Federal Court of Australia

Gadzikwa v Administrative Appeals Tribunal [2021] FCA 151

ORDERS

THE COURT ORDERS THAT:

1.    The application for recusal be dismissed.

2.    The draft application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) be deemed to be an application for review under s 39B Judiciary Act 1903 (Cth).

3.    The filing and service of that application be dispensed with, and that application be heard and dealt with instanter.

4.    The s 39B application be dismissed.

5.    The extension of time application under the ADJR Act be dismissed.

6.    The applicant pay the second respondent’s costs of and incidental to the extension of time application and the draft application.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Mr Tawanda Gadzikwa (Mr Gadzikwa) is at odds with Comcare in relation to a claim for compensation, which he has made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). On 4 August 2017 Comcare denied liability for this claim. Mr Gadzikwa subsequently sought, as he was entitled under the SRC Act, administrative reconsideration of the determination denying liability. However, he did this after the expiry of the 30 day time limit imposed by s 62(3) of the SRC Act. There is a discretion to extend that time limit. On a number of occasions that discretion was exercised in Mr Gadzikwa’s favour. The reference to a number of occasions arises because, in respect of particular extensions, Mr Gadzikwa chose not to press for reconsideration on reflection.

2    On 6 February 2018, Mr Gadzikwa made a further request for an extension of time within with to request reconsideration. On this occasion, a delegate of Comcare denied Mr Gadzikwa’s request for an extension. He then sought the review of that delegate’s decision by the Administrative Appeals Tribunal (Tribunal). In the context of that particular review application Mr Gadzikwa directed a letter of 22 December 2019 both to the Tribunal as well as to Comcare. It will be necessary later in these reasons for judgment to give some detail as to what was stated in that letter in relation to the issuing of summonses by the Tribunal with respect to particular persons. For the present, it is enough to record that, on 18 March 2020, a directions hearing was convened by the Tribunal.

3    For the purposes of that directions hearing the Tribunal was constituted by Member K. Parker. It will also be necessary later in these reasons for judgment to give some detail as to what transpired at that directions hearing. Suffice it to say, on 20 March 2020, for reasons published that day, the Tribunal made an interlocutory decision by which it refused to:

… issue the summonses requested by the Applicant in respect of the four people and documents as identified in his submission dated 22 December 2019.

4    That same day the Tribunal’s registry, in dispatching a copy of the decision and related reasons of Member Parker, did so under cover of a letter to Mr Gadzikwa in which, materially, it was stated:

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.

[emphasis added]

5    Mr Gadzikwa, seemingly in response to the guidance provided in that letter, instituted or, at least, purported to institute, an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) against that particular interlocutory decision refusing the issuing of summonses. He instituted the purported appeal within the time limit prescribed by the AAT Act for the institution of an appeal under s 44. Comcare objected to the competency of that appeal.

6    On 21 August 2020, the Court upheld the objection to competency and dismissed the appeal: see Gadzikwa v Comcare [2020] FCA 1205. Mr Gadzikwa applied for leave to appeal against the dismissal of his appeal against the Tribunal’s decision. On 28 October 2020, his application for leave to appeal was dismissed: see Gadzikwa v Comcare [2020] FCA 1560.

7    Two days later, Mr Gadzikwa filed an application for an extension of time within which to review the Tribunal’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). He also provided the draft of an originating application for judicial review in which the proposed grounds were set out at some length, but which were also conveniently summarised by him. As summarised by Mr Gadzikwa, the basis of the proposed application under the ADJR Act is:

Details of claim

The Applicant is aggrieved by the conduct and bad faith because:

1)    CONDUCT – The Tribunal had not heard nor analysed reasons why Mr Gadzikwa sought summonses for Ms Anna Teofilovic, Ms Alyssah Yasmin, Ms Maria Sindoni and consultant notes prior to refusing to issues summonses. This was blatant procedural unfairness.

2)    CONDUCT – The Administrative Appeals Tribunal ignore half a dozen requests by Mr Gadzikwa for assistance on how to issue summonses however responded to all the Respondent’s communication. Precedent indicates that the assistance Mr Gadzikwa sought was offered by the Tribunal to other self-represented litigants.

3)    BAD FAITH – The Tribunal acted in bad faith by falsely claiming, “That would be a highly unusual step for the Tribunal to take, Mr Gadzikwa, that any summonses be issued for documents or people.”

4)    BAD FAITH – The Tribunal acted in bad faith by pointing Mr Gadzikwa in the wrong direction for a potential review of its decision not to issue summonses resulting in this application being late and Mr Gadzikwa incurring substantial financial and health costs.

[emphasis in original]

8    The application for an extension of time was heard today. It was heard in conjunction with an interlocutory application filed by Mr Gadzikwa on 17 December 2020. In that interlocutory application Mr Gadzikwa applies for an order that I recuse myself from the hearing of the extension of time application. He does so on the basis of bias. It is necessary, therefore, that I first consider the application that Mr Gadzikwa makes for recusal. Comcare’s position in relation to that application is that there is no basis for recusal.

9    Bias warranting the recusal by a judicial officer of continued involvement in a proceeding may either be actual or apprehended.

10    As to the latter category, the relevant test is whether or not in the circumstances a reasonable person might apprehend that I might not bring an impartial and unbiased mind to the resolution of the issues raised in the extension of time application or, for that matter, any evolution of that, such as occurred in course of the present proceeding. By “evolution” I mean the treatment in any event of the draft originating application as an application for the judicial review of the Tribunal’s interlocutory decision under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act). The test, as just stated in relation to apprehended bias, is specified in a number of cases in the High Court, notably Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, at [31] and in the authorities cited at fn 27 to that paragraph.

11    It must also be observed that judges have a responsibility to discharge their office unless disqualified by law. Thus, a judicial officer should not too readily uphold an application for disqualification lest encouragement be given to litigants to, in effect, “judge shop”: see Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342, at 352; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272; and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

12    There were two bases upon which Mr Gadzikwa submitted I ought to disqualify myself. The first was that, entailed in the hearing of the application for an extension of time, was the consideration of a challenge which went to the propriety of the conduct, not just by Member Parker, but also by registry officers within the Tribunal.

13    It was common ground in the proceeding, and a fact relied upon in support of this aspect of Mr Gadzikwa’s application, that for a period of approximately one decade concluding towards the end of November 2020 I held the office formerly known as Presidential Member and latterly that of Deputy President of the Tribunal. Also common ground was that, within that, decade and for a period of about six weeks in May – June 2017, I acted as the President of the Tribunal. It was further common ground that these appointments were statutory offices under the AAT Act held in addition to my commission as a judge of this Court.

14    Mr Gadzikwa’s submission was, having regard to the nature of the challenge he proposed to make and that I held the office of Deputy President at the time when the application for an extension of time was filed and the case allocated to me as docket judge, I was either actually biased or, at least, that circumstance gave rise reasonably to an apprehension of bias because of a need, potentially, to uphold the challenge that he sought to make. In other words, his submission was that a person who held office in the Tribunal ought not to be put in the position of having, perhaps severely, to criticise the conduct of another member of the Tribunal and its registry officers.

15    The other limb to Mr Gadzikwa’s bias challenge arose from a dealing with Mr Gadzikwa after he had filed his extension of time application and prior to today’s hearing. I disclosed to the parties at the outset of the hearing today the nature of that dealing. Suffice it to say, correspondence as between Mr Gadzikwa and the Court’s registry came to my attention as docket judge. There was reference by Mr Gadzikwa in that correspondence to a medical condition in general terms, the nature of which it is not necessary to detail. However, the description of that condition by Mr Gadzikwa was such as to enliven a concern on my part as to whether he had capacity to conduct, as he wished, the proceeding in his own right and to represent himself. I, therefore, directed the registry to seek from Mr Gadzikwa evidence by affidavit detailing the condition. Initially I was disposed to have that evidence also disclosed to Comcare for procedural fairness reasons. However, Mr Gadzikwa took umbrage to that course. I, therefore, directed that the affidavit which came to be filed not be disclosed to Comcare and reserved the question as to whether or not there ought to be any disclosure to today’s hearing. My having made the disclosure just related Comcare, by its counsel, signified that it did not wish to have the affidavit concerned disclosed.

16    Upon consideration of the affidavit made by Mr Gadzikwa, I was well satisfied that the condition he detailed was not such as to cause any continued concern as to capacity. It did fall within the general description which had been offered by him, but it manifestly was not, as detailed, a condition which went to capacity. I have been fortified in that particular view by Mr Gadzikwa’s conduct of his case on his behalf today.

17    Is there then any basis for disqualification for bias? As to actual bias, in my view there is no such evidence. Further, in my view, having regard to the circumstances related, there is no basis upon which a reasonable bystander acquainted with those circumstances might apprehend that I might not bring an impartial mind to the resolution of the proceeding. The inquiry as to Mr Gadzikwa’s capacity provides no basis for such an apprehension.

18    From the outset of the Tribunal’s existence it has been possible for judges of this Court, if they choose, to take up, if offered, an additional appointment as a Presidential Member or now Deputy President of the Tribunal. There are, since the establishment of this Court, at least hundreds, if not more, examples of judges holding such an appointment in addition to their judicial commission and exercising judicial power in relation to decisions of the Tribunal. There is express recognition in the AAT Act of the ability of a judge additionally to hold such an appointment. Indeed, the Tribunal’s President must be a judge of this Court. The Tribunal’s president from time to time has, as is a matter of public record, regularly sat on appeals from the Tribunal. Once the nature of a judicial office under Ch 3 of the Constitution is understood, there can be no basis for an apprehension of bias arising from the coincidence of the holding of an appointment in the Tribunal by a Judge.

19    To the contrary of the application for disqualification, I consider the present case to be one which, in terms of the authorities I have mentioned, I am obliged to sit in and, indeed, could quite properly be the subject of an order for mandamus issued by the High Court of Australia under s 75(v) of the Constitution requiring me to sit in the present circumstances. I, therefore, dismiss the application for recusal.

20    I turn then to the question as to whether or not an extension of time should be given? In so doing, I also consider whether, in any event, relief ought to be granted to Mr Gadzikwa under s 39B of the Judiciary Act on jurisdictional error grounds in like terms to those pleaded in the draft application under the ADJR Act.

21    Both Mr Gadzikwa and Comcare joined in requesting that the draft application be treated as an application under s 39B of the Judiciary Act. This was a convenient course, reflecting recognition that, either further or alternatively, s 39B conferred jurisdiction on the Court judicially to review the Tribunal’s interlocutory decision. I remind myself, however, that care needs to be taken in so doing given that in relation to the extension of time application it is necessary only to form an impression as to prospective merits of the proposed application under that Act in contrast to the position in dealing with a deemed application under s 39B, which will address substantive jurisdictional error questions.

22    The parties were at one in treating the submissions made in respect of the extension of time application, which were extensive both orally and in writing, as if they were submissions also on the substantive merits of a s 39B application.

23    As to an extension of time, the relevant considerations were conveniently canvassed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.

24    Comcare did not point to any particular prejudice which might flow to it in the event that an extension were granted, although it must be said there is a public interest in the finalisation of claims for compensation under the SRC Act. Equally, though, there is a public interest in the Tribunal’s dealing with applications for review touching on claims under the SRC Act being lawful.

25    Two considerations which loom large, as they so often do, are: is there an acceptable explanation for the delay in the institution or attempted invocation of jurisdiction under the ADJR Act, and the prospective merits? As I have indicated as to the latter, and in the context of an extension of time, one approaches that necessarily at an impressionistic level. As to an explanation for delay, Mr Gadzikwa, with respect, eloquently and understandably, highlighted a chronology in like terms to that which I have already recited. It is quite apparent to me that, following the Tribunal’s decision and reasons being given to him on 20 March 2020, Mr Gadzikwa did not rest on his rights. Further, particularly taking into account that he was acting for himself, I can well see how in light of the Tribunal’s covering letter of 20 March 2020, he quite reasonably formed the view that a challenge by way of appeal under s 44 of the AAT Act was apt.

26    For Comcare it was highlighted that whatever view he might have had in light of that correspondence ought to have been unsettled by the objection to competency, which it filed in May of 2020. I can well see how that objection might have given pause for thought. However, Mr Gadzikwa then was faced with two views from emanations of the executive government of the Commonwealth: one, the letter of 20 March 2020 indicating that a s 44 pathway might be possible, and the other an objection to competency which contradicted that in emphatic terms. He chose, as was his perfect right, to test which was correct by way of pressing his appeal to this Court and having the objection to competency heard and determined. As it turned out, and with respect unremarkably, the upholding of the objection to competency flowed inexorably from longstanding authority concerning the character of decisions amenable to appeal under s 44 of the AAT Act: see Director-General of Social Services v Chaney (1980) 47 FLR 80, at 99 – 100.

27    What Mr Gadzikwa then did was to seek, as he had to, leave to appeal. What is noteworthy in terms of the application for extension of time is that it was filed so very swiftly once the fate of his leave to appeal application was determined. Taking into account Mr Gadzikwa’s absence of formal legal training and the advice which he had received from the Tribunal, I consider this to be a case where there is an adequate explanation for the delay in the seeking of an extension of time and, related to that, the failure to institute an application under the ADJR Act within the 28 day period specified.

28    There is no formal period of time within which an application for judicial review under s 39B of the Judiciary Act must be filed. Delay, though, in the making of such an application is always a relevant consideration in relation to whether or not to grant any relief under that provision.

29    Here, the real question, in my view, is the prospective merits, and in any event, as to jurisdictional error for s 39B purposes, substantive merits.

30    Considering these subjects requires some further detail of the contents of Mr Gadzikwa’s letter of 22 December 2019, the proceedings before Member Parker in the Tribunal on 18 March 2020 and Member Parker’s reasons for refusing the application. Before offering that detail it is necessary to set out s 33 of the AAT Act:

33    Procedure of Tribunal

(1)    In a proceeding before the Tribunal:

(a)    the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)    the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c)    the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

Decision‑maker must assist Tribunal

(1AA)    In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.

Parties etc. must assist Tribunal

(1AB)    A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.

Directions hearing

(1A)    The President or an authorised member may hold a directions hearing in relation to a proceeding.

Who may give directions

(2)    For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:

(a)    where the hearing of the proceeding has not commenced—by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised officer; and

(b)    where the hearing of the proceeding has commenced—by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.

Types of directions

(2A)    Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:

(a)    require any person who is a party to the proceeding to provide further information in relation to the proceeding; or

(b)    require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or

(c)    require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or

(d)    limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or

(e)    require witnesses to give evidence at the same time; or

   (f)    limit the time for giving evidence or making oral submissions; or

   (g)    limit the length of written submissions.

31    The Tribunal is not bound by formal rules of evidence and, subject to the observance of procedural fairness, is in effect the master of its own procedure: see as to this Rana v Repatriation Commission (2011) 196 FCR 137 (Rana v Repatriation Commission), at [22], and Drake v Minister for Immigration and Ethnics Affairs (1979) 46 FLR 409, at 419.

32    In Mr Gadzikwa’s letter of 22 December 2019, and as the Tribunal accurately summarised at [3] of its reasons, he identified four persons as persons to whom summonses should be directed for the purposes of the review application. There is no doubt that the Tribunal had the requisite power to issue summonses as identified by Mr Gadzikwa: see s 40A of the AAT Act. The Tribunal’s summary together with the related rationale as offered by Mr Gadzikwa in his letter is as follows:

3.    In Mr Gadzikwa’s Submission, the following four people were identified by Mr Gadzikwa:

(a)    Ms Anna Teofilovic (the delegate who made the reviewable decision the subject of this application) so that “she could be examined about her rationale for making that decision”;

(b)    Ms Alyssah Yasmin and Ms Maria Sindoni of Allianz “as witnesses to explain why Allianz had declined to provide a respondent statement and explain how information on it’s [sic] files came to be redacted and how the Vault system Allianz used to upload documents functions”; and

(c)    Dr Chris Grant to “explain how he arrived at his conclusions and explain whether he had an obligation to obtain Mr Gadzikwa’s account of events and how they may have impacted Mr Gadzikwa”.

[emphasis in original]

33    At the directions hearing on 18 March 2020, Member Parker introduced the proceeding in this way:

This is an application that has been made by Mr Gadzikwa, and my understanding, it’s just been listed before me recently. So I’m a blank canvas if you want to put it that way, in that I don’t have a complete background about the matter. However, my role today is to make some directions about how the matter is to proceed, so I am looking forward to receiving an explanation by the parties about where we’re at.

Mr Gadzikwa a little later stated:

All right. All right, Ms Parker, yes, I am insisting that it be – that it be – it go to a hearing. Because there’s a number of complexities that are involved, and a number of instances where individuals have made claims, false claims, that have then been relied on in me not being issued that extension.

And so for me, it’s essential that individuals and documents be subpoenaed, and for them to be considered at the hearing.

34    As to what she understood to be the application for the issuing of summonses to the persons identified, Member Parker stated at [19]:

19.    The Tribunal considers that it would not throw light on the issues, in a manner that was required in order for the Tribunal to be in a position to determine the principal application, by summonsing:

(a)    the delegate who made the Reviewable Decisions, as she has already stated in detail in her five page statement of reasons why she made the decision not to allow an extension of time in Mr Gadzikwa’s case. The present application is a de novo review meaning that it is the Tribunal’s task to make a fresh decision whether to allow an extension of time. This does not involve examining the delegate’s reasons in extensive detail, but instead it is appropriate for the Tribunal to move on from the delegate’s reasons to a process of forming its own view about whether or not to grant an extension of time and to form its own reasons for the ultimate decision it makes;

(b)    the two Allianz representatives about the redacting of certain documents and how the Vault system used by Allianz operated. The Tribunal notes from a cursory overview of the 800 to 900 documents already produced in this application that they contain hardly any redacted documents. The only one able to be identified by the Tribunal from scanning through them, was an email extracted within Mr Gadzikwa’s Submissions on page 6 dated approximately six months before the Reviewable Decision. Apart from the fact that this is an email to which Mr Gadzikwa should be able to access from his own “sent” mailbox of his email account (as the author of that email), the Tribunal is unable to identify from the face of this email how it would throw light on the issues arising in the present application based on its un-redacted contents. Further, the Tribunal was not satisfied that it needed an explanation provided as to how Allianz’s Vault system worked in order to be in a position to determine the issues arising before it in the present application; and

(c)     Dr Grant, a doctor who had examined Mr Gadzikwa, to explain how he had formed his medical opinions about him. The Tribunal considers that if the application for review before this Tribunal was a substantive review of the Original Determination to deny liability under s 14 of the SRC Act it may be appropriate for a summons to be issued in relation to a medical witness to give evidence at the hearing. However, this is not the case presently before this Tribunal. As explained above, the Tribunal is dealing with an application in relation to the delegate’s decision to refuse an extension of time to Mr Gadzikwa to request a reconsideration of the Original Determination. The Tribunal is only required to form a general impression as to Mr Gadzikwa’s prospects of success of this application. The Tribunal considers that this does not require an in-depth examination of the medical evidence and medical witnesses in the way proposed by Mr Gadzikwa. It would not assist the Tribunal or throw light on the issues in a way that is required in order for the Tribunal to consider the factors necessary to decide whether an extension of time should be granted to Mr Gadzikwa to request reconsideration of the Original Determination. The same reasoning applies in respect of the “consultant notes of the MLCOA consultants” which the Tribunal considers will not assist or throw light on the issues this Tribunal is required to determine as part of the present application before it.

[emphasis in original]

35    Turning then to the proposed realms of challenge, I should first record that Mr Gadzikwa indicated that in the event that he was successful either in respect of the application under the ADJR Act or, as I understood it, in the application under s 39B of the Judiciary Act, he would not press for the issuing by the Tribunal of the summons direction to Ms Teofilovic, the delegate who made the reviewable decision.

36    Mr Gadzikwa developed eloquently, with respect, a submission directed to the existence of an obligation on the part of a Tribunal to provide him with assistance, he being a litigant in person. His further submission was that the dealings which he had with the Tribunal ought to be regarded, in the context of assistance, just as a request for assistance in relation to how one obtained the issuing of summonses rather than an application for the issuing of summonses.

37    In my view, when one has regard to his letter of 22 December 2019, the characterisation adopted by the Tribunal was manifestly correct. It was an application for the issuing of summonses. As to the existence of any obligation to furnish assistance, the Tribunal is not to be assimilated with a court exercising the judicial power of the Commonwealth under Ch 3 of the Constitution. As to the letter and in relation to litigants in person, the Full Court in Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 147 ASCR 227 (Flightdeck Geelong), made a number of observations by reference to authority in relation to assistance to litigants in person at [54], [56] and [57]:

54.    The assistance provided to a litigant-in-person must therefore be limited to that which is necessary to diminish the disadvantage which he or she will ordinarily suffer, and the Court should be wary to avoid placing a litigant-in-person in a position of advantage or privilege over a represented opponent. …

…

56.    The duty of the Court does not extend to providing judicial advice, counselling a litigant on how to exercise their rights, or conducting the case on their behalf. …

…

57.    [T]he extent of the Court’s obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends on the “the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case”. …

38    Even accepting that the Tribunal is not to be assimilated, each of these considerations nonetheless arises in relation to the Tribunal, although the Tribunal may very well, having regard to its charter under s 33 of the AAT Act, adopt a much more informal approach either by members or registry staff in dealing with a litigant in person. The Tribunal must always observe procedural fairness in those dealings, but I could see no particular inhibition in either a member or a registry officer of the Tribunal offering guidance as to the correct form to use, for example, or the manner in which, as a matter of usual practice in a procedure, a statement of facts, issues and contentions is set out or the manner in which supplementary Tribunal documents, for example, might be indexed, paginated and otherwise prepared. All of this, though, is, as is apparent from Flightdeck Geelong, also factually idiosyncratic.

39    In this particular case Member Parker was, in my view, perfectly entitled to take that letter of 22 December 2019 as a request for the issuing of summonses, particularly in light of the statement made at the directions hearing by Mr Gadzikwa. There is not a scintilla of evidence, with all respect to Mr Gadzikwa, which would support a conclusion that Member Parker acted in bad faith. Such an allegation need not be proved to demonstration, only on the balance of probabilities, but it is a grave allegation and a conclusion of bad faith ought not be reached on the basis of indirect references or inexact proofs: see s 140(2) of the Evidence Act 1995 (Cth) and Briginshaw v Briginshaw (1938) 60 CLR 336.

40    It is necessary also to remember that the review application with which the Tribunal was concerned was not the review of compensation entitlement, only the review of an extension of time decision. The reasons given by Member Parker, both as a matter of impression as well as, for that matter, substantively in the context of the s 39B application, were amply within her remit under s 33 to make procedural directions and to decide under s 40A of the AAT Act, one way or the other, as to whether or not to issue the summonses sought.

41    Mr Gadzikwa was not denied procedural fairness by the Tribunal in the circumstances of this case. He made a request for summonses to be issued to named persons in his letter of 22 December 2019. He confirmed that request, or that desire, for the issuing of summonses at a hearing specifically convened for the making of directions. That hearing offered him an opportunity to amplify what he had already so expressly stated in his letter of 22 December 2019. There is nothing, in my view, about the Tribunal’s conduct which would have led to any impression on his part that it was anything other than a hearing for the purpose of considering what directions should be made, including directions responsive to what he had requested in his letter.

42    In my view, whether taken as a matter of impression for the purposes of deciding whether or not to grant an extension of time or substantively, the proposed grounds have no prospect warranting the granting of an extension and, for that matter, viewed as alleged jurisdictional errors they have no prospect of success at all. They are each, with all due respect to Mr Gadzikwa, misconceived. The Tribunal’s reasons amply, rationally, logically and permissibly detail why it is that requested summonses are not going to be issued by the Tribunal. The Court should be very guarded in scrutinising overly zealously procedural decisions made by the Tribunal in relation to the conduct of a review: see in this regard Rana v Repatriation Commission, at [31] and [32].

43    What necessarily follows from the foregoing is that, whilst the draft application for review under the ADJR Act should, in keeping with the desire of the parties, be deemed to be an application for review under s 39B of the Judiciary Act with the filing and service of such an application being dispensed with, that deemed application should be dismissed. So, too, for the reasons just given, should the extension of time application. It has, even though there is an acceptable explanation offered for delay by Mr Gadzikwa, no prospect of success. To grant the extension would be an exercise in futility. I, therefore, dismiss the extension of time application.

Associate:    

Dated:    26 February 2021