Singh v Secretary, Department of Employment & Workplace Relations

BACKGROUND 7 The matter before Weinberg J in respect of which he delivered his judgment and made orders on 23 October 2006, Singh v Secretary, Department of Employment & Workplace Relations (2006) 235 ALR 297, was an appeal by the applicant from a decision of the Administrative Appeals Tribunal on 3 July 2006 dismissing, as frivolous and vexatious, the applicant's application for review of a decision of the Social Security Appeals Tribunal on 22 March 2006. The Administrative Appeals Tribunal also directed that the applicant 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. 8 The background to the applicant's application for review of the decision of the Social Security Appeals Tribunal has its genesis in a work‑related injury which the applicant suffered on 2 January 1991 which resulted in an ongoing medical condition. 9 On 23 October 2006 Weinberg J ordered that the applicant's appeal from the decision of the Administrative Appeals Tribunal be allowed: "…but for the limited purpose only of varying the Tribunal's direction contained in paragraph 2 of its decision so that it reads: '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.'" Weinberg J also ordered that the appeal otherwise be dismissed. 10 The applicant appealed from the orders made by Weinberg J. On 9 February 2007 Sundberg J in respect of that appeal made orders that the applicant lodge with the Registrar of the Court or with the solicitors for DEWR the sum of $10,000 in respect of security for its costs of the appeal and that the applicant pay DEWR's costs of the application for security for costs: [2007] FCA 90. The applicant paid into Court the sum of $10,000 as security for DEWR's costs but has not paid DEWR's costs of the application for security for costs. 11 On 22 November 2007 the Full Court dismissed that appeal with costs: Singh v Secretary, Department of Employment & Workplace Relations (2007) 46 AAR 447. 12 The applicant sought special leave to appeal from the decision of the Full Court to the High Court of Australia and on 15 May 2008 the High Court dismissed the application for special leave: Singh v Secretary, Department of Employment & Workplace Relations [2008] HCASL 224. The reasons of the High Court are a succinct and helpful summary of the background to the present application and I set them out in full: "1. The applicant was injured at work on 2 January 1991. From December 1993 to October 1999 the applicant was paid a disability support pension and his wife received a disability support wife pension. In 1999 the County Court of Victoria ordered an insurer to pay to the applicant arrears of weekly compensation from 1 September 1992 to 20 October 1999. On 4 November 1999 Centrelink advised the insurer that it was obliged to pay Centrelink $88,633.34 in respect of payments of social security received by the applicant and his wife before 26 October 1999. The insurer paid this amount to Centrelink out of moneys it would otherwise have paid to the applicant, pursuant to the judgment of the County Court. 2. The applicant sought review of Centrelink's decision of 4 November 1999 and was unsuccessful. Special leave to appeal to this Court was refused: Singh v Secretary, Department of Family and Community Services (Centrelink) [2005] HCATrans 759. 3. On 22 March 2006 the Social Security Appeals Tribunal ("the SSAT") declined to review the decision of Centrelink made on 19 December 2005 that it had no jurisdiction to review the decision made on 4 November 1999. The SSAT found that the applicant was seeking to have the SSAT revisit its earlier decision. The applicant sought review of the SSAT decision in the Administrative Appeals Tribunal ("the AAT"). The AAT was of the view that the 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) ("the AAT Act"). It also directed that the applicant not, without leave of the AAT, 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. 4. In the Federal Court Weinberg J varied the direction of the AAT so that the words "to the [AAT]" were added after the words "[t]he applicant must not without leave of the [AAT] make any application", and otherwise dismissed the appeal. There was no substance to the contention that the AAT should not have exercised its powers under s 42B of the AAT Act. 5. The applicant's appeal to the Full Court of the Federal Court was dismissed on 22 November 2007. Siopis and Middleton JJ held that the AAT was entitled to find as it did, and there was no suggestion that incorrect principles were adopted in determining the application under s 42B. Dowsett J substantially agreed with the joint judgment, but suggested that the AAT ought to have determined whether the application was itself frivolous or vexatious, rather than focusing on the applicant's litigation history. However, his Honour held that the applicant's grounds of appeal had to fail because they should have been raised earlier. 6. The applicant's draft notice of appeal fails to raise any ground with respect to the decision of the Full Court. He does not identify a special leave question but returns to the alleged failure by the SSAT to review the decision of Centrelink refusing to review the decision of 4 November 1999. It is clear that the matters put forward by the applicant have been previously decided, and it was open to the AAT to dismiss the application summarily. The applicant has insufficient prospects of success in this Court to warrant a grant of special leave to appeal. 7. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave." 13 As noted earlier, the applicant was made bankrupt on 28 February 2008 on a petition based upon a bankruptcy notice claiming a debt due to DEWR of $36,066.20. 14 On 10 June 2008 the applicant paid the sum of $36,066.20 (the amount claimed in the bankruptcy notice) by bank cheque to the solicitors for DEWR who forwarded the cheque to the Official Trustee. The Official Trustee presently retains that sum. 15 On 10 June 2008 the applicant filed a notice of motion in the proceeding which had been before Weinberg J and the Full Court in which he sought 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; (b) the Full Court decision and the decision of Weinberg J at first instance be set aside. On 11 July 2008 Middleton J dismissed the applicant's notice of motion with costs. Middleton J considered that he had no power to make the orders sought: [2008] FCA 1061.

EVENTS FOLLOWING THE SEQUESTRATION ORDER 16 Pursuant to s 54 of the Bankruptcy Act the applicant was required to complete and lodge a statement of his affairs within fourteen days of the date on which he was notified of his bankruptcy. The applicant has not completed or lodged with Insolvency and Trustee Services of Australia ("ITSA") a statement of affairs despite repeated requests by ITSA that he do so. Because he has not lodged a statement of affairs with ITSA, the Official Trustee is unable to ascertain what liabilities, other than the debt due to DEWR, may be provable in the bankruptcy of the applicant. 17 By letter dated 6 March 2008 ITSA notified the applicant that he was required by s 54 of the Bankruptcy Act to file a statement of affairs within fourteen days of the letter, namely no later than 20 March 2008. The letter enclosed two sets of statement of affairs forms for the applicant. On 29 April 2008 the Official Trustee sent a letter to the applicant which notified the applicant that he had failed to comply with the requirements of the Bankruptcy Act by not completing a statement of affairs and that he should complete a statement of affairs. 18 On 11 June 2008 the Official Trustee sent a letter to the applicant informing him that the presentation of the bank cheque for $36,066.20 did not discharge him from bankruptcy. The letter further stated that annulment of the bankruptcy could occur if the applicant filed his statement of affairs, all debts were listed and paid, and the Official Trustee's fees were paid in full, or if the applicant made an offer of composition which was accepted by his creditors. 19 On or about 13 June 2008 the Official Trustee received a letter from the applicant which did not address the issue of the requirement that he file a statement of affairs but stated, inter alia: "…if there are any outstanding fees and costs of administration please let me know so that I can pay these and fulfil the criteria to obtain a certificate of annulment for the above mention bankruptcy matter as outlined in you letter." 20 On or about 16 June 2008 the Official Trustee received a letter from the applicant which stated, inter alia: "I want to bring your attention to sub‑section 153A(1) of the Bankruptcy Act 1966 (the Act) which provide that if the Trustee is satisfied that all the bankrupt's debts have been paid in full, the bankruptcy is annulled, by force of this subsection, on the date on which the last such payment was made. In this case 10 June 2008. Thus, the requirement you mentioned in your letter dated 11 June 2008 to provide you with a statement of affairs, is not required in the consideration of annulment under section 153A … Therefore, I request that if there are any applicant creditor's costs in relation to the petition remain that should be taxed pursuant to order 62 of the Federal Court Rules and paid in accordance with the statue and any costs of the insolvency trustee service of Australia. If there is not any cost, please issue me a Copy of a Certificate of Annulment of my bankruptcy within 14 days from the date of this letter or reasons for breach of the provisions of section 153A of the Act in writing otherwise I shall assume an automatic annulment of my bankruptcy under the Act from the ITSA. Thanking you." 21 Because the applicant had failed to make out and file a statement of affairs with the Official Trustee pursuant to s 54(1) of the Bankruptcy Act, the matter was referred to the fraud investigation team of ITSA on 28 May 2008. On 30 June 2008, the fraud investigation team sent a letter to the applicant informing him that failure to comply with his obligation under s 54 of the Bankruptcy Act to file a completed statement of affairs rendered him liable upon conviction to a penalty and that not filing his statement of affairs would also result in him remaining bankrupt indefinitely. In the letter the applicant was invited to participate in an interview with the fraud investigation unit. The letter also stated that if the applicant elected to file his completed statement of affairs within fourteen days of receiving the letter, the fraud investigation unit would not refer the matter to the Commonwealth Director of Public Prosecutions for prosecution action. The letter enclosed two statement of affairs forms for the applicant to complete and return. 22 On 14 July 2008 Mr Anastasios Angelopoulos, an Assistant Deputy Official Receiver (Estate Administration) in the employ of the Melbourne office of ITSA, had a telephone conversation with the applicant in which he told the applicant that he was still required to complete a statement of affairs notwithstanding his payment of the sum of $36,066.20. The applicant told Mr Angelopoulos that he had almost completed his statement of affairs and that it would be forwarded to ITSA by the end of that week. The Official Trustee's office did not receive any such statement of affairs. 23 On 21 July 2008 ITSA sent a letter to the applicant in which it recited the various occasions on which he had been informed that he was required to file a statement of affairs pursuant to s 54(1) of the Bankruptcy Act and that he had failed to do so. The letter concluded by informing the applicant again that he was required to file a statement of affairs, that as he had failed to do so he was in breach of s 54(1) of the Bankruptcy Act and that upon receipt of the statement of affairs the Official Trustee would provide him with an estimate of the total amount to pay out his debts, fees and costs of the administration. 24 Because the applicant has not provided ITSA with a statement of affairs as required by s 54(1) of the Bankruptcy Act, the Official Trustee has been unable to ascertain what liabilities other than the liability to DEWR may be provable in the applicant's bankruptcy. The solicitors for DEWR have informed the Official Trustee that in addition to the debt of $36,066.20 listed in the petition, the applicant is indebted to DEWR in respect of two costs orders made against him before 28 February 2008 (the date of the sequestration order) in the total sum of $14,995.35 and is also indebted to DEWR in respect of the costs order made pursuant to the sequestration order. These costs orders have not yet been taxed. The debt of $14,995.35 is a provable debt in the applicant's bankruptcy and the costs order made pursuant to the sequestration order is a priority payment in accordance with s 109(1)(a) of the Bankruptcy Act. 25 In summary, the current position of the administration of the applicant's bankrupt estate is as follows: · the Official Trustee has not taken any substantive steps towards the administration of the estate. The Official Trustee intends calling for a formal proof of debt from DEWR and formal proofs of debt from all other creditors following receipt of a statement of affairs from the applicant; · the applicant has continued to fail and refuse to complete and lodge a statement of affairs as required by s 54(1) of the Bankruptcy Act; · the Official Trustee is unable to ascertain what liabilities, other than that of DEWR, may be provable in the applicant's bankruptcy; · DEWR has debts owing to it by the applicant, other than the sum of $36,066.20, which are provable in the applicant's bankruptcy or payable out of his bankrupt estate; · all of the applicant's debts, including the costs, charges and expenses of the administration of his bankruptcy, have not been paid in full and the Official Trustee is not satisfied as to their payment in full; · until such time as the Official Trustee can determine the quantum of claims provable in the bankruptcy of the applicant, he is unable to quantify the amount payable by way of remuneration to him or the amount of the "realisations charge" payable under the Bankruptcy (Estate Charges) Act 1997 (Cth). 26 It appears from two affidavits sworn by the applicant that he takes the view that because he paid the debt of $36,066.20 by bank cheque on 10 June 2008 and received a receipt for that sum, he is thereby entitled to have issued to him a certificate of the annulment of the sequestration order made on 28 February 2008. This contention of the applicant is found in paragraph 32 of his affidavit sworn on 30 July 2008 and in paragraph 32 of his affidavit sworn on 25 August 2008. The applicant also contended in his oral submissions that he was not indebted to DEWR when he was declared bankrupt.

SHOULD THE APPLICANT'S BANKRUPTCY BE ANNULLED? 27 Section 153A of the Bankruptcy Act provides: (1) If the trustee is satisfied that all the bankrupt's debts have been paid in full, the bankruptcy is annulled, by force of this subsection, on the date on which the last such payment was made. … (2) The trustee must, as soon as practicable after that date, give to the Official Receiver a written certificate setting out the former bankrupt's name and bankruptcy number and the date of the annulment. … (6) In this section: 'bankrupt's debts' means all debts that have been proved in the bankruptcy and includes interest payable on such of those debts as bear interest, and the costs, charges and expenses of the administration of the bankruptcy, including the remuneration and expenses of the trustee." 28 Section 153B(1) of the Bankruptcy Act provides: "If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor's petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy." 29 The applicant has filed three affidavits in support of his application. A substantial amount of the material contained in those affidavits relates to the history of his claims for compensation arising out of the injury he sustained at work on 2 January 1991. None of that material is relevant to, nor does it bear upon, his application for annulment of the sequestration order made on 28 February 2008. The only material which relates to his application for annulment is found in the last two paragraphs of the affidavits filed on 30 July 2008 and 25 August 2008. Those paragraphs are in identical form as follows: "(1) That the reasons I explained above are entirely satisfactory for the Court to annul the applicant's bankruptcy status pursuant to the provisions of section 153B of the Bankruptcy Act 1966 because the original decision of the respondent still did not became [sic] the subject of determination by Tribunal and Courts despite three different proceedings in relation to review of the original decision of the respondent. Therefore the sequestration order ought not to have been made by the Federal Magistrates' Court and the petition by the respondent ought not to have been presented and ought not to have been accepted by the official receiver. (2) That for the annulment of my bankruptcy status pursuant to the provisions of section 153A of the Bankruptcy Act, I have paid the total debt of the said creditor, approved by the Court. The official receiver is breaching the law by not providing me with a certificate of annulment although I requested the trustee to send me a bill of any outstanding related cost. Therefore I request that this Honorable [sic] court make an order to annul my bankrupt status." Almost all of the applicant's oral submissions were directed to challenging and re‑opening the decision of Centrelink on 4 November 1999, the decision of the Social Security Appeals Tribunal on 22 March 2006, the decision of the Administrative Appeals Tribunal on 3 July 2006 and to setting aside the orders of Weinberg J on 23 October 2006 and the Full Court on 22 November 2007. 30 There are presently other amounts payable by the applicant in respect of costs awarded against him or out of his estate to DEWR. These amounts are: · On 8 November 2001 the Full Court ordered that the applicant pay the costs of DEWR in respect of the appeal which it had dismissed on 21 September 2001. $630 remains outstanding under that order; · On 9 February 2007 Sundberg J ordered that the applicant pay DEWR's costs of an application that the applicant lodge security for DEWR's costs of the applicant's appeal to the Full Court; · On 22 November 2007 the Full Court ordered that the appeal by the applicant from the judgment and orders of Weinberg J on 23 October 2006 be dismissed and that he pay DEWR's costs of the proceeding; · On 28 February 2008 the sequestration order was made against the estate of the applicant and the Court ordered further that DEWR's costs of and incidental to the petition be taxed pursuant to O 62 of the Federal Court Rules and paid in accordance with the Statute. 31 I do not consider that there are any grounds on which, for the purposes of s 153B of the Bankruptcy Act, I can be satisfied that the sequestration order made on 28 February 2008 ought not to have been made. The bankruptcy notice and creditors' petition pursuant to which the sequestration order was made were in order and there are no defects in them. The debt payable by the applicant identified in the bankruptcy notice was a debt which related to judgments and orders of various courts in relation to costs. None of those orders were set aside or reversed by any appellate court. The reasons set out by the applicant in his affidavits to which I have referred in par [29] above, and in his oral submissions, do not identify any ground which warrants the Court being satisfied pursuant to s 153B(1) of the Bankruptcy Act that the sequestration order ought not to have been made. The reasons set out in those affidavits appear to be based on what the applicant calls "the original decision" by Centrelink on 4 November 1999 whereby it advised the insurer, who was liable to pay compensation to the applicant, to pay Centrelink $88,633.34 in respect of payments of social security received by the applicant and his wife before 26 October 1999. The insurer paid that amount to Centrelink out of moneys it would otherwise have paid to the applicant pursuant to a judgment of the County Court. The applicant has sought to reopen that original decision in a number of proceedings before the courts, culminating in the special leave application to the High Court, to which I have referred earlier. That issue has been finally decided against the applicant and there is no basis upon which he can challenge the decision in any way which would have any effect on, or consequence for, the sequestration order made on 28 February 2008. There is no basis upon which I can review, set aside or otherwise interfere with any of the judgments or orders which resulted in orders for costs which formed the subject of the bankruptcy notice. Further, I have no jurisdiction to set aside the orders of Weinberg J on 23 October 2006 or the Full Court on 22 November 2007. 32 The applicant's application pursuant to s 153A of the Bankruptcy Act must also fail. There is no basis upon which the Court can order an annulment of a bankruptcy pursuant to s 153A because the operation of that section depends upon the satisfaction of the Trustee that the applicant's debts "have been paid in full". That section does not allow for an order to be made by the Court implementing its provisions. If the Official Trustee is satisfied that all the bankrupt's debts have been paid in full, the bankruptcy is annulled by force of subs 153A(1). The need to obtain an order from the Court does not arise. 33 The Court's only power to annul a bankruptcy is found in s 153B but the exercise of that power requires the Court to be satisfied that the sequestration order ought not to have been made: Willoughby v Official Trustee in Bankruptcy (WA) (2000) 102 FCR 261 at 267. 34 The applicant says in the affidavits, to which I have referred in par [29]above, that he has paid the "total debt" due to the Official Trustee. It is true that he paid the sum of $36,066.20 on 10 June 2008 but there is evidence before me, firstly, that there are other debts due and outstanding to DEWR and secondly, there is evidence from the Official Trustee that he is not satisfied that all the applicant's debts have been paid. The Official Trustee says, and I accept his evidence, that until such time as the applicant files a statement of affairs and the Official Trustee is able to consider its contents, he is unable to be satisfied that all the applicant's debts have been paid. 35 Further, there is an inconsistency or incongruity in the applicant's assertion firstly, that he has paid the total debt due either to DEWR or to the Official Trustee and secondly, his claim for interim relief that the amount of $36,066.20 be reimbursed to him.

SHOULD FURTHER RESPONDENTS BE JOINED? 36 There is no basis upon which the Court can make any order pursuant to the applicant's notice of motion filed on 25 August 2008 seeking to join two further respondents to the proceeding. Allianz Australia Workers Compensation (Victoria) was the insurer which paid the sum of $88,633.34 to Centrelink in or about November 1999 and Mr Potter was the applicant's solicitor. 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.

SHOULD THE INTERIM ORDERS SOUGHT BE MADE? 37 The interim orders sought by the applicant must be dismissed. I have no jurisdiction to set aside the order of Weinberg J. The applicant has already appealed against that order and his appeal has been dismissed by a Full Court of the Federal Court and the High Court has dismissed the application for special leave to appeal from that decision. 38 There is an inconsistency in the applicant's claim for reimbursement the sum of $36,066.20. He claims that because he paid that sum on 10 June 2008 and has received a receipt for it he is entitled to a certificate of annulment of his sequestration order. On the other hand, he seeks an order that the amount of $36,066.20 be returned to him. There is no basis on which an order can be made that that amount, or any part of it, can be returned to the applicant. That amount is held by the Official Trustee and forms part of the divisible property of the applicant which vests in the Official Trustee pursuant to ss 58 and 116 of the Bankruptcy Act. 39 The sum of $10,000 which the applicant seeks to have reimbursed to him is presently held in the Court pursuant to the order of Sundberg J as security for costs and not all of those costs have been determined, fixed or finalised. 40 The applicant seeks the reimbursement of the sum of $4,180. That amount arises out of an order of a Full Court of the Federal Court made on 8 November 2001. On 21 September 2001 the Full Court dismissed an appeal by the applicant but the costs of the appeal were reserved for further consideration: Singh v Secretary, Department of Family & Community Services [2001] FCA 1281. On 8 November 2001 the Full Court ordered that the applicant pay the costs of the respondent to that appeal. Those costs were subsequently taxed and assessed at $4,810. It appears that the applicant paid to DEWR the sum of $4,180 in respect of those taxed costs but $630 remains outstanding under that order. The issue before the Full Court had been whether the applicant could revoke orders made by consent and filed in the Court on 19 December 2000. 41 In short there is no basis upon which I can order reimbursement of the three amounts claimed by the applicant, namely, $10,000, $36,066.20 and $4,180. 42 There is no basis on which the Court can make an interim order or, indeed, a final order in relation to the applicant's claim for damages. No cause of action has been made out or disclosed by the applicant upon which I could make any order for damages in his favour. 43 It follows from these reasons that the applicant's claim for interim and final relief must be dismissed and that the notice of motion seeking the joinder of two further respondents should be dismissed. As I noted earlier, it became unnecessary to consider the second respondent's notice of motion for judgment so that as a matter of form that notice of motion should be dismissed. The applicant has failed to make out any of his claims or obtain any of the relief he has sought and the usual order as to costs should follow. The applicant should pay the first and second respondents' costs of and incidental to the application, the application for interim relief and the costs of his notice of motion and the second respondent's notice of motion.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate: Dated: 29 September 2008 Counsel for the Applicant: The applicant appeared in person

Solicitor for the First Respondent: Sparke Helmore

Solicitor for the Second Respondent: Piper Alderman