Luck and Department of Human Services [2010] AATA 6 (8 January 2010)

CATCHWORDS - PRACTICE and PROCEDURE - whether Tribunal should stay proceedings when writ claiming relief lodged in High Court - Tribunal's power to stay proceedings - whether to proceed would constitute contempt of High Court - stay refused

PRACTICE and PROCEDURE - whether Tribunal should stay proceedings because of applicant's medical condition - stay refused

PRACTICE and PROCEDURE - whether respondent obliged to comply with s 37(1) of Administrative Appeals Tribunal Act 1975 before Tribunal determines it has jurisdiction - no obligation

FREEDOM OF INFORMATION ACT 1982 - JURISDICTION - whether Tribunal has jurisdiction to review decision - decision purporting to grant access to all documents requested - applicant did not apply for internal review - no jurisdiction

Administrative Appeals Tribunal Act 1975, ss 25, 28, 29, 33, 37, 39, 42A, 44,

Administrative Decisions (Judicial Review) Act 1977, ss 5, 6, 7,

Freedom of Information Act 1982, ss 4, 9, 11, 12, 15, 15A, 24A, 26, 54, 55, 56

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; 162 ALR 1; 73 ALJR 584

Attorney-General v Times Newspapers Ltd [1974] AC 273

Australia and New Zealand Banking Group Ltd v Merribee Pastoral Industries Pty Ltd [1998] FCA 856

Ballam v Higgins (1986) 17 IR 131

Boral Gas (NSW) Ptry Ltd v Magill (1993) 32 NSWLR 501

Cameron's Unit Services Pty Ltd v Whelpton & Associates Pty Ltd and Anor [1984] FCA 406; (1984) 4 FCR 428; 59 ALR 754

Commissioner of Taxation v Cumins [2008] FCA 353

Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242

Gaye Luck v Chief Executive Officer of Centrelink [2008] FCA 1506

Gaye Luck v University of Southern Queensland [2008] FCA 1582

Gaye Luck v University of Southern Queensland [2009] FCAFC 73

Gould v Brown [1998] HCA 6; (1989) 193 CLR 346; 151 ALR 395; 72 ALJR 375

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1; 87 ALR 618

Hammond v Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188; 42 ALR 327

Jackson v Sterling Industries Limited [1987] HCA 23; (1987) 162 CLR 612

John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351

Lockwood v Commonwealth [1954] HCA 31; (1954) 90 CLR 177

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601; 76 ALJR 966

NSW Breeding and Racing Stables Pty Ltd v Administrative Decisions Tribunal of NSW [2001] NSWSC 494; (2001) 53 NSWLR 559

R v Chief Constable of the Merseyside Police; Ex parte Calveley [1986] QB 424

R v Epping and Harlow General Commissioners; Ex parte Goldstraw [1983] 3 All ER 257

R v Hillingdon London Borough Council; Ex parte Royco Homes [1974] 1 QB 720

R v Ross Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185

Re Adams and the Tax Agents' Board (1976) 12 ALR 239

Re Allegra [2009] NSWSC 1091

Re Cilli's Objection (1970) 15 FLR 426

Re Flateau; Ex parte Scotch Whiskey Distillers (1882) 22 QBD 83 (CA)

Re Lewin; Ex parte Milner (1986) 11 FCR 312

Re Luck and Chief Executive Officer of Centrelink [2008] AATA 718

Re Luck and Department of Human Services [2009] AATA 800

Re Luck and University of Southern Queensland [2008] AATA 539

Re Secretary, Department of Social Security and Pluta (1991) 23 ALD 317

Re Taxation Appeals (No 163) and Commissioner of Taxation VT85/618, Decision No 3500

Re Verma [1984] FCA 340; (1984-5) 4 FCR 181

Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16

State of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25; 41 ALR 71

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

The King v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598

Verma, Virenda Kumar v Deputy Commissioner of Taxation [1983] FCA 388

Weinel v Judge Parsons [1994] SASC 5155; (1994) 62 SASR 501

Wren v Mahony [1972] HCA 5; (1972) 126 CLR 212

DECISION AND REASONS FOR DECISION [2010] AATA 6

1. it should proceed to determine its jurisdiction even though the applicant has initiated proceedings in the High Court;
2. it does not have jurisdiction to review:

(1) a decision made by the respondent on 22 May 2009; or

(2) any decisions that, but for the decision of 22 May 2009, might have been deemed to have been made as a result of the passage of time following requests made by the applicant on 20 January 2009, 9 February 2009, 16 February 2009, 10 March 2009 and 23 March 2009; and

1. the respondent is not obliged to comply with the provisions of s 37(1) of the Administrative Appeals Tribunal Act 1975.

On 19 October 2009, I gave reasons for my decision to hold a hearing to consider whether the Tribunal has jurisdiction to review decisions described by the applicant, Ms Gaye Luck, as having been made under the Freedom of Information Act 1982 (FOI Act).[1] Since then, Ms Luck has lodged a writ in the High Court seeking, among other relief, that the Tribunal generally, and I in particular_,_ act according to the rules of natural justice and procedural fairness when making decisions, determinations and orders in proceedings she describes as V2009/3331 and V2009/3329. Relief of a similar nature is sought against other defendants in other proceedings in the Tribunal. I am not concerned with proceeding 2009/3329 in these reasons as it is a proceeding in which the Tribunal has jurisdiction.

2. I have already held the jurisdiction hearing in proceeding 2009/3331 and have decided to proceed to determine whether or not the Tribunal has jurisdiction to review the decision of which Ms Luck seeks review. My reasons for proceeding at this stage are set out below together with my reasons for deciding that Ms Luck is not entitled to the documents she seeks from the Department and that the Tribunal does not have jurisdiction to review the decision.

The material lodged in the Tribunal before hearing 23 October 2009

3. In my earlier reasons, I set out the material that appears in the file and that is relevant to determining whether or not the Tribunal has jurisdiction.[2] I adopt that summary.

4. I also note that Ms Luck referred to being in receipt of a Disability Support Pension (DSP) when she applied to the Tribunal on 23 July 2009.[3] The Tribunal sent a copy of her application to the Department as it is required to do by

s 28 of the AAT Act and reminded it of its obligation to lodge material under s 37 of the AAT Act. It did so on 23 July 2009 and also sent both parties notice of a conference to be held on 8 September 2009.

5. On 21 August 2009, the Department's legal representative wrote to the Tribunal querying its jurisdiction. Again, I have summarised that letter in my earlier reasons[4] as I have Ms Luck's response to the Tribunal's request that she tell it why she thinks it has power to review the decision in issue.[5] I adopt both summaries but, for the purposes of this matter, it is relevant to note that Ms Luck concluded her letter dated 4 September 2009 by saying:

"Due to my obligations involving my studies and my disabilities, I am unable to appear at hearings on Wednesdays or before 10.15am and I would prefer, due to beginning the latter part of my third year studies, prior to assessment, to have any hearings in respect of this matter later than the middle of October 2009."

6. The Department's legal representatives made further submissions on 16 September 2009 advising that the decision of which Ms Luck sought review was still unclear to it. She responded on 18 September 2009:

"1. My application of 16 July 2009, for review of decisions by the respondent, may not have clearly identified the decisions made, however, it was clear that requests (evidence of those requests was supplied with application) were made for access to documents in accordance with section 15 of the Freedom of Information Act 1982.

1. The dates upon which those requests were made were identified, and as I had not had responses to those requests and I had not been granted access, it was necessary for me to make the appropriate calculations to identify the deemed decisions, which I have now done at your request (I assume pursuant to subsection 42A(4)(b)) of the AAT Act and I have subsequently shown within a reasonable time, that the decisions are reviewable.
2. I believe I have sufficiently clarified my application, and as I have not heard to the contrary from you, I now expect the normal processes in respect of reviews of decisions, to progress in accordance with the provisions of the AAT Act.
3. As I have not been notified of any further period allowed by the Tribunal dor the lodgement by the respondent of the section 37 documents, and I have not been provided with them in accordance with that provision, I do not accept that its request for a hearing to determine the reviewable decisions, is anything more than an obfuscation of the facts surrounding the evidentiary documents in this matter.
4. Section 39 of the AAT Act provides that the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. For this reason, a hearing of any part of this matter would only be legitimate, if the respondent provides the Tribunal and

I with the section 37 documents before any hearing is had, at which

I would only want to be heard in person and not by telephone. So

I request that the Tribunal order the respondent to comply with the AAT Act.

Due to my obligations involving my studies and my disabilities, I am unable to appear at hearings on Wednesdays or before 10.15am on any day and I would prefer, due to beginning the latter part of my third year studies, prior to assessment, to have any hearings in respect of this matter later than the middle of October 2009, not including 21 and 30 October 2009, as I have other obligations on those days.

Please respond to my letter of 4 September and of today as soon as possible.

7. In part, the Tribunal's response took the form of a listing notice advising that the matter had been set down for "Interlocutory hearing - Jurisdiction question" at 10.30 on 23 October 2009. The listing notice was attached to a letter dated 22 September 2009 and addressed to Ms Luck. In it, the Acting District Registrar advised her of the Tribunal's decision to list the matter after having regard to all correspondence in the file. She also advised that the Department was not obliged to lodge documents under s 37 until the Tribunal was satisfied that it had jurisdiction. Following two telephone conversations with the District Registrar,

Ms Luck asked for written reasons for the decision to list the matter to determine jurisdiction. I gave those reasons on 19 October 2009.[6]

8. On 21 October 2009, Ms Luck wrote to the Tribunal applying for a stay or an adjournment until the High Court had considered her application to it: proceedings M85 of 2009. She had lodged an amended application in the High Court on that day and attached a copy to a letter to the Tribunal by way of service.

9. The application in the form in which Ms Luck originally lodged it in the High Court appears to have been served on the nine defendants originally named on 17 September 2009. Among them were the third docket Justice in Federal Court proceedings No. VID 444/2008, Deakin University, the Chief Executive Officer of Centrelink, the Secretary of the Department of Human Services and the University of Queensland. Proceedings No. VID 444/2008 are proceedings brought by Ms Luck against Deakin University and are categorised as consumer protection relating to misleading or deceptive conduct on the Federal Court's esearch facility. It is shown as an open file. The third docket Justice is Marshall J, who had dismissed her notice of motion that Deakin University be restrained from engaging in certain activities and that it be required to perform another.

10. On 21 October 2009, Ms Luck lodged an amended application in the High Court adding an additional 4 defendants being members or officers of the Tribunal. As the person named as the fifteenth defendant, I will refer only to the relief claimed by Ms Luck as it relates to these proceedings:

(d) An Order that the Seventh [Secretary, Department of Human Services], Ninth [Commonwealth of Australia], Twelfth [Tribunal], Thirteenth [Tribunal's President], Fourteenth [Tribunal's Registrar], Fifteenth and Seventeenth [Tribunal's Victorian District Registrar] Defendants, DO SHOW CAUSE WHY A WRIT OF MANDAMUS or an injunction should not be issued out of this Court directed to the Twelfth, Thirteenth, Fourteenth, Fifteenth and Seventeenth Defendants to perform their duties in accordance with the law, i.e. the Administrative Appeals Act 1975 [sic], the oath or affirmation scheduled thereto, the Administrative Appeals Tribunal Regulations, the Freedom of Information Act 1982, the Freedom of Information Regulations, the Privacy Act 1988, the Disability Discrimination Act 1992, the Human Rights and Equal Opportunity Act 1986_, and the treaties scheduled thereto, the_ International Covenant on Civil and Economic Rights_, the_ Universal Declaration of Human Rights and the Declaration of the Rights of Disabled Persons_, to accord the Plaintiff the rules of natural justice and procedural fairness when making their decisions, determinations, and orders, in the administrative and judicial processing of the Twelfth Defendant proceedings_ [the Tribunal], V2009/3331, V2009/3329, V2008/1091, V2008/1090, V2008/0861, V2007/3968 and any future applications made by the applicant to the Twelfth Defendant.

(e) ...

(f) An Order that the Seventh, Ninth, Twelfth, Thirteenth, Fourteenth, Fifteenth and Seventeenth Defendants, DO SHOW CAUSE WHY A WRIT OF CERTIORARI or an injunction should not be issued out of this Court directed to the Seventh, Ninth, Twelfth, Thirteenth, Fourteenth, Fifteenth and Seventeenth Defendants removing into this Court to be quashed the decisions made by the Twelfth, Fourteenth and Sixteenth Defendants on or about the 22nd day of September 2009, in respect of the Plaintiff's Application for Review of a Decision V2009/3331 pursuant to the Administrative Appeals Tribunal Act 1975 and the Administrative Appeals Tribunal Regulations, practices and procedures and the Freedom of Information Act 1982 and the decision made by the Fourteenth Defendant on 24 September 2009 to refuse the Plaintiff access to public services of the Twelfth Defendant.

(i) An Order that the Seventh, Ninth, Twelfth, Thirteenth, Fourteenth, Fifteenth and Seventeenth Defendants, DO SHOW CAUSE WHY A WRIT OF PROHIBITION or an injunction granted prohibiting them from acting upon, giving effect to, proceeding further upon or enforcing the decisions made by the Twelfth, Fifteenth and Sixteenth Defendants on or about the 22nd day of September 2009 in respect of the Plaintiff's Application for Review of a Decision V2009/3331 pursuant to the Administrative Appeals Tribunal Act 1975 and the Administrative Appeals Tribunal Regulations, practices and procedures and the Freedom of Information Act 1982 and the decision made by the Fourteenth Defendant on 24 September 2009 to refuse the Plaintiff access to public services of the Twelfth Defendant.

(p) A stay on the First Defendant proceeding VID444/2008, VID898/2008 and VID464/2008 and the Twelfth Defendant proceedings V2009/3331 and V2009/3329 until such time as the High Court has disposed of this matter M85 of 2009.

11. The grounds of relief sought are, in the briefest of summaries, that the defendants have failed to perform their duties in accordance with enactments including the AAT Act, failed to accord Ms Luck natural justice or procedural fairness, failed to take into account relevant considerations in the exercise of their powers, improperly exercised their discretions, have been affected by bias, failed to give her access to documents to which she was entitled and failed to take account of Ms Luck's special needs.

12. No medical certificates were included in the documents lodged with the Tribunal on 21 October 2009 and nor were they enclosed in Ms Luck's further letter dated 22 October 2009 in which she wrote:

"Attached please find a copy of my letter delivered by hand to the AAT Enquiry Counter at Southbank.

Yesterday, following service on AAT of my Application for an Order to Show Cause, I received the Deputy President's reasons for decision to list a hearing for 23 October 2009, without first providing me with access to the documents to which I am entitled. I reject those reasons and will provide that document with my submissions to the High Court to assist in the determination of the issues in question in matter M85 of 2009.

Due to the ongoing abuses I have been subjected to by the AAT, (to be decided by the High Court in matter M85/2009) I am traumatised by the very thought of appearing at such an unfair hearing, as that which is listed for 23 October 2009, in similar circumstances to those surrounding the previous hearings in the V2008/0861 and V2008/1091 matters. I am unable to cope with the process of subjecting myself to any further trauma that might arise from appearing on Friday and therefore I am informing you that I will not be able to appear on the basis of my ill health. Please refer to my medical certificates recently provided to the Tribunal.

I also make application for a stay or an adjournment in the abovementioned matters, particularly of the hearing listed for 23 October 2009 for V2009/3331, for my health reasons, and until such time as the High Court of Australia has disposed of the matter M85 of 2009, whereby the Administrative Appeals Tribunal, the President, the Principal Registrar, the Presiding Member in V2009/3331, and the District Registrar are parties and the issues in question include the decisions of the parties leading to the listing of the hearing of 23 October 2009.

The Amended Application for an Order to Show Cause was filed yesterday in the Melbourne Registry of the High Court and served yesterday on the Defendants at AAT Southbank Registry."

13. On 23 October 2009 at 9.07 am, Ms Luck wrote again to the District Registrar stating that she had not heard a response to her request for an adjournment and so did not know whether the hearing was vacated or not. She then wrote:

"I therefore request that if the hearing has not been adjourned prior to it taking place, I seek to be provided with a transcript of the recording of the hearing, free of charge, as I am unable to appear due to ill health (supported by medical certificates provided to the Tribunal)."

14. The medical certificates referring to Ms Luck's medical conditions were attached to the copy of the writ served on the Tribunal on 30 October 2009. One was dated 24 August 2009 and was given by Dr William Varney. The other, dated

28 October 2009 was given by Dr Priscilla Leow. Both set out the conditions from which Ms Luck suffered. In relation to her physical ailments, the two certificates are consistent although the ailments are described in somewhat different terms. Dr Leow refers to an exacerbation of Ms Luck's chronic musculoskeletal condition caused by an injury in the previous two months. That injury might not have occurred when

Dr Varney saw her two months earlier. Dr Leow refers to Ms Luck's suffering from Post Traumatic Stress Disorder (PTSD) but Dr Varney does not. Neither medical practitioner refers to the time for which Ms Luck has been a patient.

15. Dr Varney concludes his certificate by stating:

"Her treatment protocol comprises daily therapeutic routines, medications, exercises and personal activities which include health professional consultations. Because of these, time extensions, at her discretion, are sought to allow her to complete requisite documents and activities for academic and forensic purposes."

"In my opinion, she is still too distressed and too unwell to cope with any demands which she finds traumatic, apart from the requirements of daily living. Further stress and emotional trauma will exacerbate the symptoms and progress of her medical conditions. She has had exacerbation of her mobility from her chronic musculoskeletal condition, incurred by an injury two months ago and is still suffering from severe pain which limits her capacity to fulfil her usual tasks."

Federal Court's directions following Ms Luck's application to the High Court

16. Although I was not aware of them on 23 October 2009, I have since checked the action taken by the Federal Court in light of Ms Luck's application to the High Court. There has been more than one. It appears from the Federal Court's Federal Law Search which is available to the public on the internet that the Federal Court has made two orders as a result of Ms Luck's lodging proceedings in the High Court. The first of those orders is made in a matter arising from an appeal from the Tribunal's decision. The second appears to be an application for judicial review but does not appear to be related to proceedings in the Tribunal:

VID898/2008: Luck v Chief Executive Officer of Centrelink (Freedom of Information Principal Officer)

Appeal to Full Federal Court from judgment in VID464/2008 on appeal from Tribunal in V2008/0861.

Order of Full Court of Federal Court (Jacobson, Gordon and Jagot JJ) dated

"1. The hearing of the appeal on 13 November 2009 be vacated.

1. The appeal be adjourned to a date to be fixed following the determination of application M52 of 2009 by the High Court.
2. Within 7 days of the determination of application M52 of 2009 by the High Court, the parties request the Federal Court to re-instate this appeal to the list of matters ready for hearing before the Full Court."

VID488/2008: Luck v Chief Executive Officer of Centrelink and Secretary of Department of Human Services

"1. The further hearing of this proceeding be stayed pending the hearing and determination of proceedings M50 of 2009, M51 and M52 of 2009 in the High Court of Australia."

VID899/2008 Luck v University of Southern Queensland

Appeal to Full Federal Court from judgment in VID476/2008 on appeal from Tribunal in V2008/1091 dismissed on 19 June 2009.

Taxation estimate of Bill of Costs listed for 19 January 2010.

Application to High Court M85 of 2009.[7]

17. As she had advised, Ms Luck did not appear at the hearing but the hearing was attended by Ms Heffernan on behalf of the Department. She relied on her correspondence to the Tribunal dated 16 September and 21 October 2009 and copied to Ms Luck. During the hearing, I asked Ms Heffernan to check whether the Department had received any correspondence from Ms Luck other than that which

Ms Luck had lodged and that which was included in the documents lodged under s 37 of the AAT Act. I adjourned the hearing so that she could check with the Department. She advised that she had done so and that there was no other correspondence. I did not make a decision on that day and instead arranged for a copy of the transcript of the proceedings to be sent to Ms Luck so that she could make any submissions she wished by 16 November 2009. It was sent on 2 November 2009.

Ms Luck's further submissions dated and received 16 November 2008

18. On 16 November 2009, Ms Luck wrote to the Tribunal making, in essence, four points:

(1) the hearing was an abuse of process because she had lodged an application in the High Court to stay the Tribunal's proceedings;

(2) indicative of her "traumatised state" was the fact that she had not attached copies of her medical certificates to her letter asking for an adjournment but her circumstances as a disabled person, disabled by her medical conditions and in receipt of DSP is clearly known to the Tribunal. "I provided medical certificates to the Tribunal on

23 November 2009 [sic] in AAT matter V2007/3968[[8]] ..., on 7 April 2008 in relation to the provision of further and better particulars and amendment of applications in matters V2007/3968, V2008/0861,[[9]] V2008/1090[[10]] and 2008/1091,[[11]] on 1 May 2008 I referred to the previously provided medical certificates in correspondence with the President of the AAT, on 12 May 2008 with the lodging of Amended Application in matters V2008/1091 and on 3 July 2008 again

I referred to the previous provision of medical certificates in correspondence to the President";

(3) she should have been given further documents under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and the proceedings adjourned until that had been done;

(4) the material she has already given is sufficient to show that the Tribunal has jurisdiction; and

(5) the matter should be adjourned until the High Court has determined the matter.

19. Ms Luck applied for an adjournment or a stay in proceedings Nos. 2009/3329 and 2009/3331. She concluded her letter by saying:

"I am unable to cope with any further communication in this matter, for the time being, due to the post traumatic symptoms it produces in me as a result of the recent and past abuses of me by the AAT and its officers and I attach current medical certificates."

20. Section 41(2) of the AAT Act provides that the Tribunal may in certain circumstances make certain orders staying or otherwise affecting the operation or implementation of a decision that is subject to review. Ms Luck does not ask for a stay of that sort but a stay of the proceeding to decide whether the Tribunal has power to review the decision of which she seeks review.

21. There is no provision in the AAT Act that specifically gives the Tribunal power to stay its proceedings but it seems to me that the power is implicit in the provisions of the AAT Act and the function that Parliament requires the Tribunal to perform. Section 25(1)(a) provides that "An enactment may provide that applications may be made to the Tribunal: (a) for review of decisions made in the exercise of powers conferred by that enactment." Once there is such an enactment,

a person who is a person permitted by the enactment to make an application has a right or privilege to make that application. Section 25(4) confers power upon the Tribunal "... to review any decision in respect of which application is made to it under any enactment." Implicit in its power to review decisions must be the power to decide whether it indeed has that power in any give situation.[12]

22. Also implicit in the power expressly given to the Tribunal to review

a decision must be the power to take the steps that will enable it to do so in accordance with all of the provisions of the AAT Act and of the enactment conferring power and the common law requirements that it act with procedural fairness. As Dawson J said in Grassby v The Queen, [13] "... notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise ...".[14]

23. In a civil proceeding in a court, "[p]rima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court".[15] It is no different in the Tribunal. Both parties are entitled to have the decision reviewed in the ordinary course of the procedure and business of the Tribunal. Procedurally, there are a number of steps that the parties must take. As the Tribunal has a considerable number of applications at any one time, the Tribunal itself must take certain steps to ensure that all are considered and resolved in an orderly and fair fashion according to its resources and the applications themselves. Among the steps that the Tribunal must take is the step to hear the application and review the decision. It must decide when to take that step and when not to.

24. It seems to me that the Tribunal's power to control its procedure is a source of the Tribunal's power to stay a proceeding. It is a power that can be used to manage the course of the particular application having regard to its needs and to the needs of the parties who must gather probative material, locate witnesses and the like and who must prepare for an alternative dispute resolution process or for hearing. It is a power that can be used to manage the proceeding more broadly having regard to the impact of other proceedings instituted in other courts or tribunals.

25. Another possible source of power is s 33(1)(a) of the AAT Act. That is the provision that provides that the procedure of the Tribunal is within its discretion. Section 33(2A) gives examples of the types of directions that the Tribunal may give. Those examples focus on requiring a party or parties to the proceeding to take certain steps such as providing further information or providing a statement of the matters or contentions upon which reliance would be placed at the hearing. They do not, of course, limit the power given by s 33(1). It seems to me, though, that the power to give "directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal"[16] may extend to a power to direct that an application not be listed for hearing.

"1 the method and order to be followed in doing something. 2 an established routine for conducting business at a meeting or in a law case. 3 a course of action, a step or measure taken. ..."[17]

It may be that the method or order to be followed in a particular case is a method or order followed and implemented by the parties or by one or other of them. That is the emphasis of the examples in s 33(2A) but, equally, a method or order may be a course of action imposed by the Tribunal in respect of a particular proceeding. It cannot direct itself but it may direct a method or order of events that has the consequence that it will or will not take a certain step. In this case, the step that is under consideration is whether I should proceed to consider whether the Tribunal has jurisdiction to consider Ms Luck's application.

The principles that I should apply in deciding whether I should adjourn further consideration pending the resolution of the application in the High Court

27. The question whether I should proceed in light of Ms Luck's application to the High Court was not something that particularly engaged my attention on 23 October 2009. Perhaps it should have more so. I was aware of the submission made by Ms Heffernan on behalf of the Department that the matters should not be further delayed and there was no reason why the jurisdictional question in V2009/3331 could not be heard pending the determination of the High Court application.[18] Ms Luck had served a copy of the application but was not present to act as a contradictor to the proposition.

28. I am mindful that it appears from the publicly available records that the Federal Court has adjourned further consideration in two of the matters that involve Ms Luck and not in the third. No written reasons appear to have been given for the decisions. No doubt oral reasons were given. The fact that the Federal Court has reached that decision in those two cases does not lead automatically to the conclusion that I must do the same. I am exercising statutory power, albeit implied power, which must be exercised within the limits that can be gleaned from its statutory base (the AAT Act) and the context in which it is exercised (in this case, the FOI Act). The fact that another court has exercised its power in a certain way is not, without more, one of the considerations even when it exercises it in matters concerning one or more of the same parties. The reasons given by those other courts in those cases and in any others are, however, very helpful in trying to identify the factors that are relevant in the exercise of the power given to the Tribunal.

1. The principles to be applied in determining whether or not I should proceed: principles relevant in determining whether in contempt of

29. The question whether to proceed or not has arisen not infrequently when criminal proceedings are pending in a court and the charges have arisen out of circumstances which have led also to an administrative decision of which review has been sought in the Tribunal. This is clearly not the case here but the way in which the Tribunal and the courts have resolved the conflict may give some indication of the principles to be taken into consideration.

30. In Re Secretary, Department of Social Security and Pluta,[19] the Tribunal observed that "... it may well be a contempt of court for the Tribunal to proceed" to review the Secretary's decision to cancel her sole parent's pension had criminal charges been laid against Mrs Pluta.[20] It would have adjourned the matter had charges been laid and would have done so even if the Secretary had only referred the matter to the Director of Public Prosecutions as it would indicate that the possibility of criminal proceedings being instituted was under active consideration.

It did not explain how the Tribunal's proceedings could be a contempt of court.

31. Davies J did give an explanation in VT85/618, 619, 646-648 and Commissioner of Taxation.[21] Where the issue to be decided in criminal proceedings is precisely the same as that to be decided in the Tribunal's proceedings, Davies J did not decide whether there would be contempt of court were the Tribunal to proceed but observed:

"... It is ... strongly arguable that the investigation of that issue by this Tribunal, including the examination and cross-examination of witnesses and the production of documents, while the same issue is being considered in the committal proceedings, would be a contempt of court as prejudicing the committal proceedings and the subsequent conduct of the trial."[22]

32. There is an exception to this general principle if the action that would otherwise be a contempt of court is action that has been expressly authorised by legislation. Care must be taken to ensure that the course of action is specifically authorised. In the case of Lockwood v Commonwealth,[23] Fullagar J considered the Royal Commission Act 1954 under which letters patent had been issued to the Petrov Commissioners to enquire and report on certain matters relating to acts of espionage in Australia and other acts prejudicial to the security or defence of Australia.

The legislation set out the terms of reference for the inquiry. During the inquiry, proceedings had been instituted in the High Court alleging slander and libel in so far as the Senior Counsel assisting the Commission had spoken certain words in the course of the proceedings and concerned with Document J and Exhibit 46 in the Commission's proceedings.

33. Fullagar J considered two arguments that the Commission could not lawfully proceed with its enquiry. One was that to do so was a contempt of the High Court. The other was that a rule of common law, based on natural justice, prevented the Commission from enquiring into and reporting on a matter that was the subject of pending civil or criminal proceedings. His Honour said:

" The short answer to the whole argument seems to me to be that this commission is authorized and required, in pursuance of a statute, to undertake the inquiry in which it is engaged. No court could hold, in any circumstances which I find it possible to envisage, that what is expressly authorized by or under a statute is a contempt, and it is a rule of the common law that the common law itself gives way to statute law."[24]

34. Counsel for the plaintiff referred to a Victorian case in which a Royal Commission, consisting of three Judges of the Supreme Court, had been appointed to investigate certain allegations of corruption. The Commissioners declined to proceed further with the inquiry when one of the persons whose conduct might have been in question issued a writ claiming damages for defamation. Fullagar J said of this case:

"... I have not seen a copy of any reasons given for this decision, and I can therefore express no opinion upon it, but I cannot help feeling that the soundness of the decision may be open to question. It would indeed savour of absurdity if an inquiry duly authorized by law could always be stultified by the simple expedient of issuing a writ out of a superior court."[25]

35. Fullagar J considered both the Royal Commissions Act 1902 and the Royal Commission Act 1954. The earlier provides a general framework for the establishment and conduct of Royal Commissions and the appointment of Commissioners. The appointments of the Royal Commissioners were valid under the earlier but not the later legislation.

36. Lockwood was distinguished by the High Court in State of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation.[26] A Royal Commissioner had been appointed in 1981 under the Royal Commissions Act 1902 to enquire into whether the Builders' Labourers' Federation (BLF) or its officials had engaged in activities contrary to law. Shortly after the Commissioner commenced the enquiry, the Crown in right of Victoria and the Crown in right of the Commonwealth applied to the Federal Court for an order directing the cancellation of the BLF's registration under the Conciliation and Arbitration Act 1904. The BLF sought an order in the Federal Court to restrain the Commissioner from proceeding with his inquiry until the determination of the cancellation application. Its application failed but, on appeal, the Full Court made an order restraining the Commissioner from conducting his inquiry in public.

37. As the headnote reports the judgments, the whole Court held that "... unless expressly authorized by statute the conduct of a commission of inquiry otherwise lawfully appointed, to the extent that it creates a risk of or involves a tendency to interfere with the administration of justice, may be a contempt of court."[27] I will refer only to one passage, from the judgment of Gibbs CJ, as indicative of the principles under consideration:

" If there is a real risk that the conduct of the inquiry in public will deter witnesses coming forward to give evidence in the Federal Court, or will influence the evidence that the witnesses will give, there will be reasonable ground to apprehend that the conduct of the inquiry will amount to a contempt of court. ..."[28]

38. Gibbs CJ, Mason, Aickin and Wilson JJ, determined that the Commissioner was not in contempt of the Federal Court were he to proceed with his inquiry in public as it had not been shown that it interfered with the course of justice. They noted that the Commissioner was not required to pre-judge any of the issues that arose in the Federal Court proceedings and the evidence he took was not expected to be directed to those issues. The principles on which they determined that the Commissioner's inquiry would not be contempt of court if it were to proceed and to do so in public were:

• Contempt of court will occur in circumstances of the sort considered by the High Court only if there is an actual interference with the administration of justice or "a real risk, as opposed to a remote possibility", that justice will be interfered with (cf Attorney-General

v Times Newspapers Ltd[29]). There must be a substantial risk of serious injustice;[30]

• The reasons behind contempt in those circumstances is the "real and definite tendency to prejudice or embarrass" the proceedings in the court;[31]
• If the commission were required to find that a person were guilty or not of a criminal offence, it would be in contempt of court if a prosecution were commenced during the course of its inquiry and it were to continue its inquiry on that matter before the completion of the prosecution;[32]
• If publication of material before a commission would prejudice mankind against a litigant, that publication would prejudice any pending trial by jury;[33]
• If the proceedings before the Commissioner were to be publicised and if the trial is before a judge alone, it would not be contempt for it is part of the everyday task of a judge to put public discussion aside.[34] "The position may be different if the publication exposes the litigant to public and prejudicial discussion of the merits of the facts of his case while it is still pending";[35]
• There is a public interest in a person's case being tried free of all prejudice but that public interest must be weighed against other public interests. Those other public interests include the discussion of public affairs and the denunciation of public abuses, actual or supposed (Attorney-General v Times Newspapers Ltd[36] citing with approval Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd[37]). They also include the importance of the public's having access to information that it has a legitimate interest in knowing for without information there can be no proper discussion of public affairs and the denunciation of public abuses, actual or supposed;[38]
• The balancing of the public interests is a matter of law and not for a court to decide in a particular case;[39]

39. The case of Hammond v Commonwealth of Australia[45] concerned an inquiry into the meat industry. An information was laid against Mr Hammond that he conspired with others to export a prohibited export. At the Commission, he was directed to answer questions but he sought an injunction restraining his examination until after the trial of the conspiracy charge. It was assumed for the purposes of the case that Mr Hammond could not claim the privilege against self-incrimination at the Commission. Gibbs CJ, with whom Mason J agreed, said that:

" Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. ..."[46]

40. As to whether the Commission could report on the matters of its inquiry, Gibbs CJ said that there was no case for restraining it:

"... There is no suggestion that the Commissioner will report directly on the question whether the plaintiff is guilty of the offence charged. It is a mere speculative possibility that anything in his report will affect the plaintiff's trial. Since it has not been established that there is a real risk that the report will interfere with the administration of justice, the application ... must fail.

It would very seriously impede the conduct of executive inquiries into matters of public importance if no report could be made on a matter which touched and concerned a pending criminal charge. ... the theoretical possibility that the trial of an accused person may be prejudiced cannot justify the courts in stultifying proper inquiries into matters of public interest simply because they relate in some way to the subject of a charge. In assessing the likelihood of prejudice, the court should be entitled to assume that the Executive will exercise a sound discretion in making a decision whether any part of the report that might be prejudicial will be made public while criminal proceedings are pending."[47]

41. In his judgment, Deane J noted that "... the mere fact that proceedings are pending in a court of law does not mean that any parallel or related administrative inquiry, conducted for proper administrative purposes__, constitutes an interference with the due administration of justice in that court. ...".[48] His Honour, however, drew a distinction between such administrative inquiries as to whether penal proceedings should be instituted while a civil trial is proceeding and those in an administrative tribunal. He said of the latter:

"... it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the Criminal Court. Such an extra-curial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes, in my view, an improper interference with the due administration of justice in the proceedings against him in the Criminal Court and contempt of court. ..."[49]

42. It is clear from these principles that, whether or not there is contempt of court, depends upon whether the facts in a particular situation show that there would be interference with the due administration of the law in and not upon principle that a particular type of proceeding always constitutes contempt of court.

1. The principles to be applied in determining whether or not I should proceed: principles applied by the Federal Court in deciding whether to stay enforcement of orders when an appeal to the High Court

43. From time to time, the Federal Court has considered whether it should make an order to stay orders it has made pending an application made to the High Court. This is not the situation that I face. I must decide whether to proceed at all and have yet to make any decision. Despite that difference, the way in which the Federal Court has approached the question of whether it should stay implementation of orders is instructive.

44. Under O37 r 10, "The Court may stay execution of a judgment or order" and s 23 of the Federal Court Act 1976:

"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."

In Jackson v Sterling Industries Limited,[50] Brennan J said of the power given by s 23:

"... [T]hat is not to say that the Court's discretion to mould relief is at large. The relief which the Court is authorized to give does not extend beyond the grant of remedies appropriate to the protection and enforcement of the right or subject matter in issue."[51]

45. The power was considered by the Full Court of the Federal Court in Australian & New Zealand Banking Group Ltd v Merribee Pastoral Industries Pty Ltd.[52] The trial Judge, Hill J, had ordered on 15 October 1997 that Merribee Pastoral Industries Pty Ltd (Merribee) be wound up but that his order be stayed until after the High Court had delivered judgment on the appeal from BP Australia Limited v Amann Aviation[53] (BP case). In that case, the Full Court had decided that the States could vest federal courts with State jurisdiction and that certain powers had been validly vested in the Federal Court by the Corporations (New South Wales) Act 1990 (NSW) (NSW Corporations Act). At the time the order was made, the High Court had heard the appeal in the BP case but was yet to deliver its judgment.

46. The High Court delivered its judgment on 2 February 1998.[54] As the High Court was equally divided as to the outcome of the appeal, the judgment of the Full Court of the Federal Court prevailed by virtue of s 23(2)(a) of the Judiciary Act 1903.

47. At no stage did Merribee appeal to the Full Court of the Federal Court from the winding up order and then seek a stay of the order pending resolution of that appeal. Instead, on 13 February 1998, Merribee filed a writ and statement of claim in the High Court claiming declarations of invalidity in respect of certain provisions of the NSW Corporations Act and of the Jurisdiction of Courts (Cross-Vesting) Act 1987, an order quashing the orders made by the trial Judge and a declaration that the Federal Court lacked jurisdiction with respect to matters arising solely under the NSW Corporations Act. Merribee also sought orders staying the trial Judge's orders until 14 days after the High Court gave judgment in these proceedings. Hill J made a stay order in those terms and noted that counsel for Merribee had undertaken that steps would be taken to ensure that an appeal to the Full Court from the winding up order would be lodged or, if the matter was to be taken straight to the High Court, that an application to that Court for special leave to appeal would be instituted. No steps were taken to institute either proceeding.

48. The Australian & New Zealand Banking Group Ltd (ANZ) applied to the Full Court of the Federal Court for leave to appeal from the stay order. The Full Court granted leave, allowed the appeal and lifted the stay. In giving his judgment, Finkelstein J said:

" The power to grant a stay is an extraordinary jurisdiction. It will only be exercised in exceptional circumstances: Gerah Imports v The Duke Group Ltd (in liquidation) [1994] HCA 3; (1994) 119 ALR 401 at 403; Federal Commissioner of Taxation v Meyer [1986] HCA 13; (1986) 64 ALR 325 at 327. Most usually those circumstances will exist where a party seeks to appeal a decision and the appeal will be rendered nugatory unless a stay is granted in the meantime: Wilson v Church (No 2) (1879) 12 Ch D 454 at 458. If the position were otherwise the right to appeal would be a barren right. Of course, this is not the only circumstance where a stay will be granted: see the examples cited in Halsbury's, 'Laws of England' (4th ed) vol 37 para 445 fn 2.

In a case where a stay is sought pending appeal or, as in this case, pending the hearing of an application to quash the winding up order, it is not sufficient merely to show that there is on foot some process that seeks to have the impugned order set aside or quashed. For one thing, it is necessary to show some prospect of success in the proceeding: Rahme v Commonwealth Bank of Australia [1993] HCA 62; (1993) 68 ALJR 53 at 54-5. Further, as Dawson J said in Gerah Imports_, supra, at 403:_

'[T]here are other matters to be taken into consideration in the exercise of the discretion to grant a stay. The failure, if any, of the applicants to pursue such avenues as are available in the court below for obtaining

a stay is of significance. Any loss which may be caused to interested parties by the granting of a stay must be taken into account. And the balance of convenience is always something to be considered.'

In the present case the challenge to the validity of the order of the Court is not a challenge on the merits. In substance the complaint is that the order should have been made by some other court; in this case the Supreme Court of New South Wales. In other words the respondent does not say, and indeed it could not say, that, if there was jurisdiction, the trial judge should not have made the winding up order."[55]

1. The principles to be applied in determining whether or not I should proceed: principles applied by the Federal Court in deciding whether to proceed to determine a matter when an appeal to the High Court

49. In Commissioner of Taxation v Cumins,[56] Gilmour J considered whether he should stay a petition lodged by the Commissioner of Taxation (Commissioner) for a sequestration order in respect of the estate of Mr Cumins.

Mr Cumins sought a stay of the petition until his application for special leave to appeal to the High Court had been finally determined. His application to the High Court concerns the validity of the Bankruptcy Notice grounding the petition. The Commissioner had issued the Bankruptcy Notice after obtaining summary judgment for a sum exceeding $38 million attributable to assessments he had issued to

Mr Cumins. Mr Cumins lodged a notice of appeal to the Supreme Court of Western Australia out of time but his application to extend time was dismissed and the dismissal upheld on appeal. He had also challenged the validity of the Bankruptcy Notice in the Federal Court but was again unsuccessful. The Full Federal Court dismissed his appeal. Earlier, and prior to the issue of the Bankruptcy Notice,

Mr Cumins had applied to the Tribunal for review of the Commissioner's objection decision disallowing his objections to the assessments. He withdrew his application and it was deemed to be dismissed because he did not have the assistance of the promoters of the scheme concerned. By the time Mr Cumins sought a stay of the petition in the Federal Court, he had applied to the Tribunal to reinstate his application seeking review of the Commissioner's objection decision. He also applied for an extension of time within which to lodge an application for review of the Commissioner's objection decision.

50. Gilmour J considered principles that related to the stay of a creditor's petition from various points of view. The first was that the Court was entitled to enquire whether a judgment was founded on a real debt. The second is relevant in these proceedings and it is whether the Federal Court should stay the petition pending Mr Cumins application to the High Court and those to this Tribunal. His Honour said:

"17. The mere fact that an appeal has been lodged does not without more, give rise to a duty to postpone the hearing of the petition: Re Flatau: Ex parte Scotch Whisky Distillers (1882) 22 QBD 83 (CA) at 84-85; nor will the court as a matter of course inquire into the validity of a judgment debt: Wren

v Mahony [1972] HCA 5; (1972) 126 CLR 212 at 222-223.

18. The test to be applied has been described variously. The judgment debtor must point to grounds having 'a real chance of success on appeal': Re Lewin: Ex parte Milner (1986) 11 FCR 312 at 318; or ensure 'that substantial reasons are given for questioning' whether there was in truth a debt: Wren [1972] HCA 5; (1972) 126 CLR 212 at 225. It is not enough to rely upon mere assertion. The onus is on the applicant for a stay to show the existence of a genuine dispute by adducing evidence establishing the substantial nature of the grounds of challenge: Verma, Virenda Kumar v Deputy Commissioner of Taxation [1983] FCA 388 referred to with approval in Re Verma [1984] FCA 340; (1984-5) 4 FCR 181 at 187."

Matters relevant to exercise of Tribunal's power to stay a proceeding

51. Having regard to these cases and to the provisions of the AAT Act, it seems to me that principles that may be applicable when considering whether to stay

a proceeding because a proceeding has been lodged in another court may include:

1. the lodgement of an appeal or of an application for prerogative relief as in this case does not impose a duty upon the Tribunal to stay a proceeding;
2. the power to stay a proceeding is an exceptional power and should only be exercised in exceptional circumstances;
3. a proceeding in the Tribunal should be stayed if to continue with it would constitute an interference with the due administration of justice in a court;
4. the party applying for a stay of the Tribunal's proceeding should show that there is a genuine matter to be litigated in the other court; and
5. whether the proceeding in the Tribunal be rendered nugatory if it is or is not stayed is relevant.[57]

Should I stay the proceeding because of the proceedings instituted in the High Court?

52. I feel uncomfortable in this case for two particular reasons. The first is that I feel that I am not across all of the issues that concern Ms Luck for some are in correspondence that she has had with the President. I have not enquired about that correspondence as I do not think that it appropriate that I do when it would appear to raise issues other than those that concern me. The second is that I must assess the merits of an application that calls into question my own actions. I cannot, however, use discomfort as a reason to walk away from the issues I must consider.

53. I have set out the relief that Ms Luck claims at some length. Nowhere can I get a clear idea of what it is that the Twelfth Defendant, being the Tribunal, should have done or not done in relation to the proceedings. I do not know of the "public services" Ms Luck alleges that the Tribunal has not made available to her and I do not know how any unavailability has an impact upon the two matters with which I am concerned.

54. With regard to the relief sought that I perform my duties according to the Disability Discrimination Act 1992 and the Human Rights and Equal Opportunity Act 1986, I take Ms Luck to be referring to my not granting an adjournment of the hearing on the basis of her medical conditions and the fact that she is a recipient of a DSP. If I were to proceed to decide whether the Tribunal has jurisdiction, the High Court would not be prevented from considering whether I had failed to have due regard to Ms Luck's medical conditions in doing so. It would not be impeded in doing so just as it would not be impeded in determining whether Ms Luck had been refused access to public services by the Tribunal. The arguments would not be altered and the evidence would be unaffected. Any decision I made would be set aside were the High Court to decide that I have breached the rules of procedural fairness or of natural justice as claimed by Ms Luck and should it decide that my decision should be set aside on that basis. There would not be an undue interference with the administration of justice were I to proceed.

55. Whether there is a genuine matter to be litigated in the High Court is another matter to be considered. Unquestionably, Ms Luck considers that there is. Even if she is correct and I have breached the rules of procedural fairness or made another such error, I am mindful that the High Court does not necessarily grant relief even if it decides that is the case and I have consequently made a jurisdictional error. As Gaudron J said in Abebe v Commonwealth,[58] jurisdictional error grounds prerogative relief but whether relief will be granted is discretionary:

"113. ...Discretionary factors which will militate against the grant of prerogative relief include situations where the relief will serve no useful purpose ... or where the breach had no effect on the decision in question ....

115. A decision that is so unreasonable that no reasonable person could have arrived at it will often also be a decision involving a denial of procedural fairness. And there may be situations in which a decision of that kind cannot be related either to the matter to be decided or to the relevant head of legislative power. ..."[59]

In considering the effect of a breach on the decision, McHugh J said in Muin v Refugee Review Tribunal:[60]

"Not every departure from the rules of natural justice automatically invalidates a decision adverse to the party affected by the breach .... Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome of the case. As this Court said in Stead v State Government Insurance Commission ... [[1986] HCA 54; [1986] HCA 54; (1986) 161 CLR 141 at 145], 'it is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome'."[61]

56. These are examples of cases in which the High Court has considered whether prerogative relief will be granted in circumstances in which a decision-maker has made a final decision. I have been unable to find any examples in which it has granted relief when, as in this case, a final decision has yet to be made and, once it has been made, the unsuccessful party has other rights.

57. The first of those rights may be to apply for review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). If I were to decide that the Tribunal has no jurisdiction to hear the application, Ms Luck may have the right to appeal under s 44 (1) of the AAT Act on the basis that I have made a decision in a "proceeding" being a decision made on "an incidental application to the Tribunal ... in connection with, an application or proposed application ..."[62] .

58. The existence of alternative rights is certainly a factor that is relevant when the Federal Court considers an application made to it under ss 5, 6 or 7 of the ADJR Act for it may refuse to grant that application if adequate provision is made by any law other than the ADJR Act under which the applicant is entitled to seek

a review by another court or tribunal. As, together with the Judiciary Act 1903 and the ADJR Act, the prerogative writs form part of the supervisory jurisdiction that courts exercise over administrative action, this would seem to be a factor relevant to whether or not they will be granted. This conclusion is also consistent with the analysis by Forster J in Re Allegra[63] in which he considered whether orders made by the Children's Court of New South Wales should be removed to the Supreme Court and quashed by an order in the nature of certiorari. In the course of his judgment, his Honour said:

"38 In NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales [2001] NSWSC 494; (2001)

[2001] NSWSC 494; 53 NSWLR 559, Barrett J had occasion to consider the general principles as they relate to the discretionary nature of administrative law jurisdiction in circumstances where an alternative review or appeal mechanism is available.

39 At [15] to [19] in particular, his Honour reviewed the judgment of Kirby P in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501. In that case, Kirby P at 509 reviewed the decision of the English Courts, including the decisions of the English Court of Appeal in R v Chief Constable of the Merseyside Police; Ex Parte Calveley [1986] QB 424 and R v Epping and Harlow General Commissioners_;_ Ex Parte Goldstraw [1983] 3 All ER 257, and concluded that those decisions make it clear that, at least in that jurisdiction, it is a cardinal principle that, save in the most exceptional circumstances, the judicial review jurisdiction will not be exercised where other remedies, including the remedy by way of appeal, are available but have not been used.

40 In his analysis, Barrett J noted that Kirby P had concluded that so far as New South Wales is concerned, there has been acceptance of this general approach. The considerations supporting this approach were stated by Kirby P in Ballam v Higgins (1986) 17 IR 131 at 132 in the following terms:

'1. It recognises and gives effect to the legislative scheme provided by Parliament for internal appeals, in this case to the Court Session of the Commission;

2. It affords a proper place to the specialised tribunal which may have

a superior advantage in ready knowledge of the developments of jurisprudence under scrutiny which this Court does not initially enjoy. Furthermore, that tribunal frequently has a superior armoury of remedies at its disposal than this Court can offer;

3. Whilst it may involve the possibility of additional cost or delay, it affords this Court the advantage of having the opinion of the appellate tribunal should the tribunal determine the question of jurisdiction and should it still be the intention of a party to challenge jurisdiction;

4. It allows complete exhaustion of any additional factual issues which may be relevant to establishing the facts said to ground jurisdiction, which facts may more readily be determined below than in this Court; and

5. It conserves to cases where no other remedy exists, the discretionary and exceptional remedies provided by writs in the nature of prerogative writs and recognises the pressure of business in this Court, including in the exercise of its general supervisory jurisdiction.'

41 At [18], Barrett J also cited the decision of the Full Court of the Supreme Court of South Australia in Weinel v Judge Parsons [1994] SASC 5155; (1994) 62 SASR 501 at 504, where the following was said:

'Remedies by way of judicial review are discretionary. They are generally not granted where there is another equally effective and convenient remedy; R v Hillingdon London Borough Council ex parte Royco Homes Ltd [1974] 1 QB 720 per Lord Widgery at 728. Judicial Review should not be used as an alternative to the exercise of a right of appeal and the discretion may be exercised to discourage the procedure from being so used; R v Ross Jones ex parte Green [1984] HCA 82; (1984) 156 CLR 185 per Wilson and Dawson JJ at 214.'

42 In my view the foregoing principles apply to orders in the nature of certiorari."

59. In view of these authorities, it seems to me that the fact that Ms Luck will have alternative remedies if I should decide that the Tribunal does not have jurisdiction weighs against her prospects of success in the High Court. My proceeding to hear and decide the issue of jurisdiction will not place her in a position from which she cannot be returned should I be incorrect in my decision. I do not wish to, and do not believe that, by proceeding, I would, in any way compromise or interfere with the High Court's consideration of the matter. The Department is entitled to have the Tribunal resolve the matter one way or the other and I do not consider that my resolving it adversely affects Ms Luck's rights to seek review of my decision should she wish to, or renders nugatory her rights under the FOI Act, whatever decision I make. If I am incorrect, I can be corrected and I am not aware of any consequential and adverse outcomes that cannot also be corrected. For these reasons, I have decided to proceed to consider whether or not the Tribunal has jurisdiction despite Ms Luck's application to the High Court.

Should I adjourn further consideration because of Ms Luck's medical conditions?

60. I note that the hearing in 2009/3331 was listed bearing in mind

Ms Luck's request in her letter dated 4 September 2009 that she was unable to appear at a hearing on a Wednesday or at a time before 10.15am and that she would prefer to have any hearing later than the middle of October. She made that request when she was in possession of Dr Varney's certificate but not that of Dr Leow. The hearing on Friday, 23 October 2009 at 11.00am to consider whether or not the Tribunal had jurisdiction met Ms Luck's request. She was advised of it in a letter dated

22 September 2009. As I understand the notes on the file, rather than send a copy of her medical certificate to the Tribunal, Ms Luck sought reasons as to why the matter had been listed for a jurisdiction hearing at all. That this was so is supported by the fact that she then sought reasons for my decision to continue to hold that hearing.

The basis of her concern was the holding of the hearing and not its timing and her ability to attend or to make submissions.

61. Although I do not have copies of them, I accept that Ms Luck has previously sent medical certificates to the Tribunal. I also accept that she suffers from medical conditions and that, as a result, she is entitled to receive a DSP. The fact that she does suffer from them and does receive the DSP does not automatically lead to the conclusion that proceedings must be conducted to suit her convenience and according to a timetable she dictates and is at her discretion.

62. The Tribunal does, of course, have regard to Ms Luck's personal circumstances as it does those of any other party. This is evident in the choice of the time at which the hearing of jurisdiction was listed. It was at a time that accorded with her wishes as stated to it. The extent to which a party's wishes can be accommodated depends on a number of factors. One is the nature of the wishes. Another must be the nature of the wishes and whether they can be properly accommodated. That requires a consideration of the interests of both parties, and not simply of the party expressing the wish, the nature and requirements of the case and those of other cases that the Tribunal must determine.

63. I did not have copies of Ms Luck's medical certificates on 23 October 2009 when I conducted the hearing but they are relevant as to whether I should consider the submissions made on that day and in Ms Luck's submissions of

16 February 2009. Despite Dr Varney's certifying that she needed extensions of time, the length of which was to be at her discretion, Ms Luck has been engaged in correspondence with the Tribunal. She has made lengthy submissions on points unrelated to the issue of jurisdiction and did so, for example, on 16 November 2009 in response to the opportunity to make submissions regarding the Tribunal's power to review the decision. In the same period, she has prepared the writ and supporting affidavit material in the High Court. This is so despite the statements from Dr Varney and Dr Leow that she was unable to cope with anything more than, in the words of

Dr Leow, the "basic requirements of daily living". Preparation of that material is not usually understood to be part of the requirements of basic living but, whether or not they are, it is open to wonder why her medical conditions prevent her from making submissions regarding jurisdiction in the Tribunal but not to lodge proceedings in the High Court. She indicated that she was prepared to continue with her application when she wrote to the Tribunal on 4 September 2009 a few weeks after Dr Varney wrote his certificate.

64. The real issue for Ms Luck seems to be that the Tribunal's jurisdiction has been called into doubt. In my previous reasons, I explained why I had decided to continue with the jurisdiction hearing. I have decided to continue to consider the issues addressed at that hearing and in the papers and reach a decision. I have had regard to the limitations imposed on Ms Luck by her medical and other conditions and have given her opportunities to make relevant submissions. I have explained some of the issues that appeared to be relevant in my earlier reasons and have sent her a transcript of proceedings. Both the hearing and the subsequent opportunities occurred at times that suited Ms Luck's needs as advised in her letter of 4 September 2009.

Does the Tribunal have jurisdiction to review the decision?

65. On 16 July 2009, Ms Luck emailed an application to the Tribunal. That application describes the decision of which she seeks review as:

"The decision of Department of Human Services to refuse the applicant access, following formal requests under sections 15 and 25 of the Freedom of Information Act 1982 (Cth) on 20 January 2009, 9 February 2009,

16 February 2009, 10 March 2009 and 23 March 2009 and a formal request for internal review on 24 March 2009, to inspect the following documents at an Information Access Office at the nearest possible location to my home address: Documents as defined in Section 4 document (a-e) of Act caused to be published in accordance with Section 9(1)(a-d), (2), (3), (4), (5), (6), (7), (8), and (9) pertaining to the use of, or which are used by, Centrelink and the Department of Human Services and their officers in making decisions or recommendations, under or for the purposes of the enactments the Social Security Law ... [and other legislation] and related schemes administered by Centrelink and Department of Human Services, with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to which the applicant is or may be entitled or subject.

The decision of Department of Human Services to refuse the applicant access, following formal requests under sections 15 and 25 of the Freedom of Information Act 1982 (Cth) on 20 January 2009, 9 February 2009,

16 February 2009, 10 March 2009 and 23 March 2009 and a formal request for internal review on 24 March 2009, to the 'Information and Communication Technology Security Policy', the 'Records Management 2006-2007: Discussion Points for Action Officer's Desks', the 'Protective Security Policies and Procedures' and the 'Fraud Control Plan: DHS Core - Interim Plan'.

66. She said that the date of the decision was made was "On or about

22 May 2009" and that it had been made by Dr Gary A Rumble, General Counsel, Office of the General Counsel in the Department. Ms Luck attached a copy of a letter dated 22 May 2009 signed by Dr Gary Rumble, General Counsel, in the Department. He wrote:

"I refer to your letter dated 20 January 2009 and to your requests since that date in which you sought access to the documents included in the statement made by the Department of Human Services (DHS) under section 9 of the Freedom of Information Act 1982.

I have enclosed a CD containing the documents (in PDF format) that are listed in the statement that DHS has been able to locate. The details of these documents are set out in Attachment A.

As a result of the delay in finalising your request, I have decided to provide you with the documents at no charge.

67. As I said in my earlier reasons, the Tribunal only has the jurisdiction or power to review a decision if it is specifically given the power to do so by either the AAT Act or another enactment. This is the effect of s 25(1) of that Act. Although it was once different, the AAT Act no longer specifies particular decisions in relation to which an application may be made to the Tribunal. Reference must now be made other legislation to find whether it provides that an application may be made to the Tribunal to review decisions made in the exercise of powers given by it. Once a provision of that sort is found, the Tribunal has power to review it because s 25(4) of the AAT Act provides that:

"The Tribunal has power to review any decision in respect of which application is made to it under any enactment."

68. Subject to s 55(2), to which I will return, s 55(1) of the FOI Act provides for review of a decision in a number of circumstances. Those that can have any relevance in this case are:

"Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:

(a) a decision refusing to grant access to a document in accordance with

(aa) a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or

(ab) a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access;...

69. It follows that, if the Tribunal is to have jurisdiction as a consequence of these provisions, there must be both a request and a decision refusing to grant access in accordance with that request. That there be a "request" is, therefore, crucial.

70. A "request means an application made under subsection 15(1)."[64] Section 15(1) provides:

"Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document."

Section 15A is concerned with a request for access to personnel records. Ms Luck has not sought access to them. Nor has she sought access to an official document of

a Minister. She has asked the Department, which is an agency,[65] for documents that they use in certain ways. A "document" is defined in s 4(1) and there is no question in this case that what Ms Luck sought are documents. The documents she requests would seem to come within the description of a "document of an agency" which is:

"... a document in the possession of an agency, or in the possession of the agency concerned , as the case requires, whether created in the agency or received in the agency."[66]

71. I note that s 12 provides that a person is not entitled to obtain access under that Part to certain documents. Among those documents are certain documents accessible under the Archives Act 1983, documents open to public access in accordance with an enactment other than the FOI Act where access is subject to

a fee[67] and a document open to public access as part of a land title register and, in accordance with the law of a State or Territory, subject to a fee or charge.[68] None is relevant in this case but there is one category of document that may be available. That is found in s 12(1)(c), which provides:

"A person is not entitled to obtain access under this Part to:

(c) a document that is available for purchase by the public in accordance with arrangements made by an agency."

72. Section 9 applies to documents that are provided by the agency for the use of, or are used by, it or its officers in making decisions or recommendations under or for the purposes of an enactment or scheme administered by it with respect to rights, privileges or benefits, or to obligations, penalties or other detriments to which persons are or may be entitled or subject. The section does not apply to documents that are available to the public as published by it or another agency apart from s 9. If a document comes within s 9(1), s 9(2) requires the principal officer of an agency to:

"cause copies of all documents to which this section applies in respect of the agency that are in use from time to time to be made available for inspection and for purchase by members of the public".[69]

73. Once an agency has complied with s 9(2), the documents described in s 9(1) are documents that come within the description of documents in s 12(1)(c). That means that a person is not entitled to obtain access to them under Part III of the FOI Act because they are documents available for purchase by the public in accordance with arrangements made by the agency. It does not mean, though, that the document is excluded from the definition of a "document" or that of a "document of an agency". It is not. A person may request access to such a document under s 15(1) because it is a document of an agency. Whether the person is entitled to obtain access to it under Part III is a matter that must be determined if the person requesting it applies for review of the agency's decision on the request. That decision will be a decision of

a sort coming within s 55(1) and relating to the grant of access, the refusal to grant access or a decision deferring access to the documents to which the request relates.

It would bring into consideration the provisions of s 12(1)(c) and the like.

74. I think that interpretation is preferable to an alternative interpretation that presents itself. That is that a person's right to obtain access under s 15(1) in Part III to a document of an agency must be qualified by s 12(1). That would mean that a person who wishes to obtain access to a document of an agency may request access to the document provided it is not a document to which the person is not entitled to obtain access by virtue of s 12(1). Such an interpretation would require me to read words into s 15(1) that are not there as well as into the definitions of "document" and "document of an agency". It would mean that a person's right to apply to the Tribunal and so the Tribunal's jurisdiction or power to review a decision would depend upon its making an initial analysis of whether the decision was made in relation to documents to which the person was or was not entitled by virtue of s 12. It would mean that the heart of the issue was being agitated as a preliminary jurisdictional issue rather than as a substantive issue.

75. Such a result would be inconsistent with the way in which the FOI Act deals with a decision to refuse access in accordance with a request on the basis that a document is an exempt document. Exempt documents are excluded from the right to access under the FOI Act. The right is expressed, in part, in terms of every person's having "a legally enforceable right to obtain access in accordance with this Act to ... a document of an agency, other than an exempt document ...".[70] In so far as an agency is concerned, an "exempt document" means a document exempt by virtue of the provisions of Part IV of the FOI Act or a document in respect of which, by virtue of s 7, an agency is exempt from the operation of the legislation. A decision refusing to grant access to a document on the basis that the document is an exempt document is treated as a decision refusing to grant access to that document in accordance with the request. Whether the document is in fact an exempt document and so excluded from the right to obtain access is determined as a substantive issue.

76. The same result is reached if the agency decides that the documents do not exist but it is achieved by a different route. The right to obtain access to documents given by s 11 of the FOI Act cannot extend to a right to obtain access to documents that do not exist. Yet the question whether documents do or do not exist may be at the heart of the issue between them. The answer to the dilemma is found in s 24A of the FOI Act. It provides that the agency may refuse a request for access to

a document if all reasonable steps have been taken to find the document requested and the agency is satisfied either that the document is in its possession but cannot be found or does not exist. Refusal on that basis brings the agency's decision within the description given in s 55(1)(a) and so enables the person requesting access to apply to the Tribunal for review.

77. I said that the provisions of s 55(1) were subject to those of s 55(2).

It provides that, unless a person has already done so and not been informed of a result within 30 days, a person is not entitled to apply to the Tribunal under s 55(1) if that person is, or has been, entitled to apply under s 54(1) for review of the decision. Section 54(1) effectively provides for the agency to review the initial decision.

78. I have set out the decision as Ms Luck described it in her application.

I am also mindful that, in her letter of 4 September 2009, Ms Luck wrote:

"4. ... It is quite clear that I am not seeking a review of the decision of 22 May 2009 by Dr Gary Rumble and therefore there is no question that my application is for review of decisions made in accordance with the FOIA and as such the AAT has jurisdiction to review them."

Unfortunately, it is not quite clear to me that this is the case. The decision by

Dr Rumble is the decision to which Ms Luck specifically referred in her application for review. She referred to a number of requests of which the earliest was 20 January 2009. Dr Rumble referred also to that specific request and to later requests.

79. It may be that the Department would have been deemed to have made decisions on those various requests and on various dates before 22 May 2009 for there is no record of the Department's having made any decisions before Dr Rumble wrote his letter. Whether that would be the case is irrelevant for Ms Luck has chosen to apply to the Tribunal for review of the decision that was made in respect of all of her requests. Now that the decision has been made, any review rights arising as a result of the Department's failure to make a decision no longer exist for the requirements of s 56(1)(c) cannot be met.

Does the Tribunal have jurisdiction or power to review the decision?

80. I am concerned only with Dr Rumble's letter of 22 May 2009. It is

a decision and it is expressed to be in response to Ms Luck's requests dated 20 January 2009 and to her "requests since that date". It grants access to Ms Luck to the "the documents included in the statement made by the Department ... under section

9 ..." of the FOI Act. I can only assume from the fact that Ms Luck has applied for review of the decision that she does not regard it as granting her access to documents in accordance with her request. That is so even though it purports to do so. In view of that, were it not for s 55(2), Ms Luck would be entitled to make an application to the Tribunal for review of the Department's decision on the basis that it is "a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access": s 55(1)(ab).

"Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for

a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review."

On the basis that Dr Rumble's decision was a decision of the sort I have described in the previous paragraph, Ms Luck was entitled to request the Department to review it under s 54(1)(ba). If she wanted to do that, she had to apply to the Department in writing and include any application fee that was applicable. There is nothing in the material lodged by Ms Luck or on behalf of the Department to suggest that she asked for that review. Therefore, the qualification found in s 55(3) to s 55(2) is not relevant. That qualification depends on Ms Luck's having applied for review under s 54 and upon her not having been informed of the result of the review before 30 days have elapsed. As she has not applied, Ms Luck is precluded by the provisions of s 55(2) from applying for review of Dr Rumble's decision.

82. As Ms Luck was not entitled to make an application to the Tribunal under the FOI Act, the consequence of s 25(4) of the AAT Act is that the Tribunal does not have power to review the decision of Dr Rumble. I dismiss her application on that basis. In doing so, I rely on the power implicit in s 25(4) of the AAT Act and on the express power given by s 42A(4).[71]

The documents sought by Ms Luck from the Department in relation to the application

83. In her letter dated 4 September 2009, Ms Luck asked the Tribunal to ensure that she was in receipt of "the section 39 documents in accordance with AAT law." I think that Ms Luck meant to refer to s 37 of the AAT Act as it provides for the circumstances in which a statement of reasons and other documents must be lodged.[72] Section 37(1) provides that the obligation rests on a "person who has made a decision that is the subject of an application for review by the Tribunal ..." and it is an obligation to provide them "within 28 days after receiving notice of the application (or within such further period as the Tribunal allows) ...". The reference to notice of the application draws attention to the obligation of the Registrar, a District Registrar or a Deputy Registrar to "cause notice in writing of an application for review of

a decision, in accordance with the prescribed form, to be given to the person who made the decision."[73]

84. Notice is not required to be given except in relation to an application for review of a decision. Section 55 of the FOI Act only permits an application to be made for review of the decisions set out in s 55(1) and in the circumstances provided for in the remaining sub-sections of s 55. She purported to make an application for review but, once I decided that the decision of which she sought review was not

a decision in respect of which she was permitted or entitled to make an application to the Tribunal under s 55, it cannot be regarded as an application for review giving rise to rights and duties under the AAT Act. In essence, the AAT Act only recognises applications for review that an enactment provides may be made to it for the review of decisions made in the exercise of powers conferred by it. As the FOI Act does not permit Ms Luck to make an application, the Tribunal did not have a duty to notify the decision-maker, of the decision and there was no consequent obligation upon it by virtue of s 37(1).

85. As it turns out, notice was given to the Department of Ms Luck's application. It was given in a letter dated 23 July 2009. In a letter received on

21 August 2009, the solicitors for the Department queried the Tribunal's jurisdiction and the Deputy Registrar asked Ms Luck why she thought the Tribunal had power to review the decision. That is to say, she put into train the procedure under ss 42A(4) that may lead to a decision dismissing the application if Ms Luck were unable to show that the decision is reviewable. Once the Tribunal's jurisdiction was called into question, so too was the obligation imposed by s 37(1). As I have said, the obligation only arises if the application seeks review of a decision that is in fact reviewable. That this is so is confirmed by the fact that it requires production of documents in the decision-maker's possession or control that are "relevant to the review of the decision by the Tribunal". Section 37(1)(b) does not refer to documents that are relevant to determining whether or not the Tribunal had the power to review the decision at all.

86. Perhaps it would have been better to have made a formal order extending the time within which the Department had to comply with the obligation,

if any, under s 37(1) to a date after the resolution of the jurisdictional issue and after, if it should prove to be the case, the Tribunal decided that it had jurisdiction. That would have clarified the situation. Whether there was a formal order or not, the Department was not under an obligation to comply with s 37(1) once the Deputy Registrar had taken steps under s 42A(4) to call into question the Tribunal's jurisdiction and so the very existence of an application for review that would otherwise give rise to the obligation under s 37(1). In the absence of an obligation imposed upon the Department to provide documents, Ms Luck did not have

I certify that the preceding eighty six paragraphs are a true copy of the reasons for the decision herein of

Signed: .......................................................................

[1] [2009] AATA 800

[2] Reasons [2009] AATA 800 at [3]- [11]

[3] Ms Luck wrote to the Tribunal on 16 July 2009 but did not satisfy the requirements for lodgement until 23 July 2009.

[4] Reasons [2009] AATA 800 at [7]

[5] Reasons [2009] AATA 800 at [9]

[6] Reasons [2009] AATA 800

[7] Various Justices of the Federal Court and Tribunal Members associated with VID899/2008 are named as the Eleventh Defendants.

[8] Re Luck and Secretary, Department of Education, Employment and Workplace: a directions hearing was held by Senior Member Friedman on 5 November 2007 in V2007/3968. The hearing of the application was listed for five dates between February and April 2008 but each was vacated with a reason either that one or other of the parties was not available or that the matter was not ready for hearing.

[9] Re Luck and Chief Executive Officer of Centrelink: Senior Member Friedman conducted a hearing on 9 May 2008 to determine whether the Tribunal had jurisdiction. After permitting Ms Luck to amend her application to identify her request under the FOI Act as being made on 3 June 2005, "The Tribunal found it had jurisdiction to determine the application by Ms Luck.": [2008] AATA 718 at [4] and directed the respondent to lodge documents under s 37 of the AAT Act. Ms Luck applied to the Federal Court for an extension of time within which to lodge an application: VID 464/2008. Tracey J refused her application: [2008] FCA 1506. Ms Luck lodged an appeal to the Full Court: VID898/2008.

[10] Re Luck and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (FOI Act): application withdrawn on 7 April 2008.

[11] Re Luck and University of Southern Queensland: Senior Member Friedman dismissed the application on 29 May 2008 on the basis that the Tribunal did not have jurisdiction. Ms Luck lodged an appeal to the Federal Court on 26 June 2008 (VID476/2008) which was dismissed by Tracey J on 22 October 2008 ([2008] FCA 1582. Ms Luck's application for leave to appeal (VID 899/2008) was dismissed by a Full Court (North, Graham and Rares JJ) on 19 June 2009 ([2009] FCAFC 73).

[12] Re Cilli's Objection (1970) 15 FLR 426 at 428 per Blackburn J; The King v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 at 618 per Dixon J; and Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 242 per Brennan J

[13] [1989] HCA 45; (1989) 168 CLR 1; 87 ALR 618

[14] [1989] HCA 45; (1989) 168 CLR 1; 87 ALR 618 at 16, 628

[15] Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19 per Sugerman ACJ approved in McMahon v Gould (1982) 1 ACLC 98; 7 ACLR 202 at 206 per Wootten J and in Cameron's Unit Services Pty Ltd v Whelpton & Associates Pty Ltd and Anor [1984] FCA 406; (1984) 4 FCR 428; 59 ALR 754 at 431; 757 per Wilcox J

[17] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[18] Letter dated 21 October 2009 to District Registrar and copied to Ms Luck

[19] (1991) 23 ALD 317, O'Connor J, President and Mr Horrigan and Mrs Pavlin, Members

[20] (1991) 23 ALD 317 at 319

[21] [1987] AATA 202; (1987) 18 ATR 3613; 12 ALD 102; 87 ATC 686

[22] [1987] AATA 202; (1987) 18 ATR 3613; 12 ALD 102; 87 ATC 686 at 3619; 106; 689

[23] [1954] HCA 31; (1954) 90 CLR 177

[24] [1954] HCA 31; (1954) 90 CLR 177 at 185

[25] [1954] HCA 31; (1954) 90 CLR 177 at 186

[26] [1982] HCA 31; (1982) 152 CLR 25; 41 ALR 71 per Gibbs CJ, Stephen, Mason, Aickin, Murphy, Wilson and Brennan JJ

[27] [1982] HCA 31; (1982) 152 CLR 25; 41 ALR 71 at 56; 87 (Gibbs CJ); 94-95; 118-119 (Mason J); 104; 126 (Murphy J; 129;146 (Wilson J); 119-120; 136 (Aickin J) and 158-9; 169-170 (Brennan J)

[28] [1982] HCA 31; (1982) 152 CLR 25; 41 ALR 71 at 59; 90

[29] [1974] AC 273 at 299

[30] [1982] HCA 31; (1982) 152 CLR 25; 41 ALR 71 at per Gibbs CJ at 56; 88, per Mason J at 99; 122

[31] [1982] HCA 31; (1982) 152 CLR 25; 41 ALR 71 at 56; 88 per Gibbs CJ citing John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351 at 372

[32] [1982] HCA 31; (1982) 152 CLR 25; 41 ALR 71 per Gibbs CJ at 54; 87 and see the later case of Hammond v Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188 at 198-9; [1982] HCA 42; 42 ALR 327 at 333-4, per Gibbs CJ

[33] [1982] HCA 31; (1982) 152 CLR 25; 41 ALR 71 at 57, 89 per Gibbs CJ

[34] [1982] HCA 31; (1982) 152 CLR 25; 41 ALR 71 at 58, 90 per Gibbs CJ and at 102; 123-4 per Mason J citing Attorney-General v British Broadcasting Corporation [1981] AC 303 at 342-3

[35] [1982] HCA 31; (1982) 152 CLR 25; 41 ALR 71 at 57-58; 89-90 per Gibbs CJ citing Attorney-General v Times Newspapers Ltd [1974] AC 273 at 310

[36] [1974] AC 273 at 296-7

[37] (1937) 37 SR (NSW) 242 at 249-250

[38] [1982] HCA 31; (1982) 152 CLR 25, 41 ALR 71 at 59-60, 91 per Gibbs CJ, 94-98, 119-121 per Mason J and 133-6, 149-151 per Wilson J

[39] [1982] HCA 31; (1982) 152 CLR 25, 41 ALR 71 at 60, 91-92 per Gibbs CJ

[40] [1982] HCA 31; (1982) 152 CLR 25, 41 ALR 71 at 98-99, 122 per Mason J

[41] [1982] HCA 31; (1982) 152 CLR 25, 41 ALR 71 at 99, 122 per Mason J

[42] [1982] HCA 31; (1982) 152 CLR 25, 41 ALR 71 at 5859, 90 per Gibbs CJ

[43] [1982] HCA 31; (1982) 152 CLR 25, 41 ALR 71 at 59, 91 per Gibbs CJ, 103, 125 per Mason J

[44] [1982] HCA 31; (1982) 152 CLR 25; 41 ALR 71 at 103-4; 125126 per Mason J

[45] [1982] HCA 42; (1982) 152 CLR 188; 42 ALR 327

[46] [1982] HCA 42; (1982) 152 CLR 188; 42 ALR 327 at 198; 333

[47] [1982] HCA 42; (1982) 152 CLR 188; 42 ALR 327 at 199; 334

[48] [1982] HCA 42; (1982) 152 CLR 188; 42 ALR 327 at 206; 340

[49] [1982] HCA 42; (1982) 152 CLR 188; 42 ALR 327 at 206; 340

[50] [1987] HCA 23; (1987) 162 CLR 612

[51] [1987] HCA 23; (1987) 162 CLR 612 at [1]; 620-621

[52] [1998] FCA 856

[53] (1996) 62 FCR 451

[54] Gould v Brown [1998] HCA 6; (1998) 193 CLR 346; 151 ALR 395; 72 ALJR 375

[55] [1998] FCA 856 at [16]- [19]

[56] [2008] FCA 353

[57] A proceeding in the Tribunal to review, for example, a decision made by the Minister under s 501 of the Migration Act 1951 in relation to a person in the migration zone will be rendered nugatory if the Tribunal does not proceed and make a decision within 84 days of the day on which the person was notified of the decision under review. It will be rendered nugatory because the decision will be deemed to have been affirmed: s 500(6L).

[58] [1999] HCA 14; (1999) 197 CLR 510; 162 ALR 1; 73 ALJR 584

[59] [1999] HCA 14; (1999) 197 CLR 510; 162 ALR 1; 73 ALJR 584 at [113]; 554; 33; 608 (footnotes omitted)

[60] [2002] HCA 30; (2002) 190 ALR 601; (2002) 76 ALJR 966; at [140]; 635; 992

[62] Definition of "proceeding": AAT Act, s 3(1)

[63] [2009] NSWSC 1091

[67] Section 12(1)(b) cannot apply to documents available for inspection and purchase under s 9 for access to those documents is not given in accordance with "another enactment" but with the enactment itself.

[68] FOI Act, ss 12(1)(a), (b) and (ba)

[71] Section 42A(4) provides: "If: (a) a person makes an application to the Tribunal for a review of decision; and (b) the person is unable to show, within such time as is prescribed after being notified in writing by the Registrar or a Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable; the Tribunal may dismiss the application without proceeding to review the decision." A Deputy Registrar notified Ms Luck in a letter dated 24 August 2009.

[72] Section 39 of the AAT Act provides that, with certain qualifications, the Tribunal shall ensure that every party to a proceeding is given a reasonable opportunity to present his or her case and to inspect any documents to which it proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

[73] AAT Act, s 29(11). A reading of the Administrative Appeals Tribunal Regulations 1976 reveals that no form has been prescribed. When, apart from the omission of the more recently introduced office of District Registrar, the provision appeared in the AAT Act as s 29(2), r 5(2) provided that "A notice under sub-section 29(2) of the Act shall be in accordance with Form 2." Regulation 5(2) and Form 2 have made way for other things but the reference to the prescribed form in s 29(11) remains.