FEDERAL COURT OF AUSTRALIA

Luck v Secretary, Department of Human Services (No 4) [2016] FCA 950

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s Notice of Appeal dated 4 February 2010 be dismissed.

2.    On or before 24 August 2016, the Applicant file and serve any submission as to the costs of the appeal, including as to the costs of the Applicant’s interlocutory application of 23 October 2015.

3.    On or before 31 August 2016, the Respondents file and serve any replies to any submission made by the Applicant pursuant to Order 2.

4.    In the event that the Applicant does not file any submission pursuant to Order 2, the Applicant pay the Respondents’ costs of and incidental to the appeal, including of and incidental to the Applicant’s interlocutory application of 23 October 2015.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The procedural background to this matter is as I set it out at [1]–[2] of Luck v Secretary, Department of Human Services (No 3) [2016] FCA 100:

[1]    On 8 January 2010, the second respondent (AAT), constituted by the third respondent (Forgie DP), made a decision in relation to several requests by the applicant (Ms Luck), made pursuant to the Freedom of Information Act 1982 (Cth) for documents held by the first respondent (DoHS) (Luck v Department of Human Services [2010] AATA 6). Ms Luck appealed the AAT’s decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The appeal (VID65/2010) was allocated to Tracey J. On 30 July 2014, Tracey J dismissed an application by Ms Luck for a stay, and upheld the DoHS’s notice of objection to competency (Luck v Secretary, Department of Human Services (No 2) [2014] FCA 798). His Honour dismissed VID65/2010.

[2]    Ms Luck appealed. A Full Court of this Court (Collier, Griffiths and Mortimer JJ) allowed Ms Luck’s appeal in part (Luck v Secretary, Department of Human Services [2015] FCAFC 111), and ordered that her matter be remitted for the hearing of questions (o), (u) and (aa) in her notice of appeal filed on 4 February 2010.

2    It is appropriate to set out the questions remitted to me in full (formatting as in original):

(o)    Whether the Tribunal was required to give notice to the respondent under s 29, of the Administrative Appeals Tribunal Act 1975, as the decision maker of the decision that was the subject of the applicant’s valid application, to furnish to the applicant the documents pursuant to section 37 of that Act, upon lodgement and filing of the application documents and properly constituting the Tribunal?

(u)    Whether the Administrative Appeals Tribunal had jurisdiction to review the respondent’s decisions made and deemed made in response to the requests made by the applicant pursuant to section 15 and 25 of the Freedom of Information Act 1982 (Cth) on 20 January 2009, 9 February 2009, 16 February 2009, 10 March 2009 and 23 March 2009 and a formal request for an internal review made on 24 March 2009, as identified on the valid Application Form lodged with the Tribunal on 16 July 2009, and a decision as identified on the application form, as being made on or about 22 May 2009, and in respect of further and better particulars for clarification of the matter, provided by the applicant in correspondences to the AAT and the respondent on 4 September 2009, 18 September 2009, 21 October 2009, 22 October 2009, 23 October 2009, 16 November 2009, prior to the decisions made by the Deputy President and the Tribunal; those abovementioned requests were for access to the following documents at an Information Access Office at the nearest possible location to the Applicant’s home address – Documents as defined by Section 4 document (a–e) of Act caused to be published in accordance with Section 9(1)(a–d), (2), (3), (4), (5), (6), (7), (8) and (9) pertaining to the use of, or which are used by, Centrelink and the Department of Human Services and their officers in making decision or recommendations, under or for the purposes of the enactments the Social Security Law (including all legislation and amendments from 1998 to this date in 2009), Commonwealth Services Delivery Agency Act 1997 (Cth), Public Service Act 1999 (Cth), Public Order (Protection of Persons and Property) Act 1971 (Cth), Data-matching Program (Assistance and Tax) Act 1990, Higher Education Funding Act 1988 (Cth) (Additional Funding for Disabled Students Programme), the Disability Discrimination Act 1992 and the Disability Services Act 1986 (Cth), University of Southern Queensland Act 1998, Monash University Act 1958, Deakin University Act 1974 (Vic), Austudy and related schemes administered by Centrelink and Department of Human Services, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which the applicant is or may be entitled or subject – as per particulars provided on the completed and signed Administrative Appeals Tribunal Application for Review of Decision form and attached documents, filed by the Applicant by Facsimile on 16 July 2009 in the Victorian District Registry at Melbourne.

(aa)    Whether the applicant was subject to disability discrimination by the Tribunal and the Deputy President in relation to the refusal of the Deputy President to refuse the applicant’s rights to the grant of extensions of time and adjournments of hearings as reasonable adjustments in accordance with the provisions of the Disability Discrimination Act 1992 and the Articles of the United Nations Convention on the Rights of Persons with Disabilities, the Australian Human Rights Commission Act 1986, the Covenants and Treaties scheduled thereto, and the International Covenant on Civil and Political Rights?

Background

3    Ms Luck’s questions can be recast as grounds, as follows: first, the Administrative Appeals Tribunal (“AAT”) was wrong to deny that it had jurisdiction (ground u); second, the AAT was wrong to have failed to require the Department of Human Services (“DoHS”) to provide Ms Luck with the documents contemplated by s 37(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) (ground o); third, the AAT and the third respondent (“Forgie DP”) denied Ms Luck procedural fairness by refusing to grant her extensions of time and adjournments (ground aa).

4    Ms Luck relied upon affidavits sworn 9 February 2010 (with Exhibit GL02), 16 February 2016 (with Exhibit GL01), 22 February 2016 (with Exhibits GL02–GL04), and 2 March 2016 (with Exhibit GL05). There was also an affidavit sworn 7 March 2016 relating only to costs, which I will come to later. It should be noted that although Ms Luck’s 9 February 2010 affidavit referred to an Exhibit GL01, no such exhibit appears to have been filed with the affidavit. However, based on the description of the exhibit in Ms Luck’s affidavit—“[c]opy of Applicant’s Notice Letter To AAT of its Privacy Interference in Breach of Privacy Principles and Privacy Act 1988 (Cth) & Copies of Pages 9, 10, 31, 32 of Reasons for Decision of 8/01/10 with Obliterated Parts … .”—it does not seem to me that anything contained therein would be material to the issues raised by this appeal.

5    Before moving into the substance of the argument, I am compelled to some observations. This litigation started with Ms Luck’s application to the AAT dated 16 July 2009. More than seven years have since passed. Before the AAT, there was an application for a stay pending determination of an application to the High Court (Luck v Department of Human Services (2010) 51 AAR 265; AATA 6). On appeal to this Court, before Tracey J, Ms Luck made an application for recusal (Luck v Secretary, Department of Human Services [2014] FCA 344) and for a stay pending the removal of the proceeding to the High Court (Luck v Secretary, Department of Human Services (No 2) [2014] FCA 798). Before a Full Court, there was another application for a stay (Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75). On remittal to me it has involved applications for recusal and a stay (Luck [2016] FCA 100). Before the High Court, at least two of the removal applications have been heard and determined (Luck v Federal Court of Australia [2011] HCATrans 290; Luck v University of Southern Queensland [2015] HCATrans 125). The proceeding has involved the judgement of Tracey J from which Ms Luck appealed (Luck [2014] FCA 798), and the judgment on appeal (Luck v Secretary, Department of Human Services (2015) 233 FCR 494). It has now required this judgment.

6    What is striking about the matter is this, which Crennan J noted in the course of Luck [2011] HCATrans 290 at [744]–[750: “the matter carried forward into the Federal Court was a decision of the Administrative Appeals Tribunal refusing review of a decision by the Department of Human Services. The decision made by the Department of Human Services was to grant Ms Luck access to documents as requested by her under the Freedom of Information Act. In other words, the decision was in Ms Luck’s favour” (my emphasis). That is a reference to a decision of a Dr Rumble, to be discussed below, providing to Ms Luck a CD purportedly containing the documents she had requested.

7    Ms Luck does not see it this way. As she said in a letter dated 4 September 2009 to the AAT, “According to my own computer security protocol, I do not open any documents on my computer received from insecure sources and to receive a CD in the circumstances was inappropriate and unwanted, and as such I have no knowledge of its contents.” On one view, the proceeding has lurched along these seven years because Ms Luck was not prepared to insert a CD into her own computer, or (it appears) to insert it into another computer in, say, a public library, with a view to ascertaining whether it contained what she sought. Or, viewed from another perspective, it is because DoHS has not provided the documents on printed paper, or made them available for inspection in an office somewhere.

8    The matter is somewhat more complicated than that, as I explain below. But, at base, DoHS’s position is quite simple: it is prepared to give some documents—those that I call below the Section 9 Documents—to Ms Luck. Other documents—Centrelink policy and procedural documents—it says it does not have. It is difficult to imagine, given the closely-defined parameters of the dispute, that the parties could not have found a way through that did not involve such expenditure of public (not to mention private) resources. I speak from a position of imperfect knowledge, not knowing the efforts the parties have gone to away from the precincts of the Court. I must say, though, it seems to me likely that time, money, and effort could have been better spent. I have wondered—idly, perhaps—whether the circumstances of this proceeding were such that a permanent stay was warranted. I have wondered whether the documents that Ms Luck seeks are any longer of any relevance, seven years after she first sought them.

9    Those digressions aside, I move to the grounds. It is convenient to deal with ground (u) first.

Ground (u)

10    This ground complains of the AAT’s decision that it did not have jurisdiction to deal with Ms Luck’s purported application for review of a decision. To be precise, the AAT’s decision was, relevantly, as follows (Luck [2010] AATA 6 at pg 3):

The Tribunal decides that:

…

2.    it does not have jurisdiction to review:

(1)    a decision made by the respondent on 22 May 2009; or

(2)    any decisions that, but for the decision of 22 May 2009, might have been deemed to have been made as a result of the passage of time following requests made by the applicant on 20 January 2009, 9 February 2009, 16 February 2009, 10 March 2009 and 23 March 2009 … .

11    The AAT’s reasons for that decision are found at [65]–[82] of Luck (2010) 51 AAR 265, but can be summarised quite concisely. The AAT started by noting that it was a tribunal of limited statutory jurisdiction and that it was necessary for a source of jurisdiction to be found in legislation (at [67]). It referred to s 55 of the Freedom of Information Act 1982 (Cth) (“FOI Act”), which is one such source. It considered whether a decision made under the FOI Act in relation to documents made available pursuant to s 9 of the FOI Act could—notwithstanding the effect of s 12(1)(c) of the FOI Act—be the subject of an application for review in the AAT, and held that it could (at [71]–[76]). No challenge is made to that finding. At [78]–[79], the AAT held that the decision of which Ms Luck sought review by her application dated 16 July 2009 was the decision of Dr Rumble dated 22 May 2009, and (effectively) that Dr Rumble’s decision was a decision in relation to all of Ms Luck’s previous requests.

12    Having so concluded, the AAT inferred that Ms Luck’s complaint in relation to Dr Rumble’s decision was based on a view that it did not grant her access to documents in accordance with her request, even though it purported to do so. Accordingly, it was the kind of decision described in s 55(1)(ab) of the FOI Act, namely a decision purporting to grant access to all documents to which the request relates but not actually granting that access. The effect of s 55(2), said the AAT, was that application for merits review in the AAT could not be made unless internal review had first been sought (at [81]). As internal review had not been sought, the AAT did not have jurisdiction. Therefore it dismissed her application (at [82]).

13    In support of her argument that the AAT had erred, Ms Luck relied upon s 58 of the FOI Act and s 25 of the AAT Act. Relevantly, those sections provided, at the time of the AAT’s decision, as follows:

58    Powers of Tribunal

(1)    Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.

25    Tribunal may review certain decisions

Enactment may provide for applications for review of decisions

(1)    An enactment may provide that applications may be made to the Tribunal:

(a)    for review of decisions made in the exercise of powers conferred by that enactment; or

(b)    for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

(3)    Where an enactment makes provision in accordance with subsection (1), that enactment:

(a)    shall specify the person or persons to whose decisions the provision applies;

(b)    may be expressed to apply to all decisions of a person, or to a class of such decisions; and

(c)    may specify conditions subject to which applications may be made.

…

Tribunal’s power to review decisions

(4)    The Tribunal has power to review any decision in respect of which application is made to it under any enactment.

…

14    It is apparent from [45] of Ms Luck’s written submissions that she relies specifically on the power given to the AAT in s 58(1) of the FOI Act to “decide any matter in relation to [a] request” that could have been or could be decided by DoHS. Ms Luck continued by submitting that the matters raised under the heading “decision” in her application to the AAT (which is set out to the extent relevant at [56]–[59] below) were “matters in relation to the requests” that “could have been or could be decided” by DoHS at the time of making her application. Ms Luck submitted that, since the AAT had power to review any decision in respect of which application was made to it under an enactment, and since she had made requests under an enactment—i.e., the FOI Act—the matters that the AAT could decide, in accordance with s 58, extended to those requests outlined in the “decision” section of Ms Luck’s review application.

15    Ms Luck’s submissions fail to grapple with the AAT’s reasoning. They also fail to apprehend important limitations on the AAT’s jurisdiction. Ms Luck relies upon s 25(4) of the AAT Act, which empowers the AAT to review “any decision in respect of which application is made to it under any enactment”. But the final words, which I have italicised, are important: they recall subs (1) and (3), the effect of which is that application may only be made to the AAT where an enactment so provides. In other words, s 25(4) deals with power; s 25(1) and (3) with jurisdiction. The AAT is only able to deal with such decisions as are referred to it by an enabling enactment—here, the FOI Act.

16    Similarly, Ms Luck relies upon certain words in s 58(1) of the FOI Act, namely those stating that the AAT has the power to review any decision that could be, or could have been, made. But this overlooks the critical phrase early in the subsection, “in proceedings under this Part”. Section 58(1) pre-supposes the existence of validly-constituted AAT proceedings, and speaks to the scope of the AAT’s powers in such proceedings. It does not convert an application that is without the AAT’s jurisdiction into one that is within.

17    In short, relying on a selective reading of s 25(4) of the AAT Act, and s 58(1) of the FOI Act, Ms Luck’s submission seems to be that because a decision-maker could have made, or could make, a decision under the FOI Act relating to the documents that she sought, those sections provide that the AAT has power to review such a decision. Therefore any application made to the AAT in respect of such a decision is one made “under [an] enactment” for the purposes of s 25(4) of the AAT Act and is within the AAT’s jurisdiction. For reasons given in the previous two paragraphs, that selective reading leads into error.

18    The true position, as the AAT correctly held, is that its ability to review a decision is dependent upon it having been given that jurisdiction by statute, for example as by s 55 of the FOI Act: Federal Commissioner of Taxation v Administrative Appeals Tribunal (2011) 191 FCR 400 at [14] (Keane CJ and Gordon J). That s 55 of the FOI Act is the provision conferring jurisdiction is clear from a comparison of its words with those used in s 25(1) of the AAT Act. The former provides that an enactment may “provide that applications may be made to the Tribunal”. The latter provides that “an application may be made to the Administrative Appeals Tribunal” for review of decisions thereafter identified.

19    Ms Luck’s challenge to the AAT’s reasoning therefore fails. On one view, that is all that is necessary to say in relation to ground (u). However, in the interests of completeness, I have considered whether—in ways not strictly relied upon by Ms Luck—the AAT erred in concluding that it lacked jurisdiction.

20    The AAT’s approach, having reached the point of concluding that its jurisdiction was confined by statute, was effectively to ask itself the following question: what “decision” did Ms Luck seek to review? The answer to that question turns, it seems to me, on the application to the AAT and on s 29(1) of the AAT Act, which provides (relevantly) as follows:

29    Manner of applying for review

(1)    An application to the Tribunal for a review of a decision:

(a)    shall be in writing; and

(b)    may be made in accordance with the prescribed form; and

(c)    except if paragraph (ca) or (cb) applies—must contain a statement of the reasons for the application …

21    In broad terms, in order for the AAT to have the capacity to review a particular decision, at least the following two conditions must be met: first, the decision must be one in respect of which an enactment has provided that an application may be made to the AAT; and, second, the decision must be one in respect of which application has in fact been made to the AAT.

22    Attention, then, is properly directed to the issue of what Ms Luck’s application disclosed as being the decision, or decisions, of which she sought review. This seems to me to be an objective question. Clearly regard may be had to the materials that Ms Luck submitted with her original application. Where—as here—the AAT seeks clarification of what decisions were sought to be reviewed, it is correct to have regard to any responses. Further, where—as here—the AAT holds a hearing designed to inquire into its jurisdiction, it is correct to have regard to what was said in such a hearing.

23    In light of the documents placed before me by Ms Luck as exhibits to her affidavits, many of which were not before the AAT, it is evident that the AAT made certain errors of fact. I will set out the course taken by the AAT and explain why, even had it not made those errors, its finding as to jurisdiction must have been the same. I will continue by explaining why, in any event, the AAT was right to conclude that it did not have jurisdiction to entertain Ms Luck’s application. This will be demonstrated by identifying the decisions made by DoHS, asking which (if any) could have been reviewed by the AAT, and finally asking which of those (if any) were the subject of Ms Luck’s application.

24    It is convenient to first set out what decisions were made by DoHS. It is then relatively easy to identify which findings by the AAT were contrary to fact and why those errors do not matter. I will then address which decisions of DoHS were reviewable and which (if any) were in fact sought to be reviewed by Ms Luck.

What decisions were made by DoHS?

25    The starting point is Ms Luck’s letter of 20 January 2009, which I will now set out as far as is relevant (errors and formatting as in original):

1.    … I make a formal request for access by way of provision of a printed copy of all documents … pertaining to the use of, or which are used by, Centrelink and the Department of Human Services and their officers in making decisions or recommendations, under or for the purposes of the enactments the Social Security Law [various pieces of legislation were here listed], Austudy and related schemes administered by Centrelink and Department of Human Services, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which I am or may be entitled or subject, being:

(a)    manuals including (Reference Instruction “People Handbook”) and other documents containing interpretations, rules, guidelines, practices or precedents including, but without limiting the generality of the foregoing, precedents in the nature of letters of advice providing information to bodies or persons outside the Commonwealth administration;

(b)    documents containing particulars of such schemes, not being particulars contained in an enactment as published apart from the Act;

(c)    documents containing statements of the manner, or intended manner, of administration or enforcement of such an enactments or schemes; or

(d)    documents describing the procedures to be followed in investigating breaches or evasions or possible breaches or evasions of such an enactment or of the law relating to such a scheme;

I request that I initially be provided with access to printed copies of the indexes and/or lists of those documents which should be published for each Department of Centrelink and the Department of Human Services. I will subsequently make requests for the specific documents which have relevance to my personal affairs and other documents which I may require for my purposes. If indexes and/or lists of the documents defined by section 9(1)(a-d), (2), (3), (4), (5), (6), (7), (8) (Cth) and (9) are not available, I request access by way of printed copies of the documents themselves.

2.    In accordance with section 15 of the Act, I request access by way of copies of all Centrelink Policy and Procedural documents identifying the make and brand and specifications of all Centrelink’s Electronic Hardware and Software Information Technology including copies of all Centrelink’s electronically and physically stored Policy and Procedural documents relating to the payment of the Disability Support Pension payments, Pensioner Education Supplement payments and the Financial Supplement Loan payments for the period of 1998 to 2009 inclusive (including all copies of documents, electronically or physically stored which relate to Centrelink’s arrangements with banks (in particular the Commonwealth Bank, Westpac and Bank of Melbourne) for direct debits or credits).

…

26    That constitutes, and it was understood by Ms Kirby of DoHS (as was revealed by her letter of 29 January 2009) to constitute, two requests, being for the following:

1.    the list published pursuant to s 9 of the FOI Act by Centrelink and the Department”. You indicated that you would subsequently make requests for specific listed documents that have relevance to your personal affairs; and

2.    all Centrelink policy and procedural documents identifying the make, brand and specification of Centrelink’s information technology hardware and software, and a range of other documents held by Centrelink.

27    At the time, s 9 of the FOI Act required that copies of certain documents used by Departments be made available for inspection and purchase, and required the preparation and publication of lists of those documents. I will call lists prepared for the purposes of this section “Section 9 Lists”. They are the subject matter of point 1 within Ms Kirby’s 29 January letter. Ms Kirby said that the Section 9 Lists were available on Centrelink’s and DoHS’s website, but that she had attached them in any event, “outside the framework of the [FOI] Act”.

28    As to the subject matter of point 2 within the 29 January letter, Ms Kirby said that any such documents were more-closely connected with Centrelink and that she had commenced discussions with Centrelink with a view to transferring that aspect of Ms Luck’s request. Ultimately, Centrelink declined to accept a transfer: see Ms Kirby’s letter of 12 February 2009. Ms Kirby then indicated DoHS’s intention to process the request for such documents as were called for by point 2, which I will call the “Centrelink Documents”.

29    Taking stock, as at around 12 February 2009, Ms Luck had sought the Section 9 Lists and the Centrelink Documents. The Section 9 Lists had been provided (or DoHS purported to have provided them), by letter dated 29 January. Arguably, the provision “outside the framework of the [FOI] Act” constituted a refusal to provide them within the framework of the FOI Act, which might be a decision under s 55(1)(a) of the FOI Act. Or, if the lists provided were not those sought by Ms Luck, perhaps the decision was one under s 55(1)(aa) or (ab):

(aa)    a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or

(ab)    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; or …

30    In any case, as at 29 January 2009, Ms Luck’s request for the Section 9 Lists had been decided. Her request for the Centrelink Documents had not.

31    On 9 February 2009, Ms Luck took issue with the completeness or accuracy of the Section 9 Lists that she had been provided. It seems to me that her remedy for incomplete provision would have been internal review, but this was not utilised. She also requested access to inspect all documents on the DoHS and Centrelink Section 9 Lists, and previously-published lists, at an Information Access Office. Properly read, I think this constituted a new request: a request for the “Section 9 Documents”. That is consistent with Ms Luck’s 20 January letter, in which she indicated her intent to “subsequently make requests for the specific documents [in Section 9 Lists] which have relevance to [her] personal affairs … .”

32    There followed the 12 February letter, which I have already mentioned, a letter of 16 February from Ms Luck to Ms Kirby, a letter of 18 February from Ms Kirby to Ms Luck, and a letter of 10 March from Ms Luck to Ms Kirby. Relevantly, they deal with Ms Luck’s dissatisfaction with the lack of response to her request for the Section 9 Documents. They do not contain either fresh requests or decisions. I will explain later why, even if Ms Luck’s letters did constitute fresh requests, it would not change the outcome of this analysis.

33    On 11 March, Ms Kirby said that Section 9 Documents relating to Centrelink should be sought from Centrelink. In relation to DoHS’s Section 9 Documents, she said that Ms Luck should “advise [her] of the specific documents to which [Ms Luck] would like to gain access”, noting that some might be exempt from disclosure, or might be available only with deletions.

34    Pausing again to take stock, as at 11 March, there were two outstanding requests: the request for the Centrelink Documents, and the request for the Section 9 Documents. In relation to the Section 9 Documents, DoHS’s view appeared to be that the next step was to be taken by Ms Luck: she was to inform DoHS which of the Section 9 Documents on DoHS’s lists she wished to access. Probably she had already done so by her letter of 9 February, but not long after Ms Luck (again) informed DoHS that she wanted all documents on the Section 9 Lists, so nothing turns on the point. I will first set out what happened with the Centrelink Documents request.

35    On 18 March, Ms Kirby decided as follows in relation to the Centrelink Documents (formatting in original):

I refer to your freedom of information (‘FOI’) request of 20 January 2009 for documents not related to you (your first request) and held by the Department of Human Services (‘DHS’).

…

Decision

This decision is made under section 24A of the Freedom of Information Act 1982.

I am writing to advise you that DHS has been unable to locate the documents set out in your application. To the best of my knowledge the documents do not exist.

Your application for documents related to Centrelink policy and procedure was unable to be transferred to Centrelink. If you wish to access documents that may be held by Centrelink, please contact Centrelink directly.

36    On 24 March, Ms Luck sought review of that decision, by letter to Ms Helen Williams, “Principal Officer, Freedom of Information Decision Maker”. Ms Luck may not have understood that Ms Kirby’s 18 March decision related only to the Centrelink Documents, which is why she said (relevantly) as follows:

I wrote to Ms Kirby on 23 March 2009, prior to receiving the decision letter of 18 March 2009, in response to her letter to me of 11 March 2009 (copies attached), again seeking access to inspect all documents in the Section 9 Statement at an Information Access Office and understand the abovementioned decision letter to relate to the inability to locate the documents set out in my application of 20 January 2009. This seems to me to be ridiculous given that Section 9 Statements have been provided to me by the DHS for both Centrelink and DHS. At the very least it is ambiguous and misleading.

37    Whatever Ms Luck’s understanding may have been, however, it is clear from the correspondence that the 18 March decision did deal only with the Centrelink Documents. For instance, in Ms Kirby’s letter of 29 January, she indicated that she was dealing with the Section 9 Lists “outside the framework of the [FOI] Act”, but did not say that about the Centrelink Documents. Or, as another example, in Ms Kirby’s letter of 18 February, after addressing the Centrelink Documents, she said that she would separately address Ms Luck’s request for Section 9 Documents “as [that was] a matter separate from [her] current FOI requests”. And, of course, the context of the 18 March letter included that Ms Kirby had provided Section 9 Lists indicating that DoHS held certain documents, and had asked on 11 March which of those documents Ms Luck requested. It would be absurd for Ms Kirby to have said on 18 March, without receiving a reply to her 11 March letter, that “DHS [had] been unable to locate the documents” and that to the best of her knowledge they did not exist, unless she was not referring to the Section 9 Documents at all and was instead referring only to the Centrelink Documents.

38    Similarly, the decision on internal review from Ms Kirby’s 18 March decision was limited to the Centrelink Documents. The review decision was made on 23 April by Mr Jeff Popple, an Acting Deputy Secretary. He commenced by setting out that part of Ms Luck’s 20 January letter that requested the Centrelink Documents. He did not set out the part that related to the Section 9 Lists, nor did he refer to Ms Luck’s request for the Section 9 Documents. He decided as follows:

I confirm that the Department of Human Services has conducted a search of all areas of the Department that could be relevant to your request.

The Department has not located any documents relevant to your application. To the best of my knowledge the documents sought by you do not exist.

39    Left outstanding was the request for the Section 9 Documents. The last correspondence that I mentioned above was Ms Kirby’s letter of 11 March in which she asked Ms Luck to identify those documents on DoHS’s Section 9 List to which she sought access. Ms Luck replied on 23 March. She said that she sought access to “all documents, physical and electronic as listed in the Section 9 Statement which was provided to [Ms Luck] by [Ms Kirby] on 29 January 2009”. Again, and for reasons I will explain below, it does not matter whether this was an explanation of an earlier request for the Section 9 Documents, or a new request. I also should mention that this response of 23 March would appear to suggest that Ms Luck was not, contrary to what I have said above, confused by Ms Kirby’s 18 March decision, but that is because Ms Luck did not yet have the 18 March decision when she sent her 23 March letter (as she revealed in her 24 March letter).

40    Evidently in belated response to Ms Luck’s 23 March letter, on 22 May 2009, Dr Gary Rumble, General Counsel within DoHS, wrote to Ms Luck. His letter bore the heading, “Your request for copies of documents in the section 9 statement of the Department of Human Services”. His letter said, amongst other things, the following (formatting in original):

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 Freedom of Information Act 1982.

I have enclosed a CD containing the documents (in PDF format) that are listed in the statement that DHS has been able to locate. The details of these documents are set out in Attachment A.

41    Attachment A was a list of some 25 documents. In respect of three documents, exemptions were claimed under the Act. One document could not be located.

42    As with Ms Kirby’s decision in relation to the Section 9 Lists on 29 January, Dr Rumble’s decision might have been a decision to provide documents outside of the framework of the FOI Act. In that case, it might be characterised as a decision refusing to provide them within the framework of the FOI Act, being a decision under s 55(1)(a). Or, it might be a decision of the kind mentioned in s 55(1)(aa) or (ab). Or, it might properly be characterised as a decision providing to Ms Luck, within the framework of the FOI Act, the documents that she sought, albeit not in the form that she sought. On one view that does not fall within any of the categories of reviewable decision set out in s 55(1), even if it may constitute contravention of s 20(2) of the FOI Act. On another view, it constitutes “a decision refusing to grant access to a document in accordance with a request”, in the sense that if the request is for access in a particular way, provision of access in a different way constitutes refusal of access “in accordance with” the request. This is not necessary to decide.

43    As I have identified in the foregoing paragraphs, then, the answer to the question I pose in this subheading is that DoHS made the following decisions:

(1)    Ms Kirby’s decision of 29 January 2009, in response to Ms Luck’s request for the Section 9 Lists, which is a decision under one of s 55(1)(a), (aa), or (ab);

(2)    Ms Kirby’s decision of 18 March 2009, in response to Ms Luck’s request for the Centrelink Documents;

(3)    Mr Popple’s decision of 23 April 2009, on internal review from Ms Kirby’s 18 March decision;

(4)    Dr Rumble’s decision of 22 May 2009, in response to Ms Luck’s request for the Section 9 Documents, which is either a decision under s 55(1)(a), (aa), or (ab), or is not reviewable at all.

44    Any deemed decisions, for reasons that I will explain in the coming paragraphs, became irrelevant upon the making of the decisions listed above.

Errors of fact in the AAT’s decision and why they do not matter

45    As I explain below at [59]–[65] in particular, the AAT had before it Ms Luck’s 16 July application along with her letters of 20 January, 9 February, 16 February, 10 March, 23 March, and 24 March 2009. It had before it Dr Rumble’s decision of 22 May 2009. It had Ms Kirby’s decision of 18 March (albeit that this was not provided with Ms Luck’s original application). It was clearly cognisant of Dr Rumble’s decision and of Ms Luck’s allegation that certain deemed refusals had occurred. It considered whether any of those decisions were reviewable.

46    At [79], however, the AAT said that “[i]t may be that [DoHS] would have been deemed to have made decisions on [Ms Luck’s] various requests and on various dates before 22 May 2009 for there is no record of [DoHS’s] having made any decisions before Dr Rumble wrote his letter”.

47    That was not right. The AAT had before it Ms Kirby’s decision of 18 March 2009. Even if it had somehow overlooked that letter by reason of it having not been provided with Ms Luck’s original application, it had, with that initial application, Ms Luck’s internal review request of 24 March 2009, which necessarily implies that there had been an earlier decision, in respect of which internal review was by that letter being sought.

48    The true position is that there had been a decision, that there had been internal review thereof, and that Mr Popple had made a decision on internal review on 23 April 2009. Had the AAT reached that point, the question would have become whether Ms Luck sought review of Mr Popple’s decision. The correct view, as I explain at [55]–[78], is that she did not. For that reason, the AAT’s factual errors were immaterial.

What decisions (if any) could have been reviewed by the AAT?

49    Decision (1) set out at [43] above would require internal review before the AAT would be available (s 55(2) of the FOI Act). So, too, decisions (2) and (4), both of which were first-instance decisions (as it were). The only reviewable decision of the four—i.e., the only decision on internal review—is Mr Popple’s (c.f. ss 24A, 55(1)(a)).

50    Before moving on, I mentioned above that the analysis would not be different if Ms Luck’s various letters each constituted a separate request. It might have mattered, as Ms Luck seemed to argue, for this reason: deemed refusals of requests are taken to have been made by the principal officer of the agency or the Minister (s 56(1) of the FOI Act) so that the deemed decision is directly reviewable by the AAT without internal review (c.f. ss 54(1), 55(2)). But, in my opinion, the scheme of the FOI Act is that a deemed decision is no longer reviewable once an actual decision is made, and the actual decision becomes reviewable instead. That is apparent from ss 56(1)(c), which I will set out:

56    Application to Tribunal where decision delayed

(1)    Subject to this section, where:

(a)    a request has been made to an agency or Minister in accordance with section 15; and

(b)    the period of 30 days, in relation to the request, mentioned in paragraph 15(5)(b), or that period as extended under subsection 15(6), has expired since the day on which the request was received by or on behalf of the agency or Minister; and

(c)    notice of a decision on the request has not been received by the applicant;

the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 55, be deemed to have made, on the last day of that period, a decision refusing to grant access to the document.

51    Section 56(1) is susceptible to two interpretations. The first is that, if at any time the three conditions in (a)–(c) are fulfilled, there is a deemed refusal which obtains thereafter even if a decision is ultimately made. The second is that application to the AAT is open only if, and for as long as, the three conditions in (a)–(c) remain satisfied. If a decision is made prior to application to the AAT, so that condition (c) is no longer satisfied, one’s right to review the deemed refusal in the AAT is replaced with a right of internal review of the actual decision.

52    I was not taken to any authority on this point, but in my opinion the second interpretation is the right one. The contrary view would lead to absurdities including an ability to commence review in the AAT for a deemed refusal when the actual decision made was to grant access. Further, that interpretation is consistent with the statement in s 56(1) that the deeming of a refusal is “for the purpose of enabling an application to be made”, which purpose is fulfilled, rendering the deeming provision unnecessary, after an actual decision has been made.

53    Accordingly, even if from time to time there were deemed refusals of any separate requests made in Ms Luck’s various letters, they all ceased to be reviewable in the AAT as deemed refusals when actual decisions were made. And, here, actual decisions were in each case made—being the four decisions I set out above—and were made prior to Ms Luck’s application to the AAT..

54    Thus, in my judgment, the only decision that the AAT had capacity to review was the decision of Mr Popple dated 23 April 2009.

Which (if any) of the decisions that the AAT could have reviewed were the subject of Ms Luck’s application?

55    This question can be modified slightly, in light of the conclusion I reached in the previous section. The question becomes whether Ms Luck’s application of 16 July was “[a]n application … for a review of [Mr Popple’s] decision” (c.f. s 29 of the AAT Act), whether alone or with other decisions. The answer is no: there is nothing in the application, or in the material that Ms Luck later provided to the AAT, that suggested that she sought review of Mr Popple’s decision.

56    On 16 July 2009, Ms Luck lodged her application. A covering letter included the following:

Attached to my application, please find copies of my written requests for access and internal review to the respondent, dated 20 January 2009 (mistakenly typed “2008” on letter), 9 and 16 February 2009, 10, 23 and 24 March 2009 (9 pages).

I also attach a letter of decision from the respondent dated 22 May 2009 and attachment (3 pages).

57    Ms Luck’s application described the decision of which Ms Luck sought review thus:

The decision of Department of Human Services to refuse the applicant access, following formal requests under sections 15 and 25 of the Freedom of Information Act 1982 (Cth) on 20 January 2009, 9 February 2009, 16 February 2009, 10 March 2009 and 23 March 2009 and a formal request for internal review on 24 March 2009, to inspect the following documents at an Information Access Office at the nearest possible location to my home address: Documents as defined in Section 4 document (a–e) of Act caused to be published in accordance with Section 9(1)(a–d), (2), (3), (4), (5), (6), (7), (8) and (9) pertaining to the use of, or which are used by, Centrelink and the Department of Human Services and their officers in making decisions or recommendations, under or for the purposes of the enactments in the Social Security Law (including all legislation and amendments from 1998 to this date in 2009), Commonwealth Services Delivery Agency Act 1997 (Cth), Public Service Act 1999 (Cth), Public Order (Protection of Persons and Property) Act 1971 (Cth), Data-matching Program (Assistance and Tax) Act 1990, Higher Education Funding Act 1988 (Cth) (Additional Funding for Disabled Students Programme), the Disability Discrimination Act 1992 (Cth) and the Disability Services Act 1986 (Cth), University of Southern Queensland Act 1998, Monash University Act 1958, Deakin University Act 1974, Austudy and related schemes administered by Centrelink and Department of Human Services, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which the applicant is or may be entitled or subject.

The decision of Department of Human Services to refuse the applicant access, following formal requests under sections 15 and 25 of the Freedom of Information Act 1982 (Cth) on 20 January 2009, 9 February 2009, 16 February 2009, 10 March 2009 and 23 March 2009 and a formal request for internal review on 24 March 2009, to the “Information and Communication Technology Security Policy”, the “Records Management 2006–7: Discussion Points for Action Officer’s Desks”, the “Protective Security Policies and Procedures” and the “Fraud Control Plan: DHS Core – Interim Plan”.

58    In the box labelled, “Date the decision was made”, Ms Luck entered “[o]n or about 22 May 2009”. In the box labelled “Who made the decision, if known”, Ms Luck entered “Dr Gary A Rumble, General Counsel, Office of the General Counsel, Department of Human Services”.

59    Attached to the application were Ms Luck’s letters to DoHS of 20 January, 9 February, 16 February, 10 March, and 23 March, her letter of 24 March seeking internal review, and Dr Rumble’s letter of 22 May 2009. None of Ms Kirby’s letters were attached. In particular, Ms Kirby’s letter of 18 March was not attached, nor was Mr Popple’s of 23 April.

60    On 23 July 2009, the AAT wrote to Ms Luck saying that her application had been received, that the AAT would tell DoHS that it had received the application, and that within the next 35 days Ms Luck would receive a bundle of documents pursuant to s 37 of the AAT Act. Matter number V2009/3331 was allocated.

61    Section 37(1) is set out at [89] below, but in short it provides that a person who has made a decision that is the subject of an application for review by the AAT must, within 28 days after receiving notice of the application (or such further period as the AAT allows), lodge a statement of findings of fact including reference to evidence and giving reasons for the decision, and lodge all documents in the decision-maker’s possession or control that are relevant to the AAT’s review.

62    Also on 23 July 2009, the AAT wrote to DoHS advising it of Ms Luck’s application, attaching the same, and saying that DoHS was required to lodge with the AAT two copies of “every other document or part of a document that is in your possession or under your control and is relevant to the review of the decision by the Tribunal”, to do so within 28 days, and to give copies of those documents to each other party to the proceeding.

63    On 21 August 2009, DoHS’s lawyers wrote to the AAT, copying Ms Luck. DoHS noted that Ms Luck’s reference in her application to a decision of 22 May 2009 appeared to refer to Dr Rumble’s letter of that date, by which he sent to Ms Luck a CD of documents. DoHS said that the letter did not constitute a decision capable of being reviewed. Rather, it was a letter “forwarding the applicant documents previously sought by her”. It did not fall, DoHS said, into any of the categories in s 55(1) of the FOI Act, did not purport to be a review of any earlier decision, and did not include any notification of Ms Luck’s appeal rights. DoHS said that even if Dr Rumble’s letter did constitute a “decision”, s 55(2) would require internal review of that decision prior to seeking merits review in the AAT. Accordingly, DoHS questioned the AAT’s jurisdiction to review the decision.

64    Ms Luck wrote to the AAT, in response, on 4 September 2009. Her letter of that date stated as follows:

1.    I have sought, on 16 July 2009 to make application under section 55(1) of the Freedom of Information Act 1982 (FOIA), for a review of the decisions in accordance with section 25(5) of the AATA and pursuant to section 56(1) of the FOIA deemed to have been made on 19 February 2009 to refuse me access to the documents sought and requested under section 15 of the FOIA, firstly on 20 January 2009, followed by numerous other decisions subsequently deemed to be made on 11 March 2009, 18 March 2009, 9 April 2009 and 22 April 2009, pursuant to section 56(1) of the Freedom of Information Act 1982 (FOIA) in response to my formal requests for access on 9 February 2009, 16 February 2009, 10 March 2009 and 23 March 2009.

2.    I have sought to make application on 16 July 2009 under section 55(3) of the FOIA for a review of the decision in accordance with section 25(3) of the AATA and deemed made on 21 April 2009 pursuant to section 55(3) of the FOIA to refuse an internal review requested on 24 March 2009 and subsequently access to the documents sought in my request under section 15 of the FOIA, firstly on 20 January 2009 followed by numerous other requests made in accordance with section 15 of the FOIA on 9 February 2009, 16 February 2009, 10 March 2009 and 23 March 2009.

3.    I attach in support of my application in paragraph two above, a copy of a decision letter from the decision maker, Susan Kirby, General Counsel (A/g) of the Department of Human Services dated 18 March 2009. Due to the ambiguity and lack of information provided in the abovementioned decision letter, I have also applied for a review of all the deemed decisions for requests made in the first instance.

4.    I believe that the appropriate details are now provided for my applications for reviews in respect of the decisions deemed made, and as my application has been made in accordance with both the Administrative Appeals Tribunal Act and the Freedom of Information Act, I do not expect to be denied access to the respondent’s section 37 statement, which is crucial to progress this matter any further and certainly it is imperative for me to be provided with such before any hearing. It is quite clear that I am not seeking a review of the decision of 22 May 2009 by Dr Gary Rumble and therefore there is no question that my application is for review of decisions made in accordance with the FOIA and as such the AAT has jurisdiction to review them. I do not expect to be forced to attend any preliminary hearings or jurisdictional hearings, but to have this matter progressed in accordance with the process for proper applications made pursuant to the provisions of AATA.

5.    I sought access by way of inspection of documents in a certain form at an Information Access Office of the respondent and my request was ignored, as were my numerous requests for access to documents of the agency. According to my own computer security protocol, I do not open any documents on my computer received from insecure sources and to receive a CD in the circumstances was inappropriate and unwanted, and as such I have no knowledge of its contents.

65    Attached was Ms Kirby’s 18 March decision. For reasons that are not clear, Ms Luck referred in paragraph 2 to a deemed refusal of her request for internal review of 24 March. Long before 4 September 2009 she had an actual decision on internal review, in the form of Mr Popple’s decision. Mr Popple’s decision was not attached, nor was it mentioned.

66    By reply letter dated 16 September 2009, DoHS said (in broad terms) that Ms Luck’s statement in paragraph 4 of her letter of 4 September that she was not seeking review of Dr Rumble’s decision was difficult to reconcile with statements made in her original application, and that the various other decisions or deemed decisions to which Ms Luck referred in her 4 September letter were not mentioned in her original application. DoHS concluded by requesting, in light of the uncertainty as to what decision Ms Luck sought to review, that the matter be set down before the AAT to determine that question and whether the AAT had jurisdiction.

67    Ms Luck sent a further letter to the AAT on 18 September 2009 which, relevantly, said as follows:

1.    My application of 16 July 2009, for review of decisions by the respondent, may not have clearly identified the decisions made, however, it was clear that requests (evidence of those requests was provided with application) were made for access to documents in accordance with section 15 of the Freedom of Information Act 1982.

2.    The dates upon which those requests were made were identified, and as I had not had responses to those requests and I had not been granted access, it was necessary for me to make the appropriate calculations to identify the deemed decisions, which I have now done at your request (I assume pursuant to subsection 42A(4)(b)) of the AAT Act and I have subsequently shown within a reasonable time, that the decisions are reviewable.

3.    I believe I have sufficiently clarified my application, and as I have not heard to the contrary from you, I now expect the normal processes in respect of reviews of decisions, to progress in accordance with the provisions of the AAT Act.

4.    As I have not been notified of any further period allowed by the Tribunal for the lodgement by the respondent of the section 37 documents, and I have not been provided with them in accordance with that provision, I do not accept that its request for a hearing to determine the reviewable decisions, is anything more than an obfuscation of the facts surrounding the evidentiary documents in this matter.

5.    Section 39 of the AAT Act provides that the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. For this reason, a hearing of any part of this matter would only be legitimate, if the respondent provides the Tribunal and I with the section 37 documents before any hearing is had … . So I request that the Tribunal order the respondent to comply with the AAT Act.

Due to my obligations involving my studies and my disabilities, I am unable to appear at hearings on Wednesdays or before 10.15am on any day and I would prefer, due to beginning the latter part of my third year studies, prior to assessment, to have any hearings in respect of this matter later than the middle of October 2009, not including 21 and 30 October 2009, as I have other obligations on those days.

68    As recorded at [7] of Luck (2010) 51 AAR 265, the AAT decided to hold a hearing to determine whether it had jurisdiction to review decisions described by Ms Luck as having been made under the FOI Act. By letter dated 24 September 2009, Ms Luck requested written reasons for that decision: Luck v Department of Human Services (2009) 50 AAR 403 at [1]. The AAT delivered those reasons on 19 October 2009: Luck (2009) 50 AAR 403. It suffices presently to quote from [45] of the AAT’s reasons for decision:

This is a case in which I am not clear as to the decision Ms Luck seeks to have reviewed. As I said earlier, she attached a copy of a letter from Dr Rumble to her application to the Tribunal. Her letter in response to the letter sent on behalf of the Deputy Registrar referred to decisions that she said were deemed to have been made. Despite Ms Luck’s attempt to assist me, I am still confused as to the decision or decisions of which she seeks review. My lack of clarity is not, in my view, a proper ground on which to exercise the discretion given by s 42A(4) to dismiss her application because she has, in my view, “… been unable to show that … the decision is … reviewable.” The better course is, in my view, to hold a hearing so that I can ask Ms Luck and the Department’s representative for information and submissions that may help me to identify with some precision the decision or decisions of which she seeks review. I will then be able to have regard to that information in deciding whether or not there is a decision that is reviewable by the Tribunal. This is my reason for deciding to hold that hearing.

69    By letter dated 21 October 2009, Ms Luck sought that the AAT stay or adjourn the matter pending disposition of M85 of 2009 in the High Court of Australia, to which the AAT, the President, the Principal Registrar, the presiding member in V2009/3331, and the District Registrar of the AAT were respondents. By letter also dated 21 October, DoHS indicated that it opposed Ms Luck’s request for stay or adjournment.

70    As I outlined in Luck [2016] FCA 100 at [22]–[23], the AAT declined to adjourn its hearing of the jurisdictional question, the hearing went ahead on 23 October 2009, and Ms Luck did not appear. The hearing was not long, and DoHS’s submissions did not travel much beyond what it had already said in its 21 August letter, if at all. Ms Luck complains in this proceeding that DoHS’s submissions to the AAT were false or misleading. That is not raised by any of the appeal grounds before me, and in any event it suffices to say that a wrong answer to the AAT in the context of such a hearing could not transform an application that was outside of the AAT’s jurisdiction into one that was within its jurisdiction.

71    The transcript of hearing was sent to Ms Luck by letter dated 2 November 2009. Ms Luck replied by letter dated 16 November 2009. She submitted, inter alia, that it was wrong for the AAT to have conducted the hearing and that it should adjourn any further consideration of the matter including the issue of its jurisdiction. The letter does not refer, expressly or impliedly, to Mr Popple’s decision. Instead, and somewhat oddly, Ms Luck said as follows:

… provision of a copy of the respondent’s letter containing the first decision denying my access to documents because the documents did not exist [i.e., Ms Kirby’s 18 March decision], and for which I sought an internal review in my letter to the respondent of 24 March 2009 (copy plus fax transmission receipt attached) was sufficient to determine that my application was valid and that the Tribunal had jurisdiction to review the decision. …

72    That would seem to have been an obvious time to mention that a decision on internal review had in fact been received, but Ms Luck made no such mention. DoHS replied by letter of 17 November 2009. It is not necessary to say anything about that letter.

73    The AAT declined to adjourn further consideration, and went on to determine the question of its jurisdiction (Luck (2010) 51 AAR 265). Its decision also contains consideration and rejection of Ms Luck's submission that it ought to stay or adjourn its determination of the matter for reasons including Ms Luck's medical conditions.

74    There was nothing in Ms Luck’s original application to indicate that she sought review of Mr Popple’s decision. There was nothing in any subsequent correspondence as between Ms Luck and the AAT, or as between DoHS and the AAT, or in the hearing of 23 October 2009, that would have indicated to the AAT that it was Mr Popple’s decision of which review was sought. Indeed, even before this Court Ms Luck’s case was not predicated upon a finding that it was Mr Popple’s decision of which she sought review. In her notice of appeal, under the heading dealing with the findings of fact that Ms Luck asked this Court to make, Ms Luck sought this finding:

That the decision of 22 May 2009 [i.e., Mr Rumble’s decision], the subject of [Ms Luck’s] valid application … was a ‘decision’ that had been taken under the [FOI Act] and one for which the [FOI Act] conferred jurisdiction on the [AAT], and that decision had been taken under the enactment conferring jurisdiction, and the said criteria for consideration of the question of the [AAT’s] jurisdiction was immediately evident upon the face of [Ms Luck’s] application and the attached decision documents at the time of [Ms Luck’s] lodging of those documents with the [AAT].

75    And, Ms Luck’s prayer for relief (c) sought leave to amend Ms Luck’s application to the AAT consistently with her letters of 4 September, 18 September, and 16 November 2009. None of those letters, as I have set out above, mentioned Mr Popple’s decision.

76    Before me, Mr Popple’s letter was the subject of very little oral argument. DoHS took me to that letter, stated (correctly, in my view) that it was susceptible to review in the AAT, but submitted (again, correctly) that it had not been put before the AAT by Ms Luck. Ms Luck’s rejoinder was that Mr Popple’s letter should have been filed in the AAT by DoHS as part of the s 37(1)(b) documents. Nothing more of substance was said about the letter.

77    The argument that DoHS should have filed Mr Popple’s letter as part of the s 37(1)(b) documents is circular. An obligation to file s 37(1)(b) documents only arises if the AAT has jurisdiction. And, provision of documents including Mr Popple’s letter cannot have made a difference to “the decision” of which Ms Luck sought review, as revealed by her application and subsequent correspondence with the AAT. The question is one of interpretation of the application and, in the present case, documents lodged therewith and explanations given thereafter. In my opinion, it is not possible to conclude that review was therein sought of Mr Popple’s decision, which is nowhere mentioned.

78    In my view, the only available finding is that Ms Luck did not seek to review Mr Popple’s decision. That was the only decision in respect of which application could properly have been made to the AAT under s 55 of the FOI Act. The AAT’s conclusion that it lacked jurisdiction was right. Ground (u) must be rejected.

Other matters

79    Ms Luck referred to s 29AB of the AAT Act. That section did not exist at the relevant time: it was inserted by the Tribunals Amalgamation Act 2015 (Cth). However, at the relevant time there was a s 29(1B), which provided thus:

(1B)    If:

(a)    an application contains a statement under paragraph (1)(c); and

(b)    the Tribunal is of the opinion that the statement is not sufficient to enable the Tribunal to readily identify the respects in which the applicant believes that the decision is not the correct or preferable decision;

the Tribunal may, by notice given to the applicant, request the applicant to amend the statement, within the period specified in the notice, so that the statement is sufficient to enable the Tribunal to readily identify the respects in which the applicant believes that the decision is not the correct or preferable decision.

80    It is clear from the explanatory materials relating to the Tribunals Amalgamation Act that s 29AB was formerly s 29(1B) and had just been moved and simplified: “[n]o change to existing policy [was] intended” (explanatory memorandum, Tribunals Amalgamation Bill 2014 (Cth), [385]). I will treat Ms Luck’s submission as referring to s 29(1B) instead of s 29AB.

81    Ms Luck’s submission appeared to be that if the AAT was confused as to what decision she sought to review it should have requested an amended statement. The submission should be rejected. First, the AAT’s failure (if any) to use the s 29(1B) procedure is not the subject of a ground of appeal. Second, if I accepted that this argument was bound up in the broader jurisdictional ground, s 29(1)(c) requires a statement of the reasons for the application, and s 29(1B) allows the AAT to seek clarification where it cannot readily identify why the applicant believes “the decision” is not the correct and preferable one; that does not describe the AAT’s difficulty in this case. Third, in any event the AAT did seek clarification from Ms Luck, and none of that clarification identified Mr Popple’s decision as being the one that Ms Luck sought to review.

Conclusion

82    I have taken the above approach for the avoidance of doubt. It would be sufficient to dispose of Ms Luck’s ground (u) to note that her arguments as to the ambit of s 58 of the FOI Act and s 25 of the AAT Act were erroneous and to leave the matter there.

83    Examination of Ms Luck’s application also yields the conclusion that the AAT did not have jurisdiction. Ms Luck’s application referred to the decision of Dr Rumble and to deemed refusals of various requests. The decision of Dr Rumble was not reviewable, as internal review had not been sought. It also swept up all of the deemed refusals to which Ms Luck referred, with the exception of any deemed refusal of Ms Luck’s application for internal review, by her letter dated 24 March 2009. However, reliance on a deemed refusal in relation to that letter would be factually wrong: there had been an actual decision, namely Mr Popple’s. For reasons given above, properly read, Ms Luck’s application did not seek review of Mr Popple’s decision.

84    Even before me, Ms Luck did not seek to establish the proposition that Mr Popple’s decision was the subject of her application to the AAT. There is no doubt that she was aware of it: it was Exhibit GL03 to her affidavit sworn 22 February 2016. But, the findings of fact sought in her notice of appeal included a finding that Dr Rumble’s decision was reviewable and her prayers for relief were predicated on findings that Dr Rumble’s decision, or alternatively deemed refusals, were reviewable. There was no reference to Mr Popple’s decision.

85    In oral submissions before me, DoHS expressly acknowledged the reviewability of Mr Popple’s decision. It was said that it “would have been open to Ms Luck to challenge [that decision] in the [AAT], because we know – because it’s in evidence before this court – that there was a decision made following the internal review application”. DoHS further expressly conceded that the AAT was wrong to have held that there was no record of DoHS having taken a decision prior to Dr Rumble’s letter of 22 May 2009. However, notwithstanding that reference and concession, Ms Luck did not seek to make anything of the AAT’s factual error, nor did she seek to rely upon DoHS’s acknowledgement of reviewability of Mr Popple’s decision by seeking to amend her notice of appeal or, for that matter, by submitting that she had sought review of that decision. No part of Ms Luck’s case involved reliance upon the decision of Mr Popple.

86    Again it would be possible to stop there, but for the sake of completeness I have undertaken an analysis, on the basis of all of the documents available to me and taking those materials at their highest, of whether there were any decisions made by DoHS that were reviewable and of which Ms Luck sought review. The answer is that there were no decisions meeting both of those criteria.

87    For the reasons given above, ground (u) fails. For reasons that I shall separately give in relation to grounds (o) and (aa), that is, in my judgment, fatal to Ms Luck’s appeal.

Ground (o)

88    Question (o) was as follows:

Whether the Tribunal was required to give notice to the respondent under s 29 … as the decision maker of the decision that was the subject of the applicant’s valid application, to furnish to the applicant the documents pursuant to section 37 of that Act, upon lodgement and filing of the application documents and properly constituting the Tribunal?

89    At the relevant time, s 37 of AAT Act provided, relevantly, as follows:

37    Lodging of material documents with Tribunal

…

Decision-maker must lodge statement of reasons and relevant documents

(1)    Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:

(a)    a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

(b)    every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.

…

90    I think that Ms Luck’s reference to s 29 must have been to subs (11), which was in these terms:

Decision-maker to be notified of application for review

(11)    The Registrar, a District Registrar or a Deputy Registrar shall cause notice in writing of an application for a review of a decision, in accordance with the prescribed form, to be given to the person who made the decision.

91    Section 29 seems to me to be irrelevant. It is s 37 of the AAT Act that requires lodgement of the s 37(1)(b) documents, not any direction from the AAT. Ms Luck’s complaint must be that the AAT was not entitled to have permitted DoHS to delay compliance with or ignore its requirement to lodge the s 37(1)(b) documents. I propose to treat the ground as raising that issue. Ms Luck’s primary argument was, it seems to me, that since the AAT had jurisdiction to deal with her dispute, it was therefore wrong in failing to require DoHS to lodge the s 37(1)(b) documents. I have rejected the premise of that argument, namely that the AAT had jurisdiction, so it is not necessary to go further.

92    The relief that Ms Luck sought in relation to s 37 of the AAT Act was as follows (from her Notice of Appeal):

f.    A declaration that the respondent was and is obliged to comply with the provisions of subsection 37(1) of the [AAT Act] … .

g.    That the respondents be directed to file and serve, pursuant to section 37 of the [AAT Act], documents in the possession of or under the respondent’s control and relevant to the review of a decision … and a statement setting out findings on material questions of fact … and with those documents should be included the detailed schedules of documents claimed by the respondent to be those to which access has previously been granted … .

93    Having held that the AAT does not have jurisdiction to deal with Ms Luck’s application, I would not make the declaration sought in prayer (f). Similarly, and for the same reason, I would not make the order sought in prayer (g): to do so would be wholly inutile.

94    In fairness to Ms Luck, however, her submissions seemed to also involve a slightly different case, namely that pending a determination by the AAT as to whether it had jurisdiction or not, DoHS was required to lodge the s 37 documents, and that the AAT was wrong to have failed to require it to do so.

95    However, it seems to me that, in light of my conclusion in respect of ground (u), whether the argument is right is irrelevant. The AAT ultimately held that Ms Luck’s application was for review of a decision in respect of which the AAT did not have jurisdiction, and I have found that it was right to have so held.

96    Moreover, while Ms Luck has relied heavily upon the non-provision of the s 37(1)(b) documents, she has not explained how the provision of those documents would have made a difference. Ms Luck put before me, in the form of exhibits to her various affidavits, the documents that she says should have been provided under s 37. She makes no complaint that the documents now available to her (and before me) are in any way insufficient for her to mount her jurisdiction argument. In order to show that provision of the s 37 documents would have made a difference to the outcome before the AAT, I would have expected Ms Luck to have identified which documents, had they been before the AAT, might have led to a different outcome. She identifies no such documents.

97    It seems to me that even if I am wrong in holding that the AAT lacked jurisdiction, still it remains that the answer to this question does not matter. The relief on appeal from my judgment, if I am held to have been wrong on ground (u), would presumably include that the matter should be remitted to the AAT, whereupon the s 37(1)(b) documents would be provided.

98    However, in case there is something that turns upon resolution of this ground separately from resolution of the jurisdiction ground, I will indicate that I take the view that the AAT was entitled to do what it did, albeit probably not for the reasons that it gave. The time within which DoHS was required to lodge the s 37(1)(b) documents was “within 28 days after receiving notice of the application (or within such further period as the Tribunal allows)” (emphasis added). The AAT was empowered to permit later lodgement of the s 37(1)(b) documents, and I can think of no reason in principle why the AAT could not allow lodgement of the documents at a time after a date scheduled for a hearing in relation to its jurisdiction.

99    But the AAT’s letter to Ms Luck dated 22 September 2009 did not quite say that. Rather, it said that “[u]ntil it is established to the Tribunal’s satisfaction that your application is AAT reviewable, section 37(1) is not satisfied, and there is no obligation for the Respondent to provide section 37 documents prior to this interlocutory hearing”. And in Luck (2010) 51 AAR 265 at [85]–[86], the AAT said as follows (emphasis added):

[85]    As it turns out, notice was given to the Department of Ms Luck’s application. It was given in a letter dated 23 July 2009. In a letter received on 21 August 2009, the solicitors for the Department queried the Tribunal’s jurisdiction and the Deputy Registrar asked Ms Luck why she thought the Tribunal had power to review the decision. That is to say, she put into train the procedure under ss 42A(4) that may lead to a decision dismissing the application if Ms Luck were unable to show that the decision is reviewable. Once the Tribunal’s jurisdiction was called into question, so too was the obligation imposed by s 37(1). As I have said, the obligation only arises if the application seeks review of a decision that is in fact reviewable. That this is so is confirmed by the fact that it requires production of documents in the decision-maker’s possession or control that are “relevant to the review of the decision by the Tribunal”. Section 37(1)(b) does not refer to documents that are relevant to determining whether or not the Tribunal had the power to review the decision at all.

[86]    Perhaps it would have been better to have made a formal order extending the time within which the Department had to comply with the obligation, if any, under s 37(1) to a date after the resolution of the jurisdictional issue and after, if it should prove to be the case, the Tribunal decided that it had jurisdiction. That would have clarified the situation. Whether there was a formal order or not, the Department was not under an obligation to comply with s 37(1) once the Deputy Registrar had taken steps under s 42A(4) to call into question the Tribunal’s jurisdiction and so the very existence of an application for review that would otherwise give rise to the obligation under s 37(1). In the absence of an obligation imposed upon the Department to provide documents, Ms Luck did not have a corresponding entitlement to be given them.

100    Respectfully, I do not think that was the right analysis. In my view, the AAT either has, or does not have, jurisdiction. The existence of jurisdiction is not conditioned upon the AAT’s satisfaction as to jurisdiction. If Ms Luck’s application was within the jurisdiction of the AAT, it was within the AAT’s jurisdiction from the moment that it was lodged, not from the moment that the AAT became satisfied of its jurisdiction. And, it would not cease to be within the AAT’s jurisdiction because the AAT determined to investigate its jurisdiction or to consider utilisation of its power under s 42A(4) of the AAT Act. Nor is there anything in the words of the AAT Act causing me to think that, upon the AAT determining to so investigate or consider, s 37 enters a form of suspension or stasis pending resolution.

101    Where there is a question as to jurisdiction, which cannot be or is not resolved within the s 37(1) time period (absent extension), a respondent has various options. It can request that the AAT allow a further period for the lodgement of the s 37(1)(b) documents, which further period ends at some time after the AAT proposes to determine the question of jurisdiction. In an appropriate case, the AAT may allow that further period. The respondent may in any event do what would be required for compliance with s 37, in case the AAT ultimately holds that it does have jurisdiction (as occurred in Director-General of Social Services v Chaney (1980) 31 ALR 571). That means, of course, that if the AAT holds to the contrary the respondent will have done something that it had no legal obligation to do. Or, it may choose not to do what would be required by s 37, on the hypothesis that it will be vindicated because the AAT lacks jurisdiction. If the holding is to the contrary then it will have failed to comply with a statutory obligation. Prudence, one thinks, would ordinarily dictate the first or the second option.

102    As described above, here DoHS said that it questioned the AAT’s jurisdiction to review the decision, and that in the circumstances it would refrain from filing a s 37 statement pending the outcome of the jurisdictional issue. It seemed to be of a view that questioning jurisdiction deferred any s 37 obligations. That would be a wrong view of the law, but I cannot think that it mattered in practical terms, for two reasons.

103    The first is that DoHS was ultimately vindicated. The AAT held that it did not have jurisdiction, and I have agreed. That has the effect that the s 37 obligation never applied. DoHS was not wrong in declining to do something it was not required to do, and the AAT was not wrong in failing to compel DoHS in those circumstances. The second is that what the AAT did was in practical terms the same as granting an extension of time under s 37(1), as it is empowered to do. The AAT allowed DoHS to delay filing the s 37(1)(b) documents to a time after the AAT proposed to determine whether it had jurisdiction. If the AAT had utilised the s 37(1) extension power, as [86] of its reasons indicates it would have been minded to do had it been thought necessary, the outcome would have been the same.

104    Ms Luck also made submissions to the effect that, had she been provided with s 37 documents, she would have been able to demonstrate to the AAT that it had jurisdiction. For example, she said this:

[Forgie DP] had not given me the [s 37] documents … which were mandatory documents. And that was the basis of everything. If they had given me those documents, your Honour, I would have been happy to go through a jurisdictional hearing. I would have been happy to point to the documents that you’ve received in GL01 and GL04 and GL02 and 3 and 5, and I would have been able to show them at the time exactly what was going on. And that would have been the only way that the tribunal could have actually dealt with the case.

105    There are a few answers to that. First, all of those documents were before me and I have nevertheless held that the AAT did not have jurisdiction. Second, and relatedly, in light of what I have held in relation to the AAT’s jurisdiction, such a submission would be unpersuasive in that it would amount to saying that the AAT might have been persuaded to erroneously exceed its jurisdiction. Third, I do not think it was necessary in this case for Ms Luck to have had the s 37(1)(b) documents in order to satisfy the AAT that it had jurisdiction.

106    All that was necessary to do was to point to a decision in relation to a request, and to the provision of a statute that rendered such a decision susceptible to review. All requests in this case were made by Ms Luck in writing, and were in her possession. All decisions were either made in writing (and presumably were in Ms Luck’s possession) or were deemed to have been made with the effluxion of time, in which case that could have been said. If—and there was no evidence to this effect—Ms Luck had misplaced some of the correspondence, her application for review could have said something along the lines that a decision was made in a letter of or about a particular date which was no longer in her possession, in which case its provision by DoHS would doubtless have been a simple thing.

107    Specifically, I have held above that the only reviewable decision was Mr Popple’s, and there was no evidence nor did Ms Luck submit that she did not have access to that decision when she made her application to the AAT. She did not make any reference to it in her original application of 16 July 2009. She did not seek to rely upon it before me, even after DoHS acknowledged its reviewability. There is no basis for thinking that Ms Luck relies or relied upon Mr Popple’s decision as being a decision of which she sought review. That was the only decision that the AAT could have reviewed. The lodgement of the s 37(1)(b) documents could not have changed either of the conclusions stated in the previous two sentences, and so the fact of their non-lodgement made no difference to the result.

108    Accordingly, in my judgment the correct conclusion is that the AAT’s decision to, in effect, allow more time to lodge the s 37(1)(b) documents was permitted by the terms of s 37(1). Even if its reasons were wrong, the outcome was legally defensible. And, any error was of no moment for reasons I have given above.

Ground (aa)

109    I will set out question (aa) again, for ease of reference:

Whether the applicant was subject to disability discrimination by the Tribunal and the Deputy President in relation to the refusal of the Deputy President to refuse the applicant’s rights to the grant of extensions of time and adjournments of hearings as reasonable adjustments in accordance with the provisions of [certain acts and instruments].

110    In respect of this ground, the Full Court in Luck (2015) 233 FCR 494 said at [50]–[51] and [56] as follows (Collier, Griffiths and Mortimer JJ):

[50]    Question of law “aa”, to which ground 2 refers, is an example of a question which might well have needed further refinement by way of case management, although again in our opinion its import was plain enough. It was a complaint about denial of procedural fairness. A question whether a person was denied procedural fairness by the Tribunal, subject to being expressed with sufficient precision in terms of the nature of the denial, will raise a question of law: Haritos at [202].

[51]    With question “aa”, Ms Luck was indicating that the denial of procedural fairness of which she complained was constituted by a failure on the Tribunal’s part to give her “reasonable adjustments” for her disabilities so as to ensure she had a fair hearing and reasonable opportunity to present her case. Again, much might be said at trial as to why that question should not be answered favourably to Ms Luck, as the first respondent submitted. To say that simply emphasises this is not a question of the existence of jurisdiction under s 44, but rather how ultimately that jurisdiction might be exercised, which is a matter for trial.

…

[56]    … In particular, Ms Luck’s complaints about how the Tribunal denied her procedural fairness by not making sufficient accommodation for her disabilities will involve a consideration of the evidence about how the Tribunal conducted the preparation of the review up to and including the decisions it made. Those kinds of matters should be considered under s 44 against a proper evidentiary base.

111    Respectfully, the Full Court was clearly correct to say that, if it were necessary to determine whether Ms Luck had been denied procedural fairness by the AAT, such determination would involve consideration of the evidence. However, for the reasons that follow, I am not persuaded that it is in fact necessary to determine this question.

It is not necessary to decide this question

112    Concisely stated, unless the AAT actually has jurisdiction to deal with Ms Luck’s application—and, in my judgment, it does not—there is no utility in any of the relief sought by Ms Luck in her notice of appeal. Even if the AAT did act in a procedurally-unfair manner, it would not have made a difference to the outcome: a procedurally fair hearing would necessarily have resulted in the same conclusion.

113    Ms Luck might say that had she been given a procedurally-fair hearing she might have persuaded the AAT that it did have jurisdiction, or that it should deal with jurisdiction and merits in the same hearing (as she evidently desired). As I said above, however, that would amount to saying that the AAT might have been persuaded to erroneously exceed its jurisdiction, or to adopt a different path (i.e., hearing argument in relation to the merits at the same time as in relation to jurisdiction) to arriving at the same conclusion of a lack of jurisdiction. In the second place, and relatedly, this strikes me as being the kind of circumstance contemplated by Mason J in Twist v the Council of the Municipality of Randwick (1976) 136 CLR 106 at 116:

Further, the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have “cured” a defect in natural justice or fairness which occurred at first instance.

114    Or, perhaps more exactly, it is the kind of circumstance considered by the High Court (Mason, Wilson, Brennan, Deane and Dawson JJ) in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145:

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

As Allsop J (with whom Mansfield J agreed) observed in Knauder v Moore (2002) 127 FCR 327 at [58], with reference to Stead, the question whether a denial of procedural fairness is “cured” by an appeal is “closely analogous to the consideration as to whether compliance with the rules of natural justice would have or could have made no difference to the decision in question”.

115    In this case, there is basis for saying both that any procedural unfairness has been “cured”, and that it would be futile to remit the case to the AAT. Not only was the question of whether there was procedural unfairness before me, so too was the substantive question that the AAT determined at the end of the (allegedly) procedurally-unfair hearing, i.e., whether it had jurisdiction. Before me, Ms Luck had the opportunity to argue that the AAT erred in denying jurisdiction. She relied upon affidavits with exhibited documents, which I have described above. I had all of the documents that were before the AAT, all of the correspondence passing between the AAT and Ms Luck and between the AAT and DoHS, all of the correspondence passing between DoHS and Ms Luck (even if that correspondence was not also before the AAT), the transcript of the hearing before the AAT, and some internal records of the AAT. Ms Luck lodged written submissions dated 22 February 2016, a chronology dated 19 February 2016, reply submissions dated 29 February 2016, and an additional chronology dated 29 February 2016. She appeared at the hearing of 2 March 2016 and made oral submissions in chief and in reply.

116    It seems to me that, before me, Ms Luck has had every opportunity to argue the proposition that the AAT had jurisdiction to hear her application, on the basis of all the material that she wished to put before me including all the material that was before the AAT and, I gather from the descriptions to the exhibits on her affidavits, all of the material that was not before the AAT but that Ms Luck says should have been.

117    On the basis of all of that material, and after full hearing, I am persuaded that the only decision that the AAT could have reviewed which is disclosed by the material—the decision of Mr Popple—is not the subject of Ms Luck’s application to the AAT. It seems to me that, even if I were to hold that the AAT’s proceeding was procedurally unfair, any such unfairness has been “cured” by Ms Luck having had the ability to fully argue the question on appeal before me. And, it seems to me that remittal would be futile: another hearing before the AAT, this time a procedurally-fair one (assuming for the sake of argument that the last hearing was not that), could not change that the AAT does not have jurisdiction to hear Ms Luck’s application for review of decision. So, this is a case where a procedurally-fair hearing could make no difference to the outcome (c.f. Stead; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; and Knauder). In those circumstances, it is not necessary that I decide the procedural fairness issue.

What if it were necessary to decide the issue?

118    If it were necessary to decide this issue, I would have determined it against Ms Luck. The starting point is that I accept DoHS’s submissions as to the inapplicability of the Disability Discrimination Act 1992 (Cth).

119    DoHS’s first point was that, although Ms Luck complained both of the AAT’s refusal to stay its proceeding pending resolution of Ms Luck’s application in the High Court, and of its refusal to stay or adjourn its proceeding due to Ms Luck’s medical conditions, only the second goes to procedural fairness so as to be captured by ground (aa). I would accept that submission and will not consider further the issue of the stay pending removal.

120    DoHS continued with reference to Luck v University of Southern Queensland (2014) 145 ALD 1, in which the Court (Murphy, Pagone and Perry JJ) held (at [40]–[43]) as follows:

[40]    Ms Luck contends that in dealing with her application for an adjournment the primary judge was performing an executive function in responding (or not responding) to her request for “reasonable adjustments” under the DD Act, and that this gave rise to a breach of the separation of powers, and therefore a reasonable apprehension of bias on the part of the primary judge.

[41]    We do not accept this contention. At least in the performance of judicial functions, judicial officers are not subject to the DD Act and any claim of discrimination would be precluded by the principle of judicial immunity: Fingleton v R (2005) 227 CLR 166; 216 ALR 474; [2005] HCA 34 at [36]–[39] per Gleeson CJ citing Sirros v Moore [1975] QB 118 at 132; [1974] 3 All ER 776 at 781 per Lord Denning MR; Yeldham v Rajski (1989) 18 NSWLR 48. In our view a complaint in respect of actions taken or not taken in the exercise of a jurisdiction conferred on a Ch III judge cannot found an action under the DD Act.

[42]    Ms Luck though maintains that she is not asserting a discrimination claim against the learned primary judge. Rather, Ms Luck seems to contend that in considering her application for “reasonable adjustments” under the DD Act, his Honour improperly exercised executive power and breached the doctrine of separation of powers. Ms Luck contends that an administrative officer within the court, such as the court’s chief executive officer or his delegate, should have instead considered the adjournment application.

[43]    We do not agree. His Honour’s decision to refuse the adjournment was made in dealing with the interlocutory application filed on 30 October 2014. In dealing with that application his Honour was exercising judicial power in granting or refusing the adjournment of a matter before the court. His Honour was not exercising executive power.

121    DoHS then referred to s 60(1) of the AAT Act, which provides as follows:

Members

(1)    A member has, in the performance of his or her duties as a member, the same protection and immunity as a Justice of the High Court.

122    The submission was that, if the conduct in this case about which Ms Luck complained was the same as that considered in Luck (2014) 145 ALD 1—and, said DoHS, it was—then, by operation of s 60 of the AAT Act, the conclusion must be the same.

123    I do not see how I could resist that submission. I think it is clear that, in deciding as she did to proceed to determine the AAT’s jurisdiction notwithstanding Ms Luck’s requests for a stay or an adjournment, Forgie DP was “in the performance of … her duties as a member”. In that case, by operation of s 60, it seems to me that she was not bound by the Disability Discrimination Act 1992 (Cth), in the same way as a judge would not be in similar circumstances. DoHS went on to submit that that Act therefore does not inform the procedural fairness analysis, which is a submission that I think I am bound to accept.

124    In that case, the question is simply whether Ms Luck was afforded procedural fairness. I adopt what was said recently by Tracey J in McAuley v Defence Honours and Awards Appeals Tribunal [2016] FCA 719 at [29]:

Procedural fairness is intended to ensure that those who may be adversely affected by administrative decisions are not prejudiced by “practical injustice”: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 (Gleeson CJ). The guiding principle is one of fairness: see VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at 566 (Allsop J, with whom Gyles and Conti JJ agreed on this point).

125    There is no doubt that central to the AAT’s duty to afford procedural fairness was an obligation to give Ms Luck a reasonable opportunity to present her case: s 39 of the AAT Act; Sullivan v Department of Transport (1978) 20 ALR 323 at 342 (Deane J, with whom Fisher J agreed). On the evidence before me, I would not have been persuaded that a failure to discharge that obligation has been established.

126    Before the AAT determined to hold a hearing into jurisdiction, Ms Luck informed it by her letter of 4 September 2009 that she was unable to appear at hearings on Wednesdays or before 10:15 am, and that she would prefer any hearings to be later than mid-October 2009.

127    In the same letter and in response to the challenge to the AAT’s jurisdiction, Ms Luck sought to explain what decision she sought to review. She said that there was “therefore … no question that [her] application [was] for review of decisions made in accordance with the [FOI Act] and as such the AAT [had] jurisdiction to review them”. She “[did] not expect to be forced to attend any preliminary hearings or jurisdictional hearings”, but instead she expected “to have this matter progressed in accordance with the process for proper applications”.

128    Notwithstanding Ms Luck’s somewhat peremptory tone, if the AAT had questions about its jurisdiction—and clearly it did—it was unequivocally entitled to convene a hearing in relation thereto. It was also entitled to accede to DoHS’s request that the s 37 documents not be lodged before that hearing. It determined to list a hearing for 23 October 2009, cognisant of Ms Luck’s earlier requests as to the timing of any hearings: Luck (2010) 51 AAR 265 at [60]–[62]. It advised Ms Luck of that decision by letter of 22 September 2009.

129    As the AAT observed, Ms Luck’s response was not to take issue with the date or time, but instead to request reasons under s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Those reasons were published on 19 October 2009. It seems from Ms Luck’s letter of 22 October that she did not receive them until 21 October. Earlier on 21 October, Ms Luck had filed an application in the High Court seeking to have the matter removed to that Court. The same day, 21 October 2009, she applied to the AAT, by letter, for “a stay or an adjournment … particularly of the hearing listed for 23 October 2009 … until such time as the High Court of Australia has disposed of the matter … .” No mention was made of medical reasons for that adjournment.

130    The next day, 22 October 2009, Ms Luck wrote again. In that letter, she applied for an adjournment on the basis of ill health, saying as follows:

Due to the ongoing abuses I have been subjected to by the AAT … I am traumatised by the very thought of appearing at such an unfair hearing, as that which is listed for 23 October 2009 … . I am unable to cope with the process of subjecting myself to any further trauma that might arise from appearing on Friday and therefore I am informing you that I will not be able to appear on the basis of my ill health.

131    The day after, another letter was sent saying, effectively, that Ms Luck had not received replies to her 21 and 22 October letters, that she did not know whether the hearing had been vacated or not, and requesting that if it had not been vacated she be provided with a copy of the transcript. The hearing had not been vacated. A transcript was sent to Ms Luck, who was invited to make submissions as to the matters raised therein and did.

132    Were it necessary to decide the issue, I would hold that Ms Luck had been given a fair opportunity to present an argument as to the issue of jurisdiction, that being the only relevant question. Of course, she did not have an opportunity to present a case as to the merits of the application, but that is a consequence of a finding of a lack of jurisdiction and does not constitute a procedural unfairness. Ms Luck made written representations as to the AAT’s jurisdiction, in the form of letters dated 4 and 18 September 2009. She made further submissions, by letter of 16 November and having been invited to do so, in response to DoHS’s position put at the hearing of 23 October. That seems to me to have constituted, in the circumstances, a reasonable opportunity to put her jurisdictional case.

133    Moreover, it was of course open to Ms Luck to appear at the 23 October hearing. Ms Luck’s application for vacation of that hearing was ultimately for reasons of ill health, but that application came at the eleventh hour and after various other attempts, which were not health related, to avoid a jurisdictional hearing. The AAT was prepared to accept that Ms Luck suffered from medical conditions. But, it rightly concluded that such conditions did not permit Ms Luck to dictate the course of proceedings, and decided that it ought to proceed with the hearing, having weighed up all relevant considerations including fairness to the other party and its own duty. It determined, in the course of the hearing on 23 October, that it would send transcript to Ms Luck so that she could make written submissions. In my judgment, the course adopted by the AAT was appropriate and gave rise to no practical injustice.

134    The AAT appeared to entertain some doubt that ill health was the true reason for Ms Luck’s failure to appear. It referred to Ms Luck’s evident ability to commence a proceeding in the High Court at a time when she said she was unable to progress her AAT matter. To that I might add that the material before me showed that at around the same time—on 25 September 2009—Ms Luck sought to commence a proceeding in this Court attacking the AAT’s decision to list the matter for a jurisdictional hearing. However, the AAT made no findings in that respect, and neither will I do so. It suffices for me to say that the evidence appears to show that Ms Luck had strong, perhaps intractable, views about how the litigation ought to proceed, that she was not prepared to admit of departure therefrom, and that there would appear to be some basis for thinking that it was those views, and not ill health, that led to Ms Luck not appearing on 23 October 2009. Indeed, Ms Luck made a submission to me that sounded dangerously like a concession to that effect (emphasis added):

And [Forgie DP] had not given me the [s 37 documents] which were mandatory documents. And that was at the basis of everything. If they had given me those documents, your Honour, I would have been happy to go through a jurisdictional hearing.

135    I understand that Ms Luck would say in response that it was precisely the absence of s 37 documents that, in her view, rendered the jurisdictional hearing unfair and it was the thought of that unfairness that caused her trauma. But this reveals the quandary faced by the AAT: what is it to do when it is told that, unless it exercises its powers only in ways with which an applicant agrees, the applicant will refuse to take any further part in proceedings? In my view its only real option is to decide matters in accordance with its duty and, if that has the consequence that a party refuses to attend hearings, to do its best to provide a reasonable opportunity to that party in any event. That is just what the AAT here did.

136    Further, assuming that the AAT had jurisdiction, it seems to me that it was nevertheless open to the AAT to delay the filing of the s 37(1)(b) documents until after it had determined its jurisdiction, and there is nothing before me to suggest that a practical injustice resulted. There was nothing in the documents that might have changed the resolution of the jurisdictional question and that was not otherwise available to Ms Luck.

137    Thus, were it necessary to have decided the issue of procedural fairness, I would have decided it against Ms Luck.

Other matters

138    There were a few matters that were raised in the course of hearing that I should mention.

Oral applications for stay and recusal

139    On a few occasions during the course of hearing, Ms Luck made oral applications for a stay of the hearing pending applications in the High Court of Australia, and for me to recuse myself on the basis of apprehended bias. Those applications were the same as were raised by Ms Luck’s interlocutory application, which I dealt with in Luck [2016] FCA 100. I dismissed the applications ex tempore for the same reasons as I gave in that judgment.

Issues purportedly going to jurisdiction

140    Ms Luck raised various issues purportedly as going to the AAT’s jurisdiction (and therefore as falling within question (u)), but which do not in fact fall within that question. For example, Ms Luck alleged that the AAT was wrong to have failed to stay an application before it, pending the determination of Ms Luck’s application to the High Court for removal of the cause. I asked how that was raised by the three grounds that were before me, and was told that “[it] comes with the jurisdiction issue”.

141    Ms Luck also complained that the AAT failed to give adequate reasons. Again I asked how that was contemplated by the three grounds, and again I was told that it was “part of jurisdiction”. Ms Luck also alleged that DoHS (or its solicitors) had deliberately misled the AAT, and that such an allegation was relevant to the AAT’s jurisdiction. Similar justifications were given in other cases.

142    It suffices to say in relation to all such arguments that they do not address the question whether the AAT had jurisdiction; they address whether the AAT acted within its jurisdiction, which presupposes the existence of such jurisdiction. This was put fairly directly by Ms Luck: she said, “[t]he AAT and [Forgie DP] … decided that the AAT did not have jurisdiction to review the decisions and that [DoHS] was not obliged to provide documents … and were then liable to the issue of a prerogative writ, the determination of which … should have been left to the High Court … . These decisions were in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised”. But the issue raised by ground (u) is whether the AAT had jurisdiction in law in the first place, not whether it exercised it in a purported or a real way.

Conclusion

143    For those reasons, I would dismiss Ms Luck’s notice of appeal dated 4 February 2010.

144    There was an outstanding issue relating to the costs of Ms Luck’s interlocutory application of 23 October 2015, which application was dealt with in Luck [2016] FCA 100. My orders on that occasion provided for the parties to file written submissions in relation to the costs of the application and provided that, if there were no such submissions, costs would follow the event. Ms Luck’s submission was that the costs of that application should be reserved pending the resolution of her substantive appeal, “as it would be premature until [she had] seen the judgment and the reasons for judgment in the substantive matter”. It is apparent that I have acceded to that submission.

145    I am not aware of any reason why costs ought not follow the event, both in relation to the substantive appeal and the interlocutory application. Nevertheless, I will permit Ms Luck to lodge submissions on the question of those costs if she is so inclined. There will be provision for a reply by any respondents—noting that Forgie DP and the AAT entered submitting appearances save as to costs. Failing any submission by Ms Luck, costs will follow the event in relation to both the interlocutory application and the substantive appeal. Should any submissions be made I will consider them and make an order as to costs in due course.

Associate:

Dated:    15 August 2016