Singh and Administrative Appeals Tribunal (Social services second review)
[2016] AATA 368
•2 June 2016
Singh and Administrative Appeals Tribunal (Social services second review) [2016] AATA 368 (2 June 2016)
Division: GENERAL DIVISION
File Number: 2016/1190
Re: MOHINDER SINGH
APPLICANT
And:ADMINISTRATIVE APPEALS TRIBUNAL
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 2 June 2016
Place Melbourne
The Tribunal decides:
To refuse the applicant’s application lodged on 29 February 2016 for the revocation or variation of Senior Member Handley’s direction made on 3 July 2006 that he:
“… 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.”
………[sgd]…………….
Deputy President
CATCHWORDS – SOCIAL SECURITY – application dismissed as frivolous or vexatious and applicant directed not to make certain applications 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
PRACTICE AND PROCEDURE – power to revoke or vary a direction that applicant must not without leave of the Tribunal make certain applications – whether power removed on repeal of provision expressly conferring that power – need to construe section in light of Acts Interpretation Act 1901.
LEGISLATION
Acts Interpretation Act 1901 ss 1A, 33(3)
Administrative Appeals Tribunal Act 1975 ss 25(1), 42(1), 42B, 42B(1), 42B(1)(a), 42B(1)(b), 42B(2), 42B(3), 43
Administrative Decisions (Judicial Review) Act 1977
Tribunals Amalgamation Act 2015
Workers’ Compensation Act 1958 (Vic) s 98
CASES
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1
Edenmead Pty Ltd v Commonwealth of Australia [1984] FCA 368; (1984) 4 FCR 348; 59 ALR 359
Minister of Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615
Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130; (2015) 234 FCR 207; 326 ALR 677
Phytologic Pty Ltd v Secretary, Department of Health and Ageing [2012] FCA 1407; (2012) 209 FCR 48; 299 ALR 263; 133 ALD 84Re Singh and Administrative Appeals Tribunal [2014] AATA 701
Re Singh and Secretary to the Department of Family and Community Services [2002] AATA 1038
Re Singh and Secretary, Department of Employment and Workplace Relations [2006] AATA 584; (2006) 90 ALD 789
Singh v D.F.C.S. [2003] FMCA 566
Singh v Secretary, Department of Employment & Workplace Relations [2006] FCA 1381; (2006) 235 ALR 297; 43 AAR 469; 95 ALD 569
Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 833; (2011) 282 ALR 56; 55 AAR 410; 122 ALD 114
OTHER MATERIALS
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
Revised Explanatory Memorandum to the Tribunals Amalgamation Bill 2015
REASONS FOR DECISION
On 3 July 2006, Senior Member Handley decided that Mr Mohinder Singh’s application to review a decision of the Social Security Appeals Tribunal (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[1]] with respect to recovery of sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999.”[2]
[1] Words added by Weinberg J on appeal from Senior Member Handley’s decision: Singh v Secretary, Department of Employment & Workplace Relations [2006] FCA 1381; (2006) 235 ALR 297; 43 AAR 469; 95 ALD 569 at [45]; 304-305; 477; 576-577
[2] Re Singh and Secretary, Department of Employment and Workplace Relations [2006] AATA 584; (2006) 90 ALD 789
Mr Singh lodged an application on 29 February 2016 seeking to have Senior Member Handley’s direction revoked on the basis that it had been made without power and so unlawfully. He could not, he submitted for revocation of the directions because, since its amendment by the Tribunals Amalgamation Act 2015 (TA Act), s 42B has not permitted the Tribunal to vary or discharge a direction it has previously made. The direction had been made unlawfully, Mr Singh submitted, because Senior Member Handley had not correctly followed the steps set out in s 43. While the direction remains in place, it has a globalised operation and it prevents him from commencing proceedings in any court including the Federal Court and the County Court. He needs to have the direction set aside so that he can take steps to recover the sum of $55,000 from an insurer. He alleges that a sum of money was recovered from him by fraudulent misrepresentation and he is entitled to recover it under s 98 of the Workers’ Compensation Act 1958 (Vic) (WCA). As I understand it, the insurer paid that sum, or the greater sum of $88,633.34, to Centrelink in payment of the amount of Disability Support Pension (DSP) paid in respect of the same period for which compensation was awarded to Mr Singh under the WCA.
I have decided that, despite its repeal and substitution by the TA Act, s 42B of the AAT Act continues to permit the Tribunal to revoke or vary a direction it has previously made under that section. Its power is found in reading s 42B with s 33(3) of the Acts Interpretation Act 1901 (AI Act). I have decided not to discharge the direction or to vary it. My reasons appear in the following paragraphs.
BACKGROUND
In my previous decision,[3] I summarised the events that have led to Mr Singh’s making
[3] Re Singh and Administrative Appeals Tribunal [2014] AATA 701
applications to this Tribunal:
“ 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).
2. 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.
3. 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.[4] 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.
4. 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. … 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 …] with respect to recovery of sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999.’[5]”[6]
[4] 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.
[5] Re Singh and Secretary, Department of Employment and Workplace Relations [2006] AATA 584
[6] [2014] AATA 701 at [1]-[4] (Two Footnotes omitted)
SENIOR MEMBER HANDLEY’S DIRECTION
At the time Senior Member Handley made the direction in 2006, s 42B stated:
“(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 matters leading to his making this direction are set out in Senior Member Handley’s reasons for making it:
“ The principal concern of Mr Singh is to re-litigate a decision made with respect to compensation recovery. That has been the subject of two decisions made by Centrelink, a decision of the SSAT, a decision of the AAT in proceedings in V2002/580, in proceedings before the Federal Magistrates’ Court and on appeal to the Federal Court. Ultimately the High Court refused to grant leave to appeal. Gray J did decide that there was an error made by the AAT and the Federal Magistrate but those errors did not affect the overall outcome of the appeal. Accordingly, those matters have been the subject of previous proceedings for which decisions have been made and over which Mr Singh has been unsuccessful. The litigation with respect to those issues has ended and cannot, as a matter of law, be enlivened.
The Federal Court has decided that the repetitious appeals lodged by Mr Singh have no merit and has decided, by the Order of Ryan J on 8 March 2006, that the most recent application to that Court should not be accepted because it was an abuse of process. The decision sought to be reviewed by Mr Singh has no legitimacy because it has been the subject of previous decisions by this Tribunal and the Federal Court. There is a continuing attempt by Mr Singh ‘to use the Court’s processes to circumvent its decisions’ and the proceedings, even at this stage, amount to the wasting of public resources and harassment of persons who are involved or who are absorbed into the litigation …”[7]
[7] [2006] AATA 584; (2006) 90 ALD 789 at [41]-[42]; 795
Senior Member Handley was careful to limit the terms of his direction to applications he might wish to make to the Tribunal with respect to the recovery of sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999. On appeal, Weinberg J added three words to the direction to ensure that it was, on its face, clearly limited in that way.[8] His Honour’s words reinforced the clear intent of the direction. As Senior Member Handley had explained in his reasons for decision:
“ If it is intended by Mr Singh to bring proceedings of a type which, by this direction, will be prohibited except by leave, it would be expected that the Respondent is likely to be the Secretary, Department of Employment and Workplace Relations or the Secretary, Family and Community Services and Indigenous Affairs. It is also likely that Centrelink would be the primary decision-maker. However, Mr Singh may be in dispute with those entities 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.”[9]
[8] See [1] above
[9] [2006] AATA 584; (2006) 90 ALD 789 at [45]; 795-796
THE SCOPE AND EFFECT OF SENIOR MEMBER HANDLEY’S DIRECTION
The scope and effect of Senior Member Handley’s direction is very limited. It is limited to any application that he might wish to make with respect to sickness allowance, disability support pension or wife pension paid between the dates of 28 October 1991 and 26 October 1999. It does not extend to other applications he might lodge in the Tribunal and nor does it extend to applications that he might wish to make in other courts such as the Federal Court or the County Court.
Mr Singh drew my attention to s 42B(2). I agree with him that it provides that a direction made under s 42B(1)(b) “… has effect despite any other provision of this Act or a provision of any other Act.” Section 42B(2) means that provisions such as s 25 of the AAT Act, when read with a provision such as s 142 of the Social Security (Administration) Act 1999 (SSA Act), do not prevail over a direction made by the Tribunal under s 42B(1)(b). Section 25(1) of the AAT Act 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. Section 142(1) of the SSA Act provides that applications may be made to the Tribunal for review of a decision made by the Secretary, Chief Executive Officer (ARO) or an Authorised Review Officer under ss 126 or 135.
Therefore, if Mr Singh were to lodge a claim with Centrelink for a benefit, he would, on the face of ss 25(1) of the AAT Act and s 142(1) of the SSA Act, be entitled to apply to the Tribunal for review of the decision made by a delegate of the Secretary or Chief Executive Officer or by an ARO on his claim if he were not happy with it. If, however, the benefit he sought was with respect to a sickness allowance, disability support pension or wife pension relating to the period between 28 October 1991 and 26 October 1999, he would be prevented by the terms of Senior Member Handley’s direction from making that application without first obtaining the Tribunal’s leave. That follows from the fact that s 42B(2) provides that the direction has effect despite any other provision of the AAT Act or of any other Act being, in this example, the SSA Act.
If Mr Singh were to lodge a claim for another type of benefit, such as an age pension or even for a disability support pension relating to a period other than the period between 28 October 1991 and 26 October 1999, Senior Member Handley’s direction would not prevent him from lodging an application for review of the decision made on his claim. The decision would fall outside its terms.
For the same reasons, Senior Member Handley’s direction does not prevent Mr Singh from lodging proceedings in one of the Victorian State courts including the County Court. Proceedings of that sort do not fall within the description of proceedings set out in the direction. The direction is limited to proceedings in the Tribunal and proceedings in a court fall outside its terms.
The reasoning applies also to proceedings in the Federal Court. The Federal Court hears appeals from decisions of the Tribunal but an application of the sort lodged in the Tribunal for review of a decision made by an agency is not permitted to be lodged in the Court. Senior Member Handley’s direction does not prevent Mr Singh from commencing proceedings in the Tribunal.
DIRECTION IN THE FEDERAL COURT
What does stop Mr Singh from commencing proceedings in the Federal Court is not the direction made by Senior Member Handley but the following order made by Bromberg J in Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs:[10]
“1. The Respondent, Mohinder Singh may not institute any proceeding in the Federal Court of Australia without leave of the Court.
2.This proceeding be relisted on a date to be fixed for the purpose of hearing further submissions from the parties on the question of costs and as to whether an order should be made that any extant proceeding instituted by the Respondent against the Applicants not continue without leave of the Court.”
[10] [2011] FCA 833; (2011) 282 ALR 56; 55 AAR 410; 122 ALD 114
In one sense, the terms of this order are much broader than the direction made by Senior Member Handley. Not only do they refer to matters of the type immediately before Bromberg J at the time he made the order, it extends to “any proceeding in the Federal Court”. Mr Singh may not institute any proceeding in the Federal Court unless he has the leave of the Court to do so. That order is the reason why Mr Singh finds himself unable to institute proceedings in the Federal Court. Senior Member Handley’s direction has nothing to do with his difficulties. This Tribunal has no power to influence the order made by the Federal Court.
PROCEEDINGS IN THE COUNTY COURT
For the reasons I have given, Senior Member Handley’s direction made on 3 July 2006 does not prevent, or any way impede, Mr Singh’s instituting proceedings in the County Court. Whether he is entitled to do so is an entirely different issue and one for the County Court to consider.
DOES THE TRIBUNAL HAVE POWER TO VARY OR DISCHARGE THE DIRECTION?
With effect from 1 July 2015, s 42B of the AAT Act has provided that:
“(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious or misconceived or lacking in substance; or
(b)has no reasonable prospect of success; or
(c)is otherwise an abuse of the process of the Tribunal.
(2)If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction 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.
(3)The direction has effect despite any other provision of this Act or any other Act.”
Mr Singh submits that the repeal of s 42B(3) as it was formerly drafted and the omission of its substance from the redrafted s 42B(3) means that the Tribunal no longer has power to discharge or vary its previous direction made under s 42B(1). I can understand why Mr Singh would think this for, on its face, that is what the history of s 42B would suggest. What Mr Singh has overlooked, and understandably so, is that, in omitting to confer the power to discharge or vary the direction, Parliament has assumed that s 33(3) of the AI Act confers that power. Section 33(3) provides:
“Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.”
That this was indeed Parliament’s intention is clear from the Revised Explanatory
Memorandum that accompanied the Tribunals Amalgamation Bill 2015 when it said:
“554. Existing subsection 42B(3), which provides that the Tribunal may discharge or vary such a direction, has not been reproduced as the ability of the Tribunal to vary or revoke its direction is made clear by subsection 33(3) of the Acts Interpretation Act.”
I understand that such an approach is consistent with the statement in the Overview in s 1A of the AI Act to the effect that:
“This Act is like a dictionary and manual to use when reading and interpreting Commonwealth Acts and instruments made under Commonwealth Acts.
The definitions and many of the interpretation rules are aimed at making Commonwealth legislation shorter, less complex and more consistent in operation.
…”
I do not agree that this approach is desirable in the case of an enactment such as the AAT Act, which shapes and defines the Tribunal and its powers. It is a document to which reference is made constantly by those who come to it. Given that, like the courts, more and more people come to the Tribunal without the benefit of legal representation, it would be helpful if provisions clearly stating the limits of the Tribunal’s power could be retained so that the AAT Act could be read and understood as a stand-alone document. As it is not a stand-alone document, I will explain how it is that the Tribunal has the power to vary or rescind a direction made under s 42B and that requires me to look first at the way in which s 33(3) works.
I will begin with what is meant by a “legislative instrument” if only to explain why a direction made by the Tribunal under s 42B cannot be such an instrument. It is not a “legislative instrument” because, to adopt the words of the Full Court in Mulligan v Virgin Australia Airlines Pty Ltd,[11] it has not altered the content of the law or purported to be of general application.[12] It applies only to Mr Singh. The direction is, however, made as a result of an administrative decision made by the Tribunal which is part of, but independent of, the Commonwealth executive arm of government. Is that direction an “instrument”? I think that it is for it comes within one of the ordinary meanings of the word “instrument”: “… a formal or official legal document …”.[13] An instrument made by an administrative body affecting the rights and entitlements of a single named person is an administrative instrument.
[11] [2015] FCAFC 130; (2015) 234 FCR 207; 326 ALR 677; Flick, Reeves and Griffiths JJ
[12] [2015] FCAFC 130; (2015) 234 FCR 207; 326 ALR 677 at [104]; 235; 702
[13] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
That fact that the direction given by the Tribunal is an instrument of an administrative character does not lead automatically to the conclusion that s 33(3) of the AI Act applies. It only applies to a direction made under s 42B of the AAT Act if s 42B “confers a power to make, grant or issue any instrument of a … administrative character”. The fact that a direction is made in writing is not to the point, for the focus of s 33(3) is upon the power that is conferred by an enactment and not upon the means by which the power is exercised. If the power that is conferred is not a power to make, grant or issue an instrument of an administrative character, s 33(3) does not apply even if an administrative decision has been expressed in a written instrument.[14] The power granted by s 78 of the Customs Act 1901 as then enacted had been to grant a licence to operate a bonded warehouse but s 78 had not specified any means by which that power was to be exercised.
[14] Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307; 41 FLR 338; 2 ALD 1 at 312-313; 341; 3-4; per Bowen CJ; at 319-324; 348-354; 9-13 per Smithers J; at 344-345; 379; 31-32 per Deane J dissenting but not on this point
The form in which the power was granted under s 78 can be contrasted with the form in which power was conferred on the Minister for Fisheries by s 8(1)(d) of the Fisheries Act 1952:
“The Minister may, by notice published in the Gazette, prohibit fishing in an area of proclaimed waters in respect of fish included in the class of fish specified in the notice …”.
Spender J found that the publication of the instrument is essential to the valid exercise of the power:
“… It is … the very act by which the power is exercised, and conceptually there is no distinction to be drawn between the publication of the notice and the exercise of the power. It is a sterile and arid distinction to suggest that the grammatical form in which the power is granted determines its true characterisation.”[15]
[15] Edenmead Pty Ltd v Commonwealth of Australia [1984] FCA 368; (1984) 4 FCR 348; 59 ALR 359 at [29]; 353; 364-365. Cowdroy J adopted a similar course of reasoning in Phytologic Pty Ltd v Secretary, Department of Health and Ageing [2012] FCA 1407; (2012) 209 FCR 48; 299 ALR 263; 133 ALD 84 at [62]-[75]; 59-61; 273-276; 94-97
Section 42B(2) of the AAT Act is also expressed in a form similar to that considered by Spender J. If the Tribunal has dismissed an application under s 42(1) and a party has made an application to it under s 42B(2), it may give a written direction as specified. Clearly, the power may only be exercised by written direction. Therefore, s 42B(2) confers on the Tribunal a power to make, grant or issue an instrument of an administrative character. Consequently, s 33(3) of the AI Act gives the Tribunal power to revoke, amend or vary it.
THE GROUNDS ON WHICH MR SINGH SUBMITS THAT THE DIRECTION WAS MADE UNLAWFULLY
Mr Singh submitted that Senior Member Handley’s direction should revoked on the basis that it was made without power. He entertained the Secretary’s application under s 42B, he said, but did not consider his application for review of the substantive merits of the case. It is not the role of the Tribunal to review decisions made by differently constituted Tribunals. Section 44 of the AAT Act provides for an appeal to the Federal Court, on a question of law, from any decision of the Tribunal in the proceeding. The decision to which reference is made is a decision affirming, varying, setting aside and substituting a decision or remitting the matter for reconsideration. The Tribunal’s directions and the like are not the subject of appeals but a party to a proceeding may seek review under the Administrative Decisions (Judicial Review) Act 1977 for they are administrative decisions or actions.
The only circumstances in which the Tribunal can look to a matter resolved on an earlier occasion arises if that resolution has been affected by jurisdictional error. This was a matter explored by the High Court in Minister of Immigration and Multicultural Affairs v Bhardwaj[16] (Bhardwaj). It did so in the context of the Migration Act 1958 (Migration Act) and of a decision made by the then Immigration Review Tribunal (IRT) on an issue it had previously decided. In making its first decision, the IRT had failed to follow the statutory provisions requiring that Mr Bhardwaj be notified of certain matters and have an opportunity to address them. Gaudron and Gummow JJ said:
“… [A] decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so …”[17]
[16] [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615
[17] [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615 at [53]; 616; 129-130; 628. McHugh J agreed but with qualifications that are not relevant in this context.
Their Honours said:
“ The failure of the Tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the Tribunal did not conduct a review as required by the Act and the September decision was, thus, not a ‘decision on review’ for the purposes of ss 367 and 368 of the Act.
To say that the September decision was not a ‘decision on review’ for the purposes of ss 367 and 368 of the Act is simply to say that it clearly involved a failure to exercise jurisdiction, and not merely jurisdictional error constituted by the denial of procedural fairness. Either of these grounds would entitle Mr Bhardwaj to have the September decision quashed by this Court as an incident of relief by way of mandamus or prohibition under s 75(v) of the Constitution. This notwithstanding, the question whether the Tribunal could disregard its September decision depends on the scheme of Pts 5 and 8 of the Act…. To understand that scheme, it is necessary to say something as to the nature of an administrative decision.”[18]
[18] [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615 at [43]-[44]; 612; 127; 625
Their Honours concluded that the scheme of the Migration Act permitted the IRT to ignore its previous decision. Gleeson CJ reached the same conclusion and set out his own reasons. The IRT could not reconsider its own decision simply because it was persuaded that one of the parties had not been given procedural fairness before that decision had been made. What had happened in the circumstances had led to the IRT’s not making a decision at all. As his Honour explained:
“ There was an error of the kind described as ‘error in fact’ in the context of proceedings by writ of error: the non-fulfilment or non-performance of a condition precedent to regularity of adjudication such as would ordinarily induce a tribunal ‘to stay its hand if it had knowledge, or to re-open its judgment had it the power.’ … The Act, in Pt 5 Div 5, prescribed the procedures according to which the Tribunal was required to conduct its review of the delegate’s decision. If the Tribunal was not prepared to decide in the respondent’s favour on the written material before it, then s 360 required that it give the respondent an opportunity to appear and give evidence and present arguments. The Tribunal set out to give the respondent such an opportunity. It intended to follow the statutory procedure. As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the Tribunal intended to give him. And, in consequence, it dealt with the matter in the belief that the respondent had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa. The Tribunal, through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. In its reasons for its ‘decision’, the Tribunal merely noted the delegate’s decision, and observed that nothing had been put before it as to why the decision was unfair or inappropriate. That did not amount to the conduct of a review. The Act provided, in s 353, that the Tribunal, in reviewing the delegate's decision, was not bound by technicalities or legal forms and should act according to substantial justice. When it learned of its own administrative error, the Tribunal recognised that it had not performed its functions and proceeded to do so.
In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate’s decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.”[19]
[19] [2002] HCA 11; (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615 at [14]-[15]; 605-606; 121; 619
The principles set out in Bhardwaj do not apply in this case. The obvious reason for that is that any error of law, be it a jurisdictional error otherwise, has been scrutinised by the Federal Court when Mr Singh appealed against Senior Member Handley’s decision. I have already referred to Weinberg J’s appeal at [7] above. There is no power for the Tribunal to review the matter again. Even if the Federal Court had not reviewed Senior Member Handley’s decision and Mr Singh sought review of his decision, Bhardwaj would not have assisted him. I will explain why that is so.
Senior Member Handley satisfied himself of the matters set out in s 42B(1) in the form in which it was enacted at the time. Mr Singh had made an application to the Tribunal for review of a decision. That decision was a decision made by the SSAT dated 22 March 2006 declining to review a decision of an ARO made on 19 December 2005. The ARO had also declined to review the decision made by a delegate of the Secretary refusing to recalculate the amount of the debt he owed to Centrelink. The amount of that debt represented the amount of Disability Support Pension that he and his wife had been paid during a period for which he had received compensation payments under the County Court judgment. His liability to pay that debt had been the subject of decisions by a delegate of the Secretary, review by the Tribunal and appeal proceedings in the Federal Court. There is nothing in s 42B(1) that limits the nature of the decision that must be the subject of review.
Senior Member Handley decided that Mr Singh’s application was frivolous or vexatious. It was not open to him to decide the substantive issue that Mr Singh wanted him to consider i.e. the amount of the debt that had been recovered as a result of the DSP paid to him while he waited for the outcome of his worker’s compensation claim in the County Court. That had been the subject of Senior Member Handley’s earlier decision against which he had appealed to the Federal Court. Senior Member Handley and the Tribunal had exhausted its powers in relation to that matter as had the Secretary.
That meant that s 42B(1)(a) was satisfied. Coming to s 42B(1)(b), the Secretary applied to Senior Member Handley for an order of the sort that he ultimately made. He decided to make that order and limited it to any application to the Tribunal with respect to the recovery of sickness allowance, disability support pension or wife pension paid between 28 October 1991 and 26 October 1999. Centrelink recovered that amount from the Insurer which paid the money it owed under Judge Rendit’s judgment to it rather than to Mr Singh.
Senior Member Handley was satisfied that it was appropriate to make the order that he did under s 42B(1)(b). The terms of the provision do not require the Tribunal to make the direction in relation to the precise type of application with which it is then dealing. It may make a direction in terms of the “kind or kinds specified in the direction” but that does not mean that the Tribunal’s power is without limits. Those limits must be drawn by the nature of the proceedings that have led it to conclude that it is satisfied that the application is frivolous or vexatious and to decide to dismiss the application and that it is “appropriate” to make the further order. I explored them in [15]–[23] of my previous decision and I adopt those paragraphs as part of these reasons.[20] There is nothing in Senior Member Handley’s reasons that suggests that he did not exercise his power under s 42B(1)(b) or that his decision was affected by jurisdictional error.
[20] [2014] AATA 701
SHOULD I REVOKE OR VARY SENIOR MEMBER HANDLEY’S DIRECTION?
In view of my conclusions, I am not satisfied that I should revoke or vary the direction made by Senior Member Handley. There has been no jurisdictional error in Senior Member Handley’s decision to make the direction. That is the basis of Mr Singh’s application. I have in my earlier reasons for decision, examined other bases that Mr Singh put forward and that he touched on at this hearing. Nothing has been put forward to indicate that any of the factual bases has changed since then. At their heart lies Mr Singh’s belief that the Insurer should have paid a sum of money, whether it be $55,000 or $88,000 or so, to him and not to Centrelink in payment of the amounts of DSP he and his wife had received. That is the matter that Mr Singh wishes to revisit in the Tribunal. I repeat and adopt my reasons for refusing to discharge or vary the direction on that occasion for they apply equally to my coming to the same decision in this case that he should not be permitted to do so:
“31. 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.
32. 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.
33. 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.[21]
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.”[22]
[21] [2004] FCA 1685; (2004) 142 FCR 232
[22] [2014] AATA 701 at [31]-[34]
I would add that Senior Member Handley’s direction is confined to proceedings in the Tribunal in relation to specific issues relating to a specific period of time. Any proceedings that Mr Singh wishes to bring against the Insurer cannot be brought in the Tribunal. Discharging the direction does not prevent or have any effect on any right that Mr Singh may have to commence proceedings against the Insurer in the courts or in other tribunals.
DECISION
For these reasons, I refuse Mr Singh’s application lodged on 29 February 2016 for the revocation or variation of Senior Member Handley’s direction made on 3 July 2006 that he:
“… 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.”
I certify that the thirty-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ………..............[sgd].........................................
Associate
Date of Hearing on Preliminary Issue 27 April 2016
Date of Decision 2 June 2016
For the Applicant Mr Mohinder Singh
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