FEDERAL COURT OF AUSTRALIA

Zoia v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 661

PRACTICE AND PROCEDURE – notice of appeal – form of document – whether sufficient compliance with Federal Court Rules– whether the proceeding should be determined on the papers when litigant is in person

Held:  The applicant’s oral motion be dismissed.  The application be re-listed for hearing.

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

Federal Court Rules O 1 r 7(2)

Minister for Immigration & Multicultural Affairs v B (2000) 105 FCR 304

Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611

SAAK v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 185

Southern Hotels Pty Ltd, in the matter of Temple [2000] FCA 1406

ANGELO ZOIA v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

WAD 205 of 2008

MCKERRACHER J

17 JUNE 2009

PERTH

THE COURT ORDERS THAT:

1.                  The applicant’s oral motion be dismissed.

2.                  The applicant pay the respondent’s costs of the motion in any event.

3.                  The application be re-listed for substantive hearing. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                                             On 20 May 2009 this application under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) was listed for hearing. 

2                                             Mr Zoia appeared in person.  At an earlier directions hearing, leave was given to Mr Zoia to amend the name of the respondent.  Additionally, attempts were made to provide pro bono legal assistance for Mr Zoia.  It was not possible to obtain such assistance.  Neither has the amendment been made to correct the name of the respondent.  That can be attended to at the next hearing.  There is no objection to the amendment. 

3                                             Rather than proceeding with his appeal, Mr Zoia contended that there was a fatal defect in his own notice of appeal as the notice of appeal makes reference to an appeal from the ‘ATT’ rather than the ‘AAT’.  The notice of appeal had nevertheless been accepted for filing by the District Registry.  Mr Zoia described the acceptance of the filing of his notice of appeal as a ‘miscarriage of justice’.  His submission appeared to be that by virtue of the reference to the ‘ATT’ rather than the ‘AAT’ or the Administrative Appeals Tribunal, there was a fatal error which rendered his appeal a nullity.  He submitted that counsel for the respondent was therefore not entitled to appear.  Doing the best I can, I take Mr Zoia’s submission to be a motion to preclude the respondent from appearing by counsel, or at all, to oppose Mr Zoia’s application for relief under s 44 of the AAT Act.  Mr Zoia argued that because there was no valid notice of appeal, the Australian Government Solicitor had no right to appear on an invalid appeal.  To that the respondent indicated that it had been served with the notice of appeal and it filed an appearance in response to the notice of appeal.  The respondent had not noticed the typographical error (and it is doubtful whether anyone else had).  It was perfectly clear which decision Mr Zoia was seeking to be reviewed.

4                                             It was made clear to Mr Zoia that the appeal was before the Court and that any minor typographical error of that nature could be amended so as to permit the appeal to proceed.  The respondent also made clear that any amendment of that nature would not be opposed.  The respondent wished to proceed with the substantive hearing.

5                                             Mr Zoia, however, did not wish to make such an amendment and opposed the amendment being made by the Court. 

6                                             Although the ‘appeal’ was listed for hearing, Mr Zoia did not wish to and did not address any of the grounds in his notice of appeal but rather chose to address the procedural point.  Nevertheless, I set out below the Notice of Appeal, the orders sought and the grounds in support of the notice of appeal verbatim below as I do not consider that it is in the interests of justice for the hearing of this appeal to be delayed any longer:

1.         TAKE NOTICE that the applicant appeals from the decision of

constituted by    Ms G Ettinger

given on            4 September 2008 at Perth

whereby the Tribunal decided     affirms the decision of the SSAT dated 23 November 2007

2.         THE QUESTIONS OF LAW raised on the appeal are

1.         The Constitution of the Commonwealth of Australia.

2.         The High Court Judgment – Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330.

3.         Failed Justice.

4.         Failed Natural Justice.

5.         Failed Magna Carta, any charter guaranteeing liberty, any fundamental constitution or law guaranteeing rights.

6.         Failed Liberty, freedom to do as one please:  power of free choice:  privileges, rights, etc.

7.         “CATCHWORDS”, “Applicant refused to sign new Agreement”, where is Peter Langley affidavit saying that.  My Unemployment Benefits was cancel on Peter Langley information.  I said to Peter, could you make the date after the hearing. 

8.         Set the decision aside and substitute a new decision, that is despot justice, and also make them judge and jury.

9.         Set the decision aside, cancel, and substitute a new decision, that new decision can not be cancel.

10.        ARO, Brenda Parker can not correct a deception.  Centrelink was trying to collect a debt from me. 

11.        Constitution 64.  can not be delegated.

12.        This month at Max Employment, I was told, a Lawyer can get it but I can’t.  About Peter Langley information or notes.

3.         ORDERS SOUGHT

1.         My Unemployment Benefits to be fully restored plus compensation or ex gratia.

2.         Federal Court Rules – Pro Bono Publico.

3.         The Hon Court to summon Peter Langley to give his information.

4.         Secretary, Department of Employment and Workplace Relations to be changed to Minister, for Centrelink, under Constitution 64.

4.         GROUNDS:

1.         The Constitution of the Commonwealth of Australia.

2.         The High Court Judgment – Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330.

3.         Magna Carta

4.         Peter Langley information and notes.

5.         Justice and Natural Justice. 

CONSIDERATION

7                                             By O 1 r 7(2) of the Federal Court Rules (FCR) it shall be sufficient compliance with the rules as to the form of any document, if the document is substantially in accordance with the requirements.  This Order is directed to the issue of filing forms with the District Registry.  It is not concerned with the substantive issue, such as the grounds of appeal.  There is no doubt, in my view, that the minor typographical error which has confused nobody and probably has been noticed by nobody other than Mr Zoia, does not of itself mean that there has not been substantial non-compliance with the Rule. 

8                                             In SAAK v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 185 it was held that even if the form of application required under O 54B r 2 FCR required it to be completed in English, the Court would generally exercise a discretion under O 1 r 8 FCR through leave for non-compliance in a case where a non-English speaking applicant without access to translation services filed the form in a language other than English.  Rule 8 of O 1 is a slightly different provision entitling the Court to dispense with compliance of the requirements of the Rules where appropriate. 

9                                             Kiefel J also observed in Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 that r 7 is to be contrasted with r 8 in that the latter does not impose a test of ‘substantial’ compliance.  Her Honour pointed out that r 7 was a provision which permitted compliance to be achieved as distinct from r 8 which was concerned with dispensation where it cannot be achieved. 

10                                          In Southern Hotels Pty Ltd, in the matter of Temple [2000] FCA 1406 O'Loughlin J observed that (at [28]-[29]):

28.       …  The Rules of Court are not intended to be restrictive and litigants are not expected to adhere slavishly to procedures that may not be appropriate in the particular circumstances of a case.  The liberality that is available to litigants is quickly found in O 1.  Subrule 7(2) states that “it shall be a sufficient compliance with these Rules as to the form of any document if the document is substantially in accordance with the requirement or has only such variations as the nature of the case requires”. 

11                                          His Honour continued:

Order 1 r 8 gives to the Court a general power to dispense with compliance with any requirements of the Rules.  But no such application for an exemption was made.  As was said by the Master of the Rolls in Re Coles & Ravenshear [1907] 1 KB 1 at 4:

“Although I agree that a Court cannot conduct its business without a code of procedure, I think that the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.”

29        Whilst it might now be necessary to search for a fresh analogy, the sentiments in that passage remain true to this day: Morres v Papuan Rubber and Trading Co Ltd (1914) 14 SR (NSW) 141 at 142 per Cullen CJ; Jess v Scott (1986) 12 FCR 187 at 189.  …

12                                          A similar approach was taken in Minister for Immigration & Multicultural Affairs v B (2000) 105 FCR 304 by Wilcox J and, as mentioned, by Kiefel J in Rishmawi [1999] FCA 611.

13                                          While substantial compliance is required under r 7 as compared with r 8, the underlying philosophy in each instance is clearly to endeavour to achieve such justice as is appropriate in the case.  As this case illustrates, the approach contended for by Mr Zoia would cause the wheels of justice to grind to a holt. 

14                                          I do not accept Mr Zoia’s submission that there has been a miscarriage of justice by the acceptance of his notice of appeal which bears reference to an appeal from the ‘ATT’ rather than the AAT.  This is an appropriate case for concluding that there has been sufficient compliance with the Rules. 

15                                          The respondent made it clear that if, in my reserved decision, I were to reject Mr Zoia’s submission as to the ‘miscarriage of justice’, that the respondent would be content to have the appeal determined on the papers if Mr Zoia were also content.  I would be willing to determine the appeal on the papers but as Mr Zoia is unrepresented, I believe he should have the opportunity in open Court to say anything further in support of his appeal.

16                                          The matter will be re-listed for hearing of the substantive appeal as soon as reasonably possible.

17                                          I will order that:

1.                  The applicant’s oral motion be dismissed.

2.                  The applicant pay the respondent’s costs of the motion in any event.

3.                  The application be re-listed for substantive hearing. 

Associate:

Dated:         17 June 2009