FEDERAL COURT OF AUSTRALIA
Peric v Secretary, Department of Education, Employment and Workplace Relations [2011] FCA 649
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | THE SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1 Pursuant to O 13, r 2 of the Federal Court Rules the title of the proceeding be amended to substitute as respondent the Secretary, Department of Education, Employment and Workplace Relations.
2 Judgment be entered for the respondent pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).
3 The applicant pay the respondent’s costs of and incidental to the proceeding including the costs of the motion, notice of which was given on 25 May 2011.
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.
VICTORIA DISTRICT REGISTRY | |
GENERAL DIVISION | VID 991 of 2010 |
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL |
BETWEEN: | NATASHA PERIC Applicant
|
AND: | THE SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent
|
JUDGE: | TRACEY J |
DATE: | 3 JUNE 2011 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
1 By application filed on 19 November 2010, Ms Natasha Peric sought to challenge an unidentified decision of the Administrative Appeals Tribunal (“the Tribunal”) concerning her entitlement to certain social security benefits.
2 It has emerged that the Tribunal had made no such decision and the grounds on which relief was sought plainly can have no relevance to a decision which, as I have already said, had not at the relevant time been made.
3 Subsequently, a series of directions hearings were held because it was not clear what the position was in relation to the tribunal’s handling of Ms Peric’s application, and it was not until earlier this year that the position was clarified and the facts that I have just recounted were established.
4 By notice of motion dated 25 May 2011 the respondent, who is identified as Centrelink, has moved the court for orders removing Centrelink as the respondent and substituting the Secretary, Department of Education, Employment and Workplace Relations. Centrelink is not a relevant entity under the legislation and the decision, if there had been one, would originally have been made by a delegate of the Secretary, and it would have been that decision which would have been the subject of the Tribunal’s attention. It is appropriate therefore, that the Secretary be substituted for Centrelink as the respondent to the proceeding.
5 The respondent also seeks summary judgment under section 31A(2) of the Federal Court of Australia Act 1976 (Cth) on the basis that Ms Peric has no reasonable prospects of successfully prosecuting the purported appeal.
6 Ms Peric has filed an affidavit in response to the notice of motion in which she says that she wishes to appeal against a decision that was made by the Tribunal on 12 May 2011 and she advances certain grounds for challenging that decision.
7 The affidavit clearly highlights the hopeless nature of the application that is presently before the Court, and in the absence of any decision of the Tribunal, there is no basis for an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) or for judicial review.
8 Accordingly, I consider it appropriate that summary judgment should be given under s 31A(2) of the Federal Court of Australia Act and an order to that effect will be made.
9 Ms Peric will, of course, be free, should she be so minded and so advised, to challenge the decision of the Tribunal which was handed down on 12 May 2011 and with which she is plainly, judging by the terms of her affidavit sworn today, dissatisfied.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. |
Associate:
