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[1980] FCA 108
Federal Court of Australia
1980-01-31
Fisher JJ, Northrop J
Original judgment source is linked above.
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.
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
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:
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.
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
Under s.44(1) A.A.T. Act a party to a proceeding before tre
Tribunal may appeal, on a question of law, "from any decision of the
Tribunal in that proceeding". The emphasis 1s mine. The section Gces
not refer to "the decision" of the Tribunal. The appeai 1s not
"(a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and
(i) making a decision in substitution for the decision so set aside; or
accordance with any directions or recommenc~ ations of the Tribunal"
but to "any decision of the Tribunal" in a proceeding before the
The Federal Court has held that the Tribunal has power to review a decision made by an administrator in purported exercise of a statutory power when in fact the administrator was not sc empoweres
the Collector of Customs (N.S.W.) case, supra, and in particular per
Bowen C.J. at pp.313-317 and per Smithers J. at pp.331--341. See alsc
Calvin v. Carr (1979) 22 A,L.R. 417, Deputy Commissioner of Patents
v. Board of Control of Michigan Technological University (1980) 28
A.L.R. 551 and Commonwealth of Australia v. Goodfellow, unreported,
Federal Court 21 May 1980. The latter case concerned an "appeal" on a question of law from a decision of the Commonwealth Employees'
Compensation Tribunal. In each of the Collector of Customs (N.S.W,)}
case and Goodfellow's case the relevant Tribunal had made a decisior reviewing or reconsidering respectively an earlier decision by an administrator. In each case the Federal Court held that the Tribunal had jurisdiction to determine the question whether 1t had power to review or reconsider a decision, but that the Federal Court could determine on a question of Law whether the Tribunal had the necesssr
power. In the Collector of Customs (N.S.W.) case Bowen C.J. at
"In the view which I take as to the meaning of s 25 of the Administrative Appeais Tribunal Act, these questions do not need to be deciced., As I have said, in my opinion
an applicant to the Tribunal has standing and the Tribunal
"has jurisdiction provided there is a decision in fact
and provided further that the decision purports to have been made in exercise cf powers conferred by an enactment whether or not as a matter of law 1t was validly made
and whether or not action on the basis there was power
It may be that the nature of the legal questicn raised will be such that the Tribunal, although 1t has jurisdictic May consider it proper that the applicant should first approach a court for decision of the question. Jt may, in
its discretion, decide to defer hearing the application until this' is done. An appeal involving a constitutional
question might well be such a case, However, this would not be because the Tribunal lacked jurisdiction.
In the present case the applicant established the necessar, elements that there was a decision in fact and thar it purported to be under an enactment or in exercise of powers 'conferred by an enactment, so the applicant had standing and the Tribunal had jurisdiction. When the applicant asserted the decision was legally invalid due to absence of power, he was mistaken in describing this as a 'Jurisdictional point'. The Tribunal had jurisdiction and was entitled to determine the legal question raised before it."
See also R. v. Judges of the Federal Court of Australia and Adamson;
ex parte West Australian National Foodball League (Inc.) (i979) 23
A.L.R. 439 as to the various procedures that can be followed when an
issue is raised concerning the jurisdiction of the Federal Court.
In the present case, both parties desired to have the jurisdictional issue determined as a preliminary issue "so that marty hours are not spent preparing a case that might not be accepted by the Tribunal". The Tribunal made a decision that it had jurisdiction to review the decision of the Director-General, In my opinion the decision so made is a decision under s.44(1) A.A.T. Act. The Federal Court has jurisdiction to determine the jurisdictional question on an appeal under s.44(1) A,A.T. Act on a question of law after a final decision has been given by the Tribunal. It 18 appropriate thet it should have jurisdiction to determine the same issue on an appeal on a question of law from a decision on a preliminary issue. I would
The other members of the Court are of opinion that the Federal Court does not have jurisdiction to hear and determine this appeal. The order of the Court will be in accordance with those opinions. In these circumstances 1t 18 undesirable that I should express an opinion on the question 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 to review. Accordingl,
On 22 May 1970, the Tribunal, after ruling that at had jurisdiction to review the decision of the Director-General, heard an application by the respondent "to stay the order of the suspension of Mrs, Chaney's pension pending the determination by" the Tribunal of the review of the decision of the Director-General. The application was made under s.41(Z) A,A.T, Act which empowers the Tribunal or a presidential membe> roa:
",.. make such order or orders staying or otherwise
Tribunal or presidential member considers . . appropriate for the purpose of securing the effectiveness of the hearing and determination
of the next pension period until the hearing and determination of this review or order made prior to that date."
The Director-General under s.44(1) of the A,A,T. Act has appealed
from that ruling. For reasons already expressed, in my opinion tag
Court has jurisdiction to hear and determine this appeal, but since the other members of the Court are of opinion that the Court does not have jurisdiction, I d® not express my opinion on the
The final matter for consideration concerns an appeal in the appellate jurisdiction of the Federal Court heard concurrently with the appeal from the Tribunal. On 4 June 1980 the Federal Court constituted by a single Judge, heard an application by the respondent made under s.44A(2) A.A.T. Act for an order staying or otherwise affecting any orders made by the Tribunal under
$.41(2} of that Act, Section 44A(2) A.A.T. Act is as follows:
"44A.(2) Where an appeal is instituted in the Federal Court of Australia from a decision of
Court may make such order or orders staying or otherwise affecting the operation oz implementation of either or both of the following:
(a) the decision of the Tribunal or a part of that decision; and
(b) the decision to which the proceeding before the Trabunal related or a part of that decision, as that Court or Judge considers appropriate for .« the purpose of securing the effectiveness of the hearing and determination of the appeal."
On the same day the Court made the following order:
"In pursuance of section 44A(2) of the Administrative Appeals Tribunal Act 1975 the order of Davies, J.
pension day) until the hearing of the appeal or further order."
The Director-General has appealed from that order. Under
s.24 Federal Court of Australia Act, the appeal is as of right.
The other members of the Court are of opinion that the word "decision" where first appearing in s.44A(2) A.A.T. Act should be given the restricted meaning which they gave to the word "decision" appearing in s.44(1) A.A.T. Act, and accordingly are of opinion that the condition precedent to the existence of the jurisdiction conferred by s,44A(2) has not been fulfilled. Acceptinc the fact that the Court has made an order that the appeal from the ruling of the Tribunal that it had jurisdiction to review the decision of the Director-General be dismissed, there is in existence no appeal from a decision of the Tribunal in which the Federal Court could make an order under s,44A(2) A.A.T. Act. For this reason I would dismiss this appeai as incompetent. I would make no order as to the costs of the appeal, see Order 52 Rule 13
I certify that ths and the2 f preceding pages are a true copy of the Recsons for Tvdgment herem of the Honourable Mr. Justice Sm+~ep
) NEW SOUTH WALES DISTRICT REGISTRY ) NO. G40 of 1980
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL, GENERAL ADMINISTRATIVE DIVISION
DEANE J: On 1 March, 1979 a decision was made by an officer of the Department of Social Security to suspend the payment of a widow's pension then being paid to the respondent. The respondent appealed from that decision to the Director-General of Social Services pursuant to s.15 of the
Social Services Act, 1947. In accordance with internal
departmental practice, her appeal was considered by the
"Social Security Appeals Tribunal" which 1s an advisory body
constituted, without express statutory basis, by the Department and which on 6 September, 1979 recommended, by majority, that the respondent's appeal be upheld. On 7 December, 1979, a Deputy Director-General of Social Services, acting as a delegate of the applicant Director-General of Social Services ("the Director-General"), approved a departmental recommendation that, notwithstanding the majority decision of the Social Services Appeals Tribunal, the respondent's appeal should be disallowed. At that time, no appeal to the Administrative Appeals Tribunal ("the Tribunal") lay from a decision of the Director-General or his
Representations, on behalf of the respondent, were made both to the Minister for Sociat Security and direct to the Director-General. As a result of those representations, the Director-General himself "reviewed the case". On, it would seem, 14 April, 1980, he decided to "confirm" that the respondent was not entitled to a widow's pension. The documents before the Court are equivocal as to whether what the Director-General confirmed was the original decision of 1 March, 1979 "Suspending" the payment of pension, the decision of his delegate on 7 December, 1979, that the respondent's appeal be disallowed or both of those particular decisions. Those documents do, however, indicate a degree of confusion
as to the relevant provisions of the Social Services Act,
1947 since it is stated, on a number of occasions, that the
applicant's pension had been cancelled because she came "within the statutory definition of 'dependent female'" whereas, under the relevant definitions in s.59(1) of that Act, the effect of coming within the statutory definition of "dependent female" is to Satisfy a qualification, and not to
Tribunal (Social Services Act) Regulations had commenced
operation. Those Regulations inserted Part XXIVA in the Schedule to the Administrative Appeals Tribunal Act, 1975, ("the Act"). The effect of the insertion of Part XXIVA was to confer upon an interested party a right, in the particular circumstances specified, to apply to the Tribunal for a review of a decision of the- Directo1-General made on or after that date. On 28 April, 1980, the respondent lodged with the Tribunal an application for review of the "decision of the Department of Social Security to cancel Widow's Pension ...". It 1S common ground between the parties that the decision which is the subject of the application to review is that
On 22 May, 1980, the application for review came before the President of the Tribunal (Davies J), Counsel for the Director-General argued that the Tribunal had no Jurisdiction to review the Director-General's decision of 14
April, 1980. The learned President, on the material before
him, ruled that the Tribunal had jurisdiction to review the decision. An application was made, on behalf of the respondent, "to stay the order of the suspension of (the respondent's) pension pending the determination by (the) Tribunal of the review". His Honour concluded that he should "suspend the order" until the hearing and determination of the review or further order. It is plain, from a perusal of the transcript, that it was his Honour's intention that the respondent should, under the interim order which he made, be entitled to receive the widow's pension pending the determination of the application for review or further order. The view was however taken by the Director-General that, as a matter of language, the interim order failed to achieve that
On 28 May, 1980, the Director-General caused a notice of appeal to be lodged in the registry of this Court. According to that Notice of Appeal the Director-General appealed from the "following decisions" of the President of
"(a) Bis decision that the Tribunal had jurisdiction to entertain the application for review then before it.
{b) His 'decision to suspend the decision of the applicant of 14 April 1980".
On 4 June, 1980, in pursuance of an application made on behalf of the respondent, Bowen C.J., ordered that the interim order of the President operate "to direct payment of the pension to (the respondent) as from today (a pension day) until the hearing of the appeal or further order". This anterim order was made in purported pursuance of s.44A(2) of the Act. On 12 June, 1980, the Darector-General lodged a supplementary notice of appeal in which he appealed from that
The argument on the hearing of the appeal to this Court was concerned with four issues. I shall mention them un the order in which 1t 1s convenient to deal with them. The first issue involves the question of the competence of an appeal to this Court either from the preliminary ruling of the President of the Tribunal that the Tribunal possessed jurisdiction to review the Director-General's decision of 14 April, 1980 or from the interim order of the President staying the Operation of that decision of the Director-General. The second issue is whether, on the assumption that such an appeal 1s competent, the preliminary ruling of the learned President as to Jurisdiction was affected by error of law. The third issue, again on the assumption that the appeal 1s competent, raises the jurisdiction of the President of the Tribunal to make the interim order which he made. The fourth issue 1s whether the interim order of the Chief Judge was warranted by the
This Court does not possess general supervisory jurisdiction over the Tribunal. It possesses no power to intervene by prerogative writ to prevent the Tribunal exceeding its jurisdiction in dealing with an application for review. Jurisdiction, in that regard, is currently possessed by the High Court of Australia and by that Court alone. The jurisdiction of this Court in relation to proceedings before the Tribunal is that conferred by s.44, s.44A and s.45 of the Act. For present purposes, that jurisdiction is the jurisdiction to hear and determine, in the original jurisdiction of the Court, an "appeal ... on a question of law, from any decision of the Tribunal" in a proceeding before the Tribunal (s.44), the yurisdiction to hear and determine any question of law reterred to 1t by the Tribunal (s.45) and the jurisdiction to make interim orders in a case where an appeal from a decision of the Tribunal has been
It 1S apparent that the Tribunal has not, at this stage, purported to make any determination disposing of the application for review which has been made to it. All that has happened is that the Tribunal has made a ruling on a preliminary question of jurisdiction and has made an interim order pending the determination of the application for review. The preliminary ruling did no more than assert the
determination of the review on the merits and the interim order, if validly made, was "for the purpose of securing the effectiveness of" that hearing and determination (s.41(2)). It may be that further information placed before the Tribunal as the hearing proceeded may have led the Tribunal to alter its views on the question of jurisdiction or to revoke or vary the interim order which it had made. In these circumstances, the question which arises under the first issue is whether the grant to the Court of jurisdiction to hear and determine an appeal on a question of law "from any decision of the Tribunal" is restricted to an appeal from a decision of the Tribunal which effectively disposes of an application for review or whether the "decision" in respect of which such an appeal may be entertained by the Court has a wider meaning such as, for example; to include any decision or ruling expressed or made by the Tribunal as a preliminary to, or in the actual course of, the hearing of the proceeding before it. The answer to that question depends upon the meaning to be given to the word "decision" in s.44(1) of the
"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",
meaning. In some contexts, it can refer to the mental
process of making up one's mind. In the context of judicial
or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word "decision" may be apt to anclude the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word "decision" has the last-mentioned limited meaning, 1t can refer to any such determination whether final or
intermediate (See, e.g., Registrar of Workers' Compensation
Commission v. F.A.I. Insurances Limited [1977] 1 N.S.W.L.R.
422 at p. 448) or be limited to referring only to a determination which effectively disposes of€ the matter in
hand (see, e.g., Winter & Anor. v. Winter [1933] N.Z.L.R. 289
at p. 295; Penniel v. Driffill {1980] W.A.R. 31 at p. 32).
((1949) 79 C.L.R. 497), their Lordships of the Privy Council made some comments as to the meaning of the word "decision" in the context of s.74 of the Constitution which refers to an "appeal ... from a decision of the High Court". They said
"*"Decision" 1S an apt compendious word to cover "judgments, decrees, orders and sentences", an expression that occurs in s.73. It was used in the comparable context of the Judicial Committee Acts of 1833 and 1943 as a general term to cover "determination, sentence, rule or order" and
"order, sentence or decree". Further, though it is not necessarily a word of art, there is high authority for saying that even without such a context the "natural, obvious and prima-facie meaning of the word 'decision' is decision of the suit by the Court": see RAJAH TAFFADDUQ RAFU KHAN v. MANIK CHAND (1902) L.R. 30 Ind. App. 35
where the question was whether in the Indian Civil Procedure Code "decision" meant the formal expression of an adjudication in a suit or the statement given by the Judge of the grounds of a decree or order; and Lord Davey, delivering the opinion of this Board, used the words that have been cited above". Whether "decision" in s.44(1) should be given the limited "natural and primary" meaning (1bid, at p. 626) to which their Lordships refer, namely, the decision or determination of the overall application for review, must be determined by
reference to the context which the sub-section and the Act
Section 3(3) of the Act defines a reference in the Act to a "decision" as including a reference to a litany of activities of both a positive and negative nature culminating in "doing or refusing to do any other act or thing". The provisions of s.3(3) would seem more apposite to define a reference to the substantive "decision" of the original decision maker than to confine the scope of a reference to a "decision" of the Tribunal upon review. Subject to that qualification, the specific activities mentioned in the definition in s.3(3), which are in the nature of effective action rather than intermediate "decision" on the path to
such action, provide some indication that a reference to
"d€ecision" in the Act 18s, prima facie, a reference to the ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination. The indication which s.3(3) provides to that effect is,
word "any" in the phrase "from any decision of the Tribunal" un s.44(1). The use of "any", in preference to "the" or "ats" which qualify the word in preceding sections (s.43,
s.43A), tends to indicate that the word "decision" 1s used in a wide sense in s.44(1). On the other hand, the use of "any" can be explained both by the fact that the sub-section follows the specification in 34,43(1) of a range of alternative ultimate decisions which may be given by the Tribunal and by the fact that it 1s possible that one proceeding before the Tribunal could involve the review of a number of connected decisions by the original decision maker with the consequence that the proceeding before the Tribunal called for a number of ultimate decisions each of which effectively disposed of a separate part of the proceedings
(see, for example, Sullivan v. Department of Transport (1978)
20 A.L.R. 323 where the grant of two distinct licences was in
1ssue). In the result, any indication provided by the
qualifying word "any" as to the scope of the word "decision"
Nor is any compelling guidance to be obtained from the use of the word "decision", in relation to the Tribunal, un other sections of the Act. In the two sections immediately preceding s.44(1) (s.43 and s.43A), the word is clearly used in the -narrow sense of the operative or ultimate decision: in the latter of the two sections (s.43A), the word is so used in a reference to "an appeal from the decision of the Tribunal". The guidance provided by this use of the word "decision" in the two sections immediately preceding s.44 is somewhat diminished, however, by the fact that the word 1s used in a wider sense in s.42 where reference is made to "the decision" on "any question" of law
Ultimately, one must turn for assistance to the substantive content of the provisions of s.44 in the context
As hasS been mentioned, the Tribunal is not subjected to the general supervisory jurisdiction of this Court. It is subject to the prerogative writs which may, in an appropriate case, be directed to it by the High Court. Otherwise, the general scheme of the Act appears to be that the Tribunal will proceed to hear an application for review until completion of the hearing and, upon such completion,
render its decision in the manner prescribed by s.43 of the
Act and comply with the requirements of that section as to service of a "copy of its decision". Any question of law arising in the course of the proceedings is to be determined by the Tribunal in the manner prescribed in s.42 unless the Tribunal itself thinks it appropriate to seek the opinion of this Court during the currency of the proceedings when, either on 1tS own motion or at the request of a party to the proceedings, it may refer a question of law for the decision
Section 46 of the Act plainly indicates that an appeal to the Federal Court would, if it could be brought at any intermediate stage, involve disruption of the proceedings before the Tribunal in that, upon the institution of an appeal in accordance with s.44; the Tribunal 1s obliged to cause to be sent to the Court "all documents that were before the Tribunal in connexion with the proceeding to which the appeal or reference relates". It would seem unlikely that 1t was the legislative intent that any party to a proceeding should be entitled to disrupt its orderly hearing before the Tribunal by instituting an appeal, as of right, from any of the various "decisions", involving a question of law, which the Tribunal might find itself called upon to make in the course of dealing with the proceeding before it and which might ultimately prove irrelevant to the final operative decision. In the context of the clear right to appeal, on a
question of law, from the ultimate decision of the Tribunal
and of the intermediate procedure of stating a question of law for the decision of this Court, it would seem more likely that it was the legislative intent to limit judicial intervention during the actual hearing before the Tribunal to the supervisory, and, to some extent, discretionary,
The provisions of s.44 themselves tend to indicate that the decision of the Tribunal from which an appeal may be brought, as of right, to this Court is the final decision which disposes of the proceedings and which will have been reduced to writing and served upon the parties in accordance with s.43 of the Act. Sub-section 2A, which was inserted in s.44 by the amending Act of 1977, provides that an appeal to the Tribunal shall ordinarity-be instituted not later than the twenty eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person desiring to appeal. One would neither anticipate that an intermediate decision, which was reached in the course of the conduct of proceedings, would be reduced to writing nor expect that separate times for appeal would run in respect of each such intermediate decision on the path to ultimate or operative. decision. In addition, s.44(2) seems to assume that special provision was necessary to provide an appeal from a "decision" of the Tribunal that the interest of an applicant for review or an applicant to be made a party are not affected by the decision which it 1s
It should be stressed that the issue 1s not whether, after the Tribunal has determined the application for review, an appeal lies to this Court on every ruling or adjudication upon a question of law which proves to be part of the structure of the ultimate decision. The issue 1s whether such an appeal lies, instanter, from a ruling or adjudication upon the road to ultimate decision regardless of whether that ruling or adjudication may prove irrelevant to the ultimate decision or whether further evidence, increased understanding or, indeed, plain reconsideration may lead to 1ts reversal by the Tribunal itself before the ultimate decision is delivered. It may be suggested that the proliferation of opportunities to appeal should be seen as a safeguard of the rights of the sndividual subject. Such a suggestion would, in my view, be misconceived. Indeed, if the view propounded on behalf of the Director-General in the present matter, namely, that an appeal lies as of right from every intermediate decision on a question of law in the course of the hearing by the Tribunal of an application to review, be accepted, the result would be that the individual subject who challenged a decision of the Executive before the Tribunal would not only have no assurance of an orderly and reasonably prompt resolution of his or her case by the Tribunal but that, in confronting the Executive even if only to claim a widow's mite, he or she would be stepping into a
maze in which the financial ruin of a myriad of possible
appeals awaited at the whim of those who fund their enthusiasm for the fray not from their own purses but from the long purse of Government (cf. per Jordan C.J., In re the
Will of Gilbert, (1946) 46 S.R. (N.S.W.) 318 at p. 323).
The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s.44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s.43 of the Act. The qualifications referred to are an appeal pursnant to s.44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent
As has been said, the ruling that the Tribunal had jurisdiction to hear the application for review simply asserted the Tribunal's jurisdiction to continue to hear the application on the merits. That ruling did not effectively dispose of the proceedings or any independent part thereof. It was not, 1n my view, a decision from which an appeal lay,
on a question of law, to this Court pursuant to the
provisions of s.44(1) of the Act. In the event that the Tribunal adheres, in the light of all the evidence, to its present ruling that jurisdiction exists and ultimately decides to set aside or vary the decision of the Director-General, an appeal will lie from that ultimate decision of the Tribunal on any question of law involved in the ruling for the reason that the assertion as to jurisdiction will constitute part of the structure of such an ultimate decision. The position would, of course, have been different if the ruling had gone the other way and the Trabunal had held that it had no jurisdiction to deal with the matter. In that event the decision of the Tribunal would
have effectively disposed of the proceeding before it.
It was suggested in argument that to give to the word "decision" in 8s.44(1) of the Act the limited meaning which I would give it would be contrary to the decisions of
this Court in Deputy Commissioner of Patents v. Board of
Control of Michigan Technological University (1980) 28 A.L.R.
551 and Collector of Customs (NSW) v. Brian Lawler Automotive
Pty. Limited (1979) 24 A.L.R. 307. Examination of those cases discloses, however, that the question of the
jurisdiction of this Court was not raised in Deputy
Commissioner of Patents v. Board of Control of Michigan
Technological University (supra) and that the decision of the
Tribunal from which an appeal was brought in Collector of
Customs (NSW) v. Brian Lawler Automotive Pty. Limited (supra)
was, in fact, a final determination which effectively
Nor, in my view, was the interim order made by the Tribunal suspending the operation of the decision of the Director-General, a decision of the Tribunal from which an appeal properly lay to this Court pursuant to s.44 of the Act. The fact that such an order has independent operative effect does not, in the circumstances, warrant further qualification of the general rule that an appeal under s.44(1) only lies from the determination effectively disposing of the proceeding before the Tribunal. Indeed, the Power to make such an interim order pursuant to s.41(2) of the Act is, in terms, for the purpose of securing the effectiveness of the hearing and determination by the Tribunal of the application for review and could hardly have been intended to provide the occasion whereby the hearing and determination of an application for review could be frustrated and delayed by preliminary appeals brought, as a Matter of right, upon any question of law that might happen
In the result, the respondent should succeed on the first issue raised by the appeal and the appeal from the ruling and the interim order made by the President of the Tribunal should be dismissed as incompetent. It is unnecessary and, in my view, undeSirable that the Court express any view on the second and third issues which have been debated before us, namely, whether it has been shown
that, as a matter of law, that ruling or that interim order
There remains for consideration the question whether the Chief Judge of this Court had jurisdiction to make an interim order that the respondent be paid a widow's pension pending the hearing of the appeal to this Court. It is not disputed that an appeal from that order of the Chief Judge lies to this Court pursuant to the provisions of s.24
Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both af the following:
(a) the decision of the Tribunal or a part of that decision; and
(b) the decision to which the proceeding before the Tribunal related or a part of that decision,
the purpose of securing the effectiveness of the hearing and determination of the appeal".
The Federal Court of Australia 1s a superior Court of record. The fact that a purported appeal is incompetent and that the Court has no jurisdiction to deal with the substantive merits of the appeal does not mean that the Court has no jurisdiction whatever in relation to the proceedings. On the contrary, the Court 1S plainly empowered to dismiss
the proceedings for want of jurisdiction and an order to that
effect is an effective order in the proceedings. By the
express provisions of s.43 of the Federal Court of Australia
Act, 1976, the Court has jurisdiction to award costs "in" the proceedings before it notwithstanding the fact that the proceedings must properly be "dismissed for want of jurisdiction". If the provisions of s.44A(2) of the Act conferred power to make an interim order in any case "where an appeal is instituted in the Federal Court of Australia", they would, in my view, confer jurisdiction to make such an order regardless of whether the appeal to the Court was ultimately found to be incompetent. Examination of the terms of the grant of jurisdiction contained in s.44A(2) discloses,
however, that the grant of jurisdiction is more narrowly
The condition precedent to the existence of the power to make an interim order pursuant to s.44A(2) of the Act is that "an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal". The word "decision" in the context of s.44A(2) of the Act should, in my view, be given the restricted meaning which I have found to be appropriate to it in the context of s.44 of the Act. I have already expressed the conclusion that neither the ruling of the learned President as to jurisdiction nor the interim order which he made was a "decision" from which an appeal lay Pursuant to s.44 of the Act. It follows that the appeal to
this Court was not, for the purposes of s.44A(2) of the Act,
"an appeal ... from a decision of the Tribunal" and that the condition precedent to the existence of the jurisdiction granted by s.44A(2) was not fulfilled. The order made by the Chief Judge was not, in the circumstances, warranted by the provisions of s.44A of the Act. The appeal from that order
should be upheld and the order should be set aside.
In the result, I would dismiss the appeal from the ruling and interim order of the learned President of the Tribunal. I would order that the applicant Director-General pay the respondent's costs of the appeal from that ruling and interim order of the learned President. I would uphold the appeal from the interim order made by the Chief Judge and
The particular ground upon which I would uphold the submission that the interim order made by the Chief Judge was not warranted by the provisions of s.44A(2) of the Act was not advanced on behalf of the appellant Director-General either before this Court or, presumably, before the Chief Judge. The reason for that was that that ground involved a finding that the Director-General's primary appeal was incompetent. In effect, the conclusion which I have reached as regards that interim order involves upholding a general submission advanced by the Director-General on _ the
supplementary appeal on a ground advanced against him on the
primary question of jurisdiction involved in the main appeal. In these circumstances, it appears to me that the appropriate course is to make no order as to the costs of the supplementary appeal from the interim order made by the Chief
I certify thal this ard the preceding pears are a true copy of the reasons fur Judgment herein of
FISHER J.: In this matter I have had the advantage of reading the reasons for judgment of Deane J., and I agree with those reasons
and his conclusion that an appeal from the preliminary ruling of
the President that the Tribunal possesses jurisdiction 1s incompetent. Such conclusion denying a right of appeal to this court on the
preliminary ruling at this stage of the proceedings before th
Tribunal conforms, in my opinion, rol only with the schom of the
Administrative Appeals Tribunal Act. 1°75 ("Lhe Act") ancl 1ts true
construction but also with the restraint properly accept! by courts when appeals from administrative tribunals aire limited to exrors
of law. In such circunstances 1t as qinerally considered tnappropriat
for courts to intervene until the statulory process 15 completed,
Section 43A(1)(a) of the Act lends some support to this view.
Undex the Act the statutory process 15 complete when the Tribunal either decides to refuse to review the decision of the Administrator or makes a decision in writing affirming, varying or setting aside the decision (s.43(1)). In my opinisn, it is such a decision as aforementioned which the legislature has in mind in conferring on this court by s.44(1) a right to hear an appeal on a question of law "from any decision of the ''rabunal in
If a question of law arises in the proceedings before the Tribunal which the parties or a party seo as fundamental to the determination of the review, the procedure in the Act (4.+5(1)) for reference of that qucstion of law by the Tribunal to this court 1S available, In this way the jivisJjicttonal issur in this matter could,if the Tribunal considered 1t appropriate, have been determined as a preliminary issue "so that many hours are not spent preparing a case that might not be acccpted by the Tribunal".
For tho same reasons I agree with Deane J. that the appeal against the interim order made by the Vribunal 1s incorpetent and
In respect of the anterim orde: taac by the Chicé Ji, kyo of thas court in pursuance wf s.44A(2) of the Ack somewhat aaifur nt considerations apply. There was con tim heatcng befer> the Chief
Judge a purported appeal under s.de(t) 6 ' une Act, to wheecbh nmeather
party either took exception or Fursen amy "ye Slion as to als competence. Admittedly the parties could net confer Jerisdictica on the court by consent, but in the circumstances the Chief Judge was justified in proceeding to make wich interim order as he consideied "appropriate for the purpose of securing the et Pective- ness of the hearing and determinatizn vt the appeal". If, as 1s my opinion, no appeal had been validly instituted becausc the Trabunal had not made an appealable decision, 1t follows that the interim order must go once this court comes to a decision denying the
The appeal fromthe interim order of the Chief Judge must bo
I agree with the orders in respect of the costs of the appeals
I certify that this and the a precedina pages are a true copy of the Reasons fo" Judgment of Mr. Justice Fisher