Uyar v Administrative Appeals Tribunal

[2011] FCA 623

FEDERAL COURT OF AUSTRALIA

Uyar v Administrative Appeals Tribunal [2011] FCA 623

Citation:		Uyar v Administrative Appeals Tribunal [2011] FCA 623
Parties:		AYDIN UYAR v ADMINISTRATIVE APPEALS TRIBUNAL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
File number:		NSD 569 of 2011
Judge:		ROBERTSON J
Date of judgment:		3 June 2011
Catchwords:		PRACTICE AND PROCEDURE – appeal from Administrative Appeals Tribunal - transfer from Federal Court to Federal Magistrates Court – order for transfer made on Court’s initiative – Administrative Appeals Tribunal Act s 44AA - Federal Court Rules O 82 rr 7, 8 – mandatory and discretionary considerations
Legislation:		Administrative Appeals Tribunal Act1975 (Cth) s 44AA Federal Court of Australia Act 1976 (Cth) s 32AB Federal Court Rules O 82 rr 7, 8 Federal Magistrate Court Rules O 8
Date of hearing:	3 June 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords.
Number of paragraphs:	21
Counsel for the Applicant:	The applicant appeared in person.
Solicitor for the Second Respondent:	Mr A Carter of Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 569 of 2011

BETWEEN:

AYDIN UYAR
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Second Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	3 JUNE 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is transferred from the Federal Court of Australia to the Federal Magistrates Court.

AND THE COURT DIRECTS THAT:

2.A sealed copy of this order be filed by the second respondent in the proceeding.

3.The Registrar send to the proper officer of the Federal Magistrates Court all documents filed and orders made in the proceedings, in accordance with O 82 r 8 of the Federal Court Rules  

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 569 of 2011

BETWEEN:

AYDIN UYAR
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Second Respondent

JUDGE:	ROBERTSON J
DATE:	3 JUNE 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding was commenced in this Court by a notice of appeal filed on 4 May 2011. The application is in respect of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) under s 42A(9) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).

2. The decision of the Tribunal was in the following terms:

   This application was dismissed on 23 December 2010 pursuant to subsection 42A(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

   On 7 February 2011 the Applicant applied under subsection 42A(8) of the AAT Act for reinstatement of the application.

   Being satisfied that this matter was not dismissed in error, pursuant to subsection 42A(9) the Tribunal refuses to reinstate this application. 

3. It appears that the proceedings in the Tribunal were for review of the decision of the Social Security Appeals Tribunal affirming Centrelink’s decision to reject Mr Aydin Uyar’s claim for disability support pension under s 94(1) of the Social Security Act 1991.

4. At the first directions hearing in this Court on 25 May 2011 there was no appearance by or on behalf of the applicant.  I made an order adding the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs as the second respondent and directed that the Secretary notify the applicant of the date for the adjourned directions hearing.

5. At the adjourned directions hearing on 3 June 2011 there was an appearance by Mr Aydin Uyar, the applicant. 

6. Section 44AA of the AAT Act, relevantly states that:

   If an appeal under subsection 44(1) … is pending in the Federal Court of Australia, the Federal Court of Australia may, by order, transfer the appeal from the Federal Court of Australia to the Federal Magistrates Court.

7. Here, because the decision was given by a senior member, subsection 44AA(2) does not apply. 

8. By subsection 44AA(3) the Federal Court of Australia may transfer an appeal under subsection (1) on the application of a party to the appeal or on its own initiative. 

9. Section 44AA(4) provides for Rules of Court making provision in relation to transfers of appeals to the Federal Magistrates Court under subsection (1).

10. Section 44AA(5) provides for Rules of Court setting out factors that are to be taken into account by the Federal Court in deciding whether to transfer appeals to the Federal Magistrates Court under subsection (1).

11. Section 44AA(7) of the AAT Act provides that in deciding whether to transfer a proceeding to the Federal Magistrates Court the Federal Court must have regard to:

    (a)any Rules of Court made for the purposes of subsection (5); and

    (b)whether proceedings in respect of an associated matter are pending in the Federal Magistrates Court; and

    (c)whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceedings; and

    (d)the interests of the administration of justice. 

12. Order 82 of the Federal Court Rules makes the provision referred to in s 44AA(5) of the AAT Act. Order 82 r 7 prescribes factors that the Court or a Judge may take into account, in addition to the factors to which the Court or a Judge is required to have regard under subsection 32AB(6) of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”) or subsection 44AA(7) of the AAT Act.

13. Those additional but, in terms, non-mandatory factors are:

    (a)whether the appeal is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue;

    (b)whether, if the proceeding or appeal is transferred, it is, in the opinion of the Court or the Judge, likely to be heard and determined at less cost and more convenience to the parties than if the appeal is not transferred;

    (c)whether the appeal is, in the opinion of the Court or the Judge, likely to be heard and determined earlier in the Federal Magistrates Court; and

    (d)the wishes of the parties.

14. I note that s 32AB of the FCA Act provides more generally that if a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Magistrates Court. The mandatory factors are the same as for the specific power in s 44AA(7) of the AAT Act which I have set out above.

15. I asked Mr Aydin Uyar whether he had any wishes in respect of a proposed order to transfer the matter of the court’s own initiative from the Federal Court of Australia to the Federal Magistrates Court.  I explained to him that this transfer would not affect his substantive rights, but merely would transfer the appeal from this Court to the Federal Magistrates Court, which had a different and more economical costs regime, and, perhaps, less formal procedures.

16. Mr Aydin Uyar said that he left the question in my hands.

17. As I understood it this was the second respondent’s position also.   

18. Having regard to these matters and in particular to my conclusions that:

    1.the appeal is not likely to involve questions of general importance;

    2.if the appeal is transferred, it is, in my opinion, likely to be heard and determined at less cost and more convenience to the parties than if the appeal is not transferred;

    3.the absence of particular wishes of the parties, as outlined above;

    4.my opinion that the appeal is likely to be heard and determined earlier in the Federal Magistrates Court

    by order, I transfer the appeal from the Federal Court of Australia to the Federal Magistrates Court.

19. I direct that a sealed copy of this order be filed by the second respondent in the proceeding: see Federal Magistrates Court Rules, r 8.04.

20. I also note that under O 82 r 8 of the Federal Court Rules the Registrar must send to the proper officer of the Federal Magistrates Court all documents filed and orders made in the proceedings and I so direct.

21. I make no order as to the costs of the proceeding in this Court. 

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:       3 June 2011