Gadzikwa v Comcare

Case [2020] FCA 1205

FEDERAL COURT OF AUSTRALIA

Gadzikwa v Comcare [2020] FCA 1205   

File number: VID 260 of 2020
Judgment of: COLLIER J
Date of judgment: 21 August 2020
Catchwords:  ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – objection to competency of appeal – interlocutory decision of the Tribunal to refuse to issue summonses – whether interlocutory decision of a Tribunal a “decision” for purposes of ss 43 and 44(1) Administrative Appeals Tribunal Act 1975 (Cth) – application dismissed.
Legislation:

 Administrative Appeals Tribunal Act 1975 (Cth) ss 39, 43, 44(1), 44(2)

Federal Court Rules 2011 (Cth) r 33.30

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 62(3)

Cases cited:  Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Director General of Social Services v Chaney (1980) 47 FLR 80
Douglass v Administrative Appeals Tribunal [2017] FCA 1105
Mladenov v Secretary, Department of Social Services [2015] FCA 1472
MDXJ v Secretary, Department of Social Services [2019] FCA 2163
Oshlack v Richmond River Council (1998)193 CLR 72; [1998] HCA 11
Phillips v Inspector General in Bankruptcy [2011] FCA 612
Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 41
Date of hearing: 13 August 2020
Counsel for the Applicant: The Applicant appeared in person with the help of a support person
Counsel for the Respondent: Ms J Lucas
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 260 of 2020
BETWEEN:

TAWANDA GADZIKWA

Applicant
AND:

COMCARE

Respondent

ORDER MADE BY:

COLLIER J

DATE OF ORDER:

21 AUGUST 2020

THE COURT ORDERS THAT:

1.The notice of objection to the competency of the appeal filed on 11 May 2020 be upheld.

2.The appeal filed on 17 April 2020 be dismissed.

3.The respondent bear its own costs of and incidental to the case management hearing of 4 June 2020.

4.Subject to Order 3 of these Orders, the applicant pay the costs of the respondent of and incidental to the appeal, to be taxed if not otherwise agreed.

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


REASONS FOR JUDGMENT

COLLIER J

INTRODUCTION

  1. Before the Court is a notice of objection to the competency of an appeal (in the original jurisdiction of the Federal Court of Australia) from an interlocutory decision of the Administrative Appeals Tribunal (Tribunal) given on 18 March 2020. In that decision the Tribunal refused to issue summonses for the production of certain documents, and to require four identified persons attend the substantive hearing of Mr Gadzikwa’s application in the Tribunal, as requested by Mr Gadzikwa during a directions hearing in the Tribunal on 18 March 2020.

  2. At Mr Gadzikwa’s request, the Tribunal published written reasons for its decision of 18 March 2020 on 20 March 2020

    BACKGROUND

  3. The interlocutory decision of the Tribunal was delivered in the context of…

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AGLC
Gadzikwa v Comcare [2020] FCA 1205
Case
[2020] FCA 1205
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Gadzikwa sought to appeal the Administrative Appeals Tribunal's (AAT) interlocutory decision, dated 18 March 2020, to refuse his application for the issuance of summonses. Comcare objected to the competency of the appeal, contending that the interlocutory decision was not a "decision" within the meaning of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) and thus not amenable to an appeal under s 44 of that Act. The central issue before the court was whether the interlocutory decision of the AAT constituted a "decision" for the purposes of s 44(1) of the Act, thereby permitting an appeal to the Federal Court.

The court considered established principles regarding the interpretation of "decision" under s 44(1) of the Act, as elucidated in previous cases such as Director-General of Social Services v Chaney, Commissioner of Taxation v Cancer and Bowel Research Association Inc, Kishore v Tax Practitioners Board, and Geographical Indications Committee v The Honourable Justice O'Connor. These cases established that an appeal under s 44(1) requires the Tribunal's disposition to be the effective decision or determination of the application for review. The court held that the interlocutory decision in question did not represent the final determination of Gadzikwa's application for review, as it merely addressed procedural aspects and did not affirm, vary, or set aside the reviewable decision. Thus, it did not conclude the whole or a properly separable part of the matter before the AAT.

Given that the interlocutory decision was not a final determination of the application for review, the court ruled that it did not qualify as a "decision" for the purposes of s 44(1) of the Act. Consequently, the appeal was deemed incompetent, and the notice of objection to the competency of the appeal was upheld. The appeal was dismissed, and the respondent was ordered to bear its own costs of the case management hearing, with the applicant to pay the respondent's costs of the appeal, subject to any agreement otherwise.

Orders

Orders of the court

1. The notice of objection to the competency of the appeal filed on 11 May 2020 be upheld.

2. The appeal filed on 17 April 2020 be dismissed.

3. The respondent bear its own costs of and incidental to the case management hearing of 4 June 2020.

4. Subject to Order 3 of these Orders, the applicant pay the costs of the respondent of and incidental to the appeal, to be taxed if not otherwise agreed.

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

Background

Background to the litigation

At Mr Gadzikwa’s request, the Tribunal published written reasons for its decision of 18 March 2020 on 20 March 2020BACKGROUND The interlocutory decision of the Tribunal was delivered in the context of substantive proceedings in file 2018/2099 in the General Division of the Tribunal, Tawanda Gadzikwa v Comcare. In these proceedings Mr Gadzikwa had made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for a claimed injury. On 4 August 2017 Comcare denied liability for this claim under s 14 of the SRC Act. On multiple occasions Mr Gadzikwa sought reconsideration of the 4 August 2017 determination by Comcare after the expiry of the 30-day time limit imposed by s 62(3) of the SRC Act, and despite being granted extensions of time by Comcare, subsequently withdrew those requests for reconsideration. On 6 February 2018 Mr Gadzikwa again requested that Comcare allow him to make a request for reconsideration, however on 14 February 2018 a delegate of Comcare refused Mr Gadzikwa’s request on the basis that the delegate considered that Mr Gadzikwa’s reasons for extension of time had not been made out or were insufficient to warrant a further extension of time. I understand that the decision of the delegate of 14 February 2018 was the reviewable decision before the Tribunal (Reviewable Decision). Insofar as I can determine from the material before me, the proceedings in the Tribunal in file 2018/2099 Tawanda Gadzikwa v Comcare have not advanced beyond the interlocutory decision of the Tribunal on 18 March 2020 the subject of this appeal. In his notice of appeal filed on 17 April 2020 in this Court, Mr Gadzikwa seeks orders for the issue of the summonses he sought in his application to the Tribunal. The grounds on which Mr Gadzikwa relies are lengthy, and include excerpts from the transcript and the Tribunal decision as well as other authorities. In summary, Mr Gadzikwa’s grounds are as follows:·He was denied procedural fairness because the Tribunal refused to issue summonses after only hearing argument in relation to a single summons;·The Tribunal erred in finding that the issue of summonses in Tribunal matters was “highly unusual” and that there would need to be very special reasons why that course would be taken;·The Tribunal correctly stated that it must be satisfied that the evidence expected to arise from the documents sought or the person sought to be called would assist in the review of the decision and determination of the principal application, however incorrectly applied that test;·The Tribunal erred in finding that there would be nothing to be gained from oral evidence being given by witness Dr Chris Grant;·The Tribunal erred in finding that Comcare opposed the issuing of the summonses Mr Gadzikwa sought; and·The Tribunal erred in finding that Mr Gadzikwa’s application before it was a “typical extension of time” matter. In its notice of objection to competency filed on 11 May 2020, Comcare relied on the following ground of objection: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.SUBMISSIONS OF THE PARTIES

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I understand that the decision of the delegate of 14 February 2018 was the reviewable decision before the Tribunal (Reviewable Decision). Insofar as I can determine from the material before me, the proceedings in the Tribunal in file 2018/2099 Tawanda Gadzikwa v Comcare have not advanced beyond the interlocutory decision of the Tribunal on 18 March 2020 the subject of this appeal. In his notice of appeal filed on 17 April 2020 in this Court, Mr Gadzikwa seeks orders for the issue of the summonses he sought in his application to the Tribunal. The grounds on which Mr Gadzikwa relies are lengthy, and include excerpts from the transcript and the Tribunal decision as well as other authorities. In summary, Mr Gadzikwa’s grounds are as follows:·He was denied procedural fairness because the Tribunal refused to issue summonses after only hearing argument in relation to a single summons;·The Tribunal erred in finding that the issue of summonses in Tribunal matters was “highly unusual” and that there would need to be very special reasons why that course would be taken;·The Tribunal correctly stated that it must be satisfied that the evidence expected to arise from the documents sought or the person sought to be called would assist in the review of the decision and determination of the principal application, however incorrectly applied that test;·The Tribunal erred in finding that there would be nothing to be gained from oral evidence being given by witness Dr Chris Grant;·The Tribunal erred in finding that Comcare opposed the issuing of the summonses Mr Gadzikwa sought; and·The Tribunal erred in finding that Mr Gadzikwa’s application before it was a “typical extension of time” matter. In its notice of objection to competency filed on 11 May 2020, Comcare relied on the following ground of objection: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.SUBMISSIONS OF THE PARTIES On 2 July 2020 Comcare filed written submissions in support of its notice of objection to competency. At the hearing, Comcare was represented by Ms Lucas of Counsel. Mr Gadzikwa appeared at the hearing in person, and while he did not formally file written submissions, his affidavit filed on 30 July 2020 included written submissions responding to the written submissions of Comcare. In its submissions, Comcare relied primarily on ss 43 and 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) which materially provide as follows:43 Tribunal’s decision on review…Tribunal's decision on review(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.…44 Appeal on question of law(1)A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.Note 1: This Part does not apply to certain migration proceedings (see section 43C).…

Ratio Decidendi

Legal Principle Established

Mr Gadzikwa did not apply to reformulate his application in terms of judicial review.CONSIDERATION The meaning of “decision” for the purposes of s 44 (1) of the Act appears to be settled. Recently in MDXJ v Secretary, Department of Social Services [2019] FCA 2163 Besanko J explained relevant principles as follows:16.A leading authority on the meaning of decision in s 44(1) of the AAT Act is Director-General of Social Services v Chaney [1980] FCA 87; (1980) 31 ALR 571 (Chaney). Justice Deane (with whom Fisher J agreed in concurring remarks at 597) said (at 593):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.17.In Commissioner of Taxation v Cancer and Bowel Research Association Inc [2013] FCAFC 140; (2013) 305 ALR 534 (Cancer and Bowel Research Association), the Full Court of this Court said (at [8]):An appeal under s 44(1) requires that the disposition by the Tribunal be “the effective decision or determination of the application for review”. In the usual case an effective decision by the Tribunal will be reflected in the orders made under s 43, but, as was explained by Deane J in Chaney, a decision may come within s 44 where it is (a) that the interests of a person are not affected by a particular decision (see AAT Act s 44(2)) and (b) where it is of a part of a proceeding which can properly be divided into separate parts. In such cases the disposition by the Tribunal can be seen as deciding finally some aspect of a party’s entitlements and, therefore, as having the effect of finally deciding or determining an aspect of a proceeding. Its quality as a decision within the meaning of s 44 is that it ends the whole or a properly separable part of the matter before the Tribunal.18.In Kishore v Tax Practitioners Board [2016] FCA 1328; (2016) 244 FCR 320 (Kishore), Robertson J considered an objection to the competency of an appeal from a decision of the Tribunal in which the Tribunal answered “yes” to the “threshold question” of whether certain conduct of the applicant was capable of contravening s 30-10(1) of the Tax Agent Services Act 2009 (Cth) and listed the matter for directions “at the earliest opportunity”. His Honour concluded (at [20]):In the present case, it is plain that the Tribunal has not yet completed its review of the decision of the Tax Practitioners Board to terminate the appellant’s registration as a tax agent: see [17] and [18] above. The Tribunal has not affirmed, varied or set aside the decision under review: see s 43 of the Administrative Appeals Tribunal Act. Applying the decision of the Full Court in Chaney, an appeal under s 44 of the Administrative Appeals Tribunal Act is incompetent.19. His Honour also said (at [19]):In my opinion, the point of the decision in Chaney is to avoid judicial review by way of an appeal to this Court instanter and as of right from non-determinative steps, determinations or decisions of the Tribunal. This reflects the undesirability of fragmenting proceedings in the Tribunal by the making of applications to the Federal Court seeking to challenge intermediate directions, determinations or decisions of the Tribunal: see the judgment of the Full Court in Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877; 64 ALD 325 at [26]- [28]20.In Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877; (2000) 64 ALD 325, the applicant sought judicial review of directions contained in an interlocutory decision made by the Tribunal which had the effect of confining the role which the applicant would have as a party at a future hearing before the Tribunal. Although the application was not brought as an appeal from the Tribunal’s decision under s 44 of the AAT Act, the following statement of von Doussa, O’Loughlin and Mansfield JJ is relevant (at [26] and [28]):26.In the context of curial proceedings, the courts have been at pains to emphasise the undesirability of allowing appeals against interlocutory decisions involving matters of practice and procedure to fragment and delay the trial of proceedings. The most frequently cited authority for this proposition comes from the joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 176-7; [1981] HCA 39; 35 ALR 625 at 628-9. Their Honours repeated with approval the following statement of Sir Frederick Jordan in In re the Will of F B Gilbert (dec’d) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323:... I am of the opinion that ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a Court of Appeal.Their Honours added that it is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration. At this stage, as we have just observed, it is not possible to know if there is any real issue in the GIC’s complaint about the directions. Until that is possible the GIC is unable to demonstrate that any injustice could flow from the directions.