Singh and Administrative Appeals Tribunal
[2014] AATA 701
•25 September 2014
[2014] AATA 701
DivisionGENERAL ADMINISTRATIVE DIVISION
File Number 2014/4189
Re Mohinder Singh
APPLICANT
And Administrative Appeals Tribunal
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 25 September 2014
Place Melbourne
Decision
The Tribunal decides not to discharge or vary the direction made by Senior Member Handley on 3 July 2006.
…[sgd] S A Forgie….
Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE - SOCIAL SECURITY – application dismissed as frivolous or vexatious and applicant directed not to make any further application without leave of the Tribunal – direction limited to applications to Tribunal - whether direction should be discharged or varied – Tribunal decides not to discharge or vary direction
LEGISLATION
Accident Compensation Act 1985; section 98
Administrative Appeals Tribunal Act 1975; sections 2A, 25, 37, 42A, 42B, 44
Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958; section 420
Social Security Act 1991; sections 17, 1164, 1165, 1166, 1168, 1170, 1174
Social Security (Administration) Act 1999; section 179CASES
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14; 83 ALJR 951
Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367; (2002) 121 FCR 383; 72 ALD 652; 36 AAR 238
JF Keir Pty Limited v Sparks [2008] FCA 61
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577
Pitt v OneSteel Reinforcing Pty Limited v Sparks [2008] FCA 61
Potter v Minahan (1908) 7 CLR 277
Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; 141 ALR 353; 71 ALJR 294
Re Kalafatis and Commissioner of Taxation [2012] AATA 150; (2012) 56 AAR 445; 126 ALD 396
Re Kowalski and Repatriation Commission [2014] AATA 141
Re Singh and Secretary to the Department of Family and Community Services [2002] AATA 1308
Re Singh and Secretary, Department of Employment and Workplace Relations [2006] AATA 584
Re Singh and Administrative Appeals Tribunal [2014] AATA 460
Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467; (1995) 38 ALD 366
Sali v SPC Ltd [1993] HCA 47; (1993) 116ALR 625; 67 ALJR 841
Singh v Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 833
Singh v D.F.C.S. [2003] FMCA 566
Singh v Secretary, Department of Employment & Workplace Relations [2006] FCA 1381
Singh v Secretary, Department of Family and Community Services [2001] FCA 1281
Singh v Secretary, Department of Family and Community Services [2004] FCA 1685; (2004) 142 FCR 232
Singh-Jikka v MMI Workers Compensation (Vic) Ltd [1999] VCC 11
Singh-Jikka v MMI Workers Compensation (Vic) Ltd [1999] VCC 38
Singh-Jikka v MMI Workers Compensation (Vic) Ltd [1999] VCC 51OTHER MATERIALS
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
REASONS FOR DECISION
Mr Singh was injured at work on 2 January 1991.At that time neither he nor his wife, Ms Kaur, was receiving a social security payment. On 9 December 1993, Mr Singh applied for a Disability Support Pension (DSP) and Ms Kaur for a Wife’s Pension. Both Mr Singh and Ms Kaur were granted pensions from 16 December 1993. In 1999, Judge Rendit of the County Court of Victoria ordered that the Insurer pay Mr Singh weekly payments of compensation at the rate of 90% of pre-injury average weekly earnings from 1 September 1992 to 20 October 1999 and to continue in accordance with law. His Honour also ordered that the Insurer pay Mr Singh an additional sum of $80,000.00 under s 98 of the Accident Compensation Act 1985 (Vic) (AC Act).
Following the award, Centrelink recovered a total sum of $88,633.34 from the Insurer. On 4 November 1999, it cancelled payments made to each of Mr Singh and Ms Kaur, whom it treated as members of a couple. Its decision was made on the basis that Part 3.14 of the Social Security Act 1991 (SS Act) requires repayment of social security payments if a recipient receives periodic compensation payments (e.g. weekly workers’ compensation payments) for the same period. The repayment was worked out by comparing the two amounts and recovering the smaller of them. The effect of receiving periodic compensation payments was that they reduced social security payments otherwise payable in the same period on a dollar for dollar basis.
Mr Singh and Ms Kaur sought review of the decision and were initially successful in that the Social Security Appeals Tribunal (SSAT) initially decided that they were not a member of a couple. Centrelink recalculated the amount recoverable in light of the SSAT’s decision and assessed it to be $65,226.70. Mr Singh pursued his application for review to the Tribunal as was his right and was unsuccessful. The amount of $88,633.34 continued to be the amount recoverable from the Insurer and so from the amount awarded under the County Court judgment. Mr Singh lodged an appeal from the Tribunal’s decision but was unsuccessful.[1] He has since lodged various applications to the Tribunal seeking review of Centrelink’s decision of 4 November 1999 and pursued various appeals and made various applications in the Federal Court in relation to the same matter.
[1] Re Singh and Secretary to the Department of Family and Community Services [2002] AATA 1038; appeal to the Federal Court lodged on 17 December 2002 and transferred to the Federal Magistrates’ Court on 19 March 2003. Federal Magistrate Hartnett dismissed the appeal on 5 December 2003: Singh v D.F.C.S. [2003] FMCA 566.
On 22 March 2006, the SSAT declined to review a decision made by an Authorised Review Officer (ARO) made on 19 December 2005. The ARO had affirmed a decision of a delegate of the Secretary to decline Mr Singh’s request that the compensation debt be recalculated. Mr Singh had made that request on 31 October 2005 following an unsuccessful appeal to the Federal Court.[2] On 3 July 2006, Senior Member Handley decided that Mr Mohinder Singh’s application to review a decision of the SSAT was “frivolous and vexatious” and dismissed it under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act). He went on to direct that:
“The applicant must not without leave of the Tribunal make any application [to the Tribunal[3]] with respect to recovery of sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999.”[4]
[2] See [71] and [67]-[70] below
[3] Words added by Weinberg J on appeal from Senior Member Handley’s decision: Singh v Secretary, Department of Employment & Workplace Relations [2006] FCA 1381
[4] Re Singh and Secretary, Department of Employment and Workplace Relations [2006] AATA 584
Mr Singh has asked that I set aside the direction on various bases. In essence, they are:
(1)That Senior Member Handley had made an error of law in finding that his application was frivolous or vexatious. The error of law, Mr Singh submitted, was in Senior Member Handley’s relying on a finding by the County Court that he was a person acting “habitually, persistently and without any reasonable ground”.
(2)All the facts on which Senior Member Handley relied had been fraudulently obtained by the then Secretary, Department of Employment & Workplace Relations (DEWR). The fraud, Mr Singh alleges, lies in DEWR’s describing the amount of compensation he received under a County Court judgment as “arrears” rather than as a “lump sum compensation payment”.
(3)The statement lodged by DEWR under s 37 of the Administrative Appeals Tribunal Act 1975 (s 37 statement) fraudulently misrepresented Mr Singh’s entitlements as “arrears” rather than a lump sum compensation payment.
(4)The proceeding in matter V314/2006, in relation to which Senior Member Handley had made his decision, was neither frivolous nor vexatious as Mr Singh had a cause of action to bring against DEWR.
(5)Senior Member Handley’s direction has prevented Mr Singh from applying to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) for judicial review of DEWR’s decision dated 4 November 1999. His application would focus on what he described as DEWR’s misrepresentation that his entitlement under the County Court’s judgment was to “arrears” of weekly compensation payments rather than to a lump sum compensation payment.
In addition to asking that the direction under s 42B(1)(b) be discharged under s 42B(3) of the Administrative Appeals Tribunal Act 1975 (AAT Act), Mr Singh asked that I direct that the substantive matter of 4 November 1999 be dealt with by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).
I have decided to refuse Mr Singh’s application to discharge or vary the direction. I set out my reasons below. At Attachment A, I have outlined a number of proceedings instituted by Mr Singh.
REVOCATION OF DIRECTION UNDER SECTION 42B
I will begin with the limits of the power to make a direction under s 42B(1)(b) for those limits will be relevant in identifying when it is appropriate to exercise the power under s 42B(3) to discharge or vary a direction that has already been given.
Legislative background
Section 42B of the AAT Act 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.”
The limits of the power to make a direction under s 42B(1)(b)
It is clear from the face of the provision that, in order to make a direction under s 42B(1)(b), the Tribunal must first have been satisfied that there is “an application made to the Tribunal for the review of a decision”. It is that application that the Tribunal must first decide is frivolous or vexatious and not any other application that might be made in the course of a proceeding relating to that application for review of a decision. Therefore, it is an application of the sort contemplated by s 25 of the AAT Act. Section 25(1)(a), for example, provides that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. The Social Security (Administration) Act 1999 (SSA Act) is such an enactment providing for the Tribunal’s review of decisions made by the SSAT in various matters arising under the SS Act.[5]
[5] SSA Act; s 179
Where an application has been made to the Tribunal for review of a decision, then provided it is satisfied of other matters that I will turn to, it may exercise its powers under s 42B “at any stage of the proceeding”. The reference to the “proceeding” must be read, in this context, as a reference to any step that takes place in the course of dealing with the application for review. Those steps would include incidental applications made to the Tribunal for such orders as confidentiality or stay orders and any other process such as a hearing, directions hearing or an alternative dispute resolution process. Once the application for review has been finalised, whether by being heard and decided or being dismissed under s 42A or otherwise, there is no longer an application for review that may be dismissed under s 42B.[6]
[6] An application to the Tribunal made under s 42B(3) of the AAT Act to vary or discharge an order made under s 42B(1)(b) is not an application for review. It does not arise “at any stage of the proceeding” when an application for review has been made and finalised by dismissal under s 42A(1)(a). It is an application entirely separate from the application for review. An application to set aside an earlier decision made by the Tribunal is not an application for review of a decision as required by s 42B(1). Whatever the source of power for making such an application, it is not found in s 25 of the AAT Act when read with any relevant enactment such as the SSA Act. It is an incidental application arising under s 42B(3) of the AAT Act. Therefore, it cannot satisfy the first criterion in s 42B(1) that there be an application for review of a decision before the Tribunal may exercise the dismissal power under that provision.
The second factor of which the Tribunal must be satisfied in order to make a direction under s 42B(1)(a) is to be “satisfied that the application is frivolous or vexatious”. What is meant by the words “frivolous or vexatious”? When used in a legal context such as s 42B, “the word ‘frivolous’, especially when coupled with ‘vexatious’, is a technical legal term, in substance meaning the absence of a cause of action.”[7] To put it another way, “An action can be stayed as vexatious ‘if it can really lead to no possible good’.”[8]
[7] Pitt v OneSteel Reinforcing Pty Limited [2008] FCA 923; Gray J at [9]
[8] JF Keir Pty Limited v Sparks [2008] FCA 61; Graham J at [62]
In Re Kowalski and Repatriation Commission[9] (Kowalski) I considered the boundaries of that discretionary power. While I adopt that consideration, I will refer only to my conclusions. I found that the principles that could be drawn from the authorities were:
“(1) The Tribunal’s power must be read in the terms in which Parliament has conferred it and not reframed in other terms;
(2)The expression “frivolous or vexatious” is an expression that is known to the law and, given that Parliament has used it without qualification, can be expected to have used it in the sense in which it has previously been understood;[10]
(3)“the word ‘frivolous’, especially when coupled with ‘vexatious’, is a technical legal term, in substance meaning the absence of a cause of action.”[11] “An action can be stayed as vexatious ‘if it can really lead to no possible good’.”[12]
(4)The circumstances that will lead to that conclusion cannot be defined but it is clear that a “… mere fact that a proceeding is shown to have no foundation in fact is insufficient to justify a finding that it was commenced vexatiously or without reasonable cause”[13] while a conclusion that a proceeding is shown to have no prospect of success on a legal basis is sufficient.[14]”[15]
[9] [2014] AATA 141; 62 AAR 495 at [89]-[99]; 529-533
[10] Potter v Minahan (1908) 7 CLR 277; Griffith CJ, Barton, O’Connor, Isaacs and Higgins JJ at 304 per O’Connor J
[11] Pitt v OneSteel Reinforcing Pty Limited [2008] FCA 923 at [9]
[12] JF Keir Pty Limited v Sparks [2008] FCA 611 at [62]
[13] ReWilliams and Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467; 38 ALD 366 (Williams) at [31]; 473; 372
[14] Williams [1995] AATA 160; (1995) 21 AAR 467; 38 ALD 366 at [31]; 474; 374
[15] [2014] AATA 141; 62 AAR 495 at [96]; 531-532
The third factor of which the Tribunal must be satisfied in order to make a direction under s 42B(1)(b) is that it is “appropriate” to make the direction. Other than to give the Tribunal power to make the direction, s 42B(1)(b) does not set out any parameters according to which the power may be exercised. All that is clear is that it is a discretionary power. There are, however, some parameters drawn by the AAT Act itself. They relate both to the power to dismiss the application under s 42B(1)(a) and the power to make a direction under s 42B(1)(b).
Among the factors setting the parameters is s 2A which provides:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
This is a provision of a sort that is, as the High Court concluded in relation to s 420 of the Migration Act 1958, “… intended to be facultative, not restrictive …”.[16] As I said in the case of Re Kalafatis and Commissioner of Taxation[17] (Kalafatis):
“36. Provisions such as s 420 of the Migration Act and s 2A of the AAT Act do not affect substantive rights. In so far as those criteria can be achieved, they relate to the ‘mechanism of review’ and so to the ‘… arrangements and action by which …’ review is achieved.[18] That touches upon procedures that are directed to resolving the case whether after review by the Tribunal or between the parties with or without the intervention or assistance of the Tribunal or its Conference Registrars and so upon the Tribunal’s general management of the applications that are lodged. It also touches upon the right that is given to persons under enactments other than the AAT Act to have decisions reviewed.[19]”[20]
[16] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577 at [49]; 628; 588 per Gleeson CJ and McHugh J and 659; 613 per Hayne J and see also similar views expressed by Gaudron and Kirby JJ at [74]-[75]; 635; 592-594
[17] [2012] AATA 150; (2012) 56 AAR 445; 126 ALD 396
[18] Chambers, 21st Century Dictionary, 1999, reprinted 2004, Chambers
[19] AAT Act, s 25(1)
[20] [2012] AATA 150; (2012) 56 AAR 445; 126 ALD 396 at [36]; 460; 410
There can be a tension between the exhortatory provisions of s 2A and case management considerations on the one hand and the particular interests arising from an individual application. The tension arises in the courts as much as in the Tribunal and they have addressed the way in which they may be balanced in various contexts. The leading cases are Sali v SPC Ltd[21] (Sali), Queensland v J L Holdings Pty Ltd[22] and Aon Risk Services Australia Limited v Australian National University[23] (Aon). I analysed those cases at [37] to [48] of Kalafatis concluding:
“45. The principle that underlies both Haset Sali and Aon is that issues relating to case management are not deciding factors in any particular case. They are, instead, relevant factors and the weight they are accorded can only be determined when regard is had to all of the factors that are relevant. Those objectives are not to be attained at the expense of giving the parties the proper opportunity to present their case but what amounts to a proper opportunity is determined by reference to, among other relevant matters, the speedy and efficient disposition of the matter.”
46. The principle that, consistently with Eshetu, underlies both Haset Sali and Aon is that objectives of the sort set out in s 2A of the AAT Act, and that are applicable in a case management system, must be understood and applied in a particular case in light of the particular circumstances of that case and in light of the Tribunal’s functions and its duties i.e. its duties to act with procedural fairness and to reach the correct or preferable decision.”[24]
[21] [1993] HCA 47; (1993) 116 ALR 625; 67 ALJR 841
[22] [1997] HCA 1; (1997) 189 CLR 146; 141 ALR 353; 71 ALJR 294
[23] [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14; 83 ALJR 951
[24] [2012] AATA 150; (2012) 56 AAR 445; 126 ALD 396 at [45]-[46]; 464; 414. The final sentence should be modified to acknowledge that the Tribunal’s function is to resolve applications whether through assisting the parties to that resolution by various avenues of alternative dispute resolution or by formally reviewing the decision and coming to a resolution.
In the situation of dismissal of an application under s 42B(1)(a), the power itself is one of the relevant considerations. It is a power to dismiss an application if found to be frivolous or vexatious. When that is read with the principles underpinning the way in which the Tribunal must carry out its functions, the balance is struck between fairness and justice on the one hand and economy and quickness on the other by first giving proper consideration to the issues raised by an application and in determining whether it is frivolous or vexatious but, if being so satisfied, dismissing it. Continuing to deal with an application that is frivolous or vexatious in the legal sense is not only detrimental to the interests of the respondent and to other applicants whose applications require the Tribunal’s attention but to the interests of the applicant.
The same considerations underlie a decision whether to make a direction under s 42B(2) but more is needed than a single application that is frivolous or vexatious. Various considerations must be balanced. First, there are the rights conferred by Parliament in particular enactments to certain persons to seek review of particular decisions made under those enactments. Those persons should be permitted to make those applications and to present cases in support of their applications as permitted by law. Unless modified by Parliament, those persons are accorded a reasonable opportunity to do so. Within the bounds of the law, they have latitude in a review body such as the Tribunal as to the form in which to present material. That latitude is necessarily curtailed by the need for it to be relevant to and probative of the matters in issue. What is relevant and probative is not determined by the party but by the Tribunal subject, as always, to the supervisory jurisdiction of the Federal Court.
The history of a person’s applications to the Tribunal must be considered in order to determine whether there is a pattern of making applications that are frivolous or vexatious. It is not enough that they may have been made without sufficient evidence to be successful. Provided each was brought for review of a decision that the Tribunal has power to review, they cannot be regarded as forming part of a pattern of frivolous or vexatious decisions. If the applications cannot succeed in law, that is another matter and is relevant to making a direction under s 42B(1)(b).
Again, unless modified by Parliament, it is always open to a party to a particular substantive application for review of a decision to make certain procedural applications. A person may, for example, ask a Tribunal member or a judge to disqualify him or herself on the grounds of bias or apprehended bias if there are proper grounds for doing so. Again, there are boundaries. It is not, for example, a proper ground to make that request simply because the member or judge engages in debate with one party or another, makes a procedural ruling that does not accord with the person’s wishes, makes findings of fact with which the person disagrees and so on.
Making procedural applications that stray outside the boundaries is not in itself a matter that would, in itself, permit the Tribunal to dismiss an application on the basis that it is frivolous or vexatious. When there is a history of such procedural applications in relation to an application when another application has been found to be frivolous or vexatious, that history will form part of the context in which to consider whether a person is pursuing an application for the purposes of reviewing a decision or for unrelated purposes. If the latter, that will be a relevant consideration in determining whether to make a direction under s 42B(2).
These matters are considered against the background of the exhortatory provision in s 2A of the AAT Act and case management considerations to which I have already referred. The end result of the Tribunal’s system of review must be a system for the resolution of applications that is available to all and that will resolve each as efficiently as possible and after it has received the proper consideration it should in the various proceedings that take place in the Tribunal. It is a system that is designed to permit the parties to bring all relevant evidentiary material and to put their arguments. Once decided, it is not a system that permits applicants to go over the same ground with the Tribunal. It is not a system that permits it to review its own work. Its work is supervised not by itself but by the Federal Court.
The limits of the power given by s 42B(3) to discharge a direction under s 42B(1)
The power given to the Tribunal under s 42B(3) to discharge or vary a direction given under s 42B(1)(b) is a discretionary power. The Tribunal “may” discharge or vary such a direction but when should it do so? Again, the parameters of the discretion are not expressly stated but are, as with s 42B(1)(b), implicit in s 42B itself and in the wider context of the AAT Act itself.
Assuming that the power to make the direction under s 42B(1)(b) has been properly exercised, it seems to me that its discharge or variation will depend upon the same factors. That is to say, it will depend upon the characterisation of the particular application that the person wishes to make and the terms of the direction that has been made. If the direction has been made in general terms directing that the person must not, without the Tribunal’s leave, make any application to it, the application will have to be examined in order to determine whether it is frivolous or vexatious i.e. whether it has reasonable prospects of success in the way I have explained. The same examination will be required if the direction is framed in narrower terms to apply only to applications meeting a certain description and the person seeks to make an application of that sort. If, of course, the person wishes to make an application falling outside the category of those described in the direction, that direction will not prevent him or her from lodging that application.
The history of previous matters will not be relevant in considering whether to exercise the power under s 42B(3) for that history remains unchanged and unchangeable. The history – however lengthy – must not, however, be permitted to distract from a careful consideration of the merits of any application that the person might wish to make.
SHOULD THE DECISION UNDER s 42B BE DISCHARGED OR VARIED?
In the following sections of these reasons for decision, I have set out a number of incidents forming part of the background leading to Senior Member Handley’s making of the direction and subsequent events. I have given only a flavour of them for there have been proceedings also in the Federal Court as well as applications to the High Court for special leave to appeal from the Federal Court. I have referred to some of them but not all of them because Judges of the Federal Court have rejected his applications on approximately 16 occasions since Bromberg J ordered that he might not institute any proceeding in the Federal Court without leave of that Court.[25] Bromberg J made that order on 27 July 2011.
Application to set aside Senior Member Handley’s decision dated 3 July 2006
[25] Singh v Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 833
A. Tribunal has exhausted its powers in relation to the decision
As appears below at [73], Mr Singh appealed to the Federal Court against Senior Member Handley’s decision under s 44 of the AAT Act.[26] As the appeal was made under s 44, it was confined to an error of law. Mr Singh’s appeal was allowed but only to the extent that the words “to the Tribunal” were added to the direction made by Senior Member Handley. It was otherwise dismissed. Weinberg J found that there was no error of law in the Tribunal’s decision to dismiss Mr Singh’s application to it as frivolous or vexatious and no error of law in its making its direction. In view of the Federal Court’s having heard and determined the appeal, the Tribunal no longer has any power to consider whether the decision or direction were made in error. The Federal Court has said that they were not and that is an end of the matter.
[26] Singh v Secretary, Department of Employment & Workplace Relations [2006] FCA 1381 at [1] per Weinberg J
B.Section 42A(10) of AAT Act inapplicable
Even if I had power to act, I do not accept Mr Singh’s submission that I should set aside Senior Member Handley’s decision to dismiss his application on the basis of the power given by s 42A(10) of the AAT Act. Section 42A(10) provides:
“If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.”
Given its place in s 42A, the power to reinstate given by s 42A(10) clearly relates to those situations in which the Tribunal has dismissed an application under one of the preceding subsections of s 42A. This was the conclusion reached by the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs .[27] As Carr J summarised them in that case:
“Section 42A can be seen to empower the Tribunal to dismiss an application without either proceeding to review the administrative decision under challenge or, if it has commenced to review the decision, without completing the review, in five circumstances. The five circumstances can be described respectively as consent dismissal, dismissal on discontinuance or withdrawal, dismissal upon failure to appear, dismissal where the decision does not appear to be reviewable and dismissal where an applicant has failed within a reasonable time to proceed with the application.”
None of these dismissals relates to a dismissal of an application under s 42B as frivolous or vexatious.
[27] Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367; (2002) 121 FCR 383; 72 ALD 652; 36 AAR 238; Wilcox, Carr and Downes JJ at [31]; 389; 657-658; 243-244 per Wilcox and Downes JJ and [66]; 396; 665; 251 per Carr J
Application to discharge or vary direction made under s 42B(1)(b)
Mr Singh supports his application that the direction be discharged or varied by reference to a fraud in the way the amount he received under the County Court judgment has been described. It should not have been referred to as arrears of weekly payments of compensation but as a lump sum compensation payment. He has reasonable grounds for seeking review of Centrelink’s decision of 4 November 1999 and his previous application lodged in 2006 should not have been dismissed as frivolous or vexatious by Senior Member Handley. Although I am aware that Mr Singh wishes to commence proceedings in the Federal Court, I have considered this matter at this stage on the basis that he wishes to lodge an application in the Tribunal.
Even if Mr Singh were permitted to make a new application to the Tribunal for review of the matters arising out of the 4 November 1999 decision, he would have no reasonable prospect of succeeding. There is no fresh decision that has been made by Centrelink and reviewed by the SSAT. There is only the original decision of 4 November 1999 and the Tribunal has previously reviewed that decision and its decision has been the subject of an appeal to the Federal Court. Its powers are exhausted.
Even if that were not the case, a reading of the Federal Court judgments relating to his various applications make it clear that he has no reasonable prospects of success. Mr Singh has raised no new grounds supporting his argument that Centrelink’s decision was incorrect. His allegations relating to fraud were considered at length by Gray J in his judgment in Singh v Secretary, Department of Family and Community Services.[28]
34. Mr Singh’s submissions that the arrears of weekly payments of compensation should have been regarded as a lump sum compensation payment were also considered in detail by Gray J who said that that the money paid as arrears of weekly payments of compensation should have been added to the sum of $80,000.00 payable under the AC Act and treated as a lump sum compensation payment. What I respectfully suggest that Mr Singh has failed to appreciate is that his doing so made no difference to the final outcome. I have set out his Honour’s explanation below at [67]-[68] but the essential point that he makes is that the SS Act does not permit a person to receive both a weekly compensation payment and social security payment in respect of the same week. If the person’s entitlement to a weekly compensation payment is greater than his or her entitlement to a social security payment, then he or she would not receive a social security payment. It is often the case that a person does not receive any weekly compensation payments at the relevant time (or receives less than he or she should) and relies on social security payments from Centrelink. That is what happened in Mr Singh’s case. When compensation claims are settled there may well be a payment in arrears of the amounts that the person should have received by way of weekly compensation payments. Centrelink will then recover the amounts of social security payments that it would not have paid had the weekly compensation payments been paid at the relevant time and not in arrears. That is what has happened here. There is no reasonable basis on which Mr Singh can successfully argue that he should be entitled to retain more of the compensation payments than he has.
[28] [2004] FCA 1685; (2004) 142 FCR 232
Finally, I come to Mr Singh’s intention to lodge an application in the Federal Court under the ADJR Act. He believes that Senior Member Handley’s direction prevents him from doing so. It does not. All that Senior Member Handley’s direction does is prevent him from lodging an application in the Tribunal for review of a very limited range of matters. It has no effect on proceedings he might wish to take in the Federal Court.
What does prevent Mr Singh from lodging an application in the Federal Court is an order made by Bromberg J in Singh v Department of Families, Housing, Community Services and Indigenous Affairs.[29] That order was:
“The Respondent, Mohinder Singh may not institute any proceeding in the Federal Court of Australia without leave of the Court.”
I have no authority to vary that order. It is a matter for the Federal Court but I note that Mr Singh has already applied to that Court and been unsuccessful.[30]
[29] [2011] FCA 833; (2011) 282 ALR 56; 55 AAR 410; 122 ALD 114
[30] See, for example, Singh v Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 833; Mortimer J
For these reasons, I refuse Mr Singh’s application that I discharge or vary the direction made by Senior Member Handley under s 42B of the AAT Act on 3 July 2006.
OUTLINE OF VARIOUS PROCEEDINGS INSTITUTED BY MR SINGH
I have read the material that Mr Singh has submitted with his application together with judgments of the County Court and of the Federal Court. For the purposes of considering Mr Singh’s application, I have made the following findings regarding the course on the basis of those documents.
Proceedings relating to Mr Singh’s actions in respect of his work related injury
I have had regard to the three judgments delivered by Judge Rendit in the County Court of Victoria in relation to proceedings brought by Mr Singh in relation to his work place injury. I make the following findings on the basis of them:
(1)Mr Singh had been paid $55,000.00 by way of partial settlement of his worker’s compensation claim but that had been set aside by consent. Mr Singh’s entitlements were considered by Judge Rendit in the Victorian County Court.
(2)Before Judge Rendit delivered his judgment on 20 October 1999,[31] the parties had, following his earlier judgments on 23 August 1999[32] and 9 April 1999,[33] agreed on the following form of order:
[31] Singh-Jhikka v MMI Workers Compensation (Vic.) Ltd [1999] VCC 51
[32] Singh-Jhikka v MMI Workers Compensation (Vic.) Ltd [1999] VCC 38
[33] Singh-Jhikka v MMI Workers Compensation (Vic.) Ltd [1999] VCC 11
“Order that the defendant make weekly payments of compensation at the rate of 90% of pre-injury average weekly earnings from 1 September 1992 to date, and to continue in accordance with law. Liberty to apply in relation thereto, including with respect to interest.
The defendant has made payments of weekly compensation, but not at a rate appropriate to serious injury. The parties are content to work out the amount of such payments and for the paid weekly compensation to be brought into account as part payment under this order. The liberty is to deal with any problems or disputes which may arise out of this exercise.”[34]
[34] Singh-Jhikka v MMI Workers Compensation (Vic.) Ltd [1999] VCC 51
(3)Judge Rendit also considered the assessment made by the Medical Panel under s 98 of the AC Act. The Medical Panel had given Mr Singh an assessment of 40% for incurable loss of mental powers involving inability to work. To that assessment, Judge Rendit decided he was required to add a percentage for his pain and suffering and loss of amenities of life. In doing so, he referred to his earlier judgment of 23 August 1999 regarding the course of Mr Singh’s chronic pain disorder. He decided that Mr Singh was entitled to 80% of $100,000, or $80,000.00, under s 98(1)(a) of the AC Act.
(3) Judge Rendit’s decision did not mean that Mr Singh received an additional $80,000.00. Together with his costs, he had already been paid the sum of $55,000.00 under the settlement that had been set aside by an earlier judgement delivered by Judge Rendit.[35] Under that earlier settlement, the sum had been paid:
[35] Singh-Jhikka v MMI Workers Compensation (Vic.) Ltd [1999] VCC 11
“… in respect of the plaintiff’s claim for loss of mental powers involving inability to work (representing approximately 65% permanent partial loss of use (sic) pursuant to the Table appended to s. 98) inclusive of any compensation payable pursuant to s.98(5) of the Act.”[36]
As Judge Rendit said, the effect of setting aside the earlier settlement was that Mr Singh had to repay to the insurer the sum of $55,000.00 and the costs. That was achieved by setting the total repayable against the $80,000.00 to which he was entitled under the judgment in respect of his s 98 of the AC Act.
The relevant provisions of the Social Security Act 1991 (SS Act)
[36] Singh-Jhikka v MMI Workers Compensation (Vic.) Ltd [1999] VCC 51
The relevant provisions of the SS Act were set out in the judgment of Grey J in Singh v Department of Family and Community Services.[37] I have taken them from his judgment.
[37] [2004] FCA 1685; (2004) 142 FCR 232 at [4]-[16]; 234-240
Part 3.14 of the SS Act sets out the circumstances in which a compensation payment affects the recipient’s entitlements to “compensated affected payments” under it. That necessarily means that it also provides for the circumstances in which a social security recipient must repay amounts previously paid to him or her. A general effect of Pt 3.14 is described in s 1163. So far as relevant to this proceeding, that section provides:
“(1) If a person is or may be entitled to or receives compensation, payments
of a compensation affected payment to the person or the person’s
partner might be affected under this Part.(2)...
(3)If the compensation is a lump sum compensation payment, the compensation affected payment might cease to be payable for a period (based on the amount of the lump sum) and some or all of the payments of the compensation affected payment might be repayable.”
The word “compensation” is defined in s 17(2):[38]
[38] SS Act; s 17(1)
“(2) For the purposes of this Act, compensation means:
(a)a payment of damages; or
(b)a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or
(c)a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or
(d)any other compensation or damages payment;
(whether the payment is in the form of a lump sum or in the form of a series of periodic payments) that is:
(e)made wholly or partly in respect of lost earnings or lost capacity to earn; and
(f)made either within or outside Australia.”
Section 17(2B) provides:
“For the purposes of this Act, if:
(a)a person receives more than one lump sum payment, whether simultaneously or at different times, in relation to one or more injuries arising from the same event (see subsection (5A)); and
(b)at least one of the payments is made wholly or partly in respect of lost earnings or lost capacity to earn;
the person is taken to receive one lump sum compensation payment,
made wholly or partly in respect of lost earnings or lost capacity to
earn, of an amount equal to the sum of those lump sum payments.”
Section 17(2C) qualifies s 17(2B)(a) by providing that “A reference in paragraph (2B)(a) to an injury includes a reference to a disease or condition.”
Section 17(2B) is further qualified by s 17(5A) which provides:
“(5A) For the purposes of subsection (2B) of this section and Part 3.14, the event that gives rise to a person’s entitlement to compensation for a disease, injury or condition is:
(a) if the disease, injury or condition was caused by an accident —
the accident; or(b) in any other case—the disease, injury or condition first
becoming apparent;and is not, for example, the decision or settlement under which the compensation is payable.”
In so far as it was relevant, the expression “compensation affected payment” is defined to mean:
“(a) a disability support pension; or
(b)...
(c)a social security benefit; or
(d)…
(e)a disability support wife pension
...”[39]
[39] SS Act; s 17(1)
Section 1165 provides that a compensation affected payment is not payable during a lump sum preclusion period. Section 1165(2AA) provides:
“Subject to subsection (2B), if:
(a) a person receives or claims a compensation affected payment; and
(b) the person is a member of a couple; and
(c) the person receives a lump sum compensation payment (whether
before or after the person receives or claims the compensation affected
payment) on or after 20 March 1997;no compensation affected payment is payable to the person for the new lump sum preclusion period.”
Subsection (2B) was not relevant as it applied to persons receiving parenting payment.
The “lump sum preclusion period”, to which s 1165(2AA) refers is defined in s 1165(5) to (9):
“(5) If periodic compensation payments are made in respect of the lost
earnings or lost earning capacity, the new lump sum preclusion
period is the period that:(a)begins on the day after the last day of the periodic payment
period; and(b)ends after the number of weeks worked out under subsections
(8) and (9).Note:For periodic payments period see section 17.[[40]]
[40] A “periodic payments period” is defined in s 17(1) as:(6) If a person chooses to receive part of an entitlement to periodic
compensation payments in the form of a lump sum, the new lump sum
preclusion period is the period that:(a) begins on the first day on which the person’s periodic
compensation payment is a reduced payment because of that
choice; and(b) ends after the number of weeks worked out under subsections
(8) and (9).(7)If neither subsection (5) nor (6) applies, the new lump sum
preclusion period is the period that:(a) begins on the day on which the loss of earnings or loss of
earning capacity began; and(b) ends after the number of weeks worked out under subsections
(8) and (9).(8) If a compensation lump sum is received on or after 20 March 1997, the
number of weeks in the preclusion period is the number worked out
under the following formula:Compensation part of lump sum
Income cut-out amount
Note 1:For compensation part of lump sum, see section 17.[[41]]
Note 2:For income cut-out amount, see section 17.
(9) If the number worked out under subsection (4) or (8) is not a whole
number, the number is to be rounded down to the nearest wholenumber.”[41] The expression “compensation part, in relation to a lump sum compensation payment, has the meaning given by subsections (3) and (4).” Sections 17(3) and (4) provide:
Section 1166(1) provides:
“If:
(a)a person receives a lump sum compensation payment; and
(b)the person receives payments of a compensation affected payment for
the lump sum preclusion period;the Secretary may, by written notice to the person, determine that the person is liable to pay to the Commonwealth the amount specified in the notice.”
By s 1166(2), the amount specified in the notice is the ‘recoverable amount’. The following subsections assist in determining how the ‘recoverable amount’ is to be calculated. Among those sections is s 1166(4A):
“If:
(a)the person is a member of a couple; and
(b) the person receives a lump sum compensation payment before 20
March 1997; and(c) the person’s partner receives a compensation affected payment (other
than a parenting payment), a youth training payment, or a
compensation affected pension under the Veterans’ Entitlements Act,
for the old lump sum preclusion period;the recoverable amount is equal to the smaller of the following amounts:
(d)the compensation part of the lump sum compensation payment;
(e)the sum of:
(i) the payments of the compensation affected payment made to the
person for the old lump sum preclusion period; and(ii) the payments of the compensation affected payment and (if
applicable) the payments of youth training payment or a
compensation affected pension under the Veterans’
Entitlements Act made to the person’s partner for the old lump
sum preclusion period.”Section 1166(4C) provides:
“If:
(a)the person is a member of a couple; and
(b) the person receives a lump sum compensation payment on or after
20 March 1997;the recoverable amount is equal to the smaller of the following amounts:
(c)the compensation part of the lump sum compensation payment;
(d) the sum of the payments of the compensation affected payment made to
the person for the new lump sum preclusion period.”
Section 1168 of the Social Security Act contains provisions for the reduction of the rate of a person’s compensation affected payment while the person, or the person’s partner, receives a series of periodic compensation payments. The manner and extent of the reductions are calculated in accordance with the provisions of s 1168.
Section 1170(1) provides:
“If:
(a)a person receives a series of periodic compensation payments; and
(b) the person receives payments of a compensation affected payment for
the periodic payments period; and(c) the person was not, at the time of the event that gave rise to the
entitlement of the person to the compensation, receiving a
compensation affected payment; and(d) the payments referred to in paragraph (b) have not been reduced
under section 1168;the Secretary may, by written notice to the person, determine that the person is liable to pay to the Commonwealth the amount specified in the notice.”
By s 1170(2), the amount specified in the notice is described as the “recoverable amount”. It is worked out under the subsequent subsections of s 1170. Among them is s 1170(4A), which provides:
“Subject to subsection (4B), if:
(a)the person is a member of a couple; and
(b) the person’s partner receives a compensation affected payment (other
than parenting allowance), or a compensation affected pension under
the Veterans’ Entitlements Act, for the periodic payments period;the recoverable amount is equal to the smaller of the following amounts:
(c)the sum of the periodic compensation payments;
(d)the sum of:
(i) the payments of the compensation affected payment (excluding
any payments of parenting allowance) made to the person for
the periodic payments period; and(ii) the payments of the compensation affected payment (excluding
any payments of parenting allowance) and (if applicable) the
payments of youth training allowance or compensation affected
pension under the Veterans’ Entitlements Act made to the
person’s partner for the periodic payments period.’Subsection (4B) is not relevant, because it deals with persons in receipt of parenting payment.
Section 1174(1) provides:
“If:
(a)a compensation payer:[[42]]
(i) is liable to pay compensation to a person for a disease, injury
or condition of the person; or(ii) has determined that a payment by way of compensation is to be
made to a person in respect of a disease, injury or condition of
the person; and(b) the person receives or claims a compensation affected payment for the
periodic payments period or the lump sum preclusion period;the Secretary may give written notice to the compensation payer that the Secretary proposes to recover the amount specified in the notice from the compensation payer.”
[42] A compensation payer means:
Section 1174(3) provides that the amount specified in the notice is the ‘recoverable amount’ and is worked out under ss 1174(4), (5) and (6). Section 1174(6) was of particular relevance. It provides:
“If:
(a)the person claiming compensation is a member of a couple; and
(b) the person’s partner receives or claims a compensation affected
payment for either:(i)the periodic payments period; or
(ii) if a lump sum compensation payment is received by the person
before 20 March 1997—the old lump sum preclusion period;the recoverable amount is equal to the smallest of the following amounts:
(c) the sum of:
(i) the payments of the compensation affected payment payable to
the person; and(ii) the payments of the compensation affected payment and (if
applicable) amounts of youth training allowance or
compensation affected pension under the Veterans’
Entitlements Act payable to the person’s partner;for the periodic payments period or old the [sic] lump sum preclusion
period;(d) the compensation part of the lump sum payment or the sum of the
amount of the periodic compensation payments;(e) the maximum amount that the compensation payer is liable to pay to
the person in relation to the matter at any time after receiving:(i) a preliminary notice under section 1172 in relation to the
matter; or(ii) if the compensation payer has not received a preliminary
notice—the recovery notice under this section in relation to
to the matter.”
Centrelink’s decision
Centrelink recovered a total sum of $88,633.34 from the Insurer. On 4 November 1999, a delegate of the Secretary of the Department of Family and Community Services decided to cancel payments made to each of Mr Singh and Ms Kaur. The decision was made on the basis that Part 3.14 of the SS Act requires repayment of social security payments if a recipient receives periodic compensation payments (e.g. weekly workers’ compensation payments) for the same period. The repayment was worked out by comparing the two amounts and recovering the smaller of them. The effect of receiving periodic compensation payments was that they reduced social security payments otherwise payable in the same period on a dollar for dollar basis. Centrelink wrote to Mr Singh on 4 November 1999 to advise him of the decision. A decision was made that Mr Singh and Ms Kaur were to be treated as members of a couple.
Review by the Social Security Appeals Tribunal
The SSAT decided that the central issue that it had to decide was whether, as Mr Singh submitted to it, he and Ms Kaur were not a member of a couple. In its decision dated 15 March 2000, the SSAT set aside Centrelink’s decision. It remitted it to Centrelink for reconsideration in accordance with its direction that Mr Singh and Ms Kaur had not been members of a couple since 29 October 1996. The SSAT also affirmed the decision to cancel Ms Kaur’s wife pension as she was not a member of a couple and so not entitled to it.
Centrelink’s position following SSAT’s decision
In a letter dated 30 May 2000, Centrelink traced the history of the matter before setting out its calculations based on the SSAT’s decision. It first separated the two types of payment that Mr Singh received as a result of his action in the County Court.
(1)First, it dealt with the moneys that Mr Singh had been paid under s 98 of the AC Act:
“You received a lump sum compensation payment of $55,153 on 10 March 1995. A further $24,847 was paid on 22 November 1999, bringing the total to $80,000. These payments were made under Section 98 Workcover Table of Maims in respect of your impairment and are treated for social security purposes under the provisions of the income and assets test in assessing social security payments. (T30 page 99)”[43]
(2)Second, and quite separately from the first, it dealt with the payments of weekly compensation paid to Mr Singh:
“His Honour Judge Rendit delivered a Ruling on 20 October 1999 and ordered weekly compensation payments to be made to you from 1 September 1992 to 20 October 1999 at the rate of 90% of pre-injury average weekly earnings, and for such payments to continue in accordance with law. (T15 page 45-49)
As a result of this Ruling total arrears of $167,686.60 of weekly compensation payments were payable and Centrelink required the insurer to pay $88,633.34 to Centrelink being a refund of payments that had been made to yourself and your wife during such period. (T18 page 57 and T16-T18 pages 50-66)
Part 3.14 of the Social Security Act 1991 requires a repayment if you received periodic compensation payments (eg weekly worker’s compensation payments) for the same period that you have also received social security payments. The repayment amount is worked out by looking at the total amount of social security payments made to you, and your wife, and comparing this with the total amount of compensation paid to you both for the same period. Centrelink recovers the smaller of these amounts. Each dollar of periodic compensation reduces social security payments by one dollar. As you, and your wife, received social security payments of $88,633.34 for the same period $88,633.34 must be paid back to Centrelink. You were notified of this decision on 4 November 1999 (T22 page 83)”
[43] The T documents to which the letter refers would have been lodged in relation to Mr Singh’s first application to the Tribunal. I have copies of those documents only in so far as Mr Singh has attached copies of them to his current application.
Centrelink also explained that, when an Insurer is ordered to pay arrears of weekly payments for a specified period, s 1168 of the SS Act requires recovery of social security payments made to both the recipient of the compensation and his or her partner. Lump sum compensation payments have been treated differently since 20 March 1997. Social security payments that happen to have been made to a compensation recipient’s partner during the compensation recipient’s preclusion period are not required to be repaid.
The effect of the SSAT’s decision regarding the status of the relationship between Mr Singh and Ms Kaur was:
“The effect of the Social Security Appeal Tribunal’s decision is that up until 29 October 1996 you and Ms Kaur were treated as a member of a couple, and from that date you are to be treated as not members of a couple. Accordingly the payments made to Ms Kaur up to 29 October 1996 are recoverable from your arrears of weekly compensation payments and Ms Kaur’s wife’s pension is cancelled from 29 October 1996 as she is no longer entitled to wife’s pension from that date.”[44]
The revised figure that would be recoverable from Mr Singh’s arrears of weekly compensation payments if Mr Singh and Ms Kaur were not a member of a couple was $65,226.70.
[44] Centrelink letter of 30 May 2000 at [17]
Application to the Tribunal
Mr Singh and Ms Kaur applied separately to the Tribunal for review of the SSAT’s decision of 15 March 2000. Ms Kaur subsequently withdrew her application. In a decision dated 28 September 2000, Senior Member Handley adjourned the hearing of Mr Singh’s application in order to obtain evidence from Ms Kaur as the decision also affected her interests.[45]
[45] Re Singh and Department of Family and Community Services; 28 September 2000; V2000/0418
Senior Member Handley subsequent delivered oral reasons for his decision to set aside the decision of the SSAT after finding that Mr Singh and Ms Kaur had not been living separately and apart from each other on a permanent or indefinite basis. He reached that decision on 30 October 2000.
Appeal to the Federal Court
Mr Singh lodged an appeal to the Federal Court against Senior Member Handley’s decision. It appears from a later judgment of the Full Court of the Federal Court[46] that Mr Singh consenting to the dismissal of his appeal with no order as to costs in or about December 2000. He subsequently applied for revocation of that consent order but his application was refused by a single Judge. Mr Singh appealed against that judgment to the Full Court but it dismissed his appeal finding that no ground existed under the general law for interfering with the contract of compromise that he had reached with the respondent. The Full Court delivered its judgment on 21 September 2001.
[46] Singh v Secretary, Department of Family and Community Services [2001] FCA 1281; Beaumont, Kiefel and Hely JJ
Application to the SSAT
On 13 May 2002, the SSAT reviewed the delegate’s decision of 4 November 1999 that did not relate to whether or not Mr Singh and Ms Kaur were a member of a couple. It affirmed the delegate’s decision to recover the sum of $88,633.34 from Mr Singh being the disability support pension, sickness allowance and wife pension paid to Mr Singh and Ms Kaur between 28 October 1991 and 26 October 1999.
Application to the Administrative Appeals Tribunal
Mr Singh applied to the Tribunal in 2002 for review of the SSAT’s decision of 13 May 2002. Senior Member Friedman, as he now is, said in his reasons for decision dated 17 December 2002:
“20. The Tribunal finds that the decision of the County Court in relation to the Workcover appeal resulted in the liability of the defendant to make weekly payments totalling $129,382.92, which represented arrears of weekly payments to the applicant. The Tribunal accepts that in some circumstances settlements take into account loss of past earnings as a [sic] well as loss of future earnings. The Tribunal accepts the submission by Mr Baker that in this case the arrears payment made to the applicant was received as a periodic compensation payment wholly or partly in respect of lost earnings or capacity to earn (s17(2)(e) of the Act). The decision of the Federal Court of Australia in Secretary, Department of Social Security v Cunneen [1997] FCA 1033; (1997) 48 ALD 251 is authority for the proposition that arrears of periodic compensation do not lose their character merely because they are paid as a total amount. Therefore the Tribunal accepts Mr Baker's submission that the specific provisions of s17(4A) of the Act override the more general provisions in other subsections, and payment of the arrears is not a lump sum compensation payment.
21. In respect of amendments to compensation preclusion periods, the Tribunal finds that as at the date of decision compensation affected payment in s17(1) of the Act included DSP and wife pension, so that payments received by the applicant and Ms Kaur were subject to adjustment after arrears of periodic payment were received. The sum paid to Ms Kaur as wife pension is an included payment, recoverable under s1170(4A) and s1174(6) of the Act. The Tribunal rejects the submission by the applicant that wife pension could not be recovered after March 1997. From that date the receipt of a lump sum only affected the entitlement to social security of the person receiving compensation, not that person’s partner. However these legislative changes did not affect the recovery of periodical compensation, whether or not received as arrears.”[47]
[47] Re Singh and Secretary to the Department of Family and Community Services [2002] AATA 1308
Mr Singh’s dissatisfaction with the decision
Senior Member Friedman’s characterisation of the monies awarded by the County Court as payments of periodical compensation and not as a lump sum compensation payment lies at the heart of Mr Singh’s dissatisfaction with the decision and underpins his subsequent actions. The characterisation as one or the other was important because the effect of the SSA on social security payments received by Mr Singh and Ms Kaur and their obligation to repay them depended on the characterisation. Mr Singh submitted that the sum of $80,000.00 of the total of $129,382.92 should have been treated as having been paid for his lost earnings or lost capacity to earn so that ss 1168, 1169 and 1170 of the SS Act were not applicable. That sum of $80,000.00 should, instead, have been treated as a lump sum compensation payment under s 17(2)(e) of the Act and should have been used to calculate a lump sum preclusion period under s1165.
Appeal to the Federal Magistrates’ Court and then the Federal Court
The then Federal Magistrates’ Court (FMC) dismissed Mr Singh’s appeal from Senior Member Friedman’s decision. On appeal to the Federal Court from the FMC, Gray J also dismissed the appeal. That was in 2005. His Honour summarised Mr Singh’s argument in the following way:
“31 The appellant’s submissions to the Court on the appeal can be summarised as follows. Both of the lump sum compensation payments of $129,382.92 and $80,000 (from which was deducted the $55,153 received under the earlier settlement) were awarded to him for the same event, under the Accident Compensation Act, being the injury he suffered on 2 January 1991. The payments fell within the definition of ‘compensation’ as they were made wholly or partly in respect of lost earnings or lost capacity to earn. Accordingly, s 17(2B) of the Social Security Act applied, so that the appellant was taken to receive one lump sum compensation payment, made wholly or partly in respect of lost earnings or lost capacity to earn, of an amount equal to the sum of those lump sum payments. As a consequence, s 17(3) applied, and the compensation part of the lump sum compensation payment was 50 per cent. Applying s 1165 to this aggregated payment, which was received after 20 March 1997, resulted in the calculation of a new lump sum preclusion period. Pursuant to s 1165(2AA), no compensation affected payment was payable for the new lump sum preclusion period. The appellant contended that he chose to receive part of an entitlement to periodic compensation payments in the form of a lump sum, so that the new lump sum preclusion period had to be calculated by reference to s 1165(6), and s 1165(8). According to the appellant, Centrelink should have applied the formula in s 1165(8), and divided the compensation part (50 per cent) of the lump sum compensation payment by the income cut out amount, to determine the number of weeks in the new lump sum preclusion period and to recover the compensation affected payments for the new lump sum preclusion period. Instead, Centrelink calculated the preclusion by dividing that part of the lump sum payment for lost earning or lost capacity to earn and not treating the lump sum payment of periodic compensation payments as being subject to a lump sum preclusion period, in order to reclaim the wife pension. This was done by treating the lump sum compensation payment as arrears of weekly payments, to reduce the compensation affected payment for the periodic payment period under s 1168(1) and to recover under s 1170(4A). The appellant contended that it was wrong to apply s 17(4A) for this purpose. Both the Tribunal and the federal magistrate were wrong to follow this reasoning.
32 The appellant relied on Cunneen [Secretary, Department of Social Security v Cunneen [1997] FCA 1033; (1997) 48 ALD 251; Foster J] as authority for the proposition that a payment of arrears of periodic compensation is a lump sum compensation payment if a person has chosen to receive the money as a lump sum as part of a settlement made after February 1988 of a claim stemming from a disease, injury or condition. He submitted that he had chosen to receive the money as a lump sum as part of settlement of his claim to periodic compensation payments from 1 September 1992 to 20 October 1999, so that the sum should be regarded as a lump sum compensation payment as defined by s 17(2)(e) of the Social Security Act.”[48]
[48] Singh v Secretary, Department of Family and Community Services [2004] FCA 1685; (2004) 142 FCR 232 at 243-244
Gray J decided that the FMC and the Tribunal should have aggregated the two sums received by Mr Singh i.e. the arrears of weekly payments and the sum of $80,000.00 awarded under s 98 of the AC Act. The fact that neither had done that had not affected their final decisions. His Honour continued:
“42. This does not necessarily mean that the rest of the appellant’s reasoning must be accepted. I do not accept that s 17(3)(a) or (ab) operated to require that only 50 per cent of the total sum should be treated as the compensation part of the lump sum compensation payment. Both of those paragraphs apply to cases that have been settled on the basis of the payment of a lump sum. They apply an arbitrary rule that, where a lump sum settlement means that there is no disclosure of the amount of the lump sum that is in respect of lost earnings or lost earning capacity, then half of the lump sum is to be treated as being paid in respect of lost earnings or lost capacity to earn. Where the payments have been made in consequence of a judgment of a court, and the specific calculations have been made or can be made, those provisions are inapplicable. They apply only to payments made in settlement of claims, and to elections to receive entitlements to periodic payments in lump sum form, respectively. Payments mandated by judgments do not answer these descriptions. Nor am I able to accept the appellant’s contention that he had ‘chosen to receive’ his entitlement to periodic compensation payments in the form of a lump sum, within the meaning of s 17(3)(ab)(i). The County Court had ordered the payment to him of arrears of periodic compensation payments, and the order could not be satisfied other than by payment of a lump sum.
43. The exclusion of s 17(3)(a) and (ab) from the process of reasoning brings into play s 17(3)(b) and s 17(4). Section 17(4) provides a formula for calculating the amount of the lump sum compensation payment for the purposes of s 17(3). It is applicable to the present case, because the appellant received periodic compensation payments and, after receiving those payments, received a lump sum compensation payment, as a result of which he became liable to repay an amount equal to the periodic compensation payments received. Because s 17(3)(a) and (ab) did not apply, it fell to the respondent, pursuant to s 17(3)(b), to determine how much of the lump sum compensation payment was in respect of lost earnings or lost capacity to earn. In fact, the County Court had already made this determination, so it would be unlikely that the respondent would take a different view.
44. The appellant’s liability to repay an amount equal to the periodic compensation payments received arose pursuant to s 1170(1) and (4A) of the Social Security Act. The sum of the periodic compensation payments exceeded the sum of the payments of disability support pension, social security benefit (which includes sickness benefit) and disability support wife pension (all of which are included in the definition of ‘compensation affected payment’ in s 17(1)). The recoverable amount fixed by s 1170(4A)(d) therefore amounted to the whole of the payments made under the Social Security Act to the appellant and Ms Kaur during the periodic payments period. It was therefore open to the Secretary to give a notice to the Victorian Workcover Authority, pursuant to s 1174 of the Social Security Act, seeking to recover the amount from the Victorian Workcover Authority as a compensation payer. In that case, s 1174(6) operated to require the recoverable amount to be calculated in accordance with its provisions. It should be noted that s 1174(6) contains no reference to a new lump sum preclusion period. This is in contrast to s 1174(4) and (5), neither of which is applicable to the present case. Section 1174(4) is inapplicable because the appellant was at all times a member of a couple. Section 1174(5) is inapplicable because Ms Kaur received a compensation affected payment for the periodic payments period.
45. Had it been necessary to calculate a new lump sum preclusion period, pursuant to s 1165, the relevant subsections would be subss (2AA) and (8). This is because the aggregated lump sum was received after 20 March 1997. The purpose of a new lump sum preclusion period would only be to fix a period after the payment of an aggregated lump sum during which payments of social security could not be made, or would be required to be reduced to the extent of the element of the lump sum designed to compensate for loss of future earning capacity. Those provisions are inapplicable here, because the appellant continued to receive periodical compensation payments in accordance with the judgment of the County Court after the date of that judgment. It was this ongoing payment that rendered him and Ms Kaur ineligible to receive further payments of social security after the date of the judgment. The appellant cannot therefore draw any comfort from the provisions relating to the calculation of lump sum preclusion periods in the present case.”[49]
[49] [2004] FCA 1685; (2004) 142 FCR 232 at [42]-[45]; 246-248
Mr Singh unsuccessfully sought leave to appeal to the High Court but then filed a notice of motion in the Federal Court seeking to set aside the reasons for judgment and the orders made by Gray J on 23 December 2004. His Honour dismissed that notice of motion filed on 30 September 2005 on the basis that there were no grounds for setting aside the order.[50]
[50] Singh v Secretary, Department of Family and Community Services [2005] FCA 1625
Ryan J dismissed a further notice of motion seeking the same relief. He did so on 8 March 2006 and gave his reasons: Singh v Secretary, Department of Family and Community Services.[51]
[51] [2006] FCA 189
Social Security Appeals Tribunal’s decision dated 22 March 2006
On 22 March 2006, the SSAT refused to review a decision made by an Authorised Review Officer (ARO) made on 19 December 2005. The ARO had affirmed a decision of a delegate of the Secretary to decline Mr Singh’s request that the compensation debt be recalculated. Mr Singh had made that request on 31 October 2005 following the judgment of Gray J.[52]
[52] See Senior Member Handley’s reasons for decision in Re Singh v Secretary, Department of Employment and Workplace Relations [2006] AATA 584 at [1] and [19]
Administrative Appeals Tribunal
On 3 July 2006, Senior Member Handley considered Mr Singh’s application for review of the SSAT’s decision. The respondent had sought orders under s 42B of the AAT Act. After considering the provision, the principles that must be applied and Mr Singh’s application, Senior Member Handley decided that Mr Singh’s application was frivolous or vexatious. He also made the direction under s 42B(1)(b), to which I have referred. Senior Member Handley expressly limited his direction to 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 because:
“… Mr Singh may be in dispute with these entities [Departments and Centrelink] in the future in relation to some other totally unrelated matter over which he may well have a lawful entitlement. It would be wrong to exclude him from exercising any rights he may have in the future in those circumstances.”[53]
[53] Re Singh v Secretary, Department of Employment and Workplace Relations [2006] AATA 584 at [45]
Appeal to the Federal Court
Mr Singh’s appeal to the Federal Court from Senior Member Handley’s decision led to an amendment to the direction made under s 42B(1)(b) but was otherwise dismissed by Weinberg J.[54] Following its amendment, the direction read:
“The applicant must not without leave of the Tribunal make any application to the Tribunal with respect to recovery of sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999.”[55]
[54] Singh v Secretary, Department of Employment & Workplace Relations [2006] FCA 1381
[55] [2006] FCA 1381 at [45]; words added by Weinberg J shown in bold letters.
Mr Singh lodged an appeal against Weinberg J’s judgment. Sundberg J ordered that Mr Singh pay into court the sum of $10,000.00 as security for costs. The matter was stayed for 28 days to enable him to make the payment but, if he did not, would be dismissed.[56]
[56] Singh v Secretary, Department of Employment and Workplace Relations [2007] FCA 90
Among other orders, Mr Singh applied for Sundberg J’s order to be set aside. His application was dismissed on 11 July 2208 by Middleton J.[57]
[57] Singh v Secretary, Department of Employment and Workplace Relations [2008] FCA 1061
I certify that the seventy five preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ……[sgd].................................................
Leah Berardi, Associate
Date of Hearing 2 September 2014
Date of Decision 25 September 2014
Self-represented Applicant Mr M Singh
“(a) in relation to a series of periodic payments—the period in respect of which the payments are, or are to be, made; and
(b) in relation to a payment of arrears of a series of periodic payments—the period in respect of which those periodic payments would have been made if they had not been made by way of an arrears payment.”
“(3) For the purposes of this Act, the compensation part of a lump sum
compensation payment is:
(a) 50% of the payment if the following circumstances apply:
(i) the payment is made (either with or without admission
of liability) in settlement of a claim that is, in whole or
in part, related to a disease, injury or condition; and
(ii) the claim was settled, either by consent judgment being
entered in respect of the settlement or otherwise, on or
after 9 February 1988; or
(ab) 50% of the payment if the following circumstances apply:
(i)the payment represents that part of a person’s entitlement to periodic compensation payments that the person has chosen to receive in the form of a lump sum; and
(ii) the entitlement to periodic compensation payments
arose from the settlement (either with or without
admission of liability) of a claim that is, in whole or in
part, related to a disease, injury or condition; and
(iii) the claim was settled, either by consent judgment being
entered in respect of the settlement or otherwise, on or
after 9 February 1988; or
(b) if those circumstances do not apply—so much of the payment
as is, in the Secretary’s opinion, in respect of lost earnings or
lost capacity to earn.
...
(4) Where a person:
(a) has received periodic compensation payments; and
(b) after receiving those payments, receives a lump sum
compensation payment (in this subsection called the LSP);
and
(c) because of receiving the LSP, becomes liable to repay an
amount (in this subsection called the Repaid Periodic
Compensation Payment—RPCP) equal to the periodic
compensation payments received;
then, for the purposes of subsection (3), the amount of the lump sum
compensation payment is:
LSP — RPCP”.
(a) a person who is liable to make a compensation payment; or
(b) an authority of a State or Territory that has determined that it
will make a payment by way of compensation to another
person, whether or not the authority is liable to make the
payment.”: SS Act; s 17(1)