Theo v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

The Federal Magistrate's decision 8 Mr Theo appealed the decision of the Tribunal. Before his Honour below however the Department claimed that Mr Theo's appeal was incompetent because it did not identify grounds of appeal or questions of law for determination, and did not disclose the relief which Mr Theo sought. 9 When the matter came before the Federal Magistrate, his Honour adjourned the proceeding for three days to permit Mr Theo the opportunity to formulate submissions, particularly submissions addressing the merits of his principal application before the Court below. His Honour informed Mr Theo that, unless Mr Theo could demonstrate that his application had merit, the Department's application would succeed. 10 In considering the matter before him his Honour examined the history of interactions between Mr Theo and the Department, and then analysed the decision of the Tribunal. After setting out [14] and [15] of the Tribunal's decision, his Honour continued: [12] Plainly, the Tribunal took into account the matter not before the original decision maker; that is, Mr Theo's response to the letter of 1 June. In other words, the Tribunal allowed Mr Theo a merits review of the challenged decision and still concluded the application for leave against him on that basis. Given that the Tribunal considered the merits of the decision generally, and nothing in the Tribunal's reasons discloses any administrative law failing, it is difficult to see how Mr Theo can demonstrate the principle [sic] application has any reasonable prospects of success. [13] I refer to reasonable prospects because that is the test, as is articulated by the Federal Court in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511, where the matter was discussed generally by Lindgren J from paragraphs [49] through to [59]. What the test requires to consider or determine is whether there are any real, as opposed to fanciful, prospects of success. When Mr Theo was expressly invited to address the court on issues he wanted to raise in the appeal, he complained that the Tribunal dismissed his application without considering his substantive appeal. [14] While it is correct that the application was dismissed, it is not correct that there was no consideration of the substantive appeal; I have earlier addressed the observations of the Tribunal at paragraphs [14] and [15]. Ultimately, it is apparent to me that, so far as the merits are concerned, Mr Theo cannot demonstrate that he has any real as opposed to fanciful prospects of success in his application. The Tribunal considered the merits of his principal application in the course of determining Mr Theo's application for leave to proceed. [15] As I have noted, there is no demonstrable error of law in the process adopted by the Tribunal, and none has been agitated or submitted by Mr Theo in argument before me today. Likewise, this application before me has no better prospects, and certainly, in my view, no real prospects of success. [16] I look now at the application brought by the respondent. As I noted at the outset, the prospects of a successful argument on the merits in this instance are perhaps the most compelling of the discretionary factors to be considered in this application. But for that matter, I may have been inclined to permit the application to proceed, subject to further directions in relation to addressing the procedural defects evident in the application. However, there are, in my view, no real merits, and the application ought be brought to an end at this point. It follows that I allow the application in a case, and I dismiss the principal application. 11 His Honour also ordered costs against Mr Theo, an issue to which I will return later in this judgment.

Proceeding in this Court 12 Mr Theo has combined his application for an extension of time and his application for leave to appeal. His application reads as follows: APPLICATION FOR EXTENSION OF TIME The Applicant applies for an extension of time to seek leave to appeal. The grounds of the application are set out in the accompanying affidavit. Leave to appeal • The Applicant applies leave to appeal from the judgment of The Hon. Federal Magistrate Burnett on the 11.5.2012 The Hon. Federal magistrate Burnett, had miss-understood the issue on foot as well as had erred by failing to conform to the Honourable Justice's Collier order of 21.3.2012 - Brisbane Ref (P) QUD 129/2012 • The Federal Magistrates Court FILE: BRG 266/2012 HAD TO BE APPROACHED TWICE IN ORDER TO OBTAIN A COPY OF THE COURT'S "REASONS FOR JUDGEMENT" • On the 5.7.12 the Applicant approached the Federal Court of Australia, and it was 14 days later the Court eventually provided the Applicant with its comments on the regularity of the Application dated the 5.7.12. Grounds of application 1. Annexure "ST 2" Copies of Three pages with the details of the Applicant's being his actual grounds of his case, which were overlooked and failure to be given the appropriate consideration by S.S.A.T., the A.A.T. and the Federal Magistrates' Court. Instead the case was erroneously treated as being an application for 'Leave to Proceed' as well as five pages of the Applicant's Notice of Appeal to the Federal Court File QUD129/12 substantiating the above. 2. Annexure "ST 4" Copy of Federal MAGISTRATES Court's Notice for Transfer of the case dated 22.3.12 BRG 266/2012 (Acknowledging In second paragraph) of Respondent's failure to file a Notice of Address for Service (being Form 10) Re: (P) QUD 129/12 3. Annexure "ST 8" Copy of Second request to Fed. Magistrates Associate 10.6.12 for a copy for reasons of judgement by Fed. Magistrate Burnett File BRG 266/2012 4. Failure by the Federal Magistrate Burnett to conform with the Federal Court's order: * Annexure "ST 3" Copy of Justice Collier's Order for transfer of case from Federal Court to Federal Magistrates court 21.3.12 (P) QUD 129/12 for Directions and hearing following the observation of * Annexure "ST 4" Copy of Federal MAGISTRATES Court's Notice for Transfer of the case dated 22.3.12 BRG 266/2012 (Acknowledging In second paragraph) of Respondent's failure to file a Notice of Address for Service (being Form 10) Re: (P) QUD 129/12 5. Other Applications a) The Applicant does not wish to have the application dealt without an oral hearing, and attaches a statement to such effect. b) Hence Rule 35.14 applies an order dispensing with compliance of rule 35.13 might be in order. ACCOMPANYING DOCUMENTS 1. AN AFFIDAVIT DATED THE 2.7.12 a) Annexure "ST 2" Copies of Three pages with the details of the Applicant's being his actual grounds of his case, which were overlooked and failed any consideration by S.S.A.T., the A.A.T. and the Federal Magistrates' Court. Instead treated the case erroneously as being an application for 'Leave to Proceed' Also five pages of the Applicant's Notice of Appeal to the Federal Court File QUD 129/12 substantiating the above. b) Also Annexure "ST 4" Copy of Federal MAGISTRATES Court's Notice for Transfer of the case dated 22.3.12 BRG 266/2012 Acknowledging in second paragraph) of Respondent's failure to file a Notice of Address for Service Re: (P) QUD 129/12 c) Annexure "ST 8" Copy of Second request to Fed. Magistrate's Associate 10.6.12 for a copy for reasons of judgement by Fed. Magistrate Burnett File BRG266/2012 d) Failure to conform with a Federal Court's order: Annexure "ST 3" Copy of Justice Collier's Order for transfer of case from Federal Court to Federal Magistrates court 21.3.12 (P) QUD129/12 (Errors in original.) 13 Following this material Mr Theo sets out his draft notice of appeal from the decision of his Honour below. Materially, this reads as follows: The applicant appeals from the decision of the Tribunal given on the 11.5.2012 by The Federal Magistrates court in Brisbane. The Court decided to dismiss the Applicant's application treating it erroneously as an application for leave to proceed. The Applicant appeals from the Court's Decision being amongst other aspects, erroneous and lacked jurisdiction in dealing with the Applicant's application as being an application for leave to proceed, aspect 100% irrelevant to the Applicant's application. QUESTIONS OF LAW 1) The following is reiterated: "The Applicant appeals from the Court's Decision being amongst other aspects, erroneous and lacked jurisdiction in dealing with the Applicant's application as being an application for leave to proceed, aspect 100% irrelevant to the Applicant's application. Contrary even to Legislation used by: AAT ACT 1975 s 42B (1)(b) And the relevant Senior Member Bernard J. McCabe had also erred at Law even Digressed away from such intention of his. Such errors being endorsed by the Federal Magistrates Court, failing to consider Annexure "ST3", being a Federal Court's appraisal. 2) Re: Section No.: 1 OF THE SAID DECISION: The Federal Magistrate failed to consider the veracity of the following: • No individuals can be prosecuted for his (or her) inability to supply information (requested by the Respondent), contrary to the PRESUMPTION OF INNOCENCE, and instead pre-empting guilty verdict for an unproven and at that beyond reasonable doubt case. • And the relevant Senior Member Bernard J. McCabe erred at Law overlooking such fundamental legal principal. 3) Re: Section No.: 2 and 4 OF THE SAID DECISION And the relevant Senior Member Bernard J. McCabe also erred at Law a) He failed to apply the Law in dealing with the Legal Document known as "The Trust DEED" b) THE tribunals as well as the Federal Magistrate overlooked The principle of "Beyond Reasonable Doubt" The Attention is also drawn up to the Honourable Court to Section 2 of the reasons for the decision, of the S.S.A.T. and particularly the first FIVE WORDS being: "centrelink is not so sure" being a blatant admission of DOUBT, In regard to the Applicant's inability to conform with the Respondent's expectations in regard to his Relationship relevant to the Mentioned TRUST DEED. c) The facts that the Applicant has never been a beneficiary of the said Trust, is penniless with no assets and having been bankrupted twice so far, had never been taken into consideration d) The Trust Deed has been legally amended as per the Law of the Land by a statutory Declaration dated the 14.12.2001 and its legality has never been challenged nor disputed, nor disproved. 4) Re: Section NO.: 3 OF THE SAID DECISION: Any determination contrary to the Applicant's expectations simply should be treated as: a) as an embezzlement of the applicant's contributions to the Social benefits contributions' funds 5) Re: Section NO.: 5 OF THE SAID DECISION: a) The orders mentioned of the 1.8.07 and 13.3.08 according to Laymen' conception could equate to "KANGARRO COURTS" decisions with the intention to silence the applicant, therefore errors at Law, not to mention the intimidating wording of the Associate's to Senior Member McCabe letter dated the 2.2.2012 Mr. Thomas Brand. 6) Re: Section NO.: 6 to 16 OF THE SAID DECISION: The Senior member involved erred dramatically by under estimating the Legal veracity within the Applicant's letter dated the 21.11.2011 enumerating eight legal breaches of the A.A.T. Act 1975, by whitewashing the issue and camouflaging it under the "alleged" pretext of the orders mentioned above in his section No. 5. 7) It must be noted that in 2003 (the then) Senior Member Kenny of the A.A.T. (AATA 489) vindicated the Applicant on identical grounds, and the Applicant is at a Loss to comprehend the contradicting discretion applied in the present case by The Senior Member McCabe. It is the Applicant's without prejudice opinion, that such approach is none other but "capricious" to say the least, having not only miss-interpreted the statute but also overlooked the principle of Estoppel. (Errors in original.) 14 Before me Mr Theo was self-represented. The Department was represented by solicitors and Mr McLeod of Counsel. Both parties made oral submissions at the hearing and filed written submissions.

Consideration 15 The Court takes into account different issues in considering whether to grant an extension of time for leave to appeal, and whether to grant leave to appeal. In relation to an extension of time, key questions are whether the applicant has advanced a satisfactory explanation for the delay in filing the notice of appeal, whether the respondent would experience prejudice were an extension of time granted, and whether the draft grounds of appeal have merit: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. In relation to an application for leave to appeal, as explained in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399, the key questions are: whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 16 In respect of both types of application, it is clear that the merits of the substantive case constitute a material consideration for the Court in determining whether it should make the order sought by the applicant. 17 Mr Theo's application for an extension of time was lodged three weeks beyond the period prescribed by the Federal Court Rules 2011 (Cth). In the circumstances of this case the respondent has shown no prejudice resulting from the late application of the applicant. 18 Further, Mr Theo explained that he felt unable to file an appeal against the decision of his Honour below without being in possession of a copy of his Honour's written reasons for decision. It does not appear to be in dispute that a copy of his Honour's reasons was not available until after the expiration of 14 days from his Honour's judgment. In my view this is a satisfactory explanation for Mr Theo's delay in filing a notice of appeal. 19 However, in my view Mr Theo's draft grounds of appeal lack merit. His application for an extension of time in which to seek leave to appeal is not substantiated. 20 Similarly, I am satisfied that the decision of his Honour below is not attended by sufficient doubt to warrant reconsideration. It follows that leave to appeal ought be refused. 21 I have reached this view for the following reasons. 22 First, Mr Theo claims that the Tribunal erred - and his Honour below failed to recognise the error - in treating the case before it as an application for "leave to proceed". However, it is clear that Mr Theo did need leave to proceed with his application before the Tribunal. Materially, s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) provides: 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. … 23 The Senior Member observed that a broad order had been made by the Tribunal pursuant to s 42B(1)(b), such that Mr Theo is not entitled to make any application in the Tribunal pertaining to any social security benefit without the leave of the Tribunal. It is not in dispute that this order, first made on 1 August 2007 and amended on 13 March 2008, remains in force. It followed that the Tribunal was required to consider whether Mr Theo, in the case before it, was making an application pertaining to any social security benefit without first obtaining the leave of the Tribunal. It is clear that he was. I note that the Senior Member considered whether he ought to grant Mr Theo leave to continue with his application, and decided to refuse leave because, subject to one qualification, Mr Theo had "nothing new to add to the evidence and submissions that he (had) made in previous hearings" (at [9]). 24 It follows that Mr Theo's criticisms of the Tribunal for treating his application before it as an application for leave to proceed cannot be substantiated, because the approach of the Tribunal was correct. 25 Second, Mr Theo complains that the respondent failed to file a notice of address for service, that there were irregularities concerning the transfer of the case from the Federal Court to the Federal Magistrates Court in 2012, and that there were delays in obtaining a copy of his Honour's judgment. In my view these contentions, even if correct, relate to very minor issues and are not relevant to the substance of the appeal before me. 26 Third, Mr Theo submits that the Tribunal failed to consider the substance of his claim against the Department. I am not persuaded that this is the case. Indeed at [9] of the Tribunal's Reasons for Decision the Senior Member clearly had regard to the substance of Mr Theo's claim but observed that Mr Theo's arguments were essentially the same arguments that he had previously raised unsuccessfully. 27 Fourth, to the extent that Mr Theo invites the Court to invoke concepts of criminal law, in particular the concept of reasonable doubt, into its analysis of the decision of the Tribunal, his submissions are misconceived. 28 Fifth, I am not satisfied that the Senior Member was expressing any particular doubt in his observation at [2] that "Centrelink is not so sure (that Mr Theo no longer has any relationship with the Solon Theo Family Trust)". Read in context it is apparent that the Senior Member's remarks were tinged with some irony, and relate to the Department's repeated rejection of Mr Theo's repeated claims concerning his relationship with the Trust. In my view this issue has no substance. 29 Sixth, Mr Theo's submissions concerning "kangaroo courts", "embezzlement" and "whitewashing" are scandalous, pointless and baseless. 30 Seventh, Mr Theo claims that he "is at a Loss to comprehend the contradicting discretion" when comparing the decision of the Tribunal in this case with the decision of Member Kenny in 2003. 31 The Tribunal directly addressed this issue and concluded that it lacked substance at [12]-[15] of its Reasons for Decision. In summary, the Tribunal considered that the action of the Department in "jumping the gun" in making its cancellation decision prior to receiving submissions from Mr Theo, actually made no difference to the final outcome of the case. This conclusion was also reached by his Honour at [12]-[14] of the judgment the subject of this appeal. 32 The right to properly present one's case and receive a fair hearing is a fundamental rule of natural justice. However as was observed by Young CJ in Eq in Graham v Baptist Union of New South Wales [2006] NSWSC 818 at [34] principles of natural justice and whether there has been a fair hearing are not measured by fixed rules - rather, one looks to see whether in any particular case in all the circumstances fairness has been done. In this case the Tribunal clearly considered that, notwithstanding that the Department (through Centrelink) had responded unfavourably to Mr Theo prior to receiving his submissions, because his submissions raised no new issues not previously and repeatedly considered by Centrelink there was no denial of natural justice to Mr Theo. On the facts of this case this conclusion was open to the Tribunal. No error of law was identified by the Federal Magistrate, and I am unable to identify any error in his Honour's judgment in relation to this point.

Costs order below 33 Finally, at the hearing before me on 8 May 2013 I noted a curious discrepancy in his Honour's comments concerning the amount of costs payable by Mr Theo to the Department. At [17] of his Honour's decision the observation was made that the Department sought costs in the sum of $3,436.00, however his Honour ordered Mr Theo to pay the Department's costs fixed in the sum of $6,765.00. I adjourned the hearing to permit the Department the opportunity to explain this discrepancy, and to allow further submissions. 34 The Department filed an affidavit sworn 24 June 2013 by Ms Leisa Pendle, the solicitor who represented the Department in this proceeding before the Federal Magistrate. In summary, Ms Pendle deposed that: Both Mr Theo's application appealing the decision of the Tribunal and the Department's application were originally listed for mention in the Federal Magistrates Court on 18 April 2012. The Department's application was adjourned to 8 May 2012 for hearing. On that date the Federal Magistrate adjourned the hearing until 3.30 pm for Mr Theo to consider the Department's submissions. His Honour subsequently ordered that both Mr Theo's application and the Department's application be heard on 11 May 2012. The parties attended the Federal Magistrates Court on 11 May 2012, when his Honour heard Mr Theo on the merits of his appeal. Ms Pendle indicated to his Honour that the Department did not wish to be heard. His Honour then adjourned the matter until 3.15 pm on that same day. Upon resumption of the hearing his Honour gave judgment orally in favour of the Department. The Department had originally sought costs in the amount of $3,436.00, however because the additional appearances had been required in this proceeding costs incurred by the Department had grown to $6,765.50. The Department sought costs in the higher amount once judgment had been delivered. The interchange between his Honour and the bar table concerning the amendment to the amount of costs sought by the Department does not appear in the transcript of proceedings. 35 Mr Theo submitted that this anomaly warranted an order setting aside the orders of the Federal Magistrate. He also submitted that because the transcript of the proceedings in the Federal Magistrates Court did not contain the alleged interchange between his Honour and Ms Pendle, the Department's explanation for the costs order was "worthless", and Ms Pendle was "perjuring herself for reasons she knows best". Mr Theo also complained that the Department's submissions concerning costs were late and constituted contempt of Court. 36 Mr Theo's submissions are misconceived in that: The absence of the interchange between his Honour and Ms Pendle does not mean that Ms Pendle was "perjuring herself" in giving the evidence in her affidavit. Indeed, when the Federal Magistrates Court gives its reasons for decision orally in any proceeding, as a general rule those reasons are not included in the transcript because they constitute the judgment, which is published separately. It is highly likely that the interchange between his Honour and Ms Pendle was treated as part of the judgment for the purposes of the transcript, and for this reason not included in the published transcript. In any event, Mr Theo's submission that Ms Pendle has perjured herself is scandalous. He produces no evidence to substantiate this allegation, which is without foundation or merit. The Court file reveals that the Department sought an extension of time in which to file submissions and material explaining the anomaly in the Federal Magistrates' costs order, and was therefore not out of time. In any event, although Mr Theo made much throughout his application and submissions of the alleged lateness of the Department in filing material, such claims are actually of little importance in comparison with the merits of the respective cases. 37 Orders as to costs were at the discretion of the Federal Magistrate: s 79(3) of the Federal Magistrates Act. I am satisfied by the explanation of events given by Ms Pendle. Mr Theo has not submitted that the exercise of his Honour's discretion miscarried. No reason has been substantiated for setting aside his Honour's orders concerning costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.