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Duncan v Hotop

Duncan v Hotop

Case [2004] FCA 274 22 March 2004

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FEDERAL COURT OF AUSTRALIA
Duncan v Hotop [2004] FCA 274
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 10(2)(b)(ii)
Federal Court of Australia Act 1976 (Cth) s 50
Duncan v Hotop [2002] FMCA 56 affirmed
Federal Commissioner of Taxation v Raptis (1989) 89 ATC 4994 cited
Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 cited
Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 cited
Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 cited
IAN LAURENCE DUNCAN v ASSOCIATE PROFESSOR SD HOTOP, SENIOR MEMBER, ADMINISTRATIVE APPEALS TRIBUNAL and THE SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
W170 of 2003
RD NICHOLSON J
22 MARCH 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W170 OF 2003

BETWEEN:

IAN LAURENCE DUNCAN
APPLICANT

AND:

ASSOCIATE PROFESSOR SD HOTOP
SENIOR MEMBER
ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENT

THE SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
SECOND RESPONDENT

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

22 MARCH 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time within which to file a notice of appeal be refused.
2.The applicant’s application for a confidentiality order pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) be refused.
3.The applicant pay the costs of the first and second respondents of these applications.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W170 OF 2003

BETWEEN:

IAN LAURENCE DUNCAN
APPLICANT

AND:

ASSOCIATE PROFESSOR SD HOTOP
SENIOR MEMBER
ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENT

THE SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
SECOND RESPONDENT

JUDGE:

RD NICHOLSON J

DATE:

22 MARCH 2004

PLACE:

PERTH

REASONS FOR JUDGMENT

On 30 May 2002 the applicant filed an application for extension of time within which to file and serve a notice of appeal together with submissions. The application related to a judgment of Federal Magistrate McInnis given on 9 May 2002 at Melbourne: Duncan v Hotop [2002] FMCA 56. The application was made on the 21^st day after the pronouncement of the judgment. The applicant stated in his supporting affidavit that he was an unrepresented litigant applying for legal assistance and that the judgment addressed matters of public interest and in his submission identified reasonable grounds for a viable appeal. The inference is that it was filed to extend the appeal period in order that the applicant would have the time within which to settle grounds of appeal.
On 11 June 2002 directions were made in relation to obtaining the applicant legal assistance. In the directions the central proposition on which the advice of pro bono counsel was sought pursuant to O 80 r 4 of the Federal Court Rules was identified as the following:
‘That the issue of fact which the applicant seeks to raise…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Duncan v Hotop

Details

AGLC: Duncan v Hotop [2004] FCA 274
Case: [2004] FCA 274
Decision Date: 22 MARCH 2004

CaseChat Overview and Summary

In the Federal Court of Australia, Duncan brought an application against Hotop, the Commonwealth, and the Director of Public Prosecutions. The applicant sought an extension of time to file a notice of appeal against a decision of the Federal Court that had dismissed his appeal from a decision of the High Court. Duncan also sought a confidentiality order in relation to the appeal.

The court was required to decide whether an extension of time to file a notice of appeal was warranted, and whether a confidentiality order was appropriate in the circumstances. The court noted that the applicant had not provided a satisfactory explanation for his delay in filing the notice of appeal, and that there were no exceptional circumstances that would justify an extension of time. The court also found that the applicant had not demonstrated a sufficient need for confidentiality to warrant the making of a confidentiality order.

The court refused the applicant’s application for an extension of time and for a confidentiality order. The court ordered that the applicant pay the costs of the first and second respondents.

Orders

Orders of the court

1. The applicant’s application for an extension of time within which to file a notice of appeal be refused.

2. The applicant’s application for a confidentiality order pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) be refused.

3. The applicant pay the costs of the first and second respondents of these applications.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Duncan v Hotop [2004] FCA 274

Most Recent Citation

Lawrance v Centrelink [2005] FCA 1318

Cases citing this decision · 8 of 8 shown

Yao v Administrative Appeals Tribunal
[2011] FCA 11 Para 11

…wever, that, in general, the expression “question of law” in s 44 encompasses the grounds available under s 5 of the ADJR Act: Duncan v Hotop [2004] FCA 274 at [10] per RD Nicholson J.…
Ugur v Commissioner of Australian Federal Police
[2010] FCA 303 Para 19

…t "[g]enerally speaking the words 'question of law' in s 44 of the AAT Act encompass the grounds available under s 5 of the ADJR Act": Duncan v Hotop [2004] FCA 274 per RD Nicholson J at [10]. In my view, given the circumstances of the case, the relief claimed, the fact that the applicant is unrepresented and the…
Duncan v Chief Executive Officer Centrelink
[2008] FMCA 810 Para 1

…olving Mr Duncan and Centrelink.[3] [1] “Appeal”. [2] “ AAT Act”. [3] See, for example, Duncan v Hotop & DFACS [2002] FMCA 56; Duncan v Hotop [2004] FCA 274; Duncan v Fayle [2004] FCA 723; Duncan v Administrative Appeals Tribunal (No 2) [2004] FCA 1258 ; Duncan v Secretary, Department of Family and Community [200…
Lawrance v Chief Executive Officer, CRS Australia
[2006] FCA 341

…: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Brackenberg (1995) 56 FCR 335 at 349 ( v Comcare) ; Duncan v Hotop [2004] FCA 274 at para 9.…
Sobczuk v Commissioner of Taxation
[2006] FMCA 13 Para 6

…Similar conclusions have been reached in other cases, conveniently collected in Duncan v Hotop [2004] FCA 274 where R D Nicholson J said: 10. Generally speaking the words ‘question of law’ in s 44 of the AAT Act encompass the grounds available under s 5 of the ADJR Act. This appears from the authorities referred…
Lawrance v Centrelink
[2005] FCA 1318 Para 8

…ng its finding? Parks Holdings P/L v CEO of Customs [2004] FCA 820 at paras 62 and 66 Telstra v Slater [2001] FCA 149 at para 48 Duncan v Hotop [2004] FCA 274, at paras 9 & 10 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, per Deane J at 368.’…
KROUSHEV v Secretary Dfacs
[2004] FMCA 299 Para 5

…It is useful to set out the following paragraphs from the decision of Nicholson J in Duncan v Hotop [2004] FCA 274: “10. Generally speaking the words ‘question of law’ in s44 of the AAT Act encompass the grounds available under s5 of the ADJR Act. This appears from the authorities referred to by his Honour: Tuite…
FIREW v Busways TRUST (No.2)
[2003] FMCA 317 Para 19

…submissions and other authorities to which reference has been made by the respondent, including other decisions this court has made in the matter of Duncan v Hotop v Anor (2002) 68 ALD 758 and Bruch v Commonwealth of Australia [2002] FMCA 29, that in this case it is an appropriate exercise of the court's discretion, for the r…

View all 8 citing cases →

Cases cited in this decision · 6 of 6 shown

Deputy Commissioner of Taxation v Raptis
[2021] FCA 1192 Para 9

…learly, itself, an erroneous submission. The Tribunal will have made an error of law if there is no evidence to support a conclusion of fact: Federal Commissioner of Taxation v Raptis (1989) 89 ATC 4994 per Gummow J at 4996 and cases cited there.…
Percerep v Minister for Immigration and Multicultural Affairs
[1998] FCA 1088 Para 8

…asonable decision-maker could have come to it”. 14. I was further referred to the decision of Weinberg J in Percerep v Minister for Immigration (1998) 86 FCR 483. At page 495 the Court referred to the view that had been expressed by Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 385 that the juri…
Narellan Pools Pty Ltd v Compass Ceramic Composite Pty Ltd
[1995] FCA 1137 Para 8

…igration (1998) 86 FCR 483. At page 495 the Court referred to the view that had been expressed by Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 385 that the jurisdiction of the Federal Court pursuant to s 44 of the AAT Act did not permit the reception of further evidence which was not before the…
Tuite v Administrative Appeals Tribunal
[1993] FCA 113 Para 8

…fairness.” 16. At page 496 Weinberg J cites with approval the observations of Davies J in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 where the court there held that an application brought under the ADJR Act to review a decision of the tribunal was misconceived and s 44 of the AAT Act was the appropria…
Duncan v Hotop & DFACS
[2002] FMCA 56 Para 1

…ppeal together with submissions. The application related to a judgment of Federal Magistrate McInnis given on 9 May 2002 at Melbourne: Duncan v Hotop [2002] FMCA 56. The application was made on the 21 st day after the pronouncement of the judgment. The applicant stated in his supporting affidavit that he was an u…
Sharp Corporation of Australia Pty Ltd v Collector of Customs
[1995] FCA 707 Para 8

…his attention in submissions and did so in the following terms: ‘13. I have been referred to the decision of the Full Court of the Federal Court in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 where the Full Court said at page 12, “Even so, in any particular decision, although the decision may be a factual one, all the usual grounds…

Legislation cited in this decision · 5

Administrative Decisions (Judicial Review) Act 1977 (Cth)
10(2)(b)(ii), 5 3 mentions (from Para 2)
Administrative Appeals Tribunal Act 1975 (Cth)
44 2 mentions (from Para 6)
Federal Court of Australia Act 1976 (Cth)
50 2 mentions (from Para 15)
Federal Magistrates Court Rules 2001 (Cth)
1 mention (from Para 4)
Freedom of Information Act 1982 (Cth)
1 mention (from Para 4)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W170 OF 2003

BETWEEN:	IAN LAURENCE DUNCAN APPLICANT
AND:	ASSOCIATE PROFESSOR SD HOTOP SENIOR MEMBER ADMINISTRATIVE APPEALS TRIBUNAL FIRST RESPONDENT THE SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES SECOND RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	22 MARCH 2004
WHERE MADE:	PERTH

JUDGE:	RD NICHOLSON J
DATE:	22 MARCH 2004
PLACE:	PERTH