Lawrance v President, Administrative Appeals Tribunal

The reasons of 10 February 2005 ([2005] FCA 79) 16 At the first directions hearing before Jacobson J, Ms Lawrance sought and was granted leave to file an amended application. That afternoon, she sought interlocutory relief. The first, second and third respondents submitted to the orders of the court. There was no appearance for the fourth respondent, Ms Smith. Ms Lawrance filed an affidavit in which she deposed to service of Ms Smith. Jacobson J was not satisfied that Ms Smith had been served. In considering the application for interlocutory orders against Ms Smith, Jacobson J referred to Ms Lawrance's affidavit where she said that Ms Smith was an employee of CRS Australia. In his Honour's view, that did not establish that Ms Smith was an officer of the Commonwealth. 17 His Honour noted an earlier proceeding which had been before him for directions, proceedings NSD1642 of 2004 which had been discontinued and proceedings NSD 55 of 2005 commenced. The present application is brought pursuant to s 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act'). 18 For reasons set out by his Honour that are not necessary to set out here and the fact that a final hearing date of 2 March 2005 had been fixed, his Honour dismissed the claims for interlocutory relief. 19 On 14 February 2005, Ms Lawrance filed a motion seeking leave to appeal from the decisions made by Jacobson J on 10 February 2005: '(i) allowing the legal representative of the first, second and third respondents to make a 'submitting appearance'; (ii) finding that the fourth respondent, Bev Smith, had not been served with the application in matter number NSD 55 of 2005; (iii) finding that Bev Smith is not an officer of the Commonwealth; (iv) setting down matter number NSD 55 of 2005 for a final hearing on 2 March 2005; (v) refusing to grant an interlocutory injunction in relation to Bev Smith; and (vi) refusing to grant an interlocutory injunction in relation to Senior Member Kelly.' 20 That matter came before Hely J. His Honour set out the history of the matter in some detail ([2005] FCA 541). That history is more complete than the history that was put before me. I was handed this decision during the hearing and there was no suggestion that any of the facts as there set out were incorrect in any way, although Ms Lawrance said that she had a different view to that of his Honour of the Judiciary Act. Hely J gave detailed reasons and dismissed the motion for leave to appeal from the decision made by Jacobson J on 10 February 2005.

The reasons of 2 March 2005 ([2005] FCA 204) 21 This was the judgment arising from the listing of the matter for urgent final hearing. Ms Lawrance did not appear. The first, second and third respondents filed submitting appearances. 22 Jacobson J noted that Ms Smith, resident in the United States, had made a request before the hearing that she be permitted to attend the hearing by telephone. Ms Smith so appeared. Ms Smith asked his Honour to dismiss the proceedings pursuant to order 32 rule 2 or order 35A rule 2(1)(f) and order 35A rule 3(1)(a) of the Federal Court Rules. His Honour declined to do so. His Honour noted that Ms Smith had indicated that she may be prepared to submit to orders of the court, that she appeared that day in person and did not want to take an active part in the proceedings. His Honour concluded that the appropriate course was that her presence not be required at any directions hearings prior to the final hearing of the matter but that she should be notified of any listings should she wish to appear by telephone link, having provided a telephone and email address. 23 His Honour made some preliminary observations about the matter, including the need to join other parties to the proceedings and stated that he had intended to raise this issue with Ms Lawrance, had she appeared. There is no need to repeat the rest of the observations here.

The reasons of 24 March 2005 ([2005] FCA 325) 24 Ms Lawrance applied to Jacobson J to disqualify himself from dealing with proceedings NSD55 of 2005 on the ground of bias, alleging reasonable apprehension of bias and actual bias. The grounds said to give rise to the belief that it is more probable than not that his Honour would not bring an impartial or unprejudiced mind to the resolution of the questions involved were the decisions and orders made in proceedings NSD1642 of 2004 on 9 December 2004 and 10 February 2005 and his Honour's conduct in proceedings NSD55 of 2005. 25 Jacobson J recorded the history of the matters, as follows: '4. Matter N1642/2004 was before me for directions on 9 December 2004. On that date I ordered the applicant to file and serve any amended application on or before 30 December 2004 and I stood the matter over for further directions on 10 February 2005 at 9.30 am. 5. On 13 January 2005 the applicant filed the present proceedings in matter N55 of 2005 and made an application for an urgent hearing on her application for interlocutory relief, being an injunction preventing Senior Member Kelly of the Administrative Appeals Tribunal ("AAT") from making a decision or taking any further steps in "The CRS matter of N55/2004 in the Administrative Appeals Tribunal". 6. On 25 January 2005 my associate wrote to Ms Lawrance. The letter included the following paragraph in relation to the applicant's request for an urgent hearing:- "I note the court is currently in vacation. In accordance with Federal Court Practice Note 7, his Honour seeks a concise affidavit detailing your precise reasons for seeking a hearing prior to 10 February 2005. This affidavit should include particulars of the decision or further steps of Senior Member Kelly that you seek to have restrained." 7. There was no reply to this letter. 8. On 10 February 2005, matters N1642/2004 and N55/2005 were before me for directions. In matter N1642/2004 I gave the applicant leave to discontinue the proceedings and I ordered her to pay the costs of the proceedings. In matter N55/2005 the applicant made an application for interlocutory injunctive relief. I dismissed the application for injunctive relief and gave an ex tempore judgment. I listed the matter for final hearing on 2 March 2005 at 2.15 pm. 9. Apparently on or shortly after 10 February 2005 the applicant filed an application for leave to appeal from my order refusing interlocutory injunctive relief. That application was filed in the Registry and was not listed before me. I am told today that it has been listed for hearing on 11 April 2005 before another judge 10. On 8 February 2005 my associate received a telephone message from Ms Smith who is the fourth respondent in these proceedings (N55/2005). 11. On 11 February 2005 my associate spoke to Ms Smith in the United States of America and my associate made a file note of the conversation. The file note of the conversation was sent to the parties in the proceedings (N55/2005) on 15 February 2005 by a registrar of the court. 12. On 2 March 2005 the proceedings were listed before me for final hearing. The applicant failed to appear at the hearing. I did not dismiss the proceedings but I made orders and gave an ex tempore judgment.' 26 It is apparent from this chronology that, as at 10 February 2005, his Honour's associate had received a telephone message from Ms Smith but had not spoken to her. 27 Jacobson J set out the test for apprehended bias (Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 at [27]) and noted the comments of Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. His Honour did not consider that the test was satisfied. 28 His Honour then considered the test for actual bias as summarised by Von Doussa J in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36] in which von Doussa J referred to the observations of the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [71]-[72]. His Honour also considered all of the authorities to which Ms Lawrance referred as well as all of the matters raised by her. 29 His Honour concluded at [19]: 'I do not believe and indeed I have not formed any conclusion about any of the issues which fall for resolution in the proceedings. I do not have a mind which is blank, but I am open to persuasion on all of the issues which will fall for consideration.'

Leave to appeal the decision of 24 March 2005 30 An applicant for leave to appeal must establish: - that the decision is attended by sufficient doubt to warrant being reconsidered; and - that substantial injustice would result if leave were refused supposing the decision at first instance was wrong. See Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 31 I can see no error in his Honour's reasoning or in his application of principle. I have also considered the matters that were relied upon by Ms Lawrance, including her submissions at the hearing. There is no foundation for her assertions of bias. There was nothing improper about the contact by a party outside the country, Ms Smith, with his Honour's associate in order to facilitate Ms Smith's participation in the proceedings. While Ms Smith, who was conducting her matter personally and without legal advice, contacted his Honour's chambers without first notifying Ms Lawrance, the contents of the conversation were notified to the other parties to the proceedings, including Ms Lawrance. Ms Lawrance confirmed that she received a copy of that file note but complained that it was received some time after 15 March 2005. Nothing turns on that. It apparently had been received prior to 24 March 2005. 32 At [18] of his reasons, Hely J set out the contents of the file notes that had been sent to Ms Lawrance by the Deputy District Registrar. They confirm the course of conversation between Jacobson J's associate and Ms Smith, the first of which occurred on 11 February 2005. The letter enclosing the file notes invited the parties to indicate their attitude to Ms Smith appearing by telephone and advised that in the absence of consent Jacobson J would hear a formal application by Ms Smith (appearing by telephone)on 25 February 2005 for leave to appear at the hearing by telephone. 33 Ms Lawrance's suggestions that Ms Smith and, indeed, other parties or Commonwealth officers have communicated their opinions of her to his Honour and, if they had, that his Honour did or would pay them any regard, are totally without foundation. The same can be said for suggestions that, somehow, his Honour was improperly influenced by any orders or reasons of Driver FM, even if his attention had been drawn to them. Ms Lawrance does not demonstrate that any of this has occurred. Her submission is, in effect that, if an order or direction or comment is made contrary to her view of the facts or the law, there can be only one explanation: bias. 34 In submissions, Ms Lawrance said that she had never thought that his Honour might not find in her favour but that he had prejudged her disability. However, she could point to no evidence or part of his Honour's reasons to make this submission out. Accordingly, I reject this claim. 35 There is absolutely nothing to support such a suggestion. No reasonable person or fair minded lay observer could possibly apprehend that his Honour might not bring an impartial mind to the resolution of the questions to be decided by him. 36 There is no doubt attaching to his Honour's decision. Ms Lawrance has not established that substantial injustice would result in Jacobson J hearing the matter. 37 It follows that, in my opinion, any appeal from his Honour's decision would be futile and without prospects of success. 38 The application for leave to appeal from the decision of 24 March 2005 is dismissed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: 19 May 2005 The Applicant appeared in person

Solicitors for the First, Second and Third Respondents: Ms S Leathem

Counsel for the Fourth Respondent: No appearance

Solicitor for the Fourth Respondent: No appearance

Date of Hearing: 13 May 2005

Date of Judgment: 19 May 2005