FEDERAL COURT OF AUSTRALIA

Singh v Secretary, Department of Employment & Workplace Relations [2007] FCAFC 174

ADMINISTRATIVE LAW – review of decisions of Social Security Appeals Tribunal and Administrative Appeals Tribunal – finding by Administrative Appeals Tribunal that appellant’s application before it was frivolous and vexatious – allegation of fraud on part of respondent – preclusion of appellant from re-litigating matters under Anshun principle

Administrative Appeals Tribunal Act 1975 (Cth), s 42B(1)

Social Security Act 1991 (Cth), ss 17, 1165

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 followed

Singh v Secretary, Department of Employment and Workplace Relations [2006] FCA 1381 affirmed

Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 approved

MOHINDER SINGH v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

VID 1217 OF 2006

DOWSETT, SIOPIS AND MIDDLETON JJ

22 NOVEMBER 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

DOWSETT J:

1                     I have had the benefit of reading the reasons for judgment prepared by Siopis and Middleton JJ and am in substantial agreement with those reasons and with the proposed orders.  However I wish to make some further comments concerning the operation of s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) and the approach taken by the Administrative Appeals Tribunal (the “Tribunal”) in applying that section in this case. 

2                     Section 42B provides:

‘(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.’

3                     The section establishes two different procedures.  Paragraph (1)(a) provides for the dismissal of an existing application which is frivolous or vexatious.  Paragraph (1)(b) provides a mechanism for preventing further frivolous or vexatious applications.  An order may be made under either paragraph only if the Tribunal is satisfied that an existing application is frivolous or vexatious.  If that condition is satisfied, the Tribunal may order, pursuant to para (1)(a), that it be dismissed.  An order may then be made pursuant to para (1)(b) if:

   

     

·                    the Tribunal considers it appropriate; and

     

·                    a party applies for such an order.

   

 

4                     For reasons which appear in the reasons of Weinberg J and those of Siopis and Middleton JJ, a party may not seek review of a decision on a ground which has been previously ventilated and determined as between the relevant parties.  A party may also be prevented from seeking review upon a ground which could, and should, have been raised in earlier proceedings.

5                     In the present case the relevant decision for review by the Tribunal was that of the Social Security Appeals Tribunal (the “SSAT”) dated 22 March 2006.  However, as appears from the reasons of Siopis and Middleton JJ, that decision was only the latest incident in a long line of complaints, applications for review and litigation initiated and prosecuted by Mr Singh.  In considering the motion to dismiss Mr Singh’s application that history was relevant to the extent that it demonstrated that he was seeking to re-visit issues which had previously been resolved or which he ought previously to have raised.  The history may also have been relevant if it demonstrated bad faith or improper purpose.  However it did not relieve the Tribunal of its obligation to determine whether his application was, itself, frivolous or vexatious.  That process necessarily involved a decision as to whether Mr Singh could properly seek review on the specified grounds.  The history was of more importance in considering whether an order pursuant to para 42B(1)(b) should be made. 

6                     SSAT recognized that Mr Singh sought to raise grounds which had not previously been considered.  See paras 36 and 37 of its reasons.  Those grounds were:

   

     

·                    alleged conspiracy and fraud; and

     

·                    the provision of incorrect information about the character of the compensation payments to Mr Singh.  

   

 

SSAT considered that there was no satisfactory evidence concerning these matters and that they were, in any event, matters which ought previously to have been raised.  Those conclusions provided a proper basis for dismissing the application.  The Tribunal ought to have taken the same approach.  Although para 30 of its reasons may suggest that it recognized that Mr Singh was seeking to ventilate complaints which had not previously been addressed, it is not clear that it did so.  Although it concluded that the complaints were without legal basis, the Tribunal did not give any reasons for that conclusion.  The Tribunal’s reasons (particularly at para 29) may indicate that the application was dismissed simply because Mr Singh had made earlier applications for review.  That would not be a proper basis for dismissing the application if the relevant grounds were capable of justifying review, had not been previously ventilated, and were not such that they should previously have been raised.

7                     Weinberg J recognized this difficulty.  At [38]-[39] of his reasons, his Honour said:

‘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 summarized 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.’

8                     Weinberg J did not refer to the alternative ground of factual error raised before SSAT.  The present notice of appeal seems only to raise conspiracy, fraud and lies.  It may be that at first instance, Mr Singh did not rely on the separate ground of factual error.

9                     Perhaps Weinberg J was unduly charitable in concluding that the Tribunal had dealt with the “new” grounds, albeit in an unsatisfactory way.  An alternative view may have been that it had failed to deal with them at all and simply disposed of the proceedings on the basis that there was a long history of litigation between the parties.  Even if it did so, his Honour correctly concluded that the “new” grounds must fail because they should have been raised at an earlier stage.  In those circumstances any failure by the Tribunal to consider their viability and availability would not lead to its decision being set aside.

10                  The appeal must be dismissed with costs.

Associate:

Dated:         20 November 2007

REASONS FOR JUDGMENT

SIOPIS AND MIDDLETON JJ:

THE APPEAL

11                  This is an appeal by Mohinder Singh from a decision handed down on 23 October 2006 by Weinberg J (Singh v Secretary, Department of Employment and Workplace Relations [2006] FCA 1381). 

BACKGROUND

12                  The background to the proceedings before the learned trial judge was complex.  His Honour set out the relevant facts in his judgment at first instance and we do not, therefore, propose to recount the background in its entirety here.  We will, however, briefly set out certain of the more recent events, along with events which are relevant in light of Mr Singh’s submissions before us.

13                  On 2 January 1991, Mr Singh suffered a work-related injury.  At various times during the following years, Mr Singh received compensation payments from an insurer (pursuant to the Accident Compensation Act 1985 (Vic)), along with social security payments including sickness allowance, disability support pension and a wife pension paid to his wife, Ms Amarjit Kaur.  Following a decision of the County Court on 20 October 1999 which found that the insurer was liable to pay arrears of weekly compensation from 1 September 1992 to 20 October 1999, Centrelink advised the insurer on 4 November 1999 that it was obliged to pay to Centrelink $88,633.34 in respect of social security payments received by Mr Singh and Ms Kaur.  The insurer paid this money to Centrelink out of monies it otherwise would have paid to Mr Singh.

14                  After a series of decisions related to Centrelink’s decision of 4 November 1999, including a failed appeal to the Full Federal Court, Mr Singh sought a further review by Centrelink of its decision to recover the compensation debt of $88,633.34.  Centrelink, on 22 January 2002, informed Mr Singh that it had reviewed his case and decided not to change its decision.  Mr Singh then requested that the matter be referred to an authorised review officer (‘ARO’), who informed Mr Singh on 4 February 2002 that the ARO had no power to review the matter as it had already been reviewed by the Social Security Appeals Tribunal (‘SSAT’) and Administrative Appeals Tribunal (‘the Tribunal’).  Mr Singh then lodged a further application for review of the ARO’s decision with the SSAT on 19 February 2002.  On 28 February 2002, the ARO affirmed Centrelink’s decision to impose the compensation debt of $88,633.34, notwithstanding its notification of 4 February 2002.

15                  On 13 May 2002 the SSAT decided to affirm the decision of 4 November 1999, doing so in the following terms:

Decision under Review

A decision made by a Centrelink officer on 4 November 1999 to recover a compensation debt of $88,633.34 from MMI Workers Compensation, being the sickness allowance, disability support pension and wife pension paid to Mr Singh and his partner, Ms Amarjit Kaur, from 28 October 1991 to 26 October 1999.

Decision of the Tribunal

On 13 May 2002 the Tribunal decided to affirm the decision under review. This means that the appeal is unsuccessful.

16                  Whether the decision under review and the decision of the SSAT was in respect of the ARO’s decision of 4 February 2002 or 28 February 2002, the SSAT effectively dealt with the central issue of Centrelink’s decision of 4 November 1999.

17                  Various appeals by Mr Singh then ensued between 2002 and 2006.

18                  The line of decisions giving rise to the current appeal is as follows.  On 4 January 2006, Mr Singh lodged an appeal with the SSAT to review the decision of a Centrelink ARO of 19 December 2005, that the ARO had no jurisdiction to review the Centrelink decision made on 4 November 1999 to recover the sum of $88,633.34 from the insurer.  On 22 March 2006, the SSAT declined to review that decision of the ARO.

19                  Mr Singh then brought an application in the Tribunal on 20 April 2006 to review the SSAT’s decision of 22 March 2006.  The respondent applied to have the application dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) as frivolous and vexatious.  On 3 July 2006, the Tribunal decided that:

1.         [Mr Singh’s] application [to review the SSAT’s decision] is frivolous and vexatious and shall be dismissed.

2.         [Mr Singh] must not without leave of the Tribunal 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.

20                  Mr Singh then appealed the Tribunal’s decision to a single judge of this Court pursuant to s 44 of the AAT Act.  By s 44, the appeal was limited to questions of law.  The learned trial judge allowed the appeal for the limited purpose only of varying the Tribunal’s second direction, so that it reads:

[Mr Singh] 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.

21                  The appeal before the learned trial judge was otherwise dismissed with costs.  Mr Singh then appealed to the Full Court of the Federal Court by notice of appeal dated 2 November 2006.

22                  The only issue before us is whether the learned trial judge made an error in upholding the decision of the Tribunal.  The learned trial judge found no substance in Mr Singh’s contention that the Tribunal ought not to have invoked the powers conferred under ss 42B(1)(a) and (b).  Those powers, based upon a satisfaction that Mr Singh’s application was frivolous and vexatious, were essentially invoked because the Tribunal found that the allegations made by Mr Singh could not be justified upon any legal basis and had the effect, and the purpose, of “annoying and irritating”, and further and additionally because the “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”.  The Tribunal concluded that his application was “obviously untenable” and was “utterly hopeless”.

SUBMISSIONS

23                  Mr Singh’s notice of appeal states that he appeals the whole of the decision of the learned trial judge given on 23 October 2006.  Mr Singh’s arguments may be summarised as set out below.

24                  First, Mr Singh referred to a decision of the SSAT given on 13 May 2002, following its review of the decision made by the Centrelink ARO on 28 February 2002 concerning the calculation of Mr Singh’s benefits.  Mr Singh submitted that the SSAT should have instead reviewed the ARO’s decision of 4 February 2002, that decision being that he or she had no jurisdiction to review Mr Singh’s case in light of the fact that it had already been reviewed at levels higher than that of the ARO.  Mr Singh argued, in his written submissions (at [54]), that the SSAT’s decision of 13 May 2002 is:

contrary to law because the decision of the ARO dated 4 February 2002 remained undecided in the previous proceedings between the original decision dated 4 November 1999 and the SSAT decision dated 13 May 2002. Therefore, the respondent’s original decision dated 4 November 1999 never lawfully became subject to the determination of the tribunals and courts in the previous proceedings.

25                  In other words, Mr Singh submitted, the Tribunal made an error of law in affirming the decision of the SSAT dated 13 May 2002 because the decision of the Tribunal dated 17 December 2002 did not affirm the ARO’s original decision of 4 February 2002 of ‘no jurisdiction’, and subsequently that decision of 4 February 2002 was left undecided by the SSAT and onward throughout the proceedings.  Therefore, it is said, the respondent cannot now argue that the original decision had been fully reviewed at each appropriate level.  This is an argument that does not appear to have been raised before the learned trial judge or the Tribunal, or in any earlier proceedings.

26                  Mr Singh’s second argument was one he had raised before the SSAT at a hearing on 4 April 2002 (which hearing formed part of a separate tranche of proceedings brought by Mr Singh), and concerned the application of s 17 and s 1165 of the Social Security Act 1991 (Cth) to a compensation payment of $80,000. Mr Singh’s written submissions in this respect were detailed, and it will suffice for the purposes of this judgment to say that they were of the same nature as those which he has made in previous proceedings.

27                  Mr Singh’s third argument was that the insurer (which had granted indemnity following Mr Singh’s work injury in 1991) and the respondent conspired to fraudulently overcharge Mr Singh a sum equal to the wife pension, and that the respondent lied to the Tribunal on 9 October 2002 so that the Tribunal was misled and the decision was obtained by fraud. As a result, he argued, the ensuing line of decisions of various tribunals and courts was invalid.

28                  The respondent’s brief written submissions stated in essence that this appeal should fail on either or both of two grounds.  First, the respondent argued, the judgment of the learned trial judge at first instance is free from error.  Secondly, it was submitted, Mr Singh is seeking to raise in these proceedings an issue which has previously been determined against him by the Tribunal, the Federal Magistrates Court, the Federal Court and the High Court, namely whether Mr Singh may retain the benefit of the sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999, a period for which he later received compensation payments under s 93 of the Accident Compensation Act 1985 (Vic).  In other words, the respondent argued, this appeal is an attempt to claim entitlement to both benefits during the same period, which attempt has been rebutted on many occasions in various tribunals and courts.

CONCLUSIONS

29                  To succeed Mr Singh must demonstrate an error of law in the decision of the learned trial judge.  It was not suggested by Mr Singh that the Tribunal and the learned trial judge did not adopt the correct legal principles in determining applications under ss 42B(1)(a) and (b).  Adopting the legal principles it did, the Tribunal was entitled to find, as a fact, that Mr Singh’s application was vexatious because it had the purpose of annoying and irritating.  On this basis alone the Tribunal was entitled to dismiss the application under s 42B(1)(a), and in view of its other conclusions which were open to it, was entitled to make an order under s 42B(1)(b).  The appeal could be refused on this basis as no error of law can be demonstrated in the decision of the Tribunal, or in that of the learned trial judge.

30                  However, in addition, as the learned trial judge indicated, the application of the principle enunciated in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 would preclude Mr Singh from seeking to re-litigate the matters sought to be agitated through this appeal.

31                  The learned trial judge addressed the issue of the application of the Anshun principle to these proceedings at [41] to [43].  The need to address that principle arose before his Honour because Mr Singh raised his third argument referred to above relating to fraud, which had not been raised in previous proceedings, and thus did not come within the category of claims that had actually been litigated previously.  The Anshun principle, as espoused by the High Court in the Anshun decision itself, is as follows:

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.

32                  The Anshun principle can be applied to proceedings in the nature of judicial review of administrative action, insofar as it would avoid an abuse of process: Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242, at [34].

33                  Since 4 November 1999, the various tranches of applications, reviews, proceedings and appeals which have been instituted by Mr Singh, although they deal with various points of law and fact, including his relationship with his former wife, Ms Kaur, are all concerned ultimately with the same question: whether Mr Singh is entitled to $88,633.34 worth of social security payments which, following a decision by the County Court on 20 October 1999 and a subsequent decision by Centrelink, was repaid by the insurer to Centrelink.  The majority of these applications, reviews, proceedings and appeals have been unsuccessful, with the Tribunal declaring Mr Singh’s application for review of the SSAT’s decision of 22 March 2006 to be frivolous and vexatious and ordering that he not make any further applications in respect of the same subject matter without leave of the Tribunal.

34                  Mr Singh’s submissions regarding fraud are not only without any evident substantiation, but come too late. The ‘fraud’ could have been raised in 2002.  It was due to oversight that he did not raise the issue in 2002, as Mr Singh did not read the SSAT’s reasons for decision given on 13 May 2002 asserting that he did not advise Centrelink of his periodic compensation payments, which assertion forms the basis of his allegations of fraud.  Had he read them earlier, Mr Singh could, and should, have alleged fraud at the Tribunal hearing on 9 October 2002 concerning the application of s 17  and s 1165 of the Social Security Act  1991 (Cth) to a compensation payment of $80,000.

35                  As the learned trial judge correctly observed (at [42]):

… 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 though “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.

36                  Accordingly, Mr Singh was barred, under the Anshun principle, from bringing new proceedings agitating this issue.  On this basis, no error of law can be demonstrated in the decision of the learned trial judge.

37                  We now turn to Mr Singh’s other two arguments - first, concerning the unreviewed decision of 4 February 2002 and, second, in relation to the interpretation of s 17 and s 1165 of the Social Security Act 1991 (Cth).

38                  The first argument should, under the Anshun principle, have been made as part of earlier proceedings, but has only now been raised before us by the appellant.  In any event, the later decision of the ARO of 28 February 2002 effectively made irrelevant the earlier decision of 4 February 2002.  The decision of the SSAT on 13 May 2002 effectively dealt with both decisions of the ARO.  Further, it cannot now be contended that the Tribunal fell into error in making the orders under s 42B of the AAT Act, which were based upon the attempt by Mr Singh to re-agitate matters already decided to have no legal validity.  Whether the decision of 4 February 2002 or 28 February 2002 be the operative decision requiring appeal makes no difference.  The issues dealt with in earlier proceedings were those that were again sought by Mr Singh to be dealt with by the Tribunal, and it was upon that basis that the Tribunal made orders under s 42B of the AAT Act.  We see no merit in this argument of Mr Singh.

39                  As to the second argument, as we have indicated, the submissions before us were of the same nature of the submissions made in earlier proceedings.  To the extent that there are any variations, there is nothing that could not have been raised in earlier proceedings, and they should not be allowed to be agitated again.

40                  Therefore, the Tribunal was entitled to conclude that Mr Singh had exhausted his appeal mechanisms, and to make the orders under s 42B, as the learned trial judge found.

41                  Accordingly, we do not find that there is any error in the learned trial judge’s reasons.  His Honour, in our view, was right to conclude that no error of law was made by the Tribunal in its decision of 3 July 2006.

42                  Since the case was heard on 24 May 2007, Mr Singh (without leave) sought to place before the Court a further written submission dated 23 October 2007.  In our view, as no leave was sought to file such a written submission, it cannot be relied upon for the purposes of this appeal.  In any event, the written submission raised no new grounds or material, and was more in the nature of a clarification of issues raised by Mr Singh, which have been considered in the above reasons.

43                  Accordingly, the appeal should be dismissed with costs.

Associate:

Dated:         20 November 2007