Gradara v Secretary, Department of Family and Community Services

[2003] FCA 365

FEDERAL COURT OF AUSTRALIA

Gradara v Secretary, Department of Family & Community Services

[2003] FCA 365

TARCISIO GRADARA v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
V 127 of 2003

GRAY J
14 APRIL 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 127 of 2003

BETWEEN:	TARCISIO GRADARA APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	14 APRIL 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. There be no order as to the costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 127 of 2003

BETWEEN:	TARCISIO GRADARA APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGE:	GRAY J
DATE:	14 APRIL 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 13 March 2003 the applicant, Mr Gradara, filed in the Court documents that seemed to suggest that he wished to appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The documents were a notice of appeal in accordance with form 55A in Sch 1 to the Federal Court Rules, and an affidavit.  Other documents were filed subsequently, on 1 April 2003.

2. The documents were not served on the respondent, which is named as Family and Community Services, Southgate, HWT Tower, 40 City Road.  Through the good offices of my associate, contact was made with the Australian Government Solicitor, who confirmed that there had been no service of the documents.  However, Mr Lockett from the Australian Government Solicitor has appeared today at the first directions hearing, on behalf of the putative respondent, the Secretary to the Department of Family and Community Services, on whose behalf a notice of appearance has been filed.

3. A reading of the notice of appeal and the documents filed makes it unclear precisely what grievance Mr Gradara has in relation to the decision of the Administrative Appeals Tribunal.  I have read the reasons for decision in the matter, which were given on 26 February 2003.  I have also listened to what Mr Gradara has told me today.

4. It appears that the complaint of Mr Gradara arises from a desire that he had to apply for payment under the Bonus for Older Australians scheme.  At one office of Centrelink, he was given the wrong form.  He was given the form to register for the Pension Bonus scheme, which is a form applicable to those not already receiving the aged pension.  Mr Gradara does receive the aged pension.  In the result, a form was not lodged until well after the date by which it was necessary to lodge an application to receive the Bonus for Older Australians.

5. In the Tribunal’s reasons there is a finding of fact in Mr Gradara’s favour, that he obtained the wrong form from an office of Centrelink.  It appears also from documents handed up today that Mr Gradara currently has a claim on foot for customer compensation from Centrelink in respect of the wrong advice that he was given.  It appears from what he said to me that, if he is to receive compensation, he will regard his grievance as having been satisfied.  It is not possible for me to have anything to do with the processing of that claim for compensation at the present time, and certainly not in the context of this proceeding.

6. By s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), an appeal only lies to this Court from the Tribunal on a question of law. There is no question of law apparent on the face of the documents already filed. Mr Gradara has conceded orally that he does not contend that the Tribunal made any error of law. He has suggested to me that I should keep the proceeding alive until such time as the compensation claim is dealt with. I have indicated to him that that would not be a proper reason to keep the proceeding alive.

7. The alternatives are that he lodge a notice of appeal stating a question of law and the proceeding remains alive (in which case, if Mr Gradara loses it, he may be liable for costs), and the dismissal of the proceeding today (in which case Mr Lockett has indicated that the respondent will not seek an order for costs).

8. In the circumstances, it seems to me to be appropriate that I dismiss the proceeding today.  I have not been able to detect any error of law in my own reading of the reasons for the decision of the Tribunal.  Mr Gradara concedes that there is no error of law on the part of the Tribunal.  It would be unfortunate for him if he were to receive compensation from Centrelink, but at the same time to incur liability for costs of a proceeding in the Court that appears to be without any foundation or any prospect of success.

9. Accordingly, I propose to dismiss the proceeding.  Acting on the basis that Mr Lockett has indicated to me that the respondent will not seek any order for costs, I will make no such order.

10. The orders of the Court will be that:

    1. The appeal be dismissed.

    2. There be no order as to the costs of the appeal.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated:             24 April 2003

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 April 2003
Date of Judgment:	14 April 2003