Alexakis v Secretary, Department of Education, Employment and Workplace Relations

PRESENT APPEAL 10 The purported Notice of Appeal has clearly been prepared by the appellant himself. The notice alleges that the primary judge engaged in conduct which the Court interprets as a claim of actual bias on the part of the primary judge or conduct that would lead to an apprehension of bias. The appellant refers to the use by the primary judge of a 'very Aggresive [sic] voice' and that the primary judge had 'BLACK MALE[d][sic]' him. He further stated that the primary judge, 'daj[sic] not wont[sic] me to win the case' and that 'it is vere[sic] clear hear[sic] connections with the responder[sic] make hear[sic] give diffrent[sic] desision[sic]'. He stated that in her decision the primary judge had 'lien[sic] with many ways against the Applicant'. 11 The appellant made a further allegation in the Notice of Appeal and in a subsequent affidavit supporting a request for leave to issue a subpoena requiring the attendance at the appeal hearing of the interpreter who was present at the hearing before the primary judge. The appellant alleged that the primary judge had found in favour of him on the day of the hearing but changed the decision when handing down the written reasons which was the 'different decision' mentioned in relation to the bias claim in the Notice of Appeal. 12 The appellant also stated in the Notice of Appeal that before the primary judge he had not had an opportunity to present all of his evidence. 13 The appellant reserved the right to make further submissions and to provide further grounds upon receiving the transcript.

Objection to Competency of Appeal 14 By Notice of Objection to Competency dated 3 February 2009, the respondents objected to the competency of the appeal on two bases. Firstly, the respondents submit that the decision of the primary judge was interlocutory and therefore leave to appeal was required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'). Secondly, since the decision was interlocutory, the respondents submit that any application for leave to appeal was required to be filed within 7 days following 12 December 2008 pursuant to O 52 r 10(2A)(b) of the Federal Court Rules and that the appellant failed to comply with such order as he filed his Notice of Appeal on 9 January 2009.

FURTHER CORRESPONDENCE 15 As mentioned, prior to the hearing of this appeal, the appellant sought leave to issue a subpoena to the interpreter who was present at the hearing before the primary judge. The appellant sought to have the interpreter provide evidence of what was said by the primary judge at the hearing in support of his claim that the primary judge had found in favour of him. The Court declined such leave but directed that a copy of the transcript of proceedings before the primary judge be made available to the appellant for his inspection. The Court record notes that the appellant duly inspected the transcript at the Court Registry on 20 May 2009. 16 On 25 May 2009 the appellant provided an 'open letter' to the Court relating to his examination of the transcript and referring to other matters. He claimed that the portion of the transcript recording that the primary judge had found in his favour had been excised. On 27 May 2009 the appellant forwarded a further letter indicating that he would not attend the hearing. Such letter requested that the Court either allow the appellant's request regarding the interpreter and provide the correct transcript to him or otherwise transfer the appeal to the High Court of Australia. 17 As foreshadowed in his letter, the appellant failed to appear at the hearing. 18 Following the hearing the appellant wrote a further two letters to the Court. The first, dated 2 June 2009, requested that the Court not hand down judgment prior to 10 September 2009 because the appellant would not be in Australia from 7 June 2009 to 10 September 2009. The second, dated 3 June 2009, submitted that the Court should reject the respondents' submissions because they had been sent to the wrong address and thus the appellant did not receive them until after the hearing.

Is the decision of the primary judge interlocutory or final? 19 For the reasons given hereunder the Court prefers to express no view on the question whether the decision of the primary judge is properly to be characterised as interlocutory or final. 20 In the case of Ibarcena v Secretary, Department of Family & Community Services [2003] FCA 1354, Stone J characterised the failure of an appellant bringing an appeal under s 44 of the Act to state a question of law as going to jurisdiction. At [4], Stone J observed: In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 Gummow J observed, at 178, that with respect to appeals under s 44 of the AAT Act:'The existence of a question of law is … not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself'. More recently, two separate Full Court decisions have considered the precision with which a question of law must be stated to ground an appeal under s 44 of the AAT Act; see Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 and Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244. In order to conform to s 44(1) of the AAT Act and O 53 r 3(2) of the Federal Court Rules, it is necessary to identify a question of law. In the absence of such a question this Court's jurisdiction is not enlivened. 21 North J in Pham v Secretary, Department of Employment and Workplace Relations [2007] FCA 947 referred to these observations with approval. 22 In Pham v Secretary, Department of Employment & Workplace Relations [2007] FCAFC 179 (per French, Lindgren and Jacobson JJ), Mr Pham sought to appeal from Pham [2007] FCA 947 to the Full Court. The respondent filed a Notice of Motion seeking to have the appeal dismissed under s 31A(2) of the Federal Court Act because it had no reasonable prospects of success and under O 52 r 18 of the Federal Court Rules because it was incompetent. The Full Court concluded that the proposed appeal had no reasonable prospects of success (at [15]) and dismissed the appeal as incompetent (at [16]). In doing so, the Full Court observed that the decision appealed from was interlocutory and therefore required leave of the Court before it could be entertained: see at [15]. 23 In Zoia v Commonwealth Ombudsman Department (2007) 240 ALR 624 ('Zoia'), a differently constituted Full Court (Spender, French and Gilmour JJ) also dealt with an appeal from a decision of a primary judge, who had dismissed an appeal from a Tribunal decision by reference to s 31A of the Federal Court Act. The Full Court decided to dismiss the appeal on its merits rather than embark upon a consideration of whether it was incompetent because leave had not been obtained. French J observed (at [26]), 'I question the utility of using s 31A of the Federal Court Act 1976 (Cth) in a case in which the argument and evidence in the substantive proceeding is not more extensive than the argument and evidence on the question whether there is a reasonable prospect of success for the purposes of s 31A'. Both Spender J (at [14]) and French J (at [26]) stated that the judgment appealed from was an interlocutory judgment. 24 While in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others (2008) 167 FCR 372 Finkelstein J (at [13]) and Gordon J (at [173]) expressed some doubts concerning the precedential value of Pham [2007] FCAFC 179 and Zoia, we consider that they provide some guidance in this case. This is so because those cases deal with a similar issue to that in this case. That is, whether a decision to dismiss an appeal from a Tribunal on the grounds of the failure to state a question of law, and the attendant want of jurisdiction, is interlocutory or final. 25 In SZAJB v Minister for Immigration and Citizenship and Another (2008) 168 FCR 410, French J (with whom Tracey J agreed) doubted whether the appropriate test to determine whether a decision was final was that the decision finally disposed of rights as a 'matter of reality'. French J noted that the Full Court in Lloyd Werft Bremerhaven GmbH v Owners of Ship "Zoya Kosmodemyanskaya" (1997) 79 FCR 71 had adopted this test, rather than the more traditional approach of whether the rights were finally disposed of as a matter of law. French J also referred to the apparent tension between the Full Court decision in Zoya Kosmodemyanskaya and another Full Court decision in Minogue v Williams (2000) 60 ALD 366 on the question of whether a decision which dismisses an application on the grounds of want of jurisdiction is final or interlocutory. In Zoya Kosmodemyanskaya the Full Court found that the decision was final, whereas in Minogue the Full Court found that the decision was interlocutory. 26 At [23] in SZAJB, French J went on to observe that: 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.

27 French J distinguished Zoya Kosmodemyanskaya as being consistent with the legal finality test on the grounds that the 'dismissal depended on adverse findings of fact (albeit jurisdictional facts) central to the claim' at [20]. French J then continued: Importantly, the decision did not and cannot be taken to have enunciated as a general proposition that where the reason for the dismissal of an action is want of jurisdiction, the judgment of dismissal is for that reason a final judgment. [Original emphasis]

28 The balance of authority appears to favour the position that as a general rule a decision dismissing an application on the grounds of want of jurisdiction is interlocutory. However, in this case we have not had the benefit of full argument as to whether the dismissal of an appeal under s 44 of the Act on the grounds that the appellant has failed to state a question of law falls within that general rule. For this reason, the Court prefers not to dispose of the appeal on the basis of the Objection to Competency made by the respondents, but rather to dispose of it on the merits for the reasons provided hereunder. Such approach is consistent with that taken by the Full Court in Zoia as discussed above at [23].

Grounds of Appeal 29 The Court will now proceed to examine the merits of the appeal.

Bias 30 A claim of actual bias is a serious allegation which must be 'distinctly made and clearly proved': see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507at [69] per Gleeson CJ and Gummow J. A claim of apprehended bias is less serious than actual bias: see Jia Legeng at [278] per Callinan J and requires that it be shown that 'the parties or the public might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question involved in [the proceedings]': see Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 293-294 per curium and R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258‑263 per Barwick CJ, Gibbs, Stephen and Mason JJ. 31 In Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 the High Court (per Gleeson CJ, McHugh, Gummow and Hayne JJ) at [6]-[7] said: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that…a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. [Original emphasis] 32 Given that the appellant did not attend the Court for the hearing of this appeal, the Court can only rely upon the appellant's written submissions. The Court is unable to discern any basis upon which it could be said that the primary judge was biased or that there were any grounds for a reasonable apprehension of bias from those submissions, or otherwise. 33 An examination of the transcript of the hearing does not disclose any evidence upon which it could be suggested that the primary judge acted in a manner which would lead to a reasonable apprehension that she might not bring an impartial and unprejudiced mind to the matters submitted before her. 34 The first ground of appeal is rejected.

Was the primary judge's decision consistent? 35 The Court has examined the transcript of the hearing before the primary judge to determine if there is any inconsistency in the findings. The Court cannot discern any comment that would support the appellant's contention that the primary judge had changed the decision between the hearing day and the handing down of judgment. Indeed, the appellant himself is aware that no such text appears in the transcript, as he contended in a letter written to the Court that such section must have been excised from the transcript. It should also be observed that even if, contrary to the above finding, the primary judge had expressed an opinion during the hearing which was inconsistent with the ultimate conclusion, such expression would not, per se, be sufficient to establish a claim of bias or apprehended bias. Hypothetically speaking a judge is entitled, upon reflection, to come to a different decision to that which might have been indicated during the hearing. There is nothing exceptional in such course. 36 The Court is not willing to accept the serious allegation that the transcript has been corrupted. The transcript is apparently complete. Even if the Court accepted the contention that a relevant section of the transcript was excised, the claim that the primary judge had made her decision on the day of the hearing is wholly inconsistent with the primary judge's statement made before adjourning when she said: All right. Well, as I have said, this is the hearing, so I'm not going to adjourn the proceedings, but I am going to reserve my decision and the parties will be notified when it's ready to be delivered. If you could translate that, please. 37 The Court rejects the second ground of appeal.

Ground 3 38 The primary judge noted that the appellant had submitted that he had insufficient time to prepare his appeal and thus did not have an opportunity to present all of his evidence. The primary judge found: 'I am satisfied that the appellant has had an adequate opportunity to present his case and identify any question of law he claims affects the decision of the Administrative Appeals Tribunal'. 39 The Court cannot find any evidence that justifies departing from the primary judge's finding. The third ground of appeal is dismissed.

Later correspondence 40 The appellant alleged in his letter written to the Court dated 3 June 2009 that he did not receive the submissions of the respondents until after the hearing. As the appellant failed to attend the hearing, and has not proffered any submissions to the Court in answer to the respondents' submissions since the date of the hearing, the Court rejects the appellant's claim that the respondents' submissions should be ignored. 41 It follows that the appeal is dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Siopis, Cowdroy and Reeves.

Counsel for the Appellant: The appellant did not appear

Solicitor for the Respondents: Australian Government Solicitor