Federal Court of Australia

Jacob v Secretary Department of Social Services [2022] FCA 423

REASONS FOR JUDGMENT

FEUTRILL J:

SUMMARY

1    This judgment is concerned with whether the Court should issue a referral certificate under r 4.12 of the Federal Court Rules 2011 (Cth).

2    For the reasons set out below, I have decided not to issue such a referral certificate at this time.

NATURE OF PROCEEDINGS

3    On 1 February 2022, the applicant commenced proceedings in this Court by a notice of appeal from a decision of a member of the Administrative Appeals Tribunal (AAT) to dismiss the applicant’s application in the AAT. The application in the AAT was dismissed pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The member dismissed the application in the AAT by reason of the applicant's failure to comply with directions by the AAT within a reasonable period of time. Further, the member refused a request for reinstatement of the application in accordance with s 42A(9) of the AAT Act.

4    The respondent filed a notice of objection to the competency of the appeal dated 18 February 2022. In that notice the respondent asserted that the appeal was incompetent because it does not raise a question of law as required by s 44(1) of the AAT Act.

5    Subsequently, the respondent indicated, through a minute of proposed orders, that it was prepared to agree to orders in the following terms:

1.    The respondent's notice of objection to competency filed on 18 February 2022 be withdrawn.

2.    The appeal be allowed.

3.    The decision of the Administrative Appeals Tribunal (Tribunal) made pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and dated 6 January 2022 dismissing the applicant's application for review be set aside.

4.    The matter be remitted for reconsideration in accordance with law by the Tribunal differently constituted.

6    Through communications with my chambers, it became apparent that the only issue between the parties in the proceedings concerned the form of proposed order 4 above. That was confirmed with the parties at directions hearings held on 22 March 2022, which was not attended by the applicant, and on 30 March 2022, which was attended by the applicant and the respondent.

7    On 30 March 2022, I made orders for directions for the purpose of the parties putting before the Court material that provides the factual and legal basis for orders to be made in terms of the respondent's minute of proposed orders or for some variation of those orders to be made.

8    On 30 March 2022, the applicant made submissions to the effect that he disagreed with the form of order 4, but the precise basis upon which he disagreed with that form was not clear and did not become clear during that directions hearing. Nonetheless, it was evident from his submissions that he presses for an order to be made in more favourable terms than the respondent's proposed order 4 referred to above.

REQUESTS TO APPOINT A LAWYER

9    On 30 March 2022, the applicant also made a submission to the effect that it was his right to have a lawyer and he requested that the Court appoint a lawyer for him. The applicant made a submission to the effect that the Court has a discretion to appoint a lawyer for him. The applicant also made a submission to the effect that he did not wish to obtain legal advice or assistance from a community legal service or legal aid.

10    Contrary to the applicant's submission, the Court does not appoint lawyers for parties to proceedings before the Court. However, the Court has a discretion to and may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with Form 9 and Div 4.2 of the Federal Court Rules. I have taken the applicant's submissions to be, in substance, a request for the Court to consider the exercise of the discretion to issue such a referral certificate.

11    I considered the applicant's request and decided not to issue a referral certificate. My decision was communicated to the parties through an email from my associate on 30 March 2022. On 11 April 2022, by email to my associate, the applicant, amongst other things, requested reasons for my decision. Although the Court is under no obligation to provide reasons for a decision not to exercise the discretion under Div 4.2 of the Federal Court Rules, in the circumstances of this case, I consider that it is appropriate to provide reasons for my decision.

DIVISION 4.2 OF THE FEDERAL COURT RULES

12    Under r 4.12(1), the Court has power to refer a party to a lawyer for legal assistance by issuing a referral certificate in accordance with Form 9. Under r 4.12(2), when making a referral under subrule (1), the Court may take the following matters into account:

(a)    the means of the party;

(b)    the capacity of the party to otherwise obtain legal assistance;

(c)    the nature and complexity of the proceeding; and

(d)    any other matters the Court considers appropriate.

13    The Court's power to issue a referral certificate is very broad: see, for example, Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 319 at [10]; Rivera v Minister for Home Affairs [2008] FCA 1 at [8]; and Fuller v Toms (2012) 247 FCR 440 at [92]-[93]. In Fuller v Toms (at [94]-[96]) Barker J said:

94    It should also be noticed that by r 4.13, a party has no right to apply for a referral. This too emphasises the breadth of the Court’s discretionary power to control the referral process. That said, there is no difficulty with a party raising the question of referral, as the applicant has here, as a means of initiating the Court’s consideration of the exercise of its discretion.

95    Rule 4.12(2) sets out the matters that the Court “may” — not “must” — take into account in deciding whether or not to make a referral…

96    It is clear from the language used in r 4.12(2) that the Court is not limited to a consideration of the particular matters listed, nor required to take any into account, and indeed (d) emphasises that the Court can consider any matter that it considers appropriate.

14    Insofar as the means of the applicant are concerned, there is no evidence before the Court of the applicant's financial circumstances. However, there is no need for me to inquire further into that matter for the reasons which follow and, in any event, I am prepared to assume that the applicant's means would be a factor in favour of the exercise of the discretion.

15    As to the capacity of the applicant to obtain legal assistance, by his submissions on 30 March 2022, he advised the Court that he was unwilling to attempt to obtain the assistance from a community legal service or legal aid. The substance of the applicant's submission was to the effect that he did not consider that he would obtain adequate or appropriate legal assistance from either of those potential sources. While there is no evidence before the Court concerning the applicant's capacity to obtain legal assistance, again, I am prepared to assume that this too would be a factor in favour of the exercise of the discretion.

16    As to the nature and complaints, the proceedings are not complex and, in any event, are largely uncontested. As mentioned above, the only real issue between the parties is the form of the order by which the matter should be remitted to the AAT for determination. These are powerful factors against the exercise of the discretion in this case.

17    Against the exercise of the discretion, I have also taken into account the time and delay that would be associated with the process of obtaining legal assistance and the absence of any guarantee that legal assistance would be secured.

18    As mentioned above, and as is made clear by r 4.13 of the Federal Court Rules, a party is not entitled to apply to the Court for a referral under r 4.12. Further, Div 4.2 of the Federal Court Rules does not provide a general system of legal aid. As the Full Court of this Court said in Hui v Commonwealth [2001] FCA 69 (at [6]) with respect to the nature and purpose of O 80 of the former Rules:

Order 80 does not provide a general system of legal aid. It would be unfair to the legal profession to expect it to cover, on a pro bono basis, all the many cases where litigants appear in person because they are impecunious and have failed to obtain legal aid. Order 80 applies where the Court, or a Judge, considers "it is in the interests of the administration of justice" to refer a particular litigant for assistance under that order. The focus is on the needs of the Court and the proper administration of justice. While it is always helpful to have parties legally represented, the use of Order 80 should be confined to cases of particular need. ...

19    Rule 4.12(4) imposes upon the Registrar only an obligation to "attempt to arrange for the provision of legal assistance in accordance with a referral certificate to pro bono lawyer". It does not require the Registrar to obtain such assistance. The Rules in Div 4.2, do not amount to a guarantee of representation: see Taylor at [12].

20    Having regard to the fact that there is very little in dispute in the proceedings and that the matter may be capable of resolution on the papers or by way of a very short oral hearing, even if all other factors pointed in favour of referral of the manner for a certificate for legal assistance, in my view, it is not in the interests of administration of justice to do so. There is no guarantee that pro bono legal assistance could be obtained for the applicant and, if obtained, there is real prospect that it would result in an adjournment of the final hearing of the matter and delay in resolution of the proceedings.

21    It follows that, I have decided that there is no sufficient reason to make a referral certificate and the Court will not issue a referral certificate under r 4.12 of the Federal Court Rules.

Associate:

Dated:    21 April 2022