Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18 (27 January 2010)

Last Updated: 2 February 2010

FEDERAL COURT OF AUSTRALIA

Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18

Citation:		Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18
Parties:		QING QUAN YAO v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
File number(s):		NSD 860 of 2009
Judges:		PERRAM J
Date of judgment:		27 January 2010
Catchwords:		ADMINISTRATIVE LAW – Appeal – from Administrative Appeals Tribunal – whether notice of objection to competency may be filed in appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – whether notice of objection to competency is a form of application or merely an instrument with costs consequences ADMINISTRATIVE LAW – Appeal – from Administrative Appeals Tribunal – whether decision by Tribunal not to issue a subpoena is a decision to which s 44 of the Administrative Appeals Tribunal Act applies – whether appeal competent
Legislation:		Administrative Appeals Tribunal Act 1975 (Cth) s 44 Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court of Australia Act 1976 (Cth) s 31A Federal Court Rules (Cth) O 53, O 53 r 2, O 54 r 4, O 54 r 7, O 54A, O 54B r 3, O 54B r 18, O 59 r 1, Judiciary Act 1093 (Cth) s 39B Migration Act 1958 (Cth)
Cases cited:		Coal and Allied Operations Pty Ltd v Industry Research and Development Board [1992] FCA 890 (unreported decision of 16 November 1992) referred to Robinswood Pty Ltd v Commissioner of Taxation [1998] FCA 729 (unreported decision of 11 June 1998) referred to Rhodes v Tower Australian Superannuation [2004] FCA 812 referred to Mirvac Homes (NSW) Pty Ltd v Airservices Australia [2004] FCA 109 referred to Alexakis v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1878 doubted Burgess v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 861 doubted Director General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80 applied Kowalski v Repatriation Commission (2009) 259 ALR 444 applied Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877; (2000) 64 ALD 325 referred to
Date of hearing:	10, November 2009
Date of last submissions:	23 and 30 November 2009
Place:	Sydney
Division:	General Division
Category:	Catchwords
Number of paragraphs:	37
Solicitor for the Applicant:	(The applicant was self-represented)
Solicitor for the Respondent:	Australian Government Solicitors

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 860 of 2009

BETWEEN:

QING QUAN YAO Applicant

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

JUDGE:	PERRAM J
DATE OF ORDER:	27 JANUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicant’s notice of motion of 8 October 2009 be dismissed with costs;
2. The applicant’s application be dismissed;
3. The applicant is to pay the respondent’s costs of the proceedings.
   

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
GENERAL DIVISION	NSD 860 of 2009

BETWEEN:

QING QUAN YAO Applicant

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

JUDGE:	PERRAM J
DATE:	27 JANUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Mr Yao receives the Newstart allowance from Centrelink. For an eight week period Centrelink stopped the payment of that allowance. This was done because Mr Yao failed to sign “Activity Agreements” which required him to undertake activities at Mission Australia in Punchbowl. Mr Yao’s grievance is that he does not wish to perform the activities in Punchbowl. Instead, for reasons which appear to be related to the cost of travel, he wishes to undertake them in Bankstown. He contests Centrelink’s right, therefore, to stop paying him the allowance for the eight weeks period.
2. Mr Yao sought an internal review of a decision by Centrelink to stop the payment for the eight week period. That review was unsuccessful. A further review before the Social Security Appeals Tribunal also failed.
3. Undeterred Mr Yao has applied for a further review of that decision before the Administrative Appeals Tribunal (“the AAT”). That review is presently pending. On 23 July 2009 the AAT held a directions hearing to facilitate the orderly preparation of Mr Yao’s application for a review. He had earlier sought to have the Tribunal issue six summonses to various persons to give evidence before the AAT which, so it would seem, was refused in the Tribunal’s Registry. At the directions hearing Mr Yao made further submissions concerning his entitlement to have the six summonses issued. The presiding member then ordered the issue of one of those summonses but refused the issue of the remaining five. On 5 August 2009 the presiding member delivered thorough reasons for that decision, which were published on 7 August 2009.
4. Seven days later, on 12 August 2009, Mr Yao commenced the proceedings which are now before this Court. Because it is a matter in contest I shall, at this stage, say only that the application seeks to interfere with the presiding member’s refusal to issue the remaining five summonses. Shortly after the commencement by Mr Yao of these proceedings the respondent Secretary filed a notice of objection to competency. Sometime after that Mr Yao became concerned that Centrelink might dispose of or destroy documents relevant to his case before the AAT; consequently, he filed a notice of motion seeking orders whose effect would be to prevent that occurrence.
5. The Secretary’s objection to competency and Mr Yao’s application for preservation orders were heard by me together on 12 November 2009. In substance the issues which arise:

(a) the status of a notice of objection to competency;

(b) whether Mr Yao’s proceedings are competent; and

(c) whether the preservation orders should be made.

That nature of the notice of objection to competency

6. The Secretary formally moved on a notice of objection to competency which was filed on 15 September 2009 pursuant to consent orders made on 8 September 2009. Appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) are heard in the Court’s original jurisdiction and their procedure is expressly governed by Order 53 of the Federal Court Rules (Cth) (“the Rules”). Order 53 contains no provision for the filing of a notice of objection to competency. By contrast, in applications made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and the Migration Act 1958 (Cth) (“the Migration Act”) such a document is expressly contemplated by the Rules. In neither case is it, however, any kind of instrument by which an application to dismiss proceedings may be made. Order 54 deals with applications under the ADJR Act. Two of its provisions are relevant. The first is r 4 which provides:

If a respondent to an application objects to the competency of the application he shall, within 14 days after service upon him of the application, file and serve upon the other parties to the proceeding a notice of objection to competency, in accordance with Form 57, stating briefly the grounds of his objection.

7. The second is r 7 which provides:

(1) A party may apply to the Court:

(a) for a judgment in an application for an order of review under Order 20, rule 2 or section 31A of the Act; or

(b) to have an application for an order of review stayed or dismissed:

(i) under Order 20, rule 4 or 5; or

(ii) On a ground set out in section 10 of the Administrative Decisions (Judicial Review) Act 1977; or

(iii) in the exercise of the Court’s discretion.

(2) An application under this rule must be made within 14 days after the party is served with the application for an order of review.

8. A respondent to an application under the ADJR Act is, therefore, confronted with a choice between 3 options, which must be made within 14 days. He must choose to apply to dismiss the proceedings under the various procedures set out in r 7 or he must file a notice of objection to competency under rule 4 or he may do nothing. If he does nothing and the proceedings are subsequently dismissed for want of jurisdiction then it is likely that no costs will be made in his favour for r 4 is “clearly intended to encourage a respondent to an application to inform the applicant at the earliest possible date that jurisdiction is in issue” (Coal and Allied Operations Pty Ltd v Industry Research and Development Board [1992] FCA 890 unreported decision of 16 November 1992 per Beaumont J; applied Robinswood Pty Ltd v Commissioner of Taxation [1998] FCA 729 unreported decision of 11 June 1998 per Nicholson J; see also Rhodes v Tower Australian Superannuation [2004] FCA 812 at [14]- [15] per French J; Mirvac Homes (NSW) Pty Ltd v Airservices Australia [2004] FCA 109 at [5] per Brennan J). Thus the purpose of a notice of objection to competency is merely to put the applicant on notice of the objection and hence to put him at risk of an adverse costs order. It is plain that the notice is not a device by which an application to dismiss proceedings may be pursued. The machinery for that purpose is expressly found in r 7.
9. The same structure may be discerned in O 54B which regulates applications under the Migration Act; r 3 provides for the notice of objection to competency and r 6 for the corresponding application to dismiss the application. The same general concern to ensure that competency issues are flagged in a timely fashion may be seen in O 52 which regulates appeals in general. Rule 18 provides:

(1) A respondent may move on notice at any time for an order dismissing an appeal as incompetent.

(2) Upon the hearing of the motion, the burden of establishing the competency of the appeal is on the appellant.

(3) If a respondent does not move under subrule (1) but the appeal nevertheless is dismissed by the Court as incompetent, the respondent shall not, unless the Court otherwise orders, receive any costs of the appeal, and the Court may order that he pay the appellant any costs of the appeal proving useless or unnecessary.

10. The 14 day time limit and the procedure of the filing of a notice of objection is absent but r 18(3) continues to place an economic incentive on a respondent not to “save up” jurisdictional points.
11. The practice of this Court, on one possible view, appears to have departed from the terms of the rules in two ways which are pertinent. First, it has on occasions been assumed that the procedure of a notice of objection to competency is available in s 44 appeals: Alexakis v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1878 at [1] and [28] per Jacobson J; Burgess v Secretary, Department of Families Housing Community Services and Indigenous Affairs [2009] FCA 861 at [10]- [11] per Graham J. Secondly, one view of the same decision is that a notice of object to competency is a species of application by which proceedings may be dismissed.
12. Both of these assumptions are, with respect, incorrect. The reasons why O 53 does not contain provisions like r 4 and 7 of O 54 and O 54B are obscure but the short fact is that it does not and it would beyond a legitimate approach to the reading of the rules to proceed as if it did. Likewise, even if one could reason by analogy with O 54 and 54B and presume that there existed a notice of objection to competency under O 53 of the kind contemplated by r 4 of O 54 and O 54B the analogy would clearly have to extend to rule 7 of those Orders. It would follow that any such notice would not itself be an application to dismiss proceedings but rather merely a document securing the respondent’s rights to costs.
13. It follows that there is no process before me to which I may accede. However, I heard full argument on whether Mr Yao’s application was incompetent and I am satisfied, for reasons which follow, that it is. The power conferred by s 31A of the Federal Court of Australia Act 1976 (Cth) to dismiss a proceeding lacking reasonable prospect of success applies to proceedings under s 44 of the AAT Act and may be exercised ex mero motu.

Competency

14. Mr Yao’s application on its face was styled “Notice of Appeal” and expressed itself to be a form 55A “Notice of Appeal” filed pursuant to O 53 r 2 and O 59 r 1. So much is apparent from its heading which is as follows:

Form 55A Notice of Appeal
(Order 53, rule 2 and Order 59, rule 1)

IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

NSD 860/2009

On appeal from the Administrative Appeals Tribunal

BETWEEN:	QING QUAN YAO Applicant
AND	Secretary, Department of Education Employment and Workplace Relations Respondent

NOTICE OF APPEAL

1. TAKE NOTICE that the applicant appeals from the decision or determination of Administrative Appeals Tribunal given on 07 August 2009 at Sydney by which the Tribunal decided or determined DIRECTION AND REASONS FOR DIRECTION [2009] AATA 585 (attachment A).

15. Order 53 r 2 is explicitly concerned with the topic of appeals from the Tribunal and not with judicial review of that Tribunal’s decisions which are dealt with under Orders 54 (the ADJR Act) and 54A (s 39B of the Judiciary Act 1903 (Cth)) (“the Judiciary Act”).
16. I stress these apparently unimportant matters to underscore the difficulty in accepting Mr Yao’s submission that his “notice of appeal” was not, in fact, made pursuant to s 44 of the AAT Act. That difficulty is further exacerbated because the notice of appeal explicitly sets out the “questions of law” which are said to arise on the appeal, a procedural element wholly unnecessary in judicial review proceedings. The questions are as follows:

2. THE QUESTIONS OF LAW raised on appeal are —

Whether the applicant did have a legitimate forensic purpose to serve the summonses.

Whether the applicant was engaging in a fishing expedition.

Whether the all six summons required by the applicant should be issued.

17. Section 44 of the AAT Act confirms the jurisdiction of this Court to entertain the questions thus posed. By contrast, applications under the ADJR Act and under s 39B of the Judiciary Act do not require the stating of such questions. Further, in any judicial review proceedings the Tribunal itself would necessarily be a respondent which is plainly not the case with the present proceeding. For all those reasons I cannot accede to Mr Yao’s submission that his notice of appeal is anything but that which it appears to be, namely, an appeal pursuant to s 44 of the AAT Act.
18. That being so the appeal is clearly incompetent. Section 44 of the AAT Act provides for appeals from “decisions”. In Director General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80 the meaning of the word “decision” in s 44 was examined. The director general had sought to appeal, pursuant to s 44, from the Tribunal’s preliminary determination that it had jurisdiction to entertain Ms Chaney’s application to review the Department’s decision to cancel her widow’s pension. A majority of the Full Court (Deane J with whom Fisher J agreed) concluded that the word “decision” in s 44 should, for contextual reasons, be given a narrow reading and that so read it was confined to decisions “which constitute[s] the effective decision or determination of the application for review”. The proper construction of “decision” in s 44 is a matter upon which minds might legitimately differ as Northrop J’s dissent in Chaney amply demonstrates. However, Chaney has been repeatedly applied in this Court over a number of years: see Kowalski v Repatriation Commission (2009) 259 ALR 444 at 447-448 [18]-[23] per Spender, Graham and Gilmore JJ; and also the analogous reasoning in Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877; (2000) 64 ALD 325 at 334-335 [26]- [28].
19. In this case the five decisions under review are decisions by the learned Tribunal member not to issue summonses to give evidence. Such a decision is not, to use the language of Deane J in Chaney, “a decision constitut[ing] the effective decision of determination of the application for review”. It follows that the purported appeal is incompetent.
20. During the course of the oral argument Mr Yao sought to outflank the Secretary’s submission by seeking to recharacterise the notice of appeal as an application pursuant to the ADJR Act or s 39B of the Judiciary Act. I have already rejected that argument. However, it is appropriate to consider whether any such a case might have merit because, if so, the appropriate course might well be to strike out the notice of appeal but grant leave to put on an amended document. I leave to one side procedural questions such as whether a proceeding originally constituted as an appeal under the AAT Act can be struck out and reformulated as an application under the ADJR or s 39B of the Judiciary Act.
21. I do not think that such a course, even if procedurally available, should be taken. This is for three reasons. First, as currently articulated the Tribunal is absent as a party whereas in any judicial review proceedings its presence would be a necessity. There was no application during the course of the hearing to join the Tribunal as a respondent nor any application to adjourn the present proceedings to allow such a course to be taken.
22. Secondly, Mr Yao’s basic complaint about the Tribunal’s decision is that it erred in concluding that the evidence sought through the issue of the summonses was not relevant. Leaving aside all the various ways in which an administrative lawyer might seek to attire such a proposition, I agree that the Tribunal member’s analysis is inevitably correct. The question which currently rests before the Tribunal awaiting determination is whether Mr Yao was obliged to enter into an activity agreement with Centrelink, whether he committed three “newstart participation failures” within a 12 month period and, if so, whether he had a reasonable excuse for so doing.
23. Three of the summonses whose issue Mr Yao sought were directed to a Ms Sharma who was the Secretary’s employee who was representing the Department before the Tribunal. The Tribunal found that there was no need to issue such a summons to Ms Sharma since she would be present at the eventual hearing and had given an undertaking to produce any relevant material required by the Tribunal. Given that the power to issue summonses is inevitably discretionary, I can discern in that approach no error of principle of the kind which might provide a basis for judicial review.
24. Mr Yao also sought to issue a summons to “Mary” at Mission Australia, Punchbowl. This the Tribunal declined on the basis that the recipient was insufficiently identified and also because the member could not understand how anything that witness might say would advance Mr Yao’s case on the three issues I have already identified. I can discern in that approach no error.
25. The last summons sought was to Ms Colwell at Centrelink, Bankstown. The Tribunal concluded that this evidence would have no relevance to Mr Yao’s case, a proposition with which I agree.
26. Thus, even if it were possible to overcome the many procedural hurdles standing in the way of treating Mr Yao’s appeal under s 44 of the AAT Act as an application for some species of judicial review I would not permit any such reformulation to take place. I take that course because I regard the prospects of success for such putative litigation as being a relevant discretionary matter to be taken into account in deciding whether to permit such a recasting to be undertaken. I should note, for completeness, that I am by no means convinced that Mr Yao, in fact, applied for such a recasting.
27. In those circumstances, the proceedings must be dismissed. Since the Secretary’s notice of objection to competency is itself incompetent I need make no order disposing of it. Despite that, it is appropriate that Mr Yao bear the Secretary’s costs of the proceedings. Although I have concluded that the procedure adopted to challenge the Court’s jurisdiction did not exist there were a number of cases which suggested the viability of that procedure. Ultimately, the Secretary’s point was entirely vindicated for the reasons he advanced. In those circumstances it is appropriate that he be awarded his costs.

The injunction issue

28. Mr Yao accepted that if his proceedings were found to be incompetent, the question of whether he was entitled to the injunctive relief he sought would fall away. Despite that proper concession, I should also record that I would not have granted such an injunction even if the proceedings had otherwise been competent.
29. The orders sought by Mr Yao in his notice of motion filed 8 October 2009 were as follows:
    1. An order that, until further order, the respondent whether by itself, its servants or agents (including Centrelink and Department of Education, Employment and Workplace Relationship), be restrained from destroying or hiding documents and backup (either in hard copy format or in digital format) that contain or partly contain documents of “A list of all job network members IN SYDNEY with information about current vacancies on 11 February 2008, 12 February 2008 and 13 February 2008” under Centrelink policy e-Reference 001.60070 — “Referring a job seeker to an employment service provider”.
       
    2. An order that the respondent itself, its servants and its agents (including Centrelink and Department of Education, Employment and Workplace Relationship), immediately printout (if original documents in digital format) or photocopy (if original documents in hard copy format) documents of “A list of all job network members IN SYDNEY with information about current vacancies on 11 February 2008, 12 February 2008 and 13 February 2008” under Centrelink policy e-Reference 001.60070 — “Referring a job seeker to an employment service provider” with a declaration (with name printed and signed) from Centrelink staff to confirm such and hand over to the court.
       
30. It will be seen that the first order is prohibitory in nature and seeks to preserve the integrity of certain classes of documents and that the second is mandatory and seeks to have the Secretary disgorge the contents of certain databases. It is useful to deal with these two separate claims individually.
31. Over objection by the Secretary I admitted into evidence paragraph 4 of Mr Yao’s affidavit affirmed 1 October 2009 and filed 8 October 2009 which is in these terms:

It is a well known fact Centrelink will destroy documents older than two years. A copy of that document is annexed and marked with the letter B.

32. I admitted this evidence, which is clearly hearsay, because the source of it was identified as annexure B. Annexure B is a print out of an internet page entitled “The Law according to Centrelink” which forms part of an internet forum of uncertain provenance. The particular person posting the information was identified only as “harmless” Although I have admitted paragraph 5 I am by no means certain, in light of the obscurity about the source, that it was in fact admissible.
33. However, it is not necessary to express a concluded view about that matter. This is because I regard the evidence as having no probative value. Who “harmless” is is not known. The matters raised by him are completely unsourced and his qualifications to express them are unarticulated. There are other portions of Mr Yao’s evidence which I rejected, each of which was, in varying degrees, directed to the end of showing the existence of a well founded concern that documents might be destroyed. Even if I had not rejected that evidence as inadmissible I would not regard any of it as establishing a reasonable basis for Mr Yao’s expressed concern.
34. I turn then to the mandatory order Mr Yao seeks. It will be seen that what is sought is a print out of a particular database as it was on 11 – 13 February 2008. Before me the Secretary called Mr Timothy J Barker, a member of the senior executive service of the Australian public service, to give evidence. This evidence was given by affidavit and Mr Yao did not seek to cross-examine him. Mr Barker is responsible for the day to day running of the Department’s employment system. Without dwelling unnecessarily on the detail of his evidence its burden was to the effect that the databases maintained by the Department are not retrospective in operation so that it is not physically possible to retrieve or reconstruct the states that the databases were in on 11-13 February 2008.
35. Mr Yao submitted that I should not accept this evidence because nothing had been said about back-up tapes. This point I take to be that, despite the databases not being operated in a retrospective fashion there may, coincidentally, be snapshots of them at various times in back-up sources.
36. There is no evidence that there are still extant such back-up tapes for those days, only Mr Yao’s surmise that there might be. More importantly, the man who presumably could have answered that question, Mr Barker, was not cross-examined by Mr Yao about it. In those circumstances, I do not think that Mr Yao has established on the balance of probabilities that the databases or snapshots thereof are available for the period 11-13 February 2008. Mr Barker’s evidence directly establishes that the databases themselves are not available; Mr Yao has not proven that they exist in some other place either. There is a difference between conjecture and evidence which in this case is fatal. In those circumstances, no basis would have been shown for the grant of mandatory injunction sought.

Conclusion

37. The proceedings are incompetent. They should be dismissed with costs.
    

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated: 27 January 2010