Peric v Secretary, Department of Education, Employment and Workplace Relations

[2011] FCA 649

FEDERAL COURT OF AUSTRALIA

Peric v Secretary, Department of Education, Employment and Workplace Relations [2011] FCA 649

Citation:

Peric v Secretary, Department of Education, Employment and Workplace Relations [211] FCA 649

Appeal from:

Peric and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 314

Parties:

NATASHA PERIC v THE SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

File number:

VID 991 of 2010

Judge:

TRACEY J

Date of judgment:

3 June 2011

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Federal Court of Australia Act 1976 (Cth) s 31A

Date of hearing:

3 June 2011

Place:

Melbourne

Division:

GENERAL DIVISION

Category:

No catchwords

Number of paragraphs:

9

Counsel for the Applicant:

The applicant appeared in person

Counsel for the Respondent:

Ms P Heffernan

Solicitor for the Respondent:

Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 991 of 2010

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	NATASHA PERIC Applicant
AND:	THE SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	3 JUNE 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1Pursuant to O 13, r 2 of the Federal Court Rules the title of the proceeding be amended to substitute as respondent the Secretary, Department of Education, Employment and Workplace Relations. 

2Judgment be entered for the respondent pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

3The applicant pay the respondent’s costs of and incidental to the proceeding including the costs of the motion, notice of which was given on 25 May 2011.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 991 of 2010

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	NATASHA PERIC Applicant
AND:	THE SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	TRACEY J
DATE:	3 JUNE 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. By application filed on 19 November 2010, Ms Natasha Peric sought to challenge an unidentified decision of the Administrative Appeals Tribunal (“the Tribunal”) concerning her entitlement to certain social security benefits. 

2. It has emerged that the Tribunal had made no such decision and the grounds on which relief was sought plainly can have no relevance to a decision which, as I have already said, had not at the relevant time been made. 

3. Subsequently, a series of directions hearings were held because it was not clear what the position was in relation to the tribunal’s handling of Ms Peric’s application, and it was not until earlier this year that the position was clarified and the facts that I have just recounted were established. 

4. By notice of motion dated 25 May 2011 the respondent, who is identified as Centrelink, has moved the court for orders removing Centrelink as the respondent and substituting the Secretary, Department of Education, Employment and Workplace Relations.  Centrelink is not a relevant entity under the legislation and the decision, if there had been one, would originally have been made by a delegate of the Secretary, and it would have been that decision which would have been the subject of the Tribunal’s attention.  It is appropriate therefore, that the Secretary be substituted for Centrelink as the respondent to the proceeding. 

5. The respondent also seeks summary judgment under section 31A(2) of the Federal Court of Australia Act 1976 (Cth) on the basis that Ms Peric has no reasonable prospects of successfully prosecuting the purported appeal.

6. Ms Peric has filed an affidavit in response to the notice of motion in which she says that she wishes to appeal against a decision that was made by the Tribunal on 12 May 2011 and she advances certain grounds for challenging that decision. 

7. The affidavit clearly highlights the hopeless nature of the application that is presently before the Court, and in the absence of any decision of the Tribunal, there is no basis for an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) or for judicial review.

8. Accordingly, I consider it appropriate that summary judgment should be given under s 31A(2) of the Federal Court of Australia Act and an order to that effect will be made. 

9. Ms Peric will, of course, be free, should she be so minded and so advised, to challenge the decision of the Tribunal which was handed down on 12 May 2011 and with which she is plainly, judging by the terms of her affidavit sworn today, dissatisfied.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:       3 June 2011