FEDERAL COURT OF AUSTRALIA

Zoia v Administrative Appeals Tribunal [2003] FCA 303

ANGELO ZOIA v ADMINISTRATIVE APPEALS TRIBUNAL

W325 of 2002

CARR J

1 APRIL 2003

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed pursuant to Order 20 rule 2 of the Federal Court Rules.

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

EX TEMPORE REASONS FOR JUDGMENT

introduction

1                     The Court is considering, of its own motion, whether this application should be stayed or dismissed generally under Order 20 rule 2 of the Federal Court Rules on the ground or grounds that no reasonable cause of action is disclosed or that the application is frivolous or vexatious, or is an abuse of the process of the Court.

factual and procedural background

2                     On 8 November 2002, the applicant filed a document which was a printed form headed “Notice of Appeal”.  In paragraph 1 of that document the applicant states that he appeals from the decision of the Administrative Appeals Tribunal given on 18 October 2002 whereby the Tribunal decided “Dismissed without Tribunal hearing”. 

3                     Paragraph 2 of that document reads as follows:

“THE QUESTIONS OF LAW raised on the appeal are

Freedom of Information.

Jurisdiction of Judicial Power.”

4                     In paragraph 3 under the heading “Orders Sought” there appears:

“JUSTICE.

Stay of proceeding, my rights to legal representative.”

5                     Under the heading “Grounds” in paragraph 4 of the document there appears the following:

“The Constitution.

The High Court ruled that ‘the Parliament has no power to entrust the exercise of judicial power to any other hands’.

They are saying that it is administration law, that is section 51 of the Constitution.”

6                     I note at this point that although the proceeding is referred to as an appeal, it is an application in the original jurisdiction of this court and, in my view, is a matter in respect of which the powers conferred under Order 20 rule 2 of the Federal Court Rules may be exercised.

7                     On 23 December 2002, the Australian Government Solicitor filed a notice of appearance on behalf of the Administrative Appeals Tribunal.  When the application first came on for directions, on 7 February 2002 the applicant did not appear.  Mr T J Carey appeared as counsel for the respondent and confirmed that the respondent’s position was that its appearance was a submitting appearance.  I made the following directions:

“1.       Applicant to file and serve on the respondent any affidavit upon which he intends to rely within 28 days.

  2.       The Court is considering whether to strike this application out as either disclosing no reasonable cause of action or being frivolous or vexatious or an abuse of the process of the Court pursuant to Order 20 rule 2 of the Federal Court Rules.

  3.       The applicant may within 42 days file and serve any written submissions in opposition to such striking out. 

  4.       The application is adjourned to 9.15 am on 1 April 2003 for the purposes of determining whether the application should be struck out or whether further directions should be made.”

8                     The District Registry sent a copy of those orders to the applicant. 

9                     On 12 March 2003, a document was received by the Court which appears to be from the applicant.  It does not bear the heading of these proceedings and although it is entitled “Affidavit” does not take the form of an affidavit.  The document reads as follows:

“AFFIDAVIT

1.         The Constitution of the Commonwealth of Australia.

2.         The Administrative Appeals Tribunal belongs to every Australian Citizen.

3.         Tribunal, in a court of justice.  The LAW, it is an offence to pervert the course of Justice.

4.         Mr Zoia is not entitle to Solicitor, TRUE or FALSE.”

10                  There was subscribed what appears to be the applicant’s signature unattested.  Mr Zoia has also forwarded to the Court a typewritten document dated 17 March 2003 headed “MR A ZOIA OPPOSITION TO SUCH STRIKING OUT”.  There is nothing in that document which sheds any light on the question or questions of law which the applicant seeks to raise in the appeal.   

11                  The first two paragraphs of the document to which I have just referred read as follows:

“1.       What happen to Mr Zoia requested for a STAY OF PROCEEDING; on the grounds my Legal Rights to Legal Representatives (Solicitor and QC) which I am still absent.

2.         The AAT has a Solicitor.  Your Honour, is Mr Zoia entitle to a Solicitor and QC, yes or no?”

12                  From that document and from a letter dated 27 March 2003 addressed to me it appears that the applicant is seeking to have this application stayed, apparently on the basis that he is unrepresented and at a disadvantage. 

13                  The underlying decision would appear to be that of the Registrar of the tribunal in relation to the applicant's request for copies of certain documents pursuant to the Freedom of Information Act 1982 (Cth).  As the applicant is unrepresented I have examined the papers forwarded to the Court by the Administrative Appeals Tribunal.  From those documents it would appear that on 14 June 2002 the applicant wrote to the Administrative Appeals Tribunal a letter which was treated as an application for review pursuant to s 29 of the Administrative Appeals Tribunal Act 1975 (the Act”). 

14                  On 11 July 2002, the Deputy Registrar of the Tribunal wrote to the applicant advising him that a conference would be held pursuant to s 34 of the Act in relation to his application at 9.30 am on 30 July 2002.  On 22 July 2002, the applicant wrote to the Tribunal in the following terms:

“Where is my Federal Solicitor-General representative.

I still have not got a Legal Representative.

POSTPONEMENT or hearing by correspondent.

Do not forget to sent the application form for the Federal Court.”

15                  The conference took place as scheduled on 30 July 2002.  A Senior Member of the Tribunal presided.  The applicant did not attend the conference.  The respondent to the application was the Registrar of the Tribunal.  One of his officers attended the conference.  The senior member made the following directions:

“1.       The applicant file with the Registry a statement in writing setting out what he believes are the relevant issues, facts and his reasons for seeking a review.  That statement should be provided on or before 30 August 2002 and a copy thereof be provided to the respondent’s representative, whose address is

                        C/- Mr Tim Carey

                        Australian Government Solicitor

                        GPO Box U1994

                        PERTH  WA  6845

  2.       That the respondent’s representative file with the Registry a reply in writing to the applicant’s statement, and serve a copy on the applicant, on or before 20 September 2002.

  3.       The matter be listed for a hearing as soon as practicable after 20 September 2002.”

16                  On 3 September 2002 the applicant wrote to the Tribunal in the following term:

“Dear Tribunal

The Administrative Appeals Tribunal does not come under section 71 of the Constitution, the High Court RULED that ‘the Parliament has no power to entrust the exercise of judicial power to any other hands’ (1909).

How many justices are on the bench?

The Federal Court does come under section 71 of the Constitution.” 

17                  On 6 September 2002 the Tribunal made directions in the following terms: 

“1.       The matter be listed for a directions hearing to deal with the applicant’s non-compliance to the direction made on 30 July 2002.

  2.       Should the applicant fail to attend the scheduled directions hearing, the application may be dismissed pursuant to s 43A(5) of the Administrative Appeals Tribunal Act 1975.”

18                  On the same date the Tribunal sent a copy of those directions to the applicant and notified him that the directions hearing would be heard on 18 October 2002.  The notification gave the address at which the hearing would be held. 

19                  The applicant did not appear at the directions hearing on 18 October 2002.  The Tribunal, constituted by a Deputy President, then issued a document headed “Direction”.  The relevant portions of which were in the following terms: 

“The Tribunal is satisfied that the applicant has failed within a reasonable time to comply with a direction by the Tribunal made under section 33(2) of the Administrative Appeals Tribunal Act 1975 in relation to this application.

The Tribunal therefore directs that the application be dismissed pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975 without the Tribunal proceeding to review the decision.” 

20                  The applicant, so it would appear, seeks from this Court further time in which to engage or be granted legal assistance.  It is now nearly five months since the applicant instituted these proceedings.  He has had ample time to arrange legal representation.  There is nothing in the papers before me which suggests that there is a reasonable likelihood of him being granted legal aid or other legal assistance within a reasonable time if these proceedings were stayed.

21                  Accordingly, I do not think that it is appropriate to stay these proceedings.  In my view, there is nothing which the applicant has placed before the Court which discloses any reasonable cause of action in the sense of raising any question of law which might give rise to a basis for reviewing the Tribunal’s decision to exercise its powers under s 42A(5) of the Act to dismiss the applicant’s application. 

22                  In those circumstances, I consider that the application should be struck out under Order 20 rule 2 of the Federal Court Rules.   

23                  Furthermore, this is the second time that the applicant has failed to appear at a directions hearing in this matter.  Were it not for the fact that I have decided to dismiss the application pursuant to Order 20 rule 2, I would have done so pursuant to Order 10 rule 3(2). 

24                  The order which I will make is:

1.         The application be dismissed pursuant to Order 20 rule 2 of the Federal Court Rules.

Associate:

Dated:              4 April 2003