FEDERAL COURT OF AUSTRALIA
CAP21 v Administrative Appeals Tribunal [2022] FCA 729
File number(s): ACD 36 of 2021 Judgment of: GOODMAN J Date of judgment: 27 June 2022 Catchwords: ADMINISTRATIVE LAW – whether the Administrative Appeals Tribunal failed to afford procedural fairness to an applicant for an order pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) – Tribunal had regard to a newspaper article in reaching its decision without providing the applicant an opportunity to inspect that article or make submissions concerning it – material breach of the obligation to afford procedural fairness – jurisdictional error established Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Public Service Act 1999 (Cth)
Cases cited: AFD21 v Minister for Home Affairs [2021] FCAFC 167; (2021) 393 ALR 398
Australian Securities and Investments Commission v Administrative Appeal Tribunal [2009] FCAFC 185; (2009) 181 FCR 130
Devasahayam and Comcare [2010] AATA 784
Fletcher v Federal Commissioner of Taxation [1988] FCA 362; (1988) 19 FCR 442
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Modini and Tax Agents’ Board of Queensland [2005] AATA 1200
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
O’Sullivan v Repatriation Commission [2003] FCA 387; (2003) 128 FCR 590
Re Lawrance and CRS Australia [2004] AATA 1136; (2004) 85 ALD 238
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33
Repatriation Commission v Farley-Smith [2007] FCA 1058; (2007) 96 ALD 348
Division: General Division Registry: Australian Capital Territory National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 60 Date of hearing: 8 June 2022 Counsel for the Applicant: Ms D Forrester and Ms N Maddocks Solicitor for the Applicant: Maddocks Counsel for the First Respondent: The first respondent filed a submitting appearance (save as to costs). Counsel for the Second Respondent: The second respondent appeared in person. Counsel for the Third Respondent: The third respondent filed a submitting appearance (save as to costs). ORDERS
ACD 36 of 2021 BETWEEN: CAP21
Applicant
AND: ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent
GREGORY HAYWOOD
Second Respondent
COMCARE
Third Respondent
ORDER MADE BY:
GOODMAN J
DATE OF ORDER:
27 JUNE 2022
THE COURT ORDERS THAT:
1.The order made by the first respondent on 12 April 2021 be set aside.
2.The first respondent hear and determine according to law the application of the applicant for an order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) prohibiting or restricting the publication or other disclosure of the applicant’s name or other information tending to reveal the identity of the applicant within the decision of the first respondent published on 16 March 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GOODMAN J
INTRODUCTION
On 16 March 2021, the Administrative Appeals Tribunal published its decision (2021 Decision) in a proceeding between the second…
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- Case
- [2022] FCA 729
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1. The order made by the first respondent on 12 April 2021 be set aside.
2. The first respondent hear and determine according to law the application of the applicant for an order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) prohibiting or restricting the publication or other disclosure of the applicant’s name or other information tending to reveal the identity of the applicant within the decision of the first respondent published on 16 March 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Finally, the Tribunal (at [54]) recorded its sympathy for the applicant’s position. The Tribunal noted that the applicant was a longstanding public servant against whom Mr Haywood had made numerous allegations over many years; that she gave evidence in each of the Tribunal Proceedings; that no adverse findings had been made against her in either of these proceedings; and that Mr Haywood had been unsuccessful in both proceedings. The Tribunal acknowledged that despite this, the details of the claims made in the Tribunal are no doubt hurtful and embarrassing. However, on balance, the Tribunal was not satisfied that these factors, nor the reasons advanced by the applicant, were sufficient to depart from the Tribunal’s broad objectives and considerations in providing its review process in this proceeding under the Act. CONSIDERATION The Court’s task is to determine, by reference to the grounds of judicial review advanced by the applicant, whether the s 35(3) Decision was made within the authority conferred upon the Tribunal by the Act. In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [29]-[30], Kiefel CJ, Gageler, Keane and Gleeson JJ explained (footnotes omitted):[29]The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid. [30]The statutory limits of the decision-making authority conferred by a statute are determined as an exercise in statutory interpretation informed by evolving common law principles of statutory interpretation. Non-compliance with an express or implied statutory condition of a conferral of statutory decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred by statute. Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation. The applicant contended that the Tribunal had acted beyond the authority conferred upon it by the Act and in particular that it had failed to afford her procedural fairness; it had failed to consider mandatory relevant considerations and had considered irrelevant considerations; it had acted legally unreasonably; and it had made errors of law.