Herring v Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] FCA 1392

FEDERAL COURT OF AUSTRALIA

Herring v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] FCA 1392

CICERO HERRING v SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
NSD 915 OF 2007

ALLSOP J
31 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 915 OF 2007

BETWEEN:	CICERO HERRING Applicant
AND:	SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	31 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion be dismissed.

2.     The applicant pay the respondent’s costs of the motion

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 915 OF 2007

BETWEEN:	CICERO HERRING Applicant
AND:	SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent

JUDGE:	ALLSOP J
DATE:	31 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, which has been set down for hearing on 3 October 2007 at 10.15 am, I made orders on 13 July 2007 for the preparation of the matter.  Order 1 made on that day was that on or before 3 August 2007, the respondent file and serve a paginated and indexed bundle of documents and any affidavit upon which he or she will seek to rely at the hearing.  The order also identified one document which should be in that bundle.

2. The bundle was not filed in accordance with the order on that day, rather it was filed on 6 August 2007, the next business day, being the Monday after Friday, 3 August 2007.  On 23 August 2007, the applicant filed a motion in this Court seeking to have the bundle of documents “dismissed” on the grounds of default. 

3. An affidavit was read in support of the motion which, in effect, complained of the failure to comply with the order of the Court, and which stated in an annexure that the respondent had previously in the Administrative Appeals Tribunal not complied with orders, and asking for “judicial fairness and justice” to strike out the bundle of documents. 

4. No prejudice has been identified in the evidence filed by the applicant, nor in any submission.  I note that the applicant tendered a letter from the Australian Government Solicitors signed by Ms Watson dated 29 August 2007, in which Ms Watson stated the following:

   1.We refer to the notice of motion which you have filed and which is returnable on 31 August 2007.

   2.It would appear that you are concerned that the bundle of documents which we were directed to file by 3 August 2007, being a Friday was not, in fact, filed until 6 August 2007.  We can assure you that this was not as a result of any deliberate action on behalf of the respondent, but was the result of the documents not being photocopied in time to have been filed by the time the registry closed on 3 August 2007.  Arrangements were made for them to be filed on the next day that the registry was opened.

   3.While the delay is regrettable, we do not consider that such a short delay could have significantly prejudiced you in the preparation of this case, noting that the hearing is not until 3 October 2007.  Furthermore, the documents which we have filed are documents which, in the normal course of events, you as the appellant would have been responsible for filing in support of your appeal. However, the Court in this instance directed the respondent to prepare such documents.

   4.In the circumstances, we would ask that you give consideration to withdrawing your notice of motion.

5. As can be seen from the terms of that letter, the Australian Government Solicitor informed the applicant that the matter of the late filing was the result of photocopying difficulties.  Ms Watson expressed her view, perfectly correctly, that the delay was regrettable, but she did not consider that there had been any prejudice. The letter, in effect, invited the applicant to identify any prejudice.  None has been identified.

6. Orders of this Court, by way of directions, are often not complied with.  That is very often a most regrettable and serious event.  However, what is being sought here for an oversight by those at the Australian Government Solicitor is an order that the bundle be “dismissed”.  What that means, I do not understand, given that the hearing is over a month away and is an administrative law hearing based on what occurred in the Tribunal below.  I do not see the point of the motion, with great respect to the applicant.  Indeed, with respect to the applicant, it is, on its face, a waste of time.

7. Therefore, I dismiss the motion and I will order that the applicant pay the respondent’s costs of the motion.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop J.

Associate:
Dated:       4 September 2007

The Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 August 2007
Date of Judgment:	31 August 2007