FEDERAL COURT OF AUSTRALIA

Chen v Secretary, Department of Social Services [2019] FCA 1595

ORDERS

THE COURT ORDERS THAT:

1.    The application dated 2 August 2019 for leave to appeal from the judgment of Abraham J in Chen v Secretary, Department of Social Services [2019] FCA 1155 is dismissed.

2.    The application dated 30 August 2019 for access to the audio recording of the hearing on 16 July 2019 in the matter that was the subject of the judgment referred to in order 1 is dismissed.

3.    The applicant is to pay the respondent’s costs of each application, in sums to be agreed or assessed.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant has appealed to this court against a decision of the Administrative Appeals Tribunal (hereafter, the “AAT”) concerning her entitlement or alleged entitlement to various welfare benefits: Chen and Secretary, Department of Social Services [2018] AATA 560 (Puplick AM SM, hereafter, the “AAT Decision”). That appeal has been allocated to Abraham J. On 29 May 2019, the applicant brought an interlocutory application before her Honour seeking orders to stay the AAT Decision (hereafter, the “Stay Application”). That application was heard on 16 July 2019 (that hearing is referred to, hereafter, as the “Stay Hearing”). On 29 July 2019, her Honour dismissed it with costs: Chen v Secretary, Department of Social Services & Ors [2019] FCA 1155 (Abraham J, hereafter the “Stay Judgment”).

2    By an interlocutory application filed on 2 August 2019, the applicant applies under Div 35.2 of the Federal Court Rules 2011 (Cth) for leave to appeal against the Stay Judgment (hereafter, the “Leave Application”). By a separate interlocutory application filed on 30 August 2019, the applicant seeks orders to compel the production of the audio recording of the Stay Hearing (hereafter, the “Audio Application”).

3    The applicant swore affidavits in support of the two interlocutory applications referred to above: in particular, an affidavit sworn on 2 August 2019 in support of the Leave Application (hereafter, the “Leave Affidavit”); and an affidavit sworn 8 August 2019 (but not filed until 30 August 2019) that appears to have been advanced in support of the Audio Application (hereafter, the “Audio Affidavit”).

4    Both affidavits are irregular in form; but, sensibly, no issue was taken on that front and the court treats both as read for the purposes of both interlocutory applications (there are aspects of each that might be thought to pertain to both applications).

5    Both the Leave Application and the Audio Application were listed for hearing together before me on Wednesday, 11 September 2019. Neither party appeared on that occasion. It appears that neither the Leave Application nor the Audio Application had, by then, been properly served upon the respondent. The notice of listing that emanated from the court was sent to email addresses that, apparently, were either not checked or not current. Upon the court otherwise making contact with both parties, both applications were relisted for hearing on Wednesday, 25 September 2019. The applicant appeared in person at that hearing. Ms Rayment appeared for the respondent.

6    Between 11 September 2019 and 25 September 2019, the applicant filed a further two affidavits: one sworn 19 September 2019 and one sworn 24 September 2019. Collectively, they spanned 129 pages, the vast bulk of which comprised of various forms or reports, principally from medical specialists and Centrelink. There were also some notes, both typed and handwritten, attached to those affidavits, some apparently under the applicant’s hand; others from people that she appeared to describe as “witnesses”. In every case, the documents annexed to her affidavits appeared to be directed to the issues that arise (or might arise) on the substantive appeal; and, in particular, to whether the applicant owns certain assets. Some, perhaps, go to the appeal that she hopes to obtain leave to institute, in that they point to her poor (or failing) health and her parlous financial position. It is not necessary that I say more about the content of those affidavits. As with the applicant’s previous affidavits, they were highly irregular in form; but, again, there was no objection to their receipt and they were treated as read for the purposes of both applications.

7    I will deal, first, with the Audio Application. It is not immediately apparent what source of power the applicant seeks to enliven by that application. More fundamentally, it is not apparent why the audio recording is sought at all. It does not appear to have any relevance to the substantive appeal, nor to the Leave Application.

8    Attached to the Audio Affidavit was a copy of the Stay Judgment, upon which the applicant (or somebody) has made some hand-written annotations. One of those annotations reads (errors original): “I TOLD JUDGE ABRAHAM ABOUT THE REASON I LEARN SIGN LANGUAGE MANY YEARS BECAUSE WHEN I STRESS I CAN NOT UNDERSTAND ENGLISH AT ALL. BUT SHE STILL DID NOT GIVE MY INTERPRETER ENOUG TIME TO DO HIS WORK”. It appears that the applicant complains that her interpreter was not given enough time to properly interpret at the Stay Hearing.

9    Before me, the applicant did not prosecute any such claim. What she did say was difficult to follow. As I understood her oral submissions, the applicant feels that she was “tricked” into making the Stay Application, in part by Abraham J herself. She also said that it appeared that her Honour was “friends” (or friendly) with the respondent’s legal representative or representatives. As confusing as those submissions were, neither presents any obvious (let alone compelling) case for the making of orders of the kind that are sought.

10    There are multiple difficulties with what appears to have been put. First, as will shortly be seen, the applicant does not seek to impugn the Stay Judgment as the product of appellable error arising from any “trick” that led to her making the Stay Application, nor from any apparent “friendliness” as between her Honour and the respondent’s representatives, nor from any deficiencies in the interpretation process. On the contrary, it was eminently clear from her lengthy oral submissions before me that the applicant’s complaint is not that the process as it unfolded before her Honour was, in some way, wrong or unfair; her complaint is that she feels that her Honour came to the wrong conclusions as to whether or not the AAT Decision ought to be stayed.

11    It is, with respect, clear from her Honour’s reasons that the court well understood why it was that the applicant felt entitled to a stay. I do not accept that there was anything about the standard of interpretation at the Stay Hearing that led to the result that eventuated, such that production of the audio recordings now might be warranted. Even if the applicant’s appeal were to be understood to challenge the Stay Judgment on the ground that the interpretation service was deficient, that ground would not, for the reasons explored in more detail below, enjoy sufficient prospects of success to warrant the grant of the leave that she would require in order to agitate it. Absent that, the audio recording would be irrelevant.

12    The “trick” that led to the applicant’s commencement of the Stay Application and her Honour’s apparent friendliness toward the applicant’s opponents simply don’t factor in any obvious way into the appeal for which leave is sought. Before me, the applicant did make it clear that she hoped that her substantive appeal would be heard by a different judge; but there is no coherent suggestion—much less any basis for thinking—that the Stay Judgment was the product of any appellable bias. Even if there were, it is not apparent why the applicant should need the audio recording in order to establish it.

13    The audio recording is, then, not relevant to any issue presently before the court (or presently sought to be put before the court by means of the Leave Application). The Audio Application will, therefore, be dismissed with costs.

14    I turn, then, to the Leave Application.

15    The considerations that condition a grant of leave to appeal are well settled. The court must consider, first, whether the judgment from which leave to appeal is sought is attended with sufficient doubt to warrant its being reconsidered and, second (and supposing that the judgment in question is wrong), whether substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Sheppard, Burchett and Heerey JJ).

16    The substantive proceeding involves an appeal from an administrative decision, one of the features of which was that the applicant’s entitlement to certain social security benefits that she had, for some time, received, ceased. By her Stay Application, the applicant hoped immediately to reinstate those entitlements. As the rules of the court require, the applicant attached to her Leave Affidavit a draft notice of appeal that she intends to file if her Leave Application succeeds (hereafter, the “Draft Appeal Notice”). That Draft Appeal Notice, under the heading “Orders sought” records: “DSP should pay f[r]om 2 April 2019”. It is clear enough that, by her proposed appeal, the applicant hopes to reinstate the entitlements that ceased by reason of the AAT Decision; and just as clear that she hopes to achieve that by means of a stay upon the effect of that decision.

17    The “Grounds of appeal” section of the Draft Appeal Notice are a little more difficult to comprehend. They read as follows (errors in the original):

1.    Australia MADE ME OWE MY FAMILY OVERSEA COUNTRY WE LOST 38 millions

2.    PLEASE SEE P. 3 in this application AND FORM 117 P1~P6

18    The references to “P. 3” and “P1~P6” appear to be references to pages of the Leave Affidavit (to which the Draft Appeal Notice was attached). Page 3 thereof is in the form of what appears to be an exhibit or attachment. It comprises an email exchange from the applicant to “garryparsons123@hotmail.com”. That email is a three-and-a-half page, unformatted and structureless narrative that seems to touch upon all manner of issues, the vast majority of which have no obvious relevance to the Leave Application, the Audio Application or the substantive appeal within which each has been launched. The narrative is almost impossible to comprehend but it would be fair to summarise it in this way: the applicant records that the AAT Decision was wrong insofar as it concluded that she was the owner or beneficial owner of substantial property holdings, and that she is, in fact, in a financially parlous state and dependent upon receipt of the benefits that she has been prevented from receiving. The printed email concludes with a hand-written submission (errors original):

“THAT’S WHY I NEED Stay ORDER TO FUNTION MY Life FIRST. AND JUDGE KNOW I TOLD HER ABOUT I CAN NOT AFFORD TO PAY MY EYE specialist THAT’S WHY I DID NOT HAVE LAWYER SHE KNOW I AM IN FINANCIAL hardship”.

19    There are two other emails attached to the Leave Affidavit that, although substantially shorter, are in the same vein. One is headed “There was a hail stone damaged in Sydney from God”; the other is headed “for judge”. Like the first, both are adorned with hand-written submissions, the particulars of which I need not set out here. Again, it is sufficiently clear that the applicant is attempting to impress upon the court her precarious financial position and that the property holdings that appear to have assumed some prominence in the AAT Decision do not belong to her. As is indicated above, the two affidavits that the applicant filed between 11 and 25 September (above, [6]) substantially continued those themes, as did the applicant’s oral submissions before me.

20    The Stay Judgment involved an exercise of judicial discretion. If it is to be impugned as the product of appellable error, the applicant will need to demonstrate that the court’s discretion to refuse the stay miscarried in any one or more of the ways famously described by the High Court in House v R (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ):

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for him if it has the materials for doing so.

21    Before me, the applicant was unable to identify any error in the decision making process that culminated in the Stay Judgment. With respect to her Honour, the reasons published in support of the Stay Judgment disclose an unremarkable analysis of the usual considerations that condition the grant of a stay. Amongst them was whether there existed special circumstances that justified departure from the rule that a successful litigant is entitled to the fruits of judgment pending appeal; for example, because the appeal may be rendered nugatory. Again with respect, it is clear that her Honour well understood the factors by which her discretion to grant or not grant the Stay Application was to be guided. It is plain enough that the applicant’s complaint is not so much that her Honour’s discretion miscarried; but, much more simply, that the point at which it landed was not the point at which the applicant hoped that it would land. To put it more succinctly: the applicant is unhappy with the result, not the process that led to it.

22    For the sake of completeness, I should say something about the suggestion—if there is one—that the Stay Hearing was conducted in such a way that the resultant judgment might be impugned as the product of appellable error. As is outlined above, the applicant did not identify any aspect of the submission that she made at the Stay Hearing that, for want of adequate interpretation, went misunderstood. I do not accept that there was any such aspect.

23    Even assuming that she was misunderstood in some way, or that there was something said that she misunderstood, it is all but impossible to see how the result might have been any different. It follows, then, that the appeal—were leave granted to prosecute it—would very likely be entirely without merit.

24    On the question of substantial injustice, the value of the social security benefits that the applicant hopes to reinstate by her appeal is not apparent on the evidence before me. From what she has said in her affidavit (and in the lengthy and confusing emails that are attached to it), I infer that, whatever the amount, the applicant may struggle, financially, without it. It is to be presumed that the applicant will recoup the amounts that she wishes to continue receiving if her substantive appeal succeeds, although I acknowledge that that may offer only minor consolation.

25    Regardless, even supposing that there is significant prejudice to the applicant in being denied the payments that she hopes to reinstate by her appeal (or by the stay that she hopes that it will generate), that cannot overcome the virtually non-existent prospect that her appeal might succeed.

26    This is not a case in which the court’s discretion to grant leave to appeal should be exercised. The Leave Application will, therefore, be dismissed with costs.

Associate:

Dated:    26 September 2019