Solomon, A v Department of Social Security

[1991] FCA 401

jUDS[vlEI\JT No. .. ........ i ..... ........ .. 4 o t , ocI

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) NG 134 of 1991

1

GENERAL DIVISION )

BETWEEN :  ASHER SOLOMON

Applicant

AND :  DEPARTMENT OF SOCIAL SECURITY

Respondent

CORAM: Burchett J.
PLACE: Sydney

DATE : 3 July 1991

FEDERAL COURT OF
AUSTRALIA

EX TEMPORE REASONS FOR JUDGMENT \ EGlSTRY

BURCHETT J.:  _ _ _-

In this matter, M r Solomon brought an application in the Administrative Appeals Tribunal. That application was dismissed pursuant to the provisions of S. 42A(2) of the Administrative ADDealS Tribunal Act, 1975, which provides:

It is plain from the evidence that the pre-conditions for the application of that provision had in fact been satisfied at the time when the tribunal so dealt with Mr Solomon's application.

"If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a preliminary conference held in relation to the application under section 34 or at the hearing of the proceeding, the Tribunal may -

(a) where the only other party to the proceedings is the person who made the decision - dismiss the application without proceeding to review the decision. ..."

Mr Solomon then filed a notice of appeal in this court. As is well known, an appeal to the court from the Administrative Appeals Tribunal is limited to questions of law. The notice of appeal was lodged in person, and not surprisingly lacks some of the definition to be expected of a notice of appeal lodged by a legal practitioner. However, the questions of law and grounds of appeal set out in it are I think quite capable of interpretation, and it is plain that, with the possible exception of two of what are described as the questions of law, namely those lettered A and B, no ground of appeal, which has any real relevance to the basis on which the matter was dealt within the Administrative Appeals Tribunal, is raised.

The two questions of law, to which I have referred, are possibly misplaced grounds of appeal. They read as follows:

A. An application that the Legal Aid Commission approve

legal representation was approved in the first instant

and refused at the sitting of the preliminary conference.

B. Being without legal representation the applicant has

been denied natural justice.

Mr Solomon has again repeatedly failed to attend directions hearings of this court, although he did attend at the initial hearing and possibly some hearings thereafter. He has certainly not appeared on the last couple of occasions, and when called he did not appear today. There is evidence which satisfies me that he is well aware of the hearing today, and that he has received the notice of motion, together with affidavits in support of it. He has filed no affidavits in reply. The motion seeks an order of dismissal of the appeal to this court pursuant to Order 20 rule 2.

On the last occasion, I directed that the application would be dealt with today, and that Mr Solomon be notified of that fact in the manner which I specified. That has been done. The court plainly has power to give such a direction; and, without being exhaustive about that power, it is to be noted that rule 16 subrule 9 of Order 53 enables the requirements in respect of preparation of appeal papers to be modified by the judge, or indeed dispensed with. I did, in

normally be included in the appeal papers was included in the	fact, ensure by my directions that the information which would
material provided through the affidavits. Thus I am in a position to deal with the questions raised by the appeal now, and Mr Solomon has been put on notice that I would be asked to do so.

Section 32 of the Administrative A ~ ~ e a l s Tribunal- Act

makes it quite plain that there is no substance in any suggestion that mere absence of legal representation before the Tribunal involved a denial of natxral justice, even if any such contention had otherwise been open, which I do not think it would have been. The refusal of legal aid, of course, cannot involve any denial of natural justice, or in itself provide any basis for appeal against the decision of the tribunal. It thus seems to me to be perfectly plain that there is no substance in the appeal, since M r Solornon has now for some time taken no steps to prosecute it, there is no reason why the orders sought should not be made at once and the matter disposed of. Accordingly, I make an order dismissing the appeal with costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour M r Justice Btrrchett.

Associate:

Dated: 3 July 1991 c/