FEDERAL COURT OF AUSTRALIA

Croker v Secretary, Department of Employment and Workplace Relations [2006] FCA 1447

ADMINISTRATIVE LAW – decision of Administrative Appeals Tribunal to grant or not grant a stay not a ‘decision’ for purposes of the Act – no sufficient doubt as to judgment – leave to appeal refused

Administrative Appeals Tribunal Act 1975 (Cth), s 44

CLAYTON ROBERT CROKER v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS AND GERI ETTINGER

NSD 1899 OF 2006

GYLES J

27 OCTOBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The applicant is to pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a decision of Buchanan J of 22 September 2006, which upheld an objection to the competency of an appeal to the Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

2                     The decision appealed from was the refusal by the Administrative Appeals Tribunal (the Tribunal) to stay a decision of the Social Security Appeals Tribunal, which had affirmed a decision of the delegate of the Minister to cancel the applicant’s disability support pension pending hearing of the substantive appeal. The short ground of the decision of his Honour was that a decision to grant or not to grant a stay is not a decision for the purposes of s 44 of the AAT Act according to a long line of authority.

3                     There is no serious reason for doubting the basis for the decision. I should say, however, that even if there were some basis for challenging that approach in principle, the difficulty faced by the applicant in his application for leave is that, even if the refusal of a stay is a decision for the purposes of s 44, it is a discretionary decision against which it is very difficult to mount any attack absent some fundamental error in the approach of the Tribunal. The form of the notice of appeal to the Court, which was under consideration by his Honour, discloses no such error of principle.

4                     His Honour considered whether the jurisdiction pursuant to s 39B of the Judiciary Act 1903 (Cth) might assist the applicant to side-step the line of authority referred to above, but, as his Honour indicated, no ground was advanced before him which would indicate any arguable basis for establishing jurisdictional error. For what it is worth, it seems to me the same thing can be said of any possible application of the Administrative Decisions Judicial Review Act 1977 (Cth).

5                     Furthermore, the issue is likely to prove academic in the sense that a hearing of the substantive proceeding before the Tribunal is to take place in early December. There is very little possibility of an appeal to this Court being heard before February, so it would essentially be overtaken by events in any case. It may be that if the Tribunal were to reserve its decision, it is not beyond the bounds of possibility that the application for a stay might be renewed at that stage. I do not mean to indicate any view about that possibility, but it could be explored.

6                     For these reasons, in my opinion, this is not an appropriate case in which to grant leave to appeal. The application for leave to appeal is dismissed with costs.

Associate:

Dated: 7 November 2006