FEDERAL COURT OF AUSTRALIA

Luck v Secretary, Department of Human Services (No 2) [2014] FCA 798

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 28 July 2014 be dismissed.

2.    The first respondent’s objection to the competency of the appeal be upheld.

3.    The proceeding be dismissed.

4.    The applicant pay the first respondent’s costs of the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This purported appeal against a decision of the Administrative Appeals Tribunal (“the Tribunal”) was commenced by Ms Luck on 4 February 2010. For reasons to which I will shortly refer in greater detail, it was not fixed for final hearing until 4 April 2014. The hearing was then fixed for today. In the meantime the first respondent filed a notice of objection to competency and supporting submissions. This was done on 6 June 2014.

2    By interlocutory application, filed on 28 July 2014, Ms Luck sought an order that this matter be “stayed or adjourned” pending the determination of a Full Court appeal by Ms Luck in a proceeding by her against the University of Southern Queensland. That appeal is listed for hearing on 22 August 2014. In the event that that application is not successful Ms Luck sought an order that today’s hearing be vacated and that she be granted an extension of time to prepare submissions in response to the first respondent’s notice of objection to competency.

3    These applications were opposed by the first respondent. Ms Luck had been so advised by the first respondent by letter forwarded to her on 29 July 2014.

4    The pending appeal is brought from a judgment which I handed down in November 2013 in which I dismissed another proceeding brought by Ms Luck: see Luck v University of Southern Queensland (No 2) [2013] FCA 1141. In that proceeding I refused an application by Ms Luck to disqualify myself on the ground of ostensible bias. Ms Luck proposes to argue on the appeal that I was disqualified from sitting as a Federal Court judge because, at the time, I also held the appointment of Judge Advocate General of the Australian Defence Force under the Defence Force Discipline Act 1982 (Cth) (“the DFDA”). She also proposes to argue on the appeal that there have been breaches of the separation of powers doctrine by me and others “because of the continued failure of the Attorney General and the Executive government to properly administer the relevant provisions of human rights legislation …”.

5    On 4 April 2014 I rejected an application from Ms Luck in the present proceeding that I disqualify myself for ostensible bias: see Luck v Secretary, Department of Human Services [2014] FCA 344. She had relied on the same ground that she proposes to agitate in the pending appeal. In rejecting her application I pointed out that my appointment as Judge Advocate General was made, pursuant to the DFDA, by the Governor-General in Council and that my eligibility for appointment depended on me being either a Judge of this Court or of a State Supreme Court. I also directed attention to s 181(1) of the DFDA which provides that, for all purposes, the Judge Advocate General’s service in that role “shall be taken to be service as the holder” of his or her judicial office. I also noted that an earlier Full Court decision, in Luck v University of Southern Queensland [2009] FCAFC 73, had rejected a similar claim by Ms Luck. I do not consider that Ms Luck’s attempt to re-agitate this matter in the Full Court warrants a stay of the present proceeding. In any event, my appointment as Judge Advocate General has, in the meantime, come to an end.

6    The second appeal ground on which Ms Luck relies and which relates to the administration of human rights legislation (insofar as I can comprehend it) has, at best, a tenuous relationship to the issues arising on the present appeal. She has failed to articulate how such maladministration (if there be any) could provide her with a cause of action in this Court in a proceeding such as the present which arises under the Freedom of Information Act 1982 (Cth) (“the FOI Act”).

7    For these reasons Ms Luck’s principal application for a stay must be refused.

8    Her alternative claim seeks yet a further delay of the hearing so that she can prepare a response to the first respondent’s objection to competency. This application must be seen in the context of the history of the proceeding. I attach to these reasons a chronology which records the procedural history of the appeal. There have been multiple delays caused by Ms Luck’s failure to appear, avowedly, because of her poor health. Long delays have also occurred whilst she pursued unsuccessful applications and appeals in the High Court. Once the High Court proceedings were finally resolved this appeal was fixed for hearing. As already noted, this occurred on 4 April 2014. Ms Luck has been aware of the respondent’s objection to competency and the reasons for it for almost two months. Her application for a further adjournment was made just two days ago.

9    The application was supported by an affidavit in which Ms Luck deposed that she suffers from various chronic and acute illnesses. No medical evidence was provided and no attempt was made by Ms Luck to explain why her ill health prevented her from responding to the first respondent’s objection to competency today. In her affidavit she also made reference to “several crises, recently, that [had] arisen in her personal life” which she said had prevented her from preparing her submissions for the hearing. Again, she failed to provide any evidence which explained the linkage between the crises and her inability to prepare for the hearing.

10    In my view Ms Luck has had more than ample time to prepare to deal with the first respondent’s contentions. She has not established any proper basis for an adjournment. Her application must be refused.

11    After I had pronounced these reasons for refusing Ms Luck’s interlocutory applications and as Counsel for the first respondent commenced making submissions in support of the objection to competency, Ms Luck announced that she proposed to take no further part in the proceeding and withdrew. I invited Counsel to proceed with her submissions.

12    Ms Luck’s purported appeal is brought from a decision of the Tribunal in which it determined that:

    It did not have jurisdiction to review a decision made by the Department under the FOI Act on 22 May 2009 or any decisions that, but for the 22 May decision, might have been deemed to have been made as a result of the passage of time after earlier requests had been made by her;

    It should proceed to determine its jurisdiction even though Ms Luck had initiated a proceeding in the High Court; and

    The Department was not obliged to comply with the provisions of s 37(1) of the Administrative Appeals Tribunal Act 1975 (Cth).

See: Luck and Department of Human Services [2010] AATA 6.

13    Ms Luck’s application to the Tribunal arose from a series of requests she had made to the Department of Human Services (“the Department”) for access to documents. Those requests were made in the period between 20 January 2009 and 23 March 2009. In her application for review Ms Luck identified the decision which she wished to challenge as being that made by Dr Gary Rumble, the General Counsel employed by the Department “on or about 22 May 2009.” Ms Luck attached to her application a copy of the letter which recorded Dr Rumble’s “decision”. In that letter Dr Rumble wrote:

“I refer to your letter dated 20 January 2009 and to your requests since that date in which you sought access to the documents included in the statement made by the Department of Human Services (DHS) under section 9 of the [FOI Act].

I have enclosed a CD containing the documents (in PDF format) that are listed in the statement that DHS has been able to locate. …

As a result of the delay in finalising your request, I have decided to provide you with the documents at no charge.

…”

14    Although Ms Luck subsequently sought to suggest that this was not the decision which she wished to have reviewed by the Tribunal, no amendment was made to her application and the Tribunal proceeded to determine the jurisdictional issue on the basis that this was the relevant decision.

15    The Tribunal determined that it lacked jurisdiction to entertain the application. It accepted that it had power, pursuant to s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to deal with applications made to it under other Commonwealth Acts. It accepted that, under s 55(1) of the FOI Act, a person who had made an application for access to documents under that Act could apply to the Tribunal for review of “a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access …”. It noted, however, that s 55(2) of the FOI Act placed a qualification on this right of access to the Tribunal. It provided that a person was not entitled to make an application under s 55(1) unless he or she had first sought internal review of the decision within the relevant agency pursuant to s 54(1) of the FOI Act. There was no evidence before the Tribunal that Ms Luck had made the necessary application under s 54 of the FOI Act prior to lodging her purported application in the Tribunal. Accordingly the Tribunal held that she was precluded, by s 55(2), from applying for review of Dr Rumble’s decision and that the Tribunal did not have power to review that decision.

16    On 21 October 2009 Ms Luck lodged an amended application in the High Court naming the Deputy President of the Tribunal who was hearing her application (the third respondent in this proceeding) as a respondent. In the High Court proceeding Ms Luck sought orders nisi for writs of mandamus and certiorari against, inter alia, the Deputy President. On the same day Ms Luck wrote to the Tribunal applying for a stay or an adjournment of her application until the High Court had dealt with her applications to it. After a careful review of legislation and case law the Tribunal determined that the existence of the pending High Court proceeding did not preclude it from determining whether or not it had jurisdiction to entertain Ms Luck’s application. In doing so it considered that it would not “in any way compromise or interfere with the High Court’s consideration of the matter.”

17    The third decision of the Tribunal from which Ms Luck purports to appeal in this proceeding relates to the provisions of s 37(1) of the AAT Act. That sub-section imposes an obligation on an agency whose decision is the subject of an application for review by the Tribunal to provide to the applicant a statement of reasons for its decision and relevant documents. The Tribunal held that, once its jurisdiction had been called into question, “so too was the obligation imposed by s 37(1)”. Once it decided that it lacked jurisdiction the requirements of s 37(1) did not operate to require the Department to provide reasons or documents to Ms Luck.

18    Ms Luck’s purported appeal to this Court was brought under s 44(1) of the AAT Act. That sub-section provides that:

“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.”

19    Ms Luck’s notice of appeal identified 48 “questions of law” which are said to arise from the Tribunal’s determinations. These were followed by some nine “grounds”.

20    The objection to competency was pressed on the ground that the notice of appeal failed to identify any “pure question of law” as required by s 44(1) of the AAT Act.

21    In TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Gummow J, when a member of this Court, said that:

“Section 44 of the AAT Act is expressed in narrower terms than the old s 196 of the Tax Act. This provided for appeals from the Board of Review which ‘involved’ a question of law. The result was that if some question of law was involved, the whole of the decision of the Board was open to review, not merely the question of law … This no longer will be the case with appeals brought to this court under s 44 of the AAT Act. The 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.” (Emphasis added).

A Full Court of this Court, in Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 60, held that the question of law contemplated by s 44(1) of the AAT Act must be what was described as a “pure question of law” in order to found the jurisdiction of the Court under s 44.

22    The principles which were subsequently developed were summarised by Dowsett and Gordon JJ in Federal Commissioner of Taxation v Trail Bros Steel and Plastics Pty Ltd (2010) 186 FCR 410 at 414-5. Their Honours there said that:

“In Etheridge 149 FCR 522, the Full Court of the Federal Court restated two principles. First, that ‘on a question of law’ is narrower than an appeal that merely ‘involves’ a question of law with the result that where an appeal lies ‘on a question of law’, the subject matter of the appeal is the question or questions of law: Etheridge 149 FCR 522 at [13]-[15]; see also Scicluna v New South Wales Land and Housing Corporation (2008) 72 NSWLR 674 at [4] and TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1067 at 1069-1070; 82 ALR 175 at 177-179 (per Gummow J). Secondly, a mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act: Etheridge 149 FCR 522 at [16]; see also Price Street Professional Centre Pty Ltd v Federal Commissioner of Taxation (2007) 67 ATR 544; 243 ALR 728 at [40] (per Edmonds J).”

23    Once the first respondent had filed the objection to competency, Ms Luck carried the burden of establishing the competency of her application: see Federal Court Rules, Rule 31.05(2). Her withdrawal has meant that she has not assumed this burden.

24    I accept the first respondent’s submission that none of Ms Luck’s “questions of law” is a “pure question of law” as described by the Full Court in Birdseye. Many raised questions of fact or combined questions of fact and law. Most lacked the precision required by the Federal Court Rules, Rule 33.12(2)(b).

25    I do not pause to analyse the deficiencies in each of the 48 so called questions of law. This is because, in appropriate cases, the Court has been prepared to frame questions of law which might found its jurisdiction and be answered in a way that would reveal any error affecting the decision of the Tribunal: see, for example, Birdseye at 61. Some allowance may be afforded unrepresented litigants: see Kowalski v Chief Executive Officer, Medicare Australia (2010) 185 FCR 42 at 51 (Mansfield J). I am conscious, in this case, that Ms Luck has not been legally represented and may have had difficulty in crafting the necessary questions of law. It is implicit in what I have just said that I accept that, had she had the benefit of legal advice, it would have been possible for her to draw appropriate questions of law relating to the three determinations of the Tribunal which she wishes to challenge. Those questions would have been far fewer in number than those appearing in her notice of appeal.

26    I, therefore, proceed immediately to consider whether the Tribunal’s reasons disclose any appealable legal error. I have concluded that they do not.

27    The Tribunal’s jurisdiction is limited. It may only entertain appeals from administrative decisions where Commonwealth legislation confers a right of appeal from a particular decision on a particular person or class of persons and then empowers the Tribunal to hear and determine the appeal.

28    The right of a person, who has applied to an agency for access to documents under the FOI Act, to appeal from a decision to refuse access or to provide less than full access is qualified by s 55(2) of the FOI Act. That sub-section provides that a dissatisfied applicant “is not entitled to make an application” to the Tribunal for review unless he or she has first sought internal review of the decision by the agency pursuant to s 54 of the FOI Act. The Tribunal’s power, under s 25(4) of the AAT Act, is “to review any decision in respect of which application is made to it under any enactment.” If a person purports to make an application to the Tribunal, in circumstances where he or she has no entitlement to do so, it cannot be said that such an application has been made under another enactment. The Tribunal was, therefore, in my opinion, correct to hold that it lacked jurisdiction and/or power to entertain Ms Luck’s purported application.

29    Unless and until the Tribunal’s jurisdiction was engaged, the Department was under no obligation to furnish Ms Luck with a statement of reasons and other relevant documents. This was because s 37(1) of the AAT Act only imposed such an obligation when the decision in respect of which the application was made was one that the Tribunal had power to review under s 25(4) of that Act. For reasons already given Ms Luck’s purported application was not such an application.

30    There remains the question of whether the Tribunal erred in law by proceeding to make a determination about its jurisdiction whilst a High Court proceeding relating to aspects of the application was pending.

31    The grounds of judicial review upon which Ms Luck relied in the High Court, insofar as they were relevant, were far from clearly expressed. Like the Tribunal I have had difficulty understanding them. Doing the best that I can, it appears that Ms Luck was alleging that the third respondent had, in some way, denied her procedural fairness and somehow acted inconsistently with provisions of the Disability Discrimination Act 1992 (Cth) and the Human Rights and Equal Opportunity Act 1986 (Cth) when dealing with the early procedural stages of the application to the Tribunal.

32    The commencement, by Ms Luck, of judicial review proceedings in the High Court did not, of itself, have the consequence that the proceeding before the Tribunal was stayed until the High Court had heard and determined the judicial review application. It was for the Tribunal, in its discretion, to determine whether or not to accede to Ms Luck’s application. In doing so it was guided by established principles. Those principles were expounded in authorities to which the Tribunal referred, including Australia and New Zealand Banking Group Limited v Merribee Pastoral Industries Pty Ltd [1998] FCA 856 at [16]-[19] (Finkelstein J) and Commissioner of Taxation v Cumins [2008] FCA 353 at [17]-[18] (Gilmour J).

33    The issues relating to procedural fairness and compliance with what were said to be the requirements of other Commonwealth Acts may, if they had been substantiated, have had implications for any decision which the Tribunal might ultimately have made on Ms Luck’s purported application under the FOI Act. If, however, as the Tribunal held, it lacked jurisdiction to entertain the application, there was no proceeding before it in which any such obligations arose. No decision of the Tribunal relating to its jurisdiction had the potential to interfere with the administration of justice by the High Court when it was dealing with Ms Luck’s judicial review application. The Tribunal did not, therefore, err by deciding to consider and rule on whether or not it had jurisdiction to deal with Ms Luck’s application to it.

34    In the absence of any demonstrated appealable error on the part of the Tribunal Ms Luck’s purported appeal to this Court under s 44 of the AAT Act would have failed, even had appropriate questions of law been framed. The objection to competency must be upheld.

Associate:

Dated:    5 August 2014

Chronology