Onassys v Comcare

• Jurisdiction: Australia Federal only
• Judgment Date: 15 February 2022
• Neutral Citation: [2022] FCA 90
• Court: Federal Court
• Date: 15 February 2022

Federal Court of Australia

Onassys v Comcare [2022] FCA 90

Appeal from:	Onassys and Comcare [2021] AATA 829
File number:	NSD 382 of 2021
Judgment of:	ABRAHAM J
Date of judgment:	15 February 2022
Catchwords:	ADMINISTRATIVE LAW – appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal (Tribunal) – where the Tribunal dismissed the applicant’s application for review on the grounds that it constituted an abuse of process under s 42B(1) of the AAT Act – where the applicant is self-represented – where the respondent objects to the competency of this Court on the basis that the notice of appeal fails to disclose an arguable basis on which a question of law arises – power to dismiss or strike out purported questions of law from a notice of appeal – notice of appeal dismissed without leave to amend ; PRACTICE AND PROCEDURE – application under r 33.12(2)(b) and (e) of the Federal Court Rules 2011 (Cth) to dismiss or strike out the notice of appeal on the basis that it fails to state with precision the questions of law said to arise on the appeal and/or briefly, but specifically, the grounds relied on in support – notice of appeal dismissed without leave to amend
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 42B, 43, 44 Federal Court of Australia Act 1976 (Cth) ss 23, 37M Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14 Federal Court Rules 2011 (Cth) r 33.12
Cases cited:	AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 Attorney-General (New South Wales) v Quin [1990] HCA 21; (1990) 170 CLR 1 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Australian Postal Corporation v Edwards [2014] FCA 1348 Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244; (2003) 133 FCR 290 Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 Berry v Commissioner of Taxation [2015] FCA 1244 Bittmann v Australian Securities and Investments Commission (No 2) [2006] FCA 1786 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Chen v Secretary, Department of Social Services [2019] FCA 1155 Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 Comcare v Moon [2003] FCA 569 Darin v Olzomer [2012] NSWCA 60 Delis v Tax Practitioners Board [2016] FCA 570 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 Edgely Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAP 37 Federal Commissioner of Taxation v Trail Bros Steel and Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FCR 410 Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2006] NSWSC 530 Kara v Comcare [2011] FCA 951 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Lidono Pty Ltd v Federal Commissioner of Taxation [2002] FCA 174; (2002) 191 ALR 328 Lim v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1058 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13 Northern Territory v Sangare [2019] HCA 25, (2019) 265 CLR 164 Onassys v Comcare (Compensation) [2021] AATA 829 Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 Palassis v Commissioner of Taxation [2011] FCA 1305 Perry v Comcare [2006] FCA 33; (2006) 150 FCR 319 Rana v Repatriation Commission [2011] FCAFC 124 Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 SBBS v Minister for Immigration and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 Secretary, Department of Education, Employment and Workplace Relations v Ergin [2010] FCA 1438 Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555 SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 Webb v Commonwealth of Australia [2021] FCA 1215 Wonson v Comcare [2020] FCAFC 76; (2020) 276 FCR 613 Yao v Minister for Immigration and Border Protection [2014] FCAFC 17
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	75
Date of hearing:	22 November 2021
Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr A Berger QC
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 382 of 2021
BETWEEN:	CRISTINA ONASSYS Applicant
AND:	COMCARE Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	15 February 2022

THE COURT ORDERS THAT:

1. The Notice of Objection to Competency dated 18 May 2021 be upheld.

2. The applicant is to pay the costs of the respondent, to be agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1. On 4 May 2021, the applicant instituted an appeal pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal (Tribunal) dated 12 April 2021. In its decision, the Tribunal determined, inter alia, that Ms Onassys’ application for review of an earlier determination by the respondent (Comcare) that it is not liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) constituted an abuse of process: Onassys v Comcare (Compensation) [2021] AATA 829. In summary, the Tribunal found, inter alia, that the applicant was seeking to re-litigate claims that had been previously determined and treated as finalised by Comcare.

2. The respondent filed an interlocutory application seeking orders dismissing and/or striking out the applicant’s notice of appeal on the basis that it does not raise a seriously arguable question of law within the meaning of s 44(1) of the AAT Act and fails to comply with r 33.12(2)(b) and (e) of the Federal Court Rules 2011 (Cth) (Rules). Comcare also filed a notice objecting to the competency of this Court on similar...