Bringolf and Secretary, Department of Human Services (Freedom of information)
[2018] AATA 2004
•28 June 2018
Bringolf and Secretary, Department of Human Services (Freedom of information) [2018] AATA 2004 (28 June 2018)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2017/6137
Re:Steve Bringolf
APPLICANT
AndSecretary, Department of Human Services
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date of decision: 28 June 2018
Date of written reasons: 3 July 2018
Place:Melbourne
The Tribunal dismisses the application under section 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) upon being satisfied that the application is an abuse of process of the Tribunal.
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Senior Member A. Nikolic AM CSC
Catchwords
PRACTICE AND PROCEDURE – dismissal of application for review – whether Tribunal satisfied that application is an abuse of process – appropriate to exercise discretion to dismiss application pursuant to section 42B(1)(c) of AAT Act
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 42B(1)(c), 2A, 33(1AB), 63
Cases
McCarthy and Building Practitioners Board [2016] AATA 1029
Jeffery & Katauskas v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
3 July 2018
BACKGROUND
On 11 October 2017 Mr Steve Bringolf asked the Tribunal to review a decision by the Office of the Australian Information Commissioner. His application progressed through the Tribunal’s Conference Process in late 2017 and early 2018, affording the parties an opportunity to discuss and define the issues. With the matter unable to be narrowed or resolved, it was listed for hearing on 10 July 2018.
On 13 June 2018 the Respondent lodged documents with the Tribunal ahead of the hearing and sought a confidentiality order over some of them. In an email to the Tribunal at 12:19pm on 13 June 2018, Mr Bringolf objected to the confidentiality request. He stated that the previously listed hearing on 10 July 2018 was ‘not going to happen’ and to ‘expect to keep that date is utterly delusional.’
In light of Mr Bringolf’s objection to the confidentiality order and unwillingness to proceed with the 10 July hearing, a Telephone Directions Hearing (TDH) was listed for 28 June 2018. Written notice of the date and time of the TDH was provided to the parties on 19 June 2018. Mr Bringolf responded with an email on 19 June 2018 at 11:44am asking why the TDH was being held and stating in part:
‘…this bullshit has now dragged on for 6 months...’
On 22 June 2018, Mr Bringolf sent an email to the Tribunal stating in part:
‘…I am on holidays for the next three months…so now you can all wait on me.
I will not be taking any calls from any public servant for the next three months or answering any correspondence.’
No additional detail was provided about the holidays Mr Bringolf referred to, nor was any reasonable excuse offered about his unwillingness to participate in the TDH or substantive hearing as scheduled.
On 27 June 2018, the Tribunal sent Mr Bringolf an SMS reminder about the TDH on his preferred daytime contact number. Two filed records of conversation dated 27 June 2018 note that:
(a)Mr Bringolf called the Tribunal at approximately 11:15am in response to the SMS reminder. He stated he would not attend the TDH or 10 July hearing because he was going abroad for three months and ended the call abruptly; and
(b)When a Tribunal officer called Mr Bringolf back at 12:16pm asking about his overseas travel details, Mr Bringolf said he could not or would not provide any details. He stated he was stressed and the Tribunal could now wait on him. When the Tribunal officer enquired about medical evidence regarding his inability to attend the TDH or 10 July hearing, Mr Bringolf is reported to have become ‘quite irate,’ stated the Tribunal could wait on him, and again ended the call abruptly.
At the appointed time for the TDH (9:30am on 28 June 2018), a call was made by a Hearing Attendant to Mr Bringolf’s preferred daytime contact number. The call was not answered and the Hearing Attendant left a message. A second call was made some five minutes later. Mr Bringolf answered, made the following statement, and then hung up:
‘Mate, I fuckin' told you I'm not fuckin' taking calls now fuck off.’
A few minutes later, I was advised by the Tribunal officer that Mr Bringolf had sent an email to the Tribunal at 9:41am stating:
‘What part of 'I am on holidays I'm not taking calls' is a bit too fucking difficult to understand? If I tell you I am not taking calls then don't fucking constantly call me and harass me. Four calls in two days about something you were told constantly was not going to happen. Idiots.’
After considering the material before me, I dismissed Mr Bringolf’s application under section 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (AAT Act). I gave my reasons ex tempore and Mr Bringolf was advised of the decision the same day with a standard notification letter, which was emailed to him and also posted. In that letter Mr Bringolf was advised that if he wanted written reasons for the decision to dismiss his application, he could ask for them within 28 days. Mr Bringolf responded by email at 9:20pm on 28 June 2018 in the following terms:
‘you can give a written reason you corrupt useless cunt’
I have taken Mr Bringolf’s email to be a request for a statement in writing of the reasons for my decision, pursuant to section 43(2A) of the AAT Act. These are the reasons requested.
LEGISLATION
The Tribunal’s objective is provided at Section 2A of the AAT Act:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
Section 33(1AB) of the AAT Act provides that:
‘A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.’
Section 42B(1) of the AAT Act provides that:
‘The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospects of success; or
(c) is otherwise an abuse of the process of the Tribunal.’
Section 63 of the AAT Act provides that:
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct obstructs or hinders the Tribunal or a member in the performance of the functions of the Tribunal.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(2) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct would, if the Tribunal were a court of record, constitute a contempt of that court.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
In relation to dismissal of applications under section 42B(1), I adopt Deputy President Forgie’s reasoning in McCarthy and Building Practitioners Board [2016] AATA 1029 (McCarthy) at [14], which held that:
‘The power given to the Tribunal is not dependent upon a party’s having made an application or request to it. It may exercise the power at any stage of the proceeding if it is satisfied that the application meets one of the descriptions set out in s 42B(1)(a) to (c). That means that the Tribunal must engage in a two-step process. Is it satisfied that it meets one or more of those descriptions? If so, should it exercise the power? The second question must be asked because the power is expressed in discretionary terms. The Tribunal “may” dismiss the application and there is nothing in the context of s 42B or in the AAT Act generally that dispels the use of that word to signify a discretion.
In Jeffery & Katauskas v SST Consulting Pty Ltd,[1] the majority of the High Court noted four categories of conduct relating to abuse of process, which have historically attracted the intervention of the courts, including at [27(b)]:
‘proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an a improper way.’
[1] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34; 83 ALJR 1180; French CJ, Gummow, Hayne and Crennan JJ; Heydon J dissenting.
At [28] the majority held that:
‘The term ‘abuse of process’, as used in Australia today, is not limited by the categories mentioned above…It has been said repeatedly in the judgments of this Court that the categories of abuse of process are not closed…This does not mean that abuse of process is a term at large or without meaning…It is clear, however, that abuse of process extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”.[2] (Footnotes omitted)
[2] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34; 83 ALJR 1180 at [28]; 93-94; 41-42; 1187-1188 (citations omitted).
CONSIDERATION
The email Mr Bringolf sent at 9:20pm on 28 June 2018 is not the first occasion he has used obscene and abusive language in his dealings with the Respondent and Tribunal, or reflected on the objectivity of the Tribunal. For example:
(a)On 31 January 2018 at 8:50 pm, in an email to the Respondent, Mr Bringolf states in part: ‘Fuck off dickhead. You need to address everything…’;
(b)On 6 February 2018 at 11.34 am, in an email to the Respondent, Mr Bringolf states in part: ‘…you need to suck it up now the shoe is on the other foot homie;’
(c)On 15 March 2018 at 12.40 pm, in an email to the Tribunal, Mr Bringolf states in part: ‘I forcefully reiterated to this thickie that he had to address every single exemption…He is a weasel faced dicktard…;
(d)On 23 May 2018 at 6:40 am, in an email to the Tribunal, Mr Bringolf states in part: ‘My brother has built an entire house in the…time it has taken this rat weasel bastard to do exactly fuck all of nothing…So if you give them yet another free pass I am writing you off as utterly spineless and corrupt….Get them to get it done NOW or get lost and get someone in the drivers seat who can’;
The Tribunal’s Acting Registry Manager wrote to Mr Bringolf on 24 May 2018, stating that his use of ‘abusive and intemperate language’ was plainly inconsistent with his obligations as an Applicant and would not be tolerated. Mr Bringolf was asked to ‘…desist from using any further abusive or intemperate language, or making any further reflections on the objectivity of the Tribunal.’ Mr Bringolf responded with an email on the same day at 4:41pm, stating in part:
‘oh and I am using my best endeavours to address a pack of rat weasel cunts…for the sort of morally bankrupt shit stain they are…I am not a saint so you will just have to deal with it...’
A Direction was issued to Mr Bringolf on 19 June 2018, requiring him to cease using obscene and abusive language in relation to his application, and to cease reflecting on the objectivity of the Tribunal. He was reminded of his obligations as an Applicant under section 33(1AB) of the AAT Act and was put on notice that failure to comply with a Direction of the Tribunal may result in dismissal of his application under section 42A(5)(b) of the AAT Act.
Mr Bringolf acknowledged receipt of the Direction in an email at 5:21pm on 19 June 2018, stating in part:
‘Ho hum, So far the ONLY thing you lot have succeed in doing so far is waste six months of my time. Awesome work team! Participation medals for everyone! Don’t forget you are ALL ‘special’! Feel better now? Honestly, you people are so out of touch with reality it is a total joke!’
CONCLUSION
I find that Mr Bringolf’s conduct reflects a repeated unwillingness to act in accordance with his obligations as an Applicant under section 33(1AB) of the AAT Act. He has ignored repeated requests to cease using obscene and abusive language in his communications with the Respondent and the Tribunal, and to cease reflecting on the objectivity of the Tribunal. He failed to moderate his conduct after receiving a letter from the Tribunal’s Acting Registry Manager. He has also failed to comply with a subsequent formal direction from the Tribunal. He refused to participate in a TDH without reasonable excuse, and made it clear he would not participate in the substantive hearing of his application on 10 July 2018, again without reasonable excuse. His unacceptable conduct has hindered the progress of his application, and caused unnecessary delays and costs – to both the Tribunal and Respondent. His conduct actively inhibits the determination of his application consistent with the Tribunal’s objective at section 2A of the AAT Act.
Mr Bringolf has conducted himself under the misapprehension that his application before the Tribunal enables him to abuse, harass, and annoy the Respondent with impunity. It does not. Moreover, his repeated reflections on the objectivity of the Tribunal and obscene emails to the Tribunal, gives rise to concerns as to whether he is in breach of the contempt provisions at section 63 of the AAT Act.
I find that Mr Bringolf’s unwillingness to accept the obligations inherent in his application represents an abuse of the Tribunal’s processes.
DECISION
It is appropriate to exercise the Tribunal’s discretion to dismiss Mr Bringolf’s application under section 42B(1)(c) of the AAT Act.
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
[sgd]........................................................................
Associate
Dated: 3 July 2018
Date of Directions Hearing: 28 June 2018 Applicant: Self-represented Advocate for the Respondent: Ms C Graves Solicitors for the Respondent: Department of Human Services, FOI & Litigation Branch
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