Dayal v Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education
[2013] FCA 1037
•11 October 2013
FEDERAL COURT OF AUSTRALIA
Dayal v Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education [2013] FCA 1037
Citation: Dayal v Secretary, Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education [2013] FCA 1037
Appeal from: Application for extension of time: Dayal and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 787 Parties: PRABHU DAYAL v THE SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, CLIMATE CHANGE, SCIENCE, RESEARCH AND TERTIARY EDUCATION and THE SECRETARY, DEPARTMENT OF HUMAN SERVICES File number:
VID 620 of 2013
Judge: TRACEY J Date of judgment: 11 October 2013 Catchwords: SOCIAL SECURITY – application for extension of time to appeal AAT decision – whether AAT erred in affirming decision refusing entitlement of Austudy payments
PRACTICE AND PROCEDURE – interlocutory application seeking summary dismissal of application and the appeal be dismissed – whether party in default under
r 5.22 of the Federal Court Rules 2011 (Cth) – application refused – appeal dismissedLegislation: Administrative Appeals Tribunal Act 1975 (Cth) – s 44
Federal Court Rules 2011 (Cth) – rr 5.22, 5.23, 33.12, 33.13, 33.32
Social Security (Administration) Act 1999 (Cth) – s 152Cases cited: Comcare v Etheridge (2006) 149 FCR 522 – considered
Dayal v Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 787 – cited
Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 – consideredDate of hearing: 11 October 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: The applicant did not appear Counsel for the First Respondent: Mr D Brown Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 620 of 2013
BETWEEN: PRABHU DAYAL
ApplicantAND: THE SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, CLIMATE CHANGE, SCIENCE, RESEARCH AND TERTIARY EDUCATION
First RespondentTHE SECRETARY, DEPARTMENT OF HUMAN SERVICES
Second RespondentJUDGE:
TRACEY J
DATE OF ORDER:
11 OCTOBER 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time within which to commence an appeal be refused.
2.The proceeding be dismissed.
3.The applicant pay the respondent’s costs of the application for an extension of time and the respondent’s costs of its interlocutory application filed on 18 September 2013.
4.The Secretary, Department of Social Services be substituted as respondent in lieu of the first and second respondents.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 620 of 2013
BETWEEN: PRABHU DAYAL
ApplicantAND: THE SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, CLIMATE CHANGE, SCIENCE, RESEARCH AND TERTIARY EDUCATION
First RespondentTHE SECRETARY, DEPARTMENT OF HUMAN SERVICES
Second RespondentJUDGE:
TRACEY J
DATE:
11 OCTOBER 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is the third time on which this application has been called on. As occurred on the two previous occasions the applicant, Mr Prabhu Dayal, has failed to appear despite being given notice of the hearing. Given his absence it is necessary that I provide somewhat more detailed reasons for my decision than might otherwise have been necessary in order to ensure that he understands the reasons which have led me to dismiss his application.
On 28 June 2011, Mr Dayal, lodged a claim for Austudy payments with Centrelink. Centrelink refused the application. Mr Dayal sought internal review of the decision to refuse his application. The internal review affirmed the original decision.
On 4 June 2012 Mr Dayal lodged an application for review of the decision in the Social Security Appeals Tribunal (“the SSAT”). On 9 July 2012 the SSAT affirmed the decision under review. The SSAT’s decision was not based on the merits of the application. It was founded on the fact that Mr Dayal’s application had been lodged out of time. Mr Dayal did not attend the hearing before the SSAT.
On 18 July 2012 Mr Dayal applied to the Administrative Appeals Tribunal (“the AAT”) seeking a further review of the Centrelink decision. On 13 November 2012 the AAT affirmed the decision of Centrelink: see Dayal v Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 787.
The substantial reason for the AAT’s decision was that, because Mr Dayal’s application to the SSAT had been brought out of time, neither the SSAT, nor the AAT could make a decision in his favour (even if the original decision were found to be wrong) which would have accorded him any benefit. This was because s 152(4) of the Social Security (Administration) Act 1999 (Cth) provided that, if an application were made to the SSAT for review of a decision made over 13 weeks earlier, any favourable decision of the SSAT could only have prospective operation from the day on which the application was received by the SSAT. On that date Mr Dayal was no longer pursuing tertiary studies and was, therefore, on no view, eligible for Austudy payments. The AAT’s decision was made on the papers because Mr Dayal indicated that he did not wish to attend a hearing.
On 1 July 2013 Mr Dayal lodged an application for an extension of time within which he could appeal to this Court from the AAT’s decision: see Rule 33.13 of the Federal Court Rules 2011 (Cth) (“the Rules”). This application was necessary because the time limit for lodging an appeal, prescribed by s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) had long since expired. The application for an extension of time was accompanied by a draft notice of appeal: see Rule 33.13(2)(d). Although Mr Dayal also filed an affidavit, that affidavit did not contain any explanation of why the appeal had not been filed within time: see Rule 33.13(2)(c)(ii).
Mr Dayal did not serve copies of any of the documents which he filed on the respondents.
The application was listed for hearing on 10 July 2013. Mr Dayal did not attend. In his absence I made orders requiring him to serve copies of his application, his notice of appeal and his supporting affidavit on the respondents on or before 19 July 2013. I adjourned the hearing of his application for an extension of time until 2 August 2013.
Mr Dayal did not comply with the order that he serve copies of the relevant documents on the respondents on or before 19 July 2013. Nor has he since done so.
Prior to 2 August 2013 Mr Dayal advised my chambers that he did not propose to appear on 2 August 2013 and wanted his application dealt with “on the papers”.
As foreshadowed, he did not appear on 2 August 2013. I adjourned the further hearing until today.
In the meantime the respondents have filed an interlocutory application seeking summary dismissal of the application pursuant to Rule 5.23 of the Rules. The respondents have also sought an order under Rule 33.32 of the Rules that the appeal be dismissed.
Rule 5.23(1) of the Rules provides that, if an applicant is in default, a respondent may apply for an order that the proceeding be dismissed. A party is in default if the party fails to do an act required by the Rules to be done, fails to comply with an order of the Court or fails to attend a hearing: see Rule 5.22.
The respondents have pointed to a series of failures on the part of Mr Dayal which, they contend, constitute defaults. They are his failures to:
·Effect service of the extension of time application, the notice of appeal and the supporting affidavit as required by Part 10 and Rule 33.12(4) of the Rules;
·Comply with the order made on 10 July 2013 that these documents be served on the respondents;
·Appear at the hearings on 10 July 2013 and 2 August 2013; and
·Prosecute the extension of time application with due diligence.
I am conscious of the disabilities under which Mr Dayal, as an unrepresented litigant in person, labours. Nonetheless, he is, as all litigants are, bound to comply with the Rules and orders of the Court unless relieved of his obligations by the Court. He does not dispute that he is in default in the ways alleged by the respondents. Nor has he made any attempt to explain the delay of over seven months between the handing down of the AAT’s decision and the making of his application to this Court.
The power of summary dismissal is not to be exercised lightly. I have, therefore, carefully read the reasons for the AAT’s decision. I can detect no error in them. On the contrary, they are plainly correct. In this context I note that Mr Dayal’s draft notice of appeal contains no questions of law (see s 44(1) of the AAT Act) and invites the Court to make factual findings favourable to him. Lest there be any confusion I note that Mr Dayal’s draft notice of appeal does contain what purport to be questions of law. None of those questions is, however, a true question of law: cf Comcare v Etheridge (2006) 149 FCR 522; Hussain v Minister for Foreign Affairs (2008) 169 FCR 241.
In these circumstances the application must be refused and the purported appeal dismissed. The respondents should have their costs of the application by Mr Dayal and their costs of their interlocutory application.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 11 October 2013
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