Agapis v Plumbers Licensing Board

appeal to the federal court 9 On 17 April 2013, the applicant appealed to this Court. The application was made pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which permits an appeal to this Court from the Tribunal on a question of law. 10 The applicant's notice of appeal raised the following question of law: 1. The Administrative Appeals Tribunal failed to comply with decisions of the High Court of Australia which are binding on the Courts, Judges and people of every State of the Commonwealth of Australia, reference Lipohar v R [1999] HCA 65 (paragraphs 50-54) and this Tribunal sat in judgment of me and carried out a judicial function contrary to the Commonwealth of Australia Constitution Act, reference Lane v Morrison [2009] HCA 29. 11 On 5 June 2013, the applicant filed a notice of constitutional matter. 12 In an affidavit dated 21 October 2013, the applicant annexed letters from the Commonwealth Attorney-General and the State's Attorneys-General advising that they do not wish to intervene in this proceeding. 13 Each of the parties has filed lengthy submissions and, as I foreshadowed, I have, accordingly, determined this application on the papers. 14 In the case of TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, Gummow J observed in relation to an appeal under s 44 of the AAT Act on a question of law: The existence of a question of law is…not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself: FCT v Brixius (1987) 87 ATC 4963 at 4967. 15 In the case of HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291 (HBF), the Full Court (Spender, Branson and Siopis JJ) at [6] observed: …the grounds required to be specified in the notice of appeal are not grounds of appeal; they are the grounds upon which the appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks. It is not possible, as the applicant sought to do in this case, to extend the subject matter of the appeal beyond the specified questions of law by itemising, under the heading "Grounds", a series of alleged errors (some being errors of law, some being errors of fact and some being errors of mixed law and fact) in the reasons for decision of the Tribunal. 16 Under the heading "Grounds relied on" in his notice of appeal, the applicant included a number of allegations and assertions which travelled beyond the scope of the question of law as formulated by the applicant and set out in [10] above. Accordingly, the applicant fell into the vice which was identified by the Full Court in HBF.

Has the applicant formulated a question of law? 17 It is necessary as a precondition to the exercise of the jurisdiction, to be satisfied that there be a properly formulated question of law or questions of law. If there is, then the scope of the appeal is confined to the determination of the question of law or questions of law formulated. If there is not, then the Court cannot exercise jurisdiction under s 44(1) of the AAT Act. 18 As mentioned, the question of law formulated by the applicant is set out at [10] above. The applicant is a litigant in person and, accordingly, the question is not formulated with the precision which one might expect from a skilled legal practitioner. However, it is possible to discern that the question of law the applicant wishes determined, is whether the Parliament has acted beyond its legislative power by purporting to confer judicial power upon a body which is not a court constituted under Ch III of the Constitution, with the consequence that the Tribunal's decision is invalid. 19 In my view, there is a question of law which is appropriate to enliven the jurisdiction of this Court.

What is the answer to the question of law? 20 The question of law posed by the applicant is answered in the negative. 21 This is because this question has been considered and determined by the Full Court (Bowen CJ, Smithers and Deane JJ) in the case of Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, in a manner adverse to the applicant's contention. 22 In that case, the Full Court considered a contention that the conferral upon the Tribunal of quasi-judicial functions was beyond the legislative competence of the Parliament because it thereby purported to confer part of the judicial power of the Commonwealth upon a Tribunal that was not a court constituted pursuant to Ch III of the Constitution. 23 The Full Court rejected the argument. At 584, the Full Court observed: The general functions conferred upon the Tribunal are plainly administrative in character…Neither the fact that the Tribunal possesses certain procedural powers ordinarily enjoyed by courts nor the fact that the Tribunal is authorized to decide questions of law arising in the proceedings before it means that, in performing these administrative functions, it is exercising judicial power. (Footnotes omitted.) 24 The applicant relied, in his formulation of the question of law, upon the case of Lane v Morrison (2009) 239 CLR 230. However, that case dealt with the conferral of powers upon the Australian Military Court and provides no assistance in answering the question of law which was formulated by the applicant. 25 As mentioned, the allegations and assertions included under the heading of "Grounds relied on" insofar as they can be understood, travel beyond the scope of the question of law and, therefore, do not fall for consideration. 26 It follows that the applicant's appeal is dismissed. 27 However, I will, for the sake of completeness, refer to a complaint which was made by the applicant, which was the subject of an interlocutory skirmish between the applicant and the respondent. 28 This was the applicant's contention that the respondent had not demonstrated that there was a statutory basis for requiring the applicant to have a plumbing contractor's licence issued under the Act and Regulations in order to carry out plumbing contractor's work in Western Australia. In my view, there is plainly a statutory basis for requiring the applicant to have such a licence in order to carry out plumbing contractor's work in Western Australia. The relevant statutory provisions are comprised by ss 59, 59B, 59J and 61 of the Act and regs 9, 11 and 12 of the Regulations. There is no substance in the applicant's complaint. 29 As I mentioned, the applicant's appeal is dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.