Kumar v Secretary, Department of Social Services [2018] FCA 1710 (30 October 2018)

Last Updated: 9 November 2018

FEDERAL COURT OF AUSTRALIA

Kumar v Secretary, Department of Social Services [2018] FCA 1710

EX TEMPORE REASONS FOR JUDGMENT

REEVES J:

1. Mr Kumar has commenced this proceeding under s 39B of the Judiciary Act 1903 (Cth), seeking a number of orders predominantly, but not entirely, directed to quashing a decision of the Administrative Appeals Tribunal made in proceeding number 2014/0271 before that Tribunal in July 2014: see Kumar v Secretary, Department of Social Services [2014] AATA 442. That decision, in turn, concerned decisions of the Social Security Appeals Tribunal and officers of Centrelink, all of which confirmed a decision made in August 2013 to reject Mr Kumar’s claim for a disability support pension.
2. At the first case management hearing in this proceeding, Mr Kumar sought, among other things, to have me recuse myself. The context of that application is as follows.
3. First, for the purposes of this recusal application, Mr Kumar has asserted (and the Secretary of the Department of Social Services, the first respondent, has accepted, while reserving all rights with respect thereto in the substantive proceeding) that two of the central issues Mr Kumar wishes to raise in this proceeding are:
   • (1) whether natural justice was denied to him in the Administrative Appeals Tribunal proceeding described above – henceforth I will describe this issue as the “natural justice issue”; and
   • (2) whether s 94(2)(aa) of the Social Security Act 1991 (Cth) is invalid because it is contrary to s 51(xxiii) of the Constitution – henceforth I will describe this issue as the “validity issue”.
4. The next step in outlining the context to this application takes me back to February 2017. In that month, I delivered judgment (see Kumar v Secretary, Department of Social Services [2017] FCA 158) in Mr Kumar’s appeal against the decision of a Federal Circuit Court judge given in March 2016 (see Kumar v Secretary, Department of Social Services [2016] FCCA 640) on an appeal from the Administrative Appeals Tribunal decision I have mentioned above. As I have already noted, quashing that decision is one of the main objects of this proceeding.
5. At the hearing of that appeal proceeding before me, Mr Kumar sought leave to raise a number of new issues that had not been raised before the Federal Circuit Court, or before the Administrative Appeals Tribunal, or in his notice of appeal. I refused that application. In my subsequent reasons for judgment on the dismissal of Mr Kumar’s appeal, I described that application for leave and its refusal in the following terms:
   7. The Secretary of the Department of Social Secretary (the Secretary), the respondent in this appeal, correctly claimed that some of the above issues and questions had not been raised before the Federal Circuit Court and Mr Kumar therefore required leave to raise them for the first time before this Court. In broad terms, those matters were:

(a) the validity of s 94(5) of the Act (Question A above);

(b) the validity of s 94(2)(aa) of the Act (Question B above); and

(c) whether Mr Kumar was denied natural justice by the Tribunal (the third central issue and Question I above).

8. The Secretary opposed leave being granted to Mr Kumar to raise these three matters. After hearing from him at quite some length, I refused that leave. I did so on the grounds that: Mr Kumar had ample opportunity to raise these matters before the Federal Circuit Court; he had offered no satisfactory explanation as to why he had not done so; and none of these matters had any obvious merit. This refusal did not, it has to be said, significantly reduce the scope of the issues Mr Kumar attempted to raise in this appeal.
6. It should be noted that the latter two of those three issues are essentially the same as the issues I have described above as the validity issue and the natural justice issue respectively. The transcript of that part of the appeal hearing where I made the rulings refusing Mr Kumar leave to raise those two issues records the following.
7. First, with respect to the validity issue, I said:

Mr Kumar, to raise matters for the first time in this court, in this situation, there’s a number of tests that have been applied by Full Courts of this court and single judges of this court. They include the likelihood of success in the argument, any explanation you’ve given for why it was that it wasn’t raised below, whether or not the - raising the new argument will cause prejudice and the interests of justice in the circumstances. I’ve asked you about whether you raised it below and I think we’ve established that it’s not raised in the notice of appeal and it’s not raised on the application is a case. You’ve given your explanation for that.

I accept that that’s an explanation but in the circumstances where you’ve had an opportunity before the tribunal and an opportunity before the Federal Circuit Court to ventilate these issues, and the only issue before this court is correcting error in the Federal Circuit Court in the way it has dealt with the appeal from the tribunal, I do not consider it’s in the interests of justice that you should be allowed to raise this invalidity issue at this stage.

8. Secondly, with respect to the natural justice issue, it is necessary first to describe what Mr Kumar meant when he referred to that issue as the natural justice issue. In his earlier submissions on that issue at the appeal hearing, he said:

The ground of appeal on the - the tribunal acted in excess of jurisdiction or without jurisdiction that the tribunal does not have jurisdiction to settle the matter what comes under Workers’ Compensation jurisprudence under New South Wales government ...

9. Mr Kumar has confirmed that this is, in essence, the same issue as the natural justice issue that he wishes to raise in this proceeding. I should also record, at this point, that Mr Kumar was self-represented at the appeal hearing before me and he has remained so in this proceeding. With respect to his application to raise that so-called natural justice issue at the appeal proceeding, my ruling was as follows:

I refuse leave to amend the notice of appeal to allow that ground to be introduced. I agree with [the respondent’s counsel] that the tribunal did no such thing. It did not quash the decision of the New South Wales Workers’ Compensation Commission. Instead it determined whether or not the return to work program that was carried out within that jurisdiction amounted to a program of support for the purposes of the provisions of s 94 ...

10. In my view, the ruling I made on the validity issue above did not go to the substance of that issue. However, I consider my ruling on the natural justice issue above did; albeit, to use the description of Mr Black, the respondent’s counsel, in a somewhat “rough and ready” form. The question, then, is whether that is sufficient to give rise to a perception of bias. Specifically, whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of that question in this proceeding: see Ebner v Official Trustee in Bankruptcy [2000] 205 CLR 337; [2000] HCA 63 at [6].
11. In answering that question in the affirmative, I have taken account of the following matters:
    • (1) First, from what is known of the natural justice issue at this early stage of this proceeding, it does not appear to be a purely legal issue, but rather it appears to involve a mixed question of fact and law.
    • (2) Secondly, I bear in mind what Heydon, Kiefel and Bell JJ said in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [144]–[145] about a judge trying an issue that he or she has previously been asked to determine. In this matter the issue is very similar, if not identical, to that previously determined, the parties are the same and the factual context to the disputes in both proceedings is quite similar, if not the same.
    • (3) Thirdly, this issue has been raised at the outset of this proceeding. That means that I am not seized of the matter in any way that may give rise to any question of necessity. To the contrary, at this very early stage of this proceeding there will be little difficulty associated with the matter being transferred to the docket of another judge of the Court.
    • (4) Fourthly, I agree with Mr Black’s quite proper submission on behalf of the Secretary that I should, in the present circumstances, proceed with some caution.
12. For these reasons, I have decided to recuse myself from any further involvement in this proceeding. The parties will be notified once the matter is allocated to another judge and a date for a first case management hearing has been fixed before that judge. All of the applications that are presently adjourned before me will be adjourned before that judge.

Associate:



Dated: 8 November 2018