FEDERAL COURT OF AUSTRALIA

Vili Lui v Secretary, Department of Education, Employment

and Workplace Relations [2008] FCA 1600

VILI LUI v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

NSD 1491 of 2008

RARES J

17 OCTOBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed with costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     This is an application for leave to appeal from an order made by Moore J dismissing the application and ordering the applicant to pay the respondent’s costs:  Liu v Secretary Department of Education, Employment and Workplace Relations [2008] FCA 1456.

2                     His Honour was hearing the first directions of an appeal purportedly filed under s 44 of the Administration Appeals Tribunal Act 1975 (Cth) against a decision of the Administrative Appeals Tribunal.  The notice of appeal had been filed on 6 August 2008 and was given a return date of 21 August 2008 at 9.30 am.  His Honour said that it had been listed and that the applicant had not appeared.  His Honour had the applicant’s name called outside the Court.  The applicant accepts that he did not appear on the occasion.

3                     His Honour acceded to the respondent’s application to dismiss the proceedings on two bases.  First, the applicant’s non-appearance and secondly, that on its face, the notice of appeal raised no question of law.  He then made the orders to which I have referred.

4                     On 19 September 2008 the applicant filed an application for leave to appeal.  No objection has been taken that that was out of time and I will deal with it on its merits.  The respondent tendered before me a letter which the Secretary’s solicitor had sent to the applicant on 19 August 2008 referring to specifically to the matter having listed before his Honour for directions at 9.30 am on 21 August 2008, attaching a notice of objection as to competency because the notice of appeal did not disclose a question of law and informing the applicant that if he failed to attend at the directions hearing, orders may be sought that the application be dismissed without costs and without further notice to him.  The applicant accepted before me that the letter had been sent to his address for service.

5                     I inquired of the applicant as to whether he was complaining that he had not understood that the matter was listed before Moore J on 21 August last or that there was some reason why he did not attend.  I did not understand the applicant to suggest that he had any reason for not attending the proceedings before Moore J.  He submitted to me that Moore J should have upheld his application on the occasion the matter was before him on the basis that it was his duty to maintain and consolidate the provisions expressed in the Constitution.  He referred to judicial power being conferred on the Court by s 71 and to the fact that the High Court could grant relief under s 75 against an officer of the Commonwealth.  The applicant also asserted that his application to the Court was supported on the basis that ss 7, 24 and 128 of the Constitution invested power in the people, and not the government, to make laws.  He complained that the Social Security Act 1991 (Cth) was, in some way, limited by those provisions of the Constitution, because it contained a provision in s 605(2) that the respondent could require a person who had entered a Newstart Activity Agreement to enter into another such agreement instead of the existing one.

6                     The applicant’s argument is patently untenable.  Sections 7 and 24 of the Constitution deal with election of members of the Senate and the House of Representatives by the people and s 128 with referenda to amend the Constitution.

7                     The gravamen of the applicant’s complaint to the tribunal was against the exercise by the respondent of a power under s 605(2) of the Social Security Act to require him to enter into a new activity agreement in place of an existing one.  The tribunal found that the statutory circumstances for the exercise of that power had been satisfied and that the respondent’s decision to impose an eight-week non-payment period for the applicant’s Newstart Allowance should be affirmed.

8                     The grounds for the application for leave to appeal claim that, in effect, his Honour’s judgment was unconstitutional, that there was a relationship between the Constitution’s “jurisdiction and the reciprocal relationship between the institutions it denotes and its expressed provisions,” as somehow illustrated in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 

9                     The applicant filed some particulars of his application for leave to appeal pursuant to direction for provision of submissions.  In those he claimed that he “re-iterates [sic] that the law is fact.”  He asserted:

 “The law is transparent and transparency allows for access and democracy allows for amendments.

Criminal behaviours are defined by law and they are also sanctioned by law.

Transparency cannot limit the knowledge of law and the application of law.”

He asserted that what had happened before his Honour and in the tribunal conflicted in some way with the provisions of the Constitution, that representative democracy invested power in the people and that any exercise of power was subject to the provisions of law.  He said that the provisions of the Constitution were “fact, and the institutions it denotes must consolidate its existence”.

10                  The questions of law contained in the notice of appeal before his Honour were that the decision of the tribunal was “unconstitutional” and “denotes that the provisions in the Commonwealth Constitution denote the existence of an autocratic government”.

11                  In my opinion, there is no possible legal basis for any of the applicant’s assertions.  They make no legal sense to me as arguments of fact or law.  They certainly disclose no question of law for the purposes of s 44 of the Administrative Appeals Tribunal Act.  So far as the assertions invoking provisions of the Constitution are concerned, I am of the opinion that they are colourable in the sense that they are so patently untenable as to be an abuse of the process of the Court.

12                  Although the applicant has very politely and carefully tried to articulate his submissions, they have no conceivable legal or factual foundation going to in any way impugn the lawful authority of the tribunal to make the decision against which the appeal was sought to be brought.

13                  An application for leave to appeal must establish that the decision below was attended by sufficient doubt to warrant the grant of leave and that substantial injustice would result from a refusal of leave to appeal:  Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.  I am not satisfied that there is any reason to doubt the correctness of Moore J’s decision nor am I persuaded that there is any injustice, let alone substantial injustice, that would be occasioned by refusing the application in the circumstances. 

14                  In my opinion, the application must be dismissed with costs.

Associate:

Dated:         28 October 2008