Luck v Secretary, Department of Education, Training and Youth Affairs

[2001] FCA 1061

FEDERAL COURT OF AUSTRALIA

Luck v Secretary, Department of Education, Training & Youth Affairs
[2001] FCA 1061

GAYE LUCK v SECRETARY, DEPARTMENT OF EDUCATION, TRAINING & YOUTH AFFAIRS

V 45 of 2000

GOLDBERG J
2 AUGUST 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 45 of 2000

BETWEEN:	GAYE LUCK Applicant
AND:	SECRETARY, DEPARTMENT OF EDUCATION, TRAINING & YOUTH AFFAIRS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	2 AUGUST 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal by the applicant is dismissed.

2.        The applicant pay the respondent’s costs of and incidental to 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
VICTORIA DISTRICT REGISTRY	V 45 of 2000

BETWEEN:	GAYE LUCK Applicant
AND:	SECRETARY, DEPARTMENT OF EDUCATION, TRAINING & YOUTH AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	2 AUGUST 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 4 February 2000, the applicant, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), filed a notice of appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 7 January 2000. The Tribunal affirmed the decision of the Social Securities Appeals Tribunal on 23 February 1999, to affirm the decision of a Centrelink delegate of the Secretary of the Department of Social Security, as it then was, dated 24 January 1998, to reject the applicant’s application for rent assistance pursuant to the provisions of the Austudy Regulations. A directions hearing was subsequently held. The appeal book was settled on 3 May 2001. On 20 February 2001, the Court sent a notice of listing of the proceeding to the applicant and the respondent informing them that the matter was listed for hearing at 10.15am on 2 August 2001.

2. On 28 June 2001, the applicant wrote a letter addressed to the Registrar of the Court in which she informed the Court that she was undergoing a period of rest, recuperation and treatment for health reasons which were identified.  The applicant indicated in that letter, amongst other matters, that she would not be able to receive or dispatch any correspondence in relation to her cases, or do the necessary work required to progress the litigation.  The letter concluded in the following terms:

   “I therefore inform you that for some weeks at least I will be attempting to resolve my domestic circumstances and alleviate the distress being inflicted upon me.  After which I will take up my responsibilities in regard to these matters and advise you of my current status at such time.”

   On 2 July 2001, two letters were sent by the Listing Manager of the Court to the applicant, one being addressed to her at the address for service indicated on her notice of appeal and amended notice of appeal.  The other letter was addressed to the applicant at the address identified at the top of her letter of 28 June 2001.  Both letters were in identical terms, as follows:

   “We refer to your letter of 28 June 2001.  By letter dated 20 February 2001, the Court notified you and the respondent that the above proceeding would be heard on 2 August 2001.  This letter is to remind you that the proceeding is set down for hearing before Justice Goldberg at 10.15am on 2 August 2001 at 305 William Street Melbourne, Victoria and that you should attend the Court on that day to present your case.”

3. The matter was called on for hearing before me today at 10.15am, and there was no appearance by, or on behalf of the applicant.  The applicant’s name was called in the forecourt on the ground floor of the building, and also outside this courtroom, this courtroom being designated on the noticeboard in the forecourt as being the Court in which the applicant’s appeal would be heard.  The applicant has not appeared to prosecute her appeal and, in those circumstances, I consider it appropriate to order that the appeal be dismissed.

4. At an earlier directions hearing, I directed the parties to file statements of contentions of facts and law, which both parties did. I have had the opportunity of reading the applicant’s notice of appeal, her amended notice of appeal and her contentions, and the decision of the Tribunal. I can discern no error in the reasoning of the Tribunal, and in my view the Tribunal did not commit any error of law in reaching the conclusion it did, that none of the requirements of subregs 102A, (1)(a) or (b) of the Austudy Regulations were satisfied in the case of the applicant, and that reg 102H was not applicable to the applicant. The Tribunal concluded that the applicant was not eligible for rent assistance pursuant to the relevant legislation and regulations, and I do not consider that any of the contentions of the applicant in her statement of facts and contentions warrant a conclusion or finding that the Tribunal fell into error.

1. The appeal by the applicant is dismissed with costs. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:             3 August 2001

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	A B McMahon
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 August 2001
Date of Judgment:	2 August 2001