Ragless and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 1744

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1744

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1567

GENERAL ADMINISTRATIVE DIVISION		)
Re		GLADYS KATHLEEN RAGLESS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date10 September 2007

PlaceAdelaide

Decision Pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 the Tribunal dismisses the application for review filed by the applicant on 30 April 2007

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

PRACTICE & PROCEDURE – application to strike out application as being frivolous and vexatious – prior decision by Tribunal in same matter – later and different decision by differently constituted Tribunal in another matter – can Tribunal revisit earlier decision? – no alteration in material facts – no alteration in law or in interpretation of the law since prior decision – more recent decision based on application of discretion and different material facts – caution to be exercised in revisiting prior decision – application for review dismissed under s 42B(1) of the AAT Act

Administrative Appeals Tribunal Act 1975 s 42B(1)

Re Ragless and Secretary, Department of Family and Community Services [2005] AATA 1299
Re Secretary, Department of Family and Community Services and Linton [2006] AATA 98
Re Cooper and Repatriation Commission (1995) 38 ALD 164
Re Michael and Secretary, Department of Employment, Science and Training [2006] 90 ALD 457
Attorney-General v Wentworth (1988) 14 NSWLR 481
Re Kirk and Repatriation Commission (2007) 95 ALD 506
Comcare Australia v Grimes (1994) 33 ALD 548

REASONS FOR DECISION

10 September 2007   Senior Member L Hastwell    

1. Before the Tribunal is an interlocutory application by the respondent (the Department) in this matter. The Department seeks an order that, without proceeding to a hearing of the matter, the Tribunal dismiss the application for review lodged on behalf of Mrs Gladys Ragless by her son, Lester Ragless, on the grounds that it is frivolous and vexatious. The power to dismiss an application on that basis is contained in s 42B(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

2. Section 42B(1) of the AAT Act provides as follows:

“42B  Power of Tribunal where a proceeding is frivolous or vexatious

(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.

…”

3.      The application for review that the Department asks the Tribunal to dismiss was filed on 30 April 2007.  It seeks review of a decision of the Social Security Appeals Tribunal (the SSAT) of 20 March 2007.

4.      The applicant is represented by her son in this matter as she lacks legal capacity.

5.      The Department contends that the application for review to this Tribunal should not be allowed to proceed as this Tribunal has previously dealt with the matter and it has already been heard and determined.  In the matter of Re Ragless and Secretary, Department of Family and Community Services [2005] AATA 1299 the Tribunal heard and determined an application for review by the same applicant on the same facts and determined the matter adversely to the applicant. The Department submits that the law or interpretation of the law has not changed since the prior determination by this Tribunal and that the applicant is endeavouring to re-litigate a matter.

6.      As a result of the previous decision of the Tribunal, the applicant was found to have no entitlement to an Age Pension because of the effect of the attribution rules on her assets.  In November 2006 the applicant (through her son) applied once more for an Age Pension and the pension was refused for the same reason as it had been refused in 2004.  The assets of a testamentary trust were attributed to her and she was found to have no entitlement to an Age Pension.  That decision was upheld by the SSAT.

7.      Since this matter was last before this Tribunal, there has been a decision by another Senior Member of this Tribunal in the matter of Re Secretary, Department of Family and Community Services and Linton [2006] AATA 98. The applicant submits that Re Linton involved a similar set of circumstances to those in this case and there was a different outcome to that in the prior decision of Re Ragless.  The applicant in Re Linton was successful.  The applicant’s son  argues, on his mother’s behalf, that she is entitled to seek review of the further decision to reject her fresh application for Age Pension made in 2006, as affirmed by the SSAT.

8.      The Department refers to a number of authorities for its contention that the current application for review should be dismissed.  The Department points to the fact that Re Linton was decided at the same level as the prior decision of Re Ragless and by another Senior Member of this Tribunal and that decision does not bind this Tribunal.  The Department also submits that the facts of Re Linton are quite different to the facts in the prior case of Re Ragless and that as there has been no alteration in the legislation or the interpretation of the law by either the Tribunal or a higher court since the last occasion that the Ragless matter was before it, then this Tribunal should not be prepared to effectively rehear the matter again. 

9.      The applicant’s son concedes that he is asking the Tribunal to in effect, review its own earlier decision.  He agrees that nothing has changed since the Tribunal made its earlier decision, save that his mother’s health has deteriorated further and although she had no legal capacity at the time of the earlier decision of Re Ragless, she has even less capacity now. 

10.     The Tribunal has considered the case of Re Linton and is satisfied that it involved an exercise of discretion by Senior Member Hunt of the Tribunal that is permissible under the terms of the legislation and which was based on her view of the facts in that particular case.  The facts in Re Linton are quite different to the facts in the prior case of Re Ragless and there is no legal inconsistency between the two decisions.  Re Linton does not create any legal precedent that this Tribunal must follow.  It is a case that was decided on its own particular facts.  It has not re-interpreted the law with respect to the attribution rules in any way.

11. Of the two words used in s 42B of the AAT Act the word “vexatious” is the appropriate word to apply in this case. The Tribunal accepts that the applicant has acted with good faith throughout and continues to genuinely believe that his mother should not have all the assets of the testamentary trust, set up under his late father’s will, attributed to her.

12. The word “vexatious” in the context of the AAT Act has a technical meaning. In Attorney-General v Wentworth (1988) 14 NSWLR 481, Roden J said at page 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.    Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person again whom they are brought.

2.    They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

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.”

13. That statement of the law has been accepted in subsequent cases as being a sound exposition of the meaning of that word in the context of the AAT Act. This particular case falls into the third of the categories set out by Roden J.

14.     In the recent case of Re Kirk and Repatriation Commission (2007) 95 ALD 506, Deputy President Groom, after reviewing the authorities, commented as follows:

“31.     It is in the public interest that proceedings have finality. It should not be open to an applicant to simply re-litigate matters previously decided. The Act provides an appeal process but the current application is not an appeal against the two earlier Tribunal decisions. On those two earlier occasions the same issues present in this application were fully considered and determined as between the applicant and the respondent. Not only did the applicant have the opportunity to argue his case at the two previous hearings, but he also had the opportunity to produce any new evidence or arguments at the dismissal application hearing on the 27 March 2007. …

…

34.It is not good justice to unnecessarily prolong a proceeding which is clearly bound to eventually fail thereby causing a pointless waste of significant time and expense for all concerned.”

15.     In the earlier case of Re Cooper and Repatriation Commission (1995) 38 ALD 164, Deputy President Blow dismissed a matter under s 42(b)(i)(a) of the AAT Act on the basis that there had been no change in the facts that would warrant the matter being re-heard. He referred to comments of Wilcox J in Comcare Australia v Grimes (1994) 33 ALD 548 where he commented “the AAT, which is master of its own procedures, will not allow a finally determined matter to be relitigated”. 

16.     In its decision the SSAT confirmed that there had been no change of circumstances since the prior hearing of the matter by the AAT, and that Departmental policy in relation to testamentary trusts and surviving spouses had not changed.  They also observed that the case of Re Linton was different on the facts from this case.  The SSAT conducted a very thorough review of the authorities as set out at pages 5, 6 and 7 of their decision and noted that no material circumstances have changed since the last decision of this Tribunal.

17.     In all the circumstances, the Tribunal agrees with the Department that the applicant in this case seeks a fresh hearing with respect to a matter that has been previously heard and determined adversely to the applicant by the Tribunal.  The Tribunal’s resources are limited and the Tribunal must have regard to the caution that it must exercise in reconsidering a matter that has already been heard and determined.  No new material facts have emerged that may alter the decision previously made by this Tribunal.  The Tribunal is mindful of the comments of Justice Downes in Re Michael and Secretary, Department of Employment, Science and Training [2006] 90 ALD 457, at paragraph 13:

“It follows that, except in the clearest case, the making of a second decision by a tribunal will only lead to uncertainty of result. This is, at the least, a sound reason for a tribunal to act with extreme caution before reconsidering a matter which has already been decided.”

18. In all the circumstances, the Tribunal orders that the application for review filed by the applicant on 30 April 2007 is dismissed pursuant to s 42B(1) of the AAT Act. The Tribunal accepts that Mr Ragless has acted in good faith in seeking a further review and it has been his misunderstanding as to the significance of the case of Re Linton that has led to his fresh application.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .....................................................................................
  Associate

Date of Hearing  19 June 2007
Date of Decision  10 September 2007
Advocate for the Applicant       Mr L Ragless

Advocate for the Respondent   Mr C Goldsworthy 

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