Giza v Secretary, Department of Social Services [2017] FCA 1433

FEDERAL COURT OF AUSTRALIA

Giza v Secretary, Department of Social Services [2017] FCA 1433 File number: VID 689 of 2017

Judge: PAGONE J

Date of judgment: 30 November 2017

Catchwords: PRACTICE AND PROCEDURE – application pursuant to Rule 35.33(2) of the Federal Court Rules 2011 (Cth) – orders in absence of party - discretion to determine matter without oral hearing pursuant to s 20A of the Federal Court of Australia Act 1976 – no real issue of fact to be determined – proceeding not significantly aided by oral hearing – no reason to set aside or vary orders made in absence of party – application dismissed

Legislation: Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011 (Cth)

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

Date of hearing: Heard on the papers

Date of last submissions: 10 November 2017

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 5

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondent: The respondent 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: 30 NOVEMBER 2017

THE COURT ORDERS THAT:

1. The application filed on 1 November 2017 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PAGONE J: 1 On 1 November 2017 Mr Giza applied to have set aside orders made on 18 October 2017 dismissing an application for an adjournment and dismissing an application for leave to appeal orders which had been made by Kenny J on 9 June 2017. The orders on 18 October 2017 were made at a hearing in the absence of Mr Giza who failed to attend the hearing for reasons which he subsequently explained. Rule 35.33(2) of the Federal Court Rules 2011 (Cth) permits a party who was absent at a hearing to apply for an order setting aside or varying the orders which had been made in that party's absence and for orders for the further conduct of the proceeding. Although Mr Giza was not present at the hearing on 18 October 2017 he had applied for an adjournment of that hearing and had filed an affidavit in support of the application for an adjournment. That application was rejected for the reasons given in Giza v Secretary, Department of Social Services [2017] FCA 1234 at [3]. The application for leave to appeal was then heard in his absence and was dismissed on the grounds that there would be no utility in granting leave to appeal since there was nothing to determine in any appeal because the orders which had been made on 9 June 2017 had been complied with: see Giza at [4]. 2 Mr Giza's current application is to have set aside, or to have varied, the orders made on 18 October 2017 and I am satisfied that it is appropriate to deal with that application without an oral hearing. Section 20A of the Federal Court of Australia Act 1976 (Cth) permits the Court to deal with any civil matter without an oral hearing in a number of circumstances. The section provides: Power of the Court to deal with civil matters without an oral hearing (1) This section applies in relation to any civil matter coming before the Court in the original jurisdiction of the Court. (2) The Court or a Judge may deal with the matter without an oral hearing (either with or without the consent of the parties) if satisfied that: (a) the matter is frivolous or vexatious; or (b) the issue or issues on which determination of the matter depends have been decided authoritatively in the case law; or (c) determination of the matter would not be significantly aided by an oral hearing because: (i) there is no real issue of fact relevant to determination of the matter; and (ii) the legal arguments in relation to the matter can be dealt with adequately by written submissions. (3) This section does not limit subsections 20(4) and (6). I am satisfied that the determination of the matter would not be aided significantly by an oral hearing because there is no real issue of fact relevant to the determination of the matter and the legal arguments in relation to the matter can be, and have been, dealt with adequately by written submissions. Mr Giza's application dated 1 November 2017 to set aside the orders made on 18 October 2017 was supported by an affidavit of Mr Giza dated 1 November 2017. Mr Giza was invited on 6 November 2017 to make any further submissions by 10 November 2017 that he wished to make in support of his application. On 10 November 2017 Mr Giza filed written submissions and a further affidavit. It may also be relevant to the exercise of the discretion conferred by s 20A that the decision to deal with the matter without an oral hearing enabled it to be disposed of without subjecting the parties to additional costs and inconvenience and has, perhaps, removed a difficulty which Mr Giza has experienced when needing to attend Court. 3 The proceeding heard on 18 October 2017 was an application by Mr Giza for leave to appeal orders which had been made by Kenny J on 9 June 2017. On that day, Kenny J made orders which had included the fixing of a date for the hearing of interlocutory applications which had been made to her Honour. The parties, including Mr Giza, were informed on 19 September 2017 that the hearing before her Honour had been rescheduled to Wednesday, 20 March 2018 at 10.15am. The other orders which Kenny J had made on 9 June 2017 have been complied with. In those circumstances, as was submitted at the hearing on 18 October 2017 for the respondent, the application for leave to appeal was moot and could have no effect except, of course, for the order fixing a date for the hearing of the interlocutory applications which have not been withdrawn by the parties and need to be determined. 4 Mr Giza's submissions and supporting materials on the application to vacate and vary the orders made on 18 October 2017 do not address the futility of granting leave to appeal orders which have been complied with. Mr Giza's submissions dated 10 November 2017 complain, rather, about the decisions made by Kenny J on 9 June 2017 by submitting: 8. The applicant claims that the orders made in his absence on 18/10/2017 ought to be set aside and that order be made for the matter VID689/2017 to be stayed with a right of reinstatement shall it be necessary. 9. Adverse decision of the FCA may prejudice fairness of the decision-making process of the AAT level 2 and possibly pre-empt and disturb any uninfluenced/independent outcome of AAT findings. 10. The hearing at the FCA at the time of reserved decision at the AAT level 2 and the publicity of orders and judgment once reaching the Tribunal may influence, and have bearing upon the decision making process in progress. 11. The adverse decision of the FCA may sent a wrong signal to the jurisdiction below. 12. In turn, the decision of the AAT level 2 would determine the steps to be taken in the VID 689/2017 matter and it is plain that the Applicant would discontinue the matter if a satisfactory judgment is made at the AAT level 2 thus avoiding any unnecessary costs. The submissions proceed from there to complain about the decision made on 18 October 2017 but without addressing the basis upon which that decision was made. Mr Giza's submissions dated 10 November 2017 stated under the heading of "[t]he reasons relied on by the Applicant": 13. Duty of Courts to assist self-represented litigant. 14. The applicant says that Justice Pagone has had a duty to assist him and in his absence, should not proceed with giving orders but afford Mr. Giza to be heard especially not knowing at the time of giving the orders of reasons behind Mr. Giza's absence. 15. The FCA has inherent jurisdiction to stay proceeding in circumstances of a danger of injustice when a principal matter pending at the lower jurisdiction. 16. Duty of lawyers as officers of the Court of a full disclosure. 17. Lawyers for the Respondent present in the Court had a duty to disclose to Justice Pagone that Applicant suffers from a serious medical conditions which are described in detail by a Senior Registered Psychologist of the Centrelink dated 18/02/2015 and that this Report was available to his Hon. Justice Pagone and contained in an Exhibit RG 4 to the Applicant's Affidavit of 22/06/2017 in support of his Application for Leave to Appeal from Justice Kenny judgement of which document Justice Pagone was not aware at the time of making his orders of 18/10/2017. 18. Significance of International Covenant on Civil and Political Rights. 19. Significance of international obligations in Australian domestic law. 20. Significance of equality before the law. 21. Significance of access to justice. 22. Significance of exercise of judicial power and discretion. 23. Rules of natural justice. Mr Giza's affidavits do not advance the matter any further. The application for the adjournment had been rejected on the basis that what was relied upon for an adjournment was insufficient to warrant an adjournment, and nothing in the application of 1 November 2017 and supporting materials warrants departure from that decision. The application for leave to appeal was rejected on the basis of a lack of utility in granting leave to appeal and nothing in the application of 1 November 2017, and the supporting materials, warrants setting aside or varying that decision. The interlocutory applications made in the proceeding before Kenny J remain on foot and need to be determined. The date fixed for their hearing is a matter for her Honour who can, and already has, rescheduled the hearing date if desirable. 5 Accordingly, the application made by Mr Giza on 1 November 2017 will be dismissed. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.