.........[SGD].................................

Names used in all published decisions are pseudonyms. Any references appearing in

square brackets indicate that information has been removed from this decision and

replaced with generic information so as not to identify involved individuals as required by

subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.

Application for dismissal - whether application is frivolous, vexatious, misconceived or lacking in substance - change in circumstances - no utility

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Social Security Act 1991 (Cth)

Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3

JVSG and Commissioner of Taxation (Taxation) [2020] AATA 1847

Transurban City Link Ltd v Allan [1999] FCA 1723

1. The substantive application is for second review of a decision made by Services Australia (Centrelink). On 1 May 2024 the applicant made an application to Centrelink for a payment under the Home Equity Access Scheme (HEAS). The HEAS is in effect a voluntary, reverse mortgage type loan available to certain Centrelink recipients. Centrelink rejected the applicant's HEAS application on 8 November 2024 as they were not satisfied to accept his home property as security. That decision was affirmed by the Tribunal on 18 November 2025 on first review of the decision.
2. On 10 December 2025, the respondent made an application for summary dismissal of the second review application under section 101 of Administrative Review Tribunal Act 2024 (Cth). This decision and statement of reasons deal with that application.
3. The parties each provided written submissions and documents regarding the summary dismissal application and appeared at the hearing and made oral submissions. I have considered the parties submissions and documents.
4. The applicant and his partner lived in an apartment in a complex built on state land. The land on which the complex was built was under the management of the South Bank Corporation established under the South Bank Corporation Act 1999 (Qld). The Corporation has the power to grant a perpetual lease (999 years) over land within the commercial precinct. In this case, a 999-year lease was granted to a developer who constructed the apartment building. The apartment in which the applicant lived was purchased by his family trust in 2007.
5. The legislative provisions governing HEAS are contained in Part 3.12, Division 4 of the Social Security Act 1991 (Cth). For a couple to qualify for HEAS, s 1133 of the Social Security Act relevantly requires that the Secretary is satisfied that the value of the couple's real assets (after deduction of any nominated amount) is sufficient to secure the payment of any debt that may become payable to the Commonwealth. Real assets are defined in section 1133AA as:

means the real property (including the principal home) of the person or couple in Australia that is specified under paragraph 1136(1A)(a).

6. The certificate of title for the property described the property as an Estate in Fee Simple pursuant to the South Bank Corporation Act 1989. The registered Owner is South Bank Corporation. A lease is noted under Easements, Encumbrances and Interests to the applicant and another, as Trustees. Centrelink found, and the Tribunal at first instance affirmed, that neither the applicant nor the trust had title of the land and an interest in real property and therefore the property could not be used as security for a loan under Part 3.12, Division 4 of the Social Security Act.
7. At the hearing before me, the applicant confirmed that after making the application for second review of the decision, the property that he was living in and which he had nominated as the asset to secure payment in his HEAS application, was sold. The contract of sale was entered into on 30 July 2025 and settlement occurred on 12 September 2025.
8. The respondent submits that because of the sale of the property, the second review proceedings would have no reasonable prospects of success as they are devoid of any practical affect and continuation of the proceedings would be vexatious.
9. In summary, the applicant submits that there are primarily two reasons why the review applications should proceed. The first is that the review raises policy and public interest considerations for both him and others as to meaning of real property and the application of s 1133 in similar type circumstances. The second is that he was forced to sell the property because he was not granted his HEAS claim and as a result seeks to bring proceedings against the Commonwealth for damages.

1. Subsection 101(1) of the Administrative Review Tribunal Act 2024 (Cth) provides for summary dismissal of a matter in the following circumstances:

(1) The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application: > > (a) is frivolous, vexatious, misconceived or lacking in substance; or > > (b) has no reasonable prospects of success; or > > (c) is otherwise an abuse of the process of the Tribunal.

2. The issue of whether an application was vexatious was dealt with in joint judgment in Transurban City Link Ltd v Allan [1999] FCA 1723. Transurban involved an appeal from a decision of a single judge of the Federal Court, which had dealt with review proceedings that had been initiated in the former Administrative Appeals Tribunal. The initial review in the Tribunal had required the Tribunal to consider an application which had been bought by the respondent to dismiss a review application as frivolous or vexatious under s 42B of the former Administrative Appeals Tribunal Act 1975 (Cth). Section 42B is relevantly similar in term to s101 of the Administrative Review Tribunal Act. The applicant in those proceedings (although seeking review of a decision under another legislative scheme) had moved addresses after initiating the review application with the Tribunal. Ultimately, the Tribunal was not required to resolve the dismissal application based on whether the application was frivolous or vexatious as it had found that the applicant in those proceedings never had standing to bring the initiating review application to begin with.
3. On appeal from the Tribunal decision, the primary Judge made remarks concluding that a change in residence would not, in any event, have led to the applicant ceasing to have standing. In their joint judgement in Transurban, Black CJ, Hill, Sundberg, Marshall and Kenny JJ disagreed with that view at [71]:

71 Although it is, in the view we take, unnecessary to decide this issue, we have doubts as to the correctness of this conclusion. If an interest in stopping the Project from going ahead gave Mr Allan an interest in challenging the decision to issue the certificates, it does not follow that the fact that Mr Allan had moved or had suffered the cost of the move gave him a continuing interest. The matter turns really on the connection between the subject matter of the review (and the outcome of it) and the claimed interest. Even if Mr Allan had incurred costs in moving, the outcome of the review considered by reference to the Project could never compensate him for that, or affect either the fact that he had moved or the expenditure that he had outlaid. In these circumstances, it is difficult to see that once he had moved he had an interest in the challenge to the decision to issue the Certificate, even if that is equated to an interest in the Project itself.

4. Transurban and other relevant authorities were considered by the Full Federal Court in Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3 (at [17] - [20]). Fearnley was an appeal from the former Administrative Appeal Tribunal. Mr Fearnley, who was a Fisherman, was not satisfied with a decision regarding the quota of shark fishing that had been allocated to him. He applied for review of the decision to the Administrative Appeals Tribunal. After making the application to the Tribunal he sold the quota and transferred the fishing permits to which the quota was attached to the purchasers. The Tribunal dismissed his application as frivolous and vexatious on the basis that that the decision no longer had effect on Mr Fearnley's interests after the permits were transferred to the purchasers. The Tribunal had stated:

"This too is a case that, on the law as it exists today, will lead to no practical outcome for Mr Fearnley .... [The application] is futile and so [it] must be regarded as frivolous and vexatious to continue it."

5. In the joint judgement the Full Court in Fearnley found that the Tribunal had ample authority for the course the Tribunal took in dismissing the application (at [43]).
6. Similarly, in these proceedings, I accept that the sale of the property by the applicant has rendered the review proceedings futile and, on that basis, they are vexatious and should be dismissed. The trust no longer owns the relevant property and the applicant, even if he could establish that the property was able to be used as security, could no longer offer the property as the nominated security. As such, the second review proceedings, even if successful, are devoid of any practical effect.
7. The applicant's submission that he had been "forced" to sell the property because he was not granted the HEAS application and as a result will pursue damages, does not provide a basis for finding that the second review could have any practical effect. The Tribunal cannot compensate the applicant for any purported loss and there is nothing to support that any determination made by the Tribunal would result in compensation elsewhere.
8. In a decision of the former Administrative Appeal Tribunal, JVSG and Commissioner of Taxation (Taxation) [2020] AATA 1847, the Tribunal considered seeking an advisory opinion from the Tribunal to be an abuse of process. The Tribunal provided in the reasons at [17] - [19]

17. It is a well-settled principle that courts and tribunals do not give advisory opinions. I have briefly referred to a relevant precedent and article below: > > 18. In In Re The Judiciary Act 1903-1920 and In Re The Navigation Act 1912-1920 (1921) CLR 257, Knox CJ and Gavan Duffy, Powers, Rich and Starke JJ when asked to rule on the validity of Part XII of the Judiciary Act 1903 (Cth) which purported to vest advisory opinion jurisdiction in the Court, noted at 265 > > "In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one." > > 19. In other words, in the context of this matter, as there is no longer an issue to be determined between the parties there is nothing for the Tribunal to determine.

9. In so far as the applicant submits that the review has public interest implications and would clarify the application of s 1133 for other people in similar circumstances, such a decision would amount to no more than an advisory opinion and as is established by the case law, Tribunals do not give advisory positions.
10. For those reasons, I am satisfied that continuation of the application would be vexatious and that the second review application should be dismissed pursuant to subsection 101(1) of the Administrative Review Tribunal Act.

The Tribunal dismisses the application under section 101 of the Administrative Review Tribunal Act 2024.