Federal Court of Australia
Gadzikwa v Comcare [2020] FCA 1560
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: | 28 october 2020 |
THE COURT ORDERS THAT:
1. The application for leave to appeal from the interlocutory decision made by the primary judge in upholding an objection to competency in Gadzikwa v Comcare [2020] FCA 1205 be dismissed.
2. The Applicant is to pay the Respondent’s costs of and incidental to the application, as agreed or in default of agreement as assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
KERR J:
Background
1 On 4 August 2017, the Respondent (Comcare) denied liability for a claim for compensation that the Applicant (Mr Gadzikwa) had advanced under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
2 On various occasions, Mr Gadzikwa advanced requests for reconsideration of that decision. Although those requests were made out of time, he was on each occasion granted an extension of time. However, he later withdrew those requests.
3 On 6 February 2018, Mr Gadzikwa advanced a further request for reconsideration. On 14 February 2018, a delegate of the Respondent (Comcare) (the Delegate) refused Mr Gadzikwa a further extension of time. Mr Gadzikwa sought review of the decision of the Delegate in the Administrative Appeals Tribunal (the Tribunal).
4 On 18 March 2020, the Tribunal held a directions hearing. At that hearing, Mr Gadzikwa requested that the Tribunal issue certain summonses. The Tribunal made an interlocutory ruling refusing that request.
5 On 20 March 2020, at Mr Gadzikwa’s request, the Tribunal published written reasons for its interlocutory ruling: Gadzikwa and Comcare (Compensation) [2020] AATA 631.
The Primary Judge’s decision
6 On 17 April 2020, Mr Gadzikwa filed a notice of appeal from the Tribunal’s decision in this Court. On 11 May 2020, Comcare filed a notice of objection to the competency of the appeal on the following ground:
1. The decision of the Administrative Appeals Tribunal of 18 March 2020 from which the applicant seeks to appeal to this Court is not a “decision” for the purposes of s44 of the Administrative Appeals Tribunal Act 1975 and therefore not amenable to an appeal under s 44 of that Act.
7 On 21 August 2020, Collier J ordered that the notice of objection to competency be upheld and dismissed the appeal: Gadzikwa v Comcare [2020] FCA 1205.
Disposition of the notice of objection to competency
8 Collier J held that the meaning of a “decision” in s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) appeared to be settled. Her Honour cited in that regard Besanko J’s summary of the relevant authorities in MDXJ v Secretary, Department of Social Services [2019] FCA 2163 (MDXJ) at [15]. Her Honour then summarised the relevant principles, as follows:
• Not all decisions of the Tribunal are decisions within the meaning of s 44(1) of the Act;
• As a general proposition, an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review in the Tribunal;
• Qualifications to the general proposition concerning the meaning of “effective decision” were explained by Deane J in Chaney 47 FLR 80, namely either
(a) an appeal pursuant to s 44(2) of the Act from a decision of the Tribunal that the interests of a person are not affected by the decision, or
(b) where the proceeding before the Tribunal could properly be divided into two or more separate parts, in respect of which independent “decisions” could properly be given.
• Interlocutory decisions of the Tribunal are generally not “decisions” which can be appealed under s 44(1) of the Act.
9 It is convenient to reproduce in full her Honour’s application of those principles to the issue raised by Comcare’s notice of objection to competency, as follows:
17 Against the background of these principles, and the contentions of the parties, I find as follows.
18 First, it is clear that the decision n [sic] of the Tribunal of 18 March 2020 refusing Mr Gadzikwa’s application to issue summonses was an interlocutory decision of the Tribunal. It was not a decision of the Tribunal which was the effective decision or determination of the application for review before the Tribunal, as explained by the Full Court in Chaney 47 FLR 80. Although Mr Gadzikwa took issue with alleged injustice on the part of the Tribunal in its refusal to issue the summonses, he did not suggest that this refusal effectively determined his application to review the Reviewable Decision before the Tribunal. Indeed, in the circumstances described by the Tribunal, namely where approximately 850 pages of material in total had been filed by the parties, it is difficult to see how the absence of further documents or witnesses appearing in Court could have effectively determined the proceedings.
19 Second, and further to this point, there is no suggestion that the qualifications to the general principle identified by the Full Court in Chaney 47 FLR 80 were applicable in this case. In particular, there is no suggestion that the proceeding before the Tribunal was divisible into two or more separate parts in respect of which independent “decisions” could properly be given, or were given, by the Tribunal in the decision of 18 March 2020.
20 Third, to the extent that Mr Gadzikwa claimed “injustice” on the part of the Tribunal in refusing to issue the summonses, the structure of the Act requires that any complaint Mr Gadzikwa sought to pursue in respect of that issue by way of appeal could only be after the conclusion of the substantive proceedings in the Tribunal.
21 Fourth, although Mr Gadzikwa relied on the High Court decision of Adam P Brown 148 CLR 170, I do not accept his submission that the case is authority for the proposition that the present appeal is competent. The appeal in Adam P Brown 148 CLR 170 concerned an interlocutory decision of the Federal Court of Australia, the subject of appeal to the Full Court and then the High Court. As the majority explained in Adam P Brown 148 CLR 170:
9. Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error principle, but the decision appealed from must work a substantial injustice to one of the parties…
10. … Considerable argument was directed to the question whether a court has power, otherwise than in the case of mistake operative at the time of giving it to release a party from an undertaking, at least in the absence of the consent of the other party. But in our opinion a court undoubtedly has such a power. Just as an interlocutory injunction continues "until further order", so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust
(Emphasis added.)
22 The present case is not an example of circumstances where the Court is tasked with exercising control over its interlocutory orders. Rather, the appeal before this Court is an application, in the original jurisdiction of the Court, subject to the statutory framework put in place by the Act. The decision of the Tribunal the subject of the present proceedings was an administrative decision. This Court has found repeatedly that the Act confines appeals against decisions of the Tribunal to those which effectively determine the proceedings, and indeed fall within the scope of s 43(1) of the Act.
23 In my view the principles set out in Adam P Brown 148 CLR 170 are not applicable to the present appeal.
24 Fifth, there is ample authority that a decision of the Tribunal refusing the issue of summonses is not a “decision” which can be the subject of an appeal in accordance with s 44(1) of the Act – and in particular I note the decisions in Yao [2010] FCA 18, Phillips v Inspector General in Bankruptcy [2011] FCA 612 and Douglass [2017] FCA 1105.
25 Sixth, Mr Gadzikwa contended that Deane J in Chaney 47 FLR 80 had not definitively found that only effective decisions of the Tribunal could be the subject of appeal pursuant to s 44(1) of the Act, because the word “decision” will only “ordinarily refer to an announced or published ruling or adjudication”. However, at 103, Deane J observed:
The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s.44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s.43 of the Act. The qualifications referred to are an appeal pursuant to s.44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent "decisions" may properly be given.
26 The uncertainty suggested by Mr Gadzikwa was clearly explainable as relating to recognised qualifications to the meaning of “decision” for the purposes of s 44(1), as set out in this observation by Deane J.
27 Seventh, the fact that the Tribunal committed its reasons to writing, as requested by Mr Gadzikwa, does not mean that its decision is an effectively final decision, and appellable pursuant to s 44(1) of the Act, notwithstanding that s 43(1) of the Act contemplates that an appellable decision will be “in writing”. Mr Gadzikwa directed my attention to the observation of Deane J in Chaney 47 FLR 80 at 102 that:
…One would neither anticipate that an intermediate decision, which was reached in the course of the conduct of proceedings, would be reduced to writing nor expect that separate times for appeal would run in respect of each such intermediate decision on the path to ultimate or operative decision.
28 However in my view, and contrary to the submission of Mr Gadzikwa, this observation was not a prescriptive statement indicating that a written decision by the Tribunal invariably meant that it was a final decision.
29 Eighth, to the extent that the decision in Mladenov [2015] FCA 1472 suggests that a refusal by the Tribunal to order the production of documents is a “decision” within the meaning of s 44(1) of the Act, I respectfully disagree with that proposition. Indeed, the comment at [60] of Mladenov [2015] FCA 1472 that “there is an open question whether a ruling in respect of the production of documents is a decision for the purpose of s 44(1)” of the Act cites as authority Yao [2010] FCA 18 at [29]. Paragraph [29] of Flick J’s decision in Yao [2010] FCA 18 is as follows:
29. No “question of law” for the purposes of s 44 — and no legal error for the purposes of judicial review — is evident in the Tribunal’s decision. The Tribunal, when refusing to issue the summonses in issue, was exercising a discretionary power. Whether another Tribunal member may have exercised the discretion in the same manner is not to the point. No legal error is discernible in the manner in which the Tribunal member in the present proceeding exercised the discretion he was called upon to exercise.
30 Plainly, this observation by Flick J does not support the proposition that a decision by the Tribunal to refuse to issue summonses is a “decision” which can be the subject of appeal to the Federal Court.
31 Ninth, although Mr Gadzikwa submits that the Tribunal has been unhelpful in failing to respond to his requests for assistance in seeking the issue of subpoenas, this criticism, even if true, is not an issue of relevance to the proceedings currently before this Court.
32 Finally, although Mr Gadzikwa claimed from the Bar Table that he had received a letter from the Tribunal dated 20 March 2020 indicating that he “might be able to appeal” from the Tribunal’s decision of 18 March 2020, I consider this to be irrelevant to the issues currently before me. Not only is the letter not before the Court (nor, insofar as I can ascertain, made available to Comcare), but it binds neither the Court nor the Tribunal. Rather, I consider it likely that the wording of the letter would have been a standard response by the Tribunal to litigants who are dissatisfied by Tribunal decisions of all kinds.
33 In my view the appeal is incompetent, and should be dismissed.
10 It is helpful at this stage to note that the key authorities to which the primary judgment refers, as are relevant to the present application, are: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 (Adam P Brown); Director-General of Social Services v Chaney [1980] FCA 2163; 47 FLR 80 (Chaney); Douglass v Administrative Appeals Tribunal [2017] FCA 1105 (Douglass); Mladenov v Secretary, Department of Social Services [2015] FCA 1472 (Mladenov); Phillips v Inspector-General in Bankruptcy [2011] FCA 612 (Phillips); and Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18 (Yao).
Costs
11 There is a further aspect of the primary judgment that is relevant to the present proceeding. Rule 33.30 of the Federal Court Rules 2011 (Cth) provides that a notice of objection to the competency of an appeal must be filed within 14 days of the respondent being served with the notice of appeal. Rule 33.30(4) then provides as follows:
(4) If a respondent has not filed a notice under subrule (1), and the appeal is dismissed by the Court as not competent, the respondent is not entitled to any costs of the appeal.
12 After being granted an extension of time to file its notice of objection to competency, Comcare did so four days out of time. Mr Gadzikwa submitted before the primary judge that costs therefore should not be awarded against him.
13 Pursuant to her Honour’s general discretion with respect to the award of costs under s 43(2) of the Federal Court of Australia Act 1976 (Cth), Collier J ordered that costs should follow the event bar one exception: the costs of the case management hearing at which Comcare had sought and been granted an extension of time to file its notice of objection to competency. Her Honour’s reasons were as follows:
40 Subject to one qualification, in my view costs ought to follow the event and Mr Gadzikwa be liable to pay the costs of Comcare of and incidental to these proceedings: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11. While the notice of objection to competency was filed out of time by Comcare:
• Mr Gadzikwa has identified no prejudice suffered from the late filing of the notice, referable to its timing of filing (as distinct from the inevitable consequences of a successful objection to the competency of his appeal).
• Contrary to Mr Gadzikwa’s submissions, I do not consider it an open question whether interlocutory decisions are decisions for the purposes of s 44(1), and further I do not consider it in the public interest to “shed further light” on that question. This is because I am satisfied that, again contrary to Mr Gadzikwa’s submissions, the issue he raises is settled in light of such authorities as Chaney 47 FLR 80.
• As time was extended by the Court to permit Comcare to file its notice of objection to competency out of time, the notice was validly filed for the purposes of r 33.30.
• I consider an order that costs ought follow the event an appropriate order for the purposes of s 43(2) of the Federal Court Act.
The present proceeding
14 On 4 September 2020, Mr Gadzikwa filed an application for leave to appeal from the decision of Collier J. The grounds of that application are stated as follows:
1. There is no evidence to support Justice Collier’s view that all Administrative Appeals Tribunal interlocutory decisions cannot be appealed in the Federal Court of Australia raising a question of law.
2. Collier J did not consider it relevant that the Tribunal advised Mr Gadzikwa that he might be able to appeal the interlocutory decision raising in a question of law.
3. Justice Collier failed to consider in Director General of Social Services v Chaney, Northrop J was of the view that the word “decision” when used in s44 of the Act need not be limited to meaning the final decision raising a question of law.
4. Collier J failed to take into account that Deane J outlined that in his view s44 ordinarily refers to final decisions and that effectively Deane and Fisher JJ were of the view that s44 refers to final decisions usually but not always and hence the matter was not closed nor settled. The omission of these relevant facts resulted in a question of law.
5. Mr Gadzikwa’s argument was that given the decision was in writing and published, Deane and Fisher JJ would have formed the view that it would weigh in favour of the view that the decision was a decision for purposes of s44. Collier J on paragraph 27 correctly states that committing reasons to writing does not effectively mean they are a decision but fails to consider that it would weigh in favour of them being viewed as a decision if one was to rely on the Chaney decision. Failure to take into account this essential and relevant argument raises a question of law.
6. Mr Gadzikwa was not permitted to present arguments he felt were essential to his matter thus was not afforded procedural fairness which results in a question of law.
7. Collier J failed to take into account that it was carefully revealed to the Court that the Tribunal arrived at the decision not to allow the issuing of summonses after only hearing arguments for one individual and not the remaining three; this resulted in a question of law.
8. Collier J failed to take into account that Mr Gadzikwa acknowledged that appeals of interlocutory decisions may be disruptive but that the injustice of the decision was infested by errors of a kind which justify correction as they were a “canary in a coal mine” and that the substantive decision was vulnerable to challenge. The omission of these relevant facts resulted in a question of law.
9. Collier J took into account irrelevant considerations and made a manifestly unreasonable inference. In paragraph 18 she states, “Indeed, in the circumstances described by the Tribunal, namely where approximately 850 pages of material in total had been filed by the parties, it is difficult to see how the absence of further documents or witnesses appearing in Court could have effectively determined the proceedings.” All Mr Gadzikwa had to prove was that he was not afforded procedural fairness resulting in the matter being open to the possibility of a different outcome should the requested witnesses appear in Court.
10. In paragraph 21 Collier J states that she does not accept that the High Court decision of Adam P Brown 148 CLR 170 as an authority for this appeal yet she repeatedly cites that matter in her considerations thus making her view manifestly unreasonable and raises a question of law.
11. Collier J formed the view that the Tribunal repeatedly failing to assist Mr Gadzikwa on the issuing of subpoenas was irrelevant even though precedent in the Mladenov matter indicated that it would be a relevant consideration in appealing a Tribunal interlocutory decision on summonses thus creating a question of law.
12. In paragraph 29 Collier disagrees with the comment at [60] of Mladenov [2015] FCA 1472 that “there is an open question whether a ruling in respect of the production of documents is a decision for purpose of s 44(1). Collier J proceeds to referencing Flick J’s decision in Yao [2010] FCA 18 but fails to support the view that the matter is closed resulting in a no-evidence ground for an appeal.
13. Collier J failed to take into account that she had not been satisfied with Comcare’s reason or lack thereof for submitting an objection to competency application outside the legislated deadline. Collier J is of the view that Mr Gadzikwa had not revealed how this had prejudiced him however neither has Comcare revealed how it has been prejudiced by Mr Gadzikwa’s late reconsideration application which is the substantive matter. Collier J failed to take into account the argument that Mr Gadzikwa has a mental illness and is self-represented yet he has been bound to deadlines when Comcare with its vast resources and expertise has not. Failing to consider this relevant matter results in a question of law.
15 Together with his application, Mr Gadzikwa filed an affidavit. However, that affidavit did no more than set out the grounds above in largely identical terms.
16 On Friday 2 October 2020 the proceeding was referred to me on behalf of the Chief Justice to hear and determine Mr Gadzikwa’s application for leave to appeal and, if leave were to be granted, for case management.
17 My associate advised the parties that the application for leave to appeal had been listed for hearing on Tuesday 20 October 2020, and that they should serve any written submissions or further supporting materials on which they would wish to rely no later than 4:00pm on Tuesday 13 October 2020.
18 On Monday 5 October 2020, Mr Gadzikwa emailed the Victorian Registry of the Court (copying in the Respondent’s representatives) advising that he sought “for matter VID602/2020 to be reallocated to a Judge other than Justice Kerr for reasons outlined below to Comcare on 2 October 2020”. The correspondence to which he referred was as follows:
i called earlier today to discuss concerns that Justice Collier whose decision i am appealing is a Deputy President of the Administrative Appeals Tribunal and Justice Kerr served as President of the Administrative Appeals Tribunal from May 2012 to May 2017.
the matter at hand is that i have outlined blatant injustices i experienced from Member Kim Parker of the Administrative Appeals Tribunal. in her 21 August 2020 decision, Justice Collier redacted Member Kim Parker's name when citing communication in which Member Parker was mentioned by name and Justice Collier made no mention of Member Parker in her decision. this can reasonably be seen as Justice Collier wishing to protect the reputation of Member Kim Parker and perhaps that of the Tribunal as a whole particularly given Member Parker works alongside Justice Collier when the latter acts as a Deputy President of the Tribunal. Justice Kerr served as President of the Tribunal three years ago, it may be argued that it would not reflect well on the legacy Justice Kerr left behind if the present chaos at the Tribunal is revealed through this appeal process. i seek your views of whether you would be opposed to me seeking the current matter in Federal Court of Australia is reallocated to a Justice who has not had as close relationship with the Tribunal as Justice Kerr.
19 Later on Monday 5 October 2020, my associate relevantly advised the parties as follows:
His Honour further advises that if a formal application for his Honour’s recusal is advanced, then his Honour will hear that application as a preliminary matter on the day of the substantive hearing.
20 At the hearing on Tuesday 20 October 2020, Mr Gadzikwa appeared in person with the assistance of his National Disability Insurance Scheme support person. I had approved that person providing assistance to Mr Gadzikwa in the capacity of a “McKenzie Friend”. Ms Dowsett of counsel appeared for the Respondent.
21 At the commencement of the hearing, Mr Gadzikwa confirmed that he did not press an application for my recusal. I indicated that I would therefore give no further attention to the matters raised in his correspondence of Monday 5 October 2020.
Mr Gadzikwa’s submissions
22 On Tuesday 13 October 2020, Mr Gadzikwa had attempted - in compliance with the Court’s direction - to file various materials on which he would seek to rely with respect to his application for leave to appeal. The Federal Court Registry did not accept those documents for filing, on the basis that they were not accompanied by an affidavit. Mr Gadzikwa emailed my associate and the Respondent’s representatives advising of that circumstance. On Wednesday 14 October 2020, I indicated that I would advise the Registry to accept the documents for filing. The Respondent raised no objection to that course. Accordingly, at 11:04am the materials (merged into a single document) were placed on the electronic court file as correspondence. The document so filed included the following materials:
(a) Mr Gadzikwa’s notice of appeal from the decision of the Tribunal, filed in the proceeding before the primary judge (VID260/2020) on 21 April 2020;
(b) A copy of the relevant reasons of the Tribunal;
(c) A transcript of the relevant directions hearing in the Tribunal on 18 March 2020;
(d) A letter dated 20 March 2020 sent to Mr Gadzikwa on behalf of a Registrar of the Tribunal. The letter relevantly advises as follows:
We have decided to refuse your request to issue a summons.
We have sent you a copy of our decision with this letter.
This means that a summons will not be issued for the persons and documents identified.
If you think the decision is wrong, you might be able to appeal to the Federal Court of Australia. There is a time limit for appealing to the Federal Court. If you received this letter by email, the appeal period starts to run from the date of the email. If you are considering an appeal, obtain legal advice without delay.
A fee must usually be paid when lodging an appeal in the Federal Court, and other fees might be payable during the course of the appeal. However, some people are exempt from paying fees.
You need to be aware that, if your application is unsuccessful, it is likely that you will be ordered to pay the court fees and legal costs of the other party. Legal costs include the amount that a person pays a lawyer for legal advice and representation.
For further information on applying to the Federal Court including information about forms, court fees and costs, please see the Court’s website at www.fedcourt.gov.au or contact the Federal Court registry in your State. The contact details of the Court’s registry in your State are …
(Emphasis added).
(e) Correspondence dated 2-3 September 2020 involving Mr Gadzikwa, the Respondent’s representatives and the Federal Court Registry concerning matters related to his obtaining a transcript of the hearing before the primary judge;
(f) An affidavit of Mr Gadzikwa filed in the proceeding before the primary judge (VID260/2020) on 30 July 2020;
(g) A copy of the decision of the primary judge;
(h) A list of authorities filed by Mr Gadzikwa in the proceeding before the primary judge (VID260/2020) on 30 July 2020;
(i) Further correspondence dated 13 October 2020 between Mr Gadzikwa and the Respondent’s representatives concerning his obtaining a transcript of a case management hearing before the primary judge;
(j) A transcript of the hearing before the primary judge on 13 August 2020;
(k) A letter dated 4 September 2020 sent by the Tribunal’s Executive Director of Registry Operations of the Tribunal to Mr Gadzikwa, responding to correspondence in which he had raised concerns regarding the level of assistance with which he had been provided in relation to the issuing of summonses and more generally; and
(l) Correspondence dated 23-24 September 2020 between Mr Gadzikwa and the Tribunal’s Executive Officer, General Division also concerning Mr Gadzikwa’s complaints regarding the conduct of the Tribunal.
23 Mr Gadzikwa did not file written submissions.
24 In his oral submissions, Mr Gadzikwa indicated that he no longer pressed Grounds 1 or 11 (T3, lines 42-44). He further indicated that he would pursue Grounds 6, 7, 8 and 9 only if he were granted leave (T3, line 44-T4, line 17). As such, for the purposes of his application for leave his “focus” would be on on Grounds 2, 3, 5, 10, and 13 (T4, lines 21-23). Mr Gadzikwa did not make further submissions in relations to Grounds 4 or 12. Mr Gadzikwa’s oral submissions thus addressed the following grounds:
Ground 2
25 During the hearing I indicated to Mr Gadzikwa that while what he asserted under Ground 2 might be thought potentially relevant to costs, he faced a high threshold in seeking to establish that it provided a basis on which the Court might grant him leave to appeal from the decision of the primary judge with respect to the competency of the appeal (T19, lines 20-30). Mr Gadzikwa indicated that Ground 2 was pressed as a ground of review of that decision, rather than in respect of costs. He then submitted as follows with respect to the reasoning of the primary judge at paragraph [32] (T22, lines 37-47, T23, lines 3-24):
And then I will – and touching on the area that you have mentioned before, typically when an individual organisation provides information or advice to another party without taking into consideration personal circumstances of that individual, the mandated obligation to outline that the information or advice is generic. That is the case for medical advice and/or information – financial advice and/or information and certainly for legal advice and for information. It was indeed the case that the letter provided to me was generic, the tribunal had an obligation to advise me whether or not the letter was a standard response. If it is the case that I did not have a chance of appeal, the tribunal – so if indeed if I did not have a chance of appeal of the tribunal’s decision when the tribunal advised me that I might be able to do so, then the tribunal should also be held responsible for the costs incurred by the respondent.
…
Well – so, this – well, in terms of cost, but I’m saying that – I’m saying my argument is that Collier J is saying that the letter from the tribunal was a standard response, and so I’m saying that the tribunal should have indicated that their letter was a standard – was a generic response. And for instance, if a person provides financial advice to another person without taking into consideration any circumstances that are particular to that individual, then the person providing that financial advice should indicate that that advice or information provided to them is of a generic nature.
And what I’m arguing is it was not – it was not – I was not informed that that letter was a standard response. And what I argued to Collier J is that when that letter was provided to me, the tribunal knew that there was an interlocutory decision that had been made by the tribunal and that I may be dissatisfied with it, and they advised me that if I was to be dissatisfied with that letter, I may be able to appeal in the Federal Court of Australia. They did not mention the ADJR Act or 39B of the Judiciary Act. They said the Federal Court of Australia. And as a self-represented litigant, I would naturally believe that given that that was the information provided to me by the tribunal that – and they would be best placed to know where appeals for interlocutory decisions could be dealt with.
I believe that I was reasonable – it was reasonable for me to take on board that information.
26 I put to Mr Gadzikwa that those submissions did not tie into his appeal grounds as formulated (T23, line 1). I indicated in that respect that I would raise with the Respondent the issue of whether it would resist a grant of leave to amend his appeal grounds in that regard (T25, lines 17-22). However, the Respondent indicated that such an application would be opposed (T27, lines 20-26) and Mr Gadzikwa did not press such an application.
Ground 3
27 With respect to Ground 3, Mr Gadzikwa acknowledged the Respondent’s submission (addressed below) that Northrop J was in dissent in Chaney. However, he submitted that dissenting opinions can be persuasive and are relevant (T14, lines 22-36).
Ground 5
28 With respect to Ground 5, Mr Gadzikwa submitted that the primary judge had failed to consider that a decision in writing is more likely to be a “decision” for the purposes of s 44(1) (T15, lines 33-37); that in his submission it was of no moment that written reasons had been provided only at his request (T15, lines 41-43); and that in his submission there was an important distinction between the decision and the reasons for decision (T15, lines 43-45).
Ground 10
29 With respect to Ground 10, Mr Gadzikwa submitted as follows (T26, lines 21-36):
Although Collier J took two key arguments from the Adam P ground and cited it in her considerations, but then states that that matter is not an authority in the matter before her while citing that matter, and she does ..... again, on paragraph 21, when Collier J says, although Mr Gadzikwa relied on the High Court’s decision of Adam P Brown, I do not accept that the case is authority for the proposition that the ..... that the appeal in Adam P Brown concerns an interlocutory decision of the Federal Court of Australia. ..... appeal to the Full Court and then the High Court, as the majority explained in Adam P Brown, and then she goes and cites two paragraphs, one of them, she emphasises:
A court must not remain in control – a court must remain in control of its interlocutory orders.
So it’s clear here that when there is material from Adam P Brown that is – that advances her argument, then that matter can be cited in her argument. But when I can take material from Adam P Brown, that matter is no longer relevant …
Ground 13
30 With respect to Ground 13, Mr Gadzikwa submitted that this ground related to “the matter of costs” (T8, lines 44-45). He submitted that during a case management hearing the primary judge had expressed dissatisfaction with the Respondent’s reasons for seeking to file its notice of objection to competency out of time. He did not seek to tender a copy of the transcript, but referred the Court to correspondence between the parties in which he had conveyed to the Respondent his own notes of what had occurred during that case management hearing (T9, line 25-T9, line 17). He also referred the Court to a passage of the transcript of the final hearing before the primary judge. He submitted that during that hearing, he had put to her Honour that she had not been satisfied with the Respondent’s reason for the late filing of the notice and that her Honour had not denied that proposition (T13, lines 1-5). He submitted that in those circumstances her Honour had erred in not giving sufficient weight to the Respondent’s lack of a reason for the late filing (T13, lines 36-39).
31 In relation to this ground, Mr Gadzikwa also made submissions concerning more generally what he described as a “double standard” (T9, lines 1-9):
And – and so in ground 13, I state Collier J failed to take into account that she had not been satisfied with Comcare’s reason for lack of care of submitting an objection to competency application outside the legislated deadline. Collier J is of the view that Mr Gadzikwa had not reviewed how this had prejudiced him, however, neither had Comcare reviewed how it had been prejudiced by Mr Gadzikwa’s late reconsideration application, which is the substantive matter. Collier J failed to take into account the argument that Mr Gadzikwa had a mental illness and is self-represented yet he has not been bound to deadlines – which he has been bound to deadline, when Comcare with its vast resources and expertise has not.
32 I note that I raised with Mr Gadzikwa the issue that Ground 13 did not in terms relate to costs. I return to that issue in my reasons below.
Substantial injustice
33 Mr Gadzikwa also made oral submissions with respect the issue of whether he would be subject to substantial injustice if leave were refused, assuming that the decision of the primary judge was incorrect. He submitted that he would suffer two forms of substantial injustice in those circumstances: his being required to pay the Respondent $8,676.00 in costs (T4, line 35-T5, line 2); and the adverse impact of various aspects of the Tribunal’s conduct on his mental health (T5, line 18-T8, line 42).
34 The Court put to Mr Gadzikwa that he faced difficulty in establishing such injustice in circumstances where there were other means by which he might seek review of the conduct of the Tribunal: a further matter to which I return later in these reasons. The only submission that Mr Gadzikwa made on this point was that he had been “directed” to pursue the path of an appeal by the correspondence that he had received from the Tribunal, as addressed under Ground 2 (T18, lines 31-35). When I put to him that he had subsequently pressed on when confronted by the Respondent’s notice of objection to competency, he submitted that he had been entitled to do so having regard to what he alleges under Ground 10 (T19, lines 1-5).
Comcare’s submissions
35 The Respondent filed written submissions on Tuesday 13 October 2020, submitting that the application for leave to appeal should be dismissed with costs.
36 The Respondent’s written submissions first set out what it submits to be the relevant legal principles governing Mr Gadzikwa’s application. The Respondent submits that a judgment dismissing an appeal as incompetent is interlocutory, in that it does not finally dispose of the rights of the parties (citing SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 7; 168 FCR 410 at [23], [114]). Under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), Mr Gadzikwa therefore requires leave of the Court to appeal from the decision of the primary judge. The relevant test, the Respondent submits, is as follows:
13. There is a well-established, two limb test for the grant of leave to appeal. The Court must be satisfied that:
a. there is sufficient doubt attending the primary judge’s decision as to warrant it being reconsidered by the appellate court; and
b. the applicant will suffer substantial injustice if leave is refused and supposing the decision is wrong.
(Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 621).
14. The two limbs are cumulative, both must be satisfied (Wong v Sklavos (2014) 225 FCR 405 at [15]).
37 The Respondent’s written submissions then address each limb of that test in turn.
Correctness of the decision
38 The Respondent submits that the primary judge’s decision was “undoubtedly” correct. Its written submissions in that regard respond to each of the thirteen grounds raised by Mr Gadzikwa. Those relating to the grounds which appeared to be pressed by Mr Gadzikwa at the hearing were, in summary, as follows:
(a) The Respondent submits that Ground 2 does not allege any error in the reasoning of the primary judge. This ground also provides an “incomplete account” of her Honour’s reasoning regarding the relevant correspondence, expressed at paragraph [32] of the primary judgment as follows:
32. Finally, although Mr Gadzikwa claimed from the Bar Table that he had received a letter from the Tribunal dated 20 March 2020 indicating that he “might be able to appeal” from the Tribunal’s decision of 18 March 2020, I consider this to be irrelevant to the issues currently before me. Not only is the letter not before the Court (nor, insofar as I can ascertain, made available to Comcare), but it binds neither the Court nor the Tribunal. Rather, I consider it likely that the wording of the letter would have been a standard response by the Tribunal to litigants who are dissatisfied by Tribunal decisions of all kinds.
(b) The Respondent submits that Ground 3 casts no doubt upon the accuracy of the primary judge’s conclusions. In Chaney, Northrop J was in dissent. The ratio of that decision is contained in the reasons of Deane J, with whom Fisher J agreed.
(c) The Respondent submits that insofar as Ground 4 is intended to contend that the primary judge failed to consider and apply correctly the decision in Chaney, it is without merit. The primary judge correctly addressed the contention now advanced as Ground 4 at paragraphs [25]-[26] of her Honour’s reasons, as follows:
25 Sixth, Mr Gadzikwa contended that Deane J in Chaney 47 FLR 80 had not definitively found that only effective decisions of the Tribunal could be the subject of appeal pursuant to s 44(1) of the Act, because the word “decision” will only “ordinarily refer to an announced or published ruling or adjudication”. However, at 103, Deane J observed:
The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s.44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s.43 of the Act. The qualifications referred to are an appeal pursuant to s.44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent "decisions" may properly be given.
26 The uncertainty suggested by Mr Gadzikwa was clearly explainable as relating to recognised qualifications to the meaning of “decision” for the purposes of s 44(1), as set out in this observation by Deane J.
The Respondent notes in that regard that her Honour had earlier made findings (at paragraphs [18] and [19]) that Mr Gadzikwa’s case did not fall within either of the two qualifications to the general rule that Deane J articulated in Chaney.
(d) The Respondent submits that Ground 5 is misconceived. The primary judge considered this submission at paragraphs [27]-[28], and her Honour’s conclusion was correct:
27 Seventh, the fact that the Tribunal committed its reasons to writing, as requested by Mr Gadzikwa, does not mean that its decision is an effectively final decision, and appellable pursuant to s 44(1) of the Act, notwithstanding that s 43(1) of the Act contemplates that an appellable decision will be “in writing”. Mr Gadzikwa directed my attention to the observation of Deane J in Chaney 47 FLR 80 at 102 that:
…One would neither anticipate that an intermediate decision, which was reached in the course of the conduct of proceedings, would be reduced to writing nor expect that separate times for appeal would run in respect of each such intermediate decision on the path to ultimate or operative decision.
28 However in my view, and contrary to the submission of Mr Gadzikwa, this observation was not a prescriptive statement indicating that a written decision by the Tribunal invariably meant that it was a final decision.
Further, the Respondent submits that the finding of the primary judge that the Tribunal’s decision had been reduced to writing only at the request of the Applicant (pursuant to s 43(2A) of the AAT Act) is relevantly unchallenged. The Respondent submits that it cannot be the case that the availability of an appeal under s 44(1) depends on whether a request is made under s 43(2A).
(e) The Respondent contends that insofar as Ground 10 is intended to assert that the primary judge both relied on Adam P Brown and concluded that the principles articulated in that decision were not applicable to the application before her Honour, it is incorrect. In support of that submission, the Respondent summarises the references to that decision in the primary judgment as follows:
49. Adam P Brown is referred to in the decision below as follows:
a. at [13] (in the 5th dot point) – where her Honour is summarising Mr Gadzikwa’s submission based upon authority
b. at [15] – in the quote extracted from MDXJ; and
c. in [21] and [23] – when her Honour addresses Mr Gadzikwa’s submissions based upon the authority, concluding that the principles are not applicable to the matter before her.
(f) The Respondent submits that Ground 12 is also misconceived, as it was not necessary that the primary judge’s conclusion regarding the proper construction of s 44(1) be supported by evidence.
(g) With respect to Ground 13, the Respondent first submits that an appeal from the exercise of the primary judge’s costs discretion (pursuant to s 43(2) of the Federal Court Act) would be subject to the principles in House v King [1936] HCA 40; 55 CLR 499. The Respondent submits that there is nothing to support a conclusion that the primary judge’s exercise of that discretion miscarried. Her Honour did not fail to have regard to a relevant consideration. The merits of Mr Gadzikwa’s application in the Tribunal were not relevant to the costs of the proceeding before her Honour. Further, there is nothing in the primary judgment addressing her Honour’s satisfaction or otherwise with its reasons for filing the notice of objection to competency out of time.
39 Having regard to an indication I gave after hearing Mr Gadzikwa’s oral submissions that the only aspect of his application that might have at least some superficial plausibility was in relation to costs (leaving aside my indication to the Applicant regarding the insufficiency of his grounds in that regard), Ms Dowsett made oral submissions only in relation to that issue. She otherwise relied on the Respondent’s written submissions.
40 With respect to Ground 2, insofar as that ground might be thought relevant to the issue of costs Ms Dowsett emphasised that the letter that the Tribunal sent the Applicant only indicated that he “might” be able to appeal (T28, lines 19-25). That, she submitted, merely reflected the Tribunal’s obligation to notify parties of their “further review rights” pursuant to s 43(5AA) of the AAT Act (T28, lines 26-26). The Tribunal had not told Mr Gadzikwa to lodge an appeal. He had formed his own opinion in that regard. Indeed, Ms Dowsett submitted that it would not have been appropriate for the Tribunal to have provided more detailed information regarding the test that Deane J articulated in Chaney and the two qualifications identified therein, as that would have amounted to giving legal advice (T29, lines 1-8).
41 With respect to Ground 13, regarding the filing of the notice of objection to competency Ms Dowsett submitted as follows (T28, lines 2-18):
It was four days out of time. So much was acknowledged by Comcare in the proceeding below, and Mr Gadzikwa, his ground of appeal and his submissions to you today attribute to her Honour a lack of satisfaction as to the explanation, and he points you to his submission to her that she wasn’t satisfied about the reason. And he says, “Well, she didn’t dispute that.” And in response, I say it’s not for her Honour to dispute Mr Gadzikwa’s submissions. He’s entitled to make submissions to her. She had regard to them, and you see that in her decision when she refers at paragraph 40, in the third dot point, she notes that time was extended.
So the discretion for the filing of the – the discretion to extend time to file that notice of competency was exercised. In my submission, that’s prima facie evidence that her Honour was satisfied that there was sufficient explanation. She may have – she did not articulate all of that in the decision that’s the subject of the appeal before you, but she says the time was extended. It is now validly filed for the purposes of Rule 33.30. That’s the end of that, I would say. Yes, it was not filed within the time specified within the Rules, but the time was extended.
42 Regarding Mr Gadzikwa’s submission as to his note of what the primary judge had said during an earlier case management hearing, Ms Dowsett submitted that her instructions were that the note was not complete or accurate (T30, line 45-T31, line 19), but submitted that in any case the point was irrelevant in circumstances where the primary judge had granted an extension of time.
43 Ms Dowsett further submitted that whatever the position might be with respect to the notice of objection to competency, that issue was of limited relevance. That is because had the primary judge not permitted the Respondent to file the notice of objection to competency out of time, her Honour would have dismissed the appeal in any case (T31, lines 19-32):
But the primary submission we make is that the extension was allowed, and her Honour didn’t say that – once the extension was allowed, it was open to her Honour to exercise the discretion and award costs.
If it had been the case that her Honour didn’t permit the notice of objection to be filed, the matter could – she could still have exercised discretion to say, well, this is not within the court – this matter is not within the court’s jurisdiction. She could have acted of her own volition in that regard. She didn’t need to rely upon the respondent’s notice of objection to competency. So we say it isn’t a whole answer where Mr Gadzikwa points to her Honour stating, on his note, there’s no way of circumventing the objection to competency. The question of whether the court’s jurisdiction is properly enlivened is something that her Honour is correct, you cannot circumvent that. You can’t just assume jurisdiction. But the objection to competency is not the only avenue by which that question can be answered.
44 Thus, Ms Dowsett submitted this ground could go no further than potentially pointing to an error in respect of costs (which the Respondent denied) (T31, lines 41-44).
Injustice if leave is refused
45 Ms Dowsett further submitted that there was nothing before the Court to support a conclusion that Mr Gadzikwa would suffer substantial injustice if leave were refused. His application remained on foot before the Tribunal, and no decision had yet been made in respect of the substantive question to be determined in that forum: namely, whether he should be granted an extension of time in which to request reconsideration of Comcare’s determination.
Consideration
46 I accept and adopt the Respondent’s submissions as to the legal test that the Court must apply in determining an application for leave to appeal from an interlocutory decision of a judge of this Court pursuant to s 24(1A) of the Federal Court Act. I do not understand those principles to be relevantly in issue. As the Full Court stated in Ah-Chee v Stuart [2019] FCAFC 165 (Ah-Chee):
11 The relevant principles guiding the consideration and determination of an application for leave to appeal were not disputed. There are no rigid rules, but it is well settled that key considerations which bear upon the exercise of the Court’s discretion include:
(a) whether in all the circumstances the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and
(b) whether substantial injustice would result if leave were refused, supposing the decision is wrong.
12 Those two limbs are cumulative and each limb needs to be made out (Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36 at [4]-[5] per Ryan, Stone and Jagot JJ). The two limbs are also related (see Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [20] per Kenny, Tracey and Middleton JJ), with the consequence that sufficiency of the doubt in respect of the primary decision and the issue of substantial injustice should not be divided into separate compartments.
13 Other considerations which are relevant to the consideration of the Walka Wani applicants’ application for leave to appeal were recently identified by the Full Court in Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; 242 FCR 153 at [14] to [17]:
(a) leave is less-often granted where the impugned ruling is discretionary and is on a matter of practice or procedure;
(b) appellate intervention in matters of practice or procedure, where no questions of general principle are at stake, has been said to require the exercise of particular caution (referring to Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [34] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ and see also Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. [1981] HCA 39; 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ); and
(c) where, as here, the exercise of discretionary judgment is in question, an error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499 at 504-505 needs to be identified and it is not enough to overturn a discretionary judgment that the appeal judges would have weighed considerations differently to the primary judge.
47 For the reasons that follow, I am not satisfied that Mr Gadzikwa has established that the interlocutory judgment of the primary judge is attended by sufficient doubt to warrant her Honour’s decision being reconsidered on appeal.
48 In the proceeding before the primary judge, Mr Gadzikwa sought to appeal a decision of the Tribunal. Such appeals are creatures of statute. An “appeal” as is provided for in s 44(1) of the AAT Act is available only from a “decision” of the Tribunal on “a question of law”. Such an appeal lies as of right.
49 The meaning of a “decision” in the context of s 44(1) is well-settled. As the decisions collated by Pearce in Administrative Appeals Tribunal (4th ed, LexisNexis Butterworths, 2015) at 369-370 indicate, courts have consistently and repeatedly construed that provision in accordance with the observations of Deane J (with whom Fisher J agreed) in Chaney. As his Honour stated at 103:
The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act. The qualifications referred to are an appeal pursuant to s 44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent “decisions” may properly be given.
50 Having referred to Pearce above, I would however note that (at 371) he characterises the decision of Wilcox J in Australian Postal Commission v Hayes (1998) 23 FCR 320 (Hayes) as an application of one of the “qualifications” that Deane J identifies. That is not correct. That is because Hayes did not concern an appeal. Rather, it concerned an application for review of the Tribunal’s conduct pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). I will return to that distinction later in these reasons.
51 Turning to the facts of the present application, it is clear that the decision of the Tribunal not to issue the relevant summonses was interlocutory in nature. That exercise of the Tribunal’s discretionary power to issue those summonses under s 40A of the AAT Act did not constitute the effective decision or determination of the substance of Mr Gadzikwa’s application for review of the Respondent’s decision. Further, the primary judge’s finding (at paragraph [19]) that neither of the two “qualifications” that Deane J identified in Chaney applied is unchallenged. For those reasons, there clearly was no error in the primary judge finding that the Tribunal’s refusal to issue the relevant summonses was not relevantly a “decision” for the purposes of s 44(1) and that as a result the appeal was incompetent.
52 Such a finding is consistent with prior authority. Judges of this Court have previously found appeals from decisions of the Tribunal not to exercise its discretion to issue summonses to be incompetent on the basis that those decisions were not “decisions” for the purposes of s 44(1) of the AAT Act: Phillips; Yao.
53 I acknowledge, as Mr Gadzikwa submits, that in Chaney Northrop J dissented. That however does not diminish the authority of that decision. I also acknowledge that while the primary judge referred to the first instance decision of Yao, her Honour did not refer to the decision of Flick J in Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 241. In refusing leave to appeal from Yao, his Honour made the following observation:
20 The character of that which constitutes a “decision” for the purposes of s 44 is well established: Director-General of Social Services v Chaney (1980) 47 FLR 80. After referring to this decision, His Honour concluded:
[19] In this case the five decisions under review are decisions by the learned Tribunal member not to issue summonses to give evidence. Such a decision is not, to use the language of Deane J in Chaney, “a decision constitut[ing] the effective decision of determination of the application for review”. It follows that the purported appeal is incompetent.
His Honour, however, was apparently not referred to the decision of Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504, 37 ATR 432. An appeal was there entertained from a decision of the Tribunal striking out certain paragraphs of two summonses that had been obtained. The appeal was dismissed. But there was in that case no discussion as to whether or not the “decision” the subject of the appeal was a “decision” for the purposes of s 44. Spender J was content to observe that the application before him was from a “proceeding in the Tribunal”.
21 There may thus be room for argument as to whether or not a “decision” such as that now in issue is susceptible of appeal pursuant to s 44.
54 Subsequently however in Phillips Dodds-Streeton J – for reasons that I respectfully adopt – rejected that analysis:
52 In Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 241 (“Yao”), Flick J refused leave to appeal from Perram J’s decision as it was not attended by sufficient doubt. Flick J observed that Perram J had not been referred to Spender J’s decision in Cosco Holdings, which potentially left room for argument that a refusal to issue a summons or authorising such refusal was a decision susceptible of appeal.
53 In Cosco Holdings, Spender J treated an application to strike out certain paragraphs of two summonses as “a proceeding” and entertained an appeal under s 44 of the Act. As Flick J recognised, however, the question whether an interlocutory direction or determination constituted a decision was not raised and Spender J was apparently not referred to Chaney. Further, more recently, in Kowalski v Repatriation Commission (2009) 259 ALR 444 (“Kowalski”), Spender J (in a joint judgment with Graham and Gilmour JJ) upheld Mansfield J’s decision at first instance (based on Chaney and like authorities) that the Tribunal’s refusal to dismiss or permanently stay an application was not the effective decision or determination. The approach in Kowalski was consistent with the reasoning in Chaney which excluded intermediate decisions as valid subject matter of an appeal under s 44(1) of the AAT Act.
55 Mr Gadzikwa also refers to the observations of North J in Mladenov:
60 There is an open question whether a ruling in respect of the production of documents is a decision for the purpose of s 44(1) of the AAT Act: Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 241, at [29]. For present purposes it will be assumed that the conclusions of the AAT made at the directions hearing on 25 June 2014 in relation to the production of different categories of documents were each such a decision.
56 However, his Honour’s obiter observations were made without reference to the considered views of Dodds-Streeton J in Phillips.
57 The primary judge addressed Mladenov at paragraphs [29]-[30] of her Honour’s reasons. I identify no error in her Honour’s analysis. Moreover, I am satisfied that the course of authority establishes that there is no real doubt as to the correctness of the proposition accepted by Collier J that a refusal to issue a summons is a not a “decision” for the purposes of s 44(1). It is an interlocutory decision, rather than a decision which constitutes the effective decision or determination of the application for review in the Tribunal.
58 Having reached that conclusion, I turn then to the specific grounds Mr Gadzikwa presses:
(a) With respect to Grounds 2 and 11, those grounds relate to the conduct of the Tribunal. Those issues, while potentially relevant to the appeal itself, were not relevant to the confined issue of the scope of the word “decision” in s 44(1) as determined the issue of competency. As I indicated at the hearing, the matter raised under Ground 2 might be thought potentially relevant to costs. However, the ground was not articulated as such and - as I have earlier explained – Mr Gadzikwa did not seek leave to amend it.
(b) With respect to Grounds 3 and 4, I am satisfied that the primary judge correctly interpreted and applied the majority decision in Chaney as it has been applied in numerous other decisions.
(c) With respect to Ground 5, I am satisfied that the primary judge adequately and correctly addressed Mr Gadzikwa’s submission regarding the relevance of the Tribunal’s decision having been reduced to writing.
(d) With respect to Ground 10, I also accept the Respondent’s submissions. I identify no inconsistency in the primary judge’s various references to the decision in Adam P Brown. Her Honour’s reference to the case in paragraph [15] of the primary judgment was as follows:
15 The meaning of “decision” for the purposes of s 44 (1) of the Act appears to be settled. Recently in MDXJ v Secretary, Department of Social Services [2019] FCA 2163 Besanko J explained relevant principles as follows:
…
20. In Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877; (2000) 64 ALD 325, the applicant sought judicial review of directions contained in an interlocutory decision made by the Tribunal which had the effect of confining the role which the applicant would have as a party at a future hearing before the Tribunal. Although the application was not brought as an appeal from the Tribunal’s decision under s 44 of the AAT Act, the following statement of von Doussa, O’Loughlin and Mansfield JJ is relevant (at [26] and [28]):
26. In the context of curial proceedings, the courts have been at pains to emphasise the undesirability of allowing appeals against interlocutory decisions involving matters of practice and procedure to fragment and delay the trial of proceedings. The most frequently cited authority for this proposition comes from the joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 176-7; [1981] HCA 39; 35 ALR 625 at 628-9. Their Honours repeated with approval the following statement of Sir Frederick Jordan in In re the Will of F B Gilbert (dec’d) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323:
... I am of the opinion that ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a Court of Appeal.
Their Honours added that it is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration. At this stage, as we have just observed, it is not possible to know if there is any real issue in the GIC’s complaint about the directions. Until that is possible the GIC is unable to demonstrate that any injustice could flow from the directions.
(Emphasis added).
I identify no inconsistency in her Honour reproducing that passage of MDXJ, which contains broad observations of principle that were material to the issue of the competency of the appeal, and her Honour’s later reasoning at paragraphs [21]-[23] to the effect that the decision was distinguishable.
(e) With respect to Ground 12, the Respondent is correct to submit that the relevant question before the primary judge was as to the construction of s 44(1). No evidence was required to support her Honour’s reasoning in that regard. Insofar as this ground is intended more broadly to cast doubt on the soundness of the primary judge’s analysis of the relevant authorities, for the reasons given above I would reject such a submission.
59 I address Ground 13 separately below.
60 In those circumstances, it is not open to the Court to find that the primary judgment was attended by sufficient doubt to warrant it being reconsidered.
61 My finding with respect to the correctness of the primary judgment is sufficient to dispose of the application. Lest I be in error in that regard however, I should also record that I am not satisfied that Mr Gadzikwa has established that if (contrary to my finding) the decision of the primary judge were wrong then substantial injustice would result from my refusing the leave that he seeks. I note in that regard that in any case, this limb of the test is to be afforded less weight in circumstances where - as I have found - the proposed appeal grounds lack merit: Ah-Chee at [15].
62 I accept and adopt the Respondent’s submissions with respect to this issue. Mr Gadzikwa has not identified any substantial injustice that would flow from his being refused leave to appeal. It is not in contest that his application before the Tribunal remains on foot.
63 Further, once his application before the Tribunal is determined it will be open to Mr Gadzikwa to appeal from the Tribunal’s final decision on a question of law. As Flick J observed in Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 241 at [22]:
A conclusion that a decision to refuse to issue a summons pursuant to s 40(1A) may not be susceptible of appeal pursuant to s 44, it may be noted, does not necessarily have the consequence that such decisions may not ultimately be susceptible of examination by this Court by way of an appeal. In some cases it may, for example, be possible to contend that a refusal to issue a summons has consequentially denied a party of the “reasonable opportunity to present his case” — as guaranteed by s 39. In such cases, the ultimate or final decision may thus be examinable on appeal; but not the decision when made during the course of and for the purposes of conducting the review pending before the Tribunal.
64 In the circumstances of the present proceeding, the Tribunal gave careful and considered reasons for rejecting Mr Gadzikwa’s application for the issue of the subpoenas he had sought (Gadzikwa and Comcare (Compensation) [2020] AATA 631). The materials he sought are clearly identified in those reasons, as are the reasons the Tribunal gave for rejecting his application. If thereby the Tribunal was in error, Mr Gadzikwa may advance that as a ground of appeal in respect of any determinative decision of the Tribunal. If he persuades the Court hearing such an appeal that the refusal denied him a reasonable opportunity to present his case, he may yet succeed.
65 In any case, there were other avenues available to Mr Gadzikwa which were potentially open and might have permitted him to challenge the conduct of the Tribunal in this Court. In circumstances where an appeal is unavailable (as to which qualification see generally Duncan v Hotop [2002] FMCA 37), an application for review of a decision by the Tribunal may be brought under the ADJR Act (as in Hayes). Under the ADJR Act, both decisions (s 5) and conduct (s 6) are reviewable. Moreover, by reason of s 3(2) of that Act the word “decision” is defined in a manner which gives it a broader meaning than that which applies to the word in the context of s 44(1) of the AAT Act: Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 337. Alternatively, Mr Gadzikwa might have brought an application pursuant to s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) (see, eg, Commissioner of Police, New South Wales v Guo [2016] FCAFC 62; 332 ALR 236). That avenue is also not subject to the same restrictions that s 44(1) imposes on appeals.
66 Those matters reinforce the Court’s finding that refusing to grant the leave that Mr Gadzikwa seeks does not risk exposing him to substantial injustice. Subject to discretionary considerations as I note below, those avenues would appear to remain potentially available.
67 I accept however that relief, if available, would be discretionary. There are time limits provided for in proceedings under the ADJR Act. While an application for an extension of time might be made, delay may be a reason for the Court to refuse to relief. While there are no fixed time limits for proceedings to be brought pursuant to s 39B of the Judiciary Act, delay is a discretionary consideration. Moreover, any court in which relief is sought could be accepted to take into account the circumstance that the proceeding before the Tribunal has not yet been finally determined, being “astute to protect parties from the expense and delay of unnecessary applications” (Hayes at 323). It can be accepted that it would consider the appropriateness of interfering with the lawful functions of the Tribunal, and the undesirability of fragmenting proceedings: see generally Pearce, Administrative Appeals Tribunal (4th ed, LexisNexis Butterworths, 2015) at 413-414. The following observation of the Court in Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877 is apposite:
28. In Commissioner of Taxation v Beddoe, which concerned an application under the ADJR Act to review directions made by the AAT under s 33 of the AAT Act for the filing and exchanging of answers to questions prior to a hearing Spender J, said at 453:
“It is in my opinion wholly undesirable that the process contemplated by the AAT Act should be fragmented by applications seeking to challenge intermediate directions or determinations made along the way to reaching an ultimate determination of the issue before the Tribunal, in the same way that this Court should be reluctant to fragment the criminal process by entertaining applications under the ADJR Act in relation to committal proceedings and, in particular, intermediate rulings or determinations made in the course of committal proceedings rather than the ultimate decision to commit.”
Whilst that observation was not necessary for the determination of the case, we respectfully endorse his Honour’s observations.
68 Those matters, however, are for Mr Gadzikwa to address as he may be advised to do so.
Costs
69 During oral argument, I observed that Ground 2 might be thought potentially relevant to the question of whether Mr Gadzikwa might have some basis on which to appeal from the primary judge’s exercise of her Honour’s discretion with respect to the costs associated with the disposition of the notice of objection to competency. As I have earlier observed however, ultimately the parties appeared to be agreed that it is only Ground 13 that is relevant to that question.
70 It will be recalled that Ground 13 is stated as follows:
13. Collier J failed to take into account that she had not been satisfied with Comcare’s reason or lack thereof for submitting an objection to competency application outside the legislated deadline. Collier J is of the view that Mr Gadzikwa had not revealed how this had prejudiced him however neither has Comcare revealed how it has been prejudiced by Mr Gadzikwa’s late reconsideration application which is the substantive matter. Collier J failed to take into account the argument that Mr Gadzikwa has a mental illness and is self-represented yet he has been bound to deadlines when Comcare with its vast resources and expertise has not. Failing to consider this relevant matter results in a question of law.
71 I observed during the hearing that Ground 13 makes no reference to costs. At the hearing however Mr Gadzikwa indicated that – despite not referring expressly to costs – Ground 13 was intended to impugn the costs order made by the primary judge in favour of the Respondent (T8, lines 44-45; T9, lines 11-31; T24, line 45). Ms Dowsett confirmed that, having regard to Mr Gadzikwa being self-represented, she had interpreted the ground in that way (T27, lines 4-10):
Your Honour, I – the closest I could get to an understanding of ground 13 was that it went to the underpinning of the costs. That was the only thing that I could see that even raised the question of the ground of appeal – of the order for costs in the grounds of appeal, and I took a, if I may so, a generous approach to understanding the grounds, recognising that Mr Gadzikwa is a self-represented litigant and wouldn’t be coming to this matter with the same understanding that one would expect of a represented party …
72 Insofar as the ground can be construed as raising that issue, nonetheless it cannot succeed. Let it be assumed that, as Mr Gadzikwa proposes, Collier J had not been satisfied with the Respondent’s explanation for its delay in filing the notice of objection to competency and had for that reason refused it an extension of time. Ms Dowsett is correct to submit that in those circumstances her Honour would regardless have had a duty to satisfy herself that the Court had jurisdiction to hear and determine the purported appeal brought pursuant to s 44(1) of the AAT Act. It is fundamental that this Court must not exceed its jurisdiction. It is quite unnecessary that a party identify any defect if the Court itself becomes aware of its want of jurisdiction. I have concluded that the primary judge was correct to hold that her Honour did not have jurisdiction in the premises of Mr Gadzikwa’s purported appeal. In those circumstances, it was inevitable that the appeal would be found incompetent: whatever the position with respect to the notice of objection to competency.
73 Insofar as Ground 13 might be understood as contending that the primary judge erred in the exercise of her Honour’s discretion with respect to costs by failing to take into account Comcare’s explanation for filing the notice of objection to competency out of time, it also cannot succeed. That is because the costs order that the primary judge made in the Respondent’s favour excluded the costs of and incidental to the case management hearing of 4 June 2020 at which the Respondent had sought – and been granted – an extension of time to file its notice of objection to competency. I accept Ms Dowsett’s submission that after that time, the notice was taken to have been validly filed. Thereafter, the initial lateness of its filing simply had no further relevance to the issue of costs.
74 Mr Gadzikwa acknowledged that following the Respondent being granted an extension of time to file its notice of objection to competency, he had decided to press on notwithstanding. Had he not done so, the position in relation to costs might have been different. However, that was not the case. In those circumstances, I see no basis on which any error in the exercise of the primary judge’s discretion with respect to costs might be established.
Concluding remarks
75 Although I have accepted the Respondent’s submission that any infelicity in the manner of the Tribunal’s notice concerning Mr Gadzikwa’s right to approach the Court to seek review of its decision not to issue him with the subpoenas he had sought does not affect the correctness of the primary judge’s decision that her Honour had no jurisdiction, I am nonetheless concerned that the correspondence from the Tribunal that advised Mr Gadzikwa that he might “be able to appeal” to the Federal Court (as set at out at [22] above) may have entirely innocently contributed to his unfortunate misunderstanding. In circumstances where it is unlikely that an appeal will be available but there may be other avenues available to a person wishing to challenge an interlocutory decision of the Tribunal, it may be appropriate to review the wording of any correspondence to be sent to them advising them of their rights. I would request that the Respondent draw these observations to the Tribunal’s attention for such consideration as it may deem appropriate.
Orders and disposition
76 I will order that the application for leave to appeal from the decision of the primary judge be dismissed. The Respondent sought an order that Mr Gadzikwa pay its costs of and incidental to this proceeding. I see no reason why costs should not follow the event in that regard. I will so order.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr. |
Associate:
