Dunkerley v Comcare

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This purports to be an application by Ms Ulla-Maija Dunkerley for an extension of time and leave to appeal against the order made by Flick J on 8 October 2015 dismissing her appeal from the orders made by Perram J on 27 April 2015: Dunkerley v Comcare [2015] FCA 1076. Perram J had ordered that her appeal to the Court from the decision of the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be dismissed with costs: Dunkerley v Comcare [2015] FCA 392. 2 Flick J exercised the Court's discretionary powers under s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) and r 36.74(1) of the Federal Court Rules 2011 (Cth) when his Honour made his order of 8 October 2015. That order was entered on 8 October 2015. 3 Relevantly, s 25(2B)(bb)(i) and (bc) provided that a single judge or a Full Court, when exercising the Court's appellate jurisdiction, may, first, make an order dismissing an appeal for failure to comply with a direction of the Court and, secondly, vary or set aside such an order. An application under s 25(2B)(bc) must be heard and determined by a single judge, unless, relevantly, a judge directs that it be heard and determined by a Full Court (s 25(2B)(ba)). No such order has been made or would be appropriate.

Background 4 Perram J had dismissed Ms Dunkerley's appeal from the Tribunal's decision, saying that it was "devoid of merit". His Honour expressed his view that "the proceedings are beginning to border on the vexatious": Dunkerley [2015] FCA 392 [22] and [28]. 5 In a reserved judgment, Flick J carefully considered how to exercise his discretion and concluded that, in all of the circumstances, he should make the orders he did on 8 October 2015 for a combination of three factors. First, Ms Dunkerley had failed to compile an appeal book or any other documents that could be used by a Full Court to hear her appeal from Perram J's decision. In the first case management hearing on 10 June 2015, Flick J had directed that Ms Dunkerley complete an appeal book by 26 June 2015 and file an outline of submissions by 9 July 2015. He listed the appeal for further directions on 21 July 2015. Ms Dunkerley told me today that those were timeframes with which she, as an unrepresented litigant unfamiliar with the appeal processes, was unable to comply. In any case no appeal book was prepared by her at any time prior to the hearing before his Honour on 25 August 2015 that led to his Honour's orders of 8 October 2015, nor is there an appeal book ready today. Secondly, his Honour reasoned that Ms Dunkerley had failed to comply with his direction to file an outline of submissions articulating clearly what error or errors she alleged there were in Perram J's decision. Thirdly, Flick J found that Ms Dunkerley had failed to identify any merit in any of the 17 grounds of her notice of appeal: Dunkerley [2015] FCA 1076 [53].