Druett v Administrative Appeals Tribunal

[2003] FCA 277

FEDERAL COURT OF AUSTRALIA

Druett v Administrative Appeals Tribunal [2003] FCA 277

GARRY KEITH DRUETT V ADMINISTRATIVE APPEALS TRIBUNAL
N 88 OF 2003

JACOBSON J
25 MARCH 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 88 OF 2003

BETWEEN:	GARRY KEITH DRUETT APPELLANT
AND:	ADMINISTRATIVE APPEALS TRIBUNAL RESPONDENT
JUDGE:	JACOBSON
DATE OF ORDER:	25 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Appeal dismissed.

2.Appellant to pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 88 OF 2003

BETWEEN:	GARRY KEITH DRUETT APPELLANT
AND:	ADMINISTRATIVE APPEALS TRIBUNAL RESPONDENT

JUDGE:	JACOBSON
DATE:	25 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Administrative Appeals Tribunal dated 15 January 2003 in which the Tribunal held that it had no jurisdiction under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the Act") to hear the applicant's complaints.

2. The applicant is Mr Garry Keith Druett.  He has appeared this morning before me in person.  He has named as the respondent to the appeal, the "Departments of Health and Family and Community Services."  However, no respondent was named or identified in the application before the Tribunal.

3. When the matter was called on for hearing this morning, Mr Greg Peek, solicitor for the respondent, announced his appearance as a friend of the court.  He appeared today on the instructions of the Administrative Appeals Tribunal.  Mr Peek submitted that the named Departments should be removed as a party to the appeal because it was not named as a party before the Tribunal.  He did not take any point as to the question of whether the respondent Departments were accurately identified in the notice of appeal.

4. Mr Peek suggested that an appropriate course for me this morning may be to join the Administrative Appeals Tribunal as a nominal respondent.  He said that consistent with R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, if I joined the Tribunal as a respondent, the Tribunal would not take an active role in defending the decision under appeal.

5. It seems to me that the course outlined by Mr Peek is an appropriate one to follow.  Accordingly, in accordance with O 6 r 9 of the Federal Court Rules, I order that the "Departments of Health and Family and Community Services" be removed as a party to these proceedings.  I also order in accordance with the rules that the Administrative Appeals Tribunal be substituted as a respondent to the appeal.  I note that the Tribunal is to be no more than a nominal respondent to the proceedings.

6. Mr Druett's submissions to me this morning were substantially to the effect that this proceeding is really a complaint about the way in which various complaints made by him to the Blacktown Hospital and the Health Commission have been handled, in particular, in relation to a complaint which he made about the birth of his son Gregory Druett at Blacktown Hospital in 1993.

7. In order to understand Mr Druett's submission, and indeed to put the decision of the Tribunal which is under attack in its context, it is necessary to refer to some documents put to me by Mr Druett.  These documents were not in evidence before the Tribunal but it seemed to me to be appropriate to take a flexible approach to this matter and to admit them.  Mr Peek's submissions in this regard were helpful and he did not object to a flexible approach to the admission of the documents which would not ordinarily be admissible in evidence in an application such as this.

8. Mr Druett is a married man.  He and his wife have four children.  Gregory was born with brain damage at Blacktown Hospital in 1993 and Mr Druett has made numerous complaints about the treatment of Gregory at the Blacktown Hospital.  The complaints seem to have been made in about 1996 and 1997.  Mr Druett alleged that Gregory was accidentally overdosed at birth with a combination of drugs including morphine. 

9. During 1998, Mr Druett's complaints were considered by a hospital committee known as the Independent Complaints Review Committee.  In September 1998, the Committee seems to have come to the view that the complaints made by Mr Druett may have been amenable to conciliation.  Blacktown Hospital consented to this course of action.  Mr Druett initially consented to conciliation but later withdrew his consent.  The matter was referred to the Western Sydney Area Health Service but it appears that the way in which the complaint was handled was not satisfactory to Mr Druett.

10. In 1998 the New South Wales Department of Community Services removed all of Mr and Mrs Druett's four children from their care without their consent.  Two of the children other than Gregory appear to have disabilities and this may have been a factor in why the children were removed from the custody of their parents.  I note that in the documents tendered by Mr Druett, there is reference to the fact that Mr and Mrs Druett were under treatment for heroin addiction and were being prescribed methadone.  I do not know whether this was a factor in the action taken by the Department of Community Services and it is unnecessary for present purposes to deal with that.

11. Mr Druett told me today that he has made numerous complaints, apparently to New South Wales Government departments, in an endeavour to either have his children returned to their parents or at the very least, to make contact with them.  Mr Druett has also brought various proceedings relating indirectly to the removal of the children from the care of their parents.  One of the proceedings was an application which was dealt with in three judgments of Raphael FM and which were appealed to, Hely J and dealt with in proceedings entitled Druett v Secretary, Department of Family and Community Services [2002] FCA 614. Mr Druett was unsuccessful in the proceedings and a special leave application has been made to the High Court.

12. Mr Druett has also brought proceedings in the Industrial Commission alleging wrongful dismissal.  I gather that those proceedings were also unsuccessful.

13. In summary therefore, it appears that Mr Druett has had over a number of years, what may be called a large number of complaints which he wished to have addressed in the Administrative Appeals Tribunal.  He says that the various complaints which he has made over the years have not been properly dealt with on the merits.

14. The Tribunal invited Mr Druett to identify the decision in relation to which he sought review.  The Tribunal noted at par 2 of its decision that Mr Druett conceded in the course of the hearing that he was unable to point to anything in writing by a Commonwealth agency but he referred to the cancellation of his family allowance which he noted was presently the subject of an application to the High Court.  This seems to be a reference to the proceedings heard by Raphael FM, and on appeal by Hely J.

15. The Tribunal stated at par 2 that Mr Druett had referred to his belief that his son had been brain damaged while in hospital and that this complaints about this to the Health Care Complaints Commission had not been adequately responded to.  This is a reference to the complaints which I have mentioned above about the birth of Gregory. 

16. The Tribunal notes at par 3 of its decision that Mr Druett identified a number of complaints against Medicare.  It is unnecessary for me to set out the matters which were identified in par 3 of the Tribunal's decision. 

17. The substance of the reasons given by the Tribunal is to be found in par 5 of the decision. The Tribunal observed that the Act itself does not set out the decisions that may be reviewed by the Tribunal. Instead s 25 of the Act states that an enactment may provide for review of decisions made in the exercise of powers conferred under that enactment or conferred by a statutory instrument. Thus, as the Tribunal noted at par 5 of its reasons, in order to determine whether the Tribunal has jurisdiction to review a decision, it is necessary to identify the legislation which governs the original decision. As the Tribunal observed, there are approximately 330 different pieces of legislation under which the Tribunal is given jurisdiction to review an administrative decision but the legislation does not confer jurisdiction in relation to every decision made under each separate piece of legislation. Accordingly, care must be taken to ensure that jurisdiction has in fact been given to the Tribunal in relation to the particular decision which is under consideration.

18. Paragraph 6 of the Tribunal's reasons are important.  There the Tribunal said that having regard to Mr Druett's contentions, the Tribunal reviewed relevant legislation to see whether the legislation provided for the Tribunal to have jurisdiction in relation to a decision made under an enactment.

19. The Tribunal pointed out at par 7 of its reasons that the legislation which governs Medicare does not provide for a review of any decisions made under the legislation, that is to say, the legislation does not provide for review by the Tribunal nor does the National Health Act 1953 (Cth) relate to the complaints made by the applicant. The Tribunal further observed that no other Commonwealth legislation was found to be relevant to Mr Druett's complaints.

20. For those reasons, the Tribunal found at par 8 that it had no jurisdiction under s 25 of the Act to hear Mr Druett's complaints.

21. In my opinion the decision of the Tribunal was correct. Certainly I can see no error of law in the approach taken by the Tribunal. The approach which the Tribunal took was, it seems to me, in accordance with the provisions of the Act, and in particular ss 25 (1) and 25 (4) of the Act.

22. This morning, I asked Mr Druett whether he could point to any decision under any enactment which would indicate that the Tribunal made an error of law in coming to the view that it did not have jurisdiction to hear his complaint.  Mr Druett said that he could not direct me to anything to show that the Tribunal was in error.

23. It follows that the appeal must be dismissed with costs and I so order.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             31 March 2003

Appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 March 2003
Date of Judgment:	25 March 2003