FEDERAL COURT OF AUSTRALIA

Ibarcena v Secretary, Department of Family & Community Services

[2003] FCA 1354

JEREMY PATRICK IBARCENA AND SHIRLEY GIBBONS v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

A 19 OF 2003

STONE J

21 NOVEMBER 2003

CANBERRA

THE COURT ORDERS THAT:

            1.         The application be dismissed. 

            2.         The applicants pay the respondent’s costs. 

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

REASONS FOR JUDGMENT

1                     On 23 June 2003 the applicants filed an application in this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).  They appeal from a decision of the Administrative Appeals Tribunal (‘Tribunal’) of 30 May 2003 affirming a decision of the Social Security Appeals Tribunal (‘SSAT’), that in turn affirmed a review officer’s decisions.  The decisions were that the first and second applicants each owed a debt to the Commonwealth in the amounts of $654.51 and $549.20 respectively. 

2                     As originally filed the notice of appeal named two officers of the respondent as the respondents.  In his written submissions the solicitor for the respondent sought leave, under O 6 rr 8 and 9 of the Federal Court Rules, to remove those officers as respondents and substitute the Secretary of the Department of Family and Community Services (‘Secretary’).  The application to the Tribunal was brought against the Secretary and, in my view, the Secretary is the correct respondent in this matter.  Accordingly, leave was given and the current respondent replaced the two originally named respondents as the only respondent in this proceeding. 

3                     As will become clear, the applicants’ appeal is misconceived.  Section 44(1) of the AAT Act provides:

‘(1)      A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.’

4                     In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation  (1988) 82 ALR 175 Gummow J observed, at 178, that with respect to appeals under s 44 of the AAT Act: ‘The existence of a question of law is… not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself’.  More recently, two separate Full Court decisions have considered the precision with which a question of law must be stated to ground an appeal under s 44 of the AAT Act; see Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 and Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244.  In order to conform to s 44(1) of the AAT Act and O 53 r 3(2) of the Federal Court Rules, it is necessary to identify a question of law.  In the absence of such a question this Court’s jurisdiction is not enlivened.  The notice of appeal in this case states:

‘THE QUESTIONS OF LAW raised on the appeal are the interpretation of the Data Matching Program (Assistance and Tax) Act 1990 (Cth), Social Security Act 1991 sections 1224C, 1075, Income Tax Assessment Act 1936 sections 51 and 54, enacted as the will of The Australian Parliament in application of its objectives to clearly establish the principles of Justice to govern all Australian Citizens.’ 

5                     It is clear that even if this paragraph refers to a question of law it does not formulate a question of law.  At the hearing today there has been considerable discussion between me and Mr Ibarcena, who spoke for both applicants, attempting to formulate a question of law.  As I explained to Mr Ibarcena, the respondent and the Court need to be able to discern from the notice of appeal the question the Court is asked to answer.  Reading this notice of appeal it is not possible to do so nor was Mr Ibarcena able to identify such a question. 

6                     At one point Mr Ibarcena requested an adjournment so that he might file an amended notice of appeal in an attempt to overcome the deficiencies of the one presently before me.  I would have been prepared to consider an adjournment had I had any confidence in Mr Ibarcena being able to formulate a question of law.  However, having read carefully the notice of appeal and the submissions of both parties it is not at all clear to me that any question of law arises in this case.  The grounds of appeal as set out in the notice of appeal appear to raise only issues of fact. 

7                     After considerable discussion Mr Ibarcena conceded that he was not able to articulate a question of law and requested that I deliver judgment immediately.  I explained to him that this amounted to an invitation to me to dismiss his application and offered him a short adjournment to consider his position.  He declined that offer and stated, in effect, that his inability to formulate a question of law is due to the fact that he is not a lawyer.  However, in my view, the difficulty goes further than that.  The difficulty is that the applicants are actually seeking merits review and that there is no way in which a request for merits review can be formulated as a question of law. 

8                     Despite being a litigant in person, other matters in which Mr Ibarcena has been involved before this Court indicate that he is an experienced litigant.  Indeed, he has had O 53 r 3(2) drawn to his attention on a previous occasion; see Ibarcena v Secretary, Department of Family & Community Services [2001] FCA 453.  In my view, there is nothing in the papers that I have that enlivens or could enliven the jurisdiction of this Court and there is no ground on which it would be appropriate for the Court to grant an adjournment.  Accordingly, the appeal must be dismissed with costs. 

Associate:

Dated:              25 November 2003