Galpin trading as Australian Online Racing Accreditation v Australian Skills Quality Authority

1. The applicant have leave to file and serve an amended notice of appeal by 4.00 pm on 5 August 2021.
2. The interlocutory hearing be adjourned to 9.30 am on 27 August 2021.
3. The proceeding be listed for a case management hearing at 9.30 am on 27 August 2021.
4. Cost reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHEELAHAN J: 1 By a notice of appeal from a tribunal, the applicant, who is unrepresented, seeks to appeal a decision of the Administrative Appeals Tribunal given 25 February 2021. By that decision, the Tribunal affirmed a decision of the respondent to cancel the applicant's registration under the National Vocational Education and Training Regulation Act 2011 (Cth). Prior to the cancellation of her registration, the applicant was entitled to trade as an NVR registered training organisation, as defined in the Act, delivering vocational education and training. In the applicant's case, the training was in the area of thoroughbred racing, including training as a stablehand, advanced stablehand, and a racehorse trainer. 2 An appeal to this court from a decision of the Tribunal may be brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). An appeal under that section is confined to a question of law, and is in the nature of judicial review. Rule 33.12(2)(b) of the Federal Court Rules 2011 (Cth) provides that the notice of appeal must state, "the precise question or questions of law to be raised on the appeal", and r 33.12(2)(e) provides that the notice of appeal must state, "briefly but specifically, the grounds relied on in support of the relief or variation sought". 3 By her notice of appeal, the applicant identified the following questions of law - 1. On the grounds of Natural Justice and Procedural Fairness. 2. Bias 4 The grounds stated in the notice of appeal are, as the rules require, brief, and provide - 1. Bias, Audit irregularities, improper inappropriate methods and findings unethical accountability, equality, discrimination 5 As matters stand, the notice of appeal does not disclose to a sufficient degree the questions of law that are the subject of the appeal, or any grounds of appeal that set out in an intelligible way the basis on which the applicant claims that the Tribunal's decision should be set aside. 6 At the first case management hearing on 30 April 2021, I informed the applicant that an appeal from the Tribunal was an appeal on a question of law, and that the question of law forms the subject matter of the appeal. I informed the applicant that an appeal to this court was not a rehearing of the case before the Tribunal, and I informed the applicant of my preliminary view that the questions of law in the notice of appeal were not identified with sufficient precision. For its part, the respondent foreshadowed filing an objection to the competency of the appeal. The applicant requested an adjournment of the case management hearing for the purpose of engaging legal representation, which I granted by adjourning the hearing to 28 May 2021. 7 Subsequently, the respondent filed a notice of objection to the competency of the appeal pursuant to r 33.30 of the Federal Court Rules. The principal ground of objection is that the applicant's notice of appeal does not disclose any question of law. 8 At the case management hearing on 28 May 2021 the applicant remained unrepresented. The respondent indicated its desire to proceed with its objection to the competency of the appeal, which I fixed for hearing today, 24 June 2021. I summarised again for the applicant the position in relation to appeals on a question of law, and the need to identify a question of law in the notice of appeal. I informed the applicant that, subject to hearing full submissions from her, I could see that there were difficulties with the way that her case was presented. I informed the applicant that, upon the hearing of the respondent's objection to competency of the appeal, she bore the onus, such that she had to persuade the court that the appeal was competent: see, r 33.30(2). I made orders that the parties file written submissions not exceeding five pages, and in view of the fact that the applicant was unrepresented, I ordered that the respondent file submissions first, and that the applicant respond. 9 Both the respondent and the applicant filed written submissions, as ordered. In addition, the applicant furnished a document titled "Notice of appeal (addition to the First Notice)". By that document the applicant proposed additional questions of law as follows - 1. First Question of Law Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue goes against procedural correctness An issue once decided must not be raised again The principles of natural justice concern the general manner in which a decision is made. Essentially, procedural fairness does not concern the correctness of the decision. Rather, principles of natural justice help to ensure that the decision maker followed the proper procedure in arriving at their decision 2. Second Question Restraint of Trade was an unlawful Restraint 10 Additional grounds of appeal were alleged in the document, which are unnecessary to set out for present purposes. 11 Finally as to documents, the applicant has over the course of the proceeding emailed a number of other documents to my chambers. Those documents include an affidavit sworn 18 May 2021, an affidavit sworn 24 December 2019, and a document of 11 pages titled "Statement of Facts, Issues & Orders Sought". This last document makes a number of claims, but in disordered way. The claims include: (1) bias on the part of the Tribunal, which appears to extend to actual bias; and (2) denial of procedural fairness. However, the document also appears to include complaints that go to the merits of the Tribunal's decision. 12 In Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315, a Full Court comprising five members of the court identified the distinction between the question of competency of an appeal on a question of law, which raises questions of jurisdiction, and procedural questions relating to the sufficiency of the content of a notice of appeal. Ordinarily, the court's jurisdiction will be engaged by non-colourable allegations that sufficiently assert questions of law. In determining whether a question of law is sufficiently asserted so as to engage the court's jurisdiction, the court is not constrained by the questions as stated, or even by the four corners of the notice of appeal. Whether any question of law that is raised is stated with sufficient precision for the purposes of r 33.12(2)(b) of the Federal Court Rules does not affect jurisdiction, but raises a question of procedure that may invite some active case management in order for the appeal to proceed to hearing quickly, inexpensively, and as efficiently as possible. As the Full Court stated in a subsequent case, Luck v Secretary of the Department of Human Services [2015] FCAFC 111; 233 FCR 494 at [49], inelegant or confused drafting does not deprive the court of jurisdiction. 13 The respondent's objection to the competency of the appeal seeks, in substance, the summary dismissal of the appeal on the ground that the appeal is not competent because it does not raise a question of law. The documents that have been filed and furnished by the applicant endeavour to frame claims around what are said to be questions of law. I accept that the notice of appeal does not state a question of law to a desirable level of precision. I also accept that the grounds of appeal as currently framed do not appear to be sufficiently related to any questions of law so as to present a coherent case. However, at least at this stage, I am not persuaded to dismiss the appeal summarily as being incompetent. Instead, I propose that the applicant be given leave to file an amended notice of appeal that sets out questions of law, and the grounds of appeal in the one document, and in an ordered, organised way. The questions of law should be more than topics, but should be framed precisely as questions, such as - Did the Tribunal err by failing to accord the applicant procedural fairness in a way that was material to its decision? 14 A question such as the above will then need to be supported by grounds that identify precisely the grounds on which any such claim is made. It will not be sufficient to make a broad-brush claim of denial of procedural fairness, or bias for that matter. Any question involving an allegation of bias by the Tribunal should make clear whether the question raised is one of actual bias, or apprehended bias, and the grounds of appeal will need to set out the basis on which any such claim is made. Any questions of law that are raised should be tenable, that is, properly arguable. The applicant will need to give attention to whether, on the material, her claims of issue estoppel and restraint of trade involve properly arguable questions or errors of law. The grounds of appeal should be organised in the document in a way whereby they relate to the questions of law that are raised, and for this purpose might be set out under headings relating to each question of law. The grounds should be expressed clearly and in such a way as to give the respondent fair notice of the applicant's case, and to identify for the court the issues that are to be determined on appeal. If the notice of appeal, or any part of it, fails as a matter of substance to meet these objectives, then the court may on application or on its own motion strike out the notice of appeal, or the relevant part: see, Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272 (Allsop J). 15 In the above circumstances, I will give leave to the applicant to file and serve an amended notice of appeal, and I will adjourn the further hearing of the respondent's objection to the competency of the appeal to the next case management hearing. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.