FEDERAL COURT OF AUSTRALIA Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 507 Citation: Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 507 Appeal from: Application for extension of time for leave to appeal: Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 Parties: AVETMISS EASY PTY LTD v AUSTRALIAN SKILLS QUALIFICATIONS AUTHORITY File number: VID 242 of 2014 Judge: PAGONE J Date of judgment: 19 May 2014 Catchwords: PRACTICE AND PROCEDURE – appeal from interlocutory decision requiring leave to appeal – application for extension of time to seek leave to appeal – application for determination on the papers – whether reasonable prospects of success of substantive appeal – whether delay in seeking leave to appeal sufficiently explained – whether applicant would suffer substantial injustice if leave not granted. CONSTITUTIONAL LAW – purported notice under Judiciary Act 1903 (Cth) s 78B of constitutional matter – assertion of decision contrary to Constitution s 118 – assertion of matter arising under Constitution not sufficient to attract operation of s 78B. Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44 Commonwealth of Australia Constitution Act, ss 78B, 118 Federal Court of Australia Act 1976 (Cth), s 24(1A) Federal Court of Australia Rules 2011 (Cth), rr 4.01(2), 35.14 Judiciary Act 1903 (Cth), ss 78B, 118 Cases cited: Avetmiss Pty Ltd v Australians Skills Qualifications Authority [2014] FCA 46 Avetmiss Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 Gallo v Dawson (1990) 64 ALJR 458 Gallo v Dawson (No 2) (1992) 66 ALJR 859 Glennan v Commissioner of Taxation (2003) 198 ALR 250 Jakamarra v Krakouer (1998) 195 CLR 516 Mehmood v Attorney-General of the Commonwealth [2013] FCA 406 Mentink v Minister for Home Affairs [2013] FCAFC 113 Narain v Parnell (1986) 9 FCR 479, 489 Rana v Repatriation Commission (2011) 126 ALD 1 Re Finlayson; Ex parte Finlayson (1977) 72 ALJR 73 SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 Date of hearing: Heard on the papers Date of last submissions: 12 May 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 12 Solicitor for the Applicant: Mr S Smith appeared on behalf of the applicant Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 242 of 2014 BETWEEN: AVETMISS EASY PTY LTD Applicant AND: AUSTRALIAN SKILLS QUALIFICATIONS AUTHORITY Respondent JUDGE: PAGONE J DATE OF ORDER: 19 May 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for extension of time to seek leave to appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 242 of 2014 BETWEEN: AVETMISS EASY PTY LTD Applicant AND: AUSTRALIAN SKILLS QUALIFICATIONS AUTHORITY Respondent JUDGE: PAGONE J DATE: 19 May 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Avetmiss Easy Pty Ltd seeks an extension of time in which to seek leave to appeal, and, if an extension of time is granted, seeks leave to appeal, from a decision of Mortimer J handed down on 4 April 2014 dismissing an application to appeal to the Court from a decision of the Administrative Appeals Tribunal. On 7 February 2014 her Honour dispensed with the operation of r 4.01(2) and permitted Mr Simon Smith, Avetmiss' director, to present argument on an objection to competency which had been made to Avetmiss' appeal: Avetmiss Pty Ltd v Australians Skills Qualifications Authority [2014] FCA 46. On 4 April 2014 her Honour upheld the objection to competency of the appeal and, accordingly, dismissed the application to appeal the decision of the Tribunal: Avetmiss Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314. The right for Mr Smith to appear on behalf of the applicant was limited by her Honour to the hearing of the objection to the competency of the appeal and no similar dispensation has been granted in respect of the application for an extension of time in which to bring the appeal, or for leave to appeal, or for the appeal itself. However, Mr Smith has made extensive submissions and those submissions have been considered as if dispensation had been granted. 2 Avetmiss, through Mr Smith, has applied to have these applications determined on the papers and the respondent has consented to that course. On 29 April 2014 a document was filed in the Court for Avetmiss headed "Application for extension of time and leave to appeal" under r 35.14(1). The body of the document sought an extension of time for leave to appeal, and also for leave to appeal, from the judgment of her Honour made on 4 April 2014. Under the heading "Other applications" Avetmiss, through Mr Smith, sought these applications to be determined "without an oral hearing" saying: I wish the matter to be dealt with without an oral hearing on the evidence before the court including the unsealed interlocutory application giving reason and supporting affidavits/emails (all materials before the court) to determine whether there is an opportunity that the court may have been misled and an appeal on the grounds of judicial appeal and whether in a jurisdiction application this material was of such importance it could have altered the outcome if the tribunal, myself and the court was misled as to appealing the wrong decision by the respondent enlivening the abuse of process provisions. In paragraph 3, under the heading "Other applications", Mr Smith said: On the basis of the submissions being dealt with on paper and those papers containing over 40 pages of barrister prepared legal submissions, and for the same reasons as Dispensation on leave for Simon Smith to represent was granted (with absolute denial and disbelief to Justice Mortimer's comments in her decision that just by exercising the right to lodge an interlocutory application and follow normal court processes is somehow unethical – in fact I would claim I was treated poorly and non-ethical) that the Dispensation given to the Applicant remains for this decision as it was granted for the purpose of this decision (and really is a simple question of law that is already evidence but just ignored) until the final decision is handed down. Since this is a review the Applicant asks for the Dispensation to continue if not automatic. In an affidavit sworn on 24 April 2014 Mr Smith gave the following reasons in support of Avetmiss' application for a hearing on the papers: 1. The company has wasted almost $50,000 in costs for a decision that it should never have had to be misled to review. 2. The evidence to prove that the review is for the wrong decision is obviously obvious in the original Affidavit – proving it is falsely and forcefully taken. This is also backed up by transcripts of a senior member who was confused of his own jurisdiction. 3. The evidence backing up whether the deeming date has passed or any of those decisions or quasi decisions are void are on the court record in paper already. On Friday 9 May 2014 the Court registry sent an email to Mr Smith, and to the solicitor for the respondent, referring to the fact that Avetmiss, through Mr Smith, had applied "for the matter to be determined on the papers". In that email the parties were invited to make submissions by 4.00pm Monday 12 May 2014 on whether to hear the application on the papers without an oral hearing. The parties were also invited to make submissions by 4.00pm Monday 12 May 2014 addressing the substantive applications for extension of time, and for leave to appeal, in the event that the application for the matter to be determined on the papers was granted. At 3.31pm Mr Smith filed his submissions on behalf of Avetmiss and submissions were filed on behalf of the respondent. The parties were informed on 14 May 2014 that the matter would be determined on the papers in accordance with the application which had been made for Avetmiss by Mr Smith. Mr Smith made further submissions after the time allowed to him. On 14 May 2014 he sent two further emails to the court with submissions including an email drawing attention to, and attaching, an affidavit he had previously made on 20 March 2014. The court received no objection from the respondent for those to be considered and, accordingly, they were considered despite them having arrived after the date by which submissions were to be filed. 3 Avetmiss also purported to file a notice made under s 78B of the Judiciary Act 1903 (Cth) of a constitutional matter. Section 78B provides that "it is the duty of the court not to proceed" in the matter unless and until the Court is satisfied that the notice has been given to each of the attorneys general and that a reasonable time has elapsed since the notice was given for their consideration. The notice filed by Avetmiss, however is not a notice for the purpose of s 78B because the cause does not involve a matter arising under the Constitution. The notice filed by Avetmiss stated: Nature of Constitutional matter It is politely alleged that Justice Mortimer may not have considered Section 118 of the Constitution in denying absolutely case altering evidence prior to judgement that proves perjury, abuse of process, false litigation and a false review right before her, also denying a self-represented litigant a right to be heard. Such detriment cannot possibly be fought in a costs review because a successful costs review would nullify the decision of the original case that she may have taken weight to unlawful evidence. It is also alleged that she may have failed to acknowledge a properly registered and paid for interlocutory application showing direct contradictory evidence altering the jurisdiction and entire outcome of her judgement. Orders are sought by the Chief Justice urgently. Facts showing that section 78B Judiciary Act 1903 applies 1. Section 118 states that, "Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State." Although, fairly there are rules of the court when it comes to submissions of evidence and/or additional interlocutory applications - the substance of these submissions were belittled and have the power to punish the commonwealth of criminal offences and would have altered the question of law before her. 2. The simple question of law before her was does the court have the jurisdiction to hear an 'error' made by the AAT who reviewed the wrong decision and also contributed to provide false evidence before her honour. The most significant error of all was the withdrawal of the hearing (a void decision is a reviewable decision) is a very good reason for demonstrating the error - considering the court and tribunal heard the wrong case. All constitutional rights were torn. 3. Her Honour failed to stamp a vital interlocutory application or give it any legal right although the contents was extremely vital and the rights were torn away from having a fair trial, although properly served with 4. I seek the Chief Justice to retract the order, and seek judicial review of all the evidence before the court in full (including obvious contradictory ignored evidence), retract the defamatory publication of the orders, reconstitute the appeal only after a judicial review has taken place. Such a review I am unsure as to whether His/her Honour would internally conduct or refer to the Supreme Court for a decision, which must alter the outcome of this case, and in the alternate invoke the abuse of process provisions and damages and declarations provisions against the Respondent who is in the process of consideration of charges under the Crimes Act via the Melbourne West Police or in person. 5. Her honour took no regard for the law, the Constitution says otherwise. 6. I note that it is impossible to have a costs hearing without judicial review because if correct, the first decision would be a null event. Section 78B "only operates when the circumstances it postulates are made to appear to the court: it does not operate simply because a party asserts those circumstances": Narain v Parnell (1986) 9 FCR 479, 489; see also Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292. In this case there is nothing to suggest that her Honour's decision was contrary to s 118 of the Constitution and nothing in the proposed notice of appeal raises any issue which might attract s 78B. None of the matters referred to by Avetmiss in the s 78B notice go beyond assertions and fail to establish that the challenge to her Honour's decision involves a matter arising under s 118, or any other provision, of the Constitution: see Glennan v Commissioner of Taxation (2003) 198 ALR 250 at [14]; Re Finlayson; Ex parte Finlayson (1977) 72 ALJR 73 at 74. It is, therefore, appropriate to consider the application by Avetmiss for an extension of time within which to seek leave to appeal from her Honour's decision. 4 Avetmiss requires leave before any appeal can be brought from her Honour's decision. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from a judgment that is an interlocutory judgment unless the Court or a judge gives leave to appeal. A decision dismissing an application on the basis that it was incompetent is relevantly interlocutory and requires leave. In SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 French J (as the Chief Justice then was) said at [23]: Where a court holds that it lacks jurisdiction to entertain an application and that the application is to be dismissed as incompetent, the dismissal order effectively disposes of the proceedings in the court in which the application is brought. The order does not "finally dispose of the rights of the parties" in the sense necessary to characterise it as a final judgment. It simply means that the court in which the proceeding is brought lacks the authority to deal with it. It says nothing about the rights which the party seeks to vindicate. It may be that an application has been brought in the wrong court. So an application may be brought in the Federal Magistrates Court which exceeds the subject matter value by which the relevant jurisdiction of that court is defined. An order dismissing the application as incompetent would not finally dispose of the rights of the parties to it. They would simply have to go somewhere else. Similarly, an application brought before the Federal Court may be dismissed as incompetent on the basis that it lies outside the jurisdiction conferred by statute upon this Court. In the case of judicial review proceedings it may be that the matter could be entertained in the High Court in the exercise of the original jurisdiction conferred upon it by s 75(v) of the Constitution. The character of the order dismissing an application as incompetent is illustrated by these examples. It does not for that reason alone decide the rights or liabilities in issue. There may be a case like Zoya Kosmodemyanskaya 79 FCR 71 where the finding of want of jurisdiction flows from a finding on the merits. So if the finding of want of jurisdiction depends upon findings of jurisdictional fact fatal to the merits of the claim, then it may be said to be a final judgment. However the order in this case was interlocutory in character. Leave is necessary before an appeal against it can be entertained. Allsop J (as the Chief Justice then was) said at [68]: In support of the submission that the order for dismissal of the proceeding based on incompetency was interlocutory, the Minister relied on the authorities collected by Lindgren J in SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 at [6]. Not all these cases concerned questions of a found lack of jurisdiction. Some certainly did: see in particular the Full Court in Minogue v Williams (2000) 60 ALD 366 at [18]; and Fifita v Minister for Immigration and Multicultural Affairs [2001] FCA 1695. However, as Merkel J said in Fifita (his Honour reserving the question for an occasion with a proper contradictor) there is some tension between Minogue v Williams 60 ALD 366 and the view of the Full Court in Lloyd Werft Bremerhaven GmbH v Owners of the Ship 'Zoya Kosmodemyanskaya' (1997) 79 FCR 71 at 80, an authority to which the Full Court in Minogue v Williams was not referred. No real debate took place on this issue before this Court in either proceeding. I have had the advantage of reading in draft what French J has said on this issue in his reasons. His Honour's reasons, if I may say so, clearly illuminate some of the difficulties in this area. For the reasons given by French J, I am prepared to accede to the proposition that the order in this case was interlocutory. Tracey J said at [114]: I agree with the orders proposed by French J. I do so for the reasons given by his Honour. In particular, I agree that the decisions of the Federal Magistrates Court which it is sought to challenge were interlocutory in character … It may seem curious to a litigant who is not trained in law to describe as "interlocutory" a decision which effectively brings an end to a proceeding, but such a decision is interlocutory, and not final, within the meaning of s 24(1A), because the judgment from which the appeal is sought was not made on the merits of the case (as explained by French J in the passage quoted above); the decision by Mortimer J did not decide the merits of the underlying dispute which had been before the Tribunal but only that the application to this court was incompetent. 5 In this case Avetmiss also needs an extension of time within which to seek leave to appeal because the decision was handed down on 4 April 2014 and the application for leave to appeal was not filed until 29 April 2014 but should have been made on, at the latest, 22 April 2014 (allowing for public holidays). 6 Rule 35.14(3) provides that an application for an extension of time must be accompanied by: (c) an affidavit stating: (i) briefly but specifically, the facts on which the application relies; and (ii) why the application for leave to appeal was not filed within time; and (d) a draft notice of appeal that complies with rules 36.01(1) and (2); (e) a statement by the applicant of whether the applicant wants to have the application considered without oral argument. In Mehmood v Attorney-General of the Commonwealth [2013] FCA 406 Foster J considered the principles to be applied when considering an application for an extension of time under r 35.14. At [5]-[6] his Honour said: 5 In DZAAD v Department of Immigration and Citizenship [2013] FCA 204, I summarised the principles to be applied when the Court is considering an application for an extension of time under r 36.05. At [28]–[30] I said: The Application is brought under r 36.05 of the Federal Court Rules 2011. As the Minister has submitted, r 36.05 confers upon a court a broad discretion whether or not to grant an extension of time. The considerations generally relevant in determining whether an extension of time should be granted are well known. They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents and the merits of the appeal if an extension is granted (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348–349 (per Wilcox J); Jess v Scott (1986) 12 FCR 187 (per Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (per Spender, O'Loughlin and Dowsett JJ); Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]–[27] (per Foster J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]–[25] (per Cowdroy J)). The Minister has, quite properly, accepted that, given the short delay involved in the present case and the difficulties confronting the applicant as an unrepresented litigant in circumstances where he had family separation issues with which to deal as well as a move to Canberra, the applicant has more than adequately explained any delay in instituting his appeal. The Minister, nonetheless, opposes the grant of an extension of time on the basis that the appeal which the applicant seeks to file has no prospect of success. The Minister submitted that an extension of time, even for a short period, may be refused if an appeal has no prospect of success (as to which, see Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at 216 [14] per Jessup J with whom Gyles and Besanko JJ agreed). It would be a proper exercise of the Court's discretion to refuse the extension of time which has been sought if the appeal has no prospect of success, even if the delay is a short one. 6 The same principles should be applied when considering an application for an extension of time under r 35.14 of the Federal Court Rules. Mr Smith filed three affidavits in support of the applications made by Avetmiss. One affidavit was dated 24 April 2014 and in paragraph 4 Mr Smith stated: In support of the extension of time I made several applications prior to the costs decision thinking that the costs decision is the finalising of the decision mistakenly, and truly swear to this. [sic] That affidavit also stated that her Honour's judgment was misconceived and could not be true because it was said to have been based "on a false review with false evidence falsely given to the Tribunal". That paragraph also went on to say that there had been "no trial of the question of law as the question of law must consider the jurisdiction of the actual question before it in fact". A second affidavit was sworn by Mr Smith on 29 April 2014 referred to a summary said to deal with facts and circumstances to show that the decision was incorrect. The third affidavit was sworn on 8 May 2014 and, in so far as relevant, made statements to the same effect, although it also contained objectionable material such as assertions that her Honour had made "several false statements". 7 It is relevant to consider the length of delay in deciding whether to grant an extension of time within which to make an application. In this case the length of delay is not very great. It is also relevant to consider whether an explanation has been given for the delay. The explanation given in this case is that Mr Smith thought that the time for making an appeal began to run from the time at which orders for costs were made rather than the date of pronouncement by her Honour of the orders against which the appeal is sought. That explanation is plausible, especially in light of the appellant not being represented by trained, qualified or experienced lawyers. The respondent, however, does not challenge the explanation given by Mr Smith, nor does it suggest that the delay was excessive, but opposes an extension of time because the application for leave to appeal has no reasonable prospects of success. In Gallo v Dawson (1990) 64 ALJR 458 McHugh J said that in an application for an extension of time in which to file an appeal it is always necessary to consider the prospects of the applicant succeeding in the appeal. His Honour explained that the reason for that lay in the purpose of the rule being to ensure that rules which fix times for doing acts do not become instruments of injustice. At [2] his Honour said: The applicant asserts, correctly in my opinion, that she was entitled to appeal as of right against the order of Wilson J. Section 34 of the Judiciary Act 1903 (Cth) provides that the High Court has jurisdiction to "hear and determine appeals from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or Chambers". However, a notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O 70, r 3 of the Rules of the High Court (the Rules). Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O 60, r 6 to support her application. That rule provides that the court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 5; 70 ALR 185 When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. His Honour's decision was approved on appeal to the Full Court of the High Court: Gallo v Dawson (No 2) (1992) 66 ALJR 859; see also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [35]-[39]. In considering the merits on motions for an extension of time it is unnecessary to assess the merits in much detail: Jakamarra v Krakouer (1998) 195 CLR 516 at [9]. 8 The present application is one without merit and cannot succeed. The decision sought to be appealed from is the decision that the application by Avetmiss to appeal the decision to the Tribunal was incompetent because no question of law was raised as was required to be raised for an appeal from the Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Her Honour, in a carefully reasoned decision, said at [79]-[89]: [79] The central question is, having engaged in a fair reading of that kind, can it be said that the notice of appeal states a question of law with sufficient precision to give the Court jurisdiction under s 44? [80] In my opinion the clear answer is that it does not. The reason is that, even rephrased, the question is too broad. A denial of procedural fairness is a conclusion reached after examination of a decision-making process and the identification of a flaw of a particular kind in that process. [81] Although he was describing the place of procedural fairness in the function performed by a court, in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638; [2013] HCA 7 at [188], Gageler J set out its fundamental attributes (in part by reference to the observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]): Procedural fairness requires the avoidance of "practical injustice". It requires, at the very least, the adoption of procedures that ensure to a person whose right or legally protected interest may finally be altered or determined by a court order a fair opportunity to respond to evidence on which that order might be based. [82] Of course, in any given situation, and depending on the nature and content of the power to be exercised, procedural fairness may require more than this — such as consideration of a claim made (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26), affording a right to cross-examine (Ramsay v Australian Postal Corporation (2005) 147 FCR 39; [2005] FCA 640 at [27] per Spender J), or refusal of an adjournment (Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J). [83] Some precision is always required to identify the flaw in the process said to constitute the denial of procedural fairness. That is because the avoidance of practical injustice in any given case will depend on factors such as the statutory context, the nature of the decision and the decision-maker, the factual circumstances, and the issues in contention. Whether a tribunal such as the Administrative Appeals Tribunal has denied procedural fairness to a party before it cannot be a question posed in the abstract because it cannot be answered in the abstract. The circumstances said to constitute the denial must be identified. [84] That is not to require a level of legal precision or technicality beyond the reach of a layperson. But it is to require a linking of the Tribunal's task, the factual circumstance and the practical injustice which is identified. [85] Nothing of that kind is present in the notice of appeal, even read as a whole and read fairly. For that reason, the conclusion must be that there is no question of law stated in the notice of appeal and the appeal is not competent. [86] On the evidence, it is difficult to see how such a flaw could have been identified in any event. The reinstatement application was heard orally by the Tribunal after giving the applicant an opportunity to make written submissions in advance of the hearing, which it took up. Mr Smith then made lengthy submissions before the Tribunal on behalf of the applicant, and the Tribunal member fairly and conscientiously assisted him to understand the kinds of issues he needed to address. Mr Smith was given an opportunity to respond to matters raised by both the Tribunal and the respondent. Time and again, the transcript reveals the Tribunal member sought to bring Mr Smith's attention back to the statutory criteria relevant to the Tribunal's reinstatement power. The Tribunal's reasons do not disclose that it relied on matters not put to Mr Smith, or which the applicant had no opportunity to address. As I have observed, considering the matter in this way is generous on an objection to competency and goes beyond what the Court is required to do, but given the tenacity with which Mr Smith has pursued this matter, it seems best to consider whether the evidence discloses any scintilla of a suggestion of a denial of procedural fairness by the Tribunal. In my opinion it does not, quite the contrary. [87] Outside the allegation of denial of procedural fairness, the matters listed under the heading "Questions of law" in the notice of appeal raise nothing which could possibly be considered to be a question of law as the authorities have described it. Nor is there anything in the notice of appeal as a whole, read fairly, which suggests there is any other question of law raised by the applicant about the Tribunal's reinstatement decision. Rather, the applicant complains more about the Tribunal's failure to reconsider for itself the entire course of the hearing in August 2013. That was not the Tribunal's function under s 42A(10). [88] Further, the Tribunal in the reinstatement application was faced with a situation where the applicant had elected to withdraw its review application. It was that withdrawal which led to the dismissal, rather than any conduct by the Tribunal. In those circumstances, identifying an error of the kind that meets the requirements of s 42A(10) would be difficult in the extreme. The Tribunal's reasons fairly recognise this in the extracts I cited at [34] above. [89] The objection to competency should be upheld. The material filed in this proceeding reveal that her Honour's reasoning and conclusion is correct. There is nothing in any of the material filed in the present applications to warrant a different conclusion, namely that the jurisdiction of the Court had been invoked by the application which Mortimer J dismissed as incompetent. Beyond that it is unnecessary to set out the grounds relied upon by Avetmiss through Mr Smith beyond giving some examples which illustrate that, at best, his complaint concerns the merits of the claim by Avetmiss rather than demonstrating that the jurisdiction of the Court had been invoked by a question of law. Thus, for example, his written submissions filed on 12 May 2014 began by stating the basis for the claims for Avetmiss as being that the "entire case was an entrapment". It went on to claim that the respondent had "made two decisions on the same topic and [had] lied to the Tribunal to avoid automatic deeming by using referral legislation from [the] Tasmania Magistrate's Court, whereby the decision that was in review there was 'was there a decision unfairly not made in time'" [sic]. The submissions and materials in Mr Smith's emails on 14 May 2014 are to the same effect. In the first of the emails sent that day, Mr Smith wrote: May I ask that this request (being already relied upon in submissions - but drawing attention to in this email) be brought to His Honour's attention for his next decision. I did include information because the Court already holds this information, and his Honour is now intending to look at the probability of success or worthiness for appeal, apart from my request to look at all submitted Affidavit's, may I please make a request for His Honour to look closely at one of the most important, that is: The Affidavit containing the Governor-General's written instrument dated 2 months after the decision was made, in the interlocutory application which 'But For' this decision maker not making an unlawful decision (simple proof of the void reviewable decision, and there is more) under the NVR and ASQA Commonwealth Acts requiring the Governed-General to appoint and delegate Commissioners and Deputy Commissioners via legal instrument. I believe this is part of the extensive decision altering evidence which finally came through FOI, so important such that if not given the invalidation and non-admissible evidence from the Respondent's of the entire cases would be relied on many other grounds, but this being the simplest? [Emphasis as in original] In the affidavit attached to the second email sent on 14 May 2014 Mr Smith had deposed, in part, in the proceeding when it had been before her Honour: 5. It is fact that the Minister is reviewing ASQA and their abuse of the law and known to me by industry Advocates that he is considering 'sacking' the Commissioners. I cannot vouch for that as we have not met in person yet, however, communication indicates that very soon I am travelling to parliament house to provide direct intelligence to the Honourable Federal Minister on their initiative. On a public interest level, it is a fact, ASQA have shut down many RTO's unlawfully and nobody has had the strength other than I to fight, and it has taken its toll. 6. It is an educated opinion of mine that a decision could be even simpler for her Honour, and that is that based on so much evidence the decision is absolutely without a doubt a void reviewable decision, which as the Tribunal incorrectly states 'is for another court' and 'is a judicial review' when it is not - it is part of ASQA's powers simply fact-finding issuing a declaration of date of registration as it should have done by precedent and written law alone. It is clear from these passages that Avetmiss' complaints, through Mr Smith, concern the underlying disputes which had been before the Tribunal and not with whether her Honour was in error in dismissing the application before her as incompetent. Her Honour went to some lengths to analyse the materials before her to determine whether there was a question of law in the proceeding and explained why there was none. The material and submissions on appeal from that decision do not warrant a different conclusion. 9 The draft notice of appeal filed in support of the application for leave to appeal provides no ground revealing an error in her Honour's conclusion that the application had been incompetent on the grounds that no error of law had been engaged. A draft notice of appeal was filed on 29 April 2014 with typed paragraphs under the heading "Grounds of application" which appeared to have been struck out by handwritten lines with the words "please replace with Form 118 version". The grounds of application in the draft notice of appeal are substantially the same as those filed in Form 118. None of the grounds in either document provides any foundation for any possibility of error in her Honour's decision that no question of law had been identified in the appeal from the Tribunal. Amongst the grounds in both documents were such claims as: 1. The proceeding was forced upon the Applicant as the Tribunal was fooled and therefore the Court was fooled into reviewing the wrong decision, a clear abuse of process, the whole process from day 1 was entrapment, cover-up of the second decision and abuse of process; and 2. The crown solicitor engaged in perjury in the Tribunal and did not 'assist' the Tribunal in understanding their own law (and in evidence in the court documents as to power of the Tribunal to make a decision on Commonwealth law as they themselves did, giving no discretion); and 3. The entire proceeding (including the proceedings leading up to this proceeding) was due to an abuse of process from the Respondent and perhaps contempt of court. The grounds also maintained that none of the submissions which had been made by Mr Smith were given weight "with almost all verbal submissions of the respondent were, again entrapment" [sic]. The grounds gave some examples of submissions which were said to have been given weight but none of the examples reveal any foundation that her Honour ought to have found that a question of law had been engaged. 10 In these circumstances the application for extension of time will not be granted. In any event, if the extension of time had been granted, leave to appeal would not be granted for substantially the same reasons, namely, that the appeal lacked merit. One of the factors to take into account when considering whether to grant leave to appeal is the merits of the application. For the reasons previously given the draft notice of appeal, and the content of Form 118, do not identify an appellable error regarding any aspect of the judgment by Mortimer J that the appeal from the Administrative Appeals Tribunal was incompetent. In Rana v Repatriation Commission (2011) 126 ALD 1 the Court said at [11]: The need for a notice of appeal to specify a question of law is not just a matter of pleading. In the absence of a question of law there is no subject matter for the appeal and the court has no jurisdiction to entertain the proceeding. No ground of law is identified in the draft notice of appeal filed for Avetmiss. Her Honour did not decide the matter before her by considering the underlying merits of the case but only by considering whether the application to appeal the decision of the Tribunal was competent. That decision by her Honour is not attended with doubt. 11 Furthermore, if it be relevant, there would be no substantial injustice to Avetmiss in denying leave to appeal. The relevant history of the matter that led to the application to appeal to this court was recorded by her Honour at [18] where her Honour said: The Tribunal's reinstatement refusal decision then records the following in terms of the course of the merits review hearing in August 2013 (Avetmiss Easy Pty Ltd and Australian Skills Quality Authority [2013] AATA 732): 3. … The hearing commenced on 20 August 2013. Mr Smith was called as the first witness for the Company and was being cross-examined on behalf of the Authority when the hearing was adjourned to resume at 10am the following day, 21 August 2013. 4. When the hearing resumed Mr Smith was not present to continue giving evidence. Counsel for the Company informed the Tribunal that she was instructed: • To seek to have the Tribunal decide a particular legal issue which was in contention between the parties; and • If the Tribunal was not able to confine its decision to the legal issue alone, the application was to be withdrawn in its entirety. 5. After considerable discussion between the Senior Member, Counsel for the Company and Counsel for the Authority, the Senior Member informed the parties that in order to decide the legal issue as requested by the Company, it would be necessary to continue to hear the matter. This would have required a resumption of the taking of Mr Smith's evidence. The Senior Member indicated that he would do this if that was the wish of the Company. At this point Counsel for the Company advised the Tribunal that in those circumstances she was instructed to withdraw the application. 6. Whilst the hearing was still being conducted Counsel for the Company completed and lodged with the Tribunal a written notice in accordance with subsection 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) withdrawing the application. The notice was signed by Counsel for the Company and was dated 21 August 2013. The relevant part of the document read: In accordance with section 42A (1A) of the Administrative Appeals Tribunal Act 1975, I hereby advise the application is discontinued/withdrawn. In those circumstances it is appropriate to accept the submission for the respondent that "the only consequence of leave to appeal being denied is that the applicant must bear the consequences of its own decision to withdraw from its application for merits review in the AAT". 12 The orders will be to dismiss the application for an extension of time in which to seek leave to appeal from the decision of Mortimer J made on 4 April 2014. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 19 May 2014