Klewer v National Disability Insurance Agency

The case of Klewer v National Disability Insurance Agency involved the Appellant, seeking to appeal a decision of the Administrative Appeals Tribunal (AAT) that had ordered the matter to be held in abeyance pending the appointment of a litigation representative. The Respondent, the National Disability Insurance Agency, filed a notice of objection to the competency of the appeal, asserting that the Appellant's application for special leave to appeal was invalid. The matter was heard in the Federal Court, which was required to determine whether the AAT's order constituted a 'decision' under the Administrative Appeals Tribunal Act 1975 (Cth) section 44 and whether the objection to competency was valid.

The court considered whether the AAT's order was a 'decision' within the meaning of the Act, thereby making it appealable. The court also examined whether the objection to competency was valid, focusing on the principle established in Director-General of Social Services v Chaney [1980] FCA 108; 47 ALR 80. The Respondent argued that the AAT's order was not appealable because it was not a 'decision' but rather a procedural direction. Furthermore, the court explored the AAT's power to appoint a litigation representative, as the AAT had found it had an implied power to do so under its general legislative power to determine procedure, despite no specific legislative power existing for such an appointment.

In its reasoning, the court upheld the Respondent's objection to competency, finding that the Appellant's application for special leave to appeal was invalid. The court dismissed the notice of appeal filed on 13 December 2019, holding that the AAT's order was not a 'decision' within the meaning of the Administrative Appeals Tribunal Act. Consequently, the appeal was dismissed, and the Appellant was directed to make any further applications returnable before Perram J. There was no order as to costs, as per Rule 39.32 of the Federal Court Rules 2011.