Banks and Department of Family and Community Services

[2001] AATA 184

DECISION AND REASONS FOR DECISION [2001] AATA 184

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/1198

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      OLIVE BANKS       
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr EK Christie, Member    

Date12 March 2001          

PlaceBrisbane

Decision      The Tribunal decides:  that the decision under review is that of the Authorised Review Officer made on 15 December 2000; and to affirm the decision under review.      

(Sgd) EK CHRISTIE
  MEMBER
CATCHWORDS
PRACTICE AND PROCEDURE - reviewable decision - meaning of decision - whether proceeding is frivolous or vexatious.

Administrative Appeals Tribunal Act 1975 ss 3, 25, 42B
Social Security (Administration) Act 1999 ss 144, 180, 192, 195, 235

Australian Broadcasting Tribunal v Bond & Ors (1990) 94 ALR 11
Attorney-General v Wentworth (1988) 14 NSWLR 481
Beitseen & Ors v Johnson & Ors (1989) 29 IR 336
Re Cooper and Repatriation Commission (1995) 38 ALD 164
Re Williams and Australian Electoral Commission (1995) 38 ALD 366

REASONS FOR DECISION

12 March 2001       Dr EK Christie, Member                

1. This is an application by Olive Banks for a review of the decision of the Social Security Appeals Tribunal ("the SSAT") made on 27 November 2000.  The decision referred to by Mrs Banks in her application for review of decision was as follows:

   "A decision by the Registrar of the Social Security Appeals Tribunal dated November 27, 2000 that the Tribunal was unable to hear the matter I had raised about a Social Security decision to attach a Centrelink Preliminary Notice issued under Section 1177 of the Social Security Act 1991 to my Comcare Australia File that was inappropriate if not unlawful. On November 9, 2000, The Registrar said that an Authorised Review Officer of Centrelink making a decision that there was no decision constitutes an original decision by a decision maker."  (document T1 Folio 4)

2. In its Decision on 27 November 2000, the Registrar of the SSAT concluded:

   "As I understand it, this notice (sent by Centrelink to Comcare) was to advise Comcare that they would have a liability to Centrelink in the event that they paid compensation payments to you for any time that you may have been in receipt of a Social Security payment.
   I understand your concern at the possible implications had you been in receipt of Social Security but I also understand that at no time have you been in receipt of such a payment.
   In previous correspondence, I explained to you the limitations on this Tribunal in the decisions that it is able to review.  The applicable legislation provides that a person can apply for a review by this Tribunal if that person's Social Security interests might be affected.  As currently advised, you are not a recipient of any payments from Centrelink, this means that the Tribunal is unable to review the matter you have raised."  (Document T1 Folio 10).

3. On 15 December 2000, an Authorised Review Officer set aside the decision of a different Authorised Review Officer made on 25 September 2000 concerning a "Centrelink Notice" issued on 27 June 2000 (Document T31 Folio 103) as well as the decision of another Authorised Review Officer made on 26 October 2000 concerning a "Centrelink Preliminary (Section 1177) Notice" issued on 26 July 2000 (Document T36 Folio 108).  The "Centrelink Notice" explained compensation provisions and customer rights and obligations.  The "Centrelink Preliminary Notice" was an inter-departmental notice that referred to obligations an insurer may have should compensation be paid to a recipient of social security. 

4. The decision of the Authorised Review Officer made on 15 December 2000 concluded that, contrary to the two earlier original decisions, there were reviewable decisions and that the decisions to issue the "Centrelink Notice" and the "Centrelink Preliminary Notice" should be set aside:

   "(1)I have decided that the decision to issue an information notice in the letter to Mrs Banks dated 27 June 2000 be set aside and replaced with the decision that there was no lawful authority for the issue.  Accordingly, Mrs Banks is placed in the same position as if the notice had never issued and is therefore under no obligations arising therefrom.

   (2)I have further decided that the decision to issue the section 1177 notice of 26 July 2000 be set aside and replaced with the decision that there was no lawful authority for the issue.  I am aware that Centrelink's Compensation Management Section at Coffs Harbour has already purported to revoke the notice under section 1182 SSA.  However, in my view, that section applies only to validly issued notices.  In the case of an invalidly issued notice the position should be restored to the position before the notice issued, as far as this is possible or practicable.  Accordingly, as the notice was issued to and is currently in the possession of Comcare, I direct that the Compensation Management Section recover the facsimile notice from Comcare, together with any copies of that notice that may have been made by Comcare.  I further direct that:

   ·     the facsimile notice be placed on Mrs Banks' 'compensation file' and plainly marked "invalidly issued notice recovered from Comcare on [date]";

   ·     the copies (if any) made by Comcare of the facsimile notice be destroyed;

   ·     the original section 1177 notice on Mrs Banks' file, together with any copies of that notice already on her file, be plainly marked "invalid notice"; and

   ·     this action be documented on Mrs Banks' Centrelink computer record when finalised." (Document T51 Folio 147)

1. The applicant represented herself at the hearing.  The respondent was represented by Mr R McQuinlan, a Departmental Advocate.

2. At the hearing the Tribunal had in evidence before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 – the "T" Documents (Exhibit 1) and a bundle of various documents lodged by the applicant (Exhibit 2).
   Issues before the Tribunal

3. Whether "the decision of the Social Security Appeals Tribunal was wrong in law" (Document T1 Folio 2).
   Legal Framework

• Reviewable Decision

1. Subsection 3(3) of the Administrative Appeals Tribunal Act 1975 defines "decision" as including –

• making, suspending, revoking or refusing to make an order or determination;

• giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

• issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

• imposing a condition or restriction;

• making a declaration, demand or requirement;

• retaining, or refusing to deliver up, an article;

• doing or refusing to do any other act or thing.

1. That definition would be capable of applying to decisions that do not have a quality of finality, or that do not affect a person's social security entitlements.  However, as Mason CJ  explained, in Australian Broadcasting Tribunal v Bond and Others (1990) 94 ALR 11 at p 23, the definition must be more narrowly construed. The Chief Justice was considering the nature of a reviewable decision under the Administrative Decisions (Judicial Review) Act 1977(Cth).  He said at p 23:

   "To interpret 'decision' in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.
   The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations.  That answer is that a reviewable 'decision' is one for which provision is made by or under statute.  That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.  A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment."

and

"…To interpret 'decision' in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process."

• Identification of the Decision-Maker

1. In order to identify the decision-maker, it is necessary for the Tribunal to identify the decision which has been made. That follows from the provisions of Section 25. A consequence of that Section is that the Tribunal only has jurisdiction in relation to particular decisions to which it has been given jurisdiction. Subsection 25(1) provides that:-

   "An enactment may provide that applications may be made to the Tribunal:

   (a)for review of decisions made in the exercise of powers conferred by that enactment;

   ….."

2. The decisions in relation to which the Tribunal is given jurisdiction are identified, in part, by reference to the person who made the decision.  Subsection 25(2) provides that the enactment must specify the person or persons whose decisions are subject to review.  It may provide that all decisions of a person, or all decisions of a particular class, may be subject to review.  The enactment may also specify the conditions subject to which applications may be made.

3. It is clear from Section 25 that Parliament intended that the Tribunal's powers of review be defined and circumscribed by the enactment which makes provision for such review.

4. The effect of Section 25 of the Administrative Appeals Tribunal Act is that the decision which is under review must be identified.  In doing that, the decision-maker must also be identified.

• Variation of Decision Before AAT Review Completed

1. Section 180(2) of the Social Security (Administration) Act 1998 is relevant in respect of Mrs Banks' circumstances:-

   "(2)If an officer sets a decision aside and substitutes a new decision after an application has been made to the AAT for review of the original decision but before the determination of the application, the application is to be treated as if:

   (a)the SSAT had set aside the original decision and substituted the new decision; and

   (b)the application were an application for review of the new decision."

2. The Explanatory Memorandum to the Social Security (Administration) Bill expands on the meaning and application of subsection 180(2):-

• Variation of decision before AAT review completed

  "…..that where a decision is set aside by an officer after an application has been made to the AAT, the application is to be treated as if the decision as set aside had been affirmed by the SSAT and the decision under review is the substituted or new decision rather than the original decision."

1. The Social Security (Administration) Act defines an Authorised Review Officer to mean "an officer authorised under section 235 to perform duties as an authorised review officer for the purposes of the social security law" (Schedule 1 – Dictionary).  Section 235 (Authorised review officers) provides:

   "The Secretary may, in writing, authorise an officer to perform duties as an authorised review officer for the purposes of the social security law."

Consideration of the Issues

1. The objective of the Tribunal is to review administrative decisions, not only on their merits but in accordance with the law at all times.  The first matter for the Tribunal to consider is the identification of the decision under review, as well as the decision-maker, by considering statutory and case law.

2. The effect of applying subsection 180(2) of the Social Security (Administration) Act 1999 is that the decision under review is that decision made by the Authorised Review Officer on 15 December 2000 (Document T51). Furthermore, the effect of subsection 180(2) and the common law principles in Australian Broadcasting Tribunal v Bond (supra) is that the decision of the Authorised Review Officer of the Authorised Review Officer is "operative and determinative" in a practical sense.

3. The respondent submits that the Tribunal is unable to make a decision providing any greater benefits to Mrs Banks than she has already been given by the Authorised Review Officer's decision of 15 December 2000.  Accordingly, continuance of the proceedings before the Tribunal is therefore frivolous or vexatious.  Mrs Banks refutes that her application is malicious or vexatious and contends that her application for review is justified because the only issues the Social Security Appeals Tribunal determined related to her husband's entitlement for age pension – and not the issues in her application for review.

4. Section 42B of the Administrative Appeals Tribunal Act 1975 states:-

   "Power of Tribunal where a proceedings is frivolous or vexatious
   42B.(1)  Where an application is made to the Tribunal for review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
   (a)       dismiss the application; and

   (b)if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

   (2)A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.

   (3)The Tribunal may discharge or vary such a direction."

1. In Re Cooper and Repatriation Commission (1995) 38 ALD 164, a decision involving an application under Section 42B, the Tribunal said at 165:

   "'frivolous' means "obviously unsustainable":  Attorney-General (Duchy of) Lancaster v London & North Western Railway [1892] 3 Ch. 274."

• In Re Williams and Australian Electoral Commission (1995) 38 ALD 366, the Tribunal said at 373:

  "The test to be applied in determining whether proceedings are vexatious can be expressed either subjectively or objectively, depending upon the head of 'vexatiousness' one is considering."

• In Attorney-General v Wentworth (1988) 14 NSWLR 481, Roden J said at 491:

  "It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds.  I believe that the test may be expressed in the following terms:

  1.Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

  2.They are vexatious if they are brought for collateral purposes, and not fro the purpose of having the court adjudicate on the issues to which they give rise.

  3.They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless."

• The Tribunal also noted (at 372):

  "The power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly:  per Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1965] ALR 636; (1964) 112 CLR 125.  The mere fact that a proceeding is shown to have no foundation in fact is sufficient to justify a finding that it was commenced vexatiously or without reasonable cause:  per von Doussa J in Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324."

1. In the present case, the applicant's view is that she is seeking the redress of what she believes is an injustice done to her.  The frustration Mrs Banks has with the system is exacerbated by the fact that she is not a lawyer, has not been able to obtain legal representation, and does not properly understand how the Commonwealth administrative review mechanisms operate.

2. However, the Tribunal finds that there is an element of the applicant's application for review of a wish to expose what she believes are unjust or discriminatory departmental practices and using the Tribunal review process as a means for achieving this end.  In the Tribunal's view, the applicant does not appreciate fully the jurisdictional constraints imposed on the Tribunal.

3. The applicant has also raised issues concerning the operation of Section 192 ("General Power to Obtain Information") and Section 195 ("Obtaining Information to Verify Claims etc") of the Social Security (Administration) Act 1999.

4. Section 144 of the Social Security (Administration) Act defines decisions that are non-reviewable by the Social Security Appeals Tribunal.  These include a decision made under Sections 192, 193, 194 or 195 of this Act [ see subsection 144(a)].  Applying the principles and reasoning in Australian Broadcasting Tribunal v Bond (supra), the Tribunal concludes that the applicant's basis for a review of Section 192 and Section 195 cannot be sustained as there is no provision for such a review under the statute.  The observations made by the Tribunal in paragraph 20 also apply in this aspect of the applicant's application for review.

5. The applicant has raised a number of other issues for which she seeks a determination by the Tribunal:  a Notice Revoking Notices as well as Procedural Matters relating to the administrative process.  However, the Tribunal concludes that these issues are not part of the decision under review (see paragraph 16) and do not fall within the statutory and common law (Australian Broadcasting Tribunal v Bond (supra)) meaning of a "reviewable decision".

6. The Tribunal finds that the decision under review has been determined in a manner to provide the applicant with a remedy which represents all that can be achieved under the statutory provisions for review. 

7. I am satisfied that any decision of the Tribunal could not encompass more than that which has been encompassed by the decision which is now, by virtue of subsection 180(2) of the Social Security (Administration) Act, the decision before the Tribunal.

8. Taking into account all of the above reasons, the Tribunal decides, on balance, that the application is not frivolous or vexatious.

9. However, whilst the Tribunal is not, on this occasion, satisfied that this application is frivolous or vexatious, in the Tribunal's view the appropriate outcome is to deny the Section 42B request by the respondent. In doing so, the Tribunal nevertheless cautions the applicant that the Tribunal review process should only be used for the purpose for which it is established by law. To do otherwise is an abuse of that process which could, ultimately, lead to a Section 42B dismissal. In this regard, the views of the Full Court of the Federal Court expressed in Beitseen and Others v Johnson and Others (1989) 29 IR 336 at 338 are particularly relevant:

   "When the judicial system is in an apparently permanent state of stress, and courts are finding it increasingly difficult to keep up with their work, they cannot afford the luxury of spending time on interesting questions of law which, because they have been overtaken by events, have become of academic interest only.  With so many cases of real importance to litigants, and often to the public generally, waiting to be heard or for judgment to be given, others must be discouraged from commencing or pursuing litigation which can have little or no practical result – particularly if that litigation is being funded in whole or in part by the taxpayer."

1. The Tribunal decides:

2. that the decision under review is that of the Authorised Review Officer made on 15 December 2000; and

3. to affirm the decision under review.

   I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

   Signed:         
     Associate

   Date/s of Hearing  13.2.01
   Date of Decision  12.3.01    
   Rep. for the Applicant              Applicant appeared in person
   Solicitor for the Respondent    Mr R McQuinlan, Departmental Advocate