CTHFCA

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

[2013] FCA 805

Federal Court of Australia|2013-08-13|Before: Collier J

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Court

Federal Court of Australia

Decision date

2013-08-13

Before

Collier J

Source

Original judgment source is linked above.

Judgment (6 paragraphs)

[1]

REASONS FOR JUDGMENT 1 Before me is an application filed 23 July 2012 by Mr Sol Theo. Mr Theo seeks an extension of time in which to seek leave to appeal, as well as leave to appeal against the decision of the Burnett FM (as he then was) in Theo v Department of Families, Housing, Community Services & Indigenous Affairs [2012] FMCA 528. In that decision his Honour upheld an application filed by the Secretary of the Department of Families, Housing, Community Services & Indigenous Affairs ("the Department") pursuant to s 17A of the Federal Magistrates Act 1999 (Cth) ("Federal Magistrates Act") and r 13.10 of the Federal Magistrates Rules 2001 (Cth) to dismiss an earlier application filed on 22 February 2012 by Mr Theo. In the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) Mr Theo had sought to appeal a decision of the Administrative Appeals Tribunal made on 2 February 2012, in which the Tribunal had in turn dismissed an application for leave to proceed (Sol Theo and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2012] AATA 58). 2 Before turning to the application before me it is useful to have regard to the decisions of the Tribunal and his Honour below. I note that, in both cases, Mr Theo was self-represented, and the Department was legally represented.

[2]

The Tribunal decision 3 Senior Member McCabe in the Tribunal summarised the case before him as follows: [1] Mr Sol Theo has been trying to get the Aged Pension for years. His applications consistently flounder when Centrelink asks him to supply information about the Solon Theo Family Trust. Mr Theo refuses to supply information about the trust, stating on the various forms he has been provided to complete that he is not a trustee of the trust, and that he no longer has any relationship with the trust, save in an "honorary" capacity. He argues the trust's affairs are irrelevant to his affairs. [2] Centrelink is not so sure. It suspects Mr Theo continues to play a role in relation to the trust, not least because Mr Theo is mentioned in the trust documents as a trustee and appointor of the trust. Even if he has resigned as trustee, the trust deed says he retains the power as the appointor of the trust to replace the trustee. Mr Theo, for his part, says that is not the way the trust works. He says the trust documents have not been amended to formally remove him from involvement because of stamp duty implications. He insists that he should not be required to provide the information that has been requested. The assets of the trust should certainly not be attributed to him for the purposes of the assets test that applies to the Aged Pension, he claims. [3] Mr Theo also argues that the social security legislation is invalid to the extent that it imposes any eligibility requirements that conflict with a social contract between taxpayers and the Commonwealth. Mr Theo says the Commonwealth's income tax reforms in the 1960s were introduced on the basis that the taxes collected would be used to fund a universal aged pension scheme. He says he paid his taxes and is therefore eligible to participate in the benefits which were promised. [4] The Secretary says the absence of information about the trust's affairs and the uncertainty surrounding Mr Theo's relationship with the trust mean it is impossible to be satisfied Mr Theo is entitled to be paid the Aged Pension. Mr Theo's application was rejected on that basis. The Social Security Appeals Tribunal affirmed the decision. Mr Theo has returned to this Tribunal seeking redress. [5] Mr Theo requires leave to proceed before he can progress his application as a result of earlier orders of this Tribunal. The order was first made on 1 August 2007. It was amended on 13 March 2008. The amended order now reads: "Pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975, the Applicant, Sol Theo, must not make any Application to the Administrative Appeals Tribunal pertaining to any social security benefit howsoever termed without the leave of the Tribunal first hand and obtained." [6] That order is in very broad terms. Orders of this nature are an extraordinary thing. If they are made, it is incumbent on the Tribunal when considering an application for leave to satisfy itself that the applicant is not being denied the opportunity to pursue a benefit or redress that is legitimately open to him simply on account of previous conduct. Even vexatious litigants might have a point. [7] As it happens, I had the benefit of dealing with Mr Theo's previous application for leave, in 2010: see Theo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 669. On that occasion, in order to determine whether or not leave should be granted, I effectively heard Mr Theo's entire case. I decided he should not be given leave but, having received evidence and submissions as if it were a final hearing, I indicated his application would have failed in any event. 4 After making these observations the Senior Member queried whether any material facts had changed since 2010, and in particular whether Mr Theo had any new evidence or submissions to put before the Tribunal that suggested his case should be reconsidered at a hearing. The Senior Member said at [8]: If he simply proposes to run the same case that he ran in 2010 (and in a number of previous cases where the same evidence and arguments failed to persuade the Tribunal and the Federal Court), then he should not be given leave to proceed on this occasion. 5 The Senior Member observed that, with one possible exception, Mr Theo had nothing new to add to the evidence and submissions made by him in previous hearings, he continued to refuse to provide information about the relevant trust and to that extent Mr Theo and the Department remained at an impasse (at [9]). However the Senior Member then observed that Mr Theo made one fresh submission, namely: [10] … As Mr Theo explained in a document dated 21 October 2011 which he tendered at the hearing (and to the SSAT), he: o Applied for the pension on 16 May 2011; o Received a request for information - a Module PT document that related to interests in a trust - on 1 June 2011 with a request that a response be provided within 14 days; o Returned the document to Centrelink on or about 15 June 2011; o Received a letter from Centrelink dated on or about 15 June 2011 saying words to the effect "Since you have not replied to your request for information your application has been rejected". [11] Mr Theo says Centrelink did not give him the appropriate time to respond to its request for information before cancelling his pension. Moreover, it ignored the response he did provide. He says that invalidates the respondent's decision to reject the pension. As a result, he argues, his pension should now be granted with a start date in 2002, when his pension was cancelled. 6 The Senior Member considered this submission, and had regard to Theo and Secretary, Department of Family and Community Services [2003] AATA 489 in which Member Kenny found that Centrelink had sent Mr Theo notices which did not comply with the appropriate time limits, and therefore set aside Centrelink's decision to cancel Mr Theo's pension. Relying on that decision, Mr Theo argued that the Centrelink notice of 1 June 2011 gave him 14 days to respond but, taking into account a requirement that he be given 14 clear days, the cancellation decision was made before the expiry of the deadline. Further, Mr Theo submitted that the cancellation decision did not refer to the information that he did in fact provide. 7 Materially the Senior Member observed: [14] I do not think it is necessary to engage in a debate over whether or not Centrelink has, on this occasion, jumped the gun in making its cancellation decision. While that may indeed be a problem in some cases (assuming that the evidence confirms that is what occurred), I think it does not make any difference for present purposes. I was provided with a copy of the response that Mr Theo did provide on or about 15 June 2011. It does not reveal anything of substance. Mr Theo has written the same thing on the Module PT form that he has written in previous applications for the pension: he refused to provide information on the trust on the basis that he has nothing to do with it. [15] If I were to allow the matter to proceed to a hearing, the whole exercise would almost certainly be expensive and fruitless because the central mystery remains: what is the relationship between Mr Theo and the trust, and what are the assets held in the trust? Mr Theo was not prepared to provide additional information that would shed light on that issue. Without additional evidence, it would be impossible to be satisfied Mr Theo is eligible to receive the Aged Pension. Even if I were to accept his point about the timing of the cancellation decision, the best that could be done would be to remit the matter to Centrelink - which would be unable to grant his claim because the information it requires was still unforthcoming. That would be a waste of everyone's time and resources. [16] Mr Theo should not be given leave to proceed. The proceedings are therefore dismissed.

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.