Federal Court of Australia

Kumar v Secretary, Department of Social Services [2022] FCAFC 95

ORDERS

THE COURT ORDERS THAT:

1.    The appeals be dismissed.

2.    The appellant pay the first respondent’s costs of the appeals.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    On 22 October 2021, Mr Kumar’s appeal from a decision of the Administrative Appeals Tribunal (2021 Decision) affirming a decision of a delegate of the first respondent, the Secretary to the Department of Social Services, to reject a claim made by him on 25 January 2016 for the Disability Support Pension (2016 Claim), together with his concurrent application for judicial review of that decision, was dismissed by a judge of the Court. His appeal had been brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and his application was made pursuant to s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

2    Mr Kumar appeals from the judgment of the primary judge (published as Kumar v Secretary, Department of Social Services [2021] FCA 1662 (Reasons)) by way of two appeals. Proceeding NSD 1168/2021 (appeal 1168) is against the decision to dismiss the appeal under the AAT Act, and proceeding NSD 1169/2021 (appeal 1169) is against the decision to dismiss the judicial review application.

3    The origin of Mr Kumar’s 2016 Claim was his involvement in a motor vehicle accident, whilst working as a taxi driver, in January 2001. He sustained an injury to his right thumb and soft tissue injuries to his lower back and both knees. About a decade later, while still working as a taxi driver, he sustained an injury to his back.

4    In 2013, Mr Kumar had made an earlier claim for the Disability Support Pension (2013 Claim). That claim was rejected by a delegate and his ultimate appeal to the Federal Court, dismissing an appeal from the Tribunal’s decision in July 2014 to affirm that decision (2014 Decision), was dismissed (Kumar v Secretary, Department of Social Services [2017] FCA 158 per Reeves J).

5    Before the Tribunal in 2014, it was common ground that Mr Kumar met the age, residency and impairment requirements stipulated in s 94(1) of the Social Security Act 1991 (Cth) (Kumar at [10]). That section provides:

Qualification for disability support pension

(1)    A person is qualified for disability support pension if:

(a)    the person has a physical, intellectual or psychiatric impairment; and

(b)    the person's impairment is of 20 points or more under the Impairment Tables; and

(c)    one of the following applies:

(i)    the person has a continuing inability to work;

(ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

(d)    the person has turned 16; and

(da)    in a case where the following apply:

(i)    the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;

(ii)    the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person's locally accessible labour market;

(iii)    if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;

the person meets any participation requirements that apply to the person under section 94A; and

(e)    the person either:

(i)    is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)    has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)    is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)    is not an Australian resident; and

(B)    is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident; and

(ea)    one of the following applies:

(i)    the person is an Australian resident;

(ia)    the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);

(ii)    the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

Note 1:    For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2:    For Impairment Tables see subsection 23(1) and sections 26 and 27.

6    It was also common ground before the Tribunal in 2014 that Mr Kumar did not meet the requirement in s 94(1)(c)(i) of the Social Security Act being a continuing inability to work (Kumar at [13]-[14]). Section 94(2) provides:

(2)    A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(aa)    in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and

(a)    in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

(b)    in all cases—either:

(i)    the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)    if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Note: For work see subsection (5).

7    Mr Kumar, who has at all times been self-represented, has appealed from the dismissal of his appeal made pursuant to the AAT Act and the dismissal of his application for judicial review made pursuant to the ADJR Act, relying on the same grounds as were raised before the primary judge. To the extent that Mr Kumar submitted (by ground 6 in appeal 1168) that the decision of the Full Court in Director-General of Social Services v Chaney [1980] FCA 87; 31 ALR 571; 47 FLR 80 was wrongly decided, it is unnecessary to deal with that submission in any detail. Chaney concluded that an appeal under s 44 of the AAT Act may only be brought against the Tribunal’s final decision in a proceeding. The 2021 Decision was final. There is no issue in the proceeding in that regard.

8    No objection was taken to Mr Kumar’s affidavit of 16 May 2022 being read on the appeal. That affidavit annexed two documents, including the transcript of the proceedings before the primary judge, which had been omitted from the appeal book.

9    Notice of a Constitutional matter under s 78B of the Judiciary Act 1903 (Cth) in respect of the issues Mr Kumar raises in respect of grounds four and five of his notice of appeal in the 1168 appeal was served on the Commonwealth and State Attorneys-General on 6 April 2022. The Attorneys-General for the Commonwealth, New South Wales, Victoria, Queensland, South Australia and Western Australia have advised that they do not intend to intervene in the matters under appeal. The Court is otherwise satisfied that a reasonable period of time has elapsed since the giving of the notice for consideration by any other Attorney-General.

10    Both Mr Kumar and counsel for the Secretary relied on their substantial written submissions. Mr Kumar made brief supplementary oral submissions to emphasise his primary arguments.

11    Mr Kumar’s grounds of appeal are considered below primarily in relation to the notice of appeal in appeal 1169, with cross-references to the corresponding grounds in appeal 1168.

Ground 1 (and grounds 1 and 2 in appeal 1168)

12    By ground 1 of his notice of appeal, Mr Kumar contended that the primary judge erred in not finding or declaring that he was denied natural justice by the 2021 Decision and a properly conducted trial could not have produced a different result. Although the particulars to this ground do not for the most part say anything about natural justice, they are considered in the following paragraphs.

13    First, in the paragraphs (a) to (e) of ground 1 (and ground 1 in appeal 1168), Mr Kumar contended that he satisfied all the eligibility requirements for the disability support pension and that the primary judge erred in holding that he was not so eligible, or that he was not so entitled under s 12(1) of the Social Security (Administration) Act 1999 (Cth) (Administration Act).

14    Mr Kumar submitted that the primary judge misconstrued the eligibility criteria prescribed in s 94(1) of the Social Security Act by holding that each of the criteria is a “discrete eligibility subject, upon the cumulative satisfaction of which there exists qualification for disability support pension” (Reasons at [16]). Mr Kumar submitted further that the primary judge erred in holding that one can “meet the qualifying criterion either on the start day or on a particular day within that 13-week period” (Reasons at [25]). By cl 3 of Part 2 of Schedule 2 to the Administration Act, the “start day” for payment to a person who is qualified for a social security payment is the day on which the claim is made. If a person is, however, not qualified for such a payment on the day on which the claim is made, but subsequently becomes qualified within a period of 13 weeks thereafter, the claim is taken to be made on the first day on which the person becomes so qualified: Administration Act Schedule 2, Part 2, cl 4(1).

15    Although ss 12, 13 and 15 of the Administration Act contain provisions relevant to the “start day” in certain circumstances, none is relevant to Mr Kumar’s circumstances. At the time of his 2016 Claim, he was neither in receipt of another income support payment whilst qualified for disability support pension, nor in a class of persons determined in an instrument under s 14A, nor was he otherwise qualified for a social security claim after having made an incorrect claim.

16    Mr Kumar’s challenge to the primary judge’s specific findings above appears to stem from a misunderstanding on Mr Kumar’s part as to the reference to the period of 13 weeks in the reasons of the primary judge. Contrary to Mr Kumar’s written submissions, the primary judge did not find that Mr Kumar was claiming disability support pension for only 13 weeks. It is apparent from his Honour’s reasoning that he well understood that Mr Kumar claimed to be entitled to disability support pension for an ongoing period from the time of his 2013 Claim.

17    There was no error in the primary judge’s interpretation of the requirement for cumulative satisfaction of the criteria in s 94(1) of the Social Security Act nor as to the relevant time-period within which the criteria were to be satisfied.

18    Mr Kumar submitted further that the Tribunal proceeded on the erroneous assumption that the level of his impairment had been determined “in general” and not by reference to his “work-related” impairment and that the primary judge ought not to have perpetuated that error. He pointed to the Impairment Tables’ title, Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Mr Kumar’s emphasis) in support of this submission (Determination 2011). Determination 2011 is made pursuant to s 26 of the Social Security Act. Section 5(2) of Determination 2011 provides that the Impairment Tables are only to be applied to assess whether a person satisfies the qualification in s 94(1)(b) of the Social Security Act.

19    As has already been discussed, the primary judge’s construction of s 94(1) must be accepted. Consequently, Mr Kumar was required to establish, inter alia, that pursuant to s 94(1)(b) his impairment was of 20 points or more under the Impairment Tables and that pursuant to s 94(1)(c) he has a continuing inability to work. As the primary judge observed, these are discrete, but cumulative, criteria. The Impairment Tables assess loss of a person’s functional ability which is required to be assessed “on the basis of what the person can, or could do, not on the basis of what the person chooses to do”: Determination 2011, s 6(1). Contrary to Mr Kumar’s submission, the definition of “work” in s 94(5), being work “that is for at least 15 hours per week”, does not inform the functional assessment required by the Impairment Tables. There was no challenge to the conclusions drawn by an occupational medicine specialist, Dr Keith Adam, in his Report dated 28 June 2018, and accepted by the Tribunal, that, assessed against the Impairment Tables, Mr Kumar’s impairment was zero. The primary judge was correct to hold that it was not for the Court to reach its own conclusions on matters of fact (Reasons at [28]).

20    That being so, the question of Mr Kumar’s continuing ability to work was irrelevant to the ultimate conclusion of the Tribunal and unnecessary for the primary judge to consider. Having found not merely that Mr Kumar did not have a severe impairment (being one of 20 points or more under the Impairment Tables: s 94(3B)) but that he had no impairment at all meant that consideration of s 94(1)(c) was never triggered.

21    Secondly, at paragraph (f) of ground 1 in appeal 1169 and ground 2 in appeal 1168, Mr Kumar contended that he was denied natural justice by the Tribunal. The gravamen of Mr Kumar’s complaint appears to stem from the apparent inconsistency between the concession made by the Secretary in 2014 and the finding by the Tribunal in the 2014 Decision that Mr Kumar met the impairment requirement of s 94(1)(b), and the finding by the Tribunal in the 2021 Decision, contrary to the Secretary’s previous concession, that he did not do so. Such an inconsistency is not apt to be described as a failure to afford natural justice. Whilst it is perhaps understandable that a person in the position of Mr Kumar would perceive such a change in position by the Secretary to be unfair, close attention to the relevant time periods and the evidence relating to those different time periods discloses no unfairness and certainly nothing that could be said to constitute a denial of natural justice.

22    As the primary judge observed, the Tribunal’s role was to conduct a de novo merits review of the rejection of Mr Kumar’s 2016 Claim (Reasons at [27]). That was a different application from the one determined by the 2014 Decision. In relation to the 2016 Claim, the Tribunal had before it evidence that, necessarily, was not available to the previously constituted Tribunal. That evidence comprised Dr Adam’s Report of 28 June 2018 and surveillance footage of Mr Kumar taken on various occasions in 2018, which to some extent contradicted the history he had reported to Dr Adams. Dr Adams assessed Mr Kumar’s impairment at zero.

23    The Tribunal’s factual conclusion as to the number of impairment points which would be assigned to Mr Kumar for the purposes of the application of s 94(1)(b) of the Social Security Act, informed by that evidence, was zero. As already observed, the primary judge held, correctly with respect, that findings of fact are a matter for the Tribunal and it is not for the Court, either on appeal under s 44 of the AAT Act, or in judicial review proceedings under the ADJR Act, to substitute its own conclusions on findings of fact made within jurisdiction (Reasons at [28]).

24    No error has been established on the part of the primary judge. Ground 1 cannot succeed.

Grounds 2 and 3 (and grounds 4 and 5 in appeal 1168)

25    As to ground 2 of his notice of appeal, Mr Kumar contends that the primary judge erred in “considering, concluding, upholding or declaring” that the Tribunal’s decision did not “vitiate, challenge, review, quash or call into question the judicial proceeding (Matter No: 52227/2001) of the Honourable Compensation Court of New South Wales, for want of form or otherwise, contrary to the s 17(3) of the Compensation Court Act 1984 (NSW), s 79(1) and/or s 80 of the Judiciary Act 1903 (Cth)”.

26    Similarly, ground 3 contends that the primary judge erred in “considering, concluding, upholding or declaring” that the Tribunal’s decision did not “vitiate, the judicial proceeding of Workers Compensation Commission of NSW (Matter No: 1467/2013) for want of form or otherwise, contrary to the s 350(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 79(1) and/or s 80 of the Judiciary Act 1903 (Cth)”.

27    Again, the gravamen of Mr Kumar’s complaint seems to arise from the apparent inconsistency between the Tribunal’s 2021 Decision and his having received a favourable settlement entailing a concession as to his eligibility for the payment of a lump sum in respect of pain and suffering past and future in the Compensation Court of NSW. Mr Kumar also received a determination from the Workers Compensation Commission of New South Wales in respect of both his 2001 and 2011 injuries for which he received the payment of weekly compensation from 31 January 2001 and variously ran through to, and including, 31 December 2012 (Reasons at [31]-[32]).

28    As the primary judge observed, correctly with respect, Mr Kumar’s claim for and receipt of workers compensation benefits under the New South Wales legislation is entirely separate from and independent to his subsequent claim for disability support pension under the Commonwealth statute. The criteria required to be satisfied for the latter are different from those which underpin the State-based workers compensation scheme. The Tribunal was required to, and did, come to its own independent view as to whether Mr Kumar was qualified for disability support pension under s 94(1) of the Social Security Act. It concluded that he was not. Nothing in the Tribunal’s approach amounts to failure to give full faith and credit in terms of s 118 of the Constitution (Cth) to the outcomes under State law.

29    No error having been demonstrated on the part of the primary judge, grounds 2 and 3 also cannot succeed.

Ground 4

30    Ground 4 of the notice of appeal contends that the primary judge erred in not considering that Mr Kumar was entitled to compensatory damages due to the Secretary’s misfeasance in public office. No evidence was adduced before the primary judge to substantiate the allegation. In any event, as the Secretary submitted, the core element of the tort of misfeasance in public office is that there be some unlawfulness in the exercise of a public power: Plaintiff M83A/2019 v Morrison [2020] FCA 334 at [6] citing Obeid v Lockley [2018] NSWCA 71; 98 NSWLR 258 at [100]-[101]. Further, the tort generally only establishes personal liability against the public officer in question: Northern Territory v Mengel [1995] HCA 65; 185 CLR 307, 347. Mr Kumar has not established any unlawfulness in the exercise of a public power by the Secretary done personally which is capable of constituting the tort of misfeasance.

31    Ground 4 is untenable.

Ground 5 (and ground 7 in appeal 1168)

32    By ground 5 of the notice of appeal, Mr Kumar contends that the primary judge erred in not disqualifying himself from the matter as “the clear and strong views of his Honour in the previous judgments involving the same parties and similar issues might cause a fair-minded lay observer reasonably to apprehend that his Honour might not bring an impartial mind to the resolution of the case”.

33    Those previous judgments were Kumar v Secretary, Department of Social Services [2018] FCA 2119 (Kumar 2018) and Kumar v Secretary, Department of Social Services [2019] FCA 202 (Kumar 2019 (No 1)) and Kumar v Secretary, Department of Social Services (No 2) [2019] FCA 203 (Kumar 2019 (No 2)).

34    The legal test for apprehended bias is as stated by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J concurring, namely, that a judge will be disqualified from hearing a case for apprehended bias,

if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

35    As can be appreciated from that statement of the test, two steps are involved in applying the test, as has been recently stated by the High Court in Charisteas v Charisteas [2021] HCA 29; 393 ALR 389 at [11] per Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ:

[F]irst, ‘it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits’; and, second, there must be articulated a ‘logical connection’ between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

36    The basis of Mr Kumar’s allegation of apprehended bias appears to be that on three previous occasions, the primary judge has found against him. Although those matters also related to an application for judicial review and an appeal from a decision of the Tribunal, neither was concerned with the decision of the Tribunal, the subject of the present appeal. Mr Kumar has not identified what he says might have been perceived to have led the judge to decide the matter other than on its legal and factual merits. Further, no logical connection can be drawn between the primary judge’s adverse findings on different factual substrata and Mr Kumar’s fear that the primary judge would depart from deciding this matter on its merits.

37    No allegation of apprehend bias can be sustained and the primary judge did not err in failing to disqualify himself.

38    In any event, Mr Kumar made no application that the primary judge disqualify himself. Although self-represented, Mr Kumar had previously successfully made an application for the judge to disqualify himself: Kumar v Secretary, Department of Social Services [2018] FCA 1710. Moreover, he was specifically asked during a case management hearing on 30 July 2021 before the primary judge whether he had any objection to the primary judge hearing the matter and Mr Kumar confirmed that he did not. In such circumstances, and despite his being self-represented, it is clear that Mr Kumar waived any right to object to the hearing of his matter by the primary judge on the ground of apprehended bias: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [76] per Gummow ACJ, Hayne, Crennan and Bell JJ; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [71] per Nettle and Gordon JJ.

39    Ground 5 cannot succeed.

Disposition

40    For the foregoing reasons, the appeals must be dismissed. There is no reason to depart from the usual rule that the costs follow the result. The parties are encouraged to endeavour to agree costs in a lump sum pursuant to rule 40.02(b) of the Federal Court Rules 2011.

Associate:

Dated:    30 May 2022