FEDERAL COURT OF AUSTRALIA

Agapis v Plumbers Licensing Board [2012] FCA 1375

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Background

1    The applicant appeals from an interlocutory order made under s 35(2)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on 15 August 2012 by the Administrative Appeals Tribunal (the Tribunal). He seeks relief in the grant of an order that a plumbers license be issued to him operative in the State of Western Australia. Self-evidently, no such relief could be granted by this Court on an appeal of this nature.

2    The applicant is a plumber licensed as such in New South Wales. On 3 March 2011, under the Mutual Recognition Act 1992 (Cth), which is adopted by the Mutual Recognition (Western Australia) Act 2010, he applied to the respondent (the Board) to be licensed as a Plumbing Contractor in Western Australia. On 27 April 2011, the Board decided to refuse his application.

3    Section 34 of the Mutual Recognition Act 1992 (Cth) provides for review of the Board’s decision in the Tribunal, and on 15 June 2012 the applicant applied to the Tribunal for review of the Board’s decision. The applicant submits that this occurred on 18 June 2012, though nothing turns on this.

4    The matter came before Deputy President Hotop of the Tribunal at a directions hearing on 15 August 2012, at which the Board successfully applied under s 35(2)(c) of the AAT Act for an order to restrict disclosure of a witness statement. The Tribunal made an interlocutory order prohibiting disclosure of this statement to any person other than the Board and its legal representatives, as well as members and staff of the Tribunal (the Order).

5    The matter was then listed for a pre-hearing conference at the Tribunal on 21 August 2012. This conference was vacated until further notice when the applicant appealed to this Court. Accordingly, the review before the Tribunal is yet to be determined.

6    In his notice of appeal the applicant characterised the Order as a “decision”. Certainly, that is how he put his case in submissions.

7    The application is supported by an affidavit sworn by the applicant on 5 November 2012. It is somewhat obscure and adds nothing to the substance of his argument.

Jurisdiction

8    The jurisdiction of the Federal Court in relation to appeals from decisions of the Tribunal arises under s 44 of the AAT Act.

9    Section 44(1) provides:

Appeal on question of law

(1)    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.

10    The respondent submits that the jurisdiction of the Court has not been triggered under s 44 of the AAT Act because the Order made by the Tribunal on 15 August 2012 was not a “decision” for the purposes of s 44. It also submits, as a subsidiary point, assuming jurisdiction is enlivened, that no relevant question of law is raised in the appeal.

11    A Tribunal decision is appealable under s 44(1) of the AAT Act if it “constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s 43 of the [AAT] Act”: Director-General of Social Services v Chaney (1980) 31 ALR 571 at 593 per Deane J.

12    The interlocutory order made under s 35(2)(c) of the AAT Act by the Tribunal was not a decision that determined the applicant’s application for review. Indeed, as I mentioned, that application has progressed no further beyond the initial directions hearing pending the outcome of this appeal. Accordingly, it is not a decision contemplated by s 44(1) of the AAT Act, and no appeal lies to this Court from the Order.

13    Whilst there are some circumstances that may enable an applicant to seek review in this Court in relation to interlocutory orders made by the Tribunal, none of these arises here. The Order was made pursuant to an express statutory power.

14    Moreover, the applicant has failed to identify any relevant error of law in respect of the making of the Order.

15    These conclusions are sufficient to dispose of the appeal.

16    However, the applicant does raise a purported question of law as appears from his notice of appeal under that rubric as follows:

Does Deputy President HOTOP have the right to sit in Court without complying with Chapter III of the COMMONWEALTH CONSTITUTION ACT.

I will deal with this for the sake of completeness and because it was the focus of the applicant’s submissions.

17    The applicant’s contention is that his challenge to the decision of the Board to refuse him a license to operate as a plumber in Western Australia is a matter which ought to be heard and determined by a Ch III court exercising the judicial power of the Commonwealth. The effect of this submission, although not put expressly in this way by the applicant, is that the making of the order is tantamount to the exercise of judicial power other than as provided for under Ch III of the Constitution, as that power was exercised by the Tribunal, which is not a court established pursuant to s 71 and constituted in conformity with s 72 of the Constitution. Indeed, the applicant submits that the Tribunal, in hearing any aspect of his application, is unlawfully exercising the judicial power of the Commonwealth.

18    The applicant made repeated submissions that the Order of 15 August 2012 was a judicial order which was invalid because the Tribunal could not exercise the judicial power of the Commonwealth.

19    These submissions are misconceived. Whilst the applicant is correct that the Tribunal is not a Ch III court, that is beside the point. The Tribunal is empowered to review certain administrative decisions upon their merits, whether it be the decision of a Commonwealth Minister, official or statutory body acting pursuant to a statutory power.

20    The AAT Act established the Tribunal as a tribunal principally for the review of Commonwealth administrative decisions. Jurisdiction is conferred upon it variously by many Commonwealth Acts and legislative instruments. It is an administrative tribunal and has no judicial power.

21    Accordingly, the submission by the applicant that his application for review ought to be heard by a Ch III court and not the Tribunal is mere assertion. The review is administrative in character, and the Order was but a step along the way to a decision yet to be made in respect of that review.

22    The Court was referred at great length to a number of decisions of the High Court concerning the exercise of the judicial power of the Commonwealth. Reliance upon them is misplaced. It is unnecessary to refer to any of them as this case, properly understood, does not concern an exercise of the judicial power of the Commonwealth by the Tribunal.

Bias

23    Although not strictly necessary, I will deal with the allegation of bias.

24    The applicant submits that the Tribunal has denied him natural justice and refers to being at a disadvantage pursuant to the “bias principle” discussed in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (Kable). I do not accept this submission. Kable does not enunciate the test for bias. More importantly, there is no evidence before the Court of any bias whether actual or apprehended. The applicant has failed to allege with specificity what is the bias involved.

25    Accordingly, the applicant has failed to particularise how Deputy President Hotop was biased or could be reasonably perceived to be biased in relation to the matter generally or in relation to making the Order.

26    The Board sought an order that I should fix its costs payable by the applicant at $1,800. I have, however, no evidence to consider as to whether or not this amount is reasonable.

27    Accordingly, for all these reasons the appeal will be dismissed. There will be an order that the applicant pay the respondent’s costs, to be taxed if not agreed.

Associate:

Dated:    5 December 2012