FEDERAL COURT OF AUSTRALIA

Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773

PRACTICE AND PROCEDURE – appeals – Federal Court Rules O 52 r 18 – application for summary dismissal of appeal.

Held: Appeal dismissed.

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Federal Court of Australia Act 1976 (Cth), s 25(2B)(aa)

PETER ZAMBINI v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

SAD 253 OF 2006

MANSFIELD J

11 DECEMBER 2006

ADELAIDE

ON THE RESPONDENT’S NOTICE OF MOTION OF 16 NOVEMBER 2006THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay to the respondent his costs of the appeal, including the costs of the motion.

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

REASONS FOR JUDGMENT

1                     Mr Zambini has for some years received benefits under the Social Security Act 1991 (Cth) (the Act).  He received sickness benefits between 11 August 1993 and 17 October 1995, and has received disability support pension from 19 October 1995 to the present time.  He says he did not want, and does not want, those benefits and that they were granted to him in error.

2                     The decision to grant him those benefits was affirmed by the Administrative Appeal Tribunal (the Tribunal).  Mr Zambini appealed from that decision.  An appeal from that Tribunal lies to this Court for error of law only: s 44, Administrative Appeals Tribunal Act 1975 (Cth).  On 16 October 2006 a judge of this Court ruled that there was no error of law in the decision of the Tribunal to affirm the decisions under the Act to grant Mr Zambini those benefits, and to continue to make available to him the disability support pension.

3                     Mr Zambini has now appealed to the Full Court of this Court from that decision of 16 October 2006.

4                     The Secretary, by notice of motion of 16 November 2006, has applied for an order under O 52 r 18 of the Federal Court Rulesthat the appeal be dismissed as incompetent.  That is because, it is submitted, Mr Zambini has not specified in his notice of appeal proper grounds of appeal, nor identified any question of law or fact upon which the Full Court might reverse the decision of the learned judge at first instance.  In essence, by invoking O 52 r 18, the Secretary is seeking to have the appeal summarily dismissed.  Such an application is within the jurisdiction of a single judge under s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth).

5                     Obviously, an appeal should not be dismissed on such grounds if there were some identified or identifiable grounds capable of supporting an argument that the appeal might succeed.

6                     Order 52 r 13(2) requires the notice of appeal to state whether the whole or part only and what part of the judgment is appealed from, to state briefly but specifically the grounds relied upon in support of the appeal, and to state what judgment the appellant seeks in lieu of the order appealed from.  I think it is plain enough from the notice of appeal that it is the whole of the judgment of 16 October 2006 which is appealed from.

7                     The notice of appeal then specifies the grounds of appeal and the orders sought as follows:

“GROUNDS

1.         There is mixed systemic of process, fact and law  *Noteworthy respondent’s Sparke & Helmore Lawyer informed by letter Friday 27/10/06.

2.         I the applicant is of the view that there is no basis of fact for the conclusions and decisions and spin set out by Justice Besenko on Monday 16/10/06 in 2^nd page ‘THE COURT ORDER THAT’

Noteworth Federal Court Transcript hearing 11/10/06 acquired by Auscript (11/10/06 Account)

ORDERS SOUGHT:

1.                  An order denouncing and quashing the adverse decision of Australian Federal Court Justice Besanko (re Whistleblower) Come Forward).

2.                  That the matter be resolved as per Applicants initial application in a more sadisfactory and solution orientated lawful manner as set out in legislation Executive Arm Federal & State Govt (MLC Legislator) have been informed.”

8                     In my view, it is self-evident that that document does not state with any specificity, or indeed at all in any comprehensible way, the grounds relied upon in support of the appeal.

9                     In response to the notice of motion, Mr Zambini filed an affidavit on 27 November 2006.  In broad terms, it joined issue with the assertions that he did not in his notice of appeal comply with O 52 r 13.  It attached a lengthy document including a letter apparently to the solicitors for the Secretary dated 27 November 2006.  The lengthy document enclosed what it described as “an overview Grievance/facts & contentions”, a further “Grievance/Facts contentions Opposing your Motion” and a further “Grievance/Facts/contentions to oppose your Affidavit”.  I have read those documents.  I do not think that they identify in any coherent way any grounds relied upon in support of the appeal, or that they indicate that there is any prospect of the appeal succeeding.

10                  At a directions hearing on 29 November 2006, I explained to Mr Zambini the deficiencies in his notice of appeal and what was required by the Rules.  I gave him an opportunity to file an amended notice of appeal to comply with Or 52 r 13(2)(b) and (c).  He has filed a further document of five pages dated 5 December 2006.  I think it makes clear enough, as required by O 52 r 13(2)(c), that he seeks an order setting aside the judgment appealed from and setting aside the decision of the Tribunal, so that his application to the Tribunal to review the decisions to grant him sickness benefits and subsequently disability support pension can be reheard and reversed.

11                  I have read that document carefully to see whether it could in any way identify briefly, but specifically, the grounds relied upon in support of the appeal.  I do not think it does.  I will not incorporate that document into these reasons simply because of its length.  It is discursive.  It is assertive about a number of alleged individual factual errors or omissions, but they do not provide any clear picture of the thrust of the appeal.  It is not either necessary or appropriate for me to address those individual facts on this application, because the issue is whether the notice of appeal briefly but specifically specifies grounds in support of the appeal, or whether by amendment it could achieve that purpose.  The document of 5 December 2006, in response to the opportunity given to Mr Zambini to meet that requirement of the Rules, does not do so.

12                  I have considered whether with further opportunity Mr Zambini could comply with that Rule.  In the course of the hearing today, I have gone through with him the reasons for judgment of the judge at first instance to see if he can identify any particular passages in those reasons which demonstrate or might demonstrate error.  Three things have emerged from that discussion.  The first is that Mr Zambini does not, in his criticisms of that judgment, distinguish between the recital by the learned judge of the history of his claims and the process of decision-making in relation to them from the consideration and reasons for the decision of the learned judge.  Nor does he do so in respect of the Tribunal’s decision.  A quite lengthy discussion illustrated that point and that Mr Zambini either would not or could not make that distinction.  In fact, the reasons for judgment of the learned judge largely record the history of Mr Zambini’s claims under the Act and of the process of decision-making in relation to them.  The second thing that emerged is that Mr Zambini disagrees with a number of the facts recorded as a matter of procedural history in a way which indicates that his complaints are of a factual nature only.  For instance, despite it being pointed out that in the bigger picture of his appeal and the nature of the relief which he seeks it was an unimportant issue, Mr Zambini nevertheless regarded it as significant that the learned judge had recorded that Mr Zambini was suspended from his former employment without pay from 28 July 1993 when he said the date should have been 12 July 1993.  When Mr Zambini made an application for a disability support pension supported by a medical certificate, Mr Zambini complained that the judge had recorded that it was “his” doctor who provided the certificate when, he says, it was provided by a doctor from the “miscellaneous workers union”.  Those two matters illustrate that Mr Zambini’s complaints, so far as I could discern them, relate to matters of fact and not to matters of law.  Thirdly, and more importantly, having gone through the judgment at some length, Mr Zambini has not identified to me any matter in which the learned judge at first instance could arguably be shown to have been in error in any way material to the appeal.  Nor did he identify any error of law or arguable error of law on the part of the Tribunal.

13                  In my judgment there is no prospect, giving Mr Zambini by a further opportunity to amend his notice of appeal, that he would be able to do so in a way which complies with O 52 r 13(2)(b).  That is not simply because I have reached the view that he is unable to express himself in terms which would satisfy that rule.  It is also because, as a result of his various responses to the motion referred to above, there is no apparent ground of appeal which might be arguable even if properly expressed.  It is plain not simply that O 52 r 13(2)(b) has not been complied with, but that there is no prospect of it being complied with.  It is also plain Mr Zambini is unable to express any error on the part of the learned judge at first instance which might give him an arguable prospect of the appeal succeeding, nor to express any error of law on the part of the Tribunal in its decision-making process.

14                  In those circumstances, it is appropriate to summarily dismiss his appeal by reason of his non-compliance with O 52 r 13(2) and I so order.

15                  I make the following additional comment.  Mr Zambini does not want the benefits which he had been granted under the Act.  The decision-makers must apply that Act in its terms. Although there may be circumstances which explain why Mr Zambini applied for sickness benefits and subsequently a disability support pension which are significant to him, the fact is that he made those applications and the decision-makers then had to address them.  It is perhaps curious that a person in Mr Zambini’s position continues to receive such benefits when he does not want them.  The answer may simply be that that is what the legislation provides.  It is then for the legislature to determine whether, in circumstances such as those of Mr Zambini, he should be entitled under the Act to withdraw his application for benefits, or by some process to cease to be entitled to benefits under the Act because he does not want or no longer wants to receive them, even though in terms of the Act as it is presently expressed he is entitled to them, and even though the decision-makers exercising delegated powers under the Act in its terms must continue to grant those benefits because in 1993 and 1995 respectively, Mr Zambini made the applications for sickness benefits and subsequently disability support pension.

16                  I therefore order, on the respondent’s notice of motion of 16 November 2006, that the appeal be dismissed.  The appellant must pay to the respondent his costs of the appeal, including the costs of the respondent’s notice of motion.

Associate:

Dated:         18 December 2006