Clement v Comcare [2011] FCA 629

Clement v Comcare [2011] FCA 629

Because the Attorney-General had not given a notice under s 6A(1), the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) did not apply to the principal proceeding; Cowdroy J's decision was not attended by sufficient doubt to warrant reconsideration, so leave to appeal was refused. The mandamus application depended on the same rejected premise that the Act applied, and therefore could not succeed.

Jurisdiction
Australia
Judgment Date
03 June 2011
Procedural Posture
Notices of Motion in a Principal Proceeding Involving an Application Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) / Determination of Notices of Motion Seeking Leave to Appeal and a Writ of Mandamus
Outcome
Both notices of motion were dismissed, with no order as to costs.
Legal Topics
['leave to Appeal' 'writ of Mandamus' 'application of the National Security Information (criminal and Civil Proceedings) Act 2004 (cth) to Civil Proceedings' 'stay of Proceedings']
['administrative Law' 'national Security Information' 'federal Civil Procedure'] ['leave to Appeal' 'writ of Mandamus' 'application of the National Security Information (criminal and Civil Proceedings) Act 2004 (cth) to Civil Proceedings' 'stay of Proceedings']

Case Brief

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Procedural Posture

Notices of Motion in a Principal Proceeding Involving an Application Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) / Determination of Notices of Motion Seeking Leave to Appeal and a Writ of Mandamus

Legal Issues

  1. 1 ["Whether leave should be granted to appeal from Cowdroy J's decision that the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) did not apply to the principal proceeding in the absence of a notice under s 6A(1)." 'Whether the Court should issue a writ of mandamus under s 39B(1) of the Judiciary Act 1903 (Cth) to compel the Commonwealth Attorney-General to comply with s 38D(5) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).']

Ratio Decidendi

Because the Attorney-General had not given a notice under s 6A(1), the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) did not apply to the principal proceeding; Cowdroy J's decision was not attended by sufficient doubt to warrant reconsideration, so leave to appeal was refused. The mandamus application depended on the same rejected premise that the Act applied, and therefore could not succeed.

Court Disposition

Both notices of motion were dismissed, with no order as to costs.

Orders

  • ['The notice of motion filed on 28 April 2011 is dismissed.' 'The notice of motion filed on 23 May 2011 is dismissed.' 'There be no order as to costs in relation to either of the notices of motions.']