FEDERAL COURT OF AUSTRALIA

Phillips v Inspector-General in Bankruptcy [2011] FCA 612

THE COURT ORDERS THAT:

1.    The appeal made by notice of appeal dated 21 January 2011 be dismissed.

2.    The appellant pay the respondent’s costs of and incidental to the notice of appeal dated 21 January 2011 and the notice of motion dated 10 March 2011 on a party/party basis.

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

Introduction

1    By a notice of motion dated 10 March 2011, the Inspector-General in Bankruptcy (“Inspector-General”), as respondent to the appeal of Steve Phillips made by notice of appeal dated 21 January 2011 (filed 21 February 2011), seeks that the appeal be dismissed or struck out.

2    The Inspector-General seeks the following orders:

1.    That the appeal be dismissed for want of jurisdiction.

2.    In the alternative, pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), that there be judgment in favour of the respondent on the appeal.

3.    In the alternative, pursuant to Order 20, Rule 5(2) of the Federal Court Rules 1979 (Cth), that the proceeding be dismissed generally.

4.    In the alternative, that those portions of the notice of appeal be struck out in so far as they fail to state a question of law.

5.    That the applicant pay the respondent’s costs of the appeal, including the respondent’s costs of and incidental to this notice of motion, on an indemnity basis.

6.    Such other orders as the Court thinks fit.

3    The notice of motion was supported by the affidavit of Fiona Spencer, a senior associate of Blake Dawson, the solicitors for the InspectorGeneral.

4    By the notice of appeal, Mr Phillips appeals from “the decision of the Administrative Appeals Tribunal constituted by Deputy President S A Forgie given on 24 January 2011 at Melbourne whereby the Tribunal decided to refuse the Applicant’s request made on 16 December 2010 to issue summonses addressed to Pitcher Partners and Blake Dawson”.

5    Mr Phillips is a selfrepresented litigant. He appeared at the hearing of the appeal in person and prepared the notice of appeal and material filed in support. Although Mr Phillips is not legally trained or qualified, he has had, as Ms Spencer deposed, extensive involvement in litigation, including five current proceedings involving Phoenix International Group Pty Ltd (a company with which he was associated), and eight concluded matters.

6    In his written submissions and oral submissions, Mr Phillips referred to the history of his dispute with the trustees, his bankruptcy examination, the objections to his discharge, allegedly false allegations concerning his assets and conduct and alleged a denial of natural justice constituted by refusal of access to documents, including those sought in the summonses.

7    The notice of appeal identifies the following questions of law:

a)    Denial of Natural Justice

b)    Failure to issue summonses in accordance with the Administrative Appeals Tribunal Act 1975 found in 40 of the Act.

c)    Breach of the Bankruptcy Act, section 64ZBA, 263A.

d)    Rules of evidence.

e)    Conflict of Interests

f)    Abuse of Privilege

g)    Seeking to obtain Financial Benefit and Gain

h)    Breach of the Privacy Act.

i)    Fair Trades Act. (False & Misleading Conduct, Improper Conduct, Undue Pressure etc.)

8    The grounds of appeal are numerous, prolix and sometimes expressed in an argumentative or extravagant style. Shortly stated, they are as follows:

a)    The Inspector General’s Office conspiring with Mr. Yeo and Pitcher Partners (“Trustees”) Breached Section 64ZBA of the Act to obtain financial benefit and gain in addition to applying undue pressure to attempt to carry out another Oral Examination, via AAT…

b)    The Trustees have applied undue pressure to the Applicant who is an “Unemployed Cancer Sufferer and Survivor of Multiple Surgeries to Remove Cancer effected Organs”, in an attempt to obtain a financial benefit and gain to recover unauthorised and improper expenses they have breach of the Act…

c)    The Applicant should have been discharged from his bankruptcy on or about August / September 2009. The Applicant has been unemployed and on a Disability Pension since February / March 2009 (which is the Applicant’s only source of income).

d)    The Applicant has a right to know who is funding the Trustees in the light of the fact that the Creditors have rejected all requests for remuneration submitted after the event by the Trustees for remuneration as required under Section 64ZBA of the Act.

e)    The Trustees made admissions that they intend to make the Applicant liable for those remunerations improperly incurred by the Trustees, hence they have an ulterior motive in their Application to extend the Applicant’s bankruptcy, which is to apply undue pressure.

f)    Whilst the Applicant was being cross examined by the Respondent’s Solicitor Blake Dawson Lawyers (Ms Spencer), material was tabled that was not contained in the “T” Documents…

g)    The Inspector-General’s Office tabled an Affidavit of Mr. Andrew Reginald Yeo sworn 31 May 2010. Mr Yeo states, in his affidavit, that documents exhibited were provided by Mr. Zygmunt Zayler (“Zayler”) in matters issued in the County Court by the Applicants former employer against Zayler, and his companies for money’s owed on or about March / April 2009 and the contracts were repudiated and it was premeditated to avoid payment and obtain financial benefit and gain as confirmed in Zayler’s own signed statement tabled to the Applicant…

h)    The summonses issued by the Applicant on 16 December 2010 may reveal further evidence in the matter before the AAT, which could be vital to the Applicant’s case.

i)    The Applicant would be prejudiced by being denied discovery of such documents.

Background

9    The background to the notice of motion and appeal is as follows.

10    On 28 August 2006, Riethmuller FM made a sequestration order against the estate of Mr Phillips under s 43 of the Bankruptcy Act 1966 (Cth) (“the Act”) on being satisfied as to the matters specified in s 52 of the Act and the circumstances stated in s 44 of the Act.

11    By s 149 of the Act, Mr Phillips would be discharged at the end of the three year period from the date on which he filed his statement of affairs, subject to s 149A of the Act, which provides for an extension (the length of which is governed by s 149A(2)) of the bankruptcy if an objection to discharge has taken effect in accordance with s 149G of the Act and has not been withdrawn or cancelled.

12    The date on which Mr Phillips lodged his statement of affairs (on which the three year period under s 149 commences) is disputed.

13    Two notices of objections to discharge were filed pursuant to s 149B of the Act by Mr Yeo of Pitcher Partners who, with Gess Rambaldi, is a joint and several trustee of Mr Phillips’ estate.

14    The notice of objection dated 22 June 2009 (“first notice of objection”) filed by Mr Yeo objected to Mr Phillips’ discharge for bankruptcy on the ground that “the bankrupt has failed, whether intentionally or not, to disclose to the trustee a liability of the bankrupt that existed at the date of the bankruptcy”. The first notice of objection had the effect of extending the bankruptcy until 21 September 2014 unless cancelled or withdrawn.

15    The notice of objection dated 4 September 2009 (“second notice of objection”) filed by Mr Yeo objected to Mr Phillips’ discharge from bankruptcy on two grounds. First, on the ground in s 149D(1)(b) of the Act that after the date of the bankruptcy, the bankrupt contravened s 206A of the Corporations Act 2001 (Cth) (disqualification from managing corporations). Mr Yeo referred to evidence and gave reasons for filing the objection under s 149D(1)(b). Secondly, on the ground that after the date of the bankruptcy, the bankrupt intentionally provided false or misleading information to the trustee.

16    Mr Phillips and his representative, Mr Hone, subsequently forwarded correspondence in relation to a review of the trustee’s decision, or decisions. The letter of Mr Hone dated 21 August 2009 to the official receiver requested a review of the first notice of objection. The letter of Mr Phillips dated 25 September 2009 in the form of a statutory declaration referred to Mr Hone’s request and to a letter from Pitcher Partners dated 4 August 2009. Mr Phillips’ letter dated 9 November 2009 stated that as he had heard nothing, he concluded that he was discharged from bankruptcy. The first two letters were addressed to the official receiver but marked for the attention of a particular officer in the Insolvency and Trustee Service Australia (“ITSA”), while the third letter was addressed to Official Receiver and Inspector-General at ITSA’s addresses, marked for the attention of the same officer.

17    By a letter to Mr Phillips dated 16 November 2009, the delegate of the Inspector-General stated that Mr Phillips’ request for review dated 9 November 2009 was out of time and, while the Inspector-General had not received the two earlier requests, he would review the trustee’s decision upon submission of a copy of the notices of objections and any documents on which Mr Phillips relied. The letter did not mention an extension of time to request a review.

18    By a letter to Mr Phillips dated 21 January 2010, the Inspector-General’s delegate advised him of the Inspector-General’s decision. The letter referred to the two notices of objection but described Mr Phillips’ request for a review as “…a request for a review of the Trustee’s decision to lodge the Objections…”. The letter advised that Inspector-General’s decision was: “…to confirm the Trustee’s Objection under the ground in section 149D(1)(b) and to cancel the grounds in Section 149D(1)(da) and (i)”, and that Mr Phillips would be discharged from bankruptcy on 28 September 2011.

19    Ms Spencer deposed that on or about 8 February 2010, Mr Phillips applied pursuant to s 149Q(a) of the Act to the Administrative Appeals Tribunal (“Tribunal”) for a review of the Inspector-General’s decision to:

(a)    cancel an objection to discharge on the ground that the applicant failed, whether intentionally or not, to disclose to the Trustee a liability of the applicant that existed at the date of the bankruptcy, (which objection was filed by the Trustee on 22 June 2009); and

(b)    confirm the Trustee's decision to file an objection to discharge on 4 September 2009 on the ground that after the date of the bankruptcy, the applicant contravened section 206A of the Corporations Act 2001 (Cth) by managing a corporation while an undischarged bankrupt.

(The delegate did not uphold the second ground in the second notice of objection, namely, that after the date of bankruptcy the bankrupt intentionally provided false or misleading information to the trustee).

20    Ms Spencer deposed to the proceedings in the Tribunal in her affidavit. In summary, Ms Spencer deposed that an application for review of the delegate’s decision or decisions (as remained to be determined) in relation to notices of objection to Mr Phillips’ discharge from bankruptcy was part heard before the Tribunal, when the three allotted hearing days (on 22 to 25 November 2010) were exceeded, and the matter was adjourned. Mr Phillips, whose crossexamination was not completed, remained under oath.

21    A telephone directions hearing occurred on or about 13 January 2011, attended by Ms Spencer, Mr Phillips and Deputy President Forgie. On 16 December 2010, Mr Phillips had requested that the Tribunal issue summonses to produce documents to Pitcher Partners and Blake Dawson. The Registry had declined to issue the summonses and instead referred them to the Deputy President for her determination.

22    On 13 January 2011, the Deputy President requested Mr Phillips to explain what documents he sought and why they were relevant. Ms Spencer deposed to the following exchange:

(a)    [Mr Phillips stated] [t]hat the respondent has put a greater number of documents before the Tribunal than were before the delegate when she made the decision under review.

In response, Deputy President Forgie explained in effect that the respondent was entitled to do this, that the application for review was a merits review and not judicial review and that meant the Tribunal could look at things beyond what the Inspector¬General had on the day he made the decision.

(b)    That the Trustee had exhibited documents to his affidavit filed in the AAT proceeding which he stated were obtained from Mr Zygmunt Zayler when these were in fact obtained by the Trustee in response to a summons issued in the context of a Federal Court examination held in late 2009 and by order of the Federal Court, the Trustee was not permitted to use those documents in the AAT proceeding.

In response I advised in effect that the documents in question were no longer relied on by the respondent and that summons had been issued for the production of the documents from the relevant bank.

(c)    That the creditors had voted against the Trustee's costs and the Trustee was acting improperly in requesting remuneration. The applicant submitted that he had a right to know who was funding the Trustee's investigation.

23    Following the discussion of other matters, the Deputy President expressed her disinclination to issue the summonses, as the documents sought did not appear relevant to the issues before the Tribunal. The Deputy President invited Mr Phillips to address the issue further. He declined the opportunity to do. The Deputy President stated that she would publish her decision in due course.

24    By a document dated 18 January 2011, Mr Phillips “voiced objections” to the decision to refuse to issue the summons raised during the 13 January 2011 telephone hearing.

25    On 24 January 2011, the Tribunal determined to refuse Mr Phillips’ request made on 16 December 2010 to issue summonses addressed to Pitcher Partners and Blake Dawson. The Tribunal published reasons for that decision.

26    Ms Spencer further deposed:

The applicant is an experienced litigant who in addition to this proceeding and the AAT proceeding, is a party to or involved in at least the following matters that are currently before the courts:

(a)    Phillips v Zayler, County Court proceeding number CI-09-03287;

(b)    Trihoud Pty Ltd v Phoenix International Group Pty Ltd, County Court proceeding number CI-10-00995;

(c)    Phoenix International Group Pty Ltd v Gantley Pty Ltd, County Court proceeding number CI-09-00783;

(d)    Phoenix International Group Pty Ltd v Jetoglass Pty Ltd & Anor, County Court proceeding number CI-09-00782;

(e)    Phoenix International Group Pty Ltd v Resources Combined & Anor, County Court proceeding number CI-09-00781.

The applicant’s relationship with Phoenix International Group Pty Ltd is the subject of controversy in the AAT proceeding.

Other matters that he has been directly involved in include:

(a)    Phillips v Ecquis, County Court proceeding number CI99-02381;

(b)    Andrew Reginald Yeo & Anor v Steve Phillips (A Bankrupt) & Ors, Federal Magistrates Court proceeding number MLG 1157/2009;

(c)    Stolar Joinery (Aust) Pty Ltd v Phillips, Federal Magistrates Court proceeding number MLG 1434/2003;

(d)    C Kapnoullas v Steve Phillips, Federal Magistrates Court proceeding number MLG693/2005;

(e)    Stolar Joinery (Aust) Pty Ltd v Steve Phillips, Federal Magistrates Court proceeding number MLG363/2006;

(f)    Steve Phillips v Stolar Joinery (Aust) Pty Ltd, Federal Magistrates Court proceeding number VID1021/2006;

(g)    NEG breach of contract proceedings, Supreme Court proceeding number S CI 1992 10763;

(h)    workers compensation proceedings, Supreme Court proceeding number S CI 1992 10860.

27    There was no evidence to contradict, and Mr Phillips did not dispute, Ms Spencer’s account of the above matters.

Tribunal’s reasons for decision refusing to issue summonses

28    The Tribunal referred to and discussed the power to issue a summons conferred by s 40(1A) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), which relevantly states:

    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.

29    The summons addressed to Pitcher Partners required it to:

1.    Provide copies of all records documents Banking details & Identify the party and/or parties funding Pitcher Partners [o]n going investigation into the affairs of Steve Phillips.

2.    Provide copies of all records documents Banking details & identify the party and/or parties funding Pitcher Partners on going investigation into the affairs of Beijing Garden resort Pty Ltd.

3    Provide copies of all records documents Banking details & identify the…party and/or parties funding Pitcher Partners on going investigation into the affairs of Phoenix International Group Pty Ltd.

30    The summons to Blake Dawson was in similar terms, but additionally required it to “[p]rovide copies of all records documents to and from Blake Dawson and Pitcher Partners and the Trustee”.

31    The Tribunal observed that in Cosco Holdings Pty Ltd v Commissioner for Taxation (1997) 37 ATR 432 (“Cosco Holdings”), Spender J approved the Tribunal’s application of the principles governing the curial issue of subpoenas duces tecum to the production of documents under the AAT Act.

32    The Tribunal noted that a summons was, like a subpoena, a tool used for the invasion of rights of a stranger, which should be used with great care and only for a statutorily authorised purpose. The Tribunal’s power to issue a summons at the request of a party under s 40(1A) of the AAT Act was specifically conferred “for the purposes of a hearing before the Tribunal” or for the purposes of a directions hearing or of an alternative dispute resolution process.

33    The Tribunal concluded (at [10]) that in the case before it, the power to summons a person under s 40(1A) could be used only “for the purposes of listening to and coming to a decision on Mr Phillips’ application for review of the Inspector-General’s decision”.

34    The Tribunal discussed the principles and authorities relevant to determining whether the statutory power to issue a summons was, in a particular case, being exercised “for the purposes of the hearing”. The Tribunal referred, in that context, to Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306 (“Arnotts”). In Arnotts, Beaumont J recognised that in determining whether the issue of a subpoena would be used for a legitimate forensic purpose, the relevant inquiry was not limited to the true purpose of the party seeking to issue the subpoena, but extended to the apparent (adjectival) relevance of the material sought to the issues in the principal proceeding (viewed from the standpoint of the party seeking that the subpoena be issued), and whether the subpoena were (viewed from the standpoint of the addressee) seriously and unfairly burdensome and prejudicial.

35    The Tribunal recognised that the decision under review and the associated legislation defined the issues before it. Because the delegate’s reasons did not separate the grounds by reference to the individual notices of objection, it was not easy to identify the decision or decisions under review as, inter alia, the correspondence of Mr Phillips and Mr Hone did not unambiguously identify the notice or notices of objection for which review was sought.

36    The Tribunal therefore invited the parties’ submissions before deciding whether the delegate’s letter dated 21 January 2010 constituted one decision or two decisions.

37    In relation to the request to issue the summonses, the Tribunal concluded that the material sought was not relevant to any of the three grounds of objection as follows (at [55] to [58]):

The questions I have asked the parties to consider further are relevant to the ongoing conduct of this matter but the answers to them do not affect the question I must ask myself now. The short answer is that the material sought in the summonses has no relevance at any level to the issues that must be considered if all three grounds of objection are, or any one of them is, in issue in this matter. Who is funding the trustee has no relevance, adjectival, apparent or otherwise, to the issues I must consider. They are whether:

1.    under s 149D(1)(i), “the bankrupt has failed, whether intentionally or not, to disclose to the trustee a liability of the bankrupt that existed at the date of the bankruptcy”;

2.    under s 149D(1)(b), “after the date of the bankruptcy, the bankrupt contravened section 206A of the Corporations Act 2001 (disqualification from managing corporations)”; or

3.    under s 149D(1)(da), “after the date of the bankruptcy, the bankrupt intentionally provided false or misleading information to the trustee”.

The issues in relation to 1 and 3 are self evident and who is funding the trustee’s investigation into Mr Phillips affairs or those of Beijing Garden Resorts Pty Ltd or Phoenix International Group Pty Ltd does not assist me in deciding whether Mr Phillips has engaged in the behaviour described. As to the second ground, which may (or may not) turn out to be the only ground in contention, I have set out the provisions of s 206A of the Corporations Act. Again, information relevant to the funding of the trustee’s investigations is not relevant. What is relevant is Mr Phillips’ behaviour in relation to any corporation such as Beijing Garden Resorts Pty Ltd or Phoenix International Group Pty Ltd.

Mr Phillips also asked that a summons be issued requiring Blake Dawson to appear at the Tribunal and to “Provide copies of all records documents to and from Blake Dawson and Pitcher Partners and the Trustee.” He has not specified the subject matter of the records and documents he seeks or how they will be relevant to the issues raised in the consideration of all or any of the grounds of objection. He has given me no basis on which I can come to a view that there will be records or documents that will have some apparent or actual relevance. All that he has shown to me in the second summons is a desire to go through the records and documents to see if he can find anything he thinks may be relevant. He is engaging in a fishing exercise and I refuse to give him the block and tackle to do so by issuing the second summons.

For these reasons, I refuse Mr Phillips’ request to issue the two summonses…

Tribunal’s further decision

38    On 3 May 2011 the Tribunal handed down its decision identifying the decision of the Inspector-General under review. Deputy President S A Forgie concluded that Mr Phillips’ application for review related only to the Inspector-General’s decision to confirm the trustee’s decision to file a notice of objection on 4 September 2009, extending to both grounds of objection set out in the notice. At the hearing of the appeal, I was informed that no date has yet been set for the resumption of the adjourned hearing before the Tribunal and that Mr Phillips remains under oath.

Relevant legislation

39    Order 20, rule 5 of the Federal Court Rules provides (relevantly):

(1)    This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding:

(a)    the proceeding or claim is frivolous or vexatious; or

(b)    the proceeding or claim is an abuse of the process of the Court.

(2)    The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief.

40    Section 31A(2) of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) provides:

The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

41    Section 44(1) of the AAT Act provides:

A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

42    Section 3(3) of the AAT Act defines a decision as follows:

Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:

(a)    making, suspending, revoking or refusing to make an order or determination;

(b)    giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)    issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)    imposing a condition or restriction;

(e)    making a declaration, demand or requirement;

(f)    retaining, or refusing to deliver up, an article; or

(g)    doing or refusing to do any other act or thing.

The appeal

43    Although the notice of appeal does not expressly so state, it is clear that the appellant appeals to this Court pursuant to s 44(1) of the AAT Act.

44    The respondent submitted that as the appeal was brought pursuant to s 44(1) of the AAT Act, the Court’s jurisdiction was limited to hearing and determining an appeal on a question of law from a “decision” of the Tribunal.

45    The respondent submitted that the appeal wanted jurisdiction because there was no “decision” from which a right of appeal under s 44(1) lay and no question of law to form the subject-matter of the appeal. Further, any appeal had no reasonable prospect of success. It should therefore be dismissed under Court's inherent powers, O 20 r 5(2) of the Federal Court Rules or alternatively s 31A(2) of the Federal Court Act.

Whether appeal lies from the decision the subject of the notice of appeal

46    In Director-General of Social Services v Chaney (1980) 3 ALD 161 (“Chaney”), the majority of the Full Federal Court (Deane and Fisher JJ) held incompetent an appeal to the Federal Court under s 44(1) of the AAT Act from:

(a)    the Tribunal’s ruling that it had jurisdiction to review a decision refusing a claimant’s entitlement to a widow’s pension; and

(b)    the Tribunal’s order suspending the cancellation of the pension until the hearing and determination of the review.

47    Deane J (with whom Fisher J agreed) noted that the word “decision” had an indeterminate meaning, which could vary according to context. His Honour analysed the content of s 44 of the AAT Act in the context of the scheme of the Act as a whole (at 178 to 180). He considered it was unlikely that the legislature intended to entitle parties to disrupt the Tribunal’s proceedings by appealing as of right from any “decisions” made in the course of dealing with the decision before it, “which might ultimately prove irrelevant to the final operative decision” (at 180). As there was a “clear right to appeal, on a question of law, from the ultimate decision of the Tribunal” in the context of the “intermediate procedure of stating a question of law” for the Federal Court, his Honour considered the more likely legislative intent was “to limit judicial intervention during the actual hearing before the Tribunal to the supervisory, and, to some extent, discretionary, jurisdiction provided by the prerogative writs” (at 180). His Honour concluded (at 181):

[S]ubject to the qualifications mentioned below, an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act.

48    In Chaney, Deane J considered the view that a proliferation of opportunities to appeal constituted a safeguard of the rights of the individual subject, but rejected it as misconceived, as it would defeat the “assurance of an orderly and reasonably prompt” resolution of challenges to decisions of the executive and would pose the potential for financial ruin in a “myriad of possible appeals” (at 180 to 181).

49    In Geographical Indications Committee v The Honourable Justice O'Connor and Others (2000) 64 ALD 325 (at 334), the Full Federal Court reiterated “the undesirability of allowing appeals against interlocutory decisions involving matters of practice and procedure to fragment and delay the trial of proceedings”.

50    Consistently with the reasoning of Deane J in Chaney, the authorities on the scope of an appeal under s 44(1) of the AAT Act have predominantly held that decisions of an interlocutory or procedural nature lack the requisite operative effect to constitute the effective decision of the application for review, and hence are not decisions from which an appeal lies under s 44(1) of the AAT Act.

51    In Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18, Perram J (in reliance on Chaney) held incompetent an appeal from a refusal to issue several summonses requiring various persons to give evidence, because it was not a decision for the purposes of s 44(1) of the AAT Act. His Honour observed (at [18]) that while minds might legitimately differ on the proper construction of s 44, “Chaney has been repeatedly applied in this court over a number of years…”. His Honour concluded (at [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.

52    In Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 241 (“Yao”), Flick J refused leave to appeal from Perram J’s decision as it was not attended by sufficient doubt. Flick J observed that Perram J had not been referred to Spender J’s decision in Cosco Holdings, which potentially left room for argument that a refusal to issue a summons or authorising such refusal was a decision susceptible of appeal.

53    In Cosco Holdings, Spender J treated an application to strike out certain paragraphs of two summonses as “a proceeding” and entertained an appeal under s 44 of the Act. As Flick J recognised, however, the question whether an interlocutory direction or determination constituted a decision was not raised and Spender J was apparently not referred to Chaney. Further, more recently, in Kowalski v Repatriation Commission (2009) 259 ALR 444 (“Kowalski”), Spender J (in a joint judgment with Graham and Gilmour JJ) upheld Mansfield J’s decision at first instance (based on Chaney and like authorities) that the Tribunal’s refusal to dismiss or permanently stay an application was not the effective decision or determination. The approach in Kowalski was consistent with the reasoning in Chaney which excluded intermediate decisions as valid subject matter of an appeal under s 44(1) of the AAT Act.

54    The cogent policy reasons for avoiding fragmentation of the administrative process by interlocutory appeals have been extensively recognised. As Flick J observed in Yao, that approach does not necessarily shield a refusal to issue a summons from ultimate examination on appeal, if it arguably denied a party the “reasonable opportunity to present his or her case” guaranteed by s 39(1) of the AAT Act.

55    In the present case, the Tribunal’s decision made pursuant to the discretionary power conferred by s 40(1A) of the AAT Act is an interlocutory procedural decision made on the pathway to the ultimate determination. It does not constitute the final, effective decision dispositive of the application to review the Inspector-General’s decision concerning the notices of objection. Therefore, it is not, in my opinion, a decision within the meaning of that term in s 44(1) of the AAT Act. It follows that the purported appeal is incompetent on that basis.

Whether a question of law forms the subject matter of the appeal

56    If, contrary to the above conclusion, an appeal otherwise lies from the decision to refuse to issue, or an authorisation of a refusal to issue, summonses, it would be restricted to a question of law.

57    I have recently considered the authorities on stating a question of law in Smalley v Secretary, Department of Health and Ageing [2011] FCA 302 at [10] to [32].

58    The respondent usefully summarised the principles derived from relevant decisions of the Federal Court on s 44(1) of the AAT Act as follows:

(a)    an appeal “on a question of law” is narrower than an appeal that “merely involves a question of law” (Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at 254; emphasis in original);

(b)    “[t]he existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself” (TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178). It is a threshold requirement for the exercise of the Court’s jurisdiction to review a decision of the AAT;

(c)    the question or questions of law said to arise from the Tribunal’s decision “should be stated with precision as a pure question of law” (Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 (“Birdseye”) at 325);

(d)    a mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act;

(e)    the subject matter of an appeal pursuant to s 44(1) is of the same character as the subject matter of a reference to the Court pursuant to s 45 of the AAT Act. It is to be contrasted to an appeal from a judicial body under s 24 of the Federal Court Act. “The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal” (Comcare v Etheridge (2006) 149 FCR 522 at 527);

(f)    “a ground stated in support of an order sought cannot be relied on to cure an ambiguity in the identification of a question of law which is a condition of the Court’s jurisdiction under s 44 of the AAT Act” (Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527); and

(g)    “in determining whether the jurisdiction of this Court has been properly invoked under s 44 of the AAT Act, form cannot prevail over substance” (Birdseye at 327).

59    Consistently with Pagone J’s approach in Hoe v Manningham City Council [2011] VSC 37 and Mansfield J’s observations in Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42, courts should not, however, ignore a question of law due to its deficient articulation by an unrepresented litigant.

60    In the present case, it is not possible, even on a benevolent reading, to discern from any individual purported question, the questions as a whole, or (in so far as it is permissible) the supporting grounds, a coherent articulation of a question of law. Rather, the purported questions constitute bare allegations or assertions, restatements of the decision and Delphic “topic headings”, the relevance of which is not apparent.

61    As the respondent submitted:

The first purported question is “denial of natural justice”. A bald allegation unsupported by content does not give rise to a question of law.

Purported question b) is a restatement of the Tribunal’s decision that is the subject of the appeal. It does not state with precision a pure question of law said to arise from that decision. Nor does it identify any facet of the Tribunal’s exercise of discretion that is alleged to have miscarried. It is not a question of law to simply assert that the Tribunal reached a wrong decision.

Purported questions c) - i) have no apparent relevance to the Tribunal’s decision. To the extent that sense can be made of the matters listed, the applicant does no more than refer to and reiterate matters he put to the Tribunal when he was given an opportunity to explain why the documents sought by the summonses were relevant plus some additional matters that were not raised before the Tribunal (being questions d) “Rules of evidence”, i) “Fair Trades Act”, h) “Breach of the Privacy Act” and f) “Abuse of Privilege”). There are no intelligible questions of law.

62    The purported questions and the stated grounds, together with the appellant’s written and oral submissions, were principally directed at ventilating his complaints about, and disputes with, the trustees and various other parties.

63    The purported appeal is, therefore, in my opinion, incompetent on the alternative basis of want of jurisdiction due to failure to state the question or questions of law to be raised on the appeal.

64    If, contrary to the above findings, the Court has jurisdiction to entertain the appeal, in my opinion it has no reasonable prospects of success. The Tribunal’s decision was made pursuant to its broad discretionary power to issue a summons conferred by s 40(1A) of the AAT Act for the purposes of a hearing before the Tribunal. The Deputy President’s conclusion that the documents sought in the summonses lacked adjectival or apparent relevance to the hearing before the Tribunal was compelling.

65    In my opinion, the purported appeal is incompetent and should be dismissed.

Associate:

Dated:    3 June 2011