Chowdhary v Bayne

The Appeal to this Court 7 The applicant has launched an omnibus appeal to this court against the Tribunal's decision seeking: (i) an extension of time to make application for an order of review under s 7 of the Administrative Appeals (Judicial Review) Act 1977 (Cth) ("the ADJR Act") of the Tribunal's decision (inter alia) declining jurisdiction; (ii) a writ of mandamus against Comcare to compel the payment of compensation since 29 May 1996; (iii) a declaration that s 37(7) of the SRC Act does not preclude her from receiving compensation payment and that she is entitled to pursue her appeals in the Tribunal; and (iv) an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") against the decisions declining jurisdiction to hear Mrs Chowdhary's appeal. Additionally the applicant's s 44 appeal and ADJR Act application purport, apparently, to challenge the Tribunal's conclusions on the outcome of her appeals to it in the event of it being found by this court that it had jurisdiction to entertain those appeals. 8 Despite the diversity of orders sought in these various applications, their common core is s 37(7) and whether, in the circumstances, its terms were satisfied. The applicant has foreshadowed that, for the purposes at least of its ADJR Act application, it will seek to adduce further evidence on the question of whether she had a "reasonable excuse" for failing to undertake her rehabilitation program. The basic dispute between the parties, though it does not arise directly at present, is whether such new evidence should be allowed. 9 The second respondent, Comcare has filed both an objection to competency in relation to the ADJR Act application, and a notice of motion that the hearing of the application be confined to the appeal under s 44 of the AAT Act and that that hearing be confined initially to the Tribunal's ruling that it had no jurisdiction to review any of the decisions presented to it for review. My present concern is with that notice of motion.

Issues and Conclusions 10 By way of background it is appropriate to note the following concerning s 37(7) of the SRC Act. (i) The determination whether there has been a failure to undertake a rehabilitation program without reasonable excuse calls for an objective determination of both the law and facts. It does not depend upon the opinion of any specified person or body notwithstanding that, as a practical matter, some person or body must make a decision as to its application in any specific case: Trajkovski v Telstra Corporation Ltd, above, at 253; Buck v Comcare (1996) 66 FCR 359. (ii) A s 37(7) suspension of rights under the SRC Act does not as such depend upon such a "decision under an enactment" as would be amenable to judicial review under the ADJR Act: Buck v Comcare, above. (iii) Where, but for the operation of s 37(7), a person would be entitled to appeal to the Tribunal for review of a decision made reviewable under the SRC Act: see SRC Act ss 60, 62 and 64; the Tribunal can consider the applicability of s 37(7) to such an appeal for the purpose of coming to a conclusion as to whether it has jurisdiction in the matter: Trajkovski v Telstra Corporation Ltd, above; "It is not bound to decline jurisdiction simply because the jurisdictional question cannot be described as a "reviewable decision": ibid, 256-257. (iv) A Tribunal decision that, because of s 37(7), it does or does not have jurisdiction can be the subject of an application to this court under s 44 of the AAT Act and on such an application it is for the court to come to its own conclusion whether the facts are such that the Tribunal had jurisdiction to determine the appeal to it. 11 Applied to the circumstances of the present matter, these propositions ordain that: (a) s 37(7) apart, the Tribunal had jurisdiction to entertain at least the appeals relating to physiotherapy and home services claims, reviewable decisions having previously been made in relation to each of these; (b) in these circumstances, once s 37(7) was put in issue the Tribunal was obliged to consider whether it had jurisdiction to entertain those appeals or whether the applicant's rights to appeal had been suspended; (c) it was open to the applicant to appeal to this Court from the Tribunal's decision that it lacked jurisdiction; and (d) it was for this court to reach its own view whether on the facts the applicant had the "reasonable excuse" required by s 37(7). 12 In consequence the AAT Act s 44 appeal will raise for direct consideration whether there was such an excuse. If there was, then the 29 May 1996 suspension of compensation payments lacked lawful foundation and the Tribunal's declining of jurisdiction to entertain at least the physiotherapy and home services appeals was an error of law. If there was not, then s 37(7) holds sway. In other words, in that appeal the matter of substance raised in the present application can be resolved and the order-making power of the court under s 44 of the Act is such that appropriate relief can be given. 13 It is important to note that the applicant, while not appreciating that s 37(7) raised a "jurisdictional fact" question when she prosecuted her appeal to the Tribunal, nonetheless invoked the machinery of the AAT Act for the resolution of her SRC Act grievances with Comcare. Insofar as her consequential appeal under that Act is concerned, Comcare, understandably, seeks to rely on the observations of Davies J in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484 that: "As s 44 of the AAT Act provides a specific procedure for the granting of relief by this Court in respect of decisions of the Administrative Appeals Tribunal, that procedure should be adopted. An application brought under s 5 of the ADJR Act, when an appeal under s 44 of the AAT Act is available, should be dismissed as of course." 14 While Davies J's view may be expressed somewhat more inflexibly than is necessary or appropriate: cf Australian Fisheries' Management Authority v PW Adams Pty Ltd (1995) 134 ALR 51 at 53; it encapsulates a sound principle to be followed when, as here, a s 44 application has been instituted and that application makes adequate provision for the review of the Tribunal's decisions: cf ADJR Act, s 10(2)(b). 15 When one turns to the present ADJR Act application, the principle of Tuite's case apart, the applicant faces a formidable number of obstacles in any event. First, an extension of time to file the application is required, the application being out of time: see ADJR Act, s 11(1)(c). Here I need merely note that it cannot be assumed that an exercise of discretion favourable to the applicant will be made as of course: on the discretionary factors commonly taken into account see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-350. Secondly, the substantive application itself is problematic insofar as it seeks to review the Tribunal's "decision" that Mrs Chowdhary did not have a reasonable excuse for s 37(7) purposes. That subsection does not itself make provision for a decision to be made under it, a precondition of ADJR Act review: see ADJR Act s 3(1) "decision"; Buck v Comcare, above. The consequential decisions that the application to the Tribunal to review the compensation claims for physiotherapy and home services was incompetent, are likewise contentious - although it may well be arguable that a decision in relation to a jurisdictional fact is required by implication under the SRC Act s 64 and s 37(7) and/or the AAT Act s 25: cf Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 195. 16 Given (a) the applicant's AAT Act s 44 appeal and its adequacy in the circumstances and (b) the obstacles confronting the ADJR Act application in any event, the case is one in which it is quite inappropriate to allow the applicant to prosecute both simultaneously. I will refer below to the so-called advantage an ADJR Act application might offer in adducing new evidence before this court on the jurisdictional fact question. Consistent, then, with the principle in Tuite's case to which I have referred, I will order that the s 44 appeal be heard and determined before the ADJR Act application is entertained. 17 I have reached like conclusions in relation to the applications for a writ of mandamus and for a declaration. The s 44 appeal provides an adequate and appropriate mechanism to resolve the challenges Mrs Chowdhary wishes to make. And she has already availed of it. The award of prerogative or declaratory relief is discretionary. In relation to the writ of mandamus sought against Comcare to require it to make compensation payments from 29 May 1996, not only has there been delay bordering on the unwarrantable, there is in the AAT Act s 44 appeal a legislatively provided alternative remedy that will in the circumstances allow for the determination of the very issues that the application for prerogative relief aims to secure: on alternative remedies see eg Hill v King (1993) 31 NSWLR 654; Aronson and Dyer, Judicial Review of Administrative Action, 807ff. As for the declaratory relief sought it adds nothing in substance to the s 44 appeal. Again I will direct that the s 44 appeal be heard and determined before the applications for a writ of mandamus and for declaratory relief are entertained. 18 The final matter to which reference needs be made relates to the admission of additional evidence in this court on the s 37(7) question of whether Mrs Chowdhary had a reasonable excuse for her failure to undertake the rehabilitation program. There would seem to have been quite some shift in the respective positions of the parties on this matter in the process of oral and written submissions. 19 It is accepted by all parties that in proceedings involving judicial review of jurisdictional facts the court is not bound to confine itself to the evidence placed before the inferior court or tribunal: R v Blakeley; Ex parte Association of Architects Etc of Australia (1950) 82 CLR 54 at 73; DMW v CGW (1982) 151 CLR 491 at 510; Aronson and Dyer, above, 263 ff. Equally, Comcare now concedes, properly, that despite the usual objection to the reception of additional evidence on the hearing of s 44 appeals: see Servos v Repatriation Commission (1995) 56 FCR 377 at 385; there are "limited cases" in which such evidence can or must be received: cf Percerep v Minister for Immigration and Multicultural Affairs [1998] FCA 1088. Given the nature of the objective inquiry raised by a jurisdictional fact issue, and the responsibility of the court to determine for itself the existence of the fact in question, s 44 appeals raising such an issue must, in my view, belong in principle to that limited class of exceptional case. 20 I emphasise "in principle" in the above for this reason. The manner in which the jurisdictional fact issue was canvassed in the Tribunal and the evidence led of it may be such that it is unnecessary to adduce, or inappropriate to admit, additional evidence. It needs to be emphasised that the ordinary rules of evidence apply to the receipt of evidence in such a case. Importantly, the evidence emanating from the Tribunal's hearing and the manner in which it was presented there may be such as to make it appropriate in a given case to make an order under s 135(a) or (c) of the Evidence Act 1995 (Cth) excluding some or all of the additional evidence sought to be adduced. I express no such opinion in the present case. I would, though, note that the Tribunal hearing extended over two days; the parties were legally represented; and there was cross-examination of medical experts. 21 It would, of course, be surprising if the allowable evidentiary foundation for determining the existence of an jurisdictional fact should differ as a matter of law depending upon whether the finding of that fact was to be made in a s 44 appeal or in an ADJR Act application. For present purposes I am unprepared to hold that there is such a difference. Accordingly to preclude the applicant from continuing to pursue her ADJR Act application until the s 44 appeal has been heard and determined involves no prejudice to her. 22 I will order (1) that the application to this court under s 44 of the Administrative Appeals Tribunal Act 1975 to review the decision of the Tribunal of 22 June 1998 be heard and determined separately from the other claims made by the applicant; and (2) that for the purposes of that application, the question whether the Tribunal had jurisdiction to entertain the appeals made to it be heard and determined as a preliminary question. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Solicitor for the Respondent: Australian Government Solicitor