Theo and Secretary, Department of Employment and Workplace Relations

[2006] AATA 1000

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1000

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/545

GENERAL ADMINISTRATIVE DIVISION		)
Re		SOL THEO

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date24 November 2006

PlaceBrisbane

WHEREAS the Tribunal is satisfied that the applicant’s application for review of a decision to deny him a disability support pension is frivolous or vexatious within the meaning of s 42B(1) of the Administrative Appeals Tribunal Act1975:

1. Pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 the application is dismissed; and

2. Pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 the Tribunal directs that the applicant must not, without the leave of the Tribunal, make any further application for review to the Tribunal in respect of a decision refusing the applicant a disability support pension.

..............[Sgd]................................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – pension age – social contract – applicant over the pension age for DSP – application is frivolous and vexatious – application dismissed – applicant be prevented from instituting proceedings in respect of DSP without the leave of the Tribunal

Administrative Appeals Tribunal Act 1975 s 2A, 42B

Income Tax Assessment Act 1936

Social Security (Administration) Act 1999 s 28

Social Security Act 1991 s 23

Duncan v Fayle (2004) 138 FCR 510

Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337

Keating v Morris [2005] QSC 243

Theo and Secretary, Department of Employment and Workplace Relations [2006] AATA 961

Theo and Secretary, Department of Family and Community Services [2004] AATA 1273

Theo and Secretary, Department of Family and Community Services [2005] AATA 699

Theo v Secretary, Department of Family & Community Services [2005] FCA 880

Theo v Secretary, Department of Family and Community Services [2006] FCA 279

Williams and Australian Electoral Commission (1995) 38 ALD 366

REASONS FOR DECISION

24 November 2006	Senior Member B J McCabe
introduction

1.      Mr Sol Theo applied for the Disability Support Pension (DSP) on 23 May 2006. He was 72 years of age at the time. The application was declined because the respondent says a male person over the age of 65 is not eligible to receive DSP. Mr Theo’s appeal to the Social Security Appeals Tribunal (the SSAT) was unsuccessful. He has now come to this Tribunal.

2. The respondent says Mr Theo cannot possibly succeed in his application for review because the law clearly does not permit the grant of DSP. The Secretary has therefore asked the Tribunal to dismiss the application pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The Secretary has also asked me to make orders under s 42B forbidding the applicant from making further applications to review decisions made in relation to DSP without leave of the Tribunal.

a preliminary matter

3.      Mr Theo asked that I disqualify myself from hearing the matter on the basis of bias and incompetence. He made the request at the outset of the hearing on 6 November 2006. He drew my attention to the fact the Auscript reporter who would ordinarily record the proceedings was not present. I decided it was appropriate to adjourn the hearing until recording facilities were available. The hearing resumed with recording facilities on 17 November 2006 and I invited Mr Theo to address the issue.

4.      Mr Theo referred in his submissions to my decision to allow an adjournment of a hearing in another matter (Q2006/455) in which he has sought the aged pension. That matter was set down for hearing on 19 October 2006 but the hearing date was vacated after a telephone directions hearing on 13 October 2006. Written reasons for the adjournment were provided on 16 October 2006. At the resumed hearing of dismissal on 17 November 2006, Mr Theo objected to one aspect of the written reasons I gave for the adjournment of the other proceedings: he said I was rude. He also said I uncritically accepted the views of the respondent. He informed me he has appealed my decision to adjourn those proceedings to the Federal Court. He added that my failure to have Auscript present on the first occasion was evidence of incompetence.

5.      Mr Theo accused me of saying during the discussion that I had taken instructions from Centrelink. The tape of the hearing confirms I did not say that. I said (around 21 minutes into the tape) “I acceded to their [ie, Centrelink’s] request because it struck me in light of their submissions and in light of what you said…”.

6.      Mr Theo insisted his complaints about my impartiality and competence were not related to the fact he has previously been unsuccessful in proceedings before me: see Theo and Secretary, Department of Family and Community Services [2004] AATA 1273.

7.      The rules of natural justice require that a decision-maker be impartial – that is, he or she must be reasonably open to persuasion: see, for example, Keating v Morris [2005] QSC 243 at paragraph 35 per Moynihan J.

8.      Mr Theo was unable to point to any evidence suggesting actual bias on my part. But that is not the end of the matter. A decision-maker must avoid the appearance of bias. The leading authority in relation to claims of apprehended bias is the High Court’s decision in Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337. Gleeson CJ, McHugh, Gummow and Hayne JJ explained (at 344-345):

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.

9.      I do not think a fair-minded observer of any aspect of these proceedings would form the view I am biased against the applicant. In those circumstances, I have decided it is appropriate that I deal with the respondent’s request. I will not stand aside as Mr Theo has requested.

the power to dismiss proceedings pursuant to section 42b of the AAT Act

10. The Tribunal is empowered to dismiss proceedings “if it is satisfied that the application is frivolous or vexatious”: s 42B(1). Proceedings might be described as vexatious or frivolous if they are obviously untenable or manifestly groundless: Williams and Australian Electoral Commission (1995) 38 ALD 366 at 372-373. French J explained in Duncan v Fayle (2004) 138 FCR 510 the Tribunal should only consider dismissing the proceedings after having considered the merits of the claim and satisfying itself that the applicant cannot succeed.

11. Mr Black, appearing for the respondent, took me through the legislation. Section 28 of the Social Security (Administration) Act 1999 provides:

A person cannot make a claim for a disability support pension unless the person is under the pension age on the day on which the claim is lodged.

12. He then took me to s 23(5A) of the Social Security Act 1991. That section says a man reaches pension age when he turns 65.

13.     I am told Mr Theo was 72 years of age when he lodged his claim form. It follows he is not eligible to receive DSP. In the absence of a change to the legislation, he will never become eligible.

14.     Mr Theo has had an earlier application for DSP refused for the same reasons. The Tribunal affirmed that decision in Theo and Secretary, Department of Family and Community Services [2005] AATA 699. That aspect of the Tribunal’s decision was affirmed on appeal in Theo v Secretary, Department of Family and Community Services [2006] FCA 279.

15.     Mr Theo says the legislation should not be read in that way. He argues the social security legislation must be read subject to the Income Tax Assessment Act 1936 and other taxation statutes that have the effect of creating a social contract between taxpayers and the Commonwealth. Under the terms of that contract, taxpayers are entitled to claim a pension when they become unemployed or otherwise unable to work, either because of old age or disability.

16.     The applicant provided me with a sheaf of legislation and an extract from a paper by Professor Zines in support of his argument.

17.     Mr Theo made the same argument in Theo and Secretary, Department of Family and Community Services [2004] AATA 1273 (affirmed on appeal in Theo v Secretary, Department of Family & Community Services [2005] FCA 880) and Theo and Secretary, Department of Employment and Workplace Relations [2006] AATA 961. It was rejected in each case. I see no reason to take a different approach here.

18. It follows Mr Theo’s application before the Tribunal is without merit. I am therefore able to dismiss the proceedings pursuant to s 42B. I think it is appropriate to do so in this case. There is no point continuing with the proceedings.

should the applicant be declard a vexatious litigant?

19. Section 42B(1)(b) authorises the Tribunal to prevent an applicant from making further applications of a particular kind if the Tribunal is satisfied the application is vexatious or frivolous. The respondent has asked me to make such a direction against Mr Theo.

20. The Tribunal is usually reluctant to make directions of this kind because the practical effect is to inhibit a citizen’s access to the machinery of administrative review. Everyone is entitled to his or her day in court. But there are limits to a citizen’s right to be heard. A person is not entitled to abuse the review process. The parliament has provided the power in s 42B(1)(b) so the Tribunal can protect itself from conduct that amounts to an abuse of process.

21. The discretion to make a direction under s 42B(1)(b) should also be considered in light of the Tribunal’s objectives set out in s 2A. That section requires the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. The review mechanism cannot operate economically and quickly if it is clogged with applications that have already been dealt with in a fair and just manner.

22.     Mr Theo has had his day in court. His dispute with the respondent over his entitlement to DSP has been heard and determined on several occasions by this Tribunal and the Federal Court. His arguments have been repeatedly rejected. He cannot win. It is in no-one’s interests that he be allowed to return to the Tribunal again and again to press the same hopeless case. I am therefore satisfied it is appropriate to make a direction in the terms sought by the respondent.

conclusion

23. Mr Theo’s application is frivolous and vexatious. It is dismissed pursuant to s 42B(1) of the Act. Mr Theo is not permitted to make any further applications to the Tribunal for review of a decision to decline his claim for the Disability Support Pension without the leave of the Tribunal.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate      Adam Ryan

Date of Hearing  17 November 2006
Date of Decision  24 November 2006
The applicant represented himself at the hearing.
The respondent was represented by Mr Black, a departmental advocate.