James, Douglas Frederick Vernon v Department of Social Security

[1997] FCA 1150

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 48  of   1997

BETWEEN:	DOUGLAS FREDERICK VERNON JAMES APPLICANT
AND:	DEPARTMENT OF SOCIAL SECURITY RESPONDENT
JUDGE(S):		SPENDER J
DATE OF ORDER:		16 OCTOBER 1997
WHERE MADE:		BRISBANE

THE COURT ORDERS THAT:

The application be dismissed with no order as to costs.

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	QG 48 of 1997

BETWEEN:	DOUGLAS FREDERICK VERNON JAMES APPLICANT
AND:	DEPARTMENT OF SOCIAL SECURITY RESPONDENT

JUDGE(S):	SPENDER J
DATE:	16 OCTOBER 1997
PLACE:	BRISBANE

REASONS FOR JUDGMENT

This is an application for an extension of time to file and serve a notice of appeal from two decisions of the Administrative Appeals Tribunal (‘the AAT’).  The first decision was given by Deputy President Breen (D P Breen’) on 7 October 1988 (‘the first decision’), and the second was given on 2 June 1994 by a senior member and two members of the AAT (‘the second decision’).

In each case an extension of time is required because the notice of appeal was not filed and served within the time limited by s 44 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). Section 44 of that Act relevantly provides in subs (1):

A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

Subsection 2A provides:

An appeal by a person under subsection (1)...shall be instituted:

(a)not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and

(b)in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.

Section 44(3) confers jurisdiction on this court to hear and determine appeals instituted here in accordance with s 44(1) and subs 4 provides that:

The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

Mr James is appearing for himself on these applications.  I have therefore carefully considered all of the matters that have been raised in the material or which might have been raised on a view of that material by someone experienced in the law.  I have made extensive inquiries of all the documents that are presently available to the court.

The proper approach of the Federal Court in reviewing decisions of the AAT is one of restraint.  In Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (New South Wales) (1980) 47 FLR 131, Fisher J, a member of the Full Court of the Federal Court, said at 145:

It is my firm view that this Court when hearing appeals…