Harris and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 189 (19 March 2010)

Last Updated: 20 April 2010

Administrative Appeals Tribunal
REASONS FOR ORDER [2010] AATA 189

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2280 & 2009/2715

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KERYL HARRIS

Applicant

And

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

Respondent

REASONS FOR ORDER

19 March 2010

Deputy President S D Hotop

INTRODUCTION

1. On 18 February 2010 I made an order in these applications in the following terms:

“ The Tribunal is satisfied that these applications have, since they were made, become frivolous on the ground that they cannot now serve any useful purpose.
Accordingly, the Tribunal dismisses these applications pursuant to section 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).”

On that occasion I briefly stated my reasons orally for making that order.

2. On 8 March 2010 the Tribunal Registry received a written request from the applicant, Keryl Harris, for a statement in writing of the reasons of the Tribunal for making the abovementioned order.
3. A statement of my reasons for making that order follows.

RELEVANT FACTUAL BACKGROUND

4. The following relevant background facts appear from the “T Documents” (T1–T22), “Supplementary T Documents” (ST1–ST10), Exhibits R1–R3 lodged by the respondent, and the relevant Tribunal Registry files.
5. The applicant was granted disability support pension (“DSP”) under the Social Security Act 1991 (Cth) (“the Act”) with effect from 19 May 2006. (T7, p 266)
6. On 19 November 2008 a Centrelink officer decided to suspend the applicant’s DSP with effect from 20 November 2008. That decision was affirmed by an Authorised Review Officer (“ARO”) on 22 December 2008. (T13, T14, T16)
7. On 10 March 2009 the Social Security Appeals Tribunal (“SSAT”) varied the ARO’s decision by determining that the applicant’s DSP was suspended with effect from 27 November 2008. (T2A)
8. Meanwhile on 5 February 2009 a Centrelink officer had decided to cancel the applicant’s DSP with effect from 20 November 2008. On 11 May 2009, however, that decision was varied by an ARO who determined that the applicant’s DSP was cancelled with effect form 27 November 2008. (T17, T19)
9. On 2 June 2009 the SSAT affirmed the ARO’s decision of 11 May 2009. (T2B)
10. On 25 May 2009 the applicant lodged with this Tribunal an application for review of the abovementioned decision of the SSAT, dated 10 March 2009, regarding the suspension of her DSP, together with an application for an extension of time for lodging that application for review. On 28 May 2009 I made an order granting the necessary extension of time.
11. On 16 June 2009 the applicant lodged with this Tribunal an application for review of the abovementioned decision of the SSAT, dated 2 June 2009, regarding the cancellation of her DSP.
12. On 3 August 2009, however, a Centrelink officer determined, following a review of the applicant’s Centrelink file, that the applicant had at all material times remained qualified for DSP, and the officer accordingly decided that the applicant’s DSP payments be resumed and that all arrears of DSP payments be paid to her in full. That decision was implemented on 6 and 7 August 2009. (ST8, ST9)
13. At a directions hearing held on 27 October 2009 the respondent’s representative made an application for dismissal of the applicant’s applications for review under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).
14. At an interlocutory hearing held on 3 December 2009 for the purpose of considering the respondent’s abovementioned application for dismissal, I made an order refusing that application. I did so because I was not then satisfied, on the basis of the documentation provided by the respondent, that the applications for review had become frivolous or vexatious.
15. On 11 February 2010 the respondent filed written submissions and further documentation in support of a fresh application for dismissal of the applicant’s applications for review under s 42B(1) of the AAT Act.
16. At an interlocutory hearing held on 18 February 2010 I was satisfied, on the basis of the additional documentation provided by the respondent (Exhibits R2 and R3), that the applicant’s applications for review had become frivolous and I made an order dismissing those applications for review under s 42B(1) of the AAT Act (see paragraph 1 above).

THE RELEVANT LEGISLATION

17. Section 42B of the AAT Act relevantly provides:

“ 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
...”

18. Sections 126 and 180 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) relevantly provide:

“ 126 Review of decisions by Secretary
(1) The Secretary may review:
(a) subject to subsection (2), a decision of an officer under the social security law; or
...
if the Secretary is satisfied that there is sufficient reason to review the decision.
(2) The Secretary may review a decision:
(a) whether or not any person has applied for review of the decision; and
(b) even though an application has been made to the Social Security Appeals Tribunal or the Administrative Appeals Tribunal for review of the decision.
(3) The Secretary may:
(a) affirm a decision; or
(b) vary a decision; or
(c) set a decision aside and substitute a new decision.
...”
“ 180 Variation of decision before AAT review completed
(1) If an officer varies a decision after an application has been made to the AAT for review of that decision but before the determination of the application, the application is to be treated as if:
(a) the decision as varied had been affirmed by the SSAT; and
(b) the application were an application for review of the decision as varied.
(2) If an officer sets a decision aside and substitutes a new decision after an application has been made to the AAT for review of the original decision but before the determination of the application, the application is to be treated as if:
(a) the SSAT had set aside the original decision and substituted the new decision; and
(b) the application were an application for review of the new decision.
(3) If:
(a) a person applies to the AAT for review of a decision; and
(b) before determination of the application, an officer varies the decision or sets the decision aside and substitutes a new decision;
the applicant may, instead of proceeding with the application under subsection (1) or (2), withdraw the application.”

REASONS FOR DISMISSING THE APPLICATIONS FOR REVIEW

19. An application for review may be dismissed pursuant to s 42B(1) of the AAT Act if the application is futile or inutile because the Tribunal is unable to make a decision which will provide the applicant with any greater benefit, or which will otherwise be more favourable to the applicant, than the decision under review: Re Bergen and Secretary, Department of Social Security [1994] AATA 275; (1994) 36 ALD 717. An application for review, although not futile or inutile when it was made, may nevertheless subsequently become futile or inutile by reason of a change of circumstances: Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366.
20. In the present case, although neither of the applicant’s applications for review was futile or inutile when it was made, each of them subsequently became futile or inutile by reason of the Centrelink officer’s decision of 3 August 2009 and the operation of s 180(2) of the Administration Act. More specifically, the effect of the officer’s decision of 3 August 2009 was to set aside the earlier decisions to suspend and cancel the applicant’s DSP and to substitute a new decision that:
    • the applicant had at all material times remained qualified for DSP;
    • the applicant’s DSP payments be resumed forthwith; and
    • all arrears of DSP payments be paid forthwith to the applicant in full (see paragraph 12 above).

By reason of s 180(2) of the Administration Act each of the applicant’s applications for review is to be treated as if:

• the SSAT had set aside the original decision and substituted a decision in terms of the decision of 3 August 2009 (“the substituted decision”); and
• the application were an application for review of the substituted decision.

21. If the Tribunal were to review the substituted decision, it would not be able to make a decision providing the applicant with any greater benefit, or otherwise make a decision more favourable to the applicant, than that decision. Accordingly, for the Tribunal to proceed to review the substituted decision would be futile and would serve no useful purpose. As the Tribunal (Deputy President Forrest) said in Re Frazzetto and Australian and Overseas Telecommunications Corporation (1994) 19 AAR 174 at 177:

“ The proceedings have been rendered abortive by the further determination. The only course open to the Tribunal appears to be to dismiss the proceedings pursuant to s 42B of the Act. Although the application was not frivolous when it was made to the Tribunal, maintaining it now after the further determination would be so because if the application were to proceed to a hearing on the merits, any decision made by the Tribunal would not provide any more to the applicant than the terms of the further determination. As the Tribunal (Deputy President Thompson) observed in Hewett and Australian Postal Corporation (unreported, No 9099, 29 October 1993);
‘ Although the application was not frivolous when it was made, maintaining it now after the determination has been varied is frivolous. It is frivolous because continuation of the proceedings would involve considerable expenditure of public moneys as well as causing the parties themselves to incur considerable costs in a situation where at the end of the hearing the Tribunal could not make a decision more favourable to the applicant than the determination as now varied.’
...”

22. In the course of the interlocutory hearing the applicant, when asked why she wished to maintain her applications for review following the making of the decision of 3 August 2009 and its implementation, said that she had previously complained to the Ombudsman about Centrelink’s handling of her case but the Ombudsman had refused to investigate her complaint, and that a decision by the Tribunal in her favour might cause the Ombudsman to investigate her complaint. The applicant’s stated reason for wishing to maintain her applications for review indicated, in my opinion, that she was seeking to maintain those applications solely for a collateral purpose – that is, a purpose other than the appropriate purpose of seeking a merits review by the Tribunal of the substituted decision. In my opinion that collateral purpose provided a further basis on which her applications for review might be regarded as having become “frivolous or vexatious” within the meaning of s 42B(1) of the AAT Act: Re McWilliam and Civil Aviation Safety Authority [2004] AATA 908; (2004) 82 ALD 648 at 652.
23. Having regard to the abovementioned considerations, I was satisfied that the applicant’s applications for review had become “frivolous”, within the meaning of s 42B(1) of the AAT Act, and that each of those applications should be dismissed pursuant to s 42B(1)(a) of the AAT Act.
    

..........................................

Deputy President