Federal Court of Australia

AMO25 v Administrative Review Tribunal [2025] FCA 365

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Review Tribunal dated 25 October 2024 be set aside.

3.    The proceeding be remitted to the Administrative Review Tribunal for reconsideration according to law.

4.    By 4:00 pm on 17 March 2025, the Applicant is to file and serve on the Third Respondent any application for costs together with any affidavits in support and an outline of submissions limited to three pages in length.

5.    By 4:00 pm on 24 March 2025, the Third Respondent is to file and serve on the Applicant any affidavits in response and any outline of submissions in response limited to three pages in length.

6.    Final orders as to costs will be determined on the papers without a further oral hearing.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WHEATLEY J:

Introduction

1    The Applicant, who is referred to in these proceedings as AMO25 and who can be described as ‘the mother’, filed an application for judicial review against a decision of the Administrative Review Tribunal regarding a decision concerning the assessment of child support, dated 11 October 2024 (Decision). The Applicant also named the Child Support Registrar as the Second Respondent and AMP25 as the Third Respondent. The Third Respondent can be described as ’the father’. The Applicant’s originating process, although in a form of a judicial review application, identified errors of law.

2    The matter first came before me for case management on 28 February 2025. At the hearing, it became apparent that the Applicant’s Originating Application should be considered to be a notice of appeal for the purpose of s 172 of the Administrative Review Tribunal Act 2024 (Cth) (the Act) and r 33.12 of the Federal Court Rules 2011 (Cth) (FCR). To regularise the proceedings, I ordered that the Originating Application filed 13 December 2024, be deemed to be a notice of appeal for the purposes of s 172 of the Act and r 33.12 of the FCR.

3    Also at that first case management hearing, the Applicant and the Second Respondent handed up substantive proposed consent orders, which each of those parties had agreed should be made in the circumstances of this case (Draft Orders). The Draft Orders included that the Court issue a writ of certiorari quashing the Decision and a writ of mandamus compelling the Tribunal to determine the application according to law. As is common in this Court, the parties who had agreed to such an error included a notation in the Draft Order. That notation recorded as follows:

The second respondent concedes that the decision of the Administrative Review Tribunal (Tribunal) dated 25 October 2024 [sic] is affected by a material error of law, in that it misunderstood or misapplied the requirements in s 117(2)(b)(ii) of the Child Support Assessment Act 1989 (Cth) (Assessment Act). At [33]-[36] of its reasons, the Tribunal was not satisfied that the third respondent “had an expectation that [Child B] would be educated at [School 2] commencing in year 5 or at all”, and therefore found that Child B was “not currently educated in a manner that was expected by” the applicant and the third respondent. This finding was not open to the Tribunal in circumstances where the words in s 117(2)(b)(ii) of the Assessment Act did not require that the applicant and the third respondent agreed that the child attend a particular school, but rather the type or style of education which included the costs associated with the provision of that education, Beklar v Beklar [2013] FamCA 327 at [247]-[248] (Ryan J).

(emphasis in original)

4    The Third Respondent, AMP25, did not agree or consent to the Draft Orders. The Third Respondent relied on the decision of the President of the Tribunal refusing to refer the proceedings to the Guidance and Appeals Panel, which was dated 6 December 2024 (President’s Decision), and submitted that this Court should follow the President’s Decision.

5    As such, it seemed appropriate to deal with this matter in effectively a summary way. The parties all agreed to this process. The Court provided the Third Respondent with an opportunity to put on written submissions as to why the Draft Orders should not be made. An opportunity was also provided to the Second Respondent and the Applicant to put on written submissions in response and as to why the Draft Orders should be made.

6    The matter was relisted today, 12 March 2025, for further argument. The parties have made further submissions orally today, which I have considered, together with the written submissions, the Decision and the President’s Decision.

consideration

Submissions of the Third Respondent

7    The Third Respondent outlined the background to the Decision of the Tribunal, including by way of a reference to the first decision of the Administrative Appeals Tribunal (AAT) concerning Child 1 made in February of 2020. This was together with a second decision made upon Child 2 and Child 3 commencing at the same school, being School 1, which was made on 29 January 2021. The Third Respondent referred to what was described as “an original change of assessment” dated 8 March 2024. The Third Respondent provided further details about these decisions, however, it is sufficient to observe that implicit in this submission is that the Third Respondent was dissatisfied with the process and with the decisions.

8    The result of this decision was an increase to the amount of child support payable referable to Child 1 attending School 2, which was more expensive. On 1 April 2024, the Third Respondent submitted an objection to this child support decision dated 8 March 2024. The Third Respondent outlined the effect of that objection and submitted that that decision by child support, dated 3 May 2024, was significant as it was the decision which was the subject of the application currently before the court.

9    In short, it appears that the child support review decision reduced the amount of the annual rate of child support effectively to reflect half of the school fees payable should all three children remain at School 1.

10    On 7 May 2024, the Applicant AMO25 applied to the AAT for review. The Third Respondent refers to the Decision, which did not change the child support review decision. On 4 November 2024, the Applicant applied to the President, seeking that the matter be referred to the Guidance and Appeals Panel. The Third Respondent also expressly refers to s 121 of the Act and I will come back to the terms of that section in due course.

11    The Third Respondent sets out the grounds, which are described as the grounds of appeal to the Guidance and Appeals Panel, in those submissions:

28.    The grounds for appeal to the GAP were:

a.    That the Member made an error of law by not granting the outcome the applicant sought in the change of assessment application.

b.    That the Member failed to provide adequate reasons for the decision in not ruling in favour of the Applicant.

c.    That the member allowed extraneous or irrelevant matters to guide or affect her decision leading to errors of law and fact.

12    The Third Respondent submitted, contrary to the Applicant’s position, that because the Guidance and Appeals Panel decision is not ordinarily published, that should not detract from the President’s consideration of these proceedings. Particularly, so it was submitted, that the President’s Decision was to dismiss the Applicant’s request for an oral hearing and dealt with the matter on the papers.

13    The Third Respondent expressly relies on [49] of the President’s Decision, and I will come back to that paragraph in due course. From this, the Third Respondent submits that this confirms that the member (who made the Decision) has not made any error of law. As such, he submits that there are no grounds to appeal to this Court or any such error. The Third Respondent also refers to [50] of the President’s Decision in relation to there not being any errors of fact. The President’s Decision refused the referral application.

14    In relation to the notation contained in the Draft Order, which was made exhibit 1 on the first case management hearing, the Third Respondent submits that the second quoted passage should be read in the context of that entire paragraph. The Third Respondent makes other submissions regarding the way that that notation is set out, effectively disagreeing with it.

15    At this point, I observe that the Third Respondent goes so far as to suggest that the way that that notation is set out is misleading. There is no basis to support that submission.

16    The Third Respondent also submits that the Second Respondent’s reference to the type or style of the education is reflected in the child support assessment, being a private Catholic system. Two final points from the Third Respondent’s submissions should be noted:

(1)    that any referral back, it is suggested, would undermine the authority and process of the referral system to the Guidance and Appeals Panel; and

(2)    that this matter has already been reviewed three times and as a matter of public resources, further resources should not be consumed by it.

On this basis, the Third Respondent submits that the appeal should be summarily dismissed.

Submissions of the Applicant

17    The Applicant submits that the Decision is flawed due to a material error of law, as the Tribunal misinterpreted the requirements of s 117(2)(b)(ii) of the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act). The Applicant contends that the Tribunal incorrectly required an agreement between AMO25 and AMP25 about Child 1’s attendance at a particular school. The Applicant further submitted that the only requirement is a consideration of the type of school or style of education. The Applicant, as was referred to in the notation, also refers to and relies on the decision of Ryan J in Beklar v Beklar [2013] FamCA 327 to support a submission that the Tribunal’s findings at [33] to [36] were made in error.

18    The Applicant also observes that the Second Respondent, the child support registrar, concedes that the Decision is affected by material error of law. The Applicant submits that allowing the Decision to stand would perpetuate an unjust result and, in that context, submits that the writs proposed in the Draft Order should be made so that the Tribunal makes a decision according to law.

19    It suffices to say that the Applicant also disagrees with some of the submissions advanced by the Third Respondent, including matters concerning the first decision, but for the purposes of considering the Decision, it is not necessary to detail those disagreements or to decide such matters.

20    Finally, the Applicant submits that the outcome of the Guidance and Appeals Panel, perhaps more correctly referred to as a decision of the President about whether or not to refer such a matter to that panel, does not unilaterally remove the right of an appeal to the Federal Court of Australia of the Decision. Finally, the Applicant does suggest some concessions by the Third Respondent in relation to his submissions, but, again, it is not necessary for me to detail or deal with those matters.

Submissions of the Second Respondent

21    The Second Respondent, the child support registrar, has also provided written submissions and again has set out the background, which is not necessary to restate. A submission was made, in the written submissions, that the Tribunal should be removed from these proceedings. However, at the oral hearing, that matter has not been pressed by either the Second Respondent or the Applicant, and, as such, I will not give it any further consideration.

22    The Second Respondent makes submissions as to why it would be appropriate for this Court to make the Draft Orders, because the Decision, it is submitted, is affected by an error of law. The error of law as identified by the Second Respondent is submitted to be that the Tribunal has misunderstood or misapplied s 117(2)(b)(ii) of the Assessment Act insofar as its reasons are concerned at [33] to [36] of the Decision.

23    The Second Respondent refers to the decisions of Ryan J in Beklar, a decision of McLeod J in Warwick v Cutler [2016] FamCA 934 at [100] and a decision of Mabry v Mabry (SSAT Appeal) [2010] FMCAfam 388, in relation to the appropriate approach to the construction of s 117(2)(b)(ii) of the Assessment Act. The Second Respondent submits in relation to the Tribunal’s consideration of the proceedings that the only judicial authority referred to was a decision of Judge Bender. The authorities that are referred to by the Second Respondent, and particularly those that are noted in the Draft Order, are not referred to by the Tribunal in the Decision.

24    The Second Respondent also refers to the discretionary considerations in relation to the President’s Decision in refusing to refer the Decision to the Guidance and Appeals Panel. This approach, it is submitted, is consistent with s 128(4) of the Act. The Second Respondent also, in its written submissions, makes a distinction between the process and the role of the President in considering whether or not to refer a matter to the Guidance and Appeals Tribunal, and that of the Court on a question of law, being an appeal to this Court. For all of those reasons, including that any decision by the Court would not undermine any process or authority of the President in relation to the Guidance and Appeals Tribunal, the Second Respondent submits that it is appropriate to make orders broadly consistent with the Draft Orders.

25    At the hearing, it was raised with all of the parties whether or not the appropriate form of relief, if the Court was persuaded that relief should be granted, should be by way of writs of certiorari or mandamus when these proceedings have now been regularised to be a notice of appeal rather than an application for judicial review. The Second Respondent accepted that the appropriate relief in those circumstances would simply be that the appeal be allowed, and the proceedings be remitted for rehearing according to law.

26    The Applicant was unsure of the precise nature of any form of relief that might be granted, but did submit that any reconsideration should be according to law, not otherwise. The Third Respondent did not say anything to the contrary.

The President’s Decision

27    The decision of Kyrou J, President of the Tribunal, was to refuse a referral to the Guidance and Appeals Panel. The President provided a statement of reasons, which it was observed by the President to be a departure from the usual course in that reasons for decision would not usually be provided. The President stated at [4]:

The absence of a requirement in the ART Act for the President to provide reasons for a referral decision recognises two important practical considerations. First, if detailed reasons are provided for a decision that a Tribunal decision be referred to the GAP based on a finding that it may contain an error of fact or law materially affecting it, there may be a perception that the finding may pre-empt the outcome of the review by the GAP. Conversely, if detailed reasons are provided for a decision that a Tribunal decision not be referred to the GAP based on a finding that it did not contain an error of law materially affecting it, the finding may discourage a party adversely affected by the decision from appealing to the Federal Court. Further, if that party does appeal, there may be some awkwardness in the President making detailed findings on matters to be decided by the Court.

(emphasis added)

28    The President considers a number of general principles about matters to be referred to the Guidance and Appeals Tribunal and does so because as is recorded in [6], this case presented the first opportunity to set out general principles to assist parties in other cases who may be considering making an application for referral in reliance on s 128(2)(b) of the Act.

29    The President details matters under headings of “Granting an Oral Hearing for a Referral Application”, “Granting an Order Staying a Tribunal Decision”, “Meaning of ‘May Contain an Error of Fact or Law’”, “Meaning of ‘Materially Affecting the Tribunal Decision’” and “Discretionary Considerations Relevant to the Referral to the GAP”. Then from [33] of the President’s Decision, under the heading, “Factual and Procedural Background to the Referral Application”, is where the President starts to consider the relevant circumstances of this particular proceeding.

30    From [48], the President sets out his decision on whether to grant the referral application and at [49] to [50] states the following:

49.    The general member has correctly referred to the relevant statutory provisions and judicial decisions dealing with them in her reasons for decision. The general member has also stated the applicable principles. The legal contentions advanced by the applicant (including in relation to issue estoppel) based on an earlier decision of the AAT concerning the parents disclose a misunderstanding of the legal effect of a decision of an administrative tribunal and cannot succeed. Whilst other possible legal errors upon which the applicant and the second respondent have relied cannot be described as fanciful, they are at the low end of the spectrum of possibilities. On their own, they are nowhere near sufficient to warrant referral to the GAP in the light of the strong discretionary considerations referred to at [24] to [32] above which militate against such referral.

50.    I now turn to the possible errors of fact upon which the applicant and the second respondent have relied. The alleged errors do not appear to relate to primary facts, other than in relation to some inconsequential details. The main focus appears to be inferences drawn by the general member from primary facts and conclusions reached by her when applying the relevant legal principles to the primary facts and inferences. I accept that the general member has used some imprecise language in her reasons. I also accept that the possible errors of facts relied upon by the applicant and the second respondent are slightly more arguable than the possible errors of law they rely upon. However, overall the possible errors of fact that they rely upon are insufficient to warrant referral to the GAP in the light of the strong discretionary considerations referred to at [24] to [32] above which militate against such referral.

Statutory Framework

31    Part 5 of the Act is the part which deals with the Guidance and Appeals Panel. Section 121 provides the simplified outline of that Part, which states:

121    Simplified outline of this Part

The guidance and appeals panel is a way of constituting the Tribunal at a more senior level to:

(a)    review some decisions made by decision-makers; or

(b)    re-review some decisions that have been reviewed by the Tribunal.

Broadly, the circumstances in which the Tribunal may be constituted as a guidance and appeals panel are as follows:

(a)    there is an issue of significance to administrative decision-making;

(b)    a Tribunal decision may contain an error of fact or law materially affecting the Tribunal decision.

The first way a guidance and appeals panel proceeding can start is that an application to the Tribunal may be referred to the guidance and appeals panel by the President.

The second way is that, after the Tribunal has affirmed, varied or set aside a decision made by a decision - maker, a party to the Tribunal proceeding may apply to the President to refer the matter to the guidance and appeals panel. Timeframes apply to applications, but may be extended in some circumstances. The application to refer the matter does not affect the operation of the Tribunal decision unless the Tribunal orders otherwise.

If the President decides to refer the matter to the guidance and appeals panel, the Tribunal constituted as the guidance and appeals panel reviews the decision of the decision-maker, as affected by the earlier Tribunal review. Some different Tribunal powers and procedures apply in relation to guidance and appeals panel proceedings.

Only some kinds of Tribunal decisions can be referred to the guidance and appeals panel. For these decisions, a party to the proceeding in which the Tribunal decision is made can choose to apply to refer the matter to the guidance and appeals or to appeal on a question of law to the Federal Court under Part 7.

This Part contains the standard provisions for guidance and appeals panel proceedings. Other legislation can include provisions that apply in addition to, or instead of, these standard provisions.

32    Also relevant in this context is the terms of s 128 of the Act. Section 128 deals with the President’s decision whether to refer the Tribunal decision to the Guidance and Appeals Panel. It refers in subs (1) to the President’s decision and to “The Requirements for the Decision”, under that heading. It is worth setting out the provision in full:

128    President decides whether to refer Tribunal decision to guidance and appeals panel

President’s decision

(1)    If a person applies to refer a decision of the Tribunal (the Tribunal decision) to the guidance and appeals panel, the President may refer the Tribunal decision to the guidance and appeals panel or refuse the application.

Requirements for decision

(2)    The President may refer the Tribunal decision to the guidance and appeals panel if the President is satisfied that:

(a)    the Tribunal decision raises an issue of significance to administrative decision-making; or

(b)    the Tribunal decision may contain an error of fact or law materially affecting the Tribunal decision.

(3)    However, the President must not refer the Tribunal decision to the guidance and appeals panel in any of the following circumstances:

(a)    a fee payable in relation to the application is not paid by the time prescribed by the rules;

(b)    a circumstance prescribed by the rules.

(4)    In deciding whether to refer the Tribunal decision to the guidance and appeals panel or refuse the application under this section, the President must have regard to:

(a)    the circumstances of the parties to the proceeding in which the Tribunal decision is made; and

(b)    any other matters that the President considers relevant.

(5)    To avoid doubt, the President is not required to refer any decision of the Tribunal to the guidance and appeals panel.

33    Section 129 provides for notice of the President’s decision, and as was recognised by the President at [4] of the President’s Decision, s 129 does not require the President to provide reasons for decision. With respect, and as was observed by the President (with whom I agree), there is good reason for that, including the potential awkwardness that the President refers to.

34    Part 7 of the Act then deals with appeals on questions of law to the Federal Court. It similarly provides a simplified outline of that Part in s 170 of the Act. It is not necessary to set that out in full, but it is relevant to note the difference in relation to matters that are before the Court on a question of law as opposed to matters under Part 5 of the Act.

35    Section 172 provides that a party may appeal a decision of the Tribunal. It is under Division 2, subdivision A, being Appeals on Questions of Law. It provides as follows:

172    Party may appeal

(1)    A party to a proceeding in the Tribunal may appeal to the Federal Court, on a question of law, from the decision of the Tribunal in the proceeding.

Note 1:    A party to a proceeding for review of a decision of the Child Support Registrar, or second review that relates to the decision, may in some instances appeal instead to the Federal Circuit and Family Court of Australia (Division 2) (see section 99 of the Child Support (Registration and Collection) Act 1988 and section 131E of this Act).

Note 2:    For when a party to a proceeding for review of a decision under the Migration Act 1958 can make an application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), see sections 476 and 476A of the Migration Act 1958).

(2)    To avoid doubt, subsection (1) does not apply in relation to a decision under section 128 (President decides whether to refer Tribunal decision to guidance and appeals panel).

Note:    A decision under section 128 is not a decision of the Tribunal.

36    It is clear from this provision that subsection (1), as provided in subsection (2), does not apply in relation to a decision under s 128 of the Act. That is, a decision under s 128 is not a decision of the Tribunal. I do hasten to add that none of the parties before me today suggested otherwise.

37    The revised explanatory memorandum to the relatively new Act at [1100] refers to s 172(2) as follows:

Subclause (2) provides that a decision of the President under clause 128 to refer, or refuse to refer, a Tribunal decision to the guidance and appeals panel is not appealable to the FCA. This provides certainty to the parties about whether or not a matter will be referred to the Guidance and Appeals Panel and prevents unnecessary delay in the progress of a matter. This subclause is for the avoidance of doubt. It is noted that if the President makes a decision to refuse to refer a tribunal decision to the Guidance and Appeals Panel, it remains open to a party to appeal the Tribunal Decision to the FCA under this clause. As an application for referral of a tribunal decision to the guidance and appeals panel is not a proceeding, (see explanation above clause 123), clause 172 does not apply.

38    I reference this passage because it is not a question of whether or not this Court has jurisdiction. So much was accepted rightly by the Third Respondent, the Court does have jurisdiction in relation to the appeal. The Third Respondent’s submission was more a matter of following and accepting the President’s Decision and approach in relation to refusing the referral to the Guidance and Appeals Panel and applying that position to similarly dismiss or refuse the Applicant’s appeal. Although there is no doubt about the ability for a party to appeal, for completeness I also do note s 174(3), which expressly provides additional time for a person to appeal to the Court, should an application be made to the Guidance and Appeals Panel in the meantime, so that, effectively, the time in between is not taken into account in calculating whether or not the appeal to this Court is then made within time.

Did the Tribunal’s Decision contain an error of law?

39    There is no issue in these proceedings about whether or not the Applicant’s appeal has been brought in time, but such a provision confirms that it always remains open to a party to appeal a Tribunal decision to this Court, even if there has been a refusal to refer the matter to the Guidance and Appeals Panel. The following part of the Decision sets out what the Applicant and the Second Respondent contend was in error, being [33] to [36]:

33.    I am satisfied that it was, at least early on, contemplated by the parents that Child 1 may attend School 2 from year 5, and that a savings account was established with that contemplation in mind. However, in my view that early contemplation does not necessarily equate to a positive expectation that Child 1 would attend School 2 from year 5, or for his high-school education. AMO25’s evidence is that the spreadsheet and savings account were created even before Child 1 was born, and the expression of interest form was signed in 2016 when Child 1 was 3 years old. AMP25 does not dispute the evidence about the spreadsheet and bank account, but does dispute the evidence in respect of the signing of expression of interest form.

34.    Even if I accept that AMP25 did sign the expression of interest form for Child 1 in 2016, that form does not in itself indicate any commitment for Child 1 to attend the school.

35.    The evidence contained in AMP25’s affidavit to the court made in 2018 is that by 2018 - more than 5 years before Child 1 commenced at School 2 - AMP25 did not hold an expectation that Child 1 would be educated at School 2, and in fact did not hold any expectation as to the manner in which Child 1 would be educated other than an expectation that he would attend St Andrew’s for his primary school education.

36.    I am satisfied that the parents had a shared expectation that the children would be educated in the catholic system to the end of their primary school education. I am satisfied that AMO25 has a long-standing expectation that Child 1 be educated specifically at School 2 commencing in year 5 and for the duration of his secondary education. I am satisfied that AMP25 was aware of AMO25’s expectation. However, on the evidence before me I cannot be satisfied that AMP25 had an expectation that Child 1 would be educated at School 2 commencing in year 5 or at all. I therefore find that in respect of his attendance at School 2, Child 1 is not currently being educated in a manner that was expected by both his parents.

40    In the above passage from the Decision, however, consistent with the references that I have made so far, I refer to the parties by way of the AMO25 and AMP25 pseudonyms given in this Court and Child 1 and School 1 and School 2 to ensure that the anonymity is preserved. The Applicant and the Second Respondent, as already mentioned, referred to several cases, including, firstly, the decision of Beklar at [247], which states:

247.    The s 117(2)(b)(ii) issue centred upon whether the wife was able to establish that the children’s attendance at these private fee paying schools was a style of education “in the manner that was expected” by the parties. The words “in the manner that was expected” do not require that she establishes that the parties agreed that the children attend these particular schools. Rather, it is the type or style of education that is relevant. Type or style includes the costs associated with the provision of the children’s education.

41    Further, the decision of Warwick at [100] was also referred to, which states:

100.    The fact that the husband no longer wishes for the children to be educated within the private school system is not, in itself, a ground for the Court making a child support departure order. In Murphy & Murphy (Child support) the AAT referred to the Full Court’s decision in In the marriage of Mee and Ferguson and reiterated that the test set out in s 117(2)(b)(ii) goes to “past expectation”, not present desire (or, I would add, lack of desire), for the children to attend private schools.

[footnote reference omitted]

42    Implicit in the Tribunal’s reasoning from [33] to [36], but particularly at [36], is a finding that there is an absence of agreement of attendance at a particular school, being School 2, as between the parents. This is contrary to the reasoning in Beklar.

43    Further, there is a mixture, for want of a better description, as to the temporal consideration of when that expectation was assessed or considered by the Tribunal in relation to the relevant requirements of s 117(2)(b)(ii) of the Assessment Act. This is contrary to the reasoning in Warwick.

44    There is also an absence of the relevant authorities that have been considered by the Tribunal in the Decision. Of course, that in itself does not necessarily mean that the Tribunal has erred, but an absence of the relevant authorities and principles to be applied can indicate such an error.

45    On these bases, I am satisfied that the Tribunal fell into an error of law and asked itself the wrong question when considering the requirements of s 117(2)(b)(ii) of the Assessment Act.

46    However, that then leaves consideration of the President’s Decision, which, as I have already noted, the Third Respondent submits, I should accept and follow.

Should the President’s Decision be followed?

47    The President was deciding whether or not to refer the proceedings to the Guidance and Appeals Tribunal. That required the President to do so under s 128 of the Act, and importantly, particularly s 128(2), which refers to the Tribunal decision which may contain an error of fact or law materially affecting the Tribunal’s decision. It is important to note that the decision of the President was not one actually of the Guidance and Appeals Panel, and it was not dealing substantively with the proceedings. It was dealing with it at that first stage of whether or not the referral should be made.

48    The question before the President in relation to that referral to the Guidance and Appeals Panel and the questions before this Court in relation to it being an error of law on a s 172 appeal are different. As referred to in the President’s Decision at [49], it involved a balance between whether or not there were possible errors of law and then balancing the discretionary considerations which were referred to in some detail by the President. The President did not find that there was no error of law and in fact described it as there being possible legal errors that could not be described as fanciful. However, the President continued to describe any such possible legal errors as being at the low end of the spectrum of possibilities. The President then weighed that against what were described as the strong discretionary considerations which militated against the referral.

49    The question before this Court is different: it is a question of law and whether or not the Tribunal has erred in law in a consideration of the Decision. I am satisfied that the Tribunal has made such an error and in proceedings before this Court, there is no requirement to weigh or consider any other discretionary considerations as was required by the President.

50    Finally, the Court should note, as was expressly recognised by the President on a consideration under s 128 as to whether or not there would be a referral, there would usually not be reasons for decision of such a matter. So, any such awkwardness, which might be seen to arise in these proceedings, would not usually arise. Having said that, as I have already indicated, I am satisfied that the errors that have been identified do exist in the Tribunal’s reasons for decision in the proceedings.

51    Therefore, the orders of the Court will be:

(1)    the appeal be allowed.

(2)    the decision of the Administrative Review Tribunal dated 25 October 2024 be set aside.

(3)    the proceeding be remitted to the Administrative Review Tribunal for reconsideration according to law.

52    As was indicated during the oral hearing today, the Applicant proposed to then make an application for costs only against the Third Respondent in relation to these proceedings. There is no evidence before the Court at the moment as to what costs, if any, might be appropriate in relation to such an order. As such, and subject to hearing from the parties in relation to that, I will propose that the First and Second Respondent be excused from any further appearance in relation to the proceedings. Further, the Applicant may file and serve any application for costs with supporting material and the Third Respondent will have an opportunity to be able to file and serve anything in response.

Associate:    

Dated:    15 April 2025