Pham v Secretary, Department of Employment
[2007] FCA 947
•4 June 2007
FEDERAL COURT OF AUSTRALIA
Pham v Secretary, Department of Employment
and Workplace Relations [2007] FCA 947CHARLES PHAM v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
VID 94 OF 2007NORTH J
4 JUNE 2007
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 94 OF 2007
BETWEEN:
CHARLES PHAM
ApplicantAND:
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
4 JUNE 2007
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicant pay the respondent’s costs of the proceeding.
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
VID 94 OF 2007
BETWEEN:
CHARLES PHAM
ApplicantAND:
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
JUDGE:
NORTH J
DATE:
4 JUNE 2007
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is a motion, notice of which was filed by the Secretary, Department of Employment and Workplace Relations on 23 April 2007. The motion seeks orders that the Notice of Appeal dated 9 February 2007 as amended by Notice of Appeal (Supplementary) and Notice of Appeal (Supplementary No 2), appealing from a decision of the Administrative Appeals Tribunal, be dismissed under O 53 r 20 of the Federal Court Rules and that the applicant, Charles Pham, pay the costs of the Secretary in defending the action.
Before dealing with the secretary’s motion, I propose to consider Mr Pham’s application that I disqualify myself from further hearing the applications presently before the Court. The first ground which he has enunciated suggests a complaint arising from the Court ordering costs against him at the last directions hearing on 16 April 2007. His complaint is that the application for costs was instigated by the Court. The second ground appears to be that certain motions brought by him have not been heard by the Court.
The application for disqualification is refused. The basis upon which it appears to have been made is that the Court decided to award costs against Mr Pham. The mere fact that the Court comes to a decision contrary to the position put by a party does not indicate bias in the legal sense.
Whether the application for costs was instigated by the Court or not, the requirement for the Court is to act in accordance with the law and justice in the circumstances of the case. The Court formed the view on the last occasion that, after having given Mr Pham two opportunities to remedy his notice of appeal, justice required the costs thrown away by the respondent in coming to the Court on that occasion to be reimbursed. That is simply a decision made on the facts of the case as presented to the Court on that occasion. They do not indicate a predisposition against Mr Pham. Indeed, to the contrary, the Court has given Mr Pham, as he is unrepresented, opportunities which ordinarily would not be extended to other litigants. That is to say, he had been given two opportunities to bring his notice of appeal into conformity with the rules.
As to his second ground that some motions that he has filed have not been heard, the opportunity has not yet arisen for those motions to be heard. The logical starting point in this case is a consideration of the validity of the originating document. It is that matter to which the Court’s attention is presently directed. To suggest that the order in which the proceeding has considered issues is demonstrative of a mind unable to see the case from an unbiased perspective is not sustainable. The application for disqualification is rejected.
In anticipation of the secretary making the application as foreshadowed, the Court made certain directions on 16 April 2007, including a direction that the secretary file and serve an outline of submission on Mr Pham. An outline of submissions was filed on behalf of the secretary and it included an application to amend the notice of motion by adding a new paragraph as follows:
In the alternative that the application dated 9 February 2007 to appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) be dismissed pursuant to section 31A(2) of the Federal Court of Australia Act 1976 (the Federal Court Act).
[original emphasis]
Mr Mentor, who appeared on behalf of the secretary, indicated that he had served the outline of submissions himself on 30 April 2007, by leaving it at the address for service of Mr Pham. Mr Pham told the Court that he did not receive the outline, although he had previously received other documents, including the notice of motion and the affidavit, which had been served in the same way on 24 April 2007. Mr Mentor undertook to file an affidavit of service deposing to the circumstances in which the outline was served. Upon the assumption that Mr Mentor will file such an affidavit, it establishes that the secretary served the outline in conformity with the requirement that interlocutory documents be filed at the address for service of the applicant. It is, therefore, immaterial whether Mr Pham received the outline or not.
Nonetheless, in the course of the proceeding, I offered Mr Pham an adjournment of one day to consider the contents of the outline. Mr Pham declined the offer of that adjournment. In these circumstances, it is appropriate that the amendment foreshadowed in the outline of submissions be allowed.
Order 53 r 20 of the Federal Court Rules relevantly provides that:
(1)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 diligence, the Court may -
(a) order that the appeal shall be dismissed for want of prosecution;
…
Section 31A(2) and (3) of the Federal Court Act provide that:
…
(2)The Court may give judgment for one party against another in relation to the whole or any part of the proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or a part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
…
The appeal is brought from a decision of the Tribunal made on 12 January 2007. The Tribunal affirmed a decision of the Social Security Appeals Tribunal which in turn affirmed the decision of a review officer of the Department of Employment and Workplace Relations. The decision was that Mr Pham’s Newstart Allowance be suspended.
In November 2005, following a data matching exercise with the Australian Taxation Office, Centrelink received information which indicated that in the 2003/4 financial year, Mr Pham had received $5055 by way of distribution from the Pham family trust. The decision of the Tribunal centred on s 63(3)(d) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). That section relevantly provided:
(3)If the Secretary is of the opinion that a person to whom this subsection applies should:
…
(d)give information to the secretary;
the Secretary may notify the person that he or she is required, within a specified time, to:
…
(h) give that information;
as the case may be.Section 63(5) of the Administration Act provided that if:
If:
(a) the Secretary notifies a person under subsection (3) of a requirement; and
(b) the requirement is reasonable; and
(c) the person does not comply with the requirement;
then:
(d) newstart allowance or special benefit is not payable to the person;…
The Tribunal determined that the secretary had formed the opinion under s 63(3) that Mr Pham was a person who should give information to the secretary. The secretary had notified Mr Pham that he was required to give information to the department in relation to the information received by Centrelink that Mr Pham had received moneys from the Pham family trust. The Tribunal furthermore found that the request was reasonable within the terms of s 65(5)(b).
The Tribunal went on to consider whether s 63(9) applied. Section 63(9) provided that the secretary may determine that a social security payment which was not payable because of s 63(5) is payable if the secretary is satisfied that the person had a reasonable excuse for not complying with the requirement under s 63(3) to provide information. The Tribunal determined that, on the facts as presented to it, Mr Pham did not have such an excuse.
An appeal to this Court from the Tribunal is governed by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), which provides as follows:
A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
Order 53, rule 2(1) of the Federal Court Rules provides 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 form numbered 55A in Schedule 1.
Then Order 53, rule 3(2) provides:
The notice of appeal shall be signed by the applicant or his solicitor and shall state –
…(b)the question or questions of law to be raised on the appeal; and
…
(d)briefly, but specifically, the grounds relied upon in support of the order sought.
These provisions relating to the requirements for a valid notice of appeal, have been the subject of quite significant authority. The Full Court said in Lambe v Director General of Social Services (1981) 4 ALD 362 at 363:
Compliance with the provisions of this Rule of Court is essential when, as here, the appeal from the decision of the Tribunal is limited to a question or questions of law.
Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; [2003] FCA 232 (Birdseye) at [11], approved the observation of Gummow J in TNT Skypak International (Australia) Pty Ltd v FCT (1988) 82 ALR 175 at 178 where he said:
Section 44 of the AAT Act is expressed in narrower terms than the old s 196 of the Tax Act. This provided for appeals from the Board of Review which “involved” a question of law. The result was that if some question of law was involved, the whole of the decision of the Board was open to review, not merely the question of law… This no longer will be the case with appeals brought to this Court under s 44 of the AAT Act. The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself.
Their Honours said at [18]:
In our view, O 53 r3(2) discloses an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of a particular case and the orders sought on the appeal.
In Ibarcena v Secretary, Department of Family and Community Services [2003] FCA 1354, Stone J said at [4] and [5]:
In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 Gummow J observed, at 178, that with respect to appeals under s 44 of the AAT Act: ‘The existence of a question of law is… not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself’. More recently, two separate Full Court decisions have considered the precision with which a question of law must be stated to ground an appeal under s 44 of the AAT Act; see Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 and Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244. In order to conform to s 44(1) of the AAT Act and O 53 r 3(2) of the Federal Court Rules, it is necessary to identify a question of law. In the absence of such a question this Court’s jurisdiction is not enlivened. The notice of appeal in this case states:
‘THE QUESTIONS OF LAW raised on the appeal are the interpretation of the Data Matching Program (Assistance and Tax) Act 1990 (Cth), Social Security Act 1991 sections 1224C, 1075, Income Tax Assessment Act 1936 sections 51 and 54, enacted as the will of The Australian Parliament in application of its objectives to clearly establish the principles of Justice to govern all Australian Citizens.’
It is clear that even if this paragraph refers to a question of law it does not formulate a question of law. At the hearing today there has been considerable discussion between me and Mr Ibarcena, who spoke for both applicants, attempting to formulate a question of law. As I explained to Mr Ibarcena, the respondent and the Court need to be able to discern from the notice of appeal the question the Court is asked to answer. Reading this notice of appeal it is not possible to do so nor was Mr Ibarcena able to identify such a question.
In Comcare v Etheridge (2006) 90 ALD 31; [2006] FCAFC 27 (Etheridge), Branson J, with whom Spender and Nicholson JJ agreed, said at [14]:
The legislature, by creating a statutory right of appeal to a party to a proceeding before the tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the court on an appeal under s 44(1) to review factual findings of the tribunal.
Branson J continued at [16]:
A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act.
Branson J then considered one of the questions of law said to be raised in that case and said at [18] and [19]:
The first of the questions of law purportedly identified in each of the four appeals incorporated various separate sub‑questions. The form of the question was identical in each appeal. The opening lines of the first question in the notice of appeal filed in WAD 123 of 2005 is illustrative of their nature:
the construction and operation of:
a)s 9(1) of the Commonwealth Employees’ Compensation Act 1930 …;
b)ss 27(1) and 104 of the Compensation (Commonwealth Government Employees) Act 1971…
A broad enquiry as to the construction and operation of statutory provisions is not a question of law within the meaning of s 44(1) of the AAT Act. Moreover, by inviting the Court to engage in such a broad and hypothetical inquiry the purported question of law extends beyond any controversy between the parties. It is for this reason incapable of constituting a ‘matter’ and thus beyond the competence of the court which has jurisdiction only in respect of matters: ss 75, 76 and 77 of the Commonwealth of Australia Constitution Act 1900 (Cth).
In HBF Health Funds Inc v Minister for Health and Ageing (2006) 90 ALD 255; [2006] FCAFC 34 the Full Court said at [6]:
As Birdseye and Etheridge also make plain, the grounds required to be specified in the notice of appeal are not grounds of appeal; they are the grounds upon which the appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks. It is not possible, as the applicant sought to do in this case, to extend the subject matter of the appeal beyond the specified questions of law by itemising, under the heading ‘Grounds’, a series of alleged errors (some being errors of law, some being errors of fact and some being errors of mixed law and fact) in the reasons for decision of the tribunal.
Finally in Brown v Repatriation Commission [2006] FCA 914, Branson J said at [7]:
…The Court has no jurisdiction on such an appeal to evaluate the evidence before the Tribunal. Order 53 r 3(2) of the Federal Court Rules (and see also Form 55A) requires the notice of appeal to state separately the question or questions of law to be raised on the appeal, the order sought and the grounds relied upon in support of the order sought. This final requirement calls for a brief statement explaining why the answer to the question (or questions) of law will lead to the making of the order sought.
The amended notice of appeal filed by Mr Pham in this case, which is the subject of the motion, is as follows.
2. THE QUESTIONS OF LAW raised on appeal are - (specify each question of law).
a. Administrative Act Section 63(5) (a), (b): whether the Secretary notified the applicant under subsection (3) of a requirement and whether the requirement is reasonable;
b. Administrative Act section 5: whether a written notice was given to the applicant and whether the notice was given in a manner approved by the Secretary;
c. Administrative Act s234(2): whether Secretary delegated to the CEO in writing all or any of the assumed powers;
d. Administrative Act s 63 (2), (3): whether notices were sent by prepaid post;
e. Evidence Act 1958: whether hearsay was admissible; Respondents' documents satisfy all the elements that make them prima facie inadmissible by the rule against hearsay; Subramaniam v Public Prosecutor [1956] 1 WLR 965;
f. Human Rights and Equal Opportunity Act 1986: whether an Australian citizen of Asian descent should be deprived of basic Human Rights of the Law and Constitution of the Commonwealth of Australia;
g. Racial Discrimination Act 1972: whether an Australian citizen of Asian descent should be asked to do more than he is capable of;
The learned member erred in law, in failing to consider and determine the issue of:
1. the absence of the notification from the Secretary, and that requirements were not reasonable under Administrative Act Section 63(5) (a), (b);
2. the absence of the approval from the Secretary of any written notice sent to the applicant under Administrative Act section 5;
3. Administrative Act s234(2) requires the Secretary to delegate to the CEO in writing all or any of the assumed powers;
4. Administrative Act s 63 (2), (3) require notices to be sent by prepaid post, there is NO evidence of notices being sent;
5. Respondents' documents satisfying all the elements that make them prima facie inadmissible by the rule against hearsay; Subramaniam v Public Prosecutor [1956] 1 WLR 965 under Evidence Act 1958, and thereby rendering the requirements applied by the Secretary unreasonable under Administrative Act Section 63(5) (a), (b);6. Human Rights and Equal Opportunity Act 1986: the Applicant was deprived of access to the law and constitution, and the Human Rights Charter to which Australia is signatory, and thereby rendering the requirements applied by the Secretary unreasonable, under Administrative Act Section 63(5) (a), (b);
7. Racial Discrimination Act 1972: the Applicant was deprived of access to the law and constitution, and the Human Rights Charter to which Australia is signatory and thereby rendering the requirements applied by the Secretary unreasonable under Administrative Act Section 63(5) (a), (b);
8. Administrative Act Section 63(5) (a), (b): Requirements were not reasonable because they are not valid under Law and the Law of Natural Justice, unsupported under cross-examination, nor confirmed under oath, nor by witnesses, nor by the Secretary;
9. There is No evidence of a "PHAM trust", its existence, its documentation in the respondents' submissions, and thereby rendering the requirements applied by the Secretary unreasonable under Administrative Act Section 63(5) (a), (b);
10. There is No evidence of the Applicant being involved in any Trust, and thereby rendering the requirements applied by the Secretary unreasonable under Administrative Act Section 63(5) (a), (b);
11. There is No evidence of the Applicant receiving money from any Trusts and thereby rendering the requirements applied by the Secretary unreasonable, under Administrative Act Section 63(5) (a), (b);
2a. THE QUESTION OF BIAS:
i. the tribunal Member Egon Fice defamed Mr PHAM by fabricating unsubstantiated allegations and hearsay never brought up in any documents or hearings;
ii. the tribunal Member Egon Fice determines that the affidavit and sworn statements under oath by Mr PHAM are less valid than fabricated and unsubstantiated evidence and hearsay by the Commonwealth of Australia (Racial Discrimination Act, 1972);
iii, the tribunal Member Egon Fice obtained illegal access to a fax Mr PHAM sent to District Registrar, Mr Ken Wanklyn, sent on the 4 December 2006, that prejudiced the decision (paragraph 33)
3. ORDERS SOUGHT: (state the orders or relief sought by the applicant).
Tribunal Decision to be set aside;
Interlocutory Orders that Newstart Allowance be reinstated asap Loss of income: $200,000
Pain and suffering: $500,0004. GROUNDS: (specify grounds relied upon in support of the orders sought).
Financial Hardship and business commitments in setting up business in order to move on from Newstart;
Daily necessities: food and clothing, rent and housing;5. FINDINGS OF FACT (if any) that the Court is asked to make are: (specify each finding).
Note Item 5 only applies to appeals under section 44 of the Administrative Appeals Tribunal Act 1975.a. under the Administrative Act Section 63(5) (a), (b) that there is No notification from the Secretary, and that the requirements are not reasonable;
b. under the Administrative Act section 5, that there is no evidence of approval from the Secretary of any written notice sent to the Applicant;
c. Administrative Act s234(2) requires that the Secretary delegates to the CEO in writing all or any of the powers, that there is no such delegation in writing;
d. that Administrative Act s 63 (2), (3) requires notices to be sent by prepaid post, and that no such evidence of compliance to the mentioned subsections;
e. Evidence Act 1958: Hearsay evidence and fabricated documents are inadmissible, and that the Respondents submissions were hearsay and were inadmissible;
f. under Human Rights and Equal Opportunity Act 1986, access to the laws and Constitution of the Commonwealth of Australia, is a right and not a privilege;
g. under Racial Discrimination Act 1972, access to the laws and Constitution of the Commonwealth of Australia, is a right and not a privilege;
h. under the Administrative Act Section 63(5) (a), (b) , requirements must be reasonable and that they are NOT reasonable because they were not valid under Law and the Law of Natural Justice, unsupported under cross-examination, nor confirmed under oath, nor by witnesses, nor by the Secretary;
i. that there is No evidence of a "PHAM trust", its existence, its documentation in the Respondents' submissions.
j. that there is No evidence of the Applicant being involved in any Trust;
k. that there is No evidence of the Applicant receiving money from any Trusts.
[original emphasis]
Mr Pham has not been legally represented. Every effort has been made to assist him by both the Court and the representative of the secretary, Mr Mentor.
When originally served with the notice of appeal and in view of the first directions hearing that was about to occur, the secretary wrote to Mr Pham indicating that the notice of appeal did not disclose any error of law, that the appeal had no prospect of success, and invited Mr Pham to withdraw his appeal before the first directions hearing. The secretary indicated that if this were done, the secretary would not pursue costs against Mr Pham. At the first directions hearing on 23 February 2007 when Mr Mentor submitted that the notice of appeal disclosed no error of law on the part of the Tribunal, he asked that Mr Pham provide particulars in default of which he foreshadowed an application to strike out the application or an application for security for costs.
The Court observed that there appeared to be deficiencies in the notice of appeal. Mr Mentor indicated that, as a model litigant, the secretary had not issued a strike out application because the secretary wished to give Mr Pham the opportunity to explain the error of law which had allegedly been made. The matter was adjourned in order to enable Mr Pham to seek legal advice or to otherwise give consideration to the grounds upon which the appeal could be sustained. Shortly before the next directions hearing on 26 March 2007, Mr Pham served further documents including a further notice of appeal then called ‘Notice of Appeal Supplementary’.
The Court noted on that occasion, that the new document seemed little different from the previous one. The Court again explained the necessity for Mr Pham to define the errors of law made by the Tribunal. The matter was again adjourned to allow Mr Pham to define the errors of law upon which he relied. The Court also directed the secretary to provide Mr Pham with a copy of the transcript of the directions hearing during which the Court had explained the requirements for a valid notice of appeal. The directions hearing was adjourned until 16 April 2007. When Mr Pham had not filed any further documents by 11 April 2007, the secretary filed the first strike out application. However, on the morning of 16 April 2007, Mr Pham produced to the Court a further amended notice of appeal called ‘Notice of Appeal (Supplementary Number 2)’ with a copy to Mr Mentor.
As this document was different in form to the prior documents and, as Mr Mentor had had no time to consider its contents, the directions hearing was adjourned to 4 June 2007. In the circumstances, the Court ordered that Mr Pham pay the secretary’s costs of the directions hearing fixed at $250.
Today after hearing Mr Mentor’s careful and comprehensive submissions, the Court again outlined for Mr Pham the difference between errors of law and errors of fact and asked Mr Pham to direct his oral submissions to his best example of an error of law. Apart from repeating the assertion that his document raised errors of law, Mr Pham was unable to explain precisely what his complaint against the Tribunal amounted to.
Mr Pham filed an outline of argument dated 14 May 2007, which I have taken into account in assessing the validity of the notice of appeal. It is clear from that document and from his oral submissions that, despite the Court’s best efforts to explain the role of the Court, Mr Pham is intent upon re-agitating the merits of the matters raised before the Tribunal. This of course is not a task which the Court can undertake.
Indeed, Mr Pham contended that the Court was entitled to consider an appeal on the facts. He said this flows from s 44(7) of the Administrative Appeals Tribunal Act, which provides as follows:
If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:
(a)the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and
(b)it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:
(i)the extent (if any) to which it is necessary for facts to be found; and
(ii)the means by which those facts might be established; and
(iii)the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and
(iv)the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and
(v)the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and
(vi)whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and
(vii) such other matters (if any) as the Court considers relevant.
However, this section does not relate to the jurisdiction of the Court to hear an appeal but rather, with the powers of the Court if an appeal is properly constituted. Mr Pham also drew attention to the need for a clear case to exist before the drastic action of striking out a proceeding can be taken and again, I take this into account. The Court must proceed with caution because the step involved is severe.
I now turn to the paragraphs of the Notice of Appeal (Supplementary Number 2) in order to determine the extent to which they comply or not with the requirements of s 44 and O 53, r 2(b), in view of the authorities referred to.
Paragraph 2(a) appears to raise a question of fact. It certainly does not identify with precision a pure question of law. Paragraph 2(b) again lacks precision and is not formulated as a question of law. At best it raises a question of mixed fact and law. Paragraph 2(c) is also not formulated as a precise question of law. At best it may constitute or may raise a question of mixed fact and law. Again, paragraph 2(d) is not formulated as a question of law. It lacks the precision of a statement of a pure question of law. It raises a question of fact or possibly, a question of mixed fact and law. Once again, paragraph 2(e) is not formulated as a question of law and it certainly does not raise with precision a pure question of law. It falls into the category of seeking a broad inquiry, as was referred to in Etheridge. Paragraphs 2(f) and (g) can be dealt with together. These two again fall within the category of seeking a broad inquiry by the Court into certain issues which are not formulated as questions of law and are certainly not defined precisely as questions of law.
I turn now to the paragraphs numbered 1 to 11 after paragraph 2, which purport to state the errors of law. In each case, the notice asserts that the Tribunal erred in law by failing to consider and determine the numbered issues. The first issue seeks a re-agitation of the merits of one of the issues before the Tribunal, namely the reasonableness of the secretary’s request. Paragraph 2 again is not in the form of a formulated error of law, it lacks the precision of such a question. It raises questions of fact or possibly fact and law. Paragraph 3 seeks a broad inquiry by the Courts and lacks any precise formulation as a question of law. Paragraph 4 is not formulated as a question of law. It is not precise and raises a matter of mixed fact and law. Paragraph 5 covers much the same ground as paragraph 2(e) and is unacceptable for the same reasons. Paragraphs 6 and 7 raise matters similar to those raised in paragraphs 2(f) and 2(g) and are objectionable for the same reasons. Paragraph 8 does not identify any error of law. It is not formulated as a precise question of law and seeks a broad inquiry from the Court. Paragraph 9 raises a question of fact. No precise question of law is formulated. Similarly paragraphs 10 and 11 have the same deficiency.
Then in the paragraph numbered 2a, the notice alleges bias against the Tribunal Member. The allegation of bias is not stated in the form of a precise question of law. Neither do the allegations on their face support an allegation of bias, whether apprehended or actual.
Paragraph 3 of the notice sets out the orders sought from the Court. The final two orders are outside the jurisdiction of the Court and give some indication as to the underlying motivation and approach of Mr Pham. That is to say, he seeks from the Court a re-assessment of the merits of his case and damages for the harm done to him. It is unlikely that the Court has power to make the interlocutory orders sought.
Finally, in paragraph 4 the notice attempts to articulate the grounds upon which the questions of law should be answered in favour of Mr Pham. In this sense they are hopelessly inadequate and completely irrelevant. They fail entirely to meet the requirements of the Rules: see Birdseye at [18].
In paragraph 5, the notice asks the Court to make findings of fact in relation to each of the matters raised as purported questions of law.
It is, therefore, clear that the notice of appeal does not comply with section 44(1) of the AAT Act or to O 53 r 3(2)(b) of the rules.
Despite a series of attempts by the Court to require Mr Pham to articulate his complaint against the Tribunal in a form which might ground an appeal, he has been unable to do so. He has been unable to do so in three attempts at the document. He has been unable to do so orally. This is against a background of the Court having explained on a number of occasions the requirements of the law.
In the circumstances, the case falls within O 53 r 20(1)(a). Mr Pham has not filed a notice of appeal in the form required under the rules and the appeal may thus be dismissed for want of prosecution. Pursuant to that rule, Mr Pham’s application should be dismissed.
A case has also been made, in my view, under s 31A of the Federal Court Act. From the numerous attempts at articulating an objection valid in law to the decision of the Tribunal, both in writing and orally, I am satisfied that Mr Pham has no reasonable prospect of successfully prosecuting the appeal.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North . Associate:
Dated: 25 June 2007
Counsel for the Applicant: Appeared in person Counsel for the Respondent: Mr P Mentor Solicitor for the Respondent: Sparke Helmore Date of Hearing: 4 June 2007 Date of Judgment: 4 June 2007
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