Federal Court of Australia

Ambrose v Secretary of Department of Social Services [2022] FCA 1274

ORDERS

THE COURT ORDERS THAT:

1.    Judgment be entered for the respondent against the applicant pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.    The appeal be otherwise dismissed.

3.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant in this matter, Mr Brendan Ambrose, was the recipient of a government benefit known as the Newstart allowance. The payment of this allowance to Mr Ambrose was briefly suspended in 2019. Within a matter of weeks, however, the decision to suspend the allowance was effectively reversed and Mr Ambrose was paid in full for the suspension period. It is undisputed and indisputable that he suffered no ongoing financial detriment from the brief suspension of his allowance. Despite that, and for reasons which are somewhat difficult to comprehend, Mr Ambrose remained and remains aggrieved by the circumstances surrounding the suspension. He commenced judicial review proceedings in this Court in respect of the suspension. Those proceedings were dismissed, as was his appeal from that dismissal and his application for special leave to appeal to the High Court. He then applied for administrative review of the suspension decision in the Administrative Appeals Tribunal. Both his “AAT first review” and “AAT second review” applications were dismissed. As for the latter, Mr Ambrose’s application was dismissed by the Tribunal under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that it was frivolous because it could not result in any “practical benefit” to him.

2    Mr Ambrose filed an appeal, pursuant to s 44 of the AAT Act, on a question of law from the Tribunal’s dismissal of his review application. The question of law which Mr Ambrose seeks to ventilate in the appeal is, in essence, whether the correct respondent was named in his AAT second review application. The respondent to that review application was the Secretary of the Department of Social Security. Mr Ambrose contends that the correct respondent was the Chief Executive Officer of Services Australia.

3    The Secretary, the respondent to the appeal, applied for the summary dismissal of Mr Ambrose’s appeal pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01(1) of the Federal Court Rules 2011 (Cth). The Secretary contends that the appeal is frivolous or vexatious, and that Mr Ambrose has no reasonable prospect of successfully prosecuting the proceeding.

4    The Secretary’s forensic decision to pursue summary dismissal, rather than simply allowing the appeal to proceed to final hearing, is somewhat questionable given that the final hearing of the appeal would most likely have taken no longer than the hearing of the summary dismissal application. That said, the Secretary’s decision to pursue summary dismissal is perhaps understandable given the long, tortuous and taxing history of Mr Ambrose’s seemingly purposeless challenges to the short and subsequently reversed suspension of his Newstart allowance almost three years ago to the day. Perhaps more significantly, the merits of Mr Ambrose’s appeal hinged on a short, albeit technical and arcane, question of law which can readily be determined in the context of an application for summary judgment.

5    For the reasons that follow, summary judgment should be entered for the Secretary. Mr Ambrose’s appeal is frivolous or vexatious, in the requisite sense, and has no reasonable prospect of success. His grounds of appeal are without merit.

Background

6    It is necessary to provide a little more detail in relation to the relevant background facts and circumstances.

7    Mr Ambrose was a recipient of a Newstart allowance, as it was then known. His allowance was suspended on a number of occasions. The particular suspension which prompted or gave rise to the actions which underlie this matter was a suspension decision made on 8 August 2019. That decision had the effect of suspending the payment of Mr Ambrose’s allowance from 1 August 2019.

8    It is, for present purposes, unnecessary to delve into the precise detail and statutory basis of either the Newstart allowance itself or the decision to suspend Mr Ambrose’s receipt of it. It suffices to note that the reason for the suspension was that Mr Ambrose had failed to comply with one of the requirements for receiving the allowance. In simple terms, Mr Ambrose failed to attend an appointment with his employment services provider as required by his employment pathway plan. That failure constituted a “mutual obligation failure” under s 42AC(1)(c) of the Social Security (Administration) Act 1999 (Cth) (Administration Act). As a result, those responsible for administering the Newstart allowance determined, pursuant to s 42AF(1)(a) of the Administration Act, that the allowance was not payable to Mr Ambrose and a “payment suspension period” was worked out under s 42AL of the Administration Act.

9    Within a day of being notified of the suspension of his Newstart allowance, Mr Ambrose contacted the government department responsible for administering the Newstart allowance. That contact was taken to be a request for the internal review of the decision to suspend his Newstart allowance pursuant to s 129 of the Administration Act, though Mr Ambrose may not have immediately appreciated that to be the case. Section 129(1) of the Administration Act provides that a “person affected by a decision of an officer under the social security law may apply to the Secretary for review of the decision”. There is no dispute that the decision to suspend Mr Ambrose’s Newstart allowance was relevantly made by “an officer under the social security law”.

10    Mr Ambrose also contacted his employment services provider on 12 August 2019. Whatever he said or did during that contact must have been persuasive. His Newstart allowance was promptly reinstated with retrospective effect. Mr Ambrose was paid his allowance for the period of 1 August 2019 to 14 August 2019 in the ordinary course on 21 August 2019. There is no dispute that Mr Ambrose did not suffer any financial detriment whatsoever as a result of the brief suspension of his allowance. Mr Ambrose may well have felt annoyed and aggravated by the suspension, but that is beside the point, other than that it is perhaps the only explanation for what followed.

11    On 27 August 2019, Mr Ambrose filed an originating application for judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). That application, filed in this Court, related to the decision to suspend Mr Ambrose’s Newstart allowance, however Mr Ambrose’s main complaint appeared to be that Centrelink (the agency responsible for delivering social security payments) had refused to review the decision to suspend his allowance. As noted earlier, it would seem that at the time of filing his application, Mr Ambrose was unaware that an internal review of the suspension decision was in fact underway.

12    On 26 November 2019, an “authorised review officer” made a decision in respect of Mr Ambrose’s application for internal review of the relevant suspension decision. The authorised review officer decided that the decision to suspend Mr Ambrose’s Newstart allowance was correct and that Mr Ambrose’s review of that decision was unsuccessful. The review officer also noted that Mr Ambrose’s allowance had in any event been restored.

13    Mr Ambrose’s application for judicial review of the suspension decision, or what he understood to be the refusal to review it, was dismissed by the Court on 8 October 2020. One of the reasons for dismissing the application was that “the proceedings lack any utility in circumstances where the suspension has ended and full repayment has occurred without penalty”: Ambrose v Commonwealth of Australia [2020] FCA 1439 at [18]. The Court also found (at [19]) that, “if there had indeed been any issues remaining between the parties to resolve”, those issues were to be properly resolved in “full merits review” proceedings in the Tribunal. It appears that it was that finding which, somewhat regrettably, inspired Mr Ambrose to pursue the course that has culminated in this proceeding.

14    Mr Ambrose appealed the decision to dismiss his judicial review application. That appeal was dismissed by the Full Court on 28 May 2021: Ambrose v Commonwealth of Australia [2021] FCAFC 88. The Full Court’s decision includes a detailed account of the circumstances in which Mr Ambrose’s Newstart allowance was cancelled and then restored. Mr Ambrose did not suggest that the factual account of his interactions with the bureaucracy contained in the Full Court’s judgment was inaccurate or incomplete in any respect. The Full Court’s judgment also includes a detailed discussion of the relevant statutory provisions pursuant to which the suspension decision was made and the internal review was conducted. Anyone sufficiently interested in the labyrinthine and prolix statutory scheme underlying the making and review of decisions in respect of social security payments like the Newstart allowance may care to read the Full Court’s judgment, the contents of which are gratefully adopted and may be taken as incorporated in this judgment. Of some particular relevance to this proceeding is that the Full Court confirmed (at [84]) that the internal review by the authorised review officer was conducted under s 129 of the Administration Act.

15    On 9 September 2021, the High Court refused Mr Ambrose’s application for special leave to appeal from the Full Court’s judgment: Ambrose v Commonwealth of Australia [2021] HCASL 178.

16    Within a week of the dismissal of his special leave application, Mr Ambrose, apparently undeterred by the failure of his initial curial forays, applied to the Tribunal for a review of the authorised review officer’s decision. Such a course is permitted pursuant to s 142(1)(a) of the Administration Act, which provides as follows:

142    Reviewable decisions

(1)    Subject to section 144, application may be made to the AAT for review (AAT first review) of:

(a)    a decision of the Secretary, the Chief Executive Centrelink or an authorised review officer made under section 126 or 135; or

(b)    a decision under this Act made personally by the Secretary or the Chief Executive Centrelink.

17    Section 144 of the Administration Act lists a number of non-reviewable decisions. The decision of the authorised review officer in issue in this proceeding did not fall within that list.

18    As has already been noted, the question of law which is the subject of this appeal concerns the identity of the proper respondent to his review application in the Tribunal. It is thus relevant to note at this point that s 30(1)(a) and (b) of the AAT Act relevantly provides that, subject to an exception which is not presently relevant, the “parties to a proceeding before the Tribunal for a review of a decision are … any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision [and]… the person who made the decision” (emphasis added). In the case of an application made pursuant to s 142 of the Administration Act, s 142A provides as follows in relation to the identity of the person who made the relevant decision:

142A    Person who made the decision

For the purposes of AAT first review of a decision, a reference in the AAT Act to the person who made the decision is taken to be a reference to:

(a)    the Secretary; and

(b)    if the decision was made by the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997) as a delegate of the Secretary or the Employment Secretary—the Chief Executive Centrelink.

19    “Secretary” is not defined in the Administration Act. Section 3(2) of the Administration Act provides that “[u]nless a contrary intention appears, an expression that is used in the 1991 Act has the same meaning, when used in this Act, as in the 1991 Act”. The “1991 Act” is defined in sch 1 to the Administration Act as meaning the Social Security Act 1991 (Cth).

20    Section 23 of the Social Security Act defines “Secretary” in the following terms:

Secretary means:

(a)     except in relation to Subdivision D of Division 2 of Part 4A of the Administration Act—the Secretary of the Department; or

(b)     in relation to Subdivision D of Division 2 of Part 4A of the Administration Act:

(i)     in the review of a decision made by the Chief Executive Centrelink or a Departmental employee (within the meaning of the Human Services (Centrelink) Act 1997) as a delegate of the Secretary of the Department or of the Secretary of the Employment Department—the Chief Executive Centrelink; or

(iii)     in the review of any other decision—the Secretary of the Department.

21    As will be seen, Mr Ambrose contends that the person who made the decision in this case was the Chief Executive Centrelink (or the Chief Executive Officer of Services Australia), either because the decision of the authorised review officer was a decision of a “Departmental employee … as a delegate of the Secretary” and therefore s 142A(b) of the Administration Act applies, or if s 142A(a) applies, by virtue of the definition of “Secretary” in s 23 of the Social Security Act.

22    On 4 November 2021, the Tribunal affirmed the decision of the authorised review officer.

23    An unfortunate (and somewhat absurd) product of the history of administrative review of social security decisions, and the transfer to the Tribunal of responsibility for reviewing all such decisions, is that decisions made under the Administration Act are subject to two tiers of review in the Tribunal – hence the reference in s 142(1) to “AAT first review”. Mr Ambrose took advantage of that absurdity, as was his want and entitlement. On 14 December 2021, he applied to the Tribunal pursuant to s 179(1) of the Administration Act for review of the decision of the Tribunal on the AAT first review. Section 179(1) provides that “[a]pplication may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act” (bolding and italics in original). Ssection 179(2)(a) relevantly provides that “[f]or the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be … if an AAT first review affirms a decision—that decision as affirmed”. It follows that the decision under review for the purposes of the AAT second review in this matter was the decision of the authorised review officer.

24    As for the parties to the AAT second review, the effect of item 2 of s 180 of the Administration Act is that the reference to the “person who made the decision”, for the purposes of s 30(1)(b) of the AAT Act, is taken to be a reference to “each party to the relevant AAT first review, other than the applicant for AAT second review”. That is a rather convoluted way of providing, in effect, that the parties to the AAT second review, at least where the AAT first review affirmed the decision under review, are the applicant (in this case, Mr Ambrose) and the person who made the decision as defined or determined by s 142A of the Administration Act.

25    It follows that, if the person who made the decision for the purposes of the AAT first review is, by virtue of s 142A(a), the Secretary, the Secretary is also the person who made the decision for the purposes of the AAT second review and is therefore the proper respondent to the AAT second review. Likewise, if the person who made the decision for the purposes of the AAT first review is, by virtue of s 142A(b), the Chief Executive Centrelink, the Chief Executive Centrelink is also the person who made the decision for the purposes of the AAT second review and is therefore the proper respondent to the AAT second review.

26    The Secretary was named as the respondent to Mr Ambrose’s AAT second review. The Secretary contended that Mr Ambrose himself nominated or named the Secretary as the respondent in his review application. Unfortunately, the review application was not before the Court, though Mr Ambrose did not appear to dispute the contention that he was responsible for naming the Secretary as the respondent to his review application. As will be seen, it probably does not matter who was responsible for naming the Secretary as the respondent.

27    On 7 March 2022, the Secretary applied for Mr Ambrose’s application for review to be dismissed pursuant to s 42B(1)(a) of the AAT Act. Subsection 42B(1)(a) of the AAT Act provides as follows:

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.

28    On 4 April 2022, the Tribunal dismissed Mr Ambrose’s application pursuant to s 42B(1)(a) of the AAT Act on the basis that the proceedings were frivolous. In its Decision and Reasons for Decision, the Tribunal accepted the Secretary’s contention that “no better practical outcome can be achieved by [Mr Ambrose] pursuing [the review application]” because his Newstart allowance was “paid in relation to the periods in which it was nominally suspended”: Reasons at [18]. The Tribunal also agreed that an application that “can yield no practical benefit does fall within the term frivolous”: Reasons at [20]. The Tribunal concluded (at Reasons at [21]) as follows:

I am satisfied that regardless of the outcome of the application, it cannot yield a decision which would make any practical difference to the payments which the applicant has received. I am satisfied that the application is frivolous and should be dismissed on that basis.

29    Importantly, the Tribunal also addressed the question whether the Secretary was the proper respondent to the application. It would appear that it was the Secretary who first raised that question before the Tribunal. The Tribunal addressed it as follows (at Reasons at [23]-[27]):

The application for AAT Tier 1 review was made in relation to the decision of an ARO [authorised review officer] made on 26 November 2019. Given the broad scope of the decision made by the ARO I am satisfied that the ARO's decision was made pursuant to section 126 of the Social Security (Administration) Act 1999 (Administration Act). It would appear from the applicant's application for Tier 1 review that he accepts this as a factual proposition. He is however upset that his more narrow request for review was not dealt with under section 129. There is nothing I can do about that at this point in time.

When a decision is made by an ARO under section 126, section 142 of the Administration Act authorises appeals to the Tribunal.

The AAT Act by s30(1)(b) makes 'the person who made the decision' a party to the proceedings. Section 142A of the Administration Act relevantly provides that a reference in the AAT Act to the person who made the decision is taken to be a reference to the Secretary (which is a reference to the Secretary of the Department of Social Services). The only exception to this is if the decision is made by the Chief Executive of Centrelink, a Departmental employee as a delegate of the Secretary of DSS or 'the Employment Secretary'. As the decision was made by an ARO in their own right, the exceptions do not apply and the Secretary of the Department of Social Services is the appropriate respondent.

Section 180 of the Administration Act provides at Item 2 that the proper party in AAT Tier 2 review is the respondent to the AAT Tier 1 review. Accordingly, the applicant did properly identify the relevant parties and no change to the naming of the respondent is required.

Although the respondent sought the change, nothing turns on this because the respondent's representative appearing before me had instructions to act for both the Secretary of the Department of Social Services and the Secretary, Department of Education, Skills and Employment.

(Emphasis added.)

THE APPEAL AND THE QUESTION OF LAW

30    Section 44(1) of the AAT Act provides that a “party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding”. The questions of law upon which Mr Ambrose bases his appeal, somewhat curiously, do not concern the Tribunal’s finding that his review application was frivolous and that it should be summarily dismissed on that basis. Rather, as has already been adverted to, the questions of law relate to the fact that the Secretary was named as the respondent to the review application. The fact that Mr Ambrose appeals the Tribunal’s decision only on the basis of those questions of law is particularly curious given that it would appear that Mr Ambrose was responsible for naming the Secretary as the respondent to his review application and it was the Secretary who unsuccessfully queried whether the respondent had been correctly named.

31    In any event, the questions of law as set out in Mr Ambrose’s Notice of Appeal are as follows:

1.    Did the Tribunal error when listing the Secretary of Social Services as the respondent to the Tribunal proceedings, when the relevant legislation specifies the respondent to the Tribunal proceedings as the Secretary of Services Australia?

2.    If the Tribunal was in error in listing the respondent, was the error material to the Tribunal's decision in dismissing the matter under s 42B(1)(a)?

32    The grounds relied on by Mr Ambrose in his Notice of Appeal are as follows:

1.    The definition of 'Secretary' in s 23 of the Social Security Act 1991 specifies the 'Secretary' in relation to Subdivision D of Division 2 of Part 4A of the Social Security (Administration) Act 1999 (Review by the AAT) in the review of a decision of a delegate of the Secretary of the Employment Department (ESP decision) as the Chief Executive Centrelink.

2.    The definition of 'Chief Executive Centrelink' in the Human Services (Centre/ink) Act 1997 s 3 refers to s 7 of that Act which reveals that the Chief Executive Centrelink is the Chief Executive Officer of Services Australia.

3.    For the purposes of the Administrative Appeals Tribunal review, the respondent is the Secretary, and the Secretary is the Chief Executive Officer of Services Australia.

THE SUMMARY JUDGMENT APPLICATION

33    As has already been noted, the Secretary filed an interlocutory application seeking summary judgment against Mr Ambrose pursuant to s 31A of the FCA Act and r 26.01(1) of the Rules.

34    The Secretary’s primary contention in support of the summary judgment application was that Mr Ambrose’s appeal was frivolous because, even if Mr Ambrose established “some legal error in the impugned decisions, there is no relief this Court can grant him which will place him in any better position than he is currently in”. That was said to be because the decision to suspend Mr Ambrose’s Newstart allowance had been reversed and he was paid in full for the period of the suspension. The Secretary pointed out that it was on that basis that this Court dismissed Mr Ambrose’s earlier judicial review application and on that basis that the Tribunal dismissed his application as frivolous.

35    The Secretary also contended that the question of who was the correct respondent in the proceedings in the Tribunal was “of no moment” and “gives no utility to the present proceeding” for two reasons: first, because, as the Tribunal found, the Secretary was correctly named as the respondent; and second, because, as the Tribunal noted, the Secretary’s legal representative at the hearing in any event also held instructions to act on behalf of both the Department of Education, Skills and Employment and the Chief Executive Officer of Services Australia.

SUMMARY JUDGMENT – RELEVANT PROVISIONS AND PRINCIPLES

36    Subsection 31A(2) of the FCA Act, which provides for summary judgment, is in the following terms:

31A    Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

37    Rule 26.01 of the Rules, which also deals with summary judgment, relevantly provides as follows:

26.01    Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

38    The relevant principles in relation to summary judgment or dismissal under s 31A of the FCA Act were considered by the High Court in Spencer v Commonwealth of Australia (2010) 241 CLR 118 and have been discussed in numerous judgments in this Court. The principles, so far as they are relevant to the present application, may be summarised as follows.

39    First, s 31A authorises summary disposition of proceedings “on a variety of bases under its general rubric” (in respect of s 31A(2), that there is “no reasonable prospect of successfully prosecuting…”), including, but not limited to: where the pleadings disclose no reasonable cause of action and their deficiency is incurable; the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case that might be propounded by permissible amendment; and the “longstanding category of cases which are ‘frivolous or vexatious or an abuse of process’”: Spencer at [22] (French CJ and Gummow J).

40    Rule 26.01 of the Rules also expressly provides for summary judgment not only where there is no reasonable prospect of successfully prosecuting the proceeding, but also where the proceeding is frivolous or vexatious.

41    Second, the word “vexatious” in the context of r 26.01(1)(b) of the Rules is an “omnibus expression” that includes material which is scandalous, which discloses no reasonable cause of action, is oppressive or embarrassing, or the inclusion of which is otherwise an abuse of the processes of the Court: Gallo v Attorney-General (unreported, Supreme Court of Victoria, Full Court, 4 September 1984, 11 (Starke J, with whom Crockett and Beach JJ agreed)), referred to with approval in Matthews v State of Queensland [2015] FCA 1488 at [87]. Material in a pleading would also be considered vexatious or frivolous if it was included in the pleading with the intention of annoying or embarrassing, or for a collateral purpose, or if it raises matters that are “obviously untenable or manifestly groundless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491-492; see also Von Reisner v Commonwealth (2009) 177 FCR 531 at [27].

42    Third, an applicant may have no reasonable prospect of successfully prosecuting the proceeding even if it cannot be concluded that the proceeding is hopeless or bound to fail: Spencer at [17] (French CJ and Gummow J). The inquiry required under s 31A is “not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer at [52] (Hayne, Crennan, Kiefel and Bell JJ).

43    Fourth, the “exercise of powers to summarily terminate proceedings must always be attended with caution”, whatever may be the basis upon which that disposition is sought: Spencer at [24] (French CJ and Gummow J). It is not a power to be exercised lightly: Spencer at [60] (Hayne, Crennan, Kiefel and Bell JJ). There must be a “high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”: Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [46], referred to in Spencer at [24] (French CJ and Gummow J).

SUMMARY JUDGMENT SHOULD BE ENTERED

44    Summary judgement should be entered against Mr Ambrose. That is so for at least three reasons.

45    First, Mr Ambrose has no reasonable prospect of successfully prosecuting the appeal because his contention that the Secretary was not the proper respondent is unmeritorious.

46    Second, the appeal is also frivolous and vexatious, in the relevant sense, because the identity of the respondent was in any event immaterial to the Tribunal’s decision to summarily dismiss Mr Ambrose’s review application. The appeal has no utility.

47    Third, the Tribunal was also plainly correct to find that Mr Ambrose’s review application was frivolous given that he suffered no detriment whatsoever from the decision under review, and therefore did not err in summarily dismissing the review application.

The proper respondent in the Tribunal proceeding

48    As has already been noted, Mr Ambrose contended that the person who made the decision in this case was the Chief Executive Centrelink or the Chief Executive Officer of Services Australia. He advanced two arguments in support of that contention.

49    Mr Ambrose’s first argument was to the effect that the decision of the authorised review officer was a decision of a “Departmental employee … as a delegate of the Secretary”, and therefore s 142A(b) of the Administration Act applies. As set out earlier, s 142A(b) provides that, where the relevant decision was made by a Departmental employee as a delegate of the Secretary, the person who made the decision is taken to be the Chief Executive Centrelink. The Chief Executive Centrelink refers to the Chief Executive Officer of Services Australia: ss 3 and 7 of the Human Services (Centrelink) Act 1997 (Cth).

50    Mr Ambrose’s second argument was that, if the decision of the authorised review officer was not made by the officer as a delegate of the Secretary and s 142A(a) therefore applies, the relevant decision-maker is taken to be the Secretary. In Mr Ambrose’s submission, paragraph (b)(i) of the definition of “Secretary” in s 23 of the Social Security Act applies because sub-div D of div 2 of pt 4A of the Administration Act is concerned with reviews by the Tribunal, and the decision in question was a decision by a Departmental employee as a delegate of the Secretary of the Department. It follows, according to Mr Ambrose, that the Secretary is again taken to be the Chief Executive Centrelink, who is the Chief Executive Officer of Services Australia.

51    As can be seen, both of the arguments advanced by Mr Ambrose hinge on the proposition that the authorised review officer who made the decision in his case was a “Departmental employee” and, more significantly, the authorised review officer made the decision in question as a delegate of the Secretary of the Department. It may perhaps be accepted that the authorised review officer was a “Departmental employee”. The problem for Mr Ambrose, however, is that there is no basis for his assertion that the authorised review officer necessarily made the relevant decision as a delegate of the Secretary. Indeed, all indications are that the authorised review officer made the decision in her own right.

52    An “authorised review officer” is defined in sch 1 of the Administration Act as “an officer authorised under section 235 [of the Administration Act] to perform duties as an authorised review officer for the purposes of the social security law”. The “social security law” includes the Administration Act and the Social Security Act: s 23(17) of the Social Security Act. Section 235 of the Administration Act provides that “[t]he Secretary may, in writing, authorise an officer to perform duties as an authorised review officer for the purposes of the social security law”. There is nothing in the terms of s 235 to suggest that an authorised review officer can only make decisions as a delegate of the Secretary. The terms of s 135 of the Administration Act, which deals with the review of decisions following an application under s 129 of the Administration Act, also indicates that an internal review can be conducted by an authorised review officer in their own right, as opposed to as a delegate of the Secretary.

53    The letter which records the decision of the authorised review officer indicates that the officer made the decision in respect of Mr Ambrose’s application for internal review in her own right, rather than as a delegate of the Secretary. The first paragraph of the letter records that the officer in question was “an independent officer authorised to review decisions made by the Australian Government Department of Human Services”. The officer signed off the letter in her own name above the words “Authorised Review Officer – Appeals Branch”. The officer does not sign off the letter in a way which indicated that she was acting as a delegate of the Secretary. There is no evidence to suggest that the officer in question held any form of delegation from the Secretary.

54    Mr Ambrose asserted that an authorised review officer’s power of review is “derived from the Secretary of the Department through delegation under the Administration Act”. There is, however, no basis for that assertion. It is not supported by the terms of the Administration Act which, as has been seen, simply provides for officers to be “authorised” to perform duties as authorised review officers for the purposes of the social security law. The Act does not provide that authorised review officers can only make decisions in respect of internal reviews as delegates of the Secretary. Indeed, provisions in the Act plainly envisage or are premised on the fact that authorised review officers can make decisions in respect of internal reviews in their own right.

55    There is, in all the circumstances, no basis to conclude otherwise than that the authorised review officer in Mr Ambrose’s case conducted and determined the relevant internal review in her own right as an authorised review officer, as opposed to as a delegate of the Secretary. It follows that the person who made the relevant decision for the purposes of the AAT Act in Mr Ambrose’s case is, by virtue of s 142A(a) of the Administration Act, taken to be the Secretary. It also follows that paragraph (a) of the definition of “Secretary” in s 23 of the Social Security Act applies, with the result that the Secretary is taken to be the Secretary of the Department. The Department responsible for the administration of the Social Security Act is the Department of Social Security. Because the Secretary of the Department of Social Security is taken to be the person who made the decision which was the subject of the AAT first review, the Secretary of the Department of Social Security was, by virtue of the operation of item 2 of s 180 of the Administration Act, the proper respondent in the AAT second review in Mr Ambrose’s case.

56    There is, therefore, no merit in Mr Ambrose’s contention that the respondent in the AAT second review in his case was incorrectly named. The Tribunal did not err in concluding that the respondent was correctly named. It follows that Mr Ambrose has no reasonable prospect of successfully prosecuting his appeal, premised as it is on the contention that the respondent was incorrectly named. His appeal should be summarily dismissed on that basis.

The issue concerning the name of the respondent was immaterial

57    Even if it was reasonably arguable that the respondent to Mr Ambrose’s AAT second review was incorrectly named, his appeal is nevertheless frivolous or vexatious for another reason. That reason is that it is readily apparent that the correct naming of the respondent to his review application in the Tribunal was immaterial and had no bearing whatsoever on the Tribunal’s decision to summarily dismiss Mr Ambrose’s review application on the basis that it was frivolous. If there was an error in the naming of the respondent, it was a highly technical error that had no impact on the merits of Mr Ambrose’s review application. It was also an error which could have been readily corrected without any prejudice to anyone. It is clear from the Tribunal’s reasons that the legal representative who appeared for the respondent at the hearing of the AAT second review held instructions to act for whoever was the correct respondent by operation of the complex and obscure provisions of the Administration Act.

58    It would also appear that it was Mr Ambrose who was largely responsible for naming the respondent as the Secretary of the Department of Social Services and it was the Secretary who sought to persuade the Tribunal to change the name of the respondent. The Tribunal correctly held that the respondent had not been incorrectly named. The Tribunal also correctly observed that nothing turned on the technical issue concerning the naming of the respondent in any event given the circumstance that the respondent’s representative held instructions to act for whoever turned out to be the correct respondent. Mr Ambrose’s attempt to capitalise on this technical issue, first raised by the Secretary, could fairly be characterised as vexatious in the circumstances.

The Tribunal was correct to dismiss the review application

59    A further reason for summarily dismissing Mr Ambrose’s appeal is that the Tribunal’s conclusion that Mr Ambrose’s review application was frivolous was correct. Mr Ambrose stood to gain nothing from his review application given that the suspension of his Newstart allowance had been reversed and he had suffered absolutely no detriment as a result of the decision under review. Mr Ambrose did not even attempt to suggest that the Tribunal’s finding in that regard was incorrect. Mr Ambrose’s seemingly pointless pursuit of litigation concerning a decision that ultimately had no ongoing effect on him has already needlessly devoured public resources best utilised elsewhere. It should swiftly and finally be brought to an end.

CONCLUSION AND DISPOSITION

60    It may readily be accepted that it is necessary to exercise caution in summarily dismissing an applicant’s case and that summary judgment should only be entered in a clear case. This is a clear case. Summary judgment should be given in favour of the Secretary against Mr Ambrose and his appeal should be otherwise dismissed. Mr Ambrose has no reasonable prospect of successfully prosecuting the appeal. The contentions of law that underlie his appeal have no merit. The appeal is also frivolous or vexatious in the relevant sense. It has no utility and raises no more than a technical issue concerning the naming of the respondent in circumstances where that issue was essentially immaterial to the Tribunal’s reasons for dismissing the review application.

61    There is no reason why Mr Ambrose, as the unsuccessful litigant, should not be ordered to pay the Secretary’s costs.

Associate:

Dated:    27 October 2022