S.A.L. Kitchen v Administrative Appeals Tribunal

[1989] FCA 329

.JA 1

IN TEE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY	i	V. NO. G.81 of 1989
1
GENERAL DIVISION	)
BETWEEN:

S.A.L. KITCHEN

Applicant

ana

COURT :	NORTHROP J.	.
DATE :	16 PIAY 1989
PLACE :	MELBOURNE	p*,.
REG S 6 Y

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EX-TEMPORE REASONS FOR JUDGMENT

In this matter the applicant was seeking a review of decisions made by officers of the Department of Social Secucity in relation to amounts of pension under the Social Security Act. The review was being brought before the Administrative Appeals ~ribunal constituted by Mrs Balmford as a senior member and Hr Cohen and Mr Woodard as members. When the matter came on for hearing before the Tribunal, the applicant appeared in person and an officer of the department appeared before the tribunal to present the case on behalf of

the Department.

It must be remembered that under the provisions of the Administrative Appeals Tribunal Act 1975, the Tribunal, when hearing an order of review of that kind, is sitting in the place of the Department and is exercising all the powers

of the Department and eventually it makes a decision which it

considers to be the appropriate decision as if it were the Department. For this purpose it has regard to material relevant to the substantive matters at issue between the person seekihg the review and the relevant department involved.

There is a provision in the Administrative Appeals Tribunal enabling the tribunal to refer a question of law to the Federal Court of' Australia. Section 45 of the Administrative Appeals Tribunal Act provides:

.45(1) The Tribunal may, of its own motion or at the request of a party, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision but-"

There are then restrictions placed upon that power.	For the
present case the relevant restriction is contained in

paragraph (b) of sub-section (1) and that paragraph reads:

"(b) in the case of a proceeding before the Tribunal at which a presidential member does not preside, a question shall not be so referred without the concurrence of the President."

The "President" means the President of the Administrative
Appeals Tribunal.

Before the Tribunal the applicant sought an order that the Tribunal refer a question of law to the Federal Court to determine an issue that had been raised as to the effect and application of some document used by the Department in relation to the assessment of the amount of pensions. The Tribunal refused to refer the question of law as requested by the applicant. The applicant then issued this application under the Administrative Decisions (Judicial Review) Act 1977 seeking a review of the conduct of the respondent namely to continue to hear the matter before the Tribunal which had been brought by the applicant.

It is not easybto determine what is being sought to be reviewed; in substance it appears to be the decision not to refer a question of law to the Court but at the same time the matter is still pending before the Tribunal and the further hearing is to be heard by the Tribunal on 1 June.

The application under the Judicial Review Act also specifies the orders being sought by the applicant and they

read as follows. The applicant claims:-

"(1) an order or declaration that there should be restored the difference between the total of the full pension payments otherwise payable and the total payments actually made as from the date they were reduced;

( 2 payment of interest at the rate currently applicable to judgment debts as being reasonably and equitably due for the period that the pension was reduced."

First, it is noted that the application under the

Judicial ~ e v i e w ~ c t appears to be brought under 8.6,

sub-section (l) of which provides that:

'6.1 Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which the Act applies, a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the condvt on any one or more of the following grounds.'

.

There are then set out a number of grounds which correspond to the grounds set out in s.5.

The powers of this Court in respect of applications for orders of review aje set out in s.16 of the Judicial Review Act. In substance the orders the Court can make are orders quashing or setting aside the decision or part of a decision, an order referring the matter to which the decision relates to the person who made the decision for further consideration, an order declaring the rights of the parties in respect of any matter to which the decision relates, or an order directing any of the parties to do or to refrain from

doing any act or thing the doing or the refraining from the

doing of which the Court considers necessary to do justice

between the parties.

There are a number of authorities of this Court
that in review applications the Court does not enter into the
merits of the case. It is concerned more with procedural

matters; whether the person exercising the powers conferred has done so according to law or not. Although 8.16 gives power to this Court to make an order declaring the rights of the parties in respect of any matter to which the decision relates, that is a power which is extremely rarely exercised and only then in exceptional circumstances. If the application is successfu~, the normal order is an order setting aside the decision sought to be reviewed and, in an appropriate care, referring th; matter back to the Tribunal or to the perion concerned to hear and determine the matter according to law.

The problem in the present case is that when one has regard to the orders being sought, the nature of the proceeding before the ~rfbunal which is exercising the powers of the Department of Social Security and the unusual course by which the question of law was sought, this, in my opinion, is not a case which is appropriate to be dealt with by this Court at all. The matter is still pending before the Tribunal. The matter should be heard and determined by the Tribunal itself. If, as a result of that hearing, a decision

an appeal to this Court on a question of law. In those	is then made which is adverse to the applicant he can bring
proceedings the Court is able to determine whether the Tribunal has made any mistake of law or not. If it has made a mistake of law the Court has power to refer the matter back to the Tribunal to hear and determine the application according to law. Even in proceedings of that kind, the Court does not involve itself in the substantive issues
between the parties and does not exercise the povers conferred upon the Tribunal or upon the relevant officer of the Department making the decision. The Court deals with the question of whether there has been a mistake of law, either in substance or in procedure, and refers the matter back.
~ssuer raised by the proposed cane stated or question of law could be raised at the hearing of that appeal. In many respects thir application is premature in that in the ;brence of any final decision being made it is not known whether the applicant has been aggrieved or not by any decision.

In giving these reasons I do not decide and do not

.

make any comment upon whether this is a proper form of procedure where the Administrative Appeals Tribunal itself contains its own procedures of appeal to this Court on questions of law and I do not consider the application of s.10 of the Judicial Review Act which confers a discretion on this Court not to proceed further with a matter. Nor do I consider whether the applicant is a person aggrieved within

has been made, a procedural decision only being sought to be	the meaning of the Judicial Review Act in that no final order
reviewed. Normally one would have to wait until the final decision is made to see whether the applicant is aggrieved or not within the meaning of that word in the Judicial Review
Act. - Nor do I decide whether the Judicial Review Act applies
to decisions of the Administrative Appeals Tribunal.
All I say is that on the application itself and in light of what has been put before the Court this morning, this is an application which is not appropriate and should be dismissed. his does not prevent the applicant from pursuing his case in the ~ribunal on all aspects of the matter. This is a case where the applicant should so pursue his claim before the Tribunal.

.

The formal order of the Court is that the

application b-e dismissed.

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