FEDERAL COURT OF AUSTRALIA

Cremona v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 1003

THE COURT ORDERS THAT:

1.    Leave is granted to the respondent to file a Notice of Objection to Competency out of time on 13 September 2013.

2.    The objection to competency is upheld.

3.    The application is dismissed.

4.    The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

1        Before the Court is an application by the respondent, the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs, for the Court to determine the question of the competency of the appeal brought by the applicant.

2        On 10 August 2013 the applicant, Mr David Cremona filed a notice of appeal from an order of the Administrative Appeals Tribunal (Tribunal) purportedly under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which provides:

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.

3        On 2 August 2013 the Tribunal made an order refusing the applicant leave to issue a summons to produce documents. The reason which the Tribunal gave for its refusal was that the applicant had failed to show that the documents were relevant to the decision under review. The application for review concerned the entitlement of the applicant to an allowance under the Social Security Act 1991 (Cth) (Act).

4        The notice of appeal set out the following questions of law which the applicant sought to raise:

1.    The Administration [sic] Appeals Tribunal made a decision under section 40(1C) of the Administration [sic] Appeals Tribunal Act 1975, this particular section of that same act makes reference to Subsection (1A) which makes reference to members presiding at the hearing, the Registrar, a district registrar or a deputy registrar issuing summons, the applicant in this matter is the person who made the application for a summons & does not fall into any of those categories.

2.    In fact, there is no legislation in the Administrative Appeals Act 1975 that states the Administrative Appeals Tribunal can refuse an applicant’s request for a summons, this was mentioned in the telephone conference & was agreed with by the Deputy President Constance.

5        On 13 September 2013, the respondent filed a notice of objection to competency. The grounds of the objection were as follows:

1.    The Applicant seeks to appeal from an interlocutory decision of a Presidential member of the Administrative Appeals Tribunal (the Tribunal), made on 2 August 2013, refusing the Applicant’s request for a summons to be issued to the Victoria Police to produce documents in relation to any civil or criminal proceedings issued against the Applicant.

2.    It is well established in this Court that an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review; Director-General of Social Services v Chaney 3 ALD 161, at 181 and 183; Frugtniet v Tax Practitioners Board [2013] FCA 752, at [22]-[23].

3.    The notice of appeal is incompetent as it seeks to appeal from an interlocutory decision of the Tribunal.

6        Mr McDermott, who appeared on behalf of the respondent, contended that the ruling by the Tribunal was not a decision under s 44(1) of the AAT Act from which an appeal could be brought. He relied upon Director-General of Social Services v Chaney (1980) 31 ALR 571, in which Deane J (with whom Fisher J agreed) said at 593 that:

An appeal under section 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review.

7        The decision of the Tribunal to refuse leave to the applicant to issue the summons to produce documents was an interlocutory decision which does not determine the application for review, which concerned the entitlement for an allowance under the Act.

8        The notice of objection to competency was filed after the time period in which such a notice is required to be filed by r 31.05 of the Federal Court Rules 2011 (Cth). However, no prejudice has been experienced by the applicant as a result of this delay. An order should be made extending the time within which the respondent may file such notice.

9        In the result the objection to competency is upheld, and the application is dismissed with costs.

Associate:

Dated:    3 October 2013