Re Theo and Secretary, Department of Family and Community Services
[2005] AATA 699
•25 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 699
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/823, 824
GENERAL ADMINISTRATIVE DIVISION )
Re SOLON THEO Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Mr SC Fisher, Member Date25 July 2005
PlaceBrisbane
Decision The Tribunal:
(1) dismisses Applications No Q2004/823 and Q2004/824 under section 42B of the Administrative Appeals Tribunal Act 1975 on the basis that these applications are frivolous or vexatious; and
(2) directs that Solon Theo by himself, his employees, agents or independent contractors or other persons must not, without leave of this Tribunal, make an application for review by this Tribunal of any decision relating to age pension or disability support pension made by the Secretary, Department of Family and Community Services.
……{Sgd]…….
SC Fisher
Member
CATCHWORDS
PRACTICE AND PROCEDURE –Vexatious, vexatious litigant, frivolous, s42B Administrative Appeal Tribunal Act (1975) collateral purpose, appeal dismissed.
Social Security (Administration) Act 1999 Part 3, Division 6, Part 4, Division 5, Part 5, 23(5), 28
Administrative Appeals Tribunal Act 1975 ss 42B, 43, 44Federal Court of Australia Act 1976 ss 56
Administrative Appeals Tribunal Amendment Act 1993 ss 17
Acts Interpretation Act 1901ss 15AB
High Court Rules 2004 r 6.07, Order 20, Order 21
Federal Magistrates Court Rules 2001 r 2.06, 13.10, 13.11
Uniform Civil Procedure Rules 1999 r 15, 162, 171, 233
Supreme Court of Queensland Act 1991
Supreme Court Act 1970 (NSW) ss 84,Supreme Court Rules 1970 (NSW) Part 13,R 5
High Court Rules 1952 Order 58, r 4(3)
Secretary, Department of Social Security v Murphy (FC 980809, unreported, Federal Court of Australia, QG205 of 1997, 29 June 1998
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598Theo and Secretary, Department of Family and Community Services [2002] AATA 489
Theo and Secretary, Department of Family and Community Services [2004] AATA 1273]
Theo v Secretary, Department of Family & Community Services [2004] FCA 1748
Theo v Secretary, Department of Family & Community Services [2005] FCA 436
Theo v Secretary, Department of Family & Community Services [2005] FCA 880
Attorney-General v Wentworth (1998) 14 NSWLR 481
Romanov-Hughes and Comcare [2004] AATA 514
Miller and Department of Foreign Affairs and Trade [2003] AATA 200
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
Lambe and Australian Postal Corporation [1999] AATA 522
Munnings v Australian Government Solicitor (1994) 68 ALJR 169
Duncan v Fayle [2004] FCA 723
Re Williams and Australian Electoral Commission (1995) 21 AAR 467; 32 ALD 366
Confidential and Australian Prudential Regulation Authority [2003] AATA 153
Cerebros and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 213
Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324
Allan v Development Allowance Authority [1999] FCA 426;
Re Martin's Application [2001] HCA 41,
Duncan v Fayle [2004] FCA 723
McKenna v McKenna [1984] VR 665
Zografakis and Telstra Corporation Ltd (AAT, No 96/456, 4 September 1996)
Williams v Spautz (1992) 174 CLR 509.
Gamester Pty Ltd and Another v Lockhart 112 ALR 623
Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264.
Burton v The Shire of Bairnsdale (1908) 7 CLR 76
Peter Kent Development Pty Ltd v Australian & New Zealand Banking Group Ltd (Hunt J, unreported, 6 May 1980)
Attorney-General v Wentworth (1998) 14 NSWLR 481
Re Cooper (WH) and Repatriation Commission (1995) 38 ALD 164,
Attorney-General (Duchy of) Lancaster v London and North Western Railway Co (1892) 3 Ch 274
Re Irving and Repatriation Commission (1997) 46 AA 20
Cooper v Comcare (2002) 118 FCR 157
Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324REASONS FOR DECISION
25 July 2005 Mr SC Fisher, Member Introduction And Background
1. The current applications for review by Mr Solon Theo (the Applicant) involve two matters. The first application for review is Q2004/823, which is an application by the Applicant in relation to a decision made by the Secretary, Department of Family and Community Services (the Respondent) in the matter of an age pension application by the Applicant. The age pension application was made by the Applicant on 12 July 2004. The second matter, Q2000/824 relates to an application by the Applicant for disability support pension made on 22 July 2004. Both applications went through internal review within Centrelink and later on the primary level of external review was undertaken by the Social Security Appeals Tribunal, which made decisions concerning both applications on 11 October 2004 (which decisions were notified to the Applicant on 21 October 2004). The decisions by decision-makers in relation to the applicant's age pension claim and the disability support pension claim were that these claims should be rejected. On 22 October 2004, the Applicant appealed to this Tribunal.
Jurisdiction
2. In a procedural sense, the Tribunal has jurisdiction in these appeals by virtue of Part 4, Division 5 of the Social Security (Administration) Act 1999. In a substantive sense, the merits of these appeals are governed by the Social Security Act 1991. For reasons that will become apparent later in these Reasons for Decision, section 42B of the Administrative Appeals Tribunal Act 1975 is also decisive in the resolution of these appeals.
The Role of the Tribunal
3. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] 809 FCA Drummond J). The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 602.
4. This Tribunal is not vested with a general discretion to circumvent, override, sidestep or supplant the otherwise very clear terms of legislation that determines income support entitlements such as age pension and disability support pension.
The Material Before the Tribunal
5. The following documentary evidence was before the Tribunal:
Exhibit 1 Notice of Appeal from the Applicant to the Federal Court of Australia from the decision of McCabe SM in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273
Exhibit 2Form 20 under Federal Court Rules O 14 r 2) of the Applicant in Federal Court proceeding no QUD 268/2004
Exhibit 3Letter dated 21 February 2005 from the Queensland Registry, Federal Court of Australia to the applicant relating to Federal Court proceeding no QUD 268/2004.
Exhibit 4Centrelink form "Declaration -- No Longer Involved" completed sometime in 2002, with a copy of an affidavit sworn 25 March 2003 and a document captioned "Relinquishing Control of the Trust" (November 2001) (source unknown)
Exhibit 5Letter dated 15 April 2004 from Dr Matthew Cockburn, Urology PHO, Radcliffe Hospital, Queensland Health, Queensland Government to Dr Ian Franklin, Visiting Radiation Oncologist, QRI Clinic, Radcliffe Hospital (with enclosures)
Exhibit 6Various documents relating to Federal Court proceeding no QUD 268/2004
Exhibit 7Extracts from L Zines, The Common Law in Australia: Its Nature and Constitutional Significance (The Federation Press/Centre for International and Public Law, Faculty of Law, Australian National University, Sydney, 1999) (pagination obscured on account of the photocopying of the relevant excerpts)
Exhibit 8Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T40)
Exhibit 9Affidavits (2) sworn by the Applicant, statutory declarations of the Applicant sworn 14 December 2001 and sworn 27 June 2002, affidavit sworn by Athina Theo sworn 25 March 2003 and Centrelink form "Declaration -- No Longer Involved"
Exhibit 10Deed of Trust for the Solon Theo Family Trust settled 8 September 1978
Exhibit 11Respondent's Statement of Facts and Contentions
Exhibit 12Letter dated 8 August 2003 from the Respondent to the Applicant seeking information concerning the Solon Theo Family Trust
Exhibit 13Letter from the Applicant dated 16 December 2004 to the Tribunal Registry (enclosing a letter dated 11 July 2003 from the Applicant to the Manageress, Centrelink, Kippa-Ring Branch)
6. The Applicant was self-represented.
7. The Respondent lodged documents T1 to T40 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 8. Exhibits 8-11 were lodged on behalf of the Respondent.
8. The Respondent was represented by Mr T Ffrench a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal (which became Exhibit 11 in these proceedings at the insistence of the Applicant).
9. Neither party lodged an outline of submissions with the Tribunal but the Respondent relied upon its Statement of Facts and Contentions which were otherwise helpful and concise. The Tribunal considered carefully all of the documentary and oral evidence before it.
The Section 42B Application by the Respondent
10. The Respondent made application under section 42B of the Administrative Appeals Tribunal Act 1975 for the Tribunal to make a decision dismissing the applications of the Applicant in relation to appeals number Q2004/823 and Q2004/824 on the basis that these applications, both individually and together, are frivolous or vexatious. The Tribunal indicated to the parties that it would deal with this issue as a threshold matter. The parties, by agreement, and on the basis of mutual convenience, indicated that they would proceed with adducing evidence and making submissions upon the substantive merits of the appeals as part of the 24 March 2005 hearing. The Tribunal proposes to deal with the section 42B application in relation to appeals number Q2004/823 and Q2004/824 first. If either or both of these appeals are not dismissed on the basis of the exercise of discretion under section 42B, the Tribunal will proceed to review the merits of the decisions underpinning those appeals to the extent that they are not filtered out under section 42B.
Decision concerning the Section 42B Application of the Respondent
11. The Tribunal divided its examination of the section 42B application of the Respondent into the following tasks:
(a) Current and recent appeals of the Applicant from this Tribunal;
(b) Legislation concerning frivolous or vexatious proceedings;
(c) Respondent's submissions concerning the section 42B application;
(d) Applicant's submissions concerning the section 42B application;
(e) Tribunal's consideration of the section 42 application; and
(f) Tribunal's Reasons for Decision concerning the section 42 application.(a) Current and recent appeals of the Applicant from this Tribunal
12. The Tribunal notes that the Applicant has made the following appeals from this Tribunal to the Federal Court of Australia, namely:
- Theo v Secretary, Department of Family & Community Services [2004] FCA 1748: the Federal Court dismissed a Notice of Motion filed by the Applicant seeking a suspension of the decision of the Administrative Appeals Tribunal pending determination of the appeal of the Applicant.
- Theo v Secretary, Department of Family & Community Services [2005] FCA 436: the Federal Court dismissed an application by the Respondent for security for costs made under section 56 of the Federal Court of Australia Act 1976.
- Theo v Secretary, Department of Family & Community Services [2005] FCA 880: the Federal Court dismissed an appeal by the Applicant from this Tribunal (Theo and Secretary, Department of Family and Community Services [2004] AATA 1273) which affirmed a decision of the Respondent rejecting a claim by the Applicant of a claim for age pension made in October 2003.
13. The Tribunal places no weight upon the Applicant's litigation history in terms of the application by the Respondent under section 42B of the Administrative Appeals Tribunal Act 1975.
(b) Legislation concerning Frivolous or Vexatious Proceedings
14. Section 42B of the Administrative Appeals Tribunal Act 1975 is in the following terms:
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.
(2)A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.
(3) The Tribunal may discharge or vary such a direction.
15. Section 42B was added to the Administrative Appeals Tribunal Act 1975 by section 17 of the Administrative Appeals Tribunal Amendment Act 1993 (Act No 31 of 1993) (with effect from 16 June 1993). The Explanatory Memorandum to the Bill which was enacted ultimately as the Administrative Appeals Tribunal Amendment Act 1993 does not contain any references to material of a policy nature which elucidate the meaning and operation of section 42B. The Tribunal did not find it necessary to have recourse to the signposts provided by section 15AB of the Acts Interpretation Act 1901 in order to confirm or determine the meaning of the phrase "frivolous or vexatious" in section 42B. Each element of the phrase "frivolous or vexatious" will carry its ordinary meanings as laid down by the courts in authoritative decisions informed by the policy, principles and rules of adjectival law (including the law of civil procedure).
(c) Respondent's Submissions concerning the Section 42B Application
16. The Statement of Facts and Contentions of the Respondent (Exhibit 11 in this proceeding) contained the following contentions concerning the section 42B application in relation to each appeal (reproduced verbatim).
CONTENTIONS
§That the applicant be declared vexatious and further applications only made with the leave of the Tribunal
15. The Administrative Appeals Tribunal was created in order to provide a fair and economic means of assessing the correctness of administrative decisions. Recent amendments to the Act reinforce this point.
16. The applicant has now requested that this Tribunal review matters relating to the cancellation or rejection of claims for social security payments on a number of occasions. Each hearing has involved a number of decisions and have, in the main, concerned the same issue: the failure of the applicant to provide full and satisfactory details of his involvement in the Solon Theo Family Trust.
17. It is reasonable to believe that the determination of prior claims has already cost the taxpayer many thousands of dollars – and in fact the applicant himself has stated that this is the case. (On his estimate $100,000 has already been ‘squandered’ in the Department’s attempt to resist his applications [T22 p153]. This figure is somewhat exaggerated but the respondent agrees that significant sums have been expended.)
18. It is also reasonable to believe that the applicant is fully aware of the material he will need to provide in order to successfully claim a social security payment and that he is fully aware that he is now above the age limit that applies to DSP. This second application – in particular – is futile and cannot succeed (see below).
19. In these circumstances the continuation of the claims, and, indeed, the continual lodgements of further applications for review, can be seen as little else than an attempt to harass or badger the respondent with the ultimate aim of producing the result he desires.
20. Section 42B of the AAT Act states the following: [not reproduced]
21. This power was considered by the Tribunal in Re Williams and the Australian Electoral Commission (1995) 38 ALD 366. In that decision the Tribunal stated (at 373):
36. The test to be applied in determining whether proceedings are vexatious can be expressed either subjectively or objectively, depending upon the head of “vexatiousness” one is considering. In Attorney General v. Wentworth (1988) 14 NSWLR 481 Roden J said at 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 against 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.
22. The Tribunal in Williams went on to consider that in that particular case there was a lack of evidence that the applicant was motivated by, among other things, a ‘deliberate intention to pursue these proceedings for an unjustified collateral purpose’.
23. That is not the case here. The respondent contends that in this case, there is a ‘collateral purpose’. That purpose is to pressure the respondent into granting a pension without the supply of the information in question. The applicant’s references to the costs incurred by the Commonwealth lends weight to this contention.
24. The history of these applications leads one to the reasonable conclusion that the continued lodgement of these appeals to the AAT is also designed, at least in part, to ‘annoy’, and, most particularly with respect to the rejection of his claim for DSP, his application is obviously untenable.
25. In the context of this matter, and having regard to the history of the earlier applications and the purpose of the Administrative Appeals Tribunal, the respondent requests that the Tribunal dismiss these applications as being frivolous and vexatious and direct that the applicant does not make similar applications on this point without leave.
26. In the absence of an order of this kind the respondent believes that this applicant will continue to make futile, and costly, applications of this kind.
27. The respondent accepts that such a declaration should not be made lightly (see Williams at 372), but contends that it should be made in these circumstances.
(d) Applicant's Submissions concerning the Section 42B Application
17. The submissions of the Applicant concerning the section 42B application in each proceeding were made orally at the hearing, but they were not clearly articulated. Reviewing the relevant portion of the transcript (Tp 69 and 82 - 87) enables the Tribunal to summarise and to restate the opposition of the Applicant to the section 42B application in each proceeding in these terms. The Applicant disputed that he was being vexatious or frivolous in making these applications to the Tribunal. The Applicant said that the success he had in Theo and Secretary, Department of Family and Community Services [2002] AATA 489 in gaining arrears of payment of his age pension proved that he was not being vexatious in this case, and that he was vindicated. While these portions of the transcript disclose some incomplete and not clearly articulated arguments, the sense of it all makes it abundantly clear that the Applicant opposed the Respondent’s application under section 42B in relation to each appeal.
(e) Tribunal's Consideration of the Section 42B Application
18. The Tribunal divided its consideration of the section 42B application into the following categories:
(i) Comparable legislation to section 42B
(ii) “Vexatious” within section 42B
(iii) “Frivolous” within section 42B
(iv) Review of the jurisprudence on section 42B
(v) Evidence concerning the application of section 42B
(vi) Findings of fact concerning the application of Section 42B
(i) Comparable Legislation to Section 42B
19. The Tribunal noted by way of comparison the following provisions in the subordinate legislation, in relation to various other Australian courts, dealing with vexatious or frivolous proceedings.
20. The High Court Rules 2004 contain the following provisions dealing with frivolous or vexatious matters concerning procedures litigants may take in adjectival law:
6.07 Refusal to issue or file a document
If any writ, application, summons or other document appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may seek the direction of a Justice who may direct the Registrar to issue or file it or to refuse to issue or file it without the leave of a Justice first had and obtained by the party seeking to issue or file it.
27.09.4 Where a proceeding generally, or any claim in a proceeding:
(a) does not disclose a cause of action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the Court
the Court or a Justice may stay the proceeding or a claim made in the proceeding or may give judgment in the proceeding or in relation to a claim made in the proceeding.
27.09.5 Where a pleading:
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c)may prejudice, embarrass or delay the fair trial of the proceedings; or
(d) is otherwise an abuse of the process of the Court;
the Court or a Justice may order the whole or part of the pleading be struck out or amended.
21. The provisions of the Federal Court Rules dealing with vexatious and frivolous proceedings are as follows:
Order 20 Summary disposal and stay of proceedings
2 Frivolity
(1)Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding:
(a) no reasonable cause of action is disclosed;
(b) the proceeding is frivolous or vexatious; or
(c) the proceeding is an abuse of the process of the Court;
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
(2)The Court may receive evidence on the hearing of an application for an order under subrule (1).
Order 21 Vexatious litigants
1 Vexatious litigant
(1)If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:
(a)that any proceeding instituted by the person may not be continued without leave of the Court; and
(b)that the person may not institute a proceeding without leave of the Court.
(2) An order under this rule may be made:
(a) on the Court’s own motion; or
(b)on the application of the Attorney-General or Solicitor-General of the Commonwealth or of a State or Territory; or
(c) on the application of the Registrar.
2 Vexatious proceeding against a person
Where any person (in this rule called the vexatious litigant) habitually and persistently and without any reasonable ground institutes a vexatious proceeding against any person (in this rule called the person aggrieved) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any proceeding against the person aggrieved in the Court and that any proceeding instituted by the vexatious litigant against the person aggrieved in the Court before the making of the order shall not be continued by him without leave of the Court.
3 Application
A person seeking an order under rule 1 or rule 2 shall proceed by application.
4 Rescission or variation of order
The Court may from time to time rescind or vary any order made by it under rule 1 or 2.
5 Leave to continue proceeding
Where the Court has made an order under rule 1 or rule 2 against any person, the Court shall not give him leave to institute or continue any proceeding unless the Court is satisfied that the proceeding is not an abuse of process and that there is prima facie ground for the proceeding.
22. The Federal Magistrates Court Rules 2001 provides:
2.06 Registrar may refuse to accept document
(1) A Registrar may refuse to accept a document for filing if:
(a)the document appears on its face to be an abuse of process or frivolous, scandalous or vexatious; or
(b)the document is filed in connection with a pending proceeding and the registry is not the appropriate registry.
(2)The person seeking to file the document may apply to the Court for review of the Registrar’s decision in accordance with Division 20.2.
13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:
(a)no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Note: For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see section 118 of the Family Law Act.
13.11 Vexatious litigants
(1)If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:
(a)that any proceeding instituted by the person may not be continued without leave of the Court; and
(b)that the person may not institute a proceeding without leave of the Court.
(2) An order under subrule (1) may be made:
(a) on the Court’s own motion; or
(b)on the application of the Attorney-General or Solicitor-General of the Commonwealth or of a State or Territory; or
(c) on the application of the Registrar.
(3)If a person (a vexatious litigant) habitually and persistently and without reasonable grounds institutes vexatious proceedings in the Court against another person (the person aggrieved), the Court may, on application of the person aggrieved, order:
(a)that any proceeding instituted by the vexatious litigant against the person aggrieved may not be continued without the leave of the Court; and
(b)that the vexatious litigant may not institute any proceeding against the person aggrieved without leave of the Court.
(4) A person seeking an order under this rule must file an application.
(5) The Court may rescind or vary any order made under this rule.
(6)The Court must not give a person against whom an order is made under this rule leave to institute or continue any proceeding unless the Court is satisfied that the proceeding is not an abuse of process and that there is prima facie ground for the proceeding.
Note Under section 118 of the Family Law Act, if the Court is satisfied that a family law proceeding is frivolous or vexatious, the Court may, on the application of a party, order that the person who instituted the proceeding must not, without the leave of a court having jurisdiction under that Act, institute a proceeding under that Act of the kind or kinds specified in the order.
23. The Uniform Civil Procedure Rules 1999 (UCPR) made under the Supreme Court of Queensland Act 1991 (Queensland) provides the following basis to deal with an originating process that is an abuse of the process of the court, or which is otherwise frivolous or vexatious, in these terms:
15 Registrar may refer issue of originating process to court
(1) If the registrar considers an originating process appears to be an abuse of the process of the court or frivolous or vexatious, the registrar may refer the originating process to the court before issuing it.
(2) The court may direct the registrar—
(a) to issue the originating process; or
(b) to refuse to issue the originating process without leave of the court.
24. Provisions of the UCPR dealing with vexatious particulars, vexatious pleadings and vexatious interrogatories have not been reproduced (see Rules 162(c), 171(d) and 233(d) of the UCPR).
25. In New South Wales, section 84 of the Supreme Court Act 1970 (NSW) empowers the Attorney General to move the Supreme Court for an order declaring a person a vexatious litigant. Pt 13, R 5 of the Supreme Court Rules 1970 (NSW) is broadly similar to section 42B, and the former provision reads:
Part 13 - Summary disposal
5 Frivolity etc
5(1)Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) no reasonable cause of action is disclosed,
(b) the proceedings are frivolous or vexatious, or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
5(2)The Court may receive evidence on the hearing of an application for an order under subrule (1).
(ii) “Vexatious” within Section 42B
26. In Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 (“Wentworth”) Roden J decided:
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 against whom they are brought.
2.There 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.
27. Propositions 1 and 2 involve subjective considerations while proposition 3 embodies an objective test. Wentworth was followed in this Tribunal in Re Williams and Australian Electoral Commission (1995) 21 AAR 467 at [35], Romanov-Hughes and Comcare [2004] AATA 514 at [32] and Miller and Department of Foreign Affairs and Trade [2003] AATA 20 at [3].
28. In Miller and Department of Foreign Affairs and Trade [2003] AATA 200 at [4], this Tribunal said:
In Gamester Pty Ltd and Another v Lockhart 112 ALR 623 at 624 the High Court quoted without demur the following passage from the decision of Lockhart J at first instance, namely:
‘The Court has of course inherent jurisdiction to control its own process and the orders that I propose to make are pursuant to that and pursuant to O20, r2 of the Court's rules. I am plainly satisfied that there is no reasonable cause of action disclosed in the proceeding presently before the court, that the proceeding is vexatious and that is an abuse of the court's process.’
29. Gamester Pty Ltd and Another v Lockhart treats the absence of a reasonable cause of action as relating to or leading to or colouring or characterising proceedings as vexatious which leads to an overall conclusion that there is an abuse of the process of the court. D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [116], [330] is to similar effect.
(iii) “Frivolous” within Section 42B
30. In Lambe and Australian Postal Corporation [1999] AATA 522, this Tribunal said:
25. As observed in Re Cooper (WH) and Repatriation Commission (1995) 38 ALD 164, in Attorney-General (Duchy of) Lancaster v London and North Western Railway Co (1892) 3 Ch 274 "frivolous" was found to mean "obviously unsustainable". The power to dismiss proceedings as frivolous should be exercised only in the clearest of cases. O'Connor J explained the relevant principle in Burton v The Shire of Bairnsdale (1908) 7 CLR 76 at 92, as follows:
‘Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed.’
31. Likewise, in Munnings v Australian Government Solicitor (1994) 68 ALJR 169 at 171, Dawson J said:
Where, as in this case, the applicant seeks to have the court exercise a summary jurisdiction effectively terminating an action, great caution is to be exercised. It must be quite clear that the plaintiff does lack a cause of action before he is denied access to the court upon that ground. Where any real question of fact or law emerges upon which the rights of the parties depend, then that question must be determined and it is not possible to stay the action as frivolous or vexatious.
(iv) Review of the Jurisprudence on Section 42B
32. In Duncan v Fayle [2004] FCA 723, French J of the Federal Court had this to say concerning the operation of section 42B and of the predominant judicial approach to this provision:
[21] A decision of the Tribunal refusing to dismiss an application as frivolous or vexatious under s 42B(1) clearly does not effectively decide or determine the application. The application remains to be determined. So much appears from the unreported judgment of Olney J in Australian Postal Corporation v Matusko (unrep, Fed Court, Olney J,14 May 1996) which I followed in Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255 at 280. See also at 299 (Carr J).
[22] A decision dismissing an application as frivolous or vexatious under s 42B(1) is a decision which finally disposes of the application. It has necessarily involved a consideration of the merits in the sense that it requires a finding that the application cannot succeed. The Tribunal comprising three judges of this Court, sitting as Presidential Members, in Re Williams and Australian Electoral Commission (1995) 21 AAR 467 considered the application of s 42B and held that it attracted the same general criteria for the dismissal of proceedings as frivolous or vexatious as apply to proceedings in the Court (at 473-474):
‘The power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly... The mere fact that a proceeding is shown to have no foundation in fact is insufficient to justify a finding that it was commenced vexatiously or without reasonable cause...’
The desirability of a sparing approach to the application of the summary jurisdiction under s 42B was highlighted in Cooper v Comcare [2001] FCA 1085 (French J) at [21] and in the Full Court in Cooper v Comcare (2002) 118 FCR 157 at [20].....
34. The endorsement by the Federal Court in Duncan v Fayle of Re Williams and Australian Electoral Commission (1995) 21 AAR 467 (a decision of this Tribunal comprising three Presidential Members) is consistent with other decisions of this Tribunal which also have endorsed Re Williams and Australian Electoral Commission, such as Confidential and Australian Prudential Regulation Authority [2003] AATA 153 at [14] – [19] and Cerebros and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 213 AT [31] -- [34]. As it seems to be the fons et origo (or alternatively, the locus classicus) of section 42B jurisprudence, the critical passages from Re Williams and Australian Electoral Commission are these:
(31) The power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly: per Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1965] ALR 636; (1964) 112 CLR 125. The mere fact that a proceeding is shown to have no foundation in fact is insufficient to justify a finding that it was commenced vexatiously or without reasonable cause: per von Doussa J in Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324…
….
(34) It is questionable whether the AAT, being a statutory tribunal outside the court system, has inherent powers to control its processes similar to those which are possessed by the courts. We do not seek to address that issue in this case. It is unnecessary to do so in our view, for we consider that the situation in any event falls within the provisions of s 42B. It does so not only because of the futility of the proceedings, but also because they are being pursued by the applicant for a collateral purpose – a purpose which is irrelevant to any issue which could legitimately be raised in these proceedings. Moreover that collateral purpose is itself a futile one. Whatever the outcome of this case, were it to proceed to a final hearing, it could have no effect whatsoever upon the one matter which appears to concern the applicant, namely the validity of the structural changes effected by the Greens in August 1992. Nor could it have any effect upon any other matter which is of interest to the applicant. Indeed it could have no effect upon anything. If the applicant were to succeed in these proceedings it would mean that the position of registered officer of the Greens was vacant between November 1991 and December 1992. As no election was called during that period, and the registered officer was thus not called upon to perform his sole function under the Electoral Act, the vacancy of the position would be of no significance at all. Nothing now would turn upon it. The continuance of the proceedings would indeed be futile.
(35) However, it still remains to be discussed as to how this “futility”, when combined with the other features of this case, render the proceedings vexatious or frivolous.
(36) The test to be applied in determining whether proceedings are vexatious can be expressed either subjectively or objectively, depending upon the head of “vexatiousness” one is considering. In Attorney-General v Wentworth (1988) 14 NSWLR 481 Roden J said at 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 against 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.
(37) The issue of the applicant’s subjective motive is significant in this case because of the lack of any evidence that he is motivated by ill will, malice or by any deliberate intention to pursue these proceedings for an unjustified collateral purpose. Certainly Mr Ash regards his motives with suspicion, and describes him as a “saboteur” of the Greens. But for present purposes we are prepared to accept that he genuinely believes that these proceedings can provide an effective means through which he can legitimately challenge the membership changes in the Greens in August 1992. In other words we are prepared to accept his approach to be a genuine but misguided one. This of course is not the end of the matter. As Ormerod LJ said in Re Vernazza [1960] 1 QB 197 at 208, the question is not whether the proceedings have been instituted vexatiously but whether they are in fact vexatious.
(38) The genuineness of the applicant’s belief might well have been a relevant factor in his favour – and possibly a decisive one – had the subject of his mistake been a factual one rather than a matter of law. As von Doussa J commented in Hatchett an applicant who genuinely holds a mistaken belief as to a state of facts which, if correct, would support the claim which is made in the proceedings, is ordinarily entitled to “a day in court”. In that event, it could operate very unfairly to an applicant to prejudge the issues without affording him/her an opportunity to support his/her case with appropriate evidence. But where, as here, the significant factual matters are agreed between the parties, and the only issues in dispute relate to the legal consequences which follow, the genuineness of the applicant’s belief as to the legitimacy of his claim must bow before a finding that, as a matter of law, no legitimate purpose can be achieved by continuing with the proceeding. And this is the finding we have reached in this case.
(39) It is difficult to categorise this case into any of the accepted heads of vexatiousness. Even the “collateral purpose” head does not sit easily with a situation where the applicant genuinely believes in the legitimacy of the collateral object which he is seeking. Perhaps this provides a good reason for not stultifying the situations in which proceedings will be found to be vexatious by requiring that they fall within pre-ordained categories. At the same time, it is important to re-affirm that the power to dismiss under this head must be exercised cautiously and sparingly.
35. In Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324 at 327 (“Hatchett”) Von Doussa J decided that an applicant who might even hold a mistaken belief as to a state of facts would be entitled to “a day in court” because it may be that facts if found to be correct, would support the claim. His Honour found that it would “operate very unfairly to an applicant to prejudge the issues without affording him/her an opportunity to support his/her case with appropriate evidence”. (See Romanov-Hughes and Comcare [2004] AATA 514 at [33]).
36. In Allan v Development Allowance Authority [1999] FCA 426; 56 ALD 418, Merkel J held that if a person’s standing to challenge an administrative decision changes in such a way as to deprive that person of standing because of changed circumstances, then that issue may be determined within the framework of section 42B.
37. Although not dealing strictly with section 42B of the Administrative Appeals Tribunal Act 1975, in Re Martin's Application [2001] HCA 41, Kirby J said the following in connection with O 58 r 4(3) of the High Court Rules 1952 (since repealed) dealing with jurisdiction for the High Court Registrar to refer to a Justice of the High Court of Australia for a direction in relation to any writ, process or commission that appears on its face to be frivolous or vexatious:
[19] It will be so if the process cannot be supported as arguable having regard to the state of law, is futile because it is bound to fail on the facts pleaded or where it is a wrongful or repeated invocation of the Court's process that is sought for extraneous purposes which would "inflict unnecessary injustice upon the opposite party" (citing Cox v Journeaux [No 2] (1935) 52 CLR 713 at 720; see also Gunn v Hudsons Bay Co (1915) 25 DLR 173; Bock v Bock [1955] 1 WLR 843 at 846; [1955] 2 All ER 793 at 796).It can be seen, therefore, that much of the content of a power to summarily dismiss a proceeding or process on the basis that it is frivolous or vexatious contains a common core of principles and elements, namely futility, collateral or extraneous purposes, absence of a reasonable course of action, abuse of process, lack of merit in the proceeding or application in a proceeding.
38. The Tribunal took the following policy, principles and propositions of law into account:
- The jurisprudence on summary or peremptory dismissal of proceedings that applies in the courts is applicable to the Tribunal: Re Williams and Australian Electoral Commission (1995) 21 AAR 467 at 473-474.
- The power contained in section 42B (couched as a discretionary power) to dismiss an application on the basis it is either frivolous or vexatious is a power to be exercised judicially and not automatically if there is an alternative means of review (including judicial review): cf Duncan v Fayle[2004] FCA 723 at [26].
- The discretion contained in section 42B is a judicial discretion meaning that it is not to be exercised at large but having regard to the purpose for which the discretion exists. Relevant considerations must be taken into account and given appropriate weight having regard to the competing considerations and interests of the parties, the evidence adduced and the circumstances of the particular case. Irrelevant considerations must be excised: cf McKenna v McKenna [1984] VR 665 at 674 per McGarvie J.
- The power for peremptory dismissal of proceedings is to be exercised cautiously and sparingly: Re Williams and Australian Electoral Commission (1995) 21 AAR 467 at 473-474; Cooper v Comcare (2002) 118 FCR 157 at [20].
- Given proposition D, it is going too far to say that the peremptory dismissal power should never be exercised under section 42B: Zografakis and Telstra Corporation Ltd (AAT, No 96/456, 4 September 1996) at [5] (particularly where an application cannot succeed or would give a result which is of no practical effect).
- The power to dismiss an application on the basis that it is vexatious or frivolous may be exercised if the application is otherwise devoid of utility: Re Williams and Australian Electoral Commission at [34]; Cerebros and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 213 at [32].
- The practical outcome of a decision that is being reviewed may also be considered in the context of section 42B: Cerebros and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 213 at [34].
- The policy underpinning a provision in the nature of section 42B is to promote the proper dispatch of the business of the Tribunal and to ensure that from a resource perspective, the personnel and time of the Tribunal are devoted to substantive cases: Zografakis and Telstra Corporation Ltd (AAT, No 96/456, 4 September 1996) at [5].
(v) Evidence Concerning the Application of Section 42B
39. In cross-examination, the following exchange occurred between the Respondent’s advocate (Mr Ffrench) and the Applicant:
MR FFRENCH: So far you’ve made five applications to this Tribunal on this kind of issue, haven’t you?---I don’t – most probably you’re right; most probably you’re wrong. I cannot give you a “yes” or “no” answer, but I have made more than one. Here it’s the third one.
This is the third hearing?---The third – the third hearing. The first one you were torn to pieces by Mr Kenny.
Well, anyway, I will move on from that point as well?---Oh, no, you choose to forget it. Here it is.
I don’t think this is relevant to today.
MR FISHER: Yes. Mr Theo, all Mr Ffrench is doing is establishing that you’ve made five or several or whatever it is applications to the Tribunal for review of earlier departmental decisions?---No, this is - - -
Hang on, just - - - ?---Sorry.
No, I’m in charge. The fact is you don’t need to get argumentative with Mr Ffrench on behalf of the respondent about the success or failures that they have had in this Tribunal on previous occasions. So it’s not going to help you to get into any argument or slanging match with Mr Ffrench. He is entitled to test your evidence through cross-examination. If you want to make submissions about who wins and who loses you will have an adequate opportunity to do that later on. So may I suggest, again firmly, just answer the questions. Don’t argue with Mr Ffrench. If he oversteps the boundaries I will step in and make sure that your interests are protected?---All right.
But it’s not going to help you to argue back with him?---Okay. The answer to your question is “no”.
MR FFRENCH: No, you have not had five applications to this Tribunal?---No.
Well, I will be tendering the T documents and those other applications as per your request. I’ll leave it to the Tribunal to make up its mind about the number. I put it to you that it’s fine; you disagree. You’ve recently had a further decision handed down by the Social Security Appeals Tribunal; isn’t that right?---Social Security Appeals Tribunal is not AAT, is it?
MR FISHER: He’s asking you a question about your history of applications and decisions made by government departments, the SSAT, and this Tribunal. It’s relevant to an issue before us, so please answer the question. We’re not rehearsing those decisions; he’s asking you a question about the pattern of applications and things that have happened. That’s directly relevant to an issue in this appeal, and I’d rather you answered the question, Mr Theo, without getting argumentative?---I have been to the Social Security Appeals Tribunal, as I said, for the simple reason that I have to go step by step. I cannot go to the High Court unless I go to the AAT, and I cannot come to the AAT unless I go to the Social Security Appeals Tribunal, and I cannot go to the Social Security Appeals Tribunal unless it’s – the decision of the Centrelink is revised by an authorised officer.
MR FFRENCH: Okay. So your purpose is to keep going to this Tribunal, and to keep going from this Tribunal to the Federal Court - - -?---Correct.
- - - until you get what you want?---Correct.
So this decision that was handed down on 2 March, this decision – I have a copy of it?---2 March, you are talking about one decision - - -
The decision of the Social Security Appeals Tribunal?---Yes.
You intend to appeal that decision which was concerning a decision to reject a claim; you intend to appeal that decision to this Tribunal again?---Whatever the future will be, will be.
Okay, I put it – the respondent has put in its facts and contentions?---Sorry, I missed what you said.
It’s been put in the facts and contentions that you have, that the reason you are doing this, is to pressure Centrelink into doing what you want; is that right?
MR FISHER: Can I suggest, take him to, what is it, exhibits - - -
MR FFRENCH: - - - 9, no it’s not. It’s not 9, Well, 11.
MR FFRENCH: 11.
MR FISHER: Take him to exhibit 11; put the particular paragraph or proposition in a particular paragraph to him, because there’s a lot of material we’re considering, and I think it just would be fairer if you give him a pinpoint citation.
MR FFRENCH: I understand. One thing that I’d also like to state is I’m not trying to be hectoring. Mr Theo has requested that I raise my voice. I’m not trying to shout at you, Mr Theo, I’m trying to ensure that I’m being heard?---Yes.
And I’m referring to paragraph 23?---Yes.
What the respondent is saying there is that the reason you continue to make these applications, with the intention of coming to this Tribunal, and then on to the Federal Court, is to pressure Centrelink into - - -?---Is to what?
Pressure – put pressure - - -?---Pressure.
- - - on Centrelink so that Centrelink agrees that you should be granted the pension without supplying the information that’s been requested of you. Now, in that paragraph, you’ll see that reference has been made to your references about the costs that are being incurred by these applications that you’re making. Is it true that you’re making these applications to put pressure on Centrelink so that Centrelink will do what you want Centrelink to do?---The answer is yes.
Thank you. Professor Fisher, I actually don’t have any further questions for Mr Theo.
40. Thus, in this case, the Applicant conceded in cross-examination that his objective in pursuing his claims through Centrelink, the Social Security Appeals Tribunal and this Tribunal (and from this juncture, the Federal Court) was to pressure (or coerce) Centrelink to grant him his age pension by dint of his successive applications. Re-examination by the Applicant did not repair this damaging concession elicited during cross-examination.
41. The Applicant informed the Tribunal during the hearing of these appeals that he intended to appeal these decisions to the Federal Court. The Tribunal gave this statement no weight at all in terms of the section 42B application of the Respondent as it is a matter that is within the prerogative of the Applicant to appeal decisions of this Tribunal to the Federal Court using the machinery contained in section 44 of the Administrative Appeals Tribunal Act 1975. The Federal Court will deal with any such appeal on its legal merits if such an appeal eventuates. The Applicant was informed as such during the hearing of these appeals by the Tribunal.
(vi) Findings of Fact Concerning the Application of Section 42B
42. Based upon the material before the Tribunal in relation to the section 42B issue, the Tribunal makes the following findings of fact:
- Mr Sol Theo (the Applicant) was born on 3 July 1933 and is 72 years of age (as at the date of this decision) and was 71 years of age (as at the date of hearing).
- The Applicant was the trustee of the Solon Theo Family Trust with a power of appointment. The Applicant's wife has also been a beneficiary of that Trust.
- The Applicant claimed age pension on 12 July 2004. In his application, the Applicant responded "N/A" to a question "Are you or have you (and/or your partner) been involved in a private trust?".
- On 16 July 2004, the Respondent requested the Applicant to complete a Private Trust Module, the Module being forwarded to the Applicant with a covering letter.
- On 21 July 2004, the Respondent received from the Applicant the covering letter and Module with the notation "N/A" written above a diagonal line ruled through each page of the Private Trust Module.
- The Applicant made the notation "N/A" written above a diagonal line ruled through each page of the Private Trust Module.
- On 21 July 2004, the Applicant made a claim for disability support pension.
- On 23 July 2004, the Respondent rejected the claim of the Applicant for disability support pension on the basis that this type of pension claim could not be assessed for a person of age pension age.
- Before the determination of merits-based review to this Tribunal of previous applications for age pension and disability support pension as determined in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273, the Applicant made application for disability support pension and age pension as recorded in Findings C and G.
- The Applicant maintains that his objective in pursuing his claims through Centrelink, the Social Security Appeals Tribunal, this Tribunal and the Federal Court of Australia is to pressure (or coerce) Centrelink to grant him his age pension by dint of his successive applications.
(f) Tribunal's Reasons for Decision concerning the Section 42B Application
43. The Tribunal noted that some of the legislative formulae cited above dealing with the summary disposal of proceedings or applications in proceedings on the basis that they are frivolous or vexatious couple this with reference to an "abuse of process". A proceeding or an application in a proceeding is an abuse of process if it is brought to produce a collateral advantage rather than for prosecuting the proceeding as such: Williams v Spautz (1992) 174 CLR 509. The Tribunal took into consideration that section 42B deals only with the integers or elements of frivolity or vexatiousness and it does not incorporate as a distinct statutory element the notion of an abuse of process. No other provision of the Administrative Appeals Tribunal Act 1975 uses the notion of "abuse of process". Whether frivolity or vexatiousness within section 42B encompasses an abuse of process is a matter that does not need to be determined in these proceedings, although determinations of frivolity or vexatiousness are features of judicial control of litigation under an abuse of process doctrine (see Gamester Pty Ltd and Another v Lockhart 112 ALR 623 at 624). Abuse of process is a judicial doctrine or normative standard or rule which gives superior court of record (such Supreme Courts) an inherent jurisdiction to properly exercise their powers and perform their functions: Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264.
44. In the absence of a statutory provision or direction to that effect, the Tribunal has no inherent power to regulate its own proceedings the way that a superior court of record can, as illustrated by decisions such as Burton v The Shire of Bairnsdale (1908) 7 CLR 76 at 92 and Peter Kent Development Pty Ltd v Australian & New Zealand Banking Group Ltd (Hunt J, unreported, 6 May 1980) (putting to one side section 33 of the Administrative Appeals Tribunal Act 1975, which has a different focus and operation than section 42B). In Re Williams and Australian Electoral Commission (1995) 21 AAR 467 at 473-474; 32 ALD 366 at 373; [33], this Tribunal left that question open. The Tribunal's power to dismiss a proceeding on the basis of it being frivolous or vexatious derives from its constituent statute. Accordingly, this is the source of power that the Tribunal must rely upon if it is to grant or dismiss the application of the Respondent to dismiss these proceedings instituted by the Applicant. The Tribunal must construe and apply section 42B using the appropriate policies, principles and rules of statutory interpretation.
45. As for the merits of the two applications that are the subject of the present proceedings, the arguments that were advanced by the Applicant in his unsuccessful appeal to the Federal Court in Theo v Secretary, Department of Family & Community Services[2005] FCA 880 were run first in these proceedings (that appeal dealt with only an earlier age pension claim of the Applicant). In that case, French J found some of them to be to be entirely without any legal merit (at [50]). This Tribunal is content to adopt the reasoning of French J in relation to those arguments as they were first rehearsed in these proceedings.
46. The Applicant's disability support pension claim was rejected by the Respondent on 23 July 2004 on the basis that the Applicant is of age pension age. At the time of his application for disability support pension (made on 21 July 2004), the Applicant was 71 years of age. Under section 28 of the Social Security (Administration) Act 1991, a person cannot make a claim for a disability support pension unless that person is under the pension age on the day on which the claim was lodged. This provision must be read side-by-side with section 23(5) of the Social Security (Administration) Act 1991, which states that a man reaches pension age when he turns 65. This Tribunal has found as a fact that on the date of his application, the Applicant was of 71 years of age (and 72 years of age as at the date of decision). The combined operation of sections 23(5) and 28 of the Social Security (Administration) Act 1991 preclude the Respondent from paying disability support pension to the Applicant. The Tribunal is prepared to infer that the Applicant’s application for disability support pension was made to outflank his lack of success on his age pension claim (at the same time the Tribunal notes that the Applicant does have some poor health and the documents admitted into evidence as Exhibit 5 did demonstrate that point to some extent). The reasoning of the Social Security Appeals Tribunal in paragraphs 15 to 17 of its decision made 11 October 2004 in disposing of the application for review to that Tribunal of the disability support claim rejection decision made by the Respondent is correct and unimpeachable.
47. For the purposes of the section 42B application of the Respondent, this Tribunal may take into account the practical utility of the decision being reviewed and also its legal merits. There is no practical utility to the decision in relation to disability support pension as it is reviewed by this Tribunal because sections 23(5) and 28 of the Social Security (Administration) Act 1991 preclude the Respondent from paying disability support pension to the Applicant. The Tribunal is of the opinion that the legal merits are completely against the Applicant’s claim for disability support pension. As this Tribunal stands in the shoes of the decision maker below (section 43(1) of the Administrative Appeals Tribunal Act 1975refers), this Tribunal cannot enlarge or arrogate its own jurisdiction by circumventing or sidestepping clear statements of positive law that appear in the guise of section 23(5) and section 28 of the Social Security (Administration) Act 1991. Those provisions are mandatory, not discretionary therefore this Tribunal must follow the law as laid down by Parliament. Consistently with that mandate, this Tribunal concludes that the application for review in relation to the disability support pension application of the Applicant in the proceedings no Q2004/824 is utterly hopeless, is futile, is without foundation in point of fact or in point of law, and should be dismissed as frivolous or vexatious by an appropriate order under section 42B. Put another way, this particular ground of vexatious application corresponds to that adumbrated by Roden J in Attorney-General v Wentworth (1998) 14 NSWLR 481 at 491 because, for the reasons given above, the application by the Applicant for merits-based review of his disability support pension claim is so obviously untenable or manifestly groundless as to be utterly hopeless (refer to proposition no 3). This proceeding is also "obviously unsustainable" within Re Cooper (WH) and Repatriation Commission (1995) 38 ALD 164 at 165, citing Attorney-General (Duchy of) Lancaster v London and North Western Railway Co (1892) 3 Ch 274, or "obviously untenable" within Burton v The Shire of Bairnsdale (1908) 7 CLR 76 at 92.
48. In relation to the age pension claim (Q2004/823), the Tribunal notes that it was made on 12 July 2004. This age pension claim suffers from the same defects in content that were identified by McCabe SM in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273 and which were the subject of an unsuccessful appeal to the Federal Court in the proceedings determined against the Applicant as Theo v Secretary, Department of Family and Community Services [2005] FCA 880. The Tribunal notes that the Federal Court carefully reviewed the factual history and applicable law of the Applicant's previous unsuccessful claim for age pension made in October 2003 (refer in particular to paragraphs [19] -- [37] and [51] -- [53]). The Tribunal took into consideration that the Applicant initiated the previous application for merits-based review from the Social Security Appeals Tribunal to this Tribunal that culminated in the decision of McCabe SM in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273, as well as the subsequent appeal to the Federal Court which culminated in the decision in Theo v Secretary, Department of Family and Community Services [2005] FCA 880. In other words, these appeals were not Secretary-initiated appeals. The first proceeding was in train (and was unresolved) when the Applicant lodged his claim for age pension on 12 July 2004 and his claim for disability support pension on 21 July 2004. In other words, the Applicant did not await the outcome of his previous applications for age pension and disability support pension that were the subject of the decisions in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273 before he made his later age pension and disability support pension claims in July 2004 (the former decision pre-dated his age pension claim on 12 July 2004 and his disability support pension claim on 21 July 2004 and the latter decision post-dated these claims). The Applicant agreed in cross-examination that his purpose in making successive applications for age pension and disability support pension as well as using merits-based review by the Social Security Appeals Tribunal and this Tribunal, as well as appeals on errors of law to the Federal Court of Australia is to "pressure" the Respondent into making decisions that were favourable to him.
49. The defects in the Applicant's age pension claim and supporting documents in this case are the same as those carefully rehearsed by the Federal Court Theo v Secretary, Department of Family and Community Services [2005] FCA 880. Little purpose would be served by elaborating these in any detail in these Reasons for Decision. As noted by the Federal Court in Theo v Secretary, Department of Family and Community Services [2005] FCA 880 at [16] and [18], the Applicant’s written responses to the requests of the Respondent for further information relating to the family trust structure in which the Applicant apparently has a present interest or entitlement (a claim disputed by the Applicant) were "combative" as was also at least one of his oral communications with the Respondent concerning the same matter. In short, the Applicant has not adduced any fresh evidence in this set of proceedings that advances his case for a proper merits-based consideration of his age pension claim that goes beyond the evidence adduced before the Tribunal in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273 and the subsequent Federal Court appeal in Theo v Secretary, Department of Family and Community Services [2005] FCA 880. Proceeding by analogy, this Tribunal can employ the doctrine of res judicata (Re Irving and Repatriation Commission (1997) 46 AA 20 at 25; [16]) in dealing with successive claims by applicants for income support benefits. The Tribunal stresses that reliance upon res judicata in this case is simply by way of analogy in connection with the section 42B application, not by way of direct application.
50. The Tribunal took into consideration that its powers under section 42B should be exercised cautiously and sparingly (Re Williams and Australian Electoral Commission (1995) 21 AAR 467; 32 ALD 366 at 372; at [30]; Cooper v Comcare (2002) 118 FCR 157 at [20]). Ordinarily, any person affected by a governmental decision at the Federal level in Australia is entitled to their "day in court" in this Tribunal (subject to the Tribunal having jurisdiction under an enactment which confers jurisdiction on this Tribunal, this Tribunal not possessing any inherent jurisdiction). It is no light matter for a person in the position of the Applicant to have their rights to test governmental decisions which are adverse to their interests peremptorily struck out under section 42B of the Administrative Appeals Tribunal Act 1975. Against this backdrop, however, it is factually self-evident that the Applicant commenced these present proceedings on 22 October 2004 before McCabe SM of this Tribunal determined the Applicant's previous claim for age pension in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273 (decided 1 December 2004 following the hearing which took place over two days on 9 August 2004 and 22 September 2004). This Tribunal is of the opinion that Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324 is distinguishable from the present case because of the explicit concession of the Applicant in cross-examination that his explicit motivation in instituting the present proceedings in relation to both his age pension claim and disability support pension claim is to pressure (or coerce) the Respondent into granting his claim for income support benefits from the Respondent.
51. To sum up in relation to the age pension claim that is the subject of Tribunal proceeding Q2004/823:
- The Applicant's admitted or explicit subjective motivation, as exposed in cross-examination, in using merits-based review by the Social Security Appeals Tribunal and this Tribunal, as well as appeals on questions of law to the Federal Court of Australia is to "pressure" the Respondent into granting age pension to the Applicant on the basis of the information and documentation the Applicant has provided to the Respondent. In other words, these proceedings are instituted with the intention of annoying or embarrassing the Respondent within the meaning of Attorney-General v Wentworth(1998) 14 NSWLR 481 at 491 (proposition no 1).
- This proceeding is instituted also for the collateral purpose of pressuring or coercing the Respondent into deciding an age pension claim in his favour within the meaning of Attorney-General v Wentworth (1998) 14 NSWLR 481 at 491 (proposition no 2).
- The Applicant refuses to supply additional information and documentation requested by the Respondent using its information-gathering powers under Part 3 Division 6 and Part 5 of the Social Security (Administration) Act 1999 in order to properly process his claim for age pension. These defects in the previous approach of the Applicant have been exposed fully by this Tribunal in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273 and the subsequent Federal Court appeal in Theo v Secretary, Department of Family and Community Services [2005] FCA 880.
- Nothing of an evidentiary nature concerning the age pension claim in this proceeding differs from that considered by this Tribunal in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273 and the subsequent Federal Court appeal in Theo v Secretary, Department of Family and Community Services[2005] FCA 880.
- The cautious and sparing approach, indicative of restraint, to the exercise of power under section 42B of the Administrative Appeals Tribunal Act 1975 does not extend to a case such as the present where the admitted purpose of the Applicant in maintaining the present proceedings is to pressure or coerce the Respondent into granting income support benefits on the basis of incomplete information and documentation.
- Resource constraints concerning this Tribunal (relating to both time and personnel) and its need to appropriately marshal and deploy resources to meet properly mounted applications for merits-based review of governmental decisions justify the decision of this Tribunal to exercise its power under section 42B to dismiss the proceeding Q2004/823 on the basis that it is frivolous or vexatious.
- The preclusion of any merits-based review rights of the Applicant under the Administrative Appeals Tribunal Act 1975 by dismissal under section 42B can be tempered by a direction under section 42B(1)(b), as well as discharged or varied under section 42B(3).
52. Propositions A, B, E, F and G from the above summation apply with equal force to the disability support pension claim (Q2004/824).
Tribunal’s Conclusion
53. Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct and preferable decision is that appeals number Q2004/823 and Q2004/824 should be dismissed under section 42B of the Administrative Appeals Tribunal Act 1975 on the basis that these applications are frivolous or vexatious.
54. This then leads to the form of order that the Tribunal should make in these proceedings. The Respondent requested that a direction be issued under section 42B(1)(b) to the effect that the Applicant be prevented from making further applications to the Tribunal relating to age pension and disability support pension without the leave of the Tribunal. The Applicant opposed the exercise of power adversely to him under the machinery provided by section 42B. The Tribunal took this to mean that the Applicant opposed the making of a direction under section 42B(1)(b) in the terms sought by the Respondent.
55. The Tribunal agrees that a direction under section 42B(1)(b) should be made in the circumstances of this case. The Tribunal is satisfied that it has both jurisdiction and power to make such a direction. The Tribunal notes that under such a direction the Applicant is free to make an application to the Tribunal for it to hear an application for merits-based review by this Tribunal of any decisions relating to age pension claim and disability support pension claim that the Applicant might make in the future. In other words, the merits-based review rights of the Applicant are not completely closed down, but that they are tempered or cushioned by a filter in the nature of the need for the leave of this Tribunal. The Tribunal is satisfied further that this is an efficient and economical way to deal with the age pension claim and disability support pension claim matters and issues the Applicant has with the Respondent. The Tribunal takes note also of section 42B(3), which empowers the Tribunal to discharge or vary any direction given under section 42B(1)(b).
56. As indicated to the parties during the hearing, the Tribunal indicated that it would not proceed to hear the merits of the appeals if the section 42B application in both appeals were successful. As the Respondent has been successful in those applications, it follows that the Tribunal is not required to make findings based upon the evidence before it order to determine the merits of the decisions being reviewed in its role as a substituted decision maker. This course of action is reinforced by the decision of the Federal Court in Duncan v Fayle [2004] FCA 723 at [22] where the Court held that dismissal of a proceeding under section 42B(1) finally disposes of the underlying matter. Administrative justice would not be served in this case for the Tribunal to make findings of fact based on the evidence before it and the decisions in the alternative in relation to both the age pension claim and the disability support pension claim.
57. The Applicant has the capacity in order to bolster his prospects of having the Respondent successfully grant any age pension claim he may make in the future by providing the additional information and documentation that has been repeatedly sought by the Respondent. The Tribunal is satisfied that the Applicant is aware of the procedural steps that he needs to undertake in order to satisfy the Respondent’s legitimate interest for information and documentation surrounding the matters relevant to any decision to grant any claim for age pension the Applicant might care to make in the future. For completeness, the Tribunal adds that this matter was the subject of observations made to and for the benefit of the Applicant during the hearing.
Tribunal’s Decision
58. The Tribunal:
(1) dismisses applications Q2004/823 and Q2004/824 under section 42B of the Administrative Appeals Tribunal Act 1975 on the basis that these applications are frivolous or vexatious; and
(2) directs that Solon Theo by himself, his employees, agents or independent contractors or other persons must not, without leave of this Tribunal, make an application for review by this Tribunal of any decision relating to age pension or disability support pension made by the Secretary, Department of Family and Community Services.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member
Signed: Jeff Mills
.Legal Research Officer
Date/s of Hearing 24 March 2005
Date of Decision 25 July 2005
The Applicant appeared in person
For the Respondent Mr T Ffrench, Departmental Advocate
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