Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2011] FCA 833 - FCA 2011 case summary — Zoe

[18]

Background 4 All the litigation instituted by Mr Singh and the subject of my consideration relates back to a Centrelink debt ("the original debt") raised against Mr Singh on 4 November 1999 and which resulted in the sum of $88,633 being compulsorily deducted from a judgment debt otherwise payable to Mr Singh. There have been two kinds of proceedings instituted by Mr Singh, some challenging the original debt and some contesting his bankruptcy. The two categories of litigation are linked. Mr Singh was declared bankrupt due to non-payment of legal costs incurred in litigation contesting the original debt. In the bankruptcy proceedings, Mr Singh has often raised issues directed to overturning the original debt. 5 The original debt was incurred in the following circumstances which were helpfully summarised by Weinberg J at [8]-[13] in Singh v Secretary, Department of Employment & Workplace Relations [2006] FCA 1381: 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.

[22]

'Vexatious' 14 In von Reisner v Commonwealth (2009) 177 FCR 531 at [27] the Full Court considered the meaning of 'vexatious'. Siopis, Cowdroy and Reeves JJ referred to and adopted the reasoning of Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491. In summary, a proceeding is to be regarded as vexatious where: (a) it is instituted with the intention of annoying or embarrassing the person against whom the proceeding is brought; or (b) it is brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which it gives rise; or (c) irrespective of the motive of the litigant, the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless. 15 As Roden J identified and as the criteria just outlined makes plain, litigation may be properly regarded as vexatious on either objective or subjective grounds. The third ground identified, that the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless, is to be considered purely on an objective basis: Attorney-General v Wentworth at 488-491; von Reisner at [28]; Jones v Skyring at 309-310. Ultimately, whether proceedings are vexatious is a question "for the court to decide on the facts; it is not decided by reference to whether the person against whom an order is sought was acting maliciously or in bad faith": Jones v Skyring at 310 (Toohey J). 16 In Soden v Kowalski, Stone J at [51] referred to Ashley J's helpful criterion for the practical application of the vexatious test in Attorney-General for the State of Victoria v Horvath, Senior [2001] VSC 269: It is one thing to know what the word "vexatious" means. It is another thing to apply s. 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s. 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files - documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance it should be so characterised. Fourth, and this is a more general proposition with respect to s. 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results. [Footnotes omitted; emphasis added by Stone J]

[23]

'Habitually and Persistently' 17 In Ramsey v Skyring, the expression 'habitually and persistently' was said to mean something more than simply 'frequently': at [55]. Sackville J referred to and followed Attorney General v Wentworth where Roden J at 492 defined 'habitually' and 'persistently' in the following terms: "Habitually" suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; "persistently" suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness. That approach was endorsed in Freeman at [24] (Sundberg and Kenny JJ). 18 That test was also followed by Keifel J in Jones Lang Lasalle (Qld) Pty Ltd v Dart [2005] FCA 1614 at [42] where her Honour added that determining whether proceedings have been brought habitually and persistently is a question "of fact, to be determined by reference to the circumstances of the case". 19 Stone J in Soden v Kowalski (at [56]) referred to Jones Lang Lasalle and (at [57]) referred to a decision of the New Zealand Court of Appeal (Brogden v Attorney-General [2001] NZAR 809). That decision assists an understanding of 'persistently', by emphasising that the proper focus to take involves an assessment of the nature of the behaviour of the respondent and the character of the proceedings instituted, rather than simply their number. At [21] the New Zealand Court of Appeal stated: What constitutes institution of such proceedings "persistently" will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted. A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed. The fact that one or more proceedings have been struck out does not inevitably lead to the conclusion that the litigation has been vexatious. But this may be a strong indication.

[25]

Res Judicata, Issue Estoppel and Anshun Estoppel 22 Res judicata, issue estoppel and Anshun estoppel constitute the legal basis upon which many of the application's which Mr Singh has previously made, and which I later consider, have been dismissed. Also, this aspect of the law is relevant to the determination of Mr Singh's current application because the Secretaries rely on it as part of the basis for its dismissal. For those reasons, it is necessary that I outline the relevant principles. 23 Res judicata, issue estoppel and Anshun estoppel comprise the three sub-categories of estoppel by judgment. Res judicata expresses the principle that where an action has been brought to a court of competent jurisdiction and a judgment has been entered in relation to that action, no other proceeding may be initiated or maintained on the basis of that same cause of action: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 (Gibbs CJ, Mason and Aickin JJ) citing with approval Jackson v Goldsmith (1950) 81 CLR 446 at 466. 24 Issue estoppel embodies the principle that a judgment of a court is a conclusive determination of both the ultimate finding in the case and of all the issues required for making the decision. Therefore, once a judgment is delivered, a party (or its privies) is barred from raising in later proceedings an issue of fact or law which has already been conclusively determined. Issue estoppel was also considered by Gibbs CJ, Mason and Aickin JJ in Anshun (at 597) citing with approval Dixon CJ's comment in Blair v Curran (1939) 62 CLR 464 at 531: A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. 25 Anshun estoppel expresses the principle that in bringing proceedings to court for determination in a particular cause of action it is expected that parties put forward their whole case. The High Court in Anshun established a broader form of estoppel by judgement which holds that parties will be barred (except under special circumstances) from raising issues or causes of action in litigation which they should have and could have raised in previous litigation between them: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

[26]

applying the principles to the FACTS 26 The Secretaries rely on the proceedings instituted by Mr Singh dealt with by the following reasons for judgment: A. Singh v Secretary, Department of Family and Community Services [2000] Unreported V912 of 2000 (Finklestein J); B. Singh v Secretary, Department of Family and Community Services [2001] FCA 1281 (Beaumont, Kiefel and Hely JJ); C. Singh v Secretary to the Department of Family and Community Services [2003] FMCA 566 (Hartnett FM); D. Singh v Secretary, Department of Family and Community Services (2004) 142 FCR 232 (Gray J); E. Singh v Secretary, Department of Family and Community Services (Centrelink) [2005] HCATrans 759 (Hayne and Callinan JJ); F. Singh v Secretary of Family and Community Services [2005] FCA 1625 (Gray J); G. Singh v Secretary, Department of Family and Community Services [2006] FCA 189 (Ryan J); H. Singh v Secretary, Department of Employment and Workplace Relations (2006) 235 ALR 297 (Weinberg J); I. Singh v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 174 (Dowsett, Siopis and Middleton JJ); J. Singh v Secretary, Department of Employment and Workplace Relations [2008] HCASL 224 (Gummow and Kiefel JJ); K. Singh v Secretary, Department of Employment and Workplace Relations [2008] FCA 1061 (Middleton J); L. Singh v Secretary, Department of Employment and Workplace Relations and Official Trustee in Bankruptcy [2008] FCA 1463 (Goldberg J); M. Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 (Spender, Lander and Flick JJ); N. Singh v Secretary, Department of Employment and Workplace Relations [2009] HCASL 194 (Gummow and Kiefel JJ). 27 Each of the proceedings in question was instituted either in this Court, the Federal Magistrates Court or in the High Court. All of the judgments listed related to 'proceedings' within the meaning of that word as utilised in O 21 r 1 of the Rules, other than that listed at G. For reasons that will later be apparent, the case listed above at G did not involve Mr Singh instituting a proceeding.

[27]

V912 of 2000 - appeal from a decision of the AAT dated 30 October 2000 28 The background of this proceeding was helpfully summarised by Weinberg J in Singh v Secretary, Department of Employment & Workplace Relations (2006) 235 ALR 297 at [14]-[17]: 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. 29 Mr Singh appealed the decision of the AAT to the Federal Court, but prior to the hearing of that appeal an agreement was made by the parties to settle the case. A minute of consent orders was filed by the parties which included an order dismissing the appeal. A short time later, Mr Singh changed his mind and sought to resile from the agreement made to resolve the proceeding: Singh v Secretary, Department of Family and Community Services, Unreported, V912 of 2000, Finkelstein J, 2 February 2001 at [3]-[4], [6]. Mr Singh was unsuccessful in his attempt to resile from the agreement and Finkelstein J made the consent orders, dismissing the appeal with costs. 30 As to whether this proceeding was vexatious, the only question that arises is whether the proceeding was 'so obviously untenable or manifestly groundless as to be utterly hopeless'? I am not satisfied that was the case in relation to this proceeding. Mr Singh failed to convince the Court that the consent he had given should be revoked. Accordingly, the proceeding was dismissed without consideration as to its merits. It has not been established that it had no merit and was utterly hopeless and thus vexatious.

[29]

MZ286 of 2003 - appeal from decision of the AAT 33 The background to this proceeding was also helpfully summarised by Weinberg J in (2006) 235 ALR 297 at [20]-[21] : 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. 34 By this proceeding, Mr Singh raised issues of construction of a number of provisions of the Social Security Act 1991 (Cth) ("the Social Security Act"). The nature of the construction arguments raised are to some extent set out in the reasons for judgment of the Federal Magistrate (Singh v Department of Family and Community Services [2003] FMCA 566) but are better elucidated in the reasons for judgment of the appeal from that decision, which I deal with next. It is not necessary that I should rehearse again the nature of the construction issues at play. Complex questions were raised relating to whether lump sum preclusion periods applied to Mr Singh's circumstances and whether, as a consequence, his liability to repay monies received during the lump sum preclusion period should have been reduced. On 5 December 2003, Hartnett FM dismissed the appeal with costs as her Honour could find no error of law in the decision of the AAT. 35 I am not satisfied that this proceeding was vexatious on the basis that it was 'so obviously untenable or manifestly groundless as to be utterly hopeless'. The reasons for judgment of Gray J on the appeal from the decision of the Federal Magistrate demonstrate that there was an arguable basis for Mr Singh's contentions.

[33]

VID 1121 of 2003 - second Notice of Motion to set aside decision VID 1211 of 2003 42 Not deterred, on 6 February 2006 Mr Singh sought once again to lodge a Notice of Motion seeking to set aside the orders of Gray J made on 23 December 2004. On 8 March 2006, Ryan J ordered that the Registrar not accept the Notice of Motion pursuant to O 46 r 7A of the Rules as to do so would facilitate an abuse of process: Singh v Secretary, Department of Family and Community Services [2006] FCA 189. 43 In his reasons for directing non-acceptance of process given on 8 March 2006, Ryan J relevantly stated at [5]-[6]: [5] Section 25(1AA) of the Federal Court of Australia Act 1976 (Cth) makes it clear that only one appeal lies to this court from an order of the Federal Magistrates Court whether that appeal is heard by a single Judge or a Full Court. The orders made on such an appeal attract the doctrine of res judicata so that a party to the appeal is precluded from raising again any issue which is taken to have been determined by that appeal. Moreover, the application of the principles laid down by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 precludes a party to an earlier action from later relying on any issue which would be expected to have been raised in the earlier action. It is no answer to these objections to contend that the proposed new proceedings raise questions of fact which were not agitated before Gray J. The proceedings in the Federal Magistrates Court in which Mr Singh appealed to Gray J were by way of appeal from a decision of the Administrative Appeals Tribunal, which appeal is confined to a question of law; see s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). [6] Moreover, the conclusion that Mr Singh has exhausted his remedies in respect of the issues raised by the proceedings in the Federal Magistrates Court and on appeal to Gray J is reinforced by the refusal of his application for special leave to appeal to the High Court. 44 Whilst there can be no doubt that if this Notice of Motion had been issued, it was doomed to failure, I am not able to conclude that these circumstances constitute the institution of a vexatious proceeding. The direction made by Ryan J precluded Mr Singh's attempt to file and have his Notice of Motion issued. In those circumstances it seems to me that there was no proceeding instituted. The circumstances are nevertheless of some relevance to the question of whether, Mr Singh's over all conduct should be regarded as habitual and persistent.

[34]

VID 843 of 2006 - appeal from decision of AAT (V2006/314) 45 On 31 October 2005, shortly after the judgment of Gray J last referred to and prior to the judgment of Ryan J just referred to, Mr Singh made another application to Centrelink requesting the recalculation of his original debt. The Centrelink officer declined the request. That decision was affirmed and on appeal the Social Security Appeals Tribunal ("SSAT") on 22 March 2006 declined to review the decision. Mr Singh then applied to review the decision of the SSAT before the AAT. The Secretaries applied to have that application dismissed as frivolous or vexatious and further applied for a direction from the AAT that Mr Singh not, without the leave of the AAT, make a further application relating to the original debt. The AAT determined that Mr Singh's application was frivolous and vexatious and dismissed it. It also directed that Mr Singh not, without leave of the AAT, make any application with respect to recovery of sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999: Singh and Secretary, Department of Employment and Workplace relations [2006] AATA 584 (3 July 2006) (Senior Member Handley). 46 In the proceedings before the AAT, Mr Singh asserted a right to bring the proceedings on the basis that there had been an alleged "conspiracy" and "fraud" committed on the part of Centrelink and also the Workers Compensation insurer and his former solicitors. 47 Mr Singh then appealed the AAT decision to the Federal Court. That appeal was dismissed by Weinberg J on 23 October 2006: Singh and Secretary, Department of Employment and Workplace Relations (2006) 235 ALR 297 at [38]-[56]. 48 Weinberg J determined that the AAT had not erred in dismissing Mr Singh's application. The judge proceeded on the assumption that there was substance in Mr Singh's contention of "fraud". However, his Honour determined that Mr Singh had been correctly prevented from raising that matter before the AAT because he ought to have raised it in 2002 and, as a result, Mr Singh was estopped from raising the matter on the basis of Anshun estoppel. 49 Mr Singh also challenged the AAT's order which required that he seek leave to institute a proceeeding. Whilst Weinberg J rejected Mr Singh's challenge, he allowed Mr Singh's appeal but only for the limited purpose of varying the AAT's direction so as to make it clear that the leave required of the AAT applied only to any further applications to the AAT which Mr Singh sought to bring. Weinberg J was not of the view that the direction made by the AAT was erroneous, but his Honour was of the view that out of an abundance of caution the language of the direction should be better expressed. I am satisfied, for the reasons given by Weinberg J, that there was no merit in Mr Singh's application. Given that the appeal was allowed in part, albeit on a limited basis, I am not satisfied that I should regard this proceeding as having been vexatious.

[37]

VID 1217 OF 2006 - Notice of Motion to set aside orders in VID 843 of 2006 56 On 10 June 2008, Mr Singh filed a Notice of Motion in the Federal Court seeking an order that the order of Weinberg J (referred to in paragraph [47] above) and the orders of the Full Court (referred to in paragraph [50] above) be set aside. On 9 February 2007, Sundberg J had made an order in matter VID 1217 of 2006 requiring Mr Singh to lodge $10,000 by way of security for costs. By his Notice of Motion, Mr Singh also sought that the sum ordered for security for costs be released. His application was dismissed by Middleton J on 11 July 2008: Singh v Secretary, Department of Employment and Workplace Relations [2008] FCA 1061. 57 The basis for Mr Singh's application is set out in the reasons for judgment of Middleton J. Mr Singh contended that the judgments of the Full Court and of Weinberg J should be set aside because they were mistaken and based upon "fraud" and further because of the "fraud" or the mistakes, the security lodged should be released to Mr Singh. It seems apparent from the reasons for judgment of Middleton J at [6], that the mistakes and the "fraud" that Mr Singh raised were the matters earlier raised by him and which had already been considered and dealt with by both Weinberg J and the Full Court. Middleton J determined that even if he had the power to do so, there was no basis before him for setting aside the decision of the Full Court or Weinberg J. The judge dismissed Mr Singh's application. 58 Again, this proceeding appears to have been nothing other than another attempt by Mr Singh to relitigate matters which were not competent to be raised again because they had already been determined and were res judicata. The application was always bound to fail including that aspect of it which sought the return of the security, given that the basis for that relief was dependant on Mr Singh's invalid attempt to relitigate. I am satisfied that the application was 'so obviously untenable or manifestly groundless as to be utterly hopeless' and that, as a consequence, it was vexatious.

[38]

VID 571 of 2008 - application for annulment of sequestration order 59 On the Petition of the Secretary, Department of Employment and Workplace Relations, Mr Singh was declared bankrupt on 28 February 2008 on the basis of non-payment of legal costs. He then applied to the Federal Court for the annulment of the sequestration order and, in addition, sought interim orders including that the orders made by Weinberg J on 23 October 2006 be set aside. Those applications were dismissed on 29 September 2008 by Goldberg J: Singh v Secretary, Department of Employment and Workplace Relations [2008] FCA 1463. 60 Mr Singh's application for the annulment of the sequestration order was based on s 153A and also s 153B of the Bankruptcy Act 1966 (Cth) ("the Bankruptcy Act"). As to Mr Singh's reliance upon s 153A, Goldberg J determined that the provision does not allow for an order to be made by the Court and depends upon the satisfaction of the Official Trustee. Goldberg J did not consider that there were any grounds for annulment for the purposes of s 153B of the Bankruptcy Act. No grounds warranting the Court's satisfaction had been identified. Mr Singh's argument, as the reasons for decision of Goldberg J at [31] reveal, was based on yet another attempt to reagitate the matters dealt with by Weinberg J on 23 October 2006 and the Full Court on 22 November 2007. The only other matter relied upon by Mr Singh, that he had paid the debt due, was rejected by Goldberg J on the evidence before him that there were other debts which were due and outstanding and further, that there was evidence from the Official Trustee that he was not satisfied that all of Mr Singh's debts had been paid. 61 Goldberg J also dismissed the applications for interim orders made by Mr Singh and also orders that the Workers Compensation insurer and Mr Singh's former solicitor be joined as parties to the proceeding. 62 It is helpful at this point to refer to the reasons for judgment of the Full Court which dealt with Mr Singh's appeal from the judgment of Goldberg J: Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59. At [36]-[39] of those reasons, the Full Court held that each of the interim orders sought by Mr Singh could not have been made. On that basis and on the basis of the matters relied on by Goldberg J in respect of the interim orders sought, I am satisfied that Mr Singh's claim for relief in this respect was 'so obviously untenable or manifestly groundless as to be utterly hopeless'. I am also satisfied that there was no basis for the joinder application and that it too was utterly hopeless. The joinder application was based on Mr Singh's complaint of "fraud". I am also satisfied that Mr Singh had no basis for seeking to set aside the sequestration order. It was neither open to him to agitate nor open to Goldberg J to review the judgments or orders which formed the subject of the bankruptcy notice. In this respect, all that Mr Singh was seeking to do was relitigate matters which he was barred from relitigating. That aspect of Mr Singh's claim was also utterly hopeless. I am further satisfied that, on the evidence before Goldberg J, Mr Singh's claim that he had no outstanding debts was also untenable and utterly hopeless. In those circumstances, I am satisfied that the proceeding was vexatious.

[41]

Habitually, Persistently and Without Reasonable Grounds 69 I am satisfied that Mr Singh has habitually instituted the proceedings which I have determined were vexatious. My analysis of the vexatious proceedings instituted by Mr Singh amply demonstrates that Mr Singh's response to a decision made adversely to him is to institute another proceeding "as a matter of course, or almost automatically": Attorney-General v Wentworth at 492. Even where he has exhausted all possible avenues of appeal, Mr Singh has demonstrated an unpreparedness to stop. He has on two occasions sought to contest decisions which had been affirmed at every available level of appeal by making applications to have those decisions set aside by a single judge. Mr Singh has continued to reagitate the same issues in new proceedings, despite the fact that in prior proceedings determinations have been made that he is barred by law from reagitating those issues. Mr Singh was not deterred by determinations to that effect. Nor does he seem to be deterred by a succession of cost orders made against him. 70 All of those matters also demonstrate Mr Singh's stubborn determination to continue to litigate irrespective of the difficulties which confront him. I am satisfied that Mr Singh has both habitually and persistently instituted vexatious proceedings in this Court and other Australian courts. 71 Whilst the history and pattern of litigation is more than sufficient to convince me about the habitual and persistent nature of Mr Singh's institution of legal proceedings, the following statement made to the Court by Mr Singh in this proceeding serves to confirm the habitual and persistent nature of Mr Singh's mindset in relation to litigation. Mr Singh addressed the Court at T-33 stating: MR SINGH: If you are regarding me today a vexatious litigant, I will come to the court tomorrow again. I will come to the court tomorrow again, against the decision of 4 November '99 on the same basis of the document. Understand? 72 I also need to be satisfied that each of the proceedings that I have determined were vexatious was brought 'without reasonable grounds'. I am so satisfied on the same grounds that have satisfied me that each of those proceedings were 'so obviously untenable or manifestly groundless as to be utterly hopeless'.

[43]

Discretion 75 O 21 r 1 provides that the Court 'may' make orders that a vexatious litigant neither continue nor institute any proceeding in this Court without leave of the Court, where the elements of the Rule are satisfied. There may be circumstances where, despite being satisfied of each of the elements of O 21 r 1, the Court will decline to make such an order. This is not such a case. 76 In the exercise of the discretion it is important to bear in mind that the making of orders that diminish a person's capacity to access justice through the courts is a decision which is never made lightly: Soden v Kowalski at [35]; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370 at [44]; Ramsey v Skyring at [51]; and Attorney General v Wentworth at 484. It is a decision which requires the careful balancing of a number of considerations. 77 The vexatious litigant sanction aims to strike a fair balance between the right of applicants to access justice (to bring valid disputes before a court for conclusive determination) and the countervailing right of respondents to finality of litigation and protection from further unmeritorious litigation. Another significant countervailing factor weighing in that balance is the need to safeguard scarce judicial resources so that other litigants before the Court are not unfairly prejudiced and court resources are not unnecessarily wasted. 78 The Court's overarching purpose as set out in s 37 M of the Federal Court Act 'is to facilitate the just resolution of disputes (a) according to law; and (b) as quickly, inexpensively and efficiently as possible.' Section 37N provides that parties are to act consistently with the overarching purpose. The just resolution of disputes requires considering the rights of both parties to the litigation: Soden v Kowalski at [200] (Stone J). Where serial litigants persistently bring vexatious claims before the Court, repeatedly targeting and harassing the same respondents, the administration of justice as well as the Court's overarching purpose is effectively subverted as vexatious litigants use "the process of the court as an instrument of injustice and oppression": Scott v Human Rights and Equal Opportunity Commission [2010] FCA 1323 at [226] (North J). The "efficiency" referred to in s 37M includes the efficient utilisation of the court's resources and the need to provide to other litigants before the Court timely access to justice: Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175 at [93]. 79 Ultimately, an order made under O 21 r 1 is not a complete denial of a right to access justice, but it is a limitation. A litigant required to obtain the leave of the Court to institute a proceeding, is not necessarily denied the right to make an application to the Court. An application will only be permitted with the leave of the Court. That is, the litigant will be required to satisfy a judge that a proper basis exists for the prospective application. In that manner, an order serves as a filter to ensure that prospective respondents are not harassed by proceedings without substance and that court time and resources are not wasted: Jones v Skyring at 312 (Toohey J); Ramsey v Skyring at [52] (Sackville J). 80 Experience with vexatious litigants also suggests strongly that not only is their continued capacity to litigate harmful to the persons that they sue, but that their conduct often involves significant harm to themselves and their families - both material harm and psychological harm. There has been a revival of interest by psychiatrists in vexatious litigants and in particular those who have been characterised as suffering from "querulous paranoia", "querulent paranoia" or "litigious paranoia". Prominent amongst psychiatrists who have considered this issue are forensic psychiatrists Professor Mullen and Dr Lester from the Victorian Institute of Forensic Mental Health. In their article, 'Vexatious litigants and Unusually Persistent Complainants and Petitioners: From Querulous Paranoia to Querulous Behaviour' (2006) 24 Behavioural Sciences and The Law 333, 334, they describe querulousness as: A pattern of behaviour involving the unusually persistent pursuit of a personal grievance in a manner seriously damaging to the individual's economic, social and personal interests, and disruptive to the functioning of the courts and/or other agencies attempting to resolve the claims. 81 Whilst litigants suffering from querulent paranoia are in need of assistance, it is highly unlikely that a court will ever be able to provide them with the kind of relief that they truly require. In my view, there is an urgent need for mechanisms to be established so that querulent litigants are diverted out of or away from the Court's system and into the provision of services which better meet their needs. 82 Those observations may be of some relevance to the needs of Mr Singh. However, they can have no bearing upon my decision to decline to exercise my discretion in favour of Mr Singh. Having balanced Mr Singh's right to access justice against the countervailing considerations which I have referred to, I am firmly of the view that there is no warrant for the Court to decline orders of the kind sought by the Secretaries.

[45]

The 2009 AAT Decision 85 The 2009 AAT decision is published as Re Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs & Anor (2009) 114 ALD 178. By that decision the AAT considered whether leave ought to be granted to Mr Singh to make three applications to the AAT. The proposed applications were as follows: (i) Two applications lodged by Mr Singh with the AAT on 2 June 2008. The respondent in the first of these applications was the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs. The respondents in the second of the applications were the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, and the Secretary, Department of Education, Employment and Workplace Relations. Aside from the named respondents, the two applications were in identical terms. Through them, Mr Singh sought review of four decisions: (1) The judgment made by the County Court of Victoria in the compensation claim by Mr Singh against MMI Workers Compensation (Victoria) Ltd. In that judgmenmt, the judge made a number of rulings with regard to Mr Singh's accident compensation entitlements: Singh-Jhikka v MMI Workers Compensation (Victoria) Ltd, Unreported, County Court of Victoria, No 970487, 20 October 1999. This is the judgment referred to at point 12 of [5] above. (2) A decision made on 4 November 1999 by a delegate of the Secretary of the Department of Family and Community Services, requiring MMI Workers Compensation (Victoria) Ltd to pay to Centrelink the amount of $88,633.34 out of monies it would otherwise have paid to Mr Singh, being the amount of social security payments received by Mr Singh and his wife Ms Kaur. This decision ("the original decision") relates to what I have described earlier as the original debt. It is further described at point 13 of [5] above. (3) A decision of the SSAT dated 13 May 2002, affirming the 2002 decision of the SSAT: see Singh v Secretary to the Department of Family and Community Services [2002] 72 ALD 471 at [1]. This decision is dealt with at point 21 of [33] above. (4) A decision of the SSAT dated 22 March 2006, wherein the SSAT declined to review the decision of an Authorised Review Officer ("ARO") dated 19 December 2005. The ARO determined that it was not within his power to review the original decision. (ii) The third application sought to review the original decision. While the words of the application were changed somewhat, the proposed application was effectively a restatement of the earlier two applications (in sub-paragraph (i) above). 86 At the hearing before the AAT, it was learnt that Mr Singh had a sequestration order made against him by a Registrar of the Federal Magistrates Court on 28 February 2008. The Senior Member refused to grant leave to make the applications because, firstly and as a result of his bankruptcy, Mr Singh was found to be incompetent to bring proceedings and secondly because he was attempting to relitigate matters already previously determined and thus his applications would be obviously untenable and utterly hopeless. The Senior Member stated at [25]-[27] of his decision: [25] Even if the applicant was permitted to bring these applications and even if he was discharged from bankruptcy and therefore having a legal standing to prosecute these appeals, I would, in any event, would [sic] not permit him to make the applications having regard to the decision made by me on 3 July 2006 and the Reasons for that Decision. [26] The applicant is, again, seeking to re-litigate matters which have relevantly been before the Tribunal on three occasions, a Federal Magistrate, five single Federal Court Judges, two Full Federal Courts and the High Court on two occasions. The above summary does not include the appearances before a single Judge, a Full Federal Court and the High Court in relation to the attempt to be relieved from bankruptcy. [27] I explained at some length in my decision of 3 July 2006 why I regarded that application to be frivolous and vexatious and why leave should not be granted to bring proceedings with respect to the recovery of Sickness Allowance, Disability Support Pension or Wife Pension paid between 20 October 1991 and 26 October 1999. The compensation charge which was imposed by the respondent arose between these dates and by reason of a previous finding that the applicant was a member of a couple. Any further application challenging the compensation charge would remain obviously untenable and utterly hopeless as I previously found (refer Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491) and the applicant is again attempting to use the court's processes to circumvent its decisions (refer Reid v Cameron (1966) QCA 37).

[46]

Grounds of Review 87 Mr Singh's application for an order of review to this Court commences with a description of the application under a heading, "Nature of the Application". The application is there described as an application under the ADJR Act which challenges the 2009 AAT decision and seeks "an order of review with respect to [the original decision]". The application contends that the original decision was induced or affected by fraud, as was the 2009 AAT decision. Under a heading, "Grounds of the Application", Mr Singh sets out his grounds. Mr Singh's grounds of review against the 2009 AAT decision can be summarised as follows: (i) The facts and law stated in the original decision, are "inconsistent and fraudulent with the County Court order". (ii) The Victorian Workcover Authority and Mr Singh's previous solicitor Mr Potter "knew the facts stated in the [original] decision of respondent dated 4 November 1999 were not true" and the Secretaries "deliberately provided the applicant with fraudulent misrepresentation of the facts of the County Court order" and fraudulently overcharged Mr Singh $44,185.27 (being the sum of the "wife pension"). (iii) On the basis of the inconsistent facts between the original decision and the County Court order, Mr Singh challenges both the original decision as well as the 2009 AAT decision on the basis that they were induced or affected by fraud. Reference is there made to s 5(g) of the ADJR Act. 88 Mr Singh's application then sets out the basis upon which he claims to be aggrieved by the 2009 AAT decision. In that part of his application, Mr Singh complains that he was fraudulently overcharged by the Secretaries in relation to the "wife pension" by a sum totalling $44,228.20. He also claims that the Secretaries conspired with the Victorian Workcover Authority, Allianz Australia Worker's Compensation (Victoria) Limited and Mr Singh's previous solicitor Mr Potter to overcharge him to recover the compensation debt. He further claims that the Secretaries misled the AAT in relation to the original decision. 89 Mr Singh's application then outlines a number of claims. The matters claimed include: that all Court orders for costs including the sequestration order made in his bankruptcy proceedings be set aside; that the Secretaries repay to him the over charged debt with interest; that the Secretaries pay him various sums with interest (these appear to relate to cost orders made against Mr Singh) together with $100,000 for the legal work done by Mr Singh and interest. He further claims that Allianz Australia and Mr Potter be joined as parties to the litigation given their part in the "conspiracy" and "fraud" so that they can be made to "face penalties". Additionally, Mr Singh makes a claim for each of the respondents to pay damages to him for "financial loss and the physical and mental torture from 1999 to date, for their part in fraud and conspiracy that has occurred and the repercussions that the Applicant has had and will be faced with in the future".

[47]

The Relevant Legal Principles 90 Section 5(1) of the ADJR Act relevantly provides that a person who is aggrieved by a decision to which the Act applies may apply to the Court for an order of review in respect of the decision on one or more of a number of specified grounds. Mr Singh's application refers to s 5(1)(g) and no other ground for review available under s 5(1). Section 591)(g) is in the following terms: (g) that the decision was induced or affected by fraud; 91 I was not referred to any case law on s 5(1)(g) of the ADJR Act and my own research reveals that this provision has not been the subject of any consideration relevant to the matters before me. However, the Migration Act 1958 (Cth) prior to 2001 did contain a provision that was then numbered s 476(1)(f). Section 476(1) provided for a review of a decision of the Immigration Review Tribunal or the Refugee Review Tribunal and relevantly, s 476(1)(f) identified a ground for review as "that the decision was induced or affected by fraud…" Those words appear to have been taken from s 5(1)(g) of the ADJR Act. They have been judicially considered in two reported cases, namely Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 and Jama v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 387. Each of those decisions were in turn relevantly considered by French J when a judge on this Court in Minister for Immigration v SZFDE (2006) 154 FCR 365 and seven members of the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. In SZFDE, the High Court overturned the judgment of a Full Court of this Court in which French J had delivered a dissenting judgment. 92 In Wati, Lindgren J considered the phrase "was induced or affected by fraud". His Honour held that the reference to fraud was not confined to that of the decision-maker or to a party or a party's representative and that the word "bears its plain meaning and so refers to the fraud of any person": at 112. The judge then considered the expression "induced or affected by fraud" and concluded that "these words signify that the decision must be shown to have been actually induced or affected by fraud": at 112. 93 The reasoning of Lindgren J in Wati was referred to with approval by the High Court in SZFDE at [24]-[27] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ). 94 Wati was a case in which the Immigration Review Tribunal had acted upon evidence by a third party which was alleged to be false and thus fraudulent. Lindgren J dismissed the application because he was not satisfied that fraud had been demonstrated. In Jama, Lehane J dealt with an application in which a protection visa had been refused. The husband of the applicant for the visa had falsely denied that he was married to the visa applicant. The Refugee Review Tribunal acted upon that false information. Its decision was set aside by Lehane J on the ground that it had been induced or affected by fraud. Lehane J adopted the reasoning of Lindgren J in Wati: at [20]-[21]. Her Honour considered that the reference by Lindgren J to "actual influence" indicated that "the Court must be satisfied that the fraud had a material effect in relation to the decision which the Tribunal reached": at [22]. 95 An error of law will be demonstrated by reference to s 5(1)(g) of the ADJR Act where the conduct of the decision-maker is improper and involves fraud on the part of the decision-maker. The provision is not confined to the fraud of the decision-maker but extends to fraud "on" the decision-maker. A fraud "on" an administrative tribunal is properly to be regarded, in law, as no decision at all: SZFDE at [50]-[52]. To demonstrate a fraud "on" a Tribunal, it needs to be demonstrated that the decision in question was actually induced or affected by the fraud in the sense that the fraud had a material effect on the ultimate decision which the Tribunal reached. Such satisfaction will be made on the balance of probabilities and with due regard to Briginshaw v Briginshaw principles: SZFDE at [25].

[48]

The Application of the Legal Principles to Mr Singh's Application 96 Mr Singh's application is convoluted and his submissions in support of his application suffered from the same difficulty. Doing the best I can to characterise the nature of Mr Singh's challenge, it seems that Mr Singh challenges the 2009 AAT decision refusing him leave to make applications to the AAT, on the basis that the decision to refuse leave was induced or affected by fraud. Mr Singh's challenge is not that the Senior Member who rejected his application for leave was himself involved in fraudulent conduct. Mr Singh contends, however, that the decision of the Senior Member was affected by fraud because the decisions and conduct which Mr Singh's proposed applications before the AAT sought to review were fraudulent. In substance then, Mr Singh alleges that the 2009 AAT decision is induced or affected by fraud because it is tainted by fraudulent conduct relating to the original decision and the other related matters to which Mr Singh's grounds of application refer. 97 In those circumstances, for Mr Singh to succeed he would need to demonstrate to the requisite degree of satisfaction that the 2009 AAT decision was induced or affected by fraud in the sense that there was a fraud "on" the AAT perpetuated by another person. Mr Singh has failed to suggest, let alone substantiate, any such thing. What he in essence points to are allegations of fraud perpetrated upon him, rather than allegations of fraud perpetrated on the AAT. 98 As the reasons for decision of the AAT demonstrate, the AAT was well aware of the various allegations of fraud made by Mr Singh and the long history of litigation in relation to those allegations involving both the AAT and the courts. The decision of the AAT was not in any respect "induced or affected by fraud". The AAT refused to grant Mr Singh leave to make applications before the AAT for two reasons. Firstly, the AAT was of the view that Mr Singh was not competent to bring proceedings in the AAT because he was an undischarged bankrupt and precluded from doing so by the Bankruptcy Act. Secondly, the AAT determined that, even if Mr Singh was competent to bring the applications he sought to bring, leave ought to be declined because those applications lacked any substance. In that respect, the AAT was satisfied that the applications which Mr Singh sought to bring were seeking to relitigate matters which had already been conclusively determined before the AAT, the Federal Magistrates Court, this Court and the High Court. In support of that conclusion, the AAT relied on its prior decision of 3 July 2006 in which it determined that any further application by Mr Singh challenging the original decision would be "obviously untenable and utterly hopeless" and an attempt to "use the court's processes to circumvent its decisions": 2009 AAT decision at [27]. 99 There is nothing in the reasons for decision of the AAT which suggests that its decision was induced or affected by fraud. Nor has Mr Singh suggested, let alone substantiated, any basis upon which I could draw such an inference. 100 Even if Mr Singh is entitled to rely upon a fraud perpetrated on him (and not on the AAT) as a basis for contending that the decision of the AAT was induced or affected by fraud, I would nevertheless dismiss the application. Those claims have already been litigated and are res judicata, or alternatively are barred from further consideration by Anshun estoppel. Further, and in any event, there is no evidence before me to substantiate those claims. 101 Additionally, the relief sought by Mr Singh is not relief that the Court has a capacity to grant on an application for an order of review. None of the relief sought by Mr Singh falls within the relief available pursuant to s 16(1) of the ADJR Act. For the sake of completeness I should add, in particular, that the Court has no power under that provision to impose penalties and Mr Singh's application to have joined as parties to the proceeding Allianz Australia and Mr Potter, for that purpose, is without substance and is declined. 102 Mr Singh's application must be dismissed. 103 As I have already said, I have also come to the view (for the purpose of the Secretaries' Application) that by his application, Mr Singh has instituted a vexatious proceeding. Relying on my reasons for dismissing Mr Singh's application, I am of the firm view that Mr Singh's application is 'so obviously untenable or manifestly groundless as to be utterly hopeless'.

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