Federal Court of Australia

Towle v Commonwealth of Australia [2025] FCA 832

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), and r 26.01 of the Federal Court Rules 2011 (Cth), there be judgment for the first and second respondents against the applicant.

2.    All interlocutory applications in the proceedings otherwise be dismissed.

3.    The originating applications filed in each of action SAD 178 of 2024 and action SAD 179 of 2024 be dismissed.

4.    The applicant pay the costs of the first and second respondents, as agreed or taxed.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    In these proceedings, the applicant, Thomas Towle, seeks judicial review of multiple decisions made by officers or employees of the Department of Social Services (Department) and members of the Administrative Appeals Tribunal (Tribunal) between 2016 and 2023, as well as decisions of a judge of the Federal Court, the Full Court of the Federal Court, and the High Court. He also seeks compensation for loss and damage he claims to have suffered as a result of the conduct of officers or employees of the Department.

2    The first respondent, the Commonwealth of Australia (Commonwealth), and the second respondent, the Secretary of the Department (Secretary), have applied for summary judgment against Mr Towle, pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01(1)(a), (c) and (d) of the Federal Court Rules 2011 (Cth).

3    By their interlocutory application dated 10 February 2025, the Commonwealth and the Secretary seek the following orders:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), and rr 26.01(1)(a), (c) and (d) of the Federal Court Rules 2011 (Cth), there be judgment for the Respondents against the Applicant.

2.    Should the Applicant file any proceeding in the Court that is in any way related to a decision in or about 2016 to suspend his disability support pension, and whether he was a “single person” or a “member of a couple”, the District Registrar is not to give a return date and is to require the Applicant to show cause by filing of [sic] submissions and any affidavit as to why the proceeding should not be dismissed as vexatious and an abuse of process. Such application to show cause should, subject to any other order of the Court, be dealt with on the papers, and any Respondent named in the proceeding need not take any step until further order of the Court.

3.    An order that the Applicant pay the Respondents’ costs of, and incidental to, the proceeding.

4    For the reasons that follow, I have concluded that summary judgment should be granted in favour of the Commonwealth and the Secretary. I would not make the second order sought by the Commonwealth and the Secretary. Mr Towle should be ordered to pay the costs of the Commonwealth and the Secretary.

Background

5    In July 2013, Mr Towle met Ya-Fen Chang, who is a citizen of Taiwan. Later in 2013, Ms Chang commenced living in a house that was owned by Mr Towle. On 16 October 2015, Ms Chang applied for temporary and permanent partner visas under the Migration Act 1958 (Cth). In a form she completed in December 2015, Ms Chang identified Mr Towle as her sponsor and their then-current relationship status as “partnered”.

6    On 13 December 2016, Ms Chang was granted a Partner (Temporary) (Class UK) visa on the basis of her relationship with Mr Towle. On 23 October 2019, she was granted a Partner (Residence) visa, also on the basis of that relationship.

7    Prior to June 2016, Mr Towle had been receiving a disability support pension under the Social Security Act 1991 (Cth) (SS Act). On 30 June 2016, the Secretary issued a notice to Mr Towle, requiring him to provide certain information about his relationship with Ms Chang and about her financial affairs. Mr Towle responded to that request, but did not provide all the information requested (for reasons which he explained, including that he did not consider that he could require Ms Chang to provide information about her income). On 14 July 2016, a delegate of the Secretary formed the view that Mr Towle had not complied with the requirement to provide information in response to the request. The delegate determined to suspend Mr Towle’s social security payments under s 81 of the Social Security (Administration) Act 1999 (Cth) (SSA Act). The delegate’s decision was affirmed on internal review.

8    Mr Towle sought external review of that decision in the Social Services and Child Support Division of the Tribunal. The decision of the Secretary was affirmed by the Tribunal, constituted by Member Strathearn (2016 AAT1 Decision). Mr Towle then sought further review by the Tribunal and, on 28 April 2017, the decision was again affirmed by the Tribunal, constituted by Senior Member Dunne: Towle v Secretary, Department of Social Services [2017] AATA 565 (2017 AAT2 Decision).

9    From the 2017 AAT2 Decision, Mr Towle appealed to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). On 28 March 2018, that appeal was dismissed by Charlesworth J: Towle v Secretary, Department of Social Services (2018) 75 AAR 288; [2018] FCA 407 (Towle FCA). Mr Towle appealed against that decision to the Full Court of the Federal Court. On 20 August 2018, the Full Court dismissed Mr Towle’s appeal from the judgment of Charlesworth J: Towle v Secretary, Department of Social Services (2018) 264 FCR 127; [2018] FCAFC 171 (Towle FCAFC). Mr Towle subsequently sought an extension of time to apply for special leave to appeal to the High Court from the judgment of the Full Court and, on 20 March 2019, that application was dismissed: Towle v Secretary, Department of Social Services [2019] HCASL 51 (Towle HCA).

10    On 28 August 2018, a delegate of the Secretary made a decision, pursuant to s 81 of the SSA Act, to cancel Mr Towle’s disability support pension with effect from the date when it was suspended, namely 14 July 2016. That decision was confirmed on internal review and Mr Towle then applied for review of that decision by the Tribunal.

11    In the meantime, Mr Towle had made an application for an age pension. On 29 March 2019, a decision was made to grant Mr Towle an age pension. It was determined that the age pension should be paid at the “partnered” rate, on the basis that Mr Towle was considered to be the de facto partner of Ms Chang.

12    On 4 September 2019, the Tribunal (constituted by Member Cullimore), on review of the decision of the delegate made on 28 August 2018, made a determination that Mr Towle’s disability support pension should not be cancelled (2019 AAT1 Decision). The delegate’s decision to cancel the disability support pension was set aside. In the 2019 AAT1 Decision, the Tribunal further decided that Mr Towle should be paid arrears in relation to the disability support pension from 28 August 2018 to 29 March 2019 – the latter date being the date on which he commenced receiving the age pension – and that the arrears should be paid at the “partnered” rate.

13    The 2019 AAT1 Decision was expressed as follows:

The Tribunal sets aside the decision to cancel payment of a disability support pension (“DSP”) to Mr Towle and substitutes a new decision:

•    that he should now be paid any arrears which are owing to him from 28 August 2018 up to the date of grant to him of an age pension (29 March 2019);

•    that those arrears should be paid at the partnered rate of DSP taking into account the combined income of himself and Ms Chang.

14    It is not clear from the material before the Court why the Tribunal decided that the payment of arrears should relate only to the period from 28 August 2018 onwards, since Mr Towle’s disability support pension had been suspended (and later cancelled) with effect from 14 July 2016. The Commonwealth and the Secretary were not able to explain the legal basis on which the Tribunal, in the circumstances of Mr Towle’s case, could find the disability pension should be reinstated from the date of the cancellation rather than from the date when it was first suspended. What is clear, however, is that the terms of the 2019 AAT1 Decision required that Mr Towle receive the disability support pension in relation to the period 28 August 2018 to 29 March 2019, and not in relation to the period 14 July 2016 to 28 August 2018.

15    I note that the proceedings before Charlesworth J and the appeal to the Full Court each proceeded on the basis that the notice issued on 30 June 2016 was a notice given pursuant to s 68 of the SSA Act. The view later taken by Member Cullimore in the 2019 AAT1 Decision was that it was probably in fact a notice issued pursuant to s 63(2)(d) of the SSA Act. I do not consider that anything turns on this for present purposes.

16    Mr Towle and the Secretary each applied for a further review by the Tribunal of the 2019 AAT1 Decision. However, both of those applications for review were later withdrawn, apparently following discussions between Mr Towle and a lawyer for the Secretary. The result was that the 2019 AAT1 Decision stood. Mr Towle had the benefit of that decision insofar as it entitled him to payment in arrears of the disability support pension for the period 28 August 2018 to 28 March 2019, but was also left with the determination that the disability support pension should not be paid in arrears for the period 14 July 2016 to 28 August 2018.

17    Following the 2019 AAT1 Decision, Mr Towle asked the Department to reinstate his disability support pension with effect from 14 July 2016 and to pay arrears for the period 14 July 2016 to 27 August 2018. A delegate of the Secretary considered that they had no capacity to review that decision or to substitute a different decision, because the decision that the disability support pension should be reinstated and arrears paid only from 28 August 2018 was a decision of the Tribunal, which had not been set aside.

18    On 3 February 2022, the Tribunal (Member Lambden) made a decision affirming three decisions, made on 19 June 2019, 11 October 2021 and 12 October 2021 (2022 AAT1 Decision).

19    Mr Towle applied for review of the 2022 AAT1 Decision. On 31 March 2023, the Tribunal (Senior Member Illingworth) made an interlocutory decision regarding the scope of the jurisdiction of the Tribunal on the review that was before it, and determined that its jurisdiction was relevantly limited to reviewing the 2022 AAT1 Decision (2023 AAT2 Decision). The Tribunal later provided written reasons for that decision: Towle v Secretary, Department of Social Services [2023] AATA 1507.

20    On 22 July 2024, the Tribunal (Deputy President Millar) determined Mr Towle’s application for review of the 2022 AAT1 Decision: Towle v Secretary, Department of Social Services [2024] AATA 2579 (2024 AAT2 Decision). In the 2024 AAT2 Decision, the Tribunal identified the decisions under review as follows (at [20]):

•    To pay Mr Towle the partnered rate of disability pension from 29 March 2019;

•    To restore Mr Towle’s mobility allowance payments from 24 June 2015 and to pay him the higher rate of mobility allowance from 28 August 2018; and

•    To reduce the rate of mobility allowance paid to Mr Towle to the lower rate from 16 September 2016.

21    On 15 August 2024, Mr Towle commenced two proceedings in this Court – action SAD 178 of 2024 and action SAD 179 of 2024. On 4 February 2025, I published reasons for an interlocutory judgment and made orders including that the two actions be consolidated into a single action, and that all documents filed up to that date in SAD 178 of 2024 be taken to have been filed in SAD 179 of 2024: Towle v Secretary, Department of Social Services [2025] FCA 42.

Mr Towle’s claims in the present proceedings

22    Mr Towle has attempted to articulate his claims on several occasions, in a number of lengthy documents filed in these proceedings (including in action SAD 178 of 2024, before it was consolidated with action SAD 179 of 2024). They include two originating applications and a statement of claim. Unfortunately, these documents are prolix and poorly structured. They are, with all respect to Mr Towle, difficult to understand, even with great effort. I have set out some extracts from them below.

23    The originating application filed in action SAD 178 of 2024 is 50 pages long. The originating application filed in action SAD 179 of 2024 is 13 pages long and is accompanied by a statement of claim, filed on the same date, which is 18 pages long (excluding an annexure). The statement of claim does not comply with the rules of pleading. It is liable to be struck out. I have not found it a useful document for the purposes of defining the issues to be considered. I set out a small extract from the statement of claim here in order to give a sense of its content:

Origin of Contention:

My matter arises from and original error of jurisdictional fact [errors of law] leading to a decision made by the Commonwealth as Centrelink, on or about 24/12/2015 which determined I was in a de facto relationship under Social Security Law from 27/06/2013 with an alien, Ms Ya-Fen Chang, who I did not know at that time in any forum, cyber or terrestrially based, and, no matter how much I protested this error of jurisdiction, the date was followed by AAT and passed to the Federal Court until finally on 07/07/2023 and 19/07/2023 two errors of jurisdictional fact were confessed by DSS, the second being that the Social Security Act 1991 (Cwth) sections 4(3) and particularly s4(3A) going to the Rule of Law, Lex Domicilii, relevant to my girlfriend at the time Miss Ya-Fen Chang, a Taiwanese citizen and permanent resident were never correctly if at all, invoked.

Questions for the Court:

My apologies for not knowing how to frame these questions:

Whether the following unlawful acts have occurred?;

(1)Fraud [to enrich the Commonwealth by stealth]?,

(2) Frustration of a Commonwealth contract by the Commonwealth?,

(3) Breach or partial breach of a Commonwealth contract by the Commonwealth?,

(4) Tribunal refused to look at evidence of my true original grounds of appeal which delegates had been instructed by legal branch to ignore?,

(5) A denial of procedural fairness?,

(6) A Commonwealth Entity Failing to pay and/or Refusing to Pay Eligible Welfare payments?,

(7) Obstruction of Justice by a Tribunal?,

(8) Unethical and/or unprofessional and damaging behaviour by Government lawyers?,

(9) Historic Jurisdictional Error/s?,

(10) Current Jurisdictional Error/s?,

(11) Miscarriage of Justice?,

(12) Denial of Natural Justice?,

(13) Abuse of Power?,

(14) Misfeasance?, (15) Malfeasance?,

(16) Unconscionable conduct?,

(17) Unfair and Unreasonable conduct?,

(18) Errors of Material Facts leading to errors of law?,

(19) Intended Unlawful Income Assumption?,

(20) Misleading information by Services Australia to AAT and to the Federal Court?,

21) Systemic Corruption?,

(22) Oher corruption?, ,

(23) A document QSS32, of 06/07/2016 a purported questionnaire, contained an unlawful instruction, not being a question, for me to obtain private and confidential pay roll data belonging to a third party, from the employer, without also providing any relevant legal authority to me or the employer, the third party being a temporary resident of Australia at the time holding a Bridging Visa 010 providing permission to work and consent to overstay, and offshore travel restriction, attached to a 12 month Electronic Travel Authority (ETA) 601 tourist visa?,

(24) My Disability Support Pension (DSP) was suspended for not complying with the unlawful instructions in 23 above?,

(25) Because of Centrelink reliance upon the jurisdictional error, SS Act 1991 s24 was invoked without lawful reason on or about 24/10/2015, which invocation induced errors by me, the AAT, and consequentially the Federal Court?,

(25) An admission by Services Australia of two overriding jurisdictional errors brings into questions the validity AAT and Court decisions which relied upon the facts consequent to those errors of law?,

(26) other as identified by the Court?

Compensation - Damages?

I suggest the emotional, psychological and financial damages done to me and my female joint property owner, close friend and former de facto partner, Ms Ya-Fen Chang, has been substantial, including but not limited to the fact a large portion of my Disability Support Pension [DSP] for the period 08/07/2016 to 27/08/2018 inclusive has been unlawfully withheld from me for over 8 years when there is no suspension and no cancellation in place.

…

(Emphasis and formatting in original.)

24    Although it was evident that Mr Towle sought to commence proceedings for judicial review under both the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and by invoking the jurisdiction conferred on this Court by s 39B(1) of the Judiciary Act 1903 (Cth), it was difficult to identify precisely which decisions he claimed were invalid or the precise basis or bases on which he claimed each of those decisions was affected by jurisdictional error or other relevant error of law.

25    On 2 December 2024, the Commonwealth and the Secretary indicated that they intended to file an application for summary judgment in relation to all or part of the proceedings. On that date, I made orders that Mr Towle file a more concise document, identifying the decision or decisions under review; containing the grounds of review for each ground he wished to pursue; and identifying what conduct was relied on and which causes of action were maintained or were not maintained. The purpose of that order was to give Mr Towle an opportunity to identify more precisely those matters which are critical to the success of an application for judicial review, and to enable the Commonwealth and the Secretary to better understand the case being advanced by Mr Towle before making any application for summary judgment.

26    On 9 January 2025, Mr Towle filed an affidavit of six pages in order to comply with this order. Although styled as an affidavit, the document is not in the nature of evidence.

27    In the first part of the document filed by Mr Towle on 9 January 2025, he has identified what he describes as “Errors of Jurisdictional Fact”. I find the description of the errors difficult to understand, and it is not obvious exactly how the alleged errors relate to particular decisions. I set out this part of the document in full:

1.    The fundamental jurisdictional determination was predicated upon a misapprehension of a jurisdictional fact that I conveyed to the Secretary of the Department of Social Services (DSS) on 24 December 2015 that I had been engaged in a de facto relationship with Miss Ya-Fen Chang, a national of Taiwan, since 27 June 2013, thus exceeding two years. However, it was acknowledged by the DSS, in a statement issued to AAT Senior Member Illingworth on or about 7 July 2023—nearly eight years subsequently—that no such notification had been made by me.[TT48]

2.    This error was further compounded by a determination under the Social Security Act 1991 (SSA) section 24, on or about 24 December 2015. [TT17] I was made aware of the jurisdiction determination approximately seven months later as a result of the suspension of my Disability Support Pension. This information was detailed in a report by an Authorised Review Officer (ARO) reference number A246476 dated approximately 26 July 2016. The key findings from the ARO were as follows [paraphrased]:

‘ - On 24 December 2015, I purportedly submitted my partner’s details to the department, asserting that a marital relationship with Miss Ya-Fen Chang commenced on 27 June 2013.

- On that same date, an (SSA) s24 decision was rendered to assess me as maritally partnered while continuing to pay my Disability Support Pension at the single rate.

- A request for additional information was dispatched to me on 30 June 2016.

- I returned the requested information to the department on 6 July 2016; however, allegedly I did not furnish all the requested documentation.

- Consequently, my entitlement to the Disability Support Pension was suspended effective 8 July 2016.’ [T8 page 99]

3.    Furthermore, a failure to apply the requisite legal standards to ascertain jurisdiction was, in essence, corroborated by the DSS in an email dated circa 19 July 2023, wherein it was stated that no records could be located to indicate that the criteria delineated in sections 4(3) and 4(3A) of the Social Security Act 1991 had been applied in the determination of my alleged de facto relationships. [TT50]

4.    The underlying cause of these errors is evidenced within the DSS’s own contemporaneous evidentiary ‘T’ documents. An internal memorandum drafted by delegate KKI467 on 14 July 2016 [TT22] sought to justify the suspension of my pension and disclosed that the application by Ms Chang for consent to migrate—to enable a change in permanent domicile— was erroneously treated as sufficient evidence to establish the existence of a de facto relationship. It is crucial to note, however, that the holding or absence of a visa, or the act of applying for one, is not a criterion mandated by sections 4(3) or 4(3A) of the Social Security Act 1991. In this regard, reference is made to the Migration Act 1958, section 5CB(2)(c)(ii), and the case of SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 at [4]. Section 4(3A) (SSA) prohibits a de facto determination in those circumstances.

5.    The errors delineated above were subsequently adopted, pursued, and/or relied upon by all subsequent decision-makers and reviewers, including a Single Judge and the Full Bench of the Federal Court. This includes those who provided pro bono assistance regarding my notices of appeal or rendered advice, some of whom inadvertently refused legal assistance owing to these errors.

6.    AAT 1585/2022 [SAD178 of 2024] cited decisions to support her decisions and comments.

(Emphasis and formatting in original.)

28    In the next part of this document, Mr Towle has set out the following list of 14 decisions, which are evidently the decisions that Mr Towle has been able to identify which he contends are affected by what he describes as an “admitted jurisdictional error”:

Decisions in Contention for validity in light of admitted jurisdictional error include:

1.        The section 24 determination of about 24/12/2015.

2.    The validity of the decision dated on or about 30/06/2016 notified by letter [T23 page 502/3] and with an attached questionnaire [T7 page 96] to require me to “ANSWER” questions relevant to Ms Chang’s lifestyle. [Signed by: “K Ingall Delegated Customer Service Adviser”] [q.v TT20] and;

3.    The validity of the decision to issue a call to action [not a question] in the same document to obtain, without mandated authority, a letter from her employer detailing her income data and;

4.    The validity of the suspension of my DSP from 08/07/2016 in the light of the admission of jurisdictional error.

5.    The validity of the relevant decisions and/or the jurisdictional validity of the AAT matter 2016/A098535 consequent to the DSP suspension and heard by Member Ms K Strathearn on or about 20/09/2016 [T21 page 188] and/or;

6.    The validity of the relevant decisions and/or the jurisdictional validity of the AAT matter 2016/5363 an appeal from A098535 above and heard by Senior Member R W Dunne on or about 28/04/2017 [T21 page 175] and/or;

7.    The validity of any decision prior to 23/10/2019 to deal with me as a member of a de facto couple with Ms Chang and;

8.    The validity of the relevant decision/s and/or the relevant jurisdictional validity of the Federal Court of Australia case Towle v Secretary, Department of Social Services [2018] FCA 407 [SAD131/2017] before the Honourable Justice Charlesworth J [T21 page 195] and/or;

9.    The validity of the relevant decision/s and/or the relevant jurisdictional validity of the Honourable Full Court of the Federal Court (FCAFC) case Towle v Secretary, Department of Social Services [2018] FCAFC 171 [SAD90/2018] [T21 page 209] and/or;

10.    The validity of the decision to order I be paid at the married rate of DSP [because he adopted the jurisdictional error as a true fact] and/or the jurisdictional validity of AAT matter 2019/A138066 heard by Member S Cullimore on or about 04/09/2019 consequential to a manually requested cancellation of my DSP dated from 28/08/2018 based largely on the same grounds as the still being appealed suspension

a)    Member Cullimore, in effect, unknowingly uncovered by implication the original jurisdictional error] [T21 page 224] and/or;

11.    The validity of the decision and/or the relevant jurisdictional validity of the High Court A35 of 2018 seek leave to appeal from the Full Federal Court [T21 page 222] and/or;

12.    SAD178/2024: Deputy President K Millar — AAT 2022/1585 — 22/07/2024

a)    The validity of the relevant decision to treat me as a member of a de facto couple with Ms Chang retrospectively in particular as at 29/03/2019 and/or;

b)    The relevant jurisdictional validity of 2022/1585 in the light of decisions affecting my welfare entitlements were all predicated upon the errors of jurisdictional fact or vexatious decisions consequent on the continuance of my appeals and/or;

c)    The validity of other material comments and/or;

13.    The validity of the decision/s relevant to my Mobility Allowance detrimental to my interests notwithstanding the decision relevant to cancellation from June 2015, which was not my grounds BUT WAS, I STRONGLY SUGGEST, inserted into my 1585/2022 series of appeals as a ‘DETERENCE’ TO MY APPEAL and/or;

14.    The validity of any other relevant decision/s which have escaped my 80-year old mind, which may, at the right time, be brought to light.

(Emphasis and formatting in original.)

29    Although Mr Towle’s list of decisions purports to be non-exhaustive, it is for the applicant in judicial review proceedings to identify with precision which decision or decisions are alleged to be invalid and the basis on which each such decision is impugned. Mr Towle has been given a fair opportunity to identify the decisions which he seeks to challenge in these proceedings, and I intend to proceed on the basis that they are the decisions identified in the document filed by Mr Towle on 9 January 2025, set out above. The submissions made by the Commonwealth and the Secretary in support of their interlocutory application proceed on that basis.

30    The next part of the document filed by Mr Towle on 9 January 2025 consists of summaries of the contents of the two originating applications filed by him in actions SAD 178 of 2024 and SAD 179 of 2024. Mr Towle has candidly explained that the summary was prepared using an artificial intelligence program. The summary does not provide much assistance in identifying any specific decision that is challenged; it is at a high level and although I accept that it identifies some of the contentions that can be discerned from the two originating applications, I have not found it to be of assistance.

31    As has already been noted, the written material filed by Mr Towle is voluminous. The extracts set out above provide a sense of the nature of that material and the difficulty it presents in terms of understanding the arguments on which he relies. I have done my best to understand and address the arguments.

Legal principles relevant to summary judgment

32    Section 31A of the FCA Act relevantly provides as follows:

…

(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.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

…

33    Rule 26.01(1) of the Federal Court Rules provides as follows:

(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

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

34    On an application for summary judgment, the respondent, as the moving party, bears the onus of persuading the Court that the application has no reasonable prospect of success: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641 at 271 [45]; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7]. In Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28, French CJ and Gummow J said of s 31A of the FCA Act (at 130-1 [22]):

The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

The submissions of the parties

35    In support of their application for summary judgment, the Commonwealth and the Secretary rely on an affidavit of their solicitor, Alexander Pok-Man Chan, affirmed on 10 February 2025, as well as written submissions filed on 12 February 2025. Mr Chan’s affidavit collects together several of the decisions of the Tribunal and this Court. In addition, a copy of the 2019 AAT1 Decision was provided to the Court in the course of the hearing.

36    Mr Towle relies upon written submissions running to some 42 pages. He also relies on two affidavits affirmed by him on 28 August 2024 and 6 September 2024, respectively, and on affidavits affirmed by him on 9 January 2025 (being the document referred to at [26]-[30] above), 14 February 2025 (although incorrectly referring to 14 February 2015) and 18 March 2025. The affidavit of 18 March 2025 simply deposes to the fact that the written submissions are “true and correct”.

37    The Commonwealth and the Secretary submit that, even though Mr Towle expresses his complaints in a variety of ways, each of them naturally leads back to the same starting point: the decision in 2016 to suspend his disability support pension. They submit that the proceedings amount to “an impermissible attempt to engage in a roving enquiry into factual and legal matters that have been authoritatively determined adversely to [Mr Towle]”. I accept that this accurately characterises some of Mr Towle’s submissions, but it would be too simplistic to conclude that every aspect of Mr Towle’s present application amounts to nothing more than an attempt to relitigate issues that have been conclusively determined adversely to him.

Alleged errors identified by Mr Towle

38    It is convenient to begin by considering certain specific arguments developed by Mr Towle in his written and oral submissions on the application for summary judgment of the Commonwealth and the Secretary. It is not entirely clear precisely which of the challenged decisions would or might be affected if these arguments were to be upheld. However, for the reasons given below, I do not consider that these arguments enjoy a reasonable prospect of success on an application for judicial review in this Court.

Contention that Mr Towle and Ms Chang could not be in a de facto relationship before Ms Chang acquired permanent citizenship

39    A central argument on which Mr Towle relies is that the various decisions of the Secretary and the Tribunal are affected by jurisdictional error because they had regard to information that was submitted in support of the partner visa applications made by Ms Chang. I understand Mr Towle to contend that this amounts to an error of law.

40    Mr Towle argues that to rely on information provided for the purposes of a visa application as relevant to the question of whether Ms Chang was the partner of Mr Towle at a particular point in time for the purposes of social security law was to make an error of law, or to proceed on a misunderstanding of the law, because the relevant provisions relating to de facto relationships in the Migration Act and the SS Act are different.

41    It is true that the provisions that serve to define what constitutes a “de facto relationship” for the purposes of the Migration Act and the SS Act differ from each other. Section 5CB(2)(c) of the Migration Act, insofar as it is relevant to Mr Towle’s argument, provides that a person is in a de facto relationship with another person if they are not in a married relationship with each other but:

(c)    they:

(i)    live together; or

(ii)    do not live separately and apart on a permanent basis.

42    Section 4(3A) of the SS Act states:

(3A)    The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

43    In oral argument, Mr Towle said:

I have consistently stated from 2016, I should not be determined to be a member of a de facto couple with Ms Ya-Fen Chang under social security law unless and until the Minister responsible for immigration grants her a permanent visa.

44    Mr Towle has indeed been consistent, and persistent, in advancing this argument.

45    I understand Mr Towle to submit that, because it is not necessary that the parties reside together at or prior to the point in time when an application for a partner visa is made, information advanced in support of an application for a partner visa could not be relevant to the assessment of whether Mr Towle and Ms Chang were in a de facto relationship for the purposes of the SS Act.

46    Mr Towle relies on the decision in SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1; [2015] FCAFC 69 (SZOXP). The issue presented by that case was whether, in order for a de facto relationship to be found to exist for the purposes of s 5CB(2)(c)(ii) of the Migration Act in circumstances where the relevant persons were not currently living together, it was necessary to establish that they had, at some earlier time, lived together. The Tribunal had found that the appellant and his sponsor were in a committed and exclusive relationship, had a mutual commitment to a shared life to the exclusion of all others, and the relationship was genuine and continuing. They had not cohabited before they were married and had not cohabited after their marriage because the appellant had been in immigration detention. The Minister successfully sought judicial review of the Tribunal’s decision in the Federal Circuit and Family Court of Australia (Division 2) and the appellant appealed against that decision to the Full Court. The Full Court held that s 5CB(2) did not require the parties to be living together, or previously to have lived together, in order to be in a de facto relationship for the purposes of that section. It was not a requirement of s 5CB of the Migration Act that the parties, in order to be in a “de facto relationship”, physically reside in the same premises prior to the making of the visa application: at 15 [65].

47    The decision in SZOXP does not assist Mr Towle. Whether evidence or information is relevant to a decision under the SS Act must be assessed by reference to the content of the evidence itself and the definition of a de facto relationship in the SS Act. Although there are differences between the Migration Act definition and the SS Act definition of a de facto relationship, the material that was relevant in assessing whether Mr Towle and Ms Chang were in a de facto relationship consisted of statements made in relation to Ms Chang’s visa application to the effect that she and Mr Towle were in a de facto relationship. The use made of those statements in connection with the application of the SS Act was evidentiary. It did not involve substituting or confusing the different definitions of “de facto relationship” in the SS Act and the Migration Act.

48    Evidence advanced by Mr Towle or Ms Chang for the purpose of demonstrating the nature of their relationship for the purposes of Ms Chang’s partner visa applications was rationally capable of bearing on the assessment of facts relevant to the nature of their relationship for the purposes of the SS Act. Unlike in SZOXP, the position which I understand Mr Towle to accept was that he was living together with Ms Chang. His position is that, even though he was living with her, and with the intention of forming a de facto relationship with her if she were granted a permanent visa, he was not actually in a de facto relationship with her until the permanent visa was granted. Statements made by Ms Chang in 2015, to the effect that she and Mr Towle were living together in a de facto relationship, and had been doing so since 2013, were relevant to the Secretary’s determination of whether Mr Towle and Ms Chang were in a de facto relationship, and taking them into account involved no error of law. To take into account what was submitted in connection with the visa application, in considering whether a de facto relationship exists for the purpose of the SS Act does not reveal any misunderstanding of what was decided in SZOXP.

49    It also appears to me that this argument is similar, although perhaps not identical, to an argument that was addressed, and determined against Mr Towle, by the Full Court in Towle FCAFC at 132 [18]-[21].

50    The argument was also relied on by Mr Towle in the Tribunal and was addressed by Deputy President Millar in the 2024 AAT2 Decision. After setting out the passage from the judgment of the Full Court which I have reproduced above, Deputy President Millar said of the argument made before her (at [38]):

… Many of the matters that require consideration of the grant of a Partner (Provisional) visa are also included in the assessment of whether a person is in a de facto relationship for the purposes of the Act. Mr Towle and Miss Chang’s view of their relationship, and how they presented this for immigration purposes, is therefore highly relevant in examining if they were members of a couple as defined in the Act.

51    With respect, this reasoning is correct. This reasoning is not based on any conflation of distinct issues that may arise under the Migration Act and the SS Act. It just recognises that issues and evidence that are relevant to the assessment of each question will overlap.

52    Another aspect of Mr Towle’s argument, as I understand it, is that the Secretary could not find that he and Ms Chang were in a de facto relationship unless and until she was granted a permanent visa, because, until that time, it could not be said that he and Ms Chang were living together on a permanent or indefinite basis. They could not be said to be living together on a permanent or indefinite basis because, unless and until Ms Chang was granted a permanent visa, they did not know whether the relationship would continue permanently or indefinitely.

53    This argument appears to be to be based on a fundamental misreading of s 4(3A) of the SS Act. Section 4(3A) provides that the Secretary must not form the opinion that a relationship between a person and their partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis. It does not state that a person can only be found to be in a de facto relationship if the person and their partner are living together on a permanent or indefinite basis. In the case of Mr Towle and Ms Chang, the Secretary evidently formed the opinion that they were living together. That was sufficient to demonstrate that they were not living separately and apart on a permanent or indefinite basis. It was not necessary for the Secretary also to be satisfied that their cohabitation was on a permanent or indefinite basis.

54    For these reasons, Mr Towle’s arguments on this issue are clearly wrong. Insofar as Mr Towle’s application depends on a submission that there was an error of law by reason of the decision-makers having regard to information submitted as part of the visa application process, I find that it enjoys no reasonable prospect of success.

Contention that Mr Towle and Ms Chang lived separately and apart on a permanent or indefinite basis

55    In the 2024 AAT2 Decision at [33], Deputy President Millar made the following factual findings:

Mr Towle and Miss Chang were, in fact, living in the same household at the point in time this was required to be assessed, and have continued to live in the same household. At no time have they lived apart. I do not accept that they lived separately and apart on a permanent or an indefinite basis.

56    Those findings do not disclose any jurisdictional error or other error of law. I understand that Mr Towle does not agree with the conclusion reached, and maintains that the true position is that he only commenced a de facto relationship with Ms Chang once she was granted a permanent visa. But disagreement with that factual conclusion provides no basis for an application for judicial review.

57    The objective fact of whether Mr Towle was in a de facto relationship with Ms Chang does not appear to have been a jurisdictional fact in relation to any of the decisions which he seeks to challenge. Rather, the formation of a state of mind about that fact was a matter that was within the jurisdiction of the Secretary (in the first instance) or to the Tribunal (on a review) to decide. In the language of Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 389, it “is a question committed to their decision; it is not a matter of jurisdiction”.

58    Insofar as Mr Towle seeks to challenge the factual conclusion that he was, at a given point in time, in a de facto relationship with Ms Chang, it is not open to him to do so in this Court and the argument does not enjoy a reasonable prospect of success.

Contention that there was “no jurisdiction” over Ms Chang in relation to the SS Act or the SSA Act

59    Mr Towle relied on an argument to the effect that the Department had “no jurisdiction” over Ms Chang at a time when she was a foreign national, ordinarily resident in a foreign country. As I understand it, this argument relates to periods of time when Ms Chang was a lawful non-citizen who held an Australian visa, but not a permanent visa, and when she was (at least for much of the period) present in Australia. I understand Mr Towle to submit that Ms Chang was not subject to the “jurisdiction” of Australian social security law, meaning that social security law can only apply with respect to Australian permanent residents or citizens. Assuming I have understood the submission, in my view it is misconceived.

60    Mr Towle submits that Ms Chang was not “domiciled in Australia” and that she “live[d] in another country”. As at 30 June 2016, she was not a permanent Australian resident but she did hold a visa that permitted her to enter and remain in Australia. To the extent that Mr Towle submits that ss 63 and 68 of the SSA Act could not be used to obtain information relating to, or that might be sourced from, a person who “is not domiciled in Australia” or who “lives in another country”, there is no basis for reading such a limitation into those provisions. Such information can be sought from persons to whom s 63 or s 68 applies.

61    In connection with this submission, Mr Towle also referred to the distinct power of the Secretary to obtain information from persons generally which is conferred by ss 192 and 196 of the SSA Act. The existence of that power does not preclude the exercise of the powers in s 63 or s 68 to obtain information from a person who is in receipt of a social security payment, even if the information relates to another person and so could also have been sought from that other person using the power in ss 192 and 196.

62    Various provisions of Division 6 of Part 3 of the SSA Act are limited in their operation to certain classes of persons. For example, the persons who may be issued a notice under s 63 of the SSA Act are limited to the classes of persons identified in s 63(1). Likewise, the power to issue a notice under s 68 can only be exercised in relation to “a person to whom a social security payment … is being paid”. However, it does not follow that information about a person who is not an Australian permanent resident cannot be relevant to the operation of the SS Act or the SSA Act. In particular, a relationship between a person who is, or may be, eligible to receive social security payments and a person who is not an Australian citizen or permanent resident may be relevant to the first person’s entitlement to receive payments.

63    I do not consider that an argument framed in terms of the SS Act or the SSA Act having “no jurisdiction” over Ms Chang enjoys any reasonable prospect of success.

Decisions identified by Mr Towle as decisions which he challenges

64    I will next proceed by considering each of the decisions which Mr Towle has identified, in his document filed on 9 January 2025, as decisions that he claims are affected by jurisdictional error. In some cases it will be convenient to consider several decisions together as a group because there are similar considerations that apply to each of them.

Decision 1: decision under s 24 of the SS Act

65    Under s 4(6) of the SS Act, the Secretary must not form the opinion that the relationship between a person and their partner is a de facto relationship if a determination under s 24 is in force in relation to the person. Section 24 of the SS Act relevantly provides:

24 Person may be treated as not being a member of a couple (subsection 4(2))

…

(2)    Where:

(a)    a person has a relationship with another person, whether of the same sex or a different sex (the partner); and

(b)    the person is not legally married to the partner; and

(c)    the relationship between the person and the partner is a de facto relationship; and

(d)    the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.

…

66    The letter dated 24 December 2015, which records a decision apparently made on or around that date, is not in evidence before the Court, but the letter was described and discussed in the reasons of Deputy President Millar in the 2024 AAT2 Decision at [76]-[81]. Part of the content of the letter was set out by Deputy President Millar at [76], as follows:

You will be paid the rate for a single person, even though you have a partner. The reason for this is that your partner is unable to claim an income support payment due to her Visa and she does not have any income and assets to support you.

The decision to assess you as a single person is subject to review and you should expect to be telephoned or asked to attend a service centre for this review to be conducted.

67    I understand the decision made on 24 December 2015 to have benefited Mr Towle. I do not understand the basis on which he challenges the validity of this decision.

68    To the extent that the decision is challenged on the basis that it involved an acceptance by the Secretary or an officer of the Department that Mr Towle and Ms Chang were in a de facto relationship as at 24 December 2015, I do not accept that Mr Towle’s application identifies any reasonably arguable basis to conclude that that finding was affected by any relevant error, for the reasons explained at [39]-[47] above.

Decisions 4-6: decision to suspend Mr Towle’s disability support pension from 8 July 2016

69    It is convenient next to consider decisions 4-6 together. Decision 4 is the decision of the Secretary to suspend Mr Towle’s disability support pension, which took effect on 8 July 2016. After being affirmed on internal review, decision 4 was then subject to full merits review in the Tribunal. The Tribunal’s decision on the first review, which affirmed decision 4, is decision 5. On a further review in the Tribunal, decision 4 was again subject to full merits review and was upheld by decision 6, the 2017 AAT2 Decision.

70    While each of these decisions could theoretically be the subject of an application for judicial review, there is no apparent utility in any application for judicial review of decisions 4 and 5, given that they have been the subject of a full merits review and have been affirmed by decision 6. Any application for judicial review of decisions 4 or 5 would inevitably be dismissed in the exercise of the Court’s discretion on that basis.

71    As to decision 6, that was the decision that was the subject of the appeal under s 44 of the AAT Act which gave rise to the proceedings in this Court that were heard and determined by Charlesworth J, and which were the subject of Mr Towle’s unsuccessful appeal to the Full Court and his unsuccessful application for an extension of time to apply for special leave to appeal to the High Court. The effect of Towle FCA and Towle FCAFC is that it has been judicially determined that decision 6 is not affected by error of law and is not to be set aside. It has been determined that decision 6 is valid. Mr Towle has exhausted his appeal rights in relation to that decision and its validity must now be taken as finally settled. It is not open to Mr Towle to challenge the same decision once more in an action for judicial review. Again, any such application would inevitably be dismissed in the exercise of the Court’s discretion.

72    I add that it is not apparent that the validity of the decision to suspend the payment of Mr Towle’s disability support pension, which was the subject of decisions 4, 5 and 6, depended upon whether or not Mr Towle was, in fact, in a relationship with Ms Chang, or upon the point in time that their relationship began. Even if it were open to Mr Towle to challenge these decisions, and even if the Tribunal made an error by finding that Mr Towle was in a relationship with Ms Chang, that would not amount to an error that would lead to success on an application for judicial review.

73    For these reasons, I conclude that the proceedings enjoy no reasonable prospect of success insofar as they seek to challenge decisions 4, 5 and 6. Moreover, since decision 6 was a review of decisions 4 and 5, and the validity of decision 6 has been conclusively determined by Charlesworth J and the Full Court, I am satisfied that Mr Towle’s application is an abuse of process insofar as it seeks to challenge decisions 4, 5 and 6.

Decisions 8, 9 and 11: decisions of the Federal Court and the High Court

74    Next, it is convenient to consider decisions 8, 9 and 11 together. Decision 8 is the decision of Charlesworth J, Towle FCA, dismissing Mr Towle’s appeal from the 2017 AAT2 Decision. Decision 9 is Towle FCAFC, dismissing Mr Towle’s appeal from the judgment of Charlesworth J. Decision 11 is the decision of the High Court, Towle HCA, refusing Mr Towle’s application for an extension of time to apply for special leave to appeal from the judgment of the Full Court.

75    Insofar as Mr Towle relies upon the ADJR Act as a basis for the proceedings, that act applies only in relation to “decisions of an administrative character”: see the definition of “decision to which this Act applies” in s 3(1) of the ADJR Act. The judgments of Charlesworth J and the Full Court, and the decision of the High Court refusing an extension of time to apply for special leave, are judicial decisions. They are not decisions of an administrative character and so are not amenable to review under the ADJR Act.

76    Insofar as Mr Towle invokes the jurisdiction of this Court under s 39B of the Judiciary Act, a court exercising judicial review jurisdiction of that kind is not empowered to issue constitutional writs directed to itself: see, eg, Re Jarman; Ex parte Cooke (1997) 188 CLR 595 at 603-4 (Brennan CJ), 610 (Dawson J), 637 (Gummow J), 647 (Kirby J); R v Justices of the Central Criminal Court; Ex parte London County Council [1925] 2 KB 43 at 58-9, 60-1. For this reason, Mr Towle’s attempt to seek judicial review of Towle FCA and Towle FCAFC enjoys no prospect of success.

77    In any event, there is no basis to find that Towle FCA or Towle FCAFC was affected by jurisdictional error or other error of a kind that would warrant relief on an application for judicial review. In this regard, I note that Keane and Edelman JJ, in dismissing the application for an extension of time to seek special leave against the decision of the Full Court, stated that “the application has no prospects of success as the decision of the Full Court of the Federal Court of Australia is clearly correct”: Towle HCA at [1].

78    There are additional reasons why Mr Towle’s challenge to Towle HCA cannot possibly succeed. First, in Luck v National Duty Registrar of the Federal Court of Australia (Permanent Stay) [2024] FCA 1257, Wheelahan J said (at [34]) that it was “ludicrous to think that this Court would, in the exercise of a discretionary power to grant relief under the ADJR Act, make an order directed to a Justice of the High Court”. That observation applies, if anything, even more strongly in relation to a decision of two justices of the High Court determining an application for an extension of time to seek special leave to appeal.

79    Finally, the refusal of an application for special leave does not itself operate to preclude the making of a further application for special leave, so an order setting aside the High Court’s refusal to extend time would not have any utility. In saying this, I do not intend to give any encouragement to Mr Towle to make a further application for an extension of time to seek special leave to appeal against the earlier judgment of the Full Court: any such application would seem certain to fail in light of the conclusion already reached by two justices of the High Court that the decision of the Full Court was clearly correct.

80    The fact that Mr Towle seeks, in the present proceedings, to set aside the three judicial decisions (decisions 8, 9 and 11) is a strong indication that his application is directed, at least in part, to re-litigating claims that either were made or could have been made in those earlier proceedings.

81    Insofar as Mr Towle’s application seeks orders setting aside or varying the earlier decisions of this Court and the High Court, I am satisfied that the application enjoys no reasonable prospect of success and, furthermore, that it constitutes an abuse of process.

Decisions 2 and 3: decision to send Mr Towle questions in respect of his relationship with Ms Chang and decision to obtain information from Ms Chang’s employer

82    Mr Towle’s contention in connection with these decisions appears to be that the Department had no legal authority to demand that Ms Chang or Ms Chang’s employer provide Mr Towle with information about his relationship with Ms Chang or information about her employment. He also contends that the Department “had no legal authority to seek payroll information from a non-resident”.

83    It is not clear to me that the Department ever sought information directly from either Ms Chang or her employer. These complaints appear to relate to the decision of the Department to issue a notice to Mr Towle requiring him to produce documents in his possession, on or about 30 June 2016. Mr Towle developed this submission orally in the following way:

I was asked for in the questionnaire, which is not a question, was to provide Ms Chang’s payslips or get a letter from her employer detailing income she had earned in the previous three months and hours of work and income she had earned the previous three month[s]. I wasn’t given any authority to get that, and I declined to get that on the basis that I wasn’t privy to her private information, but I also answered the question she’s not a permanent resident. So I’m virtually saying you don’t have jurisdiction. That’s what I meant by that.

I actually tested that two years later, and I wrote to that employee when I found out who it was. I said, “Centrelink wants Ms Chang’s financial income data,” and I didn’t get an answer. I don’t answer spam either, if I get it. I don’t think they – they didn’t have any authority to ask me to get Ms Chang’s payroll information. They could have asked her if they legitimately needed it. It came up in the Full Federal Court – the lady judge. I forget their names. I’m sorry. She asked a question, through the barrister, why they couldn’t get Ms Chang’s payslip directly from Ms Chang, and the lawyer for Services Australia answered, “Because she’s not in receipt of a welfare payment.” Now, I understood that to mean because we don’t have jurisdiction, but the court didn’t pick up on that.

84    The relevant decision to which these submissions refer is the decision to issue a notice, whether under s 63 or s 68 of the SSA Act. The relevant notice was not directed to Ms Chang’s employer but to Mr Towle, who was at that time a person who was in receipt of a disability support pension. A notice under s 63 may be issued to a person who is receiving, or has made a claim for, a social security payment: s 63(1)(a). A notice under s 68 may be issued to a person to whom a social security payment is being paid. There is nothing in s 63 or s 68 that prevents a request being made of a person who is in receipt of social security payments to provide information that relates to the affairs of another person, if that information or those documents are relevant to, or might affect, the person’s entitlement to payments. As I understand Mr Towle’s argument, it is that he could not be required to provide information from Ms Chang’s employer because the SS Act had “no jurisdiction” over her affairs. As already explained above, I do not accept that that argument enjoys a reasonable prospect of success.

85    There is a distinction between a notice issued to a person who is receiving social security payments, which seeks information they might obtain from another person, and a notice issued to the other person. The fact that ss 63 and 68 of the SSA Act limit the classes of persons to whom notices under those sections may be issued does not mean that notices issued under those sections cannot seek information that a person might obtain from another source, provided the information sought is relevant to the person’s entitlement to receive a social security payment. That conclusion is consistent with the reasons of Charlesworth J in Towle FCA at [31]-[33] and [43]-[44], although I acknowledge that her Honour was there dealing with a different argument, to the effect that a notice could not require Mr Towle to obtain information from Ms Chang because of the existence of a prior determination under s 24 of the SS Act that Mr Towle not be treated as a member of a couple with Ms Chang.

86    Further, the issue of the notice (whether under s 63 or s 68) and Mr Towle’s failure to comply fully with its requirements are what led to the decisions to suspend Mr Towle’s disability support pension (decisions 4-6, considered above) and then to decisions of the Federal Court on appeal and of the High Court (decisions 8, 9 and 11, considered above). The only consequence of any invalidity of the notice lies in whether Mr Towle’s deemed non-compliance with it supported the decision to suspend the payment of his disability support pension. As explained above, the effect of Towle FCA (and the dismissal of the appeal from that decision by the Full Court in Towle FCAFC) was to judicially determine that the decision to suspend the payment of Mr Towle’s disability support pension was not relevantly affected by error of law.

87    Insofar as Mr Towle seeks to contend that there was no power to require him to produce information from Ms Chang, this appears to me to be, at least in its essence, a repeat of the argument that was advanced before Charlesworth J, which her Honour described as a contention “that a notice issued under s 68 of the SSA Act could not compel him to provide information about Ms Chang that he could not legally compel Ms Chang to disclose”: Towle FCA at [31]. Justice Charlesworth rejected that contention on the basis that the Tribunal had found, as a matter of fact, that Ms Chang was not unwilling to disclose her financial information to him. Justice Charlesworth’s reasoning appears to me to be inconsistent with a contention that the notice issued to Mr Towle on 30 June 2016 could not lawfully seek information relating to Ms Chang.

88    For all these reasons, I do not consider that there is any prospect of Mr Towle obtaining relief in relation to decisions 2 and 3.

Decision 7: any decision prior to 23 October 2019 to deal with Mr Towle as a member of a de facto couple

89    Decision 7 is identified as “any decision … to deal with [Mr Towle] as a member of a de facto couple with Ms Chang”. This does not particularise a decision. Any attempt to seek judicial review must focus upon a particular identifiable decision that has a legal effect or a purported legal effect. Insofar as Mr Towle seeks judicial review of “any decision” of the kind described, this is too imprecise to engage the jurisdiction of the Court and provides no basis for an action that enjoys a reasonable prospect of success. Insofar as the general description might be apt to cover other decisions that have been identified by Mr Towle, I have addressed each of those separately.

90    The reference to “any decisions to deal with Mr Towle as a member of a de facto couple with Ms Chang” appears to refer to decisions that would be affected by the alleged error of law that Mr Towle contends arises as a result of decision-makers taking into account information relied on in support of Ms Chang’s partner visa application as relevant to decisions made under the SS Act or the SSA Act, and the alleged erroneous finding of a “jurisdictional fact”. I have addressed these arguments at [40]-[54] and [57] above, respectively, and have rejected them.

91    Mr Towle has made repeated reference to an “admitted jurisdictional error” or to an admission made by the Department that a jurisdictional fact relied on by the Department did not exist. I have found Mr Towle’s submissions in this regard difficult to follow. However, I understand that he submits that a person acting on behalf of the Secretary in a hearing before the Tribunal (Senior Member Illingworth) on 7 July 2023 accepted that persons within the Department had believed, at least at one point, that Mr Towle and Ms Chang had been in a de facto relationship from the date 27 June 2013. This was evidently a mistaken view, because 27 June 2013 was the date that Ms Chang first arrived in Australia on a tourist visa, and she had not in fact met Mr Towle, still less commenced a de facto relationship with him, at that point in time. A finding of fact to that effect had appeared in the 2016 AAT1 Decision, and this was identified in the 2023 AAT2 Decision at [10]. However, it is not apparent that this error of fact has ever actually affected Mr Towle’s entitlements, or any of the subsequent decisions made in respect of them.

92    On review of the 2016 AAT1 Decision, Senior Member Dunne, in the 2017 AAT2 Decision, incorrectly stated that Ms Chang met Mr Towle in “early 2013” (at [2]). However, the 2017 AAT2 Decision also recorded that Ms Chang first came to Australia on 27 June 2013, that Mr Towle “became partnered to” Ms Chang in October 2013, and that she was granted a bridging visa on 19 October 2015 to allow her to remain in Australia during the processing of her application for a partner visa (at [12]).

93    In the judgment of Charlesworth J in Towle FCA, on appeal from the 2017 AAT2 Decision, her Honour noted (at [16]) that the records of the Department showed that, in late September 2015, Mr Towle had contacted Centrelink to enquire how his disability support pension may be affected should he become partnered, and that he had told a delegate of the Secretary that he had formed a relationship with someone who resided in Australia on a temporary visa.

94    As I understand it, until 14 July 2016, Mr Towle had been in receipt of a disability support pension at the “single” rate. From 24 December 2015, a determination under s 24 of the SS Act, that Mr Towle not be treated as a member of a couple with Ms Chang, was in force. From 14 July 2016, the payment of his disability support pension was suspended, by reason of decisions 4-6, to which reference has been made above. To the extent that later decisions have proceeded on the basis of a finding that Mr Towle and Ms Chang were in a de facto relationship, it does not appear that the finding has been that their de facto relationship began as early as 27 June 2013.

95    Nothing that has occurred in the decision-making processes affecting Mr Towle’s social security entitlements has depended on a finding that he was in a de facto relationship, or any kind of relationship, with Ms Chang since 27 June 2013. The apparent incidental finding to that effect in the 2016 AAT1 Decision did not result in the determination of any issue affecting Mr Towle’s social security entitlements, and in any event, the 2016 AAT1 Decision was overtaken by the 2017 AAT2 Decision (and the subsequent Federal Court proceedings that held that that decision was not to be set aside). The date on which a de facto relationship (or any kind of relationship) between Mr Towle and Ms Chang commenced is not a jurisdictional fact in relation to any decision that had been made in relation to Mr Towle’s entitlements.

96    For all these reasons, I am satisfied that Mr Towle’s challenge to “any decision … to deal with [Mr Towle] as a member of a de facto couple with Ms Chang” does not enjoy a reasonable prospect of success.

Decision 10: 2019 AAT1 Decision that Mr Towle’s disability support pension be reinstated

97    In the 2019 AAT1 Decision, Member Cullimore determined that the decision to cancel Mr Towle’s disability support pension should be set aside and that Mr Towle should be paid the disability support pension in arrears with effect from 28 August 2018.

98    It is not clear on what basis Mr Towle contends that the 2019 AAT1 Decision is affected by jurisdictional error. The decision to set aside the cancellation of his disability support pension was in his favour. It is clear that he disagrees with the 2019 AAT1 Decision insofar as it held that arrears should only be paid from 28 August 2018.

99    Mr Towle had the opportunity to seek review of this decision by the Tribunal. As explained at [16] above, he initially applied for review of the decision by the Tribunal, but later discontinued that application for review, apparently as part of an agreement he reached with a representative of the Secretary.

100    Further, it is apparent from the reasons of Deputy President Millar in the 2024 AAT2 Decision that the Deputy President raised with Mr Towle the question of whether he wished to review the 2019 AAT1 Decision and that he made it clear that he did not wish to do so. Deputy President Millar relevantly said (at [7]):

Mr Towle has not applied for a review of an earlier decision of AAT1 to re[s]tore his disability support pension from 28 August 2018 and pay him arrears at a partnered rate, and expressly does not seek review of this decision. This means that much of his central complaint of not being paid a social security payment for a period of approximately two years cannot be addressed.

(Emphasis in original.)

101    Deputy President Millar further said (at [13]-[14] of the 2024 AAT2 Decision):

On 4 September 2019, the Social Services and Child Support Division … reviewed the decision made on 28 August 2018 to cancel Mr Towle’s disability support pension … . Curiously, the Member decided that he was not bound by the decision of the Full Federal Court, instead finding that the notice issued to Mr Towle seeking information was not, as found by the Full Federal Court, issued under s 68 of the [SSA Act], but instead was issued under s 63 of the [SSA Act]. As a result, the Member decided that Mr Towle’s disability support pension should not be cancelled, setting aside the decision to cancel Mr Towle’s disability support pension, and substituting decisions that:

•    Mr Towle should be paid arrears of disability support pension from 28 August 2018 to the date he was granted age pension on 29 March 2019, and

•    that those arrears should be paid at the partnered rate taking into account the combined income of Mr Towle and Miss Chang.

Subsection 118(11) of the [SSA Act] requires the cancellation of Mr Towle’s disability support pension to take effect from the day it was suspended, which was 14 July 2016. The [2019 AAT1 Decision] substituted a decision that the cancellation of Mr Towle’s disability support pension was revoked, but that Mr Towle only be paid arrears from 28 August 2018, which is the date the decision was made to cancel his disability support pension. It is unknown why [Member Cullimore in the 2019 AAT1 Decision] specified a date that was not the date [Mr Towle’s] disability support pension was suspended.

102    Section 118(11) of the SSA Act provides that, if a person’s social security payment is suspended under s 80, s 81 or s 82, and the payment is subsequently cancelled pursuant to any of those sections, then the determination by which the payment is cancelled takes effect on the day on which the payment was suspended. This may suggest that the setting aside of a decision to cancel a payment should ordinarily result in arrears being calculated from the date of the initial suspension, unless there is some other reason why the person was not entitled to receive payment during that period.

103    Deputy President Millar evidently considered that there may be some force in Mr Towle’s position that, if the decision to cancel his disability support pension was to be reinstated, he should be entitled to be paid arrears from the date when the disability support pension was first suspended (14 July 2016), and not merely from the date when the decision was made to cancel it (28 August 2018). However, she explained that Mr Towle had elected not to proceed with a review of the 2019 AAT1 Decision, and the reason he gave for taking that course. Deputy President Millar said (at [16]):

Both Mr Towle and the Secretary applied for a further review of the decision, however both withdrew their applications. The Secretary states a stay was granted and that the stay remained in place until the applications were withdrawn. As a result, Mr Towle continued to receive age pension until 25 September 2020. After this date, the information before me does not show that the decision to restore Mr Towle’s disability support pension from 28 August 2018 has been implemented. A statement about his benefit history says that he has been on age pension since 29 March 2019. Mr Towle explained that he withdrew his application for review because he wanted to keep the arrears paid for the period 18 August 2018 to 29 March 2019. The Tribunal cannot review the part of the decision that relates to payment for the period 16 July 2016 to 28 August 2018 without reviewing the entirety of the [2019 AAT1 Decision]. Mr Towle has repeatedly stated that he does not want this decision reviewed. This means that this decision, which is at the core of his complaint, cannot be reviewed as no application has been made to review it.

(Footnote omitted.)

104    The immediate effect of quashing the 2019 AAT1 Decision would be to cause the internal review decision which was the subject of review to become operative again and to require that the Tribunal (or now, the Administrative Review Tribunal) conduct a fresh review of that decision. On any such review, the Tribunal would be required to consider the whole decision. That is not an outcome that Mr Towle seeks, or one which would necessarily benefit him. This Court would not, on an application for judicial review, substitute its own decision as to whether Mr Towle should be paid arrears in respect of his disability support pension for the 2019 AAT1 Decision.

105    In all the circumstances, in my view it is clear that the Court would not grant relief in the nature of judicial review to quash the 2019 AAT1 Decision.

106    Mr Towle had a right of review in relation to that decision. Having commenced a review of the 2019 AAT1 Decision, he declined to proceed with it in accordance with an agreement reached with the Secretary that each would discontinue their respective applications for review. There were sensible reasons for Mr Towle to make that election and agreement. There was a risk that the Secretary’s application for review would be upheld and the determination that Mr Towle’s disability support pension should be reinstated and arrears paid in respect of the period between 28 August 2018 and 29 March 2019 would be set aside. By agreeing to discontinue his application for review, Mr Towle ensured that he would receive the benefit of the decision that he should receive the disability support pension payable in relation to that period. In those circumstances, the Court would not now exercise its discretion in favour of quashing the 2019 AAT1 Decision. In any case, I do not apprehend that Mr Towle seeks a result where only the 2019 AAT1 Decision is quashed and he loses the benefit that he obtained from that decision.

107    For these reasons, although Mr Towle might well have had a respectable argument that the 2019 AAT1 Decision was not correct, I am satisfied that the application for judicial review enjoys no reasonable prospect of success insofar as it challenges that decision. Mr Towle had a more appropriate course of merits review which he has, at least to date, elected not to pursue, for the reason that he wished to avoid the risk that the part of the 2019 AAT1 Decision that benefited him might be set aside.

Decision 12: 2024 AAT2 Decision of Deputy President Millar

108    In the 2024 AAT2 Decision, Deputy President Millar carefully reviewed the course of decision-making in relation to Mr Towle. She also carefully identified the issues to which the review she was conducting related.

109    It is apparent from the reasons of Deputy President Millar that she had difficulty understanding how Member Cullimore, in the 2019 AAT1 Decision, had reached the conclusions that:

(a)    the notice issued on 30 June 2016 had been issued under s 63 of the SSA Act, when the decisions of Charlesworth J in Towle FCA, and of the Full Court in Towle FCAFC, had both proceeded on the basis that the notice had been issued under s 68 of the SSA Act; and

(b)    the cancellation of Mr Towle’s disability support pension should be revoked, but that he should be paid arrears only from 28 August 2018 (being the date of the decision to cancel his disability support pension), rather than from 14 July 2016 (being the date of the decision to suspend payment of his disability support pension).

110    Deputy President Millar identified (at [15]) that Mr Towle’s complaint was essentially that he had not received any kind of social security payment for the period 14 July 2016 to 28 August 2018. However, Mr Towle had made a conscious decision not to pursue his review of the 2019 AAT1 Decision, for reasons that can be understood. Deputy President Millar explained this at [16], in the passage set out at [102] above. Consequently, Deputy President Millar concluded (at [18]):

Where a decision follows on from an earlier decision, there is no jurisdiction to review the earlier decision. As neither party has a current application for review of the [2019 AAT1 Decision], I have no jurisdiction to consider this decision.

(Footnote omitted.)

111    Deputy President Millar then (at [19]) correctly identified that the decision the subject of the review before her was the 2022 AAT1 Decision. Mr Towle has not identified any arguable basis to suggest that Deputy President Millar was wrong about the scope of her jurisdiction.

112    Insofar as Mr Towle complains about the failure to pay him arrears in respect of the disability support pension for the period 14 July 2016 to 28 August 2018, or the failure of Deputy President Millar to order that such payment be made, that is due to the effect of the 2019 AAT1 Decision and Mr Towle’s election not to seek review of that decision.

113    Mr Towle’s next complaint about the 2024 AAT2 Decision, as I understand it, is that Deputy President Millar erred in having regard to information that had been provided by Ms Chang to the Department of Home Affairs, because to do so was contrary to privacy law. In response to the argument, Deputy President Millar reasoned as follows (at [25]-[28]):

Mr Towle objected to the Tribunal considering documents that included information provided to the Department of Home Affairs for the assessment of Miss Chang’s application for a Partner (Residence) visa, being that part of the visa application that relates to the grant of a Subclass 801 visa, and a statutory declaration he made in support of the grant of this visa. These are Exhibits R4 and R5.

Mr Towle submits that providing these documents breaches privacy laws because Miss Chang’s consent was not obtained.

The Secretary has broad powers to obtain information or documents if the Secretary considers the information or document may be relevant to (among other things) the rate of social security payment that is applicable to a person. The Australian Privacy Principles allow an entity to disclose information if this is required or authorised by or under an Australian law. There is no breach of privacy laws if this information is required under the Administration Act.

There was also an objection on the grounds of relevance because the documents postdate the period in dispute in this case. The documents to which Mr Towle objects shed light on how he regarded his relationship with Miss Chang at various points in time. They are relevant to a question that is before the Tribunal and can be considered.

(Footnotes omitted.)

114    This reasoning is correct. In my view, Mr Towle’s argument based on privacy law has no reasonable prospect of success. To the extent that Mr Towle advances a similar argument in respect of other decisions (which is not clear), that argument must be rejected for the same reasons that were given by Deputy President Millar.

115    The remaining grounds on which I understand Mr Towle to challenge the validity of Deputy President Millar’s decision are that:

(a)    Mr Towle and Ms Chang could not be in a de facto relationship before Ms Chang acquired permanent citizenship, and that to hold that they were in such a relationship involved a misunderstanding of the relevant test; and

(b)    Mr Towle and Ms Chang lived separately and apart on a permanent or indefinite basis within the meaning of s 4(3A) of the SS Act.

116    These contentions have been addressed at [39]-[57] above. For the reasons already given, I do not consider that they are correct. Mr Towle’s challenge to the 2024 AAT2 Decision on those bases does not have a reasonable prospect of success.

117    Mr Towle has also repeatedly used the expression “jurisdictional fact”. Insofar as Mr Towle contends that the question of whether he and Ms Chang were in a de facto relationship is a question of jurisdictional fact, I do not accept that contention. It was a factual question that was relevant to the rate of social security payments due to Mr Towle. Whether a relationship of the relevant kind existed was a question for the relevant administrative decision-makers to decide, and to make a wrong decision on that question was not a jurisdictional error.

118    In the 2024 AAT2 Decision, Deputy President Millar found (at [72]) that Mr Towle had been in a relationship “since 2013”, and that the relationship was a de facto relationship, at least in relation to the period that Deputy President Millar found was relevant to her decision (namely, 29 March to 23 October 2019). This finding was based on evidence which Deputy President Millar described in detail (at [46]-[71]) and, in particular, on the content of the statutory declaration dated 16 September 2019 that had been provided by Mr Towle in support of Ms Chang’s application for a permanent partner visa. Among other things, Deputy President Millar said (at [46]):

In this statutory declaration [Mr Towle] declares that the relationship began in 2013 and that they have lived together for six years. He makes various statements in support of shared financial affairs, shared household and social activities and their commitment to a shared life. As this statutory declaration was in support of the Partner (Residence) (Subclass 801) visa and the grant of the temporary (Subclass 820) visa also requires Miss Chang to establish that she is the de facto partner of Mr Towle, and the statutory declaration was made only shortly after the disputed period, I consider the information in the statutory declaration probative of the nature of their relationship in the slightly earlier period Mr Towle disputes from 29 March 2019 until 23 October 2019.

(Footnotes omitted.)

119    Although Deputy President Millar can be understood to have found that Mr Towle and Ms Chang had been in a relationship of some kind since around September 2013 (six years before the date of Mr Towle’s statutory declaration), the relevance of that finding was as informing the conclusion that they were in a de facto relationship at the time relevant to the 2024 AAT2 Decision, between 29 March and 23 October 2019. These were not jurisdictional facts but facts which Deputy President Millar found in the exercise of her jurisdiction, for the purpose of determining the particular issues that arose on the review before her.

120    I accept the submission of the Commonwealth and the Secretary that Mr Towle has not otherwise identified any question of law or any jurisdictional error in connection with the 2024 AAT2 Decision.

121    For these reasons, I am satisfied that Mr Towle’s application, insofar as it challenges the validity of the 2024 AAT2 Decision, does not enjoy a reasonable prospect of success.

122    Finally, I note that it is clear that Mr Towle is and was aware that he had a right to appeal from the decision of Deputy President Millar to this Court on a question of law and has, at least to date, elected not to exercise that right. In particular, it is clear that Mr Towle does not intend that the present proceedings be an appeal from the decision of Deputy President Millar. This is apparent from the following part of his statement of claim:

Rights of Appeal Obstructed:

I suggest that I am not under any obligation to signal whether or not I will appeal the recent AAT decision 2022/1585 to the Federal Court however, I do have that right, so, consequentially, I have a responsibility to research and check accuracy of facts before I potentially waste the Federal Courts or the AAT’s time and resources. I need transcripts where I know facts exist contrary to assertions made by others.

“Thoughts on the Cause of the Present Discontents” – Statesman; Edmund Burke (1770):

“When bad men combine, the good must associate; else they will fall, one by one, an unpitied sacrifice in a contemptible struggle.” [My emphasis]

Often misquoted as:

“The only thing necessary for the triumph of evil is for good men to do nothing”

(Emphasis and formatting in original.)

123    I do not understand precisely how Mr Towle seeks to deploy the quotation from Sir Edmund Burke (or the statement that is often attributed to him), but it appears that he seeks to use the present proceedings, at least in part, as a means to obtain transcripts of hearings before the Tribunal. Consistently with that purpose, he has made an interlocutory application in the proceedings for orders requiring the Tribunal (or now, the Administrative Review Tribunal, which is now substituted as the third respondent to the proceedings) to produce those transcripts. Consideration of that interlocutory application was deferred pending determination of the application for summary judgment brought by the Commonwealth and the Secretary. The point for present purposes is that this is not a case where a litigant in person has sought to appeal against a decision of the Tribunal but has used the wrong form; Mr Towle has elected to commence these (far more wide-ranging) proceedings and has consciously chosen not to appeal against the 2024 AAT2 Decision on an identified question of law.

Decision 13: decision relating to mobility allowance

124    As I understand it, this relates to a decision or decisions made in connection with one of the issues that was the subject of the application for review which was determined by Deputy President Millar in the 2024 AAT2 Decision.

125    I am not confident that I have been able fully to understand this part of Mr Towle’s application. It appears that he seeks to complain about a decision made by the Secretary, or persons employed in the Department, to contend, for the first time in the Tribunal, that Mr Towle was not entitled to receive the mobility allowance because he did not meet the requirement of being unable to use public transport without substantial assistance, as required by s 1035A(1)(b) of the SS Act. As I understand it, Mr Towle contends that the Department raised this issue in the Tribunal for the improper purpose of attempting to dissuade him from pursuing the application for review before Deputy President Millar.

126    Mr Towle was successful on the issue relating to the mobility allowance before Deputy President Millar. She held that he was entitled to the mobility allowance at the higher rate in respect of the periods between 20 June 2015 and 14 July 2016 and from 28 August 2018 onwards, and at the lower rate between 15 July 2016 and 27 August 2018: at [120]. The reason Mr Towle was held not to be entitled to the higher rate during the latter period was because he was not receiving the disability support pension during that period and, as explained above, by virtue of the 2019 AAT1 Decision and Mr Towle’s decision not to seek review of it, he had been found not to be entitled to payment of arrears in respect of the period when the payment of his disability support pension had been suspended (that is, between 15 July 2016 and 27 August 2018).

127    No basis has been shown by Mr Towle for the supposition that the Department raised the issue in order to dissuade him from seeking review, beyond mere suspicion or speculation by him.

128    In any event, the Tribunal was required to assess whether Mr Towle was entitled to the mobility allowance, the Secretary was obliged to assist the Tribunal to come to the correct or preferable decision and the Secretary was entitled to raise, as a consideration relevant to the decision of the Tribunal, the question of whether Mr Towle met the statutory requirements for the grant of the mobility allowance. It is perhaps doubtful whether a decision to raise an issue that is relevant to the Tribunal’s consideration of a review before it is one that can be set aside on judicial review. In any event, in circumstances where Mr Towle was successful on that issue before Deputy President Millar, it cannot be said that there is any utility in judicial review of any such decision by employees of the Department.

129    For these reasons, in my view, insofar as Mr Towle seeks judicial review of what I have understood to be decision 13, the application has no reasonable prospect of success.

130    As noted above, I am not entirely confident that I have fully or correctly understood this aspect of Mr Towle’s case. To the extent that I have not understood it, I am satisfied that he has not been able to articulate the argument in a way that is capable of supporting a conclusion that this aspect of his case enjoys a reasonable prospect of success.

Decision 14: any other decisions that may have escaped Mr Towle’s mind

131    Finally, Mr Towle states that he wishes to challenge “any other relevant decision/s which have escaped [his] 80-year-old mind, which may, at the right time, be brought to light”. The right time for clearly identifying any decision in relation to which judicial review is sought was at the point of filing the originating application or, at the latest, at the hearing of the application for summary judgment. It is for the applicant in judicial review proceedings to identify, with sufficient clarity, the particular decisions which are said to be invalid.

132    Relatedly, I note that in several of the documents he has filed, Mr Towle has appeared to ask the Court to assist him by identifying decisions, bases on which decisions might be set aside, or forms of relief that may be appropriate. Mr Towle has repeatedly attempted to rely on this technique. An example can be seen in the following extract from the originating application filed in action SAD 178 of 2024:

Details of Claim?

1)    I am not knowledgeable enough to list specific grounds from the Administrative Decisions (Judicial Review) Act 1977 s5, 6 and 7 so I will refer them all and hope the specific grounds will reveal themselves to this Honourable Court when read in view of my submissions, the facts and the relevant law, including Common Law and relevant Taiwanese law.

133    While I have done my best to understand and address the arguments actually advanced by Mr Towle, it is not the role of the Court to try to formulate a case for an applicant, even if they appear without legal representation.

Application for damages or compensation

134    Mr Towle also seeks orders in the nature of damages or compensation for himself and Ms Chang. A remedy in the nature of damages is not usually available in judicial review proceedings, even if it is established that a decision was invalid.

135    In any case, I understand the claims for damages or other compensation to arise from Mr Towle’s contention that one or more of the decisions about which he complains is invalid and should be set aside. Given that I have concluded that his application for judicial review of those decisions cannot succeed, it follows that any application for damages or compensation must also fail.

136    The decisions which are claimed to be invalid are decisions relating to payments to be made to Mr Towle. Although the reasoning and findings supporting those decisions in some cases relate to Ms Chang, it does not appear that any of the decisions challenged by Mr Towle in these proceedings relates directly to any right or entitlement of Ms Chang. I have already addressed Mr Towle’s contention that the SSA Act could have no application to Ms Chang because she was a resident of a foreign country. Even if that were correct, that would not give rise to any basis for Ms Chang to claim compensation. Nor would any error in a decision affecting Mr Towle’s entitlement to payment of a disability support pension give rise to a basis on which the Court could or would make an order that damages or compensation be provided to Ms Chang.

Incapacity of Mr Towle to plead a coherent case

137    The originating applications filed by Mr Towle are disordered and very difficult to understand. While it cannot be expected that a litigant in person will necessarily articulate a claim in the same way as a lawyer, there is still a minimum level of cogency that must be achieved in order for the Court to be able to make sense of what is being argued. The documents filed by Mr Towle do not, in my view, achieve that minimum level of cogency. I say that with all respect to Mr Towle, as it is apparent that he has tried earnestly to explain his position and that he believes that the documents he has filed ought to make sense to anyone reading them.

138    Having considered the entirety of the substantial volume of written material filed by Mr Towle, including the two originating applications, the statement of claim and many affidavits, I have reached the view that allowing him further opportunities to refine or articulate his case would not result in his being able to state a coherent case that enjoys a reasonable prospect of success.

Further contentions relied on by Mr Towle

139    Mr Towle countered the interlocutory application made by the Commonwealth and the Secretary by alleging that it constituted an abuse of the process of the Court and that they should instead be required to file defences to his claims.

140    I reject these submissions. The Commonwealth and the Secretary were entitled to make an interlocutory application for summary judgment. Both originating applications and the statement of claim are rambling and largely incomprehensible and would be liable to be struck out. The further documents by which Mr Towle has attempted to articulate his case are unstructured and extremely difficulty to follow. Mr Towle’s originating applications and statement of claim seek relief which the Court clearly cannot grant, such as orders in the nature of judicial review against judgments of this Court and the High Court, and damages or compensation payable to a person who is not an applicant in the proceedings. An application for summary judgment was an entirely appropriate way for the Commonwealth and the Secretary to attempt to bring to an end, in as efficient a manner as possible, proceedings that they perceived to be unmeritorious. For the reasons I have given, ultimately, I consider that this is a case where it is appropriate to make an order for summary judgment in favour of the Commonwealth and the Secretary.

141    I can appreciate that Mr Towle has been frustrated by the Court process at times. He evidently considers that he has done more than enough to make plain the nature of his complaints. He evidently considers that the Commonwealth and the Secretary have been disingenuous in suggesting that they do not understand what he is trying to say. However, that perception is, in my view, incorrect.

Application by Mr Towle to join Ms Chang as an applicant in the proceedings

142    On 2 April 2025, after argument had been heard and judgment had been reserved on the application for summary judgment brought by the Commonwealth and the Secretary, Mr Towle filed a further interlocutory application in the proceedings, by which he sought orders that Ms Chang be joined as a party to the proceedings, and that he be “appointed, when necessary or requested by Ms Chang, to act as advocate on behalf of Ms Chang”. The application also seeks a “Discovery Order”.

143    On 10 April 2025, I made orders that that application be determined on the papers, that Mr Towle file written submissions in support of it by 24 April 2025, and that the Commonwealth and the Secretary file any written submissions in relation to the application by 2 May 2025.

144    Mr Towle filed written submissions in support of the application. The part of the submissions addressed to the joinder of Ms Chang as a party to the proceedings, and the appointment of Mr Towle to act as an advocate on her behalf, reads:

A. Joinder Order - Re: Ms Ya-Fen Chang;

Ms Chang has suffered with me from unlawful Robodebt style behaviour

B. Advocate Order - Re: Ms Ya-Fen Chang;

Ms Chang will undoubtedly need assistance to navigate through the maze created since 2015. She was also misled financially into giving evidence for the Commonwealth agency DSS after flying back from her home in Taiwan.

145    For the reasons already given above, I do not consider that the claim for the payment of compensation to Ms Chang enjoys a reasonable prospect of success. That is not only because she has not elected to sue for compensation herself but because the material before the Court does not demonstrate that a claim for compensation on behalf of Ms Chang has any apparent merit. There is therefore no utility in joining Ms Chang as an applicant in the present proceedings. Insofar as Mr Towle claims that Ms Chang has suffered loss or damage due to the loss of “indirect access” to Mr Towle’s income flowing from the suspension of his disability support pension, that is adequately covered by Mr Towle’s own claim to be entitled to compensation for the loss of that income and, in any event, no cause of action of Ms Chang against the respondents has been identified.

146    In any event, I would not join Ms Chang as a party to the proceedings on the unilateral application of Mr Towle. I do not understand Mr Towle to claim that Ms Chang is still his de facto partner. If Ms Chang wished to sue the respondents, or any of them, that is a step that she might have chosen to take herself, either by commencing proceedings or by applying to be joined in the present proceedings. She has not done so. No material has been filed by Ms Chang to confirm that she wishes to be made a party. If Ms Chang were joined as a party she would be exposed to adverse orders for costs. It would not be in Ms Chang’s interests to be made a party to the present proceedings.

147    Nor am I satisfied that it would be in Ms Chang’s interests for Mr Towle to be appointed to advocate for her. As explained above, despite many attempts, Mr Towle has not been able to articulate his own case in a manner that is readily capable of being understood.

148    Later in the written submissions in support of his interlocutory application, Mr Towle has written:

Duplicitous Behaviour by DSS

m)     Ms Chang was subpoenaed and therefore required to travel from her lifelong place of residence in Taiwan to give evidence for the Secretary before Snr Member Dunne on about April 28, 2017. The summons informed that her expenses and other entitlements would be compensated however, she has never even been asked for her expenses or the time spent despite me raising the issue several times. Ms Chang flew from Taiwan arriving in Adelaide about 27/04/2017 and paid for a night in a Motel to attend AAT the next day. She was asked if she would provide me with her payslips if I asked for them in circumstances where she had already attempted to remove her employer’s pin number security to keep her personal life from her employer and colleagues. In any case, the Secretary had SPECIFICALLY suspended my DSP to enquire from Ms Chang or her employer her earnings details for the relevant period but did NOT even take the opportunity to ask Ms Chang to identify her employer who alone had the resources to comply. Eventually Ms Chang’s security was compromised as the legally unsupported bullying increased over time.

149    While I think I understand the general effect of what is asserted in this paragraph, it does not identify any cause of action on behalf of Ms Chang against the Commonwealth. In any event, if Ms Chang considers that she has a cause of action as a result of actions or decisions made by officers of the Commonwealth, the appropriate course is for her to commence proceedings of her own in which the cause of action is properly identified. It is not appropriate or efficient for the Court to allow Mr Towle to use his present application to attempt to prosecute an unidentified cause of action on behalf of Ms Chang.

150    Mr Towle’s submissions directed to the “Discovery Orders” sought are as follows:

C.    Discovery Orders - Duplicitous Behaviour;

My DSP was suspended to allow for an enquiry. DSS did not obtain relevant information from Ms Chang despite subpoenaing her from Taiwan to obtain it.

D.    My filed and sealed documents prior to and including my interlocutory requests and affidavit of 02/04/2025 are relevantly merged herein. Ms Chang and I were joined after 15/10/2015 to 23/10/2019 in her endeavour to change her domicile to Australia.

a)    As a matter of Justice my application to join Ms Ya-Fen Chang to matter SAD179 of 2024 at the pleasure [and wisdom] of the court as per Rule 9.03, or Rule 9.05 and/or any applicable provision of the Federal Court Rules [e.g. Rule 9.02] is because matters relevant to Ms Chang’s internationally recognised permanent domicile status, her marital status and her earnings, particularly for three months prior to 30/06/2016, have been continuing subjects for contention and deprivation since 08/07/2016.

b)    Ms Chang in tandem with me has incurred shared financial, emotional and health losses including $5000 Court costs, thousands of dollar in expenses including for travel, city accommodation, transcripts, extensive Tribunal and Court time, legal research costs and other deprivations by being subjected to impoverishment near to destitution by the Secretary’s failure to apply the Social Security Law correctly for nigh on 9 years and by the attempts to distract the Tribunals and Courts from the real circumstances; e.g ‘Advising’ ARO officers not to review my grounds and submitting a time wasting Summary Dismissal application when the DSS has admitted jurisdiction failures rendering void, or of no effect otherwise, decisions relied upon.

c)    My Disability Support Pension (DSP), granted from 27/06/1996 was suspended by the Commonwealth Dept of Social Services from the effective date of 08/07/2016 after I declined to incite Ms Chang’s casual employer to break the law by failing to comply with privacy and industrial legislation merely on request from me, a stranger to the employer. The ‘request’ compelling me, under threat of losing my DSP, to cause her employer to provide her earnings information was in a letter now available in respondent’s own evidence for this matter T23 pages 502 and 503 which was attached to a questionnaire T7 pg96 in circumstances where the Secretary had available the Social Security (Administration) Act 1999 s192 to compel the release of her employment data directly from Ms Chang or from her employer if it was lawful for the secretary to possess and use it. Obtaining and using it was not supported by law.

d)    The validity of the actual content of the request has never been reviewed by a Tribunal or a Court. I strongly assert it was an unlawful request based on a further unlawful reason; the intent to perform “income averaging” of a retrospective period of the earnings of an alien visitor to Australia, Ms Chang and to apply the assumptive average against my future DSP entitlements or to raise a ‘fake’ debt against me.

e)    My DSP was suspended for the stated reason to allow for an enquiry to obtain the information I had no lawful authority to obtain. The enquiry is still pending 9 years later, and the unlawful request is being relied upon as a reason not to pay me my DSP which has been restored by the Secretary as provided for in the SS [Administration] Act 1999 (Cwth) s126 “Review of Decisions by Secretary” [See also A307151 T3 pg19 from “On 23 September 2020..”]. Refusal to pay my lawful entitlements is an abuse of power compounding the unlawful intimidation to obtain a third party’s data.

(Emphasis and formatting in original.)

151    I have not been able to identify the basis for Mr Towle’s repeated assertions that his case has similarities to the Robodebt cases or that the Commonwealth was seeking to raise a “fake debt” against him in any sense that is similar to what occurred in the administration of the Robodebt scheme. These bare assertions do not warrant the making of orders for discovery and, in any event, the interlocutory application does not identify with any precision the classes or kinds of documents of which discovery is sought or their relevance to the application for judicial review that is before the Court.

152    The remainder of the submissions filed in support of Mr Towle’s interlocutory application filed on 2 April 2025 appear to me to repeat submissions already made by him in writing or orally in support of his own application for judicial review. The fact that they make reference to Ms Chang and her status as a resident of a foreign country does not give rise to any need for her to be joined as a party to the present proceedings, which concern decisions that affected Mr Towle’s entitlement to a disability support pension.

Application by the Commonwealth and the Secretary for a further order preventing Mr Towle from filing further proceedings in the Court without leave

153    The Commonwealth and the Secretary seek an order in the following terms:

Should the Applicant file any proceeding in the Court that is in any way related to a decision in or about 2016 to suspend his disability support pension, and whether he was a “single person” or a “member of a couple”, the District Registrar is not to give a return date and is to require the Applicant to show cause by filing of submissions and any affidavit as to why the proceeding should not be dismissed as vexatious and an abuse of process. Such application to show cause should, subject to any other order of the Court, be dealt with on the papers, and any Respondent named in the proceeding need not take any step until further order of the Court.

154    I have concluded that Mr Towle’s application for judicial review enjoys no reasonable prospect of success and should be summarily dismissed. The present proceedings have involved Mr Towle filing voluminous written material prepared by him, much of which is incomprehensible. Mr Towle has sought to challenge multiple decisions of the Tribunal, including decisions that have already been the subject of review or appeal. He has sought to re-open or set aside orders previously made by this Court and by the High Court. The nature of the written material filed by Mr Towle is such that it has taken a lot of work for the Court to understand what Mr Towle’s arguments are. I accept that at least some of Mr Towle’s arguments can properly be characterised as an abuse of process, particularly where he has sought to challenge the validity of previous judicial decisions of this Court and of the High Court.

155    The order that is sought would extend to any proceedings that relate in any way to the decision to suspend his disability support pension or to the question of whether he is a single person or a member of a couple. That is a very broad category of potential applications that could include legitimate appeals or applications in relation to future decisions affecting Mr Towle’s past and future social security entitlements. In the written and oral submissions of the Secretary and the Commonwealth, they did not develop any argument in support of an additional order that would prevent Mr Towle from filing proceedings in the Court, nor was the source of the Court’s power to make such orders clearly identified. In all these circumstances, I will not make orders of this kind in the present proceedings.

156    This should not be understood as any encouragement to Mr Towle to commence further proceedings that relate to the previous decisions in respect of his disability support pension. He has attempted comprehensively to litigate those matters. Having regard to that fact, and the general incomprehensibility of the documents Mr Towle has relied on in these proceedings, it is highly likely that any repeated attempt to do so would be dismissed as an abuse of process or as not enjoying a reasonable prospect of success.

Conclusion

157    I have concluded that the proceedings brought by Mr Towle do not have a reasonable prospect of success. I consider that judgment should be granted in favour of the Commonwealth and the Secretary. There is no reason why Mr Towle should not be required to pay the costs of the Commonwealth and the Secretary.

Associate:

Dated:    24 July 2025