FEDERAL COURT OF AUSTRALIA Lawrance v President, Administrative Appeals Tribunal [2005] FCA 642 COURTS AND JUDICIAL SYSTEM - application for leave to appeal – application for disqualification of judge dismissed at first instance – allegations of bias and apprehension of bias– no basis for allegations – no issue of principle – application for leave to appeal dismissed Judiciary Act 1903 (Cth) Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Jones v Dunkel (1959) 101 CLR 298 Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 R v Watson (1976) 136 CLR 248 Re JRL; ex parte CJL (1986) 161 CLR 342 Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 AROHA LAWRANCE v PRESIDENT, ADMINISTRATIVE APPEALS TRIBUNAL, SENIOR MEMBER KELLY OF THE ADMINISTRATIVE APPEALS TRIBUNAL, SENIOR MEMBER ALLEN OF THE ADMINISTRATIVE APPEALS TRIBUNAL AND BEV SMITH NSD547 OF 2005 BENNETT J 19 MAY 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD547 OF 2005 BETWEEN: AROHA LAWRANCE APPLICANT AND: PRESIDENT, ADMINISTRATIVE APPEALS TRIBUNAL FIRST RESPONDENT SENIOR MEMBER KELLY OF THE ADMINISTRATIVE APPEALS TRIBUNAL SECOND RESPONDENT SENIOR MEMBER ALLEN OF THE ADMINISTRATIVE APPEALS TRIBUNAL THIRD RESPONDENT BEV SMITH FOURTH RESPONDENT JUDGE: BENNETT J DATE OF ORDER: 19 MAY 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 NSD547 OF 2005 BETWEEN: AROHA LAWRANCE APPLICANT AND: PRESIDENT, ADMINISTRATIVE APPEALS TRIBUNAL FIRST RESPONDENT SENIOR MEMBER KELLY OF THE ADMINISTRATIVE APPEALS TRIBUNAL SECOND RESPONDENT SENIOR MEMBER ALLEN OF THE ADMINISTRATIVE APPEALS TRIBUNAL THIRD RESPONDENT BEV SMITH FOURTH RESPONDENT JUDGE: BENNETT J DATE: 19 MAY 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The subject matter of this application by notice of motion is a decision of a judge of this Court, Jacobson J, not to disqualify himself from dealing with proceedings NSD55 of 2005 further on the ground of bias. Both reasonable apprehension of bias and actual bias have been alleged. 2 The notice of motion seeks an order that: 'A date for hearing be listed to deal with the application for leave to appeal made orally to Jacobson J on 24 March 2005. The application for leave to appeal is to be dealt with by a judge other than Jacobson J.' 3 The matter was listed before me, as Duty Judge. I note that the matter is next listed before Jacobson J on 3 June 2005. 4 Ms Leathem appeared for the first, second and third respondents. The applicant appeared in person. There was no appearance for the fourth respondent, Ms Smith. Ms Smith indicated to the Registry via email that she did not wish to make submissions in regard to this application. 5 At the hearing, the applicant, Ms Lawrance, said she sought an order that Jacobson J be prohibited from hearing proceedings NSD55 of 2005. 6 The application is supported by an affidavit of the applicant which contains both evidence and submission, in that it makes reference to authorities upon which the applicant relies. The affidavit alleges actual bias in the handling of proceedings NSD642 of 2004 when, as put it by Ms Lawrance, Jacobson J made orders on 9 December 2004 'in direct conflict with the law' in that he made directions as to the legislation under which the application should be brought. 7 The affidavit also relies upon events in the hearing of interlocutory proceedings in proceedings NSD55 of 2005. In summary, as set out in the affidavit, those complaints are: * The application, filed on 13 January 2005, sought urgent relief. The hearing should have been scheduled for the day after filing or in a similar time frame. This was not done. This demonstrates actual bias. * Ms Smith, the fourth respondent, communicated with Justice Jacobson's associate. This was not disclosed in Court on 10 February 2005. Ms Smith did not attend court on that occasion, was not represented and did not file evidence or submissions, thereby failing to comply with the Federal Court Rules and submitting to the jurisdiction of the Court without such compliance. His Honour made 'casual comments about her being in America on holidays'. * Despite that comment, his Honour did not, on that occasion, accept that Ms Smith had been served with the originating process. The affidavit then asserts that 'subsequent conduct' (which I take to mean at later hearings) involved dealing with Ms Smith as if she were a party who has submitted to the jurisdiction. * Reference by Jacobson J in his written reasons of 2 March 2005 to the fact that he had not properly read the papers before 10 February 2005 and 'further startling decisions, findings or remarks' therein. * Ms Lawrance filed a notice of motion on 14 February 2005 seeking leave to appeal the orders made by Jacobson J on 10 February 2005, including his order that a final hearing take place on 2 March 2005. Ms Lawrance's affidavit records complaints about the Registry and actions by Registry officers in refusing to allocate a date for the hearing of that notice of motion 'in disregard of the case law on the subject'. * A statement by his Honour on 24 March 2005 that '"no other judge in this Court will deal any differently with your applications" or words to that effect, further demonstrating his prejudgment and bias'. * His Honour appears to have wrongly imputed to the applicant a disability, impairment, disorder or illness when she does not have one and there has been no evidence of diagnosis filed in any legal proceedings to the effect that she does. * Jacobson J has been 'affected' by the order of Driver FM of 29 April 2004 which was unsupported by any medical evidence of either incompetence or diagnosis. Driver FM 'made things up', 'deliberately and wilfully misquoted' evidence filed by the applicant and 'expressly ignored' her submissions to him. * An apparent refusal by Driver FM to permit the issue of a subpoena to a Dr McMurdo and the misapplication of the rule in Jones v Dunkel (1959) 101 CLR 298. * Delay on the part of the Registry to permit the filing and hearing of an application for leave to appeal the decision of Driver FM. * The order and reasons of Driver FM are 'unsafe, unsound, are not based upon sound, reliable or admissible evidence, and are an example of blatant, deliberate wilful bias'. 8 The actions of the Registry are not themselves the subject of the application before me. Neither are the reasons of Driver FM. Neither Ms Lawrance nor Ms Leathem sought to refer me to those reasons or orders either of their own accord or when I specifically asked whether such reference should be made. 9 Some elaboration of the grounds upon which leave to appeal is sought was made at the hearing. It was apparent that Ms Lawrance had engaged in legal research. She cited the authorities upon which she relied as to the tests for bias and apprehended bias: R v Watson (1976) 136 CLR 248 at 249; Re JRL; Ex parte CJL (1986) 161 CLR 342at 346 per Gibbs J. 10 I will summarise below the submissions as made at the hearing. 11 Ms Lawrance relied in particular on what she characterised as unilateral contact by Jacobson J's chambers with one of the parties, Mr Smith, prior to a hearing on 10 February 2005, and a failure on the part of his Honour to disclose that contact at the hearing at which his Honour declined to accept that Ms Lawrance had effected service on Ms Smith. She also asserted that the file note of a conversation between his Honour's associate and Ms Smith on 11 February 2005 said to have been sent to the parties on 15 February 2005 was not received by her until some time after that date. She did receive it, however, and did not dispute that she had received it prior to the next hearing on 24 February 2005, when she made the application to his Honour to disqualify himself. 12 Ms Lawrance contended that Jacobson J should have been alerted by the non-appearance of Ms Smith after Ms Lawrance had claimed to have effected service, which she described as 'all very fishy, all very strange'. It was not made clear to me to what his Honour should have been alerted. 13 Ms Lawrance also maintained that Jacobson J wrongly imputed to her a disability. Ms Lawrance submitted that Jacobson J erred in law, in particular in characterising the nature of her case before him and the applicable legislation and submitted that an error on the part of a judge as to the applicable law is not normal and is evidence of incompetence. She asserted a belief, unsupported by evidence, that his Honour had been told by Ms Smith or by officers of the Department of Family and Community Services or another government agency that she has a disability which she does not have. The submission was that this information must have affected his Honour's conduct because he would not otherwise have made the decisions that he made. 14 Ms Lawrance asserted that she was ignored by the Registry which, she said, must be because of her imputed disability and also that Jacobson J fixed a hearing date of 2 March 2005 when he should not have done so. She maintained that this hearing date should have been vacated as she had filed a notice of motion seeking orders to that effect. Ms Lawrance also asserted that his Honour treated her as if she had a disability, which she says she does not have. 15 Ms Lawrance asserted that it was reasonable and rational to conclude that others apart from Ms Smith had been making contact with Jacobson J (probably) and Driver FM (definitely) because of their decisions. The assertion extended in particular to Jacobson J's decisions, as his Honour's findings and orders were alleged to be contrary to case law. Ms Lawrance stated that such communications were by officers of the Commonwealth or Commonwealth agencies. Ms Lawrance asserted that a failure on the part of his Honour to comply with case law and the Federal Court Rules indicates impropriety on his part or treatment of her as if she had a disability. The reasons of 10 February 2005 ([2005] FCA 79) 16 At the first directions hearing before Jacobson J, Ms Lawrance sought and was granted leave to file an amended application. That afternoon, she sought interlocutory relief. The first, second and third respondents submitted to the orders of the court. There was no appearance for the fourth respondent, Ms Smith. Ms Lawrance filed an affidavit in which she deposed to service of Ms Smith. Jacobson J was not satisfied that Ms Smith had been served. In considering the application for interlocutory orders against Ms Smith, Jacobson J referred to Ms Lawrance's affidavit where she said that Ms Smith was an employee of CRS Australia. In his Honour's view, that did not establish that Ms Smith was an officer of the Commonwealth. 17 His Honour noted an earlier proceeding which had been before him for directions, proceedings NSD1642 of 2004 which had been discontinued and proceedings NSD 55 of 2005 commenced. The present application is brought pursuant to s 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act'). 18 For reasons set out by his Honour that are not necessary to set out here and the fact that a final hearing date of 2 March 2005 had been fixed, his Honour dismissed the claims for interlocutory relief. 19 On 14 February 2005, Ms Lawrance filed a motion seeking leave to appeal from the decisions made by Jacobson J on 10 February 2005: '(i) allowing the legal representative of the first, second and third respondents to make a 'submitting appearance'; (ii) finding that the fourth respondent, Bev Smith, had not been served with the application in matter number NSD 55 of 2005; (iii) finding that Bev Smith is not an officer of the Commonwealth; (iv) setting down matter number NSD 55 of 2005 for a final hearing on 2 March 2005; (v) refusing to grant an interlocutory injunction in relation to Bev Smith; and (vi) refusing to grant an interlocutory injunction in relation to Senior Member Kelly.' 20 That matter came before Hely J. His Honour set out the history of the matter in some detail ([2005] FCA 541). That history is more complete than the history that was put before me. I was handed this decision during the hearing and there was no suggestion that any of the facts as there set out were incorrect in any way, although Ms Lawrance said that she had a different view to that of his Honour of the Judiciary Act. Hely J gave detailed reasons and dismissed the motion for leave to appeal from the decision made by Jacobson J on 10 February 2005. The reasons of 2 March 2005 ([2005] FCA 204) 21 This was the judgment arising from the listing of the matter for urgent final hearing. Ms Lawrance did not appear. The first, second and third respondents filed submitting appearances. 22 Jacobson J noted that Ms Smith, resident in the United States, had made a request before the hearing that she be permitted to attend the hearing by telephone. Ms Smith so appeared. Ms Smith asked his Honour to dismiss the proceedings pursuant to order 32 rule 2 or order 35A rule 2(1)(f) and order 35A rule 3(1)(a) of the Federal Court Rules. His Honour declined to do so. His Honour noted that Ms Smith had indicated that she may be prepared to submit to orders of the court, that she appeared that day in person and did not want to take an active part in the proceedings. His Honour concluded that the appropriate course was that her presence not be required at any directions hearings prior to the final hearing of the matter but that she should be notified of any listings should she wish to appear by telephone link, having provided a telephone and email address. 23 His Honour made some preliminary observations about the matter, including the need to join other parties to the proceedings and stated that he had intended to raise this issue with Ms Lawrance, had she appeared. There is no need to repeat the rest of the observations here. The reasons of 24 March 2005 ([2005] FCA 325) 24 Ms Lawrance applied to Jacobson J to disqualify himself from dealing with proceedings NSD55 of 2005 on the ground of bias, alleging reasonable apprehension of bias and actual bias. The grounds said to give rise to the belief that it is more probable than not that his Honour would not bring an impartial or unprejudiced mind to the resolution of the questions involved were the decisions and orders made in proceedings NSD1642 of 2004 on 9 December 2004 and 10 February 2005 and his Honour's conduct in proceedings NSD55 of 2005. 25 Jacobson J recorded the history of the matters, as follows: '4. Matter N1642/2004 was before me for directions on 9 December 2004. On that date I ordered the applicant to file and serve any amended application on or before 30 December 2004 and I stood the matter over for further directions on 10 February 2005 at 9.30 am. 5. On 13 January 2005 the applicant filed the present proceedings in matter N55 of 2005 and made an application for an urgent hearing on her application for interlocutory relief, being an injunction preventing Senior Member Kelly of the Administrative Appeals Tribunal ("AAT") from making a decision or taking any further steps in "The CRS matter of N55/2004 in the Administrative Appeals Tribunal". 6. On 25 January 2005 my associate wrote to Ms Lawrance. The letter included the following paragraph in relation to the applicant's request for an urgent hearing:- "I note the court is currently in vacation. In accordance with Federal Court Practice Note 7, his Honour seeks a concise affidavit detailing your precise reasons for seeking a hearing prior to 10 February 2005. This affidavit should include particulars of the decision or further steps of Senior Member Kelly that you seek to have restrained." 7. There was no reply to this letter. 8. On 10 February 2005, matters N1642/2004 and N55/2005 were before me for directions. In matter N1642/2004 I gave the applicant leave to discontinue the proceedings and I ordered her to pay the costs of the proceedings. In matter N55/2005 the applicant made an application for interlocutory injunctive relief. I dismissed the application for injunctive relief and gave an ex tempore judgment. I listed the matter for final hearing on 2 March 2005 at 2.15 pm. 9. Apparently on or shortly after 10 February 2005 the applicant filed an application for leave to appeal from my order refusing interlocutory injunctive relief. That application was filed in the Registry and was not listed before me. I am told today that it has been listed for hearing on 11 April 2005 before another judge 10. On 8 February 2005 my associate received a telephone message from Ms Smith who is the fourth respondent in these proceedings (N55/2005). 11. On 11 February 2005 my associate spoke to Ms Smith in the United States of America and my associate made a file note of the conversation. The file note of the conversation was sent to the parties in the proceedings (N55/2005) on 15 February 2005 by a registrar of the court. 12. On 2 March 2005 the proceedings were listed before me for final hearing. The applicant failed to appear at the hearing. I did not dismiss the proceedings but I made orders and gave an ex tempore judgment.' 26 It is apparent from this chronology that, as at 10 February 2005, his Honour's associate had received a telephone message from Ms Smith but had not spoken to her. 27 Jacobson J set out the test for apprehended bias (Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 at [27]) and noted the comments of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. His Honour did not consider that the test was satisfied. 28 His Honour then considered the test for actual bias as summarised by Von Doussa J in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36] in which von Doussa J referred to the observations of the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [71]-[72]. His Honour also considered all of the authorities to which Ms Lawrance referred as well as all of the matters raised by her. 29 His Honour concluded at [19]: 'I do not believe and indeed I have not formed any conclusion about any of the issues which fall for resolution in the proceedings. I do not have a mind which is blank, but I am open to persuasion on all of the issues which will fall for consideration.' Leave to appeal the decision of 24 March 2005 30 An applicant for leave to appeal must establish: - that the decision is attended by sufficient doubt to warrant being reconsidered; and - that substantial injustice would result if leave were refused supposing the decision at first instance was wrong. See Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 31 I can see no error in his Honour's reasoning or in his application of principle. I have also considered the matters that were relied upon by Ms Lawrance, including her submissions at the hearing. There is no foundation for her assertions of bias. There was nothing improper about the contact by a party outside the country, Ms Smith, with his Honour's associate in order to facilitate Ms Smith's participation in the proceedings. While Ms Smith, who was conducting her matter personally and without legal advice, contacted his Honour's chambers without first notifying Ms Lawrance, the contents of the conversation were notified to the other parties to the proceedings, including Ms Lawrance. Ms Lawrance confirmed that she received a copy of that file note but complained that it was received some time after 15 March 2005. Nothing turns on that. It apparently had been received prior to 24 March 2005. 32 At [18] of his reasons, Hely J set out the contents of the file notes that had been sent to Ms Lawrance by the Deputy District Registrar. They confirm the course of conversation between Jacobson J's associate and Ms Smith, the first of which occurred on 11 February 2005. The letter enclosing the file notes invited the parties to indicate their attitude to Ms Smith appearing by telephone and advised that in the absence of consent Jacobson J would hear a formal application by Ms Smith (appearing by telephone)on 25 February 2005 for leave to appear at the hearing by telephone. 33 Ms Lawrance's suggestions that Ms Smith and, indeed, other parties or Commonwealth officers have communicated their opinions of her to his Honour and, if they had, that his Honour did or would pay them any regard, are totally without foundation. The same can be said for suggestions that, somehow, his Honour was improperly influenced by any orders or reasons of Driver FM, even if his attention had been drawn to them. Ms Lawrance does not demonstrate that any of this has occurred. Her submission is, in effect that, if an order or direction or comment is made contrary to her view of the facts or the law, there can be only one explanation: bias. 34 In submissions, Ms Lawrance said that she had never thought that his Honour might not find in her favour but that he had prejudged her disability. However, she could point to no evidence or part of his Honour's reasons to make this submission out. Accordingly, I reject this claim. 35 There is absolutely nothing to support such a suggestion. No reasonable person or fair minded lay observer could possibly apprehend that his Honour might not bring an impartial mind to the resolution of the questions to be decided by him. 36 There is no doubt attaching to his Honour's decision. Ms Lawrance has not established that substantial injustice would result in Jacobson J hearing the matter. 37 It follows that, in my opinion, any appeal from his Honour's decision would be futile and without prospects of success. 38 The application for leave to appeal from the decision of 24 March 2005 is dismissed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 19 May 2005 The Applicant appeared in person Solicitors for the First, Second and Third Respondents: Ms S Leathem Counsel for the Fourth Respondent: No appearance Solicitor for the Fourth Respondent: No appearance Date of Hearing: 13 May 2005 Date of Judgment: 19 May 2005