Lower and Comcare
[2003] AATA 540
•6 June 2003
CATCHWORDS – PRACTICE AND PROCEDURE –
whether power to consider application to reinstate application withdrawn by applicant and purported to have been dismissed by Tribunal – whether bound by Federal Court’s judgement remitting matter to the Tribunal that s. 42A(10) has no application – whether obiter dicta or ratio decidendi – if not bound, whether Tribunal has power – whether the Tribunal should refer questions of law raised to the Federal Court – application refused.
Administrative Appeals Tribunal Act 1975 ss. 29(7), 42A, 42A(1), 42A(1A), 42A(1B), 42A(2), 42A(10), 42B, 42C, 42D, 43 and 45.
Lower v Comcare [2002] 36 AAR 220
Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority (1992) 16 AAR 319
Schramm and Repatriation Commission (1998) 54 ALD 501
Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385
Goldie v Minister for Immigration and Multicultural Affairs (2002) 36 AAR 238
Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225
Re Zimmax Trading Co Pty Ltd and Collector of Customs, New South Wales (1979) 2 ALD 120
Re Davina and Defence Force Retirement and Death Benefits Authority (1996) 43 ALD 761
Mitchell v Noble (1981) 7 NTR 19
DECISION AND REASONS FOR DECISION [2003] AATA 540
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2002/435
GENERAL ADMINISTRATIVE DIVISION )
Re KEVIN BERTRAM LOWER
Applicant
And COMCARE
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 6 June, 2003
Place: Adelaide
Decision:The Tribunal refuses to reinstate the applicant’s application for review dated 29 November, 1991.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 29 November, 1991, the applicant, Mr Bertram Lower, applied for review of a reviewable decision of a delegate of the respondent, Comcare, dated 27 September, 1991. In that decision, Comcare affirmed an earlier decision, which was dated 14 May, 1991 and which disallowed Mr Lower’s claim for compensation in respect of a work related stress syndrome. On 17 August, 1992, Mr Lower signed a document instructing his then solicitors
“… to withdraw my application before the Administrative Appeals Tribunal which has been set down for a hearing on Monday 17 August 1992, on the basis that I am unable to afford their services and I do not wish to conduct the hearing of the matter myself.”
A differently constituted Tribunal then dismissed Mr Lower’s application for review of Comcare’s reviewable decision in the following terms:
“The parties to this application for review having consented, it is directed, pursuant to section 42A(1) of the Administrative Appeals Tribunal Act, 1975, that the application be dismissed.”
On 29 February, 2000, Mr Lower applied for a reinstatement of his application pursuant to s. 42A(10) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”). A differently constituted Tribunal refused the application on the basis that the decision had not been dismissed in error and so could not be reinstated pursuant to s. 42A(10).. If Mr Lower were to lodge an application for an extension of time, the Tribunal also expressed the view that it would not grant the application.
On appeal to the Federal Court, the Tribunal’s decision was set aside by Tamberlin J on appeal (Lower v Comcare [2002] 36 AAR 220). His Honour remitted the matter to the Tribunal for determination in accordance with the law. At the hearing on the remittal, Mr Lower was represented by Ms Layton QC with Mr Prince and Comcare by Ms Maharaj with Ms Bean.
THE ISSUES
In essence, Ms Layton raised three issues on behalf of Mr Lower. The first is whether I am bound by the statement by Tamberlin J that “… because the application has been withdrawn, there is no longer any subsisting application which can be reinstated or listed for hearing by the Tribunal” (paragraph 19). If I am not bound by it, the second issue is whether the Tribunal has power under s. 42A(10) of the AAT Act to reinstate an application that has been dismissed in error as a result of a purported exercise of power regardless of whether that dismissal is found to be right or wrong in law. Although I will deal with it last in these reasons, the third issue is a matter on which I reached a conclusion before embarking upon these reasons. That is whether I should formulate appropriate questions addressing these two issues and refer them to the Federal Court.
TAMBERLIN J’s REASONING
The essential points made by his Honour in his judgement seem to me to be:
In general terms:
(a)an applicant’s withdrawal of a proceeding will not affect his or her right to commence a new proceeding against the same party based on the same complaint;
(b)a withdrawal of a proceeding is not the same as a determination of a proceeding; and
(c)an order dismissing a proceeding may give rise to res judicata or issue estoppel.
Again in general terms, the withdrawal of an application:
(a)is a unilateral act that does not require the consent of the other party; and
(b)leads to there being no application before the court or tribunal and so no application that may be dismissed.
As the AAT Act was enacted on 17 August, 1992, it did not alter the general principles. Therefore, once Mr Lower withdrew his application for review of Comcare’s reviewable decision, there was nothing for the Tribunal to dismiss.
The Tribunal’s dismissal of Mr Lower’s application to review Comcare’s reviewable decision was contrary to s. 42A of the AAT Act and so ineffective because:
(a)s. 42A required the consent of all parties to the application; and
(b)Mr Lower’s withdrawal was simply that and did not amount to his consenting to his application’s being dismissed.
The power to reinstate an application conferred by s. 42A(10) is dependent upon an application’s having been dismissed. As Mr Lower’s application had not been dismissed, the power could not be exercised.
There was no subsisting application that could be reinstated or listed for hearing.
The amendments to the AAT Act effected by the Administrative Appeals Tribunal Amendment Act 1993 have no bearing on the determination of the matter as they do not purport to have retrospective effect.
In the final paragraph of his judgement, Tamberlin J ordered that the decision of the Tribunal should be set aside and the matter “… remitted to the Tribunal for determination in accordance with these reasons.”
LEGISLATIVE BACKGROUND
I will first set out the framework of the relevant provisions of the AAT Act as it was in force on 17 August, 1992 when Mr Lower withdrew his application and the Tribunal directed that it be dismissed. At that time, once an application for review of a decision had been lodged, it could only be disposed of in any one of four ways.
The first three ways were provided for in the AAT Act. Of these, the first was that the decision was reviewed by the Tribunal, which then made a decision using its powers under s. 43 of the AAT Act. The second and third ways were found in s. 42A, which, at that time, comprised only two sub-sections. The second way provided for dismissal in the situation provided for in s. 42A(1) which provided that:
“(1) Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.”
The third was set out in s. 42A(2), which provided:
“(2) If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a preliminary conference held in relation to the application under section 34 or at the hearing of the proceeding, the Tribunal may:
(a)where the only other party to the proceeding is the person who made the decision-dismiss the application without proceeding to review the decision; or
(b)…”
The fourth way was not provided for in the AAT Act but outside it. It was the withdrawal of the application. Withdrawals had been the subject of a decision given by the Tribunal in Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority (1992) 16 AAR 319 (Gray J, Deputy President Breen and Dr Christie, Member) shortly before the events of 17 August, 1992. The Tribunal considered that the Tribunal did not need to give leave for a withdrawal to be made and that its effect was that “There was no longer any proceeding before this Tribunal, upon which it could proceed to give a decision” (page 326).
The AAT Act was amended with effect from 16 June, 1993 to expand s. 42A and to add ss. 42B and 42C.. It was amended again with effect from 16 December, 1995 when s. 42D was added. Each amendment brought with it new ways in which an application could be finalised and, at least in one instance, new implications for an old way. In the circumstances of this case, I am concerned only with that implication and not with the new ways that were introduced. Section 42A(1A) was added and enshrined in legislation what had already been decided in Re Queensland Nickel. That was that:
“A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.”
Rather than simply ending the proceeding as the Tribunal had decided, though, s. 42A(1B) was added to provide that the effect of a notification that an application was discontinued or withdrawn would now be that:
“… the Tribunal is taken to have dismissed the application without proceeding to review the decision.”
The amendments in 1995 also gave the Tribunal powers in cases in which an application had been dismissed in error. They were set out in s. 42A(10), which provided:
“If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.”
CONSIDERATION
In relation to the first issue that I must consider, Ms Layton submitted that Tamberlin J’s statement that:
“The amendments to the Act which became operative in 1993 and in particular ss 42A(1A) and 42A(1B), in my view, have no bearing on the determination of the present appeal.” (paragraph 20)
is obiter dicta and, in any event, incorrect.
With regard to the statement’s being obiter dicta, Ms Layton submitted that the essence of his Honour’s judgement was that he found that the application to withdraw did not amount to a consent to the dismissal of the application for review. As the dismissal was based on an erroneous premiss, it was ineffective. This was significant, Ms Layton continued, as Tamberlin J did not simply dismiss the matter but remitted it to the Tribunal. Also significant was the manner in which he dealt with s. 42A(10). He expressed only his view and that was not, Ms Layton submitted, intended to be determinative of the matter. The relevant passage follows Tamberlin J’s concluding that the order dismissing the application was, in his view, based on an erroneous premiss and so was both contrary to the section and ineffective. The passage reads:
“19 However, the above conclusion does not advance the applicant's case because the power to reinstate which is sought to be invoked by the applicant is that in s 42A(10) and this is conditioned on there having been a dismissal of the application. In my view, since there has been no dismissal, the power to reinstate is not available to the applicant. On analysis, the position is that because the application has been withdrawn, there is no longer any subsisting application which can be reinstated or listed for hearing by the Tribunal.”
Ms Layton’s submission requires me to distinguish between what is obiter dictum in his Honour’s judgement and what is its ratio decidendi. The ratio decidendi was explained by Rupert Cross in Precedent in English Law (3rd edition, Oxford, Clarendon Press, 1973) to be:
“… any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.”
The obiter dictum (or, if there is more than one, the obiter dicta) is, in effect, a rule of law to which the judge refers but which is not necessary to his or her reasoning in deciding the case. Identifying what is ratio decidendi and what is obiter dicta, requires a consideration of the whole of the judgement and the decision reached.
When I undertake that analysis of Tamberlin J’s judgement, I conclude that his statement that the power to reinstate is not available to his judgement is part of his reasoning process that is essential to his decision. He was considering an appeal from a decision to refuse to reinstate an application for review of a decision. His reasoning was, therefore, directed to that question and did not stop at the point of whether the application was validly dismissed or not. It continued on to conclude that the power of reinstatement was not available to the Tribunal.
Certainly, I understand that his Honour adopted the expression “in my view” in paragraph 19 but it seems to me that his doing so is not indicative of its being obiter dicta rather than part of the ratio decidendi of the case. Apart from paragraph 19, Tamberlin J used a similar form of words on no fewer than five other occasions in the course of his judgement (paragraphs 12, 18, 20 and 34) and the expression “in my opinion” on one (paragraph 18). In paragraph 18, he uses both expressions in concluding what is clearly part of the ratio decidendi of the case i.e. that the dismissal order was ineffective because there was no consent to dismissal. The use of expressions such as “in my view” in his judgement reflects his Honour’s style just as my adopting the expression “it seems to me” earlier in this paragraph reflects mine. Both are used in presenting concluded views.
It follows that I have concluded that I am bound by Tamberlin J’s judgement and so must conclude that the power to reinstate the application is not available to me under s. 42A(10). Should I be incorrect in that conclusion, I have, however, gone on to consider Ms Layton’s further submission that s. 42A(10) is available to me and should be exercised. Ms Layton framed her submissions on the basis that Tamberlin J had expressed an incorrect opinion of the law. I summarise her submissions in the way in which she presented them.
Ms Layton grounded her submission on three footings. The first was that his Honour did not refer to case law establishing that “dismissed in error” has a very broad application. It was not limited by the type of error that had occurred but only by there being an error. She referred to the cases of Schramm and Repatriation Commission (1998) 54 ALD 501 (Deputy President Burns), Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385 (Whitlam, Moore and Katz JJ) and Goldie v Minister for Immigration and Multicultural Affairs (2002) 36 AAR 238 (Wilcox and Downes JJ, Carr dissenting). The second was that Tamberlin J had assumed that s. 42A(10) could not have any application if an application had been dismissed. This was not upheld by the case law as he had found that the application had been dismissed and had been dismissed in a manner that was attended with error.
In considering this submission, the starting point is not the power that is given by s. 42A(10) but what happened on 17 August, 1992. I am bound by Tamberlin J’s judgement in this regard but, even if I were not, I would have reached the same conclusion. In withdrawing the application, it is clear that in 1992 the immediate effect of a withdrawal of an application for review is that there was no longer any application for review before the Tribunal. The Tribunal could not proceed to give a decision as the Tribunal in Re Queensland Nickel recognised (see paragraph 8 above). It could not proceed to do anything because, apart from an application for extension of time under s. 29(7) of the AAT Act, all of the Tribunal’s powers are predicated upon there being an application for review before it. It could not dismiss it under s. 42A(1) because there was no application to dismiss.
Certainly, the Tribunal purported to dismiss the application on 17 August, 1992 by reading Mr Lower’s withdrawal as a consent to dismiss his application. Ms Layton submitted that this is a dismissal in fact regardless of whether or not it is right or wrong in law. She relied on the judgement of the Full Court of the Federal Court in Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 (Bowen CJ and Smithers J and Deane J, dissenting). The power to reinstate an application does not, and cannot, require that the dismissed application is subsisting at the time of the application for reinstatement, Ms Layton further submitted.
While I agree that there can be no requirement that the dismissed application for review be subsisting at the time of the application for review, I note that s. 42A(10) effectively requires that an application for review “has been dismissed” and that the dismissal be “in error”. Certainly the Full Court in Goldie v Minister for Immigration and Multicultural Affairs gave the words “dismissed in error” a broad interpretation in that all of the Judges concluded that the error attending the dismissal need not be an administrative error and that it need not have emanated from the Tribunal (Wilcox and Downes JJ at paragraphs 29-30, page 243 and Carr J at paragraph 77, page 252 and see also paragraphs 86-89, page 254). That is to say, it may have emanated from another source provided that it induced the error so that the dismissal could be said to have been made in error. In this regard, their Honours did not agree with the conclusion of the Full Court of the Federal Court in Brehoi v Minister for Immigration and Multicultural Affairs at 390 (Wilcox and Downes JJ at paragraphs 32-35, pages 244-245 and Carr J at paragraphs 68-70, pages 251-252).
The majority did not go on to consider its focus which was upon the error and not upon whether or not there had been a dismissal at all. It regarded the application as having been dismissed and then considered whether there would have been material to justify a finding that it had been dismissed in error. It decided that there was no such material. Carr J did touch upon the possibility that there had not been a decision to dismiss the application for review at all. He said:
“83. Although it is not necessary to decide the point, it may well be the case that the Tribunal could quite properly have regarded the decision of 17 December 1999 as not being a decision at all – see Gaudron and Gummow JJ in Bhardwaj at 606-607[51]. This might be on the basis that the decision had been made either without power (on the ground that the applicant had failed to appear at the hearing, when it was quite clear that he had appeared) or as one which had been made with such a degree of procedural unfairness as to involve jurisdictional error.
84. In those circumstances the Tribunal would not have needed to rely on s 42A(8) and (9) or (10).” (pages 253-254)
His Honour went on to consider both of these grounds as errors attending the decision to dismiss but that he did so does not detract from the point that he was raising, although not deciding. It was that, if the decision has been made without power, it is not a decision at all and so could not have dismissed the application. The application for review would have remained on foot.
The analogy that can be drawn between that situation and the situation with which I am concerned is that, if a decision is made without power, there is no decision at all. If there is no decision at all, there is no affect on the status quo. In a situation such as that considered by Carr J in Goldie, it would have left the application for review in place. In the situation with which I am faced, the application remained withdrawn and the matter at an end both before and after the purported order to dismiss the application. In both cases, if there is no decision to dismiss, let alone a decision to dismiss that has been made in error, the Tribunal has no power to reinstate the application under s. 42A(10).
The Brian Lawlor case does not assist. In that case, the Full Court of the Federal Court was concerned with a case in which a decision had been made to cancel a warehouse licence but there was no statutory power to make that decision. The majority of the Full Court (Bowen C.J. and Smithers J) held that the Tribunal had the power to entertain an application made to it to review such a decision. Bowen C.J. said:
“ In the Administrative Appeals Tribunal Act a wide meaning is given to the word ‘decision’ by s3(3). In s25 it appears to me that the word simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision. The difficulty lies in interpreting the words ‘made in the exercise of powers conferred by that enactment’.. This may mean that it must be shown there was a decision made:-
(a) in pursuance of a legally effective exercise of powers conferred by the enactment; or
(b) in the honest belief that it was in the exercise of powers conferred by the enactment; or,
(c) in purported exercise of powers conferred by the enactment.
…
Interpretation (c) appears to me to be consistent with the context in the Administrative Appeals Tribunal Act. The Acts committed to the administration of each Minister and his Department are set forth in the Administrative Arrangements Orders published from time to time in the Gazette. There might be a rare case where a decision appeared to have no relationship to one of the Acts committed to the administration of the Minister or Department concerned. However, in the ordinary course, it would be reasonably clear from the objective facts under which enactment or in the exercise of which statutory powers an official had purported to act. The adoption of this view would mean that the Administrative Appeals Tribunal would have jurisdiction to entertain an appeal from a decision in fact made, which purported to be made in the exercise of powers under an enactment. It could then proceed to determine whether the decision was properly made in fact and in law. There is nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal: see Calvin v. Carr (1979) 22 ALR 417. I would adopt interpretation (c).
...
Turning to the application of interpretation (c) to the present case, it appears to me that there was a decision to revoke the warehouse licence and this decision did purport to be made in the exercise of powers conferred by the Customs Act. Accordingly, in my view, the Administrative Appeals Tribunal did not lack jurisdiction to entertain the application and deal with it.” (pages 314-316)
Smithers J reached a conclusion similar to that of the Chief Justice and, in doing so, illustrated the practical consequences of the situation:
“ It is to be noted also that the subjects of reviews are decisions. If an administrator makes a particular decision in the course of government administration, then whether or not he is authorized to do so, there is in fact a decision made. The fact that that decision cannot affect legal rights or liabilities is irrelevant to that fact.
There is a distinction also between a decision, the steps that may be taken to implement it and the legal effect thereof. It does not appear to me to be sound to regard a decision to take certain action as a nullity because such action if taken will not be legally effective. In the case under appeal the letter of 31 October 1977 was the communication of the decision which the Collector had made. The decision preceded that letter. The letter was no doubt the act of purported revocation and because of the statutory definition of ‘decision’ (see s 3(3) of the Administrative Appeals Tribunal Act set out below) that act may be a decision within the meaning of s 25. But to decide to revoke the licence was also itself a decision according to the natural meaning of that term. Such a decision may have serious results for the citizen. No doubt the officers of the department will act upon it. Thus, after the decision in question had been made they would be expected to refuse to permit goods to be entered to the defendant's warehouse. In this case, also action was taken against the licensee under s 94 of the Customs Act. That action did not necessarily depend upon revocation but in all probability it would not have been taken had the decision to revoke the licence not been made. … (pages 335-336)
It is clear that in the Brian Lawlor case there was a decision in fact that was affecting rights and liabilities even though the decision had not been lawfully made. It was a decision to revoke the applicant’s warehouse licence and that affected the applicant in that it could no longer undertake the activities that he had previously undertaken when it held the licence. In this case, there was certainly a decision to dismiss Mr Lower’s application but it had no effect either in law or in fact. It did not have any effect in law for the reasons that I have already given. It did not have any effect in fact for Mr Lower’s application for review was already at an end having been withdrawn. Mr Lower was in no different position after the purported decision to dismiss his application as before. He did not have an application for review before the dismissal decision and he did not have one after. He could not proceed further in the Tribunal either before or after the purported decision. Unlike the applicant in Brian Lawlor, therefore, Mr Lower was not affected in fact by a decision that had been made without proper authority. His application had not been dismissed in error or otherwise even though the Tribunal had purported to do so.
Finally, I will consider the submission that I should use my power under s. 45 of the AAT Act to refer a question of law to the Full Court of the Federal Court. Referring to Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 (Wilcox, Burchett and French JJ), Ms Layton submitted that I should refer an appropriate question of law to the Federal Court as the matter has given rise to whether the Tribunal has jurisdiction to review the application. The issues are of wide import and involve considerable complexity.
The issue of when a question of law should be referred to the Federal Court is not one in relation to which there are hard and fast guidelines. It was touched upon by Bowen CJ in Brian Lawlor when he said:
“… 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.” (page 317)
In Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services the Full Court made reference to the second paragraph of his passage and referred also to the following passage from the judgement of Deane J and expressed its view:
“Deane J, who dissented as to the precise question involved in that case, remarked (at 378):
‘An administrative tribunal will ordinarily have no authority to transcend the limits of the jurisdiction conferred upon it by hearing an application aimed not at invoking the jurisdiction which it possesses, but at securing an authoritative determination of questions of fact or law anterior to the existence of that jurisdiction.’
Where a question arises of the kind raised by the present matter, it may well be appropriate for the Tribunal to follow the suggestion made by Bowen CJ, or alternatively to refer a question of law the court under s 45 of the Administrative Appeals Tribunal Act.” (page 233)
There is nothing in the Full Court’s judgement that suggests that a question of law should be referred to the Federal Court every time the Tribunal’s jurisdiction is called into question. Taken in their context, the flavour of the Full Court’s comments suggest that there are two sorts of issues that may be worthy of referral. One is an issue which the Tribunal has jurisdiction to consider but is of such complexity that it transcends the normal range of issues considered by the Tribunal. Such an issue might be a constitutional issue. Another example is found in the case of Re Zimmax Trading Co Pty Ltd and Collector of Customs, New South Wales (1979) 2 ALD 120 (Senior Member Hall and Mr Skermer and Mr Stock, Members). The other sort of issue concerns questions that precede the existence of the Tribunal’s jurisdiction and that would require the Tribunal to make an authoritative determination of law or fact.
Although, for the reasons that I gave in Re Davina and Defence Force Retirement and Death Benefits Authority (1996) 43 ALD 761, I do not consider that I am bound to refer a question of law when requested to do so, there are matters that I should take into account in considering whether or not to exercise that discretion. Those matters were summarised by Gallop J in Mitchell v Noble (1981) 7 NTR 19 when he said:
“... in considering whether to accede to the application, the court should consider whether:-
(1)the question is of general importance and involves a substantial argument fit for consideration by the Supreme Court (R v Industrial Court; Ex parte Hunkin [1934] SASR 208 at 210);
(2)the answer to the question will determine or ought to determine the issue between the parties (Collins v Munroe (1887) 14 VLR 1); and
(3)the course of stating the case is preferable on the grounds of expense or otherwise to deciding the question of law and disposing of the case in the ordinary way.” (page 22)
I note that the Tribunal is regularly faced with questions as to its jurisdiction and must ascertain its boundaries regularly, if not daily. Naturally, it cannot make a determinative finding as to its boundaries for that is a matter for the courts. In doing so, it is guided by relevant legislative provisions and case law. In this case, I have not only had the provisions of the AAT Act to consider but a judgement of the Tamberlin J that has set out the law that must be applied to the very facts before me. His Honour has answered the question that I must ask myself to resolve the matter and I am bound by his answer. Even if I were not to agree with his judgement, I should not use the power I have been given under s. 45 as a device to appeal, in effect, against his Honour’s judgement to a Full Court. If Mr Lower had not been happy with his judgement, he had the opportunity to lodge an appeal to the Full Court at an earlier time.
Even if it should transpire that I am not bound by Tamberlin J’s judgement, I do not consider that this is an appropriate case in which to refer a question of law to the Federal Court. The issue regarding the Tribunal’s jurisdiction in this case seems to me to be no more complex than many of the issues that face the Tribunal. An application under s. 42A(10) is made occasionally but not so often that resolution of the issues in this case could be said to be of widespread importance. In the circumstances of this case, resolution of the issue does not necessarily resolve the matters in dispute between the parties. If it is decided in the manner in which I have decided it, it certainly does. If it were to be decided in favour of Mr Lower it would be but one of the issues for resolution.
That brings me to the costs involved in referring a question of law. To do so necessarily involves both parties in incurring further costs when they have already incurred the costs of fully arguing all of the issues in the Tribunal. Having heard that argument, it seems to me that the most cost effective means of proceeding is for me to give my decision and reasons. Mr Lower can consider his position. If he is unhappy with my decision, he can lodge an appeal to the Federal Court.
It has been suggested to Mr Lower that he should lodge an application for an extension of time. Whether or not he would be successful is not a matter on which I can offer a comment but it is an avenue that remains open to him.
For the reasons I have given, I refuse to reinstate the applicant’s application for review dated 29 November, 1991.
I certify that the thirty‑six preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)
Signed: ................................................................
P. Paczkowski Associate
Date/s of Hearing 1 May, 2003
Date of Decision 6 June, 2003
Counsel for the Applicant Ms R. Layton QC with Mr R. Prince
Solicitor for the Applicant Finlaysons
Counsel for the Respondent Ms S. Maharaj with Ms K. Bean
Solicitor for the Respondent Australian Government Solicitor
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