FEDERAL COURT OF AUSTRALIA

Soames v Secretary, Department of Social Services [2014] FCA 1054

THE COURT ORDERS THAT:

1.    The application for leave to appeal out of time be dismissed with costs.

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

REASONS FOR JUDGMENT

1    This is an application for leave to appeal from orders made by Flick J on 28 March 2014. On that day, his Honour dismissed Mr Soames’ appeal from the Administrative Appeals Tribunal (the ‘Tribunal’). The Tribunal had, pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth), refused Mr Soames’ application for review of a decision of the Social Security Appeals Tribunal (the ‘SSAT’) made in July 2013. The SSAT had upheld decisions by Centrelink not to grant Mr Soames a disability support pension or special benefit payments.

2    Mr Soames has been litigating about his disability support pension for some time now.

3    On 23 February 2012, the Tribunal affirmed an earlier decision of the SSAT affirming Centrelink’s decision to cancel Mr Soames’ pension: Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 107. At the root of the matter was the fact that Mr Soames had taken in excess of $1 million out of Australia. He claimed that he had used most of that money in ways which were not recoverable. The Tribunal did not accept this: ‘I do not accept that Mr Soames spent over $1,040,000 overseas in less than five months as he has claimed’. Consequently it concluded that he had disposed of the funds for inadequate consideration (at [54]). It therefore included an amount of $940,000 in his assets which was sufficient to cancel his pension under the relevant legislation.

4    In August 2012 Mr Soames invited the Tribunal to revisit this decision on the basis that he held the money on trust for his wife. The Tribunal concluded that this was not so and declined to reopen the matter. At the same time it rejected Mr Soames’ challenge to a decision of the SSAT affirming a further decision to refuse another application for the disability support pension made in February 2012: Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 699 (11 October 2012).

5    Mr Soames then sought to appeal to this Court from the Tribunal’s earlier decision. He did so seven months out of time. His proposed grounds of appeal included all sorts of scandalous allegations against the Tribunal and the Secretary’s representative. Katzmann J considered all of these matters carefully and dismissed them commenting (at [76]) ‘[t]he proposed appeal is not merely weak, it appears to be hopeless’: Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 260.

6    Thereafter, Mr Soames again reapplied for his pension. This he did in July and September 2012. Each application was refused by the Department on the same basis that his pension had been cancelled. He also applied unsuccessfully for a health card and special benefits. For its part the Department decided to recover from Mr Soames some of his pension which it said had been overpaid.

7    The matters outlined in the above paragraph all made their way to the Tribunal which on 8 July 2013 affirmed all of the decisions: Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 473.

8    Mr Soames then appealed that decision to this Court. Buchanan J dismissed the appeal noting at [65] ‘[a]s a proposition that he was treated unfairly, in any procedural or substantive way, or that the Senior Member was motivated by bias, malice or any other legally disabling factor, Mr Soames’ assertions had no substance’: Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 938.

9    On 27 September 2013 the Tribunal affirmed the decision to recover the overpayments from Mr Soames: Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 693.

10    On 15 April 2013 Mr Soames again applied for the same pension which was refused yet again on the same basis. On 23 December 2013 the Tribunal dismissed Mr Soames’ application for review of that decision and held that it was vexatious and frivolous. Consequently, it ordered that he be barred from further litigating issues relating to his pension in the Tribunal: Re Soames and Secretary, Department of Social Services [2013] AATA 945.

11    On 22 January 2014 Foster J dismissed an application by Mr Soames for urgent injunctive relief based on the same underlying issues: Soames v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 11.

12    Meanwhile Mr Soames had again applied to the Tribunal to review another refusal to grant him the pension. This was dismissed on 7 February 2014: Re Soames and Secretary, Department of Social Services [2014] AATA 133.

13    On 18 March 2014 Flick J heard Mr Soames’ appeal from the Tribunal’s 23 December 2013 dismissal of his application for review and its decision to order that he not further litigate this issue in the Tribunal. Flick J dismissed the appeal: Soames v Secretary, Department of Social Services [2014] FCA 295. It is that decision which is presently before me. I return to it shortly.

14    In March 2014 Mr Soames applied to the Tribunal for review of decisions made by Centrelink and the SSAT refusing to grant him the age pension. As the Tribunal noted in its reasons, Mr Soames’ application re-agitated a number of the issues that had been considered by Flick J. The application was refused on 30 April 2014: Re Soames and Secretary, Department of Social Services [2014] AATA 258.

15    Finally, on 4 September 2014 Jagot J dismissed Mr Soames’ appeal from the Tribunal’s 30 April 2014 decision: Soames v Secretary, Department of Social Services [2014] FCA 952. Her Honour also listed for hearing on 19 September 2014 the Secretary’s application for a vexatious proceedings order in respect of Mr Soames, pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth).

16    Before Flick J, Mr Soames articulated no question of law for the Court’s consideration within the meaning of s 44 of the Administrative Appeals Tribunal Act. Despite this his Honour took considerable pains to consider what potential appeal points Mr Soames might have. Ultimately, his Honour was able to discern no error in the manner in which the Tribunal had approached the matter.

17    Mr Soames did not file a notice of appeal within the time stipulated by the rules. Accordingly, to proceed with any appeal from the orders made by Flick J he requires the leave of the Court.

18    It seems to me that I should not grant leave to appeal. Before leave could be granted the Court would need to be satisfied that Flick J had at least arguably committed some kind of error.

19    Mr Soames addressed the Court for over 2 hours. The submissions included Mr Soames shouting over the top of me to the extent that I needed to adjourn the Court. I endeavoured to get Mr Soames to explain what his argument was with limited success. It seemed, doing the best that I can, that there were seven points:

(1)    Flick J had denied him natural justice;

(2)    Flick J had not dealt with 95-97% of the evidence;

(3)    Flick J had cut him off half way through the hearing and had not given him the transcript;

(4)    Flick J was actually biased;

(5)    Mr Soames had a major disability and those around him had suffered various misfortunes;

(6)    Mr Soames was on multiple medications; and

(7)    the Department’s conclusion that he owned additional properties in Damascus was false, indeed, criminally so. He also expressed dissatisfaction with the Department’s view as to how he had dealt with the $1 million.

20    I was not taken to any material to make good the allegations in (1)-(2). Mr Soames told me, repeatedly, and in a voluble fashion that these matters were so but he did not descend into any analysis of the material before me to explain why. I decline to undertake this task myself.

21    I am therefore not satisfied either that Flick J denied Mr Soames procedural fairness or that his Honour had not dealt with 95-97% of the evidence.

22    As to (3), it was within the power of Flick J to curtail Mr Soames’ address. Indeed, having heard Mr Soames (who is extremely discourteous) I can well understand why his Honour might have sought to curtail his outbursts. Contrary to Mr Soames’ submission, it is apparent from his Honour’s reasons that he was at pains to extract as much of what was coherent from Mr Soames as was possible and to consider that material carefully. His Honour also committed no arguable error by not providing Mr Soames with a transcript.

23    As to (4), the mere fact that Flick J explored with Mr Soames the difficulties in his case does not come close to establishing actual bias.

24    Plainly (5)-(7) were very serious matters from Mr Soames’ perspective. I do not see however that they relate to any errors by Flick J.

25    Mr Soames also complained about the services he says he received from a pro bono barrister. This can have no relevance to whether there were any errors made by Flick J.

26    In those circumstances the application for leave to appeal will be dismissed with costs. It was devoid of merit and was an abuse of process. I will hear the Secretary on the form of confidentiality orders to suppress Mr Soames’ more outrageous allegations against various third parties.

Associate:

Dated:    1 October 2014