FEDERAL COURT OF AUSTRALIA

Johnson v Veterans’ Review Board [2005] FCA 1136

PRACTICE AND PROCEDURE – application for review of a decision of a Deputy President of the Administrative Appeals Tribunal (AAT) dismissing an application for review of a decision of the Registrar of the AAT – where decision of the Registrar had previously been reviewed – AAT’s power to review a decision more than once.

Veterans’ Entitlements Act 1986 (Cth), ss 148(6A), 155AA, 155AB, 158(4), 166(1A)

Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 25, 26, 27, 29, 43, 43AA, 44

Re Johnson and Veterans’ Review Board & Anor (2000) 31 AAR 121 referred to

Johnson v Veterans’ Review Board [2002] FCA 1543 referred to

Johnson v Veterans’ Review Board [2003] FCAFC 89 referred to

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 cited

Chandler v Alberta Association of Architects [1989] 2 SCR 848 cited

KEITH DOUGLAS JOHNSON v VETERANS’ REVIEW BOARD

SAD 64 of 2004

LANDER J

19 AUGUST 2005

ADELAIDE

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

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

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Administrative Appeals Tribunal (AAT) constituted by Deputy President Jarvis given on 10 March 2004.

2                     The applicant has had a long history of litigation with the respondent in respect of his claim for a pension because of an incapacity caused by vertigo and epilepsy.

3                     The applicant served in the Australian Army between 1962 and 1986.  He served in Borneo, Malaya and Vietnam.  He was awarded a Military Medal and two Distinguished Conduct Medals.  He said in his submissions to me that he had been ‘stabbed in the back’ by the Registrar of the Veterans’ Review Board by his act in dismissing the applicant’s application for review on 11 March 1999.

4                     On 20 March 1996 the applicant made a claim under the Veterans’ Entitlements Act 1986 (Cth) (the Act) to the Repatriation Commissioner for a pension in respect of incapacity caused by vertigo and epilepsy.   The condition was subsequently rediagnosed as neuro-behavioural disorder.  That claim was rejected on 28 March 1996.

5                     On 28 April 1996 the applicant applied for a review by the Veterans’ Review Board (VRB) of that decision.

6                     The VRB is a Board established by s 107VB of the Repatriation Act 1920 (Cth) which has been continued in existence by s 134 of the Act.

7                     Appointment to the Board is provided for in Division 7 of the Act.  The Principal Member of the Board is a full-time member: s 158(4).

8                     Pursuant to s 166, the Principal Member may, by writing signed by him or her, delegate all of his or her powers under s 148(6A) or s 155AA or s 155AB to a Registrar or a Deputy Registrar: s 166(1A).

9                     On 17 December 1992 Mr J P Gallagher, who was then the Principal Member, delegated ‘to those persons who, from time to time, hold a position designated as Registrar of the Veterans’ Review Board, my powers under sections 155AA and 155AB of that Act, provided that such power shall only be exercised by those persons in accordance with directions issued by me from time to time’.

10                  On 19 October 1998 the Registrar of the VRB sent a notice to the applicant under s 155AA(4) of the Act.  The Registrar was there purporting to exercise the power delegated to him by Mr Gallagher pursuant to s 166(1A).  On 22 October 1998 the applicant sent a response to the notice.  On 2 November 1998, pursuant to s 155AA(6) of the Act, the Registrar of the VRB sent an Extension Notice to the applicant.

11                  Section 155AA(6) provides:

‘(6)      If:

                (a)   the applicant provides a written statement under paragraph (4)(d) within the 28 days; and

                (b)   the Principal Member considers that the statement contains a reasonable explanation for the applicant’s failure to be ready to proceed at a hearing;

            the Principal Member must notify the applicant and the Commission of this.’

12                  On 4 February 1999, pursuant to s 155AB(4) of the Act, the Registrar of the VRB sent a notice to the applicant.

13                  Section 155AB(4) provides:

‘(4)      If this section applies to an application for review at the end of the extended review period, the Principal Member must give a written notice to the applicant requesting the applicant to provide to the Principal Member, within 28 days after receiving the notice:

                (a)   a written statement indicating that the applicant is ready to proceed at a hearing; or

                (b)   a written statement explaining why the applicant is not ready to proceed at a hearing.’

14                  On 11 March 1999 the Registrar dismissed the application for review under s 155AB(5).  That subsection provides:

‘(5)      If the applicant does not provide a written statement under paragraph (4)(a) or (b) within the 28 days, the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.’

15                  In dismissing the applicant’s application for review under that subsection, the Registrar was again purporting to act under the delegated authority from the Principal Member.

16                  On 11 June 1999 the applicant applied to the AAT for an extension of time for a review of the decision to dismiss his application on 11 March 1999.  On 8 October 1999 the AAT granted an extension of time but on 12 April 2000, the AAT affirmed the decision under review.  That decision was, of course, the decision to dismiss the application under s 155AB(5).

17                  In the meantime, on 9 June 1999, the applicant made a separate claim for a pension in respect of incapacity for post-traumatic stress disorder and a further claim in respect of vertigo and epilepsy.  On 30 September 1999 a delegate of the Commissioner accepted post-traumatic stress disorder as war caused with effect from 9 March 1999.

18                  On 1 May 2000 the applicant commenced an action in this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).  In June 2000 that action was discontinued.

19                  On 8 September 2000 a delegate of the Commissioner accepted epilepsy as defence caused with effect from 9 March 1999.  On 27 April 2001, by consent, the AAT accepted vertigo as war caused and increased the pension to the ‘special rate’ provided for in s 24 of the Act with effect from 9 March 1999.

20                  The applicant waited five years for the pension which he first sought on 20 March 1996; although the pension, when granted, was backdated until March 1999.  Thus, he did not receive the benefit of any pension between December 1995 (the date of the application for a pension) and March 1999.  The applicant contended that if the Registrar had not decided to dismiss the applicant’s application for review on 11 March 1999 he would have received his benefits in December 1995.  The respondent does not accept that contention, even if the decision to dismiss the applicant’s application for review were set aside.  I do not need to determine what benefits the applicant would have been entitled to had the decision to dismiss the application for review not been made, although, I must say, if the applicant is correct it is a most unfortunate result.

21                  However, my function is to decide this appeal according to law.  It is for others to determine whether it would be appropriate to provide some sort of compensation to the applicant if he fails on this appeal.

22                  In 1992 Mr John Gallagher was appointed Principal Member of the VRB.

23                  On 21 July 2002 Mr Gallagher made a delegation pursuant to s 166(1A) in the following terms:

‘I, John Patrick Gallagher, Principal Member of the Veterans’ Review Board, acting in accordance with subsection 166(1A) of the Veterans’ Entitlements Act 1986, hereby delegate to those persons who, from time to time, hold a position designated as Registrar of the Veterans’ Review Board, my powers under sections 155AA and 155AB of that Act, provided that such powers shall only be exercised by those persons in accordance with directions issued by me from time to time.’

24                  He made a further delegation on 17 December 1992 in similar terms with the addition of a second sentence.  It is not clear why two separate delegations were made but nothing turns on that.

25                  Mr Gallagher published the delegation made on 21 July 1992 to all Registrars on the same day.

26                  At the same time he published a document headed ‘Dismissal of Applications Procedures’ which indicated the procedure that the Registrars should adopt in exercising the powers under s 155AA and s 155AB.

27                  Mr Gallagher ceased to be the Principal Member, I think, on 8 April 1997 when Mr William Rolfe was appointed Principal Member.

28                  Mr Rolfe did not make any separate delegation to that which had been made by Mr Gallagher until 15 January 2001 when he published a delegation in the following form:

‘I, William Douglas Rolfe, Principal Member of the Veterans’ Review Board, revoke the instrument of delegation dated 17 December 1992 and delegate under subsection 166(1A) of the Veteans’ Entitlements Act 1986 (the Act), my powers under sections 155AA and 155AB of the Act to each officer who from time to time performs the duties of the office of Registrar of the Veterans’ Review Board, while ever that person is performing those duties.’

29                  On 1 March 1999 he had, however, published a document entitled ‘Veterans’ Review Board – Operations Manual’ in which he set out the procedure which ought to be adopted when Registrars were considering the dismissal of an application.

30                  Thus it is the case that when the Registrar dismissed the applicant’s application for review on 11 March 1999 he did so purportedly upon the delegated authority from Mr Gallagher.  However, Mr Gallagher was not then the Principal Member but Mr Rolfe was.

31                  When the Registrar dismissed the application for review, he proceeded in accordance with the Operations Manual which had been issued by Mr Rolfe on 1 March 1999.

32                  On 23 August 2002 the applicant commenced a separate action in the Federal Court of Australia seeking to challenge the decision of the Commission made on 28 March 1996 rejecting his claim for vertigo and epilepsy.

33                  As part of that claim, the applicant contended that the Registrar’s dismissal of his application for review on 11 March 1999 was invalid because the Principal Member who had delegated his power to the Registrar was no longer the Principal Member as at the date of the dismissal.  He contended that the new Principal Member, Mr Rolfe, who had been appointed on 8 April 1997, had not made a delegation pursuant to s 166.

34                  In the alternative, he contended that the delegation made by Mr Gallagher was precise in its terms and required the Registrar to only exercise the delegated powers in accordance with directions issued by Mr Gallagher.  He contended that Mr Rolfe had given subsequent directions which were inconsistent with those given by Mr Gallagher.  The Registrar had acted on the subsequent directions and therefore not acted in accordance with the delegation made to him.

35                  The matter came on before Mansfield J who delivered his reasons for judgment on 13 December 2002: Johnson v Veterans’ Review Board [2002] FCA 1543.

36                  He said:

‘27       I turn to consider the second of the grounds of the present application.

28        On 21 July 1992 the then Principal Member of the Board, John Patrick Gallagher (Mr Gallagher), issued a memorandum to all Registrars concerning dismissal procedures.  It followed the introduction of ss 155A, 155AB and 155AC which were introduced into the Act by the Veterans’ Affairs Legislation Amendment Act 1992 (Cth), which came into operation on 26 June 1992.  The document referred to the fact that the responsibilities and duties given to the Principal Member by the provisions have been delegated to Registrars.  It stressed, therefore, that decisions required under those provisions must be taken by Registrars personally and Registrars must personally sign the relevant notices and correspondence.  It appears that on 1 March 1999, the then Principal Member of the Board introduced an operations manual dealing with the same matters somewhat more formally, constituting a direction given by the Principal Member pursuant to s 142 of the Act.  It was relevantly in the same general terms as the memorandum of 21 July 1992.  It required, in addition, that Registrars personally sign notices and correspondence as “Delegate of the Principal Member”.  Hence, the additional description used by the SA Registrar of the Board in the decision, and notice of the decision, given on 11 March 1999.

29        At the same time, that is 21 July 1992, the then Principal Member provided a delegation under s 166(1A) in the following terms:

“I, John Patrick Gallagher, Principal Member of the Veterans’ Review Board, acting in accordance with section 166(1A) of the Veterans’ Entitlements Act 1986, hereby delegate to those persons who, from time to time, hold a position designated as Registrar of the Veterans’ Review Board, my powers under sections 155AA and 155AB of that Act, provided that such powers shall only be exercised by those persons in accordance with directions issued by me from time to time.”

30        As noted, the notices given on 19 October 1998 pursuant to s 155AA(4) and on 4 February 1999 pursuant to s 155AB(4) were signed by D Smith Registrar (SA).  It was only the reasons for decision and the notice of decision given on 11 March 1999 which were signed by the SA Registrar also as delegate of the Principal Member.  Mr Johnson contends, in those circumstances, that the two notices given on 19 October 1998 and 4 February 1999 were invalid, with the consequence already referred to.  He also argues that, because Mr Gallagher ceased to be Principal Member of the Board on 8 April 1997 and was then replaced by William Douglas Rolfe (Mr Rolfe) as new Principal Member, the instrument of delegation given by Mr Gallagher came to an end.  There was no delegation given by the new Principal Member of the Board of powers under ss 155AA and 155AB until 15 January 2001.  It revoked the delegation dated 17 December 1992.  It was in similar but not identical terms to the earlier delegation.

31        It is convenient to deal with that latter submission first.  I do not accept it.  In my view the argument is in effect the same as that adduced to Neaves J in Kelly v Watson (1985) 10 FCR 305 (Kelly).  That case relevantly concerned the status of a delegate of a permanent head of a department where the permanent head had ceased to occupy the office.  The permanent head had delegated to an officer disciplinary powers or functions under the Public Service Act 1922 (Cth), pursuant to s 25(5) of that Act.  The issue arose as to whether a delegation under that provision continued to have operative effect notwithstanding the vacation of office of the particular permanent head who executed the instrument of delegation.  Neaves J decided the case on other grounds, but he specifically also addressed the issue at 318-319.  His Honour’s judgment has been followed by the Full Court (Morling, Jenkinson and Heerey JJ) in Aban v Minister for Immigration Local Government and Ethnic Affairs (1991) 31 FCR 93 at 98 where it was held that a delegation by the then Minister of Immigration under s 176(1) of the Migration Act 1958 (Cth) continued when the office of Minister passed to a new holder.  His Honour rejected the argument that the delegation should cease to operate when the delegator ceased to hold the office.  He said that clear and unambiguous language would be required before construing the statute to produce such an inconvenient result.

32        In my view his Honour was correct in determining that the question there arising was a matter of construction of the particular legislation.  In my view the same approach should be adopted to s 166 of the Act, and with the same result.  As is apparent in Kelly, and in this matter, the recipient of the delegated powers does not become the agent of the delegator or Principal Member but is required to exercise the powers delegated in accordance with the recipient’s independent discretion and in accordance with the provisions of the Act.  Consequently, as his Honour said in Kelly at 318:

“There is, therefore, nothing in the relationship between the person delegating the power and the delegate, as there would be if the relationship was one of principal and agent, which would require that the delegation should cease to have any valid operation upon the delegator ceasing to hold office.”

Nor do I see anything in the language of s 166(1) or in other provisions of the Act, and in particular ss 155AA and 155AB which would support a construction that a delegation of the Principal Member’s powers and functions under ss 155AA and 155AB of the Act should lapse when the delegator was replaced by a new Principal Member.  Moreover, the delegation under s 166 was to the persons occupying the office of Registrar of the Board from time to time, rather than to specified individuals.  The construction contended for by Mr Johnson would also produce an inappropriate and inconvenient result.  There is no administrative reason why that result might have been desirable.  Section 34AA of the Acts Interpretation Act 1901 (Cth) also lends support to that approach.

33        I do not think that the matters to which Mr Johnson referred in his supplementary submission of 26 November 2002 alter that conclusion.  He points to the fact that the Principal Member is appointed pursuant to s 158 of the Act, under statute, as compared to the appointment of a Minister.  He argues further that the Principal Member as a statutory office responsible for the operation of the Board, is not in a similar position to that of a permanent head of a department of the Commonwealth.  In my view, those differences are without significance to the proper construction of s 166 of the Act.  I consider that s 166 contemplates, or permits of, a delegation continuing to have effect notwithstanding the person occupying the office of Principal Member and who made the delegation ceasing to occupy the office apply.

34        I also reject the contention that the notices under s 155AA(4) and under s 155AB(4) are invalid because of the way in which the delegate was described on the notices namely as D Smith SA Registrar, without identifying that the notices were being given under a power delegated to that person.  In my judgment, the essential question is whether in fact the SA Registrar had the authority to issue the notices under s 155AA(4) and s 155AB(4).  I have found that the authority to do so existed, notwithstanding the fact that Mr Gallagher as the Principal Member who had made the instrument of delegation no longer occupied the office at 19 October 1998 or 4 February 1999 respectively, and at 11 March 1999 when the decision was made under s 155AB(5) of the Act.  It is the substantive question as to the authority of the SA Registrar which addresses whether the acts and decisions of the SA Registrar are valid, rather than the way in which the SA Registrar as delegate is described.  That seems to be the approach adopted by the Full Court (Bowen CJ, Beaumont and Gummow JJ) in Broadbridge v Stammers (1987) 76 ALR 339 at 342-343 albeit in a different legal context.  There is no provision to which Mr Johnson drew the Court’s attention which would suggest that the SA Registrar, to validly exercise the delegated power, had to be described in a certain way on documents generated in the exercise of the power.  The instrument of delegation is not so conditioned.  Indeed, the point seems to have been raised only because Mr Rolfe in his direction of 1 March 1999 under s 142 required a specific direction to be adopted.

35        Accordingly, in my judgment, there is no merit in the substantive matters argued on behalf of Mr Johnson.  On the assumption that I have jurisdiction to hear and determine matters which he raises, I dismiss his application.’

37                  I have set out the whole of Mansfield J’s reasons in relation to this aspect of the applicant’s claim before him to identify the arguments advanced by the applicant and the comprehensive way in which Mansfield J dealt with them.

38                  The applicant appealed from that decision but the appeal was dismissed: Johnson v Veterans’ Review Board [2003] FCAFC 89.

39                  It does not appear from a reading of the reasons, that the matters to which Mansfield J referred in [27]-[35] were ventilated in the Full Court.

40                  On 9 May 2003 the Full Court dismissed the applicant’s appeal and ordered the applicant to pay the respondent’s costs.

41                  On 11 November 2003 the applicant wrote to the Principal Member of the VRB seeking reinstatement of his application.  On 14 November 2003 the VRB replied to that correspondence in the following terms:

‘I refer to your letter dated 11 November 2003 to the Principal Member in which you asked that your application for review concerning neurobehavioural disorder be reinstated.  The Principal Member has asked me to respond to your letter.

Your application cannot be reinstated.  The Federal Court has already considered the matter that you have raised in your letter and the effect of the Court’s judgment is that at all relevant times the Registrar, Mr Smith, had the necessary delegation and authority to do what he did: see paragraphs 31 to 34 of the judgment of Justice Mansfield.

As your application for review as properly dismissed, a matter which has been affirmed by the Administrative Appeals Tribunal, it cannot be reopened or reinstated.’

42                  On 25 November 2003 the applicant applied under the Freedom of Information Act 1982 (Cth) for:

‘The document of authority for Mr D Smith Registrar SA, to use in his signature block, “Delegate of the Principal Member of the Board” on 11 March 1999.  The authority should be dated on or before 11 Mar [sic] 1999.’

43                  On 12 December 2003 the VRB replied enclosing Principal Member Gallagher’s delegation of 17 December 1992, together with the dismissal procedures direction issued by him on 21 July 1992.  It also enclosed a copy of the Operations Manual issued by Principal Member Rolfe on 1 March 1999.

44                  On 30 December 2003 the VRB received a document entitled ‘Appeal against illegal correspondence’ dated 25 December 2003 in the following terms:

‘On 25 December 2003, I, Keith Douglas Johnson, of 14 Saint Alfred Drive, PARAFIELD GARDENS, in the State of SOUTH AUSTRALIA, 5107, Unemployed, Say on oath.

1.         In a Letter Dated 14 November 2003, the Veterans’ Review Board (VRB), states that Mr Smith Registrar SA had the necessary delegation and authority to sign as Delegate of the Principal Member.

2.         In a letter Dated 12 December 2003, In answer to my application under the Freedom of Information Act 1982, the (VRB), contends that a Delegation of Principal Member Gallagher dated 17 December 1992, covers the Operation Manual dated 1 March 1999, purported to be issued by Principal Member Brigadier Rolfe.

3.         My contention is that a delegation of Principal Member Gallagher of 17 December 1992, he States “provided that such powers shall only be exercised by persons in accordance with directions issued by me from time to time.”.  It is inconceivable that that delegation could be used to cover an operation manual issued on 1 March 1999, nearly two years after he Retired as Principal Member of (VRB).

4.         I contend that the (VRB), at My AAT hearings of 8 October 1999, S1999/234 and 12 April 2000, S1999/234, by stating that the Registrar in his capacity as delegate of the Principal Member, for which no delegation or authority existed on 11 March 1999, mislead the AAT.

5.         I therefore request that this matter be bought [sic] before the AAT to make an informed decision as to the validity of the two prior hearings.’

45                  The VRB treated that document as an application for review of the decision of the Registrar made on 11 March 1999 to dismiss the applicant’s application for a review.

46                  In that document the applicant contended that the VRB, at the previous AAT hearing, by stating that the Registrar acted in his capacity as delegate of the Principal Member, misled the AAT, because no delegation or authority existed on 11 March 1999.

47                  That document refers to the same arguments that were put to Mansfield J and rejected by him.

48                  The applicant asked the AAT to ‘make an informed decision as to the validity of the two prior hearings’.  The first hearing to which the applicant referred was a hearing at which the AAT granted the applicant an extension of time to seek a review of the Registrar’s decision to dismiss his 1996 application.  The second hearing on 12 April 2000 was the hearing at which the AAT affirmed the decision under review, ie the Registrar’s decision to dismiss the 1996 application: Re Johnson and Veterans’ Review Board & Anor (2000) 31 AAR 121.

49                  Of course, the AAT had no jurisdiction to review its previous hearing.  Deputy President Jarvis, however, treated the ‘appeal’ as seeking a review of the decision of the Registrar on 11 March 1999 to dismiss the application for review.  That was the appropriate course.  Indeed, the applicant does not suggest that the Deputy President was wrong to treat the appeal as seeking a review of that decision.

50                  The applicant contended before the AAT that the Registrar had no authority to exercise the power under s 155AB(5) on 11 March 1999 for two reasons.  First, there was then no delegation pursuant to s 166(1A) from the then Principal Member.  The applicant contended that the delegation which had been made by Mr Gallagher ceased to have effect on Mr Gallagher ceasing to be the Principal Member.  Secondly, and alternatively, if the delegation made by Mr Gallagher continued after Mr Gallagher ceased to be the Principal Member, the Registrar did not act in accordance with the delegation which required him to exercise the powers ‘in accordance with directions issued by me’.  The applicant contended that, in fact, the Registrar exercised those powers in accordance with directions issued by Mr Rolfe, not by Mr Gallagher.  The contentions which were put before the Deputy President and which have been repeated to this Court on this appeal, are the same contentions which were put before Mansfield J on the hearing of the applicant’s first appeal and which Mansfield J rejected.

51                  The Deputy President dismissed the application for three reasons.  First, because it was not competent for him to reopen the determination made by the Tribunal on 12 April 2000.  Secondly, even if it were, it would be futile to set aside the decision by the Registrar to dismiss the application under s 155AB(5).  Thirdly, the guidelines issued by Principal Member Gallagher were not relevant to the exercise of the power by the Registrar under s 155AB(5).

52                  Specifically, he did not determine whether Principal Member Gallagher’s delegation requiring the delegate to act in accordance with ‘directions issued by me from time to time’ constrained the Registrar to act accordingly.

53                  Moreover, he did not decide whether Mansfield J’s decision prevented the applicant from reopening the earlier proceedings for any of the reasons of res judicata, Anshun estoppel or as a matter of public policy.

54                  In my opinion, the Deputy President’s decision was right for the reasons he gave.  First, the application was misconceived.  The applicant had previously challenged the Registrar’s decision and action to dismiss the applicant’s application for review on 11 March 1999.  That application had failed and, although an appeal was lodged, the appeal was discontinued.  The Deputy President held that the power which is given to the AAT to review a decision-maker’s decision can be exercised once, and once only.  In those circumstances, there was no power in the AAT to further review that same decision.

55                  Ordinarily, a Tribunal cannot review its own decisions even where it concludes its previous decision was in error: Chandler v Alberta Association of Architects [1989] 2 SCR 848 cited with approval in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (‘Bhardwaj’) at [7], [53].  If it were otherwise there would be no certainty or finality in decision-making.  There are exceptions.  The Tribunal’s first decision, although erroneous, must have been within jurisdiction.  ‘… [A] decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law as no decision at all’:  Bhardwaj at [53].  There is no suggestion that the AAT’s decision on 12 April 2000 was not made within jurisdiction, or that it involved any kind of jurisdictional error.  A Tribunal can correct a slip and perhaps an error of expression.  However, not all Tribunals are functus officio on making a decision.  If the Act which creates the Tribunal expressly or by implication permits a revisiting of its decision then the general rule must, of course, give way: Bhardwaj at [8].

56                  The AAT is created by the AAT Act.  Section 2A of that Act describes the AAT’s objective:

‘In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.’

57                  The AAT’s jurisdiction to review decisions is given by s 25.  Anyone affected by a decision for which the AAT has jurisdiction to review may apply for that review: s 27.  After an application is made subject to the exceptions in s 27, the decision may not be altered otherwise than by the AAT on the review: s 26.  Thus, s 26 preserves the decision pending the review.  An application for review must be made within 28 days of the decision (s 29(2)), although that period may be extended (s 29(7)).  The manner of hearing of the application is provided for in Division 4 of Part IV.  The AAT’s procedural powers are set out in Division 5.  The AAT is given the power to affirm, vary or set aside the decision and, in that case, make a substitute decision or remit the matter for reconsideration to the decision-maker: s 43(1).  The AAT has an obligation to give reasons: s 43(2).

58                  Section 43(6) provides:

‘(6)      A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.’

59                  Section 43AA gives the AAT power to correct the text of its decisions:

‘           Correction of errors

(1)       If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the decision or statement in accordance with the directions of the Tribunal.

(2)       If the text of a decision or statement is so altered, the altered text is taken to be the decision of the Tribunal or the reasons for the decision, as the case may be.

            Examples of obvious errors

(3)       Examples of obvious errors in the text of a decision or statement of reasons are where:

(a)    there is an obvious clerical or typographical error in the text of the decision or statement of reasons; or

(b)    there is an inconsistency between the decision and the statement of reasons.

            Exercise of powers

(4)       The powers of the Tribunal under this section may be exercised by the President or by the member who presided at the proceeding to which the decision relates.’

60                  A party to a proceeding before the AAT may appeal to this Court on a question of law from the AAT’s decision: s 44.

61                  The proceedings before the AAT are quite formal.  The AAT is given extensive powers to vary or set aside administrative decisions and its decision will stand in substitution for the decision-maker’s decision.  The AAT Act evinces an intention that the AAT will become functus officio on making its decision.  That is confirmed by the provisions of s 43AA and the right of appeal which is given to a party from the AAT’s decisions.

62                  There is nothing in the AAT Act from which it may be implied that the AAT has a power to enter into a review of its own decisions.  The Deputy President was right to conclude that he did not have power to inquire into the decision of 12 April 2000.

63                  In any event, even if the application had been granted, it would have been, as the Deputy President said, ‘futile’.

64                  If, contrary to the reasons of Mansfield J, Principal Member Gallagher’s delegation ended with his term of office, Principal Member Rolfe made a delegation on 15 January 2001 which was unquestionably valid and operating at the time of the hearing before the Deputy President.

65                  If the decision and action of the Registrar were set aside, then the present Registrar would have been under an immediate obligation, by virtue of the provisions of s 155AB(5), to dismiss the applicant’s application for review.  If the circumstances exist which give rise to the operation of s 155AB(5), then the power must be exercised.  It is a mandatory power operating on the Principal Member or, if delegated to the Registrar, the Registrar.

66                  However, the applicant argued that in fact the application was not futile because, at the time of the hearing before the first AAT (12 April 2000), Principal Member Rolfe had not made his delegation.  Therefore, there was no delegation operating.  Even if that premise is correct, and I make no finding on that, the application was still futile.  If there was no delegation in place then the power in s 155AB(5) had to be exercised by the Principal Member, Mr Rolfe.  He was bound to exercise that power and dismiss the applicant’s application.  The Deputy President was right to conclude that the application to him was futile.

67                  I also agree with the third reason the Deputy President gave for dismissing the application.  The guidelines issued by Principal Member Gallagher were not relevant to the exercise of the power in s 155AB(5).  That section required the Principal Member or if the power was delegated, the Registrar to exercise the power.  None of the guidelines were relevant, therefore, to the exercise of the power.  So also the Operations Manual issued by Principal Member Rolfe did not impact upon the exercise of the power.

68                  The applicant was entitled to appeal to this Court on an error of law: s 44(1) of the AAT Act.

69                  He has not, in my opinion, identified an error of law entitling him to relief.

70                  The appeal must be dismissed.

Associate:

Dated:              19 August 2005