Budd and Secretary, Department of Social Services (Social services second review)

The Administrative Appeals Tribunal (AAT) considered an application by Mr Budd for review of a decision, against which the Secretary of the Department of Social Services sought dismissal under section 42B of the *Administrative Appeals Tribunal Act 1975* (AAT Act). The Secretary contended that Mr Budd's application was frivolous, lacked utility as it offered no prospect of a better outcome than already received, and was being pursued for a collateral purpose, thereby justifying dismissal in line with the Tribunal's objectives under section 2A of the AAT Act.

The Tribunal was required to determine whether its discretionary power to dismiss Mr Budd's application under section 42B of the AAT Act was enlivened and, if so, whether it should be exercised. This involved considering the meaning of "frivolous" and "vexatious" in the context of the AAT Act, drawing on established case law. The Tribunal also had to assess whether the application had any reasonable prospect of success and whether continuing the proceedings would be futile, an inappropriate use of the Tribunal's resources, or cause undue expense to the respondent.

The Tribunal applied principles from relevant authorities, including *McCarthy*, *Kowalski*, and *Filsell*, which define "frivolous" as lacking a legal basis and "vexatious" as including proceedings brought for a collateral purpose or those that are "obviously untenable or manifestly groundless" with "no reasonable prospect at all of success." While acknowledging that the dismissal power should be used cautiously and that applicants should generally not be denied a review on the merits, the Tribunal found that if proceedings have no reasonable prospect of success, they should be dismissed to avoid futility and waste of resources. The Tribunal concluded that its discretionary power to dismiss was enlivened and should be exercised.

Consequently, the Tribunal dismissed Mr Budd's application for review pursuant to subsection 42B(1) of the AAT Act. As a result of this dismissal, the Tribunal deemed it unnecessary to consider Mr Budd's requests for the Attorney-General to intervene or for orders against Centrelink for alleged offences, and noted that requests for documentation could be pursued through freedom of information avenues.