Harrison v Secretary, Department of Social Services

The factual background 8 The factual background to the present proceeding can be distilled to relatively few events. The entire background need not be set forth. 9 Those events relevantly started on 31 March 2017 when the Tribunal affirmed the Department's decision. In doing so, the Tribunal identified the issues to be resolved as follows: ISSUES 8. The determinative issues for the Tribunal are whether Mr Harrison: • was residentially qualified for the purposes of receiving the age pension; • was an Australian resident for the purposes of family tax benefit; • has debts to the Australian Government, and if so, whether there are any grounds for waiving all or part of the debts. The Tribunal accepted that Mr Harrison had reached "pension age" but did not otherwise qualify. The decision under review was, accordingly, affirmed. 10 Mr Harrison received a copy of the Tribunal's decision by way of an attachment to an email sent to him on 19 May 2017. He further maintained, however, that he has never received a "hard copy" of the Tribunal decision. Irrespective of whether he has ever been provided with a "hard copy" of the Tribunal decision, it is concluded that a copy of the decision was received by him, as an attachment to the email dated 19 May 2017. 11 It was after receiving a copy of the Tribunal decision, and presumably after reading the reasons for decision, that a number of perceived "procedural errors" on the part of the Tribunal "played on" Mr Harrison's mind. In an affidavit sworn on 30 September 2017 he stated (without alteration): In May 2017 I received an e mail from AAT advising that the AAT decision was final but I did not receive the actual typed decision by e mail or by post. However I presumed that my Application to the AAT had not been successful. I was advised by the AAT I may Appeal to the Federal Court upon matters relating to LAW but not upon matters relating to FACTS. As my Appeal against the AAT related to determination of FACTS, upon AAT advice I did not consider, on that date, that I had a case to go to the Federal Court. Whatever may have been the perceived prospects of success of an appeal, Mr Harrison in late May 2017 sought to canvas his grievances with both the Commonwealth Ombudsman and the Tribunal. 12 On 29 May 2017 Mr Harrison made a complaint to the Commonwealth Ombudsman stating that he "received a final determination from AAT on 19 May 2017". In that letter Mr Harrison stated that he did "not consider [he] was given a fair hearing from the AAT". He proceeded to express his reasons for that opinion by stating that: the Respondent to the Tribunal hearing had filed "82 pages at the hearing" and he was only given 15 minutes to read that material; the Tribunal had declined to comment that it had received "all documents that [he] had submitted", the documents being thereafter generically identified; he had heard "only … one quarter of what was said" due to poor hearing; he had submitted to the Tribunal "late documents" and that he was "not aware these documents … were considered"; prejudice by reason of "the seconded lawyer" seeking only "to prove the case he wanted to prove, by any means, even by vilifying the Applicant"; prejudice by reason of only being advised at the hearing that he "may be professionally represented"; and prejudiced by not being aware of an ability to "bring a witness". 13 The Ombudsman responded to the complaint made by Mr Harrison on (inter alia) 26 June 2017 stating that that office did "not have any jurisdiction to investigate the conduct or decisions of the AAT". The letter from the Ombudsman's office of that date concluded with the statement that: I can only suggest that if you believe the AAT made a legal error (such as failing to consider relevant information), you obtain legal advice about lodging an application to the Federal Circuit Court or Federal Court. Notwithstanding that suggestion, Mr Harrison abstained from seeking "legal advice" or any other advice. He relied upon his own assessment as to what course should be pursued. 14 Whilst communicating with the Ombudsman's office, Mr Harrison was also communicating with the Tribunal. It would appear that he had sent a complaint by email to the Tribunal on 31 May 2017. In his affidavit, Mr Harrison states that "[d]uring the months of May 2017 I sent the AAT copies of documents I have previously supplied to them but which I believed they did not have on file". On 6 June 2017, a Registry Manager at the Tribunal appears to have emailed a response stating: The Tribunal made its final decision in relation to your matter on 31 March 2017 and has no powers to further deal with you application. The Tribunal is unable to enter into any further correspondence with you and suggests you obtain independent legal advice regarding the Tribunal's decision if required. Notwithstanding the terms of that email, Mr Harrison apparently sent a further email to the Senior Registrar of the Tribunal headed "COMPLAINT". He received no response to that email. 15 Shortly after receiving that letter from the Ombudsman, Mr Harrison sought to invoke the jurisdiction of this Court. He thus wrote to the Registry of this Court on 30 June 2017 and tried unsuccessful thereafter to file documents. 16 It was on 28 July 2017 that Mr Harrison filed in this Court a document titled "Application for an extension of time". Although Mr Harrison believed that his application to appeal from the decision of the Tribunal was within time because he had "contacted the Federal Court within the 28 days advised by the Ombudsman", the document filed on 28 July 2017 was apparently filed out of an abundance of caution.

The 5 September order & its aftermath 17 On 5 September 2017 the Court noted that the proceeding had come before the Court on 29 August and 5 September 2017 and that on both occasions there had been a failure on the part of Mr Harrison to appear. 18 The application then before the Court, being the Application for an Extension of Time, was dismissed. 19 Mr Harrison was notified by way of email of the making of this order. 20 On 10 October 2017 Mr Harrison filed an Interlocutory Application seeking an order that the order made on 5 September 2017 be set aside. 21 If the order dismissing the proceeding be set aside, Mr Harrison proposed to rely upon a draft Notice of Appeal dated 30 September 2017. That draft provided in part as follows (without alteration): Ground relied on 1. That the AAT did not receive all the documents that I had sent 2. That the AAT presented 82 pages documents at the Hearing without giving the Applicant 14 days notice and advised the Applicant to read the 82 pages during the 15 minute tea break. 3. That the Applicant has only 20 % hearing in one ear and was unable to here all the arguments put forward by the Seconded Lawyer acting for the Secretary. 4. These complaints were itemised in a letter to the AAT dated 7 June 2017 a copy of which is attached hereto.

The power to set aside - r 39.05 22 The power invoked by Mr Harrison, albeit a power presumably of which he was unaware, was that conferred by r 39.05(a) of the Federal Court Rules 2011 (Cth). Rule 39.05 provides (in part) as follows: Varying or setting aside judgment or order after it has been entered The Court may vary or set aside a judgment or order after it has been entered if: (a) it was made in the absence of a party; or … 23 When addressing the comparable rule in the now-repealed Federal Court Rules, namely O35 r 7, Siopis J in 3D Funtimes Ltd v Intellec Development Group Pty Ltd (No 2) [2011] FCA 407 observed: [5] Order 35 r 7(2)(a) of the Rules gives the court a discretion to set aside an order which has been made in the absence of a party before the Court. [6] The Rules do not prescribe the matters to which the Court is to have regard in the exercise of its discretion. However, it is usual for the Court in these circumstances, to have regard to the explanation given by the absent party for its absence, and whether the evidence discloses a defence of sufficient merit to warrant setting aside the order and permitting the matter to go to trial. The same approach should be pursued with respect to the current r 39.05(a). 24 There is no requirement that "exceptional circumstances" must be established in all cases before the discretion may be exercised: Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892. White J there said of the current rule: [9] Rule 39.05 of the Federal Court Rules 2011 authorises the Court to set aside a judgment or order after it has been entered if, amongst other things, it was made in the absence of a party. The rule does not circumscribe the discretion to set aside in these circumstances, but that discretion must, of course, be exercised judicially. Some authorities indicate that the power under r 39.05 is exercised ordinarily only in exceptional circumstances; for example, Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 at 6. The circumstances to which r 39.05 may apply may be quite varied, so that it may not be appropriate to require exceptional circumstances in all cases. Nevertheless, it is apparent that good reason must be established for the court to exercise the discretion to set aside an order which has been entered. The authorities indicate that parties seeking the exercise of the discretion, when the orders sought to be set aside were made in their absence, will usually have to provide a proper explanation for that absence, and show that they have a case which is reasonably arguable: 3D Funtimes Ltd v Intellec Development Group Pty Ltd (No 2) [2011] FCA 407 at [6]. 25 The exercise of the discretion thus requires consideration to be given to (inter alia) the reasons for a party being absent and whether the case sought to be advanced is reasonably arguable.

The exercise of the discretion - the facts of the present case 26 On the facts of the present case, Mr Harrison was not present in Court on either 29 August or 5 September 2017 for the very good reason that he was not present in Australia. On those dates he was in Zimbabwe. There may even be good reason for why he did not seek to participate in either hearing by way of (for example) telephone. That good reason may be found (perhaps) in his belief that the hearing was to be ex parte. 27 If the only consideration of relevance to the exercise of the discretion conferred by r 39.05 was the reason why Mr Harrison did not attend, the discretion would most probably have been exercised in favour of setting aside the order made on 5 September 2017 dismissing the proceeding. 28 But that is not the only consideration of relevance. Two other considerations of potential relevance are: the explanation as to why he did not proceed more quickly with his decision to appeal from the decision of the Tribunal; and: the absence of any merit in the proposed appeal. Although both of these factors may also go to an exercise of the discretion to extend time within which to permit Mr Harrison to appeal, both factors remain of relevance to the application of r 39.05: cf. 3D Funtimes [2011] FCA 407 and Lal v MIBP [2014] FCA 892. There would be little point in setting aside the order made on 5 September 2017 only to have the Application for an Extension of Time be thereafter itself dismissed. 29 As for the former matter, the facts are that: on 19 May 2017, Mr Harrison became aware of the Tribunal decision, a copy of that decision being attached to the email to him on that date; and thereafter, but prior to writing to the Ombudsman on 29 May 2017, Mr Harrison gave active consideration to the prospect of appealing to this Court but decided against doing so because he formed the view that any appeal "related to determination of FACTS" There is little reason in such circumstances why the time within which to appeal from the Tribunal decision should not commence to run from either 19 May 2017 or (perhaps) a few weeks after that. For the purposes of s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth), that is the date upon which he was "given" a copy of the "terms of the decision of the Tribunal". Section 68(2)(b) of the Administrative Appeals Tribunal Act and reg 17(3)(c) of the Administrative Appeals Tribunal Regulations 2015 (Cth) would authorise the giving of a copy of the Tribunal decision to Mr Harrison by way of email: cf. Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142 at [24] to [25] per Tracey J. 30 Some explanation for not appealing within time may, however, be found in the attempts made by Mr Harrison to seek redress from the Tribunal itself or from the Ombudsman's office rather than incurring the expense of an appeal to this Court. After receipt of the Tribunal decision Mr Harrison did in fact seek redress from: the Tribunal, as evidenced by his letter dated 29 May and the email apparently sent on 6 June 2017; and the Ombudsman's office, as evidenced by the letter from that office dated 26 June 2017. 31 Although time limits are normally to be adhered to (Minister for Immigration & Multicultural & Indigenous Affairs v Sochorova [2002] FCAFC 365 at [10] per Spender, Drummond and Marshall JJ), the steps taken by Mr Harrison to remedy what he perceived to be a wrong done to him by the Tribunal decision may have justified an extension of time being granted. That may well have been so notwithstanding the desirability of public law matters being resolved in a timely manner: cf. Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62], (2001) 192 ALR 71 at 86 per Gyles J. 32 But it is the second consideration which leads to Mr Harrison's application being unsuccessful. The proposed appeal is without merit. 33 Little may ultimately turn upon the manner in which the draft Notice of Appeal is drafted. Although the jurisdiction of this Court is confined to the resolution of a question of law (Brown v Repatriation Commission (1985) 7 FCR 302 at 305 per Bowen CJ, Fisher and Lockhart JJ; Haritos v Federal Commissioner of Taxation [2015] FCAFC 92 at [62] and [85], (2015) 233 FCR 315 at 341 to 342 and 348 to 349 per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ; Frugtniet v Australian Securities and Investments Commission [2017] FCAFC 162 at [46] per Reeves, Farrell and Gleeson JJ), and although no questions of law has been identified in the draft Notice of Appeal, it would be open (even for the Court itself) to reformulate the "[g]rounds relied on" in that draft and identify such a question: P v Child Support Registrar [2013] FCA 1312 at [53], (2013) 138 ALD 563 at 576 per Wigney J; Haritos [2015] FCAFC 92 at [103], (2015) 233 FCR at 353 per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ. Those "[g]rounds" may (for example) expose a denial of the "reasonable opportunity" to which s 39 of the Administrative Appeals Tribunal Act refers. 34 Nor may anything ultimately turn on Mr Harrison's assessment in May 2017 as to an appeal being more directed to reviewing findings of fact rather than any question of law. Had Mr Harrison been legally represented, a skilled draftsman could have formulated a "question of law" so as to satisfy s 44 of the Administrative Appeals Tribunal Act. Subsequent reconsideration on his part, or an independent legal adviser, may expose a potential argument not previously envisaged as at May 2017. An unrepresented litigant may well inadvertently stumble across a source of grievance which may be later presented as an issue exposing error of law. 35 But what does matter is that the "[g]rounds relied upon", even if they were to be reformulated, have no self-evident merit. 36 An Application for an Extension of Time is not the occasion to finally resolve the fate of any question of law which is sought to be pursued: cf. MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, (2015) 242 FCR 585. When considering an application for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth), Mortimer J there noted the submission advanced as follows (at 597): [60] … Counsel submitted it appeared the Federal Circuit Court had decided the extension of time as if the case was fully argued, and this was an incorrect approach, especially given there is no right of appeal from the refusal to extend time: see s 476A(3)(a) of the Migration Act. Her Honour proceeded to resolve that submission as follows (at 598 to 599): [63] The correct approach may be expressed by the use of language such as whether a ground is "arguable", "reasonably arguable", "sufficiently arguable" or has "reasonable prospects of success" (see [SZTES v Minister for Immigration and Border Protection] [2015] FCA 719 at [48]; [SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [46] to [48], (2013) 236 FCR 442 at 451 to 452]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision. … [66] … In my opinion, unless the grounds are hopeless in the sense I have discussed above so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then to consider and determine the grounds of review with a full consideration of them. There is no reason that cannot still be done in one hearing and in my opinion it reflects a more appropriate exercise of the supervisory jurisdiction of the Federal Circuit Court. See also: DMI16 v Federal Circuit Court of Australia [2017] FCA 1179 at [33] per Robertson J. 37 It is concluded that none of the four "[g]rounds identified by Mr Harrison have any apparent merit because: there is no reason to question the Tribunal having received and considered all of the documents upon which Mr Harrison sought to rely at the hearing - the Tribunal listed the documents it took into account ([2017] AATA 411 at [18] to [21]) and there is no evidence that Mr Harrison was denied the opportunity to place before the Tribunal at the hearing all of the evidence he then considered to be relevant to his application. Indeed, the Tribunal expressly stated that it had "regard to the Secretary's contention that there is no further evidence mentioned in Mr Harrison's submission that had not been considered in the course of the Tribunal hearing on 20 and 21 February 2017" (at para [20]); there is no reason to question the adequacy of the time extended to Mr Harrison to review the "82 pages documents at the Hearing" - there was no transcript of the Tribunal hearing available to this Court upon which a finding could be made (for example) that Mr Harrison sought and was refused further time in which to consider the documents or sought or was refused an adjournment to enable him to do so. A statement "on instructions" from the solicitor appearing for the Respondent in the present proceeding as to what had happened at the Tribunal hearing, and assertions on the part of Mr Harrison as to what had happened before the Tribunal, take the matter no further; there is again no reason to question the adequacy of the hearing extended to Mr Harrison by the Tribunal or the understanding on the part of the Tribunal of Mr Harrison's hearing disability - there again being no evidence as to any complaint being made by Mr Harrison to the Tribunal as to any difficulty he was then encountering by reason of an obvious hearing impairment. The Tribunal would undoubtedly have been aware of the difficulty experienced by Mr Harrison in hearing all that was said. So much was, with respect, obvious to this Court. Mr Harrison was experiencing difficulty during the course of the hearing before this Court - until such time as he was provided with a wireless stethoset headphone to assist with his hearing. The Tribunal had itself referred to "his hearing impairment" (at para [44]); and the letter referred to in Ground 4, being the letter in fact typed on 29 May 2017, is but a repetition of the former Grounds. In the absence of evidence of "procedural errors", the Court is essentially constrained by so much as may otherwise be gleaned from the reasons for decision of the Tribunal. There is, with respect, nothing in those reasons to substantiate any of the complaints sought to be aired by Mr Harrison and only that which supports the contrary inference, namely that the Tribunal hearing proceeded in a procedurally fair manner. In the absence of a transcript of the Tribunal hearing, and where none was available, considerable reservation would have been expressed in placing reliance upon assertions by Mr Harrison as to what had happened during the Tribunal hearing. Such evidence as was given by Mr Harrison in the present proceeding, and his cross-examination, occasioned concern as to the accuracy and reliability of that evidence. The Tribunal, it would appear, also had reservation as to at least some of the evidence given by Mr Harrison, noting (at para [37]) that "Mr Harrison's written and oral evidence for the period 1988 to 1991 is inconsistent" and that other evidence "is not supported by Centrelink records" (at para [43]). The Tribunal further noted (at para [45]) that "Mr Harrison's statements are unclear, inconsistent and contradictory". Other like statements are made by the Tribunal (at paras [48], [59] and [78] to [79]). 38 The absence of prejudice on the part of a Respondent should an extension of time be granted within which to appeal from a decision of the Tribunal is no reason of itself to grant the extension: cf. AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [11], (2015) 238 FCR 341 at 344 per North, Besanko and Flick JJ. It is the absence of merit in the potential arguments sought to be raised on appeal which leads to Mr Harrison's lack of success in the present proceeding. 39 There is no self-evident question of law which emerges from the reasons for decision of the Tribunal.

CONCLUSIONS 40 In the circumstances of the present proceeding, it matters not whether an order pursuant to r 39.05 of the Federal Court Rules is refused such that the order made on 5 September 2017 remains on foot or whether that order is set aside and the Application for an Extension of Time is thereafter refused. The end result is the same. 41 There is no merit in Mr Harrison's proposed appeal from the decision of the Administrative Appeals Tribunal. There is no evidence or other material which lends any support for any of the proposed grounds, even if they were to be reformulated as questions of law. 42 The proceeding should remain dismissed. 43 There is no reason why costs should not follow the event. Albeit a matter for the Respondent, consideration should be given to not seeking to recover such costs as were incurred on 29 August 2017 and 5 September 2017 when it was not possible for Mr Harrison to attend in person. But that is a matter for the Respondent.

THE ORDERS OF THE COURT ARE:

1. The Interlocutory Application filed on 10 October 2017 seeking to set aside the Order made on 5 September 2017 is dismissed.
2. The Applicant is to pay the costs of the Respondent, either as agreed or taxed. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.