Lawrance v President, Administrative Appeals Tribunal

[2005] FCA 1031

FEDERAL COURT OF AUSTRALIA

Lawrance v President, Administrative Appeals Tribunal [2005] FCA 1031

AROHA LAWRANCE v PRESIDENT ADMINISTRATIVE APPEALS TRIBUNAL, SENIOR MEMBER KELLY ADMINISTRATIVE APPEALS TRIBUNAL, SENIOR MEMBER ALLEN ADMINISTRATIVE APPEALS TRIBUNAL, BEV SMITH, CHIEF EXECUTIVE OFFICER CRS AUSTRALIA, EXECUTIVE DIRECTOR SOCIAL SECURITY APPEALS TRIBUNAL, CHIEF EXECUTIVE OFFICER CENTRELINK, PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL, SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES, HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

NSD 1049 OF 2005

WILCOX J
14 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1049 of 2005

BETWEEN:

AROHA LAWRANCE
APPLICANT

AND:

PRESIDENT
ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENT

SENIOR MEMBER KELLY
ADMINISTRATIVE APPEALS TRIBUNAL
SECOND RESPONDENT

SENIOR MEMBER ALLEN
ADMINISTRATIVE APPEALS TRIBUNAL
THIRD RESPONDENT

BEV SMITH
FOURTH RESPONDENT

CHIEF EXECUTIVE OFFICER
CRS AUSTRALIA
FIFTH RESPONDENT

EXECUTIVE DIRECTOR
SOCIAL SECURITY APPEALS TRIBUNAL
SIXTH RESPONDENT

CHIEF EXECUTIVE OFFICER
CENTRELINK
SEVENTH RESPONDENT

PRINCIPAL MEMBER
REFUGEE REVIEW TRIBUNAL
EIGHTH RESPONDENT

SECRETARY
DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
NINTH RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
TENTH RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

14 JULY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed with costs.

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	NSD 1049 of 2005

BETWEEN:

AROHA LAWRANCE
APPLICANT

AND:

PRESIDENT
ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENT

SENIOR MEMBER KELLY
ADMINISTRATIVE APPEALS TRIBUNAL
SECOND RESPONDENT

SENIOR MEMBER ALLEN
ADMINISTRATIVE APPEALS TRIBUNAL
THIRD RESPONDENT

BEV SMITH
FOURTH RESPONDENT

CHIEF EXECUTIVE OFFICER
CRS AUSTRALIA
FIFTH RESPONDENT

EXECUTIVE DIRECTOR
SOCIAL SECURITY APPEALS TRIBUNAL
SIXTH RESPONDENT

CHIEF EXECUTIVE OFFICER
CENTRELINK
SEVENTH RESPONDENT

PRINCIPAL MEMBER
REFUGEE REVIEW TRIBUNAL
EIGHTH RESPONDENT

SECRETARY
DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
NINTH RESPONDENT

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
TENTH RESPONDENT

JUDGE:	WILCOX J
DATE:	14 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application, made to me as duty judge, for leave to appeal against orders made by Jacobson J on 23 June 2005.  The applicant, Aroha Lawrance, has appeared on her own behalf.  She is experienced in administrative review and litigation, having previously been a member of the Social Security Appeal Tribunal.

2. There is a deal of litigation on foot in which Ms Lawrance is the moving party and various Government bodies are respondents.  She told me about some of the issues raised in that litigation.  However, it is necessary for me to concentrate my attention on the decision of Jacobson J, which is the subject of the application for leave to appeal.  I say nothing about any of the other issues mentioned by Ms Lawrance.

3. It appears, from para 4 of his Honour's reasons for judgment, that he had before him a notice of motion in which Ms Lawrance sought five orders.  The first two orders related to decisions of the Administrative Appeals Tribunal (‘AAT’) constituted respectively by Senior Member Kelly and Senior Member Allen.  In each case, the order sought was that the relevant decision be ‘removed from publication’.  I gather from Ms Lawrance that her concern is that the decisions had been posted on the internet, in accordance with the AAT’s normal practice. 

4. After considering the history of the matter, at least in outline, Jacobson J expressed the opinion, in respect of both AAT decisions, that there was not sufficient urgency to warrant the making of an interlocutory order concerning publication.  He was also of the view that there would not be any specific prejudice to Ms Lawrance in leaving the judgment in the public domain.  There was a question in his mind as to whether such an order could, or should, be made in any event.  Directions had already been made for filing of evidence to be used at a final hearing. 

5. The question whether there was sufficient urgency to warrant the making of an interlocutory order was a matter of discretion in relation to a matter of practice and procedure.  There is a firm rule that appeal courts must exercise restraint, in respect of discretionary decisions of lower courts, involving practice and procedure.  It is sufficient to refer to the judgment of Gibbs CJ and Aitken, Wilson and Brennan JJ in Adam P. Brown Male Fashions Pty Limited v Phillip Morris Incorporated (1981) 148 CLR 170 at 177. At that reference, their Honours quoted with approval what they called the ‘oft cited statement’ of Sir Frederick Jordan in Re the Will of F B Gilbert (Dec) (1946) 46 SR NSW 318 at 323, which was in these terms:

   ‘I am of the opinion that, … there is 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.’

6. The observations of Sir Frederick Jordan apply directly to the present case.  Jacobson J made a ruling, in the exercise of his discretion, as to whether it was appropriate to deal with the matter of publication on an interlocutory basis.  The appropriate course is for the matter to go to final hearing, so there can be a final resolution of that matter, rather than for the parties to be distracted by arguing the matter in a Full Court.

7. The third order sought by Ms Lawrance from Jacobson J was an order that the Court has jurisdiction to review the conduct of Senior Member Kelly in relation to a decision of 1 November 2004.  Jacobson J said he did not propose to make this order because Mr Markus, solicitor for the respondent, was correct in saying that, if Ms Lawrance wished to put the matter or the matters referred to in order 3 at a final hearing, they can be dealt with at that time.  That was plainly correct.

8. The fourth proposed order was for the AAT to forward to Ms Lawrance a transcript of the hearing of 27 October 2004.  There seems to be no reason why Ms Lawrance cannot obtain a copy of the transcript, if she is so minded.  Jacobson J pointed this out.  I cannot see any arguable error in his Honour's approach to that matter.

9. The final ‘order’ is not really an order at all, but a statement that there is not evidence before the Court about a particular matter.  It seems to be common ground that nobody is alleging the correctness of that matter, so this seems to lead nowhere.  In any event, if there is a question as to what the evidence establishes, that is pre-eminently a question for determination at a final hearing. 

10. During the course of her submissions to me, Ms Lawrance felt free to make allegations of bias against Jacobson J and various other people who have been associated with her case.  There is no evidence to support those allegations.  So far as I can see, Ms Lawrance seems to make an allegation of bias whenever a person gives a decision that is unfavourable to her.  With her experience, she must be aware that litigants often suffer disappointments.  That does not mean that the relevant decision-maker was biased. 

11. The desirable course is that this matter go to a final hearing, on such issues of law as Ms Lawrance wishes to raise, at the earliest possible date.  I refuse the application for leave to appeal to the Full Court.

12. The application for leave to appeal is dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             28 July 2005

The Applicant appeared in person
The First, Second, Third and Tenth Respondents filed a submitting appearance.
There was no appearance for the Fourth Respondent.
Solicitor for Fifth to Ninth Respondent:	Mr A Markus of Australian Government Solicitor
Date of Hearing:	14 July 2005
Date of Judgment:	14 July 2005