Director-General of Social Services v Chaney, R. [1980] FCA 108

Federal Court of Australia|1980-01-31|Before: Fisher JJ, Northrop J

APPEAL - Administrative Appeals Tribunal - Application for

review from decision of Director-General of Social Services - Appeal to Federal Court of Australia from "decis2zon" of Tribunal - Competence of appeal from preliminary ruling of Tribunal that it has jurisdiction to review decision - Competence of appeal from an interim order of Tribunal staying operation of decision - What constitutes a "decision" of the Tribunal - Jurisdiction of Federal Court - Power to

Administrative Appeals Tribunal Act, 1975 ss 3(3), 41(2),

Director-General of Social Services v. Rosemary Chaney No. G40 of 1980

NEW SOUTH WALES DISTRICT REGISTRY ) No. G40 of 1980 ) GENERAL DIVISION )

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL, GENERAL ADMINISTRATIVE DIVISION

order made by the President of the Administrative Appeals Tribunal be dismissed.

THE appeal from the interim order of the Federal Court of Australia constituted by a single judge be allowed AND THAT that interim order be set aside.

THE applicant pay to the respondent so much of his costs of the appeal to this Court as

relates to the appeal referred to in Order 1 hereof.

On appeal from the Administrative Appeals Tribunal, General Administrative Division

BET W EN: DIRECTOR-GENERAL OF SOCIAL SERVICES Applicant and ROSEMARY CHANEY Respondent NORTHROP J. REASONS FOR JUDGMONT

By letter dated 31 January 1980 Senator Puplick wrote to

"I am writing on behalf of Mrs, Rosemary Chaney of 22 Market Street, Randwick, N.S.W. 2031.

There is a long history of disputation between your Department and Mrs, Chaney over the provision of a Widow's Pension for her. The essence of this Matter is that while Mrs. Chaney 15 in every respect eligible for such a pension, she has fallen foul of the cohabitation rule of the Act.

She Lives in the same premises as Mr. Keith Chaney, whose name she and the two children heave taken to hide their identity from Mrs. Chaney's ex-husband.

I am, however, satisfied that Mrs. Chaney does not 'cohabit' in the sense that that term shouid be understood, that is she does not derive any physical or Financial suppoct frem Keith Chaacy, and docs not derive any econemic benefit as 1£ she were living in a de fectc relationship with him. All that can pe said ig that the two veople live separately under the same roof.

Your Departimout vill nave received material supporting tnis view frou both Mr. J. Birney, MP, and from the Neafern Legal Centre, who aave had Welfare Officers @xamire this case in detail.

"When Mrs. Chaney last had her pension withdrawn she made an appeal to the Social Security Appeals Tribunal which recommended that her pensicn be restored. This recommendation, however, was

I now ask that you might ask Mr,Lanigan to review his decision.

the cohabitation rule, I am convinced, as I have said, that Mrs. Chaney 2s not living in a de facto relationship with Keith Chaney, nor 1s she deriving any economic support from Keith Chaney. She 1s in fact presently totally dependent upon her child- endowment payments for her income support.

I believe that a review by the Director-Géneral of his decision would be appropriate and I would

appreciate your assistance in forwarding this letter to him."

The Mr. Lanigan referred to in the letter is the Director-General

By minute dated 14 April 1980 the Director-General wrote

MRS. ROSEMARY CHANEY REPRESENTATIONS AGAINST CANCELLATION OF WIDOW'S PENSION

In spite of the conviction with which Senator Puplick has pressed Mrs Chaney's case I am satisfied that the only action I «an correctly take is to confirm the decision of Mr Wryell, made on the unanimous recommendation of our senior officers who have handled this case, that Mrs Chaney fails to qualify for widow's bension because her relationship with Mr Chaney puts her within the statutory definition of 'dependent female'.

"2. This is not a transient relationship of the kind that we often have trouble with. We have

for years been in dispute with Mrs Chaney about her claims and the pattern of evidence over the years is consistent in indicating the view that, on the balance of probabilities, Mrs and Mr Chaney have a sufficiently close relationship to place her outside the area of eligibility for widow's pension.

You will gaan some idea of the nature of this case from the attached copy of a minute which

Mr Prowse sent to you in 1978, and from the attached papers in which our senior officers have s@&t out the present position as they assess it.

'It is a thankless task to have to determine these cases. The broad policy which the legislature has given effect to is clear enough, and quite necessary if we are not to allow people who live in informal arrangements to have unfair advantages over those who are legally married. On the other hand there can never be any certainty in the judgments

on the fact that we have to make in relation to delicate issues of which we can never have compiete knowledge or understanding.

I can only put to you my personal view that, 1f ever there is to be a case in which we are justified

in denying a pension on cohabitation grounds, this would appear to be such a case.

I do not beiieve it 1s lawfully open to me to authorise payment of a pension to Mrs Chaney in such circumstances, and I have prepared the reply to Senator Puplick accordingly. I have written in similar terms to Mr Birney, M.P. who took the case up directly with me."

The Minister signed the letter prepared by the Director- General, dated it 15 April 1980 and forwarded it to Senator Puplick.

"I am replying to your personal representations on behalf of Mrs Rosemary Chaney of 22 Market Street,

Randwick, N.S.W. 2031 concerning the cancellation of her widow's pension.

"As you know, the Social Services Act provides that

a woman is not entitled to receive a widow's pension if her case falls within the definition of 'dependent female' in the Act - i.e. if she 1s living with a

man as his wife on a bona fide domestic basis although not legally married to him.

The reasoning behind the legislative policy 1s that

a man and woman who, for convenience, economic or other reasons, live together in circumstances similar to those of a husband and wife, are not placed ina better or worse position for pension or henefit purposes than a legally married couple.

Mrs. Chaney's case has been the subject of extensive enquiries over a period of years. My department has, from time to time, found 1t necessary, after a careful weighing of all the evidence available te it, to proceed on the aSsumption that Mrs Chaney does in fact fall within the statutory definition of 'dependent female', and it follows from this that she is not entitled to the widow's pension she has been claiming.

The Director-General has assured me that he has personally reviewed the case in the light of your representations but, an all the circumstances, he finds that he has no option but to confirm the decisions

By letter dated 14 April 1980, the Director-General had written to Mr, Birney, M.P., being the person referred to in the

"I am replying to your representations on behalf of Mrs Rosemary Chaney of 22 Market Street, Randwick, N.S.W. 2031 concerning the cancellation of her widow's pension.

As you know, the Social Services Act provides that a woman is not entitled to receive a widow's pension 1f her circumstances place her within the definition of 'dependent female' 14 the Social Services Act ~ 1.¢e., 1f she 1s living with a man as his wife on a bona fide domestic basis aithough not legally married to him. The reasoning behind the legislative policy is that a man and woman wno, for convenience, econotric or other reasons, live together in circumstances similar to these of a husband and wife, are not placed in a netter or worse position for pensicn cr benefit purposes than a legally married couple.

"Pollowing receipt of your representations I had further enquiries made about this matter. My

senior officers are satisfied, on the basis of the evidence available to them, that there has not been any Slgnificant change in the relationship which has lasted for several years, and that Mrs Chaney does fall within the statutory definition of 'dependent female', I have carefully reviewed the evidence but have found myself compelled to confirm this conclusion.

In these circumstances, Mrs Chaney could not be accepted as satisfying the legislative requirements necessary

to qualify for a widow's pension under the Social Services Act. Accordingly I have no option but to confirm that Mrs Chaney had no present entitlement

to widow's pension at the tame of this latest review

It is abundantly clear that the issue raised by this correspondence concerns Mrs. Chaney's entitlement to a widow's pension under the Social Services Act 1947 as amended, hereinafter Called the Act. Part 1V of the Act is headed "Widows' Pensions" and contains provisions relating to the qualifications by which a woman is entitled to receive a widow's pension. Part 1V comprises sections 59 to 82 inclusive. Under s.59(1) the words "dependent

"... a woman who, for not less than three years immediately prior to the death of a man (in

this Part referred to as the man 1n respect of whom she was a dependent female), was wholly or Mainly maintained by him and although not legally Married to him, lived with him as his wife on a permanent and bona fide domestic basis;"

Under the same section the word "widow" is given an extended meaning

(c)} a woman whose marriage has been dissolved and who has not remarried ...

"but does not include a woman who 1s living with aman as his wite on a bone fide domestic basis although not legally married to him."

Mrs. Chaney 1S a woman whose marriage has been dissolved and who has not remarried. The issue for determination by the Director-General was whether she came within the exclusionary

provisions of the definition of "widow", namely whether she was:

"a woman who was living with a man as his wife on a bona fide domestic basis although not legally married to him."

The issue was whether Mrs, Chaney was a widow within the meaning of that word when used in Part 1V of the Act and thus was entitled to a widow's pension. The definition of "dependent female" had

no application to the issue before the Director General. To add to the confusion, under Part 111 of the Act, which makes provision for aged and invalid pensions, the words "dependent female" are

"a woman who is living with a man (in this Part referred to as her husband) as his wife ona

bona fide domestic basis although net legally Married to him."

but that definition has no application to the words "dependent female" when used in the extended definition of the word "widow"

On 1 April 1980 by Statutory Rule 1980 No. 62 "Part XX1VA

Social Services Act" was inserted in the Schedule to the

Administrative Appeals Tribunal Act 1975, as amended, hereinafter called the A.A.T. Act. Part XX1VA provides as follows:

"24A. (1) Where the Director-General of Social Services -

(a) has, in pursuance of section 14 or 15 of the Social Services Act 1947, affirmed, varied or annulled a determination, direction, decision or approval of an officer under that Act, being a determination, direction, decision or approval that has been reviewed by a Social Security Appeals Tribunal; and

(b) has so affirmed, varied or annulled that determination, direction, decision or approval otherwise than in accordance with the decision of the Social Security Appeals Tribunal in relation to that determination, direction, decision or approval,

an application may be made to the Administrative Appeals Tribunal for a review of the decision of the Director- General so to affirm, vary or annul that determination, direction, decision or approval,

(2) A person 1s not entitled to appeal to the Director-General of Soc1al Services under section 15 of the Social Services Act 1947 against a decision in respect of which an application may be made to the

Administrative Appeals Tribunal for review by virtue of sub-clause (1)."

As a result of this amendment a decision of the type referred to in that Part made after 1 April 1980 may be reviewed by the Administrative Appeals Tribunal, hereinafter called the Tribunal,

called the respondent, made application under s.29(1) A.A.T. Act to have the decision described reviewed by the Tribunal. In the

"The decision to be reviewed 18: decision of the Department of Social Security to cancel Widow's Pension on the grounds of alleged cohabitation."

The name of the person who made the decision is stated to be

By notace dated 1 May 1980 the Deputy Registrar of the Tribunal at Sydney gave notice of the application to the Director-General. As a result the Director-General became a party to the proceedings before the Tribunal and under s.37(1) A.A.T. Act he was required, within 28 days after receiving notice of

"{a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

control and is considered by him to be relevant to the review of the decision by the Tribunal."

The Director-General challenged the jurisdiction of the Tribunal to entertain the application to review the decision. At a preliminary hearing held betore the President of the Tribunal on 15 May 1980 the Director-General raised the 1ssue of jurisdiction but gave an undertaking to the President to lodge with the Tribunal copies of the documents required to be supplied

under s.37 A.A.T. Act. On 20 May 1980 the Director-General lodged

those documents with the Tribunal together with e statement

setting out the findings on material questions of fact and givird

the reasons for the decision in question, see s.37(1) (a) A-A.T. Act. That statement did not form part of the appeal book but was forwarded to the Court pursuant to the provisions of s.46(1) (a) A.A.T. Act. In addition, the Director-General lodged with the Tribunal a copy of the delegation of statutory powers under s.12 of the Act to a Deputy Director-General, Mr, Wryell. The covering letter under which these documents were lodged contained the

"A hearing has been set down by the President of the Tribunal for 2.15 p.m. on Thursday 22 May to determine the question of the jurisdiction of the Tribunal to entertain the application in this matter. The Statement of findings of fact and reasons for the decision and associated documents relating to the substantive question in this matter are lodged notwithstanding the unresolved nature of the jurisdiction issue.

Subject to the resolution of the question of jurisdiction of the Tribunal: the Director-General is agreeable to the holding of a preliminary conference under section 34 of the Administrative Appeals Tribunal Act to consider any of the matters which might be raised in the light of the lodged

Statement and documents or any other pertinent issues which might require early consideration."

By agreement between the Director-General and the respondent the issue of whether the Tribunal had jurisdiction to review the decision came on for hearing as a preliminary issue before the President of the Tribunal on 22 May 1980. The Tribunal extracted from the documents lodged by the Director-General those documents which were relevant for the purpose of deciding the issue of jurisdiction. Those documents were given exhibit

Notification to the respondent of the suspension of widow's pension on

Minute from the Director-General to the Minister dated 14 April 1980 and two additional

'Letter dated 2 May 1980 from Social Worker acting on behalf of the respondent to the

After hearing submissions the President held that the Tribunal had jurisdiction to review the decision of the Director- General and gave reasons for so holding. On 28 May 1980, the Director-General, 1n purported exercise of the powers conferred

by s.44(1) A.A.T. Act, appealed to a Tull Court of the Federal

Court, see sub-section 5(3) and (4). Other matters arose in connection with the appeal, but for the time being they can be

put to one side. The two questions for immediate consideration

are:

Whether the Federal Court has jurisdiction to hear and determine an appeal from a decision of the Tribunal by which it held it had jurisdiction to review the decision of

2, Whether the decision of the Director-General of 14 April 1980 was a decision which, under the A.A.T. Act, the Tribunal had jurisdiction

Before considering the first of these questions reference should be made to some of the provisions of the Social Services Act and the Administrative Appeals Tribunal Act and to

Prior to 2 March 1979, the respondent was in receipt of a widow's pension under Part 1V of the Act. She had been accepted as a widow within the definition of the word where used in Part lV. In particular she had been accepted as not being a woman coming within the exclusionary provisions of the definition of the word "widow". In other words, for the purpose of receiving a widow's pension she was not a woman living with a man as his wife

on a bona fide domestic basis, although not legally married te hin.

She had satisfied the requirements entitling her to receive a widow's pension under s.66 of the Act in that she was a widow having the custody and control of one or more children. It can be assumed that under s.66 of the Act she had made a claim for a widow's pension and that under s.67 of the Act the claim had been investigated and that under s.13 of the Act the Director-General

'Section 6 of the Act contains definitions. Included

among the words defined are: "Director-General", "Deputy Director-

General", "Director" and "officer". In the Act unless the contrary intention appears, the word "officer" "means an officer or person performing duties, or exercising powers or functions under or in relation to, the Act". It follows that unless a contrary intention appears, the Director-General, an Assistant Director-General and a Director are officers within the meaning of the Act. Section 12

"12(1) The Director-General may, by writing under his hand, delegate to a Deputy Director-Generai, to an Assistant Director-General, to a Director, to a Registrar or to any other officer, all or any of his powers and functions under this Act, except this power of delegation, so that the delegate may exercise the powers and functions specified in the instrument of delegation.

(3) Every delegation under this section shall be revocable at will and no delegation shall prevent

the exercise of any power or function by the Director-General."

Having regard to the definition of the word "officer", the reference in s.12(1) to a Deputy Director-General, an Assistant

Director-General, a Director, and a Registrar appears to be

unnecessary but for the purposes of the present case 1t can be taken as established that the Director-General had delegated such powers and functions of the Act to Mr. Wryell to enable Mr. Wryell

to make the determination which he did on 7 December 1979.

"13. The Director-General shall, subject to this Act, determine claims.

that sufficient reason exists for reviewing a determination, direction, decision or approval of

an officer under this Act ({ancluding a determination, direction, decision or approval of the Director- General), the Director-General may review the determination, direction, decision or approval and May affirm, vary or annul 1t.

15, A person affected by a determination, direction, decision or approval of an officer under this Act (except a determination, direction, decision or approval of the Director-General) may, within such

time (if any) as 18 prescribed, appeal to the Director- General and the Director-General may affirm, vary or

annul the determination, direction, decision or approval."

Some comments are made. Having regard to the wording of Sections 13, 66 and 68, the Director-General prior to March 1979 had determined the claim for a widow's pension made by the respondent. The power to review a determination conferred by s.14, including the power to determine the condition precedent to the exercise of the power to review, 1S capable of being delegated to an officer by the Director-General and the delegation can extend to a power to review a determination made by the Director-General personally. The power to affirm, vary or amend a determination on an appeal under s.15 1s capable of being delegated to an officer,

but there can be no appeal from a determination made by the

Director-General personally. No time has been prescribed within

By notice dated 2 March 1979, being Exhibit T28, a Director advised the respondent as follows:

"Payment of your widow's pension has been suspended because enquiries aboul your

future entitlement have yet to be completed. You will be further advised as soon as possible. You may continue to use your medical card and concession card.

If you would like more details about this -assessment, or we can help you in any other aspect of social welfare, please get in touch with us at the above address.

review officer referred to can be contacted on the telephone number shown above."

Thereafter the respondent ceased to receive the widow's pension. For present purposes it is assumed that the notice was evidence

of a determination, direction or decision made by an officer exercising powers under s.14 of the Act which had been delegated to him by the Director-General. Pursuant to s.15 of the Act

the respondent appealed from that determination, direction or decision to the Director-General, Administratively,as a first step, the appeal was referred to a Social Security Appeals Tribunal (hereinafter called S.S.A.T.). The S.S.A.T. 18 constituted within the Department of Social Security. (It 1S not constituted pursuant to any statute or regulation. It 1s an advisory body having no statutory basis and its powers and functions are not defined.

It makes a recommendation to the person who 1S to exercise powers

under s.15 of the Act. The recommendation of the s.5.A.T. was

contained in a document dated 6 September 1979 and 1s Exhibit 136. The following extracts are taken fron the report: "The Director

Mrs, Rosemary H. CHANEY 22°'Market Street, Randwick

Whether or not Mrs, Chaney is residing on a bona-fide domestic basis as the wife of Mr. Keith Chaney."

Tribunal Members are divided in their views of the appeal.

The Chairman and welfare member consider that the appeal should be upheld. They see Mrs. Chaney having become a victim of the history of her association with the Department. They believe that her circumstances have changed totally, she being no more than an occupant of the Randwick address since she moved there in November, and certainly not living on a bona-fide domestic basis as the wife of Mr. Keith Chaney. They are of the opinion that she has adequately explained her continued usage of the name Chaney and that there 28 no good reasons for not restoring payment of widow's pension.

The Full-tame Member dissents from that view, Endeavouring to be free of influence of the earlier history of her circumstances, he takes the view that Mrs. Chaney by continued living in the same house as Mr. Chaney and continued use of his name for herself and her children has not established that she has texminated her former relationship with him, although he accepts that it be erratic and unstable.

upheld on the majority view ard payment of widows pension restored from 15 March 1979 subject to

"adjustment of payments of special benefit which may have been made. It is asked that consider- ation be given to the minority view that the appeal be dismissed."

The appeal was determined by Mr, Wryell on 7 December 1979, in the exercise of powers conferred by s.15 of the Act. That decision was referred to in the document being Exhibit T37. The document consists of a recommendation made by an Assistant Director-General on 15 December 1979 and supported by another officer on 6 December 1979 and approved by Mr. Wryell on

7 December 1979. The following extracts are taken from Exhibit T37:

"Mrs. R. H. Edwards also known as Mrs. R. H. Chaney Appeal against non-payment of widow's pension

The facts in thas case are basically that Mrs, Chaney Successfully appealed to the SSAT (majority decision) against the suspension of her widow's pension.

widow's pension which was granted on 14 September ° 1978. Subsequent inguiries indicated that Mrs.

I recommend that the appeal be disallowed and I incorporate in my recommendation paragraph 14 of Mr. Goonrey's submission (£65) and would add that as the field officer report of 15 December 1978 indicates, where 1t suits Mrs. Chaney, she asserts in no uncertain Fashion that she is the wife of Mr. K. Chaney. The field officer report clearly shows that her vigorous assertion that

she 1s the wife of Mr. K. Chaney sufficiently impressed officers of the Randwick Police Station

when they were questioning Keith Chaney in relation to an alleged robbery."

On 21 January 1980 the respondent made a fresh claim for a widow's pension, but this was rejected by a determination

The correspondence set out at the beginning of these reasons then followed, The letter from Senator Puplick is Exhibit T44 and the minute of the Director-General to the Minister dated 4 April 1980, the letter from the Minister to Senator Puplick and the letter from the Director-General to Mr. Birney are Exhibit T48. The application for review of the decision of the Director-General dated 24 April 1980 is Exhibit T51. The letter dated 2 May 1980 from the Social Worker, being Exhibit 153, identifies that the decision sought to be reviewed is the decision of the Director-General evidenced by the minute dated 14 April 1980. The letter also requests that the jurisdictional questions be resolved quickly so that "many hours are not spent preparing a

Section 44 A.A.T. Act makes provision for appeals from

any decision of the Tribunal, Extracts from s.44 are set out:

"44.(1) 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.

(2A) An appeal by a person under sub-section (1) or (2) shall be instituted -

(a) not later than the twenty-e1ghth day after the day on which a document setting out the terms of the decision of the Tribunal 1s furnished to the person or within such further time as the Federal

" Court of Australia (whether before or after the expiration of that day) allows; and

(b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.

(3) The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with sub-sections (1) and (2) and that jurisdiction may be exercised by that Court constituted as a Full Court and shall be exercised by the Court so constituted 1f the decision of the Tribunal was given by the Tribunal constituted by a presidential member or by members at least one of whom was a presidential member.

(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision."

Reference should be made to s.45 A.A.T. Act which empowers the Tribunal to refer a question of law arising in a proceeding before

the Tribunal to the Federal Court of Australia for. decision.

Although s.44 A.A,T. Act refers to "an appeal to the Federai Court", in truth the Court hearing and determining the appeal is exercising original jurisdiction under s.19 and s.20 Federal Court

of Australia Act 1976 as amended, see Collector of Customs (N.S.W.) v.

Brian Lawlor Automotive Pty. Ltd. (1979) 24 A.L.R. 307 and Committee

of Direction of Fruit Marketing v. Delegate of Australian Postal

Commission (1979) 25 A.L.R. 221. The appeal is "on a question of law" and is not a re~hearing of the proceedings before the Tribunal, see the

Committee of Direction of Fruit Marketing case, supra, per Northrop J.

at p.231 and pp.232-3. Order 53, Federal Court Rules, 1s based on those principles. The person who commences the proceedings in

the Federal Court 1S an applicant, Rule 3, and the Notice of Appeal 1S required to state the questicn or questions of law to be raised on the appeal, Rule 4(1)(c) (221). This procedure can

be compared with the procedure prescribed under Order 50 on a

reference of a question of law under s.45 A.A.T. Act. Section 46 A.A.T. Act contains provisions of a procedural nature with

Reference should be made to s.43 A.A.T. Act which confers powers upon the Tribunal when reviewing a decision. Under s.43(1) the Tribunal is required to make a decision in

"43.(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing -

(a) affirming the decision under review; (b) varying the decision under review; or

(i) making a decision in substitution for the decision so set aside; or

(ii) remitting the matter for re- consideration in accordance with any directions or recommendaticns of the Tribunal."

"43(2) Subject to sections 35 and 36, the Tribunal shall give reasons in writing for its decision and those reasons shall include its findings on

Material questions of fact and a reference to the evidence or other material on which those findings

The extended definition of the word "decision" in s.3(3) of the

A.A.T. Act does not assist in the determination of this aspect cf

The appeal is brought from a ruling made by the Tribunal that it had jurisdiction to review the decision of the Director-General and the first issue to he decided is whether that ruling was within the meaning of the words "any decision of the Tribunal" in s.44(1) of the A.A.T, Act. Counsel for the respondent did not raise this issue as a preliminary objection to the jurisdiction of the Federal Court, but since it was raised in the course of submissions it is necessary that the Court decide the

It is clear that the ruling by the Tribunal that it had jurisdiction to review the decision of the Director-General is not

"(a) affirming the decision under review; (b) varying the decision under review; or

(i) making a decision in substitution for the decision so set aside; or

in accordance with any directions or recommendations of the Tribunal."

The Tribunal gave reasons for its ruling, including its findings on material questions of fact and a reference to the evidence on which those findings were based, The reasons for its ruling may not be "reasons in writing" for the purposes of s.43(2) of theaAA.T. Act. The transcript of the proceedings before the Tribunal and the reasons an. ruling of the Tribunal are before the Court. To that extent the ruling is in writing and constitutes a document setting out the

terms of the decision of the Tribunal for the purposes of s.44 (22) (5

of the A.A.T. Act thereby determining the time within which an appeal may be taken. The particular documents on which the ruling is based are the exhibits referred to earlier in these reasons. No oral evidence was given in the proceedings before the Tribunal. It follows, in

my opinion, that a s.43(1) "decision in writing" for which, by s.43(2) the Tribunal "shall give reasons in writing" is merely one

of the decisions withim the meaning of the phrase "any decision

of the Tribunal in that proceeding", the terms of which are set out

In *f¥ts general sense the meaning of the word "decision" appearing in the Shorter Oxford Dictionary is: "The action of deciding (a contest, question, etc.); settlement, determination; (with a and pl.) a conclusion, judgement: esp. one formally pronounced

in a court of law 1552", See also re Dover & Kent County Council

[1891] 1 Q.B. 725 and Reidy v. Herry (1897) 23 V.L.R. 508 where at

justices 1S something which is announced but not what

In my opinion, when used in s,44 A.A.T, Act the word "decision" includes a formal conclusion announced by the Tribunal that it has jurisdiction to review a decision under the A.A.T. Act,

and need not be limited to meaning the final conclusion or result of

At a glance

Court

Decision date

Before

Source

Judgment (371 paragraphs)

Cited By (3)