Lawrance v President, Administrative Appeals Tribunal [2005] FCA 79

FEDERAL COURT OF AUSTRALIA

Lawrance v President, Administrative Appeals Tribunal [2005] FCA 79

LAWRANCE V President, Administrative Appeals Tribunal AND Senior Member Kelly AND Senior Member Allen AND Bev Smith N 55 of 2005 JACOBSON J SYDNEY 10 FEBRUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N55 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, CRS Australia

FOURTH RESPONDENT

JUDGE: Jacobson J

DATE OF ORDER: 10 February 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The applicant's claims for interlocutory relief is 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 N55 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, CRS Australia

FOURTH RESPONDENT

JUDGE: Jacobson J

DATE: 10 February 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is the first directions hearing in proceedings brought by the applicant against four named respondents. At the directions hearing, Ms Lawrance, who appears in person, sought leave to file an amended application and I granted leave to her to do so. The original application and the amended application both seek interlocutory injunctive relief against the respondents. Ms Lawrance moved for interlocutory relief this afternoon. 2 Ms Plowman appears for the first, second and third respondents. She informed me today that those respondents submit to the orders of the court. She did not wish to be heard on the interlocutory application. There was no appearance for the fourth named respondent, Ms Bev Smith, who is wrongly described as the fifth respondent in the amended application. 3 Ms Lawrance has filed an affidavit of 17 January 2005, in which she deposes to service of Ms Smith. Paragraph 2 of the affidavit says that on 13 January 2005, Ms Lawrance delivered in person a sealed copy of the application to Ms Smith at an address stated in the affidavit. Ms Lawrance says she went to the property at 3.15pm and placed the application in the mail box. I do not consider that the affidavit proves service on Ms Smith. There is no evidence before me that Ms Smith was living at the address referred to in the affidavit and, of course, Ms Lawrance does not say that she handed the application personally to Ms Smith. Nonetheless, it is appropriate that I consider the application for interlocutory relief. 4 I should say, at the outset, that I have listed the matter for final hearing on 2 March 2005. I have done so because I think that the matter should be dealt with as soon as possible, and this is so notwithstanding the fact that I am not satisfied that Ms Smith has been served. It would be a matter for Ms Lawrance, at the hearing, as to how she proceeds. Of course, if Ms Smith has, in fact, been served with the application and supporting affidavit, and says that she cannot be ready for the hearing on that date, then I will have to consider whether the hearing should proceed on that day. However, as I have said, I do think the matter should be dealt with expeditiously and if it is at all possible, the matter is to proceed on that day. 5 The fact that I have appointed an early final hearing is one matter which seems to me to be relevant to the question of whether interlocutory relief ought to be granted. It is necessary to say something about the proceedings. 6 The present application was brought following an earlier proceeding, matter number N1642/2004, which was filed on 11 November 2004. That proceeding has now been discontinued. When matter number N1642/2004 was before me for directions on 9 December 2004, there was discussion about an amendment to the proceeding to raise either section 5 or 6 of the Administrative Decisions Judicial Review Act 1977 (Cth) or section 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act"). Ms Lawrance did not file an amended application but instead brought the new proceedings number N55/2005. 7 The parties in matter number N55/2005 are different from the earlier proceedings. Indeed, none of the parties to N1642/2004 are parties to the precent proceedings. 8 The application is brought pursuant to section 39B of the Judiciary Act. The applicant seeks orders of mandamus against the President of the Administrative Appeals Tribunal ("the AAT") ordering the President to make orders under section 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") prohibiting the publication of evidence and the names of the parties in a number of proceedings which have been before the AAT. 9 In the proceedings in the AAT, as I understand it from the evidence, appeals were brought concerning requests for information under the Freedom of Information Act 1982 (Cth) for access to records against a number of parties who are not parties to the present proceedings. One of them is CRS Australia, which was the first respondent to the proceedings N1642/2004. 10 The evidence filed in support of the present application is an affidavit of Ms Lawrance affirmed on 13 January 2005. She refers in the affidavit to proceedings which were heard before Senior Member Allen of the AAT and Senior Member Kelly of the AAT. 11 The history of the matter, so far as I have been able to gather it from proceedings before me in this court, are that on 27 October 2004, Senior Member Allen refused to make orders for confidentiality under section 35(2) of the AAT Act in relation to some six proceedings, which were before the AAT. The proceedings, which are described as number N2004/505 in the AAT, were before Senior Member Allen and the applicant's request for confidentiality orders in that case were among those which were refused. 12 The proceeding (that is, N2004/505) came on for hearing before Senior Member Kelly on 1 November 004. The applicant renewed an application for a confidentiality order on 1 November 2004, but Senior Member Kelly declined to make an order and proceeded to hear the application. 13 In her affidavit of 13 January 2004, Ms Lawrance says that Senior Member Kelly refused to permit her to ask a large number of questions of witnesses. Ms Lawrance says that those questions were relevant and that Senior Member Kelly ought to have permitted those questions to be asked. Various other complaints are made about the conduct of the hearing by Senior Member Kelly. 14 Reference is also made to the fourth named respondent, Bev Smith. Ms Lawrance says in her affidavit that Ms Smith was an employee of CRS. Ms Lawrance says in her affidavit that Ms Smith gave false evidence before Senior Member Kelly. Ms Lawrance says in her affidavit that Senior Member Allen disregarded much of her case and submissions on the application for an order under s 35(2) of the AAT Act. She also says that Senior Member Kelly did not provide a fair hearing of the proceedings on 1 November 2004. 15 In the present application, the orders which are sought on a final basis include an order that the decision of Senior Member Allen of 27 October 2004 be quashed, that orders of mandamus be made under section 35(2), that Senior Member Kelly be prohibited from making a decision in the proceedings, which are described as N2004/505 in the AAT, and that the Tribunal be reconstituted. Prohibition is also sought against Bev Smith. Various other orders are also sought on a final basis, and it is unnecessary to set them out. 16 The claims for interlocutory relief are first that Senior Member Kelly be restrained by injunction from taking any further action in the matter N505/2004. 17 Secondly, that the decision of Senior Member Kelly in other proceedings in the AAT, and the decision of Senior Member Allen on 27 October 2004 be removed from publication. 18 A third order which is sought is that this court not publish its decision in this matter. The fourth order which is sought is that Ms Smith be restrained by injunction from "Communicating any information about the applicant with any Commonwealth employee or any other person". 19 I do not propose in dealing with the first two claims for interlocutory relief to consider the question of whether there is a serious question to be tried. I think the appropriate course is simply to determine those matters on the balance of convenience. 20 I have considered carefully the affidavit of 13 January 2005, on which the applicant relies. However, I cannot see that the material contained in that affidavit makes a sufficient case of urgency to have the injunctive relief which is sought by the applicant granted on today's application. As I said earlier, I have listed the matter for final hearing on 2 March 2005, and I propose to deal with the matter on a final basis on that day. 21 As to the claim that the court not publish its decision on this application, that seems to me to be an extraordinary order. I do not consider that the principles which apply to section 50 of the Federal Court of Australia Act 1976 (Cth) would suggest that my reasons be restricted from publication. It is well established that the fundamental rule is that proceedings are to take place in open court. The necessary corollary of that is that a judgment of the court be published. Accordingly, the order sought in [3] is refused. 22 As to the application for interlocutory relief against Ms Smith, the applicant submits that there is jurisdiction to grant injunctive relief against Ms Smith because she is an officer of the Commonwealth. However, that is not established by the affidavit of 13 January 2005. All that is said in [9] is that Ms Smith was an employee of CRS Australia. I have been told from the bar table that she was the Human Resources Manager. I cannot see that this establishes the necessary proposition required for me to even consider the exercise of jurisdiction and, accordingly, for that reason alone I decline to grant interlocutory relief against Ms Smith. 23 Accordingly, the orders that I make this afternoon are that the applicant's claims for interlocutory relief be dismissed.