Bird, G.J. v The Hon. Free, R. & Ors [1995] FCA 366

CATCHWORDS APPEAL - dismissal for want of prosecution - litigant in person - refusal to submit to the Court's jurisdiction Federal Court Rules - O. 52 r. 38 Van Reesema v Gaimeos (1979) 27 ALR 525 Muto v Faul [1980] VR 26 Barton v The Queen (1980) 147 CLR 75 Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1994) ATPR 41-315 Birkett v James [1978] AC 297 GEOFFREY JAMES BIRD V THE HONOURABLE ROSS FREE & ORS No. QG 3 of 1995 SPENDER, EINFELD & COOPER JJ BRISBANE 4 MAY 1995

IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) No. QG 3 of 1995 GENERAL DIVISION ) BETWEEN : GEOFFREY JAMES BIRD Appellant AND : THE HONOURABLE ROSS FREE, Minister for Schools, Vocational Education and Training First Respondent AND : THE HONOURABLE SIMON CREAN, Minister for Employment, Education and Training Second Respondent AND : DEREK VOLKER, Secretary to the Department of Employment, Education and Training Third Respondent CORAM: SPENDER, EINFELD & COOPER JJ PLACE: BRISBANE DATE: 4 MAY 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal shall be dismissed. 2. The appellant is to pay the respondents' costs of and incidental to the appeal, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) No. QG 3 of 1995 GENERAL DIVISION ) BETWEEN : GEOFFREY JAMES BIRD Appellant AND : THE HONOURABLE ROSS FREE, Minister for Schools, Vocational Education and Training First Respondent AND : THE HONOURABLE SIMON CREAN, Minister for Employment, Education and Training Second Respondent AND : DEREK VOLKER, Secretary to the Department of Employment, Education and Training Third Respondent CORAM: SPENDER, EINFELD & COOPER JJ PLACE: BRISBANE DATE: 4 MAY 1955 REASONS FOR JUDGMENT SPENDER J: This appeal arises out of an application filed on 27 September 1994. As filed, the applicant was styled the Australian Union of Students and the respondent was DEET, an acronym for the Department of Employment, Education and Training. Mr Bird filed two notices of motion on 27 September 1994 and a further notice of motion on 12 October 1994. The respondent also filed a notice of motion on 19 October 1994. On 20 October 1994 Mr Bird applied to Kiefel J that she disqualify herself. It is unnecessary to refer to the grounds on which Mr Bird relied, save to say that they were offensive. The primary judge refused to disqualify herself. An application for leave to appeal to the Full Court of the Federal Court was refused. The proceedings were adjourned until 26 October 1994. On that day Kiefel J heard a number of the motions and on 14 December 1994, in respect of the principal proceedings, her Honour ordered that the application be dismissed and that Mr Bird pay the respondents' costs of and incidental to the proceedings, to be taxed. That judgment on 14 December followed the hearing of the principal proceedings on 20 and 26 October. In the course of giving her reasons for judgment the primary judge said: " Mr Geoffrey James Bird is a student and in receipt of Austudy Benefits under the Student Assistance Act 1973. On 28 July 1994 he wrote on behalf of the "Australian Union of Students"...and indeed on behalf of all students in Australia receiving Austudy payments, to the Secretary and Chief Executive of the Department of Employment Education and Training. That department administers...[the Student Assistance Act 1973]. Mr Bird enclosed a "log of claims" and required a decision upon the requests or demands contained within that document. " The primary judge analysed the nature of those demands. In the course of that outline, she indicated that three respondents, who ultimately became respondents to the proceedings, were the relevant respondents in the view of the department, and she gave directions to that effect. By letter dated 17 August 1994 from the Assistant Secretary of the legal branch of the department, and on behalf of the Secretary of the department and the two Ministers, Mr Bird was informed that the department had looked at the log of claims. The letter continued: " The department does not consider that the points raised have merit and will therefore not be implementing any of the matters raised in the log of claims. " Concerning the nature of the applicant in the proceedings before the primary judge, she said: " As to the proper applicant, Mr Bird contended that he was entitled to use the name 'Australian Union of Students' in respect of which an application for registration of a trade mark has been made, by way of analogy to the rules relating to business or partnership names or by reference to provisions as to the bringing of class proceedings. Mr Bird's difficulty is, as he informed me, that he is the only member of the group he refers to. He is the Australian Union of Students. He was only able to suggest there might be other members in the future and who might be persons likely to receive financial assistance under the Student Assistance Act. " The primary judge referred to further submissions made on Mr Bird's behalf and concluded by directing that the name of the applicant be amended to read Geoffrey James Bird. The nature of the application was described by the primary judge as the seeking of declarations and orders under the Administrative Decisions (Judicial Review) Act 1977 and under section 39B(1) of the Judiciary Act 1903. The respondents sought orders dismissing the application under O. 20 r. 2 and O. 54 r. 6, there being no reasonable basis for the application disclosed and because the proceedings were an abuse of the process of the court. The primary judge said: " Mr Bird did not contend for a review of the decision on its merit. Whilst Mr Bird made the submission that the decision was legally invalid for unreasonableness, the relief he seeks are declarations and mandatory orders which oblige his log of claim to be implemented. " In her reasons for judgment, the primary judge said that neither s. 7 nor s. 11(1) of the Student Assistance Act 1973 referred to Mr Bird creates any obligation for which he contends. She referred to further proceedings brought by Mr Bird which had been the subject of judgments by Davies J and concluded that neither s. 7 nor s. 11(1) requires the decisions sought by Mr Bird. There were other submissions dealt with by the primary judge in the course of her reasons, and she concluded in the penultimate paragraph of her reasons dealing with the proceedings: " Although it is unnecessary in the light of my other findings, I was also of the view that Mr Bird was not, with respect to the relief sought under the Administrative Decisions (Judicial Review) Act, a 'person aggrieved' since he was in no different position from any other student and no interest of his was affected by the decision. Mr Bird appeared to equate that requirement with a refusal of any request which he considered might be of some benefit to a student. " She then dismissed his application and indicated that she proposed to order, as she subsequently did, that Mr Bird pay the respondents costs of and incidental to the proceedings, to be taxed. In the events that have happened, it is not irrelevant to note the observations by the primary judge concerning the conduct of Mr Bird. Her reasons for judgment concluded with these observations: " I should also add that I have some concern about Mr Bird continuing to bring applications with respect to his Austudy benefits or the scheme to this court. Davies J has heard two applications earlier this year. Both applications were dismissed with Mr Bird being ordered to pay costs and, on my reading of his Honour's reasons, both applications were considered to be misconceived. Mr Bird has appeared before me on a number of occasions with respect to two applications, one of which required a separate consideration of his request that I disqualify myself. The other application I dealt with was concerned with the alleged cancellation of Mr Bird's Austudy payments. Davies J dealt with a similar question. Mr Bird had a legal technical argument which he considered justified the matter being brought in this court and not before the Student Assistance Review Tribunal constituted under the Student Assistance Act, but it seemed to me he simply considered proceedings here might be determined more quickly. The matter was resolved by undertakings although resurrected again by Mr Bird when he brought a motion for breach of those undertakings. In fact Mr Bird sought by those means to obtain a further order not covered by the undertakings made. Needless to say these matters have occupied considerable time. None of them has been of substance and each of them doomed to failure. Mr Bird would be well advised in the future to consider alternative means available for the resolution of these questions. " On the day when her Honour pronounced her reasons for dismissing the application, Mr Bird raised a matter concerning costs. In that respect, her Honour said: