FEDERAL COURT OF AUSTRALIA

Lawrance v President, Administrative Appeals Tribunal [2005] FCA 881

LAWRANCE vPresident, Administrative Appeals Tribunal AND ORS

N 55 of 2005

JACOBSON J

SYDNEY

23 JUNE 2005

THE COURT ORDERS THAT:

1.     The Notice of Motion, filed by the applicant on 9 June 2005, is dismissed.

2.    The question of costs be reserved and dealt with at the final hearing.

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

REASONS FOR JUDGMENT

1                     These proceedings were commenced by an application filed on 13 January 2005.  An amended application was filed on 14 January 2005.  It is unnecessary to set out the orders sought in the amended application. 

2                     There have been a number of interlocutory applications.  I dealt with them in judgments published on 10 February 2005, 24 March 2005, and 3 June 2005.

3                     The matter was listed for final hearing on 2 March 2005.  Ms Lawrance did not appear on that day, but I gave a judgment, which is Lawrance v President, Administrative Appeals Tribunal [2005] FCA 204.

4                     Ms Lawrance has filed a notice of motion seeking five orders.  The notice of motion was filed on 9 June 2005.  The orders are as follows:-

“1. The decision made by the Tribunal constituted by Senior Member Kelly on 24 May 2005 in the matter of A Lawrance v CRS Australia be removed from publication;

  2. The decision made by the Tribunal constituted by  Senior Member Allen on 27 October 2004 be removed from publication.

  3. The Court has jurisdiction to review Senior Member Kelly’s conduct in relation to the 1 November 2004 decision to refuse to make directions under s35(2) of the Administrative Appeals Tribunal Act, as well as other issues relating to the hearing on 1 November 2004, because there is an arguable case that the Tribunal was not functus officio on that issue, on that day.

  4. The Administrative Appeals Tribunal is to forward a transcript of the hearing on 27 October 2004 as well as the documents relevant to that decision, in addition to a transcript of the hearing held on 1 November 2004 and all the documents relating to those proceedings.

  5. There is no evidence before the Court that the applicant is a person who has been diagnosed with an impairment or disability.  The applicant is to be treated as a person who does not have a disability.  The transcript of the 2 March 2005 hearing is to be made available to the applicant.

5                     The notice of motion was supported by an affidavit of Ms Lawrance affirmed on 9 June 2005.  It is unnecessary to set out the contents of that short affidavit.  Ms Lawrance also relies on an affidavit filed in the proceedings on 13 January 2005.  I will deal with each of the orders sought in the notice of motion as follows.

Order 1.

6                     Ms Lawrance submits that this order ought to be made immediately, pending a final hearing, because it is not in the public interest for a judgment to remain in the public domain, which contains defamatory statements about her.  She submits that the decision will cause problems for her reputation, and she also submits that Senior Member Kelly went out of his way to publish a judgment which was defamatory of her.

7                     I have not been provided with a copy of the judgment, which was not put in evidence by Ms Lawrance on this application.  However, Mr Markus submitted that Ms Lawrance had not demonstrated sufficient urgency for the order to be made on an interlocutory basis.  Mr Markus pointed out that the judgment of 24 May 2005 post dates the amended application, and is not the subject of these proceedings.  But even if it is, he submits that I should not make an interlocutory order.  He pointed out that a similar order had been sought in relation to an earlier decision of Senior Member Kelly, which I dealt with in my judgment of 10 February 2005.  I refused interlocutory relief on that occasion because I was of the view that sufficient urgency had not been demonstrated, particularly in light of the fact that the matter had been listed for final hearing on 2 March 2005.

8                     As I have said, the final hearing scheduled for 2 March 2005 did not proceed, and the matter has not been listed for final hearing.  Directions were made on 3 June 2005 for filing of evidence.  Nevertheless, it seems to me that even if the decision made by Senior Member Kelly on 24 May 2005 is the subject of these proceedings, Ms Lawrance has not demonstrated in her affidavit of 9 June 2005, or of course in her earlier affidavit of 13 January 2005, which was affirmed before the decision of Senior Member Kelly was given, that there is sufficient urgency to warrant the making of an interlocutory order.

Order 2

9                     Ms Lawrance submits that, as I understand it, the decision of Senior Member Allen of 27 October 2004 was affected by a lack of procedural fairness.  However, as with the first order sought on the motion there is insufficient evidence of urgency to warrant the making of an order.  Indeed, as was submitted by Mr Markus, the decision of Senior Member Allen was made on 27 October 2005 and the fact that it was published some nine months ago goes to the question of balance of convenience, and whether it is appropriate to make the order on an interlocutory basis, where there has been delay in seeking the relief.

10                  There is, in any event, a real difficulty in removing from publication a decision which is already in the public domain, but the reason why I decline to make this order is that I cannot be satisfied that there is either any urgency, or any specific prejudice to Ms Lawrance in leaving the judgment in the public domain.  It is true that Ms Lawrance pointed to, and made generalised assertions of prejudice, but I am not satisfied that they are sufficient to make out a claim for interlocutory relief, on balance of convenience grounds.

Order 3

11                  I do not propose to make this order, because, in my opinion, Mr Markus is correct in his submission that if Ms Lawrance wishes to put the matter, or the matters referred to in order 3, before me at a final hearing, it can be dealt with as part of the case to be determined on a final hearing.

Order 4

12                  It is unclear precisely what are, "the documents relevant to that decision," that is, the decision of 27 October 2004.  But, in any event, it is not appropriate that this order be made on an interlocutory basis.  Ms Lawrance was a party to the proceedings in the Administrative Appeals Tribunal (“AAT”), and it is for her to obtain a copy of the transcript, and any other documents which she considers to be relevant to the decision.  The transcript and other documents could then, if Ms Lawrance wishes to rely upon them at the final hearing, be put in evidence by her.

13                  It is important to bear in mind that this is not an appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).  The rules of the Court require the AAT in an appeal under that section to forward copies of the documents to the Federal Court.  That is not the position here, where Ms Lawrance seeks to bring herself within section 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”), and to make claims of jurisdictional error on the part of the AAT.  The AAT is a respondent to these proceedings, but it has filed a submitting appearance.  The AAT did not appear by counsel or solicitors this morning.

14                  Ms Lawrance's affidavits do not explain why this order is sought.  There is no evidence before me that Ms Lawrance is impecunious.  But even if she is, that does not provide a proper foundation for an order that the AAT is to forward a transcript of the hearings of 27 October 2004 and 1 November 2004 to Ms Lawrance. 

15                  I accept Mr Markus' submission that it is not for a respondent to finance the proceedings.  Mr Markus submitted that that is especially so, because he contended that the proceedings are misconceived.  That question is not one which falls for determination today.  It is a matter to be dealt with at the final hearing.

Order 5

16                  This order contains three parts. 

17                  The first is that there is no evidence before the Court that Ms Lawrance is a person who has been diagnosed with an impairment or disability.  It does not seem to me that this is an order which I can make.  Nothing in the decision of Fisher J in Hart v Heron [1984] Australian Torts Reports 80-201 would support the making of this order. 

18                  The second part of the order is that the applicant is to be treated as a person who does not have a disability.  There is no need to make this order, because none of the respondents has made such a contention, or assertion.  In any event, I would add that it is not appropriate for this order to be made as an interlocutory order.

19                  The third part of this order is that the transcript of the hearing of 2 March 2005 be made available.  Ms Lawrance submitted that this transcript ought to be made available to her as a matter of procedural fairness, because she contends that I am biased, and that the hearing of 2 March 2005 should not have taken place in her absence.  She says this, notwithstanding the fact that she did not appear.  Her submission is that the proceedings should not have gone ahead, because my order of 10 February 2005 was subject to an application for leave to appeal.  She relies upon the judgment of Mason J in re JRL; ex parte CJL (1986) 161 CLR 342.

20                  I do not see how the transcript of 2 March 2005 is a document which is part of the subject matter of the proceedings.  The application which Ms Lawrance made to me to disqualify myself was dismissed, and leave to appeal against my decision was refused.  That would seem to me to mean that the transcript of 2 March 2005 can no longer have any bearing upon an application which Ms Lawrance wants to make. 

21                  But even if I am wrong in this, it does not seem to me that I ought to make an order for the transcript to be provided to Ms Lawrance.  It is open to Ms Lawrance to apply to Auscript for the transcript of 2 March 2005 if she wishes to have it.

General

22                  It follows from what I have said that I do not propose to make any of the orders sought in the notice of motion. 

23                  I should add that in the course of argument Ms Lawrance submitted that it was for the respondents to provide her with a copy of the decision of Senior Member Kelly of 24 May 2005.  She submitted that the respondents are public bodies, and that it is incumbent upon them to provide documents to Ms Lawrance where assertions are made by her of denial of procedural fairness. 

24                  It seems to me that Ms Lawrence's approach is not correct.  It is for an applicant to put before the Court the evidence in matters upon which he or she relies in support of an application under section 39B of the Judiciary Act.  Accordingly, I reject Ms Lawrence's submission.

25                  I should add that in relation to the decision of Senior Member Kelly of 24 May 2005, I understood Ms Lawrance to submit that she has appealed from this decision on a question of law, under section 44 of the AAT Act.  If that is so any question relating to that decision should be dealt with in the appeal, which is not before me. 

26                  It follows from what I have said that the appropriate order to make on the present notice of motion is that it be dismissed.

27                  The fifth to ninth respondents addressed me very briefly on costs.  All that was put to me was that if it is appropriate, Ms Lawrance ought to be ordered to pay the costs, or, alternatively that they be dealt with at the final hearing.  In view of this, it seems to me to be appropriate to reserve the question of costs, which I will deal with at the final hearing of the proceedings.

Associate:

Dated:              28 June 2005