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

Owen and Secretary, Department of Social Services (Social services second review) [2017] AATA 2412 (7 September 2017)
Division:GENERAL DIVISION
File Number: 2017/1679 & 2016/1681
Re:Todd Owen
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier AG Warner, Member
Date:7 September 2017
Date of oral reasons: 9 November 2017
Place:Perth

The Tribunal dismisses applications 2017/1679 and 2017/1681 pursuant to section 42B(1) of the Administrative Appeals Act 1975 on the basis that they have no reasonable prospect of success.
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Brigadier AG Warner, Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for dismissal of applications for review –whether Tribunal satisfied that applications “has no reasonable prospect of success” – applications for review dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 42B
CASES
Filsell v Comcare [2009] AATA 90
Re Quinn v The Australian Postal Corporation (1992) 15 AAR 519
ORAL REASONS FOR DECISION (EDITED)
Brigadier AG Warner, Member
9 November 2017

These are the edited oral reasons for a decision delivered after a hearing on 7 September 2017 of the matters 2017/1679 and 2017/1681, Mr Todd Owen and the Secretary, Department of Employment.
The Tribunal is considering the Respondent’s application to dismiss Mr Owen’s application for review on the basis that Mr Owen’s substantive claim has no prospect of success.
The hearing was conducted by telephone conference because Mr Owen forgot to attend. The Respondent was represented by Ms Suzanna Saggers who participated by telephone from Canberra. Mr Owen was not represented.
The Tribunal was asked to dismiss this particular application pursuant to section 42B of the Administrative Appeals Tribunal Act 1975, (the AAT Act). Section 42B of the AAT Act states:
In relation to the power of the tribunal, if a proceeding is frivolous, vexatious,
et cetera:
(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 purpose of the tribunal.
(2) If the tribunal dismisses an application under sub-section (1), it may, on application by a party to the proceeding, give a written decision 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.
The Tribunal had before it the following evidence:
·The “T Documents” (T1-T20, pp 1-128);
·Applicant’s Written Submissions dated 5 July 2017 (Exhibit 1);
·Respondent’s Outline of Submissions – Dismissal dated 20 June 2017 (Exhibit 2); and
·The oral evidence of the Applicant.
The Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), made two decisions on 17 February 2017, and these are the decisions under review in Mr Owen’s substantive application before the Tribunal.
The first was a decision to affirm a decision of an Authorised Review Officer (ARO) of the Department of Human Services to cancel Mr Owen’s Newstart allowance effective 28 June 2016, and that was matter 2017/1681. The second decision was one to affirm the decision of an ARO of the Department to apply an eight week non-payment period to Mr Owen’s Newstart allowance for the period 21 September 2016 to 15 November 2016, and that was matter 2017/1679.
Those two applications before the Tribunal were joined pursuant to a direction issued by the Tribunal on 11 May 2017.
The Respondent in the present proceedings contends that Mr Owen’s applications have no reasonable prospects of success. In relation to the cancellation decision, the evidence before the Tribunal supports that Mr Owen was not qualified for Newstart allowance at the date of cancellation on 28 June 2016. In relation to the decision to apply an eight week non-payment period, the evidence before the Tribunal supports that Mr Owen was persistently and intentionally non-compliant with the job search requirement under his job plan, amounting to a serious failure. On this basis the respondent contends that the applications cannot succeed and that they should be dismissed.
The relevant legislation is laid out very clearly in the Respondent’s Outline of Submissions – Dismissal (Exhibit 2).
In its considerations the Tribunal has reviewed the decisions of the ARO and the decision of the AAT1 at first review, and considers that those decisions were the result of thorough and appropriate consideration and are consistent with the legislation and the evidence.
Mr Owen has given the reason for his substantive application dated 21 March 2017 as follows:
The Commonwealth of Australia, as a human enterprise, is legally obligated to ensure all peoples’ right to draw their needs from the land, subject to protecting the sustainability of the land, and the review did not adequately address this legal obligation.
With respect to the present proceedings, that is the dismissal application, Mr Owen sought the following orders:
(1)To find the respondent’s request for an order to dismiss pursuant to section 42B of the AAT Act to be an abuse of process and issue appropriate orders; and
(2) In the event of a decision to pursue a determination by the court, I request orders referring the matter to the Federal Court to consider the application of law with regard to the “Right to draw their needs from the land” and its application to the Social Security Act 1991 (the Act), Social Security Administration Act 1999 (Administration Act) and Social Security (Administration) Persistent Non-Compliance (Employment) Determination 2015 (Number 1) Assistant Non-Compliance Determination.
In Exhibit 2, the Respondent comprehensively considers and answers in the affirmative the two relevant questions: “Was the decision to cancel Mr Owen’s newstart allowance correct?” and “Was the decision to apply an eight week non-payment period correct?” Before the Tribunal this morning, Mr Owen said that he had no dispute with the decisions and the Respondent’s written and oral submissions. Mr Owen said that the Respondent was correct in those submissions, and he confirmed that he had no further evidence or submissions for consideration by the Tribunal.
Having regard to all the material before it, the Tribunal is satisfied that there is no evidence to disturb the substantive decisions under review.
However, Mr Owen claimed that the Tribunal would be unable to grant the present dismissal application because of the human rights issue raised by his contention, recorded earlier, that is:
The Commonwealth of Australia, as a human enterprise, is legally obligated to ensure all peoples’ right to draw their needs from the land, subject to protecting the sustainability of the land,
and that those human rights and that contention were outside the Tribunal’s jurisdiction. Mr Owen opined that should the Tribunal grant the present dismissal request, such a decision would provide him with the opportunity to take his human rights contention to a higher court.
The Respondent submits that this is not a relevant consideration in relation to a decision to cancel a Social Security payment and that Mr Owen’s opinion in respect of the law is misconceived. The Tribunal agrees, noting that any relevant law has not been sufficiently identified and there is no apparent relevance to the legislation and decisions under review in the present proceedings. Consequently, the Tribunal takes this matter no further.
The Tribunal turns to the Tribunal’s power to dismiss and the principles governing that power. The Tribunal notes that these principles were set out by Jarvis DP in Filsell v Comcare [2009] AATA 90, and relevantly included that:
The power of the tribunal to dismiss proceedings under section 42B is a power that should be used cautiously. Unless the tribunal is satisfied that the application is frivolous or vexatious in the sense referred to in sub-paragraphs (a) and (b) above, an applicant should not be denied the right to have the tribunal review the decision in issue on its merits by conducting a hearing de novo and considering the evidence that the applicant can properly adduce at that hearing. However, if proceedings have no reasonable prospect at all of success, they should be dismissed under section 42B, since it would be futile for the proceedings to continue and inappropriate to use the time and resources of this tribunal and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
The Tribunal also acknowledges the public interest in finality in Tribunal proceedings, and particularly so in a matter such as that before the Tribunal in the present proceedings.
In Re Quinn v The Australian Postal Corporation [1992] 15 AAR 519, the tribunal said, at paragraph 526:
The tribunal considers that there are strong reasons, both in case law and expressed in public policy, to limit the re-litigation or continual review of substantively similar matters.
Whilst the Tribunal’s power to dismiss an application for review pursuant to s 42B of the AAT Act should be exercised with caution, it is abundantly clear in this case that Mr Owen was not qualified for a Newstart allowance at the date of cancellation on 28 June 2016 and that in relation to the eight week non-payment period he was persistently and intentionally non-compliant with his job search requirement, amounting to serious failure.
The Respondent’s Outline of Submissions - Dismissal dated 20 June 2017, with which Mr Owen agrees, makes clear that at the relevant time Mr Owen was aware of his requirements with respect to Newstart, understood them, understood the potential consequences, and intentionally and persistently failed to comply. Paragraphs 7-10 inclusive, 12-17 inclusive, 19-23 inclusive, 26-32 inclusive and 34, all support such a conclusion.
Section 42B of the AAT Act requires the Tribunal to be satisfied that the application has no reasonable prospect of success.
For the above reasons, the Tribunal is so satisfied and considers that it would be futile for the proceedings to continue, resulting in unnecessary cost and waste of resources, as well as affording the Applicant some false prospect that his claim might proceed.
The Tribunal, being satisfied that Mr Owen’s applications for review have no reasonable prospect of success, grants the Respondent’s request to dismiss the applications pursuant to s 42B of the AAT Act. It follows that the Tribunal dismisses the substantive applications 2017/1681 and 2017/1679.

I certify that the preceding 25 (twenty five) paragraphs of the oral reasons for decision are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

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Administrative Assistant
Dated: 9 November 2017

Date of hearing:

Date of Receipt of Request
For Written Reasons

7 September 2017

18 October 2017

Applicant: By telephone

Representative for the
Respondent: Ms S Saggers
(Department of Human Serrvices)

[2017] AATA 2412

7 September 2017

Key Legal Topics

Areas of Law

Administrative Law

Civil Procedure

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing