Mazukov v The University of Tasmania [2002] FCAFC 166 (31 May 2002)

Last Updated: 7 June 2002

FEDERAL COURT OF AUSTRALIA

Mazukov v The University of Tasmania [2002] FCAFC 166

IVAN ANTONOV MAZUKOV v THE UNIVERSITY OF TASMANIA

T 28 of 2000

SACKVILLE, KENNY & ALLSOP JJ

MELBOURNE (HEARD BY VIDEOLINK TO HOBART)

31 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T 28 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	IVAN ANTONOV MAZUKOV APPELLANT
AND:	THE UNIVERSITY OF TASMANIA RESPONDENT
JUDGES:	SACKVILLE, KENNY & ALLSOP JJ
DATE OF ORDER:	31 MAY 2002
WHERE MADE:	MELBOURNE (BY VIDEOLINK TO HOBART)

THE COURT ORDERS THAT:

1. The application for an extension of time in which to file a notice of appeal be dismissed.

2. The applicant pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T 28 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	IVAN ANTONOV MAZUKOV APPELLANT
AND:	THE UNIVERSITY OF TASMANIA RESPONDENT

JUDGES:	SACKVILLE, KENNY & ALLSOP JJ
DATE:	31 MAY 2002
PLACE:	MELBOURNE (BY VIDEOLINK TO HOBART)

REASONS FOR JUDGMENT

1 This is an application, pursuant to Federal Court Rules, ("FCR") O 52 r 15(1)(b), for an extension of time in which to file and serve a notice of appeal. The applicant seeks the extension in order to appeal from a judgment of a Judge of this Court, given on 4 August 2000. In that judgment, the primary Judge refused to extend time for the applicant to bring an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") seeking review of a decision made by Mr A M Blow OAM QC (as his Honour then was) as the Discipline Appeals Committee ("Committee") of the University of Tasmania ("University").

2 The applicant requires an extension of time because no notice of appeal or other document enlivening the appellate jurisdiction of the Court was filed and served until 14 September 2000. Whether the judgment of the primary Judge was final or interlocutory in character, the applicant was outside the prescribed period for filing a notice of appeal or an application for leave to appeal.

3 A brief account of the history of this dispute will reveal the fundamental difficulty facing the applicant.

4 The Committee constituted by Mr Blow was established by the Chancellor of the University under cl 4.1.4 of University of Tasmania Ordinance No 58 ("Student Discipline") ("Ordinance 58"). The Committee was convened to hear an appeal by the applicant, a law student at the University of Tasmania, against a decision by the Vice-Chancellor to reprimand him and impose certain penalties on him. That decision was made after a hearing conducted by the Dean of the Law School in relation to allegations of misconduct made against the applicant. The Committee, by a decision made on 23 February 2000, varied the penalties imposed by the Vice-Chancellor, in effect upholding the appeal in part.

5 The applicant instituted proceedings purporting to invoke the original jurisdiction in this Court on 5 July 2000, by filing an application for an order of review of the Committee's decision. The application was made on Form 56, which is appropriate for an application under the ADJR Act: see FCR, O 54 r 2. The application identified the grounds of review as

* contravention of the rules of natural justice;

* acting ultra vires by changing the "charges"; and

* bad faith, fraud and bias.

6 The proceedings were listed before the primary Judge for directions on 4 August 2000. The University appeared by counsel, but the applicant did not appear.

7 The primary Judge proceeded to deal with the application as if it were an application for an extension of time for the filing of an application for review pursuant to the ADJR Act. The extension of time was required because the ADJR Act requires applications to be lodged within 28 days of the decision being made, unless an extension of time is granted: see s 11(1)(c), (3). The application for review was in fact filed some four months after the Committee's decision had been made.

8 The primary Judge explained (at [3]) his reasons for refusing leave as follows:

"I have no jurisdiction to deal with the application unless an order is made for an extension of time. One matter critical to the exercise of that discretion is the prospect of success of the application. I have formed the view that I should not extend time as the application is fundamentally flawed and has no prospect of success. The decision made by Mr Blow QC (as he then was) on behalf of the respondent was not a decision made `under an enactment'. It was not a decision made under a Federal Act. See s 38 of the Acts Interpretation Act 1901 (Cth) and Glasson v Parkes Rural Distributors Proprietary Limited [1984] HCA 49; (1984) 155 CLR 234 at 241 per Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ."

9 The fundamental difficulty facing the applicant is that, in the absence of any issue arising under Commonwealth laws, the Court had no jurisdiction to review the decision of a Committee established under an Ordinance of the University of Tasmania. The constitution and governance of the University of Tasmania are provided for by the University of Tasmania Act 1992 (Tas) ("University Act"). Ordinances are made by the University Council pursuant to the authority conferred by the University Act. Ordinance 58 was made by the University Council pursuant to the powers conferred by ss 18 and 19(1)(a) of the University Act to make ordinances with respect to discipline.

10 The primary Judge was correct to conclude that the Committee's decision was not made "under an enactment" for the purposes of the definition of "decisions to which this Act applies" in s 3(1) of the ADJR Act. The decision was made under a State enactment, and not a Commonwealth enactment. It follows that the decision was not made "under an enactment" for the purposes of the ADJR Act: see the definition of "enactment" in s 3(1) and Acts Interpretation Act 1901 (Cth), s 38(1). The consequence is that this Court had no jurisdiction to entertain the purported application under the ADJR Act: see s 8(1).

11 The original jurisdiction of the Federal Court under s 39B of the Judiciary Act 1903 (Cth) includes

"(1) jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth".

To the extent that the application can be read as intending to invoke the jurisdiction conferred by s 39B(1) of the Judiciary Act, it does not advance the applicant's position. No relief of the kind referred to in s 39B(1) of the Judiciary Act was sought in the application. More importantly, neither the Committee nor any officer of the University is "an officer of the Commonwealth" for the purposes of s 39B(1), notwithstanding that (as the applicant pointed out) the University may receive funding from the Commonwealth.

12 At the hearing before us, the applicant asserted that the University or some members of its staff had engaged in conduct that may have contravened provisions of the Trade Practices Act 1974 (Cth) ("TP Act"), including s 52. As the applicant accepted, no such claim had been made before the primary Judge. It follows that the matter before his Honour did not arise under a law made by the Parliament (Judiciary Act, s 39B(1A)(c)); nor was there a matter arising under the TP Act within the meaning of s 86(1) of the TP Act (which confers jurisdiction in such matters on the Court).

13 The applicant referred in the course of argument to a number of other provisions as possible sources of jurisdiction. These included:

* The Student and Youth Assistance Act 1973 (Cth) ("Student Act");

* s 32 of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act") (which confers on the Court jurisdiction associated with matters in which the jurisdiction of the Court is invoked);

* s 24 of the Federal Court Act (which relates to the appellate jurisdiction of the Court);

* s 25(2)(b) of the Federal Court Act (which relates to applications for an extension of time within which to institute an appeal); and

* s 51(xxiiiA) of the Constitution (which empowers the Parliament to make laws with respect to, inter alia, the provision of benefits to students).

14 None of these is of any assistance to the applicant. So far as the first is concerned, the applicant appeared to assume that the fact that (as he asserted) he was in receipt of an allowance under the Student Act was enough for a matter to arise under a law made by the Parliament. But no such matter arose in the proceedings before the primary Judge, which were not concerned in any way with the Student Act. Similarly, the applicant appeared to assume that because the Constitution provides for Parliament to make laws with respect to student benefits, the proceedings before the primary Judge arose under the Constitution or involved its interpretation (Judiciary Act s 39B(1A)(b)). This assumption, too, was incorrect. Nor could the provisions of the Federal Court Act, to which the applicant referred, confer jurisdiction on the primary Judge to hear and determine the application filed by the applicant.

15 The application for relief filed in this Court on 5 July 2000 was misconceived. The Court had no jurisdiction to deal with it. The formal order made by the primary Judge was to refuse an extension of time in which to bring an application under the ADJR Act. Perhaps it might have been more appropriate to dismiss the proceedings for want of jurisdiction, but no such application was made to his Honour. Since no cross-appeal has been brought, we propose simply to refuse the application for an extension of time in which to file a notice of appeal. The applicant must pay the respondent's costs of the application for an extension of time.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices SACKVILLE, KENNY & ALLSOP JJ.

Associate:

Dated: 2002

Counsel for the Respondent:	Ms R Chen
Solicitor for the Respondent:	Dobson Mitchell & Allport
Date of Hearing:	31 May 2002
Date of Judgment:	31 May 2002