Dobson v Social Security Appeals Tribunal

[1999] FCA 716

FEDERAL COURT OF AUSTRALIA

Dobson v Social Security Appeals Tribunal [1999] FCA 716

DOBSON V SOCIAL SECURITY APPEALS TRIBUNAL

NG 349 OF 1998

JUDGES:      TAMBERLIN, SACKVILLE, KATZ JJ
DATE:          28 MAY 1999
PLACE:        SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 349 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MICHAEL JOHN DOBSON Appellant
AND:	SOCIAL SECURITY APPEALS TRIBUNAL Respondent
JUDGE:	TAMBERLIN, SACKVILLE, KATZ JJ
DATE OF ORDER:	28 MAY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 349 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MICHAEL JOHN DOBSON Appellant
AND:	SOCIAL SECURITY APPEALS TRIBUNAL Respondent

JUDGE:	TAMBERLIN, SACKVILLE, KATZ JJ
DATE:	28 MAY 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal by Mr Dobson against orders made by a Judge of this Court on 1 April 1998.  His Honour made the following orders:

   “1.The decision of the Administrative Appeals Tribunal given on 21 October 1997 in proceeding N96/1176 between Michael John Dobson as applicant and the Social Security Appeals Tribunal as respondent be set aside.

   2.The case be remitted to the Administrative Appeals Tribunal to be heard and decided in accordance with law and, in particular, in accordance with s 21A of the Administrative Appeals Tribunal Act 1975.”

2. The proceedings determined by his Honour took the form of an appeal by Mr Dobson under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) from a decision of the Administrative Appeals Tribunal (“AAT”) made on 21 October 1997.  In those proceedings, which were determined in the original jurisdiction of the Court, Mr Dobson raised what he claimed to be a  number of questions of law.  He sought a variety of orders, including an order declaring the decision of the AAT “invalid” and remitting the matter to the AAT, differently constituted.

3. As will become clear, the orders made by the primary Judge granted at least part of the relief sought by Mr Dobson.  Nonetheless, Mr Dobson now appeals to this Court.  He relies on a single ground, identified in the Notice of Appeal as follows:

   “Failure [of the primary Judge] to disqualify himself as per Notice of Motion filed 24/3/98 on the basis of statements so contained in affidavit of same date mainly pertaining to the ‘Fraudulent’ reasons for Judgment of 26.2.98 which remaining in its current state without alteration to the true facts & recommendations that should correctly be meant that court order 2 cannot be properly implemented.”

   Mr Dobson’s brief written submissions repeat, but do not explain, the assertion that the judgment was “bogus and fraudulent”.

4. The background to the proceedings appears from the AAT’s reasons and some additional findings made by the primary Judge.

5. Mr Dobson was a public servant.  He retired from the public service on medical grounds.  He applied for, and received, a disability support pension.  Because the Department of Social Security made a mistake in the application of the means test, Mr Dobson was underpaid from the date he commenced to receive the pension for a period in excess of three months.

6. Mr Dobson subsequently queried the rate of pension and obtained a determination increasing the rate.  However, the Department took the view that the determination could not be adjusted retrospectively.  The Social Security Appeals Tribunal (“SSAT”) affirmed the Department’s decision.  Mr Dobson sought review of the SSAT’s decision in the AAT and, ultimately, the matter was settled.

7. Mr Dobson was concerned about the way in which the matter was dealt with by the SSAT. On 26 July 1996, he made a request, pursuant to s 15 of the Freedom of Information Act 1982 (Cth) (“FOI Act”) seeking the following documents:

   “I require copies of documents from any and all files and any other documents so associated with the ‘Bogus’ Tribunal hearing of 7/9/94 and all subsequent associated actions involving various SSAT Tribunal members to this point in time.  All  documents must be accounted for in the event of a missing and/or unaccounted for document.”

8. On 20 August 1996, a delegate of the SSAT made a decision to grant Mr Dobson full access to two SSAT files. The delegate believed that Mr Dobson had already received copies of folios 1 to 44, inclusive, of the first file and folios 1 to 61, inclusive, of the second file.  She sent him copies of the balance of the two files, comprising folios 45 to 67, inclusive, of the first file, and folios 62 to 80, inclusive, of the second file.

9. Mr Dobson requested internal review of the decision of 20 August 1996.  A second delegate of the SSAT affirmed the original decision, on the basis that the SSAT did not have any additional documents which fell within the scope of Mr Dobson’s request.

10. On 30 September 1996, Mr Dobson applied to the AAT for review of the decision of 20 August 1996, as he was entitled to pursuant to s 55 of the FOI Act.

11. After Mr Dobson made his application to the AAT, additional documents within the scope of his original request came to light.  These were provided to Mr Dobson.

12. The hearing before the AAT commenced on 22 November 1996.  At Mr Dobson’s request, a number of witness summonses had been issued, requiring individuals to attend and give evidence on that day.  The witnesses were Ms MacDonald, the delegate who made the decision under review; Mr Matthews, a member of the SSAT which heard Mr Dobson’s appeal; and Ms Grant, the delegate who made the internal review decision.  Mr Dobson cross-examined all these witnesses.  Their evidence took a full day.

13. Mr Dobson informed the AAT that he wished fresh summonses to be issued to require a number of other witnesses to attend the hearing.  The witnesses he proposed to call included the National Convenor of the SSAT and other members of the SSAT.  The AAT member, on 22 November 1996, directed Mr Dobson to put in writing submissions as to why those witnesses should be summonsed.

14. In due course Mr Dobson lodged written submissions and sought the issue of additional witness summonses to other persons. The AAT member, on 13 January 1997, declined to exercise his discretion in favour of Mr Dobson. The AAT member, acting pursuant to subs 40(1A) of the AAT Act, took this course because he was not satisfied that the chances of any further documents being brought to light were strong enough to warrant the attendance of the proposed witnesses to give evidence.  In reaching this conclusion, the AAT member took into account that very little had been achieved at the hearing on 22 November 1996.

15. On 13 January 1997, the AAT member also gave directions that Mr Dobson lodge with the AAT a statement of evidence and all documents he intended to tender at the resumed hearing.  Mr Dobson did not comply with that direction.

16. On 28 February 1997, Mr Dobson wrote to the President of the AAT asking for the Tribunal to be reconstituted.  As it happens, 28 February 1997 was the date by which Mr Dobson was required to comply with the directions given on 13 January 1997, although the date for compliance was subsequently extended.

17. There was some dispute in these proceedings before the primary Judge as to when Mr Dobson received a reply from the President of the AAT.  His Honour found that Mr Dobson had received either a letter dated 12 March 1997 or one dated 15 May 1997.  His Honour considered that it was not necessary to determine which letter Mr Dobson had received, since the letters were in the same terms.  The President’s letter was as follows:

    “Subsection 21A(1) of the Administrative Appeals Act 1975 provides that at any time during a hearing a party may make an application to ‘the Tribunal as constituted for the purposes of that proceeding requesting that the Tribunal be reconstituted for the purposes of that proceeding’.  In this context, ‘the Tribunal’ is Deputy President Blow.

    Where such an application is made, the Tribunal (ie Deputy President Blow) needs to obtain any submissions in support and in opposition to the application for reconstitution – see subsection 21A(2).  Deputy President Blow is then required to notify the President of the application for reconstitution, together with particulars of any submissions.  The President then makes the decision as to whether to issue a direction varying the constitution of the Tribunal for the proceeding.

    Accordingly, any application for reconstitution of the Tribunal in the matter first needs to be made to Deputy President Blow.”

18. On 13 May 1997, a letter was sent by the Acting District Registrar to Mr Dobson advising him of a directions hearing to be heard on 19 May 1997.  Mr Dobson chose not to appear before Deputy President Blow at the directions hearing.  However, he attended at the Registry on that date and delivered a letter addressed to the Registrar, which was later given to the Deputy President.

19. The primary Judge summarised the terms of the letter, noting that “to put it mildly, it was discourteous”.  The letter made serious allegations and was expressed in extreme terms.  The letter challenged the right of the Registrar to notify Mr Dobson of the directions hearing, on the basis that he (Mr Dobson) had previously made it clear that he would not appear again before Deputy President Blow.  According to the letter, the only communication that the Registrar was entitled to send Mr Dobson was a letter asking him (Mr Dobson) when he intended to lodge a submission to Deputy President Blow relevant to the President’s request for submissions on the reconstitution of the Tribunal.  Mr Dobson advised that his submission would reach the Tribunal by 23 May 1997.

20. On 20 May 1997, the Registrar, acting at Deputy President Blow’s request, wrote to Mr Dobson as follows:

    “RE:  APPLICATION FOR REVIEW
      APPLICANT:          MICHAEL JOHN DOBSON
      RESPONDENT:      SOCIAL SECURITY APPEALS TRIBUNAL

    I acknowledge receipt of your letter dated 19 May 1997.

    On 12 May 1997 the Tribunal made attempts to contact you in relation to the abovementioned matter to discuss with you when:

    -your application for reconstitution of the Tribunal hearing this application, and

    -your statement in response to the Tribunal’s Direction dated 13 January 1997.

    would be lodged with the Tribunal.  On that date the Tribunal was not able to contact you by telephone and was informed by a person who answered the telephone at the last address you provided to the Tribunal that you did not live at that address.

    In an attempt to contact you to obtain from you advice about  your intentions in relation to this matter, and after discussions with Deputy President Blow, it was decided that this matter be listed for a Directions Hearing so that a timetable could be set for future action in this matter. Accordingly, a Directions Hearing was set for 9.30 am on Monday 19 May 1997 and the notice advising you of the Directions Hearing and dated 13 May 1997 was sent to you.

    I note that you did not attend the Directions Hearing yesterday.  Deputy President Blow was provided with a copy of your letter dated 19 May 1997 prior to the Directions Hearing.  He has asked me to advise you that he views that letter as an indication that you no longer wish to proceed with this matter and unless you advise the Tribunal within fourteen (14) days of the date of this letter that you wish the hearing of this matter to be resumed, Deputy President Blow proposes to make a decision finalising your application for review on the evidence that the Tribunal currently has before it.  Should you advise the Tribunal within that period that you wish the Tribunal to continue with the hearing of this application the matter will be relisted later in the year on a date to be advised.” (Emphasis supplied).

21. On 30 May 1997, Mr Dobson wrote a further letter, addressed to Deputy President Blow.  As the primary Judge observed, the letter was expressed in extreme, offensive and inflammatory terms.  Mr Dobson advised that he would have nothing more to do with the Deputy President in the pending proceedings and that he would regard any further directions by the Deputy President as “invalid”.  The letter made it clear that Mr Dobson wished the substantive application for review to be resumed, but not before Deputy President Blow.

22. The AAT member, in his reasons of 21 October 1997, described himself as being in a “most unusual situation” by reason of these events. He expressed the view that there was no point in resuming the hearing. He quoted the terms of subs 33(1) of the AAT Act, which states that the procedure of the AAT is, subject to certain exceptions, within its discretion.

23. The AAT’s reasons concluded as follows:

    “21.I do not think it would be fair to the applicant to dismiss his application under s 42A(2) of the AAT Act on the ground that he failed to attend the directions hearing on 19 May 1997, nor to dismiss his application that it is frivolous under s 42B(1)(a) of that Act.  It is significant that, between the making of the application and the commencement of the hearing, further documents came to light that were within the scope of the applicant’s request.  In the circumstances, I think the preferable course is for me not to reconvene the hearing..., but to bring the matter to a conclusion by making a decision on the merits.

    22.For these reasons, the decision under review is varied to the extent that access is granted to the applicant to the additional documents referred to [previously].”

24. Mr Dobson filed a notice of appeal in this Court on 5 November 1997, appealing from the decision of the AAT.  He subsequently filed an amended notice of appeal.  The respondent to the proceedings, the SSAT, applied by motion for an order staying or dismissing the proceedings, pursuant to Federal Court Rules (“FCR”), O 20, r 2.

25. The primary Judge delivered reasons for judgment on 26 February 1998.  His Honour addressed four questions of law said by Mr Dobson to be raised by the appeal.

26. The first question of law was identified by Mr Dobson simply as “the FOI Act”.  Since Mr Dobson did not identify any particular provision of the FOI Act which gave rise to an error of law in the AAT’s reasons, the primary Judge found that Mr Dobson had not demonstrated any error of law in relation to this issue.

27. The second issue identified by Mr Dobson concerned subs 40(1A) of the AAT Act. His Honour expressed the view that no error had been shown in the exercise of the AAT’s discretion pursuant to that subsection not to issue further witness summonses.  His Honour pointed out that Mr Dobson had no right to have the further summonses issued: the question was one for the discretion of the presiding member.  The discretion had not been improperly exercised.

28. Thirdly, Mr Dobson had referred, without elaboration, to subs 33(1) of the AAT Act. His Honour said that Mr Dobson had shown no identifiable error of law by reference to that provision.

29. The fourth issue was regarded by his Honour as one requiring rather more elaborate discussion. It turned on s 21A of the AAT Act. Section 21A is in the following terms:

    “21A  Reconstitution of Tribunal in certain cases

    (1)At any time during the hearing of a proceeding before the Tribunal (other than a proceeding in which the Tribunal is constituted by a presidential member who is a Judge and 2 other members), a party to the proceeding may apply to the Tribunal as constituted for the purposes of the proceeding requesting that the Tribunal be reconstituted for the purposes of the proceeding.

    (2)Upon the making of an application under subsection (1), the Tribunal as constituted for the purposes of the proceeding shall, after receiving the submissions made in support of the application and any submissions made in opposition to the application, notify the President of the making of the application and furnish him or her with particulars of those submissions.

    (3)The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction varying the constitution of the Tribunal for the purposes of the proceeding.

    (4)Where a direction is so given, the Tribunal as reconstituted in accordance with the direction shall continue the proceeding and may either:

    (a)complete the proceeding; or

    (b)at any time remit the proceeding to the Tribunal as previously constituted for completion by the Tribunal as previously constituted.

    (5)Where the Tribunal as reconstituted so remits a proceeding to the Tribunal as previously constituted, the Tribunal as reconstituted may give directions in relation to the proceeding to the Tribunal as previously constituted and the Tribunal as previously constituted shall, in making a decision on the review, comply with those directions.

    (6)Where, by virtue of subsection (4), a proceeding is continued by the Tribunal as reconstituted in accordance with a direction given under subsection (3), the Tribunal may, for the purposes of that proceeding, have regard to any record of the proceeding before the Tribunal as previously constituted including a record of any evidence taken in the proceeding.

    (7)Where, by virtue of subsection (4), a proceeding is remitted by the Tribunal as reconstituted to the Tribunal as previously constituted, the Tribunal as previously constituted may, for the purposes of that proceeding, have regard to any record of the proceeding before the Tribunal as reconstituted including a record of any evidence taken under the proceeding.”

30. After recounting the course of events, his Honour pointed out that it was not accurate for the AAT to have recorded that Mr Dobson wished “to have nothing further to do with these proceedings”.  Mr Dobson’s position, although framed offensively, was that he wished the proceedings to continue, but for the AAT to be reconstituted.  His Honour also pointed out that, although the AAT’s decision was favourable to Mr Dobson, in that it required the SSAT to provide access to certain documents, Mr Dobson’s position was that he wished to have the opportunity to prove that there were other documents in existence to which he was entitled to access.

31. The primary Judge noted that one way in which the Deputy President might have dealt with the “most unusual position” facing him, was to have received written submissions from Mr Dobson in support of the application for reconstitution and from the SSAT in opposition to the application. The AAT could then have proceeded in conformity with subs 21A(2) of the AAT Act. Under subs 21A(3), it would have been for the President of the AAT to decide whether or not there was to be a reconstitution of the AAT. If the President had decided that there was to be a reconstitution, s 21A would have governed the procedure to be followed by the reconstituted AAT. If the President had decided against that course, Deputy President Blow would have resumed the proceeding and might have dealt with the matter in the way in which ultimately he did.

32. His Honour identified two courses that were available to him. The first was to order that the matter to be remitted to the AAT. This would allow Mr Dobson’s application for reconstitution of the AAT to be made to Deputy President Blow in the first instance, as required by the express terms of subs 21A(2) of the AAT Act and to be determined by the President in accordance with subs 21A(3). The alternative approach was to take the view that it was futile to remit the matter to the AAT, since Deputy President Blow had already declined to exercise his discretion to issue further written summonses and there would be no point in continuing the proceedings in these circumstances.

1. His Honour took the sensible course of allowing the parties a short period in which to make written submissions addressing the alternative courses which he had identified.  Accordingly, he directed the parties, by 23 March 1998, to make submissions in writing as to the form of order or orders to be made.

2. On 24 March 1998, the day after submissions were due, Mr Dobson filed a notice of motion seeking to have the primary Judge disqualified from any further participation in the proceedings.  This motion was supported by an affidavit.  As far as can be deduced, Mr Dobson’s application appears to have been based on what he perceived to have been errors in the reasons for judgment delivered on 26 February 1998.

3. Mr Dobson’s motion was returnable on 1 April 1998.  On that date, his Honour refused to disqualify himself and made the orders which have already been set out.  As between the two alternatives, he chose that which was more favourable to Mr Dobson.  Under the terms of those orders, as we have observed, it is open to Mr Dobson to resume his application for the reconstitution of the AAT and, if the AAT is reconstituted, to pursue his application for the issue of summonses to the various witnesses.  What course will be adopted will be a matter for the AAT acting in accordance with the provisions of the AAT Act.

4. It will be seen that Mr Dobson’s application to the primary Judge to disqualify himself was made after his Honour had delivered the judgment of 26 February 1998.  At the point the application was made, the only issue remaining in the proceedings was which of the two alternative forms of order identified by his Honour should be adopted.  As we have noted, his Honour in fact adopted the alternative more favourable to Mr Dobson.

5. In the course of argument, it was pointed out to Mr Dobson that the order made by the primary Judge provided for him (Mr Dobson) to pursue his application for the AAT to be reconstituted, in accordance with the procedure laid down by s 21A of the AAT Act. He is also entitled to pursue his application for access to those documents not already produced for inspection. It is our understanding of the effect of his Honour’s orders that, if the AAT were reconstituted, Mr Dobson would be entitled to renew his application for the issue of fresh witness summonses, although, of course, it would be for the AAT to determine whether the application should succeed. Indeed, it may be that, in consequence of the remittal order made by the primary Judge, the President of the AAT will designate a member other than Deputy President Blow to deal with the matter without the need for the procedures in s 21A to be followed. The upshot is that Mr Dobson in fact has enjoyed a large measure of success in his appeal to this Court at first instance under s 44 of the AAT Act.

6. In these circumstances, it suffices for the purposes of the present appeal to say that Mr Dobson has not identified any basis for his claim that the primary Judge should have disqualified himself.  Mr Dobson complained about his inability to obtain legal representation, but acknowledged that the primary Judge had facilitated his attempts to secure legal representation.  Mr Dobson also characterised the reasons for judgment delivered on 26 February 1998 as “bogus” and “fraudulent”.  However, this claim seems merely to rest on Mr Dobson’s disagreement with particular findings and with aspects of the reasoning.  It does not demonstrate bias or any other conduct that remotely approached a reason for his Honour to disqualify himself.

7. We should add that nothing has been said by Mr Dobson which cast doubt on any of the conclusions of law or fact reached by the primary judge.  His Honour addressed the issues carefully and we have detected no error in his approach.

8. For these reasons, the appeal should be dismissed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Sackville & Katz JJ.

Associate:

Dated:            28 May 1999

Counsel for the Appellant:	Self Represented
Counsel for the Respondent:	Mr B. Skinner
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 May 1999
Date of Judgment:	28 May 1999