Giza v Secretary, Department of Social Services [2017] FCA 1234

FEDERAL COURT OF AUSTRALIA

Giza v Secretary, Department of Social Services [2017] FCA 1234 Appeal from: Giza v Secretary, Department of Social Services (Federal Court of Australia, No. VID 1482 of 2016, Orders dated 9 June 2017)

File number: VID 689 of 2017

Judge: PAGONE J

Date of judgment: 18 October 2017

Date of publication of reasons: 20 October 2017

Catchwords: PRACTICE AND PROCEDURE – Application for leave to appeal from procedural orders – Application for adjournment of application for leave to appeal – insufficient merits of application for leave to appeal – procedural orders from which appeal is sought already complied with

Date of hearing: 18 October 2017

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 4

Counsel for the Applicant: The applicant did not appear

Solicitor for the Respondent: Mr B Dube of Sparke Helmore

Table of Corrections

1 November 2017 In the Appearances on the cover page Counsel for the Applicant has been amended to read "The applicant did not appear".

ORDERS VID 689 of 2017

BETWEEN: RICHARD GIZA Applicant

AND: SECRETARY, DEPARTMENT OF SOCIAL SERVICES Respondent

JUDGE: PAGONE J DATE OF ORDER: 18 OCTOBER 2017

THE COURT ORDERS THAT:

1. The application for adjournment of the hearing be dismissed. 2. The application for leave to appeal be dismissed. 3. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT (Revised from transcript) PAGONE J: 1 Mr Richard Giza seeks leave to appeal interlocutory orders made by Kenny J on 9 June 2017 in relation to applications arising from Mr Giza's application to appeal decisions by the Administrative Appeals Tribunal. The proceedings in this Court commenced by originating application dated 23 December 2016 to appeal from a decision of the AAT Social Services & Child Support Division which was given on 28 November 2016. On 8 June 2017 the Secretary filed a notice of objection to competency and on the following day Mr Giza filed an amending originating application increasing the number of decisions from which he has sought leave to appeal. 2 On 9 June 2017 Kenny J made orders fixing a date for the hearing of interlocutory issues which have arisen in Mr Giza's application and set out a timetable for interlocutory steps to be undertaken as follows: Timetable Affidavits 4. On or before 23 June 2017 the respondent file and serve any affidavits on which the respondent intends to rely at the hearing including the relevant originating applications lodged with the Tribunal, the relevant decisions of the Tribunal and reasons for the decisions; and any other relevant documents. 5. On or before 14 July 2017, the applicant file and serve any affidavits on which he intends to rely at the hearing. Submissions Objection to competency 6. On or before 23 June 2017 the respondent file and serve submissions (not exceeding 10 pages) in support of the respondent's Notice of Objection to Competency and/or any Amended Notice of Objection to Competency, as well as, on the applicant's oral application made on 9 June 2017 for leave to dispense with the requirements of r 4.01(1). 7. On or before 14 July 2017 the applicant file and serve any submissions (not exceeding 10 pages) in response to the respondent's submissions in support of the respondent's Notice of Objection to Competency and/or any Amended Notice of Objection to competency, as well as submissions in support of his oral application for leave to dispense with the requirements of r 4.01(1). Leave to amend 8. On or before 16 June 2017 the respondent notify the Court and the applicant whether the respondent asserts the applicant requires leave to file the amended notice of appeal. 9. On or before 23 June 2017 the applicant file and serve any submissions (not exceeding 10 pages) in support of his application for leave to amend his notice of appeal, if the respondent asserts leave is required and opposes any grant of leave. 10. On or before 21 July 2017 the respondent file and serve any submissions (not exceeding 10 pages) in response to the applicant's submissions in support of his application for leave to amend his notice of appeal, if such submissions are made. Appeal 11. On or before 14 July 2017 the applicant file and serve any submissions (not exceeding 10 pages) in support of his appeal. 12. On or before 21 July 2017 the respondent file and serve any submissions (not exceeding 10 pages) in response to the applicant's submissions in support of his appeal. 13. Compliance with rr 33.23 to 33.28 of the Federal Court Rules 2011 (Cth) be otherwise be dispensed with. Mr Giza seeks leave to appeal those orders by application dated 22 June 2017 supported by an affidavit by him of that date. Mr Giza's application for leave to appeal was scheduled for hearing on 18 October 2017 but on 13 October 2017 Mr Giza filed an application to adjourn the hearing of his application for leave to appeal and filed in support of that application an affidavit dated 13 October 2017. On 17 October 2017, Mr Giza purported to file an amended application for leave to appeal supported by an amended draft notice of appeal and a further affidavit, each of which were dated 16 October 2017. 3 The basis of Mr Giza's application to adjourn his application for leave to appeal the orders made by Kenny J on 9 June 2017 are essentially set out in paragraph 4 of his affidavit of 13 October 2017 as follows: 4. I believe that in the circumstances, the hearing of 18/10/17 must be adjourned until the final decision of the General Division of the AAT is available as: (a) Otherwise there are strong possibilities of that decision to be prejudiced if the hearing takes place. (b) The application for leave to appeal and draft notice of appeal became outdated in a mean time and I am in a process of amending those documents. (c) The hearing of the matter VID 1482/2017 subject of leave to appeal application has been adjourned on the Court's own motion until 21 March 2018, I believe on the basis of the unfinished AAT processes. (d) There is otherwise no utility in conducting the hearing at this time. (e) I believe that it is in the interest of a proper administration of justice that the leave to appeal application be adjourned. (f) Further, I am unwell as in a winter months my depressive illness exacerbates and I found any court appearance is causing me additional psychological pressure and additional suffering and I try to limit my court appearances to the minimum further that I must use court's time efficiently having receiving several warnings from the Respondent's lawyers. Further material was supplied in the affidavit of 16 October 2017 which are essentially to the same effect. The Court was informed that, in the meantime, all of the orders which are the subject of the leave to appeal have been complied with. The affidavit had noted that his application for leave to appeal had been scheduled for hearing on 18 October 2017 but that in the meantime his case in the General Division of the Administrative Appeals Tribunal had progressed and the final decision in his case had "been reserved and [was] not available at present". It is conceivable that the developments in the Administrative Appeals Tribunal may have some bearing upon the outcome of his application for leave to appeal but none were identified in his affidavit and none were likely in view of the nature of the orders of which Kenny J had made for the purpose of dealing with his principal application seeking to leave appeal decision. None of the bases claimed by Mr Giza for an adjournment are made out or warrant an adjournment being granted. Nothing is shown to indicate that anything to be determined in his application for leave to appeal will adversely impact his rights in his proceedings or that it is contrary to the interests of the proper administration of justice for the matters to be adjourned. His claim of his depressive illness being exacerbated in the winter months is not supported by the kind of evidence which the Court requires to adjourn a proceeding on the basis of the health of an applicant. It is insufficient for an applicant to make a claim about a condition requiring an opinion of an independent expert in dealing with whether and showing how the condition of the applicant bears upon an ability to attend a hearing on 18 October 2017. In those circumstances, the application for an adjournment is dismissed. 4 In relation to the application for leave to appeal I was informed that all of the orders which had been made by Kenny J on 9 June 2017 had been complied with. Any appeal would, therefore, be moot because there is nothing to determine in an appeal or upon which an appeal could attach if leave were granted. In those circumstances the application for leave to appeal is moot and must also be dismissed. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.