Chau v Secretary of the Department of Family & Community Services [2004] FCA 47

FEDERAL COURT OF AUSTRALIA

Chau v Secretary of the Department of Family & Community Services [2004] FCA 47 SELINA CHAU v SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES N 1713 of 2003 WILCOX J 28 JANUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1713 of 2003

BETWEEN: SELINA CHAU

APPLICANT

AND: SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: WILCOX

DATE OF ORDER: 28 JANUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for extension of time to file and serve a notice of appeal, filed on 31 October 2003, be dismissed. 2. The applicant, Selina Chau, pay the costs of the respondent, Secretary of the Department of Family and Community Services. 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 1713 of 2003

BETWEEN: SELINA CHAU

APPLICANT

AND: SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

RESPONDENT

JUDGE: WILCOX

DATE: 28 JANUARY 2004

PLACE: SYDNEY

REASONS FOR EX TEMPORE JUDGMENT WILCOX J: 1 On 31 October 2003, the applicant, Selina Chau, filed in this Court an application for extension of time to file and serve a notice of appeal from the Administrative Appeals Tribunal ('the Tribunal'). She named as respondent to her application the Secretary of the Department of Family and Community Services. The matter came before me on 2 December 2003. Ms Chau appeared in person. There was no appearance on behalf of the respondent. It transpired that this was because the respondent had not been served with the application. I pointed out to Ms Chau that this step needed to be taken and stood the matter over until 18 December 2003. 2 On that occasion, Ms Jodie Maurer appeared on behalf of the respondent. There was discussion about the nature of the application. The decision of the Tribunal, against which Ms Chau desired to appeal, was handed down on 18 September 2003. As I have said, the application in this Court was filed on 31 October 2003; that is, outside the period of 28 days allowed by s 44(2A)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the Act'). However, the discrepancy was only about two weeks. I would not have regarded this as a major consideration, if it appeared there was an arguable case of error of law by the Tribunal. 3 Accordingly, I focussed on this issue. I pointed out to Ms Chau that the jurisdiction of the Court, under s 44(1) of the Act, was limited to entertaining an appeal against a Tribunal decision on a question of law, and that the Court had no jurisdiction to review the Tribunal's findings of fact or exercises of discretion. As Ms Chau was not legally represented, I suggested she might like to give this point some further consideration and perhaps obtain some legal advice. With that in mind, I adjourned the matter until today for hearing. I granted Ms Chau leave to file an amended application and any further affidavit, if she wished, provided this was done by 9 January 2004. In the event, Ms Chau has not amended her application or filed further evidence. 4 When the matter was called for hearing today, I invited Ms Chau to indicate to me an arguable basis for the proposition that the Tribunal erred in law. Ms Chau responded to this by referring to page 4 of the document attached to her application. This page sets out a number of grounds of appeal. However, each of these grounds deals with, or contains, assertions of fact as to events that occurred in and about the time of the decision of the Social Securities Appeal Tribunal ('SSAT') in mid-2001. None of the grounds raises any issue of law. I pointed this out to Ms Chau. She was unable to identify any question of law arising out of the Tribunal's decision. 5 Essentially, as I understand the situation, Ms Chau disagrees with the decision of the SSAT and feels that the Tribunal ought to have undertaken a review of that decision. As I have said, the jurisdiction of this Court is limited to an appeal on a question of law. I have read the decision of the Tribunal handed down by Ms S M Bullock, Senior Member. This decision sets out the history of the matter. It notes that there was an earlier application for review of the SSAT decision but this application was withdrawn in 2002. Ms Bullock's reasons then deal at some length with the principles underlying the exercise of a discretion to extend time for appeal. The decision contains reference to numerous authorities and is a comprehensive review of the relevant principles. 6 Towards the end of the decision, in para 42 of her reasons, Ms Bullock made the following statement: 'Ms Chau may have an arguable case, however, in the context of an extension of time application, that consideration must be balanced by other considerations.' 7 She referred to these considerations. I need not repeat them. They are contained in paras 42 to 45 of the Tribunal's reasons. In para 46, Ms Bullock said this: 'While it could be arguable that there are merits to Ms Chau's substantive case and she is a self-represented Applicant, the Tribunal determines that these considerations are not outweighed by the factors and reasoning discussed above. In all of the circumstances, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal has decided not to grant Ms Chau an extension of time in order to lodge her application for review to this Tribunal.' 8 Each of the considerations to which Ms Bullock made reference are considerations which properly arose in the context of the application for extension of time she was considering. As it seems to me, Ms Bullock correctly understood the relevant legal principles. She had regard to relevant matters and reached a discretionary judgment about the way in which the Tribunal should deal with the application then before it. I see no basis for ascribing to Ms Bullock any error of law and, as I have said, no arguable error of law was identified by Ms Chau. 9 If the only issue was whether I should overlook the fact that the application to this Court was some two weeks out of time, then I would be ready to exercise the Court's discretion and extend time for filing the application. However, it is futile to do this if the application is foredoomed to failure. It seems to me this is the case. Accordingly, the application for extension of time should be dismissed. 10 The order I make is that the application for extension of time filed on 31 October 2003 be dismissed and that the applicant pay the costs of the respondent. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.