Singh v Secretary, Department of Education, Employment and Workplace Relations

Federal Court of Australia|2011-07-18|Before: Mr J, Gordon J

BACKGROUND 1 The Respondent applies to dismiss the appeal commenced by the Appellant by Notice of Appeal dated 19 May 2011 and then purportedly amended by the Appellant (without leave) by Notice of Appeal (Ammended) (sic) dated 14 June 2011 (the Appellant's Proceeding). It is an appeal from the decision of Federal Magistrate Burchardt dated 9 May 2011 (the Primary Decision). 2 The basis for the application is that, first, the Appellant's Proceeding is incompetent within the meaning of O 52 r 18 of the Federal Court Rules (the Rules) because the Primary Decision was an interlocutory judgment and leave to appeal was not obtained by the Appellant under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). Secondly, the Respondent seeks dismissal of the Appellant's Proceeding under O 20 r 5 of the Rules on the basis that the Appellant's Proceeding is vexatious and/or an abuse of process. 3 Finally, the Respondent seeks judgment in its favour in relation to the whole of the Appellant's Proceeding under s 31A of the FCA Act, on the ground that the Appellant has no reasonable prospect of successfully prosecuting it. 4 The Appellant has brought numerous unsuccessful proceedings against the Respondent in the High Court of Australia, this Court, the Federal Magistrates Court, the Administrative Appeals Tribunal (the AAT) and the Social Security Appeals Tribunal (the SSAT). 5 All of these proceedings relate in some way to the recovery by Centrelink in 1999 of $88,633.34 of social security payments, out of monies ordered by the County Court to be paid to the Appellant by his accident compensation insurer on 20 October 1999. Those funds were ultimately recovered by Centrelink from the insurer directly, which the Appellant was advised on 4 November 1999: see Singh v Secretary, Department of Family and Community Services (2004) 142 FCR 232 at [17] - [21].

PROCEDURAL HISTORY 6 The decision by Centrelink on 4 November 1999 to recover the $88,633.34 directly from the insurer was the subject of appeals to the SSAT, the AAT, the Federal Court and the High Court. The procedural history is set out in detail in Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 at [4] - [12] as follows: [4] The appellant sought a review of Centrelink's decision of 4 November 1999 in which he claimed to be entitled to the sum of $88,633.34, but the application was unsuccessful: Singh v Department of Family and Community Services (2004) 142 FCR 232. [5] The appellant applied for special leave to appeal to the High Court which was refused: Singh v Secretary, Department of Family and Community Services (Centrelink) [2005] HCATrans 759. [6] On 19 December 2005 Centrelink decided that it had no jurisdiction to review the decision it made on 4 November 1999. The appellant appealed to the Social Security Appeals Tribunal which, on 22 March 2006, declined to review Centrelink's decision. The appellant appealed to the Administrative Appeals Tribunal (the AAT). [7] On 3 July 2006 the AAT decided that the appellant's application was "obviously untenable" and "utterly hopeless" and dismissed the application as frivolous and vexatious pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth). It also directed the appellant not make, without the leave of the AAT, any further application with respect to recovery of sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999. [8] The appellant appealed from that decision to this Court. On 23 October 2006 Weinberg J dismissed that appeal save that he varied the order made by the AAT to read: The applicant must not without leave of the Tribunal make any application to the Tribunal with respect to recovery of sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999. [9] Justice Weinberg dismissed allegations of fraud made by the appellant as lacking substance and on the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589: Singh v Secretary, Department of Employment and Workplace Relations (2006) 95 ALD 569. [10] The appellant appealed to the Full Court of this Court … … [12] On 22 November 2007 the appellant's appeal to the Full Court against Weinberg J's order was dismissed with costs: Singh v Secretary, Department of Employment and Workplace Relations (2007) 46 AAR 447. 7 On 28 February 2008, a sequestration order was made against the Appellant's estate by Registrar Burns of the Federal Magistrates Court (the Sequestration Order). The Respondent was the petitioning creditor. The amount alleged in the petition was $36,066.20 and concerned legal costs ordered by the Federal Magistrates Court, the Federal Court and the High Court. 8 On 15 May 2008, the High Court dismissed the Appellant's application for special leave to appeal from the orders of the Full Court dismissing the appeal to that Court from Weinberg J: Singh v Secretary, Department of Employment and Workplace Relations [2008] HCASL 224. 9 On 29 September 2008, Goldberg J of the Federal Court dismissed the Appellant's application for an annulment of the Sequestration Order under ss 153A and 153B of the Bankruptcy Act 1966 (Cth) and for the orders of Weinberg J to be set aside: Singh v Secretary, Department of Employment and Workplace Relations [2008] FCA 1463. 10 On 22 May 2009, the Full Federal Court dismissed the Appellant's appeal against the orders of Goldberg J: Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59. In dismissing the appeal, the Court stated at [56] that "[t]he appellant's complaint of fraud in this ground is baseless and, like his other complaints of fraud, should not have been made". The Appellant then sought Special Leave to Appeal to the High Court from the orders of the Full Federal Court. That application was dismissed: Singh v Secretary, Department of Employment and Workplace Relations [2009] HCASL 194. The High Court stated: The Applicant's amended draft notice of appeal fails to identify a special leave question and focuses upon Centrelink's decision of 4 November 1999, which has already been the subject of an unsuccessful application for special leave to appeal. There is no reason to doubt the correctness of the decision of the Full Court and special leave should be refused. 11 On 3 March 2011, the Appellant filed an Application for Review of the decision of Registrar Burns to make the Sequestration Order. At the same time, the Appellant also made application for leave to file and serve the Application for Review out of time. 12 On 9 May 2011, Federal Magistrate Burchardt dismissed the application with costs (see Singh v DEWR [2011] FMCA 302) on the basis that: 1. the application for leave to file and serve an Application for Review out of time was made over 3 years after the original Sequestration Order was made and the Appellant offered no explanation for the delay; and 2. the prospects of success of the Application for Review were "negligible to non-existent" (at [21]). 13 On 19 May 2011, the Appellant filed a Notice of Appeal against the orders of Federal Magistrate Burchardt. The grounds of appeal were listed as follows: 1. Federal Magistrate Burchardt made an error to overlook my three affidavits dated 2 March 2011, 17 March 2011 and 28 March 2011 in support of the application (see annexed) explaining the detailed history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for the extension of time to review and setting aside of the alleged fraudulent sequestration order, contrary to paragraphs 2 & 3 of His reasons for judgment. This error resulted in His Honour's failure to find out the expressed reasons for explanation of delay to grant an extension of time, history of the proceeding, the nature of litigation, conduct of the parties, prospect of success of my application to review and setting aside the alleged fraudulent sequestration order. 2. The Respondent obtained the Sequestration order by filing a creditor's petition of unenforceable orders in the Federal Magistrate Court as a means to recover the cost of $36,066.20 of the five proceedings in relation to review the alleged fraudulent decision of the respondent dated 4 November 1999, before the finality of the review. The respondent used the Bankruptcy proceedings to conceal its alleged fraud of $44,185 with the applicant, by the decision of the respondent dated 4 November 1999 to recover the compensation debt of $88,633.34 paid to the applicant and his wife in respect to applicant'[s] personal injury dated 2 January 1991, despite that decision being under review in application VID234/2010 under the AD (JR) Act 1977, replaced by an appeal VID816/2009 from the decision of the AAT dated 5 November 2009. The respondent blocked the proceeding of application VID234/2010 by making another application VID265/2010 with the affidavit on the basis of the sequestration order rather than defending the allegation of fraud in its decision dated 4 November 1999 which was under review. The judgment of both applications is pending, heard on 6 & 7 September 2010 by Justice Bromberg. Therefore, the use of the false presentation of creditors petition to the Court by the respondent to obtain the sequestration order to gain an unjust advantage over the applicant (fraud) to decline to pay back $44,185.27 overcharged by fraud (extension of time was granted to the 10 year out of time application VID234/2010 under the AD (JR) Act) in the recovery of compensation debt, is in gross violation of the sequestration order to obtain the applicant's review right which is contrary to section 60(4) of the Bankruptcy Act 1966. 14 The orders sought in the Notice of Appeal were: 1. Set aside the order of Federal Magistrate Burchardt, dated 9 May 2011. 2. Leave be granted to make the application out of time. 3. Set aside the sequestration order Pursuant to Order 35 Rule 7(2) Federal Court Rules. 4. The respondent pays the cost of the appellant. 5 The Respondent pay back the sum of $36,066.20 to the applicant, recovered from the applicant as a consequence of the fraudulent sequestration order. 15 Also on 19 May 2011, the Appellant filed a Notice of Motion seeking a stay of the orders of Federal Magistrate Burchardt pending resolution of the appeal. That Notice of Motion was dismissed by Jessup J on 23 May 2011. 16 On 30 May 2011, the Appellant filed a further Notice of Motion seeking a stay of the Sequestration Order (the subject of review by Federal Magistrate Burchardt) pending review of the orders made by Federal Magistrate Burchardt. 17 By letter dated 31 May 2011, the Deputy District Registrar of the Federal Court informed the Appellant that: The 30 May notice of motion seeks a stay of the sequestration order made by Registrar Burns on 28 February 2008. The sequestration order was the subject of an application, by you, for review out of time. The application for an extension of time to review the sequestration order was refused by Federal Magistrate Burchardt on 9 May 2011. You have filed an appeal against the orders of Federal Magistrate Burchardt made on 9 May 2011 and it is within this appeal that you now seek a stay of the sequestration order. … Your appeal to the Federal Court of Australia is an appeal against the decision by Federal Magistrate Burchardt not to extend the time within which you could file a review of the sequestration order. The sequestration order itself is not the subject of the appeal. Accordingly, the 30 May notice of motion cannot be an interlocutory application within that appeal. 18 On 14 June 2011, the Appellant filed an Amended Notice of Appeal listing the following Grounds of Appeal: 1. Federal Magistrate Burchardt made an error to not review and set aside the sequestration order. The review was sought on the basis that the Respondent had obtained the Sequestration order by filing a creditor's petition of unenforceable Court orders for costs (as all those costs orders were under appeal). Further, the creditor's petition was filed before the final orders of the review of the decision of the respondent dated 4 November 1999. Five (5) court orders for costs against the applicant are still outstanding and the judgment in the sixth proceeding, (Applicant's application VID234/2010 based on respondent's fraud and the Respondent application VID265/2010 based on the sequestration order) that were heard by Honourable Justice Bromberg on 6 and 7 September 2010 is still pending. The main proceeding is still continuing. (2) Registrar Burns of Federal Magistrates' (sic) Court made a Sequestration Order on 28 February 2008 on the estate of the applicant, on the creditors petition MLG1422/2007 filed by the respondent on 11 October 2007, to recover its legal costs from the applicant ordered in various proceedings in relation to review of the decision of the respondent dated 4 November 1999. At that time the review application and appeals arising from the same had not been finalised, and are still not final. Therefore, the sequestration order made by Registrar Burns on 28 February 2008 (for the respondent to recover its legal costs from the applicant) is interlocutory. (3) Since, the interlocutory order (sequestration order) of Registrar Burns is affecting the applicant's liberty (confined applicant's right) to seek the ongoing review of respondent's decision dated 4 November 1999 in proceeding VID234/2010 by respondent's application VID265.2010 before Justice Bromberg, leave of the court to review the interlocutory order (sequestration order) was not required as per subsection 24(1C) of the Federal Court of Australia Act 1976. Consequently, the order of Federal Magistrate Burchardt dated 9 May 2011 to dismiss the application with cost should be of no effect as the leave was not even required. Thus the review of the sequestration order made by Registrar Burns should proceed on its merits. 19 The orders sought in the Amended Notice of Appeal are: 1. Set aside the order of Federal Magistrate Burchardt dated 9 May 2011; 2. Set aside the sequestration order pursuant to Order 35 Rule 7(2) of the Federal Court Rules. 3. The respondent pay the costs of the appellant. 4. The Respondent pay back the sum of $36,066.20 with interest to the appellant, recovered from the appellant as a consequence of the interlocutory sequestration order. 20 On 7 July 2011, the Respondent filed the Notice of Motion the subject of this application to dismiss the Appellant's Proceeding.

LEAVE TO APPEAL 21 Under s 24(1A) of the FCA Act, leave to appeal is required to appeal an interlocutory judgment, unless s 24(1C) applies: s 24(1B) of the FCA. Section 24(1C) does not apply to the present case - the judgment the subject of the Appellant's Proceeding does not concern the Appellant's liberty (see Talacko v Talacko (2010) 183 FCR 297) and does not pertain to contempt of court. 22 The Respondent submits that Federal Magistrate Burchardt heard an application for leave to file and serve an Application for Review out of time, rather than a substantive Application for Review, and that therefore the decision was interlocutory. I reject that contention. 23 In his reasons for judgment, Federal Magistrate Burchardt noted that the matter before the Court was an "application to review out of time" (at [1]) and then went on to state at [7] - [8] that: The application for review and for an extension of time in which to lodge the review therefore raises two issues in my opinion. [Emphasis added]. In Grundy v Wattyl Australia Pty Ltd [2002] FCA 1480, Justice Downes held, in relation to an application for a review of the Registrar's decision to make a Sequestration Order at [19]: Two issues therefore arose. The first was whether an extension of time should be granted. The second was whether, if the extension was granted, an order setting aside the sequestration order should be made. 24 Thus, two questions arose for consideration by Federal Magistrate Burchardt: 1. Should an extension be granted? 2. If yes, should the sequestration order be set aside? 25 A decision in respect of the second question would have finally determined the matter. That the second question did not arise for consideration because the application for an extension of time was refused does not alter the character of the decision as final. Moreover, Federal Magistrate Burchardt addressed the substantive question by stating that even if he was wrong in respect of the first question, he would not be minded to set aside the sequestration order (at [23]). 26 The decision was therefore final, not interlocutory, and s 24(1A) of the FCA Act has no application. As the Respondent has not moved for the Appellant's Proceeding to be dismissed as incompetent on any other basis other than s 24(1A), this aspect of the Respondent's application fails.

APPEAL 27 The Respondent submits that the Appellant's Proceeding should be dismissed in whole under s 31A of the FCA Act on the ground that the Respondent has no reasonable prospects of success. Section 31A relevantly provides that: … (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. … 28 Alternatively, the Respondent submits that the Appellant's Proceeding should be dismissed generally under O 20 r 5 of the Rules as an abuse of process and/or vexatious. Order 20 r 5 provides that: (1) This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding: (a) the proceeding or claim is frivolous or vexatious; or (b) the proceeding or claim is an abuse of the process of the Court. (2) The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief. (3) The Court may receive evidence on the hearing of an application for an order under subrule (2). 29 Regardless of the propriety of the purpose of the person responsible for the institution and maintenance of proceedings, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail: Walton v Gardiner (1992-3) 177 CLR 378 at 393. Also, proceedings before a court should be stayed as an abuse of process if their continuance would be unjustifiably vexatious and oppressive because they seek to litigate anew a case already disposed of by earlier proceedings: Walton v Gardiner at 393. 30 The Appellant has sought, unsuccessfully, to set aside the Sequestration Order on various occasions. Each application to set aside the Sequestration Order has been based on the same core allegations, being allegations of fraud. On each occasion, the allegations of fraud were dismissed as, inter alia, "lacking substance" or "baseless". No court accepted that the allegations had any foundation in fact or law, or had any reasonable prospects of success: see [5] - [12] above. 31 The Appellant's first ground of appeal in the Amended Notice of Appeal (see [18] above) is that "Federal Magistrate Burchardt made an error to not review and set aside the sequestration order." That error is said to stem from Centrelink's decision of 4 November 2009 to seek to recover the Centrelink payments (see Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 at [4] extracted at [6] above). Centrelink's decision of 4 November 2009 has already been the subject of an unsuccessful appeal and an unsuccessful application for Special Leave to Appeal to the High Court: see [6] above. It would be an abuse of process to seek to re-litigate the question whether the Sequestration Order should have been made. Moreover, the making of the Sequestration Order itself has been the subject of an unsuccessful appeal and an unsuccessful application for Special Leave to Appeal to the High Court: see [8] and [9] above. 32 The second and third grounds of appeal (see [18] above) asserts that the Sequestration Order is interlocutory, but affects the Appellant's liberty, and therefore by virtue of s 24(1A)-(1C) of the FCA Act, leave to review the Sequestration Order was not required. Thus, the Appellant submits, the decision of Federal Magistrate Burchardt should be of no effect. This ground of appeal is misconceived. First, a Sequestration Order is a final order: Roskell v Snelgrove (2008) 246 ALR 175 at [2]. Secondly, it does not affect the Appellant's "liberty" within the meaning of s 24(1C) of the FCA Act: see Talacko. Thirdly, irrespective of whether a decision is final or interlocutory, leave to file an Application for Review out of time is required (unless the other party consents to an extension of time, which did not occur here): r 20.01 of the Federal Magistrates Court Rules 2001. 33 Each ground of appeal has no prospects of success, let alone any reasonable prospects of success: Expo-Net Danmark A/S v Buono-Net Australia Pty Ltd (No 2) [2011] FCA 710 at [8]; Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [17] - [26]; Apotex Pty Ltd v Les Laboratoires Servier (No 4) (2010) 89 IPR 274 at [40] - [42]; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [23] - [31]. For those reasons, proceeding number VID 417/2011 is dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

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