Case: Rahman v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1634 
Outcome: cited
4 November 2008, Cowdroy J delivered judgment in Rahman v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1634. On that day, his Honour dismissed Mr Rahman's application with costs. On the same day, his Honour delivered his reasons for making those orders. The proceedings before his Honour concerned an application for Austudy payments made by the applicant which was rejected by a delegate of the respondent on the ground that the value of the applicant's net assets exceeded the upper limit for the value of assets allowable under the relevant legislation. The time within which the applicant might have appealed from his Honour's decision expired on 25 November 2008. The applicant did not file any Notice of Appeal by 25 November 2008. On 16 February 2009, the applicant filed an Application for Extension of Time to File and Serve a Notice of Appeal in order to enable him to appeal from the decision of Cowdroy J made on 4 November 2008 ( the present application). That is the application with which I am presently dealing. Par 4 of that Application is in the following terms: (Statement indicating whether the applicant wishes to have application dealt with without an oral hearing.) The applicant's Appeal 'for Leave to whole Appeal application' must be dealt with "Oral Hearing" to defend and established the legitimacy of the challenge for the unlawful and wrong decisions made by Hon Cowdroy J, on 4 November 2008, which emanated from discrimination and of ignorance of Constitutional interpretations of what constitutes "Courts" under Commonwealth of Australian Constitution Act: "Chapter 111 Courts and not Tribunals as Courts" as Cowdroy J and Dale Watson, Solicitor, perceived and with perverse Case Reference, with no evidences of orders as mentioned in the Grounds of Applications to void the Respondent's wrong and false instruments of claims and to validate the applicant's legitimate claims with the relevant enactments. Pursuant to Order 52 Rules 2Ac Summary of Argument, the applicant has submitted defence precisely with legal arguments exemplifying Cowdroy J, decisions are of unlawful, wrong being of without receiving evidence, determining questions of facts, to take into accounts the valid Acts, without proof, perverse of Case References and such failure to deal properly with facts will amount legal error and must be challenge under enactments to uphold-justice. I have quoted par 4 in full. As is clear from par 4 of his Application, the applicant sought an oral hearing of the present application. That hearing took place on Monday last (16 March 2009). At the conclusion of the hearing, I reserved my decision until 9.15 am today. The facts noted in subpars (b) to (g) of [9] above are not disputed for the purposes of the present application. However, the position in respect of the facts referred to in subpar (a) of [9] above is somewhat different. I was informed from the bar table by the solicitor for the respondent that: (a) The hearing before Cowdroy J had concluded by about 11.30 am on 4 November 2008; (b) At the conclusion of that hearing, his Honour announced that he would reserve his decision to 2.15 pm on that day (4 November 2008) at which time he proposed to give his decision and announce his reasons orally; and (c) His Honour then also informed the applicant that he need not wait until 2.15 pm if he did not wish to do so and that, once the oral reasons of his Honour were finalised and engrossed, a copy of the engrossed version of those reasons would be sent by mail to the applicant. The applicant did not challenge this account of what occurred on 4 November 2008. I accept that account of those events. I infer that the applicant attempted to take steps to challenge the judgment of Cowdroy J given on 4 November 2008 when he lodged his Notice of Motion with the Registry on 17 December 2008. However, he became distracted from the task of challenging that judgment when he sought judicial review of the Registrar's decision not to accept his Notice of Motion. He did not file the present application until 16 February 2009. Later in these Reasons, I will deal with the draft Notice of Appeal annexed to the applicant's affidavit. On 13 March 2009, the applicant filed Written Submissions in support of his contention that s 78B of the Judiciary Act was engaged in the present case. In those submissions, the applicant advanced an additional contention that the Social Security Appeals Tribunal and the Administrative Appeals Tribunal " have no authority for judicial reviews " and thus that he had a right to bring and have determined the application which Cowdroy J had dismissed. The applicant further contended that the right which he had to invoke judicial review of the respondent's adverse decision concerning his Austudy claim included an entitlement to have his application heard and determined after a full hearing of his claims. He submitted that his application could not be rejected summarily on discretionary grounds. A summary rejection of his application on discretionary grounds was said to be unconstitutional. I did not detect any additional arguments advanced by the applicant in relation to s 78B during oral submissions. The matter noted at subpar (a) of [27] above is not, in my view, a matter which is covered by s 78B of the Judiciary Act . There is nothing in the Constitution or the Judiciary Act governing the way in which this Court should exercise its appellate jurisdiction. That subject matter is dealt with by Pt III , Div 2 of the Federal Court Act (especially s 24 and s 25). Section 25(2)(b) is in the following terms: 25 Exercise of appellate jurisdiction ... (2) Applications: ... (b) for an extension of time within which to institute an appeal to the Court; or ... may be heard and determined by a single Judge or by a Full Court. The final matter raised by the applicant which I have noted at [27] above does not involve any relevant constitutional question. Whilst he may have a right to seek judicial review of a decision of the type made by the respondent in the present case, that right does not extend so far as to exclude the exercise of a judicial discretion to decline relief summarily in appropriate circumstances (for example, for the reasons determined by Cowdroy J in the present case). For these reasons, I do not think that the present matter involves a matter arising under the Constitution or involves the interpretation of the Constitution . There was and is no warrant for s 78B notices to be issued. Before Cowdroy J, the applicant sought judicial review pursuant to s 5 of the ADJR Act and s 39B of the Judiciary Act of a decision made by Centrelink (an operational arm of the respondent) on 27 March 2008 to reject his application to receive payments under the Austudy scheme. Reasons for that decision were provided by the respondent to the applicant in a letter dated 4 April 2008 sent by the respondent to the applicant. Centrelink had rejected the applicant's claim for Austudy because the total value of his assessed assets exceeded the assets value limit prescribed for Austudy under the relevant legislative provisions. In Rahman [2008] FCA 1634 at [5] , his Honour said: The applicant has provided written submissions to the Court which, together with his application, raise numerous matters. The applicant claims that an ' unlawful act, transgress and abuse of power ' has occurred; that the rules of natural justice have been breached; that the respondent made the decision of 27 March 2008 ' based on forgery and false instruments ' relating to the applicant's financial assets; and that the decision of 27 March 2008 ' involves an error of law and must be void as the determination was affected by into [sic] corroboration of false instruments ' relating to the financial assets of the applicant. The applicant also submits that the respondent's decision constitutes an attempt to disadvantage the applicant's Austudy claim ' by making a statement known to be false or misleading "in a material particular" or made with reckless disregard as to whether it is '. At [11] of his Honour's reasons his Honour held: Under the Social Security (Administration) Act 1999 (Cth) ('the Social Security Act') the applicant has the option of seeking review by an Authorised Review Officer: see ss 129 and 135. If the review proves to be unfavourable to the applicant, he is entitled to appeal to the Social Security Appeals Tribunal: see s 142 of the Social Security Act. From that tribunal the applicant is entitled to seek review in the Administrative Appeals Tribunal: see s 179 of the Social Security Act. The decision of Cowdroy J was a final decision which determined the application before his Honour. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.