Balding v Department of Family and Community Services

[1999] FCA 1863

FEDERAL COURT OF AUSTRALIA

Balding v Department of Family & Community Services [1999] FCA 1863

PRACTICE & PROCEDURE/COSTS – summary dismissal of purported appeal from AAT – whether appropriate to make costs order against applicant for social services.

DAVID JOHN BALDING v DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

N630 of 1999

BURCHETT J
SYDNEY
17 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N630 of 1999

BETWEEN:	DAVID JOHN BALDING Applicant
AND:	DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Respondent

JUDGE:	BURCHETT J
DATE:	17 DECEMBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This matter has been brought before the Court by the applicant, David John Balding, by what is described as a notice of appeal filed 24 June 1999.  It may be that the document so described could not properly have been lodged without the obtaining first of an extension of time, having regard to the date of the decision of the Administrative Appeals Tribunal to which it relates, but I do not pause to determine that because of other difficulties.  The application to the Administrative Appeals Tribunal was itself an application, not of a substantive character, but for an extension of time to bring an application to review a decision of the Social Security Appeals Tribunal which had been given long before.  The chronology is that the decision of that Tribunal was given on 15 May 1998, and the application for extension of time to bring the matter before the Administrative Appeals Tribunal is dated 8 April 1999.

2. On 19 May 1999, the order now in question was made by a senior member of the Administrative Appeals Tribunal, who refused an extension of time.  It does not appear that any sufficient explanation had been given to the senior member of the very long delay from the making of the application.  It does appear that the principal evidence in support of the substantive claim sought to be pursued by Mr Balding had not been obtained at the time of the decision of the Social Security Appeals Tribunal, but it was obtained well before the application for an extension of time - to be precise, on 30 November 1998.

3. Having read the medical report of 30 November 1998, and the decision of the Social Security Appeals Tribunal, I cannot avoid the impression that there might well be, on a fresh application, a real question whether the applicant’s condition does not justify some success.  However, it is not for this Court to determine the facts.  Furthermore, I have not seen the evidence which might, for all I know, be adduced to the contrary, and, most importantly, no fresh application has in fact been made.  Rather, what the applicant has sought to do is to achieve a review by this Court of the discretionary decision of the Administrative Appeals Tribunal to refuse an extension of time.

4. There is simply no basis put forward for any contention that the Administrative Appeals Tribunal was guilty of any error of law in reaching its decision, and Mr Balding has at no time appeared to prosecute his application to this Court, despite being clearly warned that an application would be made for its dismissal for non-prosecution if he failed to take any appropriate steps.  In the circumstances, it seems to me that there is only one course which I can pursue.  I must, and I do, dismiss the application made to this Court by Mr Balding, both on the ground of its non-prosecution and on the ground that no basis for the challenge made to the decision of the Administrative Appeals Tribunal appears on the face of the proceedings.

5. The Department seeks an order for its costs.  Costs orders in administrative law matters stand in a somewhat different position from costs orders in various other types of litigation.  The Administrative Appeals Tribunal could not make and did not make any costs order:  Kimberly-Clark Ltd v Commissioner of Patents (No 2) (1988) 13 IPR 551 at 568. The administration of the social services provided for persons often at disadvantage in obtaining legal assistance, and often handicapped in relation to the conduct of their own proceedings, is special in a particular respect. Government has accepted a responsibility to administer those services. It seems to me the evidence put before me clearly enough shows that Mr Balding may well suffer from some disability, and he appears to live at a substantial distance - the address shown on the notice of motion on which the Department moves is 56 Wisemans Ferry Road, Spencer. I think I can take judicial notice that Spencer is a place from which travel to the Court would be quite a lengthy and arduous exercise. The medical evidence, of Dr Baz, certainly suggests that for the applicant it might also be a painful exercise, and that there might be practical problems, depending on his condition on any particular day, in his personally attending. Of course, if he is unable to attend for medical reasons, it is his responsibility to make some contact with the Australian Government Solicitor or the Court, or both, and he has not done so. Nevertheless, I take those matters into account, and I think it is not appropriate to make any order as to costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.

Associate:

Dated:             5 January 2000

There was no appearance of the Applicant
Solicitor for the Respondent:	Mr G Peek of the Australian Government Solicitor
Date of Hearing:	17 December 1999
Date of Judgment:	17 December 1999