Pham v Secretary, Department of Employment & Workplace Relations [2007] FCAFC 179 (22 November 2007)

PRACTICE AND PROCEDURE – appeal – competency – appeal from Administrative Appeals Tribunal – dismissed under O 53 of the Federal Court Rules (Cth) and s 31A of Federal Court Act of Australia Act 1976 (Cth) – appeal against dismissal – leave requirement – no application for leave – no prospect of success of appeal
Held: appeal dismissed as incompetent

Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules (Cth) O 52

CHARLES PHAM v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
VID 491 OF 2007

FRENCH, LINDGREN AND JACOBSON JJ
22 NOVEMBER 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 491 OF 2007

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CHARLES PHAM Appellant
AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGES:	FRENCH, LINDGREN AND JACOBSON JJ
DATE OF ORDER:	22 NOVEMBER 2007
WHERE MADE:	MELBOURNE

2. The appellant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 491 OF 2007

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CHARLES PHAM Appellant
AND:	SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGES:	FRENCH, LINDGREN AND JACOBSON JJ
DATE:	22 NOVEMBER 2007
PLACE:	MELBOURNE

1 On 4 June 2007 North J dismissed an appeal by Charles Pham from a decision of the Administrative Appeals Tribunal (the AAT). The AAT’s decision, given on 12 January 2007, had affirmed a decision by an officer of the Department of Employment and Workplace Relations (DEWR) suspending payment to Mr Pham of Newstart Allowance. The payment was suspended on 16 June 2006 on the basis of Mr Pham’s failure to provide information required by Centrelink relating to a distribution said to have been received by him from a family trust. The suspension was affirmed by a decision of an authorised review officer of DEWR given on 22 June 2006. Mr Pham appealed to the Social Security Appeals Tribunal which also affirmed the decision under review.

2 North J dismissed the appeal from the AAT on a motion from the respondent (the Secretary) under O 53 r 20(1)(a) of the Federal Court Rules (Cth) (the Rules). The notice of appeal was not filed in the form required under the Rules. It did not identify a question of law on which the appeal was brought which is a necessary condition of the invocation of this Court’s jurisdiction under s 44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). His Honour also held that the appeal had no reasonable prospect of success and should be dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act).

4 Order 53 of the Rules deals with appeals from the AAT. Rule 20(1) of that Order, on which his Honour relied, provides for dismissal of such appeals for want of prosecution. In relation to that ground, his Honour referred to the history of the proceeding.

5 The notice of appeal from the decision of the AAT was filed on 9 February 2007. Both prior to and at the first directions hearing on 23 February 2007, the solicitors for the Secretary asserted that the notice of appeal was defective for its failure to identify any question of law. The directions hearing was adjourned to 26 March 2007 to allow Mr Pham to seek legal advice or otherwise to give consideration to the grounds on which his appeal might be supported.

6 On 26 March 2007 Mr Pham provided to the Secretary and the Court a "Notice of Appeal (Supplementary)". At the directions hearing on that date, his Honour observed that this document differed little from the original Notice of Appeal. His Honour again explained to Mr Pham the necessity for him to define the errors of law on which he relied. The directions hearing was adjourned to 16 April 2007 and the Court directed the Secretary to provide to Mr Pham a copy of the transcript of the directions hearing.

7 On 11 April 2007, the Secretary filed a notice of motion seeking an order that the proceeding be dismissed under O 52 r 18 of the Rules. That rule provides for the dismissal of appeals as incompetent. It has nothing to do, however, with the exercise of the original jurisdiction of the Court (see the definition of "Court" in O 52 r 1). Appeals from the decisions of the AAT are brought within the original jurisdiction of the Court.

8 At the directions hearing on 16 April 2007 Mr Pham handed up a "Notice of Appeal (Supplementary No 2)". The solicitor for the Secretary had not previously had an opportunity to consider this document, and the directions hearing was adjourned to 4 June 2007. Mr Pham was ordered to pay the Secretary’s costs of the directions hearing fixed at $250.

9 On 23 April 2007, the Secretary filed a notice of motion seeking an order that the proceeding be dismissed under O 53 r 20 of the Rules. The motion was returnable on 4 June 2007. His Honour and the parties appear to have treated the motion as having supplanted the earlier one brought by the notice of motion filed on 11 April 2007.

10 In an Outline of Submissions filed on 30 April 2007, the Secretary gave notice that leave would be sought to amend the notice of motion (filed on 23 April 2007) by seeking dismissal under s 31A of the FCA Act, in the alternative to the dismissal under O 53 r 20 of the Rules.

11 On 14 May 2007, Mr Pham filed a "Notice of Appeal (Monday 14 May 2007) Amended". The only difference between this document and "Notice of Appeal (Supplementary No 2)" was that it substituted "Administration Act" for "Administrative Act". His Honour and the parties proceeded by referring to the "Notice of Appeal (Supplementary No 2)".

12 Mr Pham has now filed a notice of appeal from the order of North J (outlined at [2] above). He has also filed a number of notices purportedly under s 78B of the Judiciary Act 1903 (Cth) in which it is asserted that these proceedings involve a matter arising under the Constitution or involving its interpretation. It is sufficient to say of those notices that the "matters" purportedly raised are either frivolous or vexatious or do not arise under the Constitution or involve its interpretation.

13 Examples of some of the matters identified, in this case in the notice of 25 July 2007, are:

14 On 3 July 2007, the Secretary filed a notice of motion, which was made returnable before the Full Court, seeking an order dismissing the appeal as having no reasonable prospect of success under s 31A(2) of the FCA Act, or, in the alternative, as incompetent under O 52 r 18 of the Rules. It will be noted that both of these provisions are available: s 31A(2) because it provides for the dismissal of proceedings (and s 4 of the FCA Act defines "proceeding" to include an appeal), and O 52 r 18 because, unlike the proceeding at first instance (see [7] above), the proceeding before us is in the appellate jurisdiction of the Court.

15 The decision appealed from is interlocutory and therefore requires leave of the Court before the appeal will be entertained. We have read the notice of appeal and the submissions filed by Mr Pham and by the Secretary. The proposed appeal has no reasonable prospect of success. In that respect the assessment by North J was correct. No basis for a challenge to the decision of the AAT under s 44 of the AAT Act was disclosed before his Honour, nor in this Court.

16 Mr Pham should not have leave to appeal. The appropriate order is that the appeal be dismissed as incompetent. Mr Pham should pay the respondent’s costs of the appeal.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

The Appellant appeared in person.

Counsel for the Respondent:	Mr B Dubé

Solicitor for the Respondent:	Sparke Helmore Lawyers

Date of Hearing:	20 November 2007

Date of Judgment:	22 November 2007

Federal Court of Australia - Full Court Decisions

Pham v Secretary, Department of Employment & Workplace Relations [2007] FCAFC 179 (22 November 2007)