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

[2008] HCASL 21

SOLON THEO
v
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2008] HCASL 21
B36/2007

1. This is an application for special leave to appeal from a judgment of the Full Court of the Federal Court of Australia.  That judgment was entered by unanimous decision of Kiefel, Sundberg and Gyles JJ on 23 May 2007.

2. Since February 2002, Mr Solon Theo ("the applicant") had been in dispute with the respondent over his claim to entitlement to an aged pension.  The history of the dispute is recounted in the reasons of the Administrative Appeals Tribunal, constituted by Greenwood J, which was the subject of the appeal to the Full Court of the Federal Court:  Theo v Secretary, Department of Family and Community Services [2006] AATA 1086. The dispute originally arose in consequence of private trusts which, the respondent considered, might disqualify the applicant from the entitlement to a pension. This led to the respondent's requesting the applicant to provide information pursuant to the Social Security (Administration) Act 1999 (Cth), s 63(2) ("the Act"). The applicant provided little of the information sought. This fact led to a decision by the respondent, in August 2004, to reject the application for an aged pension because there was insufficient information to enable an assessment to be made. This, in turn, led to litigation that it is unnecessary to recount: the application before the Tribunal, an adverse decision there, and the unsuccessful appeal to the Federal Court.

3. Noting the applicant's refusal to provide the information and the absence of relevant explanations or justifications, the Tribunal, standing in the shoes of the respondent, concluded that it could not be satisfied that the social security payment claimed was payable.  It therefore affirmed the respondent’s decision. 

4. Six grounds of appeal were advanced before the Federal Court.  They included a claim to an estoppel; a claim that the Tribunal's decision breached a contractual arrangement between the applicant and the Commonwealth derived from the Constitution; an argument that the Income Tax Assessment Act 1936 (Cth) should have prevailed over the Act; arguments about alleged factual errors of the Tribunal which fell short of presenting questions of law for the purposes of an appeal (Administrative Appeals Tribunal Act 1975 (Cth), s 44) and a complaint that the Tribunal's reasons were contradictory. None of these, or other arguments, was accepted. The reasons given by the Full Court are unremarkable and not attended by doubt. There would be no prospect, were special leave to be granted by this Court, that an appeal against the Full Court's judgment would succeed.

5. The applicant's notice of appeal in this Court was lodged out of time.  He would therefore require an extension of time to bring his application.  In view of the affidavit filed, explaining how the time default arose, we would not reject the application on that basis.  The applicant's notice of appeal is embarrassing in the technical sense, in that it does not purport to identify admissible grounds of appeal other than to assert that Kiefel J should have disqualified herself because of previous involvement in cases concerning the applicant.  No arguable basis for a grant of special leave is shown on this footing, nor on the ground that states that the Full Court should have followed an earlier decision of Spender J.  See Theo v Secretary, Department of Family and Community Services (2006) 42 AAR 503.

6. The applicant's summary of argument in this Court merely asserts a right to appeal on the basis that various named Acts of the Commonwealth have been contravened, as (it is suggested) have various international instruments.  No relevant question of law is identified.  The propounded grounds of appeal do not properly address the reasons provided by the Full Court of the Federal Court to sustain its judgment.

7. It follows that the application must be rejected on the footing that there is no reason to doubt the correctness of the Federal Court decision and an appeal against it would be doomed to fail.  Put shortly, the respondent was entitled to seek the requested information from the applicant.  His failure to respond to that request had the unsurprising consequence that his application was rejected.  It followed that the claim to the Tribunal and to the Full Court was bound to fail.  No basis is shown for the intervention of this Court.

8. In accordance with Rule 41.10.5 of the High Court Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application.

M. D. Kirby
27 March 2008 J. D. Heydon