Case: Lim v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1058
Outcome: referred to
The respondent challenged the competency of the appeal on the ground that it did not disclose a question of law as required by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'). That objection to competency came before Branson J who accepted that the notice of appeal did not identify a question of law capable of constituting the subject matter of the purported appeal ( Lim v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1058). Her Honour concluded at [12] that the: ... factual assertion that Mr Lim had made arrangements, apparently after breaching one of his agreements, to attend at WorkDirections on an extra day in a later week does not itself constitute a question of law. Nor does it by implication raise a question of law the answer to which could throw doubt on the correctness of the decision of the Tribunal. The references in the notice of appeal to the law of "attendance" and "reasonable excuse" do not assist Mr Lim in this regard. 9 However, her Honour gave consideration to any questions of law that Mr Lim could reasonably expect to be able to obtain leave to include in his notice of appeal were he to apply to amend the document. Her Honour said at [15]: However, it seems to me that it is at least arguable that none of the agreements between Mr Lim and WorkDirections is "a Newstart Activity Agreement between the Secretary and the person" within the meaning of s 624 of [the Act]. In particular I consider it arguable that the Secretary has not approved a form of Newstart Activity Agreement for an agreement between a person and a party other than Centrelink. It may also be arguable that the authority of the Secretary to delegate all or any of the Secretary's powers under [the Act] is insufficient to alter the requirements of s 605(4) that a Newstart Activity Agreement be between the person and the Secretary. I do not mean thereby to suggest that the Secretary could not delegate his or her power to sign such an agreement. However, the agreements entered into by Mr Lim do not purport to be agreements between him and the Secretary. They purport to be agreements between him and WorkDirections. 10 Mr Lim filed an amended notice of appeal on 25 July 2008 and a further amended notice of appeal on 20 August 2008. In the further amended notice of appeal the questions of law raised are: 1. Whether it was open to the Tribunal to be satisfied that the agreements entered into by Mr Lim were Newstart Activity agreements within the meaning of s 624 of [the Act] . 2. Whether it was open to the Tribunal to proceed hearing when the respondent (Secretary, DEWR) was not the same person who purported to have activity agreement with Mr Lim within the meaning of s 624 of [the Act] . 11 The ground stated in the further amended notice of appeal is ' covering up the truth and deceiving the court process '. I do not propose to deal with this ground further. Nothing was raised that would support any such conclusion. 12 The findings of fact that Mr Lim asks the Court to make are: 1. Agreements which Mr Lim signed are not approved by the Secretary s 234 instrument. Agreements which Mr Lim signed are purported to be agreement between Mr Lim and Workdirections. 2. The newstart agreement was purported between Mr Lim and the Secretary of liberal govt. At the AAT hearing, the solicitor of respondent represent Miss Lisa Paul, Secretary of labour govt. Miss Paul was not privity to the newstart agreement with Mr Lim. 49 Although the respondent was unsuccessful in the objection to competency of the appeal, it was Branson J, not Mr Lim or his notice of appeal, that disclosed an arguable case. 50 While the respondent has established the validity of the Lim Activity Agreements and Mr Lim's application is to be dismissed, it was only after a series of attempts to validate the agreements and errors that were identified by Mr Lim and by the Court. In the circumstances, I note that the respondent has not sought an order as to costs and I will make no order as to costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 21 November 2008 The Applicant was self-represented Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 October 2008, 6 November 2008 Date of last written submissions: 13 November 2008 Date of Judgment: 21 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1752.html