Klimentos v Health Insurance Commission

[2005] FCA 1254

FEDERAL COURT OF AUSTRALIA

Klimentos v Health Insurance Commission [2005] FCA 1254

HUMAN RIGHTS – claims of racial and sexual discrimination – summary dismissal of proceedings by Federal Magistrate – application for leave to appeal – whether decision below attended with sufficient doubt to warrant it being reconsidered – whether substantial injustice would result if leave to appeal was refused

Decor Corporation Pty Ltd v Dart Industries Pty Ltd (1991) 33 FCR 397 applied
Piepkorn v Caroma Industries Ltd [2002] FCA 182 referred to

PAM KLIMENTOS v HEALTH INSURANCE COMMISSION
NSD 1107 OF 2005

TAMBERLIN J
SYDNEY
30 AUGUST 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1107 OF 2005

BETWEEN:	PAM KLIMENTOS APPLICANT
AND:	HEALTH INSURANCE COMMISSION RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	30 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application for leave to appeal is dismissed with costs.

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 1107 OF 2005

BETWEEN:	PAM KLIMENTOS APPLICANT
AND:	HEALTH INSURANCE COMMISSION RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	30 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by Ms Klimentos for leave to appeal from a judgment of Federal Magistrate Driver (“the Federal Magistrate”) given on 21 June 2005.

2. The Federal Magistrate granted an application by the respondent, the Health Insurance Commission, for summary dismissal of the matter before him on the basis that no reasonable cause of action was demonstrated in the application.  The Federal Magistrate awarded costs to the respondent, which he fixed in the sum of $4,000.

3. The only question before me today is whether leave to appeal ought to be granted.  I am not here to consider the merits of the matter or to investigate and rehear the complaints that have been raised previously.

4. The application for leave to appeal indicates that the grounds of that application appear in an annexed affidavit.  That affidavit unfortunately does not spell out any ground that can be identified as a proper ground for the bringing of an appeal.  The affidavit, which is stated to contain the grounds, simply says that all the documents filed by the applicant are true, and makes reference to the applicant not being happy with what has taken place.  The latter is obvious from the way in which the applicant has addressed me today.

5. In many ways, the applicant advances her case on the merits of the matter rather than addressing the errors in the decision of the Federal Magistrate.

6. I have carefully read the decision of the Federal Magistrate.  The Federal Magistrate addresses the relevant factual background and the legal principles and I am unable to identify any error of law or principle in the conclusion reached by the Federal Magistrate.

7. On an application for leave to appeal, two elements must be satisfied.  The first is that the court must be persuaded that the decision below is attended with sufficient doubt to warrant it being reconsidered, and, secondly, that a substantial injustice would result if leave were refused.

8. The application in the present case is what is known as an interlocutory application, as opposed to a final application.  In such a case, the principles set out in Decor Corporation Pty Ltd v Dart Industries Pty Ltd (1991) 33 FCR 397 are applicable.

9. In this case, I do not consider that the decision of the Federal Magistrate was attended with sufficient doubt that would warrant it being reconsidered, and, in particular, there was no error of law shown in the decision that was reached by the Federal Magistrate.  As I have indicated, the reasons of the Federal Magistrate carefully set out the background of the matter, including the fact that it has had a long history before the courts dating back to 2001.  My conclusion is that there is not sufficient doubt in the present case.

10. The second matter that needs to be considered is, if I am wrong on the first point, whether there would be substantial injustice caused to the appellant if I were not to grant leave to appeal.  In the circumstances of the present case, and having regard to the long history of the matter and the careful reasoning of the Federal Magistrate, I am not persuaded that injustice would result to the applicant if leave to appeal was refused.  Accordingly, applying these principles, which narrowly constrain the Court in considering whether an application for leave should be granted, I have reached the conclusion that the application for leave to appeal in the present case should be dismissed.

11. In reaching this conclusion, I have had regard to Piepkorn v Caroma Industries Ltd [2002] FCA 182, which was cited by the respondent, and, in particular, to [12]-[18] of the reasons in that case.

12. The orders of the Court in this matter are that the application for leave to appeal is dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            8 September 2005

The Applicant appeared in person.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	30 August 2005
Date of Judgment:	30 August 2005