Mulder and Centrelink
[2005] AATA 1022
•14 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1022
ADMINISTRATIVE APPEALS TRIBUNAL ) Q2004/794, 908
) Q2005/17, 32,87
GENERAL ADMINISTRATIVE DIVISION ) Q2005/89,92,103 Re JACK DENIS MULDER Applicant
And
CENTRELINK
Respondent
DECISION
Tribunal Deputy President Don Muller Date14 October 2005
PlaceBrisbane
Decision The Tribunal:
1. Dismisses each of these applications on the grounds that it is frivolous or vexatious, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975.2. Directs that Jack Denis Mulder must not, without leave of the Tribunal, make any subsequent application to the Tribunal in relation to Freedom of Information requests by him to Centrelink.
..............SIGNED................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
PRACTICE AND PROCEDURE – eight remaining applications for review of decisions (or non-decisions) in relation to Freedom of Information applications – frivolous or vexatious – all applications dismissed
Administrative Appeals Tribunal Act 1975: s42B(1)
Freedom of Information Act 1982: ss15, 48, 49, 51A, 55 and 56
Attorney-General (Vic) v Wentworth (1988) 14 NSW LR 481
Re: Williams and Australian Electoral Commission (1995) 38 ALD 366
Re: Reddish and Civil Aviation Safety Authority [1999] AATA 721
REASONS FOR DECISION
Deputy President Don Muller 1.The Applicant, Jack Denis Mulder, currently has eight applications before the Tribunal for review of matters involving applications by him for access to information held by Centrelink, pursuant to the Freedom of Information Act 1982 (the FOI Act). The applications have been allocated the following Tribunal numbers:
Q2004/794
Q2004/908
Q2005/17
Q2005/32
Q2005/87
Q2005/89
Q2005/92
Q2005/103
2.These eight applications remain to be dealt with by the Tribunal after six other similar (if not identical) applications were processed by the Tribunal. Three of the six matters were dismissed because the Tribunal had no jurisdiction to deal with them (Q2004/125, Q2004/126 and Q2004/188). One was heard by Senior Member Beddoe (Q2004/185) in which the decision relating to claimed exemptions was affirmed and an order was made to release a small number of documents that had been created after Mr. Mulder had lodged his appeal to the Tribunal. Two of the six were heard and determined by Member Carstairs (Q2004/546 and Q2004/548).
3.Centrelink has applied to the Tribunal for an Order to:
(i)Dismiss each of these applications on the grounds that it is frivolous or vexatious; and
(ii)Direct that Jack Denis Mulder must not, without leave of the Tribunal, make any subsequent application to the Tribunal in relation to Freedom of Information requests by him to Centrelink.
4.At the hearing of this application, Centrelink was represented by Mr. Swan, and Mr. Mulder represented himself.
5.Mr. Swan submitted that Mr. Mulder has a history of making a large number of applications to the Tribunal which have had the following characteristics:
(i)They have been devoid of merit;
(ii)They have been utterly hopeless in terms of prospects of success;
(iii)They have served no sensible practical purpose;
(iv)Some of them have covered the same ground as other applications already determined by the Tribunal; and
(v)They have been made with the intention of annoying the officers in Centrelink.
6.Mr. Mulder has submitted that his applications have been made in the following circumstances:
(i)He has a legitimate right to see his files;
(ii)On many occasions the officers of Centrelink have been tardy in responding to his applications;
(iii)He is entitled to make as many applications under the FOI Act as he pleases;
(iv)He is entitled to have all of his applications heard individually on a separate day for each application and not heard together; and
(v)There are practical benefits sought by him in relation to these applications.
7.The legislation relevant to this application is contained in:
(i)The Administrative Appeals Tribunal Act 1975 (the AAT Act), which provides:
“s.42B(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application; and
(b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct 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.”
(ii)The Freedom of Information Act 1982 (the FOI Act):
“Requests for access
15. (1) Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.
(2) The request must:
(a) be in writing; and
(b)provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and
(c)specify an address in Australia at which notices under this Act may be sent to the applicant; and
(d)be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone directory; and
(e)be accompanied by the fee payable under the regulations in respect of the request.
…..
(5)On receiving a request, the agency or Minister must:
(a)…., and
(b)as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer the provision of access to a document).
(6) Where, in relation to a request, the agency or Minister determines in writing that the requirements of section 26A, 27 or 27A make it appropriate to extend the period referred to in paragraph (5) (b):
(a)the period is to be taken to be extended by a further period of 30 days; and
(b)the agency or Minister must, as soon as practicable, inform the applicant that the period has been so extended.
Application for amendment or annotation of personal records
48. Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and
(b) that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the person may apply to the agency…. for:
(c) an amendment; or
(d) an annotation;
of the record of that information kept by the agency or Minister.
Requirements of an application for amendment
49.An application for amendment must:
(a)….
(b)as far as practicable, specify:
(i)…
(ii) the information that is claimed to be incomplete, incorrect, out of date or misleading; and
(iii)……
(iv) the applicant’s reasons for so claiming; and
(v) the amendment requested by the applicant;
51A An application for an annotation must:
(a)….
(c) be accompanied by a statement by the applicant that specifies:
(i) the information that is claimed to be incomplete, incorrect, out of date or misleading; and
(ii) ….
(iii) the applicant’s reasons for so claiming; and
(v) such other information as would make the information complete, correct, up to date or not misleading.
Internal review
54. (1) Subject to subsection (1A), where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency, being:
(a)a decision refusing to grant access to a document in accordance with a request; or
…
(ba) …
(c) …
(d) …(e)a decision under section 30A relating to remission of an application fee; or
(f) ….
(g)a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h)a decision refusing to annotate a record of personal information in accordance with an application made under section 48;
the applicant may, by application in writing to the agency accompanied by any application fee in respect of the application, request a review of the decision.
(1A) The application must be made:
(a)in the case of a decision of a kind mentioned in paragraph (1) (a), (c), (d), (e), (g) and (h) – within 30 days, or such further period as the agency allows, after the day on which the decision is notified to the applicant; or
(b)in the case of a decision of a kind mentioned in paragraph (1)(b), (ba) or (f):
(i) within 30 days, or such further period as the agency allows, after the day on which the decision is notified to the applicant; or
(ii) within 15 days after the day on which the access referred to in that paragraph was granted;
whichever period is longer.
Applications to Administrative Appeals Tribunal
55. (1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
(a)a decision refusing to grant access to a document in accordance with a request; or
(aa) …
(ab) ..(b)….
(c)a decision refusing to allow a further period for making an application under subsection 54(1) for a review of a decision; or
(d)…
(e)a decision under section 30A relating to remission of an application fee; or
(f)….
(g)a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h)a decision refusing to annotate a record of personal information in accordance with an application made under section 48.
(2)Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.
(3)Subsection (2) does not prevent an application to the Tribunal in respect of a decision where:
(a)the person concerned has applied under section 54 for a review of the decision;
(b)a period of 30 days has elapsed since the day on which that application was received by or on behalf of the agency concerned; and
(c)he has not been informed of the result of the review;
and such an application to the Tribunal may be treated by the Tribunal as having been made within the time allowed by subsection (4) if it appears to the Tribunal that there was no unreasonable delay in making the application to the Tribunal
Application to Tribunal where decision delayed
56. (1) Subject to this section, where:
(a)a request has been made to an agency … in accordance with section 15; and
(b)the period of 30 days, in relation to the request, mentioned in paragraph 15 (5)(b) has expired since the day on which the request was received by or on behalf of the agency; and
(c)notice of a decision on the request has not been received by the applicant;
the principal officer of the agency shall, for the purpose of enabling an application to be made to the Tribunal under section 55, be deemed to have made, on the last day of that period, a decision refusing to grant access to the document.”
8.The Tribunal received evidence by way of affidavits from:
(i)Noel Henry Williams, the designated FOI and Privacy Officer for Centrelink Area Pacific Central;
(ii)Catrina Marie Law, Legal Assistant employed by the Australian Government Solicitor.
9.Mr. Williams is familiar with the FOI requests made by Mr. Mulder. He has been responsible for assisting Centrelink officers in drafting responses to Mr. Mulder. He has personally corresponded with Mr. Mulder. He is familiar with Mr. Mulder’s history of other types of applications to Centrelink.
10.Ms. Law has been responsible for organising various attempts to serve documents and notices on Mr. Mulder, and attempting to communicate with Mr. Mulder. Ms. Law claims to have had difficulty serving material on Mr. Mulder and she also had difficulty in communicating with him when she eventually discovered his telephone number. She said (among other things):
“On 12 July 2005, the Administrative Appeals Tribunal Registry informed me that Mr Mulder had advised the Registry that his current postal address is PO Box 110, Beachmere, Qld, 4510 and that his current telephone number is (07) 5429.0989.
On 13 July 2005 I forwarded to Mr Mulder by Registered Post to that postal address a letter a true copy of which is annexed hereto and marked “CML-3” together with a copy of the earlier letter (annexure “CML-2”) and a further copy of the affidavit referred to in that correspondence on 13 July 2005.
On 13 July 2005 I rang Mr Mulder on (07) 5429.0989 to advise that further material was being forwarded to him to his Post Office box at Beachmere and to ask him for a current email address to send it to.
A male person answered the phone:
I asked “Mr Mulder?”
He said “Yes”
I said “My name is Catrina, I’m from the Australian Government Solicitor and I’m calling for Maurice Swan”
He said “Who gave you my number?” twice and then hung up.
The call ended there.”
11.The AAT records show that in 1999, Mr. Mulder made four applications to the Tribunal, N1999/1385-1388, which sought review of decisions of the then Secretary, Department of Family and Community Services, made in 1997, in relation to the raising and recovery of overpayments made by the Department to Mr. Mulder over the period from 23 February 1991 to 8 January 1993. The matters were heard by Deputy President Blow in Sydney in October 1999.
12.The decision of Deputy President Blow was delivered on 8 June 2000. During the course of the decision, Deputy President Blow set out the history of Mr. Mulder’s dealings with the Department. That history is, I believe, relevant to this application. It sets the scene and reveals Mr. Mulder’s attitude to the Department and Centrelink. The decision of Deputy President Blow is reasonably lengthy. The following quotations are probably sufficient for present purposes.
“4. In February 1991 the applicant had unsuccessfully tried to get the Department of Social Security to pay him an unemployment benefit. He has a twin brother. Some years previously his twin brother had changed his name from Robert Denis Mulder to either Robert Miller or Robert Denis Miller. In 1990 the twin brother had left Australia with his wife and child and gone to live in the Netherlands. The twin brother had had a bank account with Westpac at Nanango in Queensland, a Western Australian driver’s licence, and an Australian pilot’s licence. When he left, he left the applicant in control of his bank account, and gave him his bank keycard, his driver’s licence, and his pilot’s licence. The applicant overcame his difficulties with the Department of Social Security by lodging an unemployment benefit claim in the name of Robert Miller on 25 February 1991. He produced the driver’s licence and the pilot’s licence as evidence of identity. The unemployment benefit was granted. He had it paid into the account at Nanango. Initially unemployment benefit was paid to him at the rate applicable to a single man, which he was.
5. On or about 31 March 1991 a ‘Partner Details’ form was lodged with the department in relation to the applicant’s sister-in-law Hermina Anna Miller, the wife of his twin brother Robert Miller. Apparently as a consequence of the lodgement of that form, the payments of unemployment benefit that were being made into the account at Nanango were increased to the rate applicable to a couple with one child.
6. On or about 5 April 1991 a ‘Claim for Family Payments-1991’ form bearing that date was lodged with the department in relation to Hermina Anna Miller. It was not signed by her, but was signed ‘R D Miller’ in the space provided on the form for the claimant’s partner’s signature. Apparently as a result of the lodgement of that form, the department commenced to make payments of family allowance into the bank account at Nanango.
7. On or about 23 July 1991 an officer of the Department of Social Security sent the applicant, under the name Robert Denis Miller, a rent assistance questionnaire which he signed and returned. The completed questionnaire dated 26 July 1991, showed that since 28 June 1991 he had been paying $95 per week rent to a Mr B Hoxton, and that he and his partner did not own a home. Apparently on 5 August 1991, a rent book was produced to an officer of the department recording payments of $95 per week for premises at an address in Kerang, Victoria. Each entry in the rent book was signed ‘B Hoxton’ in a space provided for the signature of the landlord. Apparently as a result of the lodgment of this questionnaire and the production of this rent book, the department commenced to make payments of rent assistance into a bank account in the name of Robert Miller with effect from 2 August 1991.
8. The payments of rent assistance apparently continued until 7 January 1993 in respect of various allegedly rented premises. The payments of unemployment benefit, subsequently jobsearch allowance (from 1 July 1991), and subsequently newstart allowance (from 9 March 1992) apparently continued until 8 January 1993. The payments of family allowance continued until 27 June 1991. Later, family payment and additional family payment were paid in the name of Hermina Anna Miller from 8 April 1992 until 7 January 1993. The various payments were paid into a number of different bank accounts, all in the name of Robert Miller, over the period in question.
….
13. During 1996 the applicant was charged with a number of offences contrary to the Social Security Act 1947 (‘the 1947 Act’) and the Social Security Act 1991 (‘the 1991 Act’) in relation to moneys paid in the names of Robert Miller and Hermina Miller during the period relevant to these proceedings. He defended the charges, which were heard in the Local Court at Campbelltown NSW over four days in May and September 1997. He was convicted, but appealed to the District Court of New South Wales. After a hearing de novo his appeals were dismissed and, in lieu of certain sentences that were imposed in the Local Court, he was sentenced to a total of 2 years’ imprisonment, subject to an order permitting his release after 10 months. The District Court judge made a reparation order under the Crimes Act 1914, but the applicant apparently appealed to the Court of Criminal Appeal and had that order quashed.
14. The applicant’s convictions related only to the partner and child component of his unemployment benefit, jobsearch allowance and newstart allowance, the rent assistance, and the family allowance, family payment and additional family payment. Apparently it was decided, for the purpose of the criminal proceedings, not to allege that he had unlawfully obtained the component of unemployment benefit, jobsearch allowance and newstart allowance that related to him alone.
…
21. On page 2 of a document entitled ’Applicant’s Response’ (Exhibit A47) the applicant asserted that an interstate transfer form dated 11 April 1991 and signed ‘R D Miller’ (document T23) appeared not to have been made by him. That document was lodged at the department’s Maryborough office in Queensland. It showed that Robert Denis Miller was living at 221 Lennox Street, Maryborough, had just arrived from Melbourne, and was paying rent of $70 per week to a Mr. Hoxton of 221 Lennox Street. I infer that the applicant must have signed and lodged that form himself. I infer that he is claiming not to have done so because evidence has emerged that he changed his name to Boz Hoxton in 1997 by deed poll, but changed it back to Jack Denis Mulder by a second deed poll in 1998. For some reason he was claiming to have paid rent to Mr. Hoxton, when he was really Mr. Hoxton himself.
….
28. …. Further, the manner in which the applicant presented his evidence and submissions to the Tribunal has led me to think that I should not accept the truth or reliability of anything controversial that he has said without convincing corroborative evidence. He was evasive and aggressive when cross-examined. He seemed keen to disrupt the proceedings as much as he could. He behaved as though he had a naïve belief that I would accept irrational arguments as to his innocence, even after a magistrate and a judge had both found him guilty of obtaining benefits to which he was not entitled, and even after he had been to prison as a result.
29. I am satisfied that all of the payments to which the decisions under review relate were received as a result of the applicant representing himself to be his twin brother and deceiving departmental officers into believing that he was supporting Hermina Miller and her child. I am satisfied that, although these moneys were paid into accounts in the name of the twin brother, each of those accounts was at all relevant times controlled by the applicant, and was simply used by him as a vehicle by which he obtained all the relevant payments.
30. During the hearing the applicant made a number of requests for the production of evidence by the respondent which I did not rule on. For example, he asked for the production of the benefits manual that was in use in 1991. He also asked for the production of unspecified and unidentified documents that are the subject of a separate proceeding before this Tribunal concerning the Freedom of Information Act 1982, but I was told that the department had found all the documents described in his request in that Act that it was ever likely to be able to find. All such requests by the applicant appeared to relate his contention that he had not received any payments that he was not entitled to receive. In my view I have received all the evidence that I needed to receive in order to do justice to the applicant in relation to that contention, and there was no purpose to be served in requesting or requiring the respondent to produce any additional witnesses or documentary evidence.
…
46. In the circumstances I think the appropriate course is to set aside the four decisions under review and to substitute a single decision to recover $29,559.94 in respect of unemployment benefit, jobsearch allowance and newstart allowance, and a further $1,147.40 in respect of family allowance, family payment and additional family payment, less any sums already recovered from the applicant that have not been applied by the Commonwealth in total or partial satisfaction of any other debts.”
13.The AAT records show that Mr. Mulder made an application to the Tribunal on 12 December 1997 for review of a decision by the Social Security Appeals Tribunal made on 19 November 1997, which decision dealt with the following three decisions of the then Department of Social Security (DSS):
(i)A decision by the DSS on 1 February 1988 to cancel payment of unemployment benefits (Mr. Mulder did not apply to the SSAT for review of this decision until 8 November 1997).
(ii)A decision by the DSS to not pay unemployment benefit after a “favourable decision” of a SSAT decision on 31 July 1990; and
(iii)A decision by the SSAT that it had no jurisdiction to review an alleged decision not to pay sickness allowance in respect of a claim made in August 1993.
14.The application made on 12 December 1997 was eventually designated N1999/250 and was heard and determined by Senior Member Allen in Sydney on 15 October 1999, who made the following observations in his reasons for decision:
“4. In the normal course of events if this had been in any other jurisdiction it is unlikely that the Applicant would have been given leave to lodge an appeal after such an effluxion of time and that is for very good reason and this appeal demonstrates such reasons.
….
10. Indeed, I found his evidence to be both argumentative, vague and evasive. So, as I am not satisfied on the balance of probability that the decision under review is incorrect, it is affirmed. That is the first one.
….
12. The second decision of the Social Security Appeals Tribunal related to a non-payment of unemployment benefit after a, what is termed, favourable decision of a Social Security Appeals Tribunal on 31 July 1990. The fact is that the Applicant did have in his favour a decision of the Social Security Appeals Tribunal.
13. That decision was itself appealed by the Respondent, the Department of Social Security to the Administrative Appeals Tribunal and on 23 May 1991, Senior Member Beddoe, in an oral decision set aside a decision of the Social Security Appeals Tribunal. That means of course that unemployment benefit was not payable to the Applicant but in any event there is no authority in this Tribunal to review a decision of itself.
14. In other words, I have no jurisdiction to enter into any form of review of the decision of Senior Member Beddoe made the 23 May 1991. If the Applicant wishes to seek further review of that decision, he must appeal it to the Federal Court. I would only mention that the decision having been made in 1991, he is well out of time in relation to that appeal. However, there is no decision which I am in a position to either affirm or set aside.
15. The third of the matters sought to be reviewed by the applicant, is a decision by the Social Security Appeals Tribunal made 19 November 1997 in which it determined that it had no jurisdiction to review an alleged decision not to pay sickness allowance in respect of a claim made in August 1993. It is unclear in the reasons of the Social Security Appeals Tribunal as to which claims the Applicant was in fact referring to.
…
18. In this matter it is clear on the documents available to me that at no time has an Authorised Review Officer reviewed any decision, be it at Horsham or Penrith to refuse to pay the Applicant sickness allowance. Consequently the Social Security Appeals Tribunal was without jurisdiction to review any such decision, if in fact a decision had been made. As I find that they were correct in that decision, I affirm the decision under review.”
15.The AAT records show that Mr. Mulder made an application to the Canberra Registry of the AAT in 2001 (A2001/424) for review of a decision to cancel his unemployment benefit from 25 February 1991 to 8 January 1993. The matter was heard by Member S. Webb on 22 April 2003. Mr. Webb’s decision contains the following observations:
“28. Considering all of the evidence, the submissions of the parties, the relevant caselaw and legislation, the Tribunal is satisfied that there is insufficient evidence to support the Applicant’s contention that his unemployment benefit was incorrectly cancelled on 27 August 1990 and that he was entitled to payment of unemployment benefit during the period 25 February 1991 to 8 January 1993. However, the Tribunal has no jurisdiction to review decisions that the Tribunal has previously and conclusively dealt with on the merits. If the Applicant wants the decisions of Deputy President Blow, Senior Member Allen and Senior Member Beddoe reviewed he must make application to the Federal Court.
29. The Tribunal is satisfied that the Applicant did not claim unemployment benefit in his own name on or about 25 February 1991 and, if he did, he did not pursue his right of review thereafter. On the available evidence, there is no decision within the Tribunal’s jurisdiction to review.”
16.The AAT records show that on 27 June 2000, Senior Member Allen dealt with an application by Mr. Mulder (N1999/251) for review of a decision in relation to an FOI application. Senior Member Allen’s decision contained the following:
“Now in this matter which has proceeded over three days of the Tribunal there has been reference to vague and uncertain documents. The applicant has been informed and I have no reason to reject what was told to me has been given full access to what documents exist by a Mr Pellizieri who is the FOI co-ordinator at Centrelink at Liverpool and has inspected various documents.
The applicant has also had extensive proceedings before Deputy President Blow in this Tribunal in which a large number of documents again were made available to him. In the proceedings this morning there is an affidavit by Mr Neville Hill as to due inquiry and search and it would appear from that that no further documents can be located in the applicant’s case. Any other documents which may exist there is a standing invitation to the applicant to contact Mr Pellizieri a Liverpool Centrelink officer and he will make those documents and himself available as he has already done so.
I am informed that documents which have been obtained back from the Australian Federal Police following the prosecution of the applicant for Social Security fraud are available for his perusal at the Liverpool office. It seems to me that in all the circumstances of this case (a) such documents as do exist have been made available and no others exist but more importantly in pursuant to section 24 it would unreasonably divert the resources of the respondent to deal further with this matter. The decision under review is therefore affirmed.”
17.The AAT records show that in the matter dealt with by Senior Member Beddoe (Q2004/185) in a decision dated 10 November 2004, the application for review was first made in Canberra in 2002 and became Q2002/211, then transferred to Sydney to become N2003/684, and finally to Brisbane to become Q2004/185. Senior Member Beddoe’s decision contains the following:
“7. The applicant withdrew from the hearing soon after the lunch adjournment because he needed to catch a train home. The hearing continued in his absence during which the Tribunal discussed the section 64 documents with Mr Peek in a closed hearing. The applicant was informed that this would take place. The applicant was also told by the Tribunal and notified by a Deputy Registrar that the hearing would resume on 29 July 2004.
8. On 29 July 2004 the applicant informed an officer of the Tribunal that he was in hospital and would not attend the resumed hearing.
…
10. Also on 29 July 2004 the Tribunal directed, in writing, that the applicant have 21 days or such further time as the Tribunal allows, to make written submissions and the respondent had leave to make further submissions in reply.
11. By letter dated 11 August 2004 the applicant complained to the President about the Tribunal’s actions and enclosed a Centrelink standard form medical certificate dated 5 August 2004 certifying the applicant unfit for work from 25 July 2004 to 25 October 2004. The diagnosis or presenting problem was blacked out.
12. On 30 September 2004 the District Registrar advised the applicant that further time (7 days) had been allowed for him to make a written submission. The Registrar also enclosed a copy of the transcript of the resumed hearing on 29 July 2004.
13. No written submission has been received by the Tribunal from either party at 1 November 2004 being 7 days after expiration of the submitted medical certificate. I have therefore concluded that the applicant does not wish to make any further submissions and have decided to make a decision on the material before me.
14. As I explained to the applicant at the hearing of this matter on 20 July 2004 it is not the function of this Tribunal to review its previous decisions. I said that, on this basis I would not review previous decisions, relevant to the present application, made by Deputy President Blow, Senior Member Allen and Senior Member Ettinger. I have not considered those decisions but I understand each was concerned with documents now in issue before me.”
18.The AAT records show that on 14 January 2004, Mr. Mulder lodged an FOI request with Centrelink. Eventually an application for review of the matter was received by the Tribunal, and assigned the Tribunal number of Q2004/546. Mr. Mulder lodged an identical application on 4 February 2004, and this later became Q2004/548. These matters were heard and determined by Member Carstairs in June and July this year.
19.The remaining eight matters, the subject of this application by Centrelink, fall into the following categories:
(i)Lodged in respect of substantively the same subject matter as the cases mentioned above (Q2004/908, Q2005/17, Q2005/32).
(ii)There has been no internal review (Q2004/794).
(iii)The request is invalid and the prospects of success utterly hopeless (Q2004/908).
(iv)Mr. Mulder has been told on at least two previous occasions that the documents he seeks do not exist (Q2005/89).
(v)Fees have not been paid, nor have they been waived (Q2005/87).
(vi)Mr. Mulder has the documents requested and there is no practical value in proceeding to a hearing (Q2005/92).
(vii)Mr. Mulder has not co-operated with Centrelink’s efforts to respond to his request (Q2005/103).
(viii)They have all been made with the intention to annoy the officers of Centrelink.
20.In Attorney-General (Vic) v Wentworth (1998) 14 NSW LR 481 at 491, Roden J expressed the test for vexatiousness in the following terms:
(i)Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought;
(ii)They are vexatious if they are brought for collateral purposes, and not for the purposes of having the Court adjudicate on the issues to which they give rise;
(iii)They are also… vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
21.That test was applied with approval by Matthews J (PRES), Hill and Beaumont JJ in Re Wiliams and Australian Electoral Commission (1995) 38 ALD 366.
22.An application may be dismissed as frivolous if the Tribunal is unable to make a decision that would be of any practicable benefit: Re Reddish and Civil Aviation Safety Authority [1999] AATA 721 at [33].
23.The history of Mr. Mulder’s applications to the Tribunal clearly show a pattern of behaviour in which he has sought to annoy the officers of Centrelink, and probably the staff and members of the Tribunal. He has abused his rights under the FOI Act and the AAT Act.
24.I am satisfied that this is a situation which calls for the application of section 42B(1) of the AAT Act.
25.I will make the Order applied for by Centrelink, as expressed in paragraph 3 above.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 27 July 2005
Date of Decision 14 October 2005
Applicant Mr. Mulder, himself
Solicitor for the Respondent Australian Government Solicitor
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