Kowalski v Repatriation Commission

REASONS FOR JUDGMENT 1 This is an appeal from orders of Mansfield J made on 27 February 2009 and entered on 9 June 2009. His Honour's orders were expressed as follows: THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay to the respondent its costs of this application on the usual party and party basis. 2 It became apparent that the expression of those orders is capable of confusion. 3 Having regard to his Honour's reasons for judgment, it is appropriate to cure any confusion by relying on O 35 r 7(2)(e) to substitute for order 1 as expressed in the orders of Mansfield J the following: 1. The applicant's application, constituted by a document titled "Notice of Appeal" filed on 8 January 2009, be dismissed as incompetent. 4 That reformulation of the first of his Honour's orders gives effect to the position that an application to the Federal Court to appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) is not an appeal in the strict sense, but is an application within the original jurisdiction of the Court: see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581 per Bowen CJ and Deane J, and the observations of Smithers J at 592. 5 In the reasons for judgment of Mansfield J, his Honour said: 1 The Repatriation Commission seeks summary dismissal of Mr Kowalski's appeal from a decision of the Administrative Appeals Tribunal given on 7 January 2009. The Commission first objected to the competency of the appeal by notice of 19 January 2009, and subsequently by motion of 5 February 2009 applied to have the notice of appeal dismissed as incompetent, together with an order for costs on an indemnity basis. The motion means that it is in practical terms unnecessary to consider any issue as to whether the notice of objection to competency was given within the time permitted by O 19 r 3 of the Federal Court Rules and, if not, any further issue as to whether the time to have done so should be extended. 2 The short issue which the respondent seeks to ventilate is that the decision from which the appeal is brought is not a decision from which an appeal may be brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). Section 44 permits a party to a proceeding before the AAT to appeal to the Court on a question of law from any [sic] decision of the Tribunal in that proceeding. Mr Kowalski says that the word "decision" should be given its "ordinary grammatical meaning", a meaning which encompasses the decision of the AAT of 7 January 2009: see Farley (Aust) Pty Ltd v JR Alexander & Sons (Qld) Pty Ltd (1946) 75 CLR 487 at 492 per Williams J. 6 As the second paragraph of his Honour's reasons makes plain, the contention at the core of this appeal is the contention by Mr Kowalski that the word "decision" should be given its ordinary grammatical meaning, a meaning which he says encompasses the decision which the Administrative Appeals Tribunal (the AAT) made on 7 January 2009. 7 What precisely was the decision that is the subject of this appeal appears from the first paragraph of a document styled "Notice of Appeal" which Mr Kowalski filed in the primary proceedings on 8 January 2009. 8 The first paragraph of that document says: 1 TAKE NOTICE that the applicant appeals from the decision or determination of the Administrative Appeals Tribunal constituted by Member J G Short given on the 7th of January 2009 at Adelaide by which the Tribunal decided or determined that "The Tribunal dismisses the application lodged on 2 November 2008 by Mr Kowalski to declare the Repatriation Commission's application for review frivolous or vexatious and to dismiss that application or direct a permanent stay in respect of that application and/or to dismiss the application pursuant to s 33 of the Administrative Appeals Tribunal Act 1975 (Cth)." 9 It is therefore the characterisation of the decision of the AAT of 7 January 2009 which is at the core of this appeal. 10 The position is that leave is required to appeal from an interlocutory judgment of the Federal Court of Australia constituted by a single judge. That is the combined effect of ss 24(1)(a) and 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). 11 In Fifita v Minister for Immigration and Multicultural Affairs [2001] FCA 1695, the Full Court of the Federal Court held that a purported appeal in relation to a proceeding dismissed on the ground that the Court had no jurisdiction to entertain it was incompetent, without leave. 12 In that case Spender J said, at [8]: In this case the dismissal of the proceedings on the ground that the Court had no jurisdiction to entertain the application by Ms Fifita means in a legal sense that her rights remain undetermined. It seems therefore that in these proceedings the decision sought to be appealed from is interlocutory and that leave would be required, and that in the absence of leave the appeal is incompetent. Because, however, the matter has not been the subject of a contradictor, it is preferable that the appeal not be dismissed on the technical ground that it is incompetent in the absence of leave, but that the substantial merits of the matter be looked at. 13 Later that appeal was dismissed with costs for the reasons given at [9] of that judgment: In this particular case, the decision of Hely J is incontrovertibly correct and therefore, had leave been sought, leave would be refused because the foreshadowed appeal would enjoy absolutely no prospect of success. Therefore, since the decision under appeal is not attended with any doubt, it follows that leave would be refused. 14 French J, as he then was, referred to those observations in SZAJB v Minister for Immigration and Citizenship and Another (2008) 168 FCR 410: see his Honour's observations particularly at [23]. 15 In this particular case the order of Mansfield J dismissing the application as incompetent is interlocutory and leave is required. 16 The question of whether leave should be granted depends on whether there is any real prospect of success in the circumstances of this case. The position in that regard is reflected in his Honour's reasoning at [19] - [23] inclusive. 17 His Honour said, at [19]: The present issue is whether, in the circumstances, the AAT decision is one from which there is a right of appeal on a question of law under s 44 of the AAT Act. As noted, Mr Kowalski says that the word "decision" should be given its ordinary grammatical meaning. 18 Mansfield J followed authority to the contrary, in particular the judgment of the Full Court of the Federal Court in Director-General of Social Services v Chaney (1980) 47 FLR 80 (Chaney). There the Full Court determined that a right of appeal pursuant to s 44 of the AAT Act "lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review". 19 In relation to the crucial question on this application for leave to appeal, Mansfield J said, at [23]: The decision in Chaney has been applied in a number of cases in which the Court's jurisdiction under s 44 of the AAT Act has been invoked following the refusal to summarily dismiss a review application to the AAT under s 42B: Australian Postal Corporation v Matusko (Unreported, 14 May 1996, Olney J); Board of Examiners under the Mines Safety and Inspection Act 1994 (WA) v Lawrence (2000) 100 FCR 255; Duncan v Fayle (2004) 138 FCR 510. It has also been held that a decision under s 33 not to exercise the discretion under s 33 of the AAT Act to dismiss or confine a review application to issues of law is also not a decision to which s 44 applies: see Lawrance v President, Administrative Appeals Tribunal [2005] FCA 541; and Pham v Secretary, Department of Employment and Workplace Relations (2007) 99 ALD 694. I am bound to follow those decisions of the Full Court, and with respect I agree with the reasoning of the learned judges in both the Full Court decisions and in the single judge decisions. 20 In that regard, his Honour was undoubtedly correct. It follows that his decision is not attended with sufficient doubt as to warrant its being reconsidered by a Full Court, and for that reason the necessary leave to appeal should be refused. Had leave been granted, the appeal would have enjoyed no prospects of success. 21 The rationale for confining what are decisions which can be the subject of an appeal under s 44 of the AAT Act is illustrated by the observations of the Full Court of the Federal Court in Geographical Indications Committee v The Honourable Justice O'Connor (2000) 64 ALD 325, to which Mansfield J referred in [22] of his Honour's reasons. The Full Court in that case followed the decision in Chaney. 22 The Full Court said: 26. In the context of curial proceedings, the courts have been at pains to emphasise the undesirability of allowing appeals against interlocutory decisions involving matters of practice and procedure to fragment and delay the trial of proceedings. The most frequently cited authority for this proposition comes from the joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-7; 35 ALR 625 at 628-9. Their Honours repeated with approval the following statement of Sir Frederick Jordan in In re the Will of F B Gilbert (dec'd) (1946) 46 SR (NSW) 318 at 323: … I am of the opinion that … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a Court of Appeal. Their Honours added that it is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration. At this stage, as we have just observed, it is not possible to know if there is any real issue in the GIC's complaint about the directions. Until that is possible the GIC is unable to demonstrate that any injustice could flow from the directions. … 28. In Federal Commissioner of Taxation v Beddoe [(1996) 68 FCR 446], which concerned an application under the AD(JR) Act [Administrative Decisions (Judicial Review) Act 1977 (Cth)] to review directions made by the tribunal under s 33 of the AAT Act for the filing and exchanging of answers to questions prior to a hearing Spender J, said at FCR 453; ALD 568; ALR 390: It is in my opinion wholly undesirable that the process contemplated by the AAT Act should be fragmented by applications seeking to challenge intermediate directions or determinations made along the way to reaching an ultimate determination of the issue before the tribunal, in the same way that this court should be reluctant to fragment the criminal process by entertaining applications under the AD(JR) Act in relation to committal proceedings and, in particular, intermediate rulings or determinations made in the course of committal proceedings rather than the ultimate decision to commit. 23 For these reasons, then, leave should be refused, and the application for leave be dismissed. 24 The respondent to this application seeks its costs, and seeks them on an indemnity basis. Mr Kowalski asserts that there is no power to award costs where the Court has decided that it has no jurisdiction to entertain the matter before it. The position is explained in a judgment of the High Court in Re Macks; ex parte Saint (2000) 204 CLR 158. There the High Court made it clear that the Federal Court had authority to make a binding decision as to whether it had jurisdiction in a matter: see the observations of Gleeson CJ in [20]-[22], Gaudron J at [51]-[53] and [57], McHugh J at [150] and [156], Gummow J at [214] and [216] and Kirby J at [255] and [256]. 25 Gaudron J said, at [51]: … Parliament has power to confer authority on a federal court to decide whether or not it has jurisdiction. 26 As part of the incidental power, the Court has power to order costs in relation to that type of decision. However, the matter is made plain by the FCA Act itself. 27 Section 43(1) of the FCA Act relevantly provides: ... the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) … 28 There is thus no question that this Court has power to award costs in the proceeding before it. 29 On the question of whether those costs for the successful party should be ordered on an indemnity basis or not, the respondent submits, at pars 38 - 39 of the written submissions: 38. The Respondent again wrote to the Appellant on 5 August 2009. This time the Respondent warned the Appellant, in some detail, as why the Appeal can not succeed. Express reference was made to relevant cases and legislation to ensure that the Appellant was under no misunderstanding as to the futility of the Appeal. 39. Despite that fact, and a subsequent letter of 6 August 2009 again warning the Appellant that the Respondent would seek costs on an indemnity basis if the Appeal was not discontinued, the Respondent is proceeding with the Appeal. 30 Essentially the respondent says that it warned the 'appellant' twice about the prospects of the appeal and the consequences of its continuance, including in the letter of 5 August 2009. It submits that the 'appellant' has had ample warning with sufficient particularity as to why the appeal (and the application before it) must fail. On that basis the respondent seeks an order for indemnity costs, not to punish the applicant but rather to fully compensate the respondent for the expenditure it has unreasonably been subjected to in responding to the appeal. 31 However, notwithstanding the fact that the 'appeal' has been unsuccessful on the grounds foreshadowed by the respondent in these warning letters to the applicant, it is relevant that Mr Kowalski is appearing for himself. It is also relevant that the cases establish that the use of the word "decision" in s 44 of the AAT Act has the meaning as defined by cases such as Chaney and contrary to the ordinary meaning, and does not encompass just any decision made by the AAT. There is the further complication that an appeal pursuant to s 44 of the AAT Act is an application in the original jurisdiction of the Federal Court and is not an appeal in the strict sense. A further complication is that an order holding that an application is incompetent for want of jurisdiction is interlocutory and, therefore, requires leave. 32 Each of these matters is a factor which complicates a little the nature of the matter which Mr Kowalski sought to have resolved in his application to this Court. 33 For these reasons, we order that the applicant pay the respondent's costs, on the usual basis. 34 The orders of the Court are as follows: