Hoefl and Secretary, Department of Social Services (Social services second review) - [2024] AATA 2917

Hoefl and Secretary, Department of Social Services (Social services second review) [2024] AATA 2917 (19 August 2024)
Division:GENERAL DIVISION
File Number(s): 2024/1735
Re:Johann Hoefl
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member Lee Benjamin
Date:19 August 2024
Place:Brisbane

The Tribunal, pursuant to subsection 42B(1)(c) of the Administrative Appeals Tribunal Act1975 (Cth), dismisses the application under review dated 19 March 2024.
................................[SGD]........................................
Member Lee Benjamin
Catchwords
PRACTICES AND PROCEDURES – where Applicant lodged review application regarding refusal of Age Pension by Social Services and Child Support Division – where Applicant has had several previous applications before Tribunal regarding same substantive issue – whether present application abuse of process – where Applicant has failed to proffer cogent submissions on why present application materially different – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Commonwealth of Australia v Snell [2019] FCAFC 57
Hoefl and Secretary, Department of Social Services [2022] AATA 2130
Hoefl and Secretary, Department of Social Services [2020] AATA 4647
Hoefl and Secretary, Department of Social Services [2019] AATA 3758
Kennedy and Comcare [2018] AATA 4171
Novosel v Comcare [2017] FCA 722
Novosel and Comcare (Compensation) [2015] AATA 476; (2015) 66 AAR 549
Re Quinn v Australian Postal Corporation (1992) 15 AAR 519
REASONS FOR DECISION
Member Lee Benjamin
19 August 2024
WHAT IS THIS DECISION ABOUT?

On 19 March 2024, Mr Johann Hoefl made an application to the General Division (AAT2), seeking review of a Social Services and Child Support Division (AAT1) decision. AAT1 rejected Mr Hoefl’s claim for the Age Pension. Mr Hoefl’s present application is his tenth review application to the Tribunal over recent years about the same substantive issue on a similar fact pattern. Past Tribunals have considered the merits of Mr Hoefl’s applications and determined that he is not entitled to the Age Pension. Despite being dissatisfied with AAT2 determinations, Mr Hoefl has never exercised his appeal rights to the Federal Court of Australia. Instead, he has repeatedly returned to the Tribunal, as he does so again in the present application, to attempt to relitigate matters already finally determined by past Tribunals. The question for the Tribunal is whether it ought to permit Mr Hoefl’s present application to proceed. In my view, the answer is no. Mr Hoefl’s present application has no reasonable prospect of success, is an abuse of the Tribunal’s processes and must not proceed.
WHAT HAPPENED?
After receiving Mr Hoefl’s present application, the Tribunal identified that Mr Hoefl’s application relates to an entitlement to receive the Age Pension. The Tribunal further identified that the present application is Mr Hoefl’s tenth application to the Tribunal over recent years on the same substantive issue on a similar fact pattern.
AAT2 has made three substantive determinations on Mr Hoefl’s entitlement to receive the Age Pension.[1] The past AAT2 determinations affirmed respective decisions of AAT1, which affirmed respective Services Australia decisions, rejecting Mr Hoefl’s claims as to his entitlement to the Age Pension. I note that, in each of the proceeding review applications, the Tribunal’s decision was accompanied by lengthy written reasons.[2]
[1] Hoefl and Secretary, Department of Social Services [2022] AATA 2130, Hoefl and Secretary, Department of Social Services [2020] AATA 4647, and Hoefl and Secretary, Department of Social Services [2019] AATA 3758.
[2] I note that AAT2 dealt with Mr Hoefl’s eighth application in February 2023 by dismissing it under section 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) as “otherwise an abuse of the process of the Tribunal”. This decision is reported as Hoefl and Secretary, Department of Social Services [2023] AATA 151.
On 25 June 2024, the Tribunal wrote to the parties, indicating that it proposed to list an interlocutory hearing to consider:
·whether, and if so, on what basis, Mr Hoefl’s current application is materially different from Mr Hoefl’s past applications, which has been finally determined by the Tribunal; and
·whether Mr Hoefl’s current application should be dismissed under section 42B of the AAT Act.
For the purposes of the interlocutory hearing, the Tribunal requested that the parties be ready to make submissions on the foregoing issues.
On 27 June 2024, in anticipation of the interlocutory hearing, Mr Hoefl filed written submissions:
Mr Hoefl’s current application is very different from all earlier ones in that it alleges criminal negligence resulting in him being defrauded.
Mr Hoefl’s [sic] should not be dismissed, because:
Dismissing the current application is not a proper option open to the AAT2 Tribunal because of the allegation that, with the sole purpose of defrauding Mr Hoefl, ARO Suchet and Member Brehenny did not act in accordance with [social security] Principles and basic Accounting Practice.
The Secretary was criminally negligent by not directing the CEO and Staff of Centrelink to act in accordance with the Social Security Principles of 2000 and 2017.
Mr Hoefl is confident that dismissal of his claims under section 42B of the AAT Act will be found in the Federal Court to be an act of gross malfeasance.
Mr Hoefl is confident that the Federal Court will rule that the attribution of the assets and income of a company to its directors is unlawful under Social Security Principle 2000 and 2017.
Mr Hoefl is confident that the Federal Court will affirms that: (a) The owner’s equity in a company cannot ever be increased by the company increasing its borrowings, and (b) that directors are not attributable stakeholders in the companies they control.
Mr Hoefl is confident that the Federal Court will affirm that he has been defrauded, in the current case and on prior ones.
On 21 July 2023, Mr Hoefl filed the following written submissions:
…
Centrelink needs to start paying my pension as from 30 March 2023. The payment amount needs to be determined on the basis that I am not an Attributable Stakeholder in Gemeden or the Chilotin Fixed Trust with a zero Attribution Percentage (in accordance with Part 2 and 3 of the 2017 Attribution Principles and Part 3.18, Section 1208E(1)(a) of the SS Act 1991.
As to the fraudulent attribution schemes Centrelink has been running since at least 2016, I believe the best way forward with the least amount of harm to the individual perpetrators as well as honest staff, to Centrelink’s reputation post-robodebt, to the corrupt AAT members supporting the criminal misconduct, to the Public Purse and of course the only evident victim so far (meaning myself) and not to be forgotten the Attorney General and our Assistant Social Services Minister, all in all the best way forward seems to be: pay compensation to me and possibly a few other complainers that may come out of the woodwork over time. Have a Non-disclosure agreement signed and offer fair, after tax compensation. Plead no contest. And stop the scam!
Sun Tzu suggests to build one’s adversary a golden bridge on which he can withdraw. I believe I am doing this herewith. Let me close with Cato, who advises: Quidquid agis, prudenter agas, et respice finem!
On 10 July 2024, the Tribunal held an interlocutory hearing.
Mr Hoefl relied on his written submissions at the hearing. In response to Tribunal questions seeking to elicit further contentions on the difference between his past and present applications, Mr Hoefl told the Tribunal that the present application “has a new date” and “the facts are different” in that he contends criminal negligence on the part of the Secretary. He also says that past AAT decisions did not consider whether he could benefit in the future from trust distributions. He says, among other things, that he has been subject to a “million-dollar fraud” by the Secretary.
The Secretary contends that:
·Mr Hoefl “simply disagrees” with the findings made by AAT1 and Services Australia.
·Whilst Mr Hoefl’s assets and financial circumstances may have changed across the past and present Tribunal applications, the change is not material. Overall, there are “no material differences of fact” between the past and present applications that disturb the Tribunal’s past findings about attribution percentages (and his entitlement to the Age Pension).
·While the Tribunal must review the application afresh, the Tribunal is entitled to take into account and place weight on findings of fact made in previous Tribunals about the same issues and not permit previously determined issues to be relitigated. In this regard, the Secretary noted that the authorities dealing with these points have been set out in Hoefl and Secretary, Department of Social Services.[3] The Secretary also drew the Tribunal’s attention to Commonwealth of Australia v Snell,[4] in which the Full Court of the Federal Court held that where no new evidence has been advanced which relevantly undermines or alters the effect of the earlier decision, the earlier decision will have significant if not overwhelming weight.[5] That is the case here.
·Despite Mr Hoefl’s contention that no Tribunal has ever considered whether he could benefit in the future from trust distributions, that is not correct because Deputy President Molloy did so in Hoefl and Secretary, Department of Social Services.[6]
·Mr Hoefl has not been able to point to any changes in the structure of the company or the trust which have not previously been considered by previous Tribunals.
·Mr Hoefl seems to be under the misunderstanding that there would need to be an actual future distribution or even the potential for a future distribution or a finding of him being an attributable stakeholder. This is simply not the case.
·Overall, Mr Hoefl’s present application has no prospect of success. His application should therefore be dismissed under subsection 42B(1)(b).[7]
[3] [2023] AATA 151.
[4] [2019] FCAFC 57.
[5] [2019] FCAFC 57 at [76].
[6] [2020] AATA 4647.
[7] The Respondent’s solicitor indicated that the Respondent’s instructions are not to make an application under subsection 42B(2).
WHAT DOES THE LAW SAY?
Section 42B of the AAT Act provides that:
(1) 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 prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
(2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction 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.
(3) The direction has effect despite any other provision of this Act or any other Act.
WHAT QUESTION NEEDS TO BE ANSWERED?
The ultimate question is whether Mr Hoefl’s application should be dismissed under section 42B.
WHAT IS THE ANSWER TO THE QUESTION?
In my view (and I find that), Mr Hoefl’s application should be dismissed under section 42B(1)(c) as otherwise an abuse of the process of the Tribunal.
WHY IS THIS THE ANSWER TO THE QUESTION?
Before addressing why Mr Hoefl’s application is an abuse of the Tribunal’s process, I need to say something about Mr Hoefl’s conduct.
Mr Hoefl’s central submission is that he is the victim of criminal negligence resulting in him being defrauded out of what he sees as his entitlement to the Age Pension. He asserts, among other things, that “corrupt” public servants and statutory office holders have supported “criminal misconduct” on the part of the Secretary. He alleges a vast conspiracy directed against him. Frankly, these kinds of submissions are lamentable.
Mr Hoefl’s submissions do not seriously address the issue before the Tribunal, which is whether he is eligible for the Age Pension. Mr Hoefl would have been better served coming to the Tribunal armed with appropriate evidence and legal submissions to support his contention that he is eligible for the Age Pension. To this end, Mr Hoefl would have been assisted by reflecting on, and seeking to understand, why eight past Tribunals have found him ineligible for the Age Pension, preferably by reviewing their extensive written reasons, perhaps with the assistance of a solicitor. He does not appear to have done this. Instead, he had leaned on his own erroneous misunderstanding of the law. He has deliberately chosen to scandalise the process because he is unable, or otherwise refuses, to accept that he is simply not eligible for the Age Pension based on his current financial circumstances.
Insofar as considering whether, and if so, on what basis, Mr Hoefl’s current application is materially different from his past applications, Mr Hoefl’s contention is that his present application is “very different” from his past applications. I do not accept this submission. As the Respondent submits, correctly in my view, there are “no material differences of fact” between the past and present applications that disturb the Tribunal’s past findings about attribution percentages (and Mr Hoefl’s entitlement to the Age Pension). When his further views were further sought as to differences between past and present applications, the best that Mr Hoefl could come up with was that the present application has “a new date” and he now contends “criminal negligence” on the part of the Secretary. This is not a serious submission. Mr Hoefl did not otherwise advance anything materially responsive to the issues before the Tribunal. In this regard, I accept the Respondent’s contention that I can and should rely on past Tribunals’ findings that he is ineligible for the Age Pension based on his financial circumstances. I further accept the Respondent’s submission that the present application has no prospect of success.
It has been recognised in a number of cases, including in Novosel v Comcare [2017] FCA 722, that paragraphs (a) to (c) of subsection 42B(1) of the AAT Act are expressed in the alternative. Accordingly, the Tribunal may dismiss an application for review of a decision at any stage of the proceeding, if it appears that at least one of the elements in subsection 42B(1) is present.
In Novosel, Perry J at [107] noted that in empowering the Tribunal to summarily dismiss proceedings under subsection 42B(1)(c) of the AAT Act for reason that they amount to an abuse of process, “it is apparent that the Parliament intended to empower the Tribunal to protect its own processes against analogous forms of abuse”. This was recognised by the Tribunal in Re Quinn v Australian Postal Corporation[8] in relation to a previous provision of the AAT Act which conferred on it power to dismiss an application for abuse of process:
Section 33 of the Administrative Appeals Tribunal Act provides for the Tribunal the flexibility needed to control its process. It is with regard to the dictates of fairness and expedition, after proper consideration of all the facts, that the Tribunal conducts itself. It would seem inappropriate and unreasonable to us for there to be relitigation without reason of the same issues before the Tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and relitigated tomorrow on the very same facts. The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination.
[8] (1992) 15 AAR 519 at 526.
Senior Member Popple in Novosel and Comcare[9], determined that Mr Novosel’s re-litigation of issues that had previously been dealt with by the Tribunal amounted to an abuse of process for the purposes of subsection 42B(1) of the AAT Act at [10] and further had no reasonable prospect of success at [10] - [12].
[9] [2015] AATA 476; (2015) 66 AAR 549.
Mr Novosel appealed to the Federal Court. Perry J in Novosel held at [104] - [110] that additional applications in respect of matters already determined may amount to an abuse of process. Her Honour highlighted that safeguards against abuse of process are not simply focused on prejudice to a respondent, “but also with matters of broader public policy” at [112]. As Her Honour explained:
... Thus, principles of res judicata, issue estoppel and the like in judicial proceedings, are underpinned by broader issues of public policy, namely, that it would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court not only because “a person ought not to be vexed twice for one and the same cause”, but also because it is in the interests of the State that there be an end to litigation: see e.g. Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; (2004) 146 FCR 10 (Wong) at [36]- [37]. The same policy considerations may equally inform the Tribunal’s approach to issues of abuse of process as they would plainly promote the objective which the Tribunal is to pursue by virtue of s 2A of the AAT Act, namely, to provide a mechanism of review that is fair, just, economical, informal and quick. In any event, I accept the respondent’s submission that the prejudice to Comcare is clear in circumstances where the applicant ... has brought yet another application to the Tribunal in relation to the same claim. As Comcare submits, such conduct increases the time, expense and allocation of resources that Comcare needs to devote to repeatedly answering the same claim over many years. ... It may be an abuse of process not only to re-litigate the same issue twice, but also to seek to litigate an issue that properly belonged to the earlier litigation: Wong at [37] (by analogy).
More recently, Senior Member Kirk in Kennedy and Comcare[10], a case involving multiple applications on the same previously determined issues, was minded to find at [64]:
...the current applications are an attempt to relitigate matters already finally determined by the Tribunal and therefore amount to an abuse of process capable of supporting an order for dismissal of the applications under s 42B(1)(c) of the AAT Act.
[10] [2018] AATA 4171.
In the past AAT2 determinations, the AAT2 considered and determined the substantive merits of the applications for review before it, and found that Mr Hoefl was not entitled to the Age Pension.
Mr Hoefl had the option of applying to the Federal Court for review of the past AAT2 determinations. He chose not to pursue this course of action. As a consequence, he acceded to the findings and determination of the AAT2 in the past AAT2 determinations.
For the reasons identified by Perry J in Novosel, this Tribunal should not allow re-litigation of issues already decided. In the present case, I find that the present application is an attempt to relitigate matters already finally determined by the AAT2, and therefore amounts to an abuse of process capable of supporting an order for dismissal of the present application under subsection 42B(1)(c) of the Act.
In making this finding, I have had regard, as Senior Member Kirk did in Kennedy at [65]-[66] to:
...the prejudice to the Respondent caused by the Applicant in the making of further applications for review in relation to the same claim, and the time, expense and allocation of resources that it needs to devote to repeatedly answering the same claim.
...[the] broader issues of public policy in making this finding, namely that it is in the interests of the State that there be an end to litigation. The finding that the attempt to relitigate matters which have finally been determined by the [AAT2] amounts to an abuse of process is also consistent with the objective of the Tribunal stated in section 2A of the Act, namely to provide a mechanism of review that is accessible, fair, just, economical, informal and quick, and promotes public trust and confidence in the decision-making of the Tribunal.
DECISION

For these reasons, I find that in all the circumstances it is appropriate to dismiss the present application under subsection 42B(1)(c) of Act.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.
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Associate
Dated: 19 August 2024
Date of Hearing:   10 July 2024
Applicant:   Self-represented
Solicitor for Respondent:                   Mr Ashley Burgess, Australian Government Solicitor