Aldridge and Repatriation Commission - [2012] AATA 571

[2012] AATA 571

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/4021

Re

LESLIE ALDRIDGE

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

INTERLOCUTORY DECISION

Tribunal
PROFESSOR RM CREYKE, SENIOR MEMBER

Date 29 August 2012

Place Canberra
The application for reinstatement is not granted under section 42A(10) of the Administrative Appeals Tribunal Act 1975 (Cth).
...............................[sgd].........................................
PROFESSOR RM CREYKE, SENIOR MEMBER
CATCHWORDS
Practice and procedure — Applications — Reinstatement —Jurisdiction to reinstate - no error of Tribunal - reinstatement only for dismissal - statutory interpretation
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42A(10) Legislation
CASES
Re Sanchez and Comcare (1997) 48 ALD 787

Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
REASONS FOR INTERLOCUTORY DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
BACKGROUND

Mr Leslie Aldridge is a veteran from the Vietnam conflict. He seeks reinstatement of a matter which had been decided by consent by the Tribunal on 7 June 2012.
That consent decision under the Administrative Appeals Tribunal Act 1975 (Cth) (Act) s 42C(2) was that Mr Aldridge’s claim for:
·tendonitis right shoulder and supraspinatus tear left should be varied to rotator cuff syndrome of both shoulders, and the refusal of that claim should be affirmed; and
·his claim for osteoarthosis left shoulder and osteoarthrosis of the right acromioclavicular joint should be accepted with effect from 19 March 2008.
On 23 July 2012, Mr Aldridge sought to reinstate his application to the Tribunal on the ground that it had been consented to in error. On 24 August 2012, an interlocutory hearing was held to consider the matter.
LEGISLATION
Section 42A(10) of the Act provides:
If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appears to it to be appropriate in the circumstances.
CONSIDERATION
Jurisdiction
A preliminary matter is whether the Tribunal had jurisdiction to consider a reinstatement application.
The application under consideration was not dismissed. The consent order varied the decision under review in that it affirmed part of the decision and set aside a part of the decision and substituted a decision for that part. The representative for the Repatriation Commission (Commission) argued: ‘I am not aware of any power the Tribunal has to reopen the matter’.
In Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429, French J considered the argument that the Tribunal had ‘inherent jurisdiction’ or an ‘implied incidental power’ under s 43 to vary or revoke an action that it had taken, including presumably a consent decision. He said:
‘There is nothing inherently angelical about administrative decision-making under the grant of a statutory power that requires the mind that engages in it to be unrepentantly set upon each decision taken’.[1]
Further, his Honour said: ‘The convenience and flexibility…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] AATA 571
Decision Date: 29 August 2012

CaseChat Overview and Summary

The case of Aldridge and Repatriation Commission involved a dispute where the Tribunal was asked to consider whether it had jurisdiction to reinstate an application that had not been dismissed but varied by a consent order. The dispute was between Aldridge and the Repatriation Commission, and it was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the Tribunal had the jurisdiction to reinstate an application that had not been dismissed but was altered by a consent order. The case hinged on the interpretation of section 42A(10) of the Act, which allows the Tribunal to reinstate an application if it appears to have been dismissed in error.

The court considered the statutory interpretation of section 42A(10), which explicitly provides for reinstatement only in the case of a dismissed application. The Repatriation Commission argued that the Tribunal had no power to reopen the matter as it had not dismissed the application but varied it through a consent order. The court referred to previous cases, such as Sloane v Minister for Immigration, Local Government and Ethnic Affairs, where French J discussed the possibility of inherent jurisdiction or an implied incidental power under section 43 to vary or revoke a decision. However, the court held that the argument for inherent jurisdiction was not applicable in this context due to the specific statutory provisions for reinstatement. The court concluded that the Tribunal's power to reinstate was limited by statute, and any reconsideration of a decision not dismissed would not be supported by the legislative framework.

The court determined that the Tribunal did not have the jurisdiction to reinstate the application because the application had not been dismissed, and there was no statutory basis for the Tribunal to reopen the matter. The court's decision was based on the strict interpretation of the relevant statutory provisions, which allowed reinstatement only in the case of a dismissed application. The court upheld the argument that any power to reconsider or vary a decision must be found within the specific provisions of the Act, and not through an implied or inherent jurisdiction.

The final orders of the court were that the Tribunal did not have jurisdiction to reinstate the application, and the application was dismissed for want of jurisdiction. This decision clarified the scope of the Tribunal's powers under the Act and reinforced the importance of adhering to the statutory framework when considering applications for reinstatement.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 42A(10) of the Act provides:If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appears to it to be appropriate in the circumstances.CONSIDERATIONJurisdiction A preliminary matter is whether the Tribunal had jurisdiction to consider a reinstatement application. The application under consideration was not dismissed. The consent order varied the decision under review in that it affirmed part of the decision and set aside a part of the decision and substituted a decision for that part. The representative for the Repatriation Commission (Commission) argued: ‘I am not aware of any power the Tribunal has to reopen the matter’. In Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429, French J considered the argument that the Tribunal had ‘inherent jurisdiction’ or an ‘implied incidental power’ under s 43 to vary or revoke an action that it had taken, including presumably a consent decision. He said:‘There is nothing inherently angelical about administrative decision-making under the grant of a statutory power that requires the mind that engages in it to be unrepentantly set upon each decision taken’.[1] Further, his Honour said: ‘The convenience and flexibility of a process by which a primary decision-maker may be persuaded on appropriate and cogent material that a decision taken ought to be re-opened without the necessity of invoking the full panoply of judicial or express statutory review procedures’[2] may justify such a re-opening. [1] Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 443 (French J)[2] Ibid. However, his Honour had also noted that:The question is one of statutory construction. It is not without difficulty and is attended by policy considerations which are in some degree in conflict. The implication into an express grant of statutory power of a power to reconsider its exercise would be capable, if not subject to limitation, of generating endless requests for reconsideration on new material or changed circumstances.[3] French J’s reference to there being a need to consider the issue in its statutory context was relied on in Re Sanchez and Comcare (1997) 48 ALD 787 to counter the more flexible approach suggested as a possibility in Sloane. That argument, which this Tribunal accepts, is that:There are however specific provisions in the Act which confer a power on the tribunal to vary a decision it has made: see s 42A(10) and s 43AA [the slip rule]. Having regard to these provisions, it would not be proper to imply into s 43 a general power to revoke or vary a decision made by the tribunal.[4][3] Ibid.[4] Re Sanchez and Comcare (1997) 48 ALD 787at 788 In other words, as a matter of statutory construction, the legislation of the Tribunal has exclusively decided when reinstatement is possible, subject only the law’s general exceptions for example, for fraud[5]. [5] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4021
Re	LESLIE ALDRIDGE
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	PROFESSOR RM CREYKE, SENIOR MEMBER
Date	29 August 2012
Place	Canberra