FEDERAL COURT OF AUSTRALIA

Grabovsky v Secretary, Department of Social Services [2015] FCA 244

THE COURT ORDERS THAT:

1.    The application for an extension of time to file a notice of appeal be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    Igor Grabovsky suffers from a variety of medical conditions as a result of which he claims to have a continuing inability to work such as to entitle him to a disability support pension. He submitted a claim for the pension on  21 December 2012 but Centrelink rejected his claim on the ground that his condition had been assessed as not attracting at least 20 impairment points – one of the criteria for eligibility for a disability support pension contained in s 94(1) of the Social Security Act 1991 (Cth). Mr Grabovsky sought review of that decision, first in the Social Security Appeals Tribunal (“SSAT”), where he was unsuccessful, and then in the Administrative Appeals Tribunal (“AAT”). The substantive issue before the AAT was whether, contrary to the opinion of a Job Capacity Assessor upon which Centrelink had relied, Mr Grabovsky’s eczema was fully diagnosed, treated and stabilised so as to enable an assessment of impairment resulting from that condition to be carried out. The AAT accepted that the eczema had been fully diagnosed and treated and had stabilised. Consequently, it set aside Centrelink’s decision and remitted the matter for assessment of the extent of his impairment and, depending on the outcome of that assessment, to determine whether he was qualified for the pension.

2    Despite his success, Mr Grabovsky was dissatisfied with the outcome in the AAT and appealed the decision. The appeal was dismissed. Now he wishes to appeal from the decision of the primary judge but he failed to file a notice of appeal within the time prescribed by the Federal Court Rules 2011 (Cth) (“Rules” or “FCR”). He prepared an application for an extension of time supported by an affidavit he affirmed on 26 November 2014 but did not file the documents until 9 December 2014. He also filed submissions.

Some preliminary matters

3    The application for an extension of time was listed for hearing on 17 March 2015. At the beginning of the hearing Mr Grabovsky produced a document entitled “Application for orders about procedures” dated 26 February 2015 containing the grounds upon which the “application for orders about procedures” was made (“the procedural application”). The procedural application had never been filed. Nevertheless, Mr Grabovsky seemed to think that I would somehow know all about it and he insisted that I deal with it and his associated grievances and I did.

4    The procedural application sought orders that the Secretary be removed as a party and the Australian Government Solicitor (“AGS”) be barred from “representing” both respondents. Mr Grabovsky submitted that it was a conflict of interest for the AGS to represent both the Secretary and the AAT. In fact, the AGS did not represent both respondents. The AGS represented the Secretary. A submitting notice was filed for the AAT by the AAT itself and not by the AGS.

5    Mr Grabovsky maintained (as he did in the Court below) that the Secretary is not a proper respondent. He submitted that he only named the Secretary as a respondent under protest when the Registry told him he was required to. He submitted that the Secretary was only entitled to participate in the proceeding as a witness.

6    Mr Grabovsky also applied for an order that the AAT “stipulate its legal position” and, in the event that the AAT had no objection, he asked the Court to make the orders he sought in paragraph 27 of his outline of submissions. Those orders (without alteration) were:

27.1    To set aside the judgment of Edmonds J. [2014] FCA 1130

27.2    To set aside the orders of the Administrative Appeal Tribunal [2014] AATA 522.

27.3    Using Rule 1.32 of the Federal Court Rules 2011 and s.23 and 28 (1)(a) of the Federal Court of Australia Act 1976 ordering the Administrative Appeals Tribunal to vary its decision remitting the matter to the Secretary with the direction to grant the Appellant the claim for the Disability Support Pension from the date of the original application.

27.4    To issue the circular (or any appropriate direction) on the Court's own motion to preclude any further breach of Chapter III of the Constitution of Australia (Separation of Powers), prohibiting any further practice of representation of the arbitrating institution(s) (e.g. Administrative Appeals Tribunal) by a Commonwealth officer (e.g. Secretary Social Services Department), the Appellant will deem it sufficient for a settlement.

7    In the event that the AAT had any objection to his “position”, Mr Grabovsky asked the Court to order that the AAT’s lawyers “stipulate those objections” and produce “the Certificate of the reasonable prospect of success on or before any submission [was] made (on or before 10 March 2015)”. In the event that the AAT’s objections were not made known and the certificate not produced before the date of filing of the outlines of submissions, Mr Grabovsky asked the Court to grant him the relief he sought in paragraph 27 of his outline of submissions.

8    After hearing what Mr Grabovsky had to say about these matters, I declined to make the orders he sought in his procedural application. I repeatedly invited him to address me on his application for extension of time but he refused to do so because (as he put it) the “environment [was] legally inappropriate” and persisted in arguing his procedural points. My reasons are accordingly based on his affidavit and his written submissions.

The proceeding below

9    The notice of appeal identified three “questions of law”:

1.    Hearing was lacking in its procedural fairness.

2.    Decision was arrived to without due consideration of the merits of the matter.

3.    Tribunal did not apply a statute relevant to the proceeding.

10    The primary judge noted that, despite the notice of appeal, in his written submissions in reply Mr Grabovsky put the questions of law on appeal in this way:

1.    That the decision of the Tribunal is otherwise contrary to law;

2.    that the decision of the Tribunal was not authorised by the enactment in pursuance of which it was purported to be made;

3.    that executing the Tribunal’s directions, the required procedures will not be observed.

11    From the passages extracted in the primary judge’s reasons, Mr Grabovsky’s argument appeared to be as follows:

    The decision of the AAT to remit the matter to the Secretary for further assessment and determination was contrary to the terms of the Social Security (Administration) Act 1999 (Cth) (“Assessment Act”);

    The Assessment Act lays down the procedure for determining eligibility for a disability support pension;

    The AAT can change the Secretary’s decision but not the procedure prescribed by the Act;

    Due to the separation of powers, the AAT does not have the power to change the legislation;

    Consequently, the decision of the AAT to remit the matter to the Secretary for further determination was not authorised by the enactment in pursuance of which it was purported to be made.

12    As the primary judge understood it, the thrust of Mr Grabovsky’s argument was that the Secretary is not authorised by statute to determine a person’s claim outside the 13 week period from the date on which the claim was first made and so it follows that the AAT erred in law when it remitted the matter to the Secretary for an impairment assessment well after 13 weeks had passed from the date on which the claim was first made.

13    The primary judge considered the argument to be misconceived.

14    His Honour observed that s 94(1) of the Social Security Act 1991 (Cth) sets out the relevant criteria that the Secretary must take into account when determining a claimant’s eligibility for a disability support pension. I interpolate that they include (a) that the claimant has a physical, intellectual or psychiatric impairment and (b) that the level of impairment is 20 points or more under the Impairment Tables. His Honour said that the first focus of the dispute concerned the relevant period in which a claimant must have that impairment. He said that the relevant period is from the date of lodgement of the claim and up to 13 weeks from that date, citing ss 41, 42 and cl 4(1) of Sch 2 to the Administration Act.

15    The second focus of the dispute concerned the operation of s 39(1) of the Administration Act, which provides:

Subject to subsection (3), if the Secretary does not make a determination regarding a claim within the period of 13 weeks after the day on which the claim was made, the Secretary is taken to have made, at the end of that period, a determination rejecting the claim.

16    The primary judge described s 39(1) as “a deemed disallowance provision”. He said it was self-evident that the purpose of the subsection is to give claimants redress in the event of unwarranted delay by the Secretary in the determination of a claim. If the period lapses before the Secretary has made a determination regarding a claim, the claimant is then entitled to internal review in accordance with Div 2 of Pt 4 of the Administration Act, at the election of the claimant, review of that decision by the SSAT under Div 3 of Pt 4 of that Act, and where the claimant is dissatisfied with the decision of the SSAT, review by the AAT under Div 5 of Pt 4 of the Administration Act.

17    His Honour considered Mr Grabovsky’s argument to be misconceived because s 39(1) of the Administration Act is not a limitation on the review procedure set out in these provisions. Pointing to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), his Honour held that the AAT clearly had the power to set aside the decision of the SSAT and remit the matter for “recommendation” (by which I understand him to have meant “redetermination”) by the Secretary in accordance with the AAT’s directions.

18    The primary judge dealt with two other submissions made by Mr Grabovsky during the course of oral argument.

19    The first was that the Secretary was not entitled to defend the proceeding because the appeal was from the AAT’s decision, not the Secretary’s. His Honour dismissed this submission, saying that, as the Commonwealth officer who made the original decision, affirmed by the SSAT, the Secretary was the proper party to defend the proceeding, both in the AAT and in this Court.

20    The second submission was that the AAT was prevented from deviating from the Administration Act by the separation of powers. His Honour observed that, “[a]t a high level of abstraction that may be correct, but it does not assist Mr Grabovsky in the present case given that the Tribunal did not err in law”.

The principles applying to an application for extension of time

21    A discretion to extend time is conferred on a court in order to “do justice between the parties”: Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30. The Court’s discretion to grant an extension of time to file a notice of appeal is very broad. There are no conditions upon its exercise contained in the Rules but, as with any power of the Court, the power to order whether or not an extension of time should be granted must be exercised in the way which best promotes the overarching purpose of its civil procedure provisions, namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: see Federal Court of Australia Act 1976 (Cth) (“FCA Act”), subs 37M(1) and (3). That purpose includes a number of objectives set out in s 37M(2) of the Act. As Mortimer J explained in Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [26]:

To extend time in an appeal which has no realistic prospects is to involve the court and the parties, and many public resources, in a process which is not quick, inexpensive or efficient. Unless there are strong countervailing circumstances, it is unlikely to facilitate the just resolution of a dispute to allow matter, not commenced within the time the law requires, to proceed to a full hearing on a claim that has no realistic prospects of success.

22    There are also a number of considerations developed by the case law which guide the exercise of any discretion to extend time to appeal or review a decision. They were summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. For present purposes it is sufficient to note the following:

(1)    The Court will not grant the application unless it is positively satisfied that it is fair and equitable to do so;

(2)    The applicant must offer an acceptable explanation of the delay;

(3)    Any prejudice to the respondent caused by the delay will militate against the grant of an extension, but absence of prejudice alone is not enough to justify it;

(4)    The merits of the substantive application are relevant.

23    On the question of the merits, it is inappropriate to carry out a detailed analysis, although an obvious weakness in the applicant’s case tells against the exercise of the discretion: see ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111] and the authorities referred to there.

The position of the respondents

24    The Secretary opposes the application, primarily on the ground that the proposed appeal is without merit but also because, as the Secretary put it, the delay is not trivial, the explanation for it unsatisfactory and it would be prejudicial to the proper administration of the social security law to allow the appeal to go ahead.

The length of, and explanation for, the delay

25    A notice of appeal must be filed within 21 days after the date the judgment was pronounced or the order was made: FCR 36.03

26    The delay here is 25 days. The judgment and orders were published on 24 October 2014. Time to appeal expired on 14 November 2014. The application for extension of time was not filed until 9 December 2014.

27    The explanation given by Mr Grabovsky in his affidavit is that:

    he was preparing an application for special leave to appeal to the High Court;

    he was asking for constitutional writs to be issued against “the officers of the Commonwealth and [the Federal Court]” and the jurisdiction to do so was exclusive to the High Court under s 38 of the Judiciary Act 1903 (Cth);

    he has lost trust in the fairness of this Court;

    his state of health was relevant (he did not say how or why); and

    he had to look after his wife who is on workers compensation and her health has deteriorated.

28    Mr Grabovsky said he presented himself to the High Court on 18 November 2014 with the documents he wished to file in that court’s registry but a deputy registrar of the court rejected his application, advising him that it was necessary to appeal to the Full Court of this Court first. Mr Grabovsky accepted the deputy registrar’s decision and then presented himself to the registry of this Court where he received advice as to what he should do, though he does not say what that advice was. He said that he was at that stage still “within the timeframe to lodge the appeal” (pointing to evidence that the judgment was not sent to him until 27 October 2014 and not received until 28 October 2014) but his documents had been prepared for the High Court and his state of health did not allow him to work any faster.

29    Annexed to the affidavit was a letter to the Chief Justice of this Court dated 6 October 2014 complaining about the primary judge’s conduct at a directions hearing on 10 September 2014 and urging the Chief Justice to interfere in the case to prevent the primary judge from hearing it and a further letter to the Chief Justice dated 18 October 2014 taking issue with the response to his earlier letter written on the Chief Justice’s behalf by a deputy registrar of the Court. Also annexed to the affidavit was a report from a clinical psychologist relating to his wife’s condition dated 17 July 2014. The psychologist, Tash Dakos states (without alteration):

Further to my last report my contact with Inna have continued with her mood and overall functioning probably worsening. She is unable to leave the house unattended and when she is accompanied she reported moments of disorientation and confusion. She is anxious about her health, unable to concentrate and still believes that she may be in danger from her ex employer. Her anger persists, as she remains fixated on legal retribution…

30    I have some trouble with Mr Grabovsky’s explanation for the delay.

31    First, Mr Grabovsky was mistaken when he said that he was still within the timeframe to lodge an appeal when he attended the Court on 18 November 2014. As I have already indicated, time expired four days earlier. Had he read the Rules he would have seen that time does not run from the date of receipt of judgment.

32    Secondly, Mr Grabovsky did not say what his state of health was at this time or how it or that of his wife interfered with his ability to file his documents within the time prescribed by the Rules. Nor did he explain what it was about his then state of health or his wife’s which delayed him filing his documents for another 21 days. The affidavit was affirmed on 26 November 2014 and the application is dated 8 December 2014 but the documents were not filed until 9 December 2014.

33    Thirdly, in any case, as the Secretary submitted, it is clear that neither his health nor that of his wife prevented him from doing the work necessary to enable him to file his documents within the prescribed time. That is because, on his own admission, he was doing “relevantly identical work” for the purpose of filing a special leave application in the High Court.

34    I do not therefore regard the explanation as altogether acceptable. Nevertheless, the delay causes no prejudice to the Secretary. The decisive question is whether there is any merit in the appeal, for it would not promote the overarching purpose of the civil procedure provisions of the FCA Act and Rules to grant an extension of time to file a notice of appeal if the appeal were doomed to fail.

The proposed grounds of appeal

35    The draft notice of appeal lists the following grounds (without alteration):

1.    A breach of the rules of natural justice occurred in connection with the making of the decision (actual and apprehended bias);

2.    The decision was induced and affected by the fraudulent conduct of the Federal Court Judge, preventing the course of justice;

3.    The Court made a wrong decision with respect to the question of law, namely:

    3.1    the decision is otherwise contrary to law (ss. 36, 37, 39 of Social Security (Administration) Act 1999 (Cth) and s. 94 of the Social Security Act 1991 (Cth) and Chapter III of the Constitution of Australia);

    3.2    the decision was not authorized by the enactment in pursuance of which it was purported to be made (ss. 36, 37, 39 Social Security (Administration) Act 1999 (Cth) and the Constitution of Australia);

    3.3    that executing the Court's judgement (Tribunal's directions), the required procedures will not be observed (ss. 36, 37, 39 of the Social Security (Administration) Act 1999 (Cth)).

4.    The Court arrived to its decision by misinterpreting and misrepresenting the Appellant's submissions (written and oral);

5.    The Court's decision overwrites the legislation (ss. 36, 37, 39 Social Security (Administration) Act 1999) violating Chapter III of the Constitution of Australia (Separation of Powers);

6.    The Court allowed the Secretary represent to act on behalf of the Administrative Appeals Tribunal that violates Chapter III of the Constitution of Australia (Separation of Powers) and questions independence of the arbitrating institutions;

7.    Abuse of the power and process: the Judge was arguing the case for the Tribunal and Secretary against the Appellant that constitutes actual bias;

8.    The Judge was knowingly participating in the breach of the Legal Profession Act 2004 (ss.345, 347, 349, 730A) committed by the Commonwealth Officer (the Secretary);

9.    The Judge was knowingly covering up for the corrupt conduct committed by a Commonwealth Officer (the Secretary).

10.    All the offences are apparent on the face of the record, and the applicant for the remedy is a person directly aggrieved by misconduct.

36    There is no reasonable prospect that any of these grounds will succeed.

The complaints about the conduct of the primary judge and the Secretary: Grounds 1, 2, 7, 8, 9 and 10

37    First, the allegations of actual bias, fraud, abuse of power, “offences” and corrupt conduct are very serious. Allegations of this kind must be “distinctly made and clearly proved’: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (“Jia”). The allegations contained in the draft notice of appeal are not supported by any evidence. No particulars are given. The assertions made by Mr Grabovsky in his affidavit are unsubstantiated. Jia was a case concerning an allegation of actual bias but the principle applies equally to allegations of criminal conduct and abuse of power.

38    In his affidavit Mr Grabovsky contended that the primary judge was arguing the case for the AAT and the Secretary and submitted that that constitutes actual bias. He did not produce a copy of the transcript of the proceeding. Actual bias requires “a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made”: Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 104 (French J). There is nothing of this kind evident here.

39    Without a transcript, it is difficult to understand the basis for Mr Grabovsky’s contention. Judges commonly put to parties (and where they are represented, to their legal representatives) propositions of fact or law which contradict the cases being put to the court. That is not because the judge has a predisposition one way or the other. In any case, as Gleeson CJ and Gummow J observed in Jia at [72], “[n]atural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion”. Judges need to ensure, as a matter of procedural fairness, that all parties have a reasonable opportunity to answer their opponents’ arguments. Judges also need to ensure that they will make the right decision and, to that end, often test propositions with the parties or their legal representatives during argument. Absent any evidence to even suggest that the primary judge was doing anything more than this, the allegation of actual bias must fail.

40    The reference to “apprehended bias” in the draft notice of appeal, repeated in the affidavit, appears to be gratuitous, as no submission was advanced to support such a conclusion. The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488. This requires two steps: first, identifying what it is said which might lead the judge to decide a case other than on its legal and factual merits and second, articulating the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [63] (“Nicholls”). In Nicholls at [63] Gummow ACJ, Hayne, Crennan and Bell JJ went on to say:

[T]he bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.

41    The other allegations of misconduct levelled against the primary judge are that his Honour:

    perpetrated some unidentified fraud;

    knowingly participated in a breach of the Legal Profession Act 2004 (NSW) by the Secretary; and

    knowingly covered up for the corrupt conduct of the Secretary.

42    These allegations are baseless. They appear to derive from Mr Grabovsky’s mistaken understanding of the relevant provisions of the Legal Profession Act.

43    The sections upon which he relied are ss 345, 347, 349 and 730A.

44    Section 345 provides:

345 Law practice not to act unless there are reasonable prospects of success

(1)    A law practice must not provide legal services on a claim or defence of a claim for damages unless a legal practitioner associate responsible for the provision of the services concerned reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.

(2)    A fact is provable only if the associate reasonably believes that the material then available to him or her provides a proper basis for alleging that fact.

(3)    This Division applies despite any obligation that a law practice or a legal practitioner associate of the practice may have to act in accordance with the instructions or wishes of the client.

(4)    A claim has reasonable prospects of success if there are reasonable prospects of damages being recovered on the claim. A defence has reasonable prospects of success if there are reasonable prospects of the defence defeating the claim or leading to a reduction in the damages recovered on the claim.

(5)    Provision of legal services in contravention of this section constitutes for the purposes of this Division the provision of legal services without reasonable prospects of success.

45    Section 347 is in the following terms:

347 Restrictions on commencing proceedings without reasonable prospects of success

(1)    The provision of legal services by a law practice without reasonable prospects of success does not constitute an offence but is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner associate of the practice who is responsible for the provision of the service or by a principal of the practice.

(2)    A law practice cannot file court documentation on a claim or defence of a claim for damages unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.

(3)    Court documentation on a claim or defence of a claim for damages, which has been lodged for filing, is not to be filed in a court or court registry unless accompanied by the certification required by this section. Rules of court may make provision for or with respect to the form of that certification.

(4)    In this section:

court documentation means:

(a)    an originating process (including for example, a statement of claim, summons or cross-claim), defence or further pleading, or

(b)    an amended originating process, defence or further pleading, or

(c)    a document amending an originating process, defence or further pleading, or

(d)    any other document of a kind prescribed by the regulations.

…

46    Clause 118 of the Legal Profession Regulation 2005 (NSW) prescribes the following documents for the purpose of s 347(4)(d):

(a)    a document initiating an appeal or cross-appeal,

(b)    an application for leave to appeal or cross-appeal,

(c)    a defence to an appeal or cross-appeal,

(d)    a document that amends a document of the kind referred to in paragraph (a), (b) or (c),

(e)    an amended document of the kind referred to in paragraph (a), (b) or (c).

47    There is no evidence to suggest that either respondent ever filed a document answering the description of any of the documents mentioned in cl 118.

48    Section 349 creates a rebuttable presumption that for the purposes of Div 10 of Pt 3.2 the Act legal services provided on a claim or defence were provided without reasonable prospects of success where the court hearing proceedings on a claim for damages finds that the facts established by the evidence before the court do not form a basis for a reasonable belief that the claim or the defence had reasonable prospects of success.

49    Section 730A imposes a duty on the Legal Services Commissioner and the Councils of the Law Society and the Bar to report suspected offences to law enforcement or prosecution authorities where they suspect on reasonable grounds, after investigation or otherwise, that a person has committed an offence against any Act or law.

50    None of these provisions can possibly apply in this case.

51    First, they apply to claims for damages and defences to those claims. The application in the AAT was an application to review a decision that Mr Grabovsky be refused a disability support pension. Mr Grabovsky argued that he had suffered damage because he was penalised in costs and denied a pension. Be that as it may, that does not make his application in the AAT or his appeal from the AAT’s decision a claim for damages. Mr Grabovsky’s application in the AAT was an application to review a decision of an administrative decision-maker. It was not a claim for damages. Neither was the appeal to this Court.

52    Mr Grabovsky pointed out that s 344 of the Legal Profession Act extends Div 10 of Pt 3.2 to appeals, regardless of whether the original claim was a claim for damages. I accept that s 344 extends to appeals, but I do not accept that it extends to all appeals. While s 344 does not expressly say so, properly construed and read in context and, having regard to the subject-matter, scope and purpose of Div 10 in which it appears, it applies only to appeals from civil claims for damages.

53    Secondly, there is no material to suggest that the Secretary (or the AAT for that matter) filed “court documentation” within the meaning of that term in s 347(4) so as to attract the obligation imposed by s 347(2).

54    Thirdly, the Legal Profession Act is concerned with the conduct of lawyers, not parties.

55    Fourthly, s 730A is irrelevant as s 347 makes it clear that the provision of legal services by a law practice without reasonable prospects of success does not constitute an offence.

56    Above all, even if Mr Grabovsky were correct and the lawyers did not comply with their obligations under the Legal Profession Act, that could not reveal error on the part of the primary judge’s decision to dismiss Mr Grabovsky’s appeal. It has nothing to do with that decision.

Alleged errors of law: Ground 3

57    The written submissions were silent on these questions and there is no reason to doubt the correctness of the primary judge’s conclusions. Section 43(1) of the AAT Act provides:

For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

(Emphasis added.)

58    Nothing in the social security law affects the power of the AAT, having set aside a decision under review, to remit the matter for reconsideration in accordance with any directions or recommendations it may make. As the Secretary submitted, the Administration Act does contain provisions which modify the operation of the AAT Act in relation to an AAT review of decisions of the SSAT. They appear in Pt 4 Div 5 Subdiv C. But they do not affect s 43(1).

Alleged errors in the interpretation and representation of the applicant’s submissions: Ground 4

59    Mr Grabovsky did not identify what, if any, errors the primary judge made in interpreting and representing his submissions.

The Constitutional questions: Grounds 5 and 6

60    The premise for the point sought to be made in ground 5 is not made out. The primary judge did not “override” ss 36, 37 and 39 of the Administration Act. He merely interpreted them in the course of resolving a dispute between the parties as to their meaning. That is quintessentially a function of a court under Ch III of the Constitution; it is the essence of judicial power.

61    Ground 6 is also without foundation. The Secretary did not represent the AAT. As I noted above, the AAT filed a submitting notice. That the Secretary sought to defend the AAT’s decision (despite having lost the hearing in the AAT) does not make the Secretary a representative of the AAT, any more than the Secretary’s appearance as a party to the present application does (as Mr Grabovsky contended in the application to remove him). Furthermore, the primary judge was correct to observe that, as the original decision-maker, the Secretary was a proper respondent. Indeed, for the reasons given by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36, it is generally inappropriate for the AAT to appear in court to defend its own decisions.

Conclusion

62    The explanation provided for the delay in prosecuting an appeal is not altogether acceptable. In any event, the proposed appeal is doomed to fail. In these circumstances, it would not be fair and equitable to grant Mr Grabovsky’s application. Nor would granting the application promote the overarching purpose of the civil practice and procedure provisions of the FCA Act and Rules. The application for an extension of time to file a notice of appeal should therefore be dismissed.

63    Costs should follow the event.

64    There will be orders accordingly.

Associate:

Dated:    20 March 2015