Federal Court of Australia

CMW22 v Administrative Appeals Tribunal [2023] FCA 262

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed under rule 36.72 of the Federal Court Rules 2011 (Cth).

2.    The appellant is to pay the second respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    By a notice of appeal filed in the Federal Court of Australia on 14 September 2022, the appellant seeks to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA): CMW22 v Administrative Appeals Tribunal [2022] FedCFamC2G 767. The Court below summarily dismissed the appellant’s appeal on a question of law against a decision of the first respondent, the Administrative Appeals Tribunal (AAT or Tribunal), pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Section 42A(4) of the AAT Act provides that “[t]he Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.”

2    The AAT filed a submitting notice in accordance with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13. On 10 October 2022, the second respondent, the Child Support Registrar, objected to the competency of the appellant’s notice of appeal on the basis that the judgment below was interlocutory in character, and that the appellant was therefore required to seek leave to appeal. Accordingly, the Registrar sought to dismiss the appeal with costs. The appellant filed two sets of submissions on 9 and 14 December 2022, in relation to the notice of objection to competency and the AAT’s submitting notice, respectively. The submissions purportedly relating to the AAT’s submitting notice (14 December 2022 submissions) also set out a number of unrelated requests and claims, including a comment that the appellant will submit his claim to the United Nations in the event that he is unsuccessful before this Court. The appellant further submitted, in the 14 December 2022 submissions, that I should be disqualified from hearing and determining the matter on the basis that I am a Deputy President of the AAT.

3    On 16 December 2022, the Court made timetabling orders for the parties to file written submissions with respect to the notice of objection to competency, and for the issue to be determined on the papers. On 27 January 2023, written submissions were filed by the second respondent and the appellant (again) with respect to the notice of objection to competency. In his submissions in this instance, the appellant appears to contend that there is no need for him to seek leave to appeal because I am a Deputy President of the AAT and there is “a new Polish court’s procedure III RC 1/22 [which] started in January 2022.”

4    For the following reasons, there is no substance in the allegation that I should recuse myself from the matter, the notice of appeal is not competent, and the appeal must be dismissed with costs.

5    Finally, I note that primary judge made orders suppressing the appellant’s name in this proceeding pursuant to s 110X of the Child Support (Registration and Collection) Act 1988 (Cth) (Child Support Act). Section 110(X)(1) of the Child Support Act makes it an offence, save in limited circumstances, to publish proceedings which identify persons, associated persons, or witnesses involved in “designated review proceedings”. The term “designated review proceedings” is defined in s 110X(7) of the Child Support Act to mean proceedings:

(a)     in the AAT for AAT first review or AAT second review; or

(b)     in a court under Part IVA of the AAT Act in relation to such a review.

6    In circumstances where there was no evidence or submissions made to the effect that the proscription in s 110X(1) of the Child Support Act does not apply, I consider that it is appropriate to continue not to publish the appellant’s name in connection with this proceeding.

2.    DISQUALIFICATION APPLICATION

7    In the 14 December 2022 submission, the appellant submitted that I should disqualify myself on the basis that:

(a)    he had not agreed to participate “under the Judge Melissa Anne Perry’s jurisdiction”;

(b)    I am a “Vice President” of the Tribunal which has submitted to any order of the Court save as to costs; and

(c)    my participation “is an abuse of any judicial power and our Australian Constitution” and is in breach of Art 14 of the International Covenant on Civil and Political Rights, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR).

8    It is unclear whether the appellant is alleging that I should be disqualified on the ground of apprehended or actual bias. As a result, I have addressed both possible contentions.

9    The test for determining whether a decision maker is disqualified by reason of the appearance of bias is well-established, namely, “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31] (Gummow A-CJ, Hayne, Crennan and Bell JJ; see also Charisteas v Charisteas [2021] HCA 29; (2021) 95 ALJR 824 at [11] (the Court). As such, the test is an objective one: Wilson at [32]-[33]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [7]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

10    This test requires consideration of two steps:

(1)    identification of what it is said might lead a judge to decide a case otherwise than on its legal and factual merits; and

(2)    articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.

(Ebner at [8]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [21] (Kiefel, Bell, Keane and Nettle JJ).)

11    In applying the test for apprehended bias, it is also important to emphasise that the fair-minded lay observer “is taken to be aware of the nature of the decision and the context in which it was made, as well as to have knowledge of the circumstances leading to the decision”: Isbester at [23] (Kiefel, Bell, Keane and Nettle JJ).

12    None of the matters raised by the appellant, either cumulatively or individually, provide a basis on which I should recuse myself from determining this matter.

13    First, on no basis could the appellant’s lack of agreement to my hearing and determining the appeal have any relevance to the question of whether I am disqualified. To the contrary, it is the duty of a judge to hear a matter, notwithstanding a party’s objection, if, applying the principles to which I have referred, no proper basis is established for disqualification. As the Full Federal Court recently held unanimously in Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission (Leave to Appeal) [2022] FCAFC 161 at [32]:

Importantly, a judge’s duty is to hear and determine the litigation before him or her. In Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294, Mason, Murphy, Brennan, Deane and Dawson JJ said:

it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of prejudgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.

14    Secondly, with respect to the appellant’s second objection, the appointment of judges of the Federal Court of Australia and the FCFCOA as Deputy President of the Tribunal, as well as the appointment of a judge of the Federal Court as President, is provided for in ss 6 and 7 of the AAT Act. While I have been appointed as a Deputy President of the Tribunal for the period 20 July 2018 to 19 July 2025, I have had no involvement in any of the appellant’s applications before the Tribunal. Nor is any such involvement alleged. In those circumstances, there is no logical connection between my holding office as a Deputy President of the Tribunal and any risk that I might decide the appellant’s case otherwise than on its merits.

15    Thirdly and having regard to these matters, there is no basis on which my sitting upon the case might breach Australian’s international obligations under the ICCPR, quite apart from the fact that those obligations have not relevantly been enacted and therefore do not apply domestically: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101] (McHugh and Gummow JJ).

16    Finally, to the extent to which the appellant seeks to raise an allegation of actual bias in the form of prejudgment, nothing is identified which could establish that I am “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] (Gleeson CJ and Gummow J; Hayne J agreeing at [176]).

17    It follows that my duty is to hear and determine this matter.

3.    BACKGROUND

18    The facts giving rise to this complaint trace back to the appellant’s marriage in Poland and subsequent divorce in Australia in 2002, as detailed in the reasons for the AAT decision dated 21 June 2022 (2022 AAT decision). As a result of his divorce, a Polish Court made an order on 28 September 2006 requiring the appellant to pay his former wife spousal maintenance (spousal maintenance order): 2022 AAT decision at [8]. On 10 January 2014, the spousal maintenance order was subsequently registered by the Registrar from 7 November 2013 (2022 AAT Decision at [8]), as a consequence of which the appellant had a spousal support liability in Australia.

19    The appellant was dissatisfied with the Registrar’s registration of the spousal maintenance order and, in 2014, sought review in the AAT of the registration on the ground that the order was fraudulent. On 27 August 2014, the AAT affirmed the decision under review, finding (at [29]) that the spousal maintenance order was a registrable maintenance liability which was properly registered on 10 January 2014 (2014 AAT Decision). A challenge by the appellant to the 2014 AAT Decision in the (then) Federal Circuit Court was dismissed as “misconceived and entirely lacking in merit”: Pryor v Pearce (SSAT Appeal) [2015] FCCA 1240 at [2] (Judge Scarlett).

20    On 6 January 2022, the appellant filed an application for review in the AAT in relation to the 2014 AAT decision. The appellant indicated that he was not seeking to re-open the 2014 AAT Decision, but was instead seeking redress from what he alleged was a fraud perpetrated by the AAT. The appellant alleged that this purported fraud had deprived him of the ability to return to Poland, due to debts incurred and the consequent risk of imprisonment if he arrived in that country (2022 AAT decision at [10]).

21    On 21 June 2022, the AAT dismissed the application for review. The AAT held that it had no jurisdiction to review the 2014 AAT decision (at [13]). Further, and in any event, the AAT found that even if it had power to reconsider the matter, there was no prospect that the appellant would get a more favourable outcome (at [13]). This was because, following receipt of further evidence from the Polish Central Authority in 2016, the Registrar made a decision on 6 September 2016 to end the spousal maintenance order from 17 May 2011 (as a result of which an amount of $4,548.46 was repaid to the appellant). This had the effect, in essence, of nullifying the 2014 AAT decision (at [12]-[13]).

22    On 13 July 2022, the appellant filed a notice of appeal in the FCFCOA in relation to the 2022 AAT Decision, seeking orders (amongst others) dismissing the AAT’s decision.

23    On 10 August 2022, the second respondent filed a response seeking summary dismissal of the proceeding under s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), on the ground that the appellant has no reasonable prospect of successfully prosecuting the proceeding.

24    On 12 August, the appellant filed an amended notice of appeal, seeking an order that “[t]he Court issues a declaration that the Second Respondent make an application to the High Court of Australia to dismiss the order [2015] FCCA 1240 based on the recognition of the limitation for Polish order made on 28 September 2006 up to 17 May 2011 given by the Tribunal under AAT Act 1975 in a child support first review”.

25    The amended notice of appeal identified two purported questions of law, as follows:

1.     Whether the second Respondent is obliged by law to make an application to the High Court of Australia to dismiss order [2015] FCCA 1240 to give effect to AAT’s decision of 21 June 2022 which is saying that the Registrar’s decision of 6 September 2016 is in effect and it nullified the 27 August 2014 decision of the AAT which means the decision has no practical effect after the Registrar has limited the spousal maintenance pursuant to Section 37 of the CSRC Act 1989 within the Australian Government Services Australia Child Support only on request under the UNCRAM made by overseas court ?

2.     Whether the limitation of the spousal maintenance up to 17 May 2011 made by the Child Support Registrar’s decision of 6 September 2016 within the Australian Government Services Child Support Jurisdiction (only) is a proper act under UNCRAM, after the AAT’s approval for the Registrar’s decision by the review 2022/SC023323 under the AAT Act 1975 ?

(Emphasis in original.)

The reference to UNCRAM is a reference to the United Nations Convention on the Recovery Abroad of Maintenance 268 UNTS 3 (entered into force 25 May 1957).

26    On 12 September 2022, the primary judge summarily dismissed the amended notice of appeal, holding (at [22]):

The Court accepts the respondent’s submissions that there is no proper question of law that has been raised in these proceedings, and that there is, in the circumstances of this case, no reasonable prospect of success in the proceedings as originally commenced or as identified in the amended notice of appeal. The Court has taken into account the caution and high degree of satisfaction identified in Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 in determining whether proceedings should be summarily dismissed. The Court is satisfied that no proper matter has been identified within its jurisdiction by the Notice of Appeal or the amended Notice of Appeal, and that neither the Notice of Appeal nor the amended Notice of Appeal have any reasonable prospect of success.

27    The primary judge also observed that the appellant made submissions concerning the history of his spousal maintenance dispute and his understanding as to the applicability of international law to govern the dispute. However, his Honour found that these “are not matters that give rise to disclosing a subject matter capable of being invoked before this Court or, at the high level in which it has been asserted, capable of engaging in [sic] the jurisdiction of the Federal Court of Australia making it appropriate to transfer the same” (at [23]).

28    Nor did the primary judge consider that there would be any utility in allowing further amendments to the amended notice of appeal, to facilitate the seeking of appropriate relief before the Court (at [26]).

29    The primary judge therefore concluded that the notice of appeal and amended notice of appeal did not properly engage the FCFCOA’s jurisdiction, had no reasonable prospects of success, and should be struck out (at [27]-[28]).

4.    DISPOSITION OF THE OBJECTION TO COMPETENCY

4.1    Relevant principles concerning appeals from summary dismissals

30    Subject to an exception not presently relevant, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides that an appeal must not be brought (relevantly) from an interlocutory judgment of the FCFCOA unless leave to appeal is granted by the Federal Court.

31    Section 24(1D)(ca) of the FCA Act states that “a judgment of the Federal Circuit Court under section 17A of the Federal Circuit Court of Australia Act 1999 [FCC Act]” (emphasis added) is an interlocutory judgment “for the purposes of subsections (1A) and (1C)”. Section 17A of the FCC Act (now repealed) provided for the jurisdiction of the Federal Circuit Court (as it then was) to make orders for ‘summary judgment’. That provision has since been replaced by s 143 of the FCFCOA Act which is drafted in substantively similar terms: Cavar v Secom Australia Pty Ltd [2022] FCA 1558 at [17] (Katzmann J). While s 24 of the FCA Act has not yet been updated so as to expressly refer to s 143 of the FCFCOA Act, it is well-established that an order summarily dismissing a proceeding on the ground that no reasonable cause of action has been disclosed is an interlocutory judgment requiring leave to appeal: see e.g. Re Page; Hill v Fladgate [1910] 1 Ch 489; (1910) 102 LT 388; Fuller v Toms [2012] FCAFC 155 at [14] (the Court); and BVG17 v BVH17 [2019] FCAFC 17; (2019) 268 FCR 448 at [29] (Collier and Rangiah JJ) and [132] (Perry J).

32    Accordingly, in order to appeal from a summary dismissal of the FCFCOA, a grant of leave to appeal is required: FCA Act s 24(1A). In turn, an application for leave to appeal must comply with the requirements of Div 35.2 of the Federal Court Rules (2011) (Cth) (FCR), including being filed in accordance with Form 117 and within a 14-day time limit: rr 35.12-13.

4.2    The appeal is not competent

33    On 14 September 2022, the appellant filed a notice of appeal in the Federal Court of Australia. The second respondent filed a notice of objection to competency on the ground that the appellant has not filed an application for leave to appeal pursuant to s 24(1A) of the FCA Act.

34    I agree that the appeal is not competent. The primary judge made orders summarily dismissing the proceedings below on the grounds that the proceeding did not raise any proper question of law and had no reasonable prospects of success as originally commenced or as identified in the amended notice of appeal (at [22]). Accordingly, the orders below were interlocutory in nature and the appellant was required to apply for leave to appeal the decision of the primary judge, in accordance with s 24(1A) of the FCA Act and Div 35.2 of the FCR. As the appellant has not done so, the appeal is not competent and should be dismissed pursuant to r 36.72(5) of the FCR. That rule relevantly provides that, “[i]f the Court decides that an appeal is not competent, the appeal is dismissed”.

35    As I stated in Huang v University of New South Wales [2014] FCA 1337 at [50]:

The purpose of r 36.72 is to relieve the parties of the expense of preparing for an appeal that is incompetent and allows the appellant to consider withdrawing an appeal without incurring further expense: see Marchant v GB Radio (Aust) Pty Ltd [2002] FCA 465 … at [5] (North J). While the decision in Marchant concerned the predecessor provision to r 36.72, namely order 52 r 18(3), Federal Court Rules 1979, I do not consider that r 36.72 has any different intent: see: Singh v Owners Strata Plan No 11723 (No 3) (2012) 207 FCR 390; [2012] FCA 1121 … at 396 [29] (Griffiths J).

36    Thus, in applying r 36.75, “[t]here is no element of discretion”. Where, as here, the appeal is incompetent, it must be dismissed: Huang at [52] (Perry J).

5.    OTHER PROCEEDINGS BROUGHT BY THE APPELLANT

37    Finally, I observe that this matter is one of a very substantial number of proceedings brought by the appellant, all of which stem from the appellant’s dissatisfaction with the registration of the spousal maintenance order in Australia. Because the publication of the appellant’s name has been suppressed under s 110X(4)(h) of the Child Support Act, I am unable to refer specifically to those proceedings. Nonetheless, I note that the appellant’s claims in those cases have variously been described as hopeless, incomprehensible, having no reasonable prospects of success, and/or an abuse of process.

38    Against that background, it may be appropriate to consider the suitability of a vexatious proceedings order against the appellant pursuant to s 37AO of the FCA Act. Such an order would preclude the appellant from instituting proceedings in this Court without prior leave of the Court (s 37AQ(1)), and would facilitate in the making of further orders staying or dismissing all pending proceedings before the Court (s 37AO(2)).

39    However, as no issue pertaining to s 37AO of the FCA Act has been raised in this proceeding, I make no further comment on that issue.

6.    CONCLUSION

40    It follows for these reasons that the notice of appeal is not competent as the appellant should have filed an application for leave to appeal, as required by s 24(1A) of the FCA Act. The appeal must be dismissed with costs.

Associate:

Dated:    24 March 2023