Evans v D.F.C.S.
[2003] FMCA 264
•10 June 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EVANS v D.F.C.S. | [2003] FMCA 264 |
| ADMINISTRATIVE LAW – AAT appeal – application for mobility allowance – where the matter had been transferred from the Federal Court to the Federal Magistrates Court – where the applicant has not complied with the orders of Federal Court by not filing a notice of appeal – where applicant wants the matter to be transferred back to Federal Court – matter stood over upon terms due to applicant’s health problems. |
Federal Court Act 1976 (Cth), s.32AB(8)
Federal Magistrates Court Act 1999 (Cth), s.39(6)
Federal Court Rules 1976, O 53 r 7
Administrative Appeals Tribunal Act 1976, s.44
| Applicant: | KIM EVANS |
| Respondent: | SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES |
| File No: | SZ 273 of 2003 |
| Delivered on: | 10 June 2003 |
| Delivered at: | Sydney |
| Hearing date: | 10 June 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | No appearance |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Matter stood out of the list until 10 September 2003.
Applicant may restore matter to list on giving the Court and the Respondent 14 days notice.
In the event that the matter is not so restored on or before
10 September 2003:(a)Substantive application and all other applications dismissed.
(b)Applicant to pay the Respondent’s costs assessed in the sum of $2,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 273 of 2003
| KIM EVANS |
Applicant
And
| SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant, Ms K Evans, seeks to appeal from a decision of the Administrative Appeals Tribunal dated 11 October 2002 under which the Tribunal made a decision unfavourable to the applicant in relation to the date upon which she was entitled to a mobility allowance. The applicant attempted to file a notice of appeal on or about 16 December 2002 which was out of time as s.44 of the Administrative Appeals Tribunal Act 1976 provides:
“ That a party to proceedings before the Tribunal may appeal to the Federal Court of Australia from a decision within 28 days of being notified of the decision.”
The applicant was advised of this problem and of the possibility of her being able to apply under O 53 r 7 of the Federal Court Rules for an extension of the 28 day period.
The applicant made such an application by filing a notice in the appropriate form on 7 February 2003. The application was heard by Tamberlin J on 26 February 2003 and His Honour made the following orders:
“1.Application for an extension of time within which to file an appeal from a decision of the Administrative Appeals Tribunal, granted;
2.The court extends the time for the filing of the appeal from the Administrative Appeals Tribunal decision of 11 October 2002 to 12 March 2003;
3.The matter be transferred to the Federal Magistrates Court. And then THE COURT DIRECTS THAT:
1.The applicant to file a notice of appeal within two weeks from today.”
The applicant was not happy with the order of Tamberlin J. She did not want the case to be transferred to the Federal Magistrates Court. She sought to appeal against the decision of Tamberlin J. Such an appeal is not available (s.32AB(8) of the Federal Court Act 1976 (Cth) and s.39(6) of the Federal Magistrates Court Act 1999 (Cth)). She became confused as to the nature of his Honour's order, believing that the reference to the two week date in which to file a notice of appeal was a two week date in which to file a notice of appeal against his order transferring the matter to this court.
The applicant has been in contact with this court by telephone. She has endeavoured to speak to Tamberlin J. She has spoken at length to his associate. She has endeavoured to speak to me. She has spoken at length to my associate. She has spoken at length to the many Registrars of this court and to other persons in the Registry. Letters have been sent to the applicant explaining the situation. In particular explaining that there is no appeal from the decision of Tamberlin J but that she could apply to this court to retransfer the matter to the Federal Court.
It was explained to the applicant how this could be done and eventually such an application was made. The application was due to be heard on 28 April 2003. But on 24 April 2003 the court received from the applicant a fax and a copy of a medical certificate from Dr R Karalasinghan. On 29 April 2003 the court wrote to the applicant advising her that the application had been stood over until 9.30 am on Tuesday, 10 June 2003. This date was a date after the expiry of the time indicated in the medical certificate during which the applicant would be unfit.
On 10 June 2003 the court received a telephone call from the applicant advising it that she was still unfit and that she would be faxing in a further doctor's certificate. I pause to say that the court had previously arranged for the applicant to attend by telephone. She advised that she did not wish to attend the court in person.
In deciding what to do about this matter the court must balance the need to provide the applicant with a forum to hear her appeal with the needs of the respondent for certainty in relation to the decision made and the need of the court to conduct its affairs efficiently. I note that notwithstanding the order of Tamberlin J the applicant has not filed a notice of appeal and consequently she is in breach of his order and is out of time to make such an application.
I have decided that the best way to progress this matter is to place a final time limit upon the applicant, but in recognition of her health problems to give her the opportunity to come back to the court at a time of her choosing within that time limit. The respondent has indicated that if it is given 14 days notice, at least, of such an application it can meet it.
I therefore propose to stand the matter out of the list until 10 September 2003 during which time it may be restored by the applicant giving 14 days notice to the court and the respondent's solicitors that she wishes it to be restored. The court will then fix a date for the hearing of her application to re-transfer the matter and to deal with the failure to file the notice of appeal. In the event that the applicant does not make an application to restore the matter for hearing before 10 September 2003 the proceedings and all of them will be dismissed and the applicant will pay the respondent's costs, which I assess in the sum of $2,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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