Zoia v Commonwealth Ombudsman Department [2007] FCAFC 143 (1 August 2007)

Last Updated: 30 August 2007

FEDERAL COURT OF AUSTRALIA

Zoia v Commonwealth Ombudsman Department [2007] FCAFC 143

ANGELO ZOIA v COMMONWEALTH OMBUDSMAN DEPARTMENT
WAD 57 OF 2007

SPENDER, FRENCH AND GILMOUR JJ
1 AUGUST 2007
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 57 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANGELO ZOIA Appellant
AND:	COMMONWEALTH OMBUDSMAN DEPARTMENT Respondent

JUDGES:	SPENDER, FRENCH AND GILMOUR JJ
DATE OF ORDER:	1 AUGUST 2007
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 57 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANGELO ZOIA Appellant
AND:	COMMONWEALTH OMBUDSMAN DEPARTMENT Respondent

JUDGES:	SPENDER, FRENCH AND GILMOUR JJ
DATE:	1 AUGUST 2007
PLACE:	PERTH

REASONS FOR JUDGMENT

SPENDER J:

1 This is an appeal from a judgment of Nicholson J given on 1 March 2007. The background to the appeal is that on 18 April 2006, Mr Zoia (the appellant) applied to the Administrative Appeals Tribunal (the AAT) for a review of a decision made by a delegate of the Commonwealth Ombudsman on 22 March 2006, under the Freedom of Information Act 1982 (Cth).

2 On 17 July 2006, a Deputy President of the AAT dismissed the application for review pursuant to s 42A(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), on the basis that the Deputy President was satisfied that the appellant had been given appropriate notice of the time and place of the conference, which had been scheduled for 4 July 2006, and had failed to appear at the conference.

3 Mr Zoia then sought reinstatement of his application for review. That matter was listed for hearing before the AAT on 6 September 2006. Mr Zoia failed to appear at the hearing of that application and on that day, the AAT refused the application for reinstatement.

4 Deputy President Hotop, in the course of his reasons for that decision, said that the applicant had not provided any substantial grounds in support of his application for reinstatement. He also said:

In his request for reinstatement, he does not provide any explanation as to why he failed to appear on the previous occasion, nor does he make any or give any substantive reason why on the merits his application should be reinstated. All he does is basically ask a series of questions which really don’t take this matter any further.

5 On 15 September 2006, Mr Zoia filed a notice of appeal from the AAT decision in the Federal Court of Australia. On 10 January 2007, the respondent, the Commonwealth Ombudsman, filed a Notice of Motion seeking that the appeal be dismissed.

6 In support of that motion, an affidavit of Mr Todd Renfrey Hill was filed. The final paragraph of that affidavit contains a request that the proceeding be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). That section confers power on the Federal Court to give judgment for one party against another in relation to the whole of the proceeding if:

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

7 In his Honour’s reasons for judgment on 1 March 2007, Nicholson J referred to the submissions that had been made by Mr Zoia. His Honour said:

10 In his outline of submissions the applicant refers to s 64 of the Constitution. He asserts that the respondent is defending crimes against the Commonwealth. He also asserts that what he wants to do is to appeal the decision of 3 February 2006. That, of curse, is the decision of which internal review has already taken place. Attached to the submissions are a variety of materials including extracts from The King v Barger [1908] HCA 43; (1908) 6 CLR 41, correspondence to him from the respondent, from the Treasury and from various members of Parliament, correspondence from him to the Governor-General and to him from the Director of Public Prosecutions. I accept the submission for the respondent that these matters do not particularise any basis of his appeal.

11 In oral submissions the applicant referred to the need for justice, fairness and rightness. He asserted that there was a falsification of evidence that no-one was investigating and which was being covered up. He stated that he needed a solicitor. He expressed unfairness at not receiving an answer from the Prime Minister to correspondence addressed to him. None of these matters assist in particularising the basis of his appeal. Further, steps were taken by the Court to obtain a solicitor for him pursuant to O 80 of the Federal Court Rules but none was forthcoming.

12 The position is therefore that both the written and oral submissions of the applicant are not helpful to him.

13 It is apparent from the transcript of the Tribunal on 6 September 2006 ... that there was likewise no case made to the Deputy President to support the reinstatement of the applicant’s application. As was there said, there was also no evidence that would have helped to explain in any way why the decision of 17 July 2006 to dismiss the application was not properly made.

14 The position is therefore that there is nothing before the Court which would support in any way a conclusion that there were prospects of success in the applicant’s appeal from the decision of the Deputy President made on 6 September 2006.

15 I therefore find that the applicant has no reasonable prospect of successfully prosecuting that appeal. Accordingly the respondent’s notice of motion should be allowed.

8 As is apparent, Nicholson J held that the Notice of Appeal from the decision had no reasonable prospects of success, and his Honour therefore allowed the Notice of Motion filed by the respondent on 10 January 2007 and dismissed the appeal pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

9 Mr Zoia has filed a Notice of Appeal from the judgment of Nicholson J of 19 March 2007. In that Notice of Appeal the appellant does not seek leave to appeal, nor has he sought leave to appeal subsequent to the filing of that notice.

10 Under the heading "Grounds", the following appears:

On 16 November 2006, in the Federal Court, the respondent’s solicitor said the Federal Court did not have jurisdiction to hear the case; the council [sic] for the respondent submissions dated 10 January 2007, the Court has jurisdiction to hear such an appeal.

Was there a THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA in 1890, the answer is no, that means no Constitution - no Federal Court and no Commonwealth Ombudsman Department that prove beyond reasonable doubt the Constitution is relevant. Mr Bluck, the original decision-maker did not have jurisdiction to make that decision under the Constitution. The High Court – Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330), "The claim of creative power, seems to fail, and with it the authority to enact these provisions so far as based on such power."

11 The next paragraph reads:

"No reasonable prospects of success", that law is nonsensical, embarrassing and criminal. They are saying the law overrides the Constitution an every other law. I am appealing Mr Bluck decision made on 3 February 2006. I refer to Katherine Campbell internal review of a decision dated 3 February 2006 by Mr Bluck; "As such I am upholding Mr Bluck’s decision with regard to these documents." That was only about documents not Freedom of Information. The Law require fact not speculation.

12 Then the final paragraph reads:

I submit a cutting from the Western Australian Newspaper about not having legal representation denied them a fair hearing. The point of the matter is that not having legal representation denied me a fair hearing. Justice is fairness and rightness; solicitor represents the Commonwealth Ombudsman Department but Mr Zoia is not represented is that fair.

13 The orders sought in the Notice of Appeal are difficult to understand. Under that heading Mr Zoia has said:

Justice - fairness and Rightness.

Federal Court Rules – Pro Bono Publico.

Freedom of Information.

My right to protected under the Constitution.

EX GRATIA (LATIN) "By favour"; Law, implying the absence of legal obligation.

Subpoena.

14 It is plain that the judgment of Nicholson J dismissing the appeal to the Federal Court pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) was an interlocutory judgment. The Commonwealth Ombudsman in this appeal has again sought to have the appeal to this Court dismissed pursuant to that section.

15 The submissions by the respondent address the merits of the appeal, as if it were competent. It is better, in my opinion, that the merits of the appeal be addressed rather than a further interlocutory consideration of whether the provisions of s 31A would call for the dismissal of the proceedings.

16 When one has regard what is said to be the grounds of appeal, it is plain that there is no material which identifies any possible error in the judgment of Nicholson J. Therefore if the appeal were competent, it would fail on the merits.

17 For that reason, in my opinion, the appeal should be dismissed.

18 I prefer to deal with the appeal on that basis rather than on the alternative basis of dismissing it as incompetent.

19 Concerning that alternative basis, it is plain from the judgment of the High Court in Re Luck [2003] HCA 70, delivered on 4 December 2003 by McHugh ACJ, Gummow and Heydon JJ, that an order of the kind made by Nicholson J is interlocutory, and in the absence of leave, an appeal is incompetent.

20 Their Honours in giving judgment in that matter referred extensively to the cases which, in their Honours’ judgment, established that an order of the kind made by Nicholson J in this case is interlocutory. Their Honours said at [6] – [9]:

6 For more than a century, courts, including courts of the highest authority, have consistently held that an order staying an action on the ground that it is frivolous, vexatious or an abuse of process is an interlocutory order. [In re Page; Hill v Gladgate [1910] 1 Ch 489; Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326; [1956] 3 All ER 513; Tampion v Anderson (1973) 48 ALJR 11; 3 ALR 414. And see Price v Phillips (1894) 11 TLR 86.]. In 1956 in Hunt v Allied Bakeries Ltd [[1956] 1 WLR 1326 at 1328; [1956] 3 All ER 513 at 514.], Lord Evershed MR said: "After consulting with the Chief Registrar and looking at the case[s], and also after consultation with my colleagues, I am left in no doubt at all that, rightly or wrongly, orders dismissing actions – either because they are frivolous and vexatious, or on the ground of disclosure of no reasonable cause of action – have for a very long time been treated as interlocutory."

7 The long line cases to which Lord Evershed referred was confirmed in Tampion v Anderson [(1973) 48 ALJR 11 at 12; 3 ALR 414 at 416.], a decision of the Judicial Committee of the Privy Council on a petition for special leave to appeal against orders of the Supreme Court of Victoria. In Tampion, the Judicial Committee held that orders staying actions for defamation and misfeasance of office on the ground that they were frivolous, vexatious and an abuse of process were interlocutory orders. Lord Kilbrandon, giving the advice of the Judicial Committee, said [(1973) 48 ALJR 11 at 12; 3 ALR 414 at 416.] that "a consistent line of authority" left "no doubt" that such orders were interlocutory. His Lordship said [(1973) 48 ALJR 11 at 12; 3 ALR 414 at 417.] that the "matter is really put beyond doubt" by Hunt [[1956] 1 WLR 1326; [1956] 3 All ER 513.] and cited the above statement of Lord Evershed. When Tampion was decided, the Judicial Committee of the Privy Council was the final court of appeal for Australia for matters such as those involved in that case. Consequently, the advice of the Judicial Committee in Tampion was binding on all Australian courts including this Court.

8 Privy Council decisions no longer bind this Court. Moreover, no case in this Court has expressly decided that interlocutory orders include an order dismissing an action because it is frivolous, vexatious, an abuse of process or because it fails to disclose a reasonable cause of action. But a number of cases decided in this Court before and after Tampion are consistent with the view that an order falling within any of these categories is an interlocutory order. Taylor J referred [(1966) [1966] HCA 36; 117 CLR 423 at 440.] with evident approval to the rule, established in England, that an order striking out a claim on the ground that it was frivolous, vexatious or an abuse of process or that it disclosed no cause of action was interlocutory in nature. In Carr v Finance Corporation of Australian Ltd [No 1] [(1981) [1981] HCA 20; 147 CLR 246], the Court held that an order of the Supreme Court of a State refusing to set aside a judgment obtained upon the default of the defendant in delivering a defence was an interlocutory order. In Bienstein [(2003) [2003] HCA 7; 195 ALR 225.], the Court found that orders made by a single Justice (a) to dismiss an application to disqualify himself from hearing the application for removal, and (b) to remove particular causes pending in the Family Court into the High Court, were interlocutory orders.

9 Given the long established English rule, the decision in Tampion and our decisions in Pye, Hall, Carr and Bienstein, we see no valid reason for departing from the rule laid down in Tampion. An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.

21 Their Honours concluded that the "appeal" by Gaye Alexandra Mary Luck was incompetent.

22 As I have earlier said earlier, I prefer not to base the dismissal of the appeal on the application of s 31A of the Federal Court of Australia Act 1976 (Cth). It is preferable that where an "appeal" is lodged which is plainly devoid of merit and can be expeditiously dealt with on the merits, that is the preferable course.

23 Order 52 r 18 of the Federal Court Rules has a relevance in the present circumstances, particularly in relation to costs. That consideration may in fact require an application by Notice of Motion that the appeal be dismissed as incompetent. See in particular O 52 r 18(3).

24 Order 52 r 18 provides:

18 Competency of appeal

(1) A respondent may move on notice at any time for an order dismissing an appeal as incompetent.

(2) Upon the hearing of the motion, the burden of establishing the competency of the appeal is on the appellant.

(3) If a respondent does not move under subrule (1) but the appeal nevertheless is dismissed by the Court as incompetent, the respondent shall not, unless the Court otherwise orders, receive any costs of the appeal and the Court may order that he pay the appellants any costs of the appeal proving useless or unnecessary.

25 In my judgment, the appeal should be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 29 August 2007

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 57 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANGELO ZOIA Appellant
AND:	COMMONWEALTH OMBUDSMAN DEPARTMENT Respondent

JUDGES:	SPENDER, FRENCH & GILMOUR JJ
DATE:	1 AUGUST 2007
PLACE:	PERTH

REASONS FOR JUDGMENT

FRENCH J:

26 I agree with the orders proposed by the presiding judge and the reasons which his Honour has delivered. I question the utility of using section 31A of the Federal Court Act in a case in which the argument and evidence in the substantive proceeding is not more extensive than the argument and evidence on the question whether there is a reasonable prospect of success for the purposes of s 31A. The use of s 31A raises a question whether a judgment of dismissal given pursuant to it is interlocutory or final. On the authorities to which the presiding judge has referred, there would seem to be little doubt that such a judgment of dismissal is interlocutory, but whether interlocutory in form or not, it is final in substance and ordinarily the threshold to be crossed for obtaining leave to appeal against such a judgment is not high. I refer in that respect to the discussion by the Full Court in Johnson Tiles Pty Ltd v Esso Petroleum Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564.

27 In this case s 31A was invoked both before Nicholson J and before this Court. On the principle which I would suggest be applied to its invocation, it was not necessary to do so. There was nothing more required to argue the substantive merits of each of the applications before Nicholson J and before this court than was required to argue s 31A. The appeal is best disposed of on its merits.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated: 29 August 2007

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 57 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANGELO ZOIA Appellant
AND:	COMMONWEALTH OMBUDSMAN DEPARTMENT Respondent

JUDGES:	SPENDER, FRENCH & GILMOUR JJ
DATE:	1 AUGUST 2007
PLACE:	PERTH

REASONS FOR JUDGMENT

GILMOUR J:

28 I agree that the appeal should be dismissed for the reasons stated by Justice Spender, with which I respectfully agree. I have nothing to add.

I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated: 29 August 2007

Appellant appeared in person. :
Counsel for the Respondent:	PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 August 2007
Date of Judgment:	1 August 2007