Re Soames and Secretary, Department of Social Services
[2014] AATA 133
•7 February 2014
[2014] AATA 133
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0169
Re
Andy Soames
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 7 February 2014 Date of written reasons 12 March 2014 Place Sydney The application for an extension of time to lodge an application with the tribunal is refused.
..................[SGD]......................................................
Senior Member A K Britton
CATCHWORDS
PRACTICE AND PROCEEDURE – Extension of time application – No prospects of success – application refused
PRACTICE AND PROCEDURE – Recusal application – actual bias and apprehended bias – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1979 (Cth) – s 29(7)
Social Security Act 1999 – s 28
CASES
Hunter Valley Development Proprietary Limited v Cohen [1984] FCA 176
Re Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 107
Re Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 473
Re Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 693
Re Soames and Secretary, Department of Social Services [2013] AATA 945Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 938
SECONDARY MATERIALS
REASONS FOR DECISION
Senior Member A K Britton
EDITED EXTRACT OF TANSCRIPT OF PROCEEDINGS
12 March 2014
Mr Andy Soames applies to the Tribunal for a review of the decision of the Social Security Appeals Tribunal (SSAT) made on 7 November 2013, to refuse his claim for disability support pension (DSP) (the application).
Before that application can be considered, a number of preliminary issues must be addressed. First, whether as requested by Mr Soames, I should recuse myself from hearing the application on the grounds of bias; second, as the application was made out of time, whether an extension of time should be granted; and if so, whether leave should be granted to Mr Soames to make the application, notwithstanding the orders which bar him from doing so, made under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1979 (Cth) (the AAT Act) (see ReSoames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 473)
In respect of the matter listed today, namely, the application for an extension of time, Mr Soames has elected not to make any submissions on account of what he says is my “extreme maliciousness and bias”.
The recusal application
In a letter to the Registrar on 14 January 2014, Mr Soames requested that I not determine his application because he asserts I have been “extremely biased and malicious in my last two judgments”. I understand Mr Soames to be referring to three decisions made by me: Re Soames and Secretary, Department of Social Services [2013] AATA 945 (8 July 2013) (the 1st Soames decision); Re Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 693 (27 September 2013) (the 2nd Soames decision); Re Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 473 (23 December 2013) (the 3rd Soames decision).
Mr Soames stated in his letter to the Registrar that in the proceedings relating to the 3rd Soames decision, no interpreter was provided, he was confused, did not have legal representation and was suffering severe depression and a post-traumatic stress disorder:
An adjournment was refused, knowing I had difficulties with English and that no one was representing me.
Mr Soames is correct that he is entitled for any decision made by the AAT, to be made by a person who is impartial and unbiased. As I understand it, Mr Soames says I am actually biased against him. I will also treat his submissions as a claim of apprehended bias.
Mr Soames has traversed a great many matters today in the context of his recusal application. On account of time I will confine myself to the key issues raised. Mr Soames says that in my previous decisions I have demonstrated extreme malicious and bias. As I understand it he is referring in particular to the 3rd Soames decision in which I dismissed his application for review of the decision to refuse his claim for DSP and special benefits, on the grounds that the application was vexatious. In addition I made orders barring him for a period, from making similar applications.
In the 1st Soames decision I affirmed the decision of the SSAT not to grant Mr Soames’ claim for, amongst other things, DSP. Mr Soames appealed that decision to the Federal Court. The grounds of that appeal included substantially the same complaints raised today, namely that the hearing was unfair and that I was biased against him. The appeal was dismissed (Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 938). Mr Soames subsequently lodged an appeal against the 3rd Soames decision. The Federal Court is yet to hear that appeal.
Mr Soames submits, as I understand it, that the reason his appeal brought against the 1st Soames decision was unsuccessful was because the member of the Federal Court hearing the matter, was also malicious and extremely biased. Mr Soames goes further and says that in the conduct of that appeal, the judge abused his human rights and there was a gross miscarriage of justice. He makes similar allegations about other members of the Federal Court who have dealt with other appeals brought by him. It would appear that Mr Soames holds the view that the only rational explanation for the failure of his applications was because the presiding tribunal member or judge was biased against him. He does not appear to have entertained the possibility that his applications may have failed because assessed according to the law, they lacked merit.
Mr Soames says, amongst other things, I have aided and abetted various crimes committed by Centrelink officers, who in turn have aided and abetted crimes and civil wrongs by the Ombudsman, the Human Rights Commission and various Australian Prime Ministers.
I will deal with one allegation made by Mr Soames which in my opinion points to a lack of objectivity on his part. In earlier proceedings heard by Senior Member Isenberg, he alleged that Centrelink officers had tampered with sale documents relating to a property he had purchased in Damascus. On the basis of an apparent discrepancy between two purported sales documents and other evidence, Senior Member Isenberg decided she could not be satisfied that the residential property in Damascus owned by Mr Soames had, as claimed, been purchased during his visit to Damascus in August 2010 (Re Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 107 at [29], [30]).
Mr Soames alleged that the apparent discrepancy in the sale documents was the result of a forgery undertaken by Centrelink employees. In subsequent proceedings listed before me, Mr Soames requested a Summons to be issued to the Centrelink officers he alleged had tampered with the sale documents, requiring them to attend and give evidence. He was unable to point to any evidence to support that allegation and for that reason, and because I had formed the view that neither officer was likely to be able to give any relevant evidence, I decided to refuse Mr Soames’ request for a Summons to issue. Nonetheless given the apparent discrepancy between the two documents and the significance of that issue to the decision under review, I requested the Registrar to arrange a fresh translation of the documents. That translation revealed an error in the original translation and, as a result, I accepted Mr Soames’ claim that the property had been purchased during a visit to Damascus in August 2010 (1st Soames decision [29] – [33]).
I do not agree with Mr Soames’ allegation that my conduct in refusing his request for a Summons, demonstrates bias on my part.
Mr Soames has made many colourful, wide ranging and unsubstantiated allegations about my conduct. He has been unable to point to any evidence to support those allegations. In my opinion they lack substance. In my opinion these is no evidence which would support a finding of actual bias on my part. Nor in my opinion is 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 I would not bring an impartial and unprejudiced mind to determining the application for the extension of time. For these reasons I refuse the disqualification application.
The extension of time application
Mr Soames made an application to the AAT on 14 January 2014 for review of a decision made by the SSAT on 7 November 2013 posted to him on 15 November 2013. The AAT Act required Mr Soames to make that application within 28 days of being given that decision. He was deemed to have been given the decision on or about 17 November 2013. His application to the AAT is therefore out of time by about 20 days, a relatively short period.
That is not fatal to Mr Soames’ application for review because section 29(7) of the AAT Act confers on the tribunal the power to extend the time for making an application where satisfied that it is reasonable in all the circumstances to do so. The issue I must decide is whether it is reasonable to extend time in the circumstances of this case. The AAT Act does not specify the factors to be taken into account in determining whether the power conferred by section 29(7) should be exercised. While no binding principles, in the exercise of that discretion the AAT commonly has regard to the principles set out in Hunter Valley Development Proprietary Limited v Cohen [1984] FCA 176. They require, among other things, regard to be given to the prospects of success of the case.
In my view, not only does Mr Soames have a weak case, there is no prospect of success. The reason given by the SSAT for refusing Mr Soames’ claim for DSP was because at the time he made that claim he was 65 years of age and therefore over the pension age. By the operation of s 28 of the Social Security Act 1999, he was ineligible for the DSP.
Put simply, if this application proceeded to hearing, it would fail because when he made his claim for DSP, Mr Soames was ineligible to receive DSP on account of his age.
I have decided that in this case the prospects of the case are decisive to the decision as to whether it is reasonable to grant an extension of time under section 29(7) of the AAT Act. Therefore the application for an extension of time is refused. Given this decision it is unnecessary to consider whether to grant leave to proceed notwithstanding the orders made on 23 December 2013 under section 42B(1)(b) of the AAT Act.
I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton .............................[SGD]...........................................
Associate
Dated 12 March 2014
Date(s) of hearing 7 February 2014 Applicant In person Solicitors for the Respondent Sparke Helmore
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