FEDERAL COURT OF AUSTRALIA

Lawrance v President, Administrative Appeals Tribunal [2005] FCA 204

LAWRANCE V President, Administrative Appeals Tribunal AND Senior Member Kelly AND Senior Member Allen AND Bev Smith

N 55 of 2005

JACOBSON J

SYDNEY

2 MARCH 2005

THE COURT ORDERS THAT:

1.           Within 14 days, the Applicant is to file an affidavit explaining the reason for her failure to attend the hearing today.

2.           The matter is to be stood over to 24 March 2005 at 9.30am for directions.

3.           The applicant is to notify CRS Australia, the SSAT, the RRT, the Department of Family and Community Services, the Human Rights and Equal Opportunity Commission and Centrelink of these proceedings and the orders sought.  The applicant is also to notify them of directions hearing on 24 March 2005 at 9.30am.

4.           At the directions hearing on 24 March 2005 at 9.30am or a date convenient to the court, those bodies named in order 3 may, in the event that the applicant does not apply to join them as respondents, make their own application to be joined as parties, pursuant to order 6 rule 8 of the Federal Court Rules.

5.           If the bodies named in order 3 are not joined as parties, the court shall hear argument as to whether the proceedings ought to be dismissed for want of necessary parties.

6.           The presence of the 4^th respondent is not required at directions hearings prior to the final hearing of this matter, though she may contact the court to indicate if she wishes to appear by telephone link in future.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This matter was listed for an urgent final hearing today.  I listed it when the matter was before me on 10 February 2005.  The applicant ("Ms Lawrance") was not present in court when the matter was called shortly after 2.15 pm.  I stood the matter down for approximately 10 minutes in case she had been unavoidably detained.  When the matter resumed Ms Lawrance was still not present in court.  The first, second and third respondents have filed submitting appearances.  The fourth respondent ("Ms Smith") is now resident in the United States of America and she made a request before the hearing that she be permitted to attend the hearing by telephone.

2                     As I understood the correspondence, consent was given to that course and Ms Smith appears by telephone.

3                     I directed Ms Smith's attention to the provisions of the rules which give me power to dismiss a proceeding when a party is absent from court at a time when the proceeding is called on for hearing.  The relevant rules are order 32 rule 2 and order 35A rule 2(1)(f) and order 35A rule 3(1)(a).  Ms Smith asked me to exercise the power to dismiss the proceeding.  However, I am aware that Ms Lawrance has filed an application for leave to appeal against my refusal on 10 February 2005 to grant interlocutory relief.  The effect of dismissing the proceeding would be to shut Ms Lawrance out from making her application.

4                     I do regard Ms Lawrance's failure to appear this afternoon as serious.  She was aware that the hearing was listed today.  She was present in court on 10 February 2005 when I listed the matter for hearing.  She is also aware that the court has been put to the trouble and expense of arranging a telephone link with Ms Smith.

5                     Nonetheless, it seems to me that in the proper exercise of my discretion, I ought not to dismiss the proceeding because it seems clear that Ms Lawrance intends to prosecute it.  I propose to say something very briefly about the nature of the proceedings and the course which I had proposed to take today had Ms Lawrance appeared before me. 

6                     By her amended application Ms Lawrance seeks, amongst other things, an order of mandamus directed to the President of the Administrative Appeals Tribunal to make orders under section 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) prohibiting the publication of evidence and of names, which I understand to include the names of parties and witnesses, in various proceedings referred to in [2] of the amended application.

7                     It is clear enough from [2] of the application and also from Ms Lawrance's affidavit of 13 January 2005 that the respondents to the proceedings in the AAT include the five named parties described in [2] of the application, that is to say, CRS Australia, the Social Security Appeals Tribunal, the Department of Family and Community Services and the Human Rights and Equal Opportunity Commission.  All of those bodies were respondents to matter number N1642 of 2004 which was in my docket until it was discontinued by a notice of discontinuance and orders made by me on 10 February 2005.

8                     Other orders are sought in the amended application which I need not set out.  I should refer to order 3 which is claimed against the President of the Administrative Appeals Tribunal.  Ms Lawrance claims an order that the President remove from publication the decision in Lawrance v Centrelink (AAT file number N594 of 2004) which she says in the application was an appeal against the Department of Family and Community Services not just Centrelink.  I note that Centrelink was a respondent to proceedings N1642 of 2004, to which I have referred. 

9                     It appears from an examination of the amended application that the bodies to which I have referred are the parties who would be affected by the relief claimed by Ms Lawrance. 

10                  This is certainly a preliminary view which I have reached.  I did not realise this when I listed the matter for hearing but I became aware of it today when I looked at the file in preparation for this afternoon's hearing.  The proceedings in the AAT which are referred to in the application arise out of requests for information under the Freedom of Information Act 1982 (Cth) for access to records of the respondents to the AAT proceedings.  Those proceedings are apparently appeals against refusals to provide the information.  I referred briefly to the history of the AAT proceedings at [11] and following in my judgment of 10 February 2005.

11                  Had Ms Lawrance appeared this afternoon, it was my intention to raise this issue with her because my preliminary view is that all of those parties, that is, the six bodies to which I have referred, are necessary parties, see Order 6 Rule 8 of the Federal Court Rules.  I brought with me to court and had intended to provide to Ms Lawrance copies of two relevant judgments on this question, the first is News Limited v Australian Rugby Football League Limited (1996) 139 ALR 193 at 297-298 and Evans v Superannuation Complaints Tribunal [2002] FCA 79. 

12                  The course which I proposed to follow today was that I intended to direct Ms Lawrance to give notice to the six bodies to which I have referred, of the existence of these proceedings and to inform them that the matter will be listed on a date approximately two weeks away, at which time they may apply to be joined as parties under Order 6 Rule 8.

13                  Alternatively, Ms Lawrance may wish to join them in the proceedings.  Those bodies are already aware of these proceedings because their legal representatives were in court on 10 February 2005 when I gave leave to discontinue proceedings N1642 of 2004, that matter being listed for directions on the same day as the present proceedings (N55 of 2005).

14                  I intended to draw Ms Lawrance's attention to the ordinary rule which applies.  That is, that the joinder of any parties as respondents would be at Ms Lawrance's own risk as to costs.  This would ordinarily apply whether Ms Lawrance joined the respondents herself or whether they are joined on their own application.  If those parties are not joined in the proceedings either by Ms Lawrance or on their own application it seems to me that Ms Lawrance will need to satisfy me in light of the authorities to which I have referred that the proceedings are properly constituted, that is to say, the proceedings may be liable to be dismissed because the necessary parties have not been joined.

15                  That leaves the position of Ms Smith.  I refused interlocutory relief against her on the ground that it had not been established that she was an officer of the Commonwealth. Accordingly, she was not amenable to a claim under section 39B of the Judiciary Act 1903 (Cth).  The position has not altered since then.  She is described in the amended application as "Bev Smith, Human Resources Manager CRS Australia". 

16                  It may be that if CRS is joined as a party to the proceedings that Ms Lawrance may wish to reconsider whether Ms Smith is a proper party to the proceedings. 

17                  I think it is fair to say that this is an unusual piece of litigation.  I have some familiarity with it from what I saw in the claims made in N 1642 of 2004 when that matter was in my docket.  That is not to suggest that I have by any means a full knowledge of what seems to be a rather complex proceeding with a lengthy background. 

18                  But, it is the history of the matter and the background, together with the fact that Ms Lawrance apparently intends to seek leave to appeal against my earlier judgment which persuades me against exercising my discretion to dismiss the proceedings.  However, it is appropriate that I express my displeasure at Ms Lawrance's failure to attend today. As I have said, the court has been put to considerable expense.  That is always the case when a party fails to attend at a scheduled hearing.  It is even more so today because of the fact that Ms Smith is in the United States.

19                  It seems to me that Ms Lawrance should be directed to file an affidavit explaining the reason for her failure to appear today and I will direct her to do so.  The affidavit should be filed within 14 days; a copy of this judgment will be delivered to her by post at her address at 3A Manning Road, Double Bay so that she will be aware of what I have said. 

20                  It may be appropriate to order her to pay the costs occasioned by today's telephone link with Ms Smith but I express no view at all about that. 

21                  However, I will raise that at the next directions hearing.  I propose to stand the matter over to 24 March 2005 at 9.30 a.m. for directions.  I direct Ms Lawrance to notify each of the bodies to which I have referred, that is to say for completeness, CRS Australia, the Social Security Appeals Tribunal, the Refugee Review Tribunal, the Department of Family and Community Services, the Human Rights and Equal Opportunity Commission and Centrelink of these proceedings and the orders sought.

22                  I also direct her to notify them that the matter will be listed for directions on 24 March 2005 and that either on that day or on a date convenient to the court any or all of those bodies may, in the event that Ms Lawrance does not apply to join them as respondents, make their own application to be joined as parties pursuant to order 6 rule 8.  I note that if those named bodies are not joined as parties, I will hear argument on the question of whether the proceedings ought to be dismissed for want of necessary parties.

23                  I will mention lastly Ms Smith's position.  She indicated today that she may be prepared to submit to orders of the court.  However, she appears in person, being unrepresented by solicitors or counsel.  As I understand her position she does not want to take an active part in the proceedings.  If she does file a submitting appearance, that will simply underscore the problem which I already face, namely, that there is no real contradictor to the claims made by Ms Lawrance.  Whilst the ordinary course in relation to a Tribunal such as the AAT is that it submits to the jurisdiction of the court and plays no active role in the proceedings in accordance with what was said by the High Court in R v Australian Broadcasting Tribunal; ExparteHardiman (1980) 144 CLR 13.  It is nevertheless appropriate in certain instances for the court to direct that notice be given to a party such as the Commonwealth of Australia to appear in the proceedings so that the court has a proper contradictor before it. 

24                  That would certainly be a matter for the various bodies to which I have referred to take into account in light of what I have said about the way in which these proceedings are constituted. 

25                  Ms Smith's position is, of course, different but in light of what she has said I think the appropriate course is that her presence not be required at the various directions hearings which may be required prior to the final hearing of this matter.

26                  However, she has provided a telephone and email address to the court and she will be notified of the listings to take place and may, if she wishes, contact the court to indicate if she wishes to do so that she be permitted to appear by telephone link in the future.

Associate:

Dated:              9 March 2005