Kirkovski v Secretary, Department of Family and Community Services

[2004] FCA 1208

FEDERAL COURT OF AUSTRALIA

Kirkovski v Secretary, Department of Family & Community Services

[2004] FCA 1208

VASILIJE KIRKOVSKI v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
N 1000 OF 2004

STONE J
15 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1000 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VASILIJE KIRKOVSKI APPELLANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	15 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the notice of motion and 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
NEW SOUTH WALES DISTRICT REGISTRY	N 1000 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VASILIJE KIRKOVSKI APPELLANT
AND:	SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES RESPONDENT

JUDGE:	STONE J
DATE:	15 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 28 June 2004 the appellant filed a notice of appeal from the judgment of Bennett J delivered on 8 June 2004 in which her Honour dismissed an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (AAT).

2. On 19 August 2004 the respondent filed a notice of motion moving the Court for orders that, pursuant to s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth), the appeal be dismissed for failure to comply with the directions of the Court. The directions to which the respondent refers are as follows:

   a.A direction made on 15 July 2004 that the appellant prepare 6 copies of the appeal books and file and serve the appeal books by 13 August 2004; and

   b.A direction made on 28 July 2004 that the appellant file and serve within 14 days an amended notice of appeal which identified the grounds of the appeal from the judgment of Bennett J.

3. In addition to the directions to which the respondent refers I note that on 30 August 2004 I directed that the appellant (respondent to the notice of motion) file and serve by 10 September 2004, all documents and authorities on which he intended to rely and written submissions in reply to the written submissions of the applicant on the notice of motion.  Those directions have also not been complied with.

4. Prior to the hearing of the notice of motion the appellant sent to the solicitors for the respondent, a facsimile dated 25 August 2004 stating,

   ‘I will not be proceeding any further in the above matter.’

   The solicitors forwarded that letter to Deputy District Registrar however the Court did not accept the letter as a notice of discontinuance under O 52 r 19 of the Federal Court Rules. 

5. Order 52 rule 19 provides that a party may file a notice of discontinuance at any time before the hearing of the appeal without the leave of the Court but that such party is liable to pay the costs of the other parties occasioned by the appeal.  At the hearing I asked the appellant if he wished to discontinue the appeal.  He replied that he wished to do so if he would not have to bear the respondent’s costs.  There followed considerable discussion on the question of his liability for costs.  Ultimately I was not satisfied that the appellant understood the issue and decided that there was no alternative but to proceed with the hearing of the notice of motion. 

6. The substance of the appellant’s explanation of his failure to comply with the orders set out in [2] above was that he was unable to do so without legal assistance.  He also submitted that he had been told at the Full Court call over, on 28 July 2004, that if he did not succeed in obtaining legal representation within fourteen days the matter would be dismissed without any order as to costs.  I have read the relevant transcript and it shows quite clearly that Sackville J made direction (b) set out in [2] above and told the appellant, 

   ‘If that is not done it will be open to the respondent to apply to the Court to strike out your appeal on the ground of non-compliance with the directions.’

   His Honour refused the appellant’s request for more time to get a lawyer.  The position facing the appellant was made quite clear and there was nothing in the exchange that could reasonably give rise to the impression the appellant claimed to have. 

7. I am not satisfied that the reasons proffered by the appellant for his failure to comply with the orders are a sufficient excuse.  It is not appropriate that the respondent be held hostage to an appeal process which the appellant, apparently, does not take seriously.  In my view the appeal to the Court should be dismissed for failure to comply with the directions that

   have been made in this matter.  The appellant must pay the respondent’s costs of this notice of motion and of the appeal. 

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

Associate:        

Dated:             15 September 2004

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 September 2004
Date of Judgment:	15 September 2004