Musa v Ministry of Transport

[2006] FCA 1731

FEDERAL COURT OF AUSTRALIA

Musa v Ministry of Transport [2006] FCA 1731

AHMED MUSA v MINISTRY OF TRANSPORT
NSD 2145 OF 2006

BUCHANAN J
28 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2145 OF 2006

BETWEEN:	AHMED MUSA Applicant
AND:	MINISTRY OF TRANSPORT Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	28 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion be 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 2145 OF 2006

BETWEEN:	AHMED MUSA Applicant
AND:	MINISTRY OF TRANSPORT Respondent

JUDGE:	BUCHANAN J
DATE:	28 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. Ahmed Musa had worked as a taxi driver in Melbourne. He sought a taxi driver’s licence in New South Wales. It was refused by the Ministry of Transport. He sought review of the decision in the Administrative Appeals Tribunal (‘the AAT’). In a decision dated 16 June 2005 the AAT affirmed the decision of the Ministry of Transport. On 14 July 2005, Mr Musa sought to appeal to this Court under s 44 of the Administrative Appeals Tribunal Act (1975) (Cth).  An appeal to this Court, as I attempted to explain to Mr Musa this morning and as Wilcox J attempted to explain to him almost 12 months ago in another hearing, is only available on the ground of error of law. 

2. The purported notice of appeal was very confused.  It did not satisfactorily identify any alleged error of law in the decision of the AAT.  Mr Musa’s application was listed for hearing before Wilcox J on 5 August 2005.  On that day Mr Musa did not appear.  Wilcox J ordered that the application be dismissed.  He further directed:

   ‘No application to set aside this order is to be filed unless it is accompanied by an amended notice of appeal identifying, with precision, a question of law arising out of the decision of the Administrative Appeals Tribunal, in relation to which the applicant will contend that the Administrative Appeals Tribunal erred.’

3. On 21 September 2005 Mr Musa applied for an extension of time in which to appeal from the order of Wilcox J of 5 August 2005.  On 18 October 2005 Branson J dismissed this application but without prejudice to Mr Musa’s right to seek to have the order of 5 August 2005 set aside.  This left the direction made by Wilcox J on that date still effective.

4. On 7 November 2005 Mr Musa filed a notice of motion apparently seeking a hearing date for his appeal together with a document entitled Amended Notice of Appeal.  On 15 November 2005 he filed an affidavit.  Those matters came before Wilcox J on 24 November 2005.  During that hearing Wilcox J explored with Mr Musa whether there was any possible basis to allege an error of law in the decision of the AAT.  He found that there was no such basis and he dismissed the notice of motion with costs fixed in the amount of $750.  On 1 November 2006, almost one year after his last attempt, Mr Musa filed a further notice of motion.  He also filed what purports to be an affidavit and a written submission. 

5. It is unclear whether he is attempting to appeal against Wilcox J’s order of 5 August 2005, attempting to meet the condition imposed by Wilcox J in order to have that decision set aside under Order 35 of the Federal Court Rules, attempting to appeal against Wilcox J’s order of 24 November 2005 or attempting to institute a fresh appeal against the decision of the AAT on 16 June 2005.  I shall, in those circumstances, deal with each of those possibilities.

6. In order to obtain an extension of time in which to appeal against Wilcox J’s order of 5 August 2005 it would be necessary, at the least, to show that there were some prospects that an appeal, if an extension of time were granted, could succeed.  In my view there are none.  Mr Musa was not prevented from seeking to apply to set the order aside under Order 35.  The condition imposed by Wilcox J’s direction was a reasonable one.  If he is seeking an extension of time to appeal against the order of 5 August 2005, I refuse to grant it. 

7. If he is seeking to set aside the order under Order 35 of the Federal Court Rules, he has not complied with Wilcox J’s direction that he identify with precision an error of law in the AAT decision of 16 June 2005.  Wilcox J considered Mr Musa’s circumstances more than one year ago. It was clear from the answers that Mr Musa gave to his Honour’s questions that he had given false information on his application for a taxi driver licence in New South Wales.  He was unable to point to any error or law in the AAT decision.  If Order 35 is the foundation for the present notice of motion, I decline to set aside Wilcox J’s order of 5 August 2005.

8. If the present notice of motion represents an attempt to appeal against Wilcox J’s dismissal of his earlier notice of motion on 24 November 2005, an extension of time and leave to appeal is required.  I will not grant either.  There is no serious question to be argued that Wilcox J made any error on that occasion. 

9. If the notice of motion is a further attempt to initiate an appeal against the decision of the AAT, an extension of time is clearly required.  The AAT decision was given almost 18 months ago.  Moreover, only an appeal on a question of law is available.  No question of law has been identified.  Leaving aside any question of conflict with the earlier attempt to appeal, I will not allow an appeal to be initiated in those circumstances. 

10. Mr Musa is unrepresented.  In order to ensure that circumstance has not led to any unappreciated prejudice to his position I have read the decision of the AAT for myself. 

11. Mr Musa was found to have falsely represented in his application for a taxi driver licence in New South Wales that his driver’s licence had never been suspended or cancelled and that he had not been convicted of any traffic offences or criminal offences in the previous 10 years.  All of those things had in fact happened and Mr Musa had served a period of imprisonment arising from one such incident. 

12. I see no basis for any contention that the AAT failed to address itself as required to the issues for its consideration and to the exercise of the discretion committed to it.  As the matter appears to me, Mr Musa’s legal position with respect to these matters is without any substance. 

13. I dismiss the notice of motion with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        13 December 2006

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	R Pepper
Solicitor for the Respondent:	Smythe & Mallam
Date of Hearing:	28 November 2006
Date of Judgment:	28 November 2006