Clement v Comcare

[2011] FCA 629

FEDERAL COURT OF AUSTRALIA

Clement v Comcare [2011] FCA 629

Citation:

Clement v Comcare [2011] FCA 629

Parties:

KRISTINE CLEMENT v COMCARE

File number:

ACD 18 of 2010

Judge:

STONE J

Date of judgment:

3 June 2011

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Judiciary Act 1903 (Cth) s 39B(1)

National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ss 3(1), 6A(1), 38D,

Cases cited:

Clement v Comcare [2011] FCA 404

Date of hearing:

3 June 2011

Place:

Canberra

Division:

GENERAL DIVISION

Category:

No catchwords

Number of paragraphs:

9

The Applicant appeared in person.

Counsel for the Respondent:

T Begbie

Solicitor for the Respondent:

Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 18 of 2010

BETWEEN:	KRISTINE CLEMENT Applicant
AND:	COMCARE Respondent

JUDGE:	STONE J
DATE OF ORDER:	3 JUNE 2011
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.        The notice of motion filed on 28 April 2011 is dismissed.

2.        The notice of motion filed on 23 May 2011 is dismissed.

3.        There be no order as to costs in relation to either of the notices of motions.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 18 of 2010

BETWEEN:	KRISTINE CLEMENT Applicant
AND:	COMCARE Respondent

JUDGE:	STONE J
DATE:	3 JUNE 2011
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. I have before me two notices of motion which were filed by the applicant, Ms Clement, on 28 April 2011 and 23 May 2011 respectively.  The earlier of the two notices of motion seeks leave to appeal from a decision of Cowdroy J given on 21 April 2011, concerning the application and operation of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act): Clement v Comcare [2011] FCA 404. The later of the two notices of motion seeks a writ of mandamus under s 39B(1) of the Judiciary Act 1903 (Cth) to compel the Commonwealth Attorney-General to “comply with sub-section 38D(5) of the NSI Act”.

2. These notices of motion are brought in the context of the principal proceeding, which involves an application filed under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) on 20 May 2010. The applicant, Kristine Clement contends that the NSI Act applies to the principal proceeding. On 31 May 2010 she served on the Attorney-General a notice that purported to be a notice under s 38D of the NSI Act. The notice was copied to Comcare and to the Court. Section 38D provides:

   (1)If a party, or the legal representative of a party, to a civil proceeding knows or believes that:

   (a)he or she will disclose national security information in the proceeding; or

   (b)a person whom he or she intends to call as a witness in the proceeding…