FEDERAL COURT OF AUSTRALIA

Lawrance v President, Administrative Appeals Tribunal [2005] FCA 541

PRACTICE AND PROCEDURE – applications for leave to appeal decisions pertaining to practice and procedure including decision refusing the grant of interlocutory relief – need for appellate courts to exercise caution when invited to review decisions pertaining to practice and procedure – an application for leave to appeal does not operate as a stay of the judgment appealed from – applications dismissed

Administrative Appeals Tribunal Act 1975 (Cth) s 33, 35(2), 44, 60(3)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Freedom of Information Act 1982 (Cth)

Federal Court Rules Order 4 rule 1, Order 7 rules 1 and 2, Order 52 rule 17

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 applied

Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 cited

Commissioner of Taxation v Beddoe (1996) 68 FCR 446 cited

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited

Director-General of Social Services v Chaney (1980) 47 FLR 80 cited

Re the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 applied

AROHA LAWRANCE v PRESIDENT, ADMINISTRATIVE APPEALS TRIBUNAL & ORS

NSD 241 OF 2005

NSD 334 OF 2005

HELY J

3 MAY 2005

SYDNEY

THE COURT ORDERS THAT:

1.         The applications for leave to appeal made by the notices of motion filed on 14 February 2005 and 7 March 2005 be dismissed.

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

REASONS FOR JUDGMENT

1                     Ms Lawrance made requests for information under the Freedom of Information Act 1982 (Cth) (‘the FOI Act’) of the following Commonwealth agencies:

-                     CRS Australia;

-                     the Department of Family & Community Services (originally Centrelink, but enlarged to encompass the entire Department);

-                     the Social Security Appeals Tribunal;

-                     the Refugee Review Tribunal; and

-                     the Human Rights & Equal Opportunity Commission.

2                     Ms Lawrance instituted a number of applications with the Administrative Appeals Tribunal (‘the AAT’) for review of decisions concerning access to documents which Ms Lawrance had sought.  One such proceeding, numbered N2004/505, sought to review the decision made by CRS Australia refusing access to documents sought by Ms Lawrance.

3                     In the AAT proceedings, Ms Lawrance requested, pursuant to s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), that orders be made under s 35(2) of the AAT Act for the hearings to take place in private, and that directions be given forbidding the publication of the names of the parties, and of the evidence given before the AAT.  On 27 October 2004 Senior Member Allen refused to make the orders sought by Ms Lawrance.

4                     The substantive hearing of proceedings N505 of 2004 took place before Senior Member Kelly on 1 November 2004.  The principal issue in that application was whether CRS Australia has conducted all reasonable searches to locate documents falling within the terms of Ms Lawrance’s FOI request.  When the substantive hearing began, Ms Lawrance repeated her request for orders to be made under s 35(2) of the AAT Act, but Senior Member Kelly declined to give such a direction as she was not persuaded that she should make a ruling different from that made by Senior Member Allen.  The Senior Member then embarked upon the determination of the substantive application and reserved her decision.

5                     Ms Lawrance makes a number of complaints about the conduct of the hearing by Senior Member Kelly, including failure to pursue the fact that witnesses summoned to attend the hearing did not attend, and disallowing relevant questions of witnesses who did attend.  One of the witnesses at the hearing was Bev Smith, apparently a CRS employee, who Ms Lawrance used to regard as a personal friend.  Ms Lawrance complains that Bev Smith gave false evidence to the AAT, and that she is concerned that Senior Member Kelly will ‘not make a rationally probative assessment of the credibility of Bev Smith’s evidence’.  Ms Lawrance asserts that she was denied a fair hearing by Senior Member Kelly, and that she is biased.

6                     On 11 November 2004 Ms Lawrance appealed to this Court under s 44 of the AAT Act from the decision given by Senior Member Allen on 27 October 2004.  The appeal became matter number NSD 1642 of 2004.  There were six respondents to the appeal, being officers of the Commonwealth authorities of whom FOI requests had been made.

7                     Ms Lawrance says that she instigated the appeal under s 44 of the AAT Act before she became aware of the decision in Director-General of Social Services v Chaney (1980) 47 FLR 80, which establishes that an appeal only lies to the Court under s 44 of the AAT Act from a decision which constitutes the effective decision of the application for review.  The decision of Senior Member Allen does not satisfy that description.

8                     On 10 February 2005 Jacobson J ordered that Ms Lawrance be granted leave to discontinue proceedings NSD 1642 of 2004, and ordered her to pay the costs of those proceedings.

9                     In the meantime, on 13 January 2005, Ms Lawrance instituted proceedings number NSD 55 of 2005 by an application filed in this Court under s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’).  Ms Lawrance says that at a directions hearing in NSD 1642 of 2004 it was suggested that she should recast her application as an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’), but that in the light of the decision in Commissioner of Taxation v Beddoe (1996) 68 FCR 446 this would not be an appropriate course to follow.  Relief under s 39B is sought against Ms Smith on the basis that she was a CRS Australia employee, and amenable to injunctive relief as an officer of the Commonwealth.

10                  An amended application was filed in Court on 10 February 2005 in which the first, second and third respondents are the President of the AAT, Senior Member Kelly and Senior Member Allen respectively.  The ‘fifth respondent’ is described as Bev Smith, Human Resources Manager, CRS Australia.  There is no fourth respondent.

11                  The relief sought in that application includes:

-                     orders quashing the decision of Senior Member Allen of 27 October 2004 refusing to give directions under s 35(2) of the AAT Act in matter numbers N505, N594, N635, N659, N585 and N1000 all of 2004;

-                     orders requiring the President of the AAT to make orders under s 35(2) of the AAT Act ‘thus overturning’ the decisions of Senior Member Allen of 27 October 2004 and Senior Member Kelly on 1 November 2004;

-                     an order prohibiting Senior Member Kelly from making or publishing a decision in matter number N505 of 2004;

-                     an order requiring the President of the AAT to remove Senior Member Kelly from hearing matter number N505 of 2004 and to reconstitute the AAT with another member, not being one of three specified persons; and

-                     orders prohibiting Bev Smith from giving uncorroborated evidence in future hearings of the AAT, and from communicating any information about Ms Lawrance.

12                  The amended application claims by way of interlocutory relief:

-                     that Senior Member Kelly be restrained from taking further action in matter number N505 of 2004;

-                     that the s 35(2) decisions of Senior Members Allen and Kelly ‘are to be immediately removed from publication’;

-                     that the Federal Court not publish its decision in this matter; and

-                     that Bev Smith be restrained from communicating any information about Ms Lawrance.

13                  On 10 February 2005 the first directions hearing in matter number N55 of 2005 was held before Jacobson J.  The first, second and third respondents submitted to the orders of the Court, and did not wish to be heard on the interlocutory application.  Ms Lawrance now accepts that this was a proper course for those respondents to adopt.  There was no appearance on behalf of Bev Smith.

14                  Jacobson J:

-                     was not satisfied that Ms Lawrance’s evidence that on 13 January 2005 she placed a sealed copy of the application in Bev Smith’s mailbox at 9 Undine Street, Maroubra, and posted a copy of the amended application to her at that address on 14 January 2005 proved service on Ms Smith;

-                     nonetheless proceeded to consider the application for interlocutory relief;

-                     refused the application for interlocutory relief on the balance of convenience as Ms Lawrance’s affidavit did not make out a case of sufficient urgency, particularly as his Honour had fixed the matter for a final hearing on 2 March 2005; and

-                     refused the application for interlocutory relief against Ms Smith, if only because Ms Lawrance had not proven that Ms Smith was an employee of the Commonwealth.

15                  Although the amended application seeks relief in relation to the six applications before the AAT, none of the respondents to those proceedings were joined as respondents to matter number NSD 55 of 2005.

16                  On 14 February 2005 Ms Lawrance filed a motion seeking leave to appeal from the decisions made by Jacobson J on 10 February 2005:

            (i)         allowing the legal representative of the first, second and third respondents to make a ‘submitting appearance’;

            (ii)        finding that the fourth respondent, Bev Smith, had not been served with the application in matter number NSD 55 of 2005;

            (iii)       finding that Bev Smith is not an officer of the Commonwealth;

            (iv)       setting down matter number NSD 55 of 2005 for a final hearing on 2 March 2005;

            (v)        refusing to grant an interlocutory injunction in relation to Bev Smith; and

            (vi)       refusing to grant an interlocutory injunction in relation to Senior Member Kelly.

17                  This application for leave to appeal (which was allocated matter number NSD 241 of 2005) was referred to me, as duty judge, in the week commencing 4 April 2005 by the Full Court list judge.  The application was fixed for hearing on 11 April 2005 in response to a request made by Ms Lawrance.

18                  On 15 February 2005 a Deputy District Registrar wrote to Ms Lawrance, to the solicitor for the first, second and third respondents and to Ms Smith, in relation to the final hearing in matter number NSD 55 of 2005 fixed for 2 March 2005.  The letter enclosed file notes of three telephone conversations which Ms Smith had with the associate to Jacobson J in relation to the matter.  According to the first file note, on 8 February 2005 Ms Smith left a message on voicemail stating that she was now residing in the USA, and that her mother-in-law had been in contact with her regarding some documents delivered to her old address concerning a legal matter involving Ms Lawrance.  According to the second file note, Jacobson J’s associate returned Ms Smith’s call on 11 February 2005.  The third phone call also took place on 11 February 2005 when Ms Smith enquired of Jacobson J’s associate whether she could appear at the hearing by teleconference.  The parties were invited by the Deputy District Registrar to indicate their attitude to Ms Smith appearing at the final hearing by telephone by 4 pm on 21 February 2005.  The letter advised that in the absence of consent, Jacobson J would hear a formal application by Ms Smith in Court on 24 February 2005 by telephone for leave to appear at the hearing by telephone.

19                  Ms Lawrance responded to the Deputy District Registrar’s letter of 15 February 2005 by a letter of 17 February 2005, referring to the notice of motion which she had filed on 14 February 2005.  The letter stated, in part:

‘As you will know from that notice of motion and this letter, the date for final hearing is now the subject of a request for leave to appeal, and cannot be said any more to be 2 March 2005.  I am still waiting for the date of the leave motion to be allocated and the parties advised.’

The letter expressed concern about the conduct of the registry staff in relation to the matter, and made comments critical of Bev Smith.  The letter continued:

‘I certainly expect Bev Smith to attend the leave to appeal hearing, by conference telephone, and I expect her to reply to me at my address for service in relation to this matter.’

20                  On 21 February 2005 the Deputy District Registrar wrote to Ms Lawrance, to the solicitors for the first, second and third respondents and to Ms Smith stating that the matter would no longer be listed for 24 February 2005 (as foreshadowed in his letter of 15 February 2005) having regard to the replies received from the parties.  Ms Lawrance responded to the Deputy District Registrar by a letter dated 22 February 2005 in which she stated that she was still awaiting a hearing date for her application for leave to appeal and that, as Bev Smith is a party to the proceedings, ‘she can obviously attend via videoconference’.

21                  The matter came on for hearing before Jacobson J on 2 March 2005.  Ms Lawrance did not appear.  According to his Honour’s reasons for judgment Ms Smith was resident in the USA, and she attended the hearing by telephone.  His Honour stated that as he understood the correspondence, consent was given to that course.

22                  His Honour declined to accede to Ms Smith’s application to dismiss the proceedings by reason of Ms Lawrance’s failure to appear.  However, his Honour expressed the preliminary view (which he had not formed when he listed the matter for hearing) that the proceedings were defective for want of parties, as none of the respondents to the AAT proceedings had been joined as parties to the proceedings.

23                  His Honour made the following orders:

‘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 9.30 am 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 9.30 am.

4.         At the directions hearing on 24 March 2005 at 9.30 am 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.’

24                  On 3 March 2005 the Federal Court registry wrote to Ms Smith, the solicitors for the first, second and third respondents and Ms Lawrance notifying them that the application for leave to appeal from the orders made by Jacobson J on 10 February 2005 had been allocated matter number NSD 241 of 2005.

25                  On 7 March 2005 Ms Lawrance filed a notice of motion seeking leave to appeal from the decision of Jacobson J on 2 March 2005.  That application was numbered NSD 334 of 2005, and was heard by me in association with NSD 241 of 2005.

26                  In her affidavit of 14 February 2005 filed in support of the application for leave to appeal, Ms Lawrance complains that this litigation is not proceeding normally.  She says that she is an unimpaired person who has no impairment, disorder, illness or disability and that she does not consent to any person acting as her amicus, representative or advisor.  At the hearing of Ms Lawrence’s application for leave to appeal she referred me to the decision of Driver FM delivered on 29 April 2004 in matter number SZ 288 of 2004 in proceedings between Ms Lawrance and the Human Rights & Equal Opportunity Commission.  Ms Lawrance also put before me a document filed on 29 March 2005 styled ‘Particulars’ in which she says that no evidence was adduced before Driver FM which would warrant the orders made on 29 April 2004.  Ms Lawrance sought leave to appeal to this Court from that decision, and on 15 April 2005 Moore J handed down his decision granting her that leave.

27                  By notice of motion filed on 8 March 2005 Ms Lawrance applied to Jacobson J to disqualify himself from dealing with matter number NSD 55 of 2005 on the ground of bias.  On 24 March 2005 Jacobson J dismissed the notice of motion, but listed the matter for hearing on 3 June 2005 to have determined the matter referred to in orders 4 and 5 of the orders made on 2 March 2005.

28                  On 29 March 2005 Ms Lawrance filed a notice of motion in matter number NSD 334 of 2005 for orders that CRS Australia, the Department of Family & Community Services, the Social Security Appeals Tribunal, the Refugee Review Tribunal and the Human Rights & Equal Opportunity Commission be the subject of leave granted to the applicant to join them as parties in matter number NSD 55 of 2005.  That application should have been made to Jacobson J as the docket judge in matter number NSD 55 of 2005.  Although the notice of motion states that those orders will be sought on 11 April 2005 the matter was not listed for hearing before me, nor is it appropriate that I should deal with it.  If that matter is to be pursued Ms Lawrance should file the notice of motion in matter number NSD 55 of 2005, returnable before the docket judge.

29                  Ms Lawrance informs me that on Friday 8 April 2005 she applied for leave to appeal from the decision of Jacobson J refusing to disqualify himself, but I have not seen any documents relating to that application, and it is not before me.

30                  Ms Lawrance has not complied with the order made by Jacobson J on 2 March 2004 that she should file an affidavit explaining the reasons for her failure to attend the hearing fixed for that day.

31                  Ms Lawrance posted copies of the notices of motion seeking leave to appeal to Bev Smith at 9 Undine Street, Maroubra.  Ms Smith did not appear on the hearing of the applications, and I am not aware of any application on her part to be heard by telephone. But this does not relieve me of deciding whether there is a proper case for the grant of leave.

Leave to appeal – principles

32                  An applicant for leave to appeal from an interlocutory decision must ordinarily establish:

-                     that the decision is attended by sufficient doubt to warrant being reconsidered by the Full Court; and

-                     that substantial injustice would result if leave were refused supposing the decision at first instance to be wrong.

See Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

33                  A decision to grant or refuse to grant an interlocutory injunction is a matter of practice and procedure.  When invited to review decisions pertaining to practice and procedure appellate courts should exercise particular caution.  See Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177, where the High Court repeated with approval the statement of Jordan CJ in Re the Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323:

‘… I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights.  In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice.  The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.’

Leave to Appeal –   NSD 241 of 2005

                             –   the decision of 10 February 2005

34                  Jacobson J’s decision refusing to grant interlocutory relief was discretionary in character, reached as a result of a consideration of where the balance of convenience lay.  In his Honour’s view, the applicant’s affidavit did not make a sufficient case of urgency to justify the grant of interlocutory relief particularly as his Honour had already listed the matter for a final hearing on 2 March 2005.  No error in principle has been shown in the decision to which his Honour came, nor has it been shown that substantial injustice will accrue to Ms Lawrance as a result of the decision.  The decision was essentially one of practice and procedure as to the most efficient method of determining Ms Lawrance’s claims.

35                  In any event, the proceedings were not properly constituted insofar as relief was sought arising out of the proceedings pending in the AAT.  The respondents to those applications were necessary parties to the proceedings, but had not been joined as respondents.  The fact that they had been joined as respondents in proceedings NSD 1642 of 2004 is beside the point.  Further, seeking to restrain Senior Member Kelly by interlocutory injunction from taking further action in matter number N505 of 2004 has its own difficulties.  Senior Member Kelly has not yet given her decision.  If that decision is adverse to Ms Lawrance, and if there was a denial of procedural fairness, Ms Lawrance would be entitled to appeal pursuant to s 44 of the AAT Act: Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [8].

36                  Nor has Jacobson J finally determined Ms Lawrance’s claim for injunctive relief against Ms Smith.  Whilst it seems that personal service of the originating process had not been effected on Ms Smith (see Order 4 rule 1, Order 7 rules 1 and 2 of the Federal Court Rules) that was not the basis on which interlocutory relief against Ms Smith was refused.  His Honour’s decision was based upon the fact that Ms Lawrance had not established that Ms Smith is an officer of the Commonwealth, thus enlivening the jurisdiction of the Court under s 39B.

37                  Ms Lawrance’s affidavit of 13 January 2005 asserts that Bev Smith was a CRS employee (par 9); that there was a conversation in mid-1995 between Bev  Smith and another CRS employee, Louis Perroffet, about Ms Lawrance and her mental health (par 11); that on a Saturday in December 1995 Bev Smith observed an incident involving Ms Lawrance at a unit which Ms Lawrance shared with a mutual friend (par 12); and that at the AAT hearing on 1 November 2004 Bev Smith lied about the incident (par 13).  Paragraph 20 of the affidavit concludes:

‘I believe that Bev Smith’s conduct arises in the context of her employment, then and now, as an officer of the Commonwealth, and because of that I am seeking that she be restrained by injunction.’

38                  Ms Lawrance submits that there was no evidence that Ms Smith was not an officer of the Commonwealth, but the question is whether the evidence establishes that she is.  His Honour’s judgment does not explain why he was not satisfied that Ms Lawrance’s affidavit established that Ms Smith was relevantly an officer of the Commonwealth.  It is possible that his Honour was not satisfied that the conduct relied upon by Ms Lawrance involved any federal administrative action on the part of Ms Smith, but he does not expressly say so.

39                  Even supposing that his Honour was in error in taking the view which he took of Ms Smith’s position, substantial injustice does not accrue to Ms Lawrance as a result of his Honour’s decision because his Honour has not finally determined the claim for injunctive relief against Ms Smith.  It was on the agenda for the hearing scheduled for 2 March 2005 and remains on the agenda for the final hearing.  There are problems with Ms Lawrance’s claim: a witness appearing before the AAT has the protection conferred by s 60(3) of the AAT Act, and it may be thought that the injunction sought by Ms Lawrance would run counter to that immunity even if it were established that Ms Smith lied at the AAT hearing.

40                  It is not for me to determine on the hearing of this application, the ultimate merits of Ms Lawrance’s claims, particularly without the benefit of argument.  My purpose in referring to the matters mentioned above is to illustrate the point that there are some obvious obstacles in Ms Lawrance’s path in terms of obtaining the relief which she seeks but she will have the opportunity of addressing these at a final hearing.

41                  The final matter of which Ms Lawrance complains is the setting of a date for final hearing on 2 March 2005.  This is a pure matter of practice and procedure, and no error in principle has been established in his Honour appointing that date for that purpose.  In any event, the matter did not proceed to a final hearing on that occasion by reason of Ms Lawrance’s failure to appear and there would be no utility in granting leave to appeal from the decision to fix that date for the hearing.

42                  In the result, the motion filed by Ms Lawrance on 14 February 2005 for leave to appeal against the decision made by Jacobson J on 10 February 2005 should be dismissed.

Leave to appeal – NSD 334 of 2005

                            – the decision of 2 March 2005

43                  Ms Lawrance did not attend the hearing fixed for 2.15 pm on 2 March 2005.  No stay had been obtained of the orders made by Jacobson J on 10 February 2005 fixing the hearing for that date, nor was any application made to his Honour in relation to that hearing date in consequence of the application for leave to appeal.  An appeal does not operate as a stay of the judgment appealed from (Order 52 rule 17), and the making of an application for leave to appeal does not have that effect.

44                  His Honour was confronted with a practical problem of how to proceed in the light of Ms Lawrance’s failure to appear.  The orders which his Honour made on that occasion were confined to matters of practice and procedure designed to enable the matter to be progressed notwithstanding Ms Lawrance’s failure to appear.  The orders were within his Honour’s discretion and were appropriately made in all the circumstances.  No injustice accrues to Ms Lawrance by reason of the making of those orders.

45                  There is no substance in the orders sought in pars 2 or 3 of the motion.  I have now heard the application for leave to appeal, and the allocation of a separate matter number to the application accords with the usual practice.  I am unable to identify any decision of the type referred to in par 4 of the motion.  During the hearing before me Ms Lawrance articulated her concern that the decision of Driver FM in April 2004 informs the context of the present proceedings, whereas in her submission the decision is unsafe and unsound and should not be taken into account except for highly limited purposes.  In my view, the decision of Driver FM is irrelevant to any issue which arises in these proceedings and I do not agree with Ms Lawrance’s submission that she is being treated in these proceedings as if she suffers from a disability or impairment.

46                  The application for leave to appeal should be dismissed.

Orders

47                  I make the following order:

(1)               The notices of motion filed on 14 February 2005 and 7 March 2005 be dismissed.

Associate:

Dated:              3 May 2005