Lee v Secretary, Department of Social Services

The Notice of Appeal 15 The subject of the appeal is the Third Tribunal Decision. In her Notice of Appeal, the applicant identifies the question of law as follows: The applicant contends that the decision by AAT is unjust and not fair. The AAT forced me to signed the Notice of Withdrawal and you can go home. So the Applicant signed under duress. (Errors in the original.) 16 The notice of appeal goes on to assert that: The Notice of Withdrawal, the Applicant signed was under duress and I did not know why I have to signd and I signd without a Representation and I was told I can go home, just signed it. (Errors in the original.) 17 The notice of appeal may be understood as asserting that the Third Tribunal Decision erroneously dismissed the applicant's application of 1 March 2019. It may also assert that the application was not vexatious because the applicant has at least an arguable basis for revocation of her Notice of Withdrawal, namely that she signed the notice under duress. 18 In the applicant's written submissions in the appeal, she merely states that she was not in any de facto relationship. She also states that she has suffered considerable financial and emotional hardship as a result of the debt, and seeks to have the debt waived. 19 The applicant represented herself at the hearing of the appeal. It is plain that English is not her first language, but she did not claim to require an interpreter. Her oral submissions did not add anything of significance.

Consideration of the appeal 20 The Third Tribunal Decision was made pursuant to s 42B of the AAT Act. That section provides: 42B Power of Tribunal if a proceeding is frivolous, vexatious etc. (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. (2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction 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. (3) The direction has effect despite any other provision of this Act or any other Act. 21 The respondent accepts that the Tribunal did not give the applicant the opportunity to make submissions before dismissing her application of 19 February 2019. The respondent concedes that this was a denial of procedural fairness. It is necessary to consider whether the respondent's concession was properly made. 22 In Annetts v McCann (1990) 170 CLR 596, the plurality stated at 598: It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment. 23 There is no provision of the AAT Act that expressly states that there must ordinarily be a final hearing of an application for review. But, that is envisaged by provisions such as ss 32, 34J, 35, 40 and 40A. The exercise of power by the Tribunal under s 42B(1) of the AAT Act operates to defeat an applicant's entitlement to have their application heard and determined at a final hearing. The provision does not plainly exclude the rules of natural justice. Accordingly, the Tribunal is required to afford the applicant natural justice, or procedural fairness, when exercising its power of summary dismissal. 24 In the present case, the Tribunal acted on its own initiative when exercising its power under s 42B(1) of the AAT Act, rather than upon the application of the respondent. Section 42B(1) does not expressly provide that the Tribunal may act on its own initiative, in contrast to provisions such as s 42A(10) which so provide. However, the nature of the power under s 42B(1), which aims to avoid unnecessary expenditure of the Tribunal's (and respondents') resources on hearing matters that are frivolous, vexatious, etc., is consistent with a legislative intention that the Tribunal may act on its own initiative. Further, para 552 of the Explanatory Memorandum to the Tribunals Amalgamation Bill 2014, indicates that the Tribunal was intended to have similar dismissal powers to those available to other bodies, such as under r 26.01 of the Federal Court Rules 2011 (Cth). The Federal Court of Australia may, pursuant to r 1.40, exercise the summary dismissal power under r 26.01 on its own initiative. These matters indicate that the power under s 42B may be exercised on the Tribunal's own initiative. 25 Procedural fairness requires that each party be given a reasonable opportunity to present their case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]; Sullivan v Department of Transport (1978) 20 ALR 323 at 343. What will constitute such a reasonable opportunity depends upon the statutory framework and the particular facts and circumstances of the case: see, for example, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26]. 26 Section 42B(1) of the AAT Act provides for dismissal of an application for review, "at any stage of the proceeding". Under s 33(1), the procedure of the Tribunal is generally within the discretion of the Tribunal. The aim of avoiding the unnecessary expenditure of resources suggests that it will not always be necessary to conduct an interlocutory hearing to consider whether an application should be summarily dismissed. However, the minimum requirements of procedural fairness must be notifying the applicant that the Tribunal is considering summarily dismissing the application on its own initiative and giving the applicant an opportunity to make submissions. 27 In this case, the Tribunal did not notify the applicant that it was considering dismissing the application as vexatious, and did not give the applicant any opportunity to make submissions. That was a denial of procedural fairness. The respondent's concession was, therefore, correctly made. 28 However, it is necessary to consider whether giving the applicant the opportunity to be heard could have made a difference to the outcome. 29 Section 44(4) of the AAT Act provides that the Federal Court of Australia shall hear and determine the appeal and may make any order it thinks appropriate by reason of its decision. 30 In Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560-561, Sackville J held that if a Court hearing an appeal from the Tribunal finds an error of law, but nonetheless considers that the decision was clearly correct on the material before the Tribunal, it is open to the Court to dismiss the appeal. In Tankey v Adams (2000) 104 FCR 152, the Full Court, referring to Morales, said at [119]: The relief which may be granted will depend upon the effect of the error of law on the decision-making process. Errors of law which are "harmless" or "trivial" do not normally warrant the setting aside of an administrative decision. 31 In Stead v State Government Insurance Commission (1986) 161 CLR 141, the High Court held at 147 that a new trial will not be ordered unless the person who was denied procedural fairness was deprived of "the possibility of a successful outcome". 32 It is necessary to examine what the applicant was seeking in her application of 19 February 2019 which led to the making of the Third Tribunal Decision. In that application, she indicated that she was seeking review of the decision described as "2017/7054". She went on to assert that the hearing on 25 August 2018, at which she signed the Notice of Withdrawal, was unfair and unjust because she did not understand what she was signing. 33 The applicant appears to have sought: (1) review of the decision taken to have been made under s 42A(1B) of the AAT Act to dismiss her application for review of the First Tribunal Decision; and (2) revocation of her Notice of Withdrawal and reinstatement of her application for review of the First Tribunal Decision. 34 It will be recalled that the First Tribunal Decision affirmed the decision of an Authorised Review Officer, which affirmed the part of the Secretary's decision raising a debt for overpayment of DSP. It should be observed that in her application of 19 February 2019, the applicant did not seek review of the First Tribunal Decision itself. 35 Section 25(1) of the AAT Act provides, relevantly, that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. Section 142(1) of the Social Security (Administration) Act 1999 (Cth) (SSA Act) provides, relevantly, that an application may be made to the Tribunal for review (referred to in the provision as an AAT first review) of a decision of an Authorised Review Officer. Section 179(1) of the SSA Act provides that an application may be made to the Tribunal for review (referred to in the provision as an AAT second review) of an AAT first review decision. 36 The First Tribunal Decision was an AAT first review decision. The applicant was entitled to apply for an AAT second review of that decision and she did so. However, she withdrew her application. The effect of the withdrawal falls to be considered under s 42A of the AAT Act, which provides, relevantly: 42A Discontinuance, dismissal, reinstatement etc. of application …. Deemed dismissal - applicant discontinues or withdraws application (1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn. … (1B) If notification is given in accordance with subsection (1A)…, the Tribunal is taken to have dismissed the application without proceeding to review the decision. … Dismissal if decision is not reviewable (4) The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal. … Reinstatement of application (8) If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application. … (9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances. (10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances. 37 The applicant provided a Notice of Withdrawal to the Tribunal on 25 July 2018, and thereby notified the Tribunal that her application for review of the First Tribunal Decision was withdrawn. Under s 42A(1B) of the AAT Act, the Tribunal was taken to have dismissed the application without proceeding to review the decision. 38 There is no provision under any enactment allowing review by the Tribunal of a dismissal taken to have been made under s 42A(1B) of the AAT Act. It follows that the Tribunal had no power to consider the applicant's application for review of 19 February 2019 of that deemed decision. 39 Section 42A(8) provides for an application to be made for reinstatement of an application taken to have been dismissed under s 42A(1B), but such an application can only be made by a party, "other than the applicant". It follows that the Tribunal had no power to reinstate the application for review of the First Tribunal Decision upon the applicant's application. 40 The applicant's application of 19 February 2019 did not to seek review of the First Tribunal decision itself. The question of whether the applicant, having withdrawn her first application, could make another application for review of the First Tribunal decision was therefore not considered in the Third Tribunal decision (or the Second Tribunal decision). However, it may be noted that in Commonwealth v Snell (2019) 370 ALR 1, [2019] FCAFC 57, the Full Court held at [51]: …[T]he doctrine of issue estoppel is not apposite to the constitutional and statutory context of the Tribunal, and ought not to be extended to it. 41 Further, the effect of s 42(A)(1B) of the AAT Act was that the Tribunal is taken not to have proceeded to review the decision, so there was no final decision made by the Tribunal. That is another factor against any proposition that an issue estoppel arose: see Paterson M, "Res Judicata at the Administrative Appeals Tribunal: Re-opening the Case" (2019) 30 PLR 58 at p 62. 42 However, in her application of 19 February 2019, the applicant applied only for review of the decision taken to have been made under s 42A(1B) of the AAT Act to dismiss her application for review of the First Tribunal Decision and reinstatement of her application for review of the First Tribunal Decision. The Tribunal dismissed the application as vexatious. 43 In Rana v Commonwealth [2013] FCA 189, Mansfield J said at [42]: Proceedings have been held to be "vexatious" in the past if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise; irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court: see generally Attorney-General v Wentworth (1988) 14 NSWLR 281. 44 The application of 19 February 2019 was obviously untenable and was, in that sense, vexatious. The outcome of the Third Tribunal Decision could have been no different if the applicant had been given an opportunity to make submissions as to why her application should not be dismissed. 45 The Tribunal also ordered that the applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal to review the decision of the Social Services and Child Support division dated 15 November 2017 (ie. the First Tribunal Decision). The Tribunal referred to the history of the applicant's attempts to have the decision rescinded, the Tribunal's correspondence advising her that the withdrawal could not be rescinded and the making of the Second Tribunal Decision. 46 However, the applicant had not made any application for review of the First Tribunal Decision in either her application of 3 September 2018 or of 19 February 2019. In circumstances where the applicant had made only one application for review of the First Tribunal Decision, there was no justification for the Tribunal's direction that the applicant must not, without leave of the Tribunal, make any subsequent application for review of that decision. The situation did not arise where the making of repeated applications for review of the same decision on essentially the same basis could amount to an abuse of process: cf Snell at [78]. 47 The appeal will be allowed in part. The Tribunal's direction that the applicant must not, without leave of the Tribunal, make any subsequent application for review the First Tribunal Decision will be set aside. The appeal will be otherwise dismissed. 48 In view of the applicant's partial success, I will make no order as to costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.