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Scott v Handley

Scott v Handley

Case [1999] FCA 404 13 April 1999

Appeal

Jurisdiction

Procedural Fairness

Unconscionable Conduct

Standing

Costs

Administrative Law

Civil Litigation & Procedure

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Ralph Scott and Sophie Scott v. J.R. Handley, Senior Member, Administrative Appeals Tribunal (First Respondent) and Secretary, Department of Social Security (Second Respondent)
[1999] FCA 404
Nos. VG 593 and VG 594 of 1998
Number of pages - 13
Practice and Procedure

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

SPENDER, FINN AND WEINBERG JJ

Practice and Procedure - appeal from refusal by trial judge of adjournment - exercise of Court's discretion - role of appellate court - Crown as litigant - standard of conduct to be observed.

Judiciary Act 1903(Cth) s 39B

Social Security Act 1991 (Cth) s 100(2)

Administrative Appeals Tribunal Act (Cth) 1975 s 44

Sali v SPC Ltd (1993) 116 ALR 625 at 628-629 applied, 631, 635 referred to

Cropper v Smith (1884)26 Ch D 700 at 710-11 referred to

Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 applied

R v Thames Magistrates' Court, ex parte Polemis [1974] 2 All ER 1219 referred to

Squire v Rogers (1979) 27 ALR 330 at 337, 338 referred to

Sackville-West v Attorney-General (1910) 128 LT Journ 265 referred to

Maxwell v Keun [1928] 1 KB 645 at 650 referred to

Conroy v Conroy [1917] 17 SR (NSW) 680 at 683 referred to

Neil v Nott (1994) 121 ALR 148 at 150 referred to

Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342 referred to

Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 at 166 referred to

Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 196-197 referred to

SCI Operations Pty Ltd v Commonwealth of Australia (1996) 69 FCR 346 at 368 referred to

Director of Public Prosecutions (Cth) v Saxon (1990) 28 NSWLR 263 at 267, 268 referred to

Kenny v State of South Australia (1987) 46 SASR 268 at 273 referred to

Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 558-559 referred to

P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383-384 referred to

R v Tower Hamlets London Borough Council, Ex parte Chetnik Developments Ltd [1988] 1 AC 858 at 876-877 referred to

MELBOURNE, 12 February 1999 (hearing), 13 April 1999 (decision)

#DATE 13:4:1999

Mrs S. Scott appeared in person.

Counsel for the Second Respondent: Ms D Mortimer

Solicitor for the Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The appeals be allowed.

2. The orders of Heerey J of 15 October 1998 be set aside.

3. The notice of motion of the appellants dated 3 August 1998, the second respondent's notice of motion dated 3 April 1997 concerning relief sought by the appellants under s 39B of the Judiciary Act 1903 remitted by the Full Court by its orders of 3 October 1997, and the trial of proceedings VG 666 of 1996 and VG 69 of 1997 be remitted to Heerey J for directions for final hearing.

4. The costs of the hearing on 15 October 1998 be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Scott v Handley

Details

AGLC: Ralph Scott and Sophie Scott v. J.R. Handley, Senior Member, Administrative Appeals Tribunal (First Respondent) and Secretary, Department of Social Security (Second Respondent) [1999] FCA 404 Nos. VG 593 and VG 594 of 1998 Number of pages - 13 Practice and Procedure
Case: [1999] FCA 404
Decision Date: 13 APRIL 1999

CaseChat Overview and Summary

Ralph Scott and Sophie Scott appealed against the refusal of the trial judge to grant an adjournment in proceedings concerning the administration of social security benefits. The court had to determine whether the refusal of the adjournment resulted in a miscarriage of justice. The court found that the appellants were unrepresented and the second respondent, who was an officer of the Commonwealth, had failed to comply with procedures designed to secure the fair and orderly preparation of the matter for hearing. The court concluded that the second respondent had fallen considerably short of the standard properly to be expected of the Commonwealth, and as a result, there was a miscarriage of justice. The appeals were allowed, the orders of Heerey J of 15 October 1998 were set aside, and the proceedings were remitted to Heerey J for directions for final hearing. The respondent Secretary, Department of Social Security was ordered to pay the appellants' costs of the appeals, if any.

The court acknowledged the importance of the discretion of the trial judge in determining whether to grant an adjournment. However, in this case, the court found that the second respondent's failure to comply with procedures and inform the trial judge of the default had a significant impact on the appellants' ability to prepare for the hearing. The court emphasized the need for the Commonwealth and its officers to adhere to standards of fair dealing in the conduct of litigation. The court also highlighted the challenges faced by unrepresented litigants in ensuring that the system of civil litigation functions fairly and justly.

Orders