FEDERAL COURT OF AUSTRALIA

Clayton Robert Croker v Secretary, Department of Employment and Workplace Relations [2006] FCA 1257

COMPETENCY OF APPEAL – Whether a stay is a decision for the purposes of s 44 Administrative Appeals Tribunal Act – S 39B Judiciary Act 1903.

Administrative Appeals Tribunal Act 1975

Judiciary Act 1903 s 39B 

Federal Court Rules O 54A

Director-General of Social Services v Chaney (1980) 47 FLR 80

Lowth v Comcare [1999] FCA 1692

VZZ v Australian Sports Drug Agency [2001] FCA 816

Khan v Migration Institute of Australia Limited [2004] FCA 301 

CLAYTON ROBERT CROKER V SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS AND ANOR

NSD 1235 OF 2006

BUCHANAN J

22 SEPTEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This proceeding commenced as an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the ‘AAT Act’). The appeal was against a refusal, by the Administrative Appeals Tribunal (the ‘AAT’) on 13 June 2006, to grant a stay of a decision of the Social Security Appeals Tribunal (‘SSAT’) dated 28 April 2006. The stay was sought in circumstances where the applicant, Mr Croker, had brought an appeal against the decision of the SSAT.

2                     Mr Croker, has been in receipt of a disability support pension since about 1994. By a decision of 31 March 2005 a delegate of the First Respondent determined, following a medical reassessment, both physical and psychological, that payment of the disability support pension was no longer warranted as Mr Croker was insufficiently impaired to meet the test for its grant. That decision was affirmed by a Centrelink authorised review officer on 2 December 2005.

3                     Mr Croker appealed to the SSAT. The SSAT conducted a de novo review. It made its own assessment of Mr Croker’s medical conditions using both the material available to the delegate and material supplied by Mr Croker. It reached different conclusions to the delegate and the authorised review officer about the existence and character of his medical conditions but this did not ultimately result in a higher impairment rating which would justify the grant, or continuation, of a disability support pension. Accordingly, the SSAT affirmed the decisions earlier made that Mr Croker’s disability support pension should be cancelled.

4                     It is unnecessary to recount the detailed assessment by the SSAT or the earlier decision makers of Mr Croker’s medical conditions. Those issues do not bear upon the disposition of the present proceedings.

5                     The appeal to the AAT which Mr Croker has brought against the decision of the SSAT will be heard in the ordinary course of events. The stay which he sought, pending hearing of the appeal, was refused on discretionary grounds. I was informed that the effect of the grant of a stay would be continuation of his disability support pension pending determination of the appeal by the AAT. The AAT accepted that Mr Croker had ‘some prospect of success’ on his appeal but, having regard to and weighing the disadvantage to Mr Croker of a non-continuation of his disability support pension pending the outcome of the appeal against the likelihood that a significant obligation to repay monies to the Commonwealth would arise if the appeal was unsuccessful it was judged that the stay should not be granted.

6                     At the first directions hearing of this matter Ms Watson who appeared for the first respondent drew attention to the conclusion reached by Deane J (with whom Fisher J agreed) in Director-General of Social Services v Chaney (1980) 47 FLR 80 that an appeal under s 44 of the AAT Act is only available against a decision which constitutes the final decision on an application for review and does not lie against a refusal of a stay.

7                     Mention was made, at that hearing, of this Court’s jurisdiction under s 39B  of the Judiciary Act 1903 (Cth) (to entertain applications for prerogative relief and injunctions against officers of the Commonwealth) as being the only possible source of jurisdiction available to consider Mr Croker’s challenge to the decision to refuse a stay. Mr Croker subsequently amended his Notice of Appeal to seek ‘an order pursuant to section 39B of the Judiciary Act 1903 (Cth) granting a writ of prohibition and an injunction against the whole decision’.

8                     The steps taken did not conform to the requirements of O 54A of the Federal Court Rules but at the hearing the first respondent waived any procedural objection and in the light of the conclusions which I have reached on the substance of the matters raised by Mr Croker it is unnecessary for me to pursue those issues any further.

9                     In my view the objection raised to the competence of the appeal, as originally filed, is irresistible. Mr Croker’s only answer was to submit that the reference to the ‘decision’ in s 44 of the AAT Actwas effective to refer to a range of decisions which included a decision to refuse a stay. The decision in Chaney is directly against his proposition. Chaney has been followed since, and recently, by single judges of the Court (see Lowth v Comcare [1999] FCA 1692 (Dowsett J); VZZ v Australian Sports Drug Agency [2001] FCA 816 (Goldberg J) and Khan v Migration Institute of Australia Limited [2004] FCA 301 (Whitlam J)). In my view the objection to the competency of the appeal must be upheld.

10                  In any event there is no substance in the suggestion advanced by the Notice of Appeal in any of its forms that the AAT committed an error of law which required correction on appeal. The decision of the AAT under challenge involved the exercise of a discretion with respect to an interlocutory application in circumstances where the appeal which is pending before the AAT will deal with the substance of the matters which Mr Croker wishes to agitate. It has not been shown that the AAT failed, in any way, to apply itself as the law requires to the exercise of its discretion. Had the appeal been competent I would have dismissed it.

11                  The amendment to the Notice of Appeal to insert a claim for relief under s 39B of the Judiciary Act 1903 (Cth)did not advance matters. No jurisdictionalerror was identified, nor any basis for the grant of an injunction. There is no substance to the bald allegation, which Mr Croker was unable to develop further, that the jurisdiction of this Court under s 39B of the Judiciary Act 1903 (Cth) provided the foundation for any relief in the circumstances of this case. Accordingly, this aspect also of his claim for relief must be rejected.

12                  In the circumstances I have no alternative but to dismiss the proceedings. The objection to the competency of the appeal was taken in a timely fashion. In my view the First Respondent should have its costs of the appeal.

Associate:

Dated: 22 September 2006