Gadzikwa v Comcare

Case [2020] FCA 1560

FEDERAL COURT OF AUSTRALIA

Gadzikwa v Comcare [2020] FCA 1560

Appeal from: Gadzikwa v Comcare [2020] FCA 1205
File number: VID 602 of 2020
Judgment of: KERR J
Date of judgment: 28 October 2020
Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory decision of the Federal Court of Australia finding incompetent a purported appeal from an interlocutory decision of the Administrative Appeals Tribunal not to issue certain summonses – Federal Court of Australia Act 1976 (Cth) s 24(1A) – application of principle established by Full Court in Director-General of Social Services v Chaney [1980] FCA 2163; 47 FLR 80 that as a general proposition an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) lies only from a decision which constituted the effective decision or determination of the application for review in the Tribunal – decision of primary judge not attended by sufficient doubt to warrant it being reconsidered by a Full Court – no substantial injustice in refusing leave as other avenues for seeking review of the conduct and/or decisions of the Tribunal available to the Applicant – application dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 40A, 43, 44(1)

Federal Court of Australia Act 1976 (Cth) ss 24(1A), 43(1)

Pearce DC, Administrative Appeals Tribunal (4th ed, LexisNexis Butterworths, 2015)

Cases cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170

Ah-Chee v Stuart [2019] FCAFC 165

Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321

Australian Postal Commission v Hayes (1998) 23 FCR 320

Commissioner of Police, New South Wales v Guo [2016] FCAFC 62; 332 ALR 236

Director-General of Social Services v Chaney [1980] FCA 2163; 47 FLR 80

Douglass v Administrative Appeals Tribunal [2017] FCA 1105

Duncan v Hotop [2002] FMCA 37

Ellis v Scentre Shopping Centre Management (WA) Pty Ltd trading as Westfield Shoppingtown Carousel Pty Ltd [2018] FCA 336

Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877

MDXJ v Secretary, Department of Social Services [2019] FCA 2163

Mladenov v Secretary, Department of Social Services [2015] FCA 1472

Phillips v Inspector-General in Bankruptcy [2011] FCA 612

Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18

Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 241
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 76
Date of hearing: 20 October 2020
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Ms C Dowsett
Counsel for the Respondent: Australian Government Solicitor

ORDERS

VID 602 of 2020
BETWEEN:

TAWANDA GADZIKWA

Applicant
AND:

COMCARE

Respondent

ORDER MADE BY:

KERR J

DATE OF ORDER:

28 OCTOBER 2020

THE COURT ORDERS THAT:

1.The application for leave to appeal from the interlocutory decision made by the primary judge in upholding an objection to competency in Gadzikwa v Comcare [2020] FCA 1205 be dismissed.

2.The…

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AGLC
Gadzikwa v Comcare [2020] FCA 1560
Case
[2020] FCA 1560
Decision Date

CaseChat Overview and Summary

Gadzikwa v Comcare involved a dispute over the competency of an appeal from an interlocutory decision by the Administrative Appeals Tribunal (AAT). Mr. Gadzikwa sought to appeal the AAT's decision not to issue certain summonses, which Comcare contested on the grounds that the decision was not appealable. The Federal Court was asked to determine whether the appeal was competent under the Administrative Appeals Tribunal Act 1975 (Cth).

The central legal issue was whether the AAT's interlocutory decision not to issue summonses constituted a "decision" for the purposes of an appeal under section 44 of the AAT Act. The court had to consider established principles regarding the types of decisions that are appealable and whether the AAT's interlocutory ruling fit within those categories. Additionally, the court needed to determine if refusing leave to appeal would cause substantial injustice to the applicant, given other available avenues for review.

In ruling on the matter, Collier J held that the AAT's interlocutory decision was not a final or determinative decision of the proceedings and thus not appealable under section 44(1) of the AAT Act. The court found that the decision did not effectively determine the substantive application before the AAT. The judge dismissed the appeal as incompetent and concluded that there was no substantial injustice in denying leave to appeal, as other review options were available to Mr. Gadzikwa. The decision emphasized that interlocutory decisions, such as the refusal to issue summonses, are generally not subject to appeal under section 44 of the AAT Act.

The court dismissed the application for leave to appeal, and Mr. Gadzikwa was ordered to pay Comcare's costs associated with the application. The ruling underscored the importance of distinguishing between interlocutory and final decisions when considering appeals from AAT rulings.

Orders

Orders of the court

1. The application for leave to appeal from the interlocutory decision made by the primary judge in upholding an objection to competency in Gadzikwa v Comcare [2020] FCA 1205 be dismissed.

2. The Applicant is to pay the Respondent’s costs of and incidental to the application, as agreed or in default of agreement as assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 20 March 2020, at Mr Gadzikwa’s request, the Tribunal published written reasons for its interlocutory ruling: Gadzikwa and Comcare (Compensation) [2020] AATA 631. THE PRIMARY JUDGE’S DECISION On 17 April 2020, Mr Gadzikwa filed a notice of appeal from the Tribunal’s decision in this Court. On 11 May 2020, Comcare filed a notice of objection to the competency of the appeal on the following ground: 1.The decision of the Administrative Appeals Tribunal of 18 March 2020 from which the applicant seeks to appeal to this Court is not a “decision” for the purposes of s44 of the Administrative Appeals Tribunal Act 1975 and therefore not amenable to an appeal under s 44 of that Act. On 21 August 2020, Collier J ordered that the notice of objection to competency be upheld and dismissed the appeal: Gadzikwa v Comcare [2020] FCA 1205.Disposition of the notice of objection to competency Collier J held that the meaning of a “decision” in s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) appeared to be settled. Her Honour cited in that regard Besanko J’s summary of the relevant authorities in MDXJ v Secretary, Department of Social Services [2019] FCA 2163 (MDXJ) at [15]. Her Honour then summarised the relevant principles, as follows: •Not all decisions of the Tribunal are decisions within the meaning of s 44(1) of the Act;•As a general proposition, 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 in the Tribunal;•Qualifications to the general proposition concerning the meaning of “effective decision” were explained by Deane J in Chaney 47 FLR 80, namely either(a)an appeal pursuant to s 44(2) of the Act from a decision of the Tribunal that the interests of a person are not affected by the decision, or (b)where the proceeding before the Tribunal could properly be divided into two or more separate parts, in respect of which independent “decisions” could properly be given.•Interlocutory decisions of the Tribunal are generally not “decisions” which can be appealed under s 44(1) of the Act. It is convenient to reproduce in full her Honour’s application of those principles to the issue raised by Comcare’s notice of objection to competency, as follows: 17Against the background of these principles, and the contentions of the parties, I find as follows.18First, it is clear that the decision n [sic] of the Tribunal of 18 March 2020 refusing Mr Gadzikwa’s application to issue summonses was an interlocutory decision of the Tribunal. It was not a decision of the Tribunal which was the effective decision or determination of the application for review before the Tribunal, as explained by the Full Court in Chaney 47 FLR 80. Although Mr Gadzikwa took issue with alleged injustice on the part of the Tribunal in its refusal to issue the summonses, he did not suggest that this refusal effectively determined his application to review the Reviewable Decision before the Tribunal. Indeed, in the circumstances described by the Tribunal, namely where approximately 850 pages of material in total had been filed by the parties, it is difficult to see how the absence of further documents or witnesses appearing in Court could have effectively determined the proceedings.19Second, and further to this point, there is no suggestion that the qualifications to the general principle identified by the Full Court in Chaney 47 FLR 80 were applicable in this case. In particular, there is no suggestion that the proceeding before the Tribunal was divisible into two or more separate parts in respect of which independent “decisions” could properly be given, or were given, by the Tribunal in the decision of 18 March 2020.20Third, to the extent that Mr Gadzikwa claimed “injustice” on the part of the Tribunal in refusing to issue the summonses, the structure of the Act requires that any complaint Mr Gadzikwa sought to pursue in respect of that issue by way of appeal could only be after the conclusion of the substantive proceedings in the Tribunal.21Fourth, although Mr Gadzikwa relied on the High Court decision of Adam P Brown 148 CLR 170, I do not accept his submission that the case is authority for the proposition that the present appeal is competent. The appeal in Adam P Brown 148 CLR 170 concerned an interlocutory decision of the Federal Court of Australia, the subject of appeal to the Full Court and then the High Court. As the majority explained in Adam P Brown 148 CLR 170:9.Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error principle, but the decision appealed from must work a substantial injustice to one of the parties…10.… Considerable argument was directed to the question whether a court has power, otherwise than in the case of mistake operative at the time of giving it to release a party from an undertaking, at least in the absence of the consent of the other party. But in our opinion a court undoubtedly has such a power. Just as an interlocutory injunction continues "until further order", so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust(Emphasis added.)22The present case is not an example of circumstances where the Court is tasked with exercising control over its interlocutory orders. Rather, the appeal before this Court is an application, in the original jurisdiction of the Court, subject to the statutory framework put in place by the Act. The decision of the Tribunal the subject of the present proceedings was an administrative decision. This Court has found repeatedly that the Act confines appeals against decisions of the Tribunal to those which effectively determine the proceedings, and indeed fall within the scope of s 43(1) of the Act. 23 In my view the principles set out in Adam P Brown 148 CLR 170 are not applicable to the present appeal.24Fifth, there is ample authority that a decision of the Tribunal refusing the issue of summonses is not a “decision” which can be the subject of an appeal in accordance with s 44(1) of the Act – and in particular I note the decisions in Yao [2010] FCA 18, Phillips v Inspector General in Bankruptcy [2011] FCA 612 and Douglass [2017] FCA 1105.25Sixth, Mr Gadzikwa contended that Deane J in Chaney 47 FLR 80 had not definitively found that only effective decisions of the Tribunal could be the subject of appeal pursuant to s 44(1) of the Act, because the word “decision” will only “ordinarily refer to an announced or published ruling or adjudication”. However, at 103, Deane J observed: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.26The uncertainty suggested by Mr Gadzikwa was clearly explainable as relating to recognised qualifications to the meaning of “decision” for the purposes of s 44(1), as set out in this observation by Deane J.27Seventh, the fact that the Tribunal committed its reasons to writing, as requested by Mr Gadzikwa, does not mean that its decision is an effectively final decision, and appellable pursuant to s 44(1) of the Act, notwithstanding that s 43(1) of the Act contemplates that an appellable decision will be “in writing”. Mr Gadzikwa directed my attention to the observation of Deane J in Chaney 47 FLR 80 at 102 that:…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.28However in my view, and contrary to the submission of Mr Gadzikwa, this observation was not a prescriptive statement indicating that a written decision by the Tribunal invariably meant that it was a final decision.29Eighth, to the extent that the decision in Mladenov [2015] FCA 1472 suggests that a refusal by the Tribunal to order the production of documents is a “decision” within the meaning of s 44(1) of the Act, I respectfully disagree with that proposition. Indeed, the comment at [60] of Mladenov [2015] FCA 1472 that “there is an open question whether a ruling in respect of the production of documents is a decision for the purpose of s 44(1)” of the Act cites as authority Yao [2010] FCA 18 at [29]. Paragraph [29] of Flick J’s decision in Yao [2010] FCA 18 is as follows:29.No “question of law” for the purposes of s 44 — and no legal error for the purposes of judicial review — is evident in the Tribunal’s decision. The Tribunal, when refusing to issue the summonses in issue, was exercising a discretionary power. Whether another Tribunal member may have exercised the discretion in the same manner is not to the point. No legal error is discernible in the manner in which the Tribunal member in the present proceeding exercised the discretion he was called upon to exercise.30Plainly, this observation by Flick J does not support the proposition that a decision by the Tribunal to refuse to issue summonses is a “decision” which can be the subject of appeal to the Federal Court.31Ninth, although Mr Gadzikwa submits that the Tribunal has been unhelpful in failing to respond to his requests for assistance in seeking the issue of subpoenas, this criticism, even if true, is not an issue of relevance to the proceedings currently before this Court.32Finally, although Mr Gadzikwa claimed from the Bar Table that he had received a letter from the Tribunal dated 20 March 2020 indicating that he “might be able to appeal” from the Tribunal’s decision of 18 March 2020, I consider this to be irrelevant to the issues currently before me. Not only is the letter not before the Court (nor, insofar as I can ascertain, made available to Comcare), but it binds neither the Court nor the Tribunal. Rather, I consider it likely that the wording of the letter would have been a standard response by the Tribunal to litigants who are dissatisfied by Tribunal decisions of all kinds.33 In my view the appeal is incompetent, and should be dismissed.

Ratio Decidendi

Legal Principle Established

Ms Dowsett further submitted that there was nothing before the Court to support a conclusion that Mr Gadzikwa would suffer substantial injustice if leave were refused. His application remained on foot before the Tribunal, and no decision had yet been made in respect of the substantive question to be determined in that forum: namely, whether he should be granted an extension of time in which to request reconsideration of Comcare’s determination. Consideration I accept and adopt the Respondent’s submissions as to the legal test that the Court must apply in determining an application for leave to appeal from an interlocutory decision of a judge of this Court pursuant to s 24(1A) of the Federal Court Act. I do not understand those principles to be relevantly in issue. As the Full Court stated in Ah-Chee v Stuart [2019] FCAFC 165 (Ah-Chee): 11The relevant principles guiding the consideration and determination of an application for leave to appeal were not disputed. There are no rigid rules, but it is well settled that key considerations which bear upon the exercise of the Court’s discretion include:(a)whether in all the circumstances the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and(b)whether substantial injustice would result if leave were refused, supposing the decision is wrong.12Those two limbs are cumulative and each limb needs to be made out (Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36 at [4]-[5] per Ryan, Stone and Jagot JJ). The two limbs are also related (see Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [20] per Kenny, Tracey and Middleton JJ), with the consequence that sufficiency of the doubt in respect of the primary decision and the issue of substantial injustice should not be divided into separate compartments. 13Other considerations which are relevant to the consideration of the Walka Wani applicants’ application for leave to appeal were recently identified by the Full Court in Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; 242 FCR 153 at [14] to [17]:(a)leave is less-often granted where the impugned ruling is discretionary and is on a matter of practice or procedure;(b)appellate intervention in matters of practice or procedure, where no questions of general principle are at stake, has been said to require the exercise of particular caution (referring to Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [34] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ and see also Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. [1981] HCA 39; 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ); and(c)where, as here, the exercise of discretionary judgment is in question, an error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499 at 504-505 needs to be identified and it is not enough to overturn a discretionary judgment that the appeal judges would have weighed considerations differently to the primary judge.