MOHINDER SINGH and and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 850
•5 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 850
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2358
GENERAL ADMINISTRATIVE DIVISION ) 2008/2359 Re MOHINDER SINGH Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondents
DECISION
Tribunal Mr John Handley, Senior Member Date5 November 2009
PlaceMelbourne
Decision For reasons recorded herein –
(i) The applicant does not have an interest affected by the decision he has sought to review.
(ii) Leave to make this application is refused.
(Sgd) John Handley
Senior Member
SOCIAL SECURITY – Applicant declared bankrupt – subsequently issued application in own name in Tribunal – not competent to bring proceedings – no interest capable of being affected as a bankrupt – previous decision deciding an application frivolous or vexatious and applicant may not make an application of specified type without leave – applicant seeks to re-litigate – leave to make application refused
Bankruptcy Act 1966 (Cth) s 5(6), s 60(2), s 60(4),s 116, s 153A, s 153B
Administrative Appeals Tribunal Act (Cth) s 27 and s 42B
Attorney-General v Wentworth (1988) 14 NSWLR 481
Reid v Cameron (1966) QCA 37
REASONS FOR DECISION
5 November 2009 Mr John Handley, Senior Member 1. Mr Singh (the applicant) is no stranger to proceedings in this Tribunal and in the Federal Magistrates' Court, the Federal Court or the High Court. In a decision made by me on 3 July 2006 (V2006/314) I dismissed an application brought by him and found it to be frivolous and vexatious. I also decided that he must not, without leave of the Tribunal, make any application with respect to the recovery of Sickness Allowance, Disability Support Pension or Wife Pension paid between 28 October 1991 and 26 October 1999 (refer s 42B, Administrative Appeals Tribunal Act 1975). The latter decision was made on the application of the Secretary, Department of Employment and Workplace Relations being the respondent in that application.
2. These proceedings arose out of applications lodged against the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008/2358) and both the same respondent and the Secretary, Department of Education, Employment and Workplace Relations (2008/2359). Mr Noonan on behalf of the respondents opposes leave being granted to permit the applicant to bring these proceedings.
3. The history of the applications before this Tribunal and other Courts is summarised as follows.
4. In proceedings V2000/395 and V2000/418, the applicant and his wife sought review of decisions made by the Social Security Appeals Tribunal (the SSAT) which found that they were not members of a couple. At the completion of the review before this Tribunal, I found that the applicant and his wife were members of a couple at relevant times and I delivered oral reasons for decision setting aside the decision made by the SSAT. The applicant lodged an appeal against that decision in the Federal Court but ultimately consented to a dismissal of his application before Finklestein J who made a Consent Order on 19 December 2000 (V912 of 2000). The applicant later applied to the Federal Court to revoke his consent to the Orders made by His Honour. Finklestein J, in a hearing on 2 February 2001, decided the consent previously given could not be revoked in the absence of agreement by the respondent. The applicant lodged an appeal against that decision. A Full Federal Court heard the application and dismissed it. The applicant was ordered to pay the costs of the proceedings ([2001] FCA 1281).
5. In application V2002/580, the applicant applied to review a decision made by the SSAT on 13 May 2002 which affirmed a decision made by an Authorised Review Officer (ARO) of Centrelink who found that the applicant was liable with respect to a compensation charge of $88,633.34. The decision of the SSAT was the subject of review before Senior Member Friedman in this Tribunal who ultimately decided on 17 December 2002 to affirm the decision made by the SSAT. An appeal was lodged by the applicant against that decision in the Federal Court who transferred it for hearing by a Federal Magistrate. Federal Magistrate Hartnett decided on 5 December 2003 that the appeal be dismissed ([2003] FMCA 566). An appeal was lodged by the applicant against that decision and it was heard by Gray J in the Federal Court who dismissed the appeal ([2004] FCA 1685). An application by the applicant seeking leave to appeal that decision before the High Court was dismissed on 9 September 2005 ([2005] HCA 759). The applicant then lodged a Motion in the Federal Court seeking to set aside the decision of Gray J. He dismissed the Motion on 24 October 2005 ([2005] FCA 1625). The applicant then sought to appeal against that finding, however, Ryan J, in the Federal Court, found the application to be incompetent ([2006] FCA 189).
6. In application V2006/314 the applicant sought to review a decision made by the SSAT on 22 March 2006. That application arose out of a request by the applicant upon Centrelink to recalculate the amount previously found as a compensation charge. The same amount, namely, $88,633.34 was decided as being the compensation charge and the applicant sought review of that finding by the SSAT. On 22 March 2006 the SSAT declined to review the decision, in effect adopting findings that it had previously made and deciding not to revisit matters that have already been lawfully determined (SSAT Appeal No M220464 at paragraph 47).
7. In application V2006/314 the applicant sought to review that decision of the SSAT. I heard the review and made the decision recorded earlier (paragraph 1) namely, the application be dismissed as frivolous and vexatious and the applicant be prohibited from making any application (of specified types) without leave, pursuant to s 42B of the AAT Act. The applicant lodged an appeal against that decision. Weinberg J in the Federal Court decided, on 23 October 2006, subject to a minor variation, to dismiss the appeal ([2006] FCA 1381). An appeal was lodged by the applicant (VID 1217/2006) against that finding but before it was determined by the Full Federal Court, Sundberg J in the Federal Court, upon an application by the respondent, made an Order for security of costs in the sum of $10,000 on 9 February 2007. On 22 November 2007 the Full Federal Court comprising Dowsett, Siopis and Middleton JJ dismissed the appeal against the decision made by Weinberg J ([2007] FCAFC 174). On 10 June 2008 the applicant applied to Middleton J in the Federal Court to discharge the security for costs order previously made by Sundberg J and to set aside the decision previously made by Weinberg J and the Full Court. Both applications were dismissed ([2008] FCA 1061). The applicant sought leave in the High Court to appeal against the decision of the Full Federal Court. Leave was refused by an order on 15 May 2008 ([2008] HCASL 224).
8. On 2 June 2008 the applicant lodged two applications in this Tribunal both of which were identical recording the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and the Secretary, Department of Education, Employment and Workplace Relations as respondents (refer paragraph 2 earlier). By each application he has sought to review the decisions made by the SSAT on 13 May 2002 and 22 March 2006 (refer above). He has also sought to review a decision made by an ARO on 4 November 1999 and a decision made by the County Court of Victoria made on 20 October 1999.
9. Having regard to the decision made by me on 3 July 2006, namely, to find that the proceedings should be dismissed as being vexatious and frivolous and prohibiting further application without leave, the Registrar listed both applications for an interlocutory hearing on 22 August 2008 to consider whether leave should be granted. On 25 June 2008, Mr Noonan made an application opposing leave being granted to the applicant to make the applications.
10. On 19 August 2008 the applicant wrote to the Registrar which omitting irrelevant parts was in the following terms:
I would like to bring into your notice that I have recently been declared bankrupt by the respondent.
I have made an application for the annulment of my bankrupt status in the Federal Court of Australia pursuant to section 153B of the Bankruptcy Act 1966. A direction hearing in the Federal Court of Australia will be taking place at 9.30 a.m. on 1 September 2008 regarding this matter. ITSA is also party to that proceeding.
The consequences of the abovementioned matter will affect my application for leave to appeal to the Administrative Appeals Tribunal. Therefore, I request that the application I have made to the Tribunal should not proceed until my application to the Federal Court of Australia has been finalised. Accordingly, I request that the directions hearing scheduled by the Tribunal for 2.00 p.m. on 22 August 2008 be postponed.
11. Subsequent to the applicant's letter of 19 August 2008 it has been learnt that he made an application (VID 571 of 2008) to Goldberg J in the Federal Court seeking an Order pursuant to s 153A of the Bankruptcy Act 1966 (the Bankruptcy Act) to annul a bankruptcy order, and an application pursuant to s 153B of the Bankruptcy Act for an annulment of the sequestration order. His Honour dismissed both applications. An appeal was lodged by the applicant against those decisions and a Full Federal Court comprising Spender, Lander and Flick JJ dismissed the appeal on 22 May 2009 ([2009] FCAFC 59). The applicant sought leave from the High Court to appeal the decision of the Full Court and it decided on 1 October 2009 to refuse leave ([2009] HCASL 194).
12. Between 19 August 2008 when the Registrar received the applicant's letter (refer above) and 1 October 2009, both applications which are the subject of this application for review were not processed pending the appeal processes initiated by the applicant.
13. When it was learnt that the High Court had refused leave to appeal, the applications were listed for directions hearing on 19 October 2009. The applicant appeared then with the assistance of his daughter and a Punjabi interpreter.
14. On 9 October 2009, having received the notice of directions hearing for 19 October 2009, the applicant attended the Tribunal and attempted to lodge another application where he seeks to review a decision made on 4 November 1999. It is assumed that is the same decision that he has recorded in the applications which have given rise to these proceedings, being a decision of an ARO made on that day (refer paragraph 8 earlier). The application that he sought to lodge was refused by the Registrar pending the directions hearing on 19 October 2009. Appended to the application was a typed page of notes which purports to be a summary of the reasons for making the application. In effect it records a history similar to that which has been the subject of previous litigation, namely, the finding of being a member of a couple, the decision to impose a compensation charge and the recovery of it.
15. On the morning of 19 October 2009, shortly before the commencement of the directions hearing the applicant lodged a statement in the following terms:
I refer to your letter dated 8 October 2009 to myself, the Respondent's letter to the AAT dated 13 October 2009 and bring your attention to the Federal Court case enclosed with this letter:
Singh v Secretary, Department of Employment and Workplace Relations [2008] FCA 1061 (11 July 2008)
Despite the decision of the High Court of Australia dated 1 October 2009 which refused to grant a leave to appeal against a decision to have myself declared bankrupt on 28 February 2008, I would like to bring into your notice that I have paid the respondent through the Official Trustee the full debt of $36,066.20 approved by the Court in that Bankruptcy before commencement of the above-mentioned Federal Court proceedings. To the best of my knowledge I am not aware of any other debt that may be outstanding. Therefore applicant contends that:
(1)the Honourable Tribunal should follow the Federal Court decision to allow the above-mentioned applications to proceed on the following basis that the applicant was not discharged from the alleged Bankruptcy in the proceeding of the above-mentioned case relating to the above mentioned application. The respondent and the Federal Court were both fully aware of that.
(2)the respondent had already raised the same issue or ground in the Federal Court proceeding above-mentioned and the Federal Court disregarded that in paragraph 9 of its reasons for Judgment (attached), therefore the respondent's current submission to the Court in it's letter dated 13 October 2009 are frivolous and vexatious.
(3)in the absence of the ground in (1) and (2), the Honorable [sic] Tribunal adjourn this application to a further date so that I can make arrangements with the Official Trustee to obtain a discharge having paid all known debts as approved by the Court in the Bankruptcy. This will further allow for any unknown debts accrued to be paid by myself.
16. Appended to that statement was a photocopy of the decision of Middleton J of 11 July 2008 (refer earlier). Specifically, the applicant relied on paragraph 9 of His Honour's decision which is in the following terms:
I should indicate that it has been drawn to my attention that the applicant is an undischarged bankrupt and, pursuant to the Bankruptcy Act 1966 (Cth), this would normally provide that the property of a bankrupt vests in the Official Receiver. I say nothing more about this particular matter or as to the standing of the applicant in this case.
17. At the directions hearing on 19 October 2009 it was learnt that the sequestration order against the applicant was made by a Registrar of the Federal Magistrates' Court on 28 February 2008. The debt then owing was found to be $36,066.20. That sum was proved by the solicitors representing the respondents in previous proceedings where costs orders had been made against the applicant. The applicant paid that sum to those solicitors on 10 June 2008. A copy of the receipt from the solicitors and a copy of a bank cheque payable to the Secretary, Department of Employment and Workplace Relations was provided by the applicant. It was the applicant's case that that sum was the only debt which gave rise to bankruptcy and by him paying it, he should be discharged. After that sum was paid, by him directly to the creditor, he notified the Insolvency and Trustee Service of Australia (ITSA) that he had made that payment. He was then asked to complete a statement of his affairs. He has declined to do so, he remains a bankrupt and he has not made any application to date for discharge.
18. Additionally, the applicant advised that in the event that he is permitted to continue with these proceedings, he will apply to seek a review of my decision of 3 July 2006. It is his intention to have the compensation charge of $88,633.34 revoked and that that sum be paid to him by Centrelink who recovered those monies from a workers' compensation insurer who had previously paid compensation to the applicant. It was submitted by the applicant that the decision made on 3 July 2006 was wrong on the facts and it was the applicant's intention to correct the facts.
19. Mr Noonan submitted that the applicant had no standing to bring these proceedings as an undischarged bankrupt. Additionally, or in the alternative, it was submitted that in the event that the applicant could bring the proceedings, he should not be given leave to do so having regard to the decision made on 3 July 2006.
20. The current applications were lodged on 2 June 2008. Section 60(2) of the Bankruptcy Act records that an action commenced by a person who subsequently becomes bankrupt is stayed unless the Trustee elects to prosecute or discontinue it. Subsection (4) permits a bankrupt to continue proceedings issued by him before he became bankrupt in respect of any personal injury or wrong done to him or his spouse or defacto partner or a member of his family or the death of such persons.
21. The proceedings were issued after the applicant became bankrupt. The Bankruptcy Act is silent in circumstances of that type. However, s 116(1) provides that subject to the Act property that belonged or was vested in the bankrupt at the commencement of the bankruptcy or was acquired or devolved to him after commencement of bankruptcy is divisible amongst creditors. Property is defined at s 5(6) of the Bankruptcy Act as real or personal property of every description whether present or future, vested or contingent arising out of or incidental to any such real or personal property.
22. Whilst the Act therefore is silent with respect to the capacity of a bankrupt to bring proceedings after a sequestration order has been made, it would appear that s 116 would permit the recovery of property which, if recovered, would be divisible amongst the creditors. Proceedings of that type I would have thought could only be brought by the Trustee in order to locate or secure property in order to meet the claims of creditors. I am satisfied also that property, as defined, includes money and it is property of that type that the applicant is seeking, by intending to pursue appeals against the decision made on 3 July 2006, but, in much broader or precise terms, being a review of a decision previously made by the SSAT concerning the imposition of a compensation charge of $88,633.34. If that money was ever able to be recovered it would be divisible by ITSA as the Trustee for the benefit of creditors. Despite the silence of the Act, I am satisfied that these proceedings should have been lodged, if at all, by the Trustee on behalf of the creditors. I do not know whether the Trustee is aware of these proceedings.
23. The applicant requested that these proceedings be adjourned pending him making application to be discharged from bankruptcy. In that event, he would wish to prosecute an application to review the decision of the SSAT made on 22 March 2006. Because I am not satisfied the applicant is competent to bring these proceedings it follows that the application has no validity and there is therefore no proceeding capable of being adjourned.
24. Additionally, or in the alternative, the applicant, as a bankrupt is not a person who has an interest which is affected by a decision that he would want to review (refer s 27 of the AAT Act). Any interest he might have had, but for the bankruptcy, can only be pursued, if at all, by his Trustee and then, for the benefit of creditors.
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 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).
28. For all of the above reasons I am satisfied that leave should not be granted to permit the applicant to make this application or the application he attempted to make on 9 October 2009 (refer paragraph 14 earlier) that these applications should be dismissed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member
Signed: Grace Carney Personal Assistant
Date of Hearing 19 October 2009
Date of Decision 5 November 2009
Solicitor for the Applicant Self Represented
Departmental Advocate Tim Noonan, Centrelink
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