Applicant 0108 v Secretary, Department of Social Services [2017] FCA 535

FEDERAL COURT OF AUSTRALIA

Appeal from:	Application for extension of time: 0108 of 2014 v Secretary, Department of Social Services [2017] FCA 57

File number:	WAD 155 of 2017

Judge:	BARKER J

Date of judgment:	11 May 2017

Catchwords:	ADMINISTRATIVE LAW – application for extension of time – where applicant seeks to appeal from orders of Federal Court – where primary judge dismissed “appeal” from directions of Tribunal as incompetent – where Tribunal directed applicant to undergo medical assessment – whether Tribunal member failed to recuse herself – primary decision not attended by sufficient doubt – application dismissed

Cases cited:	0108 of 2014 v Secretary, Department of Social Services [2017] FCA 57 Applicant 0108 of 2014 v Secretary, Department of Social Services (2016) 152 ALD 521; [2016] FCA 421

Date of hearing:	11 May 2017

Registry:	Western Australia

Division:	General Division

National Practice Area:	Administrative and Constitutional Law and Human Rights

Category:	Catchwords

Number of paragraphs:	13

Counsel for the Applicant:	The Applicant appeared in person

Counsel for the Respondent:	Ms B Rayment

Solicitor for the Respondent:	Mills Oakley Lawyers

ORDERS

		WAD 155 of 2017

BETWEEN:	APPLICANT 0108 OF 2014 Applicant
AND:	SECRETARY, DEPARTMENT OF SOCIAL SERVICES Respondent

JUDGE:	BARKER J
DATE OF ORDER:	11 MAY 2017

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs, to be assessed, if not agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1 In this proceeding, the applicant seeks an extension of time to appeal from orders made by a Judge of the Court on 3 February 2017. See 0108 of 2014 v Secretary, Department of Social Services [2017] FCA 57.

2 At the hearing of the applicant’s application on 11 May 2017, I dismissed the application.

3 At that hearing, I discussed with the applicant, and counsel for the respondent, the reasons why the primary judge had refused the applicant’s earlier application to “appeal” from what was, in substance, a procedural order made by the Administrative Appeals Tribunal in the course of dealing with the applicant’s social security application.

4 We also discussed aspects of my earlier decision in Applicant 0108 of 2014 v Secretary, Department of Social Services (2016) 152 ALD 521; [2016] FCA 421, to which the primary judge had also referred in the course of making his decision.

5 A further question concerning the failure or refusal of the member of the Tribunal currently dealing with the applicant’s proceeding in the Tribunal to recuse herself was also discussed at the hearing.

6 It suffices to say, as I explained to the applicant in oral reasons at the hearing, that the decision of the primary judge to refuse her application to “appeal” from the orders or directions made by the Tribunal are not attended by sufficient doubt – indeed, in my view, any doubt – to justify the granting of leave to appeal from the primary judge’s decision, even if an extension of time to make the application for leave to appeal were granted.

7 It suffices to say that the reasons for judgment of the primary judge, which are detailed and, with respect, very clear, speak for themselves and do not need to be repeated in any respect by me.

8 The “appeal” before the primary judge was in respect of a procedural direction. There is no doubt it was open to the Tribunal to request or require the applicant to undergo, at the request of the respondent, further medical assessment so that the parties and the Tribunal would have the opportunity of having a fair and proper hearing in respect of the question of the portability of her disability pension.

9 There is every reason to conclude, as his Honour also did, that there is no relevant “decision” or “question of law” that can be dealt with under the jurisdiction of this Court at this stage.

10 Further, there is no real question concerning the need of the member of the Tribunal currently handling the matter in the Tribunal to recuse herself. There appears to be some difference of view between the applicant and the respondent in that regard, but his Honour dealt with the factual background to that question and, as I say, his Honour’s decision cannot be said to be attended by any doubt. There is no case for actual or ostensible bias. Should the applicant at any stage in the future consider there are proper grounds to request the member of the Tribunal to recuse herself, she may deal with those concerns at that time.

11 It ought be said, as the primary judge did, that ordinarily it is not open to parties to any proceedings, in courts or tribunals, simply to request a change of decision-maker. That is an observation subject of course to circumstances where there are proper grounds to support an allegation of actual or ostensible bias by a decision-maker.

12 It was in these circumstances, having full regard to the reasons given by the primary judge for the decision the subject of the application before me, that I dismissed the application, with costs on 11 May 2017.

13 The formal orders then made were that:

(1) The application be dismissed.

(2) The applicant to pay the respondent’s costs, to be assessed, if not agreed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated: 17 May 2017

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