FEDERAL COURT OF AUSTRALIA

Luck v Chief Executive Officer of Centrelink (No 2) [2015] FCAFC 112

THE COURT ORDERS THAT:

1.    Leave to appeal from the decision of Tracey J dated 8 October 2008 is granted.

2.    The appeal is dismissed.

3.    The appellant is to pay the respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

The court

Summary

1    The appellant, Ms Luck, has appealed from the judgment of a single judge of this Court, Tracey J, on 8 October 2008: Luck v Chief Executive Officer of Centrelink [2008] FCA 1506; 107 ALD 538. The underlying proceeding concerns a proposed appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and a proposed application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act). The primary judge had refused an application by Ms Luck for an extension of time within which to appeal against and seek review of certain decisions and determinations made by the Administrative Appeals Tribunal on 13 May 2008, on the basis that the proposed appeal and application had no reasonable prospects of success.

2    For the reasons given below, this appeal must be dismissed. Our reasons in this appeal should be read together with our reasons in VID 512 of 2014, Luck v Secretary of the Department of Human Services [2015] FCAFC 111, as these appeals were heard and determined together and there is considerable procedural overlap in the way the appeals have been dealt with, although their underlying subject matter differs.

RELEVANT FACTS AND BACKGROUND TO THIS APPEAL

3    As we have noted, the proceeding was commenced in 2008, although the underlying subject matter of the proceeding is several applications made by Ms Luck in 2005 under the Freedom of Information Act 1982 (Cth) (the FOI Act) for access to documents held by Centrelink. On 28 February 2008, Ms Luck filed an application in the Administrative Appeals Tribunal seeking review of numerous decisions made by the respondent. The present appeal, and the application before the primary judge for an extension of time, arises in the unusual circumstances of the Tribunal having not yet proceeded to a final hearing of Ms Luck’s review application. That is because Ms Luck sought to appeal and seek judicial review of directions made by the Tribunal seeking to prepare the review for hearing, a refusal of leave to amend her review application and certain other procedural decisions taken by the Tribunal. Progress of Ms Luck’s review application in the Tribunal has been delayed pending her appeal to a single judge of this Court, and now from the decision of the primary judge to the Full Court of this Court. One consequence is that the administrative decisions which are the underlying subject matter of both the merits review and the proceedings in this Court are ten years old. The responsibility for that inordinate delay, which is not irrelevant to some of the discretionary considerations that have arisen in relation to the conduct of proceedings in this Court, lies largely with Ms Luck.

The Tribunal proceedings to date

4    The Tribunal conducted an interlocutory hearing on 9 May 2008 in response to a jurisdictional issue raised by the respondent that Ms Luck’s application did not clearly identify decisions capable of being reviewed by the Tribunal. At the interlocutory hearing, Ms Luck submitted she had clearly identified the relevant decision, at least by correspondence, as being a decision made on 3 July 2005 which she sought to have reviewed. That decision was (Ms Luck contended) the deemed refusal of an FOI request made by Ms Luck on 3 June 2005, on the basis that Centrelink had failed to respond within the requisite time period. At her request, the Tribunal granted Ms Luck leave to amend her application for review to so identify that decision. Counsel for the respondent did not oppose that grant of leave and conceded that the proposed amendment would suffice to enliven the jurisdiction of the Tribunal.

5    It appears that the Tribunal’s grant of leave to amend the review application was never the subject of any formal orders. However, as recorded in the transcript of the interlocutory hearing, the grant of leave was dealt with in the following terms by the Tribunal:

In view of the submission by Ms Luck identifying the decision, I grant leave to her to amend her application to the tribunal that identifies the decision under review to [be] the decision [FOI request] made on 3 June 2005 then deemed to be made on 3 July 2005 as set out in her correspondence dated 7 April 2008.

6    Pursuant to that grant of leave, Ms Luck filed an amended application for review on 12 May 2008.

7    Subsequently on 13 May 2008, the Tribunal also ordered “that the proper respondent in these proceedings is Chief Executive Officer of Centrelink.” This order followed discussion about the proper title of the respondent at the directions hearing of 9 May 2008.

8    Also on 13 May 2008, the Tribunal directed that:

the respondent file with the Tribunal and serve on the applicant:

(a)    a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

(b)    every other document or part of a document that is in the respondent’s possession or under the respondent’s control and is relevant to the review of the decision by the Tribunal …

9    Some months later on 15 August 2008, the Tribunal provided short written reasons in support of the directions and orders made on 9 and 13 May 2008. The Tribunal stated, at [8] of its reasons:

The directions and orders made on 13 May 2008 were made in accordance with the procedures of the Tribunal in order to move this matter towards resolution and to ensure that appropriate steps are taken to prepare this matter for hearing, if required.

Ms Luck’s appeal and review applications before the primary judge

10    By her application filed on 25 June 2008, Ms Luck sought an extension of time to appeal under s 44 of the AAT Act from:

the decisions and determinations of the Administrative Appeals Tribunal … given on 13 May 2008 at Melbourne in which the Tribunal decided to:

(a)    fail to grant or deny leave to the applicant, when sought by the applicant, at a hearing on 9 May 2008, to amend the applicant’s original application for review of a decision deemed made on 3 July 2005, by Centrelink, to deny the applicant access to documents sought by request under section 15 of the Freedom of Information Act 1982;

(b)    omit the making of an Order or determination to hear and determine the application with an identified decision deemed made on 3 July 2005 that was capable of being reviewed under the Tribunal’s jurisdiction;

(c)    Order that the proper respondent in these proceedings is Chief Executive Officer of Centrelink …

11    Ms Luck also sought judicial review of those directions as well as of certain procedural decisions said to have been made by the Senior Member and by the Assistant Registrar of the Tribunal. By her amended notice of appeal dated 3 July 2008, Ms Luck sought review under the AD(JR) Act of the following decisions:

a)    … the decisions … made by the Tribunal in Melbourne on 13 May 2008, constituted by Senior Member Friedman

i)     that the proper respondent in these proceedings is Chief Executive Officer of Centrelink.

ii)    that the respondent file with the Tribunal, documents in the possession of or under the respondent’s control and relevant to the review of the decision, and a statement setting out findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the decision, without the Tribunal having made any reference to a specific decision or a date of the decision.

b)    … the decisions … made by the Assistant Registrar, Megan Cassidy in Sydney dated 29 April 2008:

i)    that, in response to the applicant’s letter to the Deputy Registrar, Melbourne, on 23 April 2008 (not 28 April 2008 as stated by the Assistant Registrar) the Assistant Registrar would be the only point of contact at the Tribunal

ii)    that, if the applicant called the Melbourne Registry, that the call would be terminated and a message passed to the Assistant Registrar to contact the applicant.

c)    … the Tribunal’s conduct, constituted by Senior Member Friedman … related to the making of the decisions and failure to make decisions, under review, made by Senior Member Friedman observed between 20 August 2007 and 13 May 2008 …

d)    … the Assistant Registrar’s conduct … related to the making of the decision dated of 29 April 2008 …

e)    … the failure of the Tribunal constituted by Senior Member Friedman on 13 May 2008 to make a decision to grant or deny leave to the applicant, when sought by the applicant, at a hearing on 9 May 2008, to amend the applicant’s original application for review of a decision deemed made on 3 July 2005, by Centrelink, to deny the applicant access to documents sought by request under section 15 of the Freedom of Information Act 1982; the amendments sought originally by application in correspondence to the Registrar on 7 April 2008 and formally submitted at hearing on 9 May 2008, and lodged with the Tribunal by facsimile on 12 May 2008, for the purpose of correctly identifying the date of the reviewable decision …

…

i)    … the failure of the Tribunal constituted by Senior Member Friedman on 13 May 2008 to make an Order to hear and determine the application with an identified decision deemed made on 3 July 206 …

Ms LUCK’S S 44 APPEAL AND AD(JR) ACT APPLICATION

12    The grounds of appeal relied upon before the primary judge in the appellant’s s 44 appeal were replicated under ground (e)(ii) of the present appeal, and are set out at [17] below. In addition, Ms Luck sought judicial review under the AD(JR) Act of decisions and conduct on the basis of some 34 grounds, on a generalised basis (for example, grounds (vi) and (vii) “taking an irrelevant consideration into account” and “failing to take a relevant consideration into account in the exercise of a power”; and ground (xvii) “that the decisions was [sic] otherwise contrary to law”). It is not necessary to set out or describe those grounds further, other than by noting our agreement with the primary judge’s finding at [21] that Ms Luck “does no more than recite all of the grounds to be found in ss 5 and 6 of the ADJR Act without making any attempt to relate any particular ground to the conduct of the Senior Member” (nor, we find, to the conduct of the Assistant Registrar whose decisions and conduct were also impugned).

THE PRIMARY JUDGE’S CASE MANAGEMENT AND DECISIONS

13    On 4 July 2008, shortly after Ms Luck’s application was filed on 25 June 2008, the parties appeared before the primary judge for directions. His Honour directed that the respondent file and serve contentions of fact and law in opposition to Ms Luck’s application and adjourned the further hearing of the matter. When the matter returned before the primary judge on 20 August 2008, Ms Luck did not appear, having provided on 18 August 2008 a letter to the District Registrar advising she would be unable to appear for health reasons and seeking an adjournment until the latter part of September. On 20 August 2008, his Honour made orders directing the parties to file and serve written submissions and listing the matter for hearing on 8 October 2008.

14    The application for an extension of time was heard and determined ex tempore on 8 October 2008, with settled written reasons following shortly after: see Luck v Chief Executive Officer of Centrelink [2008] FCA 1506; 107 ALD 538.

15    The primary judge refused the application for an extension of time on the basis that the proposed s 44 appeal was bound to fail, and the AD(JR) Act application had no reasonable prospects of success. His Honour found (at [6]) the Tribunal directions “were entirely beneficial to Ms Luck”, and held (at [11]-[13]):

It is … essential in appeals brought under s 44 of the AAT Act, that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. Ms Luck has failed to identify any such question of law: see Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 at 325.

Section 44(1) only provides for an appeal from a “decision” of the Tribunal. In Director-General of Social Services v Chaney (1980) 31 ALR 571 Deane J, with whom Fisher J agreed, held (at 593) that, subject to some immaterial exceptions, “an appeal under s 44(1) of the [AAT] Act lies only from a decision from the Tribunal which constitutes the effective decision or determination of the application for review.” His Honour held that, in the normal case, “such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act.”

The Tribunal in the present case has done no more than give directions with a view to readying Ms Luck’s application for hearing. In no sense are the directions from which she seeks to appeal final or determinative of her application. They do not, therefore, constitute decisions for the purposes of s 44. It follows that she has no right of appeal under that section.

16    As to the AD(JR) Act application for review of certain procedural decisions by the Senior Member and the Assistant Registrar of the Tribunal, his Honour found, at [20]-[21]:

In my view Ms Luck’s application under the ADJR Act has no reasonable prospects of success. The decisions and conduct relied on are the same decisions and conduct which were considered in relation to the proposed appeal under s 44 of the AAT Act. There appear to be some additional decisions and conduct referred to in the amended notice of appeal but I find them to be unintelligible. …

Ms Luck does not identify any relevant decisions within the meaning of the ADJR Act: see ss 3, 5 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-8. None of the “decisions” to which she refers is a “determination for which provision is made by or under a statute, one that … is substantive, final and operative. If anything, the Senior Member’s directions might be characterised as conduct, that is, “action taken, rather than a decision made, for the purpose of a reviewable decision.” In giving a direction that Ms Luck should only deal with a nominated officer the Assistant Registrar did nothing for the purpose of her or the Tribunal making a reviewable decision. Ms Luck does not identify any grounds on which a judicial review application might reasonably be expected to succeed in relation to the orders made by the Senior Member. She does no more than recite all of the grounds to be found in ss 5 and 6 of the ADJR Act without making any attempt to relate any particular ground to the conduct of the Senior Member.

The present appeal

17    In the appeal to this Court, Ms Luck relies upon the following grounds and questions of law:

(a)     The Justice erred in law;

(b)    the appellant has been denied procedural fairness and natural justice;

(c)    the appellant has been subject to discrimination in breach of the Disability Discrimination Act 1992 in the processing of the proceedings;

(d)    that the Order of the Justice was ultra vires;

(e)    that the finding of the primary Judge, that the appellant’s proposed appeal was bound to fail because the proposed notice of appeal failed to disclose a question of law, the necessary subject matter of the appeal, was wrong in law, because:

(i)    The appellant set out numerous questions of law in her amended proposed notice of appeal, filed on 3 July 2008, that were questions that should be resolved by application of legal principles, rather than by determining factual situations.

(ii)    The questions of law (2a. – j. on pages 4 – 5 of the amended proposed notice of appeal) involving the application or interpretation of laws as set out in the notice of appeal, were as follows:-

1.    Whether the decisions, determinations and the proceedings were affected by actual bias of the Tribunal, evidenced by the numerous procedural errors (all going against the applicant’s right to access the primary evidentiary documents sought under FOI in this matter and AAT matter V2008/3968) that occurred in the processing of the formal decisions and documents of the Tribunal and the denial of the applicant’s right to receive documents pursuant to the provisions of the Administrative Appeals Tribunal Act 1975 prior to unnecessary hearings, and denial of the use of the public services of the Tribunal and the denial of the right of the applicant to name the respondent party in the proceedings?

2.    Whether the Tribunal’s failure to formerly [sic] grant or deny leave to the applicant to amend the original application of 28 February 2008 to correct the typing error to show the deemed FOI decision date, 3 July 2005, when sought by the applicant at the hearing of 9 May 2008, was procedural unfairness and a denial of natural justice, in that relevant material facts and evidence were not considered?

3.    Whether the omission of an Order that should have been made by the Tribunal, to hear and determine the application with an identified decision deemed made on 3 July 2005, that was capable of being reviewed under the Tribunal’s jurisdiction, and the subsequent making of invalid Directions that were made without reference to a specific decision, was procedural unfairness and a denial of natural justice, in that relevant material facts and evidence were not considered?

4.    Whether the denial by the Tribunal for the applicant to make full submissions at 9 May 2008 hearing, in particular in respect of the object of the Freedom of Information Act 1982 was a denial of natural justice, in that the applicant was not heard in full and relevant material facts and evidence were not considered?

5.    Whether there was cause for apprehended bias?

6.    Whether the Chief Executive Officer of Centrelink is the proper respondent in accordance with the Freedom of Information Act 1982, in these proceedings?

7.    If not, who and/or what is/are the proper respondent/s according to the Freedom of Information Act 1982, in those proceedings?

8.    Whether the decisions and determinations of the Tribunal were manifestly unreasonable?

9.    Whether the decisions and determinations of the Tribunal were ultra vires?

10.    Whether the applicant has been denied natural justice and procedural fairness?

f.    that the finding of the primary judge, that the Tribunal’s decisions of failure to make decisions from which the appellant has made application to file and serve a Notice of Appeal, did not constitute decisions for the purposes of s 44 of the Administrative Appeals Act 1975 [sic], and were no more than directions that were not final or determinative of her application, was wrong in law because:

i.    he failed to properly construe the relevant legislation;

g.    that the finding of the primary Judge, that the appellant did not identify any relevant decisions within the meaning of the Administrative Decisions (Judicial Review) Act 1977 or identify any grounds on which a judicial review application [sic] might reasonably be expected to succeed in relation to the orders made by the Tribunal, was wrong in law because:

(i)    he failed to properly construe the relevant legislation

(ii)    he failed to take into consideration the relevant oral attempts by the appellant to make submissions to relate the particular grounds found in ss 5 & 6 of the ADJR Act, identified as those upon which the appellant sought to rely, to the decisions and conduct of the Tribunal officers.

h.    that the appellant’s entitlement arises because of the operation of the following legislation:

Freedom of Information Act 1982

Administrative Appeals Tribunal Act 1975

Federal Court of Australia Act 1976

Federal Court Rules

Administrative Decisions (Judicial Review) Act 1977

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

18    On 22 April 2015 Ms Luck applied for orders to stay or adjourn the appeal as well as the appeal in proceeding VID 512 of 2014 (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.

19    At the time of dismissing the applications, we also made orders granting leave to Ms Luck to file and serve any written submissions she wished to make on this appeal on or before 4 pm on 18 June 2015, and granting the respondent leave to file and serve any submissions in reply on or before 4 pm on 2 July 2015. Ms Luck has not filed any submissions pursuant to that grant of leave.

Consideration

20    As the primary judge pointed out, the orders made by the Tribunal which Ms Luck seeks to impugn were entirely beneficial to her: granting her an extension of time, allowing her to amend her review application, compelling the respondent to give reasons and changing the name of the respondent so that it correctly reflected the proper respondent.

21    An initial point raised by the respondent was whether Ms Luck needed leave to appeal on the basis that the appeal was from an interlocutory decision.

22    It may be accepted that the decision is properly to be characterised as interlocutory: see, for example, Vranic v Commissioner of Taxation [2002] FCAFC 26; 49 ATR 93 citing Deighton v Telstra Corporation Ltd [1997] FCA 1568 and referring to Barrett v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; 18 ALD 129 at 130.

23    The orders made by Gray J on 28 April 2009 at the relevant Full Court callover clearly treated the primary judge’s decision as interlocutory, and ordered that the question of leave be dealt with on the hearing of the appeal. At the hearing of this appeal on 21 May 2015, the Court requested the respondent provide a transcript of the callover before Gray J. After the hearing, having made enquiries of the transcript provider, the respondent advised the Court there would be a long delay in recovering the transcript due to technical problems encountered by the transcript provider. It was provided on 17 August 2015. That transcript confirms that Gray J made it clear to Ms Luck that leave to appeal may be required. Ms Luck disputed this before Gray J.

24    After all these years, if leave is necessary, we would grant it in order to recognise that it would not serve the interests of the administration of justice to deal with this appeal other than on a final basis and on its merits.

25    Insofar as the grounds of appeal are concerned, the respondent’s submissions spent some considerable time addressing the issue whether the matters raised in the s 44 notice of appeal before the primary judge were questions of law. His Honour found they were not, and this was one of the bases for his refusal to extend time. It also features heavily in Ms Luck’s grounds of appeal before us, in particular ground (e). As we have noted in VID 512 of 2014, Luck v Secretary of the Department of Human Services [2015] FCAFC 111, the Full Court’s decision in Haritos v Commissioner of Taxation [2015] FCAFC 92 has overruled Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; 76 ALD 321 and cases which adopted that approach to s 44 of the AAT Act. Both the primary judge’s reasons, and the respondent’s submissions on the appeal proceeded on the basis Birdseye was correct, and no criticism can be levelled at either the primary judge or the respondent for adopting that course.

26    Accepting that the law about the approach to an appeal under s 44 is as set out in Haritos, and summarised at [62] of that decision, the fact that the primary judge took the approach he did does not cause us to allow the appeal. It may well be that some of the “questions of law” posed by Ms Luck were sufficient to give this Court jurisdiction, in accordance with the decision in Haritos. Putting the approach to questions of law under s 44 to one side, there are a number of other bases for his Honour’s decision to refuse to extend time, all of which were sound, and with which we agree. In other words, whatever might be said in the light of Haritos about the approach to s 44 taken by his Honour, it does not cause us to conclude that his Honour erred in refusing to grant the extension(s) of time needed by Ms Luck.

27    The first basis is that the directions and conduct of the Tribunal which Ms Luck seeks to impugn under s 44 are not “decisions” for the purposes of that provision because they are not final or determinative of her application for review: see Director-General of Social Services v Chaney [1980] FCA 87; 31 ALR 571 at 593 per Deane J, with whom Fisher J agreed; Rana v Repatriation Commission [2011] FCAFC 123; 196 FCR 137 at [31] per Kenny, Stone and Logan JJ; and Commissioner of Taxation v Cancer and Bowel Research Association Inc [2013] FCAFC 140; 305 ALR 534 at [10] per Edmonds, Pagone and Davies JJ. Quite the contrary, all the Tribunal was doing was giving directions in order to prepare for the review for hearing. The not dissimilar meaning given to the word “decision” in the AD(JR) Act (see Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 335-8) means that her AD(JR) Act application was to that extent also without any prospects of success. Ms Luck appears to challenge the primary judge’s findings to this effect with ground (f) in her notice of appeal (which we have extracted at [17] above), and her contention should be rejected. We note Ms Luck appears to attach great significance to the fact (which is not in contest) that the Tribunal did not make an express order granting her leave to amend her application for review. Nevertheless, the respondent has not contested and we accept it is the case (as did the primary judge) that the Tribunal did grant such leave. Ms Luck filed an amended review application in the Tribunal pursuant to that grant of leave. There was, therefore, nothing for Ms Luck to challenge in this respect, but if it was of such importance to her and she wished to have the grant more formally recorded by the Tribunal, as the primary judge noted at [23] of his reasons:

Ms Luck is able to apply to the Tribunal for any further directions which she considers need to be made to facilitate the hearing of her application. In particular she can invite the Tribunal to make an order identifying the relevant decision as that deemed to have been made on 3 July 2005.

28    Conduct of an administrative decision-maker is reviewable under s 6 of the AD(JR) Act. Even if the Tribunal’s directions, and other procedural steps were, we assume in favour of Ms Luck, capable of constituting “conduct” for the purposes of s 6, none of the grounds of review she identifies in relation to this conduct has any prospects of success. The primary judge was correct to form that view.

29    We turn then to examine each of the questions of law, some of which are also expressed as the grounds of review for the purposes of the AD(JR) Act application.

30    Ground (h) appears more to seek to establish the Court’s jurisdiction, and Ms Luck’s right to invoke it, and can be passed over. Ground (d) contends the primary judge’s decision was ultra vires, but does not explain why. The respondent submits:

Section 44(2A)(a) of the AAT Act provides that an appeal under s 44(1) shall be instituted “not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows”. Similarly, s 11(1)(c) of the AD(JR) Act permits the Court to extend the time by which an application for review must be filed.

The Federal Court clearly had power to grant of refuse [sic] the enlargement of time sought by the Appellant. Further, it was permissible for the primary judge to consider the merits of the proposed proceedings in determining whether or not to grant the necessary enlargement of time.

31    Those submissions are plainly correct.

32    Ground (c) contends the primary judge discriminated against Ms Luck on the grounds of her disability. First, as a matter of fact we see no basis whatsoever for this allegation. Second, and subsuming the first, the Full Court has held that judicial officers are not subject to the Disability Discrimination Act 1992 (Cth): Luck v University of Southern Queensland [2014] FCAFC 135; 145 ALD 1 at [41].

33    Grounds (a) and (b) allege error of law and denial of procedural fairness and natural justice but without any particulars and are not capable of succeeding. Other grounds give some content to these allegations and we consider them in that context.

34    That leaves parts of grounds (e) and (g).

35    Ground (e) contends that the primary judge erred in finding the proposed s 44 appeal failed to disclose a question of law, by reference to each of the ten questions of law contained in the proposed appeal. By reference to proposed question of law 2(a) in the proposed s 44 appeal, ground (e) contends that the primary judge should have upheld Ms Luck’s claims to actual or apprehended bias in respect of the way the Tribunal conducted the management of the review. There is little given by way of evidence or elaboration about these allegations, and we do not consider that anything to which Ms Luck does point could be said to constitute actual or apprehended bias in the way those terms are to be understood when applied to an administrative decision-maker, where there is no necessary impediment to a decision-maker forming opinions as the review is being conducted, so long as she or he remains capable of persuasion and has not engaged in prejudgment: see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [71]-[72] per Gleeson CJ and Gummow J; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [28]-[36] per Flick J, Allsop CJ agreeing and at [74] per Robertson J, Allsop CJ agreeing, citing NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [20].

36    By reference to proposed question of law 2(f) to (g) in the proposed s 44 appeal, we see no error in the primary judge’s approach to the law, nor his consideration of Ms Luck’s submissions. Where the respondent has, as a model litigant in the Tribunal and this Court, informed the Tribunal that a particular statutory office holder is the proper respondent, very cogent material would need to be provided to establish otherwise. In any event, this was a matter the Tribunal could have further amended if need be, if Ms Luck had allowed her review to proceed.

37    Proposed question 2(d) concerns Ms Luck’s contention that she was not allowed to make “full submissions” to the Tribunal, and to refer to the matters she wished to, such as the objects of the FOI Act. The Tribunal is able to control its own procedure: AAT Act, s 33(1)(a); LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166 at [123], citing with approval Rana v Repatriation Commission [2011] FCAFC 123; 196 FCR 137 at [32], and exercising that control may involve a Tribunal setting limits on matters parties can raise. Assuming in Ms Luck’s favour that what she alleges occurred is what occurred, we consider the Tribunal was within its authority to do this, and we do not see, looking at the conduct of the matter as a whole before the Tribunal and bearing in mind the somewhat preliminary stage it had reached, that there could possibly be said to be any denial of procedural fairness by the Tribunal to Ms Luck.

38    Ground (g) deals with the “conduct” allegations. We have dealt at [27] with our view as to why the primary judge was correct about the “decision” aspect. We consider his Honour was also correct to find that Ms Luck’s allegations about conduct were unintelligible: we have found them of that character as well.

39    Further, Tracey J said (at [21]):

In giving a direction that Ms Luck should only deal with a nominated officer the Assistant Registrar did nothing for the purpose of her or the Tribunal making a reviewable decision.

40    His Honour was clearly correct on this issue.

41    There is no basis to find the primary judge (as Ms Luck alleged) did not properly construe the relevant legislation, did not accord Ms Luck procedural fairness, or approached her claims in a way which might be said to be affected by apprehended bias. To the contrary, under difficult circumstances, the primary judge dealt with Ms Luck’s proceedings with fairness and courtesy.

CONCLUSION

42    Finally, whether to extend time in relation to either a s 44 appeal, or a judicial review application, involves an exercise of discretion. Ms Luck needs to persuade us that the primary judge made an error of the kind set out in House v The King [1936] HCA 40; 55 CLR 499; see also Waters v Commonwealth [2015] FCAFC 46 at [8], [55]. His Honour was well aware of the applicable principles in considering whether to grant extensions of time, and he applied those in a fair and considered manner to Ms Luck’s claims. As we have said, we consider that even if the approach the primary judge took to s 44 cannot now be said to accord with the law as set out in Haritos [2015] FCAFC 92, his Honour’s exercise of discretion was based on more than the absence of a “pure” question of law and we see no error.

43    Ms Luck has, we consider, undertaken a fruitless challenge over the last seven years when she should have been pursuing her merits review in the Tribunal.

44    The appeal must be dismissed. There is no basis in the material for anything other than the usual order as to costs, and we consider it is wholly appropriate to order Ms Luck to compensate the respondent for a proceeding that has taken seven years and had no apparent prospects of success.

Associate:

Dated:    21 August 2015