FEDERAL COURT OF AUSTRALIA

von Reisner v Commonwealth of Australia [2008] FCA 1108

Re Luck (2003) 203 ALR 1 cited

KODIU VON REISNER v COMMONWEALTH OF AUSTRALIA and STATE OF NEW SOUTH WALES

NSD 626 of 2008

BRANSON J

31 JULY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application, except to the extent that it was previously dealt with,  be dismissed.

2.                  There be no order as to costs.

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

THE COURT ORDERS THAT:

1.          To the extent, if any, that is it necessary, the applicant have leave to appeal order 2 of the orders made in proceeding NSD 1540/2007 on 31 March 2008. 

2.          The time within which any notice of appeal from order 2 of the orders made in NSD 1540/2007 on 31 March 2008 is to be filed and served is fixed as within 21 days from the determination of this application.

3.          The application is otherwise stood over to a date to be fixed to allow the respondents, or either of them, to approach the Chambers of Flick J to enquire whether his Honour may wish to re-list the matter for the purpose of giving consideration to exercising the power set out in O 35 r 7 (2) (e) of the Federal Court Rules with respect of any or all of orders 1, 2 and 4 made on 30 November 2007 and order 1 made on 31 March 2008 made in proceeding NSD 1540/2007.

4.          The second respondent to apply to the Associate to Branson J to re-list the application as promptly as is practicable but in any event within 4 weeks of today’s date.

5.          Liberty to each party to apply on short notice.

6.          Costs reserved.

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

REASONS FOR JUDGMENT

                Introduction

1                     These are the reasons for judgment in respect of orders made in this matter on two occasions, first on 17 June 2008 and then on 18 July 2008.

2                     On 2 May 2008 Ms von Reisner, who does not have the benefit of legal representation, filed an application for an extension of time within which to appeal from certain orders made in matter NSD 1540 of 2007.  Although neither respondent raised the issue, it seems to me that the orders from which Ms Reisner wished to appeal are interlocutory in character with the consequence that an appeal lies from them only with leave (s 24(1A) of the Federal Court of Australia Act 1976 (Cth); Re Luck (2003) 203 ALR 1).  Neither respondent suggested that it would be prejudiced if I treated Ms von Reisner’s application as an application for leave to appeal and waived the requirement for compliance with the Federal Court Rules (“FCRs”) accordingly.

3                     In Matter NSD 1540 of 2007 Ms von Reisner and another applicant claimed relief against the respondents in reliance on, amongst other things, certain international treaties signed by Australia, the Housing Assistance Act 1996 (Cth) (“Housing Assistance Act”), national asbestos codes of practice, the Privacy Act 1988 (Cth) and the Constitution.  The principal concern of the applicants appears to be the presence of asbestos in public housing owned by the State of New South Wales.

Orders of 17 June 2008

4                     On 17 June 2008 I made the following orders:

1.         To the extent, if any, that is it necessary, the applicant have leave to appeal order 2 of the orders made in proceeding NSD 1540/2007 on 31 March 2008. 

2.         The time within which any notice of appeal from order 2 of the orders made in NSD 1540/2007 on 31 March 2008 is to be filed and served is fixed as within 21 days from the determination of this application.

3.         The application is otherwise stood over to a date to be fixed to allow the respondents, or either of them, to approach the Chambers of Flick J to enquire whether his Honour may wish to re-list the matter for the purpose of giving consideration to exercising the power set out in O 35 r 7 (2) (e) of the Federal Court Rules with respect of any or all of orders 1, 2 and 4 made on 30 November 2007 and order 1 made on 31 March 2008 made in proceeding NSD 1540/2007.

4.         The second respondent to apply to the Associate to Branson J to re-list the application as promptly as is practicable but in any event within 4 weeks of today’s date.

5.         Liberty to each party to apply on short notice.

6.                  Costs reserved.

5                     Order 2 of the orders made in proceeding NSD 1540 of 2007 on 31 March 2008 was:

The First Applicant [ie Ms von Reisner] is not to commence any proceedings in this Court without the prior leave of the Court, excluding any application to appeal or seeking leave to appeal from this decision.

6                     I considered it appropriate to grant leave to appeal from the above order, which was apparently made pursuant to O 21 r 1(1)(b) of the FCRs, because the making of an order under O 21 seriously affects an individual’s right of access to the Court and substantial injustice would therefore result if leave were refused supposing the order to have been wrongly made.  Additionally, in my view, sufficient doubt attends the decision to make the order.  That doubt, in my view, arises for the following reasons:

(a)                it is arguable that the respondents, who applied for an order under O 21 r 1(1)(b) in reliance on notices of motion filed in Court on the day that the order was made, are not persons authorised by O 21 r 1(2) to apply for the order;

(b)               the respondents’ motions were heard on that day over Ms von Reisner’s objection and O 19 r 2 of the FCRs was arguably not complied with in respect of the respondents’ applications; and

(c)                the reasons for judgment of the primary judge do not record his Honour’s satisfaction with respect to matters critical to the making of an order under O 21 r 1(1)(b); nor do they identify the evidence upon which his Honour relied in making the order.

Orders of 18 July 2008

7                     On 18 July 2008 I made the following orders:

1.         The application, except to the extent that it was previously dealt with, be dismissed.

2.         There be no order as to costs.

8                     The critical order for present purposes made by the primary judge (other than order 2 of the orders made on 31 March 2008) was order 1 of the orders made by his Honour on 31 March 2008.  That order, as originally made and as inconsequentially varied by his Honour, dismissed proceeding NSD 1540 of 2007 against both respondents.  It would be inappropriate to grant Ms von Reisner an extension of time within which to seek leave to appeal from that order, or indeed any of the earlier orders made by his Honour other than order 2 of the orders made on 31 March 2008, unless I considered it at least arguable that the claims that Ms von Reisner wished to make in the proceeding fall within the jurisdiction of the Court.

9                     Ms von Reisner, by the application and statement of claim and in her written and oral submissions, has identified many possible bases for the Court’s jurisdiction.

10                  The first purported basis is s 78 of the Constitution which authorities the Parliament to make laws conferring rights to proceed against the Commonwealth or a State in a matter within the limits of the judicial power.  Part 9 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) and in particular s 64 has been enacted in reliance on s 78.  Neither s 78 nor s 64 assists Ms von Reisner in demonstrating that the proceeding properly invoked the jurisdiction of the Federal Court. 

11                  Other legislative bases upon which Ms von Reisner relied include the Housing Assistance Act and the Commonwealth and State Housing Agreement Act 1945 (Cth).  Neither of these Acts confers private rights on individuals, nor do the international human rights treaties referred to in the legislation and identified in the application of themselves alter the law of Australia so as to create rights in any individual person.  The Vienna Convention on the Law of Treaties 1969 is for that reason also of no assistance in supporting the jurisdiction of the Court to hear and determine the proceeding.

12                  The National Asbestos Code of Practice for the Safe Removal of Asbestos 2005 and the National Asbestos Code of Practice for the Management and Control of Asbestos in the Workplace 2005 are also of no assistance in grounding jurisdiction in the Federal Court.  They are not sources of Federal Court jurisdiction.

13                  Ms von Reisner additionally placed reliance on ss 39B and 38(9) of the Judiciary Act.  There is no s 38(9) in the Judiciary Act.  Section 39B identifies various jurisdictions conferred on the Federal Court but none, in my view, has any direct relevance to this proceeding.

14                  The statement of claim filed on 7 August 2007 additionally placed reliance on the Privacy Act 1988 (Cth) and various common law causes of action.  They also, in my view, do not assist Ms von Reisner to demonstrate that her claims fall within the jurisdiction of the Federal Court. 

15                  Further, Ms von Reisner indicated that she wishes to place reliance on s 109 of the Constitution.  She pointed to an alleged inconsistency between the Residential Tenancies Act 1987 (NSW) and the Housing Assistance Act.  As indicated above, the Housing Assistance Act does not give rights to individuals and thus the alleged inconsistency is illusory.  Nor does the Trade Practices Act 1974 (Cth), and particularly s 4H of that Act upon which Ms von Reisner particularly relied, or the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the Housing Act 2001 (NSW), provide any assistance to Ms von Reisner.

16                  For the above reasons, I am not satisfied that there is a claim that Ms von Reisner wished to bring in the proceeding which falls within the jurisdiction of the Federal Court.  For that reason, subject to the orders made by me on 17 June 2008, her application must be dismissed.

Associate:

Dated:         31 July 2008