Orfali v Chief Executive Officer, Services Australia

1. The application be dismissed.
2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 On 22 July 2019, the Administrative Appeals Tribunal (Tribunal) dismissed a freedom of information application that had been brought by the applicant, Mr Orfali, against the respondent, which I will refer to as Services Australia (the Decision). The Tribunal dismissed the application under s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which empowers the Tribunal to dismiss an application without proceeding to conduct a review if the applicant fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal in relation to the application. The Tribunal found that Mr Orfali had failed within a reasonable time to proceed with the application and to comply with directions made by the Tribunal in relation to the application on 28 March 2019, 5 June 2019 and 4 July 2019 under section 33(2) of the AAT Act. 2 On 29 August 2019, Mr Elias Orfali applied to this Court for an extension of time under s 44(2A) of the AAT Act within which to appeal the Decision under s 44(1) of the AAT Act. Section 44(1) of the AAT Act provides that a party to a proceeding before the Tribunal may appeal to the Federal Court, on a question of law, from any decision of the Tribunal in that proceeding. Section 44(2A) provides that an appeal under s 44(1) must be instituted no later than 28 days after the day on which a document setting out the terms of the decision of the Tribunal is given to the prospective appellant or within such further time as the Federal Court allows. 3 Mr Orfali is self-represented in this proceeding. 4 Services Australia was formerly called the Department of Human Services and is the Federal agency responsible for the delivery and administration of health and welfare services, among other things. 5 In support of his application, Mr Orfali initially filed an affidavit dated 29 August 2019. The affidavit explained the reason that Mr Orfali failed to file an appeal within the 28 day period. Unfortunately, the affidavit did not include a copy of the Decision which was sought to be appealed. Subsequently, Services Australia provided the Court with a copy of the Decision and timetabling orders that had been made by the Tribunal prior to the Decision. Mr Orfali also filed a draft notice of appeal against the Decision. The draft notice contained the following statements: Details of claim The Applicant is aggrieved by the decision because: 1. I had genuine circumstances that prompted me to request the extra 10 weeks to have the hearing. I don't think that the decision by the AAT to dismiss the case in favour of the respondent as being fair for someone in my strenuous disposition. 2. It fails to consider the extraneous circumstances that were being actioned against me by the resourceful groups that were endeavouring to impede the prompt submission of my documents to the AAT Appeal. 3. Other difficulties such as Physical health (such as inexplicable intermittent lethargic symptoms); the exhaustive effort to balance caring for my two elderly parents and some of their needs with dwindling physical ailments myself. 4. The distress caused by the restrictions on what I can say because of the nature of the sensitivities of some of the evidence. Findings of fact that the Court is asked to make 1. Considering the gruelling degrees of uncivilized harassments and bullying and humiliations that I was being subjected to whilst in the process of appealing to the AAT without the benefits of legal representation, was the AAT's decision to dismiss my submission to vacate the hearing that was scheduled for the 1st August 2019 & adjourning it to October ethically and morally justified & in line with the Human Right's Charter & International Human Rights Standards that Australia is signatory to. Orders sought 1. Reversing the decision to dismiss the AAT appeal. 6 On 1 November 2019, I made orders listing the application for hearing on 20 or 27 April 2020. I also granted Mr Orfali leave to file and serve any draft amended notice of appeal identifying an alleged error of law in the Decision. I also ordered that any additional materials to be relied on by Mr Orfali be filed and served by 23 March 2020, and written submissions to be filed and served by 30 March 2020. The matter was listed for further case management on 9 April 2019. 7 Mr Orfali failed to comply with any of the orders made on 1 November 2019. 8 On 3 April 2020, Services Australia wrote to Mr Orfali and the Court indicating its intention to pursue an application that the application be dismissed under rule 33.32 of the Federal Court Rules 2011 (Cth) (FC Rules), on the basis that Mr Orfali had not complied with the Court's orders made on 1 November 2019. 9 At the case management hearing on 9 April 2020, Mr Orfali sought an extension of time to comply with the orders originally made. I granted an extension, and relisted the application for final hearing on 22 May 2020. 10 Between 20 and 27 April 2020, Mr Orfali filed and served voluminous material, comprising some 3 folders, detailing what seem to be a range of concerns that he has with government agencies. Despite the volume of material that was filed, Mr Orfali failed to file a draft amended notice of appeal or other document identifying an arguable error of law in the Decision. 11 On 4 May 2020, Services Australia filed and served submissions seeking that the application be dismissed for non-compliance with the orders of this Court dated 1 November 2019 and 9 April 2020 by reason of Mr Orfali's failure to file a draft notice of appeal identifying an arguable error of law in the Decision, evidence or submissions. 12 On 21 May 2020, Mr Orfali filed and served a further affidavit which is in the nature of a submission. Despite its late filing, Services Australia did not object to its receipt by the Court. Again, the affidavit failed to exhibit a draft amended notice of appeal or identify an arguable error of law in the Decision. 13 For the reasons that follow, I dismiss the application for an extension of time.