribunal said that it was unclear whether the applicant now sought to have reviewed her decision to withdraw her application, the dismissal of the application that the Tribunal was taken to have made, or the Tribunal’s refusal to reinstate the application. The Tribunal concluded that, whichever decision the applicant sought to have reviewed, the Tribunal was not empowered under any enactment to review it. The Tribunal dismissed the application pursuant to s 42A(4) on the basis that any decision was not reviewable (the Second Tribunal Decision).

13    On 19 February 2019, the applicant filed a further Application for Review of Decision. She again identified the decision being reviewed as “2017/7054”. In answer to the question, “Why do you claim the decision is wrong?”, the applicant wrote:

I claim last hearing date 25/8/2018 was not just and I did not have a Representative to explain to me about the subsequently I signed the 'Notice of Withdrawal' which I do not understand when I signed the form. I am denying the overpayment benefit from Department of Social Security alleging me owing the debts amount of (as per Department of Social Security records). The decision at my last hearing date above is unjust and not fair. I am suffering quite severe depression over the last hearing decision and even wanting end my life after a telephoned calls from the Debts Collection Department saying I am incurring an interest on top of the amount daily interests subsequently now I was told is approximately $4000 added to my debts amount. I am writing pleading for a fair just decision.

(Errors in the original.)

14    On 1 March 2019, the Tribunal dismissed the application for review of 19 February 2019 as vexatious, pursuant to s 42B(1)(a) of the AAT Act (the Third Tribunal Decision). The Tribunal also made a direction that the applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal to review the decision of the Social Services and Child Support division dated 15 November 2018 (ie. the First Tribunal Decision). The Tribunal referred to the history of the applicant’s attempts to have the withdrawal rescinded, the Tribunal’s correspondence advising her that the withdrawal could not be rescinded and the making of the Second Tribunal Decision. The Tribunal did not otherwise provide reasons for its decision.

The Notice of Appeal

15    The subject of the appeal is the Third Tribunal Decision. In her Notice of Appeal, the applicant identifies the question of law as follows:

The applicant contends that the decision by AAT is unjust and not fair. The AAT forced me to signed the Notice of Withdrawal and you can go home. So the Applicant signed under duress.

(Errors in the original.)

16    The notice of appeal goes on to assert that:

The Notice of Withdrawal, the Applicant signed was under duress and I did not know why I have to signd and I signd without a Representation and I was told I can go home, just signed it.

(Errors in the original.)

17    The notice of appeal may be understood as asserting that the Third Tribunal Decision erroneously dismissed the applicant’s application of 1 March 2019. It may also assert that the application was not vexatious because the applicant has at least an arguable basis for revocation of her Notice of Withdrawal, namely that she signed the notice under duress.

18    In the applicant’s written submissions in the appeal, she merely states that she was not in any de facto relationship. She also states that she has suffered considerable financial and emotional hardship as a result of the debt, and seeks to have the debt waived.

19    The applicant represented herself at the hearing of the appeal. It is plain that English is not her first language, but she did not claim to require an interpreter. Her oral submissions did not add anything of significance.

Consideration of the appeal

20    The Third Tribunal Decision was made pursuant to s 42B of the AAT Act. That section provides:

42B    Power of Tribunal if a proceeding is frivolous, vexatious etc.

(1)    The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

(a)    is frivolous, vexatious, misconceived or lacking in substance; or

(b)    has no reasonable prospect of success; or

(c)    is otherwise an abuse of the process of the Tribunal.

(2)    If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

(3)    The direction has effect despite any other provision of this Act or any other Act.

21    The respondent accepts that the Tribunal did not give the applicant the opportunity to make submissions before dismissing her application of 19 February 2019. The respondent concedes that this was a denial of procedural fairness. It is necessary to consider whether the respondent’s concession was properly made.

22    In Annetts v McCann (1990) 170 CLR 596, the plurality stated at 598:

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.

23    There is no provision of the AAT Act that expressly states that there must ordinarily be a final hearing of an application for review. But, that is envisaged by provisions such as ss 32, 34J, 35, 40 and 40A. The exercise of power by the Tribunal under s 42B(1) of the AAT Act operates to defeat an applicant’s entitlement to have their application heard and determined at a final hearing. The provision does not plainly exclude the rules of natural justice. Accordingly, the Tribunal is required to afford the applicant natural justice, or procedural fairness, when exercising its power of summary dismissal.

24    In the present case, the Tribunal acted on its own initiative when exercising its power under s 42B(1) of the AAT Act, rather than upon the application of the respondent. Section 42B(1) does not expressly provide that the Tribunal may act on its own initiative, in contrast to provisions such as s 42A(10) which so provide. However, the nature of the power under s 42B(1), which aims to avoid unnecessary expenditure of the Tribunal’s (and respondents’) resources on hearing matters that are frivolous, vexatious, etc., is consistent with a legislative intention that the Tribunal may act on its own initiative. Further, para 552 of the Explanatory Memorandum to the Tribunals Amalgamation Bill 2014, indicates that the Tribunal was intended to have similar dismissal powers to those available to other bodies, such as under r 26.01 of the Federal Court Rules 2011 (Cth). The Federal Court of Australia may, pursuant to r 1.40, exercise the summary dismissal power under r 26.01 on its own initiative. These matters indicate that the power under s 42B may be exercised on the Tribunal’s own initiative.

25    Procedural fairness requires that each party be given a reasonable opportunity to present their case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]; Sullivan v Department of Transport (1978) 20 ALR 323 at 343. What will constitute such a reasonable opportunity depends upon the statutory framework and the particular facts and circumstances of the case: see, for example, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26].

26    Section 42B(1) of the AAT Act provides for dismissal of an application for review, “at any stage of the proceeding”. Under s 33(1), the procedure of the Tribunal is generally within the discretion of the Tribunal. The aim of avoiding the unnecessary expenditure of resources suggests that it will not always be necessary to conduct an interlocutory hearing to consider whether an application should be summarily dismissed. However, the minimum requirements of procedural fairness must be notifying the applicant that the Tribunal is considering summarily dismissing the application on its own initiative and giving the applicant an opportunity to make submissions.

27    In this case, the Tribunal did not notify the applicant that it was considering dismissing the application as vexatious, and did not give the applicant any opportunity to make submissions. That was a denial of procedural fairness. The respondent’s concession was, therefore, correctly made.

28    However, it is necessary to consider whether giving the applicant the opportunity to be heard could have made a difference to the outcome.

29    Section 44(4) of the AAT Act provides that the Federal Court of Australia shall hear and determine the appeal and may make any order it thinks appropriate by reason of its decision.

30    In Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560–561, Sackville J held that if a Court hearing an appeal from the Tribunal finds an error of law, but nonetheless considers that the decision was clearly correct on the material before the Tribunal, it is open to the Court to dismiss the appeal. In Tankey v Adams (2000) 104 FCR 152, the Full Court, referring to Morales, said at [119]:

The relief which may be granted will depend upon the effect of the error of law on the decision-making process. Errors of law which are “harmless” or “trivial” do not normally warrant the setting aside of an administrative decision.

31    In Stead v State Government Insurance Commission (1986) 161 CLR 141, the High Court held at 147 that a new trial will not be ordered unless the person who was denied procedural fairness was deprived of “the possibility of a successful outcome”.

32    It is necessary to examine what the applicant was seeking in her application of 19 February 2019 which led to the making of the Third Tribunal Decision. In that application, she indicated that she was seeking review of the decision described as “2017/7054”. She went on to assert that the hearing on 25 August 2018, at which she signed the Notice of Withdrawal, was unfair and unjust because she did not understand what she was signing.

33    The applicant appears to have sought:

(1)    review of the decision taken to have been made under s 42A(1B) of the AAT Act to dismiss her application for review of the First Tribunal Decision; and

(2)    revocation of her Notice of Withdrawal and reinstatement of her application for review of the First Tribunal Decision.

34    It will be recalled that the First Tribunal Decision affirmed the decision of an Authorised Review Officer, which affirmed the part of the Secretary’s decision raising a debt for overpayment of DSP. It should be observed that in her application of 19 February 2019, the applicant did not seek review of the First Tribunal Decision itself.

35    Section 25(1) of the AAT Act provides, relevantly, that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. Section 142(1) of the Social Security (Administration) Act 1999 (Cth) (SSA Act) provides, relevantly, that an application may be made to the Tribunal for review (referred to in the provision as an AAT first review) of a decision of an Authorised Review Officer. Section 179(1) of the SSA Act provides that an application may be made to the Tribunal for review (referred to in the provision as an AAT second review) of an AAT first review decision.

36    The First Tribunal Decision was an AAT first review decision. The applicant was entitled to apply for an AAT second review of that decision and she did so. However, she withdrew her application. The effect of the withdrawal falls to be considered under s 42A of the AAT Act, which provides, relevantly:

42A    Discontinuance, dismissal, reinstatement etc. of application

….

Deemed dismissal—applicant discontinues or withdraws application

(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 given in accordance with subsection (1A)…, the Tribunal is taken to have dismissed the application without proceeding to review the decision.

…

Dismissal if decision is not reviewable

(4)    The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.

…

Reinstatement of application

(8)    If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.

…

(9)    If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

(10)    If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

37    The applicant provided a Notice of Withdrawal to the Tribunal on 25 July 2018, and thereby notified the Tribunal that her application for review of the First Tribunal Decision was withdrawn. Under s 42A(1B) of the AAT Act, the Tribunal was taken to have dismissed the application without proceeding to review the decision.

38    There is no provision under any enactment allowing review by the Tribunal of a dismissal taken to have been made under s 42A(1B) of the AAT Act. It follows that the Tribunal had no power to consider the applicant’s application for review of 19 February 2019 of that deemed decision.

39    Section 42A(8) provides for an application to be made for reinstatement of an application taken to have been dismissed under s 42A(1B), but such an application can only be made by a party, “other than the applicant”. It follows that the Tribunal had no power to reinstate the application for review of the First Tribunal Decision upon the applicant’s application.

40    The applicant’s application of 19 February 2019 did not to seek review of the First Tribunal decision itself. The question of whether the applicant, having withdrawn her first application, could make another application for review of the First Tribunal decision was therefore not considered in the Third Tribunal decision (or the Second Tribunal decision). However, it may be noted that in Commonwealth v Snell (2019) 370 ALR 1, [2019] FCAFC 57, the Full Court held at [51]:

…[T]he doctrine of issue estoppel is not apposite to the constitutional and statutory context of the Tribunal, and ought not to be extended to it.

41    Further, the effect of s 42(A)(1B) of the AAT Act was that the Tribunal is taken not to have proceeded to review the decision, so there was no final decision made by the Tribunal. That is another factor against any proposition that an issue estoppel arose: see Paterson M, “Res Judicata at the Administrative Appeals Tribunal: Re-opening the Case” (2019) 30 PLR 58 at p 62.

42    However, in her application of 19 February 2019, the applicant applied only for review of the decision taken to have been made under s 42A(1B) of the AAT Act to dismiss her application for review of the First Tribunal Decision and reinstatement of her application for review of the First Tribunal Decision. The Tribunal dismissed the application as vexatious.

43    In Rana v Commonwealth [2013] FCA 189, Mansfield J said at [42]:

Proceedings have been held to be “vexatious” in the past if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise; irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court: see generally Attorney-General v Wentworth (1988) 14 NSWLR 281.  

44    The application of 19 February 2019 was obviously untenable and was, in that sense, vexatious. The outcome of the Third Tribunal Decision could have been no different if the applicant had been given an opportunity to make submissions as to why her application should not be dismissed.

45    The Tribunal also ordered that the applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal to review the decision of the Social Services and Child Support division dated 15 November 2017 (ie. the First Tribunal Decision). The Tribunal referred to the history of the applicant’s attempts to have the decision rescinded, the Tribunal’s correspondence advising her that the withdrawal could not be rescinded and the making of the Second Tribunal Decision.

46    However, the applicant had not made any application for review of the First Tribunal Decision in either her application of 3 September 2018 or of 19 February 2019. In circumstances where the applicant had made only one application for review of the First Tribunal Decision, there was no justification for the Tribunal’s direction that the applicant must not, without leave of the Tribunal, make any subsequent application for review of that decision. The situation did not arise where the making of repeated applications for review of the same decision on essentially the same basis could amount to an abuse of process: cf Snell at [78].

47    The appeal will be allowed in part. The Tribunal’s direction that the applicant must not, without leave of the Tribunal, make any subsequent application for review the First Tribunal Decision will be set aside. The appeal will be otherwise dismissed.

48    In view of the applicant’s partial success, I will make no order as to costs.

Associate:    

Dated:    13 November 2019