Burgess v Secretary, Department of Social Services

[2014] FCA 194

FEDERAL COURT OF AUSTRALIA

Burgess v Secretary, Department of Social Services [2014] FCA 194

Citation:

Burgess v Secretary, Department of Social Services [2014] FCA 194

Parties:

DARREN JOHN BURGESS v SECRETARY, DEPARTMENT OF SOCIAL SERVICES

File number:

NSD 2550 of 2013

Judge:

ROBERTSON J

Date of judgment:

6 March 2014

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 42A(4)
Social Security (Administration) Act 1999 (Cth) s 181

Federal Court Rules 2011 (Cth) rr 5.22, 5.23(1)(b)(i)

Date of hearing:

6 March 2014

Place:

Sydney

Division:

GENERAL DIVISION

Category:

No Catchwords

Number of paragraphs:

6

Counsel for the Applicant:

The applicant did not appear

Solicitor for the Respondent:

Mr D McLaren of Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2550 of 2013

BETWEEN:	DARREN JOHN BURGESS Applicant
AND:	SECRETARY, DEPARTMENT OF SOCIAL SERVICES Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	6 MARCH 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to rule 5.23 of the Federal Court Rules 2011 (Cth), the proceeding be dismissed in whole immediately.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2550 of 2013

BETWEEN:	DARREN JOHN BURGESS Applicant
AND:	SECRETARY, DEPARTMENT OF SOCIAL SERVICES Respondent

JUDGE:	ROBERTSON J
DATE:	6 MARCH 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The proceedings in this Court have been brought ostensibly as an appeal on a question of law from a decision of the Administrative Appeals Tribunal (AAT). That Tribunal decided that it did not have jurisdiction in the absence of a decision of the Social Security Appeals Tribunal (SSAT), in light of s 181 of the Social Security (Administration) Act 1999 (Cth), which provides that the AAT may only review a decision that has been reviewed by the SSAT. On 4 November 2013 Deputy President Hack dismissed Mr Burgess’ application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

2. In this Court, the matter was listed for first directions on 5 February 2014. There was then no appearance on the part of the applicant and I made orders that the matter be listed for directions on 6 March 2014 and the respondent notify the applicant that the matter had been so listed. I also ordered that the respondent notify the applicant of the question that had been discussed on the last occasion, which is whether there had been the review contemplated by s 181 of the Social Security (Administration) Act.

3. I am satisfied that the orders that I made, directed to the respondent on 5 February 2014, have been complied with and there is before me a letter dated 5 February 2014 notifying the applicant of the matters that had been discussed, in particular this question of s 181, and also informing the applicant that if he did not appear on 6 March 2014, it was quite likely that his appeal would be dismissed.

4. This morning the applicant again did not appear and Mr McLaren who appears for the respondent Secretary applies under r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) for the proceeding to be dismissed in whole immediately on the basis that the applicant is in default within the meaning of r 5.22.

5. I have noted and taken into account the contents of the letter from the applicant, Mr Burgess, to the solicitors for the respondent, but there is no material in that letter that suggests in any cogent way that there has been a review of the decision in question by the SSAT.

6. I am satisfied that the applicant is in default and that in the circumstances of this case the proceeding should be dismissed in whole immediately. I so order. The order that I make is that pursuant to rule 5.23 of the Federal Court Rules, the proceeding be dismissed in whole immediately.  Mr McLaren for the respondent did not seek costs and I make no costs order.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:       10 March 2014