Pham and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 31; (2009) 49 AAR 478 (19 January 2009)

Last Updated: 3 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 31

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/1865

GENERAL ADMINISTRATIVE DIVISION		)
	Re		CHARLES PHAM

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Date 19 January 2009

Place Melbourne

Decision Pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 and being satisfied the application is frivolous or vexatious:

(i) The application is dismissed; and

(ii) Upon the application of the respondent I DIRECT that the applicant must not without leave of the Tribunal make any subsequent application of a kind arising under the Social Security Act 1991 or the Social Security (Administration) Act 1999.

(Sgd) John Handley
Senior Member

SOCIAL SECURITY – previous AAT finding of failure to provide information to Centrelink – decision under review by these proceedings was the raising of an overpayment of Newstart Allowance by failure to declare a distribution of income from a family trust – application dismissed as frivolous and vexatious – direction that applicant not make a subsequent application without leave
Administrative Appeals Tribunal Act 1975 (Cth) s 42B, s 42B(1)(a) and (b), s 40(1C)
Social Security Act 1991 (Cth) s 1073(2), s 1223, s 1237AAD

Social Security (Administration) Act 1999 (Cth)

Attorney-General v Wentworth (1988) 14 NSWLR 481

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Paramasivam v Randwick City Council [2005] FCA 369

Pham and Secretary, Department of Employment and Workplace Relations. [2007] AATA 000015

Re Vernazza [1960] 1 QB 197

Singh v Secretary, Department of Employment and Workplace Relations [2006] FCA 1381

Shi v Migration Agents Registration Authority [2008] HCA 31

REASONS FOR DECISION

19 January 2009

Mr John Handley, Senior Member

1. The applicant has applied by these proceedings to review a decision made by the Social Security Appeals Tribunal (SSAT) on 25 August 2006. The respondent has applied pursuant to s 42B(1)(a) and (b) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) to have the application dismissed as frivolous or vexatious. It also seeks a Direction that the applicant must not without leave of the Tribunal make a subsequent application to the Tribunal in relation to matters arising under the Social Security Act 1991 (the Act) or the Social Security (Administration) Act 1999 (the SSA Act).
2. The applicant has had a number of applications reviewed by this Tribunal. He has also lodged appeals in and sought Orders from the Federal Court of Australia and the High Court of Australia in relation to his previous applications and the current application. A short chronology of those applications should be recited in the following terms:
3. In application V2006/838 the applicant sought to review a decision made by the SSAT which affirmed a decision previously made by an authorised review officer (ARO) of Centrelink to suspend his payments of Newstart Allowance (NSA) because he had refused or failed to respond to a request from Centrelink to provide information with respect to his beneficial interests in the Pham Family Trust (PFT) which had been discovered by Centrelink following a data match search with the Australian Taxation Office (ATO).
4. On 12 January 2007 the Tribunal (differently constituted) decided to affirm the decision (above) made by the SSAT. The applicant subsequently lodged an appeal against that decision with the Federal Court (VID 94/2007). The proceedings were dismissed. The applicant then lodged an appeal with the Full Federal Court (VID 491/2007). Those proceedings were dismissed as incompetent. An application was then made to the High Court (M142/2007) where the applicant then sought writs of Mandamus and Prohibition against four named Federal Court Judges and the Registrars of the Federal Court and the High Court. Those proceedings were also dismissed by His Honour Mr Justice Hayne on 24 January 2008.
5. In the current proceedings the applicant applied to review a decision made by the SSAT on 27 April 2007 where it then affirmed a decision made by an ARO of Centrelink of 25 August 2006 to raise and recover a debt of $1999.42 being NSA paid between 30 June 2004 and 29 June 2005. The applicant was paid NSA in the total sum of $12,151.54 in that period. The data match search conducted by Centrelink with the ATO (refer above) revealed an undisclosed payment of $5055.00 to the applicant by the PFT in the 2003 - 2004 income year. It was submitted by Centrelink that the applicant had an entitlement only of $10,152.12 in NSA payments. Consequently, the applicant was overpaid $1999.42.
6. The hearing of this application occurred over three days (for reasons which will become obvious later). After the first day of hearing the applicant lodged an appeal in the Federal Court of Australia which was dismissed on 3 December 2007 by His Honour Mr Justice Gray (VID 1017/2007).
7. On 5 December 2007, another Member of this Tribunal dismissed an application (2007/4805) by reason of an absence of jurisdiction. The applicant had sought a payment of compensation from Centrelink under the Compensation For Defective Administrative Action (CDAA) Scheme. That application had been refused. The applicant sought to review that decision before the SSAT but it decided that it did not have any jurisdiction and did not convene a hearing. The applicant contended that the failure to convene a hearing amounted to a decision which was capable of review before this Tribunal. The Tribunal Member who dismissed that application decided that the SSAT had not made any decision that was capable of review and also decided that claims for CDAA were not reviewable at the SSAT or at the AAT. I am not aware that the applicant has lodged an appeal against that decision.

THE HEARING OF THIS APPLICATION

8. The hearing of this application occurred over three days because of events and circumstances which emerged during the first two days of hearing.
9. The issue to be decided is whether the applicant was overpaid NSA in the period 29 June 2004 to 30 June 2005. An overpayment will have occurred if he was paid the sum of $5055.00 in the 2003 – 2004 income year. That amount is taken to be ordinary income received during each week in the period of 12 months succeeding the day on which the person becomes entitled to receive that amount (refer s 1073(1) of the Act). The methodology of calculations is usefully summarised at paragraphs 23 and 24 of the decision made by the SSAT. The amount received is apportioned over 26 fortnightly periods and if the apportioned sum is greater than $142.00 the rate of NSA is reduced by 70 cents for each apportioned dollar.
10. Each day of hearing was considerably lengthened by repeated attempts by the applicant to obfuscate and by his inflammatory and abusive language and comments. This conduct will be referred to later in a separate part dealing with the respondent's application to have the proceedings dismissed and for related Directions. The residential address of the applicant's family will be referred as the North Carlton address and the premises used by the applicant's sister in her practice as a Chiropractor will be referred to as the Richmond premises. A number of relevant events occurred at these premises. To protect the privacy of the applicant and his family, the precise locations, (recorded in the Transcript of evidence and some of the exhibits), need not be described in this decision.
11. The summary that follows is concerned with the respondent's assertion of the failure to declare monies received from the PFT and the applicant's denial of receipt of those monies. The application for dismissal and related Directions will be discussed later.
12. The respondent relied on the copy of a return lodged by Ty Sam and Associates, Accountants on behalf of the PFT for the 2004 income year. A copy of that return had been obtained by Centrelink from the ATO. The return records that the PFT distributed the sum of $5055.00 to each of the persons Cathy Pham and Charles Letuan Pham. The residential address of both persons is recorded as the North Carlton address. The person, Cathy Pham, is the applicant's sister.
13. The applicant denied that he had ever received a distribution from the PFT (Trans. p2). He said that there was no evidence of any payment to him of monies from the PFT (Trans. p20), he denied any knowledge of the existence of the PFT (Trans. pp 20 and 24) and said that he had not ever heard of Ty Sam and Associates. He said that he was unable to obtain a statement from his father (who resided at the North Carlton address) with respect to the PFT or distribution nor was he able to obtain a statement from his brother who is a lawyer because of the Privacy Act. Additionally the applicant said that it did not occur to him to speak with his sister Cathy about the contents of this return because he has no relationship with her, she lives in Bendigo, he does not speak with her and she may not recognize him (Trans. pp22 and 23).
14. The applicant said that he had previously lived at the North Carlton address. Despite that address being recorded in the return lodged by the PFT and his full name and date of birth also being recorded, he said there was no connection between him and the person of the same name recorded in the 2004 PFT return having received a distribution of $5055.00. The applicant alleged that the PFT return was false.
15. Accordingly, I decided that a summons should be issued by the District Registrar to have the records of Ty Sam and Associates produced to the Tribunal and the hearing would then resume.

SECOND DAY OF HEARING

16. Subsequent to the first day of hearing, the applicant lodged appeals in the Federal Court and the High Court (refer earlier). When those applications were decided, this matter was listed for resumption (on 7 February 2008).
17. The Tribunal had received a bundle of documents from Ty Sam and Associates which comprised the Deed of Settlement of the PFT, copies of the Profit and Loss Statements, Trust Distribution Statements, Balance Sheets, Directors' Declarations and Annual Reports for the PFT for the income years 1998 to 2006 inclusive and a copy of the individual tax return of the applicant for the 2004 income year.
18. The Tribunal listed this application for a return of summons hearing on 6 February 2008 being the day before the hearing resumed. The purpose of such a hearing is to allow both parties to inspect documents received prior to the commencement or the resumption of the hearing. A listing notice was forwarded to the applicant advising him of the return of summons hearing. He did not then appear.
19. When the hearing resumed the applicant was given a copy of the entire file of Ty Sam and Associates. The applicant declined to read the documents and said that he would be contesting those papers. In full. He alleged that the documents were bogus and had been fabricated. He complained that Ty Sam was not personally present for cross-examination by him (Trans. p52). The applicant also applied to have the Centrelink advocate called as a witness for the purposes of cross-examination.
20. The demeanour and attitude of the applicant throughout the hearing was belligerent and most of his evidence and response to cross-examination was insulting or evasive.
21. Of some significance however was the evidence of the applicant (Trans. p57) where he said that he had never met Ty Sam, that he had not ever handshaked him or spoken with him on the phone. Additionally the applicant said that he had not ever sent an email or a facsimile to Ty Sam (Trans. p62). Unfortunately, and despite some persistence, the applicant would not answer propositions put to him that a taxation return could be completed on behalf of another person without meeting or communicating with that person (Trans. pp62 and 63).
22. A matter which did emerge of some significance in my view was the applicant's evidence of denial that the signature which appeared on the 2004 individual income return was not his.
23. I was satisfied that the signature which appeared on the 2004 individual return purporting to be that of the applicant was different to the signature completed by the applicant and found within a number of documents throughout the Tribunal file and the T-documents. I could not therefore be satisfied that the applicant did declare true and correct information to the tax agent for the purposes of preparation of the return (refer Part A of the 2004 return).
24. Accordingly, when reflecting on the evidence heard during the second day of the proceedings I decided that a summons should be issued to have Marie Pham, the Appointor and a Director of the PFT and a sister of the applicant appear to give evidence on the resumption of the hearing.

THIRD DAY OF HEARING

25. Marie Pham gave evidence when the hearing resumed. She said that the PFT was established to help family members who were in financial difficulty or disadvantaged. She said monies were given to her father as the head of the family for distribution by him. She said it was a family tradition. Ms Pham said that a decision was made to contribute the amount roughly about $5000.00 to her brother Charles. She could not say whether a distribution was made to him or in what sum. However she was adamant that all money goes to my father that would have been distributed. She was aware that the other beneficiary recorded in the return of the PFT, the applicant's sister Cathy, did receive her money. She therefore assumed that the applicant also received a distribution.
26. Ms Pham produced a Minute of Distribution dated 28 June 2004 which recorded that she, Cathy and another brother John resolved on that day to distribute the taxable income made by the Trust for the financial year ending 30 June 2004 equally to the applicant and Cathy Pham. Ms Pham also produced a copy of that document which has the handwritten notation on it I, Xuan Li Pham receive the money for Cathy and Charles Pham 30/06/04 (Sgnd). She said she recalled giving monies to her father in cash for distribution by him. She said that monies on a number of occasions which aggregated approximately $10,000 were given to her father. She could not recall the exact amount given to him on each occasion nor could she recall when the monies were distributed by him.
27. In cross-examination by her brother, Ms Pham said that at all times Mr Pham lived in the family home in North Carlton but did attend her chiropractic clinic in Richmond from time to time. She said that Ty Sam and Associates had been the accountants for the family and the PFT for more than 10 years and that knowledge would have been held by Mr Pham because it was the subject of discussion at family dinners and meetings which he attended. She said she had no knowledge of whether the applicant and Ty Sam had ever met. She said that she was surprised to learn that the applicant had said in evidence during the first day of hearing that he was not aware of the existence of the PFT, because the existence of it was the subject of discussions at family meetings during which the applicant was present.

SUMMARY OF DOCUMENTS RECEIVED UNDER SUMMONS FROM TY SAM AND ASSOCIATES

28. Prior to the commencement of the first day of hearing the respondent lodged a copy of a return on behalf of the PFT which recorded a distribution having been made to the applicant in the sum of $5055.00 in the 2004 income year. By reason of the persistent denial by the applicant of having received those monies and in the absence, by the applicant, of calling the accountants or any other persons to support his case, I decided to adjourn the hearing and have a summons issued for service upon the accountants to produce their entire file. The file was eventually forwarded to the Tribunal and an invitation to the applicant to inspect the file prior to the day of hearing was declined or ignored and an opportunity to inspect the file at the commencement of the hearing on the second day was also declined (refer paragraphs 18 and 19 earlier).
29. Accordingly I am satisfied having reviewed the file in its entirety that the following findings can be made namely:
    1. On 28 March 1998 the PFT was established by Deed of Settlement between Yin Yin Cheng an accountant in the employ of Ty Sam and Associates and Pham Corp Pty Ltd as trustee. The beneficiaries of the Trust are recorded as the children of the applicant's parents namely Marie, John, Cathy and the applicant.
    2. At all relevant times Ty Sam and Associates were the accountants for the Trust and lodged returns with the ATO on behalf of the Trust. A return was lodged by Ty Sam and Associates on behalf of the applicant for the 2004 income year.
    100. In the 2004 income year the PFT return recorded a distribution to the applicant in the sum of $5055.00.
    4. The personal income tax return of the applicant for the 2004 income year declares a receipt of income in the sum of $5055.00.
    5. The applicant's name, his address, his date of birth and tax file number recorded in the return of the PFT and the personal return are identical.
    6. The signature on the personal return of the applicant appears to be different to his signature appearing on other documents lodged in this application.
30. Before these proceedings commenced and during the currency of them the applicant alleged bias against me and submitted that I should disqualify myself from hearing the application. The application was made on the basis that I had previously heard and decided an application involving the applicant and where Comcare was the respondent in Application V2001/372 which resulted in a finding by me that the decision then under review should be affirmed. Those proceedings were the subject of appeal before a single judge and a Full Federal Court. The appeals were dismissed. My decision was made on 10 October 2002. The first day of hearing in these proceedings was 15 October 2007. I did not recall the applicant until I was alerted before the first day of hearing of his application and my memory was refreshed by reference to the compensation file. I refused to disqualify myself for reasons similar to those expressed by His Honour, Mr Justice North in the decision made following an appeal lodged by the applicant against the findings made in the previous AAT proceedings (V2006/838) namely, that a decision contrary to a position put by the applicant in previous proceedings does not of itself amount to bias. At the risk of pleading my own defence I gave the applicant every opportunity to present his case by initially responding to his evidence on the first day of hearing that he had not ever received a distribution from the PFT, there was no evidence of such a payment and his denial of any knowledge of the existence of the PFT. Accordingly I arranged for the file of Ty Sam and Associates to be produced which he could inspect and which could be the subject of further evidence and cross examination on the subsequent day of hearing. Additionally, for reasons which I explained to the applicant on the third day of hearing and immediately prior to it, that I was not satisfied that the signature which appeared on the personal return of the applicant was completed by him, I arranged for the applicant's sister being the Appointor of the Trust to attend to give evidence. I was then mindful that in the event that it was established that the applicant did not complete that income tax return that it may follow that he was either not paid the monies alleged or he was not aware that those monies had been paid. That may have permitted him to succeed in this review or in the event that I were to find that the monies were paid but he was not aware of the payment that it may have permitted him to avoid repayment by the provisions of s 1237AAD of the Act.
31. On 8 November 2007 the applicant lodged summons to witness to give evidence where he intended to have the Secretary of the respondent department, an officer of Centrelink and the two SSAT Members who heard the decision under review in these proceedings attend the Tribunal to give evidence. It was decided at the time of lodgement not to issue the summonses because an appeal lodged by the applicant against the findings made at the conclusion of the first day of evidence was pending before the Federal Court and a return date could not be inserted on the summonses. This was the matter of some discussion during the second day of hearing. I would have decided in any event to refuse the request to issue the summonses (which would have been issued by the District or Deputy Registrar) pursuant to s 40(1C) of the AAT Act. As the applicant was advised in the decision of His Honour, Mr Justice Gray, [2007] FCA 2049 at paragraph 11, the role of the Tribunal is to make its decision on the basis of the material before it. Its role is not to examine the basis for decision made by a previous decision-maker. I could not be satisfied that the Secretary of the respondent department nor the Members who constituted the SSAT could have provided any assistance to these proceedings, indeed it would have been improper for the Members of the SSAT to give evidence. Similarly the Centrelink officer who made a preliminary decision in this matter, could not have provided evidence of any relevance when his decision was not under review and the review being concerned only with the material before the Tribunal as opposed to the material before the Centrelink officer. To issue those summonses as requested by the applicant would have been an abuse, without any legitimate purpose or motive and would have been unnecessarily harassing or offensive to the persons intended to be called.

CONCLUSION AND REASONS FOR DECISION

32. From at least 24 April 2003 the applicant had been in receipt of NSA. From time to time he received recipient notices and was directed to complete questionnaires, part of which compelled him to disclose information concerning income. Specific examples were given of what would constitute income for the purposes of the social security legislation. Specifically, he was asked to declare whether he got any other money from any other source (refer T3, p10, 24 April 2003; T4, p14, 30 April 2003; T5, p16, 18 July 2003 and T6, p20, 25 March 2004).
33. At some later time it would appear that Centrelink instigated a data matching search with the ATO and on 1 March 2006 (T7, p21) the applicant was advised that the result of the search indicated he was a beneficiary of the PFT in the 2004 income year. He was asked by that letter to complete a questionnaire seeking certain information from him.
34. It would appear that the applicant did not respond to the above request and on 18 April 2006 (T8, p23) he was specifically asked to provide income tax returns for the income years 2002 – 2005 inclusive, together with other documents from the PFT.
35. On 7 July 2006 the applicant was notified by Centrelink that it was satisfied that the sum of $5055.00 had not been declared and would be regarded as assessable income when calculating entitlement to NSA in the period 30 June 2004 to 29 June 2005. Having made relevant calculations it was assessed that he had been overpaid $1999.42 (T9, p24).
36. It would appear that the applicant did not repay that sum (refer letter 14 August 2006, T10, p25) but did subsequently request reconsideration. An ARO reviewed the decision made on 7 July 2006 and affirmed it on 25 August 2006 (T12, p27).
37. The applicant did not ever provide documentation to Centrelink as requested nor to the SSAT nor to this Tribunal of any papers or documents disputing the payment to him of the sum of $5055.00. He did not call any witnesses in support of his application at this Tribunal but rather protested that relevant persons were not called by Centrelink.
38. This review was considerably assisted by the provision of the file from Ty Sam and Associates and by the evidence of Marie Pham, the applicant's sister, who I regarded as a witness of truth. Ms Pham has an intimate knowledge of the operation of the PFT being the person described as the Appointor and the person who completed reports and minutes on behalf of the PFT (as evidenced by the file produced by Ty Sam and Associates).
39. Having regard to the evidence of Ms Pham and to the file produced by Ty Sam and Associates I am satisfied and find as a fact that the sum of $5055.00 was paid to the applicant in the year of income ending 30 June 2004.
40. I acknowledge that the applicant gave evidence that he had not ever met Ty Sam and Associates, that he was not aware of the existence of the Trust and the signature on his personal return was not his signature.
41. Upon the evidence of Ms Pham I am satisfied that the applicant was aware of the existence of the practice of Ty Sam and Associates and that that practice had been the accountants for the PFT for many years. I am satisfied that the applicant was present on many occasions at the family home in North Carlton where the operation of the Trust and the role of Ty Sam and Associates was discussed. I am not satisfied that the applicant's evidence with respect to these matters was truthful. I acknowledge that the signature on his personal return would not appear to be the signature completed by him on other documents but this review is concerned with whether he received monies that he did not declare. I am satisfied that he did receive monies, namely $5055.00 as a beneficiary of the PFT, consistent not only with the evidence of Ms Pham but also consistent with a Minute dated 28 June 2004 which was also signed by the applicant's father confirming that he received monies which he distributed to the applicant and to another sister Cathy.
42. That Minute records that taxable income made by the Trust for the financial year ending 30 June 2004 be distributed to the applicant and to his sister Cathy. The Trust return show that the sum of $5055.00 was paid to each of the applicant to Cathy. The Trust return of the same year also declares (Item 17) a net Australian income or loss of $10,110. I am not satisfied that it is a coincidence that the aggregate of the two sums of $5055.00 is $10,100. I note that that latter sum is the net income after all expenses were deducted from the total business income in the 2004 year (refer Item 5 of the PFT return). It is the same amount, described on the Minute of 28 June 2004 as having been distributed to the applicant and his sister.
43. I note also that the applicant persisted throughout his evidence in declaring that he had been disowned by his father with whom he had no relationship. The evidence also records that the applicant at all relevant times continued to reside in the same premises in North Carlton as his father. The applicant did not call his father to give evidence and I am satisfied, as I was invited by the respondent, that it would be appropriate to draw an adverse inference against the applicant by the failure to call his father. (Refer Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298). In fact I doubt that the relationship between the applicant and his father is of the kind that he described rather I prefer to conclude that the applicant did not call his father or indeed anyone else to support his case of not having received the sum of $5055.00 because there was no evidence that that sum was not received.
44. Being satisfied that that sum was received I am also satisfied that the applicant did not declare it to Centrelink.
45. I am satisfied that the sum of $5055.00 is ordinary income within the meaning of the Act and Centrelink was entitled to take it into account when calculating the rate of NSA (refer s 1073(2) of the Act).
46. Because that sum was not declared the applicant received a rate of NSA greater than that to which he was entitled and accordingly he has been overpaid. Accordingly the extent of the overpayment is a debt due to the Commonwealth (refer s 1223 of the Act). Further I am not satisfied that the debt should be waived because it did result wholly or partly by the applicant knowingly making a false statement or false representation or failing or omitting to comply with the Act or the SSA Act (refer s 1237AAD(a) of the Act). That is to say by the applicant failing to notify Centrelink of his receipt of $5055.00 he made a false statement or representation which caused Centrelink to pay him NSA at a greater rate. Additionally he failed to comply with a provision of the Act by failing to declare receipt of those monies. The remaining provisions of s 1237AAD of the Act need not be considered namely, whether there are any special circumstances (b) and if so whether it would be desirable to waive the debt (c) because those subsections need only be considered if (a) applies.
47. In all of the circumstances, having regard to the above findings I would usually decide that the decision under review should be affirmed. That ordinarily is one of the three decisions available in this Tribunal at the completion of a review (refer s 43 of the AAT Act). However, the respondent has applied to have this application dismissed as being frivolous or vexatious under s 42B of the AAT Act. It also seeks consequential Directions if appropriate, that the applicant must not without leave of the Tribunal make any further application with respect to matters under the Act or the SSA Act.

WERE THESE PRECEEDINGS FRIVOLOUS OR VEXATIOUS?

48. Section 42B of the AAT Act records as follows:

42B Power of Tribunal where a proceeding is frivolous or vexatious
(1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a) dismiss the application; and
(b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct 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.
(2) A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.
(3) The Tribunal may discharge or vary such a direction.

49. Of significance the above section permits the Tribunal to decide whether it is satisfied that an application is frivolous or vexatious at any stage of the proceeding.
50. Whether an application is frivolous or vexatious has been the subject of much judicial pronouncement over many years. The language of the legislation considered by courts has differed and on occasions a distinction has been drawn between whether proceedings were in fact vexatious as opposed as to whether they have been instituted vexatiously (refer Re Vernazza [1960] 1 QB 197 at 208 (discussed in Attorney-General v Wentworth (1988) 14 NSWLR 481 (Wentworth)).
51. Order 21 Rule 1 and 2 of the Federal Court Rules provide that a person is a vexatious litigant if that person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian Court. In those circumstances the Court may decide by Order that the proceedings instituted by the person may not be continued without leave and the person may not institute a proceeding without leave.
52. In Wentworth Roden J decided that litigation may be regarded as vexatious either objectively or subjectively. His Honour decided to express the test as to whether litigation can be regarded as vexatious as follows:

1.Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
. . .

53. In NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119 Gray J summarised a number of authorities with respect to the meaning given to the word frivolous and concluded:

23 These authorities make it clear that, in any case in which summary dismissal of a proceeding is sought, the focus must be on whether the case is arguable, and not upon whether it is likely to succeed. Without an opportunity for full argument, the Court cannot determine properly that an argument open to the initiating party in the proceeding should fail. So long as the argument is open, a person bringing a case to court is entitled to have his or her day in court, and to a proper consideration of that case. For this reason, as the authorities show, a case cannot be dismissed as ‘frivolous’ if, on its face, there may be a cause of action disclosed . . .

54. The role and responsibility of this Tribunal differs from the Courts. The Tribunal has an inquisitorial function and when it seeks to, and indeed does obtain material considered to be relevant, it will invite the parties to make comment and give submissions. If a summons is issued and documents are obtained or a person is summonsed to give evidence, those documents will be made available to the parties and the witness who appears under summons can be examined by both parties. An application instituted in this Tribunal to review a decision made by government or one of its agencies is heard de novo. The Tribunal becomes the substitute decision-maker and makes its decision on the material before it at the time that the decision is made. In Shi v Migration Agents Registration Authority [2008] HCA 31 at paragraph 37 His Honour Kirby J said:

But ultimately, it was for the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal's obligation to conduct a true merits review.

55. These proceedings were instituted by the applicant on 14 May 2007. His letter of application sought to appeal the decision made by the SSAT on 9 May 2007. The applicant alleged that the decision was wrong because:
    1. Bias and discrimination; in damaging the neutrality of SAAT [sic] these racists fabricated documents to suit their decision;
    2. Hearsay evidence; and made up hearsay evidence.
    3. Lack of supporting evidence to support claim;
    4. Human rights violations; access by human services under Social Security Act.
56. During the interlocutory stages of this application the respondent applied to have a preliminary hearing to consider whether the application should be dismissed as frivolous or vexatious. I rejected the application preferring to give the applicant the opportunity to review the decision to raise a debt arising out of the overpayment of NSA. Although the grounds of the appeal recited by the applicant (refer above) appear on their face to be absurd, I considered that it was desirable that the applicant be given the opportunity to argue against the finding of an overpayment, it being a decision different to the decision made by the Tribunal (differently constituted) on 12 January 2007 of the applicant having failed to comply with the provisions of the SSA Act (refer Pham and Secretary, Department of Employment and Workplace Relations. [2007] AATA 000015).
57. As may be seen by the provisions of s 42B of the AAT Act (refer above) the Tribunal has the power not only to dismiss an application but directing, if appropriate that the person who made the application must not without leave of the Tribunal make any subsequent application.
58. Decisions of that type, that is, to dismiss an application and direct that a person must not without leave of the Tribunal make any subsequent application, would only be made unless it is clear that there is no real question to be tried because litigants are not to be deprived the right to submit genuine controversies for determination (refer decisions summarised in Paramasivam v Randwick City Council [2005] FCA 369 at paragraph 29). A very useful summary of the operation of s 42B of the AAT Act is found in Singh v Secretary, Department of Employment and Workplace Relations [2006] FCA 1381 (Singh) where at paragraph 49 Weinberg J decided that whilst s 42B of the AAT Act differed from Order 21 of the Federal Court Rules (that is, the Tribunal legislation does not require that the person act habitually and persistently) it was implicit that a Direction under s 42B(1)(b) will not be lightly made and will normally require some element of habitual or persistent conduct (paragraph 49). At paragraph 50 His Honour decided:

. . . In accordance with established authority the Tribunal was entitled to have regard to Mr Singh's entire dealings with Centrelink including his numerous applications to have that decision reviewed.

59. In making the findings which will appear below the principles inherent in the reasoning of His Honour in Singh at paragraph 51 will be honoured namely:

Section 42B(1)(b) must be applied having regard to a fundamental principle of the rule of law. Every person has a right to apply to a tribunal, or a court, to seek remedies in consequence of an alleged infringement of his or her rights. Because a direction given under s 42B(1)(b) denies a person this right, it is a remedy that should not be invoked except in an extreme case. See generally Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378 at 389-91 (per Sackville J).

60. I am satisfied that the applicant was well aware prior to the institution of these proceedings and certainly during the currency of them that the decision made by the SSAT which he cited in his letter of appeal (refer T-documents page 1) was concerned only with the raising of and intention to recover a debt of $1999.42 arising out of an overpayment of NSA by the failure to declare income from the PFT. Despite that knowledge, the applicant did not make any reference to it at all in his application for review. There is nothing to indicate from the language used by him which would indicate any intention on his part to prosecute an appeal in good faith, to properly argue either that a debt should not have been raised or if it was, that it should not be recovered or to seek any other remedy.
61. I am satisfied that at all relevant times the applicant knew of the existence of the Trust, that he was a beneficiary under it and that he had received a distribution from it. Paragraphs 7 and 13 of the Reasons for Decision of the SSAT of 10 August 2006 (T26) confirm that the applicant did advise the SSAT Members that he was aware of a family trust but had then pleaded that he was not aware that any monies had been received, that he could not obtain access to the Trust Deed and alleged breaches of the Privacy Act by Centrelink in undertaking a data match enquiry and receiving information confirming that income from the Trust had been declared by both the Trust and by the applicant in tax returns which had been filed. The Reasons for Decision of the SSAT of 27 April 2007 (T2) record that the evidence of the applicant, then, was that he knew nothing of the PFT, he denied receiving the sum of $5055.00 from it and denied receiving any other distributions. Additionally, he submitted that the documents provided by Centrelink to the SSAT had been fabricated (refer paragraph 7).
62. On review of the history of this and other applications, I do have some considerable doubt whether the applicant has any interest at all in prosecuting a review of a decision made by the SSAT on 27 April 2007 but rather these proceedings have been instituted for a collateral purpose and with the intention of annoying or embarrassing the respondent and Centrelink and a number of other people (refer Wentworth). The applicant did not appear in the appeal that he issued after the first day of hearing when the matter was before Mr Justice Gray on 3 December 2007. He did not appear at a return of summons hearing in this Tribunal on 6 February 2008 when the documents obtained from Ty Sam and Associates were available to him for inspection. The applicant has requested that he be given access to his file on three occasions (2 June 2008, 25 June 2008 and 13 October 2008) and on each occasion he did not attend. On each of those days the District Registrar of this Tribunal allocated a registry officer for the purposes of supervision of the file by the applicant. I note also that the applicant did not appear in an appeal he lodged in proceedings against the University of Queensland (V689/2003) nor did he appear in a Full Court appeal initiated by him arising out of proceedings that he issued in 2003 against Comcare (V135/2003). Whilst the last day of hearing was 23 May 2008 he did not comply with Directions to lodge written submissions until 27 October 2008. On 13 October 2008, when a Directions Hearing was convened, at his request, he did not appear. The failure on each of these occasions of the applicant to appear demonstrates an absence of diligence and perhaps indifference in proceedings initiated by him.
63. On review of the documents lodged and especially of the Transcript, the behaviour of the applicant and his allegations made, often in writing, are both outrageous and absurd. That the allegations frequently made are directed towards (named) high ranking judicial officers is astounding especially when provision of evidence to support the allegations appears, from the applicant's point of view, to be an irrelevance.
64. The allegations made by the applicant are:
    • Bias and judiciary bias – refer appeal notice at T28, p130; decision of a named Federal Court Judge in an appeal lodged by the applicant citing the Human Rights and Equal Opportunity Commission as the respondent (V307/2002); Notice of Appeal against decision of named Tribunal Member in proceedings V2006/838;
    • Racial discrimination – alleged against a named Federal Court Judge (refer T28, p130) and Appeal Notice in proceedings [2007] FCA 947;
    • Allegations of attempt to pervert the course of justice and conspiracy – allegations made against a named Centrelink advocate, the solicitor representing Centrelink, the Victorian Registrar of the AAT and me in Statement of Facts and Contentions at paragraphs 4.2 and 4.10, at paragraph 6 of Exhibit D and in letters to the District Registrar of 3 September 2008 and 26 September 2008; Allegation made against the named Centrelink advocate in the Transcript at page 54 and in the Appeal Notice VID 1017/2007; Similar allegations made against SSAT Members at paragraphs 34 – 37 inclusive of the Statement of Facts and Contentions (Exhibit B);
    • Allegations of fabrication of documents – these allegations have been directed toward me (refer [2007] FCA 2049 and Statement of Facts and Contentions at paragraph 4.2); against a named advocate of Centrelink in proceedings [2007] FCA 2049; allegation that the named Centrelink advocate fabricated a copy of the tax return of the PFT; Allegation of fabrication by a Tribunal Member in a Notice of Appeal (refer additional document 7); by Members of the SSAT at paragraph 26 of Exhibit B and paragraph 15 of Exhibit D; a named Tribunal Member and named officers of Centrelink at paragraphs 5 and 10 of a letter to the District Registrar of 12 December 2006 in application V2006/0838.
65. The conduct of the applicant during the three days of hearing is worthy of mention. The following summary is evident from the transcript:
    • Abusive and inflammatory language;
    • Defamatory accusations (refer especially pp10, 17 and 68);
    • Frequent refusal to answer questions put to him by loudly exclaiming the words objection or relevance;
    • Frequently feigning laughter or mocking the evidence heard or submissions made;
    • Not having his mobile telephone switched off and being asked three times to turn it off (when it rang).
    • Frequently speaking across or interrupting the respondent's representative and being argumentative and disrespectful.
66. Even more breathtaking in the audacious and cowardly allegations made by the applicant has been his use of, or involvement in, a number of websites where scandalous and disgraceful allegations have been made against a number of persons.
67. The respondent alerted the Tribunal (additional document 12) to a web page found within a Google search where a disgraceful and publicly humiliating allegation was made against the Centrelink advocate who initially appeared in these proceedings (refer (deleted by Order dated 19 January 2009)). The applicant himself drew attention to a website, (deleted by Order dated 19 January 2009) in his Statement of Facts and Contentions at paragraph 3.8. The applicant recorded that All documents will be listed and displayed on that web page and that contention follows allegations similar to those recorded above. The applicant was certainly true to his word because his Statement of Facts and Contentions referring to a number of named persons and making a number of allegations as above also continues to exist on a linked site at (deleted by Order dated 19 January 2009)... The reproduction of that document is preceded by what is described as a quote and which is in the following words:

When a system is bent on preventing justice and democracy: judiciary and tribunals fabricate documents and subpoenas . . .

Thereafter my name, the name of the District Registrar and the Centrelink advocate referred to above are recorded.

68. At the same website a Notice of Application to the Federal Court in proceedings 491/2007 is reproduced. That document contains pleadings which make serious and disgusting allegations against a senior judicial officer and the solicitor representing Centrelink. Another Federal Court Judge is named but curiously, the name of the applicant – who is the applicant in these proceedings – is removed from the heading of the reproduced document.
69. In another linked website (deleted by Order dated 19 January 2009)... - a written article appears under the heading How crooked [named senior judicial officers] conspired to pervert justice and conspired to cause injury. The article alleges that three named senior judicial officers conspired to pervert justice by refusing to allow questions of law because of a desire to cover up judicial corruption by the solicitor for Centrelink, Counsel for Centrelink and me. We all are identified by name. Other mindless and insensitive allegations are made against named persons which need not be repeated. Significantly the document concludes We have put the word out that the named solicitor, the named advocate and me, be arrested on sight wherever they go under the Crimes Act for falsifying documents. And we will see if the rest of the [named court] including [named judicial officer] has any respect for the law and justice.
70. Whilst I have not recorded the names of any of the persons against whom the applicant has made allegations, the web addresses referred above can be publicly accessed. I have therefore decided that an Order should be made under s 35(2)(c) of the Administrative Appeals Tribunal Act 1975 –

(i) restricting disclosure of the web addresses referred to in the above paragraphs and be known only to the applicant, the respondent and his representatives and members, officers and staff of the Tribunal; and

(ii) prohibiting disclosure of the web addresses to all other persons.

71. Another matter which caused me and the District Registrar some concern was a memorandum received from an Assistant Security Manager of the building in which the Victorian Registry of the Tribunal is located. On 29 April 2008 the Assistant Security Manager recorded in a memorandum to the District Registrar that she had received a telephone call from a person who identified himself as Charlie Pham indicating that he wanted to make a citizen's arrest against people from the AAT for treason and conspiracy to pervert justice and asked for assistance. He said that he would be arresting Senior Member of Counsel (me) and the (named) Centrelink advocate and the (named) District Registrar. The Assistant Security Manager indicated that she would return his telephone call on his mobile telephone number which is recorded in the memorandum. The number is identical to the mobile telephone number provided by the applicant in this application. On the same date the applicant telephoned the Tribunal and spoke with a registry officer indicating that he intends to execute a citizen's arrest of [me] and others including the respondent at the RH [resumed hearing] 23/5. As a result of that information having been received, it was decided to convene the third day of hearing on 23 May at the Federal Court where security and detection facilities exist and which do not exist at this Tribunal. I am satisfied that those telephone calls were made by the applicant.
72. Having regard to all of the above, I am satisfied the application is frivolous or vexatious and should be dismissed. I acknowledge that only in extreme cases (refer Singh) should such a finding be made. This is such a case. Almost the entirety of the applicant's conduct has been focussed – during the hearing and on occasions between days of hearing and subsequently – with abusing and insulting persons who have a connection to this application. As may be seen from the above, some persons who have had no connection at all have not escaped his attention. Little, if any attention, was given by him to prosecuting the decision under review, despite being given every reasonable opportunity to do so (refer paragraph 60 earlier). The proceedings have had the intention of annoying or embarrassing persons and are so obviously untenable they may be regarded as utterly hopeless (refer Wentworth).
73. I am also satisfied, that it would be appropriate to Direct pursuant to s 42B(1)(b) of the AAT Act that the applicant must not without leave of the Tribunal, make any subsequent application of a kind arising under the Act or the SSA Act.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley,

Senior Member

Signed: Grace Carney, Personal Assistant

Dates of Hearing 15 October 2007, 7 February 2008 and

23 May 2008

Date of Last Submission 24 November 2008

Date of Decision 19 January 2009