Consideration
20 As the primary judge pointed out, the orders made by the Tribunal which Ms Luck seeks to impugn were entirely beneficial to her: granting her an extension of time, allowing her to amend her review application, compelling the respondent to give reasons and changing the name of the respondent so that it correctly reflected the proper respondent.
21 An initial point raised by the respondent was whether Ms Luck needed leave to appeal on the basis that the appeal was from an interlocutory decision.
22 It may be accepted that the decision is properly to be characterised as interlocutory: see, for example, Vranic v Commissioner of Taxation [2002] FCAFC 26; 49 ATR 93 citing Deighton v Telstra Corporation Ltd [1997] FCA 1568 and referring to Barrett v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 269; 18 ALD 129 at 130.
23 The orders made by Gray J on 28 April 2009 at the relevant Full Court callover clearly treated the primary judge's decision as interlocutory, and ordered that the question of leave be dealt with on the hearing of the appeal. At the hearing of this appeal on 21 May 2015, the Court requested the respondent provide a transcript of the callover before Gray J. After the hearing, having made enquiries of the transcript provider, the respondent advised the Court there would be a long delay in recovering the transcript due to technical problems encountered by the transcript provider. It was provided on 17 August 2015. That transcript confirms that Gray J made it clear to Ms Luck that leave to appeal may be required. Ms Luck disputed this before Gray J.
24 After all these years, if leave is necessary, we would grant it in order to recognise that it would not serve the interests of the administration of justice to deal with this appeal other than on a final basis and on its merits.
25 Insofar as the grounds of appeal are concerned, the respondent's submissions spent some considerable time addressing the issue whether the matters raised in the s 44 notice of appeal before the primary judge were questions of law. His Honour found they were not, and this was one of the bases for his refusal to extend time. It also features heavily in Ms Luck's grounds of appeal before us, in particular ground (e). As we have noted in VID 512 of 2014, Luck v Secretary of the Department of Human Services [2015] FCAFC 111, the Full Court's decision in Haritos v Commissioner of Taxation [2015] FCAFC 92 has overruled Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; 76 ALD 321 and cases which adopted that approach to s 44 of the AAT Act. Both the primary judge's reasons, and the respondent's submissions on the appeal proceeded on the basis Birdseye was correct, and no criticism can be levelled at either the primary judge or the respondent for adopting that course.
26 Accepting that the law about the approach to an appeal under s 44 is as set out in Haritos, and summarised at [62] of that decision, the fact that the primary judge took the approach he did does not cause us to allow the appeal. It may well be that some of the "questions of law" posed by Ms Luck were sufficient to give this Court jurisdiction, in accordance with the decision in Haritos. Putting the approach to questions of law under s 44 to one side, there are a number of other bases for his Honour's decision to refuse to extend time, all of which were sound, and with which we agree. In other words, whatever might be said in the light of Haritos about the approach to s 44 taken by his Honour, it does not cause us to conclude that his Honour erred in refusing to grant the extension(s) of time needed by Ms Luck.
27 The first basis is that the directions and conduct of the Tribunal which Ms Luck seeks to impugn under s 44 are not "decisions" for the purposes of that provision because they are not final or determinative of her application for review: see Director-General of Social Services v Chaney [1980] FCA 87; 31 ALR 571 at 593 per Deane J, with whom Fisher J agreed; Rana v Repatriation Commission [2011] FCAFC 123; 196 FCR 137 at [31] per Kenny, Stone and Logan JJ; and Commissioner of Taxation v Cancer and Bowel Research Association Inc [2013] FCAFC 140; 305 ALR 534 at [10] per Edmonds, Pagone and Davies JJ. Quite the contrary, all the Tribunal was doing was giving directions in order to prepare for the review for hearing. The not dissimilar meaning given to the word "decision" in the AD(JR) Act (see Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 335-8) means that her AD(JR) Act application was to that extent also without any prospects of success. Ms Luck appears to challenge the primary judge's findings to this effect with ground (f) in her notice of appeal (which we have extracted at [17] above), and her contention should be rejected. We note Ms Luck appears to attach great significance to the fact (which is not in contest) that the Tribunal did not make an express order granting her leave to amend her application for review. Nevertheless, the respondent has not contested and we accept it is the case (as did the primary judge) that the Tribunal did grant such leave. Ms Luck filed an amended review application in the Tribunal pursuant to that grant of leave. There was, therefore, nothing for Ms Luck to challenge in this respect, but if it was of such importance to her and she wished to have the grant more formally recorded by the Tribunal, as the primary judge noted at [23] of his reasons:
Ms Luck is able to apply to the Tribunal for any further directions which she considers need to be made to facilitate the hearing of her application. In particular she can invite the Tribunal to make an order identifying the relevant decision as that deemed to have been made on 3 July 2005.
28 Conduct of an administrative decision-maker is reviewable under s 6 of the AD(JR) Act. Even if the Tribunal's directions, and other procedural steps were, we assume in favour of Ms Luck, capable of constituting "conduct" for the purposes of s 6, none of the grounds of review she identifies in relation to this conduct has any prospects of success. The primary judge was correct to form that view.
29 We turn then to examine each of the questions of law, some of which are also expressed as the grounds of review for the purposes of the AD(JR) Act application.
30 Ground (h) appears more to seek to establish the Court's jurisdiction, and Ms Luck's right to invoke it, and can be passed over. Ground (d) contends the primary judge's decision was ultra vires, but does not explain why. The respondent submits:
Section 44(2A)(a) of the AAT Act provides that an appeal under s 44(1) shall be instituted "not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows". Similarly, s 11(1)(c) of the AD(JR) Act permits the Court to extend the time by which an application for review must be filed.
The Federal Court clearly had power to grant of refuse [sic] the enlargement of time sought by the Appellant. Further, it was permissible for the primary judge to consider the merits of the proposed proceedings in determining whether or not to grant the necessary enlargement of time.
31 Those submissions are plainly correct.
32 Ground (c) contends the primary judge discriminated against Ms Luck on the grounds of her disability. First, as a matter of fact we see no basis whatsoever for this allegation. Second, and subsuming the first, the Full Court has held that judicial officers are not subject to the Disability Discrimination Act 1992 (Cth): Luck v University of Southern Queensland [2014] FCAFC 135; 145 ALD 1 at [41].
33 Grounds (a) and (b) allege error of law and denial of procedural fairness and natural justice but without any particulars and are not capable of succeeding. Other grounds give some content to these allegations and we consider them in that context.
34 That leaves parts of grounds (e) and (g).
35 Ground (e) contends that the primary judge erred in finding the proposed s 44 appeal failed to disclose a question of law, by reference to each of the ten questions of law contained in the proposed appeal. By reference to proposed question of law 2(a) in the proposed s 44 appeal, ground (e) contends that the primary judge should have upheld Ms Luck's claims to actual or apprehended bias in respect of the way the Tribunal conducted the management of the review. There is little given by way of evidence or elaboration about these allegations, and we do not consider that anything to which Ms Luck does point could be said to constitute actual or apprehended bias in the way those terms are to be understood when applied to an administrative decision-maker, where there is no necessary impediment to a decision-maker forming opinions as the review is being conducted, so long as she or he remains capable of persuasion and has not engaged in prejudgment: see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [71]-[72] per Gleeson CJ and Gummow J; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [28]-[36] per Flick J, Allsop CJ agreeing and at [74] per Robertson J, Allsop CJ agreeing, citing NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [20].
36 By reference to proposed question of law 2(f) to (g) in the proposed s 44 appeal, we see no error in the primary judge's approach to the law, nor his consideration of Ms Luck's submissions. Where the respondent has, as a model litigant in the Tribunal and this Court, informed the Tribunal that a particular statutory office holder is the proper respondent, very cogent material would need to be provided to establish otherwise. In any event, this was a matter the Tribunal could have further amended if need be, if Ms Luck had allowed her review to proceed.
37 Proposed question 2(d) concerns Ms Luck's contention that she was not allowed to make "full submissions" to the Tribunal, and to refer to the matters she wished to, such as the objects of the FOI Act. The Tribunal is able to control its own procedure: AAT Act, s 33(1)(a); LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166 at [123], citing with approval Rana v Repatriation Commission [2011] FCAFC 123; 196 FCR 137 at [32], and exercising that control may involve a Tribunal setting limits on matters parties can raise. Assuming in Ms Luck's favour that what she alleges occurred is what occurred, we consider the Tribunal was within its authority to do this, and we do not see, looking at the conduct of the matter as a whole before the Tribunal and bearing in mind the somewhat preliminary stage it had reached, that there could possibly be said to be any denial of procedural fairness by the Tribunal to Ms Luck.
38 Ground (g) deals with the "conduct" allegations. We have dealt at [27] with our view as to why the primary judge was correct about the "decision" aspect. We consider his Honour was also correct to find that Ms Luck's allegations about conduct were unintelligible: we have found them of that character as well.
39 Further, Tracey J said (at [21]):
In giving a direction that Ms Luck should only deal with a nominated officer the Assistant Registrar did nothing for the purpose of her or the Tribunal making a reviewable decision.
40 His Honour was clearly correct on this issue.
41 There is no basis to find the primary judge (as Ms Luck alleged) did not properly construe the relevant legislation, did not accord Ms Luck procedural fairness, or approached her claims in a way which might be said to be affected by apprehended bias. To the contrary, under difficult circumstances, the primary judge dealt with Ms Luck's proceedings with fairness and courtesy.