Zoia v Commonwealth Ombudsman

[2007] FCA 245

FEDERAL COURT OF AUSTRALIA

Zoia v Commonwealth Ombudsman [2007] FCA 245

PROCEDURE – summary judgment – no reasonable prospect of ‘appeal’ being successfully prosecuted

FREEDOM OF INFORMATION – appeal from decision refusing to reinstate application for review – previous dismissal of application – non-attendance by applicant on each occasion – no evidence of prospects of success on appeal

Held:  appeal dismissed

Federal Court of Australia Act 1976 (Cth) ss 31A(2), 31A(2)(b), 31A(3)

The King v Barger (1908) 6 CLR 41

ANGELO ZOIA v COMMONWEALTH OMBUDSMAN
WAD 263 OF 2006

NICHOLSON J
1 MARCH 2007
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 263 OF 2006

BETWEEN:	ANGELO ZOIA Applicant
AND:	COMMONWEALTH OMBUDSMAN Respondent

JUDGE:	NICHOLSON J
DATE OF ORDER:	1 MARCH 2007
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The respondent’s notice of motion be allowed.

2.The applicant’s ‘appeal’ dated 12 September 2006 be dismissed.

3.The applicant pay the respondent’s costs of the appeal, including any costs reserved and the costs of the notice of motion dated 10 January 2007.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 263 OF 2006

BETWEEN:	ANGELO ZOIA Applicant
AND:	COMMONWEALTH OMBUDSMAN Respondent

JUDGE:	NICHOLSON J
DATE:	1 MARCH 2007
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The respondent brings a notice of motion seeking that the applicant’s appeal dated 12 September 2006 be dismissed. In this respect the respondent relies upon the power of the Court in s 31A(2) of the Federal Court of Australia Act 1976 (Cth) to give judgment for one party against another in relation to the whole of a proceeding if (b) ‘the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding …’. This is to be read with s 31A(3) that provides that for the purposes of the section a proceeding need not be hopeless or bound to fail for it to have ‘no reasonable prospect of success’.

2. The respondent relies on an affidavit of Mr Hill, a solicitor of the Australian Government Solicitor and written submissions.  The applicant relies on an outline of submissions. 

3. The applicant’s notice of appeal seeks to appeal from a decision of Deputy President Hotop in the Administrative Appeals Tribunal (the Tribunal), Perth given on 6 September 2006.  On that date the Deputy President directed:

   ‘Pursuant to ss 42A(9) and 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth), the applicant’s application for reinstatement of the application for review, which was dismissed by the Tribunal on 17 July 2006 pursuant to s 42A(2) of that Act, is refused.’

   The transcript of the Tribunal hearing on that date shows that the reason given by the Deputy President for his decision was that the applicant ‘has not provided any substantial grounds in support of his application for reinstatement’.  He also stated that:

   ‘In his request for reinstatement, he does not provide any explanation as to why…