Ascic v Comcare

Case [2022] FCA 1245

FEDERAL COURT OF AUSTRALIA

Ascic v Comcare [2022] FCA 1245

Appeal from: Ascic v Comcare [2021] FCA 1498
File number: WAD 6 of 2022
Judgment of: JACKSON J
Date of judgment: 20 October 2022
Catchwords: PRACTICE AND PROCEDURE - appeal from first‑instance decision of Federal Court - objection to competency and application for dismissal on basis that notice of appeal does not state briefly and specifically grounds of appeal - notice of appeal does not identify any alleged error in primary judgment - minute of proposed amended notice of appeal - only matter with connection to primary judgment not within jurisdiction of Tribunal to consider - no merit to possible appeal ground - leave to amend notice of appeal refused - appeal dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 27

Federal Court of Australia Act 1976 (Cth) ss 24, 25, 28

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 24, 25, 27, 60, 124, 128

Federal Court Rules 1979 (Cth) O 52 r 18

Federal Court Rules 2011 (Cth) rr 36.01, 36.74
Cases cited:

Ali v Chandler Macleod Group Ltd [2016] FCA 1234

Blackman v Australian Telecommunications Corporation (1990) 12 AAR 11

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424

CJR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1599

Commonwealth v Ford (1986) 9 ALD 433

Dauguet v Centrelink [2015] FCA 1212

Giddings v Australian Information Commissioner [2017] FCAFC 225

Lees v Comcare (1999) 56 ALD 84

Singh v Owners Strata Plan No 11723 (No 3) [2012] FCA 1121; (2012) 207 FCR 390

SZTOG v Minister for Immigration and Border Protection [2018] FCA 112

Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773

Zegarac v Dellios [2007] FCAFC 58
Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 52
Date of last submissions: 14 October 2022 (appellant)
Date of hearing: 20 September 2022
Counsel for the Appellant: The appellant appeared in person
Counsel for the Respondent: Ms K Slack
Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

WAD 6 of 2022
BETWEEN:

MARKO ASCIC

Appellant
AND:

COMCARE

Respondent

ORDER MADE BY:

JACKSON J

DATE OF ORDER:

20 OCTOBER 2022

THE COURT ORDERS THAT:

1.Leave to rely on the minute of proposed amended notice of appeal filed on 19 April 2022 is refused.

2.The appeal is dismissed pursuant to r 36.74(1)(b) of the Federal Court Rules 2011 (Cth).

3.The appellant must pay the respondent's costs of the appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

JACKSON J:

Background

  1. Mr Ascic appeals from a first-instance judgment of this Court given under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The primary judgment determined that there was no legal error in a decision of the Administrative Appeals…

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AGLC
Ascic v Comcare [2022] FCA 1245
Case
[2022] FCA 1245
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia was asked to consider an appeal in the case of Ascic v Comcare. The appellant, Mr Ascic, sought to challenge a decision made by Comcare, with the primary focus being on the interpretation and application of the 1988 Act. The appeal was initiated against the backdrop of Mr Ascic's longstanding grievance concerning what he perceived as years of mistreatment. Despite his genuine grievances, the court had to determine whether the appeal was legally competent and whether the notice of appeal sufficiently identified any alleged errors in the primary judgment.

The central legal issue before the court was whether the notice of appeal complied with the requirements under the Federal Court Rules 2011 (Cth). Specifically, the court had to assess whether the notice of appeal identified any appealable errors that connected to the primary judgment. The court examined the notice of appeal to determine if it specified the alleged errors and whether these errors were connected to any aspect of the primary judgment. It was crucial for the court to ensure that the appeal was not merely a vehicle for Mr Ascic to ventilate his grievances without addressing any specific legal errors.

The court found that the notice of appeal was incompetent as it did not specify any appealable errors. The notice broadly criticised the interpretation of the 1988 Act and alleged a conspiracy between Comcare and its advisers, but it failed to pinpoint where and how the primary judge erred in the interpretation of the legislation. The court concluded that the notice of appeal did not connect to any aspect of the primary judgment, and thus, the appeal effectively sought to invoke a jurisdiction the Court did not have. Consequently, the court refused leave to amend the notice of appeal and dismissed the appeal, ordering Mr Ascic to pay Comcare’s costs of the appeal.

Orders

Orders of the court

1. Leave to rely on the minute of proposed amended notice of appeal filed on 19 April 2022 is refused.

2. The appeal is dismissed pursuant to r 36.74(1)(b) of the Federal Court Rules 2011 (Cth).

3. The appellant must pay the respondent's costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Ascic's deep sense of grievance is no doubt genuinely felt, and concerns what he perceives to have been years of ill treatment. But it would be misguided to permit him to ventilate that grievance by granting leave to raise on appeal a point that is of no merit and no utility.Conclusion Leave to amend in terms of the minute of proposed amended notice of appeal is refused and the application to dismiss the appeal is allowed. In those circumstances it is unnecessary to deal with Comcare's application for security for costs in the sum of $25,000. Mr Ascic must pay Comcare's costs of the appeal including the costs of the notice of objection to competency and the interlocutory application.

Ratio Decidendi

Legal Principle Established

In Singh v Owners Strata Plan No 11723 (No 3) [2012] FCA 1121; (2012) 207 FCR 390 at [29], Griffiths J applied the approach in Zegarac to the position under the 2011 Federal Court Rules. At [30]‑[31] his Honour went on to say:Such an approach recognises that, while mere non-compliance with r 36.01 is insufficient to render an appeal incompetent, the position may be different if the notice of appeal is also incomprehensible, as is illustrated by the examples of incomprehensibility cited by North J in the passage from Zegarac set out in [25] above.In determining whether one or more grounds of appeal are incomprehensible, I consider that it is appropriate to approach the task as one of determining whether the notice of appeal, as a matter of substance, specifies appellable errors. If it does not [sic does], as Flick J observed in SZLQW [v Minister for Immigration and Citizenship [2008] FCA 1279] at [9], it may simply be a question as to whether an order should be made dispensing with any requirement to comply with the Rules, as is permitted under r 1.34 of the 2011 Rules. As his Honour also observed, although compliance with the Rules should not be lightly put aside, compliance should not become an 'instrument of oppression'. And, while it is appropriate to make some allowance for the fact that a party is a litigant in person, that fact alone cannot provide a basis for the Court exercising a jurisdiction which it does not have.That is the approach I will apply in this case.Consideration Mr Ascic's notices of appeal and submissions are, with respect, difficult to follow. They contain much material that is irrelevant to any issues that could arise on an appeal from the primary judgment. They also contain much that is scandalous. But I do not think they are incomprehensible. The notice of appeal complains that the line of cases concerning the 1988 Act since Blackman has interpreted the legislation incorrectly. It claims that this is the result of concerted action on the part of Comcare and its advisers and of the Tribunal. It makes some general allusions to justiciability. It is possible to understand all this, at the level at which it is put. The difficulty is, rather, that it is put at such a high level of generality that no error on the part of the primary judge can be identified. As a matter of substance, the notice of appeal does not specify appealable errors. It neither says what the correct construction of the legislation is, nor indicates where and how the primary judge departed from that construction. As a result the notice of appeal is not connected to any aspect of the primary judgment. The issue of justiciability, for example, does not appear to have been raised before the primary judge. It is outside the appellate jurisdiction conferred on the Court - in this case, a jurisdiction to correct error committed by the Court in its original jurisdiction - for the Court to engage in a free ranging exercise to right perceived (and undescribed) wrongs in the construction of the 1988 Act. Yet that is clearly and expressly what Mr Ascic wants the Court to do. That is confirmed by the nature of the orders Mr Ascic seeks, none of which would follow from the identification of any error in the primary judgment. For those reasons, the notice of appeal is incompetent. It effectively seeks to invoke a jurisdiction the Court does not have.