Case: Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118
Outcome: cited
Learned Federal Magistrate Wilson's decision and order are biased against the Applicant or Appellant. (emphasis in original) Mr Conde has sought orders including that the appeal be allowed, that the decision of the Federal Magistrate be set aside, costs on an indemnity basis and orders with respect to "disciplining of its officers". Orders sought by Mr Hunter In his notice of motion currently before me, Mr Hunter has sought the following orders: That the Appellant's Notice of Appeal filed 3 August 2009 be struck out forthwith as an abuse of process and as an appeal which has, on its face, no prospects of success. The Appellant pleads no valid ground of appeal, and each of the Grounds of Appeal 1 to 14 ought to be summarily struck out. The several allegations of unlawful and unprofessional conduct by Anthony James Macklin are vexatious, oppressive and an abuse of process, are wrong, have no proper or pleaded basis in law or fact, and Grounds 8 and 9 ought to be struck out on this basis as well. There is no basis for the allegation of bias pleaded in Ground of Appeal 14; the allegation is wrong in law and fact, is vexatious and oppressive, and is an abuse of process and ought to be struck out on that basis. An order, if necessary and required, that the time and date for the Directions Hearing set out in respect of the Appellant's Notice of Appeal be abridged, and that the date of Tuesday 22 September 2009 be vacated and a time and date for a Directions Hearing be allocated at an earlier time on the grounds of urgency, and on the further grounds that the Notice of Appeal is filed for the purposes of delay only, and is an abuse of process. An order that the Respondent, JOHN LAWRENCE HUNTER be at liberty to file and serve a Creditor's Petition forthwith upon MILTON ARNOLDO CONDE as Judgment Creditor, and further that the hearing and determination of the Creditor's Petition be heard and determined with, after or at the same time as, this Notice of Motion is heard and determined. An order that the Appellant pay the Respondent's costs of and incidental to the appeal on the full indemnity basis, and that such costs be fixed at the hearing of this Notice of Motion. An order that the Appellant be restrained and prevented from instituting any appeal against the dismissal of his appeal in these proceedings without first applying for and obtaining leave of this Honourable Court to bring such an appeal. Such further or other adjournments, enquiries, directions and other orders as to this Honourable Court seem appropriate. Issue 1 what is the nature of the Court's jurisdiction to strike out a notice of appeal pursuant to section 25(2B)(aa) of the Federal Court Act Section 25(2B)(aa) provides that a single judge or the Full Court may give summary judgment in an appellate matter. That a single judge may give judgment summarily dismissing an appeal from a decision of the Court is clear from decisions applying the section: Druett v Department of Families, Community Services &amp; Indigenous Affairs [2007] FCA 995 , Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118. A question arises whether, in considering s 25(2B)(aa), it is necessary for the Court to also have recourse to s 31A. In a number of cases the Court has exercised power pursuant to s 25(2B)(aa) and given summary judgment without reference to s 31A: Druett v Department of Families, Community Services &amp; Indigenous Affairs [2007] FCA 995 , Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 , Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326 , Rana v University of Adelaide (No 2) [2008] FCA 941. However in other cases the Court has linked the power under s 25(2B)(aa) to the jurisdiction of the Court under s 31A and summarily dismissed an appeal on the basis that the appellant had no reasonable prospect of success in prosecuting its grounds of appeal: Genovese v BGC Construction Pty Ltd [2007] FCA 923 , Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118.