Abraham v Commonwealth of Australia [1999] FCA 1613

REASONS FOR JUDGMENT

THE COURT 1 This is an appeal against a decision of North J who, on 31 May 1999, ordered that application V 221 of 1999, filed with the Court on 10 May 1999, be struck out. A formal order to that effect was entered on 8 June 1999. The application named as respondent the "Family Law Squad Federal Police". It alleged a contravention of an order of the Family Court, and negligence, on the part of that squad. 2 In ordering that the application be struck out, North J appears to have invoked O 20 r 2(1)(a) of the Federal Court Rules. His Honour's reasons are brief, but they make it clear that his Honour was satisfied that the application disclosed no reasonable cause of action. His Honour no doubt applied the settled principle that a summary order which prevents a party from pursuing a claim according to the ordinary course of procedure should be made only in a very clear case: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. 3 On 22 June 1999 the appellant filed a notice of appeal against his Honour's decision. That notice was filed one day out of time – see O 52 r 5 – but the respondent has taken no point about this and did not object to the Court granting an extension of time for the filing of the notice of appeal. The order made by North J striking out the application was arguably interlocutory in nature, but once again the respondent did not object to the Court granting the appellant leave to appeal should such leave be required. Accordingly, the Court granted the leave necessary for it to deal with the matter as an appeal. 4 In the notice of appeal the appellant named as respondent the Commonwealth of Australia rather than the "Family Law Squad Federal Police". The sole ground of appeal set out in the notice of appeal is: "From Australian Tort Report under law (50-540) negligence; and (52-740) breach of statutory duty." 5 It goes without saying that this ground is wholly defective. The appellant is, however, unrepresented, and was given appropriate latitude by the Court in order to enable him to formulate and make submissions concerning the decision which is the subject of the appeal. 6 The only order sought by the appellant in the notice of appeal is: "The Commonwealth Government Federal Police to pay all of my expenses to bring my daughter Lem Lem Sara Jemas from Japan to Australia." 7 On the same date as the notice of appeal was filed with the Court, the appellant filed a statement of claim also naming the Commonwealth of Australia as respondent. In that statement of claim he complained of the failure of the Federal Police to stop his wife from removing his daughter from Australia. He set out what were described as "Particulars of Negligence", and referred to various breaches of statutory duty, and to certain other matters which were not relevant. 8 By notice of motion dated 26 August 1999 the Commonwealth moved for an order that the appeal be dismissed as incompetent pursuant to O 52 r 18. Nothing of any consequence turns upon the fact that such a motion was filed. The Court heard the appeal in its entirety and is in a position to deal with the matter without having to determine whether the respondent made good its case for summary dismissal of the appeal.