Soames v Secretary, Department of Social Services

Vexatious proceedings order 1 Section 37AO of the Federal Court of Australia Act 1976 (Cth) (the Court Act) provides that: (1) This section applies if the Court is satisfied: (a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or (b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal. (2) The Court may make any or all of the following orders: (a) an order staying or dismissing all or part of any proceedings in the Court already instituted by the person; (b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court; (c) any other order the Court considers appropriate in relation to the person. … (4) The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard. (5) An order made under paragraph (2)(a) or (b) is a final order. (6) For the purposes of subsection (1), the Court may have regard to: (a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and (b) orders made by any Australian court or tribunal; and (c) the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal); including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section. 2 Section 37AM(1) defines relevant terms as follows: Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory. institute, in relation to proceedings, includes: (a) for civil proceedings - the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and (b) for proceedings before a tribunal - the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and (c) for criminal proceedings - the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and (d) for civil or criminal proceedings or proceedings before a tribunal - the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings. proceeding: (a) in relation to a court - has the meaning given by section 4; and (b) in relation to a tribunal - means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding. proceedings of a particular type includes: (a) proceedings in relation to a particular matter; and (b) proceedings against a particular person. vexatious proceeding includes: (a) a proceeding that is an abuse of the process of a court or tribunal; and (b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and (c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and (d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. vexatious proceedings order means an order made under subsection 37AO(2). 3 By s 37AQ(1)(a) of the Court Act, if the Court makes a vexatious proceedings order prohibiting a person from instituting proceedings, or proceedings of a particular type, in the Court, then "the person must not institute proceedings, or proceedings of that type, in the Court without the leave of the Court under section 37AT". 4 On 4 September 2014, I made orders dismissing the substantive proceeding (the present appeal or the fourth FCA appeal), an appeal from a decision of the Administrative Appeals Tribunal (the AAT), on the basis that the appeal raised no question of law (Soames v Secretary, Department of Social Services [2014] FCA 952 (Soames No 1)). By interlocutory application filed on 25 July 2014, the respondent in the substantive proceeding, the Secretary of the Department of Social Services (the Secretary), seeks a vexatious proceedings order pursuant to s 37AO(3)(c) against the appellant, Mr Soames (the vexatious proceedings application). 5 The substantive proceeding was heard on 13 August 2014. On that occasion, I listed the vexatious proceedings application for hearing on 19 September 2014. Although Mr Soames was present at the bar table when I listed the Secretary's application for hearing, he said that he would refuse to appear on the basis that I was "extremely biased" and "corrupt" and that he would not appear in front of me under any circumstances. I made it clear on that occasion that the Secretary's application would be listed even if Mr Soames refused to appear. Mr Soames did not appear when the matter was called on 19 September 2014. I infer that he refused to appear. 6 Mr Soames' allegations of bias and corruption were relied upon by him in various applications for me to recuse myself made during the course of these proceedings. I dismissed each application as being without any foundation (see Soames No 1 at [16] to [25]). For the reasons given in Soames No 1, I am satisfied that Mr Soames' refusal to appear at the hearing of the vexatious proceedings application is without merit. Mr Soames did not otherwise make any application for an adjournment of the hearing of the vexatious proceedings application and has not sought to provide any explanation for his non-attendance. I am satisfied that Mr Soames has had an adequate opportunity to be heard in accordance with s 37AO(4) of the Court Act and that it is appropriate to deal with the application on an ex parte basis. 7 It should be noted that at the hearing of the vexatious proceedings application the Secretary sought leave to make a minor typographical amendment to the application. Given the nature of the proposed amendment, no prejudice could arise to Mr Soames and, accordingly, I granted leave. The Secretary otherwise relied on the Secretary's written submissions. 8 In support of the vexatious proceedings application, the Secretary relied upon the following circumstances. 9 First, Mr Soames has instituted six proceedings in the AAT since 22 March 2011, respectively relating to the cancellation of his disability support pension on 22 March 2011 (referred to in the Secretary's submissions as "the DSP"), four subsequent claims for the disability support pension (made on 9 February, 4 July and 19 September 2012, and 15 April 2013) and an application for the age pension (made on 23 July 2013). Each of the decisions to cancel or refuse Mr Soames' application for the disability support pension or age pension was made on the basis that his assets exceeded the maximum permissible to be eligible for that pension. Importantly, the same assets test applied to each pension although the relevant dates were different. The six AAT proceedings are described in the respondent's submissions as follows: The first AAT proceedings On 22 August 2011, Mr Soames applied to the AAT for a review of the SSAT's decision with respect to the cancellation of his DSP on 22 March 2011, in proceedings 2011/3409 (first AAT proceedings). … On 23 February 2012, the AAT (per Isenberg SM) in the first AAT proceedings affirmed the decision to cancel Mr Soames' DSP with effect from 29 July 2010, in Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 107. … The second AAT proceedings On 27 June 2012, Mr Soames applied to the AAT for a review of the SSAT's decision with respect to his first DSP claim, in proceedings 2012/2686 (second AAT proceedings). The same issue arose in the second AAT proceedings as had been decided in the first AAT proceedings, namely, the disposal of Mr Soames' assets and the effect on his entitlement to the DSP. … On 11 October 2012, the AAT (per Bell SM) in the second AAT proceedings affirmed the SSAT's decision to refuse the first DSP claim, in Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 699. … The third AAT proceedings On 26 November 2012, Mr Soames applied to the AAT for a review of the SSAT's decision with respect to the second DSP claim, in AAT proceedings 2012/5353 (third AAT proceedings). On 3 April 2013, Mr Soames applied to the AAT for a review of the SSAT's decision with respect to the third DSP claim, and his "special benefit" first claim under the Social Security Act, in AAT proceedings 2013/1449 and 2013/1455 respectively. This application for review was joined with the third AA T proceedings. In connection with the second and third DSP claims, the same issue arose in the third AAT proceedings as had been decided in the first and second AAT proceedings. Namely, the disposition of Mr Soames' assets and the effect on his entitlement to the DSP, except for the dates when his assets were examined. … On 8 July 2013, the AAT (per Britton SM) in the third AAT proceedings affirmed the decisions to reject Mr Soames' second and third DSP claims in Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 473. … The fourth AAT proceedings On 16 August 2013, Mr Soames applied to the AAT for a review of the SSAT's decision made on 23 July 2013 in relation to the fourth DSP claim and a second claim for the special benefit, in AAT proceedings 2013/4120 and 2013/4121 (fourth AAT proceedings). ... An issue in the fourth AAT proceedings was the value of Mr Soames' assets on 15 April 2013 in accordance with the assets test, and whether the value of those assets exceeded the cut-off limit for the DSP. The issue in the fourth AAT proceedings, as in the first, second and third AAT proceedings, was not Mr Soames' physical health, or his mental health. Nor was the issue Mr Soames' support of adult and independent family members in Australia and Syria by way of payments and gifts. Rather, the issue was the assets test. On 23 December 2013, the AAT (per Britton SM) in the fourth AAT proceedings dismissed Mr Soames' application for a review of the SSAT's decision, and made a vexatious proceedings order under section 42B(1)(b) of the AAT Act, in Soames v Secretary, Department of Social Services [2013] AATA 945. … The fifth AAT proceedings On 14 January 2014, Mr Soames applied to the AAT for an extension of time to apply for leave to make an application for a review of the SSAT's adverse decision made on 7 November 2013 in relation to the fifth DSP claim, in AAT proceedings 2014/0169 (fifth AAT proceedings). On 7 February 2014, the AAT (per Britton SM) in the fifth AAT proceedings: (a) dismissed Mr Soames' application that Britton SM disqualify herself on the ground of alleged bias; and (b) dismissed his application for a review of the SSAT's adverse decision in relation to the fifth DSP claim, in accordance with the adverse proceedings order made on 23 December 2013 in the fourth AAT proceedings. The sixth AAT proceedings On 25 March 2014, Mr Soames applied to the AAT for leave to make an application for a review of the SSAT's adverse decision made on 12 March 2014 in relation to the age pension, in AAT proceedings 2014/1491 (sixth AAT proceedings). On 30 April 2014, the AAT (per Britton SM and Toohey SM) in the sixth AAT proceedings: (a) dismissed Mr Soames' application that Britton SM disqualify herself on the ground of alleged bias; and (b) refused leave for a review of the SSAT's adverse decision in relation to the age pension, in accordance with the vexatious proceedings order made on 23 December 2013 in the fourth AAT proceedings. 10 Second, Mr Soames has instituted five appeals in this Court, described in the Secretary's submissions in these terms: The first FCA appeal On 7 November 2012, Mr Soames applied to the Federal Court of Australia (FCA) for an extension of time for judicial review of Isenberg SM's decision in the first AAT proceedings, in FCA proceedings 1760 of 2012 (first FCA appeal). Mr Soames' draft Notice of Appeal set out several "questions of law" including: (a) an absence of procedural fairness; (b) that Isenberg SM had a finding of fact contrary to the evidence; and (c) that Isenberg SM was biased. On 23 March 2013, the FCA (per Katzmann J) dismissed the application for an extension of time in the first FCA appeal, with costs, in Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 260. The FCA found, among other things, that Mr Soames' bias claim against Isenberg SM was unsubstantiated. … The second FCA appeal On 30 July 2013, Mr Soames applied to the FCA for judicial review of Britton SM's decision in the third AAT proceedings (with respect to the second and third DSP claims), in FCA proceedings 1543/2013 (second FCA appeal). Among other things, Mr Soames alleged "bad faith" or bias with respect to the AAT member. On 18 September 2013, the FCA (per Buchanan J) dismissed the second FCA appeal with costs in Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 938. The bias claim was also found to have no substance, but was simply a way of "conveying Mr Soames' disagreement with the outcome." Notably, Buchanan J found that Britton SM in the third AAT proceedings did not appear to have given credit for $90,000 accepted as travel and associated expenses for Mr and Mrs Soames' holiday in Syria as an amount for which adequate consideration was given, and therefore was not a disposed asset. When a further credit for $90,000 was taken into account, the disposed assets, on the factual findings of the AAT, should have been regarded as $560,000 and Mr Soames' total assets as $923,241 (not $1,013,241 as found by the AAT). Nevertheless, Buchanan J found that the mathematical error did not ultimately provide a reason to doubt the final conclusion of the AAT about Mr Soames' entitlement to the DSP, because the "cut-off" figure for any DSP to be payable was $835,750. In accordance with the factual findings of the AAT, Mr Soames remained above the cut-off figure by a considerable margin. … The third FCA appeal On 16 January 2014, Mr Soames applied to this Court for a judicial review of Britton SM's decision made on 23 December 2013 in the fourth AAT proceedings (the fourth DSP claim), in FCA proceedings 31 of 2014 (third FCA appeal). On 28 March 2014, the FCA (per Flick J) dismissed the third FCA appeal with costs in Soames v Secretary, Department of Social Services [2014] FCA 295. Flick J found, among other things: (a) that there was no factual foundation to Mr Soames' allegation with respect to various members of the AAT being biased, and engaging in "criminal activities"; and (b) that there had been no error of law with respect to the AAT's vexatious proceedings order regarding Mr Soames. … The fourth FCA appeal On 29 May 2014, Mr Soames commenced his current appeal to this Court for judicial review (fourth FCA appeal) with respect to the AAT's adverse decision on 30 April 2014 in the sixth AAT proceedings. The Secretary contends in this fourth FCA appeal that: (a) the findings of Britton SM and Toohey SM in the sixth AAT proceedings were open to them on the evidence; (b) Britton SM and Toohey SM correctly interpreted the law; and (c) there is no reliable evidence in the sixth AAT proceedings: (1) that Mr Soames was denied procedural fairness (including bias in the legal sense); (2) that the members made a finding of fact that was not supported by the evidence; and (3) that one or both of the members were biased. The fifth FCA appeal On 5 June 2014, Mr Soames applied to the Court for an extension of time to appeal to the Full Federal Court from the judgment of Flick J in the third FCA appeal (fifth FCA appeal). One of Mr Soames' grounds of appeal is that Flick J was biased. On 2 July 2014, Perram J heard Mr Soames' application for an extension of time in the fifth FCA appeal. Judgment is reserved. 11 The conclusions I reached in Soames No 1 about the present appeal, the fourth FCA appeal, are consistent with the Secretary's submissions. As to the fifth FCA appeal, on 1 October 2014 Perram J dismissed Mr Soames application for leave to appeal out of time, finding that it was "devoid of merit and… an abuse of process" (Soames v Secretary, Department of Social Services [2014] FCA 1054 at [26]). 12 According to the Secretary, Mr Soames has repeatedly instituted proceedings which are "vexatious proceedings" by reason of being an abuse of process and/or without reasonable ground, with the consequence that in the proper exercise of discretion a vexatious proceedings order ought to be made against him. The Secretary identified the following principles of relevance to these contentions: Abuse of process … The concept of an abuse of process is a broad one and the circumstances in which the Court will conclude that a proceeding, or a step in a proceeding, is an abuse of process are extremely varied [Manolakis v Carter [2009] FCA 483 at [24]-[25]]. Although the categories of abuse of procedure remain open, McHugh J stated in [Rogers v The Queen (1994) 181 CLR 251] at 286 that abuses of procedure usually fall into one of three categories: (a) the court's procedures are invoked for an illegitimate purpose; (b) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (c) the use of the court's procedures would bring the administration of justice into disrepute. Continual attempts by applicants to re-litigate matters already determined against them on a number of occasions both in the Court and in other courts constitute a clear abuse of process [Horvath v Commonwealth Bank of Australia [1999] FCA 504 at [98]-[105]]. Mr Soames' application is also an 'abuse of process' as explained in Seidler v University of New South Wales (No 3) [2011] FCA 1330 [(at [1])]: "they [the proceedings in Seidler] were an abuse of process because their subject matter had already been dealt with and rejected…". As in Seidler, Mr Soames clearly demonstrates "a refusal on the part of a litigant to accept the principle of finality of litigation" [Seidler at [13]]. The court said in Seidler [(at [13])]: "a refusal to accept the outcome of a case by the commencement of fresh proceedings initiated as if the original, but unsuccessful, proceedings had never occurred is an indicator that protective intervention by the court may be necessary". Mr Soames' history of proceedings in the SSAT, the AAT and in this Court with respect to his DSP and age pension claims satisfy the "abuse of process" criterion in section 37AM(1). … Lack of reasonable grounds … There are endless possibilities as to what constitutes lack of reasonable grounds [Soden v Kowalski [2011] FCA 318]. One example is where issues have previously been determined and the institution of a subsequent proceeding in respect of the same subject matter generally indicates a lack of reasonable grounds [Jones Lang Lasalle (Qld) Pty Ltd v Dart [2005] FCA 1614 at [31] per Kiefel J; and Granich & Associates v Yap [2004] FCA 1567 per French J]. In other words, where the litigant refuses "to understand the principles of finality of litigation" [Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398(Gargan No 2) at [6]]. It has been held that, in considering whether or not proceedings brought in the Court are vexatious, regard may be had to proceedings in other courts (and tribunals) where there has been an earlier authoritative determination of an issue sought to be litigated in the Court [National Australia Bank Ltd v Freeman [2005] FCA 1895 at [24] per Spender J]. Mr Soames' history of proceedings in the SSAT, the AAT and in this Court with respect to his DSP and age pension claims satisfy the "without reasonable grounds" criterion in the definition of "vexatious proceeding" in section 37AM(1). 13 I accept these contentions. Although the application the subject of the present appeal was Mr Soames' only application for an age pension, eligibility for both the disability support pension and the age pension is subject to the assets test in Module G to s 1064 of the Social Security Act 1991 (Cth). Mr Soames repeatedly failed the assets test in respect of his claim for the disability support pension since Centrelink cancelled it in March 2011, there being no material or relevant change in his assets since March 2011. Mr Soames' challenges to each of the decisions cancelling or refusing his claims for the disability support pension and age pension were based on the same substantive contention, that the March 2011 assessment was wrong, and collateral contentions (uniformly held to be devoid of substance) that relevant decision makers, tribunal members, judicial officers and others had acted with bias or impropriety or had otherwise denied him procedural fairness. Mr Soames' application in the AAT for leave to seek review of the decisions in respect of his eligibility for the age pension was based on the same allegations, both substantive and procedural, which he had made on numerous occasions before both the AAT and this Court and which were rejected on each occasion. The only new material upon which Mr Soames sought to rely in the sixth AAT proceedings was irrelevant to the application of the assets test which was the only substantive issue. For these reasons, each of the proceedings the respondent identified, including the present appeal, were proceedings commenced without reasonable grounds and an abuse of process and, accordingly, were vexatious proceedings within the meaning of s 37AM(1)(a) and (c) of the Court Act. As a result, it is unnecessary to consider whether any or all of the proceedings also fall within s 37AM(b) and (d) of the Court Act (proceedings instituted or conducted so as to harass or annoy, or for another wrongful purpose). 14 The respondent also identified the following important principles: The purpose of the power given under section 37AO(2) is to reinforce the power of the Court to protect its own processes against unwarranted abuse of its time and resources and to avoid loss to those who have to face actions that lack substance. In [Ramsey v Skyring (1999) 164 ALR 378; [1999] FCA 907], Sackville J at [67] elaborated on the above principle stating that: The cost to the court system and the community of litigants who refuse to accept that a point has been decided authoritatively against them, or who are otherwise determined to pursue hopeless courses in the courts, can be very high. Such litigants are often immune to costs orders and exempt from paying the court fees which other litigants must meet. However, "an order under section 37AO(2) of the FCA Act will not lightly be made because of its serious impact on the right of access to the courts of this country". Section 37AO(2) must be applied having regard to the fundamental principle that every person has a right of access to the Court to seek remedies consequential upon an alleged infringement of his or her rights. An order that denies a person access to the Court is a serious matter. The Court should still consider whether, as a matter of discretion, an order should be made. Finally, once it is concluded that the court's power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will indicate - although not determine - the risk or level of "vexatiousness". On the other hand, the manner in which a litigant conducts himself or herself in their affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398, it was said [(at [4])]: …as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this court or in other Australian courts. 15 The respondent submitted that: In Mr Soames' case, he habitually and persistently brought proceedings in the SSAT, the AAT and in the FCA with respect to the same issues. This is relevant to the exercise of the Court's discretion. A litigant's conduct will be habitual where the commencement of proceedings occurs as a matter of course, or almost automatically [Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492]. Persistence, "on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field" [Gargan No 2 at [8]]. 16 I accept these submissions. 17 I am satisfied that Mr Soames has frequently instituted and conducted vexatious proceedings in Australian courts and tribunals relating to his eligibility for social services, in the form of pensions, disputing the assessment of his assets in March 2011 under the applicable statutory assets test. In so doing, he has repeatedly sought, without any reasonable prospect of success or, indeed, any apparent factual basis, to re-litigate matters which have been finally determined and is likely to continue to do so in the future. A vexatious proceedings order should be made against Mr Soames in terms substantially the same as the equivalent orders made by the AAT on 23 December 2013. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.