Burgess v Centrelink - [2007] FCA 595

FEDERAL COURT OF AUSTRALIA
Burgess v Centrelink [2007] FCA 595
PRACTICE AND PROCEDURE – consideration of an application for security for costs of an appeal from a decision of a Federal Magistrate – consideration of the principles to be applied – consideration of the circumstance that the controversy is one between a citizen and the executive
Social Security Act (1991)
Social Security (Administration) Act 1999
Federal Court of Australia Act (1976), s 56
Federal Court Rules, O 28, O52, r 20
Burgess v Centrelink and Ors [2006] FMCA 1952 - cited
Carey-Hazell v Getz Brothers & Co (Aust) Pty Ltd [2004] FCA 1334 - cited
Cooper v Universal Music Australia Pty Ltd [2006] FCA 642 - cited
Equity Access v Westpac Banking Corporation (1989) ATPR 40-972 – cited
KP Cable Investments Pty Ltd v Melt Glow Pty Ltd (1995) 56 FCR 189 - cited
DARREN JOHN BURGESS v CENTRELINK, SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS AND SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
QUD34 OF 2007
GREENWOOD J
24 APRIL 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD34 OF 2007

BETWEEN:

DARREN JOHN BURGESS
Applicant/Appellant

AND:

CENTRELINK
First Respondent

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Second Respondent

SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Third Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

24 APRIL 2007

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.Darren John Burgess provide security for the costs of the respondents of and incidental to an appeal from a decision of Federal Magistrate Wilson made on 18 December 2006 dismissing an application by Darren John Burgess for an extension of time to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal given on 6 September 2006 in an amount of $2,000.

2.The appeal the subject of the notice of appeal filed by Darren John Burgess on 22 January 2007 is stayed until security in accordance with Order 1 is provided by Darren John Burgess or until further order.

3.Each party has liberty to apply to the court on seven days notice to the other.

4.Darren John Burgess is to pay the costs of the respondents (being the applicants on the notice of motion) of and incidental to the notice of motion filed 5 April 2007.

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

QUD34 OF 2007

BETWEEN:

DARREN JOHN BURGESS
Applicant/Appellant

AND:

CENTRELINK
First Respondent

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Second Respondent

SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Third Respondent

JUDGE:

GREENWOOD J

DATE:

24 APRIL 2007

PLACE:

BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

The applicants on the motion for an order for security for costs, namely Centrelink, the Secretary of the Department of Employment and Workplace Relations, and the Secretary, Department of Families, Community Services and Indigenous Affairs are the respondents to an appeal to 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.

Continue reading Burgess v Centrelink

Details

AGLC: Burgess v Centrelink [2007] FCA 595
Case: [2007] FCA 595
Decision Date: 24 APRIL 2007

CaseChat Overview and Summary

Burgess v Centrelink involved Darren John Burgess, who sought an extension of time to file and serve a notice of appeal against a decision made by the Administrative Appeals Tribunal on 6 September 2006. The Federal Magistrates Court, presided over by Federal Magistrate Wilson, dismissed Burgess's application for an extension of time on 18 December 2006. Burgess subsequently filed a notice of appeal on 22 January 2007. The respondents in the case, Centrelink, applied to the court for an order that Burgess provide security for costs and to stay the appeal until such security was provided.

The legal issues before the court were whether Burgess should be required to provide security for the costs of the appeal and whether the appeal should be stayed until such security was provided. The court considered the relevant provisions of the Federal Court of Australia Act 1976 and the court’s inherent jurisdiction to manage its own proceedings. The court also examined the precedents and principles relevant to the granting of security for costs in the context of appeals from the Administrative Appeals Tribunal.

In its decision, the court held that Burgess should provide security for the costs of the respondents in the amount of $2,000. The court found that the appeal should be stayed until such security was provided, citing the potential financial burden on the respondents if the appeal were to proceed without assurance of costs recovery. The court also ordered that Burgess pay the costs of the respondents in relation to the notice of motion. The orders provided each party with the liberty to apply to the court for further directions.

The court issued several orders, including that Burgess provide security for costs in the amount of $2,000, that the appeal be stayed until such security was provided, and that Burgess pay the respondents' costs of the notice of motion. Each party was granted liberty to apply to the court for further orders.

Orders

Orders of the court

1. Darren John Burgess provide security for the costs of the respondents of and incidental to an appeal from a decision of Federal Magistrate Wilson made on 18 December 2006 dismissing an application by Darren John Burgess for an extension of time to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal given on 6 September 2006 in an amount of $2,000.

2. The appeal the subject of the notice of appeal filed by Darren John Burgess on 22 January 2007 is stayed until security in accordance with Order 1 is provided by Darren John Burgess or until further order.

3. Each party has liberty to apply to the court on seven days notice to the other.

4. Darren John Burgess is to pay the costs of the respondents (being the applicants on the notice of motion) of and incidental to the notice of motion filed 5 April 2007.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GREENWOOD J

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Ratio Decidendi

Legal Principle Established

Established by: GREENWOOD J

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IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD34 OF 2007

JUDGE:	GREENWOOD J
DATE OF ORDER:	24 APRIL 2007
WHERE MADE:	BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD34 OF 2007

JUDGE:	GREENWOOD J
DATE:	24 APRIL 2007
PLACE:	BRISBANE