Singh v Secretary, Department of Employment & Workplace Relations

Federal Court of Australia|2006-10-23|Before: Weinberg J

the application 1 This is an appeal by Mohinder Singh from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 3 July 2006. The appeal, although said by Mr Singh to be brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth), was actually brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"), and is confined to questions of law. Though styled an "appeal" it is in fact an application brought in the original jurisdiction of the Court. 2 The Tribunal dismissed, as frivolous and vexatious, Mr Singh's application for review of a decision of the Social Security Appeals Tribunal ("SSAT") made on 22 March 2006. It also directed that he not, without leave of the Tribunal, make any future application with respect to recovery of sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999. 3 Mr Singh contends that the Tribunal did not have jurisdiction to make the decision that it did, or to give the direction that it gave. 4 Section 42B of the AAT Act is in the following terms: "42B Power of Tribunal where a proceeding is frivolous or vexatious (1) Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious: (a) dismiss the application; and (b) if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction. (2) A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act. (3) The Tribunal may discharge or vary such a direction." 5 It is clear, beyond argument, that the Tribunal had the statutory power to dismiss Mr Singh's application, and to give the direction that it did. When Mr Singh asserts that the Tribunal did not have "jurisdiction" to do either of these things, what he really means is that the Tribunal erred in law in exercising its undoubted powers. 6 The grounds upon which Mr Singh relies are essentially as follows: · his application for review was not frivolous and vexatious; · a breach of the rules of natural justice occurred in connection with the making of the decision; · the decision involved an error of law; and · the Tribunal either took into account an irrelevant consideration, or failed to take into account a relevant consideration in the exercise of its power.

background 7 It is necessary to set out something of the background to this matter. Gray J summarised a large part of that background in his judgment dated 23 December 2004: Singh v Secretary, Department of Family & Community Services [2004] FCA 1685. The Tribunal also summarised the history of this matter in its decision dated 3 July 2006. 8 Mr Singh was born in 1950. He was employed by the Public Transport Corporation from 1983, initially as a tram conductor, and later as a tram driver. 9 On 2 January 1991, Mr Singh suffered a work-related injury, which resulted in an ongoing medical condition. Between 12 June 1991 and 30 November 1993, following an admission of liability, Mr Singh received weekly compensation payments from an insurer, pursuant to the Accident Compensation Act 1985 (Vic). 10 Between 28 October 1991 and 6 December 1991, and between 1 October 1992 and 14 October 1992, Mr Singh also received sickness benefits, pursuant to the Social Security Act 1991 (Cth), totalling $262.80. After the cessation of his weekly compensation payments, from 16 December 1993 to 26 October 1999, Mr Singh received payments of disability support pension, pursuant to the Social Security Act, totalling $44,185.27. During the same period, Mr Singh's wife, Ms Amarjit Kaur, received a total of $44,185.27 by way of disability support wife pension. The total amount received by Mr Singh and Ms Kaur up to 26 October 1999, pursuant to the Social Security Act, was $88,633.34. 11 On 10 March 1995, as a result of the settlement of a proceeding commenced by him, Mr Singh received a lump sum compensation payment of $55,153, pursuant to the table of maims in s 98 of the Accident Compensation Act. 12 Subsequently, Mr Singh commenced a further proceeding, seeking to undo the settlement of his claim, and to resume the payment of weekly compensation payments. On 20 October 1999, the County Court made an order requiring the insurer to pay to Mr Singh arrears of weekly compensation from 1 September 1992 to 20 October 1999, and for such payments to continue in accordance with law. In consequence of the judgment, the total sum of arrears of weekly compensation was $129,382.92. Mr Singh was also held to be entitled to receive a lump sum of $80,000, pursuant to the table of maims. From this was deducted the amount of $55,153, which had been paid to Mr Singh pursuant to the previous settlement. As a result, he received a further sum of $24,847 on 22 November 1999. 13 On 4 November 1999, Centrelink advised the insurer that it was obliged to pay to Centrelink $88,633.34 in respect of payments of social security, received by Mr Singh and Ms Kaur, between 28 October 1991 and 26 October 1999. The insurer repaid this sum to Centrelink, out of monies it would otherwise have paid to Mr Singh, pursuant to the judgment of the County Court. Also on 4 November 1999, Centrelink advised Mr Singh of its decision to recover the amount directly from the insurer. Centrelink cancelled Mr Singh's disability support pension and Ms Kaur's wife pension, because the payment of weekly compensation precluded any such payments. 14 Mr Singh and Ms Kaur sought review of Centrelink's decision of 4 November 1999 on the basis that, although formally married, they had been living separately under one roof from about 1996. 15 On 23 December 1999, Centrelink decided that Mr Singh and Ms Kaur were to be treated as members of a couple. On 21 January 2000, an authorised review officer affirmed the decision of 23 December 1999. Mr Singh sought review of that decision in the SSAT. 16 The SSAT then set aside the decision made by Centrelink on 4 November 1999 to recover $44,185.27, representing the total amount paid as wife pension from 16 December 1993 to 22 October 1999, from Mr Singh's arrears of periodic compensation. It remitted the matter to Centrelink for reconsideration in accordance with a direction that Mr Singh and Ms Kaur had not been members of a couple since 29 October 1996. However, the SSAT affirmed the decision by Centrelink to cancel Ms Kaur's wife pension. 17 In separate applications, Mr Singh and Ms Kaur then sought review by the Tribunal of the decision made by the SSAT. Ms Kaur subsequently withdrew her application on 8 May 2000. On 30 October 2000, the Tribunal set aside that part of the SSAT decision regarding arrears. It also determined that Mr Singh and Ms Kaur be treated as members of a couple at all relevant times. 18 Mr Singh then appealed to the Federal Court. On 19 December 2000 Finkelstein J made a consent order dismissing that proceeding with no order as to costs. 19 Mr Singh then appealed to the Full Court of the Federal Court seeking to revoke the orders made by consent by Finkelstein J. That appeal was dismissed by Beaumont, Kiefel and Hely JJ on 21 September 2001: Singh v Secretary, Dept of Family & Community Services[2001] FCA 1281. 20 Following further requests from Mr Singh, Centrelink wrote to him on 22 January 2002 stating that it had reviewed his case and decided not to change its decision to recover a compensation debt of $88,633.34. Mr Singh asked that the matter be referred to an authorised review officer. On 4 February 2002, an authorised review officer informed Mr Singh that he had no power to review the matter as it had already been reviewed by the SSAT, as well as the Tribunal itself. Mr Singh then lodged a further application with the SSAT on 19 February 2002. The SSAT decided on 13 May 2002 to again affirm the decision under review. 21 Mr Singh then lodged a further appeal to the Tribunal, which on 17 December 2002 affirmed the decision of the SSAT dated 13 May 2002. On 2 January 2003, Mr Singh appealed to the Federal Court seeking to set aside the Tribunal's decision of 17 December 2002. On 19 March 2003, I ordered that Mr Singh's application be transferred to the Federal Magistrates Court. On 5 December 2003, Hartnett FM dismissed the appeal with costs: Singh v DFCS [2003] FMCA 566. Mr Singh appealed to the Federal Court, and the appeal was heard by Gray J. On 23 December 2004, his Honour dismissed the appeal with costs: Singh v Secretary, Department of Family and Community Services (Centrelink) [2004] FCA 1685. On 9 September 2005, the High Court dismissed an application for special leave to appeal, with costs: Singh v Secretary, Dept of Family and Community Services (Centrelink) [2005] HCATrans 759. 22 Mr Singh then filed a notice of motion in this Court seeking to set aside the reasons for judgment and the orders of Gray J made on 23 December 2004. On 24 October 2005, Gray J dismissed the motion, with costs: Singh v Secretary, Department of Family and Community Services [2005] FCA 1625. 23 Undaunted, on 6 February 2006 Mr Singh sought to issue a further notice of motion. That matter was heard in chambers by Ryan J who on 8 March 2006, directed the Registrar not to accept the notice of motion: Singh v Secretary, Department of Family and Community Services [2006] FCA 189. 24 In the interim, on 31 October 2005 Mr Singh wrote to a delegate of the Secretary to the Department of Family and Community Services requesting a recalculation of the compensation debt. A Centrelink officer refused that request, citing the various decisions previously made by the Federal Court. That decision was affirmed on review by an authorised review officer, and on 22 March 2006, on appeal to the SSAT.

the decision of the tribunal 25 It was against that decision of the SSAT of 22 March 2006 that Mr Singh sought review in the Tribunal. That application resulted in the Secretary, Department of Employment and Workplace Relations making an application to the Tribunal to have Mr Singh's application dismissed as frivolous and vexatious, and to have him prevented, without leave, from re-agitating the issues that have given rise to the numerous proceedings identified above. 26 The Tribunal conducted a hearing on 19 June 2006. Mr Singh applied at the outset to have the Tribunal member, Mr John Handley, disqualified from hearing his application because Mr Handley was not "independent" having previously dealt with one of Mr Singh's many applications in relation to this matter. Eventually, Mr Singh withdrew that application and, as the Tribunal records (at [5]), consented to the matter proceeding before Mr Handley. 27 In its reasons for decision, the Tribunal set out in some detail the history of Mr Singh's attempts to avoid having to repay the various sums totalling $88,633.34. It noted that he had provided some 300 pages of documents in support of his application to review the decision of the SSAT dated 22 March 2006, and that when he discovered that the respondent would seek to have his application summarily dismissed he wrote attaching another 68 documents. In addition he subsequently provided the respondent with a further 17 page document and, when the hearing commenced, lodged a further seven page document being the contentions upon which he relied. 28 The Tribunal summarised Mr Singh's contentions as follows. He claimed that the application that he brought before the SSAT differed from his earlier applications because it raised a new and different issue, namely whether the payment of $129,382.87 (which he received as a lump sum) was a "lump sum compensation payment" or whether it was "arrears payments for the social security purposes". He further claimed that he was seeking, by the current proceedings, to have determined whether a decision of the Federal Court, Secretary, Department of Social Security v Cunneen (1997) 78 FCR 576, was correct. 29 The Tribunal concluded that Mr Singh was attempting again to review decisions that had previously been made by Centrelink, by the Tribunal itself, by the Federal Magistrates Court and by this Court regarding his compensation recovery. It found that Mr Singh believed that he had a right to bring this latest proceeding because he was of the view that there had been a "conspiracy and fraud on the part of Centrelink and the Insurer". The Tribunal referred to the various documents lodged by Mr Singh, noting that they contained inflammatory and derogatory references regarding the conduct of officers of Centrelink, the Workers' Compensation insurer and his former solicitors. According to the Tribunal, Mr Singh alleged conspiracy, lies, fraud, betrayal of trust, deception and that innocent injured workers had been cheated. 30 The Tribunal noted that s 42B of the AAT Act was rarely invoked. It referred to dictionary definitions of the terms "frivolous" and "vexatious" and said (at [35]): "I am of the view, having regard to the history of the proceedings initiated by Mr Singh, that his intended application is in fact both frivolous and vexatious." 31 The Tribunal then stated (at [37]-[38]): "It is clear to me from reading the contentions and submissions prepared by Mr Singh that the allegations that he has made concerning the conduct and behaviour of other persons are in fact vexatious because they cannot be justified upon any legal basis and have the effect, and I believe purpose, of annoying and irritating. The proceedings are also frivolous because the appeal mechanism available to Mr Singh has been thoroughly exhausted and his attempts to re-litigate matters that have previously been decided have no legal validity." 32 The Tribunal added that the application brought by Mr Singh was in its view "obviously untenable" and "utterly hopeless". It referred to the "repetitious appeals" lodged by Mr Singh as having no merit, and to the order of Ryan J on 8 March 2006 that the most recent application to this Court not be accepted because it amounted to an abuse of process. It described Mr Singh's constant attempts to re-litigate issues that had been conclusively determined against him as a waste of public resources, involving the harassment of persons, and as an abuse of process. 33 It formulated its direction preventing him from bringing further proceedings, without the leave of the Tribunal, with some care. Its aim was to ensure that Mr Singh was not precluded from seeking review of decisions that were unrelated to those that were the subject of the numerous challenges brought by him in recent years.

Mr singh's submissions 34 Mr Singh appeared before me without legal representation. He had the assistance of an interpreter, but generally seemed well able to communicate in English. 35 Put simply, Mr Singh's contentions seemed to be as follows. He submitted that the Tribunal had erred in having regard to what it described as a "long history" of the litigation involving his claims by including within that history "other past litigation". He submitted that there had been a number of proceedings involving a challenge, on his part, to a finding by Centrelink that he and his wife were, at all material times, a "couple" when in his view they were living separately and apart under the one roof. That issue was said to be distinct from, and unrelated to, the matter that he had sought to agitate before the Tribunal earlier this year. 36 Mr Singh argued that the reason that he had returned to the Tribunal, after having his previous claims rejected (and in the case of Gray J, twice rejected) was because Gray J, in his second judgment, had made it clear that this Court would not entertain an argument regarding facts found by the Tribunal, but only questions of law. Gray J rejected Mr Singh's contention that a misstatement of the law, without more, could constitute fraud and thereby trigger the operation of Order 35 r 7(2), allowing for a judgment or order that had been entered to be set aside or varied. 37 According to Mr Singh that caused him to read, for the first time, the reasons for decision given by the SSAT on 13 May 2002. There he discovered that Centrelink had apparently recorded, as a fact, that Mr Singh received periodic payments of compensation from the insurer until 30 November 1993 "and did not advise Centrelink of these payments". Mr Singh indignantly denied that assertion, maintaining that he had evidence that Centrelink had been told of the payments. He alleged fraud, on the part of Centrelink, as well as a number of other bodies.

Mr Singh's contention regarding "fraud" 38 Although the Tribunal briefly referred to Mr Singh's contention regarding "fraud" on the part of various bodies, it did not consider that contention in any detail when it decided to dismiss Mr Singh's application as frivolous and vexatious. Rather it summarised the totality of Mr Singh's various attempts to avoid having to repay the sum of $88,633.34, and concluded that he was attempting again to review decisions that had previously been made by the Tribunal and various courts. 39 It would have been preferable had the Tribunal endeavoured to unravel Mr Singh's somewhat convoluted argument, and deal with it in more specific terms. The real reason why Mr Singh was correctly prevented from raising this issue of "fraud" before the Tribunal was because he ought to have raised it in 2002, when Mr Singh was provided with the SSAT's reasons for decision. However, Mr Singh did not raise this matter when he lodged his appeal to the Tribunal on 30 May 2002, and self-evidently the Tribunal did not address the point when it delivered its reasons for decision affirming the decision of the SSAT, on 17 December 2002. 40 Mr Singh submitted that the reason he had not read the SSAT's reasons for decision at the time he received them was because he was "not capable" of understanding all English, and that he had "no capacity to read". However, Mr Singh gave no explanation of why he had not organised for the document to be translated to him at that time. 41 Mr Singh is therefore confronted with the fact that, by reason of his failure to read the SSAT's reasons for decision, or to have them translated to him, he did not raise, on merits review, an argument that would have been open to him. This brings into play the estoppel discussed in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. There the High Court accepted as correct the extended principle expressed by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at 115; (1843) 67 ER 313 at 319: "where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." 42 In Anshun, the Court found that the principle laid down in Hendersonextended beyond res judicata. That broader form of estoppel applies to this case. I note that Ryan J, in his reasons for directing non-acceptance of process given on 8 March 2006, relied upon Anshun. Had Mr Singh read the 13 May 2002 reasons for decision, he would have seen the sentence to which he now objects. He could then, as part of ordinary merits review, have challenged the correctness of the assertion contained within it, and arguably gained some support for his broader challenge to the 4 November 1999 decision. His failure to read the reasons for decision, whether through "negligence, inadvertence or even accident" led to his not having raised the point at a time when something could have been done about it. He cannot now, years later, having failed at all stages to demonstrate relevant legal error, come back to the Tribunal, and thence to this Court, with a point that should have been raised long before this. 43 All this assumes, of course, that there is otherwise substance in Mr Singh's contention that Centrelink in some way acted dishonestly when it recorded Mr Singh as having failed to notify it of the payments that he had received prior to November 1993. The possibility that this was human error, rather than fraud, seems to have eluded Mr Singh.

The direction under s 42B(1)(b) of the AAT Act 44 Mr Singh's next point was that the Tribunal exceeded its powers by directing that he not, without leave of the Tribunal, make any application with respect to recovery of the various allowances and pensions paid between 28 October 1991 and 26 October 1999. In substance, his argument was that the Tribunal could only direct that he not, without leave of the Tribunal, make a subsequent application to the Tribunal of the kind stipulated, and that the omission of the key words, marked in bold, meant that it had purported to prevent him from bringing proceedings anywhere in relation to those matters. 45 It would have been preferable, I think, had the Tribunal included the words "to the Tribunal" in its formal direction. Nonetheless, as a matter of construction, no one would read the direction as precluding Mr Singh from bringing proceedings in this or any other court, merely because the Tribunal used somewhat imprecise language in formulating what it set out to achieve. It is plain that the Tribunal has no power to prevent Mr Singh from seeking to agitate whatever claims he may have regarding the $88,633.34 claw-back, before any body or court other than the Tribunal itself. The words "to the Tribunal" are implicit in the direction. 46 Mr Singh contended otherwise. He submitted that the Tribunal's unrestricted formulation vitiated its direction entirely, and meant that he was at liberty to return to the Tribunal in relation to this matter as and when he saw fit. I reject that contention. The Tribunal's direction was neither erroneous, nor a nullity. It was simply not expressed as well as it could have been. 47 Out of an abundance of caution, and for no other reason, I will vary the language in which the direction was expressed by inserting the words "to the Tribunal" at the appropriate point. This necessitates allowing the appeal, but only for the limited purpose of enabling this variation to be made. 48 There is no substance in Mr Singh's broader contention that the Tribunal ought not to have invoked the power conferred by s 42B(1)(b), effectively declaring him a vexatious litigant. 49 Although s 42B(1)(b) is couched in language that differs from that used in Order 21 r 1 of the Federal Court Rules the principles that underlie the making of a direction by the Tribunal are not dissimilar to those that apply to vexatious litigants in this Court. Order 21 r 1 requires a person to have instituted a vexatious proceeding and the Court to be satisfied that the person has "habitually, persistently and without reasonable grounds" instituted other vexatious proceedings. Section 42B does not require that the person act "habitually and persistently", but can be triggered by a single application which is frivolous or vexatious. Nonetheless, it is implicit in the section that a direction under s 42B(1)(b) will not be lightly made, and will normally require some element of habitual or persistent conduct. 50 It may be true, in a literal sense, that Mr Singh only sought to agitate his allegation that Centrelink acted fraudulently after Gray J dismissed his attempt to argue for a different variant of fraud in unsuccessfully seeking to have his Honour reconsider his earlier orders. However, the latest allegation is but one of a litany of attempts to challenge the 4 November 1999 decision to recover $88,633.34 from him. In accordance with established authority, the Tribunal was entitled to have regard to Mr Singh's entire dealings with Centrelink, including his numerous applications to have that decision reviewed. 51 Section 42B(1)(b) must be applied having regard to a fundamental principle of the rule of law. Every person has a right to apply to a tribunal, or a court, to seek remedies in consequence of an alleged infringement of his or her rights. Because a direction given under s 42B(1)(b) denies a person this right, it is a remedy that should not be invoked except in an extreme case. See generally Ramsey v Skyring (1999) 164 ALR 378 at 389-91 (per Sackville J). 52 In Freeman v National Australia Bank Ltd [2006] FCAFC 67 a Full Court observed (at [24]-[25]) that existing authority established that in determining whether particular proceedings are in fact vexatious, a court may take account of proceedings in other courts where, for example, they have authoritatively resolved the particular issue against the person instituting the proceedings. The Full Court also noted that the expression "habitually and persistently" implies more than "frequently", and suggests a degree of stubbornness on the part of the person in question. The element "without any reasonable ground" is of course to be determined objectively. It is immaterial that the person may believe in the justice of his or her argument, and may not understand that the argument has been authoritatively rejected. 53 The Full Court referred to the principles laid down in Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478; Attorney-General v Wentworth (1988) 14 NSWLR 481; Jones v Skyring (1992) 109 ALR 303; Horvath v Commonwealth Bank of Australia [1999] FCA 504; Commonwealth Bank of Australia v Heinrich [2003] FCA 540; and Granich & Associates v Yap [2004] FCA 1567. It held that these cases accurately reflected the law on Order 21 r 2. 54 In my view, similar principles are applicable to s 42B(1)(b), and therefore to Mr Singh. The Tribunal was entitled to have regard to his persistence, over many years, in seeking to have set aside the 4 November 1999 decision. It was entitled to have regard to his entire course of dealings in relation to social security benefits since his accident in 1991, and the fact that his latest foray before it involved an argument that could, and should, have been addressed years earlier. In those circumstances, I can see no error in the Tribunal's having concluded that a limited direction of the kind given was warranted. 55 I note that Mr Singh raised a number of other arguments in both his written and oral submissions. However, as those arguments have already been the subject of earlier authoritative decisions in this and other courts, they do not take Mr Singh's application before me any further. 56 I will hear the parties as to costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Counsel for the Applicant: The Applicant appeared in person

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