Kedzierska, C. v Comcare

[1993] FCA 504

JUDGb!ENT No. ........ ........ .. ........ ... 507 / 9 3

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) NO. NG 216 of 1993
)
GENERAL DIVISION	)

CECYLIA KEDZIERSKA

Applicant

COMCARE

Res~ondent

Coram :	Whitlam J.
Date:	20 May 1993
Place :	Sydney

- R

(EX TEMPORE)

The applicant filed a "notice of appeal"

on 14 April 1993 seeking to appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 18 March 1993. This is the first directions hearing.

The applicant appears in person and Mr Wilson, solicitor, appears for the respondent. At the outset I raised the question of the form of the notice of appeal and what appeared to be deficiencies in it. Mr Wilson intimated that, in the circumstances, the respondent did not seek to strike out the notice of appeal. I construed this position as being taken with a degree of tenderness in mind towards the applicant, who suffers from an anxiety disorder for which she receives

compensation, and with a view to ensuring that, if there was	any possibility that an appeal could be properly litigated in
nervous disorders and professes no extensive formal education, is obviously a fairly intelligent woman. She appeared, when she took a moment fox reflection, to be able to understand what was being put to her by me and to be able, when she concentrated, to answer directly. She of course remains under a significant disadvantage, not being a lawyer, in defending the institution of proceedings in what is not always a very easy area of law.
It is necessary initially to say something about the nature of proceedings where an applicant seeks to invoke a right of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 ("the Act"). The matter is extensively dealt with in a judgment of Ryan J in Australian Telecommunications Cor~oration v Lambroalou, (1990) 12 AAR 515. I respectfully adopt, particularly, what his Honour says about the way in which the jurisdiction of this Court must be invoked. The Court has power to strike out the whole of a notice of appeal which does not disclose a question of law.
As his Honour observed, "the general power conferred by 0 53 r 15(1) is wide enough to allow the Court to strike out the
whole or part of a notice of appeal under s 44" of the Act (at 519) and that, in any event, "such a power is conferred by s 23 of the Federal Court of Australia Act or exists as part of the inherent jurisdiction of the Court" (at 520).
The most important thing that is emphasized in his Honour's judgment is this: that the existence of a question of the misapprehension before the Trlbunal as she has continued to do before me today that the mere statement of matters by her from the bar table in the well of the hearing room at the tribunal, or in the well of this court room, could make matters relevant to the subject matter of determination before the Tribunal, or before the Court in the consideration of this notice of appeal. Notwithstanding the frustration that the applicant obviously feels in relation to her treatment by the respondent and, indeed, by her former employer, the CSIRO, it is apparent that upon reflection in her more lucid moments she is conscious of the limited nature of the proceedings at any given time before the Tribunal and, indeed, before this Court. So much became apparent during the debate before me when she attempted to defend the form of the notice of appeal.
The notice of appeal identifies what it describes as three questions of law in paragraph 2, which are expanded in paragraphs 2.1, 2.2 and 2.3. Subsequently, the applicant filed in the Registry what were described as supplementary
none of these notices sought to amend the questions of law notices of appeal on 19 April, 10 May and 14 May. However, identified by the applicant in paragraph 2 of the notice of appeal.
The first question of law that the applicant identified was one which evidently related to the tax instalment deductions withheld by the respondent, particularly the rate of deduction. It is apparent from the very nature of the is that there was some deliberate behaviour on the part of the respondent which disadvantaged the applicant in the consideration of her clalm. Again, as appears from the material before the Tribunal and from its decision, this is not a matter which was in any way before the Tribunal.
The notice of appeal in all respects must accordingly be struck out. The grounds set out offend mightily against the requirements of the prescribed form since they do not in any way set out grounds which would sustain the orders sought in paragraph 3. They are in narrative form, argumentative and go into detail of evidence and canvass no doubt many of the dealings that the applicant has had with the respondent and with her former employer over the years. For the reasons given by Ryan J in Lambroalou, with which I have already indicated I respectfully agree, it would not be in any event appropriate to trawl through those grounds to identify material from which could be extracted questions of law. The obligation to identify the questions of law is mandatory. It
must necessarily be done properly to invoke the jurisdiction of the Court. The notice of appeal must be struck out.
At the end of what must have been for him a very trying day Mr Wilson does not seek an order for costs. He has been subjected at the bar table, and I have no doubt outside the courtroom, to unpleasant and irrational and very unfair behaviour by the applicant. That represents a considerable concession on the part of the respondent who is charged with would have been forthcoming. In any event now it cannot be made. This situation has arisen as a result of the conscious decision of the applicant to absent herself from the hearing.
When an applicant deliberately fails to appear to pursue her claim, the application may be dismissed: 0 10 r3(2). The case management system depends upon the willingness of parties to co-operate with the Court: Leniiamar Ptv Ltd v. AGC Ltd 27 FCR 388 at 395-396. In this case there is of course an additional reason for dismissing the proceeding, that is that the applicant has had the benefit of a hearing all day in relation to a claim which is, on its face, utterly hopeless.

Accordingly, I order that the proceeding be dismissed.

the ex tempore Reasons for Judgement herein of the Honourable Mr

I certify that this and the preceding eight pages are a true copy of

Juetice A.P.	W x l a m .
Associate:	<c)<

Date:  - 28 J &

Applicant in person

Counsel for the respondent:  Mr Warren Wilson (solicitor)

instructed by Australian Government Solicitor

Date of hearing:	20 May 1993
Date judgment delivered:	20 May 1993