Druett v Department of Families, Community Services and Indigenous Affairs (No 2)

[2009] FCA 898

FEDERAL COURT OF AUSTRALIA

Druett v Department of Families, Community Services & Indigenous Affairs (No 2) [2009] FCA 898

GARRY KEITH DRUETT v DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS and ADMINISTRATIVE APPEALS TRIBUNAL

NSD 751 of 2007

BENNETT J
11 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 751 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: GARRY KEITH DRUETT
Appellant

AND:

DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	11 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.There be no order as to costs in matter number NSD 751 of 2007.

2.The notice of motion filed on 5 August 2009 be dismissed.

3.There be no order as to costs in relation to the notice of motion filed on 5 August 2009.

4.The Department of Families, Community Services and Indigenous Affairs be removed as a party to the proceedings.

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 751 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: GARRY KEITH DRUETT
Appellant

AND:

DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	11 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BACKGROUND

1. In 2007, the appellant, Mr Druett, filed an application for leave to appeal from a decision of a judge of this Court.  That decision involved an appeal from a decision of the second respondent, the Administrative Appeals Tribunal (‘the Tribunal’).

2. The hearing of Mr Druett’s application took place on 21 May 2007. At the hearing, counsel for the first respondent, the Department of Families, Community Services and Indigenous Affairs (‘the Department’), accepted that leave to appeal was not required. Counsel for the Department also foreshadowed that it would be filing a notice of motion seeking summary judgment pursuant to s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’) and, in the alternative, an order that the Department be removed as a party to the proceedings pursuant to s 25(2B)(a) of the Federal Court Act. The notice of motion was filed on 24 May 2007.

3. The parties made oral submissions regarding the Department’s notice of motion.  I also gave Mr Druett the opportunity to provide further written submissions in relation to the motion.

4. I handed down my decision regarding the Department’s notice of motion on 3 July 2007: Druett v Department of Families, Community Services & Indigenous Affairs [2007] FCA 995. After considering Mr Druett’s notice of appeal, the parties’ submissions and the decisions of the Tribunal and the primary judge, I could see no error of law on the part of the Tribunal or on the part of the primary judge. I concluded that there was no ground of appeal which might be arguable and that the appeal should be summarily dismissed. I also concluded that there was no basis upon which the Department was properly a party to the proceedings and that the Department was entitled to be removed as a party.

5. Accordingly, I ordered that the proceedings be summarily dismissed pursuant to s 25(2B)(aa) of the Federal Court Act. I did not make an order that the Department be removed as a party to the proceedings, as that order was only sought in the alternative to the application for summary dismissal.

6. At the handing down of my decision on 3 July 2007, I indicated that I would hear from the parties as to costs.  The Department indicated that it did not seek costs.  I made a notation to this effect but did not make any formal order as to costs.

   MR DRUETT’S NOTICE OF MOTION

7. On 5 August 2009, Mr Druett filed a notice of motion in these proceedings.  The orders sought by Mr Druett are as follows:

   1.        An order the respondents pay the costs for this notice of motion.

   2.An order the respondents pay the costs for all work done in response to the assumption of care of my four children on 9^th January 1998 and subsequent application to the courts on 14^th of January 1998 including legal work and research, attendances at courts, preparation of materials, filing fees etc.

   3.The respondent to pay the costs for divorce proceedings ref Family Court of Australia.

   4.A review of current care and custody arrangements of Gregory John Druett born on 5^th of August 1993, Nicole Kirrily Druett born on 20^th of May 1994 & Bernice Deidre Druett born on 12^th of December 1995.

   5.        Any further order the court deems fit.

8. The notice of motion was listed for directions on 11 August 2009.  At the directions hearing, I explained to Mr Druett that I had dealt with his appeal in 2007 but had not made any formal orders as to costs.  Accordingly, the only remaining question was the question of costs.  I explained to Mr Druett that, because he had been unsuccessful in the proceedings before me, I could see no basis upon which he would be entitled to obtain a costs order in his favour.  I indicated that, ordinarily, an unsuccessful party is ordered to pay the costs of the successful party but that the Department had not sought costs in respect of its motion for summary dismissal.  Mr Druett did not identify any reasons why he should be awarded his costs of the proceedings before me in 2007.

9. Mr Druett’s notice of motion refers to various other court proceedings and matters for which he seeks costs and other orders.  I asked Mr Druett to explain how it could be said that I have jurisdiction to make the orders sought.  Mr Druett could not do so.  He repeatedly stated ‘[i]t’s all Federal’ and made reference to his dealings with, and complaints to, various organisations but was unable to articulate any basis for the orders sought in his notice of motion, let alone the basis upon which I could make such orders.

10. Accordingly, it is appropriate to order that there be no order as to costs in these proceedings.  Mr Druett’s notice of motion should be dismissed and, on the basis that the Department does not seek its costs in relation to Mr Druett’s motion, an order should be made that there be no order as to the costs of that motion.

11. The Department now presses for an order that it be removed as a party to the proceedings on the basis that it was not a party to the proceedings before the Tribunal.  In view of my conclusion in Druett v Department of Families, Community Services & Indigenous Affairs [2007] FCA 995 that the Department was entitled to be removed as a party to the proceedings, that order should be made.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        17 August 2009

The Appellant appeared in person.
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	11 August 2009
Date of Judgment:	11 August 2009