Dunn v Secretary, Department of Family and Community Services

[2005] FCA 567

FEDERAL COURT OF AUSTRALIA

Dunn v Secretary, Department of Family & Community Services [2005] FCA 567

GARY DUNN and FRANCES CLAIRE FORD v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

QUD 44 OF 2005

DOWSETT J
26 APRIL 2005
CAIRNS

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 44 OF 2005

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	GARY DUNN and FRANCES CLAIRE FORD APPLICANTS
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	26 APRIL 2005
WHERE MADE:	CAIRNS

THE COURT ORDERS THAT:

1.The application for an extension of time and the notice of appeal be struck out.

2.The applicants pay the respondent’s costs of today’s hearing and of the proceedings generally.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 44 OF 2005

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	GARY DUNN and FRANCES CLAIRE FORD APPLICANTS
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGE:	DOWSETT J
DATE:	26 APRIL 2005
PLACE:	CAIRNS

REASONS FOR JUDGMENT

1. A considerable amount of time has been taken up in discussing procedural aspects of this matter. In the end, however, it seems to me that s 44(3) Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) does not in terms require that an appeal from a Presidential Member go to a Full Court although, as I understand the practice of the Court, it is normally a question which is considered by the Chief Justice. I am not presently addressing the merits of the appeal. I am addressing only the question of whether the notice of appeal is, on its face, bad for failing to raise a question of law. The matter is not within the appellate jurisdiction of the Court. It is within its first instance jurisdiction. In my view, I have power to prevent an abuse of process of the Court by entertaining this application and disposing of it.

2. I note that only the first-named applicant, Mr Dunn, has appeared today.  Ms Ford has not appeared, apparently because she is unable to do so.  She has been notified of the hearing date, and I understand that an affidavit of service will be filed in due course.  I act on that basis.  Any order made today will not be taken out until such time as the affidavit has been filed. 

3. The circumstances in which the present proceedings arise appear from the affidavit of Ms Hamilton, and from the attached reasons of Mr Muller. The present applicants simply refused to proceed before Mr Muller, allegedly because proceedings were not being held in private. They both withdrew from the room. Mr Muller had little choice but to dispose of the matter upon the basis that they were not proceeding with their case. He dismissed the applications pursuant to s 42A of the AAT Act. It is asserted that the applicants had been told by an officer of the Tribunal that the hearing would be in private. However it is common ground that Mr Muller told them that this was not to be the case. According to Mr Dunn he also pointed out that if anybody had told the applicants to the contrary, they had no authority to do so. It is clear that the applicants were not, in any sense, misled into leaving the room. They did so voluntarily. It is impossible to identify any error of law, either by using one’s imagination or by reference to the notice of appeal. In those circumstances the appeal is incompetent.

4. There is also an application for an extension of time, apparently filed on the basis that the notice of appeal may have been out of time.  It probably was not.  In any event, as there is no suggestion that the proposed appeal, the subject of the application for extension of time, differs from that identified in the notice of appeal, the application for an extension should also be struck out.

5. Both the application for an extension of time and the notice of appeal will be struck out.  I order that the applicants pay the respondent’s costs of today and of the proceedings.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett .

Associate:

Dated:            6 May 2005

Counsel for the Applicants:	Mr Dunn appeared in person. Ms Ford did not appear.
Solicitor for the Respondent:	Australian Government  Solicitor
Date of Hearing:	26 April 2005
Date of Judgment:	26 April 2005