Bittmann v Australian Securities and Investments Commission

1. The proceeding be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MURPHY J: 1 The applicant in this proceeding appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from the decision of the Administrative Appeals Tribunal (Tribunal) dated 4 October 2019, which dismissed her application for review for want of jurisdiction: Anita and Decision Maker [2019] AATA 4239. 2 The Tribunal dismissed the application for review on the basis that the applicant had not identified any specific administrative decision in respect of which review was sought. The Tribunal said (at [13]-[15]): The Tribunal does not have inherent jurisdiction. Any jurisdiction it does have is conferred by statute. Specifically, under section 25 of the Administrative Appeals Tribunal Act 1975, an enactment may provide that an application may be made to the Tribunal for review of a decision made in exercise of a power conferred by that enactment. Hence, in addressing the threshold issue of jurisdiction in any particular matter, it is first necessary to identify the particular decision which the applicant is seeking to have reviewed and then determine whether that decision is one for which an enactment provides for Tribunal review. In this matter, not even the first aspect of this threshold issue has been addressed. Neither in her application for review, nor at the hearing on 4 October 2019, did the applicant identify any particular decision. Instead, in essence, she simply sought to involve the Tribunal in discussions concerning a range of issues on which she was seeking advice and direction. (Emphasis added.) The Tribunal concluded that the application did not engage its jurisdiction and dismissed the application. 3 By a notice of appeal filed 31 October 2019, the applicant appealed to this Court pursuant to s 44 of the AAT Act. The Court only has jurisdiction under s 44 in relation to questions of law. Whether an appeal raises a question of law must be approached as one of substance, and "in cases of doubt the Court should consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, and the Tribunal's reasons for its decision, and having considered all those matters, satisfy itself that there is in fact a question of law": Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [94] (Haritos) (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). Where a notice of appeal does not state a question of law it should be struck out: Haritos at [96]; Bittmann v Australian Securities and Investments Commission (No 2) [2006] FCA 1786 at [12] (Kenny J). 4 The applicant is self-represented in the appeal and the notice of appeal was drafted without the benefit of legal assistance. It alleges only the following purported question of law: Basically, I want to make a request from Federal Court of Australia in order to release a legal letter for ATO office members who is responsible for my finances in Australia. My tax return is also pending due to this reason for this year. Plainly, that does not constitute a question of law. Indeed, it is not a question at all. 5 Nor can any assistance be derived from the grounds relied on in the notice. They are not grounds in support of any purported question of law in relation to any specified administrative decision or in relation to the Tribunal's decision that it did not have jurisdiction to decide the application. Instead the grounds express a series of concerns in relation to which the applicant seeks advice, direction or assistance in relation to issues concerning housing, banking, taxation, superannuation, social security payments and visa renewal. 6 It appears that the applicant seeks assistance with navigating a litany of difficulties which she has encountered across several aspects of her life, but the Court cannot provide such assistance or guidance. 7 At a case management hearing on 18 December 2019 I recommended to the applicant that she obtain some pro bono legal advice and I informed her of my preliminary view that the application did not raise a question of law. I made orders to require the applicant to file submissions by 31 January 2020 regarding: (a) the error of law the Applicant contends the Tribunal made; and (b) if the asserted error of law was the Tribunal's decision that it had no jurisdiction to decide the application for review, how was that erroneous?. 8 The applicant did not comply with the order by the deadline, or at all. Having regard to the inadequacy of the notice of appeal and the failure to comply with the orders to specify any question of law alleged, it is appropriate in the interests of justice to dismiss the proceeding pursuant to r 1.32 of the Federal Court Rules 2011 (Cth). I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.