Soames v Secretary, Department of Social Services

Federal Court of Australia|2014-09-04|Before: Jagot J

The matters 1 These reasons for judgment concern the first of two related matters. The first matter is Mr Soames' appeal from an order of the Administrative Appeals Tribunal (the AAT) refusing his application for leave to apply for review of a decision made by Centrelink and affirmed by the Social Security Appeals Tribunal (the SSAT) rejecting Mr Soames' claim for an age pension on the ground that his assets exceeded the "asset value limit" by which eligibility for the age pension is determined. 2 By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) such an appeal may only be on a question of law. 3 The second matter is the respondent's interlocutory application filed 25 July 2014 that Mr Soames be the subject of a vexatious proceedings order under s 37AO of the Federal Court of Australia Act 1976 (Cth) (the Court Act). 4 Although s 37AO(2)(a) of the Court Act allows the Court to make an order staying or dismissing any proceeding "already instituted by" a person, the respondent acknowledged that Mr Soames had not had an adequate opportunity to consider the three volumes of material it provided to him in support of the application for a vexatious proceedings order. 5 Accordingly, I listed the respondent's interlocutory application for hearing on 19 September 2014 and made directions giving Mr Soames an opportunity to file and serve any evidence on which he wishes to rely in respect of that application. I informed the parties that only Mr Soames' appeal from the AAT would be dealt with and that, from the three volumes of material, only documents 1.1 to 1.8, which were documents before the AAT, would be admitted into evidence, the balance of the material relating solely to the respondent's interlocutory application fixed for hearing on 19 September 2014.

The AAT's orders 6 On 23 December 2013 the AAT made an order in these terms following an application for review by Mr Soames which was dismissed (Soames and Secretary, Department of Social Services [2013] AATA 945): 3. Pursuant to s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) without leave of the Tribunal Mr Soames must not: (i) Make an application to the Administrative Appeals Tribunal for review of a decision made by the Social Security Appeals Tribunal relating to a claim for disability support pension, (ii) Make an application to the Administrative Appeals Tribunal for review of a decision made by the Social Security Appeals Tribunal relating to a claim made before 1 July 2014, for age pension, or any other social security pension or allowance, subject to same, or similar, asset value limit as applies to the age pension under the Social Security Act 1991 (Cth), (iii) Make an application to the Administrative Appeals Tribunal for review of a decision made by the Social Security Appeals Tribunal relating to a claim made before 21 December 2015 for special benefit or any other social security pension or allowance, which is subject to the same, or similar asset value limit, as applies to special benefit under the Social Security Act 1991 (Cth). 7 Mr Soames applied for leave of the AAT on 25 March 2014 to review a decision of the SSAT on 12 March 2014 affirming a decision of Centrelink rejecting Mr Soames' application for an age pension. The AAT, as noted, refused this application for leave on 30 April 2014 (Soames and Secretary, Department of Social Services [2014] AATA 258). Mr Soames' appeal relates to this refusal of leave. 8 The AAT's reasons for refusing Mr Soames' application for leave record that (at [5]): By letter dated 25 March 2014, Mr Soames sought review of the SSAT's decision by this Tribunal. He asked that a member other than SM Britton deal with his case on the basis that she had been biased and had "manipulated" evidence previously put before the Tribunal. He maintained she had failed to deal with certain evidence and had "concealed" other evidence. 9 The AAT observed at [9] that: On 16 April 2014 the Tribunal, constituted by SM Britton and SM Toohey, convened a hearing to determine: (i) whether SM Britton should disqualify herself from determining whether Mr Soames should be granted leave to make his application for review; and (ii) whether Mr Soames should be granted leave to make his application for review. 10 In respect of the first issue, the application for Senior Member Britton to disqualify herself, the AAT said: 10. At the hearing, Mr Soames maintained the allegations set out in his letter of 25 March 2014 and made further allegations of corruption and misconduct by SM Britton, other members of the Tribunal, judges of the Federal Court, and staff of the Tribunal and Centrelink. 11. Mr Soames' allegations were essentially the same as those made at a hearing before SM Britton on 7 February 2014 when he sought an extension of time to lodge an application with the Tribunal. In written reasons for decision (Re Soames and Secretary, Department of Social Services [2014] AATA 133), SM Britton outlined Mr Soames' allegations which included that she had "demonstrated extreme malicious and bias" and had aided and abetted various crimes committed by various public officers, and that members of the Federal Court had abused his human rights and been party to "a gross miscarriage of justice". SM Britton said she did not accept the "colourful, wide ranging and unsubstantiated allegations" made by Mr Soames. She said there was "no evidence to support a finding of actual bias on [her] part and nor was there any basis on which it could be said that a fair-minded lay observer versed in the relevant principles and knowing the relevant facts might reasonably apprehend that [she] would not bring an impartial and unprejudiced mind to determining his application": at [14]. 12. Mr Soames continues to make wide ranging allegations against SM Britton and others. He has not presented any evidence to support his allegations. Essentially, his grievance appears to be that he has not received a favourable decision but the fact that a decision goes against a person is not itself evidence of bias, actual or apprehended. 13. In our view, Mr Soames' allegation of actual bias by SM Britton is unfounded. Nor are we satisfied that an allegation of apprehended bias can be made out. There are no grounds on which SM Britton should disqualify herself from hearing his application for leave to apply for review. 11 In respect of the second issue, whether Mr Soames should be granted leave to apply for review, the AAT said: 14. Mr Soames disputes the determination that, when he applied for the age pension on 20 October 2013, his assets exceeded the relevant asset value limit. Put simply, his assets were calculated to include the value of assets he had disposed of by way of the purchase of a house in Syria and gifts to members of his family. Mr Soames maintains that the house, which is in his name only, is in fact jointly held with his wife and says only half of its value should be attributed to him. He disputes the characterisation of other transactions as gifts to members of his family. 15. These matters have been the subject of decisions by the SSAT and this Tribunal, and were considered a month ago by the Federal Court (Soames v Secretary, Department of Social Services [2014] FCA 295). Mr Soames has not presented any new evidence, or made any new submission, that might suggest that his assets were calculated incorrectly for the purposes of assessing his entitlement to age pension on 20 October 2013. 16. Mr Soames was invited several times by the Tribunal to present any evidence that he had not previously put before Centrelink, the SSAT, this Tribunal or the Federal Court. When pressed, he offered the following: (i) a large folder of invoices and receipts for household accounts, travel expenses, phone bills and the like between December 2010 and December 2012, all of which he agreed were regular household expenses; (ii) statutory declarations signed by his wife dated 17 October 2012, 22 July 2013 and 6 November 2013 each of which he has submitted previously; (iii) a statutory declaration by his son dated 31 October 2013 to the effect that he requires Mr Soames' support because of his physical and psychological disabilities; (iv) a letter from Centrelink dated 29 March 2012; (v) a certificate of currency for three motor vehicles; (vi) documents concerning his business partnership with his wife. 17. None of the documents referred to by Mr Soames assists in determining the value of his assets at 20 October 2013. While some of the documents concerning household expenses appear not to have been submitted previously, they have no bearing on the value of Mr Soames' assets at the relevant time. The statutory declarations signed by his wife and documents concerning the business partnership have been considered previously. The statutory declaration from his son has no bearing on the value of his assets at the relevant time and nor do the letter from Centrelink and the certificate of currency for the motor vehicles. 18. Mr Soames continues to be dissatisfied with the calculation of the value of his assets at the relevant time but he has presented no new evidence to suggest that any error was made in that calculation. We accept that Mr Soames finds himself in difficult financial circumstances but hardship, whether financial or otherwise, does not affect the determination of the value of a person's assets for the purposes of social security payments. 19. Mr Soames' application for leave to apply for review is refused.

Before the appeal was heard 12 Before the appeal was heard Mr Soames made a series of applications. 13 First, he claimed that through the fraudulent conduct of numerous people he had been improperly denied legal aid and legal representation and that, as a result, any hearing would be unfair. Mr Soames said he could not and would not proceed without legal representation. I took this to be an application for an adjournment of the hearing of the appeal to enable Mr Soames to obtain legal representation by means of an order of the Court to that effect. 14 I refused this application. As Flick J said in Soames v Secretary, Department of Social Services [2014] FCA 295 at [53] in respect of a similar submission from Mr Soames that the AAT denied him procedural fairness by his lack of legal representation: The right to legal representation in criminal proceedings (Dietrich v The Queen (1992) 177 CLR 292), it should be noted, does not extend such that there is a denial of procedural fairness in an administrative proceeding if legal representation is not provided: Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265 at [28-36], (2000) 101 FCR 20 at 27 - 29; per Sackville, Marshall and Lehane JJ. See also: Daw v Minister for Immigration & Citizenship [2012] FCA 705 at [25] per Edmonds J. (Affirmed: Daw v Minister for Immigration and Citizenship [2012] FCAFC 123); Herring v Minister for Immigration and Citizenship [2012] FCA 970 at [21]. 15 Further, the hearing was fixed during the directions hearing on 1 July 2014 which Mr Soames attended. For the reasons given below, Mr Soames' appeal is also without substantive merit. In these circumstances, an adjournment of the hearing would be inappropriate. 16 Mr Soames then submitted that I should disqualify myself on the grounds that I was "extremely biased" and "corrupt" and that I had demonstrated this by reason of my refusal to disqualify myself during the directions hearing on 1 July 2014 and by other unspecified conduct on or about 6 February 2013. 17 Mr Soames had also asked me to disqualify myself on 1 July 2014. I refused his request on that day giving these oral reasons: The applicant, Mr Soames, has made an oral application to me this morning that I disqualify myself from hearing his matter, on the basis that I have previously displayed what he described as "extreme bias" in respect of his matters. He says that, on 6 February 2012 [sic - 2013], I, perhaps along with another Judge of this Court, Katzmann J, directed the registry not to accept the filing of a document by him seeking certain orders of the Court, and that this matter relates to the same subject matter as that previous proceeding, which he was not permitted to file. Assuming that I did direct the registry not to accept some proceeding for filing by Mr Soames, that would have been done pursuant to the rules of the Court that contemplate such a direction. In any event, it does not demonstrate any possibility that a reasonable person might consider that I might not bring an impartial and independent mind to bear upon the present application. The present application, insofar as I can identify it on the basis of the few documents that have been filed, seeks an order for reinstatement of a disability pension, being styled, though, an appeal from a decision of the Administrative Appeals Tribunal dated 30 April 2014, at which time the Tribunal apparently decided to cancel Mr Soames' disability pension. As far as I can ascertain, the decision of the Tribunal was made by Senior Member Britton and Senior Member Toohey, although, at this stage, I do not have a copy of their decision. The parameters for dealing with such an appeal are fixed by section 44 of the Administrative Appeals Tribunal Act. An appeal is permitted only on a question of law. The grounds relied upon by Mr Soames are three in number: a contention of absence of procedural fairness and natural justice; a contention that the Tribunal made a finding of fact contrary to the evidence; and a contention that the member, or perhaps members, were "extremely biased". I can see no basis whatsoever upon which a reasonable person might consider that I might not bring an impartial mind to bear upon this present appeal, which relates to a decision on 30 April 2014, irrespective of whatever direction I might have made to the Registrar of the Court on or about 6 February 2012 [sic - 2013]. Accordingly, the applicant's application that I disqualify myself is dismissed, and I refuse to do so. 18 Subsequent inquiry shows that on 6 February 2013 I made the following order in respect of an interlocutory application (proceeding NSD 1760/2012) filed by Mr Soames: The applicant's interlocutory application seeking a stay of the order of the Administrative Appeals Tribunal of 23 February 2012 and reinstatement of the applicant's disability pension not be accepted for filing. 19 This order was made pursuant to rr 1.37 and 2.26 of the Federal Court of Australia Rules 2011 (Cth) which provide as follows: 1.37 The Court may direct a Registrar to do, or not to do, an act or thing. 2.26 A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious: (a) on the face of the document; or (b) by reference to any documents already filed or submitted for filing with the document. 20 While it was not necessary for any reasons to be given for such an order, as Mr Soames raised the issue before me during the hearing and specifically requested reasons, it is appropriate that I record that I was satisfied that the interlocutory application was frivolous and vexatious on its face. The application in question was made nearly a year after the decision of the Administrative Appeals Tribunal. The case in this Court referred to in paragraph 1 of the application was for an extension of time (see Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 260). The interlocutory application, if granted, would have circumvented the hearing of the application for extension of time. The decision of the AAT sought to be stayed affirmed a decision of Centrelink to cancel Mr Soames' pension. As such, there was nothing to stay. Even if Mr Soames had succeeded in both obtaining an extension of time and on an appeal limited to a question of law, the best outcome he could have hoped for was a setting aside of the decision of the AAT and the remittal of the matter to the AAT for determination in accordance with law. He could not have obtained an order for reinstatement of his pension from this Court. For these reasons the interlocutory application was patently frivolous and vexatious. 21 During the hearing on 13 August 2014 I rejected Mr Soames further application for me to disqualify myself. Mr Soames' allegations of actual and apprehended bias are unfounded and based on nothing more than his dislike of decisions made contrary to his wishes. The allegations of actual bias are scandalous and improper. The allegations of apprehended bias fail to disclose any basis upon which it could be concluded that "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide" (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]). 22 Mr Soames requested that I immediately provide written reasons for my decision on 13 August 2014 not to disqualify myself, as well as written reasons for the decision to the same effect on 1 July 2014 and in respect of the unspecified conduct on 6 February 2013. I explained to Mr Soames that I could not immediately provide written reasons for the decision just given but that written reasons for that decision would be included in the reasons for judgment concerning the appeal. I indicated also that Mr Soames would be able to obtain a copy of the transcript of the directions hearing on 1 July 2014 if he so wished. He responded that he could not afford to purchase the transcript. The written reasons for my decision of 1 July 2014 not to disqualify myself are set out above. Insofar as 6 February 2013 is concerned I also refer to the matters set out above. 23 Mr Soames next indicated that because of my bias and corruption against him, he withdrew from the hearing and refused to proceed with his appeal before me. I informed Mr Soames, who remained at the bar table, about rules 33.32 and 33.33 of the Federal Court Rules 2011 which provide as follows: 33.32 (1) A respondent to an appeal may apply to the Court for an order that the appeal be dismissed for the failure by the applicant for the appeal to do any of the following: (a) comply with a direction of the Court; (b) comply with these rules; (c) attend a hearing relating to the appeal; (d) prosecute the appeal. (2) An application under subrule (1) must be served on the applicant: (a) at the applicant's address for service; or (a) personally. 33.33 (1) If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that: (a) if the absent party is the applicant to the appeal: (i) the appeal be dismissed; or (ii) the hearing be adjourned; or (b) if the absent party is the respondent to the appeal: (i) the hearing proceed generally or in relation to a particular claim for relief in the appeal; or (ii) the hearing be adjourned. (2) If an appeal is dismissed because the applicant to the appeal was absent, the applicant may apply to the Court for an order: (a) to set aside the dismissal; and (b) for the further conduct of the appeal. 24 I note also that rule 1.40 provides that: The Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding: (a) on its own initiative; or (b) on the application of a party, or a person who has a sufficient interest in the proceeding. 25 I pointed out to Mr Soames that although no application had been personally served on him as set out in rule 33.32(2) I could waive compliance with that requirement (rule 1.34 states that the "Court may dispense with compliance with any of these Rules, either before or after the occasion for compliance arises"). I also pointed out that if he refused to proceed he would be taken not to be prosecuting his appeal and, although he remained present in Court, his withdrawal amounted to his effective absence when the appeal was ready to be called on for hearing. The respondent invited Mr Soames to reconsider his withdrawal and refusal to proceed, which Mr Soames rejected repeating his allegations of corruption and bias, and then sought dismissal of the appeal on both bases. I indicated that, in the circumstances, I would reserve my decision so that any orders could be made at the same time as the provision of written reasons to the parties. 26 Mr Soames' withdrawal and refusal to proceed with the hearing of his appeal was without merit. He had not received decisions in his favour on his earlier applications and, accordingly, may be inferred to have sought to thwart the processes of the Court by simply refusing to prosecute his appeal. As noted, the appeal was fixed for hearing on 1 July 2014. Directions were made to enable the hearing to proceed. Mr Soames was in attendance on that date. He appeared at the hearing but, apparently, on the basis that if he did not obtain the orders he wanted, for an adjournment, for legal representation and for my disqualification from hearing the matter, he would refuse to proceed further. Mr Soames' conduct constitutes an abuse of the processes of the Court. It would be unjust to the respondent and contrary to the proper administration of justice to facilitate Mr Soames' desire to thwart the proper resolution of his appeal. It follows that I am satisfied that Mr Soames' appeal should be dismissed by reason of his failure to prosecute the appeal and to appear at the time the appeal was called on for hearing. 27 For the reasons given below, I am also satisfied that the appeal is without substantive merit and should also be dismissed on that basis.

The merits of the appeal 28 In his notice of appeal, Mr Soames identifies the following questions said to be questions of law: 1. I rely on previous grounds which have been filed on previous case in front of His Honour Justice Flick and Justice _____ because they dismissed the case without dealing with all the evidence. 2. The principle of justice has been abused in many ways at the hearing. More details will give with affidavit. 3. She has concealed an enormous amount of evidence which was vital and relevant to the case and she didn't use it, and hidden the evidence. 4. At the hearing she was pushy and interruptive while I was giving evidence in a very rude and aggressive manner. 5. For one and a half years, she has always been acting contrary to the evidence, in principle of justice and against human rights. 6. She acted in double standards for her ability to be involved in the case. 7. She has denied me the right to examine the two lawyers of Centrelink after she has full knowledge and evidence of documentation related to purchase of a house. They have made many false evidence to set you up and cost me my pension and they have recharged old evidence and she gave me them full support and they did not allow me to examine or bring them to court for examination. 8. She has manipulated and discharged all evidence available to her, taking advantage of my disability. 9. I have requested myself on three occasions to discharge her from the case after extreme bias and she constantly refused without allowing me to give her reasons, constantly interrupting. 10. She has taken my pension on false and fabricated evidence and mischarged all evidence and left me in sixty six years, with no income or means of surviving without medication. 29 Question 1 refers to previous grounds raised in other appeals before Flick J and another unidentified judge. The respondent has identified that Flick J determined the matter of Soames v Secretary, Department of Social Services [2014] FCA 295 (being the appeal from Soames and Secretary, Department of Social Services [2013] AATA 945, referred to above). In Soames v Secretary, Department of Social Services [2014] FCA 295 at [19] Flick J recorded the questions said to be questions of law in that matter as follows: 1. There was an absence of procedural fairness and natural justice. 2. There was no interpreter, putting applicant at severe disadvantage. 3. Hearing was forced on applicant with full knowledge that applicant didn't understand proceedings. 4. The member was extremely biased on the whole judgement. 5. The member misinterpreted evidence and law in her judgement to take advantage of the applicant's disability and right to live and support his family, on wrong grounds. The member made a finding of fact contrary to the evidence. 6. Member supported other member of her tribunal, knowing they have unlawfully judged against the applicant. Also knowing they have manipulated the evidence to take advantage of the applicants disability. 7. The member relief on the Federal Court decision, knowing the applicant has been denied natural justice in the Federal Court, denied the right of filing vital evidence to the court, denied the right of legal representation, denied the right of an interpreter at the hearing (only present for 30% of the hearing), knowing it was impossible for the applicant to present his case due to his disabilities. 8. The member relied on SSAT in her judgement, knowing the SSAT never dealt with gifting or conduct of corruption by the respondent. 9. The member repeated in her judgement no new evidence, which is completely false. 10. The member stated in relation to the date of purchase of the property in Syria, that this was new evidence on the 12th of June 2013. This was completely false. The member, the AAT, the Federal Court, three Community Services Minister, the Federal Ombudsman had all known about the date on the contract being changed by the respondent's lawyer since the 6th of December 2011. I had repeatedly advised them of this mistake. 30 Flick J dismissed Mr Soames' appeal noting that "none of these ten matters identifies any "question of law"" (at [19]) and, in any event, "it is not considered that the Tribunal committed any appellable error" (at [39]), leading to the conclusion that the "appeal is without merit and is to be dismissed" (at [66]). 31 The position remains the same in respect of the current appeal. Leaving aside any issues about Mr Soames' capacity to re-agitate yet again the same issues which have been heard and rejected by Flick J, it is apparent that none of the 10 questions of law in the current appeal involve any question of law. Consistent with the approach of Flick J, the respondent accepted that despite this defect it was still necessary to consider whether the AAT denied procedural fairness to Mr Soames, or the AAT made any finding not supported by some evidence, or the AAT's Senior Member Britton should have disqualified herself on the grounds of actual or apprehended bias. 32 In support of his appeal, Mr Soames filed an affidavit on 29 May 2014 in which, amongst other things going to the value of his assets, he alleged that the AAT constantly interrupted him and did not allow him to present new evidence so says he was not treated fairly. I take these matters to be relevant to his claims of denial of procedural fairness and bias. 33 The transcript of the hearing before the AAT is not in evidence. Mr Soames was directed on 1 July 2014 to obtain and provide the transcript before the AAT to the respondent for inclusion in the appeal book but failed to do so. As a result, apart from Mr Soames' vague and generalised assertion that he was constantly interrupted and not allowed to present new evidence, nothing in the material supports any suggestion of actual or apprehended bias. The allegation of actual bias, unsupported as it is by any evidentiary foundation, is scandalous and improper. The allegation of apprehended bias, insofar as it might have been made by Mr Soames, also does not withstand scrutiny. As set out above, the test of apprehended bias in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] is whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide". 34 Accordingly, insofar as it referred to the question whether "a fair-minded lay observer versed in the relevant principles and knowing the relevant facts might reasonably apprehend that [she] would not bring an impartial and unprejudiced mind to determining his application" (my emphasis), the AAT was incorrect. The standard is one of possibility ("might") and no higher. The possibility, however, must be founded on a "reasonable" apprehension of bias, not mere speculation or subjective belief. It is apparent that Mr Soames' repeated allegation of bias, whether actual or apprehended, are based on nothing more than disagreement with the decisions reached by the AAT. They are not reasonable in any sense. They are not founded on any factual basis and, as the AAT records, are nothing more than "colourful, wide ranging and unsubstantiated allegations". 35 Otherwise, it is impossible to discern any basis upon which it might be concluded that the AAT made a finding not based on some evidence or denied Mr Soames procedural fairness in its decision not to grant him leave. To the contrary, Mr Soames' questions of law appear to do nothing more than repeat allegations which have been considered and rejected through other processes of review and appeal. Further, no error of law is apparent in the AAT's reasons for refusing to grant Mr Soames leave to make his review application. The AAT's reasoning is consistent with the statutory requirements. Mr Soames lodged his application for the age pension on 20 October 2013. By s 42 and cl 3 to Sch 2 of the Social Security Administration Act 1999 (Cth) the relevant time for assessing Mr Soames' entitlement to an age pension was 20 October 2013 to 19 January 2014 (a period of 13 weeks from his first possible entitlement to that pension). Accordingly, the assets test prescribed by the statute was to be applied by reference to Mr Soames' assets during that period. That is the "relevant time" to which the AAT refers in [17] and [18] of its reasons. The AAT's description of the "new evidence" on which Mr Soames sought to rely in [16] of its reasons discloses the correctness of its conclusion that none of this material could bear upon the relevant issue. 36 For these reasons it necessarily follows that there is no question of law material to the AAT's decision to refuse Mr Soames' leave to apply for review. Mr Soames' appeal, accordingly, must be dismissed, with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Social Security Administration Act 1999(Cth)

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