FEDERAL COURT OF AUSTRALIA

Dauguet v Centrelink [2015] FCA 1212

THE COURT ORDERS THAT:

1.    The Appellant’s interlocutory application dated 31 July 2015 for a hearing date in the appeal and to strike out the objection to competency of the appeal is dismissed.

2.    The Appellant’s interlocutory application dated 17 September 2015 to appoint Natasha Peric to be his litigation representative in the proceeding is dismissed.

3.    Judgment be entered for the Respondent pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

4.    The Respondent’s objection to the competency of the appeal dated 23 June 2015 is dismissed, being unnecessary to decide.

5.    The Appellant pay the Respondent’s costs of the appeal including the interlocutory applications referred to in Orders 1, 2 and 3 above.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    In this proceeding the appellant, Alain Dauguet, appeals from the judgment of a judge of this Court dismissing his application against Centrelink, the respondent (Dauguet v Centrelink [2015] FCA 395). In that proceeding Mr Dauguet sought review of a number of decisions by officers of Centrelink under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) in relation to the suspension and cancellation of his Newstart allowance. The primary judge dismissed the proceeding pursuant to r 5.23(1) of the Federal Court Rules 2011 (Cth) (“the Rules”), doing so on the basis that Mr Dauguet had failed to take steps in the proceeding within the time ordered or at all, and because there were other appropriate forums for his complaints regarding the suspension and cancellation of his Newstart allowance.

2    The appeal was referred to me for case management and before me are four interlocutory applications, namely:

(a)    Centrelink’s objection to the competency of the appeal dated 23 June 2015;

(b)    Mr Dauguet’s application dated 31 July 2015 for a hearing date in the appeal and to strike out the objection to competency of the appeal;

(c)    Mr Dauguet’s application dated 17 September 2015 to appoint Natasha Peric as his litigation representative; and

(d)    Centrelink’s application for summary judgment dated 25 September 2015.

3    For the reasons I set out below I have dismissed Mr Dauguet’s interlocutory applications, and allowed the application for summary judgment in the appeal. I have ordered that judgment be entered for the respondent pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (“the Act”).

The application to appoint a litigation Representative

4    It is appropriate to deal first with Mr Dauguet’s interlocutory application seeking the appointment of Ms Peric, his de facto partner, as his litigation representative in the proceeding.

The procedural background

5    Mr Dauguet was self-represented in the proceeding below, and is self-represented in the appeal. Having said this, I note that the primary judge reached the view that Ms Peric sought to take over Mr Dauguet’s case. Her Honour said (at [123]):

… in all senses what she really wants to do is to take over the litigation and run it instead of Mr Dauguet. She has sought to take that role in her dealings with Centrelink and the Ombudsman, as the evidence to which I refer above amply demonstrates. She treats Mr Dauguet’s social security payment as her own, and speaks about it in those terms. She pretends to be Mr Dauguet in correspondence and moves interchangeably between describing what she does in his name as “I” and referring to him in the third person.

6    Her Honour inferred (at [8] and [96]) that documents in evidence which purported to be written by Mr Dauguet were in fact written by Ms Peric. Her Honour extracted various statements by Ms Peric and said (at [105]) that they demonstrated:

…the extent to which Ms Peric conducts herself as if Mr Dauguet’s Newstart allowance is her own, not only in her dealings with Centrelink, but in terms of how she speaks about the monies paid by the Commonwealth to Mr Dauguet.

7    In the proceeding below Ms Peric sought to appear for Mr Dauguet at the first directions hearing. The primary judge refused to allow her to do so and said that Ms Peric could not conduct the directions hearing on behalf of Mr Dauguet unless he was under a legal incapacity within the meaning of r 9.63 of the Rules and she was appointed as his litigation representative (at [21]).

8    In the appeal before me Mr Dauguet failed to appear at the first case management conference on 24 July 2015, either personally or through a lawyer. Ms Peric sought to appear on his behalf and she asserted that he was sick and could not run the appeal himself.

9    Rule 4.01 provides that a party may be represented in the Court by a lawyer or may be unrepresented. As Ms Peric is not legally qualified I did not allow her to appear for Mr Dauguet. I adjourned the hearing and listed the respondent’s objection to competency of the appeal for hearing on 17 September 2015. I warned Ms Peric that Mr Dauguet’s appeal was liable to be dismissed if he did not appear in person or through a lawyer. My chambers wrote to Mr Dauguet informing him that if he did not appear at that hearing in person or through a lawyer his appeal may be dismissed.

10    Despite the warning, on 17 September 2015 Mr Dauguet again failed to appear, either personally or through a lawyer. Initially there was no appearance by any person, but after a short adjournment Ms Peric tried to appear on his behalf. When I questioned her as to Mr Dauguet’s whereabouts she stated that he was “in the car downstairs…he’s feeling dizzy. He’s not well, at all.” I reminded Ms Peric of my earlier warning and I asked that she inform Mr Dauguet that if he wanted his appeal to proceed he should immediately attend the Court.

11    At that point Ms Peric informed me that she was holding an interlocutory application by Mr Dauguet in which he sought to appoint her as his litigation representative. It then became apparent that Mr Dauguet had attended the Registry of the Court that morning, accompanied by Ms Peric, doing so shortly before the time that he was due to appear before me. Ms Peric had not informed me of that fact which gave me cause for concern. With some misgivings I decided to adjourn the hearing, again, so that application for appointment of a litigation representative could be served on the respondent and be properly considered by the Court, including by hearing from Mr Dauguet.

12    I listed the four interlocutory applications which were then on foot, or proposed, for hearing on 14 October 2015.

The Rules

13    Rule 9.63 relevantly provides:

(1)    A party or an interested person may apply to the Court for an order appointing a person as a litigation representative.

…

(3)    The application must be accompanied by an affidavit stating:

(a)    that the person for whom the appointment is to be made is a person under a legal incapacity and giving details of the nature of the legal incapacity; and

(b)    that the proposed litigation representative:

(i)    has consented, in writing, to the appointment; and

(ii)    he is a person who, under rule 9.62, may be appointed as a litigation representative.

14    Rule 9.62(1)(b) provides that a person who has a different interest in the proceeding to the person under a legal incapacity may not consent to being appointed a litigation representative.

15    The expression “person under a legal incapacity” is defined in the Dictionary in Schedule 1 of the Rules to mean either a minor or “a mentally disabled person.” The Dictionary defines the expression “mentally disabled person” to mean “a person who, because of a mental disability or illness, is not capable of managing the person’s own affairs in a proceeding.”

The evidence

16    In the application Mr Dauguet relied on an affidavit affirmed by him on 17 September 2015. He deposed that he suffered from lumbar central canal stenosis with nerve root compression and L5-S1 spondylosis and that he had been taking OxyContin and OxyNorm pain medication for eight years. He attached a series of medical certificates and a short medical report by Dr Thac (Thomas) Phan dated 8 July 2014 which confirmed the pain medication which Mr Dauguet was taking and stated that he was unfit for work by reason of his long-standing back condition.

17    Neither the medical certificates or the medical report said anything about any mental disability or illness but Mr Dauguet deposed that the strong pain medication he took “affected [his] mental capacity to adequately conduct the proceeding”. In oral submissions Mr Dauguet said that the OxyContin was very strong and that he slept all the time.

18    He deposed that he wished to appoint Ms Peric as his litigation guardian because she had been his nominee at Centrelink since he fell ill in 2005 and she knew his case well, having dealt with Centrelink on his behalf. In submissions he said that Ms Peric knew “our” case better than him. He said that “we” could not find a lawyer and it was very hard for him to conduct the case by himself.

Consideration

19    While I broadly accept Mr Dauguet’s evidence as to his back condition and the pain medication that he takes for it, I consider the application to appoint Ms Peric as his litigation representative must be refused.

20    I say this because, first, in his affidavit in support of the application Mr Dauguet did not depose that he suffered from a mental disability or illness such that he was not capable of managing his own affairs in the proceeding, as required under r 9.63(3). He did not expressly state that he was incapacitated from managing his own affairs because of the medication he takes, as opposed to just being affected by it.

21    Second, it is significant that there is no evidence from a medical practitioner to the effect that the pain medication Mr Dauguet takes has caused him to suffer a mental disability rendering him incapable of managing his own affairs in the proceeding. The medical certificates and the short medical report said nothing about any mental disability or illness, let alone a mental disability rising to the level of legal incapacity.

22    In L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114 at [26]-[27] (Black CJ, Moore and Finkelstein JJ) (“L v Human Rights”) the Full Court indicated that, in almost every case, a Court hearing an application to appoint a litigation representative would need medical evidence. The Full Court said:

…When it is alleged that a person is incompetent, the onus of proof is on those so asserting: Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 3 All ER 162 at [17] (Kennedy LJ); Dalle-Molle v Manos (2004) 88 SASR 193 at [17] (Debelle J); Andreapoulou v Nowak [2002] VSC 462; Pratt v Dickson [2000] QSC 314.

The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier, Kennedy LJ had observed (at [17]):

‘even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists’.

Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30, AJI Services Pty Ltd v Manufacturers’ Mutual Insurance Ltd [2005] NSWSC 709 and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence.

23    Third, Mr Dauguet’s appearance before the primary judge and the affidavits he swore in that proceeding indicate that he was not, at that time, incapable of managing his own affairs in the proceeding. The affidavits in the proceeding which he said were in his own words indicate that he understood the proceeding. The primary judge noted (at [22]) that at the first directions hearing Mr Dauguet was responsive to questions put by the Court and was able to put his position. Her Honour concluded (at [24]) that:

…there was no obvious inability on Mr Dauguet’s part to represent himself at this directions hearing, nor in this proceeding. Nor did Mr Dauguet maintain he had any difficulty expressing himself. On being asked if he required a French interpreter, when he explained English was not his first language, the applicant said:

No, I don’t need an interpreter, because I speak – I understand.

24    Importantly, her Honour noted (at [21]) that:

Ms Peric was told that [her appearing for Mr Dauguet] would not be acceptable unless the applicant was incapable of conducting the directions hearing on his own behalf. The operation of r 9.63 of the Rules relating to the appointment of a litigation representative was explained to the applicant, and to her. Both Ms Peric and the applicant made it clear he did not have a disability of a kind that meant he could not understand the proceeding or conduct it himself.

(Emphasis added.)

At that time both Mr Dauguet and Ms Peric expressly disavowed that he suffered from any legal incapacity, and there is nothing in the evidence to indicate that his mental capacity has worsened since that time.

25    Fourth, I note that Mr Dauguet affirmed various affidavits in the appeal, which he said were in his own words. These indicate that he understands the appeal and the interlocutory applications. It was plain in the hearing before me that he understood the nature of the application to appoint Ms Peric and the basis for the application. He followed the arguments, he went to the relevant paragraphs of the authorities put against him, and he managed to put his case.

26    In L v Human Rights at [27] the Full Court said:

There will….be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination.  And there will be cases where the lack of capacity is so clear that medical evidence is not called for.  In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party: see, for example Murphy v Doman (2003) 58 NSWLR 51 at [37] (Handley JA); AJI Services Pty Ltd v Manufacturers Mutual Insurance Ltd at [57] (Bell J).

(Emphasis added.)

27    Without putting any great weight on my own observations, I am not satisfied from what I saw of him that Mr Dauguet suffers from a mental disability such that he is incapable of managing his own affairs in the proceeding.

28    Fifth, Mr Dauguet sought Ms Peric’s appointment as his litigation representative so that she can appear for him in the appeal. However, r 9.66(3) provides that “a litigation representative who is not a lawyer must be represented by a lawyer.” Even if I exercised my discretion to appoint Ms Peric as Mr Dauguet’s litigation representative, she would be required to instruct a lawyer to represent his interests in circumstances where both she and Mr Dauguet said that they were unable to find a lawyer. Mr Dauguet’s difficulty with finding a lawyer appears to relate to his poor financial circumstances and such circumstances do not provide a basis for appointment of a litigation representative. There is no suggestion in the material that Mr Dauguet lacks the mental capacity to seek out and instruct a lawyer.

29    Finally, arising out of the matters I set out at [5] and [6] above, I have some concerns as to whether Ms Peric has a different interest in the proceeding to Mr Dauguet. If she does she is ineligible to be appointed his litigation representative under r 9.62(1)(b). It is, however, unnecessary to decide that question.

The application for a hearing date in the appeal

The application

30    By interlocutory application dated 31 July 2015 Mr Dauguet sought orders that:

(a)    a hearing date be fixed in the appeal; and

(b)    the objection to competency of the appeal be struck out.

He relied on an affidavit affirmed by him on 31 July 2015.

31    I will deal with the application to strike out the objection to competency later in these reasons. Mr Dauguet’s affidavit makes it clear that his application relates to the fact that the appeal was referred for case management rather than immediately fixed the hearing. He deposed that he “would like the Court to review the Registrar’s decision to refer this appeal to case-management” and sought an order that an appeal date be set. Mr Dauguet put on no submissions in support of the application.

Consideration

32    The application is misconceived and must be refused.

33    Under s 24 of the Act the Court has jurisdiction to hear and determine appeals from judgements of the Court constituted by a single judge exercising the original jurisdiction of the Court. Under s 25(2B) a single judge is empowered to exercise the appellate jurisdiction in specified circumstances. Amongst other things, relevantly to the present case, a single judge may give directions about the practice and procedure to be followed in an appeal (s 25(2B)(bd)), make an interlocutory order pending determination of an appeal (s 25(2B)(ab)) and give summary judgment in an appeal (s 25(2B)(aa)).

34    Section 37M of the Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. This includes the efficient use of judicial resources available for the purposes of the Court, and the efficient disposal of the Court’s overall caseload at first instance and in appeals.

35    Having regard to these provisions there can be no question as to the Court’s power to give directions regarding case management of an appeal.

36    The application was framed by reference to “the Registrar’s decision to refer this appeal to case management.” However, the appeal was referred for case management by the National Appeals Coordinating Judge, on behalf of the Chief Justice, and there is no relevant decision made by a Registrar which might be reviewed.

37    Even if the application is viewed as an attack on the exercise of the National Appeals Coordinating Judge’s discretion to refer the appeal for case management there is no substance in the application. Mr Dauguet did not identify any legal, factual or discretionary error in that decision. Upon filing of the Notice of Appeal some potential case management problems were apparent, including as to the form of the Notice of Appeal and as to whether leave to appeal was required. Then, as the appeal progressed, the case management issues became more pronounced rather than less. It’s a more efficient use of judicial resources to have the various interlocutory applications heard by one judge rather than three. Doing so will assist the Court to dispose of its overall caseload more efficiently.

38    The application to have a hearing date fixed in the appeal is dismissed.

The application for summary JUDGMENT

The application

39    By interlocutory application dated 25 September 2015 the respondent sought an order for summary judgment in the appeal pursuant to ss 25(2B)(aa) and 31A(2) of the Act and r 26.01 of the Rules. The application is supported by the affidavit of the respondent’s solicitor, Karst Hinderik Maat, affirmed on 25 September 2015.

40    Broadly, the application for summary judgment is based on the following two grounds:

(a)    that the order dismissing the proceeding under r 5.23 was interlocutory in nature and that Mr Dauguet therefore required a grant of leave to appeal pursuant to s 24(1) and (1A) of the Act. The respondent contended that without leave Mr Dauguet’s appeal was incompetent and therefore had no reasonable prospect of success (“the leave to appeal ground”); and

(b)    that the appeal had no reasonable prospect of success on the merits (“the lack of merit ground”).

The legislative framework and relevant principles

41    Section 31A(2) of the Act provides:

The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

Section 31A(3) provides that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success. Section 4 of the Act defines a proceeding to include an appeal.

42    Rule 26.01(1)(a) provides:

A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

…

43    Section 25(2B)(aa) provides that a single judge may give summary judgment in the exercise of the appellate jurisdiction of the Court. Rule 36.11(2)(e) provides that a party to an appeal may apply to the Court, constituted by a single judge, for summary judgment.

44    Recently, in C v Commonwealth of Australia [2015] FCAFC 113 at [57] to [59] (Tracey, Buchanan and Katzmann JJ) the Full Court summarised the relevant principles in relation to summary judgment under s 31A, as follows:

[57] In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372, Gordon J noted (at 406) that s 31A was introduced in order to extend “the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases”. Even so, the power is to be exercised cautiously: Spencer v The Commonwealth (2010) 241 CLR 118 at 141.

[58] As both sections expressly provide, an applicant may have “no reasonable prospect of successfully prosecuting [a] proceeding” even if the application cannot be characterised as either hopeless or bound to fail. These provisions, as Lindgren J held in White Industries Australia Limited v Federal Commissioner of Taxation (2007) 160 FCR 298 at 310, were designed “to lower the bar for obtaining summary judgment” from the level that had been fixed by the High Court in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-30. In determining whether the claim has “no reasonable prospect” of success weight must be given to the expression as a whole and expressions such as “untenable” or “groundless”, whether or not used in conjunction with “intensifying epithets” such as “clearly” or “manifestly” should not be adopted as substitutes for the statutory language: Spencer at 141.

[59] The Court is required to apply its rules in a way that best promotes the overarching purpose of justly resolving disputes according to law as quickly, inexpensively and efficiently as possible: see s 37M of the FCA Act. In circumstances in which, as a matter of law, an applicant lacks the necessary status or standing to commence or prosecute a particular proceeding that person’s application for relief can have no reasonable prospect of success. That is the position here. The parties should not be forced to incur the costs of preparing for and conducting what is likely to be a lengthy trial.

Mr Dauguet’s submissions in opposition to summary judgment

45    Mr Dauguet’s written submissions did not properly engage with the respondent’s grounds for summary judgment. His submissions were cast in broad terms and amongst other things, he contended that:

(a)    the application to dismiss the appeal before going to trial was unfair and unjust. He argued that he had a right to be heard within the Court process;

(b)    Centrelink was “in the wrong” which is why it was trying to avoid trial;

(c)    Centrelink had a duty of care to pay him Newstart allowance given that it was fully aware of his permanent medical conditions;

(d)    Centrelink was in a position of power, and it knew that he was vulnerable and relied upon the Newstart allowance; and

(e)    his appeal had good prospects of success.

Consideration

46    The Court must be cautious in exercising the power of summary dismissal but it is settled that s 31A is intended to relax the test for summary dismissal set out in General Steel Industry Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. Contrary to the thrust of his submissions, Mr Dauguet has no “right” to a hearing if the respondent can establish on the balance of probabilities that the appeal has no reasonable prospect of success.

47    Contrary to Mr Dauguet’s submissions, the appeal does not concern whether Centrelink had a duty of care to pay him Newstart allowance or whether it was in a position of power and knew that he was vulnerable and reliant upon the Newstart allowance. It concerns whether the primary judge erred in dismissing the proceeding on the basis that Mr Dauguet failed to comply with her Honour’s orders regarding steps to be taken in the proceeding and because other appropriate forums were available to him. His submissions did not really grapple with those questions.

The leave to appeal ground

48    In Order 3 of the orders made on 28 April 2015 the primary judge dismissed Mr Dauguet’s proceeding pursuant to r 5.23 of the Rules. In the Notice of Appeal Mr Dauguet appealed against that order. The question as to whether this order was interlocutory or final is central to the application.

49    Under ss 24(1) and 24(1A) of the Act an appeal may not be brought against an interlocutory order unless leave to appeal is given. It is uncontroversial that Mr Dauguet did not apply for leave to appeal. He did not file an application for leave to appeal within 14 days of the date of the subject order (as required under r 35.13) or at all. If the order dismissing the proceeding was interlocutory then Mr Dauguet required leave to appeal and he did not obtain it. If the order was final then Mr Dauguet had an appeal as of right and he did not require leave.

50    In Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20 (“Carr”) Gibbs CJ explained at 248:

The question whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty. The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v. Corney [1976] HCA 6; (1976) 50 ALJR 439, at p 444 . An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v. Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423, at p 440 . In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theoretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one.

In my opinion the test in Licul v. Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present.

51    To the same effect in Re Luck (2003) 203 ALR 1; [2003] HCA 70 at [4] (McHugh ACJ, Gummow and Heydon JJ) their Honours said:

…the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not [citing Carr at 248 and 256]. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order.

52    As Pagone J observed in Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 507 at [4] “[i]t may seem curious to a litigant who is not trained in law to describe as “interlocutory” a decision which effectively brings an end to a proceeding, but such a decision is interlocutory, and not final, within the meaning of s 24(1A), because the judgment from which the appeal is sought was not made on the merits of the case…”

53    I consider it plain that the primary judge’s order dismissing Mr Dauguet’s proceeding under r 5.23 is interlocutory. The rule allowed dismissal of a proceeding where a party did not take a step within a specified time and the primary judge made it clear (at [126]) that the order was made because Mr Dauguet had not properly progressed the proceeding at all, let alone in a timely way. Her Honour did not adjudicate on the merits and did not purport to finally determine the rights of the parties.

54    Note 2 to r 5.23 provides that “[a]n order or judgment under this Division may be set aside or varied.” It was open to Mr Dauguet to seek to set aside the judgment, perhaps by explaining the causes of the delay and explaining the steps that he would take to ensure future compliance with orders of the Court. Alternatively, if he wished to commence a fresh proceeding in a competent court, based on the same causes of action and seeking the same relief, he could do so.

55    I consider an order under r 5.23 to be akin to an order dismissing a proceeding for want of prosecution and it is settled that such orders are interlocutory nature. As the Full Court said in National Mutual Life Association of Australasia Ltd and Ors v Grosvenor Hill (Qld) (formerly Hillier, Parker (Qld) and Anor Pty Ltd (2001) 183 ALR 700; [2001] FCA 237 at [8] (Cooper, Whitlam and Tamberlin JJ):

An order dismissing or staying a proceeding for want of prosecution merely determines the question of whether the proceedings have been prosecuted with due diligence.  Such an order involves no final determination of a matter in issue between the parties in the proceedings…There is nothing to prevent the appellants filing fresh proceedings in a Court of competent jurisdiction. The dismissal of an action for want of prosecution is not a bar to the commencement of a fresh action based on the same cause of action… 

(Citations omitted.)

56    Because Mr Dauguet did not seek leave to appeal, the appeal is incompetent. In my view the incompetency of the appeal is an appropriate basis for the exercise of the power of summary judgment under s 31A of the Act. I note that Nicholas J took the same view in O’Donoghue v Department of Immigration and Citizenship [2012] FCA 1162 at [5] and [10]. The appeal therefore has no reasonable prospect of success and I give summary judgment for the respondent pursuant to s 31A of the Act.

The lack of merit ground

57    Putting to one side the failure to seek leave to appeal, the respondent also contended that the appeal had no reasonable prospect of success on the merits.

58    The Notice of Appeal set out the following grounds of appeal (errors in original):

1.    The original application was made in the Federal Court under the Administrative (Judicial Review) Act 1977. The grounds for review were:

(a)    That the decision was induced or affected by fraud;

(b)    That there was no evidence or material to Justify the making of the decision; and

(c)    That the decision was otherwise contrary to law.

2.    The above application was dismissed because I did not file my Affidavit or set out particulars of the decisions I sought to be reviewed, the grounds of review or the relief sought.

3    The reason I did not do the above is because my wife submitted the affidavit to the court in her name on my behalf. She was wrongly advised that she could do this.

59    In my view the Notice of Appeal does not identify any tenable ground of appellable error by the primary judge, whether legal, factual or discretionary in nature.

60    The primary judge dismissed the application under r 5.23 for two reasons (at [126]). The first was that Mr Dauguet had not sought to progress the proceeding in any way, let alone in a timely way. Her Honour detailed Mr Dauguet’s failure to properly progress the proceeding at [39] to [46], [50] to [56], [59], [126] and [131] to [148] of the reasons for judgment.

61    The Notice of Appeal alleged that Mr Dauguet did not file a particular affidavit or set out the particulars of the decisions that he sought to be reviewed because Ms Peric had done so on 2 April 2015. That is, he appeared to contest her Honour’s findings on the basis that, by Ms Peric filing her affidavit he had adequately progressed the proceeding and that this meant that he was not in default of her Honour’s orders. Alternatively, he appeared to suggest that her Honour wrongly failed to recognise Ms Peric’s affidavit.

62    Those contentions are misconceived and, in my view, they are not tenable grounds of appeal. Her Honour plainly recognised (at [63] and [132]) that Mr Dauguet wished Ms Peric’s affidavit to be taken as evidence in his proceeding and her Honour treated it as such. Her Honour dealt with the contents of Ms Peric’s affidavit (at [125] and [132]) and noted that the affidavit did not advance Mr Dauguet’s application or provide any basis for the alleged denial of natural justice by Centrelink in making the relevant decisions.

63    Her Honour said (at [132]):

…no amended application has been filed and there is still no basis articulated in the applicant’s material which would engage this Court’s supervisory jurisdiction under the AD(JR) Act, aside from the invocation of “breach of natural justice” in Mr Dauguet’s original application. Having now seen the decisions made by Centrelink as revealed in the correspondence from Centrelink which is appended to Mr Peric’s affidavit, no denial of natural justice is apparent. The applicant has not explained what he means by the use of this term in the context of the decision about his Newstart allowance, nor sought to address any of the other grounds in s 5 of the AD(JR) Act. He was directed to do so, and it appears several different lawyers have been involved in this application since the case management conference in December. Despite this, no articulation of his claim has been forthcoming.

64    It is clear that the primary judge took into account Ms Peric’s affidavit but, notwithstanding its contents, considered that Mr Dauguet’s failure to file an amended application articulating the basis for his sweeping allegation of “breach of natural justice” meant that an order dismissing the proceeding under r 5.23 was appropriate.

65    Her Honour set out the proper approach to the application of r 5.23 (at [135]), recognising that the power is to be exercised cautiously. I can discern no appellable error in her Honours approach, whether in law, fact, or in the exercise of discretion. I am satisfied that the appeal has no reasonable prospect of success. This also supports an order for summary judgment for the respondent under s 31A(2).

The discretion not to dismiss the appeal

66    In my view there is little weighing against exercising my discretion to enter summary judgment for the respondent. While a cautious approach should be taken to summary judgment and Mr Dauguet’s case should be heard if there are triable issues of fact or law to be decided, he has no “right” to a hearing if he has no reasonable prospect of success.

67    Mr Dauguet has a number of avenues aside from this appeal. First, he could take steps to address her Honour’s concerns and apply to set aside the judgment under r 5.23. If he is successful in that, he must then properly progress the proceeding.

68    Second, he could institute a fresh proceeding making the same or similar claims in a court of competent jurisdiction, but properly articulating those claims and diligently pursuing that proceeding.

69    Third, he could take, what is in my view, the preferable course of pursuing merits review of the administrative decisions in relation to his Newstart allowance. While there may be some difficulties with time limitations in relation to those decisions, as her Honour noted, that is the result of his refusal to seek merits review earlier. In any event, it should be straightforward for him to reapply for the Newstart allowance and if he is not granted it, he would have a right of merits review in relation to that decision. If he is successful in obtaining the allowance he would have been without it for a substantial period but, again, that is the result of his refusal to seek merits review earlier.

70    Fourth, I note that the second reason the primary judge gave for dismissing the proceeding (at [126]) was that Mr Dauguet had an entitlement to merits review and the appropriate forum for his complaints regarding suspension and cancellation of his Newstart allowance was in a merits review forum. Her Honour discussed the availability of merits review at [150] to [160]. The Notice of Appeal does not grapple with this aspect of the judgment at all, even though it provides an independent basis for the order dismissing the proceeding. This also weighs against refusing to grant summary judgment.

The objection to competency

71    The respondent filed a Notice of Objection to Competency pursuant to r 36.72 which alleged that the appeal is incompetent both because Mr Dauguet had not applied for leave and because the appeal lacked merit.

72    There is a question as to the power of a single judge to decide on an objection to the competency of an appeal. Under s 25(1) of the Act, the appellate jurisdiction of the Court is to be exercised by a Full Court. The other subsections in s 25 identify various instances in which the appellate jurisdiction may be exercised by a single judge.

73    Section 25(2B) provides:

A single Judge (sitting in Chambers or in open court) or a Full Court may:

(a)    join or remove a party to an appeal to the Court; or

(aa)    give summary judgment; or

(ab)    make an interlocutory order pending, or after, the determination of an appeal to the Court; or

(b)    make an order by consent disposing of an appeal to the Court (including an order for costs; or

(ba)    make an order that an appeal to the Court be dismissed for want of prosecution; or

(bb)    make an order that an appeal to the Court be dismissed for:

(i)    failure to comply with a direction of the Court; or

(ii)    failure of the appellant to attend a hearing relating to the appeal; or

(bc)    vary or set aside an order under paragraph (ab), (ba) or (bb); or

(bd)    give directions under subsection 37P(2); or

(c)    give other directions about the conduct of an appeal to the Court, including directions about:

(i)    the use of written submissions; and

(ii)    limiting the time for oral argument.

74    The section does not expressly provide that a single judge exercising appellate jurisdiction may determine an objection to the competency of an appeal. In Prime Property Investment Pty Ltd v Van der Velde (2011) 199 FCR 34; [2011] FCA 1397 at [2] Besanko J raised with the parties whether he had power to determine the competency of the appeal when sitting as a single judge. The parties agreed that a single judge did not have the power, and his Honour then dealt with the objection to competency as an application for summary judgment.

75    It is unnecessary to decide whether I have a power to decide the objection to competency and I express my view tentatively because I have not had the benefit of detailed submissions on the issue, but in my view s 25 allows a single judge of this Court exercising appellate jurisdiction to hear and decide an objection to competency of an appeal.

76    Pursuant to s 25(2B)(ab) of the Act, a single judge has power to make an interlocutory order in an appeal, and a decision in relation to an objection to competency will fall within that power. Read in its context s 25(2B)(ab) should not be construed narrowly so that it does not include a power to decide an objection to competency. I say this because s 25(2B)(aa) provides a single judge with power to give summary judgment in an appeal, and s 25(2)(a) provides a single judge with power to refuse leave to appeal. Both such decisions may be made on the basis that the appeal is incompetent and it is difficult to see why a limitation should be read into s 25(2B)(ab) so as to exclude from its intended scope the power to decide an objection to competency.

77    As it is unnecessary to decide the objection to competency is dismissed.

Associate:

Dated:    11 November 2015