Singh v Secretary, Department of Employment and Workplace Relations

THE COURT: 1 This is an appeal from orders made by a judge of this Court on 29 September 2008 whereby the appellant's application for the annulment of a sequestration order made against his estate was dismissed and his further applications to set aside orders made by a judge of this Court (Weinberg J) and orders of the Full Court were also dismissed. 2 The appellant suffered an injury at work on 2 January 1991 which resulted in an ongoing medical condition. From December 1993 to October 1999 the appellant was paid a disability support pension and his wife received a disability support wife pension from Centrelink. 3 In 1999 the appellant's employer's insurer, Allianz Australia Workers Compensation (Victoria) Limited (Allianz) was ordered to pay the appellant arrears of weekly compensation for the period from 1 September 1992 to 20 October 1999. On 4 November 1999 Centrelink advised Allianz that it had a first charge on the sum of $88,633.34 in respect of payments of social security to 26 October 1999 made to the appellant and his wife. Allianz paid that amount to Centrelink out of the arrears of weekly compensation that it would have otherwise have paid to the appellant. 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. On 9 February 2007 Sundberg J made orders that the appellant lodge with the Registrar of the Court or the solicitors for the Secretary of the Department of Employment and Workplace Relations the sum of $10,000 in respect of security for its costs of the appeal and that the appellant pay the Secretary's costs of the application for security of costs. 11 The appellant complied with Sundberg J's orders insofar as he paid into Court the sum of $10,000 as security for costs but he did not pay the Secretary's costs of that application for security for costs. 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. 13 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. 14 In the meantime, on 14 September 2007, the respondent issued a bankruptcy notice claiming that the appellant was indebted to it in the sum of $36,066.20, which sum was made up of $11,196.50 being costs ordered in the Federal Magistrates Court in relation to an appeal to that Court from a decision of the AAT; $17,294 being costs ordered in three separate applications to this Court; and $7,575.70 being the costs of the applicant's failed application for special leave to appeal to the High Court awarded on 9 September 2005. 15 The appellant did not comply with the bankruptcy notice and on 16 October 2007 the respondent issued a petition for a sequestration order under s 43 of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act) against the estate of the appellant relying on the act of bankruptcy of the appellant in failing to comply with the bankruptcy notice served on him on 20 September 2007. 16 On 28 February 2008 a sequestration order was made against the estate of the appellant. 17 On 10 June 2008 the appellant paid to the solicitors for the respondent the sum of $36,066.20 by bank cheque. The respondent's solicitors in turn forwarded the cheque to the Official Trustee who presently retains that sum. On the same day the appellant filed a notice of motion in the proceeding which had been before Weinberg J seeking orders that: (a) the security for costs order made in the proceeding by Sundberg J on 9 February 2007 be discharged and that the Registrar release the sum of $10,000 which had been paid into Court by the applicant; and (b) the Full Court decision and the decision of Weinberg J at first instance be set aside. The appellant relied upon mistake and fraud. 18 On 11 July 2008 Middleton J dismissed that notice of motion and ordered the appellant to pay the respondent's costs: Singh v Secretary, Department of Employment and Workplace Relations [2008] FCA 1061. 19 Section 54(1) of the Bankruptcy Act obliges a bankrupt within 14 days after being notified of the bankruptcy to provide the Official Receiver with a statement of his or her affairs and furnish a copy of the statement to the Trustee. A number of requests have been made by the Insolvency and Trustee Services of Australia (ITSA) to the appellant for him to provide his Statement of Affairs but none has been provided. 20 On 13 June 2008 the appellant wrote to the Official Trustee asking to be advised whether there were any costs outstanding which he needed to pay but if there were no such costs sought a certificate of annulment. 21 On 16 June 2008 the appellant again wrote to the Official Trustee claiming that the payment by the appellant of the sum of $36,066.20 to the respondent's solicitors on 10 June 2008 had the effect of annulling the bankruptcy, relying upon s 153A(1) of the Bankruptcy Act. 22 The Official Trustee engaged the Fraud Investigation Team of ITSA to carry out an inquiry into the appellant's affairs in order to determine whether the matter ought to be referred to the Commonwealth Director of Public Prosecutions for prosecution. 23 On 30 July 2008 the appellant commenced the proceeding which was heard by the primary judge seeking the annulment of the sequestration order made on 28 February 2008. The appellant also filed a notice of motion seeking to join Allianz and Kevin Thomas Potter, but their role in any proceeding seeking an annulment of a sequestration order was not explained. Allianz was the workers compensation insurer on risk. Mr Potter is said in the notice of motion to be the appellant's previous solicitor. 24 When the matter came before the primary judge the appellant had still not complied with s 54(1) of the Bankruptcy Act and the Official Trustee had therefore been unable to ascertain whether there were any liabilities other than liabilities to the respondent which might be provable in the appellant's bankruptcy. 25 It was contended and accepted by the primary judge that the appellant was at the time of the hearing indebted to the respondent in respect of two costs orders made against him before 28 February 2008 (the date of the sequestration order) which totalled $14,995.35. Those costs orders would be provable in the appellant's bankruptcy. The appellant was also indebted to the respondent in respect of the costs order made at the same time as the sequestration order. That costs order would be a priority payment in accordance with s 109(1)(a) of the Bankruptcy Act. 26 The appellant contended before the primary judge that he had paid the debt of $36,066.20 by way of bank cheque and received a receipt for that sum. He said he was entitled to a certificate of annulment of the sequestration order made on 28 February 2008. He contended in the alternative that he was not indebted to the respondent at the time the sequestration order was made. 27 Division 5 of Part VII of the Bankruptcy Act provides for the annulment of a person's bankruptcy. Section 153A addresses an annulment where the trustee is satisfied that the bankrupt's debts have been paid in full. The section provides that by force of the section itself if all of the bankrupt's debts have been paid in full the bankruptcy is annulled on the date on which the last such payment was made. 28 Section 153B addresses annulment by the Court and relevantly provides that if the Court is satisfied that a sequestration order ought not to have been made the Court may make an order annulling the bankruptcy. 29 The primary judge addressed the Court's power under s 153B(1) first. He found that there were no grounds upon which he could be satisfied that the sequestration order made on 28 February 2008 ought not to have been made. The bankruptcy notice, the petition and the documents accompanying the petition were in order. The debts had been properly proved as being debts which related to judgment and orders of various courts in relation to costs, none of which had been set aside or reversed by any appellate court. His Honour found that there was no basis upon which he could review or set aside or otherwise interfere with any of the judgments or orders which resulted in the orders for costs which formed the subject of the bankruptcy notice. 30 The primary judge was also of the opinion that the appellant's application pursuant to s 153A of the Bankruptcy Act had to fail. Section 153A does not empower the Court to make an order for annulment. The section depends for its operation upon the satisfaction of the trustee that the applicant's debts have been paid in full. If the Official Trustee is so satisfied, then the bankruptcy is annulled by force of the section itself. There is no need to obtain an order from the Court. In any event, the primary judge found that, although the appellant had paid the sum of $36,066.20 on 10 June 2008, there was evidence of other debts which were due and outstanding to the respondent and, further, there was evidence from the Official Trustee that he was not satisfied that all of the appellant's debts had been paid. 31 The primary judge rejected the orders sought in the notice of motion for the joinder of Allianz and Mr Potter. He said at [36]: There is no claim that can be made against them, or either of them, which bears upon whether the applicant's bankruptcy should be annulled, nor is there any other basis upon which they can be joined in this proceeding. Insofar as they may have featured in the background leading up to the series of litigation to which I have referred, that provides no basis for their joinder in this proceeding. 32 The appellant has raised three grounds of appeal: 1. The sequestration order obtained by the respondent on the estate of the applicant from the Federal Magistrate Court (sic) on 28 February 2008 is defective and groundless on the basis his Honour Justice Goldberg made (sic) error of law to follow the history of the litigation concerning the court order of costs on which the sequestration order stands. 2. The orders of Justice Weinberg and Full Federal Court in question were again obtained by fraud by the respondent, standing upon the fraudulent decisions and order of the Courts given in the previous proceedings on the basis of the Workcare Appeals Board decisions dated 11 November 1991 and 30 October 1992 and section 17(4A) overridden section 17(2B) of the Social Security Act 1999. 3. The notice of motion filed on 25 August 2008 was dismissed and was not considered in accordance with the law therefore the decision was made with error of law. 33 In his written submissions filed in support of his appeal the appellant purported to identify the issues on appeal. He said the issues were: (1) Whether the Appellant was insolvent when the Respondent filed the petition for Bankruptcy of the Appellant and obtained sequestration order against the estate of the Appellant from the Federal Magistrates Court on 28 February 2008 to recover the cost of the five proceedings pursuant to the orders for costs which where obtained (sic) by fraud in the previous proceedings, on the basis of the inconsistency of facts in the decision of the Respondent dated 4 November 1999 and the facts of County Court ruling dated 20 October 1999. (2) Whether the earlier all (sic) the decisions of the Tribunals and order of the courts for cost in this litigation are groundless and unjust to the appellant due to the inconsistency between the facts of the County Court ruling dated 20 October 1999 and the respondent's decision dated 4 November 1999. (3) Whether the Appellant's motion filed on 25 August 2008 seeking addition of the insurer and my previous solicitor Mr. Kevin Thomas Potter as parties to this proceedings should allowed (sic). (4) Whether the Appellant is entitled to the damages. 34 We reject the appellant's formulation of the issues. The final orders sought by the appellant in his application which was before the primary judge were: 1. Annulment by Court, of a sequestration order made against the estate of Mohinder Singh by registrar (sic) Burns on 28 February 2008, pursuant to the provision of section 153B of the Bankruptcy Act 1966. 2. Annulment (on payment of debts) of a sequestration order made against the estate of Mohinder Singh by Registrar Burns on 28 February 2008, pursuant to the provision of section 153A of the Bankruptcy Act 1966. 35 He also sought interim orders: 1. That the Honorable (sic) Court set aside the orders of Weinberg J in VID 843/2006 and send the matter back to the respondent for recalculation of the compensation affected payments. The setting aside of the erroneous orders of Weinberg J will ultimately result in the consequent setting aside of the orders of the Full Federal Court and special leave to appeal to the High Court of Australia. 2. That the Respondent reimburse the $10,000 + $36,066.22 + $4,180.00 paid by myself in respect to the orders of bankruptcy to the Respondent. 3. Discretion of the Court for an order of damages. 36 The interim orders were not and could not have been pursued. Paragraph 1 of the interim orders could not have been made. The proceeding before Weinberg J has been finally disposed of by Weinberg J's order, the Full Court order dismissing the appeal from Weinberg J and the High Court's refusal of the appellant's application for special leave to appeal. Moreover, a similar application had been made to Middleton J and dismissed on 11 July 2008. 37 The second order could not have been made as an interim order. In any event, the appellant relied upon the payment of $36,066.22 for the final order sought for the annulment of the sequestration order. 38 The $10,000 sought by the appellant was held by the Court pursuant to the order made by Sundberg J on 9 February 2008. The sum of $4,180 was for costs ordered to be paid by the Full Court on 8 November 2001. Indeed, as the evidence shows, $630 is still outstanding for costs. 39 The third order also could not have been made. 40 The issue before the primary judge and on appeal is whether the appellant was entitled to an annulment of the sequestration order pursuant to either ss 153A or 153B of the Bankruptcy Act. 41 In his written submissions the appellant has provided the Court with a lengthy history of his workers compensation proceedings and the decision whereby Centrelink sought repayment from Allianz of the benefits paid to the appellant and his wife. He also gave a history of the reviews which were sought and the appeals to this Court against those reviews. He has made submissions that the benefits paid by Centrelink were not recoverable from Allianz. He has asserted that the respondent fraudulently misrepresented the facts to the County Court which made the orders under the workers compensation legislation. 42 He asserts that Allianz and his former solicitor and the respondent fraudulently agreed that the benefits should be repaid by Allianz to the respondent. He asserts that the primary judge was wrong to rely upon the High Court's reasons in Singh v Secretary, Department of Employment and Workplace Relations 46 AAR 447. The decision to which he has referred is in fact a decision of the Full Court of this Court dismissing his appeal from Weinberg J and confirming the Administrative Appeal Tribunal's decision that the application to it was vexatious. The decision to which he meant to refer was Singh v Secretary, Department of Employment and Workplace Relations [2008] HCASL 224. All of the adverse ruling decisions and judgments are wrongly predicated, he contended, upon the order that Allianz repay the benefits paid by Centrelink. 43 There is no evidence of any kind that would justify the complaint of fraud which was made and remade in the written submissions. 44 The appellant's contentions cannot be accepted because they raise issues not raised and not capable of being raised before the primary judge. The issue before the primary judge was as we have stated it. The primary judge had to determine that issue on the uncontroverted evidence that the orders for costs upon which the sequestration order was made remained in force at the time the sequestration order was made and any relevant facts as at the date the sequestration order was made, even if those facts were not known at the time when the order was made. 45 At the hearing of the appeal the appellant sought to adduce fresh evidence. Section 27 of the Federal Court of Australia Act 1976 (Cth) empowers this Court to receive "further evidence" on an appeal. The appellant filed an affidavit in which he claimed that the respondent was aware that the order made in the County Court was wrongly made but had notwithstanding received the money from the insurer. 46 The evidence sought to be adduced was not further evidence at all. Nor was it fresh evidence. The appellant has raised these issues in previous proceedings before the Administrative Appeals Tribunal, this Court and the High Court. Indeed, he has raised this claim in this Court before Weinberg J, the Full Court and Middleton J. 47 Moreover, if this evidence was relevant it should have been adduced before the primary judge. This evidence, if admitted on appeal, would raise a ground of appeal on an issue not raised before the primary judge. In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ said at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court tending to reduce the proceedings in the former court to little more than a preliminary skirmish. 48 In Freeman v National Australia Bank Ltd [2003] FCAFC 200, the Full Court said at [66]: So much having been said it is necessary, in determining an application for the receipt of further evidence, to have regard to the circumstance that the application is made in the appellate jurisdiction of the Court. Generally speaking, it is in the exercise of the Court's original jurisdiction at the trial of an action or other proceeding, that all relevant evidence will be adduced. Appeals brought in the Court from the decision of trial judges or federal magistrates are appeals de novo. But the appellate jurisdiction of the Court is not intended to provide an opportunity for a retrial of issues tried at first instance on further evidence. In the joint judgment in CDJ [CDJ v VAJ (1998) 197 CLR 132] it was said at 202: "… it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction." Ordinarily the trial of an action will provide the opportunity for all relevant evidence to be adduced and findings of fact made upon it. 49 For both of those reasons, we declined to allow him to raise the matter on appeal and refused the tender of his affidavit. 50 We turn to the grounds of appeal.