Gen Bao and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs

[2010] AATA 522

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 522

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5118

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Gen Bao

Applicant

And Secretary, Department of Families, Housing, Community Services & Indigenous Affairs

Respondent

DECISION

Tribunal M D Allen

Date24 June 2010

PlaceSydney

Decision

Being satisfied that the application for review of the decision is frivolous or vexatious, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975, the application is DISMISSED.

……………..[sgd]..………
M D Allen, Senior Member

CATCHWORDS

SOCIAL SECURITY – Claim for disability support pension rejected.  No medical evidence to support impairment rating of 20 points or more at date of claim or 13 weeks thereafter. No reasonable prospects of success.  Application dismissed as frivolous or vexatious.

LEGISLATION

Administrative Appeals Tribunal Act 1975 Ss 42B(1), 43(2A)

Social Security Act 1991 s94

Social Security (Administration) Act 1999 Schedule 2

CASES

Attorney-General v Wentworth (1988) 14 NSWLR 481

Gamester Pty Ltd and Anor v Lockhart (1993) 112 ALR 623

REASONS FOR DECISION

13 July 2010 M D Allen, Senior Member            

1. By Direction dated 24 June 2010 I dismissed this application for review pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) on the grounds that it was frivolous or vexatious.

2. On 29 June 2010 the Applicant requested written reasons for my decision pursuant to subsection 43(2A) of the AAT Act.

3.      By Application made on 26 October 2009, the Applicant sought review of a decision of the Social Security Appeals Tribunal of 7 October 2009 that affirmed a prior decision by Centrelink to reject a claim for disability support pension.

4.      The matter was listed before me on 24 June 2010 for a Directions Hearing following the failure of the Applicant to comply with a direction of the Tribunal of 17 March 2010.  The Applicant had failed to file all medical reports on which he intended to rely or advise the Tribunal in writing of his intention to withdraw or reach agreement with the Respondent on or before 11 June 2010.

5. At the Direction Hearing I informed the Applicant that the matter before the Tribunal was not likely to be resolved. Specifically, schedule 2 of the Social Security Administration Act (1999) provides that the qualifications for the grant of a disability support pension are to be assessed at the date of the claim and for a period of 13 weeks thereafter.

6. The medical evidence available for the relevant period of assessment, being the date of his claim on 21 May 2009 and 13 weeks after that date, is insufficient to support an impairment rating of 20 points or more pursuant to section 94 of the Social Security Act 1991 which states inter alia:

1.    “A person is qualified for disability support pension if:

(a)  the person has a physical, intellectual or psychiatric impairment, and

(b)  the person’s impairment is of 20 points or more under the Impairment Tables; and

(c)  one of the following applies:

i.the person has a continuing inability to work;…”

7.      With no reasonable prospects of success these proceedings had become frivolous or vexatious.  I refer to the test for determining whether proceedings are vexatious which was discussed by Roden J in Attorney-General v Wentworth (1988) NSWLR 481 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. …
2…

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.”

8.      In Gamester v Lockhart (1993) 112 ALR 623 at 624, the Full Court referred to the proceedings before Lockhart J in which an appellant’s application for judicial review was dismissed. His Honour said:

“The case has reached a point where I will not allow it to go on any longer.  To do so would, I think, be a serious waste of everybody’s time and money.  I have on many occasions throughout the two days sought assistance from Ms Cameron as to what she really wishes to achieve and how she seeks to achieve it; but I have not been helped in that inquiry. I do not suggest that she deliberately refrained from helping me, or refused to help me, but I think she simply has no case whatever on which she can help me.

And later:

…I am plainly satisfied that there is no reasonable cause of action disclosed in the proceeding presently before the court, that the proceeding is vexatious and that it is an abuse of the court’s process”.

9.      I informed the Applicant that the new medical evidence he had recently obtained from Drs Tang and Laws cannot be applied to an application made in May 2009, however, they could be used to support a new claim with Centrelink for disability support pension.

10.     There being no medical evidence sufficient to support a claim for disability support pension requiring an impairment rating of at least 20 points as at the date of his claim and 13 weeks thereafter, the application for review is DISMISSED.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         ....................[sgd].........................................
  K. Lynch, Associate

Date of Interlocutory Direction Hearing     24 June 2010
Date of Decision  24 June 2010
Date of Written Reasons  13 July 2010
Representative for the Applicant               Mr Gen Bao (self)