Budd and Secretary, Department of Social Services (Social services second review)
[2023] AATA 2631
•17 August 2023
Budd and Secretary, Department of Social Services (Social services second review) [2023] AATA 2631 (17 August 2023)
Division:GENERAL DIVISION
File Number(s): 2023/3235
Re:Christopher Budd
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member W Frost
Date of decision: 17 August 2023
Date of written reasons: 18 August 2023
Place:Canberra
The Tribunal dismisses the application under review pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act 1975.
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Member W Frost
Catchwords
PRACTICE AND PROCEDURE – application for dismissal under s 42B of the Administrative Appeals Tribunal Act 1975 – whether the application should be dismissed – whether application is frivolous, vexatious, misconceived or lacking in substance – whether application is futile or being pursued for a collateral purpose – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 42B, 30A, 43
A New Tax System (Family Assistance) Act 1999 Clause 3B of Schedule 2
A New Tax System (Family Assistance) Administration Act 1999 ss 67CCCases
Filsell and Comcare [2009] AATA 90
Kowalski and Repatriation Commission [2014] AATA 141
McCarthy and Building Practitioners Board [2016] AATA 1029
Re Bergen and Secretary, Department of Social Security (1994) 36 ALD 717
Re Currey and Australian Community Pharmacy Authority [2007] AATA 1963; (2007) 99 ALD 106
Re Irving and Repatriation Commission (1997) 46 ALD 20
Re Knight and Comcare (1994) 36 ALD 417
Re Thomson and Comcare [2017] AATA 34Re Williams and Australian Electoral Commission (1995) 38 ALD 366
REASONS FOR DECISION
Member W Frost
18 August 2023
INTRODUCTION & BACKGROUND
This decision relates to the Respondent’s application to dismiss the application made by the Applicant, Mr Christopher Budd, in the General Division of the Administrative Appeals Tribunal (Tribunal). At an interlocutory hearing to determine the dismissal application, the Tribunal read out a statement of its reasons for dismissing Mr Budd’s application. Mr Budd requested the Tribunal’s written reasons for its decision and these are those reasons.
In May 2023, Mr Budd applied for review by the Tribunal of a decision made in April 2023 by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). That AAT1 decision set aside the decisions under review made in August 2022 by an authorised review officer (ARO) to cancel Mr Budd’s eligibility for Child Care Subsidy (CCS) in respect of one of his children, Lucy, and to reduce the child care percentage for another of his children, Elsie. In substitution for the ARO’s decisions, the AAT1 decided that:
(a)the eligibility determination in respect of Lucy under subsection 67CC(1)(a) of the A New Tax System (Family Assistance) Administration Act 1999 remained in effect until 30 November 2022; and
(b)Elsie continued to be a higher rate child for the purpose of Clause 3B of Schedule 2 to the A New Tax System (Family Assistance) Act 1999 until the other daughter, Lucy, turned 6 on 17 September 2022.
In or around mid-May 2023, the AAT1 decision was implemented and Mr Budd was paid CCS arrears in the amount of $282.30.
In July 2023, the Respondent applied for dismissal of Mr Budd’s subsequent application to this Tribunal pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act). The Tribunal listed an interlocutory hearing by telephone to determine the Respondent’s dismissal application and made directions for the parties to provide written submissions in advance of that hearing. The Tribunal has considered the written submissions and the oral submissions, provided at the interlocutory hearing, in relation to the dismissal application.
For the following reasons, pursuant to subsection 42B(1) of the AAT Act, the Tribunal dismisses Mr Budd’s application for review of the AAT1 decision pursuant to subsection 42B(1)(a) of the AAT Act, because it is satisfied that the application ‘frivolous, vexatious, misconceived or lacking in substance’. Accordingly, Mr Budd’s application will be dismissed without the Tribunal proceeding to review the AAT1 decision.
ISSUE
The interlocutory issue for the Tribunal to determine was whether it should dismiss Mr Budd’s application under section 42B of the AAT Act.
LEGISLATION
Section 2A of the AAT Act provides as follows:
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.
Subsection 43(1) of the AAT Act provides the Tribunal with power to make a decision:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Subsection 42B(1) of the AAT Act gives the Tribunal the power to dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
CONTENTIONS
Mr Budd
Pursuant to directions made by the Tribunal, Mr Budd provided written submissions in advance of the interlocutory hearing, opposing the Respondent’s dismissal application. In summary, Mr Budd contended that:
(a)none of the grounds for potential dismissal under section 42B of the AAT Act are enlivened;
(b)the AAT1 made an ‘error of law’ and seeking to have an ‘error of law’ corrected is not an absence of a cause of action; it is a ‘possible good’, especially if the ‘error’ affect a class of citizens and there are prospects of success on a legal basis;
(c)the legal position of the Tribunal ‘on a particular point is the legal position of the executive’, unless ‘such contradiction is expressly authorised by statute’; the Tribunal ‘conclusively determines what the executive’s position is’;
(d)the Respondent’s contention that Mr Budd’s application will not automatically have the effect of determining the eligibility of a class of citizens to multiple CCS or have any broader impact is ‘plainly wrong’; that there will be ‘a bad effect from this AAT appeal, is an argument against this appeal being frivolous, vexatious, or otherwise an abuse of process’;
(e)accordingly, the Tribunal should make orders ‘necessary and convenient’ to:
(i)invite the Attorney-General to intervene in this proceeding pursuant to subsection 30A(1) of the AAT Act because the Tribunal’s decision ‘will determine the eligibility of a class of citizens’ to the multiple CCS;
(ii)‘list a final hearing on whether the Secretary has committed contempt, and if so, what order should be made’, in circumstances where the payment of CCS arrears was made in mid-May 2023, following the AAT1 decision being provided to the parties on 17 April 2023, and after the time for the Respondent to appeal that decision had ended;
(iii)‘publish the AAT’s final decision in this matter’ where ‘publication is in the public interests because the reasons for decision determine eligibility for a class of citizens’ to multiple CCS;
(iv)order the Respondent to produce certain documents held by various agencies regarding the applicable legislation; and
(v)‘list this appeal for final hearing’.
Respondent
The Respondent contended that the Tribunal’s dismissal power under section 42B of the AAT Act was enlivened because Mr Budd’s application was ‘frivolous’; there was no further cause of action in the Tribunal that would provide a better outcome than that which Mr Budd had received from the AAT1 decision and the application to this Tribunal is being pursued for a collateral purpose. It was therefore submitted by the Respondent that the Tribunal should exercise its discretion to dismiss the application on the basis that there is no utility for the application to proceed and such a course is in line with the Tribunal’s objectives in section 2A of the AAT Act.
CONSIDERATION
For the following reasons, the Tribunal is satisfied that its discretionary power to dismiss Mr Budd’s application is enlivened and that it should be exercised pursuant to subsection 42B(1) of the AAT Act.
The Tribunal notes the relevant authorities regarding the dismissal power under the AAT Act, including among others, McCarthy and Building Practitioners Board [2016] AATA 1029, Kowalski and Repatriation Commission [2014] AATA 141 and Filsell and Comcare [2009] AATA 90 (Filsell). The Tribunal in Filsell at [33] set out the relevant principles in considering the dismissal power in section 42B of the AAT Act, as follows:
(a) The word “frivolous” in combination with “vexatious” is a technical legal term, which means that there is no legal basis for the proceedings; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings: Pitt v OneSteel Reinforcing Pty Ltd [2008] FCA 923 at [9].
(b) The expression “vexatious” can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are “so obviously untenable or manifestly groundless as to be utterly hopeless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J, or if the proceedings have “no reasonable prospect at all of success”: Abrahams v Comcare (2006) 93 ALD 147 at [24], per Madgwick J.
(c) The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously. Unless the tribunal is satisfied that the application is frivolous or vexatious in the sense referred to in subparas (a) and (b) above, an applicant should not be denied the right to have the tribunal review the decision in issue on the merits, by conducting a hearing de novo and considering the evidence that the applicant can properly adduce at that hearing: General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at 129–130.
(d) However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
(e) Conversely, applications to dismiss under s 42B should not be made except in appropriate cases, since otherwise the parties will be put to additional expense, the tribunal's time and resources will be wasted, and the tribunal's ability to provide a mechanism of review that is fair, just, economical, informal and quick (as required by s 2A of the AAT Act) will be impeded.
(f) Medical or other expert evidence generally needs to be evaluated in the context of evidence from the applicant or other lay witnesses. Where an application is made under s 42B at an early stage of proceedings in this tribunal, the parties may not have submitted, or may not be in a position to submit, all of the lay or medical evidence that might be available in relation to the proceedings. Further, if the applicant is unrepresented, there is no obligation to file any document in this tribunal that would have the status of pleadings in a civil court. In addition, in some circumstances (depending on the evidence adduced at the hearing) this tribunal exercises a limited inquisitorial role, whereby it considers a case not articulated by the applicant: see the authorities I discussed in Re Kowalski and Repatriation Commission [2008] AATA 903 at [33]–[35]. All of these matters mean that the basis of the application for review is often not as readily ascertainable as is the case where applications are made to strike out actions in civil courts on the grounds that the pleadings do not disclose a cause of action. This underlines the need for the tribunal to proceed cautiously when considering applications for dismissal under s 42B.
(g) Section 42B presupposes that the tribunal has jurisdiction, since it empowers the tribunal to dismiss the application, and also in appropriate cases, to direct that the applicant must not, without leave of the tribunal, make a subsequent application to the tribunal of a kind or kinds specified in the direction. If the tribunal has no jurisdiction to review the decision in question, it would not have power to take the steps contemplated by s 42B.
The discretionary power in section 42B of the AAT Act is plainly to be exercised carefully by the Tribunal. However, as the Tribunal has previously held, if an application can serve no purpose for the applicant, it should not continue to use the Tribunal’s time and resources.[1] The Tribunal in Re Irving and Repatriation Commission (1997) 46 ALD 20 at [22] also considered ‘the expense that would be incurred by the respondent in the proceedings’.
[1] Re Williams and Australian Electoral Commission(1995) 38 ALD 366; Re Currey and Australian Community Pharmacy Authority[2007] AATA 1963; (2007) 99 ALD 106.
Most relevantly in relation to this proceeding, the Tribunal in previous decisions has exercised (or otherwise indicated that it would exercise) the dismissal power in section 42B of the AAT Act where ‘the Tribunal's jurisdiction provides for no better outcome than that which [an applicant] has achieved’[2] and where ‘satisfied that a successful application would have no practical effect’.[3] The Tribunal in Re Williams and Australian Electoral Commission (1995) 38 ALD 366 also found that an application should be dismissed if it is futile or being pursued for a collateral purpose.[4]
[2] Re Thomson and Comcare [2017] AATA 34. See also Re Knight and Comcare(1994) 36 ALD 417 at 423; and Re Bergen and Secretary, Department of Social Security(1994) 36 ALD 717 where the Tribunal found that it would be unable to make a decision that would provide the applicant with any greater benefit than was provided by the decision sought to be reviewed.
[3] Re Irving and Repatriation Commission (1997) 46 ALD 20. See also the ACT Administrative Appeals Tribunal decision in Re Canberra Raiders Sports Club and Commissioner for ACT Revenue(1999) 59 ALD 229.
[4] At 373.
For the avoidance of doubt, the Tribunal’s jurisdiction is limited in relation to the application made to it by Mr Budd. The decision under review before the Tribunal relates to Mr Budd’s eligibility for CCS and matters flowing from that eligibility. The AAT1 in that reviewable decision found in Mr Budd’s favour. That decision has been implemented and Mr Budd has been paid an amount of arrears in relation to CCS. Importantly, in his application to this Tribunal, Mr Budd does not dispute the AAT1 decision, being his success in being found to be eligible for CCS and associated matters in the relevant period. Accordingly, this Tribunal can provide Mr Budd with no additional practical benefit via the present application. Any future review by this Tribunal of the AAT1 decision could, pursuant to subsection 43(1) of the AAT Act, result in it being affirmed (that is, Mr Budd again being successful), varied, or set aside and another decision taking its place, whether by substitution by the Tribunal or upon reconsideration by the Respondent. Having regard to the Tribunal’s jurisdiction in this application, the Tribunal is not satisfied that, if it proceeded, it would have the effect of determining the eligibility of a class of citizens to CCS, as submitted by Mr Budd. The Tribunal’s jurisdiction is limited to reviewing the AAT1 decision that was made with respect to Mr Budd and his eligibility for CSS and related matters, rather than any particular class of people. The Tribunal therefore finds that the application is brought for a collateral purpose and lacks utility.
In circumstances where Mr Budd is the applicant in this proceeding and seeks review of the AAT1 decision in which he was successful, the Tribunal is satisfied that there is no practical benefit the Tribunal could provide Mr Budd in this application and there is accordingly no utility in it continuing in the Tribunal. Additionally, a decision of the Tribunal favourable to Mr Budd would have no substantive effect, because the AAT1 decision in Mr Budd’s favour has been implemented. Whether or not there was an ‘error of law’ made by the AAT1, as submitted by Mr Budd, the decision made by the AAT1 was in Mr Budd’s favour and he obtained the relief sought, including payment of some arrears of CCS. While this Tribunal does not make any findings in relation to this particular submission regarding the AAT1’s purported error, even if there were an alleged error, which was not conceded by the Respondent, it had no practical effect on the successful outcome Mr Budd obtained in that forum. In this regard, the Tribunal finds that Mr Budd’s application to this Tribunal is frivolous because there is no further substantive relief that the Tribunal could provide him in addition to that he already secured as a result of the AAT1 decision.
Therefore, the Tribunal is satisfied that Mr Budd’s application is frivolous and vexatious pursuant to subsection 42B(1)(a) of the AAT Act. It would be futile for the application to continue, and inappropriate to further use the time and resources of the Tribunal in this proceeding. It would also be unproductive to put the Respondent to the expense that would be involved in the matter proceeding to a hearing for what would, if Mr Budd were successful, amount to no further practical benefit to that he received as a result of the AAT1 decision in his favour and provide no better outcome. To this end, and for the aforementioned reasons, the Tribunal considers that to conduct a review in this application would be contrary to the Tribunal’s objectives in section 2A of the AAT Act, especially in providing a mechanism of review that is fair, just, economical, quick, and proportionate to the importance and complexity of the matter.
For completeness, as a result of the Tribunal’s decision to dismiss Mr Budd’s application, and for the above reasons, it is not necessary for the Tribunal to further consider his request for the Tribunal to ‘invite the Attorney-General to intervene in this proceeding’ under subsection 30A(1) of the AAT Act or for the Tribunal to ‘make the orders necessary to bring proceedings against Centrelink for their offences’, being a reference to the contempt provision in subsection 63(2) of the AAT Act. In addition, the publication of the AAT1 decision is a matter for the AAT1 and the request for various documentation from Commonwealth agencies can be pursued through other avenues, such as the freedom of information framework.
DECISION
The Tribunal dismisses the application for review pursuant to subsection 42B(1) of the AAT Act.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
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Associate
Dated: 18 August 2023
Date(s) of hearing: 17 August 2023 Date final submissions received: 14 August 2023 Applicant: By Telephone Solicitor for Respondent: Ms Cara Sullivan, Services Australia
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