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Federal Court of Australia - Full Court |
Last Updated: 18 May 2009
FEDERAL COURT OF AUSTRALIA
Luck v Chief Executive Officer, Centrelink [2009] FCAFC 54
GAYE
ALEXANDRA LUCK v CHIEF EXECUTIVE OFFICER, CENTRELINK
and SECRETARY OF
DEPARTMENT OF HUMAN SERVICES
VID 54 of 2009
MOORE,
LINDGREN AND BENNETT JJ
15 MAY 2009
SYDNEY (HEARD IN
MELBOURNE)
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AND:
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THE COURT ORDERS THAT:
1. The motion seeking further time to make
submissions and an adjournment of the hearing be
dismissed.
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 eSearch on the
Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA
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VICTORIA DISTRICT REGISTRY
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VID 54 of 2009
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ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
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BETWEEN:
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GAYE ALEXANDRA LUCK
Appellant |
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AND:
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CHIEF EXECUTIVE OFFICER, CENTRELINK
First Respondent SECRETARY OF DEPARTMENT OF HUMAN SERVICES Second Respondent |
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JUDGES:
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MOORE, LINDGREN AND BENNETT JJ
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DATE OF ORDER:
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15 MAY 2009
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WHERE MADE:
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SYDNEY (VIA VIDEO LINK TO MELBOURNE)
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THE COURT ORDERS THAT:
1. The motion seeking orders of the Full Court for the disqualification of certain Judges be dismissed as incompetent, with no order as to costs.
2. The appellant pay the respondents’ costs of the appellant’s motion seeking further time to make submissions and an adjournment of the hearing.
3. The appeal be dismissed as incompetent.
4. The appellant pay the respondents’ costs of the
appeal.
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 eSearch on the
Court’s website.
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ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
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BETWEEN:
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GAYE ALEXANDRA LUCK
Appellant |
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AND:
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CHIEF EXECUTIVE OFFICER, CENTRELINK
First Respondent SECRETARY OF DEPARTMENT OF HUMAN SERVICES Second Respondent |
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JUDGES:
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MOORE, LINDGREN AND BENNETT JJ
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DATE:
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15 MAY 2009
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PLACE:
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MELBOURNE
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REASONS FOR JUDGMENT
INTRODUCTION
1 These reasons relate to an appeal that was heard on 7 May 2009. The appellant applied for an adjournment. Upon our refusal of that application, she indicated that she was not in a position to make oral submissions and that she would leave the Court and go home. In these circumstances, we did not call on counsel for the respondents to address us orally, and indicated that we would determine the appeal on the basis of the appellant’s written draft outline of argument and the respondents’ outline of submissions.
2 The appellant purports to appeal from three judgments of the Court delivered by Tracey J (the primary Judge) on 20 August 2008, 15 October 2008 and 10 December 2008. The nature of the appeal is expressed in a supplementary notice of appeal that was filed on 2 February 2009.
3 It is necessary first that we address two motions brought by the appellant by notices of motion both filed on 1 May 2009.
4 By the first notice of motion (the Disqualification Motion), the appellant seeks from the Full Court "orders for ... the disqualification of" Moore J and Bennett J, members of the Full Court, and the primary Judge, Tracey J, on the ground, in each case, of reasonable apprehension of bias.
5 The Registry correctly informed the appellant that this was not a matter for determination, let alone the making of orders directed to the respective Judges, by the Full Court.
6 On the hearing it was explained to Ms Luck that it was a threshold issue whether Moore J and Bennett J would recuse themselves. The appellant asked each of those Judges to do so. They declined, for reasons that they gave at the time, and the matter proceeded before the Full Court
7 The Disqualification Motion should be dismissed as incompetent. We should not be understood, however, to be deciding that it is never appropriate for a party to move a Judge constituting the Court to disqualify himself or herself by notice of motion supported by affidavit. That is an issue that we are not presently called upon to consider.
8 Appropriately, counsel for the respondents did not make submissions on the Disqualification Motion. There should be no order as to costs on that motion.
9 We turn now to the background to the appellant’s second motion, which we will call "the Adjournment Motion".
10 At the callover held by Ryan J on 3 February 2009, the appellant asked that this appeal be stood over to the August 2009 Full Court sittings. She had two other appeals in that callover – VID 898 of 2008 and VID 899 of 2008. Those two appeals were from orders made in proceedings that may be described as "Freedom of Information proceedings". The appellant was content for those two appeals, but not the present one, to be fixed for hearing during the current Full Court Sittings. In the event, Ryan J listed the present appeal for hearing on 7 and 8 May 2009, appeal VID 898/08 for hearing on 19 May 2009, and appeal VID 899/08 for hearing on 25 May 2009. The spacing of the three fixtures was designed to accommodate the appellant’s need to have time for preparation. The appellant had also asked that a different bench of three Judges hear each of the three appeals. The spacing of the appeals probably made it inevitable that the hearings would be before three separate Full Court benches, as has transpired to be the case.
11 As at the time of the callover on 3 February 2009, the primary proceeding from the orders in which the present appeal is brought (VID 488 of 2008 – the Primary Proceeding) was fixed for hearing before the primary Judge on 23 April 2009. The fact that the present appeal would not be heard until after that date would have implications for that hearing. On the day following the callover, 4 February 2009, the parties consented to the primary Judge’s staying the Primary Proceeding. His Honour, Tracey J, ordered that:
1. There be a stay of this proceeding, including the directions made by the Court on 10 December 2008, pending the determination of the applicant’s appeal against the judgment of the Court on 10 December 2008 (VID 54 of 2009).
2. The stay is granted upon the condition that the applicant prosecute the appeal (or application for leave to appeal) expeditiously.
12 The appellant applied to the Full Court that was seized of appeal VID 898/08 for an adjournment of the hearing of that appeal, inter alia, because of her need to prepare for the hearing of the present appeal. On 3 March 2009, the presiding Judge in that Full Court ordered that the hearing fixture for 19 May 2009 be vacated and that the appeal be stood over for hearing to the August 2009 Full Court sitting period.
13 The appellant had also applied to have appeal VID 899/08 stood over to the August Full Court sittings. Her application to that end was to be heard following the hearing of the present appeal on 7 May 2009.
14 On 27 April 2009 the appellant wrote a lengthy letter to the Chief Justice. In that letter, the appellant complained of her treatment by this Court "as a disabled, self-represented litigant". Relevantly, for present purposes, the appellant stated in her letter:
I am afraid that I will be at a great disadvantage because of the early hearing date required of me for VID 54/2009, the lack of pro bono assistance I sought and was refused, and my impecunious circumstances preventing me from being able to access transcripts of some of the hearings of proceedings and the refusal of the Court to authorise my access to recordings of all hearings of proceedings, and by the nature of these matters, and my grounds of appeal, those being discrimination, bias, prejudgment, lack of procedural fairness and the denial of natural justice, by the same Judge who has heard all matters, it is necessary for me, not only to research and prepare the arguments for the VID 54/2009 matter, but for VID 898 and VID 899/2009 as well. The judgments made are all interconnected and each hearing in each matter has an affect [sic] upon the others and therefore each cannot be considered on its own for the purpose of arguing my grounds of appeal. It is a huge task and if I am to receive my right to fair hearings (as enshrined in Article 14 of the International Covenant, Civil and Political Rights ...) which is an essential aspect of the judicial process and is indispensable for the protection of other human rights, I require equal access and equality before the Court. As I have been denied access to some of the elements of that right, and that is why I am appealing the judgments of his Honour, Justice Tracey, I believe that the only assistance now available to me for my right to equality before the Court, would be to grant me further time to prepare my submission for such complex and voluminous matters, given that I am a disabled lay person without assistance. I originally sought, at the callover in February, to have them listed for August sittings, as I knew that it would be too difficult for me at this time, in light of my unrepresented, unassisted circumstances and my other very important obligations for my studies at the end of semester. I was pressed by his Honour, Justice Ryan and relented, but now it is clearly apparent that if I go to appeal on VID 54/2009 in May, I will be severely disadvantaged and would not believe I was in any way equal to the respondents with their huge team of Australian Government Solicitors and Barristers, as before the Court.15 On 30 April 2009, the National Appeals Registrar of the Court wrote to Ms Luck a letter relating to all three appeals (VID 54/2009, VID 898/2008 and VID 899/2008). The letter noted that appeal VID 898/2008 had already been adjourned to the August 2009 Full Court sitting period for hearing (see [12] above). The letter advised the appellant as follows:
Please note that unless or until the Court makes any further orders or directions in respect of the conduct of the hearing of VID 54/2009 and VID 899/2008, you are required to comply with any orders or directions made to date and note that the hearings will proceed as scheduled on 7 and 25 May 2009, respectively.16 By the Adjournment Motion, the appellant sought, first, to be given further time to prepare a final outline of argument in this appeal and to prepare for the hearing. In effect, by that order she was seeking an adjournment. In any event, she also sought the following order:
The appellant is disabled, and seeks, in accordance with expectations based on the provisions of sections 6 and 24 of the Disability Discrimination Act 1992, to be granted that further time for making submission and the adjournment of the hearing of this appeal to dates in the August sittings of the Full Court.17 The Adjournment Motion was supported by an affidavit made by the appellant on 1 May 2009. Paragraph 1 of that affidavit was as follows:
I am [sic] disabled student enrolled in a Bachelor of Arts Degree Course at Deakin University since 1st Semester 2007, and Bachelor of General Studies Degree Course at the University of Southern Queensland, since 2nd Semester 1998. I receive Centrelink benefits which include Disability Support Pension, Pensioner Education Allowance, Mobility Allowance, Pharmaceutical Allowance and Rent Assistance. I am proceeding in the Federal Court of Australia in person, pursuant to the Administrative Appeals Tribunal Act 1975, Federal Court of Australia Act 1986 [sic] and the Federal Court Rules and Administrative Decisions (Judicial Review) Act. I suffer from various diagnosed chronic and acute illnesses, including spinal disc disease, progressive systemic sclerosis, post traumatic stress disorder, and other medical conditions for which I am being treated. I am also in financial hardship and due to the aforementioned, I have special needs which require reasonable adjustments, special consideration and various economic, physical and social concessions.The appellant’s affidavit also quoted at length from the letter that she had written to the Chief Justice on 27 April 2009 (see [14] above).
18 We dismissed the Adjournment Motion for the following reasons.
19 First, the appellant had had since 3 February 2009 in which to prepare for the hearing and, as noted earlier, the spacing of the appeals (7 and 8 May, 19 May and 25 May) was to assist her.
20 Second, the appellant had obtained a deferral of the hearing of the Primary Proceeding on the express condition imposed by his Honour that she pursue the present appeal expeditiously. The other parties’ legitimate interest in having the Primary Proceeding brought to finality must be borne in mind.
21 Third, since 3 March 2009 when the appellant obtained a vacation of the hearing VID 898/08, she had been facing two, not three, appeals for hearing in the May sittings.
22 Fourth, the appellant had been given no reason to think that her application for an adjournment would be granted or that she was entitled to refrain from preparing for the hearing.
23 Fifth, the appellant tendered medical certificates from Dr Priscilla Leow and Dr William L Varney, both dated 5 May 2009 but we did not find these persuasive. Dr Leow stated that the appellant needed ongoing medical treatment for the next three months and that she was "still too distressed and too unwell to cope with any demands which she finds traumatic, apart from basis requirements of daily living". The doctor added: "Further stress and emotional trauma will exacerbate the symptoms and progress her medical condition". Dr Varney stated that the appellant’s "work endurance is affected" by "her various medical conditions".
24 The two medical reports did not offer any suggestion that the appellant’s condition was likely to improve by the August sittings or after any particular period. Neither did they explain, for example, precisely how any disability or condition from which the appellant suffered would prevent her from participating fully in the hearing on 7 May 2009. The highest to which the medical evidence went was that the stress of the hearing would exacerbate the symptoms and progress of the appellant’s various medical conditions. So far as the medical evidence went, this would be true of a hearing of the appeal in the August Full Court sittings or, for that matter, at any time.
25 Sixth, the appellant had in fact filed a draft outline of her argument in this appeal. She was to be given an opportunity on the hearing to elaborate on that draft written outline. Moreover, we thought it appropriate to allow the appellant time following the hearing in which to supplement her submissions in writing, and it appeared to us that this would amply accommodate her asserted needs. When this offer was made to her, however, she declined it, insisting that she was entitled to make oral submissions and to do so at a time convenient to her – a contention which we reject.
26 Seventh, the appellant had, earlier in the morning, pressed her application that two members of the Court recuse themselves, both in writing and orally, without any indication that she was experiencing any difficulty.
27 Eighth, it emerged in the course of oral submissions that the stance taken by the appellant was that she was entitled to an oral hearing at whatever time she might find convenient. When it was put to her that if all three appeals were stood over to the August Full Court sittings, she was likely to find herself in the same position, it became clear that she could not deny that this was so.
28 We considered that notwithstanding the appellant’s medical problems and the undoubted burden and stress which the numerous pieces of litigation that she has launched impose upon her, the demands of justice did not require that the appeal be adjourned.
29 It was for the above reasons that the Court dismissed the Adjournment Motion on 7 May 2009 and proceeded to deal with the appeal. The appellant should pay the respondents’ costs of the Adjournment Motion.
THE APPEAL
The three judgments of the primary Judge
30 On 20 August 2008 the primary Judge made orders for the filing and serving of submissions in the Primary Proceeding and ordered that the name of Jeff Whalan be removed from the title of the First Respondent.
31 On 15 October 2008 his Honour made orders refusing the appellant’s application that he "withdraw from hearing the proceeding" and refusing her leave to appeal from his order of 20 August 2008 that the name of Jeff Whalan be removed from the title of the First Respondent. The primary Judge also made orders for the filing of submissions by the appellant, vacated earlier orders for submissions, and fixed the Primary Proceeding for hearing on 10 December 2008 (a fixture that was later vacated).
32 On 10 December 2008 the primary Judge made orders:
• dismissing the appellant's application for enlargement of time in which to seek review of the decisions of the First Respondent dated 31 July 2006 and 10 August 2007;• striking out from the application for review, paras 2, 3 and 5, and para 4 insofar as it related to conduct relating to the making of decisions referred to in paras 2 and 3 of the application;
• removing as a party to the proceeding the Second Respondent on the basis that she was not a necessary party to the proceeding;
• refusing the appellant’s application to have the Commonwealth of Australia joined as a party to the proceeding.
Issues on the appeal
33 The issues raised by the appeal are as follows:
(1) whether the appellant requires the Court’s leave to appeal against the judgments of the primary Judge;(2) if so, whether the appellant requires an extension of time in which to apply for leave;
(3) if so, whether time should be extended.
Relevant factual background
34 On 30 June 2008 the appellant filed the application for an order of review that launched the Primary Proceeding. The application was accompanied by an affidavit by the appellant sworn on 30 June 2008.
35 The appellant sought to review three decisions of the First and Second Respondents. She contended that the decisions were unlawful and gave rise to grounds of review under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act). Each of the three decisions was said to have been made under:
• the Commonwealth Services Delivery Agency Act 1997 (Cth);• the Public Service Act 1999 (Cth);
• the Public Order (Protection of Persons and Property Act) 1971 (Cth); and
• "Social Security law".
36 The three decisions were:
(i) an undated decision made by a delegate of the First and Second Respondent, described by the appellant as "the unknown Area Manager, Centrelink", notice of which decision was received by the appellant on 3 June 2008 and which restricted the means by which the appellant was permitted to contact Centrelink for a period of three months.(ii) A decision made by a delegate of the First and Second Respondents described as "the unknown Area Manager, Centrelink" dated 10 August 2007 and notified to the appellant on 14 August 2007, which restricted the means by which the appellant was permitted to contact Centrelink for a period of three months.
(iii) A decision made by a delegate of the First and Second Respondents, namely, M Withnell, the Area Manager, Centrelink, Area South East Victoria, dated 31 July 2006 and notified to the appellant on 2 August 2006, which restricted the appellant’s manner of access to Centrelink for a period of 12 months.
37 In addition, the appellant sought to review as "decisions" the conduct of each of the decision-makers leading to the making of the reviewable decisions identified in the preceding paragraph.
38 The appellant also sought to review an alleged failure of the First and Second Respondents to make a decision to review the decision of the South East Area Manager, M Withnell, of 10 August 2007, in circumstances in which the appellant had sought a review of Mr Withnell’s decision by the Chief Executive Officer of Centrelink, Jeff Whalan, on 3 October 2007.
39 It was not disputed that the first decision mentioned above, being the decision of which the appellant received notice on 3 June 2008, was amenable to judicial review. It is that decision to which the hearing of the Primary Proceeding will relate.
40 The First Respondent otherwise objected to the competency of the application for review by a notice of objection to competency dated 3 July 2008.
41 The First Respondent contended before the primary Judge that the decisions, the conduct, and the failure of 31 July 2006 and 10 August 2007 fell outside the time limit prescribed by s 11(3) of the ADJR Act for the commencement of applications for review.
42 On 10 December 2008 the primary Judge heard the First Respondent’s objection to the competency of the application in so far as it related to the decisions of the First Respondent dated 31 July 2006 and 10 August 2007.
43 His Honour delivered judgment that same day (see [32] above.
44 The primary Judge then made directions for the purposes of hearing and determining the application for review of the decision of 3 June 2008.
45 On 22 January 2009 the appellant filed the notice of appeal against the judgments of 20 August 2008, 15 October 2008 and 10 December 2008. As noted earlier, a supplementary notice of appeal was filed on 2 February 2009.
46 Also as noted earlier, on 4 February 2009 the primary Judge by consent stayed the Primary Proceeding pending the determination of the appeal against the judgment of the Court of 10 December 2008.
The reasons for judgments of the primary Judge
Judgment of 20 August 2008
47 The primary Judge ordered that the name of Jeff Whalan be removed from the title of the First Respondent because he was not at the relevant time, nor had been for some considerable period, the Chief Executive Officer of Centrelink. The primary Judge concluded that as no redress was sought against Mr Whalan other than in his former capacity it was very difficult to appreciate how it could be asserted that in removing his name from the title of the First Respondent the appellant would be prejudiced. His Honour’s reasons are found at Luck v Chief Executive Officer of Centrelink (No 2) [2008] FCA 2020 at [4]–[5].
Judgment of 15 October 2008
48 The primary Judge refused the appellant’s application that he withdraw from hearing the proceeding due to actual bias, prejudgement of the matter and lack of procedural fairness, said to have been demonstrated in the Primary Proceeding and in proceeding VID 464 of 2008 which was decided by the primary Judge on 8 October 2008. His Honour’s reasons are found at Luck v Chief Executive Officer of Centrelink (No 2) [2008] FCA 2020.
49 His Honour rejected the appellant’s complaints that he had failed to grant adjustments requested by her to the Court’s procedural timetable, stating that she had had plenty of time in which to respond to the argument raised in support of the objection to competency and had chosen not to put in submissions. Further, his Honour noted that the Court had accommodated the appellant by listing the matter on 15 October 2009 due to her unavailability the previous day, as well as listing the case a week apart from two other matters in which she was a party so that she would not have to prepare for hearings on successive days.
50 The primary Judge also rejected the appellant’s claim that he had discriminated against the appellant on the basis of her disability, again referring to the fact that the Court had accommodated her in its listing of the matter.
51 In response to a complaint made by the appellant about the allocation of pro bono counsel, his Honour stated that his role was restricted to directing that the Registry make enquiries of counsel who would be willing to accept a retainer on behalf of the appellant. He was not involved in the choice or allocation of counsel, nor in the way in which counsel interacted with the appellant.
52 Further, his Honour said that the fact that the primary Judge determined the appellant’s application in proceeding VID 464/08 adversely to her had no bearing on the question whether the Court approached the current proceeding in a fair-minded way as that proceeding was a different case involving different grounds.
53 The primary Judge also refused the appellant leave to appeal against the order of 20 August 2008 that the name of Jeff Whalan be removed from the title of the First Respondent. His Honour concluded that that decision was not attended with sufficient doubt to warrant its being considered by a Full Court, and that substantial injustice would not result from a refusal of leave.
Judgment of 10 December 2008
54 The primary Judge dismissed the appellant's application for an extension of time in which to seek review of the decisions made on 31 July 2006 and 10 August 2007, the alleged failure to review the 10 August 2007 decision, and the conduct relating to the making of the two decisions mentioned. His Honour’s reasons are found at Luck v Chief Executive Officer of Centrelink [2008] FCA 1879.
55 The primary Judge found that the factor that weighed most heavily against the granting of the extension of time was that the two decisions were expressed to operate for only twelve months and three months respectively. Their effect was therefore spent. Any attempt to deal with the alleged failure to make a decision to review the second decision would likewise serve no useful purpose. Nor would any useful purpose be served by quashing those decisions or declaring them to be null and void. His Honour noted that given that the June 2008 decision, in respect of which a timely application was made, was in substantially the same terms as the two spent decisions, the appellant would not be deprived of the opportunity of testing the legal validity of the restrictions placed on her in relation to her dealings with Centrelink.
LEGISLATION
56 Section 24 of the Federal Court Act 1976 (Cth) provides, relevantly, as follows:
(1A) An appeal shall not be brought from a judgment referred to in subsection (1) [a judgment of the Court] that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.
57 Order 52, r 10 of the Federal Court Rules relevantly provides as follows:
(1) An application for leave to appeal from an interlocutory judgment of the Court may be made orally to the Judge who has pronounced the judgment at the time of its pronouncement.(2) If an application has not been made in accordance with subrule (1), an application may be made by motion on notice.
(2A) Order 19 applies to an application under subrule (2), and the notice of motion must be filed:
...
(b) in any other case -- within 7 days after the date on which the interlocutory judgment was pronounced;
or within such further time as the Court or a Judge may allow.
58 Section 11 of the Administrative Decisions (Judicial Review Act 1977 (Cth) (ADJR Act) relevantly provides:
(1) An application to the Federal Court or the Federal Magistrates Court for an order of review:...
...(c) shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.
(3) The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a) if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision – the day on which a document setting out the terms of the decision is furnished to the applicant; or
(b) in a case to which paragraph (a) does not apply:
(i) if a statement in writing setting out those findings, referring to that evidence or other material and giving those reasons is furnished to the applicant otherwise than in pursuance of a request under subsection 13(1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is furnished to the applicant--the day on which the statement is so furnished;(ii) if the applicant, in accordance with subsection 13(1), requests the person who made the decision to furnish a statement as mentioned in that subsection--the day on which the statement is furnished, the applicant is notified in accordance with subsection 13(3) of the opinion that the applicant was not entitled to make the request, the Federal Court or the Federal Magistrates Court makes an order under subsection 13(4A) declaring that the applicant was not entitled to make the request or the applicant is notified in accordance with subsection 13A(3) or 14(3) that the statement will not be furnished;
(iii) in any other case--the day on which a document setting out the terms of the decision is furnished to the applicant.
CONSIDERATION OF THE APPEAL
1. Does the appellant need leave to appeal?
General
59 The appellant needs leave to appeal against the judgments of 20 August 2008, 15 October 2008 and 10 December 2008 because those orders were interlocutory in nature.
60 The respondents rely on the joint judgment of McHugh ACJ and Gummow and Heydon JJ in Re Luck [2003] HCA 70; (2003) 203 ALR 1 at [4]:
[t]he usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order. (Emphasis in original)61 The orders made by the primary Judge on 20 August 2008, 15 October 2008 and 10 December 2008 did not finally determine the rights of the parties in the principal cause between them, being the appellant’s challenge to three decisions mentioned earlier.
62 The orders made on 20 August 2008 related to the proper name of the First Respondent, the filing and serving of submissions and the listing of the matter for hearing.
63 The orders made on 15 October 2008 related to the identity of the Judge who would hear and determine the application, the refusal of an extension of time to appeal against an order regarding the proper name of the First Respondent, the filing and serving of submissions, the listing of the matter for hearing, and the vacation of previous orders made regarding the filing and serving of submissions and listing the matter for hearing.
64 The orders made on 10 December 2008 related to the refusal of the appellant's application for an extension of time to seek review of the decisions made on 31 July 2006 and 10 August 2007 and conduct in respect of those decisions, as well as the striking out of parts of the application for review. They also removed the Second Respondent as a party to the proceeding (see below).
65 Upon the primary Judge making the orders referred to in the last three paragraphs, the appellant’s application for judicial review remained.
66 It is noteworthy that the directions made by the primary Judge on 10 December 2008 regarding the filing of further affidavit material and submissions for the trial of the application, as well as the actual listing of the trial "for final hearing", are consistent with the view that the orders made on 20 August 2008, 15 October 2008 and 10 December 2008 were interlocutory.
Removal of the Second Respondent as a party
67 The respondents submit, in the alternative, that if the order of the primary Judge of 10 December 2008 removing the Second Respondent is to be characterised as a final order, at least as between the appellant and the Second Respondent, so that the appellant has a right of appeal in respect of that order, the appellant has not identified any error of law on the part of the primary Judge in his reasons for making that order either in the amended notice of appeal or in the appellant’s draft outline of submissions.
68 The relevant passage from his Honour’s judgment (in Luck v Chief Executive Officer of Centrelink [2008] FCA 1879) was as follows (at [16]):
I have been unable to identify any provision in any of the Acts to which Ms Luck referred in her application which empowered the second respondent or any of her delegates to make any of the impugned decisions. Nor is there any evidence that the Second Respondent or a delegate of the second respondent had, in fact, made any of the impugned decisions. She is not a necessary party to the proceeding and she should be removed as a party. I will so order.69 If the appellant is able to identify a provision or provisions in any of the Acts in question and to provide evidence that the Second Respondent or the Second Respondent’s delegate in fact made any of the impugned decisions, the appellant would be at liberty to bring a new proceeding against the Second Respondent. His Honour’s order (Order No 3) removing the Second Respondent as a party to the Primary Proceeding would not stand in the way.
70 In our opinion, the order removing the Second Respondent as a party was clearly interlocutory. It was not an order that finally determined the question whether any decision by the Second Respondent or the Second Respondent’s delegate was invalid or to be set aside.
2. Does the appellant require an extension of time in which to apply for leave to appeal?
General
71 Order 52, r 10(2A)(b) of the Federal Court Rules requires that an application for leave be made within seven days of the date upon which the interlocutory judgment was pronounced. The most recent of the three judgments against which the appellant purports to appeal is the judgment of 10 December 2008. Judgment was pronounced on that date. The appellant did not seek leave to appeal against that judgment within seven days of 10 December 2008 and has still failed to do so. The appellant needs an extension of time in which to apply for leave to appeal.
3. Should the time for the making of an application for leave to appeal be extended?
General
72 Although subrule 10(2A) of O 52 of the Federal Court Rules provides that the Court may allow further time in which to seek such leave to appeal, the respondents submit that in this instance the Court should not exercise its discretion to allow the appellant further time to do so.
73 The respondents refer to the judgment of Lindgren J in Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 in which his Honour observed (at [20]) that for the Court to allow further time for the filing and serving of an application for leave to appeal:
• there must be a satisfactory explanation for the delay beyond the seven day time limit;• there must be such "special reasons" as would have to be demonstrated to obtain an extension of time within which to appeal as of right; and
• the application for leave must have such prospects of success so as not to render the granting of the extension an exercise in futility.
74 None of these conditions is satisfied in the present case.
Explanation for delay
75 The appellant has not provided any explanation for the delay in seeking leave to appeal against any of the three judgments referred to in her supplementary notice of appeal.
Special reasons
76 The appellant has not suggested any factors that would constitute "special reasons" to support the granting of an extension of time.
Prospects of success – whether leave would be granted?
77 Even if the appellant had applied for leave within time, she would need to satisfy the Court that the judgments of the primary Judge are attended by sufficient doubt to warrant them being reconsidered at the appellate level, and that substantial injustice would result if leave were refused supposing the judgments to be wrong – see Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398.
78 None of the judgments satisfy this test.
79 In relation to the judgment of 20 August 2008, the order that the name of Jeff Whalan be removed from the title of the First Respondent was correct and appropriate, given that he was not at the relevant time the Chief Executive Officer of Centrelink. Further, as the complaints about him related only to his conduct in that capacity, the appellant could in no way be prejudiced by the removal of his name from the title of the First Respondent.
80 In relation to the judgment of 15 October 2008, the refusal of leave to appeal against the order of 20 August 2008 that the name of Jeff Whalan be removed from the title of the First Respondent, was correct and appropriate for the reasons referred to above.
81 Similarly, the primary Judge's decision refusing the appellant's application that the primary Judge withdraw from hearing the proceeding due to bias, prejudgment and lack of procedural fairness was not affected by an error of law. The primary Judge had in fact accommodated the appellant in listing the matter, allowing additional time for the filing of submissions, and directing that enquiries be made for the allocation of pro bono counsel for her. Far from showing any bias or lack of procedural fairness, the primary Judge had been very considerate towards the appellant at all times.
82 In the first of the notices of motions to which we referred earlier (see [4]-[6] above) the appellant referred to additional facts said to show a reasonable apprehension of bias on the part of the primary Judge. These relate, first, to work that his Honour had undertaken, when of counsel, for the Australian Government, and, second, to the following background in relation to his Honour that was published when he was appointed in December 2008 as President of the Defence Force Discipline Appeal Tribunal (the extract is from the Attorney-General’s website):
[His Honour] has over 30 years military experience, beginning with his involvement in the Australian Army Legal Corps, holding the ranks of Captain Major, Lieutenant Colonel, Colonel and Brigadier. In 1985, Justice Tracey was appointed as a Judge Advocate and Defence Force Magistrate and he became a Reviewing Judge Advocate in 1990. In 1997, Justice Tracey was awarded the Reserve Force Decoration (RFD) medal in recognition of his years of diligent service in the Defence Force. He was Deputy Judge Advocate General (Army), in 2006 and 2007, and has been Judge Advocate General of the Australian Defence Force since 2007.83 It suffices to say that we do not accept that a reasonable person would think that these matters, taken either individually or cumulatively, would render his Honour predisposed to decide in favour of the Respondents and against the appellant as applicant in the Primary Proceeding.
84 Finally, the primary Judge’s refusal of the appellant’s application for an extension of time in which to seek review of the decisions made on 31 July 2006 and 10 August 2007 and the alleged failure to review the 10 August 2007 decision, the conduct relating to the making of those two decisions, and the alleged failure to review the 10 August 2007 decision were not affected by error of law. The Court has a discretion as to whether to grant an extension of time. In exercising his discretion it was reasonable for the primary Judge to be persuaded by the fact that in relation to the two decisions that were the subject of the objection to competency, their effect was spent and any attempt to deal with them (including the quashing of them) would serve no useful purpose. As his Honour observed, if the appellant’s concern is to have it established that it is not open to the First Respondent to limit the manner of her access in the way that has happened, she will have the opportunity of doing so in relation to the decision of which she was notified on 3 June 2008 when the Primary Proceeding is heard.
Other matters
85 The grounds referred to in the amended notice of appeal assert that the primary Judge erred in law, that the appellant was denied procedural fairness and natural justice, that she was subjected to "issue bias" by the primary Judge and the Court amounting to disability discrimination within s 6 of the Disability Discrimination Act 1991 (Cth), and that his Honour failed to take into consideration the appellant’s written and oral submissions and did not have proper regard to the merits of the case.
86 The remaining "grounds" referred to in the notice of appeal, set out in grounds (c) to (i), in substance seek orders setting aside the orders made by the primary Judge.
87 The appellant filed a draft Outline of Submissions on 29 April 2009. She submits that:
(1) an extension of time pursuant to s 11(3) of the ADJR Act was not required as the application fell under s 11(3)(b)(iii) of that Act and she had told the Court that she would make the application for an extension of time only if necessary.
(2) each of the three decisions and failure to make a decision stem from the same issues relating to the respondents’ failure to provide her with services to which she was entitled and that each was "a link in the chain of decisions" and therefore "they should not be considered as separate decisions made on three separate dates";
(3) there were numerous occasions of procedural unfairness, discrimination, bias, and prejudgment throughout the proceedings and the primary Judge should have disqualified himself;
(4) the primary Judge erred in refusing the appellant’s application for an extension of time.
88 Although the appellant submits that an extension of time was not required as the application fell under s 11(3)(b)(iii) of the ADJR Act and that she had told the Court that she would apply for an extension only if necessary, even if the relevant decisions of 31 July 2006 and 10 August 2007 fell within s 11(3)(b)(iii), the appellant would still have been subject to a 28 day limit running from the time she was furnished with the documents setting out the terms of the decisions. The Appeal Book contains copies of the letters to the appellant dated 31 July 2006 and 10 August 2007. The appellant did not comply with the time limit set out in s 11(3)(b)(iii) of the ADJR Act and required an extension of time.
89 The "decisions" in respect of which the appellant seeks review were clearly separate and independent decisions made on separate dates as can be seen from their content, even if they were generally similar in character.
90 We have already dealt above with the other matters raised by the appellant in her draft Outline of Submissions.
91 Furthermore, no injustice will result if leave is not granted to the appellant to appeal any of the judgments because:
(1) in relation to the name of the First Respondent, the removal of Mr Whalan’s name could not affect the outcome of the application for review;
(2) in relation to the refusal to grant an extension of time in which to seek review of the decisions made on 31 July 2006 and 10 August 2007, it would serve no purpose to grant an extension of time to enable the review of those decisions because the periods of time in which each of these decisions was operative have long since expired;
(3) the appellant is not prevented from filing a notice of appeal upon the final determination of the Primary Proceeding and could thereby raise the matters which are the subject of the present purported appeal;
(4) the appellant remains free to sue the Second Respondent notwithstanding the making of the order removing the Second Respondent as a party to the Primary Proceeding.
CONCLUSION
92 For the above reasons, and in the absence of an extension of time and a
grant of leave to appeal, the appeal should be dismissed
as incompetent with
costs.
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Ms P Heffernan
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Solicitor for the Respondents:
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Australian Government Solicitor
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/54.html