FEDERAL COURT OF AUSTRALIA

Secretary, Department of Employment and Workplace Relations v Cameron [2007] FCA 552

SECRETARY, DEPARTMENT OF WORKPLACE RELATIONS v STEPHEN CAMERON

NSD 292 OF 2007

GRAHAM J

10 APRIL 2007

SYDNEY

THE COURT:

1.                  Refuses the appellant’s application for leave to file an Amended Notice of Appeal.

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

REASONS FOR JUDGMENT

1                     What is presently before the Court is a Notice of Appeal filed on 1 March 2007 under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the Act’).  That Notice of Appeal raises three questions of law identified in paragraphs 2.1.1, 2.1.2 and 2.2.  The Notice of Appeal was filed on the last day permitted by s 44(2A)(a) of the Act.  Under s 44(2B) of the Act the Court may allow further time under s 44(2A)(a) within which an appeal on a question of law may be instituted  

2                     The appeal filed 1 March 2007 followed a decision of the Administrative Appeals Tribunal (‘the Tribunal’) constituted by Senior Member Hunt handed down on 1 February 2007.  That decision was expressed in the following terms:

‘The decision under review is set aside and substituted is the decision that Mr Cameron is entitled to payment of rent assistance from 15 December 1999.  Accordingly, he is entitled to back payments of rent assistance from that date to 14 June 2005.’

3                     I am informed by counsel for the appellant that the effect of the decision was to give rise to an entitlement in the respondent to receive an amount of $9,374.78. 

4                     The respondent, who comes from Newcastle or thereabouts, has appeared in person before me on the return date for the Notice of Appeal, namely 22 March 2007 and then again today.  He informed me on the last occasion that he had some legal assistance in respect of the preparation of a submission which was put by him to the Tribunal, but he has indicated that he has been unable to secure any legal assistance pro bono or otherwise in respect of the hearing of the appeal today.

5                     Upon the matter being called on for hearing earlier today counsel for the appellant sought leave to file in court an Amended Notice of Appeal raising four additional questions of law and modifying in part two of the three existing questions of law.  In response to a question from me directed to counsel for the appellant as to whether or not a refusal to grant leave to amend the Notice of Appeal would inevitably result in a loss for the appellant, it was submitted that it would not follow that a failure to grant leave to amend would produce such a result. 

6                     The Court should not grant the application for leave to amend unless positively satisfied that it is proper to do so.  The prescribed period of 28 days referred to in s 44(2A)(a) of the Act cannot be ignored.  Fairness, in my opinion, dictates that Mr Cameron should not be called upon to meet, on the hearing of the appeal, issues of which he has had no notice before today. 

7                     It is said by counsel for the appellant that the written submissions of the appellant, which were filed on 3 April 2007 and served on the respondent then or shortly thereafter, raise issues which are covered by the proposed Amended Notice of Appeal.  I am not satisfied that such notice as may have been provided in those written submissions overcomes the problem of unfairness likely to be occasioned to the respondent if leave to amend the Notice of Appeal were to be granted. 

8                     In the circumstances I refuse the application for leave to amend the Notice of Appeal.

Associate:

Dated:         17 April 2007