FEDERAL COURT OF AUSTRALIA
Cremona v Administrative Appeals Tribunal [2015] FCAFC 72
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Details
- Case
- [2015] FCAFC 72
- Decision Date
CaseChat Overview and Summary
In Cremona v Administrative Appeals Tribunal, the Federal Court of Australia reviewed a decision by the Federal Circuit Court of Australia (FCCA) in relation to an application for judicial review under section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The appellant, Cremona, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) regarding the cancellation of his carer’s allowance under the Social Security Act 1991 (Cth). The primary legal issue before the court was whether the FCCA correctly exercised its discretion under section 10(2)(b)(ii) of the ADJR Act in dismissing the appellant's application for judicial review, considering that the appellant could have filed an appeal under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) in the Federal Court.
The Federal Court found that the FCCA applied the wrong principle in exercising its discretion under section 10(2)(b)(ii) of the ADJR Act, which led to the dismissal of the appellant's application for judicial review. The court noted that the FCCA proceeded on the basis that there was existing authority supporting the view that, in the absence of special circumstances, the procedure under section 44 of the AAT Act should be adopted rather than the ADJR Act. However, the Federal Court considered these authorities to be wrongly decided. The court emphasized that the decision in Tuite, where the FCCA dismissed an application under the ADJR Act in favour of the procedure in section 44 of the AAT Act, should not be taken as a precedent for other cases. Additionally, the court highlighted that the decision in David Jones Finance, which was cited by the FCCA, did not involve section 44 of the AAT Act but rather dealt with the interrelationship between section 39B of the Judiciary Act and the appeal rights under the Income Tax Assessment Act 1936 (Cth).
Consequently, the Federal Court allowed the appeal, set aside the orders made by the FCCA on 16 October 2014, and ordered the second respondent to pay the appellant’s costs of and incidental to the appeal. The court's decision underscored the importance of correctly applying the statutory framework when exercising judicial discretion in administrative law matters.
The Federal Court found that the FCCA applied the wrong principle in exercising its discretion under section 10(2)(b)(ii) of the ADJR Act, which led to the dismissal of the appellant's application for judicial review. The court noted that the FCCA proceeded on the basis that there was existing authority supporting the view that, in the absence of special circumstances, the procedure under section 44 of the AAT Act should be adopted rather than the ADJR Act. However, the Federal Court considered these authorities to be wrongly decided. The court emphasized that the decision in Tuite, where the FCCA dismissed an application under the ADJR Act in favour of the procedure in section 44 of the AAT Act, should not be taken as a precedent for other cases. Additionally, the court highlighted that the decision in David Jones Finance, which was cited by the FCCA, did not involve section 44 of the AAT Act but rather dealt with the interrelationship between section 39B of the Judiciary Act and the appeal rights under the Income Tax Assessment Act 1936 (Cth).
Consequently, the Federal Court allowed the appeal, set aside the orders made by the FCCA on 16 October 2014, and ordered the second respondent to pay the appellant’s costs of and incidental to the appeal. The court's decision underscored the importance of correctly applying the statutory framework when exercising judicial discretion in administrative law matters.
Orders
Orders of the court
1. The appeal be allowed.
2. Orders 2 and 3 of the orders made by the Federal Circuit Court of Australia on 16 October 2014 be set aside.
3. The second respondent pay the appellant’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow we consider that the Federal Circuit Court of Australia (“the FCCA”) applied the wrong principle in determining whether or not to exercise the discretion under s 10(2)(b)(ii) of the ADJR Act, which constitutes appellable error.Background to the appeal The genesis of the appeal relates to a decision of Centrelink to cancel the appellant’s carer’s allowance under the Social Security Act 1991 (Cth). The Social Security Appeals Tribunal (“the SSAT”) affirmed Centrelink’s decision. On 6 March 2014, the AAT affirmed the decision of the SSAT (“the AAT’s Decision”). On 1 April 2014 the appellant filed an application for judicial review of the AAT’s Decision in the FCCA, relying on s 5 of the ADJR Act. His application for judicial review set out many of the grounds contained in s 5 of the ADJR Act, as is apparent from the following list taken from his application (errors in original and noting that the references to “the uncertified/un-signatured decision” are a reference to the AAT’s Decision):Grounds of application1.That a breach of the rules of natural justice occurred in connection with the making of the uncertified/un-signatured decision.2.That procedures that were required by law to be observed in connection with the making of the uncertified/un-signatured decision were not observed. 3.That the making of the uncertified/un-signatured decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.4.That the uncertified/un-signatured decision involved an error of law, whether or not the error appears on the record of the uncertified/un-signatured decision.5.That an exercise of discretionary power in bad faith was done.6.That an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power which also constitutes an abuse of that power.7.That the uncertified/un-signatured decision was done defeating the Tribunals purpose of providing a mechanism of review that is fair, just, economical, informal & quick.8.That the Tribunal failed to ensure the applicant was given reasonable opportunity to present the applicants (sic) case by failing to issue summonses requested to be issued. On 23 April 2014, the second respondent (“the Secretary”), through his solicitor, wrote to the appellant and drew his attention to s 10(2)(b)(ii) of the ADJR Act. The appellant was invited to discontinue his ADJR Act proceeding and to file an appeal in the Federal Court of Australia under s 44 of the AAT Act. The Secretary indicated that he would not pursue costs incurred to date in respect of the ADJR Act proceedings and would not oppose an extension of time to appeal to the Federal Court. On 23 May 2014, the appellant informed the Secretary’s solicitor that he would be proceeding with the ADJR Act application notwithstanding the solicitor’s letter dated 23 April 2014. On 26 May 2014, the FCCA ordered the Secretary to file any application directed to the dismissal of the ADJR Act application, together with any affidavits and submissions in support within 21 days. The appellant was ordered to file any affidavits and submissions in response within a further 28 days.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Before turning to consider relevant authorities concerning the application of s 10(2)(b)(ii) where adequate provision exists for a judicial review applicant to bring an appeal under s 44 of the AAT Act it is desirable to set out that latter provision:“44Appeals to Federal Court of Australia from decisions of the TribunalAppeal on question of law (1)A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.” As previously mentioned, the FCCA proceeded on the basis that there was existing authority of this Court which supported the view that, absent special circumstances, the specific procedure under s 44 of the AAT Act should be adopted and not the ADJR Act. It is appropriate to consider each of the authorities referred to by the FCCA in coming to that view, as well as some other relevant authorities which apparently were not cited to the FCCA. As will shortly emerge, while we agree with the FCCA’s view that there is some authority of this Court which supports her Honour’s approach, we consider that those authorities were wrongly decided. The first relevant authority is Tuite. In that case, an application was brought under the ADJR Act in respect of a final decision of the AAT. As noted above, Davies J described the proceedings as “misconceived” and held that the procedure in s 44 of the AAT Act should have been adopted. His Honour also stated that, in David Jones Finance & Investment Pty Ltd v Commissioner of Taxation (1991) 28 FCR 484, Morling and French JJ “thought… that a jurisdiction such as that under the ADJR Act or the Judiciary Act 1903 (Cth) may, nevertheless, be invoked in special circumstances” (emphasis added). Davies J held that there were no special circumstances in Tuite. After noting, however, that the respondents did not object to the fact that the proceedings were brought under the ADJR Act and that the parties were keen to have the proceeding determined, DaviesJ proceeded to hear and determine the ADJR Act application in Tuite after emphasising that this course should not be taken as a precedent for other cases. It might be added that Davies J made no express reference to s 10(2)(b)(ii), but it can be assumed that his Honour had this provision in mind (together perhaps with the residual discretion to refuse relief in proceedings under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”)). The Full Court’s decision in David Jones Finance was directed to the question whether a taxpayer could seek relief against the Commissioner of Taxation under s 39B(1) of the Judiciary Act, rather than pursue the statutory rights of review of an assessment under Pt V of the Income Tax Assessment Act 1936 (Cth) (“the Income Tax Assessment Act”). The Full Court held by majority that s 177 of that Act did not displace the Court’s judicial review jurisdiction under s 39B of the Judiciary Act. There are two points to note about that decision. First, David Jones Finance did not involve s 44 of the AAT Act. Rather, it was directed to the interrelationship between s 39B of the Judiciary Act and the appeal rights under Pt V of the Income Tax Assessment Act. It is now well established that the statutory rights of appeal under that legislation attract particular and unique considerations, which are largely driven by the combined operation of ss 175, 175A and 177 of the Income Tax Assessment Act (see, for example, Batagol v Federal Commissioner of Taxation (1963) 109 CLR 243 at 251-252 per Kitto J; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 and Federal Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146 at 152-3 and 156-7 per Gummow, Hayne, Heydon and Crennan JJ), which are different from those raised in relation to s 44 of the AAT Act. (Likewise, different considerations can arise where the alternative review mechanism is a merits review by a specialist body, as was the case in Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 per Morling, Pincus and O’Loughlin JJ; Du Pont (Australia) Ltd vComptroller-General of Customs (1993) 30 ALD 829 per Heerey J; and Darling Downs Bacon Co-Operative Association Ltd v Comptroller-General of Customs (1994) 50 FCR 435 per Moore J). And perhaps even more significantly, David Jones Finance was expressly disapproved by the High Court in Richard Walter at 185-8 per Mason CJ, at 212-3 per Deane and Gaudron JJ, at 231-4 per Toohey J and at 241-3 per McHugh J.
Ratio Decidendi
Legal Principle Established
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