Rahman v Secretary, Department of Education, Employment and Workplace Relations

The Relevant Principles 49 The decision of Cowdroy J was a final decision which determined the application before his Honour. 50 Accordingly, the applicant had a right to appeal from that decision provided that he did so within the time limited by the Federal Court Rules for such an appeal. 51 Order 52 r 15 of the Federal Court Rules is in the following terms: Time for filing and serving notice of appeal 15(1) The notice of appeal shall be filed and served: (a) within 21 days after: (i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or (iii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. (3) An application for leave under subrule (2) must: (a) be in accordance with Form 54A; and (b) include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing; and (c) be accompanied by an affidavit setting out: (i) the nature of the matter; and (ii) the factual and legal issues in dispute; and (iii) the reasons why leave should be given. (4) If a respondent objects to an application being dealt with without an oral hearing, the respondent must: (a) file a notice to this effect; and (b) serve a copy of the notice on each other party to the application. 52 It is clear that the applicant did not file a Notice of Appeal within the time limited for an appeal from Cowdroy J's decision viz by 25 November 2008. 53 Accordingly, the applicant must satisfy the test for leave to file and serve a Notice of Appeal out of time embodied in O 52 r 15(2) of the Federal Court Rules. That subsection requires that "special reasons" must exist which justify the grant of such leave. 54 In Parker v The Queen [2002] FCAFC 133, at [6] in the reasons of the Court, a Full Court of this Court said: 6 In the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matters which attracted his Honour's attention were set out at 348-349: 1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time; 2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; 3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; 4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and 5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted. 55 In the same case, their Honours reviewed a number of other authorities which explained the basis upon which the Court will exercise its discretion to extend time for a litigant to appeal from a judgment of a single judge of the Court. Their Honours made clear that the overriding consideration is the interests of justice. 56 The prima facie strength of the proposed appeal needs to be considered. 57 There must also be an acceptable explanation for the delay (QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7]). 58 Even where special reasons can be identified, the Court has a discretion to grant or refuse to grant the extension of time sought (per Branson J in Howard v Australian Electoral Commission [2000] FCA 1767 at [7]. In Howard [2000] FCA 1767 at [7], Branson J also said: Factors to be taken into account in the exercise of the discretion include the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed ground of appeal (Jess v Scott at 188).

Consideration 59 The applicant has not complied with O 52 r 15(3) of the Federal Court Rules. The affidavit sworn by him and filed in support of the present application does not address the matters required to be addressed by subrules (3)(c)(i) to (iii) of O 52 r 15. This non-compliance is a matter of substance not merely a matter of form. There are good reasons why the Court needs evidence going to the matters referred to in that subsection. Generally speaking, the Court should insist upon such evidence being tendered at the hearing of applications of this sort. 60 There are suggestions in the affidavit filed by the applicant in support of the present application that, at least from 17 December 2008, he was endeavouring to make an application for leave to file a Notice of Appeal out of time but was having difficulty ascertaining precisely how to do this. It must be remembered that he did not make an appropriate application until the middle of February 2009. 61 The evidence which might support such a conclusion is somewhat scant. In my view, it falls short of what would be required to make good such a contention. 62 As I have already observed there is no explanation or no satisfactory or sufficient explanation for the delay between 25 November 2008 and 14 December 2008. It must also be remembered that the applicant chose to absent himself from Court at 2.15 pm on 4 November 2008 when Cowdroy J delivered his oral judgment. If the applicant had attended Court on that occasion, he would have known then and there that his application had been dismissed by his Honour and would also have been apprised of the reasons given by his Honour for the orders which he then made. The applicant's failure to attend at Court on that occasion contributed to his failure to lodge his Notice of Appeal within time. 63 However, I will assume, for the moment, in favour of the applicant that, at all times since 14 December 2008, he has been genuinely and diligently trying to make application to the Court for leave to file a Notice of Appeal from the judgment of Cowdroy J out of time. He did not, in fact, file the necessary application until 16 February 2009. I will make the assumption to which I have referred in order to give full consideration to the remaining factors referred to in Parker [2002] FCAFC 133 and to the interests of justice in the present case. 64 The delay might not weigh heavily against the applicant in the present case if the applicant were able to persuade me that his appeal had some prospect of success and that, to deny him his right of appeal, would be to cause him serious injustice. 65 For the moment, I will also assume that the delay referred to has been satisfactorily explained or, alternatively, is not of such duration as to weigh heavily in the balance against the grant of the leave sought. 66 I will now consider the strength of the appeal foreshadowed in the draft Notice of Appeal attached to the applicant's affidavit. 67 I have noted at [41], [42] and [46] above the grounds of appeal which I have been able to distil from that draft Notice of Appeal and the additional matters raised by the applicant in oral argument. 68 The first of these grounds involves the contention that his Honour's discretion miscarried when his Honour declined to entertain fully the applicant's application for judicial review. 69 I think that his Honour correctly encapsulated the principles from McGowan 129 FCR 118 and Transport Workers' Union of New South Wales 166 FCR 108 and that it was plainly open to his Honour to exercise his discretion in the manner in which he did. Unless it could be established that his Honour applied the wrong principles or invoked the correct principles but applied them in an obviously incorrect way, his Honour's exercise of discretion could not be overturned on appeal. The decision which his Honour made was clearly open to him especially as the gravamen of the applicant's complaint against the respondent concerned the valuation of his assets made by the respondent. This was a matter apt for merits review. His Honour correctly identified the merits review pathways open to the applicant. Further, the approach which his Honour took was advocated to his Honour by the respondent both in the written submissions made on behalf of the respondent to his Honour and in oral submissions made during the hearing which took place before his Honour. Notice of that approach was fairly given to the applicant. For these reasons, in this case, the applicant has failed to demonstrate that he has any prospect of establishing that Cowdroy J committed error of the relevant kind. This ground is hopeless. 70 As to the second ground of appeal (the contention that the decision under review before his Honour had not, in fact, been made by the Secretary of the relevant Department), given the approach which his Honour took to the application before him, his Honour was not called upon to decide this point and did not do so. His Honour was either right or wrong in the approach which he took. At [69] above, I have held that his Honour's decision was based upon a correct appreciation of the relevant principles and would not be disturbed on appeal. A consideration of the point now raised formed no part of his Honour's reasoning. If, contrary to these views, it is necessary to consider this ground of appeal for the purposes of the present application, I will now do so. 71 The relevant decision was made by a delegate of the respondent and not by the respondent personally. As far as I can tell, the applicant tendered no evidence before his Honour that would support a submission that the person who actually made the relevant decision did not have the power to do so. In order for such a contention to have succeeded, the applicant would need to have proven that the relevant decision maker had no authority to make the decision which he or she made. There is no evidence at all to suggest that this was the case. Nor is there any substance in the applicant's contention that the relevant decision had to be made by the respondent personally and, therefore, that the power to make that decision in the present case could not be validly delegated. 72 As to the third ground of appeal (no power in the respondent to investigate the applicant's claim), I do not think that this contention can possibly succeed. Section 192 of the Social Security (Administration) Act 1999 (Cth) gives ample power to the respondent to gather information for the purpose of considering whether a person who has made a claim for a social security payment is or was qualified for the payment. Further, the respondent is required to assess a claim for a social security payment and is not bound to accept such a claim on its face as being valid without investigation. This ground cannot be sustained. 73 As to the fourth ground (the subpoena ground), it is very difficult to understand the applicant's complaint in relation to the subpoena issued by him. The applicant did issue a subpoena to the respondent. Technical objections were taken to it. Nonetheless, at a listing which took place before 4 November 2008, the respondent did his best to produce the documents called for by the subpoena. No further call under the subpoena was made during the hearing before Cowdroy J. No application was made to Cowdroy J in respect of the production provided by the respondent in answer to the subpoena. There is no substance in this ground. 74 As to the final ground of appeal (actual bias), I am not prepared to regard that ground as having any substance whatsoever in the absence of some evidence tending to support the various assertions of bias made by the applicant. The assertions which underpin this broad ground of appeal constitute very serious allegations against a judge of this Court. They must be distinctly made and, even at this early stage, must be demonstrated to have some proper basis both in fact and in law. Such allegations ought not be made in a Notice of Appeal or in a draft Notice of Appeal as bare assertions unsupported by any evidence whatsoever. 75 In SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668, after reviewing a number of relevant authorities, von Doussa J said (at [38]): In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party's interests such as a hostile attitude throughout the hearing (Sun Zhan Qui at 135 referring to Gooliah v Minister of Citizenship and Immigration (1967) 63 DLR (2d) 224), or a failure to enquire into and to obtain readily available and important information relating to central matters for determination (Sun Zhan Qui, and SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 at [26] - [27]) an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias. 76 I well appreciate that I am not presently dealing with an appeal from the judgment of Cowdroy J. I have under consideration the grant of an indulgence to the applicant, ie whether he should be permitted to file a Notice of Appeal out of time. A factor in my consideration of the present application, however, is the strength of the proposed appeal. In my view, in considering that aspect of the matter for the purposes of the present application, if allegations of this nature are to be made, I am entitled and, indeed, obliged, to require much more from the applicant than mere assertions made by him unsupported by any evidentiary material. 77 In an application such as the present application, the Court will require admissible and probative evidence in support of such serious allegations before it will regard those allegations as having any substance at all. 78 The nature and extent of that evidence will depend upon all of the circumstances of the case, including the seriousness of the allegations; the identity of the person against whom they are made; the circumstances in which they are made; and the time at which they are made. 79 There is no evidence before me which would support the allegations of bias sought to be made by the applicant in the present case. In my view, no weight should be given to the bald assertion made by the applicant that his Honour was biased against him. This is particularly so when one of the reasons for this alleged actual bias is said to be racial prejudice. This Court should not permit allegations of that kind to be bandied about unless, even at this early stage, some proper basis for them is established to the satisfaction of the Court. 80 In those circumstances, I do not think that the grounds of appeal foreshadowed in the draft Notice of Appeal have any prospects of success. To allow a Notice of Appeal to be filed in the form of the applicant's draft Notice of Appeal, would be to do no more than to allow unsubstantiated, unsupported and scandalous allegations to be made against a judge of this Court. I am not prepared to give the applicant free rein to conduct litigation in this way. 81 In my view, no "special reasons" exist for the grant of leave sought in this case. The delay in filing the Notice of Appeal has not been satisfactorily explained; the requirements of the Rules of Court have been ignored; and there is no substance in the appeal in any event. The interests of justice are served by refusing the leave sought by the applicant. 82 I propose to dismiss the Application with costs. 83 I make the following orders: 1. Order that the Application be dismissed. 2. Order that the applicant pay the respondent's costs of and incidental to the Application. I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate: Dated: 18 March 2009 The Applicant appeared in person

Solicitor for the Respondent: Ms DJ Watson of Australian Government Solicitor