FEDERAL COURT OF AUSTRALIA

Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1) 

Federal Court of Australia Act 1976 (Cth) s 24(1A), s 25(2), s 25(2B)(aa), s 31A

Federal Court Rules O 52 r 2AA, O 52 r 18(1), O 52 r 18(2),O 53 r 3(2), O 53 r 3(4)

Bienstein v Bienstein (2003) 195 ALR 225

Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1059

Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Lambe v Director General of Social Services (1981) 57 FLR 262

Luck, Re (2003) 78 ALJR 177

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175

Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 92 FCR 101

RAYMOND BISHOP v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

NSD 1147 of 2008

BUCHANAN J

30 JULY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The proceeding which the applicant sought to commence by notice of appeal filed on 22 July 2008 is dismissed with costs.

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

REASONS FOR JUDGMENT

BUCHANAN J:

1                     On 22 May 2008, the Administrative Appeals Tribunal (‘the AAT’) affirmed a decision to cancel Mr Bishop’s disability support pension.  Mr Bishop filed an appeal in this Court.  Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘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.’

(Emphasis added)

2                     In Colby Corporation Pty Ltd v Commissioner of Taxation (2008) 165 FCR 133 a Full Court recently emphasised again the necessity for this statutory condition to be satisfied and drew attention to the remarks of Gummow J (sitting as a member of this Court) in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 that:

‘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.’

3                     Order 53 r 3(2) of the Federal Court Rules deals with appeals against decisions of the AAT.  It provides:

‘(2)      The notice of appeal shall be signed by the applicant or his solicitor and shall state:

(a)     the decision of the Tribunal from which the appeal is brought, the members constituting the Tribunal and the date when the decision was made;

(b)     the question or questions of law to be raised on the appeal;

(c)     the order sought, and

(d)     briefly, but specifically, the grounds relied upon in support of the order sought.’

4                     The importance of specifying the questions of law in the notice of appeal is also emphasised by O 53 r 3(4) which provides;

‘(4)      On the hearing of an appeal, the applicant shall not, without the leave of the Court, raise any question of law or rely on any ground in support of the order sought other than those stated in the notice of appeal.’

5                     The Court has emphasised that compliance with the provisions of O 53 r 3(2) is essential (Lambe v Director General of Social Services (1981) 57 FLR 262 at 264).

6                     At every level, therefore, the necessity for a proper foundation for an appeal against a decision of the AAT is apparent.  An appeal which does not meet the essential precondition of being an appeal ‘on a question of law’ is not a competent appeal.  A notice of appeal which does not identify a question of law does not provide a satisfactory foundation for the exercise of the Court’s jurisdiction.

7                     The notice of appeal which Mr Bishop purported to file from the decision of the AAT identified the suggested questions of law in the following way:

‘1.        Occupational health and safety Act.

2.         Government Policy on the Provision of housing.

3.         harbouring of criminals.’

8                     The order which was sought on appeal was:

‘I would be relieved to have a category of payment be made to me plus housing which will enable me to help my wife & son.’

9                     In a judgment given on 15 July 2008 (Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1059), Gyles J dismissed the purported appeal pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) as one not having any reasonable prospects of success.  His Honour said, of the matters identified as questions of law and of the order sought at [3]-[5]:

‘3.        Those questions do not raise any questions of law within the meaning of the Act and the order sought is entirely inappropriate.  In his submissions to me today, the applicant has, in effect, said that he was not entitled to a disability support pension but had been provided with one more or less as an act of grace by Centrelink.  I indicated at the beginning, when the matter was first called and then during the course of argument, that the limits on the Court’s jurisdiction and the deficiencies in the notice of appeal are such that, if the matter were to proceed, I would be bound to bring it to an end.  The applicant is concerned about his personal situation and the urgency of it and does not wish to have any adjournment of the matter to enable the notice of appeal to be recast.

4.                  The solicitor for the respondent has submitted that, if one goes back to the decision under review, particularly in the light of what is being said by the applicant, it will be seen that the objection to competency is not a mere matter of form and that there is no substance behind the appeal.  It appears to me that that is probably the case, although I do not know that I can come to that conclusion at the moment.  However, there is no doubt that the form of the notice of appeal is bad.  The applicant, notwithstanding his best efforts as an unrepresented person, is unable to articulate any questions of law.  In the circumstances, it seems to me that I have no option but to uphold the objection to competency and, whether it is competency in the strict sense or not, the matter should be brought to an end at this stage. 

5.         There is a question as to whether I should expressly allow power to replead.  It seems to me that is not appropriate in the circumstances.  There has been no suggestion that there is any chance of repleading and dismissal of this sort, in any event, is not a dismissal on the merits and, subject to time limits, does not bar another proceeding.  I have pointed out that there may be time limit implications but the applicant does not wish to seek any adjournment of the matter.’

10                  It is important to emphasise four matters identified by his Honour.  First, the matters identified as questions of law do not raise any questions of law at all.  Secondly, the order sought was inappropriate.  Thirdly, Mr Bishop did not wish to have the matter adjourned to rectify the defects in the notice of appeal.  Fourthly, dismissal of the application did not, subject to time limits, bar another proceeding.

11                  Mr Bishop has now sought to appeal from his Honour’s order.  The respondent has filed a notice of motion seeking that this appeal be struck out as incompetent.  Statutory directions for the exercise of the Court’s appellate jurisdiction are given in s 25 of the Federal Court of Australia Act 1976 (Cth).  Under s 25(2B)(aa) a single judge or a Full Court may give summary judgment in relation to an appeal.  The respondent’s notice of motion has been referred to me as Duty Judge.

12                  The power of the Court to grant summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) extends to an appeal.  That is because ‘proceeding’ is defined in s 4 as follows:

‘proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal.’

13                  The order made by Gyles J was an interlocutory order (see Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 92 FCR 101; Bienstein v Bienstein (2003) 195 ALR 225 at [25]; and Re Luck (2003) 78 ALJR 177).  Leave to appeal is accordingly required (see s 24(1A) of the Federal Court of Australia Act).  An application for leave to appeal against an interlocutory judgment may be dealt with by a single judge (s 24(1A), s 25(2) and O 52 r 2AA).

14                  Leave to appeal was not sought by Mr Bishop when he filed his appeal against the order made by Gyles J.  Without it any appeal is incompetent.  That is the foundation for the objection by the respondent to the competency of the appeal.  Order 52 r 18(1) and (2) provide:

‘(1)      A respondent may move on notice at any time for an order dismissing an appeal as incompetent.

(2)       Upon the hearing of the motion, the burden of establishing the competency of the appeal is on the appellant.’

15                  Order 52 r 10(1) and (2) provide:

‘(1)      An application for leave to appeal from an interlocutory judgment of the Court may be made orally to the Judge who has pronounced the judgment at the time of its pronouncement.

(2)       If an application has not been made in accordance with subrule (1), an application may be may by motion on notice.’

16                              Order 19 deals with motions.  Normally, prior notice to other parties is required (O 19 r 2(1)).  However, under O 19 r 2(2), that requirement may be dispensed with in identified circumstances, including where other parties consent or where the Court dispenses with the requirement.  It was clear that, despite his difficulty appreciating the technical issues involved, Mr Bishop wished to keep his appeal alive if possible.  In the circumstances, and without opposition from the respondent, I told Mr Bishop I would accept his oral indication that he wished have leave to appeal and deal with it as an application to that effect.

17                  The test for the grant of leave is set out in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.  The question to be addressed is whether, in all the circumstances, the decision under challenge is attended with sufficient doubt to warrant its being reconsidered and whether substantial injustice would result if leave to appeal was refused, supposing the decision to be wrong.  In my view neither limb of this test is satisfied in the present case.  There is no doubt that Gyles J was correct in concluding that no question of law had been identified in the purported notice of appeal from the decision of the AAT and that the purported notice of appeal had, therefore, no reasonable prospects of success.  Mr Bishop accepted that his dissatisfaction with the decision of the AAT did not raise any legal question for consideration.  I am satisfied that there is no prospect at all that an appeal would succeed if leave to appeal was granted in the present matter.  No substantial injustice would result if leave to appeal was refused because, as Gyles J pointed out, the order dismissing the purported appeal did not, subject to time limits, bar further proceedings.

18                  Leave to appeal must, therefore, be refused.  The result is that the appeal is, as the respondent claims, incompetent.  The present proceedings are, therefore, also ones which should be dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).  The order which I make will be that the proceeding which the applicant sought to commence by notice of appeal filed on 22 July 2008 is dismissed with costs.

Associate:

Dated:         30 July 2008