O'Hara v Department of Social Security

838 40

JUDGMENT No. ,! .... ,..,! ,,,,,,,,,,,

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
1

NEW SOU TH WALES DISTRICT REGISTRY ) NG 506 of 1989
1

GENERAL DIVISION 1
Applicant

L Respondent
CORAM: Burchett J.
PLACE: Sydney
DATE : 16 August 1990
EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:
This matter arises out of a dispute with the Department
of Social Security, concerning compliance with its
requirements for the continued receipt of social services.

There was a hearing by the Administrative Appeals Tribunal, which decided in the department's favour. From such a decision, there is provided a means of what is called appeal to this court, but what that involves is the right to challenge the decision on a point of law only.

In the present case a document purporting to comply with
the requirements of form 55A in the first schedule to the
Rules of the Court, headed "Notice of Appeal" and purporting

to have been filed under order 53 rule 2 of the Rules, was

filed and served. The form specified by rule 2 contains

provision for the statement of grounds of abpeal, and rule 2 states that an appeal to the court from a decision of the tribunal shall be instituted by filing a notice of appeal which shall be in or substantially in the foqm numbered 55h in the first schedule. The document filed contained no statement of any grounds at all. The form also provides for a statem

of the questions of law raised by the appeal. In that portion of the form, there were written in the following words "Natural justice application of law". ID is, of course, impossible to discern in those cryptic five words any specification of any particular question of law.

The document was filed on 20 July 1989, following the decision of the tribunal. Directions were scheduled to be given by Mr Justice Wilcox on 21 September 1989 when it is suggested, though Miss O'Hara disputes this, she was informed that it would be necessary for her to detail the grounds of her appeal. The matter was stood over for flurther directions to 14 November 1989, and to assist her 'in the tasks of

specifying her grounds of appeal and preparing an appeal

index, Miss OrHara was supplied by the Australian Government

Solicitor on 25 October 1989 with a copy Of the transcript before the tribunal. On 14 November, there gwas no appearance by Miss O'Hara. It is said that she had made some mistake as regards the time at which the matter was to be listed, and in any case was running late. The matter was adjourned to 5 I December.

I understand that Miss O'Hara told the officer of the Australian Government Solicitor's office that 5 December was not a convenient date for her, but she was unable to obtain the agreement of the Australian Government Solicitor's office to any further adjournment. That office invited her, instead, to apply to the court. No such application appears to have been made to the court, but on 4 December she simply left a telephone message that she would be unable to attend and she

did not return any calls made to her over the next few days by the officer of the Australian Government Solicitor's office. It appears that, at that time, and indeed since July 1989, she had been working as a lecturer at the University of Western Sydney, where she still lectures. Over the whole period, it appears that her actual lecturing commitment has involved some time - I was not told the extent of it - but some time on each of two days per week, on average. Miss OfHara is apparently expert in some area of computing, and has a Master of Science in computer science from London University, and an honours

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degree in chemistry from the University of Queensland.

The matter was adjourned by the court to 9 February, as a result of Miss O'Harars failure to attend on 5 December. The court indicated that the motion for dismissal, brought by the respondent to the appeal, would be before it on 9 February. By letter dated 12 December, the Australian Government Solicitor's Office gave notice to Miss O'Hara, to provide her with what was described as an opportunity to take positive steps before the application for dismissal came to be dealt with, and in particular to take the steps of ,providing grounds of appeal and a draft appeal index.

It appears from Miss O'Hara's evidence that, at this time, she was embroiled in litigation of a different sort altogether before some Tenancy Tribunal in respect of a building she owned, but it also appears that her university teaching commitments would have been in abeyance for a period from about mid December to mid February. Nearly two months later, the appellant advised the Australian Government Solicitor's office by telephone that she simply had no time to carry out the work of preparing her appeal, and she requested an indefinite adjournment - referring in the course of that request, as indicating the kind of ~eriod that she contemplated the matter might be adjourned for, to a period of one year. On the same day, the Australian Government Solicitor advised Miss O'Hara by letter that the adjournment would not be consented to for an indefinite hengthy delay, and that the Australian Government Solicitor wquld proceed with

the motion for dismissal.

On 9 February, a direction was give^ requiring Miss O'Hara to file and serve by 9 May a draft List of documents required for the preparation of the appeal papers, and the matter was adjourned to 11 May. On 11 May, the matter came before me. A medical certificate was produced, and I adjourned the matter to 6 July. I gave a direction for the filing of an a£ f idavit if, when the matter I came back before the court, Miss OfHara should wish to rely on any medical evidence as justification for any further delay. No such affidavit has ever been filed.

On 6 July, there was no appearance of the appellant, but a message was transmitted by her to the effect that she was suffering from a respiratory tract infection, and had been suffering from it for about one week. She again stated by

telephone to the Australian Government Solicitor's office that she could not proceed with the appeal for a period of six months. She explained that she had not filed the medical affidavit, required by the direction I had given on the previous occasion, because the illness had been of such recent origin. On 6 July, I gave a number of further directions. I directed that any further affidavit, to be relied on by the respondent on the motion, be filed and served by 4pm on 20 July. I directed that the appellant file and serve by 4pm on 1 August 1990 a notice specifying each ground of appeal to be

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relied on by her. It will be appreciated that that was a

repetition of previous indications to Miss O'Hara, if not

formal directions. It has never been complied with. I

directed that notice be given by the respondent to Miss O'Hara in writing, of all of the directions I gave that day, by 4pm 20 July 1990. I stood the matter over for further directions, and for hearing of the respondent's motion for dismissal, until today.

I also directed the appellant to file pnd serve a draft index, as required by previous directions, by 4pm on 8 August 1990. The previous directions and that direction have not been complied with. Miss O'Hara, in evidence today, indicated she did not really see much point in a requirement to file such an index, and that it really would, not be a very difficult exercise for her to do it. If ithat evidence is correct, I find it inexplicable that, for a period of now around about a year, the direction has been so persistently ignored. I directed that any evidence, to be relied upon by the appellant in answer to the motion for dirjmissal, including any explanation for the delays which have occurred in this matter, and any matter alleged to justify any further adjournment which might be sought of the motion, be adduced by affidavit, to be filed and served by 4pm on 8 August 1990. No such affidavit has been filed. I gave direictions concerning the service of documents, involving the communication of notice to Miss O'Hara by mail, and also the personal service of documents. It appears that personal service has not been

all the documents. She states that she received those that

effected, but Miss OIHara does not dispute that she received

were to be delivered personally by their being put under her
door, and she says that happened one day late.

Order 53 rule 20 provides in part:
"Where an applicant has not done any act required to be done by or under these rules or otherwise has not prosecuted his appeal with due diligenqe the court may

(a)

order that the appeal shall be dismissed for want of prosecution;
. . .

Since 20 July 1989, as I have indicated, no grounds of appeal have been provided. No appeal index, despite repeated directions, has been filed. Both are required to enable the appeal, not merely to be dealt with, but to be put in a

position where it is everi possible to give it any
consideration at all.
Explanations advanced by Miss O'Hara have come down, in the main, to two points. First, the pressure of other business, including the tenancy proceedings brought against her, her lecturing commitments and other obligations; and secondly, recurrent illness. So far as illness is concerned, it is to be pointed out that, on the first occasion when Miss

O'Hara came before me on a directions hearing, she presented a

medical certificate which I regarded as vague and

that, if this question was to be raised as a matter of

unsatisfactory. I then gave directions designed to ensure

significance in the case, the court should be provided with some real evidence by way of affidavit, with the possibility of cross-examination if the evidence were to be challenged, so that the matter could be given proper consideration in the interests of both parties. No such affidavit has ever been filed.

Further medical certificates were tendered today, and I received them. I do not regard them, either alone or taken

together with the earlier certificate ,which was again

tendered, and with the rest of the evidence, as providing me

with any basis for feeling satisfied that illness provides a

significant explanation for the extraordina~ily lengthy delay

which has occurred in this matter. Miss / OrHara has given

evidence that, during a period now of over 12 months, she has

been in a full-time occupation. She says she has been absent

through illness on occasions. She also said that she has, on

some of those occasions, whilst absent from the University of

Western Sydney, nevertheless performed duties at home. She 1

has carried out the tasks of a full-time lecturer, who is also

co-ordinator of a programme of lectures. Despite medical

certificates suggesting a serious difficulty in talking at the

present time through acute illness, she was1 able, before me,

to express herself fluently, and I had no difficulty hearing

her. At times she whispered, but most of the time, and

particularly when she became excited, she put matters to me in

a f inn voice.
Miss OtHara told me that she is not eligible for legal aid, but she has chosen, and of course this is her right, to present her case herself. If she elects to do that, she has to achieve some degree of compliance withithe rules. The court does, and this case is perhaps pre-emqnently an example of it, make whatever efforts are possible to permit litigants in person to conduct their litigation in tpe court, and to assist them in compliance with the rules so as to permit cases to go forward despite what - if they came from lawyers - would be regarded as failure to comply with the strict requirements of the rules.
I do not think Miss O'Harars difficulty is a difficulty arising out of inability to comprehend the rules, or a real inability to comply with them. She is a person of high educational attainment, and I think it is rather that she has chosen - for reasons which she considers good - not to take much notice of the requirements of the rules, or of the directions which have been given. She made it clear in her evidence today that she could not understand the point of an appeal index, and she could not understand the point of the court scheduling appeals to be heard in accordance with an orderly progress designed to ensure that they were dealt with in a reasonable period of time. She puts her own view of these matters above compliance with the directions of the court. This, with respect to her, is an attitude which can

would not tell her how to lecture, in her field, and it does only be regarded as at least somewhat arrogant. The court

expect that court proceedings will be conducted according to law, although, as I have already pointed out, the court commonly allows - and has in this case allowed - as much flexibility as possible to those, such as litigants in person, who perhaps need to be treated to some extent indulgently.
Miss O'Hara has had, it seems to me, every opportunity,
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but has never, even in the most general terms, stated any ground of appeal. It is time to bring this process, which is necessarily costing a not insubstantial amount of public money
- in the cost of administration of the court, of the
department concerned, and of the Austnalian Government Solicitor - it is time to bring this to an, end. Directions have been ignored, and the appeal has not been prosecuted with any diligence at all. There is no reason to think that any further indulgence would produce any progress, more than a year having now elapsed. I should add, though this point was never taken, and the case has not been conducted by the Australian Government Solicitor in any technical manner, that there is in my mind a very real question whether the appeal was ever validly instituted in the first ,place. That is because, as I have pointed out, no grounds ,of appeal at all have ever been specified. It may be that the court office was in error in accepting the document. For these reasons, I order that the matter be dismissed for want of prosecution.

The appellant is to pay the costs of! the application

including reserved costs.
I certify that this and the preceding nipe (9) pages are a true copy of the Reasons for Judgment herein of his Honour M r Justice
Dated: 16 August 1990

would not tell her how to lecture, in her field, and it does	only be regarded as at least somewhat arrogant. The court
expect that court proceedings will be conducted according to law, although, as I have already pointed out, the court commonly allows - and has in this case allowed - as much flexibility as possible to those, such as litigants in person, who perhaps need to be treated to some extent indulgently.

[1990] FCA 838

16 Aug 1990