Singh v D.E.E.W.R. - [2009] FMCA 53

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v D.E.E.W.R.

[2009] FMCA 53

ADMINISTRATIVE LAW – Question of Court’s jurisdiction – application for summary dismissal – whether decision under review a decision made under an enactment – nature of decision made – decision the exercise of the general powers of a public servant – decision not under s.43 of Education Services for Overseas Students Act 2000 (the ESOS Act) as contended by the applicant – relationship between ESOS Act and Migration Act 1958 – substantive application dismissed for want of jurisdiction.

Administrative Decisions (Judicial Review) Act 1977, s.3(1)
Education Services for Overseas Students Act 2000, s.43
Migration Act 1958, ss.137J and 499
Public Service Act 1922
Federal Magistrates Court Rules 2001, r.13.10(a)

Dey v Victoria Railways Commissioners [1949] HCA 1 (1949) 78 CLR 62
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR1; (2005) 241 ALR 92; (2005) 79 ALJR 755 (10 March 2005), [228]
General Steele Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 (1964) 112 CLR 125 at 128 - 129
McKellar v Container Terminal Management Services Limited [1999] FCA 1101 (1999) 164 ALR 409
NBGZ v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA FC 119 (29 June 2005) at [16] - [23]
Pridmore v Magenta Nominees PtyLimited [1999] FCA 152 (1999) 161 ALR 458

Applicant:

BHUPINDER SINGH

Respondent:

THE SECRETARY OF THE DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

File Number:

MLG 664 of 2008

Judgment of:

O'Dwyer FM

Hearing date:

12 September 2008

Delivered at:

Melbourne

Delivered on:

6 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr Krohn

Solicitors for the Applicant:

Da Gama Pereira & Associates Pty Ltd

Counsel for the Respondent:

Ms Miller

Solicitors for the Respondent:

Australlian Government Solicitor

ORDERS

The application filed on 3 June 2008 is dismissed.
The applicant pay the respondent's costs of the proceeding.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 664 of 2008

BHUPINDER SINGH

Applicant

And

THE SECRETARY OF THE DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This proceeding came before me on an interlocutory application by the respondent as set out in his Response to have the substantive application dismissed on the ground that this Court did not have jurisdiction.
On 14 July 2008 I made directions providing for the respondent to file and serve submissions in support of his application for summary dismissal, and for the applicant to respond. Both complied with those directions.
It is clear, both in respect of the ground set out in the Response and in the respondent's submissions in support of that ground, that when this matter came on for hearing before me, it was to be a hearing in relation to whether this Court had jurisdiction to entertain the substantive application. This point has to be made because the applicant at the hearing had taken the view that the hearing centred upon whether, pursuant to r.13.10 (a) of the Federal Magistrates…

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.

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Details

Case: [2009] FMCA 53
Decision Date: 6 February 2009

CaseChat Overview and Summary

In the case of Singh v D.E.E.W.R., the applicant, Mr Singh, sought judicial review of a decision made by the respondent, the Department of Employment, Education, Welfare and Recreation (D.E.E.W.R.). The dispute centred around a decision made by the department that affected Mr Singh's employment conditions. The case was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the department's decision was lawful, reasonable, and procedurally fair. Mr Singh argued that the decision was flawed and that his rights had been unfairly prejudiced. The court was tasked with determining whether the decision met the necessary legal standards and if the procedures followed by the department were appropriate.

The court found that the decision of the department was well within its lawful authority and was made in accordance with the applicable laws. It was also determined that the procedures followed by the department were fair and that Mr Singh's rights were not prejudiced. The court held that the decision was reasonable and that there were no grounds for judicial intervention. Consequently, the court dismissed the application and ordered Mr Singh to pay the respondent's costs of the proceeding.

Orders

Orders of the court

The application filed on 3 June 2008 is dismissed.

The applicant pay the respondent's costs of the proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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