FEDERAL COURT OF AUSTRALIA

Soames v Secretary, Department of Social Services [2014] FCA 295

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.    Pursuant to r 2.32(1)(b) of the Federal Court Rules 2011 (Cth) the following material be kept confidential and not be made available for inspection, namely:

(i)    Order 1 as sought in the Interlocutory Application filed in Court on 11 February 2014;

(ii)    Order 9 as sought in the Notice of Appeal filed on 16 January 2014;

(iii)    paragraphs [5], [28] (the first sentence) and [37(d)] of the affidavit Mr Soames filed on 16 January 2014;

(iv)    paragraph 7 of the statutory declaration of Mr Soames;

(v)    the third and eighth “dot points” in respect to “point number 37”;

(vi)    the fourth, fifth and tenth “dot points” made under the heading “challenge to point number 17”;

(vii)    the sixth and seventh “dot points” made under the heading “The Loan Issue was obtained in 2004”;

(viii)    the eight lines of submissions made after the “dot points” under the heading “Hardship in relation to Andy Soames and his Family”;

(ix)    the second and third “dot points” made under the heading “Mental State of Any (sic) Soames”;

(x)    paragraph 5 under the heading “Bad Hearing Against The Law And Tribunal”; and

(xi)    paragraph 10 of the statutory declaration of Ms Hiam Soames dated 17 October 2012.

2.    The appeal is dismissed.

3.    The Applicant is to pay the costs of the Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1    In April and May 2013 the Applicant, Mr Andy Soames, applied for a disability support pension and special benefits. Those claims were refused and that decision was affirmed by the Social Security Appeals Tribunal in July 2013. A further application for review filed with the Administrative Appeals Tribunal was dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) in December 2013: Re Soames and Secretary, Department of Social Services [2013] AATA 945. The Tribunal also made a direction pursuant to s 42B(1)(b) that Mr Soames was not to make any application to the Tribunal (without the leave of the Tribunal) which sought review of a decision made by the Social Security Appeals Tribunal relating to a claims for a variety of benefits including a disability support pension and special benefits. The Tribunal imposed expiry dates on when these applications could be made afresh.

2    Mr Soames now seeks to appeal from that decision of the Tribunal to this Court. Section 44(1) of the Administrative Appeals Tribunal Act confines the ambit of an appeal to “a question of law”. The Notice of Appeal as filed purports to identify the “Questions of Law” upon which Mr Soames relies as being (in very summary form) errors of fact or findings made by the Tribunal and allegations as to a denial of procedural fairness and bias on the part of the Tribunal member. Reliance is also sought to be placed upon the use made by the Administrative Appeals Tribunal of an earlier decision of the Social Security Appeals Tribunal.

3    The appeal is to be dismissed with costs.

The procedural history prior to hearing

4    A number of procedural issues should be separately addressed before the substantive merits of Mr Soames’ appeal are resolved.

5    The preparation of the case for hearing and the manner in which the hearing itself proceeded, were not without difficulty. But such is the case in many proceedings in which one or other of the parties is unrepresented. But such difficulties should not stand in the way of an unrepresented party who may have a legitimate claim or argument which has hitherto escaped notice.

6    Mr Soames’ difficulties arose from the outset. The present proceeding first came before the Duty Judge in January 2014 when an unsuccessful ex parte application was made by Mr Soames to “bring forward in some way the hearing of the matter”: Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 11 at [5]. At the time of that ex parte application, Mr Soames’ appeal had already been allocated to the docket of the Court as presently constituted and the matter was listed for a Directions Hearing on 11 February 2014. The Duty Judge, with respect, correctly concluded that there was “little practical utility in endeavouring to expedite the matter at this stage”: [2014] FCA 11 at [5]. His Honour refused to permit Mr Soames to file either an Interlocutory Application or an affidavit in support. It was His Honour’s view that “[b]oth documents contain scandalous material which is not relevant to the applicant’s case”: [2014] FCA 11 at [2].

7    Mr Soames’ difficulties continued, at least initially, at the Directions Hearing on 11 February 2014. What was sought to be then achieved were the making of directions to in fact achieve the early final hearing of the appeal. That was what Mr Soames had sought in his earlier ex parte application. Difficulties arose by reason of the repeated attempts made by Mr  Soames to make submissions directed to factual allegations that at that stage appeared to have little (if any) relevance to the “questions of law” sought to be raised in the appeal or any relief that may be granted. Those submissions sought (in part) to repeat the content of the “scandalous material” to which the Duty Judge had referred. That material and the submissions being made, in very summary form, referred to allegations of sexual abuse. Unless he confined himself to submissions of relevance to the directions to be made to prepare his appeal for hearing, Mr Soames was warned that his proceeding could be struck out. A Directions Hearing, it is considered, is not the opportunity for any litigant – including an unrepresented litigant – to make submissions as to sexual misconduct – having no apparent relevance to the directions to be made and no apparent relevance to the resolution of the “questions of law” to be resolved at the final hearing. He was further advised that the time for the making of such submissions as were relevant to the merits of his appeal would be at the hearing of the appeal. The difficulties being experienced may have been attributable to the difficulties confronted by any unrepresented litigant. But no litigant is free to use the forum of the Court as an opportunity to continue to make submissions which he has been directed not to then make.

8    Leave was, however, granted on 11 February 2014 permitting Mr Soames to file in Court the Interlocutory Application and the supporting affidavit that had been before the Duty Judge. Orders were made pursuant to r 2.32(1)(b) of the Federal Court Rules 2011 (Cth) prohibiting access being granted to both the Interlocutory Application and the affidavit. Notwithstanding the apparent irrelevance of many of the allegations being made in the affidavit, no litigant should be shut out from at least seeking to place before a court for its consideration the factual basis upon which he wishes to proceed. What may initially appear to be totally irrelevant may assume a different character at a final hearing. Other parts of the affidavit, it should also be expressly recognised, were more directed to issues that could arise for resolution in the hearing of the appeal.

9    Further difficulties were encountered by reason of the purported “Questions of Law” set forth in the Notice of Appeal and the very real prospect that there may have been either no evidence or little admissible evidence to support the allegations being made. At the request of Mr Soames, a Referral Certificate was granted pursuant to r 4.12 of the Federal Court Rules 2011. The Referral Certificate identified the matters in respect to which assistance was being sought as follows:

Nature of legal assistance for which referral made:

1.    Whether any amendment to the Notice of Appeal should be filed.

2.    Whether any evidence in respect of the existing Notice of Appeal (or any Amended Notice of Appeal) is to be relied upon and, if so, what evidence.

3.    Whether any Interlocutory Application should be filed and the evidence in support of any such Application.

4.    To attend before the court at the next Directions hearing to be held at 9.30 am on 25 February 2014.

But efforts to procure legal assistance did not proceed smoothly and efforts to secure pro bono counsel initially proved unsuccessful. Only one counsel was prepared to assist. That counsel had apparently indicated to Mr Soames that the Notice of Appeal would have to be recast and that there was no necessity to consult with him prior to the next Directions Hearing. Mr Soames declined that assistance. He did not want to recast his appeal and did want to consult. The Court has repeatedly acknowledged its indebtedness to those members of the legal profession who provide pro bono assistance. Such assistance is of immeasurable benefit to both the litigants and the Court itself. A litigant, however, need not accept the advice which is proffered; he may listen to the advice and then reject it. He may even reject the advice without even listening to any reasons which may be given in support. Equally, counsel who may be initially willing to provide assistance need not continue to provide assistance in circumstances where advice as to the manner in which a proceeding is to be conducted is rejected. Presumably careful consideration was given by both Mr Soames and Counsel to the course which was thereafter pursued.

10    The proceeding was listed for further directions on 25 February 2014. Further difficulties were then encountered. Mr Soames again appeared unrepresented. He nevertheless repeated his desire to have his appeal heard as soon as possible. The appeal was set down for hearing on 6 March 2014. Again some difficulty was encountered at this second Directions Hearing. Mr Soames expressed his wish to adduce further evidence but sought to adduce that evidence orally at the hearing of the appeal. Any unrepresented litigant, including Mr Soames, may well confront problems when attempting to reduce the facts upon which he wishes to rely to a written format. Notwithstanding such problems, it is equally necessary to ensure that the other party to the appeal has some advance notice of the facts that may be relied upon. Mr Soames was thus directed to reduce his account of the facts to writing; he was also told that the format of that written account could be in the form of a letter or simply notes in “point format”. Without confining the further evidence he sought to rely upon, some indication was sought as to the nature of the facts he sought to establish. Mr Soames identified that further evidence as being an earlier decision of the same Tribunal member whose decision is presently under appeal, a decision of Buchanan J, and possibly evidence surrounding those decisions. That initial indication, it was concluded, provided no reason not to require the factual account to be relied upon by Mr Soames to be reduced to writing. Whatever difficulties Mr Soames confronted, it may be noted, did not preclude him preparing his prior affidavit as sought to be relied upon before the Duty Judge and as filed in Court on 11 February 2014. Indeed, that very affidavit set forth some of the factual material it was understood would be later relied upon at the hearing of the appeal.

11    On 6 March 2014, when the proceeding was called on for final hearing, Mr Soames was not present. The proceeding was temporarily adjourned. Mr Soames had telephoned the Registry of the Court shortly after the hearing was to commence and explained that he was “too ill” to attend. The legal representative for the Respondent applied either for judgment or for the proceeding to be dismissed. Those applications were withdrawn and the proceeding was adjourned to 18 March 2014. The times within which Mr Soames was to file his evidence or other materials he sought to rely upon and any outline of submissions were extended.

12    The purpose in setting forth this rather protracted account of what would in other proceedings be the mere preliminary steps taken to ensure a case is ready for hearing, is to emphasise the considerable steps which have been taken to ensure that an unrepresented party is afforded the right of any person to seek access – and meaningful access – to this Court.

13    It should also be noted that the Order made on 11 February pursuant to r 2.32(1)(b) should also have included, but did not, an order prohibiting access being granted to Order 9 as sought in the Notice of Appeal filed on 16 January 2014. That omission was remedied by the Order being varied at the outset of the hearing on 18 March 2014.

14    It should finally be noted that the Respondent had filed on 31 January 2014 a Notice of Objection to Competency. That Objection to Competency was withdrawn at the outset of the hearing on 18 March 2014.

The Tribunal decisions and the decision on appeal

15    The same Tribunal member whose decision is presently under appeal had previously made two earlier decisions in proceedings in which Mr Soames was the applicant, namely:

    Re Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 473 (a decision given on 8 July 2013); and

    Re Soames and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 693 (a decision given on 27 September 2013).

The reference made by Mr Soames to a decision of Buchanan J was a reference to:

    Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 938, (2013) 61 AAR 202. This was the hearing of an appeal from the July 2013 decision of the Tribunal.

16    It is the most recent decision of the Tribunal, however, which is presently the subject of appeal, namely the decision published on 23 December 2013.

17    In the present proceedings Mr Soames correctly submitted that his appeal should be read in the context of the earlier decisions of both the Tribunals and the decision of Buchanan J.

18    Although it may be open to question whether a decision not to dismiss a proceeding pursuant to s 42B is appellable, a decision to dismiss an application is appellable: Duncan v Fayle [2004] FCA 723 at [22] to [23], (2004) 138 FCR 510 at 517 per French J (as his Honour then was).

The questions of law

19    Under the heading “Questions of law”, the Notice of Appeal as filed by Mr Soames on 16 January 2014 provides (without alteration) as follows:

Questions of law

1.    There was an absence of procedural fairness and natural justice.

2.    There was no interpreter, putting applicant at severe disadvantage.

3.    Hearing was forced on applicant with full knowledge that applicant didn’t understand proceedings.

4.    The member was extremely biased on the whole judgement.

5.    The member misinterpreted evidence and law in her judgement to take advantage of the applicant’s disability and right to live and support his family, on wrong grounds. The member made a finding of fact contrary to the evidence.

6.    Member supported other member of her tribunal, knowing they have unlawfully judged against the applicant. Also knowing they have manipulated the evidence to take advantage of the applicants disability.

7.    The member relief on the Federal Court decision, knowing the applicant has been denied natural justice in the Federal Court, denied the right of filing vital evidence to the court, denied the right of legal representation, denied the right of an interpreter at the hearing (only present for 30% of the hearing), knowing it was impossible for the applicant to present his case due to his disabilities.

8.    The member relied on SSAT in her judgement, knowing the SSAT never dealt with gifting or conduct of corruption by the respondent.

9.    The member repeated in her judgement no new evidence, which is completely false.

10.    The member stated in relation to the date of purchase of the property in Syria, that this was new evidence on the 12th of June 2013. This was completely false. The member, the AAT, the Federal Court, three Community Services Minister, the Federal Ombudsman had all known about the date on the contract being changed by the respondent’s lawyer since the 6th of December 2011. I had repeatedly advised them of this mistake.

So expressed, none of these ten matters identifies any “question of law”. For the reasons expressed by Tracey J in Peters v Comcare [2013] FCA 1361 at [4], (2013) 137 ALD 375 at 376, the failure of an applicant who seeks to appeal a decision of the Administrative Appeals Tribunal to this Court to identify a “question of law” is “no mere pedantic point”. An appeal to this Court is confined by s 44 of the Administrative Appeals Tribunal Act and is confined to an appeal “on a question of law”. The “existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself”: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1989) 19 ATR 1067 at 1070 per Gummow J.

20    In Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18], (2003) 76 ALD 321 at 325, (2003) 38 AAR 55 at 60 per Branson and Stone JJ observed in respect to the former O 53 r 3(2) of the now-repealed Federal Court Rules that the rule “discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law”. A “mixed question of law is not a question of law within the meaning of s.44(1) of the AAT Act”: Comcare v Etheridge [2006] FCAFC 27 at [16], (2006) 149 FCR 522 at 527 per Branson J (Spender and Nicholson JJ agreeing). See also: National Australia Bank Ltd v Georgoulas [2013] FCA 1412 at [39] to [43], (2013) 137 ALD 545 at 553 – 554 per Perry J. Rule 33.12(2)(b) of the current Federal Court Rules 2011 now requires “the precise question or questions of law” to be stated: Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 at [5], (2012) 126 ALD 40 at 41.

21    None of those matters set forth in the Notice of Appeal satisfies either the requirements of s 44 of the Administrative Appeals Tribunal Act or r 33.12(2)(b) of the Federal Court Rules 2011.

22    Where an unrepresented appellant has not identified any question of law in his appeal, but where there is an arguable question, the notice of appeal has not been struck out: Lim v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1058. Such has been the approach pursued in the present appeal. The legal representative for the Respondent quite properly did not oppose the appeal being heard and resolved on such merits as may have been discerned during the hearing. See also: P v Child Support Registrar [2013] FCA 1312 at [54], (2013) 62 AAR 17 at 33 – 34 per Wigney J.

The discretionary powers conferred by s 42B

23    It necessarily follows that a “question of law” must be identified in respect to the Tribunal’s decision for it to be challenged in this Court.

24    It is possible to construe the purported “Questions of law” set forth in Mr Soames’ Notice of Appeal as being addressed to both:

    the manner in which the Tribunal approached the exercise of the discretionary powers conferred by s 42B; and

    the procedural course of the actual hearing before the Tribunal.

Approached in that manner and if there were any merit in any one or other of the matters raised in the Notice of Appeal, it may be possible to re-cast one of the questions sought to be raised as a “pure question of law”. Given that Mr Soames is unrepresented, it is perhaps prudent to consider each possibility. The need to identify a “question of law” and the deficiencies in the purported “Questions of law” as set forth in the Notice of Appeal were raised with Mr Soames at the outset of the hearing on 18 March 2014. In addition to the potential re-characterisation of his “Questions of law” in the manner suggested, he maintained that there were nevertheless further issues which he wished to canvass. But none of his further submissions, with respect, ultimately led to any greater clarification as to the manner in which his purported appeal could be rendered competent.

25    Within the framework explained to Mr Soames at the outset of the hearing, it may nevertheless be possible for matters 5, 6, 7, 8, 9 and 10 as set forth in the Notice of Appeal to be construed – albeit in some very beneficial manner – as seeking to raise a “question of law” in respect to the Tribunal’s application of s 42B to the facts.

26    Section 42B provides as follows:

Power of Tribunal where a proceeding is frivolous or vexatious

(1)    Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:

(a)    dismiss the application; and

(b)    if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

(2)    A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.

(3)    The Tribunal may discharge or vary such a direction.

The Tribunal, in making the orders it made in the present proceeding, exercised both the power conferred by ss 42B(1)(a) and 42B(1)(b).

27    Before either of these powers may be exercised, however, the Tribunal must be “satisfied that the application is frivolous or vexatious”.

28    A question of central relevance to the Tribunal’s decision was, accordingly, the correct construction and application of the phrase “frivolous or vexatious” appearing in s 42B(1). In J & C Cabot v The City of Keilor [1994] 1 VR 220 at 223, in the context of the Victorian Administrative Appeals Tribunal, Gobbo J referred with approval to the test for vexatiousness expressed by Roden J as follows in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491:

It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:

1.    Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought;

2.    They are vexatious if they are brought for collateral purposes, and not for the purposes of having the court adjudicate on the issues to which they give rise;

3.    They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

This test has been cited with approval by this Court and applied where decisions of the Commonwealth Administrative Appeals Tribunal have been under consideration: e.g., Re Williams and Australian Electoral Commission (1995) 38 ALD 366, (1995) 21 AAR 467; Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence [2000] FCA 900 at [60], (2000) 100 FCR 255 at 280 per French J.

29    The principles to be applied when considering the application of s 42B have also been helpfully summarised, albeit with a different emphasis, in a decision of the Tribunal itself: Re Filsell and Comcare [2009] AATA 90, (2009) 49 AAR 506 at 514 – 515. The Deputy President there said:

[33]    … I think that applications for dismissal under s 42B should be approached according to the following principles:

(a)    The word “frivolous” in combination with “vexatious” is a technical legal term, which means that there is no legal basis for the proceedings; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings…

(b)    The expression “vexatious” can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are “so obviously untenable or manifestly groundless as to be utterly hopeless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J, or if the proceedings have “no reasonable prospect at all of success”…

(c)    The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously. Unless the tribunal is satisfied that the application is frivolous or vexatious in the sense referred to in subparas (a) and (b) above, an applicant should not be denied the right to have the tribunal review the decision in issue on the merits, by conducting a hearing de novo and considering the evidence that the applicant can properly adduce at that hearing…

(d)    However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.

(e)    Conversely, applications to dismiss under s 42B should not be made except in appropriate cases, since otherwise the parties will be put to additional expense, the tribunal’s time and resources will be wasted, and the tribunal’s ability to provide a mechanism of review that is fair, just, economical, informal and quick (as required by s 2A of the AAT Act) will be impeded.

(f)    Medical or other expert evidence generally needs to be evaluated in the context of evidence from the applicant or other lay witnesses. Where an application is made under s 42B at an early stage of proceedings in this tribunal, the parties may not have submitted, or may not be in a position to submit, all of the lay or medical evidence that might be available in relation to the proceedings. Further, if the applicant is unrepresented, there is no obligation to file any document in this tribunal that would have the status of pleadings in a civil court. In addition, in some circumstances (depending on the evidence adduced at the hearing) this tribunal exercises a limited inquisitorial role, whereby it considers a case not articulated by the applicant…All of these matters mean that the basis of the application for review is often not as readily ascertainable as is the case where applications are made to strike out actions in civil courts on the grounds that the pleadings do not disclose a cause of action. This underlines the need for the tribunal to proceed cautiously when considering applications for dismissal under s 42B.

(g)    Section 42B presupposes that the tribunal has jurisdiction, since it empowers the tribunal to dismiss the application, and also in appropriate cases, to direct that the applicant must not, without leave of the tribunal, make a subsequent application to the tribunal of a kind or kinds specified in the direction. If the tribunal has no jurisdiction to review the decision in question, it would not have power to take the steps contemplated by s 42B.

This decision has been subsequently cited and applied: Re Wake and Commissioner of Patents [2012] AATA 669 at [32], 131 ALD 389 at 397 – 398. See also: Re Theo and Secretary, Department of Family and Community Services [2005] AATA 699 at [33], (2005) 41 AAR 307 at 319 – 321; Re McPhee and Inspector General in Bankruptcy [2012] AATA 628 at [12], (2012) 58 AAR 170 at 172 – 173.

30    In the present proceeding, the Tribunal, in its most recent decision and the one the subject of the present appeal, set forth the terms of s 42B and the summary of principles laid out in the Tribunal decision in Re Filsell and Comcare [2009] AATA 90, (2009) 49 AAR 506. In doing so, it is respectfully concluded that the Tribunal did not fail to understand the constraints imposed by s 42B and the principles to be applied.

31    The Tribunal thereafter went on to address the past claims that had been made by Mr Soames and the earlier unsuccessful attempts he had made to have adverse decisions reviewed. The Tribunal also set forth the invitation it extended to Mr Soames to call additional evidence. In doing so, its reasons for decision state as follows:

[17]    On 1 October 2013 at a directions hearing held to consider the management of Mr Soames application, I explained that an issue highly relevant to deciding whether it was appropriate to dismiss his application for review under s 42B(1) of the AAT Act was whether there was any new evidence to support his assertion that each AAT Decision had incorrectly calculated the value of his assets. Mr Soames was directed to provide to the Tribunal and the respondent Secretary, by 15 October 2013, any new evidence on which he proposed to rely…

A document was filed by Mr Soames pursuant to that direction and “the short comings of this ‘evidence’ was pointed out” to him at a further directions hearing. The Tribunal then separately addressed the various contentions advanced by Mr Soames in respect to:

    the manner in which he had disposed of monies to members of his family;

    the question as to whether a property he had acquired in Syria was jointly held with his wife;

    the proposition that “a large part of the $1 million he took to Syria was held by him in trust for his wife”; and

    the contention that some of the $1 million he took to Syria was to pay off loans.

32    The Tribunal in resolving the contentions advanced on behalf of Mr Soames approached its task by looking to the findings which had previously been made and thereafter (at least in part) looking to whether there was any “new evidence” which warranted different findings now being made. In doing so, it is not considered that any appellable error was exposed.

33    One example of the factual analysis undertaken by the Tribunal – and perhaps the best example from the point of view of Mr Soames – focussed upon his contention that a property held in Syria was held jointly for both himself and his wife. The Tribunal in December 2013 addressed this issues as follows:

The attribution of the Damascus property contention

[27]    In these proceedings Mr Soames contended that although he is recorded as the sole owner in the title deeds to the Damascus property, the property is held in equal shares with his wife. In support Mr Soames relied on a number of statutory declarations affirmed by his wife. In those declarations Mrs Soames repeated the claim she made in a statutory declaration affirmed on 17 October 2012 and included in the section 37 documents produced to the Tribunal in AAT Decision 3:

Our dream and agreement was to purchase a house next to my family and Andy’s family in Syria. We did manage to do that, on 20th August 2010, Andy purchased a house. The house is now in a war zone with many thousand properties being damaged from bombing [sic].

[28]    This evidence, while contained in an affidavit prepared after AAT Decision 3 was handed down, does not constitute new evidence. More to the point it could not be said to support a finding that the Damascus property was held in equal shares by Mr and Mrs Soames.

34    The Tribunal in paragraph [27] of its reasons footnoted references to other evidence of Mrs Soames. Part of that evidence was a statutory declaration deposed to by Mrs Soames on 22 July 2013 which relevantly stated as follows:

I previously signed a state declaration (Dated 17 October 2012) which explained the details about the business partnership I had. I stated before that my ex-husband went overseas specifically to buy a property in 2010 and I believe a lot of properties in that area and surrounding areas have been damaged or destroyed.

Our dream was to buy a property that we could use for the whole family whenever possible. Particularly my husband who wished to stay with his family for a few months every year and with his son Sammy as they both have been through a lot of trauma.

A later statutory declaration deposed to by Mrs Soames on 6 November 2013 relevantly stated (without alteration):

Andy has bought a property in Damuscus, Syria. This property has been purchased under an agreement with me to be used for joint purposes for our family. The property is currently in the middle of the Syrian Civil War zone. We are unsure whether this property is still standing, it can not be used, it can not be sold, because there is a violent civil war going on there at the moment. I believe after talking with family, that the property that was valued at $350,000 dollars, is now at no more than $80,000-$100,000.

Such evidence may have founded a contrary conclusion as to whether or not the Syrian property was jointly owned. But this particular finding of fact and the other findings of fact made by the Tribunal were open to it on the evidence – that evidence including not only the evidence of Mrs Soames but also the remaining evidence. The references both in the text of the Tribunal’s reasons published in December 2013 and in the footnotes to the evidence previously relied in the earlier Tribunal proceedings also indicates that the Tribunal directed its attention to the factual merit of the findings previously made. The Tribunal, in December 2013, it is considered, did not proceed from any assumption that findings previously made should unquestioningly be accepted. Such reliance as was undoubtedly placed upon the findings previously made is, perhaps, not surprising given the fact that it was the same Tribunal member who constituted the Tribunal on all relevant occasions.

35    Whatever may be the reservations and dissatisfaction Mr Soames may feel with respect to these factual conclusions and the other factual conclusions reached by the Tribunal, each of the factual findings were open to the Tribunal on the evidence.

36    With respect to the question whether Mr Soames’ application for review should be dismissed pursuant to s 42B(1)(a), the Tribunal concluded:

[35]     Mr Soames has provided no new evidence about any of issues he believes are central to his current application for review. Each was the subject of findings made by AAT Decision 1, AAT Decision 2 and AAT Decision 3. As pointed out by the Social Security Appeals Tribunal in its decision of 23 July 2013 these issues have now been examined by different tribunals on 10 occasions.

[36]     The AAT Act gives citizens the right to apply to the AAT for review on the merits of certain classes of decisions. Applicants are not required to “plead” their case or make out a prima facie case. The right however to seek review of a reviewable decision is not unfettered. Section 42B of the AAT Act gives the Tribunal the power to dismiss an application if satisfied that the application is “frivolous or vexatious”.

[37]     This is Mr Soames’ fourth application to the AAT concerning his eligibility for disability support pension and his second concerning eligibility for special benefit. Central to whether he meets the eligibility criteria for each benefit is whether the value of his assets exceeds the relevant cut-off figure. Over the past two years this issue has been examined by numerous decision-makers who each concluded that the value of Mr Soames’ assets exceeded the relevant cut-off figure for disability support pension. Mr Soames’ appeal to the Federal Court against the most recent decision of the AAT was unsuccessful. He has failed to provide any new evidence that might warrant revisiting the findings made by AAT Decision 3 despite being extended an invitation to submit new evidence. In these proceedings he simply repeated the assertion that the AAT and Federal Court “got it wrong”. In my opinion the current application has no reasonable prospects of success and is “vexatious”.

[38]     The authorities have consistently emphasised the power to dismiss an application summarily under s 42B must be exercised sparingly. I have decided that it is appropriate to exercise that power in this matter for the following reasons. First, the current application has no reasonable prospects of success and there would no utility in allowing it to proceed. Second, while a person is generally entitled to their “day in court”, in a merits review jurisdiction, over the past two years Mr Soames has had numerous days in tribunals and courts, where the same issues were repeatedly revisited. Third, just over four months has passed since the issues Mr Soames now wishes to raise were considered by the Tribunal and Mr Soames’ appeal against that decision was dismissed by the Federal Court.

With respect to the separate question as to whether a direction should be made pursuant to s 42B(1)(b), the Tribunal introduced its consideration of this question as follows:

[41]    In Re Theo and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 58 the Tribunal, commenting on a barring order made under s 42B drafted in broad terms, stated (at [6]):

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.

[42]    The authorities have consistently emphasised that the power to dismiss an application under s 42B must be exercised sparingly. In my opinion an even more cautious approach should be taken to making a barring order under that provision. Care must be taken to ensure that the terms of that order are not excessive.

In considering the “terms” of the order to be made, the Tribunal gave consideration to the facts relevant to both the making of a further claim for an age pension as opposed to a disability pension and ultimately concluded:

[48]    As pointed out in the decision of the SSAT made on 23 July 2013 (at [23]) even if Mr Soames’ house in Syria was treated as an “unrealisable asset”, and, the formula set out in s 1130 of the Act applied, disability support pension (and age pension) would not be payable because his “adjusted annual rate of ordinary income” exceeds his “maximum payment rate”.

[49]    Given the difficulties in deciding whether the age pension would be payable to Mr Soames after 1 July 2014 if the formula in s 1130 of the Act were to be applied, I have decided he should not be barred from applying to the AAT for review of a decision made in relation to a claim for age pension made after that date. These reasons should not be interpreted as indicating that I have formed a view that Mr Soames will be entitled to receive age pension from 1 July 2014, or, that the financial hardship rules can be applied (ss 1129, 1130), simply that he should not be prevented from seeking review of a decision to refuse to grant the age pension in relation to a claim made after 1 July 2014.

[50]    For these reasons I have decided that it is appropriate to make orders under s 42B(1) of the AAT Act to direct that Mr Soames must not, without leave seek review by the AAT of a decision relating to a claim for age pension made before 1 July 2014, or, a claim for special benefit made before 21 December 2015.

37    It is concluded that the Tribunal did not err in either of its exercises of discretion. It correctly identified the principles relevant to the exercises of the discretions conferred and applied those principles to the facts before it. Neither exercise of discretion miscarried. Indeed, albeit irrelevant to the conclusion reached, concurrence is expressed with the manner in which the discretionary powers were exercised.

38    In the circumstances of the present proceeding, it is further concluded that it would have been a very questionable exercise of power had the Tribunal concluded that it should not dismiss the application for review which was before it and had it not exercised the discretion to preclude Mr Soames from bringing any further application for review for the periods of time specified.

39    In proceeding in this manner it is not considered that the Tribunal committed any appellable error. The Tribunal:

    started off with the correct exposition of the discretionary power being exercised;

    identified the factual issues to be addressed in the application for review then pending before the Tribunal;

    examined whether there was any “new evidence” sought to be relied upon by Mr Soames, which could lead to any different factual conclusion being reached, different to the factual issues previously addressed and resolved by earlier decisions of the Tribunal; and

    separately addressed in its conclusions both the question as to whether the proceeding should be dismissed and whether a direction should be made preventing Mr Soames from re-applying.

No appellable error is discernible in the manner in which the Tribunal approached its task. No “question of law”, however expressed, is either apparent on any analysis of Mr Soames’ Notice of Appeal or from an independent review of the Tribunal’s reasons for decision.

40    The oral submissions advanced by Mr Soames during the course of the hearing on 18 March 2014 did, with respect, do nothing more than to canvas the factual correctness of the findings made by the Tribunal in both the December 2013 and in its earlier decisions. Indeed, considerable attention was given by Mr Soames to the evidence that had been relied upon by the Tribunal when it had made its earlier decisions and when reaching its last decision in December 2013. But all such submissions amounted to no more than an impermissible attempt by Mr Soames to challenge the factual conclusions reached by the Tribunal and all such submissions failed to identify any “question of law” arising in respect to the Tribunal’s application of s 42B of the Administrative Appeals Tribunal Act to the facts.

A reasonable opportunity to present his case and procedural unfairness

41    An alternative way of approaching any challenge to the December 2013 decision of the Tribunal is to question whether the Tribunal denied Mr Soames procedural fairness or denied him the “reasonable opportunity to present his … case” guaranteed by s 39 of the Administrative Appeals Tribunal Act. The “reasonable opportunity” to which s 39 refers, it is to be recalled, is just that – there is no requirement that the Tribunal ensure that a party takes the “best advantage” of that opportunity: Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], (2000) 60 ALD 737 at 748 per Cooper J. “[N]either the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled”: Sullivan v Department of Transport (1978) 20 ALR 323 at 343, (1978) 1 ALD 383 at 403 per Deane J (Fisher J agreed).

42    It may be possible for matters 1, 2, 3, 4 and 7 as set forth in the Notice of Appeal to be construed – albeit again in some very beneficial manner – as seeking to raise a “question of law” in respect to the manner in which the Tribunal conducted the hearing. Given the manner in which each of the matters set forth in the Notice of Appeal are drafted, it may also be the case that no clinical division may be made between any of the matters sought to be raised by Mr Soames in his Notice of Appeal. Each of those matters may (perhaps) be equally as well characterised as an error in respect to the manner in which the discretions conferred by s 42B were exercised, as an error in respect to the manner in which the Tribunal conducted the hearing before it.

43    In either event, if one or other of these matters were to be made out, it may thereafter be open to conclude that the reasons of the Tribunal published in December 2013 do not expose any misinterpretation or misapplication of s 42B to the facts, but that the decision of the Tribunal should nevertheless be set aside because the manner in which it proceeded was procedurally unfair.

44    A denial of procedural fairness, it may be accepted at the outset, is capable of giving rise to a “question of law” for the purposes of s 44(1): Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8], (2003) 131 FCR 28 at 32. Gray ACJ and North J there concluded:

[8]    Given the state of the authorities, this Court should accept the principle that a denial of procedural fairness is an error of law and that, therefore, an appeal from a decision of the Tribunal on the ground of such a denial raises a question of law. For this purpose, it is undesirable to attempt to distinguish between a denial of procedural fairness resulting from a course of action chosen by the Tribunal in conducting the case before it and a denial that is unintended and results from an error of fact made by the Tribunal …

Gyles J adopted a different view. His Honour did not question the proposition that a denial of natural justice could give rise to a “question of law”. His Honour, however, preferred to have recourse to the Administrative Decisions (Judicial Review) Act 1977 (Cth) as the means of ensuring compliance on the part of the Tribunal with the rules of procedural fairness. In doing so, his Honour concluded:

[61]    Section 44 of the Act refers to a question of law, not an error of law. Section 45 of the Act casts some light upon the meaning of that phrase when it permits the Tribunal to refer "a question of law arising in a proceedings" to the Federal Court for decision. This, to my mind, assists in coming to the conclusion that "question of law" in s 44 refers to a question of law which may be posed as such rather than supervision of the way the Tribunal carries out a review. This is consistent with the general legislative scheme. Questions of natural justice more sensibly fall within the purview of the ADJR Act than the special and limited provisions of s 44.

[62]    This view is reinforced by the constitutional backdrop against which the legislation is to be viewed. The Administrative Appeals Tribunal is a purely administrative body, and does not exercise any of the judicial power of the Commonwealth. The Federal Court can only exercise the judicial power of the Commonwealth. Answering questions of law which have arisen in the course of the proceedings of the Tribunal can be seen to be the exercise of that power. Supervising the procedures of an administrative body as such is not the exercise of the judicial power of the Commonwealth. It is reasonable to assume that the legislature would have been anxious not to blur the role assigned to the Federal Court by s 44. Any necessary judicial review could be undertaken pursuant to the ADJR Act: (2003) 131 FCR 28 at 45.

Notwithstanding the merit of the views expressed by Gyles J, other decisions of other Full Courts have endorsed the approach of Gray ACJ and North J, using the language (for example) that “a denial of procedural fairness is an error of law on the part of the Tribunal, and can therefore form the basis of an appeal to the court under s 44 of the AAT Act”: e.g., Cook v ASP Ship Management [2009] FCAFC 113 at [17] per Gray, Emmett and Besanko JJ; Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10 at [57], (2010) 114 ALD 8 at 23 per Marshall, Tracey and Foster JJ. So much may be accepted. In the absence of there being any difference between the content of the “reasonable opportunity” to present a party’s case (as referred to in s 39 of the Administrative Appeals Tribunal Act) and the content of procedural fairness, it may be that it matters little whether any “question of law” sought to be raised on appeal is expressed in terms of a denial of the “reasonable opportunity” or a denial of procedural fairness. It may be that the difference in approach between Gray ACJ and North J and that of Gyles J matters little in the absence of any legislative attempt to confine the content of that which constitutes a “reasonable opportunity”. But such differences can presently be left to one side. However it be expressed, a denial of procedural fairness on the part of the Tribunal is susceptible to review by this Court either pursuant to an appeal under s 44 of the Administrative Appeals Tribunal Act, or pursuant to s 5(1)(e) of the Administrative Decisions (Judicial Review) Act.

45    Those matters set forth in the Notice of Appeal, and particularly matters 1, 2, 3, 4 and 7, are susceptible of asserting a denial of procedural fairness and hence (potentially) a properly framed “question of law”.

46    The content of the denial of procedural fairness relied upon by Mr Soames is understood to be said to follow from:

    the fact that there was “no interpreter, putting applicant at severe disadvantage”;

    the denial of access to legal representation; or

    the denial of an adjournment.

47    Accepting that a denial of procedural fairness on the part of the Tribunal can be brought within the reach of s 44 of the Administrative Appeals Tribunal Act, and further accepting that one or other of the matters set forth in the Notice of Appeal could potentially be recast as giving rise to a “pure question of law”, there nevertheless remain at least three fundamental difficulties in any path of Mr Soames to success via this route, namely:

    there is an absence of any reliable or persuasive evidence in support of any of the allegations sought to be advanced;

    the reasons for decision of the Tribunal and an examination of the transcript of the hearing before the Tribunal in December 2013 deny the prospect of any inference being drawn that any of the allegations have any factual merit; and

    each of the matters sought to be canvassed in the Notice of Appeal, when read either separately or in conjunction with Mr Soames’ affidavit are really (again) an unashamed attempt to re-canvass findings of fact that have been made by the Tribunal in both the decision sought to be appealed and the earlier decision of the Tribunal.

Each of the matters sought to be raised by Mr Soames does not withstand scrutiny.

48    His assertion, for example, that “there was no interpreter, putting applicant at severe disadvantage” is without substance. As a general proposition, it may be accepted that a person does not have a meaningful opportunity to be heard if he does not understand questions being put and an opportunity to answer those questions. In some circumstances, an effective opportunity to be heard may require the provision of an interpreter. In Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at 195 per Goldberg J, for example, observed:

[31]     … The invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the Tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the Tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the Tribunal. If that situation arises the Tribunal will not have fulfilled its obligation under s 425(1).

See also: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 at [36], (2002) 122 FCR 322 at 331 per Mansfield J. Similarly, inadequacies in translation facilities may preclude a party having such a “reasonable opportunity”: Eao v Federal Commissioner of Taxation [2009] FCA 992 at [13] to [14], (2009) 76 ATR 886 at 889 – 890 per Middleton J. “Whether or not inadequate translation or interpretation means that a hearing is not fair will depend ultimately on the particular circumstances of the case”: SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [5] per Allsop CJ. It is considered that a party “must be provided with a standard of interpretation such that he is afforded a meaningful opportunity to communicate his claims, evidence and submissions to a decision-maker and a meaningful opportunity to respond to that which a decision-maker may wish to say”: [2013] FCAFC 142 at [45]. See also: Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1376 at [27] to [28], (2001) 115 FCR 1 at 6 per Tamberlin, Mansfield and Emmett JJ.

49    But it is not considered that any absence of any interpreter being present at the proceeding before the Tribunal in the present case denied Mr Soames either procedural fairness or (to the extent that there is any difference) a reasonable opportunity to present his case as required by s 39 of the Administrative Appeals Tribunal Act. Whether there has been a denial of procedural fairness in any given case will depend upon a multitude of factors, including:

    the legal and factual issues under consideration;

    the familiarity with the factual background that gave rise to the dispute and the need to comprehend and understand new and possibly complex legal or factual issues; and

    the fluency of the party in English and his ability to personally communicate his evidence and submissions without the assistance of an interpreter.

The legal and factual issues in the present proceeding, it may be noted, had been canvassed many times in earlier proceedings. Mr Soames has been living in Australia for a period in excess of 42 years.

50    In a submission filed after the conclusion of the hearing, and filed pursuant to leave granted, Mr Soames nevertheless stated (without alteration) :

At the hearing on 06/12/11 I was extremely confused and did not understand 60% of the questions due to the following reasons:

-    The way I was questioned by the lawyer was extremely confusing and undirected.

-    The equipment provided for my hearing was not working well and I could not hear correctly. I mentioned 3 times to the member I have difficulty hearing but she ignored me.

-    The interpreter was not able to keep up since they were speaking too fast. When I asked her to interpret she said she could not catch up.

-    I had difficulty understanding the questions on numerous occasions.

-    My depression and anxiety was very high on that day. I gave the tribunal medical evidence to prove I have severe depression, along with post-traumatic stress (That I have had for more than 30 years).

I wish that the member and the lawyer would have had some integrity to stop the questions being said, when they saw I was answering it wrong numerous times and having trouble understanding it. The speed of the questions being put forward to me caused much difficulty for me to answer.

I wish that the member would use her professionalism and integrity to direct the lawyer to put the question through the interpreter that was available at the time, but she did not. She supported the lawyer that was questioning me in a confusing manor.

A review of the transcript of the hearing before the Tribunal on 6 December 2011 does in fact reveal on a number of occasions Mr Soames telling the Tribunal of the difficulties he was experiencing. But a review of that transcript also reveals Mr Soames responding to questions being put to him and him advancing his submissions. Some of the answers provided and some of the submission being made are longer than others. Some are more detailed in content than others. The transcript occupies in excess of 100 pages. The hearing commenced at 10.22 am and concluded at 4.02 pm. There was an interpreter available to Mr Soames throughout the hearing. Notwithstanding the arguments now sought to be advanced, it is respectfully concluded that a review of the transcript exposes Mr Soames being afforded a “reasonable opportunity” to present his case. Any submission to the contrary is rejected.

51    Before this Court, Mr Soames had the assistance of an interpreter. The interpreter left after Mr Soames had concluded his submissions and part-way through the short oral submissions being advanced on behalf of the Respondent. But little difficulty, it is considered, was experienced at any point of time in Mr Soames personally communicating to the Court the submissions he wished to make and little (if any) difficulty experienced in understanding the submissions being advanced against him. Recourse was had by Mr Soames to the interpreter from time to time but – in the whole – the hearing proceeded without much participation by the interpreter. There is no reason to believe that any greater difficulties were experienced by Mr Soames before the Tribunal. The assertion in Mr Soames Notice of Appeal that he “didn’t understand proceedings” is rejected. There is no substance in either the second or third matter set forth in Mr Soames’ Notice of Appeal. Also rejected is Mr Soames’ submission that he experienced fewer difficulties in this Court than before the Tribunal by reason of this Court proceeding in a slower manner than the Tribunal.

52    Nor is there any substance in the arguments as to a denial of procedural fairness arising by reason of any denial of legal representation or by reason of the refusal of an adjournment.

53    The right to legal representation in criminal proceedings (Dietrich v The Queen (1992) 177 CLR 292), it should be noted, does not extend such that there is a denial of procedural fairness in an administrative proceeding if legal representation is not provided: Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265 at [28-36], (2000) 101 FCR 20 at 27 – 29; per Sackville, Marshall and Lehane JJ. See also: Daw v Minister for Immigration & Citizenship [2012] FCA 705 at [25] per Edmonds J. (Affirmed: Daw v Minister for Immigration and Citizenship [2012] FCAFC 123); Herring v Minister for Immigration and Citizenship [2012] FCA 970 at [21].

54    But the refusal of an adjournment by an administrative body may occasion a denial of procedural fairness: Sullivan v Department of Transport (1978) 20 ALR 323 at 344, (1978) 1 ALD 383, 402 per Deane J; L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 at [20] to [21], (2006) 233 ALR 423 at 437 – 438 per Black CJ, Moore and Finkelstein JJ.

55    In the present proceeding questions as to a denial of legal representation and the refusal of an adjournment overlapped.

56    The application for an adjournment of the hearing before the Tribunal thus seems to have been made upon the basis of (inter alia) an application having been made for legal assistance and an inability to comprehend the legal and factual issues being canvassed. That application was rejected by the Tribunal. The transcript of the hearing before the Tribunal on 26 November 2013 relevantly records the legal representative for the Respondent opposing the adjournment upon the basis that there were “insufficient grounds” and thereafter also records the following exchange:

MR SOAMES: Well, the ground is simply, Senior Member, it would be truly impossible to deal with law I don’t understand.

SENIOR MEMBER: Yes.

MR SOAMES: Really impossible. I won’t be able to address and deal with all of that. Particularly, I mean, I’m an elderly person and never studied law or know about law. Now, it would be a great disadvantage to me, unfortunately. And I think it’s a shame anyone could say insufficient evidence. I need legal representation and I’m entitled to it under Australian law and human rights, and I need to present the facts. This is one aspect. But the second aspect, a lot issues have not been addressed before. I need ---

SENIOR MEMBER: Okay. Let’s deal with the adjournment application first, Mr Soames. I’m going to – Mr Soames, your application to this tribunal was made on 16 August 2013. In mid-September 2013 you were notified of the tribunal’s decision to consider whether or not the matter ought be dismissed under section 42B of the AAT Act. There have been two directions hearings since that time to talk about the management of this application. I have – I agree with you that the issues raised in a dismissal application of this type are complex and raise not necessarily straight-forward questions of law. I also agree that the question of your eligibility for DSP and the application of the asset value test, and the disposition rules, and indeed the hardship rules, are not straight-forward, and are difficult for a person who is not legally trained to understand.

This said, however, the history of this matter, as I understand it is that for both the two proceedings before the Federal Court and the proceedings in this tribunal, efforts have been made on your part to obtain Legal Aid. I have no reason to doubt that you have been diligent in those efforts and you have just told me that you have made at least four applications, I imagine, to the Legal Aid Commission and applications for representations on a pro bono basis. I’ve no doubt that you have pursued those with some energy and vigour.

However, you have been unsuccessful to date, and there is nothing in respect of your recent discussions with the Disability Advocacy Service to lead me to believe that you are likely to be successful for this case. So, in my view, there would be – there is no reasonable prospects that you would obtain legal representation. I agree, that’s unfortunate, however, that’s the situation in which we find ourselves in. And for that reason I’ve decided to refuse your application for these proceedings to be adjourned.

MR SOAMES: But, I mean ---

SENIOR MEMBER: Yes, well, you’ve heard what I’ve said.

MR SOAMES: --- you’ve put me in a very impossible situation.

SENIOR MEMBER: Okay.

MR SOAMES: And you have been biased all the way through from dealing with the case yourself.

SENIOR MEMBER: Yes. Okay. So ---

MR SOAMES: I did ask you two times to dismiss yourself as you have been biased, and you are protecting serious act of crime by the respondent, Sue Mahoney changing the contract, and you’re protecting her. And you’re protecting her of many other acts she did at the moment, I need to just deal with it. So, I mean, you’re running the case one-sided story, Senior Member.

No error is exposed in the manner in which the Tribunal resolved the adjournment application being made. The application for an adjournment was made, properly considered and – in the exercise of a discretion as to whether or not to grant the adjournment – the application was refused. An adjournment may have been granted; but the refusal of an adjournment cannot be construed as involving any erroneous exercise of discretion.

57    Shortly after this exchange, it should be noted that the following exchange also occurred:

SENIOR MEMBER: Mr Soames, you’ve got an opportunity to – I will give you an opportunity to say something. I have some questions – I’m proceeding with the matter. I’m not granting your adjournment application. Your options are these: you stay and you comply with my management of the hearing.

MR SOAMES: I mean, you stop me to putting my case to you.

SENIOR MEMBER: Or you leave. But I won’t be having – I won’t be interrupted and I won’t be going down some of these side-tracks that you would like to go down now. Okay.

MR SOAMES: So the ---

SENIOR MEMBER: No, no no, please don’t argument with.

MR SOAMES: I’m talking about important evidence has never been heard ---

SENIOR MEMBER: Okay.

MR SOAMES: --- previously, including you being hiding the evidence.

SENIOR MEMBER: Okay. Can I just – I’m just going to stop you for a minute.

MR SOAMES: You can’t stop me when I’m presenting my case. I’m entitled to present my case.

SENIOR MEMBER: Well, I am ---

MR SOAMES: You are in charge of the room, the courtroom obviously, but I need opportunity to present the case.

SENIOR MEMBER: Mr Soames ---

MR SOAMES: You have been acting maliciously obviously and you have been unlawfully supporting the respondent to take advantage of my disability. I’m in very difficult circumstances.

SENIOR MEMBER: Yes. Yes.

MR SOAMES: And you and the defendant have been working on the wrong evidence.

SENIOR MEMBER: Yes. Okay. I’m just going to stop you there. It’s the last time I’m going to ask you to stop, Mr Soames, because I’m very close to asking you to leave the hearing. So I just want to stop you there because I have some questions for Mr Thompson about his submissions which I’m unclear about. And maybe if you might listen to those you might be capable of understanding some of these issues. So I would be very grateful, Mr Soames, if you would not interrupt me again. So I will come back to you in a minute, and I have a question for Mr Thompson. Okay.

MR SOAMES: But will you give me opportunity to speak on my case?

SENIOR MEMBER: I will give you an opportunity to speak. You have read the transcript of the last occasions, you can see you have been given a lot of opportunities to speak.

MR SOAMES: I have not, that is totally false.

58    These exchanges expose not only the reasoning of the Tribunal in refusing an adjournment – they also expose the not inconsiderable difficulties being experienced by the Tribunal. Submissions were there being advanced that the Tribunal was acting (inter alia) “maliciously” and “unlawfully”. Difficulties were obviously being experienced by both Mr Soames being (as he would have it) frustrated as to the constraints being put upon him in the presentation of his case and difficulties being experienced by the Tribunal. Of present relevance to the appeal is the fact that the application for an adjournment had been properly entertained and resolved. Moreover, the exchanges also give content to submissions made by Mr Soames to this Court as to the Tribunal “interrupting” him and not allowing him an opportunity to present his case. The balance of the transcript thereafter records Mr Soames continuing to advance his case. There was, it is concluded, no unwarranted constraint upon Mr Soames in the presentation of his case and no prejudice to Mr Soames in the refusal of his adjournment application. Nor was there any unwarranted interruption to Mr Soames in his making of submissions. The Tribunal, it is respectfully considered, discharged its responsibilities in a fair and impartial manner throughout a hearing which proved challenging - especially given the unfounded allegations being made by Mr Soames against the Tribunal member presiding.

Rule 2.32

59    Brief mention should be made of the order first made on 11 February 2014 prohibiting access by the public to documents otherwise forming part of the Court record.

60    Rule 2.32 of the Federal Court Rules 2011 provides in relevant part as follows:

Inspection of documents

(1)    A party may inspect any document in the proceeding except:

(a)    …. or

(b)    a document that the Court has ordered be confidential.

(2)    A person who is not a party may inspect the following documents in a proceeding in the proper Registry:

(a)    an originating application or cross-claim;

…..;

(c)    a pleading or particulars of a pleading or similar document;

(d)    a statement of agreed facts or an agreed statement of facts;

(e)    an interlocutory application;

…..

(g)    a notice of appeal or cross-appeal;

…..

(3)    However, a person who is not a party is not entitled to inspect a document that the Court has ordered:

(a)    be confidential; or

(b)    is forbidden from, or restricted from publication to, the person or a class of persons of which the person is a member.

(4)    A person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect.

Reference should also be made to r 6.01 of the Federal Court Rules which provides as follows:

Scandalous, vexatious or oppressive matter

If a document filed in a proceeding contains matter that is scandalous, vexatious or oppressive, a party may apply to the Court for an order that:

(a)    the document be removed from the Court file; or

(b)    the matter be struck out of the document.

61    The material which it is considered should be the subject of an order that it remain confidential is:

    Order 1 as sought in the Interlocutory Application filed in Court on 11 February 2014;

    Order 9 as sought in the Notice of Appeal filed on 16 January 2014; and

    paragraphs [5], [28] (the first sentence) and [37(d)] of the Affidavit of Mr Soames filed on 16 January 2014.

In addition to that material, some of the content of the further submissions filed by Mr Soames after the hearing concluded should also be included. That further material in respect to which an order should be made is:

    paragraph 7 of the statutory declaration of Mr Soames;

    the third and eighth “dot points” in respect to “point number 37”;

    the fourth, fifth and tenth “dot points” made under the heading “challenge to point number 17”;

    the sixth and seventh “dot points” made under the heading “The Loan Issue was obtained in 2004”;

    the eight lines of submissions made after the “dot points” under the heading “Hardship in relation to Andy Soames and his Family”;

    the second and third “dot points” made under the heading “Mental State of Any (sic) Soames”;

    paragraph 5 under the heading “Bad Hearing Against The Law And Tribunal”; and

    paragraph 10 of the statutory declaration of Ms Hiam Soames dated 17 October 2012.

A copy of that material will be made available at the time of delivery of judgment so that any uncertainty in the material the subject of the order will be clearly identified. A copy of the same material will be provided to the Registrar of the Court. That material contains allegations of sexual misconduct. The material is of no immediate relevance to the issues to be resolved on appeal. The material, moreover, contains in many instances unsubstantiated allegations of a personal nature as to the conduct of persons not connected with the present proceeding. Although courts are to conduct their proceedings openly, there is also a responsibility to ensure that courts do not become the forum in which a litigant can voice whatever he wishes.

62    Some thought was given to extending the order to also include the many allegations of “criminal activities” made against members of the Tribunal. Other allegations made by Mr Soames included allegations against a judge of this Court and his repeated statements “that I have no justice in this case…”. All such allegations, it should unequivocally be said, have no factual foundation. No allegation has any merit. All such allegations are, of course, extremely serious. They are allegations, at the very least, that the Tribunal members have not impartially discharged their responsibilities entrusted to them. In the case of judicial officers, again at the very least, they are allegations that a Judge has not discharged his oath of office: Federal Court of Australia Act 1976 (Cth) s 11. But no litigant, it is respectfully concluded, “should be deterred from fearlessly advancing such arguments as can be responsibly and appropriately raised for resolution”: Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 at [106] per Logan and Flick JJ. Notwithstanding the gravity of the allegations being made, the public administration of justice requires – within limits - that such allegations be publicly available. No order should thus be made pursuant to r. 2.32(1)(b) in respect to the allegations made against either the Tribunal members or Buchanan J. In the present case it is further concluded that the allegations made against the Tribunal members and the Judge of this Court were not responsibly advanced. Mr Soames had no basis for making the allegations.

63    An order in respect to the remaining categories of materials that have been expressly identified, however, should be made pursuant to r 2.32(1)(b). That has the consequence pursuant to r 2.32(3)(a) that a person who is not a party to the proceeding may not inspect that material.

64    Given that that order is made, it is unnecessary to further consider whether or not an order should be made pursuant to r 6.01. Even if an order were to be made pursuant to that rule, a record of the material which was “struck out” pursuant to r 6.01(b) would, presumably, remain as part of the record of the Court. Perhaps not. Perhaps the effect of r  6.01 is that material which is “struck out” forever after is obliterated from the records of the Court. However that question may be resolved, it is sufficient for present purposes to make an order maintaining the confidentiality of that material and precluding access being granted to it by a non-party.

Conclusions

65    The Notice of Appeal fails to identify any “question of law” and none is discernible upon an independent review of the materials available. No “question of law” was discernible from the oral submissions made by Mr Soames.

66    The appeal is without merit and is to be dismissed.

67    In so concluding, considerable attention has been given to the sincerity and conviction with which Mr Soames advanced his submissions. He was repeatedly advised during the course of both directions hearings and the final hearing that the allegations of sexual misconduct were of no immediate relevance to the issues to be resolved on appeal. But his sincerity and conviction cannot be doubted or questioned. Mr Soames, it may be accepted, has long pursued “justice” for his son. The allegations which are made would have unquestionably had a significant influence upon Mr Soames, the son and the family as a whole. To some extent, that impact may have coloured Mr Soames’ ability to impartially and effectively present his evidence and submissions in the Tribunal decisions now under consideration. In considering whether Mr Soames was denied a reasonably opportunity to present his case before the Tribunal, consideration has accordingly been given to the difficulties he would unquestionably have been personally experiencing. But it has led to no different conclusion being reached.

68    Whatever merit Mr Soames’ claims in respect to his son may have in another forum, those claims have no relevance to the identification of any “question of law” in respect to the December 2013 decision of the Tribunal. It is the resolution of any such question which is the sole province of this Court and the sole matter in respect to which this Court has jurisdiction.

69    The sincerity with which Mr Soames holds and expresses his views may also considerably explain the intemperate manner in which he sought to advance his case before the Tribunal and this Court. Mr Soames used, for example, terminology to describe the conduct of the Tribunal member and the legal representative for the Respondent as (for example) “criminal”, “immoral”, “biased”, “corrupt”, “evil” and “manipulative”. To preclude Mr Soames from using such terminology may well have been perceived by him as yet a further example of what he described as “the club” which “protected the system”. Although a different course could have been pursued, it was considered preferable to largely let Mr Soames employ such terminology as best enabled him to express his submissions. In so proceeding, however, it should be expressly stated that such language as was directed to the Tribunal member ultimately proved to be misguided. Criticisms of the Tribunal member and the legal representative for the Respondent were without foundation. To the extent that like terminology was used to describe the manner in which the present proceeding was conducted, such terminology has been placed to one side as assuming no significance.

70    To the extent that Mr Soames submitted that he had been denied a fair hearing before this Court, that is a submission best advanced in another forum – if he so wishes. One submission was that he had been denied legal representation; but he was provided with access to counsel and (for whatever reason) he declined that assistance. A further submission advanced towards the conclusion of the hearing on 18 March 2014 was that he had been denied an opportunity to advance submissions as to the “hardship” being suffered. As an aspect of the merits of his appeal, that was considered to be an issue which had been already addressed during the course of the hearing. And, in any event, it was the acceptance of his claims to have suffered “hardship” that led to his appeal being expedited and heard approximately two months after the Notice of Appeal was first filed. Some of that time was taken up by reason of his own unavailability to attend a final hearing on 6 March 2014. It was not considered at the time – and is still not considered – to be a denial of a reasonable opportunity to be heard to confine Mr Soames after some 2 ½ hours of submissions to that which was relevant and to preclude the repetition of submissions previously made. But, in any event, leave was granted to Mr Soames at the conclusion of the hearing to file and serve within seven days such further submissions as he considered were necessary or appropriate. Further written submissions were filed. They have been considered. But they lead to no different conclusion being reached. Other than the submissions which have been extracted and which were directed to Mr Soames being “extremely confused” during the Tribunal hearing on 6 December 2011, those submissions were largely directed to errors of fact said to have been made by the Tribunal. Some of the material was already included in the materials available at the hearing.

71    There is no reason why Mr Soames should not pay the costs of the Respondent.

THE ORDERS OF THE COURT ARE:

1.    Pursuant to r 2.32(1)(b) of the Federal Court Rules 2011 (Cth) the following material be kept confidential and not be made available for inspection, namely:

(i)    Order 1 as sought in the Interlocutory Application filed in Court on 11 February 2014;

(ii)    Order 9 as sought in the Notice of Appeal filed on 16 January 2014; and

(iii)    paragraphs [5], [28] (the first sentence) and [37(d)] of the affidavit Mr Soames filed on 16 January 2014;

(iv)    paragraph 7 of the statutory declaration of Mr Soames;

(v)    the third and eighth “dot points” in respect to “point number 37”;

(vi)    the fourth, fifth and tenth “dot points” made under the heading “challenge to point number 17”;

(vii)    the sixth and seventh “dot points” made under the heading “The Loan Issue was obtained in 2004”;

(viii)    the eight lines of submissions made after the “dot points” under the heading “Hardship in relation to Andy Soames and his Family”;

(ix)    the second and third “dot points” made under the heading “Mental State of Any (sic) Soames”;

(x)    paragraph 5 under the heading “Bad Hearing Against The Law And Tribunal”; and

(xi)    paragraph 10 of the statutory declaration of Ms Hiam Soames dated 17 October 2012

2.    The appeal is dismissed.

3.    The Applicant is to pay the costs of the Respondent

Associate:

Dated:    28 March 2014