Andy Soames and Secretary, Department of Social Services
[2014] AATA 856
•17 November 2014
[2014] AATA 856
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/4714
Re
Andy Soames
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 17 November 2014 Place Sydney The Tribunal refuses the Applicant leave to make an application to seek review of the decision of the Social Security Appeals Tribunal on 5 September 2014 concerning his application for age pension made on 21 May 2014.
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Senior Member J F Toohey
CATCHWORDS – practice and procedure – previous application dismissed as vexatious – applicant not to make certain further applications without leave – application for leave – whether applicant should be granted leave – previous submissions restated – no new information – leave to make application refused
Legislation
Social Security Act 1991 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) s 42B
Federal Court of Australia Act 1976 (Cth) s 37AO
Cases
Soames and Secretary, Department of Social Services [2013] AATA 945
Soames v Secretary, Department of Social Services [2014] FCA 295
Soames v Secretary, Department of Social Services [2014] AATA 258
Soames v Secretary, Department of Social Services [2014] FCA 952
Soames v Secretary, Department of Social Services [2014] FCA 1062
Re Theo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 58
REASONS FOR DECISION
Senior Member J F Toohey
Background
Mr Andy Soames has made numerous applications to this tribunal for review of decisions concerning his claims for disability support pension, age pension, carer allowance and special benefit. He has also made numerous applications to the Federal Court in respect of decisions by this tribunal. He has made repeated allegations of actual and apprehended bias on the part of the judges and tribunal members who have considered his applications, all of which have been dismissed as unfounded.
The decisions Mr Soames complains of concern findings that his assets exceeded the allowable limits in the Social Security Act 1991 (Cth) in respect of the payments he claimed. On each occasion the same allowable limits applied. He has argued repeatedly that the value of his assets has been calculated incorrectly to include assets which are “unrealisable”, or are held in trust, or which have been given away to family members. His argument has been rejected repeatedly by the respondent, the Social Security Appeals Tribunal (SSAT), this tribunal and the Federal Court.
I will not recount the history of Mr Soames’ numerous applications except where directly relevant to the present proceedings. The only issue at present is whether he should be granted leave to make an application for review of a decision of the SSAT made on 5 September 2014.
The Tribunal’s decision that Mr Soames requires leave to make certain applications
In August 2013, Mr Soames applied for review of a decision made by the respondent, and affirmed by the SSAT on 23 July 2013, refusing further claims he had made for disability support pension and special benefit.
On 23 December 2013, SM Britton dismissed Mr Soames’ application under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) on the ground that it was vexatious. SM Britton found Mr Soames had presented no new evidence and there was no merit in his application: Andy Soames and Secretary, Department of Social Services [2013] AATA 945. For reasons set out in her decision, SM Britton further decided that Mr Soames may not, without the leave of the Tribunal, make an application:
(i)for review of a decision made by the SSAT relating to a claim for disability support pension;
(ii)for review of a decision made by the SSAT relating to a claim made before 1 July 2014 for age pension or other social security payment subject to the same, or similar, asset test as the age pension; or
(iii)for review of a decision of the SSAT relating to a claim made before 21 December 2015 for special benefit or allowance subject to the same, or similar, asset value limit as special benefit.
The dates in orders (ii) and (iii) were to allow for the regular indexation of the allowable assets limit in the Social Security Act 1991 by virtue of which Mr Soames might qualify for a social security payment on, or at some time after, those dates.
On 28 March 2014, the Federal Court dismissed Mr Soames’ application for review of SM Britton’s decision: Soames v Secretary, Department of Social Services [2014] FCA 295.
On 30 April 2014, the Tribunal, constituted by SM Britton and SM Toohey, refused an application by Mr Soames for leave to apply for review of a decision of the SSAT made on 12 March 2004 which affirmed a decision by Centrelink to reject his claim for age pension on the ground that the value of his assets exceeded the allowable limit. SM Britton rejected Mr Soames’ assertion that she had demonstrated “extreme malicious and bias” towards him previously and declined to disqualify herself from determining the leave application: Soames v Secretary, Department of Social Services [2014] AATA 258.
On 4 September 2014, in the Federal Court, Justice Jagot dismissed Mr Soames’ appeal against the Tribunal’s decision to refuse his application for leave: Soames v Secretary, Department of Social Services [2014] FCA 952.
On 7 October 2014, Justice Jagot found that Mr Soames had “frequently instituted and conducted vexatious proceedings in Australian courts and tribunals relating to his eligibility for social services, in the form of pensions … [and in doing so had] 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.” Justice Jagot made a vexatious proceedings order against Mr Soames under s 37AO of the Federal Court of Australia Act 1976 (Cth) in terms substantially the same as the equivalent orders made by SM Britton on 23 December 2013: Soames v Secretary, Department of SocialServices [2014] FCA 1062.
The present application
On 11 September 2014, the Tribunal received an application for review from Mr Soames. The application was made on a standard form and identified the decision which Mr Soames sought to have reviewed as a decision of the SSAT dated 5 September 2014. A copy of the SSAT’s decision and reasons for decision was attached.
The SSAT decision in question stated that it concerned an application for review of:
… a decision made by the Department of Human Services (better known as ‘Centrelink’) on 5 June 2014, and later affirmed by an Authorised Review Officer on 22 July 2014 to calculate the rate of Age pension on the basis of application of the disposition rules and to not apply the hardship provisions on the basis that those dispositions were not to be disregarded for that purpose.
The SSAT said at paragraph [30] of its decision that “[n]one of the material presented by Mr Soames added to the body of documents and submissions considered by the AAT in earlier decisions” and nor had he presented any information that demonstrated that assets disposed of had been incorrectly included in calculating the value of his assets. The SSAT found no basis for changing Centrelink’s decision.
The SSAT decision does not specify the date of Mr Soames’ application for age pension but it is clear that it was made, at the latest, on 5 June 2014 (being the date of Centrelink’s decision to refuse his claim). The respondent has advised that the SSAT’s decision concerned an application by Mr Soames on 21 May 2014. I accept that is so. The present application is therefore one that is caught by the terms of SM Britton’s decision on 23 December 2013.
The respondent opposes Mr Soames’ application for leave.
Mr Soames’ submissions
Before the hearing of his leave application, the Tribunal invited Mr Soames to provide written reasons as to why he should be granted leave to bring his application for review. In a one-page statement received before the hearing, Mr Soames stated that he is homeless and has multiple disabilities. He restated his view that information provided previously to Centrelink, the SSAT, this tribunal and the Federal Court had been “ignored, manipulated and concealed” and he complained that he had not been provided with an interpreter.
Mr Soames also submitted a report dated 6 February 2014 addressed “To whom it may concern” from Dr Patricia Burke, general practitioner. The report sets out his physical and psychological disabilities and states he would “greatly benefit from being given a pension as he has no income”. Mr Soames also submitted a certificate dated 29 September 2014 from Dr Roslyn Schubert at the same practice as Dr Burke which states that he is under treatment for depression and anxiety, and other health problems; he is homeless and without an income and would benefit from having the date of his hearing expedited.
At the hearing of his leave application, Mr Soames handed up a 20-page document headed “Statement from Andy Soames” which stated it was “in reply to the statement from judge Justice Flick (dated 18 March 2014)” (which I take to mean the judgment referred to at paragraph [7] above) and “The challenge is to Senior Member AK Britton (dated 23 December 2013)”.
I read through this statement at the hearing. As it foreshadowed, it gave the reasons Mr Soames’ believes he was treated unjustly by Justice Flick and by SM Britton. In so doing, it restated Mr Soames’ views of the conduct of those who have been involved in his various applications, including members of this tribunal and justices of the Federal Court. It contained no new information and made no submissions that had not been made before on numerous occasions.
Having read his statement, I asked Mr Soames whether he had any new information to present to the Tribunal. Mr Soames complained that I was interrupting him and failing to give him sufficient time to present his case. I am satisfied that he was given ample opportunity, both before and at, the hearing to present any new information, or any other reason why leave should be granted.
Should Mr Soames be granted leave to make his present application?
Orders by the Tribunal dismissing an application as vexatious are most unusual, and orders under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1976 barring further applications without leave more so. As the Tribunal said of such an order in Re Theo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 58::
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.
Mr Soames continues to assert his opinion – which he maintains is fact – that the value of his assets has been incorrectly calculated, and that fairness demands he be granted the payments he seeks. There is nothing new in what he says. I am satisfied that nothing he has presented on this occasion gives any basis to his assertions that legal and factual errors have been made and he has been denied procedural fairness, and nor has he presented any new information that might be a basis of granting him leave to bring his present application. Nothing that he has presented suggests that he is being denied the opportunity to pursue a benefit or redress that is legitimately open to him.
I should add that, although he complains of not having been provided with an interpreter in the past, an interpreter was provided by the Tribunal on this occasion (and has been on previous occasions). Mr Soames said he would call on the interpreter if needed. He did not do so during the hearing. He did not suggest that he needed the interpreter at any point and there was nothing to suggest he had any difficulty in making himself understood or in understanding what I, or counsel for the respondent, was saying.
Further application by the respondent
On 21 May 2104, Mr Soames was granted a part age pension. The value of his assets for the purpose of calculating his rate of pension included an amount of $460,000 which he is taken to have disposed of on 21 December 2010. Applying the relevant provisions in the Social Security Act 1991, that asset will be taken into account for the purposes of assessing the value of his assets for five years after its disposal.
At the hearing of the leave application, the respondent made an application for an amendment to SM Britton’s order of 23 December 2013 to the effect that Mr Soames be unable, without leave, before 21 December 2015, to seek review of the disposal amount of his assets on the ground that no useful purpose could be served by an application before that date.
As Mr Soames’ had not had previous notice of this application, I asked counsel for the respondent to put his submissions in writing so that Mr Soames could have an opportunity to respond, in writing, after which I would make a decision without further oral submissions.
Conclusion
For the reasons I have given, Mr Soames’ application for leave to seek review of the decision of the SSAT on 5 September 2014 concerning his application for age pension made on 21 May 2104 is refused.
28. I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms J F Toohey, Senior Member.
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Associate
Dated 17 November 2014
Date(s) of hearing 14 November 2014 Representative for the Applicant Self-represented Representative for the Respondent Dr Stephen Thompson
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