Rahman v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 239 (18 March 2009)

Last Updated: 18 March 2009

FEDERAL COURT OF AUSTRALIA

Rahman v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 239

PRACTICE AND PROCEDURE – application for leave to appeal out of time – “special reasons” required – meaning of “special reasons” (O 52 r 15(2) of Federal Court Rules) – allegations of actual bias against trial judge – requirement that there be a proper basis to support such an allegation

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5
Federal Court of Australia Act 1976 (Cth), ss 14, 24, 25(2)(b)
Judiciary Act 1903 (Cth), s 39B, s 78B
Social Security (Administration) Act 1999 (Cth), s 192

Federal Court Rules, O 46 r 7A, O 52 r 15

Howard v Australian Electoral Commission [2000] FCA 1767 applied
Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; (1969) 119 CLR 334 applied
McGowan v Migration Agents Registration Authority [2003] FCA 482; (2003) 129 FCR 118 cited
Parker v The Queen [2002] FCAFC 133 applied
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 applied
Rahman v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1634 cited
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 applied
Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26; (2008) 166 FCR 108 cited

MOHAMMAD TABIBAR RAHMAN v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
NSD 125 of 2009

FOSTER J
18 MARCH 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 125 of 2009

BETWEEN:

MOHAMMAD TABIBAR RAHMAN Applicant

AND:	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	18 MARCH 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Application be dismissed.
2. The applicant pay the respondent’s costs of and incidental to the Application.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 125 of 2009

BETWEEN:

MOHAMMAD TABIBAR RAHMAN Applicant

AND:	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	FOSTER J
DATE:	18 MARCH 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE PRESENT APPLICATION

1. On 4 November 2008, Cowdroy J delivered judgment in Rahman v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1634. On that day, his Honour dismissed Mr Rahman’s application with costs. On the same day, his Honour delivered his reasons for making those orders. The proceedings before his Honour concerned an application for Austudy payments made by the applicant which was rejected by a delegate of the respondent on the ground that the value of the applicant’s net assets exceeded the upper limit for the value of assets allowable under the relevant legislation.
2. The time within which the applicant might have appealed from his Honour’s decision expired on 25 November 2008.
3. The applicant did not file any Notice of Appeal by 25 November 2008.
4. On 16 February 2009, the applicant filed an Application for Extension of Time to File and Serve a Notice of Appeal in order to enable him to appeal from the decision of Cowdroy J made on 4 November 2008 (the present application). That is the application with which I am presently dealing.
5. Par 4 of that Application is in the following terms:
   4. (Statement indicating whether the applicant wishes to have application dealt with without an oral hearing.)
      

The applicant’s Appeal ‘for Leave to whole Appeal application’ – must be dealt with “Oral Hearing” to defend and established the legitimacy of the challenge for the unlawful and wrong decisions made by Hon Cowdroy J, on 4 November 2008, which emanated from discrimination and of ignorance of Constitutional interpretations of what constitutes “Courts” under Commonwealth of Australian Constitution Act: “Chapter 111 Courts – and not Tribunals as Courts” as Cowdroy J and Dale Watson, Solicitor, perceived and with perverse Case Reference, with no evidences of orders as mentioned in the Grounds of Applications to void the Respondent’s wrong and false instruments of claims and to validate the applicant’s legitimate claims with the relevant enactments.

Pursuant to Order 52 Rules 2Ac – Summary of Argument, the applicant has submitted defence precisely with legal arguments exemplifying Cowdroy J, decisions are of unlawful, wrong being of without receiving evidence, determining questions of facts, to take into accounts the valid Acts, without proof, perverse of Case References and such failure to deal properly with facts will amount legal error and must be challenge under enactments to uphold-justice.

6. I have quoted par 4 in full.
7. As is clear from par 4 of his Application, the applicant sought an oral hearing of the present application. That hearing took place on Monday last (16 March 2009). At the conclusion of the hearing, I reserved my decision until 9.15 am today.
8. The affidavit sworn by the applicant on 16 February 2009 in support of the present application is expressed in language which is difficult to follow, confusing and somewhat rambling. In some respects, the affidavit contains scandalous material.
9. Doing the best I can to understand the contents of that affidavit, the applicant seems to be making the following assertions, namely that:

(a) The applicant was not present in Court on 4 November 2008 when his Honour delivered his decision and his reasons therefor. The contention of the applicant is that, notwithstanding the fact that he was present during the entire hearing which took place on that day and was given every opportunity to present his case, he left the courtroom before his Honour delivered his reasons for judgment but after argument had concluded. The applicant says that he did this because his Honour had informed him that his Honour intended to reserve his decision. The applicant says that he was not made aware of his Honour’s decision until some time later. These matters seem to be relied upon by the applicant as some explanation for his not filing his Notice of Appeal by 25 November 2008 rather than as a substantive ground of appeal;

(b) It was not until 14 November 2008 that the applicant received a copy of his Honour’s reasons for judgment;

(c) On 14 December 2008 the applicant attempted to file a Notice of Appeal at the Sydney Registry of the Court. That document was not accepted for filing on 14 December 2008 because the time within which the applicant might appeal from his Honour’s decision had by then expired;

(d) On 17 December 2008 the applicant attempted to file a Notice of Motion. There is no evidence before me as to the subject matter of that Notice of Motion;

(e) On 19 December 2008 the applicant was informed that a Registrar of this Court had refused to accept his Notice of Motion (presumably in the exercise of the power reposed in Registrars of this Court by O 46 r 7A of the Federal Court Rules);

(f) Thereafter the applicant attempted to overturn the Registrar’s order rejecting his Notice of Motion by seeking a review of her decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act); and

(g) The applicant’s proceedings seeking a review of the Registrar’s decision to reject his Notice of Motion were dismissed by Tamberlin J on 6 February 2009.

10. The facts noted in subpars (b) to (g) of [9] above are not disputed for the purposes of the present application. However, the position in respect of the facts referred to in subpar (a) of [9] above is somewhat different. I was informed from the bar table by the solicitor for the respondent that:

(a) The hearing before Cowdroy J had concluded by about 11.30 am on 4 November 2008;

(b) At the conclusion of that hearing, his Honour announced that he would reserve his decision to 2.15 pm on that day (4 November 2008) at which time he proposed to give his decision and announce his reasons orally; and

(c) His Honour then also informed the applicant that he need not wait until 2.15 pm if he did not wish to do so and that, once the oral reasons of his Honour were finalised and engrossed, a copy of the engrossed version of those reasons would be sent by mail to the applicant.

11. The applicant did not challenge this account of what occurred on 4 November 2008.
12. I accept that account of those events.
13. With the exception of the facts noted in [9] above, the applicant’s affidavit contains no explanation for his failure to file a Notice of Appeal by 25 November 2008.
14. His delay in bringing the present application in the period after mid-December 2008 has not really been explained either.
15. I infer that the applicant attempted to take steps to challenge the judgment of Cowdroy J given on 4 November 2008 when he lodged his Notice of Motion with the Registry on 17 December 2008. However, he became distracted from the task of challenging that judgment when he sought judicial review of the Registrar’s decision not to accept his Notice of Motion.
16. He did not file the present application until 16 February 2009.
17. Later in these Reasons, I will deal with the draft Notice of Appeal annexed to the applicant’s affidavit.
18. As a threshold matter, the applicant submitted that the present application involves a matter arising under the Constitution or involving its interpretation and that therefore notices under s 78B of the Judiciary Act 1903 (Cth) (the Judiciary Act) must be given to the Attorney-General of each of the States. The applicant informed me that he had already given such notices and that he was awaiting responses from the Attorneys-General of the States. He then submitted that, because such notices were required to be given, I was not permitted to proceed to hear the present application until all of the State Attorneys-General had responded to the notices served by him or, alternatively, until a reasonable time had elapsed for those Attorneys-General to respond to the notices which he had given.
19. I did not agree with these submissions. I rejected them on Monday last. I will now explain my reasons for that decision.

THE SECTION 78B NOTICES

20. The applicant submitted that his application involved a matter arising under the Constitution or involved the interpretation of the Constitution. He further submitted that, for this reason, the provisions of s 78B of the Judiciary Act were engaged so that notices under that section were required to be sent to the Attorneys-General of the States. No notice would be required to be sent to the Commonwealth Attorney-General because the Commonwealth was, in effect, a party to the action (see s 78B(3)(b) and Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; (1969) 119 CLR 334).
21. As mentioned in [18] above, the applicant informed me that he had already sent notices pursuant to s 78B of the Judiciary Act to the relevant Attorneys-General. A copy of the form of Notice sent by the applicant appears to have been filed in this Court.
22. The fact that the applicant has already sent a form of notice does not pre-empt proper consideration by me of the question whether s 78B has truly been engaged in the present case.
23. In my view, no constitutional matter is involved in the present case. Section 78B of the Judiciary Act is not engaged. No notices pursuant to that section ought to have been given by the applicant. No such notices are required to be given.
24. At the time that I made the ruling to which I have referred at [19] above, I indicated to the parties that I would publish my reasons for that ruling as part of these Reasons for Judgment.
25. Section 78B of the Judiciary Act is in the following terms:

78B Notice to Attorneys-General
(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
(2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b) may direct a party to give notice in accordance with that subsection; and
(c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
(3) For the purposes of subsection (1), a notice in respect of a cause:
(a) shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General; and
(b) is not required to be given to the Attorney-General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney-General of a State if he or she or the State is a party to the cause.
(4) The Attorney-General may authorize the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section.
(5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.

26. In a document dated 8 March 2009 and filed with the Court on 9 March 2009, the applicant attempted to identify several constitutional matters which he contended necessitated the issuing of s 78B notices.
27. This document is difficult to understand. It seems to me that the applicant sought to raise the following matters as matters arising under the Constitution or involving its interpretation, namely:

(a) The appellate jurisdiction in respect of an appeal from the judgment of a single judge of this Court must be exercised by a Full Court. A Full Court, in this context, means a bench comprising three or more judges (s 14 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act)). The present application, in substance, being ancillary to or part of the exercise of the Court’s appellate jurisdiction, cannot be heard by a single judge but must be heard by a Full Court. The last proposition is somehow guaranteed by the Constitution; and

(b) The present application raises the validity of O 46 r 7A of the Federal Court Rules. The applicant submitted that, when a Registrar of this Court declined to accept his Notice of Motion lodged with the Registry of the Court on 17 December 2008, that Registrar was impermissibly purporting to exercise the judicial power of the Commonwealth and did so by relying upon Or 46 r 7A.

28. On 13 March 2009, the applicant filed Written Submissions in support of his contention that s 78B of the Judiciary Act was engaged in the present case. In those submissions, the applicant advanced an additional contention that the Social Security Appeals Tribunal and the Administrative Appeals Tribunal “have no authority for judicial reviews” and thus that he had a right to bring and have determined the application which Cowdroy J had dismissed. The applicant further contended that the right which he had to invoke judicial review of the respondent’s adverse decision concerning his Austudy claim included an entitlement to have his application heard and determined after a full hearing of his claims. He submitted that his application could not be rejected summarily on discretionary grounds. A summary rejection of his application on discretionary grounds was said to be unconstitutional.
29. I did not detect any additional arguments advanced by the applicant in relation to s 78B during oral submissions.
30. The matter noted at subpar (a) of [27] above is not, in my view, a matter which is covered by s 78B of the Judiciary Act. There is nothing in the Constitution or the Judiciary Act governing the way in which this Court should exercise its appellate jurisdiction. That subject matter is dealt with by Pt III, Div 2 of the Federal Court Act (especially s 24 and s 25). Section 25(2)(b) is in the following terms:

25 Exercise of appellate jurisdiction
...
(2) Applications:

...

(b) for an extension of time within which to institute an appeal to the Court; or

...

may be heard and determined by a single Judge or by a Full Court.

31. My power to deal with the present application derives from that subsection. The points raised by the applicant involve only the interpretation of the Federal Court Act. He did not argue that s 25(2)(b) of the Federal Court Act was invalid for some constitutional reason.
32. The matter noted at subpar (b) of [27] above does not arise in the present application. At most, the only possible relevance which this matter could have to the present application is in relation to the question of delay and in relation to the applicant’s explanation for that delay. The applicant does not challenge the Registrar’s decision of 18 December 2008 in these proceedings. He has already done that in separate proceedings and failed.
33. The final matter raised by the applicant which I have noted at [27] above does not involve any relevant constitutional question. Whilst he may have a right to seek judicial review of a decision of the type made by the respondent in the present case, that right does not extend so far as to exclude the exercise of a judicial discretion to decline relief summarily in appropriate circumstances (for example, for the reasons determined by Cowdroy J in the present case).
34. For these reasons, I do not think that the present matter involves a matter arising under the Constitution or involves the interpretation of the Constitution. There was and is no warrant for s 78B notices to be issued.

THE DECISION OF COWDROY J

35. Before Cowdroy J, the applicant sought judicial review pursuant to s 5 of the ADJR Act and s 39B of the Judiciary Act of a decision made by Centrelink (an operational arm of the respondent) on 27 March 2008 to reject his application to receive payments under the Austudy scheme. Reasons for that decision were provided by the respondent to the applicant in a letter dated 4 April 2008 sent by the respondent to the applicant.
36. Centrelink had rejected the applicant’s claim for Austudy because the total value of his assessed assets exceeded the assets value limit prescribed for Austudy under the relevant legislative provisions.
37. In Rahman [2008] FCA 1634 at [5], his Honour said:
    5. The applicant has provided written submissions to the Court which, together with his application, raise numerous matters. The applicant claims that an ‘unlawful act, transgress and abuse of power’ has occurred; that the rules of natural justice have been breached; that the respondent made the decision of 27 March 2008 ‘based on forgery and false instruments’ relating to the applicant’s financial assets; and that the decision of 27 March 2008 ‘involves an error of law and must be void as the determination was affected by into [sic] corroboration of false instruments’ relating to the financial assets of the applicant. The applicant also submits that the respondent’s decision constitutes an attempt to disadvantage the applicant’s Austudy claim ‘by making a statement known to be false or misleading “in a material particular” or made with reckless disregard as to whether it is’.
       
38. At [11] of his Honour’s reasons his Honour held:
    11. Under the Social Security (Administration) Act 1999 (Cth) (‘the Social Security Act’) the applicant has the option of seeking review by an Authorised Review Officer: see ss 129 and 135. If the review proves to be unfavourable to the applicant, he is entitled to appeal to the Social Security Appeals Tribunal: see s 142 of the Social Security Act. From that tribunal the applicant is entitled to seek review in the Administrative Appeals Tribunal: see s 179 of the Social Security Act.
        
39. After reviewing the authorities of McGowan v Migration Agents Registration Authority [2003] FCA 482; (2003) 129 FCR 118 and Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26; (2008) 166 FCR 108, his Honour declined to entertain the applicant’s Application and dismissed it summarily on discretionary grounds. His Honour did so in the exercise of this Court’s undoubted discretion to decline to entertain such an application in circumstances where there were ample alternative avenues available to the applicant for a full merits review of the respondent’s decision to reject his claim for Austudy and where the applicant had not yet pursued any of those avenues.

THE APPLICANT’S DRAFT NOTICE OF APPEAL

40. This document is also poorly expressed. It contains many irrelevant references and assertions.
41. Doing the best I can to understand the document, the applicant seems to want to agitate five grounds of appeal, namely that:

(a) His Honour’s discretion miscarried because his Honour misunderstood and misapplied the principles articulated in McGowan [2003] FCA 482; 129 FCR 118 and in Transport Workers’ Union of New South Wales [2008] FCAFC 26; 166 FCR 108;

(b) The decision to reject his claim for Austudy was not made by the Secretary of the Department personally, as was required by the relevant legislative provisions;

(c) The respondent had no power to investigate the applicant’s claim for Austudy or to gather information from third party sources in respect of that claim;

(d) His Honour erred in failing to require the respondent to answer more fully than it had a subpoena issued by the applicant; and

(e) His Honour was actually biased against the applicant.

42. As to the allegation of actual bias, it seems that the applicant wishes to contend that:

(a) His Honour decided to find against the applicant because the applicant was not of the same social class or race as his Honour. By making this allegation, the applicant is suggesting that, at least to some extent, his Honour was prejudiced against the applicant by reason of the applicant’s race;

(b) His Honour did not even attempt to consider the applicant’s case according to law (his Honour’s decision, according to the applicant, being a “sham and derision”); and

(c) His Honour was improperly influenced by some extraneous (but unidentified) factor or circumstance when making the decision which he did.

43. These are very serious allegations indeed, especially when made (as here) against a sitting judge.
44. In oral submissions made in support of the present application, the applicant gave inconsistent responses to direct questions from me designed to ascertain whether the discrimination allegations referred to in subpar (e) of [41] above and subpar (a) of [42] above would be pressed.
45. In the circumstances, I must assume that those allegations will be pressed if the applicant is successful in the present application.
46. As oral argument progressed, the applicant informed me that he wished to add to the allegations of bias already notified in his draft Notice of Appeal by raising the following additional grounds, namely, that:

(a) His Honour was biased against him because:

(i) He (the applicant) was representing himself and was not a qualified lawyer; and

(ii) His Honour favoured the solicitor who represented the respondent before his Honour because his Honour knew that solicitor; and

(b) His Honour did not give any or any proper consideration to the applicant’s arguments.

47. On the material before me, there is no prospect that any of these allegations would be made out at the hearing of any appeal.
48. I will return to these allegations later in these Reasons.

THE RELEVANT PRINCIPLES

49. The decision of Cowdroy J was a final decision which determined the application before his Honour.
50. Accordingly, the applicant had a right to appeal from that decision provided that he did so within the time limited by the Federal Court Rules for such an appeal.
51. Order 52 r 15 of the Federal Court Rules is in the following terms:

Time for filing and serving notice of appeal
15(1) The notice of appeal shall be filed and served:
(a) within 21 days after:
(i) the date when the judgment appealed from was pronounced;
(ii) the date when leave to appeal was granted; or
(iii) any later date fixed for that purpose by the court appealed from; or
(b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.
(2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.
(3) An application for leave under subrule (2) must:
(a) be in accordance with Form 54A; and
(b) include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing; and
(c) be accompanied by an affidavit setting out:
(i) the nature of the matter; and
(ii) the factual and legal issues in dispute; and
(iii) the reasons why leave should be given.
(4) If a respondent objects to an application being dealt with without an oral hearing, the respondent must:
(a) file a notice to this effect; and
(b) serve a copy of the notice on each other party to the application.

52. It is clear that the applicant did not file a Notice of Appeal within the time limited for an appeal from Cowdroy J’s decision viz by 25 November 2008.
53. Accordingly, the applicant must satisfy the test for leave to file and serve a Notice of Appeal out of time embodied in O 52 r 15(2) of the Federal Court Rules. That subsection requires that “special reasons” must exist which justify the grant of such leave.
54. In Parker v The Queen [2002] FCAFC 133, at [6] in the reasons of the Court, a Full Court of this Court said:
    6. In the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matters which attracted his Honour’s attention were set out at 348-349:
       1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;
       2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
       3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
       4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and
       5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
          
55. In the same case, their Honours reviewed a number of other authorities which explained the basis upon which the Court will exercise its discretion to extend time for a litigant to appeal from a judgment of a single judge of the Court. Their Honours made clear that the overriding consideration is the interests of justice.
56. The prima facie strength of the proposed appeal needs to be considered.
57. There must also be an acceptable explanation for the delay (QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7]).
58. Even where special reasons can be identified, the Court has a discretion to grant or refuse to grant the extension of time sought (per Branson J in Howard v Australian Electoral Commission [2000] FCA 1767 at [7]. In Howard [2000] FCA 1767 at [7], Branson J also said:

Factors to be taken into account in the exercise of the discretion include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed ground of appeal (Jess v Scott at 188).

CONSIDERATION

59. The applicant has not complied with O 52 r 15(3) of the Federal Court Rules. The affidavit sworn by him and filed in support of the present application does not address the matters required to be addressed by subrules (3)(c)(i) to (iii) of O 52 r 15. This non-compliance is a matter of substance not merely a matter of form. There are good reasons why the Court needs evidence going to the matters referred to in that subsection. Generally speaking, the Court should insist upon such evidence being tendered at the hearing of applications of this sort.
60. There are suggestions in the affidavit filed by the applicant in support of the present application that, at least from 17 December 2008, he was endeavouring to make an application for leave to file a Notice of Appeal out of time but was having difficulty ascertaining precisely how to do this. It must be remembered that he did not make an appropriate application until the middle of February 2009.
61. The evidence which might support such a conclusion is somewhat scant. In my view, it falls short of what would be required to make good such a contention.
62. As I have already observed there is no explanation or no satisfactory or sufficient explanation for the delay between 25 November 2008 and 14 December 2008. It must also be remembered that the applicant chose to absent himself from Court at 2.15 pm on 4 November 2008 when Cowdroy J delivered his oral judgment. If the applicant had attended Court on that occasion, he would have known then and there that his application had been dismissed by his Honour and would also have been apprised of the reasons given by his Honour for the orders which he then made. The applicant’s failure to attend at Court on that occasion contributed to his failure to lodge his Notice of Appeal within time.
63. However, I will assume, for the moment, in favour of the applicant that, at all times since 14 December 2008, he has been genuinely and diligently trying to make application to the Court for leave to file a Notice of Appeal from the judgment of Cowdroy J out of time. He did not, in fact, file the necessary application until 16 February 2009. I will make the assumption to which I have referred in order to give full consideration to the remaining factors referred to in Parker [2002] FCAFC 133 and to the interests of justice in the present case.
64. The delay might not weigh heavily against the applicant in the present case if the applicant were able to persuade me that his appeal had some prospect of success and that, to deny him his right of appeal, would be to cause him serious injustice.
65. For the moment, I will also assume that the delay referred to has been satisfactorily explained or, alternatively, is not of such duration as to weigh heavily in the balance against the grant of the leave sought.
66. I will now consider the strength of the appeal foreshadowed in the draft Notice of Appeal attached to the applicant’s affidavit.
67. I have noted at [41], [42] and [46] above the grounds of appeal which I have been able to distil from that draft Notice of Appeal and the additional matters raised by the applicant in oral argument.
68. The first of these grounds involves the contention that his Honour’s discretion miscarried when his Honour declined to entertain fully the applicant’s application for judicial review.
69. I think that his Honour correctly encapsulated the principles from McGowan [2003] FCA 482; 129 FCR 118 and Transport Workers’ Union of New South Wales [2008] FCAFC 26; 166 FCR 108 and that it was plainly open to his Honour to exercise his discretion in the manner in which he did. Unless it could be established that his Honour applied the wrong principles or invoked the correct principles but applied them in an obviously incorrect way, his Honour’s exercise of discretion could not be overturned on appeal. The decision which his Honour made was clearly open to him especially as the gravamen of the applicant’s complaint against the respondent concerned the valuation of his assets made by the respondent. This was a matter apt for merits review. His Honour correctly identified the merits review pathways open to the applicant. Further, the approach which his Honour took was advocated to his Honour by the respondent both in the written submissions made on behalf of the respondent to his Honour and in oral submissions made during the hearing which took place before his Honour. Notice of that approach was fairly given to the applicant. For these reasons, in this case, the applicant has failed to demonstrate that he has any prospect of establishing that Cowdroy J committed error of the relevant kind. This ground is hopeless.
70. As to the second ground of appeal (the contention that the decision under review before his Honour had not, in fact, been made by the Secretary of the relevant Department), given the approach which his Honour took to the application before him, his Honour was not called upon to decide this point and did not do so. His Honour was either right or wrong in the approach which he took. At [69] above, I have held that his Honour’s decision was based upon a correct appreciation of the relevant principles and would not be disturbed on appeal. A consideration of the point now raised formed no part of his Honour’s reasoning. If, contrary to these views, it is necessary to consider this ground of appeal for the purposes of the present application, I will now do so.
71. The relevant decision was made by a delegate of the respondent and not by the respondent personally. As far as I can tell, the applicant tendered no evidence before his Honour that would support a submission that the person who actually made the relevant decision did not have the power to do so. In order for such a contention to have succeeded, the applicant would need to have proven that the relevant decision maker had no authority to make the decision which he or she made. There is no evidence at all to suggest that this was the case. Nor is there any substance in the applicant’s contention that the relevant decision had to be made by the respondent personally and, therefore, that the power to make that decision in the present case could not be validly delegated.
72. As to the third ground of appeal (no power in the respondent to investigate the applicant’s claim), I do not think that this contention can possibly succeed. Section 192 of the Social Security (Administration) Act 1999 (Cth) gives ample power to the respondent to gather information for the purpose of considering whether a person who has made a claim for a social security payment is or was qualified for the payment. Further, the respondent is required to assess a claim for a social security payment and is not bound to accept such a claim on its face as being valid without investigation. This ground cannot be sustained.
73. As to the fourth ground (the subpoena ground), it is very difficult to understand the applicant’s complaint in relation to the subpoena issued by him. The applicant did issue a subpoena to the respondent. Technical objections were taken to it. Nonetheless, at a listing which took place before 4 November 2008, the respondent did his best to produce the documents called for by the subpoena. No further call under the subpoena was made during the hearing before Cowdroy J. No application was made to Cowdroy J in respect of the production provided by the respondent in answer to the subpoena. There is no substance in this ground.
74. As to the final ground of appeal (actual bias), I am not prepared to regard that ground as having any substance whatsoever in the absence of some evidence tending to support the various assertions of bias made by the applicant. The assertions which underpin this broad ground of appeal constitute very serious allegations against a judge of this Court. They must be distinctly made and, even at this early stage, must be demonstrated to have some proper basis both in fact and in law. Such allegations ought not be made in a Notice of Appeal or in a draft Notice of Appeal as bare assertions unsupported by any evidence whatsoever.
75. In SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668, after reviewing a number of relevant authorities, von Doussa J said (at [38]):

In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.

76. I well appreciate that I am not presently dealing with an appeal from the judgment of Cowdroy J. I have under consideration the grant of an indulgence to the applicant, ie whether he should be permitted to file a Notice of Appeal out of time. A factor in my consideration of the present application, however, is the strength of the proposed appeal. In my view, in considering that aspect of the matter for the purposes of the present application, if allegations of this nature are to be made, I am entitled and, indeed, obliged, to require much more from the applicant than mere assertions made by him unsupported by any evidentiary material.
77. In an application such as the present application, the Court will require admissible and probative evidence in support of such serious allegations before it will regard those allegations as having any substance at all.
78. The nature and extent of that evidence will depend upon all of the circumstances of the case, including the seriousness of the allegations; the identity of the person against whom they are made; the circumstances in which they are made; and the time at which they are made.
79. There is no evidence before me which would support the allegations of bias sought to be made by the applicant in the present case. In my view, no weight should be given to the bald assertion made by the applicant that his Honour was biased against him. This is particularly so when one of the reasons for this alleged actual bias is said to be racial prejudice. This Court should not permit allegations of that kind to be bandied about unless, even at this early stage, some proper basis for them is established to the satisfaction of the Court.
80. In those circumstances, I do not think that the grounds of appeal foreshadowed in the draft Notice of Appeal have any prospects of success. To allow a Notice of Appeal to be filed in the form of the applicant’s draft Notice of Appeal, would be to do no more than to allow unsubstantiated, unsupported and scandalous allegations to be made against a judge of this Court. I am not prepared to give the applicant free rein to conduct litigation in this way.
81. In my view, no “special reasons” exist for the grant of leave sought in this case. The delay in filing the Notice of Appeal has not been satisfactorily explained; the requirements of the Rules of Court have been ignored; and there is no substance in the appeal in any event. The interests of justice are served by refusing the leave sought by the applicant.
82. I propose to dismiss the Application with costs.
83. I make the following orders:
    1. Order that the Application be dismissed.
    2. Order that the applicant pay the respondent’s costs of and incidental to the Application.
       

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated: 18 March 2009

	The Applicant appeared in person
Solicitor for the Respondent:	Ms DJ Watson of Australian Government Solicitor

Date of Hearing:	16 March 2009
Date of Judgment:	18 March 2009