FEDERAL COURT OF AUSTRALIA

Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 243

THE COURT ORDERS THAT:

1.                  The title of the proceeding be amended by amending the name of the second identified respondent to Secretary, Department of Education, Employment and Workplace Relations.

2.                  The applicant have leave to file an amended notice of appeal in terms of the notice of appeal dated 12 November 2009 supplemented where appropriate by the words in parenthesis that appear in the document filed with the court and dated 11 February 2010 entitled Notice of Appeal (Amended).

3.                  The further hearing of the applicant’s notice of appeal and the respondent’s notice of motion dated 26 February 2010 is vacated.

4.                  The notice of appeal and the notice of motion are adjourned to a directions hearing at 9.30 am on 16 April 2010.

5.                  The applicant pay the respondents’ costs of attendance at today’s 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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

(Revised from transcript)

1                     In this matter the applicant challenges a decision of the Administrative Appeals Tribunal constituted by Mr J. Handley, Senior Member, given on 5 November 2009.  That challenge, brought pursuant to a notice of appeal, was listed for hearing today.  Also listed for hearing is a notice of motion filed by the respondents and dated 26 February 2010.  By that notice of motion the respondents seek the summary dismissal of the application made by the applicant. 

2                     The content and form of the proceeding instituted by the applicant by way of the notice of appeal suggest that it was the applicant’s intent to rely upon s 44 of the Administrative Appeals Tribunal Act 1975. 

3                     It became apparent today in the course of the applicant’s submissions that the applicant wishes to challenge the decision of Mr Handley relying also upon the Administrative Decisions (Judicial Review) Act 1977.  When that became apparent, the respondent understandably complained that the notice of appeal gave no indication of any intended reliance upon the ADJR Act and told me that the respondent would not be in a position to proceed today should the applicant seek to rely on the ADJR Act.

4                     There is nothing in the notice of appeal or any other document which the applicant has filed which would have reasonably indicated that the applicant sought to rely upon the ADJR Act, let alone anything which indicated the basis upon which any such reliance is intended to be made.  I am not prepared to allow the applicant to proceed to rely upon the ADJR Act unless a challenge by reference to that Act is properly brought with proper notice of both the nature of the application and the grounds for it.  In the circumstances, the applicant seeks time in which to mount his challenge to the decision of Mr Handley by reference to the ADJR Act. It is necessary, if that accommodation is to be made, for today’s hearing to be adjourned.

5                     It was suggested by Mr Moore for the respondents, that it might nevertheless be possible for the respondents’ notice of motion to be dealt with to finality today.  I decline to do that.  I do so on the basis that it is not apparent at the moment whether the applicant seeks to continue with an application founded upon s 44 of the Administrative Appeals Tribunal Act. In those circumstances it seems to me that the utility of proceeding with an application for summary dismissal of a notice of appeal based on the Administrative Appeals Tribunal Act is doubtful. 

6                     The adjournment of this proceeding has been necessitated by the fact that the applicant has failed to properly identify in the application filed before the Court that he intends to rely upon the ADJR Act.  Any confusion as to that issue is of the applicant’s making and is not of the making of the respondents.  Mr Moore applied for the costs of attendance at today’s hearing.  In the circumstances it is appropriate that the applicant pay those costs. 

7                     I am prepared to adjourn both the applicant’s notice of appeal and also the respondents’ notice of motion to a directions hearing, in order to provide the applicant with the opportunity to consider his position in relation to the current application, and to file any further application he seeks to make based upon the ADJR Act.  I would expect that at the next directions hearing the parties will be in a position to identify what applications are before the Court in relation to the controversy which has been raised by the applicant’s notice of appeal.  At that directions hearing the programming of those applications can be dealt with. 

Associate:

Dated:         17 March 2010