Director-General of Social Services v Chaney, R
[1980] FCA 108
•07 AUGUST 1980
Re: DIRECTOR-GENERAL OF SOCIAL SERVICES
And: ROSEMARY CHANEY (1980) 47 FLR 80
No. G40 of 1980
Appeal - Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Deane(2) and Fisher(3) JJ.
CATCHWORDS
APPEAL - Administrative Appeals Tribunal - Application for review from decision of Director-General of Social Services - Appeal to Federal Court of Australia from "decision" of Tribunal - Competence of appeal from preliminary ruling of Tribunal that it has jurisdiction to review decision - Competence of appeal from an interim order of Tribunal staying operation of decision - What constitutes a "decision" of the Tribunal - Jurisdiction of Federal Court - Power to make interim order.
Social Services Act, 1947: ss. 15, 59(1)
Administrative Appeals Tribunal Act, 1975: ss 3(3), 41(2), 42, 43(1), 43A, 44(1), 44(2), 44(2A), 44A, 45.
Federal Court of Australia Act, 1976: s.24
Administrative Law - Administrative Appeals Tribunal - Application for review of decision of Director-General of Social Services - Preliminary ruling and interim order of Administrative Appeals Tribunal - Whether "decision" giving right of appeal to Federal Court - Jurisdiction of Federal Court - Power to make interim order - Social Services Act 1947 (Cth), ss. 15, 59 (1) - Administrative Appeals Tribunal Act 1975 (Cth), ss. 3 (3), 41 (2), 42, 43 (1), 43A, 44 (2), 44 (2A), 44A, 45, Sched. Pt XXIVA - Federal Court of Australia Act 1976 (Cth), s. 24.
HEADNOTE
On 14th April, 1980, the applicant Director-General made a decision to "confirm" that the respondent was not entitled to a widow's pension under the Social Services Act 1947. On 24th April, 1980, the respondent applied to the Administrative Appeals Tribunal to review the "decision of the Department of Social Security to cancel (her) widow's pension". On 22nd May, 1980, the President of the Tribunal ruled that the Tribunal had jurisdiction to review the decision and suspended the order suspending the respondent's widow's pension until the hearing and determination of the review or until further order. The applicant purported to appeal against these decisions to the court under s. 44 of the Administrative Appeals Tribunal Act 1975 ("the Act").
On 4th June, 1980, the court constituted by a single judge ordered that the interim order of the Tribunal operate "to direct payment of the pension . . . until the hearing of the appeal or further order". The applicant also appealed against this order.
Held: Per Deane and Fisher JJ. - (1) The appeals from the ruling and interim order of the President of the Tribunal were incompetent and should be dismissed as: (a) subject to the qualification in s. 44 (2) of the Act, an appeal to the court under s. 44 (1) lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review, and (b) the ruling and interim order of the President did not effectively dispose of the proceedings or any independent part thereof. Deputy Commissioner of Patents v. Board of Control of Michigan Technological University (1979), 43 FLR 9; Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty. Ltd. (1979), 41 FLR 338, distinguished. Commonwealth v. Bank of New South Wales (1949), 79 CLR 497, referred to.
(2) (a) The order of the court of 4th June, 1980, was not warranted by the relevant provision of the Act, s. 44A, as there was no relevant appeal instituted to the court from a decision of the Tribunal. (b) Appeal from the order of the court of 4th June, 1980, upheld.
Per Northrop J. dissenting - (1) The word "decision" when used in s. 44 of the Act includes a formal conclusion announced by the Tribunal that it had jurisdiction to review a decision under the Act and need not be limited to meaning the final conclusion or result of the proceeding.
(2) The court had jurisdiction to hear both appeals from the Tribunal.
HEARING
Sydney, 1980, June 18; August 7. #DATE 7:8:1980
APPEALS.
Appeals from a ruling and interim order of the Administrative Appeals Tribunal and from an order of a single judge of the court.
C. A. Porter Q.C. and Priscilla Fleming, for the appellant.
M. H. McHugh Q.C. and C. Waterstreet, for the respondent.
Cur. adv. vult.
Solicitor for the applicant: B. J. O'Donovan, Commonwealth Crown Solicitor.
Solicitor for the respondent: R. B. West, Redfern Legal Centre.
T. J. GINNANE
ORDER
1. THE appeal from the ruling and the interim order made by the President of the Administrative Appeals Tribunal be dismissed.
2. THE appeal from the interim order of the Federal Court of Australia constituted by a single judge be allowed AND THAT that interim order be set aside.
3. THE applicant pay to the respondent so much of his costs of the appeal to this Court as relates to the appeal referred to in Order 1 hereof.
Orders accordingly.
JUDGE1
By letter dated 31 January 1980 Senator Puplick wrote to the Minister for Social Services, Senator Dame Margaret Guilfoyle, as follows:
"I am writing on behalf of Mrs. Rosemary Chaney of 22 Market Street, Randwick, N.S.W. 2031.
There is a long history of disputation between your Department and Mrs. Chaney over the provision of a Widow's Pension for her. The essence of this matter is that while Mrs. Chaney is in every respect eligible for such a pension, she has fallen foul of the cohabitation rule of the Act.
She lives in the same premises as Mr. Keith Chaney, whose name she and the two children have taken to hide their identity from Mrs. Chaney's ex-husband.
I am, however, satisfied that Mrs. Chaney does not 'cohabit' in the sense that that term should be understood, that is she does not derive any physical or financial support from Keith Chaney, and does not derive any economic benefit as if she were living in a de facto relationship with him. All that can be said is that the two people live separately under the same roof.
Your Department will have received material supporting this view from both Mr. J. Birney, MP, and from the Redfern Legal Centre, who have had Welfare Officers examine this case in detail.
"When Mrs. Chaney last had her pension withdrawn she made an appeal to the Social Security Appeals Tribunal which recommended that her pension be restored. This recommendation, however, was rejected by your Director-General.
I now ask that you might ask Mr.Lanigan to review his decision.
While I support fully the proper application of the cohabitation rule, I am convinced, as I have said, that Mrs. Chaney is not living in a de facto relationship with Keith Chaney, nor is she deriving any economic support from Keith Chaney. She is in fact presently totally dependent upon her child-endowment payments for her income support.
I believe that a review by the Director-General of his decision would be appropriate and I would appreciate your assistance in forwarding this letter to him."
The Mr. Lanigan referred to in the letter is the Director-General of Social Services.
By minute dated 14 April 1980 the Director-General wrote to the Minister as follows: "MINISTER:
MRS. ROSEMARY CHANEY REPRESENTATIONS AGAINST CANCELLATION OF WIDOW'S PENSION -----------------------------------------------< In spite of the conviction with which Senator Puplick has pressed Mrs Chaney's case I am satisfied that the only action I can correctly take is to confirm the decision of Mr Wryell, made on the unanimous recommendation of our senior officers who have handled this case, that Mrs Chaney fails to qualify for widow's pension because her relationship with Mr Chaney puts her within the statutory definition of 'dependent female'. "2. This is not a transient relationship of the kind that we often have trouble with. We have for years been in dispute with Mrs Chaney about her claims and the pattern of evidence over the years is consistent in indicating the view that, on the balance of probabilities, Mrs and Mr Chaney have a sufficiently close relationship to place her outside the area of eligibility for widow's pension.
3. You will gain some idea of the nature of this case from the attached copy of a minute which Mr Prowse sent to you in 1978, and from the attached papers in which our senior officers have set out the present position as they assess it.
4. It is a thankless task to have to determine these cases. The broad policy which the legislature has given effect to is clear enough, and quite necessary if we are not to allow people who live in informal arrangements to have unfair advantages over those who are legally married. On the other hand there can never be any certainty in the judgments on the fact that we have to make in relation to delicate issues of which we can never have complete knowledge or understanding.
5. I can only put to you my personal view that, if ever there is to be a case in which we are justified in denying a pension on cohabitation grounds, this would appear to be such a case.
6. I do not believe it is lawfully open to me to authorise payment of a pension to Mrs Chaney in such circumstances, and I have prepared the reply to Senator Puplick accordingly. I have written in similar terms to Mr Birney, M.P. who took the case up directly with me."
The Minister signed the letter prepared by the Director-General, dated it 15 April 1980 and forwarded it to Senator Puplick. The letter was as follows:
"I am replying to your personal representations on behalf of Mrs Rosemary Chaney of 22 Market Street, Randwick, N.S.W. 2031 concerning the cancellation of her widow's pension.
"As you know, the Social Services Act provides that a woman is not entitled to receive a widow's pension if her case falls within the definition of 'dependent female' in the Act - i.e. if she is living with a man as his wife on a bona fide domestic basis although not legally married to him.
The reasoning behind the legislative policy is that a man and woman who, for convenience, economic or other reasons, live together in circumstances similar to those of a husband and wife, are not placed in a better or worse position for pension or benefit purposes than a legally married couple.
Mrs. Chaney's case has been the subject of extensive enquiries over a period of years. My department has, from time to time, found it necessary, after a careful weighing of all the evidence available to it, to proceed on the assumption that Mrs Chaney does in fact fall within the statutory definition of 'dependent female', and it follows from this that she is not entitled to the widow's pension she has been claiming.
The Director-General has assured me that he has personally reviewed the case in the light of your representations but, in all the circumstances, he finds that he has no option but to confirm the decisions that have been made by his senior officers."
By letter dated 14 April 1980, the Director-General had written to Mr. Birney, M.P., being the person referred to in the letter from Senator Puplick, as follows:
"I am replying to your representations on behalf of Mrs Rosemary Chaney of 22 Market Street, Randwick, N.S.W. 2031 concerning the cancellation of her widow's pension.
As you know, the Social Services Act provides that a woman is not entitled to receive a widow's pension if her circumstances place her within the definition of 'dependent female' in the Social Services Act - i.e., if she is living with a man as his wife on a bona fide domestic basis although not legally married to him. The reasoning behind the legislative policy is that a man and woman who, for convenience, economic or other reasons, live together in circumstances similar to those of a husband and wife, are not placed in a better or worse position for pension or benefit purposes than a legally married couple.
"Following receipt of your representations I had further enquiries made about this matter. My senior officers are satisfied, on the basis of the evidence available to them, that there has not been any significant change in the relationship which has lasted for several years, and that Mrs Chaney does fall within the statutory definition of 'dependent female'. I have carefully reviewed the evidence but have found myself compelled to confirm this conclusion.
In these circumstances, Mrs Chaney could not be accepted as satisfying the legislative requirements necessary to qualify for a widow's pension under the Social Services Act. Accordingly I have no option but to confirm that Mrs Chaney had no present entitlement to widow's pension at the time of this latest review of the case."
It is abundantly clear that the issue raised by this correspondence concerns Mrs. Chaney's entitlement to a widow's pension under the Social Services Act 1947 as amended, hereinafter called the Act. Part IV of the Act is headed "Widows' Pensions" and contains provisions relating to the qualifications by which a woman is entitled to receive a widow's pension. Part IV comprises sections 59 to 82 inclusive. Under s.59(1) the words "dependent female" are defined to mean:
". . . a woman who, for not less than three years immediately prior to the death of a man (in this Part referred to as the man in respect of whom she was a dependent female), was wholly or mainly maintained by him and although not legally married to him, lived with him as his wife on a permanent and bona fide domestic basis;"
Under the same section the word "widow" is given an extended meaning and includes:
"(a) a dependent female . . .
(c) a woman whose marriage has been dissolved and who has not remarried . . .
"but does not include a woman who is living with a man as his wife on a bone fide domestic basis although not legally married to him."
Mrs. Chaney is a woman whose marriage has been dissolved and who has not remarried. The issue for determination by the Director-General was whether she came within the exclusionary provisions of the definition of "widow", namely whether she was:
"a woman who was living with a man as his wife on a bona fide domestic basis although not legally married to him."
The issue was whether Mrs. Chaney was a widow within the meaning of that word when used in Part IV of the Act and thus was entitled to a widow's pension. The definition of "dependent female" had no application to the issue before the Director-General. To add to the confusion, under Part 111 of the Act, which makes provision for aged and invalid pensions, the words "dependent female" are defined to mean:
"a woman who is living with a man (in this Part referred to as her husband) as his wife on a bona fide domestic basis although not legally married to him."
but that definition has no application to the words "dependent female" when used in the extended definition of the word "widow" where appearing in Part IV of the Act.
On 1 April 1980 by Statutory Rule 1980 No. 62 "Part XXIVA Social Services Act" was inserted in the Schedule to the Administrative Appeals Tribunal Act 1975, as amended, hereinafter called the A.A.T. Act. Part XXIVA provides as follows:
"24A. (1) Where the Director-General of Social Services -
(a) has, in pursuance of section 14 or 15 of the Social Services Act 1947, affirmed, varied or annulled a determination, direction, decision or approval of an officer under that Act, being a determination, direction, decision or approval that has been reviewed by a Social Security Appeals Tribunal; and
(b) has so affirmed, varied or annulled that determination, direction, decision or approval otherwise than in accordance with the decision of the Social Security Appeals Tribunal in relation to that determination, direction, decision or approval,
an application may be made to the Administrative Appeals Tribunal for a review of the decision of the Director-General so to affirm, vary or annul that determination, direction, decision or approval.
(2) A person is not entitled to appeal to the Director-General of Social Services under section 15 of the Social Services Act 1947 against a decision in respect of which an application may be made to the Administrative Appeals Tribunal for review by virtue of sub-clause (1)."
As a result of this amendment a decision of the type referred to in that Part made after 1 April 1980 may be reviewed by the Administrative Appeals Tribunal, hereinafter called the Tribunal, pursuant to the provisions of the A.A.T. Act.
On 24 April 1980 Mrs. Rosemary Chaney, hereinafter called the respondent, made application under s.29(1) A.A.T. Act to have the decision described reviewed by the Tribunal. In the application the decision is described as follows:
"The decision to be reviewed is: decision of the Department of Social Security to cancel Widow's Pension on the grounds of alleged cohabitation."
The name of the person who made the decision is stated to be "Director-General, Department of Social Security".
By notice dated 1 May 1980 the Deputy Registrar of the Tribunal at Sydney gave notice of the application to the Director-General. As a result the Director-General became a party to the proceedings before the Tribunal and under s.37(1) A.A.T. Act he was required, within 28 days after receiving notice of the application, to lodge with the Tribunal:
"(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b) every other document or part of a document that is in his possession or under his control and is considered by him to be relevant to the review of the decision by the Tribunal."
The Director-General challenged the jurisdiction of the Tribunal to entertain the application to review the decision. At a preliminary hearing held before the President of the Tribunal on 15 May 1980 the Director-General raised the issue of jurisdiction but gave an undertaking to the President to lodge with the Tribunal copies of the documents required to be supplied under s.37 A.A.T. Act. On 20 May 1980 the Director-General lodged those documents with the Tribunal together with a statement setting out the findings on material questions of fact and giving the reasons for the decision in question, see s.37(1) (a) A.A.T. Act. That statement did not form part of the appeal book but was forwarded to the Court pursuant to the provisions of s.46(1) (a) A.A.T. Act. In addition, the Director-General lodged with the Tribunal a copy of the delegation of statutory powers under s.12 of the Act to a Deputy Director-General, Mr. Wryell. The covering letter under which these documents were lodged contained the following paragraphs -
"A hearing has been set down by the President of the Tribunal for 2.15 p.m. on Thursday 22 May to determine the question of the jurisdiction of the Tribunal to entertain the application in this matter. The Statement of findings of fact and reasons for the decision and associated documents relating to the substantive question in this matter are lodged notwithstanding the unresolved nature of the jurisdiction issue.
Subject to the resolution of the question of jurisdiction of the Tribunal, the Director-General is agreeable to the holding of a preliminary conference under section 34 of the Administrative Appeals Tribunal Act to consider any of the matters which might be raised in the light of the lodged Statement and documents or any other pertinent issues which might require early consideration."
By agreement between the Director-General and the respondent the issue of whether the Tribunal had jurisdiction to review the decision came on for hearing as a preliminary issue before the President of the Tribunal on 22 May 1980. The Tribunal extracted from the documents lodged by the Director-General those documents which were relevant for the purpose of deciding the issue of jurisdiction. Those documents were given exhibit numbers and are listed:
1. Notification to the respondent of the suspension of widow's pension on 2 March 1979, Ex. T28.
2. Decision of Social Security Appeals Tribunal of 6 September 1979, Ex. T36.
3. The decision of Mr. Wryell of 7 December 1979, Ex. T37.
4. Letter from Senator Puplick to the Minister dated 31 January 1980, Ex. T44.
5. Minute from the Director-General to the Minister dated 14 April 1980 and two additional letters, Ex. T48.
6. Application for Review of decision dated 24 April 1980, Ex. T51.
7. Letter dated 2 May 1980 from Social Worker acting on behalf of the respondent to the Tribunal, Ex. T53.
After hearing submissions the President held that the Tribunal had jurisdiction to review the decision of the Director-General and gave reasons for so holding. On 28 May 1980, the Director-General, in purported exercise of the powers conferred by s.44(1) A.A.T. Act, appealed to a Full Court of the Federal Court, see sub-section 5(3) and (4). Other matters arose in connection with the appeal, but for the time being they can be put to one side. The two questions for immediate consideration are:
1. Whether the Federal Court has jurisdiction to hear and determine an appeal from a decision of the Tribunal by which it held it had jurisdiction to review the decision of the Director-General on 14 April 1980.
2. Whether the decision of the Director-General of 14 April 1980 was a decision which, under the A.A.T. Act, the Tribunal had jurisdiction to review.
Before considering the first of these questions reference should be made to some of the provisions of the Social Services Act and the Administrative Appeals Tribunal Act and to the facts which give rise to the present appeal.
Prior to 2 March 1979, the respondent was in receipt of a widow's pension under Part IV of the Act. She had been accepted as a widow within the definition of the word where used in Part IV. In particular she had been accepted as not being a woman coming within the exclusionary provisions of the definition of the word "widow". In other words, for the purpose of receiving a widow's pension she was not a woman living with a man as his wife on a bona fide domestic basis, although not legally married to him. She had satisfied the requirements entitling her to receive a widow's pension under s.66 of the Act in that she was a widow having the custody and control of one or more children. It can be assumed that under s.66 of the Act she had made a claim for a widow's pension and that under s.67 of the Act the claim had been investigated and that under s.13 of the Act the Director-General had determined a claim in her favour.
Section 6 of the Act contains definitions. Included among the words defined are: "Director-General", "Deputy Director-General", "Director" and "officer". In the Act unless the contrary intention appears, the word "officer" "means an officer or person performing duties, or exercising powers or functions under or in relation to, the Act". It follows that unless a contrary intention appears, the Director-General, an Assistant Director-General and a Director are officers within the meaning of the Act. Section 12 of the Act is as follows:
"12(1) The Director-General may, by writing under his hand, delegate to a Deputy Director-General, to an Assistant Director-General, to a Director, to a Registrar or to any other officer, all or any of his powers and functions under this Act, except this power of delegation, so that the delegate may exercise the powers and functions specified in the instrument of delegation.
(3) Every delegation under this section shall be revocable at will and no delegation shall prevent the exercise of any power or function by the Director-General."
Having regard to the definition of the word "officer", the reference in s.12(1) to a Deputy Director-General, an Assistant Director-General, a Director, and a Registrar appears to be unnecessary but for the purposes of the present case it can be taken as established that the Director-General had delegated such powers and functions of the Act to Mr. Wryell to enable Mr. Wryell to make the determination which he did on 7 December 1979.
Sections 13, 14 and 15 of the Act are as follows:
"13. The Director-General shall, subject to this Act, determine claims.
14. Whenever it appears to the Director-General that sufficient reasons exists for reviewing a determination, direction, decision or approval of an officer under this Act (including a determination, direction, decision or approval of the Director-General), the Director-General may review the determination, direction, decision or approval and may affirm, vary or annul it.
15. A person affected by a determination, direction, decision or approval of an officer under this Act (except a determination, direction, decision or approval of the Director-General) may, within such time (if any) as is prescribed, appeal to the Director-General and the Director-General may affirm, vary or annul the determination, direction, decision or approval."
Some comments are made. Having regard to the wording of Sections 13, 66 and 68, the Director-General prior to March 1979 had determined the claim for a widow's pension made by the respondent. The power to review a determination conferred by s.14, including the power to determine the condition precedent to the exercise of the power to review, is capable of being delegated to an officer by the Director-General and the delegation can extend to a power to review a determination made by the Director-General personally. The power to affirm, vary or amend a determination on an appeal under s.15 is capable of being delegated to an officer, but there can be no appeal from a determination made by the Director-General personally. No time has been prescribed within which a person may appeal under s.15.
By notice dated 2 March 1979, being Exhibit T28, a Director advised the respondent as follows:
"Payment of your widow's pension has been suspended because enquiries about your future entitlement have yet to be completed. You will be further advised as soon as possible. You may continue to use your medical card and concession card.
If you would like more details about this assessment, or we can help you in any other aspect of social welfare, please get in touch with us at the above address.
Please refer to the back of this advice. The review officer referred to can be contacted on the telephone number shown above."
Thereafter the respondent ceased to receive the widow's pension. For present purposes it is assumed that the notice was evidence of a determination, direction or decision made by an officer exercising powers under s.14 of the Act which had been delegated to him by the Director-General. Pursuant to s.15 of the Act the respondent appealed from that determination, direction or decision to the Director-General. Administratively, as a first step, the appeal was referred to a Social Security Appeals Tribunal (hereinafter called S.S.A.T.). The S.S.A.T. is constituted within the Department of Social Security. It is not constituted pursuant to any statute or regulation. It is an advisory body having no statutory basis and its powers and functions are not defined. It makes a recommendation to the person who is to exercise powers under s.15 of the Act. The recommendation of the S.S.A.T. was contained in a document dated 6 September 1979 and is Exhibit T36. The following extracts are taken from the report:
"The Director
Mrs. Rosemary H. CHANEY
22 Market Street, Randwick
___________________________
Appeal:
Against suspension of payment of widows pension.
To be decided:
Whether or not Mrs. Chaney is residing on a bona-fide domestic basis as the wife of Mr. Keith Chaney."
"Recommendation:
Tribunal Members are divided in their views of the appeal.
Mrs. Rosemary H. CHANEY
The Chairman and welfare member consider that the appeal should be upheld. They see Mrs. Chaney having become a victim of the history of her association with the Department. They believe that her circumstances have changed totally, she being no more than an occupant of the Randwick address since she moved there in November, and certainly not living on a bona-fide domestic basis as the wife of Mr. Keith Chaney. They are of the opinion that she has adequately explained her continued usage of the name Chaney and that there is no good reasons for not restoring payment of widow's pension.
The Full-time Member dissents from that view. Endeavouring to be free of influence of the earlier history of her circumstances, he takes the view that Mrs. Chaney by continued living in the same house as Mr. Chaney and continued use of his name for herself and her children has not established that she has terminated her former relationship with him, although he accepts that it be erratic and unstable.
The Tribunal recommends that the appeal be upheld on the majority view and payment of widows pension restored from 15 March 1979 subject to "adjustment of payments of special benefit which may have been made. It is asked that consideration be given to the minority view that the appeal be dismissed."
The appeal was determined by Mr. Wryell on 7 December 1979, in the exercise of powers conferred by s.15 of the Act. That decision was referred to in the document being Exhibit T37. The document consists of a recommendation made by an Assistant Director-General on 15 December 1979 and supported by another officer on 6 December 1979 and approved by Mr. Wryell on 7 December 1979. The following extracts are taken from Exhibit T37:
"Mrs. R. H. Edwards also known as Mrs. R. H. Chaney Appeal against non-payment of widow's pension
__________________________________________________
F.A.D.G. (Benefits)
The facts in this case are basically that Mrs. Chaney successfully appealed to the SSAT (majority decision) against the suspension of her widow's pension.
2. Mrs. Chaney had previously had her widow's pension cancelled because of her association with Mr. K. Chaney. Mrs. Chaney re-applied for widow's pension which was granted on 14 September 1978. Subsequent inquiries indicated that Mrs. Chaney had commenced to reside again with Mr. Chaney and widow's pension was suspended on 1 March 1979.
3. I recommend that the appeal be disallowed and I incorporate in my recommendation paragraph 14 of Mr. Goonrey's submission (f65) and would add that as the field officer report of 15 December 1978 indicates, where it suits Mrs. Chaney, she asserts in no uncertain fashion that she is the wife of Mr. K. Chaney. The field officer report clearly shows that her vigorous assertion that she is the wife of Mr. K. Chaney sufficiently impressed officers of the Randwick Police Station when they were questioning Keith Chaney in relation to an alleged robbery."
On 21 January 1980 the respondent made a fresh claim for a widow's pension, but this was rejected by a determination dated 23 January 1980.
The correspondence set out at the beginning of these reasons then followed. The letter from Senator Puplick is Exhibit T44 and the minute of the Director-General to the Minister dated 4 April 1980, the letter from the Minister to Senator Puplick and the letter from the Director-General to Mr. Birney are Exhibit T48. The application for review of the decision of the Director-General dated 24 April 1980 is Exhibit T51. The letter dated 2 May 1980 from the Social Worker, being Exhibit T53, identifies that the decision sought to be reviewed is the decision of the Director-General evidenced by the minute dated 14 April 1980. The letter also requests that the jurisdictional questions be resolved quickly so that "many hours are not spent preparing a case which may not be accepted by the Tribunal".
Section 44 A.A.T. Act makes provision for appeals from any decision of the Tribunal. Extracts from s.44 are set out:
"44.(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.
. . .
(2A) An appeal by a person under sub-section (1) or (2) shall be instituted -
(a) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal "Court of Australia (whether before or after the expiration of that day) allows; and
(b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.
(3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with sub-sections (1) and (2) and that jurisdiction may be exercised by that Court constituted as a Full Court and shall be exercised by the Court so constituted if the decision of the Tribunal was given by the Tribunal constituted by a presidential member or by members at least one of whom was a presidential member.
(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision."
Reference should be made to s.45 A.A.T. Act which empowers the Tribunal to refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision.
Although s.44 A.A.T. Act refers to "an appeal to the Federal Court", in truth the Court hearing and determining the appeal is exercising original jurisdiction under s.19 and s.20 Federal Court of Australia Act 1976 as amended, see Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty. Ltd. (1979) 24 A.L.R. 307 and Committee of Direction of Fruit Marketing v. Delegate of Australian Postal Commission (1979) 25 A.L.R. 221. The appeal is "on a question of law" and is not a re-hearing of the proceedings before the Tribunal, see the Committee of Direction of Fruit Marketing case, supra, per Northrop J. at p.231 and pp.232-3. Order 53, Federal Court Rules, is based on those principles. The person who commences the proceedings in the Federal Court is an applicant, Rule 3, and the Notice of Appeal is required to state the question or questions of law to be raised on the appeal, Rule 4(1)(c)(iii). This procedure can be compared with the procedure prescribed under Order 50 on a reference of a question of law under s.45 A.A.T. Act. Section 46 A.A.T. Act contains provisions of a procedural nature with respect to both appeals and references.
Reference should be made to s.43 A.A.T. Act which confers powers upon the Tribunal when reviewing a decision. Under s.43(1) the Tribunal is required to make a decision in writing and is as follows:
"43.(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing -
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and -
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal."
Section 43(2) is as follows:
"43(2) Subject to sections 35 and 36, the Tribunal shall give reasons in writing for its decision and those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based."
The extended definition of the word "decision" in s.3(3) of the A.A.T. Act does not assist in the determination of this aspect of the appeal.
The appeal is brought from a ruling made by the Tribunal that it had jurisdiction to review the decision of the Director-General and the first issue to be decided is whether that ruling was within the meaning of the words "any decision of the Tribunal" in s.44(1) of the A.A.T. Act. Counsel for the respondent did not raise this issue as a preliminary objection to the jurisdiction of the Federal Court, but since it was raised in the course of submissions it is necessary that the Court decide the issue.
It is clear that the ruling by the Tribunal that it had jurisdiction to review the decision of the Director-General is not a decision in writing:
"(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review
and -
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal."
The Tribunal gave reasons for its ruling, including its findings on material questions of fact and a reference to the evidence on which those findings were based. The reasons for its ruling may not be "reasons in writing" for the purposes of s.43(2) of the A.A.T. Act. The transcript of the proceedings before the Tribunal and the reasons and ruling of the Tribunal are before the Court. To that extent the ruling is in writing and constitutes a document setting out the terms of the decision of the Tribunal for the purposes of s.44(2A)(a) of the A.A.T. Act thereby determining the time within which an appeal may be taken. The particular documents on which the ruling is based are the exhibits referred to earlier in these reasons. No oral evidence was given in the proceedings before the Tribunal. It follows, in my opinion, that a s.43(1) "decision in writing" for which, by s.43(2) the Tribunal "shall give reasons in writing" is merely one of the decisions within the meaning of the phrase "any decision of the Tribunal in that proceeding", the terms of which are set out in a document referred to in s.44.
In its general sense the meaning of the word "decision" appearing in the Shorter Oxford Dictionary is: "The action of deciding (a contest, question, etc.); settlement, determination; (with a and pl.) a conclusion, judgement: esp. one formally pronounced in a court of law 1552". See also re Dover & Kent County Council (1891) 1 Q.B. 725 and Reidy v. Herry (1897) 23 V.L.R. 508 where at p.510 Williams J. said:
"Now I take it that an adjudication or decision of justices is something which is announced but not what is passing in the minds of the justices. It is a decision announced in open court. That is their decision or adjudication."
In my opinion, when used in s.44 A.A.T. Act the word "decision" includes a formal conclusion announced by the Tribunal that it has jurisdiction to review a decision under the A.A.T. Act, and need not be limited to meaning the final conclusion or result of the proceeding.
Under s.44(1) A.A.T. Act a party to a proceeding before the Tribunal may appeal, on a question of law, "from any decision of the Tribunal in that proceeding". The emphasis is mine. The section does not refer to "the decision" of the Tribunal. The appeal is not limited to a decision:
"(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal"
but to "any decision of the Tribunal" in a proceeding before the Tribunal.
The Federal Court has held that the Tribunal has power to review a decision made by an administrator in purported exercise of a statutory power when in fact the administrator was not so empowered the Collector of Customs (N.S.W.) case, supra, and in particular per Bowen C.J. at pp.313-317 and per Smithers J. at pp.331-341. See also Calvin v. Carr (1979) 22 A.L.R. 417, Deputy Commissioner of Patents v. Board of Control of Michigan Technological University (1980) 28 A.L.R. 551 and Commonwealth of Australia v. Goodfellow, unreported, Federal Court 21 May 1980. The latter case concerned an "appeal" on a question of law from a decision of the Commonwealth Employees' Compensation Tribunal. In each of the Collector of Customs (N.S.W.) case and Goodfellow's case the relevant Tribunal had made a decision reviewing or reconsidering respectively an earlier decision by an administrator. In each case the Federal Court held that the Tribunal had jurisdiction to determine the question whether it had power to review or reconsider a decision, but that the Federal Court could determine on a question of law whether the Tribunal had the necessary power. In the Collector of Customs (N.S.W.) case Bowen C.J. at p.317 said:
"In the view which I take as to the meaning of s 25 of the Administrative Appeals Tribunal Act, these questions do not need to be decided. As I have said, in my opinion an applicant to the Tribunal has standing and the Tribunal "has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.
It may be that the nature of the legal question raised will be such that the Tribunal, although it has jurisdiction may consider it proper that the applicant should first approach a court for decision of the question. It may, in its discretion, decide to defer hearing the application until this is done. An appeal involving a constitutional question might well be such a case. However, this would not be because the Tribunal lacked jurisdiction.
In the present case the applicant established the necessary elements that there was a decision in fact and that it purported to be under an enactment or in exercise of powers conferred by an enactment, so the applicant had standing and the Tribunal had jurisdiction. When the applicant asserted the decision was legally invalid due to absence of power, he was mistaken in describing this as a 'Jurisdictional point'. The Tribunal had jurisdiction and was entitled to determine the legal question raised before it."
See also R. v. Judges of the Federal Court of Australia and Adamson; ex parte West Australian National Foodball League (Inc.) (1979) 23 A.L.R. 439 as to the various procedures that can be followed when an issue is raised concerning the jurisdiction of the Federal Court.
In the present case, both parties desired to have the jurisdictional issue determined as a preliminary issue "so that many hours are not spent preparing a case that might not be accepted by the Tribunal". The Tribunal made a decision that it had jurisdiction to review the decision of the Director-General. In my opinion the decision so made is a decision under s.44(1) A.A.T. Act. The Federal Court has jurisdiction to determine the jurisdictional question on an appeal under s.44(1) A.A.T. Act on a question of law after a final decision has been given by the Tribunal. It is appropriate that it should have jurisdiction to determine the same issue on an appeal on a question of law from a decision on a preliminary issue. I would answer the first question in the affirmative.
The other members of the Court are of opinion that the Federal Court does not have jurisdiction to hear and determine this appeal. The order of the Court will be in accordance with those opinions. In these circumstances it is undesirable that I should express an opinion on the question whether the decision of the Director-General of 14 April 1980 was a decision which, under the A.A.T. Act, the Tribunal had jurisdiction to review. Accordingly I refrain from expressing my opinion thereon.
On 22 May 1970, the Tribunal, after ruling that it had jurisdiction to review the decision of the Director-General, heard an application by the respondent "to stay the order of the suspension of Mrs. Chaney's pension pending the determination by" the Tribunal of the review of the decision of the Director-General. The application was made under s.41(2) A.A.T. Act which empowers the Tribunal or a presidential member to:
". . . make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review."
In deciding this application the Tribunal said:
". . . I should suspend the order as from the start of the next pension period until the hearing and determination of this review or order made prior to that date."
The Director-General under s.44(1) of the A.A.T. Act has appealed from that ruling. For reasons already expressed, in my opinion the Court has jurisdiction to hear and determine this appeal, but since the other members of the Court are of opinion that the Court does not have jurisdiction, I do not express my opinion on the question of law raised by the appeal.
The final matter for consideration concerns an appeal in the appellate jurisdiction of the Federal Court heard concurrently with the appeal from the Tribunal. On 4 June 1980 the Federal Court constituted by a single Judge, heard an application by the respondent made under s.44A(2) A.A.T. Act for an order staying or otherwise affecting any orders made by the Tribunal under s.41(2) of that Act. Section 44A(2) A.A.T. Act is as follows:
"44A.(2) Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:
(a) the decision of the Tribunal or a part of that decision; and
(b) the decision to which the proceeding before the Tribunal related or a part of that decision, as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal."
On the same day the Court made the following order:
"In pursuance of section 44A(2) of the Administrative Appeals Tribunal Act 1975 the order of Davies, J. be so affected that it operates to direct payment of the pension to Rosemary Chaney as from today (a pension day) until the hearing of the appeal or further order."
The Director-General has appealed from that order. Under s.24 Federal Court of Australia Act, the appeal is as of right.
The other members of the Court are of opinion that the word "decision" where first appearing in s.44A(2) A.A.T. Act should be given the restricted meaning which they gave to the word "decision" appearing in s.44(1) A.A.T. Act, and accordingly are of opinion that the condition precedent to the existence of the jurisdiction conferred by s.44A(2) has not been fulfilled. Accepting the fact that the Court has made an order that the appeal from the ruling of the Tribunal that it had jurisdiction to review the decision of the Director-General be dismissed, there is in existence no appeal from a decision of the Tribunal in which the Federal Court could make an order under s.44A(2) A.A.T. Act. For this reason I would dismiss this appeal as incompetent. I would make no order as to the costs of the appeal, see Order 52 Rule 18 Federal Court Rules.
JUDGE2
On 1 March, 1979 a decision was made by an officer of the Department of Social Security to suspend the payment of a widow's pension then being paid to the respondent. The respondent appealed from that decision to the Director-General of Social Services pursuant to s.15 of the Social Services Act, 1947. In accordance with internal departmental practice, her appeal was considered by the "Social Security Appeals Tribunal" which is an advisory body constituted, without express statutory basis, by the Department and which on 6 September, 1979 recommended, by majority, that the respondent's appeal be upheld. On 7 December, 1979, a Deputy Director-General of Social Services, acting as a delegate of the applicant Director-General of Social Services ("the Director-General"), approved a departmental recommendation that, notwithstanding the majority decision of the Social Services Appeals Tribunal, the respondent's appeal should be disallowed. At that time, no appeal to the Administrative Appeals Tribunal ("the Tribunal") lay from a decision of the Director-General or his delegate.
Representations, on behalf of the respondent, were made both to the Minister for Social Security and direct to the Director-General. As a result of those representations, the Director-General himself "reviewed the case". On, it would seem, 14 April, 1980, he decided to "confirm" that the respondent was not entitled to a widow's pension. The documents before the Court are equivocal as to whether what the Director-General confirmed was the original decision of 1 March, 1979 "suspending" the payment of pension, the decision of his delegate on 7 December, 1979, that the respondent's appeal be disallowed or both of those particular decisions. Those documents do, however, indicate a degree of confusion as to the relevant provisions of the Social Services Act, 1947 since it is stated, on a number of occasions, that the applicant's pension had been cancelled because she came "within the statutory definition of 'dependent female'" whereas, under the relevant definitions in s.59(1) of that Act, the effect of coming within the statutory definition of "dependent female" is to satisfy a qualification, and not to attract a disqualification, for a widow's pension.
On 1 April, 1980, the Administrative Appeals Tribunal (Social Services Act) Regulations had commenced operation. Those Regulations inserted Part XXIVA in the Schedule to the Administrative Appeals Tribunal Act, 1975, ("the Act"). The effect of the insertion of Part XXIVA was to confer upon an interested party a right, in the particular circumstances specified, to apply to the Tribunal for a review of a decision of the Director-General made on or after that date. On 28 April, 1980, the respondent lodged with the Tribunal an application for review of the "decision of the Department of Social Security to cancel Widow's Pension . . .". It is common ground between the parties that the decision which is the subject of the application to review is that made by the Director-General on 14 April, 1980.
On 22 May, 1980, the application for review came before the President of the Tribunal (Davies J). Counsel for the Director-General argued that the Tribunal had no jurisdiction to review the Director-General's decision of 14 April, 1980. The learned President, on the material before him, ruled that the Tribunal had jurisdiction to review the decision. An application was made, on behalf of the respondent, "to stay the order of the suspension of (the) respondent's) pension pending the determination by (the) Tribunal of the review". His Honour concluded that he should "suspend the order" until the hearing and determination of the review or further order. It is plain, from a persual of the transcript, that it was his Honour's intention that the respondent should, under the interim order which he made, be entitled to receive the widow's pension pending the determination of the application for review or further order. The view was however taken by the Director-General that, as a matter of language, the interim order failed to achieve that result.
On 28 May, 1980, the Director-General caused a notice of appeal to be lodged in the registry of this Court. According to that Notice of Appeal the Director-General appealed from the "following decisions" of the President of the Tribunal:
"(a) His decision that the Tribunal had jurisdiction to entertain the application for review then before it.
(b) His decision to suspend the decision of the applicant of 14 April 1980".
On 4 June, 1980, in pursuance of an application made on behalf of the respondent, Bowen C.J., ordered that the interim order of the President operate "to direct payment of the pension to (the respondent) as from today (a pension day) until the hearing of the appeal or further order". This interim order were made in purported pursuance of s.44A(2) of the Act. On 12 June, 1980, the Director-General lodged a supplementary notice of appeal in which he appealed from that order of the Chief Judge.
The argument on the hearing of the appeal to this Court was concerned with four issues. I shall mention them in the order in which it is convenient to deal with them. The first issue involves the question of the competence of an appeal to this Court either from the preliminary ruling of the President of the Tribunal that the Tribunal possessed jurisdiction to review the Director-General's decision of 14 April, 1980 or from the interim order of the President staying the operation of that decision of the Director-General. The second issue is whether, on the assumption that such an appeal is competent, the preliminary ruling of the learned President as to jurisdiction was affected by error of law. The third issue, again on the assumption that the appeal is competent, raises the jurisdiction of the President of the Tribunal to make the interim order which he made. The fourth issue is whether the interim order of the Chief Judge was warranted by the provisions of s.44A(2) of the Act.
This Court does not possess general supervisory jurisdiction over the Tribunal. It possesses no power to intervene by prerogative writ to prevent the Tribunal exceeding its jurisdiction in dealing with an application for review. Jurisdiction, in that regard, is currently possessed by the High Court of Australia and by that Court alone. The jurisdiction of this Court in relation to proceedings before the Tribunal is that conferred by s.44, s.44A and s.45 of the Act. For present purposes, that jurisdiction is the jurisdiction to hear and determine, in the original jurisdiction of the Court, an "appeal . . . on a question of law, from any decision of the Tribunal" in a proceeding before the Tribunal (s.44), the jurisdiction to hear and determine any question of law referred to it by the Tribunal (s.45) and the jurisdiction to make interim orders in a case where an appeal from a decision of the Tribunal has been instituted (s.44A).
It is apparent that the Tribunal has not, at this stage, purported to make any determination disposing of the application for review which has been made to it. All that has happened is that the Tribunal has made a ruling on a preliminary question of jurisdiction and has made an interim order pending the determination of the application for review. The preliminary ruling did no more than assert the Tribunal's authority to embark on the hearing and determination of the review on the merits and the interim order, if validly made, was "for the purpose of securing the effectiveness of" that hearing and determination (s.41(2)). It may be that further information placed before the Tribunal as the hearing proceeded may have led the Tribunal to alter its views on the question of jurisdiction or to revoke or vary the interim order which it had made. In these circumstances, the question which arises under the first issue is whether the grant to the Court of jurisdiction to hear and determine an appeal on a question of law "from any decision of the Tribunal" is restricted to an appeal from a decision of the Tribunal which effectively disposes of an application for review or whether the "decision" in respect of which such an appeal may be entertained by the Court has a wider meaning such as, for example, to include any decision or ruling expressed or made by the Tribunal as a preliminary to, or in the actual course of, the hearing of the proceeding before it. The answer to that question depends upon the meaning to be given to the word "decision" in s.44(1) of the Act. That sub-section provides:
"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".
The word "decision" is a word of indeterminate meaning. In some contexts, it can refer to the mental process of making up one's mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word "decision" may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word "decision" has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate (see, e.g., Registrar of Workers' Compensation Commission v. F.A.I. Insurances Limited (1977) 1 N.S.W.L.R. 422 at p. 448) or be limited to referring only to a determination which effectively disposes of the matter in hand (see, e.g., Winter & Anor. v. Winter (1933) N.Z.L.R. 289 at p. 295; Penniel v. Driffill (1980) W.A.R. 31 at p. 32).
In The Commonwealth v. Bank of New South Wales ((1949) 79 C.L.R. 497), their Lordships of the Privy Council made some comments as to the meaning of the word "decision" in the context of s.74 of the Constitution which refers to an "appeal . . . from a decision of the High Court". They said (ibid, at p. 625):
""Decision" is an apt compendious word to cover "judgements, decrees, orders and sentences", an expression that occurs in s.73. It was used in the comparable context of the Judicial Committee Acts of 1833 and 1943 as a general term to cover "determination, sentence, rule or order" and "order, sentence or decree". Further, though it is not necessarily a word of art, there is high authority for saying that even without such a context the "natural, obvious and prima-facie meaning of the word 'decision' is decision of the suit by the Court": see RAJAH TAFFADDUQ RAFU KHAN v. MANIK CHAND (1902) L.R. 30 Ind. App. 35 where the question was whether in the Indian Civil Procedure Code "decision" meant the formal expression of an adjudication in a suit or the statement given by the Judge of the grounds of a decree or order, and Lord Davey, delivering the opinion of this Board, used the words that have been cited above".
Whether "decision" in s.44(1) should be given the limited "natural and primary" meaning (ibid, at p. 626) to which their Lordships refer, namely, the decision or determination of the overall application for review, must be determined by reference to the context which the sub-section and the Act provide.
Section 3(3) of the Act defines a reference in the Act to a "decision" as including a reference to a litany of activities of both a positive and negative nature culminating in "doing or refusing to do any other act or thing". The provisions of s.3(3) would seem more apposite to define a reference to the substantive "decision" of the original decision maker than to confine the scope of a reference to a "decision" of the Tribunal upon review. Subject to that qualification, the specific activities mentioned in the definition in s.3(3), which are in the nature of effective action rather than intermediate "decision" on the path to such action, provide some indication that a reference to "decision" in the Act is, prima facie, a reference to the ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination. The indication which s.3(3) provides to that effect is, however, slight.
Tending in a contrary direction is the use of the word "any" in the phrase "from any decision of the Tribunal" in s.44(1). The use of "any", in preference to "the" or "its" which qualify the word in preceding sections (s.43, s.43A), tends to indicate that the word "decision" is used in a wide sense in s.44(1). On the other hand, the use of "any" can be explained both by the fact that the sub-section follows the specification in s.43(1) of a range of alternative ultimate decisions which may be given by the Tribunal and by the fact that it is possible that one proceeding before the Tribunal could involve the review of a number of connected decisions by the original decision maker with the consequence that the proceeding before the Tribunal called for a number of ultimate decisions each of which effectively disposed of a separate part of the proceedings (see, for example, Sullivan v. Department of Transport (1978) 20 A.L.R. 323 where the grant of two distinct licences was in issue). In the result, any indication provided by the qualifying word "any" as to the scope of the word "decision" in s.44(1), is, likewise, slight.
Nor is any compelling guidance to be obtained from the use of the word "decision", in relation to the Tribunal, in other sections of the Act. In the two sections immediately preceding s.44(1) (s.43 and s.43A), the word is clearly used in the narrow sense of the operative or ultimate decision: in the latter of the two sections (s.43A), the word is so used in a reference to "an appeal from the decision of the Tribunal". The guidance provided by this use of the word "decision" in the two sections immediately preceding s.44 is somewhat diminished, however, by the fact that the word is used in a wider sense in s.42 where reference is made to "the decision" on "any question" of law arising in the proceeding.
Ultimately, one must turn for assistance to the substantive content of the provisions of s.44 in the context of the scheme of the Act as a whole.
As has been mentioned, the Tribunal is not subjected to the general supervisory jurisdiction of this Court. It is subject to the prerogative writs which may, in an appropriate case, be directed to it by the High Court. Otherwise, the general scheme of the Act appears to be that the Tribunal will proceed to hear an application for review until completion of the hearing and, upon such completion, render its decision in the manner prescribed by s.43 of the Act and comply with the requirements of that section as to service of a "copy of its decision". Any question of law arising in the course of the proceedings is to be determined by the Tribunal in the manner prescribed in s.42 unless the Tribunal itself thinks it appropriate to seek the opinion of this Court during the currency of the proceedings when, either on its own motion or at the request of a party to the proceedings, it may refer a question of law for the decision of the Court.
Section 46 of the Act plainly indicates that an appeal to the Federal Court would, if it could be brought at any intermediate stage, involve disruption of the proceedings before the Tribunal in that, upon the institution of an appeal in accordance with s.44, the Tribunal is obliged to cause to be sent to the Court "all documents that were before the Tribunal in connexion with the proceeding to which the appeal or reference relates". It would seem unlikely that it was the legislative intent that any party to a proceeding should be entitled to disrupt its orderly hearing before the Tribunal by instituting an appeal, as of right, from any of the various "decisions", involving a question of law, which the Tribunal might find itself called upon to make in the course of dealing with the proceeding before it and which might ultimately prove irrelevant to the final operative decision. In the context of the clear right to appeal, on a question of law, from the ultimate decision of the Tribunal and of the intermediate procedure of stating a question of law for the decision of this Court, it would seem more likely that it was the legislative intent to limit judicial intervention during the actual hearing before the Tribunal to the supervisory, and, to some extent, discretionary, jurisdiction provided by the prerogative writs.
The provisions of s.44 themselves tend to indicate that the decision of the Tribunal from which an appeal may be brought, as of right, to this Court is the final decision which disposes of the proceedings and which will have been reduced to writing and served upon the parties in accordance with s.43 of the Act. Sub-section 2A, which was inserted in s.44 by the amending Act of 1977, provides that an appeal to the Tribunal shall ordinarily be instituted not later than the twenty eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person desiring to appeal. One would neither anticipate that an intermediate decision, which was reached in the course of the conduct of proceedings, would be reduced to writing nor expect that separate times for appeal would run in respect of each such intermediate decision on the path to ultimate or operative decision. In addition, s.44(2) seems to assume that special provision was necessary to provide an appeal from a "decision" of the Tribunal that the interest of an applicant for review or an applicant to be made a party are not affected by the decision which it is sought to have the Tribunal review.
It should be stressed that the issue is not whether, after the Tribunal has determined the application for review, an appeal lies to this Court on every ruling or adjudication upon a question of law which proves to be part of the structure of the ultimate decision. The issue is whether such an appeal lies, instanter, from a ruling or adjudication upon the road to ultimate decision regardless of whether that ruling or adjudication may prove irrelevant to the ultimate decision or whether further evidence, increased understanding or, indeed, plain reconsideration may lead to its reversal by the Tribunal itself before the ultimate decision is delivered. It may be suggested that the proliferation of opportunities to appeal should be seen as a safeguard of the rights of the individual subject. Such a suggestion would, in my view, be misconceived. Indeed, if the view propounded on behalf of the Director-General in the present matter, namely, that an appeal lies as of right from every intermediate decision on a question of law in the course of the hearing by the Tribunal of an application to review, be accepted, the result would be that the individual subject who challenged a decision of the Executive before the Tribunal would not only have no assurance of an orderly and reasonably prompt resolution of his or her case by the Tribunal but that, in confronting the Executive even if only to claim a widow's mite, he or she would be stepping into a maze in which the financial ruin of a myriad of possible appeals awaited at the whim of those who fund their enthusiasm for the fray not from their own purses but from the long purse of Government (cf. per Jordan C.J., In re the Will of Gilbert, (1946) 46 S.R. (N.S.W.) 318 at p. 323).
The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s.44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s.43 of the Act. The qualifications referred to are an appeal pursuant to s.44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent "decisions" may properly be given.
As has been said, the ruling that the Tribunal had jurisdiction to hear the application for review simply asserted the Tribunal's jurisdiction to continue to hear the application on the merits. That ruling did not effectively dispose of the proceedings or any independent part thereof. It was not, in my view, a decision from which an appeal lay, on a question of law, to this Court pursuant to the provisions of s.44(1) of the Act. In the event that the Tribunal adheres, in the light of all the evidence, to its present ruling that jurisdiction exists and ultimately decides to set aside or vary the decision of the Director-General, an appeal will lie from that ultimate decision of the Tribunal on any question of law involved in the ruling for the reason that the assertion as to jurisdiction will constitute part of the structure of such an ultimate decision. The position would, of course, have been different if the ruling had gone the other way and the Tribunal had held that it had no jurisdiction to deal with the matter. In that event the decision of the Tribunal would have effectively disposed of the proceeding before it.
It was suggested in argument that to give to the word "decision" in s.44(1) of the Act the limited meaning which I would give it would be contrary to the decisions of this Court in Deputy Commissioner of Patents v. Board of Control of Michigan Technological University (1980) 28 A.L.R. 551 and Collector of Customs (NSW) v. Brian Lawler Automotive Pty. Limited (1979) 24 A.L.R. 307. Examination of those cases discloses, however, that the question of the jurisdiction of this Court was not raised in Deputy Commissioner of Patents v. Board of Control of Michigan Technological University (supra) and that the decision of the Tribunal from which an appeal was brought in Collector of Customs (NSW) v. Brian Lawler Automotive Pty. Limited (supra) was, in fact, a final determination which effectively disposed of the proceedings before the Tribunal.
Nor, in my view, was the interim order made by the Tribunal suspending the operation of the decision of the Director-General, a decision of the Tribunal from which an appeal properly lay to this Court pursuant to s.44 of the Act. The fact that such an order has independent operative effect does not, in the circumstances, warrant further qualification of the general rule that an appeal under s.44(1) only lies from the determination effectively disposing of the proceeding before the Tribunal. Indeed, the power to make such an interim order pursuant to s.41(2) of the Act is, in terms, for the purpose of securing the effectiveness of the hearing and determination by the Tribunal of the application for review and could hardly have been intended to provide the occasion whereby the hearing and determination of an application for review could be frustrated and delayed by preliminary appeals brought, as a matter of right, upon any question of law that might happen to be involved in the making of an interim order.
In the result, the respondent should succeed on the first issue raised by the appeal and the appeal from the ruling and the interim order made by the President of the Tribunal should be dismissed as incompetent. It is unnecessary and, in my view, undesirable that the Court express any view on the second and third issues which have been debated before us, namely, whether it has been shown that, as a matter of law, that ruling or that interim order was wrong.
There remains for consideration the question whether the Chief Judge of this Court had jurisdiction to make an interim order that the respondent be paid a widow's pension pending the hearing of the appeal to this Court. It is not disputed that an appeal from that order of the Chief Judge lies to this Court pursuant to the provisions of s.24 of the Federal Court of Australia Act, 1976.
Section 44A(2) of the Act provides:
"Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:
(a) the decision of the Tribunal or a part of that decision; and
(b) the decision to which the proceeding before the Tribunal related or a part of that decision,
as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal".
The Federal Court of Australia is a superior Court of record. The fact that a purported appeal is incompetent and that the Court has no jurisdiction to deal with the substantive merits of the appeal does not mean that the Court has no jurisdiction whatever in relation to the proceedings. On the contrary, the Court is plainly empowered to dismiss the proceedings for want of jurisdiction and an order to that effect is an effective order in the proceedings. By the express provisions of s.43 of the Federal Court of Australia Act, 1976, the Court has jurisdiction to award costs "in" the proceedings before it notwithstanding the fact that the proceedings must properly be "dismissed for want of jurisdiction". If the provisions of s.44A(2) of the Act conferred power to make an interim order in any case "where an appeal is instituted in the Federal Court of Australia", they would, in my view, confer jurisdiction to make such an order regardless of whether the appeal to the Court was ultimately found to be incompetent. Examination of the terms of the grant of jurisdiction contained in s.44A(2) discloses, however, that the grant of jurisdiction is more narrowly confined.
The condition precedent to the existence of the power to make an interim order pursuant to s.44A(2) of the Act is that "an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal". The word "decision" in the context of s.44A(2) of the Act should, in my view, be given the restricted meaning which I have found to be appropriate to it in the context of s.44 of the Act. I have already expressed the conclusion that neither the ruling of the learned President as to jurisdiction nor the interim order which he made was a "decision" from which an appeal lay pursuant to s.44 of the Act. It follows that the appeal to this Court was not, for the purposes of s.44A(2) of the Act, "an appeal . . . from a decision of the Tribunal" and that the condition precedent to the existence of the jurisdiction granted by s.44A(2) was not fulfilled. The order made by the Chief Judge was not, in the circumstances, warranted by the provisions of s.44A of the Act. The appeal from that order should be upheld and the order should be set aside.
In the result, I would dismiss the appeal from the ruling and interim order of the learned President of the Tribunal. I would order that the applicant Director-General pay the respondent's costs of the appeal from that ruling and interim order of the learned President. I would uphold the appeal from the interim order made by the Chief Judge and order that that interim order be set aside.
The particular ground upon which I would uphold the submission that the interim order made by the Chief Judge was not warranted by the provisions of s.44A(2) of the Act was not advanced on behalf of the appellant Director-General either before this Court or, presumably, before the Chief Judge. The reason for that was that that ground involved a finding that the Director-General's primary appeal was incompetent. In effect, the conclusion which I have reached as regards that interim order involves upholding a general submission advanced by the Director-General on the supplementary appeal on a ground advanced against him on the primary question of jurisdiction involved in the main appeal. In these circumstances, it appears to me that the appropriate course is to make no order as to the costs of the supplementary appeal from the interim order made by the Chief Judge.
JUDGE3
In this matter I have had the advantage of reading the reasons for judgment of Deane J., and I agree with those reasons and his conclusion that an appeal from the preliminary ruling of the President that the Tribunal possesses jurisdiction is incompetent. Such conclusion denying a right of appeal to this court on the preliminary ruling at this stage of the proceedings before the Tribunal conforms, in my opinion, not only with the scheme of the Administrative Appeals Tribunal Act 1975 ("the Act") and its true construction but also with the restraint properly accepted by courts when appeals from administrative tribunals are limited to errors of law. In such circumstances it is generally considered inappropriate for courts to intervene until the statutory process is completed. Section 43A(1)(a) of the Act lends some support to this view.
Under the Act the statutory process is complete when the Tribunal either decides to refuse to review the decision of the Administrator or makes a decision in writing affirming, varying or setting aside the decision (s.43(1)). In my opinion, it is such a decision as aforementioned which the legislature has in mind in conferring on this court by s.44(1) a right to hear an appeal on a question of law "from any decision of the Tribunal in that proceeding".
If a question of law arises in the proceedings before the Tribunal which the parties or a party see as fundamental to the determination of the review, the procedure in the Act (s.45(1)) for reference of that question of law by the Tribunal to this court is available. In this way the jurisdictional issue in this matter could, if the Tribunal considered it appropriate, have been determined as a preliminary issue "so that many hours are not spent preparing a case that might not be accepted by the Tribunal".
For the same reasons I agree with Deane J. that the appeal against the interim order made by the Tribunal is incompetent and should be dismissed.
In respect of the interim order made by the Chief Judge of this court in pursuance of s.44A(2) of the Act somewhat different considerations apply. There was on the hearing before the Chief Judge a purported appeal under s.44(1) of the Act, to which neither party either took exception or raised any question as to its competence. Admittedly the parties could not confer jurisdiction on the court by consent, but in the circumstances the Chief Judge was justified in proceeding to make such interim order as he considered "appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal". If, as is my opinion, no appeal had been validly instituted because the Tribunal had not made an appealable decision, it follows that the interim order must go once this court comes to a decision denying the validity of the appeal.
The appeal from the interim order of the Chief Judge must be allowed and the order set aside.
I agree with the orders in respect of the costs of the appeals proposed by Deane J.
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