FEDERAL COURT OF AUSTRALIA Nyoni v Decision Maker [2016] FCA 753 Appeal from: Nyoni v Decision Maker (Administrative Appeals Tribunal, No. 2016/1105, Orders dated 18 March 2016) File number: WAD 148 of 2016 Judge: BARKER J Date of judgment: 2 June 2016 Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – where applicant sought review of decision by Federal Court judge before the Tribunal – where Tribunal held decision not reviewable and dismissed application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether application should be dismissed – whether application has a reasonable prospect of success – application dismissed Date of hearing: 2 June 2016 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 1 Counsel for the Applicant: The Applicant appeared in person ORDERS WAD 148 of 2016 BETWEEN: EMSON NYONI Applicant AND: DECISION MAKER Respondent JUDGE: BARKER J DATE OF ORDER: 2 JUNE 2016 THE COURT ORDERS THAT: 1. This proceeding be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BARKER J: 1 At the first case management hearing in this proceeding on 2 June 2016, I made orders dismissing this proceeding. The following (uncorrected) transcript of that case management hearing contains my reasons for so doing: HIS HONOUR: Mr Nyoni, you're self-represented in this proceeding? MR NYONI: Yes, your Honour. I'm self-representing, your Honour. HIS HONOUR: Yes. Thank you. And the matter that's before the court is a proceeding commenced by a document headed Notice of Appeal from a Tribunal; that's right, isn't it? MR NYONI: Yes, your Honour. HIS HONOUR: Yes. Stay on your feet because we will make sure that I record what you have to say. MR NYONI: Yes, your Honour. HIS HONOUR: Now, in this case, you state that the applicant appeals from the decision of the Administrative Appeals Tribunal, given on 18 March 2016 at Perth, which dismissed review of a Federal Court decision, Nyoni v Che Koon Hee (No 4) [2013] FCA 984 from 18 September 2013. I think that's a decision of Gilmour J; is that right? MR NYONI: That's correct, your Honour. Yes. HIS HONOUR: Yes. Your notice say: The tribunal decided that pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act, the tribunal dismissed the application because it was satisfied the decision was not reviewable by the tribunal. That seems to be a self-evidently correct decision, Mr Nyoni. I'm wondering why you believe you're able to maintain the proceeding in the tribunal and now this proceeding here. If you wanted to appeal the decision of Gilmour J you can't go to the tribunal; you would have to appeal it in this court and I understand that you actually tried to do that and you were out of time. It came before Siopis J. He pointed out that you needed to extend the time to seek leave to appeal and that you, in fact, came before McKerracher J and sought an order extending the time for seeking leave to appeal and McKerracher J refused that application. The only way you can appeal a decision of a judge of this court in this court. The tribunal does not exercise the judicial power of the Commonwealth. It is just an administrative tribunal, so, as I see it, your current proceeding before me is fundamentally misconceived and there does not seem to be any reason why I should not simply dismiss it. So I just wanted to raise that with you. You cannot go to the tribunal to deal with the decision of Gilmour J. You tried extending the time. You got to McKerracher J. You lost. That is the end of it. MR NYONI: Yes, your Honour. The reason why I went to the tribunal was that the merits of the case itself – the original case itself – were never looked at. HIS HONOUR: The tribunal does not have any role in it. The tribunal does not review a decision of a judge of this court. You can probably see the order in that. You go from a judge to another judge to the Full Court to the High Court. You do not go from a judge downwards to a tribunal that is not a court. They have got no authority – no jurisdiction. MR NYONI: Yes. The other complicating matter was that the requirement at the time of seeking extension of time did not allow the matter to be reviewed at all. So we were looing at extension of time only and when the matter was rejected the High Court could not look at it because they said they don't review - - - HIS HONOUR: Well, that's the – the difficulty there – I understand your point but that's the way the system works. If a judge, as McKerracher J ultimately did, refused to give an extension of the time for seeking leave to appeal against Gilmour Js decision, that is the end of it and you certainly – in any event, you cannot go to the tribunal. They are irrelevant in that exercise. They are not there to review judicial decisions. They are there to deal with administrative decisions and this is not that. So that is why I say – I am using the expression "advisedly" – that this proceeding is fundamentally misconceived. You just cannot do it. It cannot go anywhere. So it is for that reason that I think that the appropriate course of action here is to put this proceeding, in a sense, out of its misery by dismissing it and I cannot really see, in the circumstances, that there is any possible tiny fragmentary argument to the contrary. It is just so obviously misconceived – what you have done by going to the tribunal and then coming back here. It is not a clever way. It is not an open way to proceed. That decision is effectively final. That has been made. You have tried to find a way of getting it reviewed in the court but McKerracher J cut it off. MR NYONI: So that's where it went into a difficulty because then we're dealing with a decision that was interlocutory and there was never a trial and yet there's so many - - - HIS HONOUR: Well, as you know, you can appeal an interlocutory decision of a judge and you came before Siopis J and he pointed out you needed leave but you also had to seek leave within the prescribed period of time and then you needed to go back and first extend the time in order to get leave and that is when you went before McKerracher J and McKerracher J refused to give you that. That is why I say it is all over. See, unless you can challenge McKerracher Js decision, which itself is an interlocutory decision, you get nowhere, but my real point today is you cannot solve your problems, which I do not think are soluble, but if they were, you cannot solve them by going to this administrative tribunal. It is no more effective than going to your neighbour who lives next door and asking them to help you out. The tribunal just does not have any function in this sort of case. It is a judicial question for the courts. It is not a question for an administrative tribunal. So it is just one of these things. I understand you are trying to find a way forward but you just cannot go to the tribunal, so the proceeding based on the tribunal's correct decision today before me just is going nowhere. As I say, it is fundamentally misconceived. Unless you have got anything else to say on it, I think I just have to dismiss this proceeding for the reasons I have just given. MR NYONI: Well, other than that, wouldn't it be possible to seek and to challenge McKerracher's decision in this court? HIS HONOUR: Well, it may be but I am not giving you advice about that – but you cannot do it in this proceeding before me. If it is possible to challenge his decision, you would need to appeal it, but you probably – I do not know – I have not looked at the dates – you are probably going to run into the same problem that you now again run out of time. You would need to apply to extend the time and it looks to me – you can get legal advice on this – I am not giving you any – but just as a matter of observation, given the sequence of events and what the judges have all said, you are pushing a very, very, very large boulder up a very steep hill and I do not think you are going to get there. But what you should do – what I would recommend to you to do is to try and get some legal advice about what, if anything, your prospects are of successfully challenging McKerracher Js decision and, through the Legal Aid lawyer who assists people in this court, you may be able to get some advice but, as I say, this particular mechanism that you have used is fundamentally misconceived. So today, I think, having heard from you and appreciating that you appreciate the questions of an interlocutory decision, needing leave, needing to extend the time and having lost at all of those points, I think you can see, conceptually and intellectually, how you simply cannot go to a tribunal to solve your problems. If there is anything to be done, you would need to challenge McKerracher Js decision. I do not particularly like your chances but you should get advice about that. But this proceeding really is hopeless. So, as I say, unless there is anything else to be said, I think the appropriate order today is, for the reasons that I have given, that this proceeding be dismissed. You have not served it on anybody, I understand? MR NYONI: Served it? HIS HONOUR: You haven't served it on - - - MR NYONI: I've served it on the tribunal – the decision maker. HIS HONOUR: Yes. Well, yes. Well, they usually abide the decisions of the court. Yes. But, apart from the tribunal, you've not served it on any other affected party. MR NYONI: Oh, well, there wasn't anyone. HIS HONOUR: Just the decision maker. MR NYONI: Yes. HIS HONOUR: Yes. ell, I think, Mr Nyoni, I'm sorry to disappoint you but I think, with some understanding and experience of matters that come from the tribunal, the court gets to deal with matters that are properly within its jurisdiction quite often. This matter is not something the tribunal could ever deal with. What I will do is I will provide you with a copy of the transcript of today, which will stand as comprising my reasons for making the order that I make that this proceeding be dismissed. MR NYONI: Okay, your Honour. HIS HONOUR: All right. Well, that completes matters today. Thank you very much. MR NYONI: Thank you, your Honour. HIS HONOUR: And if the court could make arrangements for the transcript of today to be produced and provided to Mr Nyoni and it will also be simply published subsequently as the reasons for the decision that the court has made. Thank you very much. Please adjourn the court. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 24 June 2016