Orfali v Chief Executive Officer, Services Australia

Proceedings before the Tribunal 14 On 7 August 2018, Mr Orfali lodged an application in the Tribunal for a review of a decision of the Acting Australian Information Commissioner dated 11 July 2018. The application was originally listed for hearing on 26 April 2019. 15 On 28 March 2019, having failed to comply with earlier directions of the Tribunal, Mr Orfali applied for an extension of time in which to file documents on which he intended to rely at the hearing and a statement of facts, issues and contentions, and for the hearing to be vacated. Services Australia gave its consent and the Tribunal gave directions extending time for Mr Orfali to file material until 30 April 2019. The matter was then listed for hearing by the Tribunal on 5 June 2019. 16 On the intended date of the hearing on 5 June 2019, having failed to comply with the directions made on 28 March 2019, Mr Orfali again applied for an extension of time in which to file documents on which he intended to rely at the hearing and a statement of facts, issues and contentions, and for the hearing to be vacated. Again, Services Australia gave its consent and the Tribunal gave directions extending time for Mr Orfali to file material until 17 June 2019 and relisted the matter for hearing by the Tribunal on 12 August 2019. 17 On 4 July 2019, having failed to comply with the directions made on 5 June 2019, Mr Orfali again applied for an extension of time in which to file his materials. The Tribunal gave Mr Orfali an extension of time until 12 July 2019. 18 On 22 July 2019, having failed to comply with the directions made on 4 July 2019, Mr Orfali again applied for an extension of time and the vacation of the hearing date. The Tribunal refused the request and made the following ruling dismissing Mr Orfali's application: Having advised the Applicant during the course of the telephone directions hearings on 5 June 2019 and 4 July 2019 that his application may be dismissed for failure to comply with a direction of the Tribunal; having heard the Applicant as to his reasons for not having lodged material on which he proposed to rely at the hearing of this proceeding despite several assurances from him that the material would be so lodged and noting that the Applicant was again seeking to have the date listed for the hearing of this proceeding vacated: The Tribunal is satisfied that the Applicant has failed within a reasonable time to proceed with the application and to comply with directions made by the Tribunal in relation to the application on 28 March 2019, 5 June 2019 and 4 July 2019 under section 33(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act). Pursuant to section 42A(5) of the AAT Act, the Tribunal dismisses the application.

Extension of time 19 Mr Elias Orfali applied to this Court on 29 August 2019 for an extension of time under s 44(2A) of the AAT Act within which to appeal the Decision. Rule 33.13 of the FC Rules sets out procedural requirements for an application for an extension of time, under s 44(2A) of the AAT Act, in which to appeal a decision of the Tribunal. 20 The Court has a broad discretion to extend time to institute an appeal. A number of relevant considerations were listed by McKerracher J in Franich v Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2011] FCA 1362 (at [20]), including: (a) the reason for the delay in instituting the appeal; (b) any prejudice to the respondent from the delay; and (c) the merits of the appeal. 21 In the present case, the delay in instituting the appeal was not long. The orders of the Tribunal dismissing the AAT Appeal were made on 22 July 2019 and Mr Orfali's application for an extension of time was made on 29 August 2019. In his affidavit of 29 August 2020, Mr Orfali provided a number of reasons for the delay, including that: (a) Mr Orfali did not see the decision of the AAT until 24 July 2019 because it was initially sent to an email account that was not reliable. (b) Mr Orfali sought assistance from Victoria Legal Aid and Justice Connect but was informed that these services would not be able to offer him legal assistance. Mr Orfali submitted that he first contacted Justice Connect on 6 August 2019, but after a protracted exchange regarding relevant information to his case and his eligibility for a financial exemption, Justice Connect informed him that they would not be able to support him on 19 August 2019. (c) From 20 August 2019 onward, Mr Orfali attempted to prepare and file the relevant papers being self-represented. 22 Services Australia made no submission that it has suffered any prejudice by reason of Mr Orfali's delay in instituting the appeal. 23 In those circumstances, I would have granted an extension of time if Mr Orfali's underlying appeal raised an arguable issue. However, for the reasons explained below, I consider that the underlying appeal has no chance of success and therefore the extension should be refused: Cooper v Comcare [2002] FCAFC 347 at [10].

Error of law 24 The meaning of the expression "on a question of law" in s 44(1) of the AAT Act was considered extensively by the Full Federal Court in Haritos v Commissioner of Taxation (2015) 233 FCR 315 (Haritos). Relevant conclusions reached by the Full Court were: (a) (at [192]) Section 44(1) excludes an appeal on mere questions of fact. Further, the right of appeal does not extend to mixed questions of fact and law where, in order to decide the question of law, the court must positively determine a question of fact itself, rather than judicially review the tribunal's fact-finding. However, legally erroneous fact-finding may found an appeal on a question of law within s 44(1). (b) (at [193]) The purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with by the Tribunal and not by the Federal Court. On an appeal under s 44(1), the Court should not usurp the fact-finding function of the Tribunal. (c) (at [202]) Jurisdictional error would found a question of law under s 44(1), which would include a denial of procedural fairness. 25 More broadly, an error of law includes identifying a wrong issue, asking a wrong question, ignoring relevant material, relying on irrelevant material or making a legally erroneous finding: Repatriation Commission v Hill (2002) 69 ALD 581 at [59]. 26 In the present case, the Tribunal exercised the power under s 42A(5) of the AAT Act to dismiss Mr Orfali's application without proceeding to conduct a review because Mr Orfali failed within a reasonable time to proceed with the application and to comply with the directions of the Tribunal in relation to the application. 27 The substance of Mr Orfali's proposed appeal, as shown in the draft notice of appeal that accompanied his application, is that there were circumstances beyond Mr Orfali's control that prevented Mr Orfali from complying with the directions of the Tribunal to file the material on which he wished to rely in the proceeding. In the draft notice of appeal, and in oral submissions to the Court, Mr Orfali stated that he was prevented from filing material in the Tribunal by a combination of factors including: (a) government agencies who impeded the preparation and submission of the materials on which he wished to rely; (b) Mr Orfali's ill health; (c) the need to care for his two elderly parents; (d) distress caused by restrictions on what Mr Orfali can say because of the nature of the sensitivities of some of the evidence; and (e) a lack of legal representation. 28 Mr Orfali elaborated on those points in oral submissions, although the submissions concerning alleged interference from government agencies were stated in vague terms. Mr Orfali acknowledged in his oral submissions that the Tribunal had not acted unfairly toward him in that the Tribunal member had taken into account Mr Orfali's explanation of the delays in filing material and had given Mr Orfali a number of extensions of time. Indeed, Mr Orfali said in oral submissions that, given the impediments he was then facing, he was not in a position to prepare and file material in the Tribunal at that time. I understood from Mr Orfali's submissions that the voluminous material that Mr Orfali filed with the Court in April 2020 was the material that Mr Orfali wished to put before the Tribunal, but he had only now been able to complete the task of preparing it. 29 In my view, the submissions made by Mr Orfali, and the voluminous material that has been filed in support of his application, do not establish that the Tribunal made any error of law in its Decision, dismissing Mr Orfali's application for review. In that respect, the following maters can be noted: (a) First, there is nothing to suggest that the Tribunal lacked power to make the Decision, or misunderstood the power that it exercised or applied an incorrect legal test. (b) Second, there is no evidence before me that suggests that Mr Orfali was denied procedural fairness by the Tribunal. I note that the evidence filed by Mr Orfali did not include a transcript of any of the hearings before the Tribunal, nor any material put to the Tribunal by Mr Orfali in seeking extensions of time. As set out earlier, the available record indicates that the Tribunal gave Mr Orfali a number of extensions in which to file material in support of his application, and twice adjourned the hearing of the application. There is nothing in the record that suggests a lack of procedural fairness. Mr Orfali's submissions do not support a conclusion that he was denied procedural fairness. (c) Third, it is well-established that in proceedings before the Tribunal (and in civil proceedings such as these before this Court), the rules of procedural fairness do not extend to requiring the provision of legal representation: NSW v Canellis (1994) 181 CLR 309 at 329-330 per Mason CJ, Dawson, Toohey and McHugh JJ; SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 at [30] - [31] per Flick J and the cases there cited (and, in respect of civil court proceedings, see Elliott v ASIC (2004) 10 VR 369 at 412; ASIC v Reid (No 1) (2006) 151 FCR 540 at 545; and Foster v ACCC [2012] FCA 953 at [18]-[19]). 30 At the hearing, Services Australia sought the dismissal of Mr Orfali's application under rule 33.30 (lack of competency) or 33.32 (failure to comply with a direction of the Court) of the FC Rules. Given the conclusions I have otherwise reached, it is unnecessary to consider those alternative bases for dismissal of the application. I also consider that Mr Orfali endeavoured to comply with the Court's orders as best he could, recognising that he is self-represented, and that the Court should allow latitude to a self-represented litigant attempting to present an appeal under s 44(1) of the AAT Act. The distinction between errors of law and errors of fact is not straightforward, even for those legally trained: see Haritos at [111].

Conclusion 31 In conclusion, I dismiss Mr Orfali's application for an extension of time. Services Australia stated that it did not seek an order for costs and, accordingly, I make no order as to costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan.