Lee and Decision Maker
[2021] AATA 211
•4 February 2021
Lee and Decision Maker [2021] AATA 211 (4 February 2021)
Division:GENERAL DIVISION
File Number: 2020/5321
Re:Jeremy Lee
APPLICANT
AndDecision Maker
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date of decision: 4 February 2021
Date of written
reasons:12 February 2021
Place:Brisbane
The decisions are not reviewable by this Tribunal. Accordingly, I dismiss the application for review pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
.........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – whether Order as to manner of proceedings made by a Judge of the Federal Court of Australia reviewable by this Tribunal – no jurisdiction conferred upon Tribunal to review Orders of a Judge of the Federal Court of Australia – application dismissed under subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)
LEGISLATIVE MATERIALS
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Constitution
Fair Work Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth)CASE
Bienstein and Commonwealth Ombudsman (2003) 38 AAR 270
Bird v Minister for Schools, Vocational Education and Training (1994) 35 ALD 552
Edwards v Santos (2011) 242 CLR 421
Kostov (Bankrupt) v Australian Financial Security Authority [2020] FCA 1105
Lee v Super Wood Pty Ltd T/A Superior Wood [2018] FWC 4762
Lee v Super Wood Pty Ltd [2019] FWCFB 2946
Lee v Fair Work Commission [2020] FCA 733
Lee v Fair Work Commission (No 2) [2020] FCA 1204
Nyoni v Murphy [2018] FCAFC 75
Parke and Repatriation Commission (1985) 2 RPD 404REASONS FOR DECISION
Deputy President Dr P McDermott RFD
12 February 2021
INTRODUCTION
On 28 August 2020, Mr Jeremy Lee, the applicant, lodged an application with this Tribunal for the review of decisions by a judge of the Federal Court of Australia not to order that a case management hearing and substantive hearing in proceedings before the Federal Court of Australia be held in-person. An interlocutory hearing was held before this Tribunal on 4 February 2021. I have decided, pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), to dismiss this application because I am satisfied that the decisions of which the applicant seeks review are not reviewable by this Tribunal. I give my reasons for my decision as the applicant indicated that he would require me to provide these reasons.
BACKGROUND
The applicant’s present application relates to his dismissal from his employment with a timber company due to his refusal to use a finger-print scanner in the workplace; the purpose of the scanner appears to have been to automate the recording of attendance of employees. The applicant made an application to the Fair Work Commission (FWC) for unfair dismissal. At first he was unsuccessful,[1] however, following a subsequent appeal to the Full Bench of the FWC (FWCFB),[2] his dismissal was determined to have been unfair in accordance with the Fair Work Act 2009 (Cth) and his application was remitted to a single Commissioner of the FWC for determination of the appropriate remedy.
[1] Lee v Super Wood Pty Ltd T/A Superior Wood [2018] FWC 4762.
[2] Lee v Super Wood Pty Ltd [2019] FWCFB 2946.
His application was then the subject of a further decision by a single Commissioner of the FWC, following which the applicant was paid an amount of money by way of compensation. The applicant then appealed the subsequent decision of the FWC to the FWCFB.
However, after the first decision of the FWCFB and before the remitted application was determined again by the FWC, the applicant made applications to the Federal Court of Australia (proceedings QUD356/2019 and QUD 385/2019) in respect of the first FWC and FWCFB decisions. These applications were the subject of a judgment of Reeves J on 6 February 2020 in which those applications were dismissed. His Honour remarked that it was not “in any interest of justice, or consistent with the overarching purpose of civil litigation in Part VB of the Federal Court of Australia Act 1976 (Cth), to allow [the] proceedings to continue”.[3] At the time of the judgment, the applicant’s second appeal before the FWCFB was not yet resolved.
[3] Lee v Fair Work Commission [2020] FCA 733.
On 11 March 2020, the applicant applied to the Federal Court of Australia for an extension of time and leave to appeal the judgment of Reeves J dated 6 February 2020 (proceedings QUD65/2020 and QUD66/2020). These proceedings were dismissed in the judgment of Collier J dated 21 August 2020.[4] It is certain events arising out of these proceedings which are relevant to the present application before this Tribunal.
[4] Lee v Fair Work Commission (No 2) [2020] FCA 1204.
THE APPLICATION
The Tribunal’s online application form asks applicants to answer the question “Why do you claim the decision is wrong?”. In response to that question, the applicant wrote:
Federal Court Judge Berna Collier requires the consent of Parties to schedule the Hearing of a Matter via MS Teams.
That is, the Federal Court must gain consent of Parties to agree to use MS Teams, prior to scheduling hearings with MS Teams.
The Federal Court did not get my consent, to conduct an Appeal of the Summary Dismissal of my Matters, using MS Teams digital video link. As such I was not provided an opportunity to attend.
That I, as a Party, was not provided a public hearing and my consent for use of MS Teams was not sought or gained, means I have been denied my right to a public hearing of my matter both at Case Management and at Hearing.
Judge Collier completely disdains her obligation to gain consent of Parties.
Together with his application, the applicant filed copies of:
(a)Federal Court of Australia – Special Measures in Response to COVID-19 (SMIN-4) Court Attendance;
(b)Emails between the applicant and the Registry of the Federal Court of Australia;
(c)Orders dated 2 July 2020 – Collier J (QUD65/2020);
(d)Further emails between applicant and Registry of the Federal Court of Australia; and
(e)Judgment of Collier J in Lee v Fair Work Commission (No 2) [2020] FCA 1204 (proceedings QUD65/2020 and QUD66/2020).
On 4 September 2020, and again on 17 December 2020, an officer of the Registry of this Tribunal wrote to the applicant to advise him that: “We can only review this decision if a Commonwealth law says that we can. We cannot find any law that says you can make an application to us about the decision. It therefore seems that we cannot review your decision.” The Tribunal invited the applicant to provide submissions as to whether the Tribunal has jurisdiction to review a decision of a judge of the Federal Court of Australia.
On 18 December 2020, the applicant wrote to the Tribunal as follows:
I applied to the Tribunal for Review of the Decision by a Federal Court judge, to schedule my hearing via Microsoft Teams ‐ without my consent.
Judge Berna Collier was aware of my lack of consent to Microsoft Teams, yet refused to provide an in‐person hearing.
The Court then removed my case from public access entirely and "heard" the matter on the papers, against my protests.
Because the Court used the excuse of Covid protocols to deny me a public hearing, I ask the AAT to review that Decision.
Chief Justice Alsop ordered hearings be conducted via MS Teams but that in person hearings could still be held when necessary at the discretion of judges; see SMIN‐4 provided with Application.
The Court and SMIN‐4 does not state under which Act it is empowered to refuse public in‐person hearings.
THE DOCUMENTS
Federal Court of Australia – Special Measures in Response to COVID-19 (SMIN-4) Court Attendance (Special Measures)
The Special Measures were issued by Allsop CJ on 16 June 2020 during this COVID-19 pandemic. The Special Measures set out those measures taken by the Federal Court of Australia to prioritise “the health and safety of the community, including parties, practitioners, judges and staff, and the families of all these groups”. The Special Measures provide that: “The Court will continue to limit the number of people within the Court precinct to limit the spread of COVID-19”.
Emails between applicant and Registry of the Federal Court of Australia
The applicant filed emails which detail communication between the applicant and officers of the Federal Court of Australia in which the applicant has sought to appear in-person at hearings listed in his applications before the Court. The applicant contended that the Court required his consent to list a hearing by video-link using Microsoft Teams. The applicant was advised that his request to appear in-person would not be granted and was provided options for attendance by video-link, telephone, and that the applications could be dealt with on the papers.
Orders dated 2 July 2020 – Collier J (QUD65/2020)
On 2 July 2020, following a case management hearing conducted by Microsoft Teams, Collier J ordered that:
(a)Proceedings QUD65/2020 and QUD66/2020 be heard together;
(b)All hearings in those proceedings be conducted using Microsoft Teams in accordance with the Information Note;
(c)The applicant file and serve submissions;
(d)The applications be listed for a hearing on 23 July 2020; and
(e)There be liberty to apply.
Judgment of Collier J in Lee v Fair Work Commission (No 2) [2020] FCA 1204 (proceedings QUD65/2020 and QUD66/2020)
On 21 August 2020, Collier J dismissed the applications of the applicant. At paragraph 55 of the judgment of Her Honour, there is a reference to Orders which were made on 16 July 2020. The applicant did not file a copy of these Orders with his application.
THE INTERLOCUTORY HEARING
At the interlocutory hearing, the applicant appeared by telephone and was unrepresented.
There was some confusion at the outset of the hearing as to precisely what decision the applicant was requesting this Tribunal to review. This is because in the form of application for review by this Tribunal the applicant included four documents. This uncertainty was clarified by the applicant at the hearing when he specified that it was the decision by Collier J not to allow him to attend the hearings in-person. This decision was conveyed to the applicant by the Orders of Collier J dated 2 July 2020, a copy of which was filed with his application.
The applicant also referred during the hearing to the Orders of Collier J dated 16 July 2020. A copy of these Orders was not provided to the Tribunal by the applicant. In any event, the applicant did not object when I proposed that my Associate obtain a copy of those Orders during the hearing from the website of the Commonwealth Courts, which my Associate was fortunately able to find.
The Orders dated 16 July 2020 provided that:
1.Orders 2, 3 and 4 of the Orders of 2 July 2020 be vacated.
2.The applications for extension of time and leave to appeal filed on 11 March 2020 in proceeding QUD 65 of 2020 and proceeding QUD 66 of 2020 be determined on the papers.
3.The applicant file and serve submissions, not exceeding 20 pages and in accordance with Practice Note APP2, and any further material on which he seeks to rely, in both proceedings by 4.00 pm on 31 July 2020.
4.Judgment be reserved at close of business on 31 July 2020.
The applicant remarked that he objected to the Orders dated 2 July 2020 and the Orders dated 16 July 2020. The applicant also indicated his objection to the Special Measures issued by the Chief Justice on 16 June 2020.
I asked the applicant to advise the Tribunal on what basis he believed this Tribunal had jurisdiction to review Orders made by a Judge of the Federal Court of Australia. The applicant did not contend that the decision of which he sought review was made pursuant to any particular statute which conferred jurisdiction upon this Tribunal for the review of such decisions.
The applicant’s main submission was that the Orders were reviewable by this Tribunal because the Orders were “administrative” in character. The applicant also raised a contention that a Judge of the Federal Court of Australia is an officer of the Commonwealth and, as a consequence, their decisions are reviewable by this Tribunal. The applicant relied upon the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act).
THE LAW
This Tribunal is a creature of statute. This Tribunal does not have an inherent jurisdiction to review any decision; rather, it must be able to point to its jurisdiction as being conferred by express provisions of the law. As Deputy President Todd remarked in Parke and Repatriation Commission (1985) 2 RPD 404 that:
The Tribunal derives its jurisdiction from Commonwealth legislation and its powers are conferred in specific terms. Unless it has power so conferred on it, it can do nothing. It has no roving commission to investigate governmental decisions generally.
In Bienstein and Commonwealth Ombudsman (2003) 38 AAR 270, Deputy President Forgie explained the basis of the jurisdiction of the Tribunal:
[8] The Tribunal may only review a decision if it is specifically given the power to do so by either the Administrative Appeals Tribunal Act 1975 (“AAT Act”) or another piece of legislation. This is the effect of s 25 of the AAT Act. Section 25(1) provides that:
An enactment may provide that applications may be made to the Tribunal:
(1)for review of decisions made in the exercise of powers conferred by that enactment; or
(2)for review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
The enactment must specify the person or persons to whose decisions the provision applies and may be expressed to apply to all decisions of a person or to a class of such decisions and may also specify the conditions which must be met before applications for review may be made (s 25(3)).
Section 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) provides that:
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.
CONSIDERATION
Conferral by the enactment under which the decision was made
The Orders dated 2 July 2020 and 16 June 2020 were made by Collier J pursuant to section 23 of the FCA Act.[5] There is no question that the Court had jurisdiction to make those Orders. This Tribunal has not been conferred with jurisdiction under the FCA Act to review the decision by a Judge of the Federal Court of Australia to issue these Orders.
[5] See also, Federal Court of Australia Act 1976 (Cth) sections 47B and 47C.
Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act)
The applicant contended that this Tribunal had jurisdiction to review the Orders of Collier J because they were of an “administrative” character and were therefore subject to the ADJR Act.
Section 5 of the AJDR Act provides:
5 Applications for review of decisions
(1)A person who is aggrieved by a decision to which this Act applies… may apply to the Federal Court or the Federal Circuit Court for an order or review in respect of the decision on any one or more of the following grounds…
Section 6 of the ADJR Act provides for review in respect of conduct related to the making of decisions, while section 7 deals with failure to make decisions. Under these provisions, jurisdiction is conferred upon the Federal Court of Australia or the Federal Circuit Court. This is clarified by section 8 of the ADJR Act which provides:
8 Jurisdiction of Federal Court and Federal Circuit Court
(1) The Federal Court has jurisdiction to hear and determine applications made to the Federal Court under this Act.
(2)The Federal Circuit Court has jurisdiction to hear and determine applications made to the Federal Circuit Court under this Act.
The phrase “decision to which this Act applies” is defined in section 3 of the ADJR Act as:
… a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):
(a)under an enactment referred to in paragraph (a), (b), (c), (d) or (e) of the definition of enactment; or
(b)by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca), (cb) or (f) of the definition of enactment;
other than:
(c)a decision by the Governor‑General; or
(d)a decision included in any of the classes of decisions set out in Schedule 1.
In section 3 of Schedule 1 to the ADJR Act, a number of decisions which are not reviewable under the ADJR Act are set out. Included in Schedule 1 (subparagraph (ze)(i)) are decisions of the Chief Justice in the exercise of the functions or powers mentioned in subsection 15(1AA) of the FCA Act. That subsection authorises the Chief Justice to take any measures that the Chief Justice believes are reasonably necessary to maintain public confidence in the Court. The Special Measures which were issued for the protection of the health and safety of the community are authorised under subsection 15(1AA) of the FCA Act and are not in any event subject to review under the ADJR Act.
CONCLUSION
The applicant contends that the Orders of the Federal Court of Australia are administrative decisions that are reviewable under the ADJR Act. Whether the Orders are administrative decisions or judicial decisions is within the jurisdiction of the Federal Court of Australia or the Federal Circuit Court to determine.[6] It would be inappropriate for this Tribunal, which does not have jurisdiction under the ADJR Act, to determine this question. In any event, no jurisdiction has been conferred upon this Tribunal by any other statute to review these Orders.
[6] See, for example: Bird v Minister for Schools, Vocational Education and Training (1994) 35 ALD 552; Kostov (Bankrupt) v Australian Financial Security Authority [2020] FCA 1105; Nyoni v Murphy [2018] FCAFC 75.
I am satisfied that the decisions of which the applicant has sought review by this Tribunal are not reviewable by this Tribunal.
This Tribunal does not also need to consider the submission of the applicant that a Judge of the Federal Court of Australia is an officer of the Commonwealth. This is a matter that has relevance in the context of the jurisdiction of the High Court of Australia under section 75(v) of the Australian Constitution.[7]
[7] Edwards v Santos (2011) 242 CLR 421.
The applicant appears to be under the misapprehension that a hearing conducted by Microsoft Teams is not a public hearing. However, as Collier J explained in Lee v Fair Work Commission (No 2) [2020] FCA 1204 at paragraph [52], members of the public may listen to proceedings before the Federal Court of Australia which are conducted by Microsoft Teams.
DECISION
The decisions are not reviewable by this Tribunal. Accordingly, I dismiss the application for review pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
34. I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
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Associate
Dated: 12 February 2021
Date of Hearing: 4 February 2021 The Applicant: By telephone
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