Dunkerley v Comcare

Case [2015] FCA 1076

FEDERAL COURT OF AUSTRALIA

Dunkerley v Comcare [2015] FCA 1076

Citation: Dunkerley v Comcare [2015] FCA 1076
Appeal from: Dunkerley v Comcare [2015] FCA 392
Parties: ULLA-MAIJA DUNKERLEY v COMCARE
File number: ACD 44 of 2015
Judge: FLICK J
Date of judgment: 8 October 2015
Catchwords:

PRACTICE AND PROCEDURE – appeal – departure from the manner in which case conducted at first instance – party bound by conduct of case – unrepresented appellant – no reason to permit departure

PRACTICE AND PROCEDURE – model litigant guidelines – no breach  
Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Fair Work Act2009 (Cth), s 394
Federal Court of Australia Act1976 (Cth), ss 25(2B), 25(2B)(bb)(i), 25(2BB), 25(2C), 37AO, 37AO(5)
Judiciary Act 1903 (Cth), s 55ZF
Safety, Rehabilitation and Compensation Act1988 (Cth), s 5A(1)
Federal Court Rules2011 (Cth), rr 36.74, 36.74(1)(a)
Legal Services Directions 2005 (Cth), App B
Cases cited:

Coulton v Holcombe (1986) 162 CLR 1
Dunkerley v Administrative Appeals Tribunal [2012]
FCA 41
Dunkerley v Comcare [2012] FCAFC 132, (2012) 131 ALD 1
Dunkerley v Comcare [2015] FCA 392
Re Dunkerley and Comcare [2010] AATA 915
Re Dunkerley and Comcare [2014] AATA 381
Dunkerley v Department of Industry, Innovation, Science, Research and Tertiary Education [2012] FWA 10220
LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90, (2012) 203 FCR 166
Nyoni v Chee Koon Hee (No 4) [2013] FCA 948
Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333
Metwally v University of Wollongong (1985) 59 ALJR 481
Pavlic v Macquarie Leasing Pty Ltd [2015] FCA 733
Summers v Repatriation Commission [2015] FCAFC 36, (2015) 145 ALD 30
SZNFR v Minister for Immigration and Citizenship [2009] FCA 851

TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175

Date of hearing: 25 August 2015
Place: Sydney (heard in Canberra)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 59
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondent: Mr P G Woulfe
Solicitor for the Respondent: DibbsBarker

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 44 of 2015
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

ULLA-MAIJA DUNKERLEY
Appellant
AND:

COMCARE
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

8 OCTOBER 2015

WHERE MADE:

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Appellant is to pay the costs of the Respondent in respect to the Interlocutory Application filed on 3 August 2015.

3.No order for costs is made in respect to the Interlocutory Application filed on 2 July 2015.

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 44 of 2015
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

ULLA-MAIJA DUNKERLEY
Appellant
AND:

COMCARE
Respondent

JUDGE:

FLICK J

DATE:

8 OCTOBER 2015

PLACE:

SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

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AGLC
Dunkerley v Comcare [2015] FCA 1076
Case
[2015] FCA 1076
Decision Date

CaseChat Overview and Summary

In the case of Dunkerley v Comcare, the Federal Court was called upon to decide an appeal brought forth by Dunkerley against the decision of the primary judge. The appeal focused on procedural shortcomings and the effectiveness of the arguments presented by Dunkerley, who appeared unrepresented. The central legal issues revolved around the adherence to procedural requirements, particularly in the context of an appeal, and whether the arguments presented had any merit.

The court identified several procedural deficiencies in Dunkerley's appeal. Notably, there was a failure to compile an Appeal Book or any equivalent document that outlined the documents necessary for the appeal. Additionally, Dunkerley did not submit an Outline of Submissions by the prescribed deadline, which was meant to clearly articulate the alleged errors made by the primary judge. Even when considering that Dunkerley was unrepresented, the court found that the submissions filed on August 17, 2015, did not identify the questions of law or errors committed by the primary judge with any clarity. Furthermore, none of the 17 grounds of appeal had any merit, and the arguments presented seemed to include new points that had not been previously raised or resolved by the primary judge.

The court exercised its discretion under section 25(2B)(bb)(i) of the Federal Court Act, leading to the dismissal of the appeal. The court emphasized that the procedural rules are essential for ensuring that the appeal's bases are clearly articulated and that the questions to be resolved are well-defined. Given the lack of clarity in Dunkerley’s submissions and the absence of any meritorious arguments, the court found no reason to allow the appeal to proceed. The court also highlighted that being unrepresented does not exempt a party from adhering to procedural requirements, as procedural norms apply equally to all parties.

The court concluded that the appeal should be dismissed and ordered Dunkerley to pay the costs of the respondent for the Interlocutory Application filed on August 3, 2015. No costs order was made for the Interlocutory Application filed on July 2, 2015. The court's decision underscored the importance of procedural compliance and the need for clear, well-supported arguments in appeals.

Orders

Orders of the court

1. The appeal is dismissed.

2. The Appellant is to pay the costs of the Respondent in respect to the Interlocutory Application filed on 3 August 2015.

3. No order for costs is made in respect to the Interlocutory Application filed on 2 July 2015.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The discretion has been exercised by reference to: ·the failure to compile an Appeal Book, or some other compilation of documents howsoever described, upon which the appeal was to proceed; ·the failure to file by the time prescribed an Outline of Submissions which clearly articulated the errors said to have been committed by the primary Judge. Even accepting that Ms Dunkerley is unrepresented, the submissions she filed on 17 August 2015 failed, with respect, to identify either the “questions of law” sought to be raised on appeal from the decision of the Tribunal or the errors said to have been committed by the primary Judge. The documents as then filed, albeit belatedly, with respect failed to comply with the direction to file a document being an outline of “submissions” which addressed with any degree of clarity or in any meaningful way the appellable errors said to have been committed by the primary Judge; and·the failure to identify any Ground of Appeal which has any merit. In essence, it is the combination of these factors that leads to the discretion conferred by s 25(2B)(bb)(i) of the Federal Court Act being exercised adversely to Ms Dunkerley. The object and purpose of an appeal being subject to case management is to ensure that the bases upon which the appeal is to proceed will all be before the Full Court for its consideration and for the questions to be resolved on appeal to be clearly articulated. In the present case, neither the 17 Grounds of Appeal nor the submissions of Ms Dunkerley articulate with any clarity the appellable errors said to have been committed by the primary Judge. Indeed, some Grounds of Appeal would seem to canvass arguments not advanced before – nor resolved by – the primary Judge. Leave to raise such Grounds would, of course, be required. But the submissions filed by Ms Dunkerley are singularly unhelpful in distinguishing between arguments previously relied upon as opposed to proposed fresh Grounds. CONCLUSIONS Although Ms Dunkerley was unrepresented both before the primary Judge and the Court as presently constituted, there is no reason why the normal principles should not be applied. That a party is unrepresented confers no licence to place to one side or to disregard procedural requirements: cf. SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 at [16]; Nyoni v Chee Koon Hee (No 4) [2013] FCA 948 at [11]. If any of the purported Grounds of Appeal had any apparent substance, a different approach could have been taken: cf. VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [48]; MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [101] per Jessup J. Neither the fact that a party is unrepresented, nor the inelegance with which Grounds of Appeal may be expressed, should operate as a bar to a point having some apparent substance being pursued on appeal – including, in an appropriate case, arguments not raised for resolution before the primary Judge. Indeed, it is the function of a Full Court to resolve whether Grounds of Appeal properly advanced should be accepted or rejected. In circumstances where directions to ready an appeal for hearing have in fact been complied with, no occasion for the exercise of the discretion conferred by s 25(2B)(bb)(i) would arise; but even where directions have not been complied with, considerable caution should nevertheless be exercised before dismissing an appeal in circumstances where there is arguable appellable error. Albeit but one of the factors presently taken into account when exercising the discretionary power conferred by s 25(2B)(bb)(i), the fact remains that no argument having any merit emerges in the present appeal – be it from the Grounds of Appeal, Ms Dunkerley’s oral submissions made during the hearing of the present Interlocutory Application or the “submissions” filed belatedly by Ms Dunkerley.

Ratio Decidendi

Legal Principle Established

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