FEDERAL CIRCUIT COURT OF AUSTRALIA
| CREMONA v ADMINISTRATIVE APPEALS TRIBUNAL & ANOR | [2014] FCCA 2412 |
| Catchwords: ADMINISTRATIVE LAW – Application for judicial review of decision of Social Security Appeals Tribunal – SSAT affirmed decision of Centrelink – Applicant’s oral application for adjournment dismissed – Applicant provided no written evidence nor oral submissions in support of application – Court exercised discretion – adequate provision made by any law other than Administrative Decisions (Judicial Review) Act 1977 (Cth) – application for judicial review dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.44(1) Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 6, 7, 10, 10(2)(b)(ii), 46(1)(a) Federal Circuit Court Rules 2001 (Cth), r.33.18 |
| Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 Director-General of Social Services v Chaney (1980) 3 ALD 161 Duncan v Fayle [2004] FCA 723 Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 |
| Applicant: | DAVID CREMONA |
| First Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| Second Respondent: | SECRETARY, DEPARTMENT OF SOCIAL SERVICES |
| File Number: | MLG 611 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 16 October 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 16 October 2014 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Second Respondent: | Ms Heffernan |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The name of the Second Respondent be changed to “Secretary, Department of Social Services”.
The Application for Judicial Review filed 1 April 2014 is dismissed pursuant to s.10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
The Applicant pay the Second Respondent’s costs of the Application for Judicial Review fixed in the sum of $3,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 611 of 2014
| DAVID CREMONA |
Applicant
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
First Respondent
| SECRETARY, DEPARTMENT OF SOCIAL SERVICES |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
The Applicant filed an Originating Application for Judicial Review on 1 April 2014. He attended at Court this day as a litigant in person, but at approximately 10.40am left the courtroom after the Court indicated to him that his adjournment application would not be successful and that the Second Respondent’s Application in a Case filed 10 June 2014 and listed for hearing this day at 10.00am would proceed. The Applicant did not remain to hear the Second Respondent’s case, but indicated upon his departure from the courtroom that he would appeal the decision of the Court.
In respect of the Applicant’s adjournment application, firstly, he argued that there were outstanding subpoena matters. That is not the case. One Subpoena was issued in the proceeding, filed 20 August 2014, and that was filed by the Applicant. It was directed to Ms Elizabeth Anne Shanahan who, in fact, was the presiding Member of the Administrative Appeals Tribunal (‘the Tribunal’) which Tribunal, affirmed the decision before it under review and on 6 March 2014, being a decision in proceedings between the Applicant and the Second Respondent in this proceeding. The Applicant, in that Subpoena, sought that Ms Shanahan attend…
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- Case
- [2014] FCCA 2412
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the interpretation and application of sections 5, 6, and 7 of the ADJR Act, which outline the grounds upon which a person aggrieved by a decision, conduct, or failure to make a decision can seek judicial review. Specifically, the court was required to consider the scope of these provisions, including what constitutes an "improper exercise of power" and the circumstances under which a decision can be challenged for lack of evidence or unreasonable delay.
The court's reasoning focused on the text and purpose of the ADJR Act. It explained that section 5 provides for review of a decision, section 6 for review of conduct related to the making of a decision, and section 7 for review of a failure to make a decision. The court elaborated on the various grounds for review listed in these sections, particularly the expansive definition of "improper exercise of power" in section 5(2) and 6(2), which includes taking irrelevant considerations into account, failing to take relevant considerations into account, and exercising power unreasonably. The court also clarified the conditions under which the ground of "no evidence or other material to justify the making of the decision" could be established under section 5(3) and 6(3).
Orders
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Decision
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