Boyling and Secretary, Department of Families, Housing, Community Services and Indigenous Afairs [2009] AATA 100 (9 February 2009)

Last Updated: 23 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 100

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0048

GENERAL ADMINISTRATIVE DIVISION		)
	Re		CHRISTOPHER BOYLING

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 9 February 2009

Place Brisbane

Decision

The Tribunal: dismisses the Secretary’s application for dismissal; directs that the time for lodging the s 37 documents be extended to 35 days after 18 February 2009.

..............Signed.................
Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – application to dismiss as frivolous and vexatious –summary dismissal permissible only in the clearest of cases where a claim is obviously and plainly untenable – deed of indemnity cannot answer the application – the application is not plainly unsustainable – application to dismiss refused

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

REASONS FOR DECISION

9 February 2009

Deputy President P E Hack SC

3. The applicant, Mr Christopher Boyling, is a young man with profound disabilities. His affairs are managed for him by the Public Trustee pursuant to the Guardianship and Administration Act 2000.
4. Mr Boyling receives disability support pension and has done so from March 2008 when a claim was lodged on his behalf. Centrelink accepts that he was otherwise entitled to receive disability support pension from his 16th birthday in June 2006 had a timely claim been made. But because no claim was apparently made until March 2008 Centrelink decided that Mr Boyling would not be paid arrears back to his 16th birthday.
5. The Public Trustee sought a review of this decision in the Social Security Appeals Tribunal. That Tribunal took the view that the decision was correct, and affirmed it. It was considered that the legislation mandated that conclusion, it was not a matter of discretion, a view that seems to me, with respect, to be entirely orthodox.
6. In early January 2009 the Public Trustee lodged an application in this Tribunal seeking a review of Centrelink’s decision. Centrelink responded to the application by applying for an order pursuant to s 42B(1)(c) of the Administrative Appeals Tribunal Act, that is, for an order that Mr Boyling’s application be dismissed as being frivolous or vexatious.
7. Two bases were advanced by Mr Black who appeared for the Secretary, as justifying that course. First, it was said, that in the absence of any evidence of any earlier claim for disability support pension these proceedings are bound to fail since the legislation fixes the commencement date for entitlement by reference to a claim made. As the Secretary understood the case to be advanced it was not to be suggested that there had been an earlier claim hence, it was said, this application was bound to fail.
8. The other basis put forward relied upon an ex gratia payment made to Mr Boyling by the Commonwealth in January 2009 and a deed of release and indemnity executed on behalf of Mr Boyling in connection with that payment. Mr Black’s argument was that the deed was a bar to the present proceedings.
9. I did not accept either argument hence I dismissed the Secretary’s application after hearing the argument. These are my reasons for adopting that course.
10. Summary dismissal of a proceeding is permissible only in the clearest of cases where a claim is obviously and plainly untenable. On the present state of the material that was before the Social Security Appeals Tribunal the conclusion was reached that there had been no claim lodged prior to February 2008. If that was in fact the position Centrelink’s decision is undoubtedly correct. But it is impossible to know at this juncture whether Mr Boyling will seek to suggest an earlier claim. The ordinary processes of the Tribunal will explore those issues and, no doubt, the Tribunal’s experienced conference registrars will point out any weakness of this nature in Mr Boyling’s case. But it is not presently possible for me to hold that the application is plainly unsustainable.
11. There are two reasons why the deed cannot be an answer to the application. First, and as Mr Black was minded to accept in argument, a party cannot contract out of a statutory entitlement. But in any event the effect of the ex gratia payment was to compensate Mr Boyling for arrears of disability support pension from December 2006. There remains in issue arrears from June 2006 to December 2006. The deed, accepting all else, is not an answer to the application.
12. I should, however, observe that there is some suggestion in the material filed on behalf of the Public Trustee that the present application is made merely to exhaust all avenues available to pursue Mr Boyling’s claim. It may be readily accepted that a trustee ought do so, however that does not oblige a trustee to pursue litigation that is devoid of any merit. I would hope that before considerable public and private expense is incurred in this matter the Public Trustee’s legal representatives give consideration to the prospects of success of the application and continue with the proceedings only if there is an apparently arguable case.
13. There is a preliminary conference scheduled for 18 February 2009. My concerns can be discussed in the course of that conference. In the meantime I shall direct that the time for lodging the s 37 documents be extended to 35 days after 18 February 2009.
    

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: .......................Signed............................................

Melissa Hamblin, Associate

Date of Hearing of Dismissal 9 February 2009

Date of Decision 9 February 2009

Solicitor for the Applicant Public Trustee Advocate

Solicitor for the Respondent Advocate, Centrelink Legal Services