Pistone v D.F.C.S.

[2003] FMCA 596

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

1. 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. The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

3. 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)

1. 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.

2. 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. 

3. 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…