Shumack v Secretary, Department of Health and Ageing [2005] FCAFC 93 (11 May 2005)

Last Updated: 20 June 2005

FEDERAL COURT OF AUSTRALIA

Shumack v Secretary, Department of Health and Ageing [2005] FCAFC 93

PETER JAMES SHUMACK v SECRETARY, DEPARTMENT OF HEALTH AND AGEING
ACD 43 OF 2004


MOORE, TAMBERLIN AND EMMETT JJ
CANBERRA
11 MAY 2005

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 43 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PETER JAMES SHUMACK APPELLANT
AND:	SECRETARY DEPARTMENT OF HEALTH AND AGEING RESPONDENT
JUDGES:	MOORE, TAMBERLIN AND EMMETT JJ
DATE OF ORDER:	11 MAY 2005
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the respondent.

3. The Notice of Motion of the respondent, filed on 15 February 2005, be dismissed.

4. There be no order as to costs of the Notice of Motion.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 43 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PETER JAMES SHUMACK APPLICANT
AND:	SECRETARY DEPARTMENT OF HEALTH AND AGEING RESPONDENT

JUDGES:	MOORE, TAMBERLIN AND EMMETT JJ
DATE:	11 MAY 2005
PLACE:	CANBERRA

REASONS FOR JUDGMENT

MOORE J

1 This is an appeal from a judgment of Madgwick J of 24 November 2004, dismissing an appeal to this Court from a decision of the Administrative Appeals Tribunal ("the Tribunal"). The appeal in this Court was filed on 16 August 2004. The issue before Madgwick J concerned a decision of the Tribunal made under s 42A of the Administrative Appeals Tribunal Act 1975 (Cth) ("the Act"). The decision of the Tribunal arose in the following circumstances.

2 On 14 July 2004, the appellant applied to the Tribunal for a review of a decision. The decision-maker was identified as the Commonwealth Department of Health and Ageing. In the application, the appellant identified the decision as:

"Not to provide statistical information upon the male to female ratio out of 17 applications for an APS 6 job. Email from Kerry Hartley to Peter Shumack."

3 That application resulted in a letter from the Tribunal, dated 20 July 2004, in which the District Registrar of the Tribunal sought certain information from the appellant. The relevant part of the letter read:

"The Tribunal has the power to review some decisions made by certain Ministers, officers, authorities, and other tribunals. However, the Tribunal can only review types of decisions that an Act, regulation or other enactment gives it the power to review. There does not seem to be any Act, or section of an Act, referred to in your application that gives the Tribunal power to review the decision referred to in your application.

Before the Tribunal can begin its review you will need to show that the Tribunal has the power to review the decision. Please contact us and tell us why you think the Tribunal has the power to review the decision. You may also ask us to arrange a preliminary hearing to decide this issue."

4 That gave rise to a letter from the appellant, dated 22 July 2004, in which the appellant identified various Acts, and sections of Acts, in apparent satisfaction of the request of the District Registrar on 20 July 2004.

5 That letter from the appellant resulted in a further letter from the Tribunal, dated 4 August 2004, enclosing a decision of the Tribunal made under s 42A of the Act, dismissing the application. Section 42A(4) provides that the Tribunal has the power to dismiss an application if, relevantly, the person making an application to the Tribunal is unable to show, within such time as is prescribed after being notified in writing by the Registrar or Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable.

6 This is a case where that power to dismiss was, in my opinion, enlivened. That is, the Tribunal had the power to follow the course it did, namely, to dismiss the application because the appellant had been unable to show there was a reviewable decision as contemplated by s 42A(4). Justice Madgwick was correct, in my opinion, in reaching the conclusion his Honour did, namely, that the Tribunal had not erred in adopting the approach it had.

7 Accordingly, the order that should be made in this appeal is that the appeal be dismissed and that the appellant pay the respondent’s costs. I should add that there is a notice of motion that has been filed by the respondent to the appeal, seeking, in effect, the summary dismissal of the appeal. It is not apparent to me that that notice of motion was, in the circumstances, necessary. The appropriate order should be that the notice of motion be dismissed and there be no order as to costs in relation to that notice of motion.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 17 June 2005

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 43 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PETER JAMES SHUMACK APPLICANT
AND:	SECRETARY DEPARTMENT OF HEALTH AND AGEING RESPONDENT

JUDGES:	MOORE, TAMBERLIN AND EMMETT JJ
DATE:	11 MAY 2005
PLACE:	CANBERRA

REASONS FOR JUDGMENT

TAMBERLIN J

8 I agree with the reasons of the presiding Judge and with the orders that his Honour proposes.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 17 June 2005

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 43 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PETER JAMES SHUMACK APPLICANT
AND:	SECRETARY DEPARTMENT OF HEALTH AND AGEING RESPONDENT

JUDGES:	MOORE, TAMBERLIN AND EMMETT JJ
DATE:	11 MAY 2005
PLACE:	CANBERRA

REASONS FOR JUDGMENT

EMMETT J

9 I also agree. I should simply add that, on one view, the purported appeal to this Court from the decision of the Administrative Appeals Tribunal is incompetent, because there is no question of law raised by the appeal. The Tribunal appears to have acted entirely within the terms of the provisions to which the presiding Judge has referred. I agree with the orders proposed and with his Honour's reasons.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 17 June 2005

The Appellant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 May 2005
Date of Judgment:	11 May 2005