Guse v Comcare [2000] FCA 1668

FEDERAL COURT OF AUSTRALIA

Guse v Comcare [2000] FCA 1668

JACEK GUSE v COMCARE N 481 of 2000 BRANSON, NICHOLSON & GYLES JJ SYDNEY 10 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 481 of 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JACEK GUSE

APPLICANT

AND: COMCARE

RESPONDENT

JUDGES: BRANSON, NICHOLSON & GYLES JJ

DATE OF ORDER: 10 NOVEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 481 of 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JACEK GUSE

APPLICANT

AND: COMCARE

RESPONDENT

JUDGES: BRANSON, NICHOLSON & GYLES JJ

DATE: 10 NOVEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION 1 It should be noted that Mr Guse is not now in the courtroom. Before the Court today is an appeal from the decision of Einfeld J, by which his Honour dismissed an appeal against a decision of the Administrative Appeals Tribunal to dismiss an application before it for want of prosecution. When the matter was called on this morning the appellant, Mr Guse, handed to the Court a statement of charge alleging contempt against a solicitor, Mr James Heard. The court indicated that it was not willing to proceed immediately to entertain an allegation of contempt and to hear and determine the charge. 2 Mr Guse then indicated that he did not wish to proceed with his appeal. The Court sought to give Mr Guse time to reconsider his position and to receive from him submissions on the appeal, but Mr Guse declined to cooperate with the Court in that regard and, indeed, indicated that if he could not proceed with the contempt of court charge, that he did not wish to proceed with his appeal. It should be noted that the relevance of the allegation of contempt to the appropriateness of the order made by Einfeld J is not readily apparent. 3 The Court has had the benefit in this case of detailed written submissions from both parties. The Court was minded, on the basis of the written submissions alone, too think that the appeal should be dismissed for the reasons advanced by the respondent in its written submissions. It has not had the benefit of further submissions by Mr Guse and on that basis it remains of the view that the appeal should be dismissed. 4 It is also of the view, having regard to the incident that occurred in court today, that there may be little utility in leaving this proceeding within the Court's list. So in view of Mr Guse' own indication that he no longer wishes to proceed with his appeal, and the Court's preliminary determination on the material that is before it that the appeal could not succeed on the merits, the order of the Court is that the appeal be dismissed.