Theo and Secretary, Department of Family and Community Services

[2006] AATA 1086

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
QUEENSLAND DISTRICT REGISTRY		NO. Q208 OF 2006
BETWEEN:	SOLON THEO Applicant
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Respondent
MEMBER:	THE HONOURABLE JUSTICE GREENWOOD
DATE OF ORDER:	1 DECEMBER 2006
WHERE MADE:	BRISBANE

DECISION [2006] AATA 1086

THE TRIBUNAL:

1.The Tribunal affirms the decision under review.

CATCHWORDS

SOCIAL SECURITY – Pensions – Age Pension – whether notices issued by the respondent reasonable – whether failure to comply with notices – Social Security Act 1991 – Social Security (Administration) Act 1999 ss 11, 36, 37, 63.

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)
Administrative Appeals Tribunal Act 1975
Income Tax Assessment Act 1936 (Cth)
Income Tax Assessment Act 1997 (Cth)

Theo v Secretary, Department of Family and Community Services, (25 July 2005, Q2004/823 824)
Theo v Secretary, Department of Family and Community Services [2006] FCA 279
Duncan v Fayle [2004] FCA 723
Theo v Secretary, Department of Family and Community Services (2004) 74 ALD 460
Theo v Secretary, Department of Family and Community Services [2004] AATA 1273
Theo v Secretary, Department of Family and Community Services [2005] FCA 880
Theo v Secretary, Department of Family and Community Services [2005] FCAFC 239

REASONS FOR DECISION

Introduction

1. Mr Solon Theo is an applicant for an ‘age pension’.  He was born on 3 July 1933 in Egypt, is a resident of Australia and is an Australian citizen.

2. An ‘age pension’ is a ‘social security pension’ which when granted gives rise to an entitlement to the payment of a ‘social security payment’ (s 23, Social Security Act 1991 (Cth)). A claim for a social security payment must be made pursuant to the provisions of the Social Security (Administration) Act 1999 (Cth) (‘Administration Act’) and on 12 July 2004 Mr Theo made such a claim.  The general administration of the ‘social security law’ (s 5, Administration Act) including claims made for the grant of social security payments is vested, subject to the direction of the Minister, in the Secretary of the Department of Family and Community Services (the ‘Department’).

3. On 22 July 2004 Mr Theo also made a claim for the grant of a disability support pension although, having regard to the relevant events, that matter is not now before the Administrative Appeals Tribunal (the ‘Tribunal’).  Each claim was rejected by the Respondent.  Mr Theo sought review of those decisions before the Social Security Appeals Tribunal (S S A T).  On 11 October 2004 the S S A T rejected both applications.  On 22 October 2004, Mr Theo filed proceedings in the Tribunal seeking review of both decisions.

4. On 24 March 2004 the Tribunal conducted a hearing which addressed the questions of whether Mr Theo was entitled to the grant of either an age pension or a disability support pension or both; and whether the Tribunal was satisfied, on the application of the Respondent, that Mr Theo’s applications for review before the Tribunal were frivolous or vexatious for the purposes of s 42B of the Administration Appeals Tribunal Act 1975 (A A T Act).  On 25 July 2005 the Tribunal dismissed Mr Theo’s applications for review on the ground that each application was frivolous and vexatious and directed Mr Theo not to make an application for review before the Tribunal of any decision relating to an age pension or a disability support pension, made by the Secretary of the Department, without the leave of the Tribunal (Q2004/823, 824, Theo v Secretary, Department of Family and Community Services, 25 July 2005, per Associate Professor S C Fisher, Member).

5. Mr Theo filed an application before the Federal Court of Australia exercising original jurisdiction by way of an appeal pursuant to s 44 of the A A T Act, from the decision of the Tribunal. 

6. On 22 March 2006, Spender J dismissed Mr Theo’s application in relation to the disability support pension (Theo v Secretary, Department of Family and Community Services [2006] FCA 279 at [21], [22]). However, his Honour concluded that the Tribunal was required in conducting a de novo merits review of the age pension decision, to have regard to all material logically probative of the existence of facts material to the decision [33] and in failing to have regard to documents before the Tribunal including an earlier affidavit of Mr Theo sworn 26 March 2003 and an affidavit sworn 27 June 2002, addressing Mr Theo’s standing or relationship (if any) in connection with the ‘Solon Theo Family Trust’, an error of law occurred. His Honour also determined that consistent with Duncan v Fayle [2004] FCA 723 [22], per French J, an application pursuant to s 42B of the A A T Act necessarily requires a consideration of the merits (based on all the material before the Tribunal logically probative of the relevant facts) and a finding that the application cannot succeed, if the application is to be declared frivolous and vexatious. His Honour concluded that the material before the Tribunal did not satisfy that test ([36] – [45]).

7. His Honour set aside the decision of the Tribunal of 25 July 2005 in relation to the age pension decision and remitted Mr Theo’s application to the Tribunal to be considered according to law.  The Respondent does not pursue any application based upon s 42B of the A A T Act.  Accordingly, the matter for determination before the Tribunal is whether Mr Theo ought to be granted a social security payment in respect of that class of social security pension described as an age pension pursuant to the Administration Act. 

8. The Respondent says that Mr Theo’s claim for age pension payments is not payable by operation of s 63(4)(d) and (f) of the Administration Act because the Department (by its representative) made a reasonable request of Mr Theo by letter on 16 July 2004 for information in relation to Mr Theo’s assets and liabilities and in particular, Mr Theo’s interest (if any) in the Solon Theo Family Trust and Mr Theo has not complied with that request.  Thus, the claim ‘is not payable’ (s 63(4)(f)).  Moreover, having regard to the affidavit of Gary Timothy Power a solicitor employed by the Australian Government Solicitor, sworn 28 June 2006 and the annexures to that affidavit, in conjunction with the submissions made by Mr Theo in relation to documents described as Form 1, Version 4 and Form 20, Version 2 annexed to that affidavit, the Respondent says that the Tribunal cannot be satisfied that Mr Theo does not have a continuing interest in the Solon Theo Family Trust.  Thus, there is an inconsistency between the documents and Mr Theo’s earlier and continuing contentions that he has no interest in the Trust.  As a result, the Respondent says the response by Mr Theo to the Department’s request for information is a demonstrated failure to comply with a lawful ‘notice’ under the Administration Act and Mr Theo has failed to provide the Department with information sought by the notice.

9. Mr Theo makes a number of contentions.  Firstly, that the request made on 16 July 2004 was unreasonable because the Department at that date had before it documents which properly described and identified Mr Theo’s interest in the Trust, that is, no role or interest.  Secondly, as to any inconsistency between the documents annexed to Mr Power’s affidavit and earlier positions adopted by Mr Theo, Mr Theo says that later documents completed by him which objectively suggest a continuing role or relationship with the Trust are documents signed by him by way of ‘administrative assistance’ in the completion of formalities relating to steps taken by the Trust concerning particular properties and in no sense are those documents consistent with or reflect a continuing interest in the Trust as Trustee or otherwise.  Thirdly, Mr Theo contends that the provisions of the Social Security Act 1991 and the Administration Act must be construed in the context of the relationship between those Acts and the Income Tax Assessment Act 1936 (Cth) and more particularly in a way that takes account of a vested entitlement Mr Theo enjoys as a taxpayer over time to the receipt of a social security payment in the form of an age pension as part of a social contract between Mr Theo as a tax paying citizen of Australia and the Commonwealth. Mr Theo has filed an affidavit sworn 11 December 2004 in which he describes his circumstances at that date. In his affidavit, Mr Theo says that he is an undischarged bankrupt, is suffering from a form of cancer and has endured a wrongful termination of an age pension previously granted to him by the Respondent and wrongful rejections by the Respondent of applications for an age pension prior to the application made by Mr Theo on 12 July 2004. The circumstances of the various controversies between Mr Theo and the Respondent in relation to these matters is set out below.

   The Background Applications

10. On 9 July 1998 Mr Theo was granted an age pension.  Mr Theo says that, in fact, he was granted an age pension on 21 April 1994 and tendered as evidence of the grant of an age pension at that date a ‘pensioner concession card’ which was marked exhibit 15.  Mr Theo says that this failure on the part of the Respondent to appreciate the true facts in relation to the grant of the age pension, is emblematic of the errors and approach to the consideration of Mr Theo’s claim generally.  However that card seems to be a concession card that entitles Mr Theo to mature age allowances rather than an age pension card.  Since the card was issued on 21 April 1994 before Mr Theo reached the age qualification for an age pension of 65, the pensioner concession card can not be evidence of the grant of an age pension.

11. At various times between February and May 2002, the Respondent, by Centrelink, sent letters to Mr Theo requesting Mr Theo to provide information about his involvement with a private Trust known as the Solon Theo Family Trust.  Mr Theo responded to those requests in a particular way which resulted in the cancellation on 12 June 2002 of Mr Theo’s age pension and thus the cancellation of his entitlement to social security payments.  The cancellation arose out of the contended failure on the part of Mr Theo to provide information to the Department concerning the Trust.  The cancellation of the pension was overturned by a decision of the Tribunal on 30 May 2003 and arrears of $11,374 was paid to Mr Theo (Theo v Secretary, Department of Family and Community Services (2004) 74 ALD 460, per Mr R G Kenny, Member).

12. The Respondent then issued further notices to Mr Theo requiring information to be provided concerning the relinquishment of his involvement with the Trust.  The Respondent took the position that Mr Theo had failed to comply with those requests and his age pension was again cancelled by the Respondent on 10 September 2003.  Mr Theo made fresh applications for an age pension in October 2003 and in April 2004.  Both of those applications were rejected by the Respondent.  Mr Theo unsuccessfully sought a review of these decisions before the S S A T.  Mr Theo filed proceedings before the Tribunal seeking a review of the cancellation decision, the rejection decisions and the calculation of the arrears.  On 1 December 2004, the Tribunal affirmed the decisions under review (Theo v Secretary, Department of Family and Community Services [2004] AATA 1273 per Senior Member McCabe). On 15 December 2004, Mr Theo filed an application before the Federal Court by way of an appeal from that decision. On 29 June 2005, French J dismissed Mr Theo’s appeal (Theo v Secretary, Department of Family and Community Services [2005] FCA 880). On 25 November 2005, the Full Court dismissed an appeal by Mr Theo from the decision of French J (Theo v Secretary, Department of Family and Community Services [2005] FCAFC 239).

13. The material before the Tribunal for its consideration in the present review includes, among other documents, 13 exhibits from the Tribunal’s previous consideration of the matter (which includes particular documents put to the Respondent by Mr Theo arising out of earlier applications and upon which Mr Theo relies in this proceeding), a transcript of evidence taken before Tribunal Member, Associate Professor S C Fisher, three further exhibits, an affidavit by Mr Theo sworn on 30 June 2006 and submissions. 

    The Background Facts

14. On 12 July 2004, Mr Theo applied for social security payments in the form of an age pension.  In doing so, Mr Theo completed a document described as ‘Claim for Age Pension’.  Mr Theo completed the Part B, ‘Personal details’ section of the document.  Because Mr Theo is separated from Mrs Athina Theo, he completed the Part C, ‘Partner details’ section of the document as ‘N/A’ (Not Applicable).  Mr Theo completed the Part E, ‘Payment details’ section of the document relating to his own account information.  As to the Part F, ‘Tax details’ section, Mr Theo simply endorsed that Part ‘Already Known to You’.  Mr Theo completed Part G, ‘Residence in Australia’, in relation to his own circumstances and endorsed the section of Part G relating to his former partner as ‘N/A’.  As to Part H, ‘Accommodation’, requesting details of the class of dwelling in which Mr Theo lives, Mr Theo marked that section as ‘N/A’ except that under the category of ‘Other Accommodation – please describe’, Mr Theo marked the document ‘Long Grass’.  As to Part I, ‘Other questions’, Mr Theo marked that section ‘N/A’.  Mr Theo signed the document on 12 July 2004 declaring that the information was correct.

15. Mr Theo also completed a document described as ‘Income and Assets 3’ which sought information in relation to Mr Theo’s income and assets, interest in real estate and entitlement to compensation.  As to that document, Mr Theo completed sections A1 to A24 of Part A dealing with income and assets generally.  As to Part B, Real Estate, Mr Theo marked that section ‘N/A’.  As to Parts C and D dealing with compensation entitlements and other questions, Mr Theo marked those sections ‘N/A’.  Mr Theo signed the document on 12 July acknowledging that the information was correct.

16. On 16 July 2004, Centrelink, on behalf of the Respondent wrote to Mr Theo in these terms:

    ‘Dear Mr Theo

    The purpose of this letter is to gather information to help us make the right decision about your Age Pension.

    Enclosed is a registration for the Pension Bonus Scheme, as per your request on Age Pension Claim lodged 12 July 2004.

    On your claim you have not provided a home address.  You have marked as N/A questions regarding receiving a social security type pension from Egypt, and Real Estate details.

    You must advise if you do receive a social security type pension from Egypt, and if not if you intend claiming.

    You must provide Proof of Identity totalling 20 points – one item as per attached guide.  Proof of all your bank account balances at 12 July 2004.

    You must complete the enclosed forms.  Private Trust module, Separation details form, Accommodation details form, and Real Estate details form.  If you are no longer involved in the Solon Theo Family Trust, you must provide the original stamped amended trust deed showing you have relinquished control of the trust.

    Please mail or personally return any requested information to this office.  Original documents can be returned by registered mail at your request.  You need to contact us or supply the documents within 14 days after the day on which this letter is given to you to avoid possible rejection of your claim.

    This is an information notice given under the social security law. 

    If you would like to talk about this letter please phone us on the number at the top of the letter.’

17. As to the four forms or modules enclosed with the letter of 16 July 2004, Mr Theo responded in this way.  On 21 July 2004, Centrelink received a completed module S, ‘Separation details’ from Mr Theo dated 20 July 2004.  As to the home address, Mr Theo marked the form ‘N/A’.  As to his name, date of birth, address where currently living and telephone number, Mr Theo endorsed the form ‘Your Records Have Such Information’.  As to the date of separation and whether the separation was then permanent or indefinite, temporary or uncertain, Mr Theo marked the form ‘Do Not Remember’.  As to the circumstances that led to the separation, Mr Theo marked the form ‘No Answer’ and as to the question of the address where Mr Theo and his partner were living prior to the separation, Mr Theo marked the form ‘Your Records Have Such Information’. 

18. Mr Theo returned the ‘Real estate details’ module R to Centrelink marked ‘N/A’ and the ‘Accommodation details’ module partially completed.  Mr Theo returned to Centrelink the ‘Private Trust’ module PT marked ‘N/A’. 

19. On 16 August 2004 Centrelink wrote to Mr Theo advising that ‘After careful consideration your claim for Age Pension has been rejected because you have not provided enough information for an assessment to be made. In particular, with regard to your involvement in the Solon Theo Family Trust. This decision has been made under the Social Security Act 1991.’  The letter advised Mr Theo of rights of review and Mr Theo wrote to Centrelink requesting such a review.  On 15 September 2004 Centrelink advised Mr Theo of the outcome of the internal review. 

20. A number of documents are presently before the Tribunal relevant to the question of Mr Theo’s role or interest in the Solon Theo Family Trust. 

21. On 14 December 2001, Mr Theo swore a statutory declaration in these terms:

    ‘I, Solon Theo, of Deception Bay in the State of Queensland do solemnly and sincerely declare that:

    1.I am the trustee of the trust known as THE SOLON THEO FAMILY TRUST, which was instigated some time in 1978.

    2.In such capacity, I have resolved to transfer my capacity as trustee, to my son Paul Theo, effective as from today’s date, and without retaining any formal roles, pecuniary interests or control on the functioning of the said trust.

    3.should I assist in any shape or form with any administrative matters relevant to the said trust, this will be on an honorary capacity only.

    And I make this solemn declaration conscientiously declaring that it is true, and by virtue of the provisions of the Oaths Act 1867.’

22. On 5 February 2002, Centrelink wrote a letter to Mr Theo’s wife, Athina Theo, advising her that the rules relating to the assessment of income and assets for private trusts and small private companies had changed from 1 January 2002.  The letter is in these terms:

    ‘Our records indicate you may have an involvement in the Theo Family Trust.

    It is important that you read the enclosed Information Booklet which contains information about the changes and what you need to do.  You must complete the Private Trust or Private Company forms or tell us why you think you are not involved in a trust or company.  We are asking you to provide detailed information about you and/or your partner’s private trust or private company. 

    Because of the complexity of the information required, we encourage you to seek help from your accountant or tax agent to complete the Private Trust and Private Company forms.  We will not reimburse you for any costs involved in doing this.  Tax Agents and accountants have been sent an information package similar to this one. 

    Centrelink’s Financial Information Services (FIS) Officers can be contacted if you wish to obtain further information.  However, you and/or your partner may wish to discuss your circumstances with your adviser first. 

    You should return the requested information by 18 February 2002 to Centrelink …. Please note if you do not provide the requested information, you and/or your partner’s payments and/or concessions may be cancelled. 

    Your reference number is 403567440T.

    The authority to request this information is contained in section 192 of the Social Security (Administration) Act 1999. This is a notice given under section 196 of the Social Security (Administration) Act 1999.’

1. On 18 February 2002, Mr Theo responded to the letter [22] sent by Centrelink to Mrs Athina Theo.  In Mr Theo’s reply, he said:

   ‘I am the trustee of a DISCRETIONARY TRUST known as the S. THEO FAMILY TRUST.

   In such a capacity, replying to your abovementioned letter, I wish to draw to your attention the fact that the said trust does not fall under the category of a Private Trust or a Private Company and the said change of rules, as mentioned and detailed in your abovementioned letter and enclosures, do not concern us.

   I am of the opinion that a copy of the mentioned DISCRETIONARY TRUST is in your records, which will confirm same.’

2. On 1 May 2002, Mr Theo completed, signed and sent to Centrelink a document described as ‘Declaration – no longer involved’ by which Mr Theo declared ‘I am no longer involved in the Trust stated above’, identified by him in the document as the ‘S. Theo Family Trust’.

3. On 25 March 2003, Mr Theo swore an affidavit in these terms:

   ‘1.       Since the 14/12/2001, I am not involved in any trusts.

   2.I am not a trustee of any trusts, therefore if I am asked to relinquish any relevant to a trustee’s formal roles, which I do not have, since the 14/12/01, when such roles were relinquished.  Consequently I cannot oblige to do so again as I have no such roles.

   3.In the event any Government Department will allege otherwise, and subject of such Department will have the obligation to disprove my above statement, I hereby will use such Department’s preferred wording to ascertain further that:

   “I declare that I renounce any alleged interest and entitlement which I do not have but which may be attributed to me or any further benefits from any trust whether such benefits be income or capital or of any other nature.  I request that the Trustee whoever he/she might be, of whichever trust, to recognise my request that I receive no benefits from any trust in his/her power and furthermore recognise this as a renunciation of any beneficial interest in any trust as irrevocable, and I reiterate that such beneficial interests do not exist.”

   4.It is hereby further reiterated that I will not exert any control over or benefit directly or indirectly in any way or form from any trust.

   5.…

   6.I further extend the voracity of this Affidavit of mine, to the Statutory declarations I have made and dated: the 14.12.01 and the 27.6.02.

   7.Also I extend the voracity of this affidavit of mine to confirming that on the 1.5.02, I did forward the forms I was given by Centrelink to the address indicated on such forms.

   All the facts and circumstances above deposed to are within my own knowledge save such as are deposed to from information only and my means of knowledge and sources of information appearing on the face of this affidavit.’

4. On 25 March 2003, Athina Theo swore an affidavit in which she asserts that she is not involved in any trusts.  By paragraph 2 of her affidavit, Athina Theo renounced any entitlements to any future benefits that might be attributed to her emanating from any trust whatsoever, whether those benefits be in the nature of income or capital.  Athina Theo, by that affidavit irrevocably renounced any beneficial interest in any trust. 

5. On 27 June 2002, Mr Theo swore a statutory declaration in which he said this:

   ‘1.I was the trustee of the Family Trust known as SOLON THEO FAMILY TRUST, and relinquished all formal roles and control in respect of the trust as well as relinquished all beneficial interest in the trust, which were none.

   2.…[a paragraph dealing with stamp duty]

   3.I had resolved to retire from the office of Trustee of the said Trust Fund.

   4.and I declare that neither my partner nor now myself are in any shape or form in a position with the Trust, to have any authority and to exert any control over the benefit in any way from the Trust, which have been non existent, nor are we in a position of influence.  Such a status is irrevocable.’

6. Exhibit 10 is a copy of the Trust Deed for the Solon Theo Family Trust.  Mr Theo was from 8 September 1978 the trustee so described (also known as Solon Theologidis) of the Trust.  The Trust is a discretionary trust and the beneficiaries of the Trust are Athina Theo (wife of Solon Theo) and the children of Solon Theo namely, Andrew Theo, Tanya Theo, Paul Theo and Alexander Theo.  Clause 3 of the Trust provides that Solon Theo may at any time in writing, ‘alter the settlement to confer upon the trustee further or additional powers, to vary or cancel any of the trustees powers, to exclude any beneficiary or contingent beneficiary, to vary the trusts upon which the trust fund is held and to transfer or assign to any other person or corporation the power given to the trustee to direct as to the vesting in possession of the trust fund in the class of beneficiaries referred to but no alteration … shall operate to confer on Solon Theo for his estate any beneficial interest in the trust fund.’  Clause 4 sets out the powers of the trustee.  Clause 8 details with the ‘appointment of new trustees’.  Clause 8 confers a power on Solon Theo to retire from the position of trustee of the trust fund and to appoint a new trustee in his place and the continuing power to remove any trustee, appoint another trustee or reappoint himself. 

7. The instrument of 14 December 2001 reflects a resolution on the part of Solon Theo to retire as a trustee of the Trust and appoint his son Paul Theo as from 14 December 2001 as trustee.  The instruments of 1 May 2002, 27 June 2002 and 25 March 2003 are all consistent with the continuing contention that Mr Theo has no role to play as trustee of the discretionary Solon Theo Family Trust. 

8. Mr Gary Power swore an affidavit in the proceeding in which he says that on 19 June 2006 he caused a search to be made of the records of the Department of Natural Resources, Mines and Water (D N R M W) to determine whether any real property was then registered in the name of Solon Theo.  The records relating to land titles and details of registered interests in land in Queensland are administered by D N R M W.  Mr Power says that the results of title searches revealed that Mr Theo is the registered owner of two properties in his capacity as trustee of the Solon Theo Family Trust.  The first is a property described as the Tiaro property and the second is described as the Cooloola property.  The title reference for the first is 16322183, Lot 1 on RP 185331, County March, Parish Gundiah, Shire of Tiaro.  The title reference for the second is 18741165, Lot 5 on RP 857417, County March, Parish Neerdie, Shire of Cooloola.  Annexed to Mr Power’s affidavit are a number of documents including, three documents relating specifically to the Tiaro property and three documents relating to the Cooloola property. 

   The Tiaro Documents

9. The first document is an historical title search of land title data recorded by D N R M W which reveals that Mr Solon Theo is the registered owner in his capacity as trustee of the Solon Theo Trust of the Tiaro land. Mr Theo became registered owner of that land pursuant to a transfer instrument (707069663) produced to D N R M W on 9 October 2003.  The second document is described as Form 1, Version 4 which sets out extracts of the land in question including the interest being transferred, the description of the Lot on the relevant plan, the transferor of the property, the consideration and details of the transferee.  The document bears a transfer instrument number, 707069663.  That form recites the transfer of the Tiaro allotment by Gary Kelly and Susan Kelly as joint tenants for a consideration of $130,000 pursuant to an instrument produced to D N R M W on 9 October 2003 to a transferee described as ‘Paul Theo and Alex Theo as trustees’.  However, the description of the transferee is crossed out and the box headed ‘Transferee’ (item 5) contains an annotation in these terms: ‘See Page 2 Form 20 Version 2’.  The attached Form 20 Version 2 is a document submitted in response to a requisition issued by D N R M W.  The requisition seeks to clarify the precise status of the transferee of the land so as to enable staff of the Queensland Land Registry within D N R M W to accurately record the details of the new owner in the Land Registry database of Land Titles.  This second document is entitled ‘Additional Page/Declaration’.  It describes the land and recites that ‘Conforming with the Department of Natural Resources and Mines requisition dated 31.10.03, the following additional page is attached to Form 1 version 4 page 1, in regard to the details relevant to item 5 of the said form.’ 

10. The new particulars of item 5 recite that Mr Solon Theo is the transferee of the land ‘as Trustee’.  The declaration bears an ‘execution date’ of 7 November 2003, is signed by Solon Theo before a witnessing officer who is a Justice of the Peace, bears a reference to dealing number 707069663 and attaches a copy of the Trust Deed for the Solon Theo Family Trust. 

    The Cooloola Documents

11. The three documents in relation to the Cooloola land take a similar form.  The historical title search of the land title data recorded by D N R M W recites that Mr Solon Theo is the registered owner in his capacity as trustee of the Solon Theo Family Trust of the Cooloola land.  Mr Theo became registered owner of that land pursuant to a transfer instrument (707069619) produced to D N R M W on 9 October 2003.  

12. The second document is described as Form 1 Version 4 which sets out extracts of the land title, the interest transferred, the transferor of the property, the consideration and the details of the transferee.  The document bears a transfer instrument number 707069619.  The form recites the transfer of the Cooloola land by Vincent Humphreys for a consideration of $100,000 (pursuant to an instrument produced to D N R M W on 9 October 2003) to a transferee (item 5) described as ‘Paul Theo and Alex Theo as trustees’.  Again, the description of the transferee is crossed out and item 5 contains an annotation marked ‘See Page 2 Form 20 Version 2’.  The attached Form 20 Version 2 is entitled ‘Additional Page/Declaration’ and is prepared and lodged in response to a requisition from D N R M W dated 31 October 2003 in relation to the details of item 5 of Form 1.  The document recites that the new particulars of item 5 are that the transferee of the land is Solon Theo in his capacity as trustee.  The document is signed by Mr Theo before a Justice of the Peace, is dated 7 November 2003, bears a dealing reference number of 707069619 and attaches a copy of the Trust Deed.

13. Although Mr Theo did not give evidence in the proceeding on the footing that he relies upon the transcript of earlier evidence which is before me, I asked Mr Theo a number of questions about Forms 1 and 20 in relation to the Tiaro land to explore the circumstances surrounding the signing of the documents by Mr Theo reflecting his acquisition of the blocks of land in his capacity as a trustee of the Solon Theo Family Trust.  Mr Theo acknowledged that the copies of the documents annexed to Mr Power’s affidavit are copies of original documents and that each annexure is a true copy of a document bearing Mr Theo’s signature (transcript, p 34, ln 11 to ln 30).  Mr Theo also agrees that on the face of the documents, it appears that Mr Theo as trustee of the Trust is taking a transfer of the property (transcript p 35, ln 35).  Mr Theo says that notwithstanding that apparent position, Mr Theo is not the trustee (transcript p 35, ln 41) and that he only signed the document (Form 20) in each case in order to provide ‘administrative assistance’ (transcript p 36, ln 6 to ln 15).  In addition, Mr Theo says that he only signed the document because D N R M W issued a requisition in relation to the status of the transferee.

14. In addition to the documents previously mentioned, Mr Theo swore a further affidavit to clarify a mistake Mr Theo had made when deleting the details inserted at item 5 of Form 1 containing the reference to Paul Theo and Alex Theo as trustees.  Mr Theo had inadvertently also crossed out the signatures of the transferors, Gary Kelly and Susan Kelly.  An officer of D N R M W sought an affidavit from Mr Theo explaining those circumstances.  In that affidavit, Mr Theo made a further reference to Form 20 which provided D N R M W with the correct details of the transferee of the Tiaro land.  In that affidavit sworn 25 November 2003, Mr Theo recited that he was the transferee of the land in his capacity as trustee. 

15. Accordingly, by 9 October 2003, dealing instruments were being lodged with the Queensland Land Registry administered by D N R M W which recorded a proposed acquisition of two blocks of land by Mr Theo in his capacity as trustee of the Solon Theo Family Trust.  By 7 November 2003, Mr Theo had executed before a Justice of the Peace two documents in relation to the blocks of land at Tiaro and Cooloola which were prepared, signed and lodged expressly in response to two requisitions from D N R M W seeking an accurate statement of the correct details of the transferee for each block of land.  Searches reveal that as at 19 June 2006 Mr Solon Theo was recorded as the owner of the two blocks of land as trustee.  Both at the date that Mr Theo lodged his application for a social security payment, 12 July 2004, and the date he received a request from the Respondent for information in relation to his claim for an age pension, 16 July 2004, Mr Theo was registered as the owner in his capacity as trustee of the Solon Theo Family Trust of two blocks of land.  On 21 July 2004, when Mr Theo returned to Centrelink module PT (Private Trust) and module R (Real estate details) endorsed in each case with a line through the document and the letters ‘N/A’, Mr Theo was recorded as the owner of the Tiaro and Cooloola land in his capacity as trustee of the Solon Theo Family Trust. 

16. Mr Theo contends that reliance by the Respondent upon these documents obtained from D N R M W as a result of searches undertaken by Mr Power is an unmeritorious construct adopted by the Respondent to defeat his application for an age pension, because the truth of the matter is that in signing these documents and effecting a transfer of each block of land into his name apparently in a trustee capacity, Mr Theo was simply providing ‘administrative assistance’ in the affairs of the trust, consistent with the statutory declaration sworn 14 December 2001 [21]. It seems to me that two observations should be made about this contention. First, it seems difficult to construe the completion of transfer documents, the submission of those documents to D N R M W and the consequent registration of an individual as the owner at law of real property held upon a discretionary trust as simply the provision of administrative assistance. These are significant documents conveying an ‘interest’ in land which have the effect of recording that interest in a public register with all the consequences in terms of notice to the world that such registration accords. Secondly, even if the correct characterisation of the completion and execution of the documents and Mr Theo’s participation in the acquisition of each block of land is merely a facet of ‘administrative assistance’ in the affairs of the trust, the Respondent is entitled to receive and Mr Theo is obliged to provide information relevant to his application for an age pension and, in particular, information concerning whether Mr Theo is either the legal or beneficial owner of any land or other assets and whether any title to land recorded in the name of Mr Theo is held upon any trust. A notice to provide such information must be reasonable in its requirements and lawfully made. It is not accurate to describe the information sought by the Respondent as either irrelevant or ‘not applicable’ to Mr Theo. It may be that the circumstances of each transaction are capable of a straightforward explanation entirely consistent with the sequence of documents identified at [21], [24], [25] and [27]. However, the apparent inconsistency between the documents and events described at [30], [31], [32], [33], [34], [35] and [36] and the previous declarations and affidavits sworn by Mr Theo and the letter signed by him [22] require an explanation.

17. In submissions before the Tribunal, Mr Theo says that it would have been very simple and easy for the Respondent to contact Mr Theo and clarify any apparent concern arising out of the acquisition of the land in question.  The Respondent agrees that the provision of information in relation to any interest held by Mr Theo in land in any capacity (or other assets) and information in relation to Mr Theo’s apparent role in relation to the trust could easily have been provided by Mr Theo but he chose not to complete the documents or provide the information. 

18. That information and clarification is not presently before the Tribunal.  The Tribunal is not prepared to accept that the completion of the documents in relation to the blocks of land is simply the provision of administrative assistance by Mr Theo to the trust.  On 18 February 2002, Mr Theo wrote a letter to Centrelink [23] which on its face asserts a continuing role on the part of Mr Theo as trustee of the discretionary trust which he described in the letter as the S. Theo Family Trust.  That letter was written in response to Centrelink’s letter of 5 February 2002 which encouraged Mrs Theo to discuss the request with her partner Mr Solon Theo, expressly in relation to the question of whether Mrs Theo might have an involvement in a private trust.  A response was required by 18 February 2002 and on that date Mr Theo sent a response to Centrelink clarifying the position, saying, ‘I am the trustee of a discretionary trust known as the S. Theo Family Trust’.  Mr Theo said that the change of rules mentioned in Centrelink’s letter of 5 February 2002, ‘do not concern us’.  Mr Theo says in submissions that his letter of 18 February 2002 was a misstatement of the position as he intended to convey and say, ‘I was the trustee of a discretionary trust known as the S. Theo Family Trust’ but simply put the matter incorrectly as a function of incorrect English expression.  The Respondent says that Mr Theo’s explanation does not sit comfortably with the remaining paragraphs of the letter as those paragraphs suggest a present and continuing capacity on the part of Mr Theo as trustee.  The apparent inconsistency between the position adopted in the letter [23] and other material sworn by Mr Theo [21], [24], [25], [27] is something that could have been clarified by the provision of further information.  The apparent inconsistency reflected in the letter [23] seems to be consistent with the execution of documents in October and November 2003 which in turn is inconsistent with other declarations.  These matters highlight the importance of obtaining from Mr Theo the information sought by the Respondent and the reasonableness of the requirements of the notice. 

19. Section 11 of the Administration Act provides that a person who wants to be granted a social security payment must make a claim in accordance with Division 1 of Part 3. Such a claim was made by Mr Theo. Section 36 provides that the Secretary of the Department must in accordance with the social security law, determine a claim for a social security payment by either granting or rejecting the claim. Section 37(1) requires the Secretary of the Department to determine a claim by granting that claim if the Secretary is satisfied that the claimant is qualified and the social security payment is payable. Section 63 of the Administration Act provides that if a person has made a claim for a social security payment and the Secretary is of the opinion that such a person should provide the Secretary with information for the purposes of assessing whether such a claim is payable, the Secretary may give a claimant written notice to provide that information (s 63(2)(d) and (h)). Section 63 also provides that if a person has made a claim for a social security payment and that person has received a notice to provide information in circumstances where the requirements of the notice are reasonable, and the claimant does not comply with the requirements of the notice, the payment claimed, is not payable (s 63(4)(a), (b), (c), (d) and (f)).

1. The information sought by the Respondent on 16 July 2004 encompassed information current either at 16 July 2004 or, more particularly, current at the date of completion of the various modules on 21 July 2004 by Mr Theo concerning Mr Theo’s separation details from Mrs Athina Theo, his accommodation details, information in relation to any real estate interest and information in relation to any role or interest in a private trust. The information was sought by a letter dated 16 July 2004 which the author of the letter described as a notice given under the social security law. The letter was a notice for the purposes of s 63(2) of the Administration Act (Theo v Department of Family and Community Services [2005] FCAFC 239). I find that the request was reasonably made. I find that Mr Theo refused to provide information in relation to real estate interests he then held and I find that Mr Theo refused to provide information in relation to the Solon Theo Family Trust. Documents existed at that time which suggested that Mr Theo had a continuing role in relation to the trust and that he was the registered owner of two blocks of land. Mr Theo was obliged by force of the notice to provide information in relation to those two matters to the Respondent. No explanation was given of the character of the administrative assistance provided to the trust, the precise nature of the assistance, the apparent inconsistency between earlier documents and Mr Theo’s apparent position as a continuing trustee of the trust. Nor was any explanation given of the important matter that Mr Theo was at that date (and apparently remains) the registered owner of two blocks of land in a trustee capacity. 

2. By reason of Mr Theo’s failure to provide that information, the Secretary was obliged to have regard to the prohibition upon payment (s 63(4)(f)) of Mr Theo’s claim. The Secretary could not be satisfied for the purposes of s 37(1) that such a payment was then payable. As a result, the Secretary was obliged in accordance with the social security law to reject Mr Theo’s claim (s 36(1)). The Tribunal, standing in the shoes of the decision‑maker, cannot be satisfied that Mr Theo has established that the social security payment he claims is payable. The information has not been provided and no explanation has been given in relation to the inconsistencies described above.

3. Mr Theo raises a number of other matters [9]. Mr Theo contends that the requirements of the notice are not reasonable. The Tribunal finds that the information sought by the notice is relevant and material and the requirements of the notice are reasonable. Secondly, Mr Theo contends that the apparent inconsistencies are either easily explained or arise out of the provision of ‘administrative assistance’. These contentions are not based upon established facts which provide a foundation for the Tribunal to determine that the claimed social security payment is payable. Thirdly, Mr Theo contends that since he has been a taxpayer over time, consistent with the requirements of the Income Tax Assessment Act 1936 (Cth), he enjoys a social contract which entitles him to be paid an age pension.  Further, Mr Theo contends that neither the Social Security Act 1991 (Cth) nor the Administration Act are valid laws of the Commonwealth to the extent that such legislation abrogates the content or benefit of the social contract.  There is simply no foundation for this view.  Moreover, the construction and interpretation of the provisions of the Social Security Act 1991 (Cth) and the Administration Act are not informed by any aspect of the history of the enactment of the Income Tax Assessment Act 1936 (Cth) or the continuing operation or construction to be given to the provisions of that Act or the Income Tax Assessment Act 1997 (Cth).  These arguments were previously advanced unsuccessfully by Mr Theo before French J in Theo v Secretary, Department of Family and Community Services [2005] FCA 880 [52]. There is no substance in the notion that Mr Theo’s historical status as a taxpaying citizen of Australia gives rise to a social contract between Mr Theo and the Commonwealth which entitles him to any class of social security payment, independently of a valid claim for such a payment properly established in accordance with the provisions of the social security law.

4. Accordingly, the Tribunal affirms the decision under review. 

5. One further observation ought to be made concerning the present circumstances in which Mr Theo finds himself. 

6. As the history of the various controversies between Mr Theo and the Respondent reveals, Mr Theo suffered a cancellation on 10 September 2003 of the grant of an age pension, unsuccessfully challenged that decision, unsuccessfully challenged the rejection of two further applications for an age pension made in October 2003 and April 2004, unsuccessfully challenged the Tribunal’s decision before the Federal Court and the Full Court of the Federal Court and has failed to provide information in accordance with the Administration Act in relation to this further application of 12 July 2004 [12].  If Mr Theo is to be granted an age pension, it is essential that he make an application consistent with the Administration Act and provide the Respondent with information which enables the Respondent to make a determination as to whether social security payments, that is, age pension payments, are payable to him.  That will involve Mr Theo properly completing the relevant application documentation and to the extent that the information provided by Mr Theo is incomplete or insufficient and the Secretary of the Respondent concludes that Mr Theo is required to provide information, by notice, and the requirements of the notice are reasonable, Mr Theo would best serve his interests by making every effort to comply with the notice.  If for any reason such a notice is invalid on any ground, different questions would plainly arise.  However, consistent with the orthodoxy of the Social Security Act 1991 (Cth) and the Administration Act, Mr Theo’s opportunity as an Australian citizen to obtain a social security pension in the form of an age pension is to be found in the social security law and, in particular, in meeting the requirements of the Administration Act.  Mr Theo’s interests and personal circumstances would be best served by pursuing such a course. 

7. An informed decision might then be able to be made by the Respondent decision‑maker. 

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Greenwood, Presidential Member.

Associate:

Dated:       1 December 2006

The Applicant	Mr Theo appeared on his own behalf
Counsel for the Respondent:	Mr Scott McLeod
Solicitor for the Respondent:	Mr Gary Power, Australian Government Solicitor
Date of Hearing:	3 July 2006
Date of Judgment:	1 December 2006