Lawrance v President, Administrative Appeals Tribunal
[2005] FCA 740
•3 JUNE 2005
FEDERAL COURT OF AUSTRALIA
Lawrance v President, Administrative Appeals Tribunal [2005] FCA 740
LAWRANCE V PRESIDENT, ADMINISTRATIVE APPEALS TRIBUNAL AND ORS
N 55 of 2005
JACOBSON J
SYDNEY
3 JUNE 2005
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N55 OF 2005
BETWEEN:
Aroha Lawrance
APPLICANTAND:
President, Administrative Appeals Tribunal
FIRST RESPONDENTSenior Member Kelly, Administrative Appeals Tribunal
SECOND RESPONDENTSenior Member Allen, Administrative Appeals Tribunal
THIRD RESPONDENTBev Smith, CRS Australia
FOURTH RESPONDENTChief Executive Officer, CRS Australia
FIFTH RESPONDENTExecutive Director, Social Security Appeals Tribunal
SIXTH RESPONDENTChief Executive Officer, Centrelink
SEVENTH RESPONDENTPrincipal Member, Refugee Review Tribunal
EIGHTH RESPONDENTSecretary, Department of Family & Community Services
NINTH RESPONDENTHuman Rights and Equal Opportunity Commission
TENTH RESPONDENTJUDGE:
JACOBSON J
DATE OF ORDER:
3 JUNE 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The Chief Executive Officer of CRS Australia, the Executive Director of the Social Security Appeals Tribunal, Chief Executive Officer of Centrelink, the Principal Member of Refugee Review Tribunal, and the Secretary of the Department of Family and Community Services are joined as respondents to the proceedings.
2. The Human Rights and Equal Opportunity Commission (“HREOC”) is joined as a respondent to the proceedings on a conditional basis; if no application is made within 14 days seeking to have the conditional order discharged, HREOC is taken to be joined.
3. The applicant is directed to notify HREOC within 7 days of today of the order which I have made.
4. HREOC is granted liberty on 72 hours notice to make an application discharging the conditional order for its joinder.
5. Applicant is to file and serve any further affidavit upon which she proposes to rely on or before 1 July 2005.
6. CRS Australia, Social Security Appeals Tribunal, Centrelink, the Refugee Review Tribunal, and the Department of Family and Community Services are to file and serve any affidavits upon which they propose to rely on or before 22 July 2005.
7. Any other respondent who wishes to file and serve an affidavit in the proceedings may do so on or before 22 July 2005.
8. The Fourth Respondent is to be notified of today’s orders and judgment.
9. The matter is listed for directions on 4 August 2005 at 9.30am.
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
N55 OF 2005
BETWEEN:
Aroha Lawrance
APPLICANTAND:
President, Administrative Appeals Tribunal
FIRST RESPONDENTSenior Member Kelly, Administrative Appeals Tribunal
SECOND RESPONDENTSenior Member Allen, Administrative Appeals Tribunal
THIRD RESPONDENTBev Smith, CRS Australia
FOURTH RESPONDENTChief Executive Officer, CRS Australia
FIFTH RESPONDENTExecutive Director, Social Security Appeals Tribunal
SIXTH RESPONDENTChief Executive Officer, Centrelink
SEVENTH RESPONDENTPrincipal Member, Refugee Review Tribunal
EIGHTH RESPONDENTSecretary, Department of Family & Community Services
NINTH RESPONDENTHuman Rights and Equal Opportunity Commission
TENTH RESPONDENT
JUDGE:
JACOBSON J
DATE:
3 JUNE 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
I have before me this morning a notice of motion filed by Ms Lawrance seeking to join as respondents to the proceedings parties described in [1] of the notice of motion filed on 16 May 2005.
Mr Markus who appears for the entities described respectively in the motion as CRS Australia, the Department of Family and Community Services, the Social Security Appeals Tribunal and the Refugee Review Tribunal, has pointed out that the correct description of those parties is as follows:-
-Chief Executive Officer of CRS Australia (“CRS”)
-Executive Director of the Social Security Appeals Tribunal. (“SSAT”)
-Principal Member of the Refugee Review Tribunal (“RRT”)
-Secretary of the Department of Family and Community Services (“FACS”)
Ms Lawrance sought leave to join one other additional respondent which may be correctly described as the Chief Executive Officer of Centrelink.
I referred in my judgment of 2 March 2005 to what appeared to me to be the need to join the named parties as well as the Human Rights & Equal Opportunity Commission as respondents to the proceedings. This is because the relief sought in a number of the orders set out in the amended application relate to proceedings to which those parties were respondents in the Administrative Appeals Tribunal (“the AAT”).
It is convenient to refer briefly to the matter numbers set out in order 1 of the amended application so that it can be seen clearly which of the proposed respondents is or was a party to those proceedings. Mr Markus told me and there was no dissent from Ms Lawrance to this information that:-
-CRS was a respondent in matter 505;
-Centrelink was a respondent in matter 594;
-RRT was a respondent in matter 635
-HREOC was a respondent in 659
-SSAT was a respondent in matter 585
-FACS was a respondent in matter 1000.
Mr Markus said that there was no difficulty in relation to the joinder of the SSAT and the RRT. He accepted that it was appropriate to join all of the additional parties to the proceedings apparently for the reasons identified by me in my judgment of 2 March 2005. However, he pointed out that in relation to CRS and Centrelink which are respondents to matters 505 and 594 respectively in the AAT, the AAT has apparently handed down final decisions. An appeal would therefore lie on a question of law under section 44(1) of the Administrative Appeals Tribunal Act1975 (Cth) (“the AAT Act ”) in respect of both of those matters.
Mr Markus said that if CRS and Centrelink are in fact joined he would be submitting at a final hearing that relief ought to be refused in the exercise of the court’s discretion because of the availability of relief pursuant to an appeal on a question of law under section 44(1) of the AAT Act assuming that a question of law is raised in relation to the decision of the AAT in each of those proceedings.
As to matter N1000 Mr Markus said that FACS is at present a respondent in those proceedings. He told me that those proceedings are not brought in relation to the Freedom of Information Act 1982 (Cth) (“the FOI Act”) but deal with the question of Newstart Allowances. All of the other proceedings in the AAT relate to the FOI Act. It appears that responsibility for Newstart Allowances is no longer in the hands of FACS and it may be necessary for the identity of the respondent to matter 1000 to change so that FACS would no longer be a respondent in the proceedings.
Nevertheless, it seems to me from what I have been told today that FACS is still a party to those proceedings in the AAT and therefore for the reasons I have previously stated it is a necessary party to the present application.
That leaves HREOC, which is the respondent in matter 659 in the AAT. Ms Lawrance did not serve the notice of motion filed on 16 May 2005 on HREOC.
I am aware from Federal Court matter N1642/2004 which was in my docket until it was discontinued that HREOC was a respondent in those proceedings. HREOC appeared at a directions hearing in December 2004 and I was informed on that occasion that a submitting appearance would be filed.
The issues sought to be raised in the present application are similar to those which were the subject of matter N1642/2004. Accordingly, even though HREOC has not been notified of this morning's application I think that the convenient course, in order to avoid incurring unnecessary additional expenses, is to make a without prejudice and conditional order for the joinder of HREOC as sought in the notice of motion.
I will direct Ms Lawrance to notify HREOC within seven days of today of the order which I have made and I will grant HREOC liberty on 72 hours notice to make an application discharging the conditional order which I have made for its joinder.
Ms Lawrance did not read an affidavit in support of the motion today. I did not consider it necessary for an affidavit to be read because the reason for the application was apparent from what I said in my judgment of 2 March 2005.
Ms Lawrance made a number of statements to me this morning from the bar table. She said again that I am biased, notwithstanding the fact that I have previously given a judgment refusing to disqualify myself and notwithstanding also that an application for leave to appeal from that judgment was refused by Bennett J.
Ms Lawrance made a number of other statements from the bar table which, in my view, were not pertinent to the joinder application. I do not consider it is necessary to set them out in a judgment. There will be a transcript of today's hearing and it will record what was said by Ms Lawrance. I have noted what she said to me this morning but I do not, as I have already said, consider that the matters which she raised are relevant to the decision which, in any event, is in her favour because I propose to make order 1 in the notice of motion subject to it being amended to properly name the parties in the manner stated by Mr Markus.
The motion is also to be amended to provide for the joinder of the Chief Executive Officer of Centrelink. Ms Lawrance indicated that she was prepared to seek the joinder of Centrelink. Mr Markus, whilst not actually opposing the joinder, did make the point which I referred to earlier, namely that Centrelink was a respondent in proceedings in the AAT which are the subject of a final decision.
Finally, it goes without saying but I should mention what I said in my earlier judgment that, of course, the joinder of the respondents will be at Ms Lawrance's own risk as to costs in the event that she is unsuccessful on the final hearing.
I pointed out in [16] of my judgment of 2 March 2005 that it may be that if CRS is joined as a party, Ms Lawrance may wish to reconsider whether Ms Smith is a proper party to the proceedings. I raised this with Ms Lawrance but she told me that she wishes to have Ms Smith remain as a respondent in the proceedings.
Ms Lawrance told me that it was for Ms Smith to disprove the allegation that Ms Smith is an officer of the Commonwealth and amenable to the jurisdiction of the court under section 39B of the Judiciary Act 1903 (Cth). I think I should mention that it is Ms Lawrance's application and it will be a matter for her to establish the necessary ingredients for relief on the application at the final hearing.
For the reasons set out above I will make order 1 in the notice of motion as amended.
I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J. Associate:
Dated: 7 June 2005
The applicant appeared in person Counsel for the 1st – 3rd Respondents: Ms S Leathem Counsel for 4th Respondent No Appearance Counsel for 5th – 9th Respondent Mr A Markus Counsel for 10th Respondent No Appearance Date of Hearing: 3 June 2005 Date of Judgment: 3 June 2005
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