Druett v Department of Families, Community Services & Indigenous Affairs (No 2) [2009] FCA 898

FEDERAL COURT OF AUSTRALIA

Druett v Department of Families, Community Services & Indigenous Affairs (No 2) [2009] FCA 898

GARRY KEITH DRUETT v DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS and ADMINISTRATIVE APPEALS TRIBUNAL

NSD 751 of 2007

BENNETT J

11 AUGUST 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 751 of 2007

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

BETWEEN: GARRY KEITH DRUETT

Appellant

AND: DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE: BENNETT J

DATE OF ORDER: 11 AUGUST 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. There be no order as to costs in matter number NSD 751 of 2007. 2. The notice of motion filed on 5 August 2009 be dismissed. 3. There be no order as to costs in relation to the notice of motion filed on 5 August 2009. 4. The Department of Families, Community Services and Indigenous Affairs be removed as a party to the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 751 of 2007

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

BETWEEN: GARRY KEITH DRUETT

Appellant

AND: DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE: BENNETT J

DATE: 11 AUGUST 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT

BACKGROUND 1 In 2007, the appellant, Mr Druett, filed an application for leave to appeal from a decision of a judge of this Court. That decision involved an appeal from a decision of the second respondent, the Administrative Appeals Tribunal ('the Tribunal'). 2 The hearing of Mr Druett's application took place on 21 May 2007. At the hearing, counsel for the first respondent, the Department of Families, Community Services and Indigenous Affairs ('the Department'), accepted that leave to appeal was not required. Counsel for the Department also foreshadowed that it would be filing a notice of motion seeking summary judgment pursuant to s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') and, in the alternative, an order that the Department be removed as a party to the proceedings pursuant to s 25(2B)(a) of the Federal Court Act. The notice of motion was filed on 24 May 2007. 3 The parties made oral submissions regarding the Department's notice of motion. I also gave Mr Druett the opportunity to provide further written submissions in relation to the motion. 4 I handed down my decision regarding the Department's notice of motion on 3 July 2007: Druett v Department of Families, Community Services & Indigenous Affairs [2007] FCA 995. After considering Mr Druett's notice of appeal, the parties' submissions and the decisions of the Tribunal and the primary judge, I could see no error of law on the part of the Tribunal or on the part of the primary judge. I concluded that there was no ground of appeal which might be arguable and that the appeal should be summarily dismissed. I also concluded that there was no basis upon which the Department was properly a party to the proceedings and that the Department was entitled to be removed as a party. 5 Accordingly, I ordered that the proceedings be summarily dismissed pursuant to s 25(2B)(aa) of the Federal Court Act. I did not make an order that the Department be removed as a party to the proceedings, as that order was only sought in the alternative to the application for summary dismissal. 6 At the handing down of my decision on 3 July 2007, I indicated that I would hear from the parties as to costs. The Department indicated that it did not seek costs. I made a notation to this effect but did not make any formal order as to costs.