Official Trustee in Bankruptcy v Gargan

Federal Court of Australia|2020-02-27|Before: Bromberg J, North J, Mortimer J, Wheelahan J

Pursuant to r 2.27(e) of the Federal Court Rules 2011 (Cth) it is directed that the Registry shall not accept for filing the documents lodged by the applicant on 22 November 2019, and the amended draft notice of appeal lodged by the applicant on 25 November 2019. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 On 22 November 2019, the applicant, who is self-represented, lodged an application for an extension of time and leave to appeal the decision of Bromberg J made on 27 July 2011 in Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 833; 282 ALR 56. By that decision, Bromberg J dismissed the applicant's application to set aside a decision of the Administrative Appeals Tribunal in Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 850; 114 ALD 178, in which the Tribunal had refused him leave to institute other proceedings in the Tribunal. Bromberg J also found that the applicant had engaged in a long history of vexatious litigation (see [26]-[68]), and made an order that - The Respondent, Mohinder Singh, may not institute any proceeding in the Federal Court of Australia without leave of the Court. 2 Since then, the applicant has made numerous applications for an extension of time and leave to appeal from Bromberg J's decision. His applications have been rejected on more than 30 occasions by judges of the Court. There are published reasons for rejecting two of the applicant's earlier applications: Re Singh [2012] FCA 322 (North J); and Singh, in the application of Mohinder Singh [2014] FCA 76 (Mortimer J). 3 Rule 2.27(e) of the Federal Court Rules 2011 (Cth) provides that a document will not be accepted for filing if the Court has given a direction that it not be accepted. For the following reasons, I shall direct the Registry not to accept the application and associated documents for filing.

The operation of the order requiring leave to institute proceedings 4 The order of Bromberg J referred to at [1] above was made pursuant to O 21, r 1 of the Federal Court Rules 1979 (Cth), which were repealed by the Federal Court Rules 2011, r 1.03. The order remains valid and in force because all orders made by a superior court of record are valid unless and until set aside: State of New South Wales v Kable [2013] HCA 26; 252 CLR 118, at [32] and the authorities cited therein. Further and for the sake of completeness, the order is also subject to the transitional provisions of the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth), which inserted Part VAAA of the Federal Court of Australia Act 1976 (Cth), which relates to vexatious proceedings orders. The amending Act includes a savings provision, at item 12(4) of schedule 3, which provides - The amendments made by this Schedule do not affect the validity of any orders that were made before the commencement of this item under rules of court made under the Family Law Act 1976, the Federal Court of Australia Act 1976, the Federal Magistrates Act 1999 or the Judiciary Act 1903 (to the extent the rules relate to vexatious proceedings). 5 Bromberg J's order must be understood in the legislative and factual context in which it was made. The legislative context included that, pursuant to O 21, r 5 of the Federal Court Rules 1979 as then in force, the Court could only grant leave if it was satisfied that the proceeding was not an abuse of process and there was prima facie grounds for the proceeding. The factual context included the applicant's long history of vexatious litigation, which Bromberg J reviewed in detail. With regard to that context, I consider that the burden on the applicant in seeking leave to institute a proceeding is to satisfy the Court that the proposed application is not an abuse of process and that it has a reasonable prospect of success, before the Court would grant leave for the applicant to institute the proceeding. This supports the purpose of Bromberg J's order, which was to prevent the applicant from instituting further vexatious proceedings. For the following reasons, the applicant has failed to satisfy the Court that the present application is not an abuse of process and that it has a reasonable prospect of success.

The present application 6 The present application is difficult to follow. It is the latest in a series of applications by the applicant that seek to re-litigate matters that have already been determined. The Court has previously held the applicant's series of applications to be repetitive in both the subject matter and nature of the allegations that they make, frivolous, vexatious and an abuse of process: Singh, in the application of Mohinder Singh [2014] FCA 76 at [11]-[12]. 7 The present application, like many before it, is focussed on the applicant's complaint about a decision made by a Centrelink delegate on 4 November 1999, now more than 20 years ago, in relation to the applicant's social security entitlements. On 4 November 1999, the Centrelink delegate decided that the applicant and his wife were members of a couple, and consequently, Centrelink sought to recover a debt of $88,633.34 from the applicant. The applicant has already exhaustively sought to review that decision through various avenues, including on two occasions seeking special leave to appeal to the High Court in relation to it: see, Singh v Secretary, Department of Employment and Workplace Relations [2009] HCASL 194, [5]. 8 By the proposed application that the applicant seeks to file, the applicant continues to seek to re-litigate matters that have already been determined. The proposed grounds of review are similar to the grounds in draft notices of appeal that the applicant lodged with earlier applications in October 2017, January 2018 and October 2018, which the Court did not accept for filing. The current amended draft notice of appeal lodged on 25 November 2019 begins by setting out the requirements for making a vexatious litigant order under O 21, r 1 of the repealed Federal Court Rules 1979, as stated at [8] of Bromberg J's reasons. It then sets out three grounds of appeal to which I refer below. Finally, it sets out the 10 orders sought by the applicant, including that the "orders and judgment" of Bromberg J be set aside, and various other orders for the payment of moneys to the applicant, which appear to be in relation to the applicant's alleged social security entitlements, bankruptcy, legal costs and other claims. 9 The first proposed ground, which I set out verbatim, is as follows - Justice Bromberg erred in his judgement by regarding a ground of my litigations that "decision of the respondent dated 4 November 1999 to recover the compensation debt from me is erroneous as it did not follow the Country Court Ruling of 20 October 1999 in relation to the insurer's decision of 4 October 1993 to cease my weekly compensation" as unreasonable in declaring me a vexatious litigant under order 21 rule 1 of the Federal Court Rules. This decision dated 4 November 1999 of the Respondent was baseless as the decision maker did not follow the Country Court Ruling of 20 October 1999 in relation to the insurer's decision of 4 October 1993 to cease my weekly compensation [see T5 pages 27-28 of annexure 3] The correct ground of my whole litigation for the reason for judgement of justice Bromberg was a decision of the insurer dated 4 October 1993 to cease my weekly payment of compensation by the insurer, not the 4 November 1999 decision of the Respondent. The decision of the insurer dated 4 October 1993 was the ground of me receiving disability support pension and wife pension from the Respondent. This decision was determined by the County Court Ruling on 20 October 1999. That ruling entitled me to receive weekly payment of compensation from the insurer from 1 September 1992 to the date of judgment and onwards. That ruling entitled the respondent to recover their compensation debt of $44,228.80 paid to me not $88,633.34 that was recovered. As a result of the error of Justice Bromberg to replace the correct ground (4 October 1993 decision of the insurer) of my litigation with the incorrect decision of the Respondent dated 4 November 1999 Rule 1 of order 21 was misused to declare me a vexatious litigant. 10 The first proposed ground borders on being incoherent. It appears primarily to be a challenge to the decision made by the Centrelink delegate on 4 November 1999. To the extent that it is directed to the decision of Bromberg J, from which leave to appeal is sought, the ground appears to allege that Bromberg J misunderstood the history of the applicant's earlier administrative and judicial proceedings, and that because of that misunderstanding, Bromberg J erred in making a vexatious litigant order against the applicant pursuant to O 21, r 1 of the Federal Court Rules 1979. The reasons of Bromberg J clearly and extensively set out the history of the applicant's earlier administrative and judicial proceedings, and contain findings supporting the conclusion that the applicant's earlier judicial proceedings were vexatious. There is nothing in the applicant's material to support a contention that there is any arguable error in Bromberg J's decision. 11 The second proposed ground, which I also set out verbatim, is as follows - The first Respondent misrepresented the facts of the County Court ruling dated 20 October 1999 in its decision dated 4 November 1999 and overcharged me by fraud a sum of $44,228.20 (being the wife pension) in the recovery of compensation affected payments of $88,633.34. Therefore, judgement and the reasons for judgment of Justice Bromberg in paragraph 26 and the 4 November 1999 decision of the respondent itself are fraudulent. 12 The second proposed ground appears primarily to be a challenge to the decision made by the Centrelink delegate on 4 November 1999. To the extent that it is directed to the decision of Bromberg J, it refers to paragraph [26] of Bromberg J's reasons, in which his Honour listed 14 earlier proceedings that were considered in making the vexatious litigant order, and without any foundation asserts that Bromberg J's decision is fraudulent. Allegations of this type made by unrepresented litigants are a hallmark of querulous behaviour. 13 The third proposed ground, which I also set out verbatim, is as follows - The fraudulent decision of the respondent dated 4 November 1999 was constructed by the Respondent with the conspiracy of my previous solicitor (Mr. K Potter) and the Victorian Work Cover Authority/insurer. 14 The third proposed ground is a challenge to the same decision made by Centrelink on 4 November 1999 and makes extravagant and unfounded allegations. The application does not establish any arguable basis on which to allege any error in Bromberg J's decision by reference to the third ground.

Conclusions 15 I am not satisfied that the applicant's proposed grounds of appeal have any reasonable prospect of success. The application is the applicant's latest attempt at re-litigation, which is a feature often associated with vexatious proceedings: see, Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [7] (Perram J). 16 Pursuant to r 2.27(e) of the Federal Court Rules, I shall direct the Registry not to accept the application and associated documents for filing. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.

Federal Court Rules 1979(Cth)

Access to Justice (Federal Jurisdiction) Amendment Act 2012(Cth)

Federal Court of Australia Act 1976(Cth)ss 37AM(1), 37AO(2)

At a glance

Court

Decision date

Before

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (7)

Cited By (3)