Bird, G.J. v The Hon. Free, R - [1995] FCA 366

APPEAL - dismissal for want of prosecution - litigant in person - refusal to submit to the Court's jurisdiction

Federal Court Rules - O. 52 r. 38

Van Reesema v Gaimeos (1979) 27 ALR 525
Muto v Faul [1980] VR 26
Barton v The Queen (1980) 147 CLR 75
Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1994) ATPR 41-315
Birkett v James [1978] AC 297

GEOFFREY JAMES BIRD V THE HONOURABLE ROSS FREE & ORS
No. QG 3 of 1995

SPENDER, EINFELD & COOPER JJ
BRISBANE
4 MAY 1995

IN THE FEDERAL COURT OF AUSTRALIA     )
QUEENSLAND DISTRICT REGISTRY         )    No. QG 3 of 1995
GENERAL DIVISION  )

BETWEEN : GEOFFREY JAMES BIRD
Appellant

AND: THE HONOURABLE ROSS FREE, Minister for Schools, Vocational Education and Training
First Respondent

AND: THE HONOURABLE SIMON CREAN, Minister for Employment, Education and Training
Second Respondent

AND: DEREK VOLKER, Secretary to the Department of Employment, Education and Training
Third Respondent

CORAM:    SPENDER, EINFELD & COOPER JJ
PLACE:    BRISBANE
DATE:     4 MAY 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

The appeal shall be dismissed.

The appellant is to pay the respondents' costs of and incidental to the appeal, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA     )
QUEENSLAND DISTRICT REGISTRY         )    No. QG 3 of 1995
GENERAL DIVISION  )

BETWEEN : GEOFFREY JAMES BIRD
Appellant

AND: THE HONOURABLE ROSS FREE, Minister for Schools, Vocational Education and Training
First Respondent

AND: THE HONOURABLE SIMON CREAN, Minister for Employment, Education and Training
Second Respondent

AND: DEREK VOLKER, Secretary to the Department of Employment, Education and Training
Third Respondent

CORAM:    SPENDER, EINFELD & COOPER JJ
PLACE:    BRISBANE
DATE:     4 MAY 1955

REASONS FOR JUDGMENT

SPENDER J: This appeal arises out of an application filed on 27 September 1994. As filed, the applicant was styled the Australian Union of Students and the respondent was DEET, an acronym for the Department of Employment, Education and Training. Mr Bird filed two notices of motion on 27 September 1994 and a further notice of motion on 12 October 1994. The respondent also filed a notice of motion on 19 October 1994.

On 20 October 1994 Mr Bird applied to Kiefel J that she disqualify herself. It is unnecessary to refer to the grounds on which Mr Bird relied, save to say that they were offensive. The primary judge refused to disqualify herself. An
application for leave to appeal to the Full Court of the Federal Court was refused. The proceedings were adjourned until 26 October 1994. On that day Kiefel J heard a number of the motions and on 14 December 1994, in respect of the principal proceedings, her Honour ordered that the application be dismissed and that Mr Bird pay the respondents' costs of and incidental to the proceedings, to be taxed.

That judgment on 14 December followed the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] FCA 366
Decision Date: 4 MAY 1995

CaseChat Overview and Summary

Geoffrey James Bird brought an appeal against the decision of Kiefel J to dismiss his application for declarations and orders under the Administrative Decisions (Judicial Review) Act 1977 and under section 39B(1) of the Judiciary Act 1903. Bird's appeal was dismissed for want of prosecution. Bird, a student receiving Austudy Benefits, had written to the Department of Employment, Education and Training (DEET) on behalf of the Australian Union of Students, a group he claimed to represent, and which he had suggested could be the subject of a registered trademark. DEET responded that Bird's "log of claims" had no merit. Bird sought to challenge that decision in the Federal Court, but his application was dismissed by Kiefel J on the basis that Bird was not a person aggrieved by the decision, and that he had no reasonable basis for the application. Bird appealed against that decision. The appeal was dismissed for want of prosecution. The Federal Court had the power to dismiss an appeal for want of prosecution in order to avoid injustice, and in this case Bird had not prosecuted his appeal with due diligence. Bird had failed to comply with procedural directions, and had made baseless and insulting allegations against the judges. There was no reasonable arguable case for Bird on appeal.

Orders