IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 913 of 1997 BETWEEN: MICHAEL JOHN DOBSON Applicant AND: SOCIAL SECURITY APPEALS TRIBUNAL Respondent JUDGE: LINDGREN J DATE: 26 FEBRUARY 1998 PLACE: SYDNEY REASONS FOR JUDGMENT (ex tempore) HIS HONOUR: There is listed for judgment a motion brought by the respondent ("the SSAT") by notice of motion filed 10 February 1998. The SSAT seeks by the motion an order that the proceeding be stayed or dismissed generally under O 20 r 2 of the Federal Court Rules, and an order that various affidavits filed by the applicant ("Mr Dobson") be taken off the Court file under O 14 r 8 of those Rules. The present reasons relate only to the former of these two orders. In the way in which the SSAT approached the motion, it relied on all three grounds referred to in O 20 r 2, but its submissions were addressed substantially to the ground that "no reasonable cause of action is disclosed". The proceeding was commenced by the filing on 5 November 1997 of a notice of appeal by Mr Dobson from a decision of the Administrative Appeals Tribunal ("the Tribunal") constituted by Deputy President A M Blow OAM QC, given on 21 October 1997. Following the filing of the notice of motion by the SSAT, Mr Dobson filed an amended notice of appeal on 11 February 1998. The SSAT has, through its solicitor, Mr Allatt, elected to proceed with the motion in relation to the amended notice of appeal and what I shall say relates to the amended notice of appeal. It is a convenient way to outline the background of the matter to annex, as I do, to these present Reasons a copy of the Reasons for Decision of the Deputy President dated 21 October 1997. They are comprehensive and speak for themselves and I will take them as read. By his amended notice of appeal, Mr Dobson identifies the questions of law raised on the appeal as follows: "FOI Act (& sections applicable to my appeal) AAT Act s40(1A) AAT Act s33(1) AAT Act s21A (and section/s applicable through letters to me of Justice Jane Matthews dated 12/3/97 & 15/5/97)" The SSAT submits that the amended notice of appeal does not identify any questions of law on which the appeal is brought (see s 44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act")), or, alternatively, that to the extent that it does, there is no chance of Mr Dobson establishing on a final hearing the existence of the error of law in question. On its application for summary dismissal, the SSAT must establish that neither of these issues merits a final hearing. I turn now to the four "questions of law" referred to above. Firstly, there is the "FOI Act". Mr Dobson's application to the Tribunal was made under s 55 of the Freedom of Information Act 1982 ("the FOI Act") which provides that, subject to that section, an application may be made to the Tribunal for review of the decisions set out in that section which relate, relevantly, to decisions on the granting of access to documents in accordance with a request. As the Tribunal's Reasons for Decision show, Mr Dobson's application to the Tribunal was made under that section for review of a decision of the SSAT on a request by him for access to documents. Mr Dobson did not, however, on the hearing of the SSAT's motion, identify any particular provision of the FOI Act which gave rise to any particular error of law in the Deputy President's Reasons for Decision. Secondly, Mr Dobson's amended notice of appeal refers to s 40 (1A) of the AAT Act. In general terms, that subsection provides that for the purpose of the hearing of a proceeding before the Tribunal, the member presiding may summon a person to appear before the Tribunal at that hearing to give evidence and produce documents. Although the amended notice of appeal does not make it clear, what Mr Dobson complains of here is the decision of the Deputy President not to accede to Mr Dobson's request to issue summonses requiring the attendance for cross-examination by Mr Dobson for a second time of two persons who had attended and been cross-examined by him at the original hearing before the Deputy President, and requiring the attendance for cross-examination of four further persons who had not attended and been cross-examined by Mr Dobson at the original hearing. The matter is dealt with in some detail at pars 13-16 (pp 5-7) of the Deputy President's Reasons for Decision annexed. In my opinion no error in the exercise of the discretion of Deputy President Blow is shown. According to his Reasons for Decision, the original hearing occupied a day within which Mr Dobson cross-examined three witnesses. He has no right to have the further summonses issued: the question is one for the discretion of the presiding member. The reasons given by the presiding member for his decision not to issue them are, on their face, appropriate ones to support that decision. Thirdly, Mr Dobson refers to s 33 (1) of the AAT Act. That subsection provides that in a proceeding before the Tribunal, the procedure of the Tribunal is generally within the discretion of the Tribunal; that such a proceeding shall be conducted with as little formality and technicality and with as much expedition as the requirements of the AAT Act and of every other relevant enactment and of a proper consideration of the matters before the Tribunal permit; and that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. Again, no identifiable error of law is shown by Mr Dobson by reference to that provision. I come, fourthly, to s 21A of the AAT Act, which requires rather more elaborate discussion. Section 21A provides relevantly as follows: "21A (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 proceedings 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 submission 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." (emphasis supplied) In order to understand how the fourth ground arises it is necessary to refer to some facts. On 12 March 1997 Mathews J, in her capacity as President of the Tribunal, signed a letter addressed to Mr Dobson. It was tendered in evidence before me. It commences, "In your letters of 28 February and 13 March 1997 ...". It is, of course, odd that a letter dated 12 March refers to a letter dated 13 March. Before me, Mr Dobson complained that the letter dated 12 March was not on the Tribunal's file. These curiosities have led me to refer to that file. As Mr Dobson says, it does not contain a copy of the letter from the President to him dated 12 March but it does contain a letter in identical terms, apart from the opening words, from the President to Mr Dobson dated 15 May. Instead of the opening words quoted above, there appear the words: I acknowledge receipt of your letter dated 28 February 1997. I regret my delay in replying. In your letter ..." I will shortly set out the identical remaining parts of the two letters dated 12 March and 15 May. But first, it should be noted that a later letter dated 30 May from Mr Dobson to Deputy President Blow, contained this passage: "As a result of a letter dated 12/3/97 plus one other similarly worded from Justice Jane Matthews [sic] you are receiving this to finalize the 'Reconstitution' ..." It seems clear that Mr Dobson received both letters. I do not know (a) why a copy of that letter of 12 March is not on the Tribunal's file; (b) why it begins by referring to a letter dated 13 March; or (c) how the solicitor for the SSAT came to have possession of it. No doubt there is a perfectly innocent explanation. All need be said at present is that it suffices for the purposes of my decision on the present motion that Mr Dobson received even only one of the two letters. Resolution of the conundrum to which I have referred is irrelevant to the disposition of the motion. Omitting formal parts, the President's letter was as follows: " ... you ask that the Tribunal hearing your application for review of a Freedom of Information decision by the Social Security Appeals Tribunal (AAT reference N96/1176) be reconstituted. The matter is currently part-heard by Deputy President Blow. Subsection 21A(1) of the Administrative Appeals Tribunal 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." With respect, that letter made it clear to Mr Dobson that under s 21A, what he had to do if he wished the Tribunal as constituted by Deputy President Blow to be reconstituted, was to make an application to the Tribunal as constituted by the Deputy President himself. Apparently the next relevant development was that the proceeding was fixed for directions before the Deputy President on 19 May 1997. A letter bearing date 13 May 1997 was written by the Acting District Registrar of the Tribunal to Mr Dobson advising him of this. But Mr Dobson was minded not to appear again before Deputy President Blow, and, accordingly, did not appear on the directions hearing on 19 May. However, he attended at the Registry on that date and delivered a letter addressed to the Acting District Registrar which was later given to the Deputy President. I will not set out the terms of Mr Dobson's letter dated 19 May to the Acting District Registrar. To put it mildly, it was discourteous. It began by challenging the right of the Acting District Registrar to notify Mr Dobson of the directions hearing, on the basis that Mr Dobson had previously made it clear that he would not again appear before Deputy President Blow. The letter made serious allegations expressed in extreme terms. Relevantly, for present purposes, all that need be noted is that Mr Dobson pointed out to the Acting District Registrar that she (the Acting District Registrar) already had a statement from Mr Dobson that he (Mr Dobson) would have no further dealings of any description with the Deputy President in the pending proceeding. He said that he would only come in to the Tribunal to conduct business relevant to his "appeal". He made various accusations against the learned Deputy President and against other individuals. He said that the only letter which the Acting District Registrar was entitled to send to him, given the circumstances, was a letter asking him (Mr Dobson) when he intended to lodge a submission to Deputy President Blow relevant to Mathews J's request for submissions on the subject of reconstitution of the Tribunal, that is, the replacement of Deputy President Blow. He advised that his submission would be in at the Tribunal by Friday 23 May. What Mr Dobson's letter of 19 May seems to indicate is that Mr Dobson was willing to apply to Deputy President Blow for reconstitution of the Tribunal, but that he declined to appear before him. In this respect, Mr Dobson seems to have laboured under a misunderstanding: he seems to have thought that he was entitled to stipulate the procedure according to which he would apply to Deputy President Blow for reconstitution of the Tribunal, whereas, in truth, the procedure was, of course, not for Mr Dobson, but for the Tribunal itself to determine (see s 33 (1) (a) of the AAT Act). What happened next was that the Acting District Registrar wrote a letter to Mr Dobson on 20 May acknowledging receipt of his letter dated 19 May. Again, it is convenient to set out the terms of that letter: "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 9.30am 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) Some of the terms emphasised by me in the letter could be read as references to the application for reconstitution as distinct from the substantive application for review itself. Mr Dobson wrote a letter on 30 May, that is to say, within the fourteen day period, addressed to Deputy President Blow. Again, the letter was expressed in extreme, offensive and inflammatory terms. Again, however, I need not set out those terms. Mr Dobson advised that he would have nothing more to do with the Deputy President in the pending proceeding and that any further directions by the Deputy President in that proceeding would be "invalid" and ignored and not acted upon by Mr Dobson. The letter continued by referring to the need for the Deputy President to be "replaced". The letter said that Mr Dobson had no objection to Mathews J's forwarding to him (the Deputy President) copies of Mr Dobson's letters to her requesting her to accede to his request. Finally, Mr Dobson advised that in response to the Acting District Registrar's letter dated 20 May, he, Mr Dobson, was asking for the matter "to be resumed but without [Deputy President Blow] continuing to hear and sit in judgment", but "not before all of [Mr Dobson's] asks [sic] are granted as stated in [Mr Dobson's] letter of 13 March 1997". As I noted earlier, Mr Dobson's letter of 13 March was not in evidence before me but nothing seems to turn on this. Mr Dobson's letter made it clear that Mr Dobson wished the substantive application for review to be resumed, but not before Deputy President Blow. As will appear from page 8 of the Deputy President's Reasons for Decision attached, he found himself in, "a most unusual situation". I agree. He recorded that Mr Dobson wished "to have nothing further to do with these proceedings". I disagree. He noted that counsel for the SSAT would not wish to adduce any evidence or make further submissions, and expressed the opinion that there was no point in resuming the hearing. This was because Mr Dobson had made it perfectly clear that he would not appear before the Deputy President again in the proceeding. The Deputy President proceeded to give a decision "on the merits". The decision was favourable to Mr Dobson, in that it required the SSAT to give Mr Dobson access to certain documents (these documents had been produced by the SSAT at an earlier stage). Mr Dobson's position, however, is that he suspects that there may be further documents in the possession of the SSAT to which he has still not been given access, and, apparently, that he would wish, by further cross-examination, to prove that such documents exist. One way in which the "most unusual position" in which the Deputy President found himself might have been dealt with, is that he might have, in effect, accommodated Mr Dobson by receiving written submissions from him in support of the application for reconstitution and any written submission of the SSAT in opposition to it, and then proceeded in conformity with s 21A (2) of the Act. It would then have been for Mathews J to decide whether there was, or was not, to be a reconstitution of the Tribunal. If the Presidenthad decided that there was to be a reconstitution, s 21A would have governed the procedure to be followed by the Tribunal as reconstituted. If she had decided against that course, Deputy President Blow would have resumed the hearing and might have dealt with the matter in the way in which he in fact did. I could order that the matter be remitted to the Tribunal for Mr Dobson's application for reconstitution of the Tribunal be dealt with by Deputy President Blow in the first instance strictly as required by the express terms of s 21A and as outlined above. Let it be assumed that the President were to order that the constitution of the Tribunal be varied. A perhaps odd situation would then arise. Mr Dobson would renew his request, now to the Tribunal as reconstituted, for the issue of summonses to the witnesses mentioned. Yet I have found earlier that there was no miscarriage of Deputy President Blow's discretion in refusing to issue those summonses. An alternative view which I could take is this: Deputy President Blow gave a decision which was favourable to Mr Dobson, though, no doubt, not as favourable as Mr Dobson would have wished. The reason why the decision is not as favourable as Mr Dobson would have wished is that Deputy President Blow declined to exercise his discretion to issue summonses for the attendance of persons to give evidence, an exercise of discretion which I have held did not miscarry. On this basis, I could take the view that it would be futile to remit the matter to the AAT since the result which Mr Dobson has obtained is all that he could, consistently with the view that I have formed (contrary to his submission) as to Deputy President Blow's refusal to issue the summonses, have obtained. On the hearing before me, the two alternative courses which I have just outlined were not the subject of submissions. What I have decided to do is to allow both parties a short period in which to make written submissions addressing the two alternative courses which I will now attempt to outline again. The first is that the decision of Deputy President Blow dated 21 October 1997 be set aside and that the proceeding be remitted to the Tribunal so that the Tribunal, as constituted by him, might act in accordance with s 21A(2) of the AAT Act, after which the succeeding subsections of s 21A would govern the procedure to be followed. The alternative course is that the present application by Mr Dobson be dismissed summarily on the basis that it would be futile for the proceeding to be remitted to the Tribunal because, consistently with my view that Deputy President Blow's discretion not to issue the summonses did not miscarry, Mr Dobson has received from the AAT all the relief to which he was entitled. I will decide between these two courses after the date for submissions. Before I give an appropriate direction, I will note two further matters. First, Mr Dobson asked me to order that a subpoena be issued to the Registrar of the Tribunal on the basis that he suspects that officers of the Tribunal have withheld documents from this Court. The Court file shows that the Registrar of the Tribunal initially forwarded to the Court the documents called for by O 53 r 10 and s 46 (1) (a) of the AAT Act. Subsequently, at Mr Dobson's request, I directed that the District Registrar of the Court write to the Registrar of the Tribunal asking for the entirety of the Tribunal's file to be delivered to the Registry of the Court. The Court file reveals that this request was made, that the Registrar of the Tribunal obliged; and that Mr Dobson has had access within the Registry of the Court to two files forwarded by the Tribunal. Apparently Mr Dobson suspects that some documents have not been delivered. I declined Mr Dobson's request for the issue of a subpoena. Mr Dobson did not identify any particular missing documents which would be relevant to my decision on the present motion. I have dealt earlier with the particular issue raised as to the absence from the file of the President's letter dated 12 March 1997. The second matter to be noted is that in referring to the two alternative orders mentioned above, I have not overlooked the fact that the present motion is for summary dismissal alone and is not a final hearing. It will be desirable that the parties have a copy of these reasons in order to be able to make the submissions to which I referred. I direct both parties, by 23 March 1998, to submit in writing to my Associate that form of order, as between the two orders which I have outlined, which they respectively submit should be made, and written submissions in support. I stand over the matter to 1 April at 9.30am for the making of orders. I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren Associate: Dated: 3 March 1998 The Applicant (respondent to the motion): Appeared in person Solicitor for the Respondent (Applicant on the motion): Mr M Allatt of the Australian Government Solicitor Date of Hearing: 26 February 1998 Date of Judgment: 26 February 1998