Ibarcena v Secretary, Department of Family and Community Services

[2001] FCA 198

FEDERAL COURT OF AUSTRALIA

Ibarcena v Secretary, Department of Family & Community Services
[2001] FCA 198

JEREMY PATRICK IBARCENA v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

A1 of 2001

MADGWICK J
23 FEBRUARY 2001
SYDNEY (VIA VIDEOLINK WITH CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A1 of 2001

BETWEEN:	JEREMY PATRICK IBARCENA APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	23 FEBRUARY 2001
WHERE MADE:	SYDNEY (VIA VIDEOLINK WITH CANBERRA)

THE COURT ORDERS THAT:

1.The Notice of Motion be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A1 of 2001

BETWEEN:	JEREMY PATRICK IBARCENA APPLICANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGE:	MADGWICK J
DATE:	23 FEBRUARY 2001
PLACE:	SYDNEY (VIA VIDEOLINK WITH CANBERRA)

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:  

1. In this matter the applicant seeks interlocutory orders as follows:

   “1.Pursuant Order 25 rule 1 as INTERLOCUTORY INJUNCTION (URGENT RELIEF) and Order 52 rule 17(2), The Court order to the respondent to provide accommodation with security of tenure for the family.

   2.Replace bedding furniture and tables and chairs lost as a consequence of the said action.

   3.Such other orders as the Court shall deem fit.”

2. The substantive proceedings are an "appeal" from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 22 December 2000, whereby the Tribunal affirmed a decision of a delegate of the respondent.

3. As the record of the first day's hearing of this matter will show, in my opinion there may well be some legal basis for questioning the correctness of the respondent's original decision as well as the Tribunal’s decision to affirm that original decision.  However, the point that concerned me is not taken in the substantive proceedings, which are really based, on my present prima facie impression, on a mistaken and pernickety view of the applicant’s supposed rights under the Privacy Act1988 (Cth).

4. It is perfectly clear that the Court has no power to make the orders sought in paras (1) and (2) of the Notice of Motion. 

5. The question arises, given the applicant’s persistent references to the financial hardship of himself and his family, their apparently greatly reduced living circumstances and the likelihood that, if the applicant complied with the lawful requirements of the respondent's Department and completed applications for what, it is common ground, that he and his family may well be entitled to have, whether the Court should, nevertheless, fashion some other order for interlocutory relief.

6. With a view to trying to achieve some practical financial assistance from the Department for the applicant and his family I inquired, without objection, into the matter to some extent.  The Department, at my request, made available to instruct their legal representative, a senior, capable and sympathetic legal officer.  There are limits beyond which a judge cannot go, but it seemed to me that there was some chance that the applicant might be induced to forego reliance on a dubious legal claim, in favour of achieving an administrative solution which would be a great amelioration of his financial position.  Accordingly, I directed that the parties submit to mediation by an experienced officer of this Court and Deputy District Registrar Tesoriero disrupted his own schedule to undertake that mediation.  However, it was unsuccessful. 

7. It emerges today that the applicant is unprepared to provide the reasonable information that the Department requires to process his application.  Whether it is reasonable or not, the law requires that it be provided.  Hundreds of thousands of other people in Australia manage to comply with these requirements without it coming to general notice that to do so involves oppression of them.  My impression of the matter is that the applicant, quite unreasonably, prefers to run his dubious legal arguments than to take practical steps which might render these proceedings practically nugatory and enable settlement on terms which, I would be confident, would not include an order for costs against him. 

8. In these circumstances, there is no warrant for the Court to stretch such scope as there may be for creativity in seeking to fashion an interlocutory remedy within power which might exceptionally be granted, despite the apparent weakness of the applicant’s legal case as he conceives and intends to present it.

9. In these circumstances the Notice of Motion will be dismissed.  Against the possibility, despite all I have said, that commonsense might yet prevail, instead of making a costs order against the applicant, I will reserve the costs of the application. 

10. The matter will be referred to the ACT District Registrar to arrange further directions for the hearing of the substantive proceedings.

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

Associate:

Dated:             6 March 2001

Applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 and 23 February 2001
Date of Judgment:	23 February 2001