Solon Theo v The Secretary, Department of Families, Community Services and Indigenous Affairs [2006] FCA 1789

FEDERAL COURT OF AUSTRALIA

Solon Theo v The Secretary, Department of Families, Community Services and Indigenous Affairs [2006] FCA 1789 Administrative Appeals Tribunal Act 1995 (Cth) SOLON THEO (AKA AS SOL THEO) v THE SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS QUD 444 OF 2006

KIEFEL J

15 DECEMBER 2006

BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 444 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER B J MCCABE

BETWEEN: SOLON THEO (AKA AS SOL THEO)

Applicant

AND: THE SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

JUDGE: KIEFEL J

DATE OF ORDER: 15 DECEMBER 2006

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The applicant pay the respondent's costs of appeal including any reserved costs. 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 QUD 444 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER B J MCCABE

BETWEEN: SOLON THEO (AKA AS SOL THEO)

Applicant

AND: THE SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

JUDGE: KIEFEL J

DATE: 15 DECEMBER 2006

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The respondent applies to strike out this appeal, which is brought from orders of the Administrative Appeals Tribunal made on 13 October 2006. The Tribunal then directed that a hearing date of 19 October 2006 be vacated. The matter was to be placed upon a list of matters to await hearing and be given a hearing date following upon receipt of the decision of Greenwood J in another application brought by the applicant. 2 On 12 July 2004 the applicant made a claim for an age pension, which was rejected on the basis that insufficient information was provided. The Administrative Appeals Tribunal dismissed an application for review, but an appeal to this Court resulted in the matter being remitted for reconsideration. That matter was then heard by Greenwood J, sitting as a presidential member of the Tribunal, on 3 July 2006 (number 208 of 2006). 3 The applicant made another claim for age pension on 23 March 2006, which was also rejected. His application for review in that matter (number 455 of 2006) was listed for hearing by the Tribunal on 19 October 2006. On 13 October 2006 Senior Member McCabe had a directions hearing at which the directions the subject of this appeal were made. The applicant filed this appeal on 10 November 2006. Since that time, Greenwood J has delivered a decision dismissing the application in 208 of 2006. The Deputy Registrar of the Tribunal has advised that the applicant's matter would be listed for hearing in the New Year, but I understand a date has not, as yet, been provided. 4 The applicant's notice of appeal does not identify a question of law arising with respect to the decision in question. The assertion of an estoppel in his grounds of appeal has no connection with the procedural directions given. Another of his grounds relates to a decision of the Tribunal given on a different occasion. Further, the applicant's appeal relates to orders effectively adjourning his matter for future listing. It is not a final decision or determination of the Tribunal upon his matter. An appeal under s 44 of the Administrative Appeals Tribunal Act 1995 (Cth) does not lie from such a decision. I add that it was obvious that the appeal had no utility and the applicant persisted with it, despite being told that a hearing would take place in the New Year. 5 During submissions on the application, the applicant advised that he brought these proceedings in order to force the hand of the Tribunal to give him a hearing date. If that were so the proceedings might amount to an abuse of process. However, I doubt that that was his intention. The applicant has a practice of appealing from almost any decision made regardless of the legal basis for it. The Tribunal's failure to immediately provide another hearing date provided him with an excuse for the appeal. 6 There will be an order dismissing the appeal and an order that the applicant pay the respondent's costs of the appeal, including any reserved costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.