Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1059 (15 July 2008)

Last Updated: 18 July 2008

FEDERAL COURT OF AUSTRALIA

Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1059

RAYMOND BISHOP v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
NSD 880 of 2008

GYLES J
15 JULY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 880 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MS N ISENBERG

BETWEEN:	RAYMOND BISHOP Applicant
AND:	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	GYLES J
DATE OF ORDER:	15 JULY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs assessed at $300.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 880 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MS N ISENBERG

BETWEEN:	RAYMOND BISHOP Applicant
AND:	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent

JUDGE:	GYLES J
DATE:	15 JULY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This, on the face of it, is an appeal from a decision of the Administrative Appeals Tribunal dated 22 May 2008, which affirmed the decision under review, which was to cancel the applicant’s disability support pension. Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act), which is the foundation for this proceeding, provides that a party to a proceeding before the Administrative Appeals Tribunal (the Tribunal) may appeal to the Federal Court of Australia on a question of law from any decision of the Tribunal in that proceeding.

2 The notice of appeal identifies the questions of law as:

"1. Occupational health and safety Act. 2. Government Policy on the Provision of housing. 3. harbouring of criminals"

The grounds do not specify any further substantive information and the order sought is:

"I would be relieved to have a catagory of payment be made to me plus housing which will enable me to help my wife & son."

3 Those questions do not raise any questions of law within the meaning of the Act and the order sought is entirely inappropriate. In his submissions to me today, the applicant has, in effect, said that he was not entitled to a disability support pension but had been provided with one more or less as an act of grace by Centrelink. I indicated at the beginning, when the matter was first called and then during the course of argument, that the limits on the Court’s jurisdiction and the deficiencies in the notice of appeal are such that, if the matter were to proceed, I would be bound to bring it to an end. The applicant is concerned about his personal situation and the urgency of it and does not wish to have any adjournment of the matter to enable the notice of appeal to be recast.

4 The solicitor for the respondent has submitted that, if one goes back to the decision under review, particularly in the light of what is being said by the applicant, it will be seen that the objection to competency is not a mere matter of form and that there is no substance behind the appeal. It appears to me that that is probably the case, although I do not know that I can come to that conclusion at the moment. However, there is no doubt that the form of the notice of appeal is bad. The applicant, notwithstanding his best efforts as an unrepresented person, is unable to articulate any questions of law. In the circumstances, it seems to me that I have no option but to uphold the objection to competency and, whether it is competency in the strict sense or not, the matter should be brought to an end at this stage.

5 There is a question as to whether I should expressly allow power to replead. It seems to me that is not appropriate in the circumstances. There has been no suggestion that there is any chance of repleading and dismissal of this sort, in any event, is not a dismissal on the merits and, subject to time limits, does not bar another proceeding. I have pointed out that there may be time limit implications but the applicant does not wish to seek any adjournment of the matter.

6 It seems to me the appropriate course is to dismiss the application pursuant to s 31A, which I do. I order that the applicant pay the respondent’s costs assessed at $300.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 17 July 2008

	The Applicant appeared in person
Solicitor for the Respondent:	Ms D Watson of Australian Government Solicitor

Date of Hearing:	15 July 2008
Date of Judgment:	15 July 2008