Case: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
The Federal Magistrate's decision summarily dismissing the applicants' judicial review application is interlocutory in nature, since it rests on his Honour's finding that the applicants have no reasonable prospects of success. As was said in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at [43] per French J (with whom Beaumont and Finkelstein JJ agreed) "[i]f a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory": see also Finikiotis v Sims Partners [2005] FCA 1774 at [10] per Lander J and Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 at 345-346 per Lander J. Interlocutory decisions require leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An application for leave to appeal must be determined according to the test in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. The applicants need to establish that, in all the circumstances, the impugned decision is attended by sufficient doubt to warrant it being reconsidered by an appellate court, and that substantial injustice would result if leave were refused, supposing the decision to be wrong. 19 The central difficulty for the applicants is that, for the most part, the underlying conduct about which they complain has already been the subject of comprehensive judicial consideration. Although the applicants now formulate their claims before HREOC as violations of their human rights, there is no doubt that they continue to attack (though by another route) the conduct of Centrelink in refusing to grant Mrs Scott a Special Benefit. In this Court and the High Court, Centrelink's conduct regarding Mr and Mrs Scott has been the subject of the following decisions: &#8226; Scott v Secretary, Department of Social Security [1999] FCA 1774 (Heerey J); &#8226; Scott v Secretary, Department of Social Security [2000] FCA 1241 (Beaumont, French and Finkelstein JJ); &#8226; Scott &amp; Anor v Secretary, Department of Social Security M112/00 (Callinan and Kirby JJ) (special leave refused); &#8226; Scott v Pedler [2003] FCA 650 (Gray ACJ); &#8226; Scott v Pedler [2004] FCAFC 67 (Gyles, Conti and Allsop JJ); and &#8226; Scott &amp; Anor v Pedler &amp; Ors M83 of 2004 (Hayne and Crennan JJ) (special leave refused). 20 In effect, the applicants have asked HREOC to examine the decisions of this Court and the High Court concerning their claims against Centrelink. For the most part, the judgments of this Court have been the subject of appeal or application for special leave to appeal. That is, they have already been the subject of examination and consideration by another court in the court hierarchy. Paragraph 20(2)(c)(iii) enables HREOC to decline to investigate a complaint where HREOC is of the opinion that the subject matter of the complaint has been adequately dealt with. HREOC may so conclude where the subject matter of the complaint has already been the subject of scrutiny by another person or body (such as a court). The applicants have been unable to point to anything in the present case that might raise an arguable ground for judicial review in respect of HREOC's decision to decline to inquire on the basis of an opinion formed in accordance with s 20(2)(c)(iii) of the HREOC Act . No error would appear in the Federal Magistrate's decision in this regard.