FEDERAL COURT OF AUSTRALIA

Lawrance v President, Administrative Appeals Tribunal [2005] FCA 1542

LAWRANCE v President, Administrative Appeals Tribunal AND Senior Member Kelly AND Senior Member Allen AND Bev Smith AND Chief Executive Officer, CRS Australia, AND Executive Director, Social Security Appeals Tribunal, AND Chief Executive Officer, Centrelink, AND Principle Member, Refugee Review Tribunal, AND Secretary, Department of Family AND Community Services AND Human Rights and Equal Opportunity Commission

NSD 55 of 2005

LAWRANCE v CRS AUSTRALIA

NSD 909 of 2005

JACOBSON J

SYDNEY

3 NOVEMBER 2005

THE COURT ORDERS THAT:

1.           Federal Court Matter NSD 909 of 2005 is to be heard immediately after the conclusion of the hearing of Matter NSD 55 of 2005.

2.           Motion filed by the applicant on 15 September 2005 is otherwise dismissed.

3.           The applicant is to pay the costs of the motion.

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

THE COURT ORDERS THAT:

1.           Federal Court Matter NSD 909 of 2005 is to be heard immediately after the conclusion of the hearing of Matter NSD 55 of 2005.

2.           Motion filed by the applicant on 15 September 2005 is otherwise dismissed.

3.           The applicant is to pay the costs of the motion.

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

REASONS FOR JUDGMENT

Introduction:

1                     I have before me two notices of motion filed by the applicant on 15 September 2005 seeking discovery and other interlocutory orders in matters NSD 55 of 2005 (“Matter 55”) and NSD 909 of 2005 (“Matter 909”).

2                     The final relief sought by the applicant in Matter 55 include orders pursuant to s 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”) in relation to the conduct of proceedings in the Administrative Appeals Tribunal (“the AAT”).  The orders include the quashing of decisions made by Senior Member Allen on 27 October 2004 and Senior Member Kelly on 1 November 2004 refusing to prohibit the publication of evidence and the names of witnesses in the AAT proceedings pursuant to s35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).

3                     The proceedings in the AAT were for the review of decisions made under the Freedom of Information Act 1982 (Cth) (“FOI Act”) requiring access to documents sought by Ms Lawrance from the various respondents in the AAT.

4                     The respondent to one of the proceedings in the AAT was CRS Australia (“CRS”).  The hearing of this proceeding took place on 1 November 2004 and it was at this hearing that Senior Member Kelly refused to make orders pursuant to s35(2) of the AAT Act.

5                     On 24 May 2005 Senior Member Kelly handed down her decision in the proceeding.  Senior Member Kelly affirmed the decision of CRS that Ms Lawrance not be provided with access to documents requested under the FOI Act.

6                     In Matter 909 Ms Lawrance seeks to appeal against the decision of Senior Member Kelly of 24 May 2005 under s 44 of the AAT Act.

7                          At the hearing on 1 November 2004, Ms Lawrance called Ms Smith (the fourth named respondent in Matter 55) to give evidence.  Ms Smith was at one time employed by CRS, but by 1 November 2004, she was the Human Resources Manager of the Australian Quarantine Inspection Service.

8                     Notwithstanding the fact that Ms Lawrance called Ms Smith as a witness, she put to Ms Smith that Ms Smith was lying.

9                     The questions which Ms Lawrance put to Ms Smith in the AAT and Ms Lawrance’s own evidence makes it plain that Ms Smith was at one time a friend of Ms Lawrance.  The alleged lies told by Ms Smith are of conversations between Ms Smith and Ms Lawrance in the course of their friendship, which, according to Ms Lawrance impute a psychiatric disorder to Ms Lawrance.

10                  As observed above, Ms Smith is a respondent in Matter 55.  Ms Lawrance seeks an order in those proceedings restraining Ms Smith from making false statements about her.

11                  A question will arise on the final hearing as to whether Ms Smith is amenable to the jurisdiction of the Court under s 39B of the Judiciary Actas an officer of the Commonwealth.

12                  I will set out in full the orders sought by Ms Lawrance in the two notices of motion.  Order 7 was not pressed in Matter 55 and Order 2 was withdrawn in Matter 909.

Orders in Matter 55

“1.       Discovery is granted to the applicant under Order 15 of the Federal Court Rules against Bev Smith and in particular in relation to the statement she provided, in written form, to Janine Wood of CRS Australia in 2004 in relation to the CRS Australia Freedom of Information matter commenced by the applicant in the Administrative Appeals Tribunal; and in relation to Bev Smith’s employer’s identity, as well as other documents.

2.                  Discovery is granted to the applicant under Order 15 of the Federal Court Rules against the Administrative Appeals Tribunal and the hearing conducted by Senior Member Allen on 27 October 2004, and the hearing that resulted in the directions of 12 November 2004 by Senior Member Allen, copies of which were filed on 1 September 2005.

3.                  Bev Smith has been served with additional material from the applicant, and is ordered to file and serve a response by 31 October 2005.

4.                  The Administrative Appeals Tribunal is ordered to file a response to this matter and serve such response on the applicant by 31 October 2005.  It must include in that response its reasons for not drawing to the applicant’s attention the correspondence it received in relation to summons’s it issued to witnesses to attend hearings to give evidence, as well as conduct money returned, including:  Ron Kessels letters of 13 October 2004 and 28 October 2004, Andrea Howard’s letters of 11 October 2004 and 19 October 2004, and Andrea Taylor’s letter to the AAT dated 6 October 2004, and its reasons for not acting on the applicant’s requests, made on 1 November 2004 and in writing on 8 November 2004, for the tribunal to exercise its powers under ss 61 and 63 of the Administrative Appeals Tribunal Act 1975 in relation to witnesses who failed to attend the hearing on 1 November 2004, (and were giving reasons in private as to not attending further AAT hearings to which they had been issued summons’s to give evidence).

5.                  The Federal Court Registry is to make provision for the applicant to hear, on Federal Court Registry premises, the tapes of the hearing conducted by Jacobson J on 2 March 2005, which hearing was attended by Bev Smith.

6.                  The Administrative Appeals Tribunal is to provide a copy of the attachments referred to in the letter of Andrea Howard dated 11 October 2004.

8.                  If order (7) is not granted, the proceedings in NSD 55 of 2005 and NSD 909 of 2005 are to be heard separately.”

Orders in Matter 909

 “1.      Leave is granted to the applicant under order 53 rule 12 to file a Supplementary Notice of Appeal.

3.              If order (2) is not granted, the proceedings in NSD 909 of 2005 and NSD 55 of 2005 are to be heard separately.

4.              Discovery is granted to the applicant under Order 15 to the applicant against CRS Australia, and in particular in relation to the confidential statement written by Bev Smith and given to Janine Wood of CRS and which is referred to in the file note dated 6 October 2004 held on the AAT file, a copy of which was filed by the applicant on 1 September 2005.

5.              Discovery is granted under Order 15 against the Administrative Appeals Tribunal in relation to the CRS Australia Freedom of Information application.

6.              The AAT is to obtain a second transcript of the hearing conducted on 1 November 2004 from Auscript that is an accurate transcription of the hearing and of the words spoken and that contains page and line numbers.  When submitting this second transcript the AAT is also to submit the tapes of the hearing.”

The AAT’s decision of 24 May 2005

13                  CRS provides vocational rehabilitation to commonwealth employees under the Disability Services Act 1986 (Cth).  Senior Member Kelly noted at [2] that Ms Lawrance was employed by the Commonwealth of Australia from 1986 to 2001.

14                  Senior Member Kelly summarised the issues at [6] as follows:-

“The issues in this case are therefore whether all reasonable steps have been taken to find the documents Ms Lawrance requested and whether I am satisfied that the documents requested are either in the possession of CRS and cannot be found or do not exist.”

15                  Senior Member Kelly said that Ms Lawrance provided evidence in the AAT including the following at [8]:-

“She believes ‘in hindsight’ that CRS collected information about her unlawfully without her knowledge and that the information collected is inaccurate and that it has been unlawfully disclosed.  She now believes that CRS has an involvement during her period with the Commonwealth of Australia and generally since she left that employment, including attempting to have her diagnosed with a disability such as schizophrenia and/or a personality disorder.  She believes that CRS had become a ‘vehicle’ for her victimisation by various individuals during her employment at the SSAT and the RRT.  She believes that CRS has contacted friends of hers who have no connection to her employment, and relatives, without her knowledge.”

16                  Ms Lawrance said in her evidence in the AAT that:-

“…it occurred to me that I had been placed on some sort of programme under the [Disability Services] Act.  It has occurred to me that this may have happened during my Commonwealth employment as well as currently.”

17                  Senior Member Kelly referred at [11] to Ms Lawrance’s evidence that she learned of “the existence of some form of public service surveillance in mid 1999”.  Senior Member Kelly understood the reference to mid 1999 to be to when a former friend told Ms Lawrance “Bev Smith is no friend to you”.

18                  The learned Senior Member observed at [19] that Ms Smith and another individual, Ms Perrottet, were former employees of CRS, summonsed to give evidence by Ms Lawrance.  Senior Member Kelly observed that both were friends of Ms Lawrance in the past.  Senior Member Kelly made the following statements about Ms Smith’s evidence at [20] – [22]; it is apparent the evidence was accepted:-

“20.     CRS contacted Ms Smith after the internal review of Ms Lawrance’s request had been carried out.  Ms Smith made it clear to CRS and in her evidence during the hearing that she was at one time a friend of Ms Lawrance and had had no dealings with Ms Lawrance as a CRS employee but only on a personal and social level.  She could not remember any e-mail communication with Ms Lawrance at work apart from possibly arranging times to give her a lift but she would probably have deleted it.  Her practice had been to delete personal e-mails regularly.  She recalled receiving via a colleague a letter from Ms Lawrance sent to CRS in about 2002.

21.       Ms Smith and Ms Perrottet discussed Ms Lawrance’s behaviour and mental state.  No document was created following that discussion.  When Ms Smith confronted Ms Lawrance with her concerns and suggested that Ms Lawrance obtain professional help or support, Ms Lawrance became abusive.  She accused Ms Smith of interfering.  Ms Smith then ended contact with Ms Lawrance.

22.       Ms Perrottet was not aware of any activity by CRS concerning Ms Lawrance.”

19                  Senior Member Kelly made the following finding at [26] about CRS.

“I find on the evidence that CRS does not collect or store an individual’s sensitive personal or health information unless that person is a client, employee or contractor of CRS.  Vocational rehabilitation is a voluntary process and all CRS vocational rehabilitation programs are provided in consultation with the client.  The service would not be provided with the consent of a third party only.  The informed consent of the client is necessary.  CRS does not conduct surveillance.  It is not an investigative agency.”

20                  The learned Senior Member noted at [31] that CRS had searched its electronic archives for relevant emails and other documentation and found 400 megabytes of electronic material relating to Ms Smith.  She accepted evidence of Ms Wood, an officer of CRS, that it would take four days to recover the material and approximately 100 hours to review it.

21                  Senior Member Kelly then made the following findings:-

“32.     I do not consider it reasonable to require a search of the electronic records relating to Ms Smith.  I accept her evidence that her relationship with Ms Lawrance was purely one of friendship.  Any e-mail records which Ms Smith created would have been to Ms Lawrance about giving her a lift and in all probability would have been deleted.  Ms Smith was not involved in any activity relating to CRS activities and Ms Lawrance.  Apart from Ms Lawrance’s belief, arrived at in hindsight, there is no other evidence to suggest that there was any connection between CRS and Ms Lawrance.

 33.      I am satisfied on the evidence that all reasonable steps have been made to find the documents the subject of Ms Lawrance’s request.  …

 …

 35.      I accept that Ms Lawrance genuinely holds the belief that CRS may have had an involvement in her life, however, I am satisfied on the evidence that CRS has never had any such involvement.

 36.      I find that the documents to which Ms Lawrance has requested access do not exist.”

The principles on which discovery is ordered in judicial review proceedings

22                  In Australian Securities Commission v Somerville (1994) 51 FCR 38 at 52-53 a Full Court said that the question of whether discovery should be ordered in judicial review proceedings is to be determined in accordance with the normal principles which apply to discovery in civil proceedings.

23                  However, their Honours went on to say at 53 that in many cases, by reason of the absence of dispute as to primary facts or because reasons for the decision have been supplied, the occasion for making an order will not arise.  That proposition was reiterated by another Full Court in Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp [1997] FCA 578.

24                  Merkel J summarised the relevant principles in Carmody v Mackellar (1996) 68 FCR 265 at 280:-

“The following principles may now be taken to be well established by the decisions of the Court in Melbourne Home of Ford v Trade Practices Commission (1979) 36 FLR 450, WA Pines Pty Ltd v. Bannerman (1980) 41 FLR 175 and Australian SecuritiesCommission v Somerville (1994) 51 FCR 38:

.        the Court has a discretionary power to order discovery in proceedings for the review of an administrative decision;

.       the proper exercise of the power depends upon the nature of the case and the stage of the proceedings at which discovery is sought;

.        if a proceeding or claims in it are essentially speculative in nature the Court will not order discovery in order to assist the applicant in a fishing exercise;

.        the evidence or material which will be required to establish that the proceeding or particular claims in it are not essentially speculative will vary with the nature and circumstances of the particular case;

.        if there is not the slightest evidence or there is no other material to support the bare allegations made in the proceeding, then as a general rule, an order for discovery ought not to be made.”

25                  I consider that the principles stated by Finkelstein J in Wilhelm v McKay [2005]
FCA 729 at [14] – [15] are to the same effect.

Matter 55 – Order 1 (Discovery against Ms Smith)

26                  Ms Lawrance supported a claim for particular discovery by reference to the following part of an AAT file note dated 6 October 2004 of a conversation between the AAT and Ms Wood:-

“One of the people summonsed, Bev Smith, has told us she wishes to remain confidential in this matter and does not want A Lawrance to have access to her address or even to meet during the hearing.  She has provided a lengthy written statement, in confidence, that sets out her involvement as she sees relevant in this matter, and hopes that this is sufficient.  Janine [Wood] wants to know what her obligations re the summonses are in this circumstance.”

27                  Ms Lawrance seeks particular discovery of the statement given by Ms Smith to CRS referred to in the file note.

28                  Ms Lawrance also seeks general discovery against Ms Smith on the basis that an issue which I have to determine is whether Ms Smith had, before 1 November 2004 when she gave evidence in the AAT, been the source of lies, and whether Ms Smith is the source of lies which led to evidence of Dr McMurdo that was relied on by Federal Magistrate Driver in proceedings in the Federal Magistrates Court: see Lawrance v HREOC and Anor [2004] FMCA 263.

29                  I will set out what Ms Lawrance said to me at the hearing as follows:-

“MS LAWRANCE:… It is not lawful to impute to a person a disability and this is a case where there is no evidence of a disability.

There is no admissible evidence before this court or any other court or tribunal that I have an impairment, a disability, a mental illness or a mental disorder.  Therefore the law requires that I be treated as a person who does not have any of those things.

HIS HONOUR:   What is that Act, the sections, section what?

MS LAWRANCE:   The Disability Discrimination Act.  Section 4K refers to an imputed disability and I've given the cases on the case list as to what the courts have found that to mean - well, the meaning of disability and therefore in the absence of admissible evidence it's not lawful to impute one.  Those two pieces of legislation - if there is or has been, your Honour, a Commonwealth program in relation to me then section 26 of the Sex Discrimination Act as well as section 29 of the Disability Discrimination Act may also be relevant and furthermore section 6(1) and (2), 7B and 7C of the Sex Discrimination Act may also apply in relation to unlawful marital status, discrimination and I don't have enough evidence to know whether or not that is occurring but there is sufficient evidence to warrant a rational likelihood that something like that is happening either now and/or in the past.`

One of the issues in this case is has Bev Smith ever lied before 1 November 2004 or is that the first time she told those lies.  It's the first time to my knowledge.  That doesn't mean it's the first time she's told them.  Is she the source of lies that made their way to Dr McMurdo and therefore into evidence in Federal Magistrate Driver's case in I might add a most misleading way in terms of the way that case was written up.  In other words is Bev Smith the source of the lies given to Dr McMurdo which appeared in his Privacy Act correspondence to me, and that appears in the Full Federal Court in matter number 1148 which is due for a final hearing on 17 November.  So that's another issue.

HIS HONOUR:   That's the appeal from Magistrate Driver?

MS LAWRANCE:   That's correct.  Furthermore, if there is now or has been in the past any program, intervention or support in relation to me under the Disability Services Act, whether or not that has involved Bev Smith, whether or not Bev Smith has made decisions herself under that Act or some other body has and what involvement, if any, she has had in that occurring.  So basically in terms of my discovery application the scope of this matter ‑ ‑ ‑ 

HIS HONOUR:   Whether Bev Smith has made decisions under what Act?

MS LAWRANCE:   The Disability Services Act, the Commonwealth 1986 Disability Services Act, either Part 2 or Part 3 of that Act.  The Act is administered by the Department of Family and Community Services in Part 2 and Part 3 is administered by CRS Australia.  It wasn't always that way.  In the past it may have been Social Security that administered either both Parts or just one but basically it's a case of is this the first time Bev Smith has told lies and if she's done anything in the past discovery is to get to the bottom of that and find out.

If there's any state agency involved then a state agency can be joined to the matter along with the Department of Family and Community Services if they have been involved and any other person.  I note that Bev Smith has not defended herself or indeed addressed the matter in any way shape or form and adverse inferences can be drawn from that, applying the rules in Jones v Dunkel. 

Furthermore, no respondent, for example before the Full Federal Court in 1148 has sought to obtain or rely upon Bev Smith's evidence and I have argued in that matter the same line that I'm giving here in relation to Jones v Dunkel, adverse inferences.  She can't be relied upon.  She's a liar and the respondents in this matter know that and the respondents in the Full Federal Court know that as well.

She cannot try to rely upon me having some sort of impairment or disability because there is no evidence of that.  I'm obviously in relation to Bev Smith invoking both section 39B(1) as well as section 39B(1)(a)(c) and the laws of the parliament are as I just said, the laws I've just mentioned.

In relation to discovery, clearly I'm relying on the file note that I obtained from the AAT dated 6 October 2004.”

30                  The issues in relation to Ms Smith in Matter 55 are whether she is amenable to the jurisdiction of the Court under s 39B of the Judiciary Actand whether there was a reviewable error by the AAT in the decisions made on 27 October 2004 and 1 November 2004.

31                  None of the documents sought by way of particular and general discovery have any relevance to those issues.  It is plain from what Ms Lawrance said in the passages quoted above that she is engaged in a fishing expedition to which the Court should not, and indeed will not, give its support.

32                  It is apparent that the statement given by Ms Smith to CRS was not even lodged in the AAT.  No issue of privilege or waiver of privilege arises.  The document has no relevance to these proceedings.  There is no legitimate forensic interest in it.

Matter 55 – Order 2 (General Discovery against the AAT)

33                  No case has been made to support a claim for general discovery and this order is refused.  Ms Lawrance has already had access to documents contained on the AAT’s file.  Nothing further is warranted within the principles stated above.

Matter 55 – Order 3 (Ms Smith to file response to Ms Lawrance’s affidavits)

34                  Ms Smith did not appear on the motion.  She has previously indicated that she does not want to participate in the proceedings; see [2005] FCA 204 at [23].  She would also appear to have immunity in relation to the evidence she gave in the AAT under s 60(3) of the AAT Act.

35                  It is inappropriate that I make an order directing her to file evidence and I will not do so.

Matter 55 – Order 4 (AAT to file a response)

36                  The AAT has filed a submitting appearance.  It is inappropriate that the order sought should be made.

Matter 55 – Order 5 (Tapes of 2 March 2005 hearing)

37                  Matter 55 was listed for final hearing on 2 March 2005.  Ms Lawrance failed to appear.  Ms Smith appeared by telephone.  It was open to me to dismiss the proceedings for want of appearance by Ms Lawrance who appears to have taken a deliberate decision not to attend.  Nevertheless, I declined to exercise my discretion against her.

38                  Notwithstanding this, she alleges I am biased.  I refused to disqualify myself; see [2005] FCA 325.  Leave to appeal was refused by Bennett J; see Lawrance v AAT [2005] FCA 642. 

39                  Ms Lawrance sought production of the transcript of 2 March 2005 in order 5 of a notice of motion filed on 9 June 2005.  I dismissed the motion on 23 June 2005.   I was of the view that no issue arose requiring production of the transcript.  The position regarding the tapes is exactly the same and, in any event, the claim is disposed of by my order of 23 June 2005.

Matter 55 – Order 6 (Attachments to a letter)

40                  Nothing has been put to show that the attachments are relevant.  This is a further example of fishing.  I decline to make the order.

Matter 55 – Order 8 (Matters 55 and 909 to be heard separately)

41                  Matter 909 was in the docket of Justice Tamberlin but on 18 August 2005 Ms Lawrance applied to have it transferred to my docket to be heard with Matter 55.  The order was not opposed by Mr Marcus, solicitor for the fifth to ninth respondents in Matter 55 and the respondent in Matter 909, because such a course potentially resolves an issue of which of the two proceedings is the correct one in which to raise the matters Ms Lawrance seeks to agitate on the final hearing.

42                  Although the order now sought by Ms Lawrance may re-enliven that issue, Mr Marcus conceded that, strictly speaking, if she insists that the two matters be heard separately, she is entitled to do so.

43                  Accordingly, as I indicated on 28 October 2005, I will hear Matter 909 immediately after the hearing of Matter 55.

Matter 909 – Order 1 (Leave to file supplementary notice of appeal)

44                  I will not make this order in the absence of a draft notice of appeal.

Matter 909 – Order 3 (Proceedings to be heard separately)

45                  This is covered by what I said in relation to Order 8 in Matter 55.

Matter 909 – Order 4 (Discovery against CRS)

46                  It would be evident from what I said in relation to the claim for discovery against Ms Smith that the only purpose of seeking general discovery against CRS demonstrated by Ms Lawrance is to fish for documents not relating to the issues which arise in the appeal.  The order is refused.

Matter 909 – Order 6 (AAT to obtain a fresh transcript of the hearing of 1 November 2004)

47                  The official transcript prepared by Auscript has been provided to Ms Lawrance.  She apparently asserts there are some errors in it and she wants another transcript and the tapes.  There is no basis for this order and I will not make it.

Conclusions and Orders

48                  Apart from the order that Matter 55 and Matter 909 be heard one after the other, which is in any event not precisely the order sought by Ms Lawrance and is at odds with the reasons for the transfer of Matter 909, I have declined the relief sought in each notice of motion.  Costs must follow the event  The orders in each matter will be:-

1.        Matter 909 is to be heard immediately after the conclusion of the hearing of Matter 55.

2.        Motion filed by the applicant on 15 September 2005 is otherwise dismissed.

3.        Applicant to pay the costs of the motion.

49                  Ms Lawrance insists she has an arguable case for determination at a final hearing.  I do not need to determine that issue in these motions.  However, I note that Mr Marcus submits that CRS has been made a respondent to a number of proceedings on the basis that one of its former employees was a personal friend of Ms Lawrance.  He says that the proceedings are a total waste of public resources.

50                  It seems to me to be important that the proceedings be listed for final hearing as soon as possible.

Associate:

Dated:              3 November  2005