Cremona v Administrative Appeals Tribunal - [2014] FCCA 2412

FEDERAL CIRCUIT COURT OF AUSTRALIA

CREMONA v ADMINISTRATIVE APPEALS TRIBUNAL & ANOR

[2014] FCCA 2412

Catchwords:
ADMINISTRATIVE LAW – Application for judicial review of decision of Social Security Appeals Tribunal – SSAT affirmed decision of Centrelink – Applicant’s oral application for adjournment dismissed – Applicant provided no written evidence nor oral submissions in support of application – Court exercised discretion – adequate provision made by any law other than Administrative Decisions (Judicial Review) Act 1977 (Cth) – application for judicial review dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.44(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 6, 7, 10, 10(2)(b)(ii), 46(1)(a)

Federal Circuit Court Rules 2001 (Cth), r.33.18

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143
Director-General of Social Services v Chaney (1980) 3 ALD 161
Duncan v Fayle [2004] FCA 723
Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483

Applicant:

DAVID CREMONA

First Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent:

SECRETARY, DEPARTMENT OF SOCIAL SERVICES

File Number:

MLG 611 of 2014

Judgment of:

Judge Hartnett

Hearing date:

16 October 2014

Delivered at:

Melbourne

Delivered on:

16 October 2014

REPRESENTATION

The Applicant:

In Person

Counsel for the Second Respondent:

Ms Heffernan

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

The name of the Second Respondent be changed to “Secretary, Department of Social Services”.
The Application for Judicial Review filed 1 April 2014 is dismissed pursuant to s.10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
The Applicant pay the Second Respondent’s costs of the Application for Judicial Review fixed in the sum of $3,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 611 of 2014

DAVID CREMONA

Applicant

And

ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

SECRETARY, DEPARTMENT OF SOCIAL SERVICES

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

The Applicant filed an Originating Application for Judicial Review on 1 April 2014. He attended at Court this day as a litigant in person, but at approximately 10.40am left the courtroom after the Court indicated to him that his adjournment application would not be successful and that the Second Respondent’s Application in a Case filed 10 June 2014 and listed for hearing this day at 10.00am would proceed. The Applicant did not remain to hear the Second Respondent’s case, but indicated upon his departure from the courtroom that he would appeal the decision of the Court.
In respect of the Applicant’s adjournment application, firstly, he argued that there were outstanding subpoena matters. That is not the case. One Subpoena was issued in the proceeding, filed 20 August 2014, and that was filed by the Applicant. It was directed to Ms Elizabeth Anne Shanahan who, in fact, was the presiding Member of the Administrative Appeals Tribunal (‘the Tribunal’) which Tribunal, affirmed the decision before it under review and on 6 March 2014, being a decision in proceedings between the Applicant and the Second Respondent in this proceeding. The Applicant, in that Subpoena, sought that Ms Shanahan attend…

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: [2014] FCCA 2412
Decision Date: 16 October 2014

CaseChat Overview and Summary

This matter concerned an application for review of a decision made by the Administrative Appeals Tribunal. The applicant, Cremona, sought an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

The central legal issue before the court was the interpretation and application of sections 5, 6, and 7 of the ADJR Act, which outline the grounds upon which a person aggrieved by a decision, conduct, or failure to make a decision can seek judicial review. Specifically, the court was required to consider the scope of these provisions, including what constitutes an "improper exercise of power" and the circumstances under which a decision can be challenged for lack of evidence or unreasonable delay.

The court's reasoning focused on the text and purpose of the ADJR Act. It explained that section 5 provides for review of a decision, section 6 for review of conduct related to the making of a decision, and section 7 for review of a failure to make a decision. The court elaborated on the various grounds for review listed in these sections, particularly the expansive definition of "improper exercise of power" in section 5(2) and 6(2), which includes taking irrelevant considerations into account, failing to take relevant considerations into account, and exercising power unreasonably. The court also clarified the conditions under which the ground of "no evidence or other material to justify the making of the decision" could be established under section 5(3) and 6(3).

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

Sections 5, 6 and 7 of the ADJR Act are as follows:- “5 Applications for review of decisions(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;(c) that the person who purported to make the decision did not have jurisdiction to make the decision;(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;(g) that the decision was induced or affected by fraud;(h) that there was no evidence or other material to justify the making of the decision;(j) that the decision was otherwise contrary to law.(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:(a) taking an irrelevant consideration into account in the exercise of a power;(b) failing to take a relevant consideration into account in the exercise of a power;(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;(d) an exercise of a discretionary power in bad faith;(e) an exercise of a personal discretionary power at the direction or behest of another person;(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and(j) any other exercise of a power in a way that constitutes abuse of the power.(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.6 Applications for review of conduct related to making of decisions(1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds:(a) that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct;(b) that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;(c) that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision;(d) that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision;(e) that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;(f) that an error of law had been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision;(g) that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct;(h) that there is no evidence or other material to justify the making of the proposed decision;(j) that the making of the proposed decision would be otherwise contrary to law.(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:(a) taking an irrelevant consideration into account in the exercise of a power;(b) failing to take a relevant consideration into account in the exercise of a power;(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;(d) an exercise of a discretionary power in bad faith;(e) an exercise of a personal discretionary power at the direction or behest of another person;(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and(j) any other exercise of a power in a way that constitutes abuse of the power.(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:(a) the person who proposes to make the decision is required by law to reach that decision only if a particular matter is established, and there is no evidence or other material (including facts of which he or she is entitled to take notice) from which he or she can reasonably be satisfied that the matter is established; or(b) the person proposes to make the decision on the basis of the existence of a particular fact, and that fact does not exist.7 Applications in respect of failures to make decisions(1) Where:(a) a person has a duty to make a decision to which this Act applies;(b) there is no law that prescribes a period within which the person is required to make that decision; and(c) the person has failed to make that decision;a person who is aggrieved by the failure of the first‑mentioned person to make the decision may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.(2) Where:(a) a person has a duty to make a decision to which this Act applies;(b) a law prescribes a period within which the person is required to make that decision; and(c) the person failed to make that decision before the expiration of that period;a person who is aggrieved by the failure of the first‑mentioned person to make the decision within that period may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the failure to make the decision within that period on the ground that the first‑mentioned person has a duty to make the decision notwithstanding the expiration of that period.”

Ratio Decidendi

Legal Principle Established

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