Case: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
Outcome: discussed
Such further or other orders as the Honourable Court deems appropriate." 5 The applicant has also provided to the Court a document that sets out the orders that he seeks. Amongst others, he seeks orders in the following terms: "ASIC/Liquidators have used their position to defeat creditors, employees and shareholders from the companies that they control. ASIC/Liquidators do not have judicial powers in S 536. That power is conferred to the Court. (ASIC's submission to the Tribunal on 21 August 2006 was misconceived re S 536.) The applicant have leave to make application to the Administrative Appeals Tribunal pursuant to S 1317E(1) to demonstrate contravention of the Act." 6 By way of motion, notice of which was given on 10 October 2006, the respondent sought to have the notice of appeal struck out. The matter came before me for directions on 12 October 2006. On that date, I ordered (amongst other things) that the respondent's motion be adjourned for hearing to 13 November 2006 and that the respondent file and serve a short outline of submissions. Jessup J kindly heard the motion on that date, as I was engaged in another hearing. 7 In written submissions filed prior to the hearing before Jessup J, the respondent referred to s 44 of the AAT Act. The respondent noted that a question of law must arise from the decision of the Tribunal from which the applicant appeals and that O 53 r 3(2) of the Federal Court Rules ('the Rules') requires that the question of law be set out in the notice of appeal. Additionally, the notice of appeal must set out the orders sought and the grounds relied upon in support of the orders. The notice of appeal filed by the applicant, so the respondent said, did not state a question of law and contained irrelevant assertions and argument. 8 On 13 November 2006, counsel for the respondent sought to rely on O 9 r 7 of the Rules in support of the strike out motion. In so doing, counsel relied on a decision of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 (' Lambroglou '): see Bittmann v ASIC at [11]. As Jessup J noted subsequently, Lambroglou did not assist the respondent on the application of O 9 r 7, which, as his Honour noted, is directed towards setting aside originating process in circumstances where there is some procedural deficiency or irregularity: see Bittmann v ASIC at [11]-[12]. Here, the respondent does not point to any procedural defect in the notice of appeal. Instead, it seeks to have the notice of appeal struck out on the ground that it fails to identify a question of law that might form the subject of the appeal. In the result, Jessup J ordered that the respondent's motion be dismissed, but that the respondent have leave to make further application in relation to the applicant's notice of appeal: see Bittmann v ASIC at [13]. 12 I also accept that, as the respondent submitted, the Court may make the orders that it seeks by way of its motion. In McGregor v Chief Executive Officer of Centrelink [2000] FCA 701 at [17] , Spender J expressed the view that there was power under O 20 r 2 of the Rules to dismiss an appeal purportedly under s 44 of the AAT Act on the basis that it stated no question of law and thus disclosed no reasonable cause of action: see also Zoia v Administrative Appeals Tribunal [2003] FCA 303 at [6] per Carr J and Barghouthi v ING Custodians Pty Ltd [2003] FCA 1272 at [15] per Allsop J. In Lambroglou , Ryan J expressed the view (at 519) that O 53 r 15(1) of the Rules conferred a power sufficiently broad to allow the Court to strike out the whole or part of an appeal under s 44 of the AAT Act. Whatever the correct analysis of the Rules, s 23 of the Federal Court Act confers broad power on the Court to make orders of such kinds as it thinks appropriate. I accept that, pursuant to s 23, the Court has power to strike out a notice of appeal in reliance on s 44 where the notice does not state a question of law: compare also Lambroglou at 519-520.