Vidovic and Secretary, Department of Social Services (Social services second review)
[2019] AATA 1627
•26 June 2019
Vidovic and Secretary, Department of Social Services (Social services second review) [2019] AATA 1627 (26 June 2019)
Division:GENERAL DIVISION
File Number: 2018/5368
Re:Vlado Vidovic
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal: Senior Member Dr M Evans
Date: 26 June 2019Date of written 28 June 2019
Reasons
Place:Perth
On 26 June 2019, the Tribunal made the following order:
The application for second review of the decision of the Social Services and Child Support Division dated, 24 August 2018 is dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
These are the written reasons for decision for that order.
..........................[sgd]..............................................
Senior Member Dr M Evans
Catchwords
PRACTICE AND PROCEDURE - Interlocutory – application for review of a decision of the Social Services and Child Support Division of the Tribunal – unlimited portability - dismissal application under s 42B(1) Administrative Appeals Tribunal Act 1975 (Cth) – whether frivolous, vexatious – successful decision on second review would be of no practical benefit to the Applicant – application dismissed pursuant to s 42B(1)(a)
Legislation
Administrative Appeal Tribunals Act 1975 (Cth), s 2A, s 40(1)(b), s 42B(1)(a)
Social Security Act 1991 (Cth), s 1217, s 1218AAA, s 1218AAA(1)(a)
Cases
Easson and Military Rehabilitation and Compensation Commission [2005] AATA 344
McCarthy and Building Practitioners Board [2016] AATA 1029
Re Currey and Others and Australian Community Pharmacy Authority (2007) 99 ALD 106
Rundle and Civil Aviation Safety Authority [2002] AATA 349
Stanley and Minister for Foreign Affairs [2018] AATA 902
Williams and Australian Electoral Commission and the Greens (Party Joined) [1995] AATA 160
REASONS FOR DECISION
Senior Member Dr M Evans
28 June 2019
INTRODUCTION
These are the written reasons for decision with respect to the order I made on 26 June 2019, to dismiss Mr Vidovic’s application for review of an unlimited portability decision, under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AATAct).
THE APPLICATION
Mr Vidovic is seeking review of a decision made by Member Kannis in the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (Tribunal) on 24 August 2018.
Member Kannis affirmed a decision of an Authorised Review Officer (ARO) of Centrelink (part of the Department of Social Services) dated 20 June 2018 to reject the Applicant’s claim for unlimited portability of his Disability Support Pension (DSP).
To be clear, it is the decision of Member Kannis of the SSCSD dated 24 August 2018 with respect to unlimited portability that is currently before me. Another decision of the SSCSD made by Member Brakespeare on 3 May 2019, which dismissed Mr Vidovic’s application for review of a decision of an ARO of Centrelink to cancel his DSP from
21 September 2018, is not currently before me.Thus, there are two separate decisions of the SSCSD. Firstly, Member Kannis’ decision regarding unlimited portability, and secondly, Member Brakespeare’s decision regarding the cancellation of Mr Vidovic’s DSP. It is Member Kannis’ decision that is relevant to the current application before me.
I wish to clarify these decisions because I am concerned that Mr Vidovic may not understand what this interlocutory application is about. His DSP has been cancelled, and he is understandably upset about it. He is currently receiving the Newstart allowance.
I note that Exhibit A1, A2 (in part) and A5 (set out below) appear to relate to the cancellation of Mr Vidovic’s DSP. It is unfortunate that Mr Vidovic chose not to participate in the hearing so that I could provide any clarification that it is the unlimited portability decision of Member Kannis that this dismissal application relates to, and that a successful second review of that decision would not result in the reinstatement of his DSP.
In this application, the Secretary is seeking to dismiss Mr Vidovic’s application for a review of the unlimited portability decision by Member Kannis under s 42B(1) of the AAT Act on the basis that a favourable second review decision would be of no practical benefit to him.
THE HEARING OF THE APPLICATION
The hearing of this application was on 26 June 2018 by telephone. The Applicant declined to participate in the Tribunal hearing, and so the hearing of the dismissal application occurred in his absence pursuant to s 40(1)(b) AAT Act.
Prior to the hearing, a number of documents were filed with the Tribunal by the parties. These have been considered by the Tribunal and were put into evidence at the commencement of the hearing. These were:
(a)Notice of breach of agreement and warning of eviction dated 2 November 2018 (Exhibit A1);
(b)Letter from Centrelink to Mr Vidovic dated 21 September 2018 (Exhibit A2);
(c)Screenshot of Mr Vidovic’s contact with Centrelink dated 21 September 2018 (Exhibit A3);
(d)Two aeroplane boarding passes dated 12 and 13 October 2018 (Exhibit A4);
(e)Letter from the Director of a Medical Centre that Mr Vidovic has attended dated 26 November 2018 (Exhibit A5);
(f)Section 37 (T-documents) (Exhibit R1); and
(g)
Secretary’s submissions in support of an application for dismissal pursuant to
s 42B of the AAT Act including Annexures A-K (Exhibit R2).
I delivered a decision at the hearing to dismiss under s 42B(1) of the AAT Act, and a written copy was provided to Mr Vidovic that day, with written reasons to follow.
SUMMARY OF APPLICABLE LEGAL PRINCIPLES
Section 2A of the AAT Act provides:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
Section 42B(1) of the AAT Act provides:
(1)The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
In Exhibit R2, the Secretary cited the authorities in Williams and Australian Electoral Commission and the Greens (Party Joined) [1995] AATA 160 at [36] (Williams), Easson and Military Rehabilitation and Compensation Commission [2005] AATA 344 at [27] (Easson), and Stanley and Minister for Foreign Affairs [2018] AATA 982 at [42] (Stanley) in support of its dismissal submissions (Exhibit R2, paragraphs [19]-[21]).
A matter can be “vexatious” (applying Williams at [36] citing Attorney General v Wentworth (1988) 14 NSWLR 481 at 491), “…if, irrespective of the motive of the litigant, they [the proceedings] are so obviously untenable or manifestly groundless as to be utterly hopeless.”
Further, in Easson at [27], the Tribunal dismissed an application under s 42B(1) of the Act, “…because of the operation of the law…there is no legitimate purpose that can be achieved by continuing with [this] application.”
I adopted a similar approach in Stanley where I concluded:
42. The Tribunal concludes that the application is frivolous because, even if the Tribunal were to make a decision favourable to the Applicant at a substantive hearing of the application, it would be of no practical benefit to the Applicant. …
44. The Tribunal has taken into account the objective of the Tribunal under s 2A of the AAT Act, including those relating to economy and proportionality, and agrees with the Respondent’s submission that it would be an inappropriate use of the time and resources of the Tribunal to proceed to a substantive hearing of the Applicant’s application when a decision in his favour would be futile and of no practical benefit to him.
In Stanley, at [19] and [20], I referred to the decision of Deputy President Forgie in McCarthy and Building Practitioners Board [2016] AATA 1029 where Deputy President Forgie also had regard to s 2A of the AAT Act when considering a dismissal application under s 42B(1)(c) of the AAT Act.
I further cited the following authority, which is relevant to the current dismissal application before me, at [20]:
20. In Rundle and Civil Aviation Safety Authority [2002] AATA 349, the Tribunal dismissed an application in accordance [sic] s 42B(1) on the basis “that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant” (at [22]).
In Stanley, I continued on to state, at [21]:
21. Similarly, in Re Currey and Others and Australian Community Pharmacy Authority (2007) 99 ALD 106, Deputy President Hack dismissed an application under s 42B(1) on the ground that it was frivolous because the Tribunal was unable to make a decision that would have any practical benefit to the applicants.
In summary, the Secretary submitted that a decision in Mr Vidovic’s favour would be futile and of no practical benefit to him (Easson and Stanley), and in that context that that, “it would be an inappropriate use of the time and resources of the Tribunal to proceed to a substantive hearing” (as per s 2A of the AAT Act).
SHOULD THE TRIBUNAL DISMISS MR VIDOVIC’S APPLICATION UNDER S 42B(1)?
The Tribunal agrees with the submissions made by the Secretary that a second review would be futile and of no practical benefit to Mr Vidovic for the reasons set out in the following paragraphs.
There would be no practical benefit to Mr Vidovic if a second review decision was made in his favour because such a decision could not impact on past events (namely Mr Vidovic’s prior travel). Specifically, Mr Vidovic travelled overseas for:
(a)
28 days from 14 May 2018 to 11 June 2018. The effect of s 1217 of the
Social Security Act 1991(Cth) (Social Security Act) is that a DSP recipient can continue to receive DSP for a total of 28 days in the last 12 months whilst outside of Australia. Thus, during this period Mr Vidovic was still paid DSP as he was within the 28 day limit; and
(b)22 days from 21 September 2018 to 13 October 2018. Although Mr Vidovic was within the 28 day limit, his DSP had, at this time, been cancelled (having been initially cancelled on 20 June 2018 by an ARO of Centrelink). Specifically, at the time of this travel, Mr Vidovic was no longer qualified for unlimited portability because to receive it he had to be a “severely impaired disability support pensioner”. Section 1218AAA of the Social Security Act, which sets out the qualifying circumstances under which a person will be considered to be a severely impaired disability support pensioner, requires that “the person is receiving disability support pension” (see s 1218AAA(1)(a) of the Social Security Act).
In summary, a decision in his favour after a second review would not result in any gain to Mr Vidovic with respect to his past travel.
A decision in Mr Vidovic’s favour would also have no future effect until such time as
Mr Vidovic is again in receipt of a DSP. As noted above, the decision before this Tribunal is a decision about unlimited portability, and not about the cancellation of Mr Vidovic’s DSP. So if this matter were to proceed to a second review, and even if this Tribunal were to find that he suffered from a severe impairment (perhaps in light of new evidence because the evidence before the Tribunal currently does not support this finding) which attracts a rating of 20 points or more under a single Impairment Table, he would still not be able to meet the criteria for unlimited portability because of the operation of
s 1218AAA(1)(a) of the Social Security Act which requires that he is receiving a DSP.
For the reasons outlined above, and applying Easson and Stanley in particular,
the Tribunal finds that the application is frivolous because even if the Tribunal were to make a decision favourable to Mr Vidovic after a second review it would be of no practical benefit to him.
CONCLUSION
These types of Social Security matters are very complicated, especially to a layperson. This is why I have endeavoured to explain the difference between the two decisions to clarify what is before me to decide.
I have a great deal of sympathy for Mr Vidovic who ultimately seeks to have his DSP reinstated, however this current dismissal application concerns the unlimited portability decision of the SSCSD, which I have found to be frivolous (within the legal meaning of that term) and it does not concern the decision about the cancellation of Mr Vidovic’s DSP.
Mr Vidovic appears to be suffering from mental health issues which may form the basis of him making a new claim for a DSP. During the Tribunal hearing, I noted the letter in Exhibit A5 in which the Director of the Medical Centre Mr Vidovic attends stated that he has “other medical issues” which “may include mental health episodes” and that he has attended the Medical Centre “in a very agitated state as he appears to have an ongoing issue with Centrelink”.
Also, I note that Member Brakespeare dismissed Mr Vidovic’s application with respect to the decision to cancel his DSP on 3 May 2019 partly because “he behaved in a manner that was unacceptable and failed to comply with a direction issued by the AAT”, before leaving the hearing early without giving any evidence (Exhibit R2, Annexure H). This is possibly suggestive of mental health issues which may be relevant to a new claim for DSP.
In the letter in Exhibit A5, the Director of the Medical Centre continued on to state:
I offer this letter in support of the patients [sic] ongoing health issues and he has agreed, if Centrelink contact the practice requesting a more detailed medical history, we would provide this with written request and authority to release.
At the Tribunal hearing, I asked Ms Odgers, who appeared for the Secretary, to follow up as to whether this dialogue between Centrelink and the Medical Centre could occur in accordance with this offer, and she kindly agreed to do so. I believe that this will assist Mr Vidovic to make a new claim for DSP. However it is unlikely to offer him much comfort with respect to the current application for a review of the unlimited portability decision which I am dismissing.
DECISION
For the reasons outlined above, on 26 June 2019, the Tribunal made the order that:
The application for second review of the decision of the Social Services and Child Support Division dated, 24 August 2018 is dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans
........................[sgd]................................................
Associate
Dated: 28 June 2019
Date(s) of hearing: 26 June 2019 Applicant: Non-appearance Counsel for the Respondent: Ms Lee-Anne Odgers Solicitors for the Respondent: Department of Human Services
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