Pistone v D.F.C.S.
[2003] FMCA 596
•28 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PISTONE v D.F.C.S. | [2003] FMCA 596 |
| ADMINISTRATIVE LAW – Appeal from AAT – consent orders – appeal allowed – duty of Court to identify error of law – no mere formality. |
Administrative Appeals Tribunal Act 1975, s.44
Allan and Repatriation Commission [2003] AATA 994 (3 October 2003)
Kovalev v Minister for Immigration & Multicultural Affairs (1999)
100 FCR 323
Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323
| Applicant: | SHARYNE JOAN PISTONE |
| Respondent: | SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
| File No: | MZ 592 of 2003 |
| Delivered on: | 28 November 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 28 November 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr A.R. McNab |
| Solicitors for the Applicant: | Clark & Toop |
| Counsel for the Respondent: | Ms J. Macdonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The decision of the Administrative Appeals Tribunal made on 14 April 2003 setting aside the decision of the Social Security Appeals Tribunal dated 13 November 2001 be set aside.
The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
The respondent pay the applicant's costs of the appeal.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 592 of 2003
| SHARYNE JOAN PISTONE |
Applicant
and
| SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application by Sharyne Joan Pistone (the applicant), seeking to appeal from a decision by the Administrative Appeals Tribunal (the AAT) delivered on 14 April 2003 where the tribunal decided that a decision of the Social Security Appeals Tribunal under review be set aside and in substitution it was decided:
(1)at the date of claim and
(2)within 13 weeks of the date of claim the respondent was not qualified for payment of disability support pension.
The proceedings in relation to the appeal from that decision commenced by notice of appeal filed in the Federal Court on 30 April 2003. The notice of appeal, which was then relied upon by the applicant, relied upon very brief grounds. The Federal Court by order dated 2 June 2003 transferred the matter to this court for further hearing and determination.
When the matter was before this court on 10 July 2003 I made certain procedural orders in relation to the preparation of documentation for hearing and otherwise listed the matter for trial this day. Amongst the orders I made on that occasion was an order that the applicant shall file and serve an amended notice of appeal. An amended notice of appeal was duly filed on 8 August 2003. In that amended notice of appeal further grounds were relied upon. In particular, it was stated in that amended notice of appeal that the decision of the Administrative Appeals Tribunal dated 14 April 2003 incorrectly interpreted and applied the law with regard to s. 94 of the Social Security Act 1991 in that the decision of the Administrative Appeals Tribunal:
“1.1incorrectly interpreted and applied the law in relation to the word "permanent".
1.2incorrectly interpreted and applied the law in relation to the word "stabilized".
1.3incorrectly interpreted and applied the law in relation to the word "work" and
1.4incorrectly interpreted and applied the law in relation to the phrase "continuing inability to work".
2.That the Applicant was denied natural justice and/or procedural fairness.”
When the matter came before me on 10 July 2003 I had made a further order that the parties attend a mediator with an intent to resolve the differences they may have in relation to this matter. It is my view that in appeals from the AAT, as with other proceedings in this court, mediation is often an appropriate order to make in circumstances where there may well be a prospect of resolving litigation at any early stage in proceedings.
The difficulty in the present case has arisen in that whilst the parties have reached some agreement in terms of resolving the matter, the court was concerned to ensure that the agreement reached by the parties in the form of consent minutes submitted to the court, should become a formal order of the court where the court has to deal with an appeal from the AAT based upon a claimed error of law.
During the course of an audio-link directions hearing I had requested the parties to submit in writing documentation which would enable the court to at least understand and comprehend the basis upon which the parties had reached agreement whereby they had formulated consent orders to the following effect:
(1)That the decision of the Administrative Appeals Tribunal made on 14 April 2003 setting aside the decision of the Social Security Appeals Tribunal dated 13 November 2001 be set aside.
(2)That the matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
(3)That the respondent pay the applicant's costs of the appeal.
The reason why I requested the parties to provide documentation setting out the basis upon which those consent orders were sought was that I had the view then and now that in making consent orders of the type sought there is a duty on this court as an appellate court to provide guidance to the AAT from whom the appeal arises as to those matters which might be said to be errors of law sufficient to attract successful appeal pursuant to s.44 of the Administrative Appeals Tribunal Act 1975.
I am strengthened in that view by reference to a recent unreported decision of Allan and Repatriation Commission [2003] AATA 994
(3 October 2003). In that decision His Honour refers to a passage from a judgment of French J in a matter of Kovalev v Minister for Immigration & Multicultural Affairs (1999) 100 FCR 323 and in particular at pages 326 to 328 as follows:-
"In making a consent order the Court exercises judicial power. This is a power conferred upon it by the Parliament under Ch III of the Constitution of the Commonwealth. Its exercise is a public function and operates to bind the parties. Its public character applies to agreed orders disposing of private litigation between citizens or corporations and proceedings brought by or against governments and their agencies or public authorities.
An order disposing of proceedings by consent must be self-explanatory as must any order. It is not appropriate to make an order of uncertain content or the content of which is to be derived from materials which are not on the public record.
There is a fundamental difficulty where a court makes an order remitting a matter to a decision-maker or tribunal to be decided "according to law" and the court itself is not informed of the nature of the error conceded. The court is then making an order without being apprised of its basis and proposed operation. To do so in my opinion is a purported, but not an actual exercise of judicial power. Moreover, in a practical sense the decision-maker or tribunal lacks the benefit of any binding direction from the court as to precisely what it is that the decision-maker or tribunal is required to do. In the present case the precise concession which led to the proposed consent order had not been communicated by the respondent to the applicant. The possibility arose that the matter could have been remitted to the Tribunal with the parties themselves not being ad idem as to the error of law which had led to the decision being set aside and which the Tribunal was required to rectify. And even if there had been such an agreement the terms of the order proposed would not have disclosed to the public what the parties had agreed should be its content. In the particular case where a tribunal decision is set aside, the Tribunal itself is not usually a party and has played no role in the negotiation of the agreement that it erred in law. A fortiori in that case the order must be clear and complete and the Court must be satisfied that it is appropriate.
...
It is well-established that in making a consent order or indeed in accepting undertakings the Court must have regard to the limits of its power. The parties cannot, by consent, confer power on the Court to make orders which the Court lacks power to make - Thomson Australia Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163. The question whether a consent order is to be made, is not concluded by a finding that it is formally within the power of the Court. In the exercise of its power the Court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so: see Australian Competition and Consumer Commission v Real Estate Institute (WA) Inc (1999) 161 ALR 79 at 86 and the authorities referred to there. It is important therefore that the Court itself addresses and is satisfied of the basis upon which its order is to be made and in particular where the order sets aside the decision of an official decision-maker or a tribunal.
...
It is also a substantial discourtesy for a court to overturn the decision of an official decision-maker and a fortiori that of a statutory tribunal without consideration of the error that leads to the decision being overturned or communication of the terms of that error to the decision-maker or tribunal. If such a determination is to be set aside on the basis that it has failed to apply or has misapplied the law whether substantive or procedural, there may potentially be some precedential impact in other like cases. To permit the principle underlying the order to be formulated only by the parties in their submissions to the decision-maker or the Tribunal leaves the content of that principle in the hands of the parties."
It is sufficient for the present purposes to indicate that, although His Honour French J in the Kovalev case was dealing with review of a Refugee Review Tribunal decision, it is my view that a court sitting as an appellate court dealing with appeals from the AAT has similar duties to those duties referred to by French J in the Kovalev case.
It is clear from the decisions to which I have referred that the making of orders, albeit by consent, is no mere formality.
I have now received submissions on behalf of the respondent indicating the basis upon which it is now said that this court should make the orders by consent. I have also taken the somewhat unusual step of making those submissions an exhibit before these proceedings so that the documents relied upon by the court can be clearly identified. The submissions regarding the consent orders are dated 27 November 2003 and those submissions are the subject of agreement by the applicant's representative. Essentially the main basis upon which the parties now agree that I should set aside the Administrative Appeals Tribunal's decision and remit the matter to be determined according to law arises from the following paragraph in those submissions:
“5.Mrs Pistone had tendered three medical reports to the AAT on the day of the hearing. It appears from pages 38 and 44 of the transcript that the AAT considered that these medical reports demonstrated that Mrs Pistone's medical conditions were permanent. However, in coming to its decision the AAT had regard only to the medical evidence within the
T- documents: see the Decision [16]-[23] and [26]. In so doing, the AAT committed an error of law because as a tribunal exercising all the powers and discretions of the person who made the decision,[1] it should have had regard to the facts and matters as they stood at the date of its decision in deciding whether or not Mrs Pistone qualified for DSP.”
[1] S.43(1) of the Administrative Appeals Act 1975
When submissions were made in relation to this issue I was referred to the reasons for the AAT’s decision and had the benefit of the transcript of the proceedings before the tribunal. Again out of an abundance of caution I received the transcript as an exhibit. It is clear from page 5 of the transcript that Mrs Pistone referred to what she described as "three lots of documentation here". Again for the purposes of these proceedings I have received as an exhibit (marked exhibit R3) the documents which are agreed to be those documents referred to in the transcript by Mrs Pistone as the three lots of documentation. They comprise documents which essentially appear to be generated by Mrs Pistone's physiotherapist, Ms Katrina Twigg. The first undated document, which has the heading ISI Primary Care Winton Campus, provides details of the applicant, and although it has a stamp from a doctor, is undated and not signed by the doctor. The second document is dated 6 March 2003 addressed "To whom it may concern," from Katrina Twigg. The third document is a document entitled “Treating Doctor's Report” albeit signed by physiotherapist Katrina Twigg, unfortunately undated. Nevertheless, they are the documents now received as an exhibit in this court by way of clarification which were, it is agreed, documents before the tribunal, at least to the extent they were referred to in the transcript (page 5).
I was further referred to the reasons for decision of the AAT and paragraph 26 which provides as follows:
“26.Having regard to the introductory paragraphs to the Impairment Tables, I am unable to find that within the period 30 November 2001 to 2 February 2002, that Ms Pistone suffered from conditions which could – within that period – be considered to be permanent. The totality of the medical evidence referred to above and found within the T-documents indicate that at April 2002 Ms Pistone was still undergoing treatment and further surgery was contemplated. It could not be said by 2 February 2002, that the conditions were then ‘permanent’, or were then ‘stabilised’.”
Earlier in the AAT’s decision reference had been made to the medical evidence. That reference commences at paragraph 15 and continues through to paragraph 23 as follows:
“15. To comprehend the submission of Mr Huttner, the crucial dates are 30 November 2001, when the claim was made and 2 February 2002, being thirteen weeks later.
16. The notes of the St. Vincent's Hospital reveal that Ms Pistone on admission on 7 June 2001, presented with extensive facial fractures together with depression and asthma. Surgery was to be undertaken on 8 June 2001.
17. Doctor Borromeo reported on 21 January 2002 that Ms Pistone suffered severe temporomandibular pain and dysfunction with associated bilateral facial pain, which he considered to be long term and deteriorating. He recorded that he was "unsure" as to when Ms Pistone would return to work.
18. Doctor Keating, the respondent's treating general practitioner reported on 8 April 2002 that Ms Pistone was suffering post operative neck pain and headaches and had undergone fixation of some of her facial fractures. He recorded that her condition then was temporary but fluctuating and found that she also suffered from depression, which he had been treating since 2000.
19. Doctor Loewy reported on behalf of Health Services Australia to Centrelink on 26 April 2002 that Ms Pistone suffered from facial injuries, cervical spine injuries together with restricted right shoulder movement and reduced power in her right arm, all of which he regarded as being temporary. He found that she also suffered from depression being secondary to chronic pain, which he also considered to be temporary. He thought Ms Pistone would be fit to return to full-time work within 12 to 24 months but acknowledged that prognosis beyond 6 to 12 months was difficult to predict.
20. Mr Jenner a physiotherapist reported on 9 May 2002 that Ms Pistone was suffering from cervical and spinal injuries together with right neck, right shoulder and right arm pain and limitation of movement together with headaches. He thought her condition was long term and was fluctuating.
21. It would appear from the medical evidence that Ms Pistone did have extensive facial surgery including the insertion and fixation of metal plates. At mid 2002 further surgery was contemplated. Nonetheless, her facial and dental specialists considered that she would have long term repercussions from the facial injuries.
22. Additionally, Ms Pistone was being treated for asthma, which was apparently associated with nasal or sinus obstruction, which had an association with the facial fractures.
23. With respect to the applicant's neck injury, it would appear that a CT scan of 30 January 2002 revealed disc bulging at C4/5 and C5/6.”
I am prepared to accept that when the AAT refers in paragraph 26 to the material described as the “totality of medical evidence referred to above and in the T documents” that the material referred to does not include the three documents which I referred to earlier. Those documents were not part of the T documents before the AAT, and although referred to in the transcript, are not referred to under the heading “Medical Evidence” in the AAT's Reasons for Decision. In my view, submission 5 made on behalf of the respondent and agreed to by the applicant, is clearly correct.
The AAT in considering these matters is not only entitled but obliged to consider all the relevant evidence which may be provided to the AAT at the time of the hearing and that includes medical reports of the kind referred to earlier which the AAT according to the transcript had before it. Even though those documents were not formally made exhibits, I note further from the transcript that copies were made and provided to the representative of the respondent. I note further from the transcript (page 9) that the AAT addressed these issues and specifically asked the representative of the respondent whether he was comfortable proceeding with "these new papers that you have received from the physiotherapist". The representative of the respondent answered that question, "Yes, sir."
It is clear to me therefore that the documents were received, though not made formal exhibits, and they are not referred to in the reasons for decision. To the extent that they do not form part of the reasons for decision, it is my view that there has been an error of law (See Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323). I am therefore prepared to make the following orders by consent.
I am prepared to make the orders in this matter notwithstanding the fact that the error now identified does not directly arise out of the grounds set out in the Amended Application. I am prepared to make the orders given that they are based upon submissions made on behalf of the Respondent and by consent.
I will direct that the reasons I have just given be transcribed and upon review shall constitute my reasons for decision. In accordance with the usual practice, those reasons shall be forwarded to the Administrative Appeals Tribunal and the parties.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 28 November 2003
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