Case: Robert Joseph Barry Garvey v Secretary, Department of Family and Community Services [2003] FCA 340
Outcome: affirmed
As explained in the decision of Dowsett J of 2 April 2003 ( Robert Joseph Barry Garvey v Secretary, Department of Family and Community Services [2003] FCA 340) events relevant to the decision of his Honour, and the application currently before me, date back to December 1985. In summary: &#8226; In December 1985 the applicant applied for an invalid pension pursuant to the provisions of s 30 Social Security Act 1947 (Cth). That application was refused. &#8226; The applicant subsequently sought a merits review of that decision in the Administrative Appeals Tribunal ("the Tribunal"), but was unsuccessful. He was also unsuccessful in his appeal to the Full Court of the Federal Court ( Secretary, Department of Social Security v Garvey (1989) 91 ALR 245). &#8226; The applicant brought a new application before the Tribunal however the Tribunal determined that no new issues were raised in these subsequent proceedings. &#8226; The applicant appealed against this decision of the Tribunal to this Court, however Dowsett J ordered the applicant's notice of appeal be struck out on the basis that the matter had already been finally resolved by the Full Court in 1989. His Honour also ordered the applicant pay the respondent's costs ( Garvey [2003] FCA 340). &#8226; On 19 November 2003 the District Registrar in the Brisbane Registry of the Court made an order pursuant to O 62 r 45(3) Federal Court Rules in the following terms: On 2 April 2003 the Court ordered that the applicant pay the respondent's costs of the appeal including the costs of the application to strike out and the costs of 2 April 2003. On 1 October 2003 an estimate of the respondent's bill of costs was made pursuant to the provisions of Order 62 rule 46 and allowed in the sum of $5,878.88, for which sum a Certificate of Taxation was issued on 28 October 2003. THE COURT ORDERS THAT the applicant pay the sum of $5,878.88 to the respondent. 11 Fourth, and in my view critically, even were the application to be granted there are no prospects of success on appeal. In both affidavits the applicant complains of findings by the Full Court however: &#8226; This clearly demonstrates, as found by Dowsett J, that the applicant merely seeks to re-agitate issues already resolved by decision of the Full Court in 1989. Indeed this morning the applicant conceded that, in comparison with the proceedings before the Full Court, this was "the same case, but different arguments". In this respect I consider that the application before me, as was the notice of appeal before Dowsett J, is an abuse of process. &#8226; The existing Full Court decision binds the Tribunal as well as single judges of this Court. I endorse doubts expressed by Dowsett J in his primary judgment as to the competency of the Tribunal to entertain the applicant's proceedings which were subsequently the subject of an appeal before his Honour ( Garvey [2003] FCA 340 at [2] ). 12 The appropriate orders are to dismiss this application, with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 8 October 2008 The Applicant appeared in person. Solicitor for the Respondent: Mr T Loos for the Australian Government Solicitor Date of Hearing: 8 October 2008 Date of Judgment: 8 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1507.html