Gradara v Secretary, Department of Family & Community Services [2003] FCAFC 219

FEDERAL COURT OF AUSTRALIA

Gradara v Secretary, Department of Family & Community Services [2003] FCAFC 219 TARCISIO GRADARA v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES V 275 of 2003 LEE, GOLDBERG & ALLSOP JJ 25 AUGUST 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 275 of 2003

BETWEEN: TARCISIO GRADARA

Appellant

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

JUDGE: LEE, GOLDBERG & ALLSOP JJ

DATE OF ORDER: 25 AUGUST 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The purported appeal be dismissed. 2. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 275 of 2003

BETWEEN: TARCISIO GRADARA

Appellant

AND: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

JUDGE: LEE, GOLDBERG & ALLSOP JJ

DATE: 25 AUGUST 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT THE COURT: 1 This is a notice of motion to strike out the appeal that has been filed in this matter by the respondent. The contention for the motion is that the decision appealed against is an interlocutory decision and that leave to appeal from such a decision is required under the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules, in particular O 52 r 18(1). 2 The examination of the notice of appeal shows immediately that it does not disclose that there is an arguable case to be presented if leave were granted. We are satisfied that the decision made is an interlocutory decision and it is one in which leave to appeal is required. We have also had regard to what may be described as a foreshadowed amendment to, or incorporation in, the notice of appeal, if leave were granted, of a ground that the respondent has indicated in an affidavit filed subsequent to the motion. But we cannot see anything in the way of an arguable case in that affidavit either. In the circumstances, the Court has no option but to refuse leave to bring an appeal to this Court from the decision of the trial judge. The respondent's motion therefore shall be granted in the terms sought, save as to the question as to costs. 3 In respect of the matter of costs, we have had regard to the findings of fact of the Administrative Appeals Tribunal ("the Tribunal"), the great areas of uncertainty of administrative action that lie at the back of this matter, and the fact that there is no precedent in this matter for any other case as it stands completely on its own set of facts. We have also had regard to the fact that on the face of the matter, as the facts found by the Tribunal eloquently show, there could be absolutely no utility in a costs order being made in this matter, which will always be a factor in any order made by a court where there is a discretion to be exercised. Hence we are not persuaded that we should depart from the order made by the trial judge in relation to costs, and we consider that it is appropriate in the finalisation of this matter that there be no order as to costs. 4 Another factor that has exercised our minds in regards to costs is that – and it is wholly apparent - the putative appellant in this matter has no grasp of what the proceedings are about and what indeed he was laying himself open to. He has never had the benefit of any independent advice by a practitioner, which could have been a step interposed at some point along the way in other circumstances. Having regard to all of those factors, we are not minded to make an order for costs in this matter. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.