Res Judicata applicable to Tribunal proceedings?

Federal Court: AAT was taken to have dismissed application withdrawn under s 42A(1A) of AAT Act: s 42A(1B). AAT notified Appellant of dismissal, who then unsuccessfully applied to AAT for review of dismissal. Appellant then applied once again for review of dismissal, but AAT rejected that application as vexatious and made direction that Appellant must not make a subsequent application for review of delegate's decision without leave of AAT: s 42B. In relation to the s 42B decision & direction, was Appellant entitled to: hearing; natural justice, more generally? Does Res Judicata apply to AAT proceedings?

Although this case did not concern a migration matter, it could have implications for migration matters.

Section 42B of the AAT Act relevantly provided as follows:

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.

The subtitle of this article is a mere simplification of the facts of the case, which were summarised by the Federal Court (FCA) as follows:

4    The applicant was paid New Start Allowance (NSA) from 2001 to 2002. She was paid Disability Support Pension (DSP) from 2002 to 2011. She was paid both benefits at the rates applicable to a single person.

5    On 17 May 2011, the respondent determined that the applicant had been overpaid because she had been a member of a couple since 30 March 2001. The respondent raised debts against the applicant of approximately $9,000 for overpayment of NSA and $146,000 for overpayment of DSP.

6    The applicant sought review of the Department’s decision. On 20 July 2011, an Authorised Review Officer found that the applicant had not been a member of a couple until 14 April 2005 (the ARO decision). The consequence was that the NSA debt was cancelled, but the DSP debt remained.

7    On 1 September 2017, the applicant applied to the Social Services and Child Support Division of the Tribunal for review of the ARO decision. On 15 November 2017, the Tribunal affirmed the decision under review, finding that the applicant had lived in a de facto relationship since at least 14 April 2005 (the First Tribunal Decision).

8    On 28 November 2017, the applicant applied to the Tribunal for review of the First Tribunal Decision. At the hearing on 25 July 2018, the applicant withdrew her application by providing a Notice of Withdrawal form to the Tribunal. Under s 42A(1B) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the Tribunal was then taken to have dismissed the application without proceeding to review the decision.

9    On 26 July 2018, a Tribunal officer wrote to the respondent, copying in the applicant, saying that the Tribunal had received notification from the applicant that she wanted to withdraw her application and that the application was dismissed with effect from 25 July 2018. The letter contained a reference number “2017/7054”.

10    On 14 August 2018, the applicant wrote to the Tribunal seeking to revoke her withdrawal. On 24 August 2018, a Tribunal officer responded stating that a Deputy President had decided that the application would not be reinstated. The Tribunal officer wrote again on the same date saying there was no opportunity for further review. Both letters had the reference number “2017/7054”.

11    On 3 September 2018, the applicant filed an Application for Review of Decision form with the Tribunal. The form asked, “What is the decision you want us to review about?” and required a review number. She identified the decision she wanted reviewed as “2017/7054”. That was apparently a reference to the deemed dismissal of the application to review the First Tribunal Decision upon the withdrawal of the application. In answer to the question, “Why do you claim the decision was wrong?”, the applicant wrote:

Regarding the Notice of Withdrawal form AAT asked me to signed on the listing hearing room on 25/7/2018 AND my application of the appeal with Secretary, Department of Social Services decision of the alleged debts against my name and records.

(Errors in original.)

12    On 24 September 2018, the Tribunal conducted a hearing and then dismissed the application. In its reasons, the Tribunal stated that the applicant’s initial request to revoke the withdrawal had been refused by a Deputy President because, under s 42A(8) of the AAT Act, an applicant cannot seek reinstatement after an application is withdrawn. The Tribunal said that it was unclear whether the applicant now sought to have reviewed her decision to withdraw her application, the dismissal of the application that the Tribunal was taken to have made, or the Tribunal’s refusal to reinstate the application. The Tribunal concluded that, whichever decision the applicant sought to have reviewed, the Tribunal was not empowered under any enactment to review it. The Tribunal dismissed the application pursuant to s 42A(4) on the basis that any decision was not reviewable (the Second Tribunal Decision).

13    On 19 February 2019, the applicant filed a further Application for Review of Decision. She again identified the decision being reviewed as “2017/7054”. In answer to the question, “Why do you claim the decision is wrong?”, the applicant wrote:

I claim last hearing date 25/8/2018 was not just and I did not have a Representative to explain to me about the subsequently I signed the 'Notice of Withdrawal' which I do not understand when I signed the form. I am denying the overpayment benefit from Department of Social Security alleging me owing the debts amount of (as per Department of Social Security records). The decision at my last hearing date above is unjust and not fair. I am suffering quite severe depression over the last hearing decision and even wanting end my life after a telephoned calls from the Debts Collection Department saying I am incurring an interest on top of the amount daily interests subsequently now I was told is approximately $4000 added to my debts amount. I am writing pleading for a fair just decision.

(Errors in the original.)

14    On 1 March 2019, the Tribunal dismissed the application for review of 19 February 2019 as vexatious, pursuant to s 42B(1)(a) of the AAT Act (the Third Tribunal Decision). The Tribunal also made a direction 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 2018 (ie. the First Tribunal Decision). The Tribunal referred to the history of the applicant’s attempts to have the withdrawal rescinded, the Tribunal’s correspondence advising her that the withdrawal could not be rescinded and the making of the Second Tribunal Decision. The Tribunal did not otherwise provide reasons for its decision.

The questions to the FCA were as follows:

Question 1: Was the Tribunal required to afford the Appellant a hearing before making the decision and direction pursuant to s 42B of the AAT Act?

Question 2: If the answer to Question 1 is "no", does that follow that the Tribunal was not required to afford the Appellant procedural fairness, more generally?

Question 3: Was the Tribunal allowed to act "on its own initiative when exercising its power under s 42B(1) of the AAT Act"?

Question 4: Did the doctrine of Res Judicata (or issue estoppel) apply to the applications made by the Appellant to the Tribunal?

The FCA answered those questions as follows:

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