FEDERAL COURT OF AUSTRALIA

Ibarcena v Cole [2003] FCA 417

Administrative Appeals Tribunal Act 1975 (Cth) s 44, s 44A

Social Security Act 1991 (Cth)

Cook v ASP Ship Management [2001] FCA 598  referred to

JEREMY PATRICK IBARCENA and ANOTHER v ANITA COLE and ANOTHER

A15 OF 2003

FINN J

14 APRIL 2003

CANBERRA

THE COURT ORDERS THAT:

            The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     On 31 March 2003 the applicants, Jeremy Patrick Ibarcena and Shirley Gibbons who are husband and wife, lodged an appeal in this court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the Act”) and belatedly sought to invoke the Court’s jurisdiction under s 44A of the Act for the purpose of staying the decision said to have been made by the Administrative Appeals Tribunal.  The short point before the Court today is whether the applicants have, in fact, enlivened this Court’s jurisdiction to entertain an appeal under the Act.

2                     The matter in question arises under the Social Security Act 1991 (Cth) in respect of decisions taken originally by a delegate of the Secretary, Department of Family and Community Services in respect of overpayments said to have been made to each of the applicants.  The original decision has been the subject of a number of internal appeals which led ultimately to an appeal by the applicants to the Administrative Appeals Tribunal.  On 18 March 2003 the Tribunal, constituted by Senior Member Sassella, heard the applications.

3                     In the course of those applications the Senior Member appeared to make intimations as to the likely outcome of the two applications before him (one from each of the applicants), or else, made comment on the relevance of documents placed before him.  On the evidence that has been filed in this matter on behalf of the respondents, it would appear that when the Senior Member heard the matter on that day, the Senior Member reserved his decision. 

4                     The Registrar of the Administrative Appeals Tribunal has written two letters, both of which are in evidence.  The first, to the Australian Government Solicitor, confirms that the matter was heard and reserved by the Senior Member on that date and that no decision has been rendered.  The second, which accompanied the transmission of documentation to this Court, likewise indicates to the Court that as yet a decision has not been made by the Tribunal. A copy of the hearing report was attached to the second letter.  That hearing report indicates on its face (a) the fact that a hearing was held and (b) that no oral decision was given but, rather, that the decision was reserved.

5                     As was said by Spender J in his judgment in the decision of the Full Court in Cook v ASP Ship Management [2001] FCA 598 at [5], quoting from the joint judgment of the Full Court in Geographical Indications Committee v Hon O’Connor J and Others:

“Section 44(1) [of the Administrative Appeals Tribunal Act] provides that a party to a proceeding before the Tribunal may appeal to the Federal Court of Australia on a question of law, from any decision of the Tribunal in that proceeding. … “[D]ecision” in section 44(1) has a restricted meaning.  The meaning is confined to a final decision or determination.”

His Honour went on to say [at 6]:

“There is no right of appeal under s 44 of the AAT Act in respect of directions which are not matters of final decision or determination.”

In the present matter, the evidence before me satisfies me that the Tribunal has not reached a determination in this matter at all.  The decision is reserved.  Equally, I am satisfied, given the requirement of finality, that the term “decision” does not apply to intimations of likely success in a proceeding, let alone as to comments on relevance.  For these reasons I am satisfied that the appeal, so called, in this matter is destined to inevitable failure for the reason that the jurisdiction to entertain the matter has not properly been enlivened.  There is simply no decision against which the alleged appeal is said to lie.

6                     The application is premature.  Until a decision has been rendered this Court is not, under s 44(1) of the Administrative Appeals Tribunal Act 1975, entitled to interfere.  For that reason, I dismiss the application in this matter.

Associate:

Dated:              7 May 2003