FEDERAL COURT OF AUSTRALIA

Dunkerley v Comcare [2015] FCA 1519

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This purports to be an application by Ms Ulla-Maija Dunkerley for an extension of time and leave to appeal against the order made by Flick J on 8 October 2015 dismissing her appeal from the orders made by Perram J on 27 April 2015: Dunkerley v Comcare [2015] FCA 1076. Perram J had ordered that her appeal to the Court from the decision of the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be dismissed with costs: Dunkerley v Comcare [2015] FCA 392.

2    Flick J exercised the Court’s discretionary powers under s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) and r 36.74(1) of the Federal Court Rules 2011 (Cth) when his Honour made his order of 8 October 2015. That order was entered on 8 October 2015.

3    Relevantly, s 25(2B)(bb)(i) and (bc) provided that a single judge or a Full Court, when exercising the Court’s appellate jurisdiction, may, first, make an order dismissing an appeal for failure to comply with a direction of the Court and, secondly, vary or set aside such an order. An application under s 25(2B)(bc) must be heard and determined by a single judge, unless, relevantly, a judge directs that it be heard and determined by a Full Court (s 25(2B)(ba)). No such order has been made or would be appropriate.

Background

4    Perram J had dismissed Ms Dunkerley’s appeal from the Tribunal’s decision, saying that it was “devoid of merit”. His Honour expressed his view that “the proceedings are beginning to border on the vexatious”: Dunkerley [2015] FCA 392 [22] and [28].

5    In a reserved judgment, Flick J carefully considered how to exercise his discretion and concluded that, in all of the circumstances, he should make the orders he did on 8 October 2015 for a combination of three factors. First, Ms Dunkerley had failed to compile an appeal book or any other documents that could be used by a Full Court to hear her appeal from Perram J’s decision. In the first case management hearing on 10 June 2015, Flick J had directed that Ms Dunkerley complete an appeal book by 26 June 2015 and file an outline of submissions by 9 July 2015. He listed the appeal for further directions on 21 July 2015. Ms Dunkerley told me today that those were timeframes with which she, as an unrepresented litigant unfamiliar with the appeal processes, was unable to comply. In any case no appeal book was prepared by her at any time prior to the hearing before his Honour on 25 August 2015 that led to his Honour’s orders of 8 October 2015, nor is there an appeal book ready today. Secondly, his Honour reasoned that Ms Dunkerley had failed to comply with his direction to file an outline of submissions articulating clearly what error or errors she alleged there were in Perram J’s decision. Thirdly, Flick J found that Ms Dunkerley had failed to identify any merit in any of the 17 grounds of her notice of appeal: Dunkerley [2015] FCA 1076 [53].

The Court’s power to make orders after a proceeding is finalised

6    Ordinarily, the Court has no jurisdiction to re-open an order after it has been entered, except under r 39.05 or its inherent power under the slip rule. No occasion arises on this application to enliven either of those exceptions to the principle of finality. There is no doubt that the orders entered on 8 October 2015 correctly recorded what Flick J intended those orders to achieve, and therefore there is no basis on which r 39.05 or the slip rule could be used to correct those perfected orders.

7    This is demonstrated by what Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ said in Burrell v The Queen (2008) 238 CLR 218 at 224-225 [18]-[21]. They held that the end of a court’s powers to consider and determine a controversy cannot depend on whether one party asserts that the court has made some error in the conclusion that it reached. If that were the criterion, they said, there would never be an end to some disputes. And, they also held that the court’s own belief that it had made an error did not allow it to reopen a decision. Their Honours held that a formal recording of the order a superior court, such as this court, is “the point at which the court’s power to reconsider the matter is at an end”.

8    These principles apply to a case such as this, namely the dismissal of an appeal based in part on a party’s failures to file appeal books and to comply with directions for the preparation of the appeal, as the High Court held in Bailey v Marinoff (1971) 125 CLR 529. There, the appellant in the New South Wales Court of Appeal had failed to comply with an entered order to file and serve appeal books, that triggered a self-executing order that upon default, the appeal would then stand dismissed. As Menzies J said (125 CLR at 531-532; see too at 533 per Owen J and at 530-531 per Barwick CJ, at 536-537 per Kitto J and at 539 per Gibbs J, who agreed with the other judgments):

However wide the inherent jurisdiction of a court may be to vary orders that have been made, it cannot, in my opinion, extend the making of orders in litigation that has been brought regularly to an end … a court cannot, by a further order, get rid of the operative and substantive part of its judgment. (emphasis added)

9    That is the case here as a result of Flick J’s order dismissing the appeal. Moreover, Ms Dunkerley has not identified in her submissions any basis on which Flick J may have erred. She accepted that no appeal book existed. That is despite her obligations, as an appellant, under r 36.51 to file appeal books, and the orders made by Flick J on 10 June 2015 that that be done. She argued that Flick J had denied her access to justice and that he had decided her case without evidence. Clearly there was evidence before his Honour of her failures to comply with the directions, and those failures persist to this day. Ms Dunkerley’s written submission before me asserted that his Honour’s decision should be “treated with the contempt it deserves”.

10    As I have explained, the Court has no power to grant the relief sought in Ms Dunkerley’s application, to grant her an extension of time in which to appeal. That is because Flick J, as a single judge, was exercising the appellate jurisdiction of the Court under s 25 of the Federal Court of Australia Act. If what Ms Dunkerley is really seeking is an order under s 25(2B)(bc) to vary or set aside his Honour’s order, I am of opinion that, first, because the order has been entered, the Court is functus officio and has no power to re-open the entered order and that the appeal proceeding is and has been since 8 October 2015 at an end: Bailey 125 CLR 529 and Burrell 238 CLR at 224-225 [20]-[21]. Secondly, even if the Court could do this, the application is entirely without substance or merit. It is an abuse of the process of the Court, albeit that Ms Dunkerley did not intend it to be so.

11    Ms Dunkerley has made no attempt to rectify what Flick J identified as her defaults in preparing an appeal book or to make any intelligible written submissions or to file a notice of appeal that raised any issue identifying an error of any kind in the reasoning of Perram J that led to his orders dismissing her original appeal from the Tribunal. Nor has she identified any error in what Flick J did in exercising his discretion in accordance with the principles in House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.

Conclusion

12    This application must be dismissed as incompetent, with costs.

Associate:

Dated:    2 February 2016