Druett v Dept of Family & Community Services [2002] FMCA 12 (5 February 2002)

Last Updated: 30 April 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DRUETT v DEPT. OF FAMILY & COMMUNITY SERVICES (No. 1)

[2002] FMCA 12

ADMINISTRATIVE LAW - Appeal from Administrative Appeals Tribunal seeking judicial review of a decision not to grant extension of time - whether the Tribunal made an error of law - whether there is any utility in granting an extension of time where the Tribunal has no jurisdiction to hear the matter.

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Children (Care and Protection) Act 1987 (NSW) s 60

Waterford v Commonwealth [1987] HCA 25; (1987) 71 ALR 673

Neal v Secretary, Department of Transport [1980] FCA 45; (1979) 3 ALD 97

Appellant:

GARRY DRUETT

Respondent:

DEPARTMENT OF FAMILY & COMMUNITY SERVICES & ANOR

File No:

SZ 665 of 2001

Delivered on:

5 February 2002

Delivered at:

Sydney

Hearing Date:

14 January 2002

Judgment of:

Raphael FM

REPRESENTATION

The Appellant appeared in person.

Solicitors for the First Respondent:

Mr G Peek Australian Government Solicitor

Solicitors for the Second Respondent:

Ms D Ward Crown Solicitor's Office, New South Wales

ORDERS

(1) The appeal be dismissed.

(2) The appellant pay the costs of the first respondent.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SZ 665 of 2001

GARRY DRUETT

Appellant

And

DEPARTMENT OF FAMILY & COMMUNITY SERVICES (COMMONWEALTH)

First Respondent

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES (NSW)

Second Respondent

REASONS FOR JUDGMENT

1. This is an appeal against a decision of Senior Member Ms S M Bullock in the Administrative Appeals Tribunal dated 19 July 2001. The Tribunal decided that no extension of time should be granted in relation to Mr Druett's principal application, which was an application to set aside a decision of the Department of Family & Community Services to take his children Chloe, Gregory, Nicole and Bernice into care.

2. Although the decision was made by an organisation having the same name as the first respondent it was in fact a decision of a department of the New South Wales government of the same name. That department has since changed its name to the Department of Community Services.

3. At the commencement of the proceedings Ms Ward, who appeared as Crown Solicitor for the State, sought leave by notice of motion to be joined in the proceedings. The application which she had made was actually made in matter number SZ 666 of 2001 but this file related to another application brought by Mr Druett and was not the appeal against the decision numbered N2001/444, which concerned the substantive decision made by the New South Wales department.

4. Mr Druett objected to the joinder of this department on the ground that his case was an appeal against the decision of a Commonwealth body, namely the AAT. However, Ms Ward did indicate that she would not be seeking any costs against the appellant even if she were successful and on that basis and because I thought that Ms Ward could possibly provide some assistance to the Court I granted leave for the Department of Community Services of New South Wales to be joined as the second respondent in the matter.

5. In the Butterworths service "Australian Administrative Law" edited by D C Pearce, the learned author quotes from a judgment of Brennan J in Waterford v Commonwealth [1987] HCA 25; (1987) 71 ALR 673 at 689:

"A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law."

6. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia "from any decision of the Tribunal in that proceeding" but only "on a question of law". The error of law which an appellant must rely on to succeed must rely on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact.

7. The learned author also refers to the decision of Franki J in Neal v Secretary, Department of Transport [1980] FCA 45; (1979) 3 ALD 97 at 100:

"There is no appeal to this Court on anything other than a question of law and therefore the Court is not concerned with whether or not it would have come to the same conclusion as the Tribunal came to, but only with the question of whether the Tribunal erred in law."

8. I have made reference to these decisions because they may assist Mr Druett in understanding the task with which I was faced. The nuances of the legal system and the powers of individual courts are not always easy to grasp for an unrepresented litigant even one who, like Mr Druett, has now proceeded through every court in the New South Wales legal system and to the High Court of Australia.

9. The basis of the decision made by Ms Bullock is set out in para 17 of her judgment:

"17. In Mr Druett's case it is clear that the decision for which he seeks an application for review relates to a decision made by State authorities, namely the New South Wales Department of Family and Community Services, under section 60 and other provisions of the Children (Care and Protection) Act 1987, a New South Wales statute. The Tribunal has no jurisdiction to consider such matters as was explained to Mr Druett by Mr Slattery and the Tribunal. With no jurisdiction, there is also no merit in Mr Druett's application for review. Further, the Tribunal having found that the Tribunal has no jurisdiction to review decision made by a New South Wales authority under New South Wales law, there is no merit to Mr Druett's extension of time."

10. The Tribunal went on to note that Mr Druett had sought redress for the decision under s 60 through the courts of New South Wales.

11. Mr Druett's submissions on the appeal were contained in a written document annexed to the notice of appeal. It was a summary of argument that had originally been prepared for use in the High Court, and a series of affidavits. Mr Druett also made oral submissions at the hearing before me.

12. None of the submissions which Mr Druett made deal with any alleged error of law made by the AAT. The submissions seek to re-agitate the matters that were considered by the AAT. Essentially these relate to the correctness of the decision to remove the children and the subsequent conduct of various State and Commonwealth departments. Mr Druett also criticised certain judicial decisions made by the New South Wales courts.

13. I was assisted by Ms Ward on behalf of the New South Wales department. I am satisfied from her submissions and my own research that the initiating decision to take these children into care was made under s 60 of the Children (Care and Protection) Act 1987 and that that Act is a New South Wales statute. I am satisfied there was no error of law on the part of Ms Bullock in coming to the conclusion that the Commonwealth AAT has no jurisdiction in respect of such a decision. I am also satisfied that in those circumstances Ms Bullock's decision not to grant the appellant an extension of time for seeking review by the AAT was both appropriate and legally correct. There is no possible utility in giving the litigant an extension of time which would allow him to argue a case that is fundamentally flawed, when the existence of that flaw is perfectly clear at the time of the application.

14. I would dismiss this appeal and order that the appellant pay the costs of the first respondent pursuant to Part 21.10 of the Federal Magistrates Court Rules. I certify that this case is suitable for an advocate pursuant to Part 21.15 of the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: