Case: Budd v Secretary, Department of Housing, Families and Community Services and Indigenous Affair s [2009] FCA 961
Outcome: related
applicant seeks an extension of time within which to file an Application for Leave to Appeal from a judgment of Emmett J, delivered on 26 August 2009 ( Budd v Secretary, Department of Housing, Families and Community Services and Indigenous Affair s [2009] FCA 961). In that judgment, pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) ( the Federal Court of Australia Act ), his Honour dismissed an appeal brought by the applicant pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal ( the Tribunal ) given on 25 June 2009. In the Tribunal, the applicant sought a review of a decision of the Social Security Appeals Tribunal given on 4 September 2008. That decision had affirmed earlier decisions by Centrelink to reject a claim for a crisis payment made by the applicant on 11 July 2008 pursuant to s 1061JH of the Social Security Act 1991 (Cth) ( His Honour was unable to discern any question of law that the applicant sought to have determined by him. His Honour looked at the contentions and arguments advanced by the applicant and held that the applicant's appeal before him had no prospect of succeeding. Emmett J carefully reviewed the decision of the Tribunal and the catalogue of complaints which the applicant sought to raise before him. His Honour referred to the terms of s 44(1) of the Administrative Appeals Tribunal Act and noted that the appeal to this Court under that section must be on a question of law. His Honour said ( Budd [2009] FCA 961 at [9] ): The existence of a question of law is not merely a qualifying condition to ground the appeal but is also the subject matter of the appeal itself (see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178). In the absence of a question of law within the meaning of s 44(1) of the AA Tribunal Act, the jurisdiction of the Federal Court is not enlivened. His Honour then referred to s 31A of the Federal Court of Australia Act and moved on to consider the applicant's Notice of Appeal. At [18] and [19], his Honour said: The amended notice of appeal is clearly embarrassing. It is highly repetitious and quite incomprehensive [sic] in many respects. It repeats several times the contention that the AA Tribunal misconceived Ms Budd's complaint and misunderstood the medical report upon which she based her complaint. The documents of 19 August 2009 and 20 August 2009 are again repetitious of the complaint that the AA Tribunal failed to have regard to all of the evidence. The documents take issue with the matters considered by the AA Tribunal in concluding that Ms Budd failed in her contention that she had left or could not return to her home because of an extreme circumstance as is required by s 1061JH(1)(a) of the SS Act. The extensive further material that has been provided by Ms Budd serves only to confirm that she is seeking to invite the Court to canvass the factual conclusions reached by the AA Tribunal. His Honour then went on to hold that he could not discern a question of law raised by the applicant, and that, therefore, the appeal before him should be dismissed pursuant to s 31A of the Federal Court of Australia Act . The applicant must demonstrate that she has some prospects of succeeding in overturning his Honour's decision. In order to do that, the applicant must identify some error on the part of his Honour and demonstrate to a sufficient degree that she has a real prospect at a final hearing of establishing that the identified error was, in fact, made. The applicant has conspicuously failed to identify any error on the part of his Honour. All that she has done is to repeat her many complaints about the merits of the decision made by the Tribunal and the prior decision-makers. This is not a sufficient basis to ground an appeal in this Court from his Honour's decision. For these reasons, although I am satisfied that the applicant has explained the delay in making her application for an extension of time for leave to appeal, I am far from satisfied that she has any prospects of succeeding in any appeal that might be lodged were leave to be granted. In those circumstances, I propose to dismiss the application with costs. After I delivered the above reasons for judgment, the applicant became disconnected from the telephone link to the Court which she had enjoyed throughout the hearing. Perhaps she hung up. At about the time we lost communication, Mr Markus, who appears for the respondent, sought a lump sum costs order against the applicant in the amount of $500. The applicant has not had an opportunity to address that application. However, it seems to me that the costs order which I have made, if taxed, would result in a sum of money far in excess of $500 being awarded to the respondent. In those circumstances, and in order to avoid unnecessary waste of time, money and effort, I propose to accede to Mr Markus' application. I will amend the order for costs which I have made to add the words, "assessed at $500". The orders of the Court are: (1) That the application made by the applicant in her Notice of Motion filed on 21 September 2009 for an order extending the time within which she might have leave to appeal from the decision and judgment of Emmett J delivered on 26 August 2009 be dismissed. (2) I order that the applicant pay the respondent's costs of and incidental to that application, assessed at $500. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 8 October 2009 The Applicant appeared in person via telephone link Solicitor for the Respondent: Mr A Markus of Australian Government Solicitor Date of Hearing: 6 October 2009 Date of Judgment: 6 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1138.html