Andy Soames and Secretary, Department of Social Services
[2014] AATA 258
•30 April 2014
[2014] AATA 258
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1491
Re
Andy Soames
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Senior Member J TooheyDate 30 April 2014 Place Sydney Mr Soames’ application for leave to apply for review is refused.
.....................[SGD]...................................................
Senior Member A K Britton
CATCHWORDS
PRACTICE AND PROCEDURE—Application for recusal—Whether apprehended or actual bias—Application refused
PRACTICE AND PROCEDURE—Leave required under section 42B of the Administrative Appeals Tribunal Act 1975 for Applicant to file application with the Tribunal—No new evidence provided that would suggest the Applicant’s assets were previously calculated incorrectly—Leave refused
PRACTICE AND PROCEDURE—Application for confidentiality orders—Scandalous allegations—Application refused
SOCIAL SECURITY—Disability Support Pension—Eligibility—Assets test
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 35; 42B
Social Security Act 1991 (Cth)CASES
Re Soames and Secretary, Department of Social Services [2013] AATA 945
Re Soames and Secretary, Department of Social Services [2014] AATA 133
Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 260
Soames v Secretary, Department of Social Services [2014] FCA 295REASONS FOR DECISION
Senior Member A K Britton
Senior Member J Toohey30 April 2014
On 23 December 2013 the Tribunal, constituted by SM Britton, dismissed an application by Mr Soames under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the grounds that that application was vexatious. At that time, Mr Soames was seeking review of a decision made by the Social Security Appeals Tribunal (SSAT) on 23 July 2013 not to grant disability support pension (DSP) (ReSoames and Secretary, Department of Social Services [2013] AATA 945).
In addition, SM Britton directed, pursuant to s 42B(1)(b) of the AAT Act, that Mr Soames must not, without leave of the Tribunal:
(i)make an application to the Tribunal for review of the decision made by the SSAT relating to a claim for disability support pension;
(ii)make an application to the Tribunal for review of a decision made by the SSAT relating to a claim made before 1 July 2014, for age pension, or any other social security pension or allowance, subject to the 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 Tribunal for review of a decision made by the SSAT 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)
The Federal Court dismissed Mr Soames’s appeal against that decision with costs. (Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 260). For present purposes, it is sufficient to say that, since July 2010 when Mr Soames’ DSP was cancelled after Centrelink learned that he had withdrawn over $1 million from a savings account before a visit to Syria, Mr Soames has applied repeatedly for social security payments and on each occasion been found not to qualify because the value of his assets rendered him ineligible for such payment. On each occasion he has unsuccessfully sought review of the decision by the SSAT, by this Tribunal and by the Federal Court.
On 20 October 2013, Mr Soames applied for an age pension. Centrelink again rejected that claim on the grounds that the value of his assets exceeded the “asset value limit”. On 12 March 2014 the SSAT affirmed that decision.
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.
By reason of the orders made on 23 December 2013, Mr Soames requires the leave of the Tribunal in order to make an application for review.
On 31 March 2014, SM Britton directed that:
(i)by 9 April 2014 Mr Soames was to file with the Tribunal and serve on the respondent any material he wished to rely on in support of his leave application and
(ii)the respondent was to file with the Tribunal and serve on Mr Soames any material submissions in reply.
Mr Soames did not comply with that direction. OR - Mr Soames did not file any material in support of his leave application.
THE ISSUES
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.
Should SM Britton disqualify herself?
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.
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].
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.
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.
Should Mr Soames be granted leave to apply for review?
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.
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.
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.
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.
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.
Mr Soames’ application for leave to apply for review is refused.
Should confidentiality orders be made?
The Secretary applies for orders under s 35 of the AAT Act prohibiting the publication or disclosure of:
(i)the entirety of the transcript of the hearing before this Tribunal on 16 April 2014
(ii)the final sentence of the first paragraph and second last paragraph of Mr Soames’ letter to the Tribunal of 25 March 2014.
The Secretary contends that the above material (the offending material) contains baseless allegations of a serious nature that are scandalous, in the legal sense. The Secretary urges the Tribunal to make orders prohibiting the disclosure of this material, contending that that approach would be that consistent with that taken by Flick J in Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 260 at [59]-[64].
We agree with the Secretary that the offending material can be properly characterised as scandalous. It is also apparent that many other documents filed by Mr Soames in these and other proceedings can equally be characterised as scandalous.
The difficulty posed by the Secretary’s application is identifying a proper basis for restricting the proposed confidentiality order to the offending material. A review of the material before us reveals that equally egregious allegations are contained in many other documents provided by Mr Soames to the Tribunal. In our opinion it would be apparent to a fair minded reader that the allegations contained in the offending material, lack foundation. For that reason and given the not inconsiderable resources that would need to be employed to identify those documents, or parts thereof, that contain scandalous material together with the presumption in favour of openness enshrined in s 35 of the AAT Act, we have decided not to make the orders sought by the Secretary.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Senior Member J Toohey, ......................[SGD]..................................................
Associate
Dated 30 April 2014
Date(s) of hearing 16 April 2014 Applicant In person Advocate for the Respondent Dr Stephen Thompson Solicitors for the Respondent Sparke Helmore
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