Hoefl and Secretary, Department of Social Services (Social services second review)
[2023] AATA 151
•1 February 2023
Hoefl and Secretary, Department of Social Services (Social services second review) [2023] AATA 151 (1 February 2023)
Division:GENERAL DIVISION
File Number: 2022/5884
Re:Johann Hoefl
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
Decision
Tribunal:Member Lee Benjamin
Date:1 February 2023
Date of written reasons: 15 February 2023
Place:Brisbane
The Tribunal, pursuant to subsection 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), dismisses the application under review dated 10 July 2022.
.....................[SGD]........................
Member Lee Benjamin
CATCHWORDS
SOCIAL SECURITY - age pension - relevant legislation and cases considered - abuse of process - reasonable prospect of success - application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s42B
CASES
Hoefl and Secretary, Department of Social Services [2022] AATA 2130
Hoefl and Secretary, Department of Social Services [2019] AATA 3758
Hoefl and Secretary, Department of Social Services [2020] AATA 4647
Kennedy and Comcare [2018] AATA 4171
Novosel v Comcare [2017] FCA 722
Oliver and Comcare [2018] AATA 1964
Re Quinn v Australian Postal Corporation (1992) 15 AAR 519
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Rogers v R [1994] HCA 42; (1994) 123 ALR 417
Spencer v Commonwealth [2010] HCA 28
REASONS FOR DECISION
Member Lee Benjamin
15 February 2023
introduction & background
On 10 July 2022, Johann Hoefl (the Applicant) made an application to the General Division of the Administrative Appeals Tribunal (AAT2) seeking review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 15 June 2022 (Present Application). The AAT1 decision affirmed a decision of Services Australia (Agency) made on 3 March 2022, rejecting the Applicant’s claim as to his entitlement to the Age Pension.
On 17 August 2022, the Secretary, Department of Social Services (the Respondent) filed Tribunal documents (Section 37 Documents) totalling 567 pages with the AAT2, in respect of the Present Application.
On 2 and 15 September 2022, the Applicant filed evidence and submissions with the AAT2 in respect of the Present Application.
In reviewing the Section 37 Documents and the Applicant’s submissions, I identified that the AAT2 has, on three earlier occasions, made a determination on whether the Applicant is entitled to receive the Age Pension. The past AAT2 determinations being 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 (Past AAT2 Determinations).
The Past AAT2 Determinations affirmed respective decisions of the AAT1, which affirmed respective Agency decisions, rejecting the Applicant’s claims as to his entitlement to the Age Pension., The Present Application is the Applicant’s eighth review application made to the Tribunal in recent years. In each of the proceeding seven review applications, the Tribunal’s decision has been accompanied by lengthy written reasons.
In light of the foregoing, on 20 December 2022, I convened a directions hearing by telephone for the purpose of considering whether, and if so, on what basis, the Present Application is materially different from the Applicant’s past applications to the AAT2 (20 December 2022 Directions Hearing).
At the 20 December 2022 Directions Hearing, the Applicant told me that:
(a)the Past AAT2 Determinations were “concocted by people who are corrupt”, “cannot stand because they are based on lies” and are a “travesty of justice”;
(b)he did not appeal the Past AAT2 Determinations to the Federal Court of Australia because he did not have the “fuckin’ money” to appeal; and
(c)he was told by an unnamed person that he could make review applications to the Tribunal “as often as he wanted to”.
At the 20 December 2022 Directions Hearing, I also put the Applicant on notice that I was considering dismissing the Present Application under section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (Act). I read the provision to the Applicant, and explained its scope and operation.
On 21 December 2022, I issued directions under which:
(a)on or before 24 January 2023, the Applicant was to provide to the AAT2 and the Respondent written submissions of no more than two pages in length explaining whether, and if so, on what basis, the Present Application is materially different from his past applications to the AAT2; and
(b)on or before 24 January 2023, the Respondent was invited to provide to the AAT2 and the Applicant written submissions of no more than two pages in length explaining whether, and if so, on what basis, the Present Application is materially different from the Applicant’s past applications to the AAT2.
On 22 December 2022, the Applicant filed a submission in which he contended, inter alia, that the Present Application is not materially different from his past applications to the AAT2.
On 3, 8 and 17 January 2023, the Applicant filed additional evidence and submissions with the AAT2 in respect of the Present Application.
On 23 January 2023, the Respondent filed a submission in which he contended, inter alia, that the Present Application is not materially different from the Applicant’s past applications to the AAT2. The Respondent also contended:
Given that this current application is not materially different from the other above noted AAT2 decisions, the Secretary contends that the AAT2 in this application ought to exercise its power within section 33(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) as master of its own proceedings and not allow finally determined matters to be re-litigated (as per Wilcox J in Comcare Australia v Grimes and Another [1994] FCA 1054 at [26]).
On 30 January 2023, the Applicant filed additional evidence and submissions with the AAT2 in respect of the Present Application.
Having had regard to the parties’ submissions and materials as set out above, and having surveyed applicable authorities on section 42B of the Act, I decided to dismiss the Present Application under subsection 42B(1) as ‘otherwise an abuse of the process of the Tribunal.’
On 1 February 2023, I convened an interlocutory hearing by telephone with the parties to pronounce my decision to dismiss the Present Application. I now provide the reasons for my decision.
I note that in the hearings for the matter, and in correspondence with the Tribunal Registry, the Applicant was, generally, belligerent and boorish.
section 42B Power of Tribunal if a proceeding is frivolous, vexatious etc.
Section 42B of the 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.
CONSIDERATION
The Tribunals Amalgamation Act 2015 (Cth) introduced section 42B into the Act. The Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 explained:
550. New section 42B would ... provide for additional circumstances in which the Tribunal may dismiss an application for review...
552. This amendment would modernise the language of existing paragraph 42B(1)(a) and clarify the policy surrounding the grounds for dismissal. The proposed new grounds are similar to dismissal powers available to other bodies. For example Rule 26.01 of the Federal Court Rules 2011 allow for summary judgment on matters which have no reasonable prospect of success, or are an abuse of process. Similarly, section 47 of the Queensland Civil and Administrative Tribunal Act 2009 provides for dismissal of applications where the application is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. These powers would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.
In Oliver and Comcare [2018] AATA 1964 (Oliver), Deputy President Humphries postulated at [67], that the Explanatory Memorandum made clear that the scope of section 42B of the Act is to empower the Tribunal with greater authority to dismiss unmeritorious matters than it had prior to this enactment.
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 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.
Dismissal of application for abuse of process – subsection 42B(1)(c)
In Oliver, Deputy President Humphries highlighted at [68] that in Spencer v Commonwealth [2010] HCA 28, French CJ and Gummow J noted that the power to summarily dismiss a proceeding, such as that contained in section 42B of the Act, should be exercised cautiously:
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process.
As Gaudron J explained in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 75 [55]:
Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case.
While the categories of abuse of process are not defined or closed, as McHugh J recognised in Rogers v R [1994] HCA 42; (1994) 123 ALR 417 at 443 they usually fall into one of three categories:
... abuses of procedure usually fall into one of three categories:
(1) the court’s procedures are invoked for an illegitimate purpose;
(2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or
(3) the use of the court’s procedures would bring the administration of justice into disrepute.
Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court’s process. In Walton v. Gardiner [(1992) 177 CLR 318 at 393], Mason CJ, Deane and Dawson JJ said that the jurisdiction to stay proceedings that are an abuse of process ‘extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.
In Novosel, Perry J at [107] noted that in empowering the Tribunal to summarily dismiss proceedings under subsection 42B(1)(c) of the AAT 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 (1992) 15 AAR 519 at 526 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.
Senior Member Popple in Novosel and Comcare [2015] AATA 476; (2015) 66 AAR 549, determined that Mr Novosel’s relitigation 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].
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 [2018] AATA 4171 (Kennedy), 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.
Should the Present Application be dismissed under s42B(1)(c)?
In the Past AAT2 Determinations, the AAT2 considered and determined the substantive merits of the applications for review before it, and found that the Applicant was not entitled to the Age Pension.
The Applicant 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 he was not in a financial position to do so. As a consequence, he acceded to the findings and determination of the AAT2 in the Past AAT2 Determinations.
The Applicant made submissions to the AAT2 with respect to what he claimed to be omissions in the earlier proceedings. These concerns are ones which would have formed the basis for an application for review by the Federal Court of the Past AAT2 Determinations had such an action been brought by the Applicant. These are not matters that are capable of review by the AAT2.
For the reasons identified by Perry J in Novosel, the AAT2 should not allow relitigation of issues already decided.
It is common ground between the parties that the Present Application is not materially different from the Applicant’s past applications to the AAT2. I accept the parties’ submissions on this point. Accordingly, 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.
In light of my findings, it is open to the Respondent to make an application to the AAT2 under subsection 42B(2) of the Act, for a direction prohibiting the Applicant from making further applications to the Tribunal. Should the Respondent make such an application, the Tribunal will invite the parties to make submissions on the application before making a decision on the same.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin
............................[SGD]....................................
Associate
Dated: 15 February 2023
Date of hearing: 1 February 2023 Applicant: Self-Represented Solicitor for the Respondent: Mr A Summers, Services Australia
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