Federal Court Rules O 20 r 2, O 5416 v yon a i unreported

persons as respondents in lieu of the Department and I will direct accordingly.

One Society referred to in the material, the Wilderness Society, was

apparently served and initially appeared but did not seek to be joined to the proceedings

or to make submissions. By letter dated 17 August 1994 from the assistant secretary of the legal branch of the Department, and on behalf of the Secretary of the Department and the two Ministers, Mr Bird was informed that the Department had looked at the log of claims and: "The Department does not consider that the points raised have

merit and will therefore not be implementing any of the matters raised in the log of claims."

As to the proper applicant, Mr Bird contended that he was entitled to use the name "Australian Union of Students", in respect of which an application for registration of a trademark has been made, by way of analogy to the rules relating to business or partnership names or by reference to provisions as to the bringing of class proceedings. Mr Bird's difficulty is, as he informed me, that he is the only member of the group he refers to. He is the Australian Union of Students. He was only able to suggest there might be other members in the future and who might be persons likely to receive financial assistance under the Student Assistance Act. Mr Bird submitted that the proceedings ought to be left as entitled to see who would "opt out" of the proceedings and frankly described the process as one akin to a petition which, because of the name which he wished to use and the issues it would create, would attract publicity. Mr Bird does not trade under the name referred to as a business and is not in partnership. Section 33C of the Federal Court Act requires that there be at least seven persons having the required closely connected claims subject to the discretion provided in s.33L. There are however no other members of a group and no basis for the exercise of that discretion. I will

therefore direct that the name of the applicant be amended to read Geoffrey James Bird. Mr Bird seeks declarations and orders under the Administrative Decisions

(Judicial Review) Act and under s.39B(1) of the Judiciary Act. The respondents seek orders dismissing the application under O.20 r.2 (and O.54 1.6) there being no reasonable

basis for the application disclosed and because the proceedings are an abuse of the

Mr Bird did not contend for a review of the decision on its merit. Whilst Mr Bird made the submission that the decision was legally invalid for unreasonableness, the relief he seeks are declarations and mandatory orders which oblige his log of claims to

Neither s.7 nor s.11(1) of the Student Assistance Act, referred to by Mr Bird, creates such an obligation. Section 11(1) is, as Davies J. referred in another application brought by Mr Bird (Bird v. Secretary of the Department of Employment, Education and Training in NG338 of 1994, decision 25.7.94) a discretionary power which would, if made, override the mode and timing of payment otherwise provided for in the regulations. That section is also concerned, it seems to me, with individual circumstances and not those which would relate to students generally and which are the subject of the regulation making power (see s.56(e) and Reg.12A and B). Section 7, Mr Bird submits, points to a power to grant a benefit and therefore implies there is a power to pay it in different ways, such as his proposed payroll deduction scheme. Section 7 is however concerned with who might be the recipient of benefits. Subject to s.11(1) it 1s the regulations to be made by the Governor-General which deal with the subjects he pursues. Neither section requires

Mr Bird then submitted that it would be sufficient for judicial review if he could point to a connection between the decision and the enactment and that here the decision could be seen to be derived from some broadly stated power, and relied on Australian National University v. Burns (1982) 43 ALR 25 and Emmanuele v. Cahill (1987) 71 ALR 302. The connection with the Student Assistance Act here is only that the decision-makers and in particular the Secretary of the Department are those generally administering the Act. That would not of itself suffice to qualify the decision as one "made under an enactment". But in any event Mr Bird's submission does not have regard

to the particular relief he seeks, which requires that there be some obligation.

Mr Bird then contended that there 1s power in any event to make a declaration if it was considered it would be useful and referred to Pearce v. Button (1985) 60 ALR 537. There is however no circumstance to which a declaration could properly be addressed. There is no statement of the parties legal nghts or obligations which could be

The remaining relief sought was a declaration that Reg.12B of the Austudy Regulations was invalid but I heard no submissions upon it and cannot m any event see

Although it is unnecessary in light of my other findings I was also of the

view that Mr Burd was not, with respect to the relief sought under the 4dministrative

Decisions (Judicial Review) Act, a person "aggrieved" since he was in no different position

from any other student and no interest of his was affected by the decision. Mr Bird

appeared to equate that requirement with a refusal of any request which he considered

Mr Bird's application will be dismissed and I propose to order that Mr Bird

pay the respondents' costs of and incidental to the proceedings to be taxed.

I should also add that I have some concern about Mr Bird continuing to bring applications with respect to his Austudy benefits or the scheme to this Court. Davies J. has heard two applications earlier this year. Both applications were dismissed with Mr Bird being ordered to pay costs and, on my reading of His Honour's reasons, both applications were considered to be misconceived. Mr Bird has appeared before me on a number of occasions with respect to two applications, one of which required a separate consideration of his request that I disqualify myself. The other application I dealt with was concerned with the alleged cancellation of Mr Bird's Austudy payments. Davies J. dealt with a similar question. Mr Bird had a legal technical argument which he considered justified the matter being brought in this Court and not before the Student Assistant Review Tribunal constituted under the Student Assistance Act, but it seemed to me he simply considered proceedings here might be determined more quickly. The matter was resolved by undertakings although resurrected again by Mr Bird when he brought a motion for breach of those undertakings. In fact Mr Bird sought by those means to obtain a further order, not covered by the undertakings made. Needless to say these matters have occupied considerable time. None of them has been of substance and each of them doomed to failure. Mr Bird would be well advised in the future to consider

alternative means available for the resolution of these questions.

I certify that this and the preceding six pages are a true copy of the reasons for judgment herein of the Honourable Justice

Kiefel. Date: 14 December 1994 MM Bach . Associate Applicant: In person Counsel for the respondents: Mr D. Pestorius Solicitors for the respondents: Austrahan Government Solicitor