FEDERAL COURT OF AUSTRALIA
Dunkerley v Comcare [2015] FCA 1519
Citation: Dunkerley v Comcare [2015] FCA 1519 Appeal from: Application for extension of time and leave to appeal: Dunkerley v Comcare [2015] FCA 392 Parties: ULLA-MAIJA DUNKERLEY v COMCARE File number: ACD 124 of 2015 Judge: RARES J Date of judgment: 15 December 2015 Catchwords: PRACTICE AND PROCEDURE – application for extension of time and leave to appeal against order of judge exercising appellate jurisdiction under s 25 Federal Court of Australia Act 1976 (Cth) – consideration of court’s power to make orders after proceeding finalised – no basis for perfection of order under r 39.05 or slip rule – consideration of power to set aside or vary order under s 25(2B)(bc) – court functus officio with no power to reopen entered order – where applicant failed to identify any error in earlier decision and application otherwise without merit Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)Cases cited: Bailey v Marinoff (1971) 125 CLR 529
Burrell v The Queen (2008) 238 CLR 218
Dunkerley v Comcare [2015] FCA 1076
Dunkerley v Comcare [2015] FCA 392
House v The King (1936) 55 CLR 499Date of hearing: 15 December 2015 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 12 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Comcare
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 124 of 2015
BETWEEN: ULLA-MAIJA DUNKERLEY
ApplicantAND: COMCARE
Respondent
JUDGE:
RARES J
DATE OF ORDER:
15 DECEMBER 2015
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.The application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 124 of 2015
BETWEEN: ULLA-MAIJA DUNKERLEY
ApplicantAND: COMCARE
Respondent
JUDGE:
RARES J
DATE:
15 DECEMBER 2015
PLACE:
CANBERRA
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
This purports to be an application by Ms Ulla-Maija Dunkerley for an extension of time and leave to appeal against the order made by Flick J on 8 October 2015 dismissing her appeal from the orders made by Perram J on 27 April 2015: Dunkerley v Comcare [2015] FCA 1076. Perram J had ordered that her appeal to the Court from the decision of the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be dismissed with costs: Dunkerley v Comcare [2015] FCA 392.
Flick J exercised the Court’s discretionary powers under s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) and r 36.74(1) of the Federal Court Rules 2011 (Cth) when his Honour made his order of 8 October 2015. That order was entered on 8 October 2015.
Relevantly, s 25(2B)(bb)(i) and (bc) provided that a single judge or a Full Court, when exercising the Court’s appellate jurisdiction, may, first,…
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Details
- AGLC
- Dunkerley v Comcare [2015] FCA 1519
- Case
- [2015] FCA 1519
- Decision Date
CaseChat Overview and Summary
The matter of Dunkerley v Comcare involves an application for an extension of time and leave to appeal against an order of the Federal Court of Australia. The respondent, Comcare, had previously succeeded in an appeal by Ms Dunkerley from a decision of the Administrative Appeals Tribunal, which was dismissed by Flick J. Ms Dunkerley sought an extension of time and leave to appeal against the orders of Flick J, but her application was dismissed. The central legal issue before the court was whether it had the power to make orders after a proceeding had been finalised. Specifically, the court considered whether it had the authority to set aside or vary its previous order dismissing Ms Dunkerley's appeal under section 25(2B)(bc) of the Federal Court of Australia Act 1976.
The court reasoned that once an order has been entered, it generally cannot be reopened except under specific circumstances, such as under rule 39.05 or the inherent power under the slip rule. In this case, there was no basis for invoking either exception. The court highlighted that once an order is perfected, it signifies the end of the court's power to reconsider the matter, as affirmed by the High Court in Burrell v The Queen. The court further noted that Ms Dunkerley had failed to identify any error in the earlier decision and that her application was otherwise without merit. Consequently, the court concluded that it was functus officio and had no power to reopen the entered order.
The court dismissed Ms Dunkerley’s application as incompetent, finding that she had not addressed the deficiencies in her appeal preparation or articulated any valid grounds for the appeal. The court held that Flick J had correctly exercised his discretion in accordance with established principles. The final order of the court was that the application be dismissed with costs.
The court reasoned that once an order has been entered, it generally cannot be reopened except under specific circumstances, such as under rule 39.05 or the inherent power under the slip rule. In this case, there was no basis for invoking either exception. The court highlighted that once an order is perfected, it signifies the end of the court's power to reconsider the matter, as affirmed by the High Court in Burrell v The Queen. The court further noted that Ms Dunkerley had failed to identify any error in the earlier decision and that her application was otherwise without merit. Consequently, the court concluded that it was functus officio and had no power to reopen the entered order.
The court dismissed Ms Dunkerley’s application as incompetent, finding that she had not addressed the deficiencies in her appeal preparation or articulated any valid grounds for the appeal. The court held that Flick J had correctly exercised his discretion in accordance with established principles. The final order of the court was that the application be dismissed with costs.
Orders
Orders of the court
1. The application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Relevantly, s 25(2B)(bb)(i) and (bc) provided that a single judge or a Full Court, when exercising the Court’s appellate jurisdiction, may, first, make an order dismissing an appeal for failure to comply with a direction of the Court and, secondly, vary or set aside such an order. An application under s 25(2B)(bc) must be heard and determined by a single judge, unless, relevantly, a judge directs that it be heard and determined by a Full Court (s 25(2B)(ba)). No such order has been made or would be appropriate.Background Perram J had dismissed Ms Dunkerley’s appeal from the Tribunal’s decision, saying that it was “devoid of merit”. His Honour expressed his view that “the proceedings are beginning to border on the vexatious”: Dunkerley [2015] FCA 392 [22] and [28]. In a reserved judgment, Flick J carefully considered how to exercise his discretion and concluded that, in all of the circumstances, he should make the orders he did on 8 October 2015 for a combination of three factors. First, Ms Dunkerley had failed to compile an appeal book or any other documents that could be used by a Full Court to hear her appeal from Perram J’s decision. In the first case management hearing on 10 June 2015, Flick J had directed that Ms Dunkerley complete an appeal book by 26 June 2015 and file an outline of submissions by 9 July 2015. He listed the appeal for further directions on 21 July 2015. Ms Dunkerley told me today that those were timeframes with which she, as an unrepresented litigant unfamiliar with the appeal processes, was unable to comply. In any case no appeal book was prepared by her at any time prior to the hearing before his Honour on 25 August 2015 that led to his Honour’s orders of 8 October 2015, nor is there an appeal book ready today. Secondly, his Honour reasoned that Ms Dunkerley had failed to comply with his direction to file an outline of submissions articulating clearly what error or errors she alleged there were in Perram J’s decision. Thirdly, Flick J found that Ms Dunkerley had failed to identify any merit in any of the 17 grounds of her notice of appeal: Dunkerley [2015] FCA 1076 [53].The Court’s power to make orders after a proceeding is finalised Ordinarily, the Court has no jurisdiction to re-open an order after it has been entered, except under r 39.05 or its inherent power under the slip rule. No occasion arises on this application to enliven either of those exceptions to the principle of finality. There is no doubt that the orders entered on 8 October 2015 correctly recorded what Flick J intended those orders to achieve, and therefore there is no basis on which r 39.05 or the slip rule could be used to correct those perfected orders. This is demonstrated by what Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ said in Burrell v The Queen (2008) 238 CLR 218 at 224-225 [18]-[21]. They held that the end of a court’s powers to consider and determine a controversy cannot depend on whether one party asserts that the court has made some error in the conclusion that it reached. If that were the criterion, they said, there would never be an end to some disputes. And, they also held that the court’s own belief that it had made an error did not allow it to reopen a decision. Their Honours held that a formal recording of the order a superior court, such as this court, is “the point at which the court’s power to reconsider the matter is at an end”.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ms Dunkerley has made no attempt to rectify what Flick J identified as her defaults in preparing an appeal book or to make any intelligible written submissions or to file a notice of appeal that raised any issue identifying an error of any kind in the reasoning of Perram J that led to his orders dismissing her original appeal from the Tribunal. Nor has she identified any error in what Flick J did in exercising his discretion in accordance with the principles in House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.Conclusion This application must be dismissed as incompetent, with costs.
Ratio Decidendi
Legal Principle Established
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