Kulik v Administrative Appeals Tribunal

FEDERAL COURT OF AUSTRALIA

Kulik v Administrative Appeals Tribunal [2009] FCA 1324

Federal Court of Australia Act 1976 (Cth) ss 25(2B)(aa), 31A
Administrative Appeals Tribunal Act 1976 (Cth) s 42A(4)

Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118 cited

VITALY KULIK v ADMINISTRATIVE APPEALS TRIBUNAL and CENTRELINK

No ACD 42 of 2009

FINN J
16 NOVEMBER 2009
ADELAIDE (VIA VIDEO LINK TO CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 42 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

VITALY KULIK
Appellant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

CENTRELINK
Second Respondent

JUDGE:	FINN J
DATE OF ORDER:	16 NOVEMBER 2009
WHERE MADE:	ADELAIDE (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	ACD 42 of 2009

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

VITALY KULIK
Appellant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

CENTRELINK
Second Respondent

JUDGE:	FINN J
DATE:	16 NOVEMBER 2009
PLACE:	ADELAIDE (VIA VIDEO LINK TO CANBERRA)

REASONS FOR JUDGMENT

1. The second respondent, Centrelink, has moved the Court for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) on the basis that the appeal filed by the appellant, Vitaly Kulik, has no reasonable prospects of success. The power conferred by s 31A extends to the summary dismissal of an appeal: see Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118 at [12]. The power of a single judge to exercise this jurisdiction is conferred by s 25(2B)(aa) of the Federal Court of Australia Act 1976. 

2. The judgment appealed from dismissed an application from the Administrative Appeals Tribunal on the ground that, while the Tribunal failed to comply with s 42A(4) of the Administrative Appeals Tribunal Act 1976 (Cth), it would have been futile in the circumstances to send the matter back to the Tribunal for the reason that the only decision open to the Tribunal was that it had no jurisdiction to entertain the review application made to it.  Fundamental to her Honour’s decision, after careful consideration of the Tribunal’s decision, was her inability to discern an intelligible claim made by the appellant that could enliven the review jurisdiction of the Tribunal.  Further, the documents that were filed before her Honour in support of the appeal to the Court did not in her Honour’s view, despite her best endeavours, identify any sensible application. 

3. Before I turn to the appellant’s Notice of Appeal, I should indicate that the decisions seemingly challenged by Mr Kulik relate to purported FOI requests which were refused by Centrelink.  Something of their character is portrayed in the terms of the Notice of Appeal.  The Grounds of Appeal are…