FEDERAL COURT OF AUSTRALIA

Luck v Secretary, Department of Human Services [2015] FCAFC 111

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Court made on 30 July 2014 in VID 65 of 2010 including as to costs be set aside.

3.    The matter be remitted for hearing by a single judge of the Court on questions of law “o”, “u” and “aa” in the appellant’s notice of appeal filed on 4 February 2010 in VID 65 of 2010.

4.    The first respondent pay any disbursements reasonably incurred by the appellant on the appeal, the amount of those disbursements to be fixed by a Registrar in default of agreement between the parties.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

the court

Summary

1    The appellant, Ms Luck, has appealed from the orders of a single judge of this Court, Tracey J, dated 30 July 2014: see Luck v Secretary, Department of Human Services (No 2) [2014] FCA 798. The proceeding in which the orders were made is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). By those orders, the primary judge dismissed an interlocutory application by Ms Luck for a stay and adjournment of her proceeding. He also dismissed her appeal on the basis of upholding the first respondent’s objection to the competency of the appeal.

2    For the reasons given below, this appeal must be allowed.

RELEVANT FACTS AND BACKGROUND TO THIS APPEAL

3    The history of this proceeding was described in an interlocutory ruling made by Mortimer J in October 2014, in which her Honour granted the appellant an extension of time to apply for leave to appeal from the orders of the primary judge and leave to appeal on limited grounds: see Luck v Secretary, Department of Human Services [2014] FCA 1060.

4    It is appropriate to set out again some of that history, so that our reasons can be seen in full context.

5    The proceeding before the primary judge was commenced in 2010. It has been affected by significant delays due to applications made by Ms Luck to the High Court and consequent applications by her for this proceeding to be adjourned pending the outcome of her High Court proceedings. Until the orders made on 30 July 2014 which are the subject of this appeal, the Court and the first respondent had accommodated her requests about the timing at which her matters were to be dealt with in this Court.

6    The underlying subject matter of the proceeding is several applications by Ms Luck under the Freedom of Information Act 1982 (Cth) (the FOI Act) for documents held by the Department of Human Services.

7    Ms Luck’s dissatisfaction with the way her applications had been dealt (or not dealt) with by the Department led her to file an application for review in the Administrative Appeals Tribunal on 16 July 2009. In her application she identified a series of requests under the FOI Act she had made to the Department on 20 January 2009, 9 and 16 February 2009 and 10 and 23 March 2009, and a review application she had made on 24 March 2009. Ms Luck also attached a copy of a letter dated 22 May 2009 and signed by Dr Gary Rumble, General Counsel, in the Department. Dr Rumble’s letter relevantly stated:

I refer to your letter dated 20 January 2009 and to your requests since that date in which you sought access to the documents included in the statement made by the Department of Human Services (DHS) under section 9 of the Freedom of Information Act 1982.

I have enclosed a CD containing the documents (in PDF format) that are listed in the statement that DHS has been able to locate. The details of those documents are set out in Attachment A.

As a result of the delay in finalising your request, I have decided to provide you with the documents at no charge.

8    Fairly shortly thereafter, on 21 August 2009, the Department wrote, through its legal representatives, to the Tribunal querying whether it had jurisdiction on the review.

9    The Department’s letter suggested that the letter from Dr Rumble did not appear to constitute a decision capable of being reviewed by the Tribunal under the FOI Act because it did not appear to fall within the categories of documents set out in s 55(1) of that Act, as it was in 2009. The Department also suggested that Dr Rumble’s letter did not appear to review an earlier decision and therefore was not a reviewable decision for the purposes of the FOI Act.

10    Given its view about the Tribunal’s lack of jurisdiction, the Department stated it would not lodge the documents it would otherwise have been required to lodge pursuant to s 37 of the AAT Act, unless the Tribunal required it to do so.

11    It is unnecessary for the purposes of determining the appeal to recite in detail the process followed by the Tribunal once the Department raised this objection. Ms Luck, it seems, has a different perspective on what occurred to that of the first respondent. What is clear is that the Tribunal decided to hold a hearing to “explore whether the Tribunal has jurisdiction or power to review any decision of which Ms Luck seeks review” and gave reasons for that decision, even though it was of the view it had no legal obligation to give those reasons: see Luck v Department of Human Services [2009] AATA 800; 50 AAR 403 at [2].

12    The Tribunal held the hearing it had foreshadowed on 23 October 2009, having given on 19 October 2009 its reasons for convening the hearing. By this stage, Ms Luck had issued proceedings in the High Court in relation to a number of proceedings filed by her in the Federal Court, naming a number of respondents. On 21 October 2009, two days before the hearing convened by the Tribunal, Ms Luck filed an amended application in the High Court adding four additional respondents, all being members or officers of the Tribunal, including the Tribunal member who had made the decision to hold a jurisdiction hearing and who had given reasons in Luck v Department of Human Services [2009] AATA 800; 50 AAR 403.

13    Amongst the relief sought by Ms Luck in the High Court against the Tribunal respondents was a stay of her proceedings in the Tribunal until the High Court had dealt with her application. She also sought an injunction, amongst other matters, restraining the Tribunal from holding the proposed jurisdiction hearing in her review application against the Department of Human Services. The Tribunal (see Luck v Department of Human Services [2010] AATA 6; 51 AAR 265 at [11]) subsequently described the grounds of Ms Luck’s High Court application thus:

The grounds of relief sought are, in the briefest of summaries, that the defendants have failed to perform their duties in accordance with enactments including the AAT Act, failed to accord Ms Luck natural justice or procedural fairness, failed to take into account relevant considerations in the exercise of their powers, improperly exercised their discretions, have been affected by bias, failed to give her access to documents to which she was entitled and failed to take account of Ms Luck’s special needs.

14    Although Ms Luck had sought an injunction against it, the Tribunal maintained its listing of the jurisdiction hearing for 23 October 2009. Ms Luck wrote to the Tribunal more than once, including on the morning of 23 October 2009, seeking an adjournment or stay on a variety of grounds, including her health, the existence of the High Court proceedings and the “abuses I have been subjected to by the AAT”, which meant, she stated, she was “traumatised by the very thought of appearing at such an unfair hearing, as that which is listed for 23 October 2009”. She provided some medical certificates to the Tribunal. She made it clear she would not attend the hearing that day, which is what transpired. The Tribunal proceeded with the hearing, which was attended by the Department’s legal representatives. The Tribunal did not make a decision that day. Instead it arranged for a transcript of the hearing to be sent to Ms Luck and gave her an opportunity to make any further submissions she wished to by 16 November 2009. Ms Luck took up that opportunity and made further written submissions, maintaining the position she had adopted before, including repeating that the Tribunal had jurisdiction on the review but should not proceed until the resolution of her High Court proceedings. She concluded her submission to the Tribunal by stating:

I am unable to cope with any further communication in this matter, for the time being, due to the post traumatic symptoms it produces in me as a result of the recent and past abuses of me by the AAT and its officers and I attach current medical certificates.

15    The Tribunal published its decision on 8 January 2010: Luck v Department of Human Services [2010] AATA 6; 51 AAR 265. It decided it should proceed to determine its jurisdiction even though Ms Luck had initiated proceedings in the High Court and found it did not have jurisdiction to review a decision made in Dr Rumble’s letter on 22 May 2009, because there had been no internal review and therefore there was no reviewable decision, which could be the only foundation for the Tribunal’s decision. It also decided that if the earlier FOI requests made by Ms Luck on 20 January 2009, 9 February 2009, 16 February 2009, 10 March 2009 and 23 March 2009 would have, by operation of the then s 56(1) of the FOI Act, resulted in any deemed decisions, then those decisions had been overtaken by the decision of Dr Rumble on 22 May 2009, which dealt with all Ms Luck’s previous applications, rendering any failure to make a decision (and the deeming provisions) no longer relevant: at [79].

16    Further, the Tribunal decided, in the circumstances it had found to exist, the Department was not obliged to comply with the provisions of s 37(1) of the AAT Act and lodge documents for the purposes of the review (at [84]). The Tribunal’s reasons were detailed, and contained an analysis of relevant statutory provisions and applicable law.

17    On 4 February 2010, Ms Luck filed an appeal to this Court from the Tribunal’s decision. Her notice of appeal was long, and contained 48 paragraphs which were said to be questions of law. Some questions were short, however others contained a series of propositions and arguments, wrapped up in a way which is, with respect to Ms Luck, somewhat difficult to follow.

18    Rather than allowing her appeal to proceed in the usual manner in this Court, on 15 February 2010, Ms Luck sought to remove the appeal to the High Court, pursuant to s 40 of the Judiciary Act 1903 (Cth). That step occasioned considerable delay. The application for removal was dismissed by the High Court on 13 October 2011: Luck v Federal Court of Australia [2011] HCATrans 290.

19    Ms Luck subsequently sought to challenge the dismissal of her removal application, including through a special leave application, without success: see Luck v Deputy Registrar (RM) of the High Court of Australia — Melbourne Office of the Registry [2013] HCATrans 166 (5 August 2013); Luck v Deputy Registrar (RM) of the High Court of Australia — Melbourne Office of the Registry [2014] HCASL 33 (6 March 2014).

20    As the primary judge’s reasons (Luck v Secretary, Department of Human Services (No 2) [2014] FCA 798) note at [8], and as the chronology attached to his reasons reveals, Ms Luck’s various applications in the High Court, and her requests for adjournment and postponement of the s 44 appeal, were the reasons the proceeding was not the subject of active case management for trial until early 2014. After the High Court’s decision on 6 March 2014, the primary judge resumed active case management of the proceeding. There can be no criticism of the course adopted by the learned primary judge in this respect. The conscious choices of Ms Luck to escalate her proceedings to the High Court rather than allowing them to run their course in this Court are responsible for the delay of more than four years.

21    The primary judge listed the proceeding for directions on 4 April 2014. On 31 March 2014, Ms Luck wrote to the Federal Court Registry requesting that directions hearing be vacated on the basis that three of her matters were listed before the primary judge on the same day and she was unable to cope with the volume of issues and the matters listed. The primary judge did not accede to that request and a directions hearing was conducted on 4 April 2014 as listed.

22    At the directions hearing on 4 April 2014, Ms Luck made an oral application that the primary judge recuse himself on the ground of ostensible bias, on two bases. First, she contended that by maintaining the listing of her three matters over her objections about her inability to cope with three matters on one day, the primary judge had failed to provide her with “reasonable adjustments” to which she said she was entitled under the Disability Discrimination Act 1992 (Cth). Second, the primary judge’s appointment as Judge Advocate General of the Australian Defence Force, Ms Luck said, made him “answerable” to members of the executive branch of the Commonwealth Government including the Minister for Defence. This is a contention about the primary judge which Ms Luck has now made on several different occasions, and on each occasion her contention has not been found to have merit: see Luck v Chief Executive Officer, Centrelink [2009] FCAFC 54; Luck v University of Southern Queensland [2009] FCAFC 73; 176 FCR 268; Luck v University of Southern Queensland [2014] FCAFC 135.

23    The primary judge refused that application and gave reasons: Luck v Secretary, Department of Human Services [2014] FCA 344. He fixed the s 44 appeal for trial on 30 July 2014. When he did so, what was fixed for trial on 30 July 2014 was the entirety of the appeal under s 44 of the AAT Act.

24    On 6 June 2014 the Department filed a notice of objection to competency, together with supporting submissions. The Department’s submissions addressed both the merits of the s 44 appeal and the basis for the objection to competency.

25    In between the commencement of the proceeding on 4 February 2010 and the filing of the Department’s objection to competency, the Federal Court Rules were repealed and replaced. In contrast to the previous Rules, the 2011 Rules contain specific provisions concerning the filing of objections to competency in relation to appeals under s 44 of the AAT Act: see r 33.30 of the Federal Court Rules 2011 (Cth). Those provisions include a time limit, expressed in mandatory language, for the filing of such objections: see r 33.30(1). A period of 14 days from the service of any notice of appeal is prescribed. Ms Luck relied on these provisions in her application for leave to appeal from the orders of the primary judge.

26    On 28 July 2014, Ms Luck filed an interlocutory application in the s 44 appeal. She applied for a stay or adjournment of the appeal pending the determination by a Full Court of this Court of her appeal in VID 1158 of 2013, Gaye Luck v University of Southern Queensland, which was listed for hearing on 22 August 2014. The basis for her application was that in that appeal she was advancing the same arguments about the primary judge’s disqualification as she had raised before him on 4 April 2014.

27    Alternatively, she sought the vacation of the 30 July 2014 hearing date for her s 44 appeal and an extension of time to file submissions responding to the Department’s objection to competency. She sought this on the basis of an affidavit sworn by her which stated relevantly:

the appellant has had several crises, recently, that have arisen in her personal life, that affect the lives of individuals of her extended family, for whom she is responsible.

28    The primary judge’s reasons record that Ms Luck was advised on 29 July 2014 that the Department opposed both of her interlocutory applications.

29    On 30 July 2014, at 11am (being a starting time Ms Luck submitted met her special needs) the matter was called on before the primary judge. Ms Luck made submissions in support of her interlocutory application. The Department’s legal representative then made submissions, to which Ms Luck replied. The primary judge then delivered judgment refusing to grant a stay or adjournment and dismissing the interlocutory application.

30    The Department’s legal representative asked if the primary judge would then deal with the Department’s objection to competency, and the primary judge indicated that was what he proposed to do. The following exchanges then took place:

HIS HONOUR: Indeed. I now propose to deal with your objection to competency and you can proceed on the basis that I have read the notice the written submissions that you filed with it.

MS HEFFERNAN: Thank you, your Honour.

MS LUCK: I haven’t got a copy of that with me, your Honour.

HIS HONOUR: Well …

MS LUCK: I haven’t got anything with me, your Honour. In fact, I think it best I go, because there’s no point me being here. You’re just going to dismiss the case and I’m going to have nothing to say.

HIS HONOUR: Well, Ms Luck …

MS LUCK: And I didn’t think it was necessary for me to go through innumerable times, thousands of medical certificates showing the state of my health. That hasn’t changed, it gets progressively worse, and your Honour, because you’re going to go ahead with this hearing, knowing full well that I’m unable to deal with it, I will ask your Honour to excuse me, because it is not going to be of any benefit to me, except that I’m going to end up hysterically unhappy and distressed. So forgive me, your Honour, I’m leaving, and I will be appealing whatever happens now, and it will be probably consolidated with whatever is happening in the other matter.

HIS HONOUR: Well, that’s a matter for you, Ms Luck.

MS LUCK: Yes. Well, I’m sorry, your Honour, but I’m not going to stand here and be subjected to this abuse. Thank you, your Honour, goodbye.

HIS HONOUR: Yes, Ms Heffernan.

MS HEFFERNAN: Does your Honour wish me to continue as before?

HIS HONOUR: I beg your pardon?

MS HEFFERNAN: Did your Honour want that I continue with the application?

HIS HONOUR: Yes, I do.

31    After hearing short submissions from the Department’s legal representative, not long before 12pm the primary judge said that he expected to be in a position to hand down his decision on the objection to competency at 4pm and adjourned the Court until then. The hearing resumed at 4pm, whereupon the primary judge pronounced the orders which are now the subject of the present appeal, and gave reasons for those orders.

32    In those reasons, at [20]-[24], his Honour stated:

20.    The objection to competency was pressed on the ground that the notice of appeal failed to identify any “pure question of law” as required by s 44(1) of the AAT Act.

21.    In TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Gummow J, when a member of this Court, said that:

“Section 44 of the AAT Act is expressed in narrower terms than the old s 196 of the Tax Act. This provided for appeals from the Board of Review which ‘involved’ a question of law. The result was that if some question of law was involved, the whole of the decision of the Board was open to review, not merely the question of law … This no longer will be the case with appeals brought to this court under s 44 of the AAT Act. The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself.” (Emphasis added).

A Full Court of this Court, in Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60, held that the question of law contemplated by s 44(1) of the AAT Act must be what was described as a “pure question of law” in order to found the jurisdiction of the Court under s 44.

22.    The principles which were subsequently developed were summarised by Dowsett and Gordon JJ in Federal Commissioner of Taxation v Trail Bros Steel and Plastics Pty Ltd (2010) 186 FCR 410 at 414-5. Their Honours there said that:

“In Etheridge 149 FCR 522, the Full Court of the Federal Court restated two principles. First, that ‘on a question of law’ is narrower than an appeal that merely ‘involves’ a question of law with the result that where an appeal lies ‘on a question of law’, the subject matter of the appeal is the question or questions of law: Etheridge 149 FCR 522 at [13]-[15]; see also Scicluna v New South Wales Land and Housing Corporation (2008) 72 NSWLR 674 at [4] and TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 at 1069-1070; 82 ALR 175 at 177-179 (per Gummow J). Secondly, a mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act: Etheridge 149 FCR 522 at [16]; see also Price Street Professional Centre Pty Ltd v Federal Commissioner of Taxation (2007) 67 ATR 544; 243 ALR 728 at [40] (per Edmonds J).”

23.    Once the first respondent had filed the objection to competency, Ms Luck carried the burden of establishing the competency of her application: see Federal Court Rules, Rule 31.05(2). Her withdrawal has meant that she has not assumed this burden.

24.    I accept the first respondent’s submission that none of Ms Luck’s “questions of law” is a “pure question of law” as described by the Full Court in Birdseye. Many raised questions of fact or combined questions of fact and law. Most lacked the precision required by the Federal Court Rules, Rule 33.12(2)(b).

33    On 1 September 2014, Ms Luck sought to lodge the present appeal. Although Ms Luck was out of time and no appeal could be lodged as of right, for the reasons set out in the interlocutory ruling of Mortimer J made on 3 October 2014, Ms Luck was subsequently granted an extension of time and leave to appeal on limited grounds: see Luck v Secretary, Department of Human Services [2014] FCA 1060.

34    Leave was granted on the express condition that Ms Luck attend a case management conference with a Registrar of this Court, in order that the Registrar might assist Ms Luck to formulate a notice of appeal limited to the matters on which she had been granted leave to appeal, and orders were made to that effect.

the appellant’s notice of appeal

35    On 14 January 2015, pursuant to the Court’s orders dated 3 October 2014, Ms Luck filed a Notice of Appeal containing reformulated grounds of appeal. Those grounds of appeal are as follows:

1.    The primary judge erred in holding the first respondent’s objection to competency in relation to questions “0” and “u” of the applicant’s Notice of Appeal dated 4 February 2010.

2.    The primary judge erred in upholding the first respondent’s objection to competency in relation to question “aa” of the applicant’s Notice of Appeal dated 4 February 2010 insofar as that question relies on the application of the Disability Discrimination Act 1992 (Cth) to the way in which the Tribunal dealt with Ms Luck’s review application.

3.    The approach taken by the primary judge at [26]-[34] of his reasons for judgment was not open to him in determining the respondent’s objection to competency application.

4.    The primary judge erred in finding that there was an onus on the applicant in the determination of the first respondent’s objection to competency application.

5.    The primary judge erred in not considering the application and operation of the 14 day time limit in Rule 33.30(1) of the Federal Court Rules 2011 (Cth).

36    Question of law “o” in the notice of appeal dated 4 February 2010 to which the first ground of appeal refers was stated in the following terms:

Whether the Tribunal was required to give notice to the respondent under s 29, of the Administrative Appeals Tribunal Act 1975, as the decision maker of the decision that was the subject of the applicant’s valid application, to furnish to the applicant the documents pursuant to section 37 of that Act, upon lodgement and filing of the application documents and properly constituting the Tribunal?

37    Question of law “u” to which the first ground of appeal also refers was in form very long, because Ms Luck has reproduced in the last part of the question the terms of her FOI request. In substance, the question is contained in the opening lines, which read:

Whether the Administrative Appeals Tribunal had jurisdiction to review the respondent’s decisions made and deemed made in response to the requests made by the applicant pursuant to section 15 and 25 of the Freedom of Information Act 1982 (Cth) on 20 January 2009, 9 February 2009, 16 February 2009, 10 March 2009 and 23 March 2009 and a formal request for an internal review made on 24 March 2009 …

38    Question of law “aa” to which the second ground of appeal refers was relevantly stated as follows:

Whether the applicant was subject to disability discrimination by the Tribunal and the Deputy President in relation to the refusal of the Deputy President to refuse the applicant’s rights to the grant of extensions of time and adjournments of hearings as reasonable adjustments in accordance with the provisions of the Disability Discrimination Act 1992 …

39    By way of relief, the Notice of Appeal relevantly sought that the orders of the primary judge upholding the first respondent’s objection to competency and dismissing the proceeding be set aside, and that the appeal before the primary judge be remitted for hearing by a judge of this Court.

40    Subsequently on 1 April 2015, Ms Luck filed a notice of a constitutional matter setting out seven constitutional issues said to arise in this matter. No Attorney sought to intervene in the proceeding, and we were satisfied the Court could proceed to hear the appeal, which we did.

the appellant’s applications for stay and adjournment of this appeal

41    On 22 April 2015 Ms Luck applied for orders to stay or adjourn this appeal as well as the appeal in proceeding VID 898 of 2008 (listed to be heard together with this appeal on 21 May 2015) pending the hearing and determination of her applications to remove these appeals to the High Court. By correspondence filed on 1 May 2015, Ms Luck further sought a three-month adjournment of both appeals on the basis that she required time for treatment and recovery in connection with a medical condition, during which time she said she would be unable to take steps in these appeals. On 21 May 2015 we dismissed those applications and proceeded to hear the appeals. Ms Luck did not appear. Our reasons for doing so are set out separately in our reasons for judgment on those applications, and need not be repeated here: see Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75.

42    The Court indicated at the hearing that its decision would need to await the outcome of two five member Full Court cases constituted by the Chief Justice expressly to deal with the correct approach to s 44 of the AAT Act. Those decisions (only one of which we need refer to) were handed down on 30 June 2015.

DISPOSITION OF THE APPEAL

43    The principal issue on this appeal, variously expressed by Ms Luck, is whether the learned primary judge was correct to uphold the objection to competency. We consider, with respect to his Honour, that he was not correct to do so. Our reasons for that conclusion stem largely from the clarification provided by a Full Court of this Court in Haritos v Commissioner of Taxation [2015] FCAFC 92 concerning the scope of this Court’s jurisdiction under s 44 of the AAT Act. It is a clarification which was not available to the primary judge.

44    The approach in Haritos resolves, in our opinion, the first two grounds of Ms Luck’s appeal in her favour. That conclusion renders it unnecessary for us to determine the remaining grounds of appeal because, for the reasons we set out below, in our opinion the matter must be remitted to a single judge to determine the appeal under s 44 of the AAT Act (confined in the way we set out below) in the ordinary course. For completeness, we make some observations about ground 3 only for the purposes of dealing with a submission made by the first respondent. Given our views on grounds 1 and 2, and the appropriate relief, we do not consider it necessary to determine grounds 3, 4 and 5.

Grounds 1 and 2

45    Both these grounds challenge the primary judge’s approach to what constitutes a question of law for the purposes of s 44 of the AAT Act and the existence of jurisdiction in this Court to hear and determine such an appeal. In Haritos at [62] the Full Court stated:

We now turn to consider the more general questions raised by the appeal in relation to s 44 of the AAT Act. In summary, our conclusions are as follows:

(1)    The subject-matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.

(2)    The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.

(3)    The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.

(4)    Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.

(5)    In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.

(6)    Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.

(7)    A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.

(8)    The expression “may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal” in s 44 should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.

(9)    In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe [1986] HCA 33; 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis [1989] FCA 557; 89 ATC 4994 that there is difficulty in finding an “error of law” in the failure in the Tribunal to make a finding first urged in this Court.

(10)    Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission [2003] FCA 232; 76 ALD 321, Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, 133 FCR 290, Etheridge, HBF Health Funds and Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241.

46    Subparagraphs (5) and (6) (read with (8)) are of particular importance to the resolution of this appeal. At [84] in Haritos the Full Court said:

In our opinion, in Birdseye and the cases which have applied it there has been a focus on jurisdiction in circumstances where it would have been more appropriate to consider power and practice and procedure.

47    It is clear in our opinion that the Full Court is emphasising that if, in substance, a question of law is raised by an applicant (a matter to be decided by looking more broadly than just at the notice of appeal – see Haritos at [94], and [99]-[105]), then any necessary amendments or refinements to ensure the question is properly stated are to be dealt with as matters of practice and procedure, but do not affect the jurisdiction of the Court. In that sense, they are not matters to be decided by way of upholding an objection to competency.

48    On the other hand, a question which poses “a broad and hypothetical enquiry as to the construction and operation of statutory provisions” will not be a question of law: Haritos at [93].

49    Two of the three questions of law in the notice of appeal to this Court (question “o” and question “u”) raised, respectively, the nature of the Tribunal’s obligations and powers under ss 29 and 37 of the AAT Act and the nature of the Tribunal’s jurisdiction under the FOI Act, including its jurisdiction in relation to deemed decisions. In our opinion, Haritos has made clear that inelegant, or even confused, drafting does not deprive this Court of jurisdiction. Rather, what an applicant raises must be examined substantively. We consider it clear that these two questions raised questions of law, and the Court’s jurisdiction was regularly invoked. Any lack of clarity could and should have been dealt with by way of practice and procedure, although we are inclined to think the questions, read fairly and in context, did not really need amendment. Their import was plain enough: whether they were ultimately questions which would be answered favourably to Ms Luck was an entirely distinct question, and one for trial. The first respondent’s submissions before us on the appeal tended to confuse these two issues of jurisdiction and prospects of success.

50    Question of law “aa”, to which ground 2 refers, is an example of a question which might well have needed further refinement by way of case management, although again in our opinion its import was plain enough. It was a complaint about denial of procedural fairness. A question whether a person was denied procedural fairness by the Tribunal, subject to being expressed with sufficient precision in terms of the nature of the denial, will raise a question of law: Haritos at [202].

51    With question “aa”, Ms Luck was indicating that the denial of procedural fairness of which she complained was constituted by a failure on the Tribunal’s part to give her “reasonable adjustments” for her disabilities so as to ensure she had a fair hearing and reasonable opportunity to present her case. Again, much might be said at trial as to why that question should not be answered favourably to Ms Luck, as the first respondent submitted. To say that simply emphasises this is not a question of the existence of jurisdiction under s 44, but rather how ultimately that jurisdiction might be exercised, which is a matter for trial.

52    The first respondent submitted the Court should infer, on a fair reading of [25] of his Honour’s reasons that the primary judge had himself considered whether to allow Ms Luck to amend her notice of appeal, but had decided not to allow any such course to occur on the basis that her prospects of success were so low. That, the first respondent submitted, explained what his Honour said at [26]-[34] about the merits of the questions of law.

53    We do not agree. In our opinion there is nothing in his Honour’s reasons to suggest that he actively considered whether to allow Ms Luck to amend her notice of appeal so as to ensure the Court had jurisdiction. His Honour was applying the law as he then understood it, including Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; 76 ALD 321, and considered he was required to identify a “pure” question of law before he had jurisdiction. He considered he could not do so. Thereafter, reflecting the position of Ms Luck as a self-represented litigant, his Honour went on to assess what he considered to be the merits of the questions of law. With great respect to the primary judge, on an objection to competency application that course should not have been undertaken, although we accept without hesitation that his Honour embarked upon it intending to be more than fair to Ms Luck.

54    This leaves the question of the appropriate relief, given our conclusion.

55    The first respondent submitted the Full Court should decide the s 44 appeal for itself on the merits and dismiss it. That submission is pressed even though the appellant has not appeared on this appeal. Notwithstanding a concession that we did not have all the materials before us, including Ms Luck’s submissions to the Tribunal, the first respondent continued to press for the Full Court to engage with the final determination of the questions of law we considered should have gone to a final hearing.

56    We do not consider it is appropriate for that course to be taken. First, we simply do not have the material necessary to determine the questions in any event. In particular, Ms Luck’s complaints about how the Tribunal denied her procedural fairness by not making sufficient accommodation for her disabilities will involve a consideration of the evidence about how the Tribunal conducted the preparation of the review up to and including the decisions it made. Those kinds of matters should be considered under s 44 against a proper evidentiary base.

57    Second, although Ms Luck chose not to appear on the appeal, she did not submit, expressly or impliedly, that she did not wish to be heard on the merits of the s 44 appeal itself. She should be given the usual opportunity afforded to litigants in this Court to proceed to a trial on her s 44 appeal in the usual manner, once a litigant has been successful on appeal. We do not suggest there should be any particular delay, indeed other parts of these reasons give cause for tight and efficient case management of the remitted proceeding. In our opinion, for a number of reasons, including the long period of time over which the primary judge has dealt with Ms Luck’s matters, and her ongoing objection to him hearing her cases (even though that objection has been found to be without legal or factual foundation), it is preferable if the matter is remitted to another single Justice of this Court.

CONCLUSION

58    The appeal should be allowed and the matter remitted to a single judge. Ms Luck was given limited leave to appeal, and what is remitted should be subject to similar limitations. The only questions of law to be remitted are questions of law “o”, “u” and “aa”. Those are the matters which should now be determined, against a proper evidentiary base of what occurred in the Tribunal. That limited remitter should not be seen as precluding Ms Luck from seeking leave to amend the questions after consideration of these reasons. However, we emphasise the remitter is limited to the subject matter of those three questions.

Associate:

Dated:    21 August 2015