Kumar v Secretary, Department of Social Services [2018] FCA 2119 (21 December 2018)

Last Updated: 22 May 2019

FEDERAL COURT OF AUSTRALIA

Kumar v Secretary, Department of Social Services [2018] FCA 2119

ORDERS

IN LIEU OF THE ORDERS PREVIOUSLY PUBLISHED THE COURT ORDERS PURSUANT TO RULE 39.05(h) OF THE FEDERAL COURT RULES 2011 (CTH) THAT:

1. The application be dismissed.
2. In accordance with s 37AO of the Federal Court of Australia Act 1976 (Cth) the Applicant is prohibited from commencing, whether by himself or by the agency of any other person, any proceedings in this Court against the First Respondent, its agents or instrumentalities in connection with any claim that he was qualified, on or before 1 May 2013, for a disability support pension under the Social Security Act 1991.
3. The Applicant is to pay the First Respondent’s costs of the proceeding, other than the costs of the interlocutory application, that was heard and determined by the Honourable Justice Reeves on 30 October 2018.
4. By no later than 4pm on 18 January 2019, the First Respondent is to file and serve:
   1. A Cost Summary affidavit of no more than 5 pages in length in accordance with the Federal Court Costs Practice Note.
   2. Submissions (if any) addressing the law as to costs on relevant issues, limited to 3 pages in length.
5. By no later than 4pm on 11 February 2019, the Applicant may file and serve:
   1. An affidavit (if any) responding to the matters raised in the Respondent’s Costs Statement, limited to 5 pages in length.
   2. Submissions (if any) addressing the law as to costs on relevant issues, limited to 3 pages in length.
6. The Court will determine the quantum of costs to be paid by the Applicant without oral hearing.

REASONS FOR JUDGMENT

(Revised From Transcript)

LOGAN J:

1. In May 2013, the applicant, Mr Nitesh Kumar applied under the Social Security Act 1991 (Cth) (Social Security Act) and the Social Security Administration Act 1999 (Cth) (Social Security Administration Act) for the payment to him of a Disability Support Pension. He had made an initial contact with the Commonwealth department which administers that legislation on 15 October 2012. Further contact with the department was made by him on 1 May 2013. The application for the payment of the pension followed shortly after the latter contact. On 5 August 2013, a delegate of the Secretary, Department of Social Services (Secretary), who is the only active party respondent to this application and who is located within the Commonwealth service agency known as “Centrelink”, decided to reject Mr Kumar’s Disability Support Pension claim. That rejection decision was internally reviewed. The result of that internal review was the affirmation on 20 August 2013 of the Delegate’s rejection decision.
2. The law provides for the possibility of successive external merits review of a decision of the Secretary or a delegate which has been internally reviewed. At the time, that successive review was conducted in the first instance by the Social Security Appeals Tribunal and then, if further review was sought, by the Administrative Appeals Tribunal. Mr Kumar engaged each of these external review merit rights. On 12 December 2013, the Social Security Appeals Tribunal in proceeding number 2013/B063976 decided to affirm the Secretary’s delegate’s decision. Later, on 3 July 2014, in proceeding Kumar & Secretary, Department of Social Services [2014] AATA 442, the Administrative Appeals Tribunal also decided to affirm the decision of the Secretary’s Delegate as affirmed on internal review. The effect of that was that Mr Kumar’s Disability Support Pension rejection remained in place.
3. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides for what is termed an “appeal” on a question of law to this court. Mr Kumar engaged that right of appeal. In the result, the appeal came to be remitted to the Federal Circuit Court for hearing. On 24 March 2016, in Kumar v Secretary, Department of Social Services [2016] FCCA 640, that court dismissed Mr Kumar’s appeal from the Administrative Appeals Tribunal.
4. Mr Kumar then appealed to this Court against that order of dismissal. On 24 February 2017, in Kumar v Secretary, Department of Social Services [2017] FCA 158, Reeves J dismissed Mr Kumar’s appeal.
5. Mr Kumar has applied, nominally, under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) for particular constitutional writs relating to the delegate’s, Tribunal’s and Court’s decisions to which I have just made reference. It is necessary to state “nominally” in respect of the application because, in its amended form, relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), is also claimed.
6. The most convenient way of dealing with the application is to set out the claim for various orders:

Details of Claim

On the grounds stated in the statement of claim, accompanying affidavit and other document prescribed by the Rules, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903:

1. An order of certiorari:

(a) quashing the decision (ref No. 2014/0271) of the second respondent because the applicant has been denied natural justice by that decision.

alternatively that

(b) quashing the decision (ref no: 2014/2071) of the first second respondent under s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 because a breach of the rules of natural justice occurred in connection with the making of the decision

2. An order of mandamus compelling the second first respondent to make a decision under section 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect to the applicant’s claim for arrears of the disability support pension from 15 October 2012 and from 1 May 2013.
3. An order under s 1.32 of the Federal Court Rules 2011 setting aside the judgment and orders:

(a) in the matter of BRG829/2014; and

(b) in the matter of QUD 241/2016; and

(c) in the matter of 2013/B063976.

4. An order of mandamus or declaratory order issued to the second first respondent that:

(a) disability support pension be granted to the applicant from 15 October 2012 or from 1 May 2013 pursuant to s 12(1) and/or s 15 of the Social Security (Administration) Act 1999;

alternatively that

(b) in a case where the respondents do not agree with the material fact that the applicant had participated in a program of support, disability support pension be granted to the applicant from 15 August 2011 pursuant to s 12(1) and/or s 15 of the Social Security (Administration) Act 1999.

5. A mandamus issued to the first second respondent to adequately review the applicant’s claim for disability support pension.
6. An order issued to the second first respondent to pay the applicant compensatory damages, with inclusion of exemplary damages, a total of $15 million.
7. An order that the second first respondent pay with interest, the applicant’s costs of and incidental in this matter.
8. The first respondent to pay interest, on the arrears of outstanding amount time to time, in respect of the applicant’s claim for disability support pension, from 15 October 2012.

[sic]

7. Before turning to these merits, if any, of these claims, it is necessary also to record that Mr Kumar has prepared a notice of a constitutional matter under s 78B of the Judiciary Act, which has become Exhibit 1 in the proceeding. In that document, the constitutional matter is described thus:

Nature of Constitutional matter

1. Is s 94(2)(aa) of the Social Security Act 1991 (Cth), to the extent that it gives effect to these provisions, is invalid because it is contrary to the virtue of s 51(xxiii) of the Constitution?
2. Is s 94(2)(aa) of the Social Securit Act 1991 (Cth), to the extent that it gives effect to these provisions, is invalid because it is beyond the legislative power of the Commonwealth conferred by s 51(xxiii) of the Constitution?

The facts which are said to show that section 78B applies is stated as follows in the notice:

Facts showing that section 78B Judiciary Act 1903 applies

1. The fact that the current proceeding involves a constitutional matter is published in Kumar v Secretary, Department of Social Services [2018] FCA 710 as well as set out in the documents filed in this matter.
2. Section 94(2)(aa) of the Social Security Act 1991 (Cth) is invalid because it cannot have been constitutional intent of s 51(xxiii) of the Constitution:

(a) to deprive elderly persons with impairment(s) from the invalid pension or disability support pension, who are up to 18 months short from the age pension age;

(b) to deprive young persons who are 16 years of age, from the invalid pension or disability support pension, unless they commence work or engage in work activity from as early as 13 years of age.

3. The provisions under s 94(2)(aa) of the Act are contrary to the meaning implied or expressed in s 51(xxiii) of the Constitution because they are incompatible with:

(a) s 28 of the Social Security (Administration) Act 1999 (Cth); and/or

(b) s 11 of the Child Employment Act 20016 (QLD); and/or

(c) the human rights and freedoms recognised or declared in the international instruments listed in s 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

8. I shall deal later in these reasons for judgment with the ramifications, if any, of the notice which Mr Kumar has prepared in relation to the conduct of this application. It is first desirable to deal seriatim with each of the claims.
9. A difficulty, and it is a fundamental one, with the claim made in para 1 of the amended originating application is that such denial, if any, of natural justice as there was in proceeding 2014/0271 (in other words, the proceeding before the Administrative Appeals Tribunal) was a subject perfectly possible to raise as a question of law under s 44 of the AAT Act in an appeal from the Tribunal. The point made on behalf of the Secretary in this regard is a good one. No such point was raised. There is a need for finality in public administration and in an exercise of judicial power in relation to a particular decision made in the course of public administration. Here, that finality occurred upon the dismissal of Mr Kumar’s appeal from the judgment which the Federal Circuit Court gave in respect of his s 44 appeal. It would be completely subversive of the principle of finality and, related to that, of estoppel to countenance agitation of a natural justice question by way of a later filed application for certiorari under s 39B of the Judiciary Act.
10. The position is no better if one looks alternatively to the ADJR Act. In the first instance, there is a time limitation within which, ordinarily, an application for relief under that Act must be filed. That time passed years ago. There is a discretion to extend time, but the events which occurred after the making of the Tribunal’s decision in 2014 are why, even if an exercise of that discretion was sought, it could not be exercised in Mr Kumar’s favour. He did not rest on his rights, but the rights of which he availed himself were rights perfectly adapted to the particular alleged wrong of which he complains in para 1. By that I mean, at the risk of repetition, it was possible to agitate in the s 44 repeal the question of any denial of natural justice by the Tribunal. Related to that is another reason why even if there were any merit in the question of denial of natural justice, one might as a matter of discretion, refuse relief. That is because there existed, as the s 44 appeal make patent, an adequate alternative remedy.
11. For all these reasons then, the claim for relief made in para 1 must fail.
12. Paragraph 2 seeks an order in the nature of mandamus, compelling the Secretary to make a decision. Apparently, alternative relief is sought under the ADJR Act to the same end. The difficulty with this claim (and again it is a fundamental one) is that the Secretary has made, for better or for worse, by a delegate, a decision, and did so in August 2013. There is no subject for mandamus, and further, no subject for any order under the ADJR Act, even assuming that it would be possible now to secure relief under that Act. For the reasons already given, that assumption would be illfounded as to the availability of recourse to that Act by Mr Kumar now. The claim in para 2 therefore fails.
13. As to para 3, resort is made to r 1.32 of the Federal Court Rules 2011 in respect of the nominated proceedings. The difficulty about this claim (and once again it is a fundamental one), is that r 1.32, is a source of power within jurisdiction, not a source of jurisdiction:

1.32 Court may make any order it considers appropriate in the interests of justice

The Court may make any order that the Court considers appropriate in the interests of justice.

Claim 3 must therefore fail.

14. As to claim 4, by which an order in the nature of a mandamus or a declaratory order is sought in respect of the granting of a disability support pension or the alternative specified, the difficulty (and yet again it is a fundamental one), is that the making of decisions under the Social Security Act and the Social Security Administration Act is materially for the Secretary and his delegates, not for a judge. Exceptionally, it is possible to envisage a circumstance where, even in relation to a satisfactionbased eligibility criteria, the facts were all one-way, such that it would be impossible otherwise to be satisfied that they were met, that a declaration might be made, but that is not this case. Claim 4 must therefore fail.
15. Claim 5 seeks an order in the nature of mandamus, directed to the Administrative Appeals Tribunal:

“To adequately review the applicant’s claim for disability support pension.”

Much, as was apparent from Mr Kumar’s submissions, lies behind the adverb “adequately”. But whatever one makes of those submissions, the difficulty (and yet again it is a fundamental one) is that the Tribunal has conducted its review. It did so in 2014. The adequacy or otherwise of that review was amenable to an appeal under s 44 of the AAT Act. Mr Kumar availed himself of that right of appeal. It just so happens that the review in terms of the basis of challenge which he thereby made, was found “adequate”. Claim 5 must therefore fail.

16. Claim 6 seeks an award of damages, including exemplary damages against the Secretary. It is theoretically possible to seek damages in conjunction with a claim for relief under s 39B of the Judiciary Act: see Scott v Handley (1997) 79 FCR 236, to which I was helpfully referred by Mr Kumar. It will be apparent from the fate of the claims for various forms of constitutional writ that the claim for damages has no foundation.
17. That is quite apparent from the difficulty in discerning any such claim from the way in which the statement of claim is presently pleaded. To establish such a claim as that tort has come to be explained in cases such as in Australia, Mr Kumar would have to allege and prove misfeasance in public office: Northern Territory v Mengel (1995) 185 CLR 307; Sanders v Snell (1998) 196 CLR 329; in New Zealand, Garrett v Attorney-General [1997] 2 NZLR 332; and Hobson v Attorney-General [2006] NZCA 409; [2007] 1 NZLR 374; and in the United Kingdom in Three Rivers District Council v Governor and Co of the Bank of England (n 3) [2002] EWCA Crim 2949; [2003] 1 AC 1. It is not necessary, because there is no foundation for such a claim, to consider whether the Secretary is an apt respondent for that claim or whether the Commonwealth of Australia ought to have been joined as a party additionally in terms of any vicarious liability for the making of a decision by the delegate. All that has happened here is that a decision was made according to law. That it was made according to law has been litigated to finality via the outcome of the appeal in this Court against the Federal Circuit Court’s judgment. That provides no foundation whatsoever for a claim of misfeasance in public office. Claim 6 must therefore fail.
18. Claim 7 falls with claim 6 insofar as it seeks interest. I shall deal with the other aspect of claim 7 which is a claim for costs later. That must await the ultimate fate of the originating application.
19. Claim 8 seeks a payment of interest in respect of outstanding disability support pension from 15 October 2012. It is possible in certain circumstances (and these remunerated in the Social Security Administration Act) for a disability support pension payment to be backdated. It is not necessary to consider whether there was any basis for backdating here. That is because the pension claim failed, and failed even after appellant challenge. Further, neither the Social Security Act nor the Social Security Administration Act makes provision for the payment of interest in circumstances where, for example, there is a successful appeal against an adverse Tribunal decision. All that would occur is that payment of pension would be made either from the claim date or such backdated date as was available according to law. Claim 8 must therefore fail.
20. I turn then to the constitutional matter, or to the alleged constitutional matter. By s 51(xxiii) of the Constitution:

It is provided that the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to –

and then xxiii:

... invalid and old-age pensions.

21. Mr Kumar’s constitutional point concerns s 94(2)(aa) of the Social Security Act. That supplies content to s 94(1)(c)(i). These provisions provide:

Qualification for disability support pension

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

...

(c) one of the following applies:

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

...

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

(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth.

[emphasis in original]

The Constitution does not confer a right to any such pension, or even for that matter, ordain that there be such a pension. Providing an Act passed by the Parliament can be seen to be reasonably adapted to the head of legislative power, it will be valid.

Section 78B of the Judiciary Act would require me to be satisfied that notice of a constitutional matter had been given to the Attorneys-General for the Commonwealth and each of the several States and self-governing Territories, and that a reasonable time had elapsed after the giving of such a notice. No such notice has yet been served on any Attorney-General. As to the Commonwealth, it is at least moot as to whether any such notice would be necessary, given that by the Secretary, there is respondency of a Commonwealth officer in this proceeding. However that may be, it would be idle even to require the serving of notices unless there was at least some arguable constitutional matter. As to this, see Glennan v Commissioner of Taxation (2003) 198 ALR 250 at [14]; NARF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 685 at [8]; and Kobylski v Queensland Police Service [2007] QCA 50 at [10].

22. Here, satisfaction on the part of the Secretary in terms of s 94(2)(aa) is nothing more than a criterion relevant to whether a person meets the eligibility criteria for a disability support pension. It is for Parliament to prescribe those criteria. Mr Kumar’s proposition that in some way, s 94(2)(aa) lies outside the legislative power of the Commonwealth is, in terms of the cases which I have just mentioned, without merit and unarguable. I therefore see no need for the giving of a notice under s 78B.
23. For completeness, I should also add that there is another reason why one would not in this present proceeding entertain the claim for constitutional relief, as set out in the s 78B notice. That is because the validity or otherwise of s 94(2)(aa) could have been dealt with in the appeal from the Tribunal under s 44 of the AAT Act.
24. Mr Kumar has also made claims for interlocutory relief. One of those claims is not in truth a claim for interlocutory relief at all, but rather, ought to be the subject, if anything, of a separate claim for substantive relief. I refer to a claim that the Secretary comply with the orders of another Tribunal member, (Member King), in matters 2017/B114517 and 2018/B119699. It lies outside the subject of his claims for substantive relief and is therefore not permitted to be a subject of a claim for interlocutory relief.
25. The claim for a stay in respect of matter 2014/0271, which is the Tribunal proceeding decided in July 2014, is utterly misconceived. That is because that proceeding has already been dealt with to finality, including by way of appellate challenge. The same observation may be made in respect of BRG 829/2014, the subject of a claim for a stay until the hearing of a determination of the present application. BRG 829/2014 was the Federal Circuit Court case in which the s 44 appeal was heard. Once again, it has been dealt with to finality. There is nothing to stay.
26. There is also nothing to stay in respect of QUD 241 of 2016, the appeal to this Court from the Federal Circuit Court.
27. The other claims for interlocutory relief concern matters of practice which have either already been dealt with insofar as joinder of the Secretary and the Administrative Appeals Tribunal are concerned, or are rendered unnecessary or will be rendered unnecessary by the fate of the disposal of the claims for substantive relief in this case on the basis that they can have no merit.
28. What follows from the foregoing is that the application must be dismissed.
29. A sequel to the dismissal of the application necessarily raises, as I foreshadowed to the parties. There is a question as to whether an order ought to be made in respect of Mr Kumar under s 37AO of the Federal Court of Australia Act 1976 (Cth). The fate of the present claim for relief under s 39B and the associated damages claim necessarily leads, in my view, to a conclusion that the present proceeding is in terms of s37AO(1)(a), “vexatious”. The real issue, as I said, is whether having regard to the present proceeding and those in the Administrative Appeals Tribunal, the Federal Circuit Court and this Court earlier in time, taken in conjunction with the present proceeding, it can be said that Mr Kumar is a person who has “frequently” instituted or conducted vexatious proceedings in Australian Courts or Tribunals.
30. Very fairly, the Secretary in his submissions, described this as a borderline case in relation to whether a conclusion of “frequently” is open. It is transparent that the present proceeding is an endeavour to re-litigate issues which either have been determined to finality or to raise issues which could have been raised in such proceedings, but for whatever reason were not.
31. There is authority and it is to be found in Soden v Croker (No 2) [2016] FCA 15; (2016) 334 ALR 540 at [25]; and Fuller v Toms [2013] FCA 1422 at [77], that the “frequently” requirement can be met by a quite small number of proceedings.
32. Whether to regard the present case as one such case has given me much anxious cause for thought. That is because the importance of an ability to approach this Court for an exercise of judicial power is not lightly to be in any way restricted. What persuades me though that this is a case which is apt for the making of a limited form of order is that notwithstanding a comprehensive appeal book prepared at my direction and obviously with careful attention by the Secretary, Mr Kumar chose earlier this week to file an affidavit, including annexures, in excess of 5000 pages. Insofar as that is a marker as to disposition, it tends in favour of the making of an order. The contents of that affidavit either duplicate the book prepared by the Secretary, or are just not relevant.
33. I regard this as a case which shows that Mr Kumar is a person who has frequently instituted, and for that matter, by conducting this proceeding, conducted vexatious proceedings. What I propose to do therefore is to make an order under s 37AO which prohibits him from commencing by himself or otherwise howsoever any proceedings in this Court against the Secretary, Department of Social Services or any other officer of the Commonwealth in connection with an assertion that he was qualified on or before 1 May 2013, for a disability support pension under the Social Security Act. That will leave intact an ability on the part of Mr Kumar if he considers he has a grievance known to law, to challenge other Tribunal proceedings, but it will prohibit him without a grant of leave from re-agitating the disposition of his May 2013 disability support pension application.

Associate:



Dated: 8 February 2019