Saddi, Awad v Secretary, Department of Social Security

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 700 of 1997

BETWEEN:

AWAD SADDI
Applicant

AND:

SECRETARY, DEPARTMENT OF SOCIAL SECURITY
Respondent

JUDGE:

BURCHETT J

DATE:

29 SEPTEMBER 1997

PLACE:

SYDNEY

REASONS FOR JUDGMENT

In this matter, Mr Saddi applied to Tamberlin J for an extension of time to file a notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975, wishing to challenge a decision of the Tribunal which had been made on 9 January 1995, the terms of which appear to have been served on Mr Saddi shortly after 26 May 1995. The decision of his Honour was given on 6 October 1995. In that decision, his Honour reviewed the matter in some detail, coming to the conclusion that, as he put it at page 9 of his decision:

“[I]t would be futile to grant an extension of time in this matter because the appeal cannot succeed in the light of the legislation.”

In reaching that conclusion, his Honour had regard to the decision in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125.

Tamberlin J accordingly dismissed the application for an extension of time. There the matter has lain for a very considerable period, until Mr Saddi has now decided to come before the court on an application supported by an affidavit filed on 1 September 1997. Mr Saddi has himself summarised the effect of his affidavit, in submissions to me, as being that he has been greatly occupied during the intervening period of almost two years by numerous moves of residence. On this basis, he seeks an extension of time in which to appeal against the decision of Tamberlin J, or if he needs leave, to make an application for leave so to appeal.

Nothing has been put before me to dispute the actual conclusion to which Tamberlin J came, that further pursuit of this matter cannot be of any benefit to Mr Saddi, and would indeed be futile. Furthermore, I do not think that the reason given by Mr Saddi for the failure to make an application or lodge an appeal over such a very long period can be regarded as a proper basis on which to exercise a discretion in his favour. Accordingly, the application is dismissed.

I note that as on the previous occasion, and very properly, if I may say so, in the circumstances, costs are not sought, and I make no order as to costs.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett

Associate:

Dated: 28 October 1997

Applicant: appeared for himself

Solicitor for the Respondent: Mr G Peek of the Australian Government Solicitor

Date of Hearing: 29 September 1997

Date of Judgment: 29 September 1997

CaseChat Overview and Summary

The case of Saddi, Awad v Secretary, Department of Social Security involved Mr Saddi, the applicant, seeking an extension of time to file a notice of appeal against a decision made by the Administrative Appeals Tribunal. The respondent was the Secretary of the Department of Social Security. The decision under review was made on 9 January 1995, and Mr Saddi was served with the terms of the decision on or around 26 May 1995. The matter came before the Federal Court, with Justice Burchett presiding.

The primary legal issue that the court had to address was whether Mr Saddi should be granted an extension of time to appeal the decision of the Administrative Appeals Tribunal. The court had to consider Mr Saddi's affidavit, which stated that he had been greatly occupied by numerous moves of residence during the period in question. The court also had to consider the earlier decision of Tamberlin J, who dismissed Mr Saddi's application for an extension of time on the basis that further pursuit of the matter would be futile.

Justice Burchett found that the reason given by Mr Saddi for the delay in making an application or lodging an appeal was not a proper basis for exercising discretion in his favour. The court noted that no evidence had been presented to dispute the conclusion of Tamberlin J that further pursuit of the matter could not benefit Mr Saddi and would indeed be futile. Consequently, the application for an extension of time was dismissed.

The court made no order as to costs, as was proper in the circumstances, and as no costs were sought. The decision was rendered on 29 September 1997, and the applicant appeared for himself while the respondent was represented by Mr G Peek of the Australian Government Solicitor.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 700 of 1997

BETWEEN:	AWAD SADDI Applicant
AND:	SECRETARY, DEPARTMENT OF SOCIAL SECURITY Respondent

JUDGE:	BURCHETT J
DATE:	29 SEPTEMBER 1997
PLACE:	SYDNEY

Applicant:	appeared for himself
Solicitor for the Respondent:	Mr G Peek of the Australian Government Solicitor
Date of Hearing:	29 September 1997
Date of Judgment:	29 September 1997