Sellars v The Secretary, Department of Health and Ageing

[2006] FCA 687

FEDERAL COURT OF AUSTRALIA

Sellars v The Secretary, Department of Health and Ageing
[2006] FCA 687

SELLARS v THE SECRETARY, DEPARTMENT OF HEALTH AND AGEING
NSD 753 OF 2006

SACKVILLE J
1 JUNE 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 753 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	BRENDA JUNE SELLARS APPLICANT
AND:	THE SECRETARY, DEPARTMENT OF HEALTH AND AGEING RESPONDENT

JUDGE:	SACKVILLE J
DATE OF ORDER:	1 JUNE 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 753 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	BRENDA JUNE SELLARS APPLICANT
AND:	THE SECRETARY, DEPARTMENT OF HEALTH AND AGEING RESPONDENT

JUDGE:	SACKVILLE J
DATE:	1 JUNE 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter was first in the directions list on 18 May 2006.  On that date the proceedings were adjourned until today, 1 June 2006. 

2. The applicant has not appeared at the directions hearing today.  Mr Markus who appears on behalf of the respondent has applied for an order pursuant to the Federal Court Rules, O 35A r 3, dismissing the proceedings on the ground that the applicant has failed to attend the directions hearing.

3. The proceedings were commenced in this Court by the filing of a notice of appeal on 21 April 2006.  The notice of appeal, which is in handwritten form, challenges a decision of the Administrative Appeals Tribunal given on 31 March 2006.  The Tribunal gave oral reasons for affirming a decision not to disclose certain material to the applicant pursuant to the provisions of the Freedom of Information Act1982 (Cth).

4. The request for information that gave rise to the proceedings concerned the history of care of the applicant's aunt who passed away in 2004.  The notice of appeal does not identify any error of law alleged to have been committed by the Tribunal.  That fact was pointed out to the applicant at the first directions hearing and she was urged by the Court to obtain legal advice.  In order to assist her, a copy of the transcript of the proceedings was forwarded to her together with a list of legal aid agencies.

5. Following those communications the applicant wrote to the Court indicating that she did not intend to continue with the proceedings.  She has also written in similar terms to the Department of Health and Ageing.  It seems clear enough that the applicant's non-appearance today reflects her decision not to proceed with the challenge to the decision of the Tribunal.

6. In these circumstances I think it is appropriate to make the order sought by Mr Markus, namely the dismissal of the proceedings. 

7. Mr Markus has indicated that the respondent also seeks an order for costs.  That is the usual course where proceedings are dismissed in circumstances such as those that are present in this case.  Mr Markus also refers to the fact that on 15 May 2006, prior to the first directions hearing, the Australian Government Solicitor wrote to the applicant drawing to her attention that in Federal Court proceedings the general rule is that the successful party is entitled to an order for costs.  The letter urged the applicant to consider obtaining independent legal advice.  That same suggestion was, of course, made by me at the first directions hearing.

8. Mr Markus also points out that the respondent has incurred costs, in the form of the preparation of an affidavit on behalf of the respondent dealing with an issue of confidentiality of documents that was raised at the first directions hearing.  He submits that these costs would have been unnecessary had the applicant withdrawn earlier.

9. In the circumstances, I think that it is appropriate for an order for costs to be made against the applicant.  I do so with some reluctance as it is clear that the applicant has felt genuinely aggrieved by the refusal to provide her with information relating to the care of her aunt.  Moreover, the applicant has ultimately decided not to proceed with the litigation.  Nonetheless, costs have properly been incurred by the respondent and the proceedings have been dismissed.

10. For these reasons, I order that the application be dismissed and that the applicant pay the respondent's costs.  I note, however, it may be that those responsible within the respondent for the dealings with the applicant might consider whether in the circumstances it is appropriate for an order for costs to be enforced against the applicant.  That, however, is a matter for those having carriage of the proceedings to determine.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:  1 June 2006

There was no appearance by the applicant
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 June 2006
Date of Judgment:	1 June 2006