Kumar v Secretary, Department of Social Services [2021] FCA 1662 | Case summary

LOGAN J: 1 In January 2001, while working as a taxi driver, Mr Nitesh Kumar (Mr Kumar) had the misfortune to be involved in a motor vehicle accident. A sequel to that was an injury to his right thumb, apparently as the result of the deployment of an airbag in the vehicle he was driving. Mr Kumar also sustained soft tissue injuries to his lower back and both knees. Thereafter, however, he did return to work. About a decade after the motor vehicle accident, whilst also working as a taxi driver, he injured his back when lifting a passenger's luggage. 2 Thereafter, Mr Kumar has made a succession of claims under the Social Security Act 1991 (Cth) (1991 Act) for the payment of a Disability Support Pension. He has also instituted proceedings in the Compensation Court of New South Wales under the Workers Compensation Act 1987 (NSW), and, further, made application for compensation under that New South Wales statute to the Workers Compensation Commission of New South Wales under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Workplace Injury Management and Workers Compensation Act). 3 One of the issues raised in the present proceeding arises from an alleged interface by Mr Kumar between an outcome in the Compensation Court of New South Wales and fulfilment of the criteria for the payment under the 1991 Act of a Disability Support Pension. 4 There are two proceedings presently before the Court. Each has its origin in a decision of the Administrative Appeals Tribunal (Tribunal) given on 21 June 2021 in respect of an application by Mr Kumar for the review of a decision earlier made within that Tribunal's social services and child support division on 17 August 2020, which had in turn affirmed a decision of a delegate of the respondent Secretary to the Department of Social Services to reject a claim made by him on 25 January 2016 for the Disability Support Pension. 5 Mr Kumar has, at least purportedly, instituted in this Court's original jurisdiction the statutory appeal for which s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides in respect of the Tribunal's decision. That is proceeding NSD686 of 2021. Perhaps out of an abundance of caution, Mr Kumar has also applied under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for the review of the Tribunal's decision. That is, proceeding NSD 795 of 2021. 6 There is an overlap between the questions of law identified in the notice of appeal and the grounds of review identified in the application undertaking the ADJR Act. As pleaded, the questions of law in the notice of appeal are: NSD686/2021 1. Whether the provision(s) under s 94 of the Social Security Act 1991 (Cth) or any part thereof, is at the very least obscure within the meaning of s 15AB(1)(b)(i) of the Acts Interpretation Act 1901 (Cth) and the provisions should be given a meaning that is absurd or unreasonable within the meaning of s 15AB(1)(b)(ii) of the Acts Interpretation Act 1901 (Cth)? 2. Whether the applicant was denied natural justice by the decision (AAT ref. 2020/5419) of the Tribunal, and if yes, such decision should be quashed if it serves the ends of justice? 3. Whether the essential facts found which would have supported the decision to which the Tribunal came, and if yes, whether those facts fall within a statute properly construed? 4. Whether in the making of the decision, the Tribunal erred in vitiating, challenging, reviewing, quashing or calling in question the judicial proceeding (Matter No: 52227/2001) of the Honourable Compensation Court of New South Wales, contrary to the s17(3) of the Compensation Court Act 1984 (NSW), s 79(1), s 80 of the Judiciary Act 1903 (Cth) and/or s 118 of the Constitution? 5. Whether the decision of the Administrative Appeals Tribunal vitiates the proceeding or orders of Workers Compensation Commission of New South Wales, for want of form or otherwise, and therefore invalid because it is contrary to the s 350(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 79(1), s 80 of the Judiciary Act 1903 (Cth) and/or s 118 of the Constitution? 6. Whether the making of the decision under appeal was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made? 7. What is the meaning of the phrase or expression "any decision" under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth)? 7 Also as pleaded, the "grounds of review" (found, unconventionally, in the relief sought) in the originating application under the ADJR Act are: NSD795/2021 1. An order of certiorari quashing the decisions of the second respondent (ref: 2020/5419, 2020/S150333), under s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 because the applicant has been denied natural justice by the decisions. 2. An order of mandamus compelling the second respondent to adequately review the applicant's claim for the disability support pension under the provisions of s 27 of the Social Security Act 1991, s12 of the Social Security (Administration) Act 1999 and to make a finding in respect to the applicant's claim lodged on 25 January 2016 under s 94(1)(c)(i) of the Social Security Act 1991. 3. An order of mandamus or declaratory order issued to the first respondent that the applicant was eligible for the disability support pension when he lodged his claim for the disability support pension on 25 January 2016. 4. An order of mandamus or declaratory order issued to the first respondent that disability support pension be granted to the applicant under the provisions of s 94 of Social Security Act 1991, excluding any qualification period previously determined by the court in respect to the applicant's disability support pension claim or any such qualification period before that. 5. An order issued to the first respondent to pay the applicant compensatory damages, with inclusion of exemplary damages, a total of $16 million. 6. An order that first respondent pay the applicant's costs of and incidental in this matter. 8 It was convenient to hear both the appeal and the judicial review application together. 9 As became apparent from the oral and written submissions made by each of the parties in the proceedings, a number of key issues for resolution emerged. The first of these is concerned with the meaning of s 94(1) of the 1991 Act. That subsection provides: Qualification for disability support pension (1) A person is qualified for disability support pension if: (a) the person has a physical, intellectual or psychiatric impairment; and (b) the person's impairment is of 20 points or more under the Impairment Tables; and (c) one of the following applies: (i) the person has a continuing inability to work; (ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and (d) the person has turned 16; and (da) in a case where the following apply: (i) the person is under 35 years of age or is a reviewed 2008-2011 DSP starter; (ii) the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person's locally accessible labour market; (iii) if the person has one or more dependent children--the youngest dependent child is 6 years of age or over; the person meets any participation requirements that apply to the person under section 94A; and (e) the person either: (i) is an Australian resident at the time when the person first satisfies paragraph (c); or (ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or (iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person: (A) is not an Australian resident; and (B) is a dependent child of an Australian resident; and the person becomes an Australian resident while a dependent child of an Australian resident; and (ea) one of the following applies: (i) the person is an Australian resident; (ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1); (ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person. Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7. Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27. 10 Before turning to the submissions of the parties in relation to the construction of this subsection, some additional reference to the prior history of Mr Kumar's Disability Support Pension applications needs to be given. Particularly that is so because it gives context to what was so very obviously, from both his oral and written submissions, one particular grievance which Mr Kumar has had in relation to the outcome before the Tribunal on this occasion. 11 The fate of earlier applications by Mr Kumar for Disability Support Pension was finally determined by two earlier judgments of this Court: see, respectively, Kumar v Secretary, Department of Social Services [2017] FCA 158, Reeves J, which was an appeal under s 44 of the AAT Act against an earlier Tribunal decision, and a subsequent judgment of mine, Kumar v Secretary, Department of Social Services [2018] FCA 2119, which was a judicial review proceeding in respect of that same Tribunal decision. 12 As is revealed by the judgment of Reeves J, at [10], in the earlier proceedings before the Tribunal, it had been common ground as between Mr Kumar and the Secretary that Mr Kumar met the age, residency and impairment requirements of s 94, in other words, that he met s 94(1)(a) and s 94(1)(b). A controversial issue in respect of earlier applications earlier considered by the Tribunal was whether, in terms of s 94(1)(c)(i) of the 1991 Act, Mr Kumar had a continuing inability to work. 13 It was not common ground as between Mr Kumar and the Secretary in relation to the 2016 Disability Support Pension application as determined by the Tribunal that Mr Kumar satisfied the criterion found in s 94(1)(b), in other words, that he had an impairment of 20 points or more under what are called the impairment tables. All that was common ground before the Tribunal on this occasion was that Mr Kumar did have impairments as claimed. 14 It will be necessary to make some observations as to the effect, if any, in relation to the proceeding on this occasion before the Tribunal of the Secretary's earlier concession in respect of earlier Tribunal proceedings as to satisfaction of s 94(1)(b) of the 1991 Act. First, it is necessary to resolve a statutory construction question raised by Mr Kumar, perhaps flowing from recognition on his part as to a consequence of a factual conclusion by the Tribunal on this occasion that he did not have an impairment of 20 points or more for the purposes of s 94(1)(b) of the 1991 Act. 15 Mr Kumar's submission was that it was sufficient that he met s 94(1)(a) in any event. Essential to the success of that submission was that the criteria in s 94(1) are not cumulative. On the face of s 94(1), each respective paragraph is joined by the conjunction "and". Sometimes, depending on the particular context in which "and" is used in legislation, it can mean "or" or, at least, "either or each", the latter sometimes infelicitously abbreviated as "and/or". 16 Not so, in my view, in relation to the context in which s 94 falls for consideration. Each of the criteria specified in s 94(1) looks to me to be a discrete eligibility subject, upon the cumulative satisfaction of which there exists qualification for disability support pension. It is, for example, an unlikely construction indeed that mere attainment of age 16, for which s 94(1)(d) specifies a requirement, is itself sufficient to grant qualification for disability support pension. 17 Neither, in my view, is there any warrant for reading "and" in any different manner than the cumulative as between the various paragraphs of s 94(1), in other words, that a person has a physical, intellectual or psychiatric impairment as specified in s 94(1)(a) is more naturally to be regarded as a pre-condition to whether that particular impairment in terms of s 94(1)(b) is of 20 points or more, rather than as an alternative to what is specified in s 94(1)(b). 18 Thus, the submission made on behalf of the Secretary that the criteria in s 94(1) are cumulative is, in my view, to be accepted. 19 What, then, of the earlier concession made by the Secretary in relation to Mr Kumar's having met, for the purposes of earlier Tribunal proceedings, the criterion specified in 94(1)(b)? 20 The Tribunal is part of an administrative decision-making continuum: see Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 (Frugtniet), at [53]. Referring to Frugtniet, the Full Court in AAL19 v Minister for Home Affairs (2020) 277 FCR 393 (AAL19), at [24] stated: The ramifications of being part of an administrative continuum are necessarily dictated by the particular statutory scheme. 21 As it had earlier to Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329, at 333 - 334, and to Kirby J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, at [45], an observation made by the Tribunal in Re Easton and Repatriation Commission (1987) 6 AAR 558, at 561, commended itself to the Full Court in AAL19, at [24]. That observation by the Tribunal was: The ambit of a review by the [Tribunal] is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review, for the function of the [Tribunal] is to review a decision. 22 As to the notion of the Tribunal as part of an administrative decision-making continuum, reference might also usefully be made to a helpful discussion in M. Paterson, "Adventures on the administrative decision-making continuum: Reframing the role of the Administrative Appeals Tribunal" (2019) AIAL Forum 96, p. 65. 23 In this particular case, it is understandable how a layperson such as Mr Kumar might find it a little odd that a subject conceded in earlier Tribunal proceedings ended up, as the Tribunal's reasons in this case reveal, to be dispositive of the review of his 2016 Disability Support Pension claim. It necessarily followed from the construction of s 94(1) adopted by the Tribunal and upheld by me in the present proceedings that the Tribunal's conclusion that Mr Kumar did not satisfy s 94(1)(b) because his points under the impairment table were zero that the rejection of his 2016 claim had to be affirmed. 24 The resolution of the apparent inconsistency in public administration by the Secretary is to be found in an understanding of the statutory context in which the 2016 Disability Support Pension claim fell for resolution. There is no easy path to that understanding. These days, it requires reference not just to the 1991 Act but also to the Social Security Administration Act 1999 (Cth) (Administration Act). 25 One sees from s 37(1)(a) of the Administration Act that eligibility for Disability Support Pension is ultimately a matter for administrative satisfaction in respect of a person meeting the qualifying criteria specified in s 94. In turn, regard to s 41 and s 42 and, in turn, sch 2 to the Administration Act with respect to rules for working out a start day provide an initial touchstone for the ascertainment of the relevant period, a relevant focal point for the determination of a given Disability Support Pension claim. Within Pt 2 of sch 2, the effect of s 3 is that the start day is the day the claim is lodged. Section 4, though, makes the relevant period a period of 13 weeks thereafter. One can, in respect of a given claim for Disability Support Pension, meet the qualifying criterion either on the start day or on a particular day within that 13-week period. 26 Thus, the focus for the Tribunal's review on the present case was a different relevant period to that which had been the focus in earlier Tribunal proceedings. Even so, the Tribunal's place as part of an administrative decision-making continuum may not have made the earlier concession by the Secretary necessarily irrelevant. As to this, my attention was usefully drawn by Mr Black of counsel, who appeared for the Secretary, to an observation made by the Full Court in Commonwealth v Snell (2019) 269 FCR 18, at [76]. That observation was made in the context of a compensation controversy under the Seafarers Rehabilitation and Compensation Act 1992 (Cth). But it is, as the Secretary submitted, relevant by analogy, in my view. The Full Court stated, at [76]: An earlier decision by the decision-maker (including an earlier decision of the Tribunal which is deemed to be that of the decision-maker), is information or material with which the Tribunal may inform itself (s 33(1)(c) of the AAT Act) and it can give it the weight which it considers to be appropriate. Where no new evidence has been advanced which relevantly undermines or alters the effect of the earlier decision it is most likely that, if the application for review is not disposed of in a summary manner, the earlier decision will have significant if not overwhelming weight. Where, on the other hand, new information is available which suggests the earlier decision was based on incorrect facts or limited knowledge, be it scientific knowledge or otherwise, the weight which might be afforded to the earlier decision may be minimal or non-existent. [emphasis added] 27 On this occasion the Tribunal was, as [4] of its reasons reveals, plainly aware of the earlier course of proceedings in the Tribunal in respect of earlier Disability Support Pension claims made by Mr Kumar. However, the Tribunal was also, as is revealed more than once in its reasons, aware of its role to make a de novo merits review of its application (see, for example, [18] of the Tribunal's reasons). On this occasion the Tribunal's information base was materially different to that which had been before the Tribunal on earlier occasions. In particular, the Tribunal had the benefit of a report by an occupational medicine specialist, Dr Adam, furnished in June 2018, together with surveillance footage of Mr Kumar taken on various occasions in 2018. It seems likely that these informed the Secretary on this occasion not to concede the s 94(1)(b) qualification by Mr Kumar. 28 As the Tribunal's reasons reveal, considering that new information in conjunction with earlier reports concerning Mr Kumar resulted in the Tribunal's factual conclusion as to the number of points which would be assigned onto the impairment table to Mr Kumar for the purposes of the application of s 94(1)(b) to his 2016 Disability Support Pension claim. As already mentioned, the result of that factual evaluation was a conclusion that Mr Kumar's impairment points should be assessed as zero points. It is not for this Court, either on an appeal under s 44 of the AAT Act or for that matter in a judicial review proceeding under the ADJR Act, to reach its own conclusions as to matters of fact. So to do would in relation to each such proceeding be beyond the Court's jurisdiction (subject to a limited exception not presently relevant for which s 44 provides). 29 Thus, on analysis, there is no inconsistency in public administration in the stance taken by the Secretary. Nor is there any error revealed by the Tribunal's acting on the whole of the material before it so as to reach its own conclusion as to whether Mr Kumar met the qualification in s 94(1)(b) of the 1991 Act. 30 That, however, was not the only basis upon which Mr Kumar challenged the Tribunal's conclusion as to his not meeting the qualifying criteria for a Disability Support Pension. He also advanced a submission that the outcomes before the Compensation Court of New South Wales and Workers Compensation Commission ought to have led to a conclusion by the Tribunal that he met each of the qualifying criteria. Indeed, Mr Kumar went so far as to submit that for the Tribunal not so to conclude was to fail to give full faith and credit in terms of s 118 of the Constitution (Cth) to the outcomes under State law. 31 The material before the Tribunal did include both the terms of settlement reached as between Mr Kumar by his counsel and Legion Cabs Cooperative Society Limited by its counsel on 3 July 2002 in the Compensation Court of New South Wales in respect of a compensation eligibility controversy with which that court was concerned. That settlement was favourable to Mr Kumar in the sense that it entailed a concession as to his eligibility for the payment of a lump sum in respect of pain and suffering past and future. Further, the material before the Tribunal also included a determination of 8 April 2014 by the Workers Compensation Commission of New South Wales under the Workplace Injury Management and Workers Compensation Act in respect of an employment injury suffered by Mr Kumar in 2001 to his back, right hand, right hip, and both knees, together with an employment injury suffered by him on 15 May 2011 to his back. 32 It is apparent from that determination that it resulted in an entitlement on Mr Kumar's part to the payment of weekly compensation for periods which started on 31 January 2001 and variously ran through to, and including, 31 December 2012. 33 The Tribunal did not, in terms, in its reasons on this occasion refer to either the settlement reached in the New South Wales compensation proceedings in 2002 or, for that matter, the Compensation Commission's determination in 2014. It may be that this was because neither had the prominence in the proceedings before the Tribunal that they assumed in Mr Kumar's submissions before the Court. 34 However that may be, there is no error of law or jurisdictional error flowing either from the absence of reference to these New South Wales compensation outcomes or, for that matter, a conclusion that Mr Kumar did not meet the qualifying criterion found in s 94(1)(b) of the 1991 Act. That is because each of those New South Wales compensation outcomes reflects a different controversy in respect of a differently worded statute. The outcomes of those compensation proceedings could conceivably, having regard to s 33 of the AAT Act, inform the Secretary and perhaps the Tribunal that Mr Kumar did suffer from a physical impairment at least. But that was never controversial before the Tribunal. What was controversial, materially, and decisively as it transpired, was whether he met the criterion in s 94(1)(b) of the 1991 Act. As to this, neither the terms of settlement before the New South Wales Compensation Court nor the determination of the New South Wales Compensation Commission was in any way determinative. The Tribunal did not, by failing to make reference to them, fail to give full faith and credit to the effect of the New South Wales statutes concerned. All the Tribunal did was to reach its own conclusion on the material before it as to whether it was satisfied that Mr Kumar's impairment was of 20 points or more under the impairment tables. 35 The issues which I have canvassed thus far are the substantive issues that underpin the questions of law and the grounds of review. Indeed, as to questions of law, they probably entail a reformation of the questions as specified in a way which would at least make the case one where the Court's jurisdiction under s 44 had been invoked. The Secretary, with respect, very properly chose to meet the substantive issues as just identified rather than embarking upon a discrete application as to the competency of the s 44 appeal. That may well also have been in recognition that like issues were raised by the judicial review proceeding. 36 Mr Kumar also put his case on other bases, such as a denial of natural justice. But on exploration in the course of oral submissions as to the foundation for such a contention, it became apparent that the issues thus far canvassed lay behind that particular contention. In any event, the Tribunal afforded Mr Kumar an opportunity to be heard further. Also, there is nothing at all which would in any way give rise to any apprehension of bias, much less actual bias, on the part of the Tribunal as constituted for the purposes of the review of the rejection of his 2016 Disability Support Pension Claim. 37 Mr Kumar had included with his judicial review application a claim for damages, but that particular stream could never rise any higher than its source. If, truly, there was no error on the part of the Tribunal and no maladministration by the Secretary in departing from an earlier concession, no claim for damages could ever be upheld. 38 Also raised for consideration was whether the present proceedings could be regarded in terms of s 37AO of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) as vexatious. As my 2018 judgment reveals, I reached that conclusion in respect of the earlier judicial review proceeding, having regard to the outcome before Reeves J and earlier proceedings by Mr Kumar. I can well understand how such a thought might occur to the Secretary; indeed, it occurred to me at an early case management stage. 39 However, given that the focus for the present two proceedings was on a different Disability Support Pension claim with a different relevant period, my view is that neither of the present proceedings should be regarded as vexatious. Mr Kumar does now, however, have the benefit of conclusions by the Court as to the true construction of s 94 of the 1991 Act and, for that matter, the absence of any determinative quality in the New South Wales Compensation Court and New South Wales Compensation Commission outcomes. 40 That being so, it may be that were he to seek to agitate such questions again in respect of any challenge in this Court to any adverse outcome before the Tribunal in respect of any later Disability Support Pension claim that he could become the subject of an application under s 37AO of the Federal Court of Australia Act. Obviously enough, it would be quite inappropriate to reach any concluded view at all about what the outcome of any such application might be. 41 In my view, the foregoing is sufficient to dispose of the essential points of controversy which emerged from the s 44 appeal and ADJR cases as emerged in the course of oral submissions. Suffice it to say, there is no merit, for the reasons given, either in the s 44 appeal or in the ADJR application. Each must be dismissed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.

Kumar v Secretary, Department of Social Services

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