Luck v Chief Executive Officer of Centrelink [2008] FCA 1506

FEDERAL COURT OF AUSTRALIA

Luck v Chief Executive Officer of Centrelink [2008] FCA 1506 Freedom of Information Act 1982 (Cth) s 55(3) Administrative Appeals Tribunal Act 1975 (Cth) s 44 Administrative Decisions (Judicial) Review Act 1977 (Cth) ss 3, 5, 6

Martinsen v Secretary, Department of Family and Community Services [2004] FCA 297 cited TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 cited Director-General of Social Services v Chaney (1980) 31 ALR 571 cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited GAYE LUCK v CHIEF EXECUTIVE OFFICER OF CENTRELINK

VID 464 of 2008

TRACEY J

8 OCTOBER 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 464 of 2008

BETWEEN: GAYE LUCK

Applicant

AND: CHIEF EXECUTIVE OFFICER OF CENTRELINK

Respondent

JUDGE: TRACEY J DATE OF ORDER: 8 OCTOBER 2008

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The applicant's application for an extension of time within which to commence a proceeding is refused. 2. The applicant pay the respondent's costs of the application including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 464 of 2008

BETWEEN: GAYE LUCK

Applicant

AND: CHIEF EXECUTIVE OFFICER OF CENTRELINK

Respondent

JUDGE: TRACEY J

DATE: 8 OCTOBER 2008

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 There is before the Court an application by Ms Gaye Luck for an extension of time within which to appeal against certain decisions and determinations made by the Administrative Appeals Tribunal ("the Tribunal") on 13 May 2008. The application is made in unusual circumstances. 2 In 2005 Ms Luck made applications to Centrelink for access to certain documents under the Freedom of Information Act 1982 (Cth) ("the FOI Act"). She was dissatisfied with the outcome of some of the applications and sought internal review of the decisions. The decisions were affirmed on internal review. Other requests were not responded to within the required time. There matters rested until 28 February 2008 when Ms Luck filed an application in the Tribunal seeking review of various decisions made by Centrelink. Centrelink objected that the application did not clearly identify decisions capable of being reviewed by the Tribunal. On 9 May 2008 the Tribunal conducted a directions hearing. The Tribunal granted Ms Luck leave to amend her application for review "to identify the freedom of information request by Ms Luck to Centrelink as being made on 3 June 2005." The Tribunal noted that this request had been deemed to have been refused on 3 July 2005 because of the failure of Centrelink to respond to the relevant request in a timely way: see s 55(3) of the FOI Act. 3 The Senior Member who conducted the directions hearing gave certain directions "in order to move [the] matter towards resolution and to ensure that appropriate steps [were] taken to prepare [the] matter for hearing, if required." A formal order giving effect to those directions was not made until 13 May 2008. The Senior Member later recorded those directions as follows: "1. On 13 May 2008 the Tribunal directed that the respondent file with the Tribunal and serve on the applicant: (a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and (b) every other document or part of a document that is in the respondent's possession or under the respondent's control that is relevant to the review of the decision by the Tribunal; within 28 days of receiving this direction. 2. On 13 May 2008 the Tribunal ordered that the time for lodging the application for review is extended to 28 February 2008. 3. On 13 May 2008 the Tribunal ordered that the proper respondent in these proceedings is Chief Executive Officer of Centrelink." 4 On 12 May 2008 Ms Luck filed an amended application for review pursuant to the leave which had been given by the Tribunal on 9 May 2008. The grant of leave was not formally incorporated in the orders made the following day. Nor was there a reference to the deemed refusal having occurred on 3 July 2005. 5 Ms Luck wishes to appeal to this Court from the Tribunal's directions apart from that given in paragraph 2. She also wishes to appeal from what she describes as the Tribunal's failure "to grant or deny leave to the applicant, when sought by the applicant, at [the] hearing on 9 May 2008, to amend the applicant's original application for review … for the purpose of correctly identifying the date of the reviewable decision." In order to do so she needs an extension of time within which she may commence the proceeding. She made an application for the necessary extension on 25 June 2008. The application was accompanied by a proposed notice of appeal. 6 The Tribunal's directions were entirely beneficial to Ms Luck. It is, therefore, surprising that she wishes to pursue an appeal against them. Ms Luck stresses that her application was made only a few days outside the time limit of 28 days prescribed by s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). She also submits that the respondent would not be prejudiced by the granting of an extension. 7 The Court has power to grant an extension of time for the lodging of an appeal against a decision of the Tribunal: see s 44(2A) of the AAT Act. A factor which will weigh heavily against the exercise of a discretion to enlarge time within which a proceeding may be commenced is that a proposed appeal has no reasonable prospects of success: see Martinsen v Secretary, Department of Family and Community Services [2004] FCA 297 at [17]. 8 I have formed the view that the application for an extension of time should be refused because the proposed appeal is bound to fail and the granting of an extension would serve no useful purpose. 9 Section 44(1) of the AAT Act provides for a right of appeal "on a question of law, from any decision of the Tribunal …" Order 53 r 3(2)(b) of the Federal Court Rules requires the notice of appeal is to state "the question or questions of law to be raised on the appeal …". 10 In TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 Gummow J held that the existence of a question of law is not merely a qualifying condition to ground an appeal under s 44, "but also the subject matter of the appeal itself …". (Emphasis added). 11 It is, therefore, essential in appeals brought under s 44 of the AAT Act, that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. Ms Luck has failed to identify any such question of law: see Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 at 325. 12 Section 44(1) only provides for an appeal from a "decision" of the Tribunal. In Director-General of Social Services v Chaney (1980) 31 ALR 571 Deane J, with whom Fisher J agreed, held (at 593) that, subject to some immaterial exceptions, "an appeal under s 44(1) of the [AAT] Act lies only from a decision from the Tribunal which constitutes the effective decision or determination of the application for review." His Honour held that, in the normal case, "such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act." 13 The Tribunal in the present case has done no more than give directions with a view to readying Ms Luck's application for hearing. In no sense are the directions from which she seeks to appeal final or determinative of her application. They do not, therefore, constitute decisions for the purposes of s 44. It follows that she has no right of appeal under that section. 14 In her amended notice of appeal Ms Luck also seeks review of certain procedural decisions said to have been made by the Senior Member and an Assistant Registrar of the Tribunal under the Administrative Decisions (Judicial) Review Act 1977 (Cth) ("the ADJR Act"). 15 The relevant decisions and conduct of the Senior Member are said to be the decision that the respondent to the proceedings should be the Chief Executive Officer of Centrelink and that Centrelink should file relevant documents with the Tribunal together with a statement of its reasons for its decision and his conduct in giving these directions. 16 The decisions attributed to the Assistant Registrar were directions, said to have been given by her, as to the appropriate person to deal with any contacts made by Ms Luck with the Tribunal. 17 There is also a complaint that the Senior Member failed to make various decisions of a procedural nature. 18 There are various formal defects in the manner in which Ms Luck seeks to invoke the Court's jurisdiction under the ADJR Act. I pass over these. 19 Ms Luck requires an extension of time in order to commence a proceeding under the ADJR Act. The Court has a discretion to enlarge time in order to permit her to commence her proceeding. Again, a factor which weighs heavily against the granting of an enlargement of time is that the application has no reasonable prospects of success. 20 In my view Ms Luck's application under the ADJR Act has no reasonable prospects of success. The decisions and conduct relied on are the same decisions and conduct which were considered in relation to the proposed appeal under s 44 of the AAT Act. There appear to be some additional decisions and conduct referred to in the amended notice of appeal but I find them to be unintelligible. I cite by way of example the conduct identified in paragraph 6(c) of the notice which reads: "The applicant makes application to review the Tribunal's conduct, constituted by Senior Member Friedman, that the Tribunal was engaged in, engaging in and proposed to engage in, related to the making of the decisions and failure to make decisions, under review, made by Senior Member Friedman observed between 20 August 2007 and 13 May 2008, whilst the proceedings V2007/3968, V2008/0861, V2008/1090, and V20081091 were being processed and heard under a properly constituted tribunal, decisions and omissions which were in error of law, that breached the rules of natural justice and procedural fairness;" 21 Ms Luck does not identify any relevant decisions within the meaning of the ADJR Act: see ss 3, 5 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-8. None of the "decisions" to which she refers is a "determination for which provision is made by or under a statute, one that … is substantive, final and operative." If anything, the Senior Member's directions might be characterised as conduct, that is, "action taken, rather than a decision made, for the purpose of a reviewable decision." In giving a direction that Ms Luck should only deal with a nominated officer the Assistant Registrar did nothing for the purpose of her or the Tribunal making a reviewable decision. Ms Luck does not identify any grounds on which a judicial review application might reasonably be expected to succeed in relation to the orders made by the Senior Member. She does no more than recite all of the grounds to be found in ss 5 and 6 of the ADJR Act without making any attempt to relate any particular ground to the conduct of the Senior Member. 22 Ms Luck's applications for enlargements of time, are, therefore, refused. 23 Ms Luck is able to apply to the Tribunal for any further directions which she considers need to be made to facilitate the hearing of her application. In particular she can invite the Tribunal to make an order identifying the relevant decision as that deemed to have been made on 3 July 2005.