Warren Westbrook and Secretary, Department of Social Services

[2014] AATA 929

[2014] AATA  929

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/0666
Re	Warren Westbrook
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

WRITTEN REASONS FOR ORAL DECISION

Tribunal	Senior Member N A Manetta
Date	28 November 2014
Date of written reasons	15 December 2014
Place	Adelaide

The Tribunal dismisses under section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 the applicant’s application for review of the respondent’s varied decision.

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Senior Member N A Manetta

CATCHWORDS

PRACTICE AND PROCEDURE - jurisdiction - review of varied decision of respondent - no new issue raised on resumed hearing - proceedings dismissed as "frivolous or vexatious".

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B(1)(a)

CASES

Re Westbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 247

Re Westbrook and Secretary, Department of Social Services [2014] AATA 700
Re Williams and the Australian Electoral Commission (1995) 38 ALD 366
Yao v Administrative Appeals Tribunal [2011] FCA 11

Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3

WRITTEN REASONS FOR ORAL DECISION

Senior Member N A Manetta

15 December 2014

1. Following a directions hearing in this matter, when I delivered oral reasons for my decision to dismiss Mr Westbrook’s application for review under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), a request was made for written reasons. I now publish my written reasons.

2. This is an application by Mr Warren Westbrook for review of a varied decision of the respondent. I have decided to dismiss Mr Westbrook’s application under s 42B(1)(a) without proceeding to a formal hearing as I am satisfied that his application has now become “frivolous or vexatious”, although that was not the case when he first filed it.

   PRIOR DECISIONS

3. Mr Westbrook’s application for review has been the subject, relevantly, of two decisions in this Tribunal, that given by Deputy President Jarvis on 24 April 2013[1] and the decision I gave on 25 September 2014.[2]  The relevant factual background is canvassed in some detail in these decisions and I shall not set it out again here.  The central relevant fact is that Mr Westbrook has been concerned about the rate at which his age pension has been calculated and paid to him during a portion of 2009. 

   [1] Re Westbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 247.

   [2] Re Westbrook and Secretary, Department of Social Services [2014] AATA 700.

   Decision of 25 September 2014 and recalculation of indebtedness

4. In my decision of 25 September 2014, I ruled on all the outstanding areas of dispute between the parties. These had been identified and agreed in the course of earlier directions hearings, and a direction in this respect was made on 3 April 2014. The matter then proceeded to hearing in respect of the outstanding matters. I reached a decision on the outstanding matters and remitted the matter to the respondent under s 42D(1) of the AAT Act for a minor recalculation of Mr Westbrook’s alleged net indebtedness to the respondent with a view to making final orders.[3]  The respondent was to make the recalculation within three weeks of my decision, and the parties were to come before me in approximately one month’s time for a further directions hearing.

   [3] The remittal was made in light of a concession made by the respondent that warranted a minor recalculation.   

5. In conformity with my order, the respondent advised in a letter dated 15 October 2014 that Mr Westbrook had already been refunded an amount of some $62.10 in accordance with Deputy President Jarvis’s earlier decision, but still owed the department some $65.88 after the recalculation I had directed.  Importantly, however, the respondent further advised in the letter that no action would be taken against Mr Westbrook to recover the sum of $65.88; i.e., the debt would be waived in its entirety.  An undertaking to this effect was formally given to me today by Mr Parker, who appeared for the respondent.

6. The net result is that there are no monies said to be owed by Mr Westbrook, and he has received the amount earlier identified as owing to him. 

7. As I have indicated, this position was advised to Mr Westbrook in the letter of 15 October 2014.  At a directions hearing on 27 October 2014, I explained the position to Mr Westbrook, and I asked him on that occasion what further relief he sought from the Tribunal as I could not see that there was anything left for the Tribunal to do.  All issues had been resolved.  He requested an opportunity to seek legal advice.  The matter was adjourned until today to enable that to occur. 

   APPLICATION BEFORE THE TRIBUNAL AND GROUNDS FOR REVIEW

8. I note that as a consequence of s 42D(3)(a) of the AAT Act, Mr Westbrook’s application to this Tribunal is now deemed to be an application for review of the respondent’s decision as varied by the letter dated 15 October 2014. Mr Westbrook has one of two courses open to him under s 42D(3): either to proceed with the application for review of the decision as varied (s 42D(3)(b)(i)) or to withdraw his application (s 42D(3)(b)(ii)). Mr Westbrook advised me today that he had taken legal advice and that a possible appeal to the Federal Court was recommended. That is not a matter which involves me, of course. In answer to my specific question concerning the relief he now seeks from the Tribunal in light of the varied decision, Mr Westbrook advised that he did not wish to withdraw his application. He made the following submission:

   (a)First, he wishes his application for review of the varied decision to proceed because he remains dissatisfied with the conduct of Centrelink’s staff and wishes their conduct to be reviewed by the Tribunal; and

   (b)Secondly, he wishes his application to continue because he maintains he is owed monies by the department.  He submitted this was the case because Deputy President Jarvis used (wrongly) a method of income averaging unfavourable to him.  He referred here to Deputy President Jarvis’s decision that his wife’s income, which was relevant to the calculation of his pension entitlement, should be averaged over 13 weeks, and not 52 weeks. 

   No other matter was put to me by Mr Westbrook for continuing his application for review which, as I have noted, is now deemed to be an application for review of the decision as varied by the respondent in its letter of 15 October 2014.

   DECISION IN RESPECT OF THE GROUNDS FOR REVIEW

   First ground

9. So far as the first ground is concerned, I note Mr Westbrook made this submission, or at least a very similar one, to Deputy President Jarvis.  Deputy President Jarvis held, at paragraphs [33]ff, that the allegedly poor conduct of Centrelink’s staff was not a matter the Tribunal had jurisdiction to investigate.  Mr Westbrook has clearly had a decision in this regard.  Moreover, like Deputy President Jarvis, I do not believe that it is a legitimate part of my role to investigate now the alleged misconduct or alleged dilatoriness of Centrelink’s staff in the circumstances of this case.  I do not see how that investigation could relate to a proper review of the respondent’s decision as varied.

10. As there is no proper basis for my investigating Centrelink’s staff’s conduct, this is not a ground for review that should proceed further in my opinion.

    Second ground

11. So far as the second ground is concerned, I note the issue of income averaging is discussed and decided at paragraphs [15]ff of the Deputy President’s decision. The Deputy President addressed the facts and the law and found against Mr Westbrook when he determined the proper basis for averaging Mrs Westbrook’s income.  At paragraph [25], the Deputy President specifically required the Secretary, on remittal, to calculate Mr Westbrook’s age pension on the basis that Mrs Westbrook’s earnings should be averaged over 13 weeks prior to 4 June 2009 and not 52 weeks.  The issue of income averaging was finally dealt with by the Deputy President notwithstanding the remittal.

12. I note that in my own decision, at paragraphs [21]-[22], I referred to the submission Mr Westbrook then made for a re-opening of Deputy President Jarvis’s decision in this regard.[4]  I did not accept it. 

    [4] Mr Westbrook had been at liberty to make a specific submission on the question of whether the Tribunal should re-open Deputy President Jarvis’s decision in this respect: see Direction 3 of the Directions made on 3 April 2014 (appended to my decision dated 25 September 2014).

13. Mr Westbrook asks me today to reverse my earlier decision.  In effect, he asks me to examine the matter of income averaging afresh.  The Deputy President’s decision was one taken in light of the evidence presented to him by the parties and after consideration of the applicable legal principles.  Deputy President Jarvis’s decision was not provisional.  In my decision of 25 September 2014, I declined to re-open the question of income averaging because Mr Westbrook had not advanced to me any cogent reason for doing so.  His submission was that Deputy President Jarvis had erred, but he did not raise any ground that had not already been addressed by the Deputy President so far as I could see.  Mr Westbrook did not refer to any new fact or to any legal principle that had been allegedly overlooked by the Deputy President.  I declined to permit him to re-argue the issue in those circumstances. 

14. Nothing further was put to me today by Mr Westbrook to make it appropriate to re-open Deputy President Jarvis’s decision in this regard.  In the absence of anything new, I do not believe there is any basis to continue with a review of this issue before the Tribunal.

    Absence of further issues 

15. I note further that I gave Mr Westbrook an opportunity after the telephone directions hearing held this morning to think about the matter carefully and to advise me this afternoon what, if any, other grounds there might be for continuing his application for review of the varied decision.  I advised him in the morning of my intention to dismiss the application if nothing further was referred to by him in the afternoon.

16. Mr Westbrook confirmed at the resumed directions hearing this afternoon that there was no new information or submission he wished me to consider, nor did he foreshadow any new argument, although he did reiterate once again his conviction that Deputy President Jarvis had erred in refusing to average his wife’s earnings over a full year rather than 13 weeks. 

17. In the absence of any new issue, new fact, or new argument that I should address, I believe it is appropriate to dismiss the application by Mr Westbrook for review of the decision varied under s 42B(1)(a) of the AAT Act.

18. I refer in this regard to the Tribunal’s decision in Re Williams and the Australian Electoral Commission and the Greens (1995) 38 ALD 366.[5]  This decision is worthy of particular attention since a bench of three Federal Court Justices comprised the Tribunal including the then President, Justice Mathews.  In this case, the Tribunal noted the outcome of the proceedings would have been “devoid of any practical effect”[6]; i.e., they had become futile.  The Tribunal noted the genuineness of the applicant’s conviction[7] and also noted that the proceedings had been begun properly (i.e. non-vexatiously).[8] The Tribunal concluded, however, that they had become vexatious, and this was sufficient to attract the jurisdiction in s 42B(1)(a). The Tribunal proceeded to dismiss the proceedings after drawing the conclusion that the applicant had no legitimate interest in pursuing them further.

    [5] The decision has been referred to and applied in the Federal Court: see Yao v. Administrative Appeals Tribunal [2011] FCA 11 at paragraphs [22]ff and Fearnley v. AFMA [2006] FCAFC 3 at [97].

    [6] At paragraph [39].

    [7] At paragraph [36].

    [8] At paragraph [39].

19. As cautious as I must be in exercising the power conferred by s 42B of the AAT Act – and I acknowledge expressly this constraint [9]– I am satisfied that this is a proper case for its exercise.  No issue has been identified by Mr Westbrook that I could properly consider, or reconsider, as part of the continuation of his application for review of the decision as varied.  It would be, I believe, quite unfair to the respondent to proceed further with the two issues Mr Westbrook has advanced.  I have concluded the first issue lies outside the proper exercise of my jurisdiction in the circumstances of this case. The second issue has been dealt with by Deputy President Jarvis fully on its merits, and I have already considered one application by Mr Westbrook to consider the matter afresh.

    [9] See Re Williams at paragraph [30].

20. I have considered whether Mr Westbrook’s indebtedness of $65.88 (albeit now waived by the respondent) might properly support a continuation of the review proceedings, but there is no interest in reputation or other interest that I can see that might be vindicated.  For all practical purposes, the respondent’s decision has had the effect of a concession that Mr Westbrook now owes nothing.  As I have indicated, I do not believe it appropriate, in the absence of a cogent reason, to proceed to re-examine the ruling the Deputy President gave on 24 April 2013 and on the basis of which the respondent conducted a recalculation of Mr Westbrook’s pension entitlement. 

21. In summary, in the absence of a proper issue, I believe it appropriate to make an order under s 42B(1)(a) without proceeding to a hearing.

22. In so doing, I note expressly that Mr Westbrook genuinely believes that he has a legitimate grievance in respect of Centrelink’s officers’ conduct. He also genuinely believes Deputy President Jarvis was wrong in his decision concerning the averaging of his wife’s income (and equally that I am quite wrong in declining to reconsider the matter afresh). The genuineness of his belief does not mean, however, that his proceedings cannot be “frivolous or vexatious” under s 42B. In this regard I would refer to paragraphs [36]–[37] and [39] of the decision in Re Williams. I would also note for the benefit of Mr Westbrook, a self-represented applicant, that the legal meaning attributed to the words “frivolous or vexatious” extends well beyond their dictionary meanings. The extended legal meaning implies, in particular, that s 42B(1) can apply to an application for review which, for whatever reason, has no chance of success and will inevitably fail. For the reasons I have given, I believe this to be the case here.

    FORMAL DECISION

23. Mr Westbrook’s application for review of the respondent’s varied decision will be dismissed under s 42B(1)(a) of the AAT Act.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

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Administrative Assistant

Dated 15 December 2014

Date(s) of hearing	27 October 2014 & 28 November 2014
Applicant	In person
Advocate for the Respondent	Mr A Parker
Solicitors for the Respondent	Department of Human Services