FEDERAL COURT OF AUSTRALIA

Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 241

THE COURT ORDERS THAT:

1.                  The Notice of Motion as filed on 2 February 2010 is dismissed.

2.                  The application for leave to appeal is refused.

3.                  The Notice of Appeal as filed on 2 February 2010 and the Notice of Amended Appeal as filed on 15 February 2010 are dismissed.

4.                  The Applicant is to pay the costs of the Respondent.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT
(Revised from Transcript)

1                     There is presently before the Administrative Appeals Tribunal (“the Tribunal”) an application to review a decision by Centrelink to stop paying Newstart allowance to Mr Yao for a period of eight weeks. Prior applications for internal review and review by the Social Security Appeals Tribunal were apparently unsuccessful.

2                     For the purposes of presenting his application before the Tribunal, Mr Yao requested the Tribunal to issue six summonses to give evidence and to produce documents.

3                     Provision is made in s 40(1A) and (1B) of the Administrative Appeals Tribunal Act 1975 (Cth) (“1975 Act”) for a power to issue a summons. These subsections provide as follows:

Summons

(1A)     Subject to subsection (1B), for the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy Registrar may summon a person to appear before the Tribunal at that hearing:

(a)     to give evidence; or

(b)    to give evidence and produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons; or

(c)     to produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons.

(1B)     A summons under subsection (1A) may require a person to appear at a directions hearing to produce books, documents or things instead of at the hearing before the Tribunal.

Section 40(1A), it will be noted, confers a discretion. A summons need not be issued simply upon a request being made. Of particular importance to the exercise of that discretion will be the relevance or potential or “apparent” relevance of the evidence sought to be obtained. But relevance is not the only consideration to be taken into account when exercising that discretion: Cosco Holdings Pty Ltd v Commissioner for Taxation (1997) 37 ATR 432. The form of summons that may be issued under s 40(1A) is further addressed in Regulation 15 of the Administrative Appeals Tribunal Regulations 1976 (Cth) (e.g. De Simone v Commissioner of Taxation [2009] FCAFC 181).

4                     On 7 August 2009 the Tribunal published its reasons for its decision to refuse the application for six of the summonses sought but to issue one summons: See Re Yao and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 585. Two of the persons to whom summonses were sought to be directed were “Ms Cowell, of Centrelink, Bankstown” and “‘Mary’ of Mission Australia, Punchbowl”. A third person was “Ms Sharma, a Senior Legal Services Officer of Centrelink Legal Services and Procurement”. In rejecting the application for summonses to be issued to these persons the Tribunal concluded (without alteration):

CONCLUSION

[38] The Tribunal gave weight to the respondent’s submission that a subpoena must serve a legitimate forensic purpose, the absence of which renders the subpeona an abuse of process: R v Saleam (1989) 16 NSWLR 14. It was not convinced that Mr Yao was engaging in anything other than a fishing expedition, and that Ms Colwell or “Mary” could advance the Tribunal’s understanding as to whether the applicant was required to enter into an activity agreement with Centrelink, on failing to do so whether he committed three NSA participation failures in a 12 month period under s 624 of the Social Security Act 1991, and whether he had a reasonable excuse for committing those failures.

[39] The Tribunal refuses to issue the two summonses to Ms Sharma, because Ms Sharma is the legal representative of the Secretary. Ms Sharma gave an undertaking that when the substantive issues are addressed on 21 August 2009, the Tribunal can be confident that she will produce any relevant material required by the Tribunal and respond to issues raised by Mr Yao.

5                     On 12 August 2009 Mr Yao filed in this Court a Notice of Appeal where he sought to appeal “from the decision or determination of Administrative Appeals Tribunal given on 07 August 2009”.

6                     Thereafter, on 8 October 2009, Mr Yao also filed in this Court a Notice of Motion seeking an order that the Secretary including “its servants or agents … be restrained from destroying or hiding documents” and an order that the Secretary including “its servants and its agents … immediately printout” a particular document.

7                     The Respondent filed on 15 September 2009 a document titled “Notice of Objection to Competency”.

8                     Mr Yao’s Notice of Appeal and his Notice of Motion were dismissed by a Judge of this Court on 27 January 2010: Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18. His Honour relevantly concluded:

[14] Mr Yao’s application on its face was styled “Notice of Appeal” and expressed itself to be a form 55A “Notice of Appeal” filed pursuant to O 53 r 2 and O 59 r 1. …

[15] Order 53 r 2 is explicitly concerned with the topic of appeals from the Tribunal and not with judicial review of that Tribunal’s decisions which are dealt with under Orders 54 (the ADJR Act) and 54A (s 39B of the Judiciary Act 1903 (Cth)) …

[16] I stress these apparently unimportant matters to underscore the difficulty in accepting Mr Yao’s submission that his “notice of appeal” was not, in fact, made pursuant to s 44 of the AAT Act. That difficulty is further exacerbated because the notice of appeal explicitly sets out the “questions of law” which are said to arise on the appeal, a procedural element wholly unnecessary in judicial review proceedings. …

His Honour also went on to consider whether the application which was before him could in some manner be recast as an application “for some species of judicial review” under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or s 39B of the Judiciary Act 1903 (Cth). Even if such a course was procedurally possible, His Honour concluded that he would not have allowed any such “reformulation” to have taken place. He could discern no error of principle in the approach of the Tribunal in refusing the five summonses. The application for interlocutory relief, it was held, “[fell] away” but would in any event have been dismissed. The orders made by His Honour were as follows:

1.       The applicant’s notice of motion of 8 October 2009 be dismissed with costs;

2.       The applicant’s application be dismissed;

3.       The applicant is to pay the respondent’s costs of the proceeding.

9                     On 2 February 2010, a “Notice of Appeal” was filed. That was an appeal from “the whole of the judgment of the Federal Court given on 27 January 2010”. Thereafter, on 15 February 2010, an Amended Notice of Appeal was filed. That appeal, it should be noted, has been accepted in the Registry of this Court and has proceeded to the stage where a conference has been held before a Registrar of the Court with a view to settling an index to the Appeal Book.

10                  Now before the Court is an application by way of a Notice of Motion for leave to appeal. That Motion was also filed on 2 February 2010 and seeks leave “to appeal from the first order of judgment” of the primary Judge. That Order, it will be noted, was confined to the relief sought in the Notice of Motion as filed on 8 October 2009, namely the application for injunctive relief. The present Motion as filed also seeks an order restraining the “destroying or hiding” of documents. The Motion as filed does not seek leave to appeal from the other orders as made by the primary Judge on 27 January 2010.

11                  When the matter first came before the Court on Tuesday 2 March 2010, it was the Respondent’s position that the only matter in respect to which leave was then sought was that part of the primary Judge’s decision refusing interlocutory relief. Whether or not a further Objection to Competency was to be filed in respect to the Notice of Appeal which had been filed was a matter, on the Respondent’s approach, to be addressed at a future time. The position of the Respondent, it should be noted, was supported by the terms in which the Applicant’s Notice of Motion seeking leave to appeal was then expressed.

12                  It was considered, however, neither possible nor desirable to separate out the manner in which the primary Judge had resolved the competency of the Notice of Appeal filed pursuant to s 44 of the 1975 Act from His Honour’s refusal of interlocutory relief. Upon the conclusion being reached that the appeal was incompetent, the claim for interlocutory relief “[fell] away”. Notwithstanding the fact that the primary Judge also would have refused interlocutory relief upon the facts presented, it was not desirable to resolve but one aspect of His Honour’s reasoning or any appeal from but one Order. Nor was it considered desirable to resolve whether leave to appeal should be entertained from one aspect of His Honour’s decision, andto leave to a future occasion whether any future Objection to Competency was to be filed in respect to what the Respondent accepted was an interlocutory decision. The refusal of interlocutory relief by the primary Judge was inextricably bound up with the conclusion that the application by way of appeal pursuant to s 44 was incompetent.

13                  Accordingly, the matter was stood over to today so that if possible the entirety of all issues arising could be addressed by both the Applicant seeking leave to appeal and the Respondent. This morning Mr Yao again appeared on his own behalf, although this morning he also had the assistance of an interpreter. After some discussion, Mr Yao indicated his willingness (and readiness) to make submissions in support of an application for leave to appeal from the entirety of the primary Judge’s decision. That is how the matter thereafter proceeded. Detailed written submissions had been filed both by Mr Yao and by the Respondent. The Notice of Motion as filed on 2 February 2010 was treated as an application for leave to appeal from the entirety of the primary Judge’s decision of 27 January 2010.

14                  Leave to appeal is required by reason of s 24(1A) of the Federal Court of Australia Act 1976 (Cth). A decision dismissing an application made to this Court pursuant to s 44 of the 1975 Act for want of jurisdiction is interlocutory in character: cf. Mentyn v Westpac Banking Corporation [2004] FCAFC 149 at [3] per Kiefel, Weinberg and Stone JJ; SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 at [6] per Lindgren J. A decision dismissing an application made pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) as incompetent is interlocutory (Brownsville Nominees Pty Ltd v Federal Commissioner of Taxation (1988) 19 FCR 169 at 174 per Northrop J), as is an order dismissing an application pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth). So much is now apparent from the terms of s 24(1D)(b) of the Federal Court of Australia Act 1976 (Cth). That provision now makes apparent the conclusion previously reached: Wills v Australian Broadcasting Corporation [2009] FCAFC 6 at [23] to [30], 173 FCR 284 at 289 to 290 per Rares J (Emmett J agreeing).

15                  Whether the primary Judge had dismissed the application as incompetent by reason of s 44 of the 1975 Act or pursuant to s 31A of the Federal Court of Australia Act 1976, his decision was interlocutory.

16                  The discretion conferred by s 24(1A) to grant leave to appeal, it is well recognised, is an “unfettered discretion” and one conferred in “unqualified terms”: See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399. Relevant to the exercise of that discretion is whether the interlocutory decision is one (as in the present case) as to practice or one which determines “a substantive right”. In Jarrett v Seymour (1993) 46 FCR 521 at 559 Lockhart and Beaumont JJ summarised the approach to be generally taken as follows:

The relevant considerations for the Court in considering whether leave to appeal should be granted are:

(a)     whether in all the circumstances the judgment of the primary Judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

(b)     whether substantial injustice would result if leave were refused supposing the decision would be wrong.

This approach has been repeatedly applied: e.g. Pham v Human Rights & Equal Opportunity Commission [2002] FCAFC 353 at [6]; Assistant Treasurer and Minister for Competition and Consumer Affairs v Cathay Pacific Airways Ltd [2009] FCAFC 105 at [27], 179 FCR 323 at 331; Rickus v Motor Trades Association of Australia Superannuation Fund Pty Limited [2010] FCAFC 16 at [105] to [108].

17                  An application for leave to appeal may be heard either by a single judge or by the Full Court: Federal Court of Australia Act 1976 (Cth),s 25(2)(a). Order 52 r 2AA further provides as follows:

Exercise of appellate jurisdiction 

An application mentioned in subsection 25 (2) of the Act must be heard and determined by a single Judge unless:

(a)     a Judge directs that the application be heard and determined by a Full Court; or

(b)     the application is made in a proceeding that has already been assigned to a Full Court, and the Full Court considers it is appropriate for it to hear and determine the application.

Accordingly, a party has no “right to an election” as to whether any application for leave should be heard by a single Judge as opposed to a Full Court. As to any such asserted right, “there is none”: Harding v Deputy Commissioner of Taxation [2008] FCA 1516 at [4], 172 FCR 469 at 471. The present proceeding has not as yet been assigned to a Full Court. And, notwithstanding some reservation, it is considered that the present application should not be referred to a Full Court. But for:

·                    the primary Judge’s further observations extending beyond his conclusion as to the competency of the appeal pursuant to s 44 of the 1975 Act; and

·                    the Respondent’s acceptance of the ability of the Applicant to make any such further application as he sees fit for a further summons different in terms to those that have already been rejected,

a different conclusion may have been reached as to whether the present application should be resolved by a Full Court.  

18                  In the present proceeding the learned primary Judge concluded that the Federal Court Rules did not provide for the filing of a Notice of Objection to Competency in an appeal from a decision of the Tribunal. His Honour’s conclusion in that regard may be left to one side as he went on to further relevantly conclude:

·                    the application before him was an appeal pursuant to s 44 of the 1975 Act;

·                    the decision to refuse to issue the five summonses in issue was not a “decision” within the meaning of and for the purposes of s 44 of the 1975 Act; and that

·                    the decision of the Tribunal exposed no error of principle such that no “reformulation” of the appeal into an application for judicial review should be permitted, even if procedurally possible.

His conclusion to dismiss the application, it is considered, was clearly correct. Given the decision that the application was to be dismissed, it was thereafter unnecessary to further consider the Motion seeking injunctive relief. His Honour did, however, also:

·                    record reasons for why he would have declined injunctive relief.

19                  The Notice of Appeal was clearly what it purported to be — an appeal from a decision of the Tribunal. Section 44(1) of the 1975 Act confers jurisdiction on this Court to entertain what it describes as an “appeal … on a question of law, from any decision of the Tribunal”.

20                  The character of that which constitutes a “decision” for the purposes of s 44 is well established: Director-General of Social Services v Chaney (1980) 47 FLR 80. After referring to this decision, His Honour concluded:

[19] In this case the five decisions under review are decisions by the learned Tribunal member not to issue summonses to give evidence. Such a decision is not, to use the language of Deane J in Chaney, “a decision constitut[ing] the effective decision of determination of the application for review”. It follows that the purported appeal is incompetent.

His Honour, however, was apparently not referred to the decision of Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504, 37 ATR 432. An appeal was there entertained from a decision of the Tribunal striking out certain paragraphs of two summonses that had been obtained. The appeal was dismissed. But there was in that case no discussion as to whether or not the “decision” the subject of the appeal was a “decision” for the purposes of s 44. Spender J was content to observe that the application before him was from a “proceeding in the Tribunal”.

21                  There may thus be room for argument as to whether or not a “decision” such as that now in issue is susceptible of appeal pursuant to s 44.

22                  A conclusion that a decision to refuse to issue a summons pursuant to s 40(1A) may not be susceptible of appeal pursuant to s 44, it may be noted, does not necessarily have the consequence that such decisions may not ultimately be susceptible of examination by this Court by way of an appeal. In some cases it may, for example, be possible to contend that a refusal to issue a summons has consequentially denied a party of the “reasonable opportunity to present his case” — as guaranteed by s 39. In such cases, the ultimate or final decision may thus be examinable on appeal; but not the decision when made during the course of and for the purposes of conducting the review pending before the Tribunal.

23                  For present purposes, however, any such argument may again be left to one side because His Honour also went on to consider whether the decision of the Tribunal exposed any legal error that could be the subject of relief had judicial review of the Tribunal decision been sought.  

24                  Some decisions in respect to the exercise of the discretionary power conferred by s 40(1A) have attracted judicial review. Thus, for instance, in Pancontinental Mining Ltd v Burns (1994) 52 FCR 454, judicial review was sought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) of a decision of the Administrative Appeals Tribunal refusing to set aside summonses that had been issued. Pancontinental, it may be noted, was not a party to the proceedings before the Tribunal. An objection to the competency of the application was dismissed. Von Doussa J concluded at 462:

The first two grounds of the notice of objection are that the Court does not have jurisdiction because: (a) the refusal is not a decision within the meaning of s 5 of the ADJR Act; and (b) the refusal is not conduct relating to the making of a decision within the meaning of s 6 of the ADJR Act. Expressed in these terms the grounds are wide enough to challenge whether the refusal amounted to a “decision” or to “conduct” as well as to raise the question whether the Tribunal was acting under a Commonwealth enactment. In my opinion in relation to the application to set aside the summonses the refusal amounted to a “decision”. As between the parties at whose request the summonses were issued and the parties on whom they were served, the refusal was a determination of a substantive nature in that it required the parties served to comply with the summonses; there was in a practical sense at least a final determination of the question whether the parties served were people whose evidence could be relevant to an issue before the Tribunal; and the refusal was made under a Commonwealth Statute namely s 40(1A) of the AAT Act, read in conjunction with s 33(3) of the Acts Interpretation Act: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337.

Further, it was contended that even if the refusal were a decision made under an enactment, it was not of an administrative character as required by the definition of a “decision to which this Act applies”: s 3(1) of the ADJR Act. …

Whilst it is the particular decision of the Tribunal to refuse to set aside the summonses which must be categorised as a “decision of an administrative character” to attract the jurisdiction of the Court, it is necessary to consider that decision in the context of, and as part of, the process in which the refusal occurred. The phrase “decision of an administrative character” is to be given a wide construction to reflect that “administration” is not, as a rule, if ever, an isolated end but is part of a process: Evans v Friemann (1981) 53 FLR 229 at 237. Here the process under way before the Tribunal was the review of administrative decisions by a Tribunal empowered to exercise all the powers and discretions that are conferred by the relevant enactment on the person who made the decision under review: s 43(1) of the AAT Act. The power of review is an administrative power. The issue of the summonses by the registrar of the Tribunal was plainly an administrative act in aid of the conduct of the review. The refusal to set aside those summonses by the Tribunal was a decision made in the course of the exercise of the administrative power of the Tribunal. It was a step in that process, and was an administrative function: …

So too may judicial review be sought of a decision of the Tribunal declining to allow documents produced pursuant to a summons to be available in connection with other proceedings: Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467.

25                  Given the constraint imposed by s 44(1) of the 1975 Actthat only “[a] party to a proceeding before the Tribunal may appeal”, judicial review may be the only means whereby a non-party upon whom a summons has been issued pursuant to s 40(1A) may seek to have such a summons set aside.

26                  A decision refusing to issue a summons pursuant to s 40(1A), it may presently be assumed, perhaps attracts no different conclusion and may also itself be susceptible to judicial review. Any difference as between the manner in which the term “decision” in the present context may have been construed for the purposes of s 44(1) of the 1975 Act and for the purposes of s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) may also presently be left to one side.  

27                  In the present proceeding, the primary Judge assumed that judicial review may be sought of the decision of the Tribunal to refuse to issue the five summonses in question. But any such application for judicial review, he further correctly concluded, had no merit. Three of the summonses were unnecessary, given an undertaking to produce documents required by the Tribunal. His Honour expressly noted “that the power to issue summonses is inevitably discretionary” and that he could “discern in that approach no error of principle of the kind which might provide a basis for judicial review”: [2010] FCA 18 at [23]. One summons was rightly rejected as being addressed simply to a person identified as “Mary” (cf. Re Grant and Australian and Overseas Telecommunications Corporation (1992) 16 AAR 66 at 76 per French J) and the remaining summons was addressed to a person whose evidence would have no relevance.

28                  Whether or not the decision to refuse to issue the summonses was in fact a “decision” susceptible to appeal pursuant to s 44 of the 1975 Act, any such appeal would be confined to a “question of law”. Albeit in the context of considering whether there was any merit in an application for judicial review, the primary Judge has considered and rejected any argument that the decision of the Tribunal is vitiated by any legal error in the manner in which it made its decision.

29                  No “question of law” for the purposes of s 44 — and no legal error for the purposes of judicial review — is evident in the Tribunal’s decision. The Tribunal, when refusing to issue the summonses in issue, was exercising a discretionary power. Whether another Tribunal member may have exercised the discretion in the same manner is not to the point. No legal error is discernible in the manner in which the Tribunal member in the present proceeding exercised the discretion he was called upon to exercise.

30                  The conclusion reached by the primary Judge, it is considered, is not attendant with sufficient doubt to warrant the application for leave being granted. Given the incompetence of the purported appeal from the decision of the Tribunal, no occasion arose in the proceedings to consider the application for interlocutory relief. In any event, the decision to refuse the mandatory injunctive relief sought was also clearly correct.

31                  Even had a contrary conclusion been reached in respect to the prospects of any success on appeal from the decision of the primary Judge, leave to appeal would nevertheless have been refused in the exercise of discretion. The Tribunal, it will be recalled, is directed by s 2A of the 1975 Act to conduct a review that is “fair, just, economical, informal and quick”. It is also a Tribunal which has been directed by the Legislature in s 33(1)(b) to conduct its proceedings “with as little formality and technicality, and with as much expedition … [as] a proper consideration of the matters … permit”. Whether such provisions are but “a jumble of broadly expressed goals” which may be “no doubt attractive in themselves” but which “are in tension with one another” (cf. Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436 at [161], 171 FCR 174 at 208 per Lindgren J) may presently be left to one side.

32                  A decision to refuse to issue a summons pursuant to s 40(1A) may well affect a party’s ability to effectively participate in a Tribunal hearing. But where, as in the present case, the summonses have no self-evident relevance to the issues to be resolved by the Tribunal, any appeal challenging such interlocutory decisions may severely prejudice the ability of the Tribunal to discharge its functions in accordance with s 2A and s 33(1) of the1975 Act. In such cases there is no “tension” in adopting a course which only facilitates a “fair, just, economical, informal and quick” decision by the Tribunal. The review on appeal of such decisions, or judicial review of such decisions as those now in question, should not be encouraged.

Conclusions

33                  The application for leave to appeal should be refused with costs.

ORDERS:

34                  The orders of the Court are:

1.                  The Notice of Motion as filed on 2 February 2010 is dismissed.

2.                  The application for leave to appeal is refused.

3.                  The Notice of Appeal as filed on 2 February 2010 and the Notice of Amended Appeal as filed on 15 February 2010 are dismissed.

4.                  The Applicant is to pay the costs of the Respondent.

Associate:

Dated:         19 March 2010