Case: Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118
Outcome: cited
second respondent, Centrelink, has moved the Court for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) on the basis that the appeal filed by the appellant, Vitaly Kulik, has no reasonable prospects of success. The power conferred by s 31A extends to the summary dismissal of an appeal: see Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118 at [12] . The power of a single judge to exercise this jurisdiction is conferred by s 25(2B)(aa) of the Federal Court of Australia Act 1976 . The judgment appealed from dismissed an application from the Administrative Appeals Tribunal on the ground that, while the Tribunal failed to comply with s 42A(4) of the Administrative Appeals Tribunal Act 1976 (Cth), it would have been futile in the circumstances to send the matter back to the Tribunal for the reason that the only decision open to the Tribunal was that it had no jurisdiction to entertain the review application made to it. Fundamental to her Honour's decision, after careful consideration of the Tribunal's decision, was her inability to discern an intelligible claim made by the appellant that could enliven the review jurisdiction of the Tribunal. Further, the documents that were filed before her Honour in support of the appeal to the Court did not in her Honour's view, despite her best endeavours, identify any sensible application. Before I turn to the appellant's Notice of Appeal, I should indicate that the decisions seemingly challenged by Mr Kulik relate to purported FOI requests which were refused by Centrelink. Something of their character is portrayed in the terms of the Notice of Appeal. The Grounds of Appeal are stated to be: Falsification of evidence by Second Responder (see Applicant's Affidavit-1, Affidavit-2, Affidavit-3 and Applicant's Written Submission). Sabotage of the Federal Court of Australia Proceedings by Second Responder (see Applicant's Affidavit-2, Affidavit-3, Applicant's Written Submission and other evidence: Ref. FCA-2001-1 =&gt;FCA-2008-10). The text of the 4/9/2009 Judgement was copied from the Second Responder's documents and filibusters, including Second Responder's false evidence and misprints. E.g. the paragraph 7 of the Judgement refers to "direction hearing on 18 March, 2009". There was no direction hearing on 18 March, 2009. The main items of Applicant's evidence are Commonwealth Ombudsman reports. Justices Rares and Stone, obviously, have no experience and personal knowledge of the Second Responder's anti-justice operations and "legal" methods. Hence, they can not "understand" and "comprehend" evidence, submitted by Applicant. The orders sought are that: To appoint a justice, who has some knowledge and experience of the Second Responder's computer crimes. To review case (P)ACD 40 of 2008. To issue a restraining order, forbidding Second Responder to cut Applicant's access to medical system during Proceedings of Federal Court of Australia. It is now more than 4 months since the Second Responder disconnected access to all basic services (including Legal Aid), as described in the Applicant's Affidavit-2. It is apparent upon the face of the Notice of Appeal that it does not identify any ground upon which her Honour's discretionary decision not to remit the matter to the Tribunal could be said to disclose appellable error. It does not otherwise disclose any error in her Honour's treatment of the Tribunal's decision to dismiss the appellant's application to it. Equally the orders sought in the Notice are not ones which properly could be made in a matter such as the present. For my own part, I can discern no appellable error in her Honour's careful judgment. Both her Honour, and another judge of this Court, have made considerable efforts to enable the appellant, who is self represented, to identify a decision or decisions capable of being reviewed by the Tribunal. He has been unsuccessful in that endeavour. I am in the circumstances satisfied that the appellant has no reasonable prospect of successfully prosecuting the appeal, in consequence, I will order that the appeal be dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 16 November 2009 Counsel for the Appellant: The Appellant did not appear. Counsel for the First Respondent: The First Respondent did not appear. Counsel for the Second Respondent: Mr J Bird Solicitor for the Second Respondent: Blake Dawson Date of Hearing: 16 November 2009 Date of Judgment: 16 November 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1324.html