Douglass v Administrative Appeals Tribunal

The application for an extension of time 9 The applicant requires an extension of time in circumstances where he contends that he initially sought to review the AAT's decision by an online application before the 28 days expired. He said that the online application required him to pay a filing fee but that he was unable to do so because he is impecunious. A successful application for a waiver of the filing fee was made to the Federal Court Registrar, however, the delay in determining that application meant that the 28 day period had expired. 10 The applicant relied on an affidavit by his solicitor, John Findley in explaining the delay in filing a notice of appeal. Mr Findley deposed that the applicant is impecunious and has relocated to rural Colombia to live with his wife and to lead an inexpensive life. He deposed to the difficulties of communicating with the applicant by email because of international time differences. Mr Findley also explained some logistical problems with the waiver of the filing fee application. He said that he was advised by email on 16 June 2017 that a fee waiver had been granted. 11 The applicant contends that the AAT's decision is wrong in several respects. In particular, he challenges the AAT's conclusion that it was not satisfied that he had proven that the documents exist and are relevant. The applicant contends that the AAT's reliance on Kennedy is in error. In particular, he contends that Kennedy is distinguishable because it was directed to whether there was any relevance in an identified document as opposed to the question here, which is whether the documents sought by the applicant can be identified and how they must be identified. In addition, he says that the applicant in Kennedy was "fishing" and that was not the case here. He submits that there are reasonable grounds in his case to expect that the material sought does exist and that a custom or practice exists, which does not involve fishing on his part. 12 The applicant submits that it was wrong of the AAT to consider that it did not have power under s 37(2) of the AAT Act and s 87.18(4) of the ITA Act to make an order seeking production of documents of a particular character if it could not name them or name the class into which they fell. This was unreasonable, the applicant submitted, because it requires knowledge of the internal filing and office systems of the Commissioner, which ought to be irrelevant to the operation of these legislative provisions. 13 As noted above, the Commissioner submitted that a decision to decline to require production of documents under s 37(2) of the AAT Act is not a "final" decision but is an interlocutory decision (citing inter alia Director General of Society Services v Chaney [1980] FCA 108; 47 FLR 80 (Chaney) at 102-104 per Deane J, with whom Fisher J agreed). The Commissioner also relied upon Perram J's decision in Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18 at [18], where his Honour held that a decision of the AAT declining to issue a summons to a witness was an interlocutory decision which was not amenable to an appeal under s 44. The Commissioner submitted that Kennedy was distinguishable because it related to proceedings under s 39B of the Judiciary Act 1903 (Cth) and not under the AAT Act. 14 In addition, the Commissioner submitted that the proposed appeal lacks any merit in any event, given the significance of the relevant terms of s 37(2) which emphasise that an order made under that provision relates to "particular other documents or that other documents included in a particular class of documents may be relevant to the review of the decision by the Tribunal…" (emphasis added). Accordingly, the Commissioner submitted that the extension of time would be futile. 15 As to the Commissioner's primary contention that the entire proposed appeal is misconceived because an appeal is available under s 44(1) of the AAT Act only in respect of a "final" decision or determination, the applicant submitted that the decision here was a final decision. He submitted it was "a decision on a legal question, the capacity of the Tribunal to order the Respondent to provide documents, in respect of which the Applicant claims an error was made". He submitted that the decision of the AAT not to apply s 37(2) was a decision of such finality as to fit within s 44.