Gadzikwa v Comcare

1. The notice of objection to the competency of the appeal filed on 11 May 2020 be upheld.
2. The appeal filed on 17 April 2020 be dismissed.
3. The respondent bear its own costs of and incidental to the case management hearing of 4 June 2020.
4. Subject to Order 3 of these Orders, the applicant pay the costs of the respondent of and incidental to the appeal, to be taxed if not otherwise agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

introduction 1 Before the Court is a notice of objection to the competency of an appeal (in the original jurisdiction of the Federal Court of Australia) from an interlocutory decision of the Administrative Appeals Tribunal (Tribunal) given on 18 March 2020. In that decision the Tribunal refused to issue summonses for the production of certain documents, and to require four identified persons attend the substantive hearing of Mr Gadzikwa's application in the Tribunal, as requested by Mr Gadzikwa during a directions hearing in the Tribunal on 18 March 2020. 2 At Mr Gadzikwa's request, the Tribunal published written reasons for its decision of 18 March 2020 on 20 March 2020

background 3 The interlocutory decision of the Tribunal was delivered in the context of substantive proceedings in file 2018/2099 in the General Division of the Tribunal, Tawanda Gadzikwa v Comcare. In these proceedings Mr Gadzikwa had made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for a claimed injury. On 4 August 2017 Comcare denied liability for this claim under s 14 of the SRC Act. On multiple occasions Mr Gadzikwa sought reconsideration of the 4 August 2017 determination by Comcare after the expiry of the 30-day time limit imposed by s 62(3) of the SRC Act, and despite being granted extensions of time by Comcare, subsequently withdrew those requests for reconsideration. On 6 February 2018 Mr Gadzikwa again requested that Comcare allow him to make a request for reconsideration, however on 14 February 2018 a delegate of Comcare refused Mr Gadzikwa's request on the basis that the delegate considered that Mr Gadzikwa's reasons for extension of time had not been made out or were insufficient to warrant a further extension of time. 4 I understand that the decision of the delegate of 14 February 2018 was the reviewable decision before the Tribunal (Reviewable Decision). 5 Insofar as I can determine from the material before me, the proceedings in the Tribunal in file 2018/2099 Tawanda Gadzikwa v Comcare have not advanced beyond the interlocutory decision of the Tribunal on 18 March 2020 the subject of this appeal. 6 In his notice of appeal filed on 17 April 2020 in this Court, Mr Gadzikwa seeks orders for the issue of the summonses he sought in his application to the Tribunal. The grounds on which Mr Gadzikwa relies are lengthy, and include excerpts from the transcript and the Tribunal decision as well as other authorities. 7 In summary, Mr Gadzikwa's grounds are as follows: He was denied procedural fairness because the Tribunal refused to issue summonses after only hearing argument in relation to a single summons; The Tribunal erred in finding that the issue of summonses in Tribunal matters was "highly unusual" and that there would need to be very special reasons why that course would be taken; The Tribunal correctly stated that it must be satisfied that the evidence expected to arise from the documents sought or the person sought to be called would assist in the review of the decision and determination of the principal application, however incorrectly applied that test; The Tribunal erred in finding that there would be nothing to be gained from oral evidence being given by witness Dr Chris Grant; The Tribunal erred in finding that Comcare opposed the issuing of the summonses Mr Gadzikwa sought; and The Tribunal erred in finding that Mr Gadzikwa's application before it was a "typical extension of time" matter. 8 In its notice of objection to competency filed on 11 May 2020, Comcare relied on the following ground of objection: 1. The decision of the Administrative Appeals Tribunal of 18 March 2020 from which the applicant seeks to appeal to this Court is not a "decision" for the purposes of s44 of the Administrative Appeals Tribunal Act 1975 and therefore not amenable to an appeal under s 44 of that Act.

Submissions of the parties 9 On 2 July 2020 Comcare filed written submissions in support of its notice of objection to competency. At the hearing, Comcare was represented by Ms Lucas of Counsel. Mr Gadzikwa appeared at the hearing in person, and while he did not formally file written submissions, his affidavit filed on 30 July 2020 included written submissions responding to the written submissions of Comcare. 10 In its submissions, Comcare relied primarily on ss 43 and 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) which materially provide as follows: 43 Tribunal's decision on review … Tribunal's decision on review (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 (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. … 44 Appeal on question of law (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. Note 1: This Part does not apply to certain migration proceedings (see section 43C). … 11 In summary, Comcare submitted that the appeal was incompetent and should be dismissed for the following reasons: Section 44(1) provides for appeals to the Federal Court of Australia from "decisions" of the Tribunal; Director General of Social Services v Chaney (1980) 47 FLR 80 (Chaney) is authority for the proposition that an appeal under s 44(1) of the Act ordinarily lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review in accordance with the provisions of s 43 of the Act. The principle in Chaney 47 FLR 80 is supported by subsequent decisions of this Court in Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18 (Yao) and Douglass v Administrative Appeals Tribunal [2017] FCA 1105 (Douglass). The decision of the Tribunal not to issue Mr Gadzikwa's request for summonses was an intermediate decision which was made by the Tribunal in the course of the substantive proceedings relating to the Reviewable Decision. It was not a decision subject to review under s 44 of the Act. Mr Gadzikwa has not sought judicial review of the decision of the Tribunal, as occurred in Yao [2010] FCA 18, however even if he had applied to reformulate his application in such manner the Court should refuse to permit such reformulation at this stage, particularly in the absence of the Tribunal as a party. 12 Comcare also sought costs against Mr Gadzikwa. 13 Mr Gadzikwa submitted, in summary, as follows: The Tribunal is obliged pursuant to s 39 of the Act to give every party a reasonable opportunity to present his or her case; Whether or not an interlocutory decision is a "decision" for the purposes of s 44 is highly contested; Practice and procedure may be unnecessarily fragmented and delayed as a result of flawed appeals against interlocutory decisions of the tribunal; The decision of the Tribunal to refuse the issue of summonses was infected by errors; The decision of the High Court of Australia in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 (Adam P Brown) is authority for the proposition that interlocutory decisions can be appealed; A substantial injustice would result if Mr Gadzikwa were refused the opportunity to appeal, supposing the Tribunal's decision were wrong; The Tribunal mischaracterised reasons for which Mr Gadzikwa sought the issue of summonses; The decision of the Tribunal to refuse the issue of summonses was a decision of such finality as to fit within s 44 of the Act, as explained by Northrop J in Chaney 47 FLR 80; The decision of the Tribunal was given in writing, along with an indication that there could be a deadline to appeal, which was inconsistent with an absence of finality. In Chaney 47 FLR 80 Deane J noted the unlikelihood of an intermediate decision of the Tribunal being reduced to writing; In Mladenov v Secretary, Department of Social Services [2015] FCA 1472 (Mladenov) North J treated a ruling in respect of the production of documents is a decision for the purpose of s 44(1) of the AAT Act; The Tribunal ignored Mr Gadzikwa's written requests for assistance in seeking the issue of subpoenas by the Tribunal; and By letter dated 20 March 2020 the Tribunal wrote to Mr Gadzikwa that he "might be able to appeal" the decision of the Tribunal of that date. 14 Mr Gadzikwa did not apply to reformulate his application in terms of judicial review.

Consideration 15 The meaning of "decision" for the purposes of s 44 (1) of the Act appears to be settled. Recently in MDXJ v Secretary, Department of Social Services [2019] FCA 2163 Besanko J explained relevant principles as follows: 16. A leading authority on the meaning of decision in s 44(1) of the AAT Act is Director-General of Social Services v Chaney [1980] FCA 87; (1980) 31 ALR 571 (Chaney). Justice Deane (with whom Fisher J agreed in concurring remarks at 597) said (at 593): 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 pursuant 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 "decisions" may properly be given. 17. In Commissioner of Taxation v Cancer and Bowel Research Association Inc [2013] FCAFC 140; (2013) 305 ALR 534 (Cancer and Bowel Research Association), the Full Court of this Court said (at [8]): An appeal under s 44(1) requires that the disposition by the Tribunal be "the effective decision or determination of the application for review". In the usual case an effective decision by the Tribunal will be reflected in the orders made under s 43, but, as was explained by Deane J in Chaney, a decision may come within s 44 where it is (a) that the interests of a person are not affected by a particular decision (see AAT Act s 44(2)) and (b) where it is of a part of a proceeding which can properly be divided into separate parts. In such cases the disposition by the Tribunal can be seen as deciding finally some aspect of a party's entitlements and, therefore, as having the effect of finally deciding or determining an aspect of a proceeding. Its quality as a decision within the meaning of s 44 is that it ends the whole or a properly separable part of the matter before the Tribunal. 18. In Kishore v Tax Practitioners Board [2016] FCA 1328; (2016) 244 FCR 320 (Kishore), Robertson J considered an objection to the competency of an appeal from a decision of the Tribunal in which the Tribunal answered "yes" to the "threshold question" of whether certain conduct of the applicant was capable of contravening s 30-10(1) of the Tax Agent Services Act 2009 (Cth) and listed the matter for directions "at the earliest opportunity". His Honour concluded (at [20]): In the present case, it is plain that the Tribunal has not yet completed its review of the decision of the Tax Practitioners Board to terminate the appellant's registration as a tax agent: see [17] and [18] above. The Tribunal has not affirmed, varied or set aside the decision under review: see s 43 of the Administrative Appeals Tribunal Act. Applying the decision of the Full Court in Chaney, an appeal under s 44 of the Administrative Appeals Tribunal Act is incompetent. 19. His Honour also said (at [19]): In my opinion, the point of the decision in Chaney is to avoid judicial review by way of an appeal to this Court instanter and as of right from non-determinative steps, determinations or decisions of the Tribunal. This reflects the undesirability of fragmenting proceedings in the Tribunal by the making of applications to the Federal Court seeking to challenge intermediate directions, determinations or decisions of the Tribunal: see the judgment of the Full Court in Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877; 64 ALD 325 at [26]- [28] 20. In Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877; (2000) 64 ALD 325, the applicant sought judicial review of directions contained in an interlocutory decision made by the Tribunal which had the effect of confining the role which the applicant would have as a party at a future hearing before the Tribunal. Although the application was not brought as an appeal from the Tribunal's decision under s 44 of the AAT Act, the following statement of von Doussa, O'Loughlin and Mansfield JJ is relevant (at [26] and [28]): 26. In the context of curial proceedings, the courts have been at pains to emphasise the undesirability of allowing appeals against interlocutory decisions involving matters of practice and procedure to fragment and delay the trial of proceedings. The most frequently cited authority for this proposition comes from the joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 176-7; [1981] HCA 39; 35 ALR 625 at 628-9. Their Honours repeated with approval the following statement of Sir Frederick Jordan in In re the Will of F B Gilbert (dec'd) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323: ... I am of the opinion that ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a Court of Appeal. Their Honours added that it is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration. At this stage, as we have just observed, it is not possible to know if there is any real issue in the GIC's complaint about the directions. Until that is possible the GIC is unable to demonstrate that any injustice could flow from the directions. 16 In summary: Not all decisions of the Tribunal are decisions within the meaning of s 44(1) of the Act; As a general proposition, 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 in the Tribunal; Qualifications to the general proposition concerning the meaning of "effective decision" were explained by Deane J in Chaney 47 FLR 80, namely either (a) an appeal pursuant to s 44(2) of the Act from a decision of the Tribunal that the interests of a person are not affected by the decision, or (b) where the proceeding before the Tribunal could properly be divided into two or more separate parts, in respect of which independent "decisions" could properly be given. Interlocutory decisions of the Tribunal are generally not "decisions" which can be appealed under s 44(1) of the Act. (See discussion: Administrative Appeals Tribunal Practice: Federal (CCH, subscription service) at [10,663-14] (update 61-3-20).) 17 Against the background of these principles, and the contentions of the parties, I find as follows. 18 First, it is clear that the decision n of the Tribunal of 18 March 2020 refusing Mr Gadzikwa's application to issue summonses was an interlocutory decision of the Tribunal. It was not a decision of the Tribunal which was the effective decision or determination of the application for review before the Tribunal, as explained by the Full Court in Chaney 47 FLR 80. Although Mr Gadzikwa took issue with alleged injustice on the part of the Tribunal in its refusal to issue the summonses, he did not suggest that this refusal effectively determined his application to review the Reviewable Decision before the Tribunal. Indeed, in the circumstances described by the Tribunal, namely where approximately 850 pages of material in total had been filed by the parties, it is difficult to see how the absence of further documents or witnesses appearing in Court could have effectively determined the proceedings. 19 Second, and further to this point, there is no suggestion that the qualifications to the general principle identified by the Full Court in Chaney 47 FLR 80 were applicable in this case. In particular, there is no suggestion that the proceeding before the Tribunal was divisible into two or more separate parts in respect of which independent "decisions" could properly be given, or were given, by the Tribunal in the decision of 18 March 2020. 20 Third, to the extent that Mr Gadzikwa claimed "injustice" on the part of the Tribunal in refusing to issue the summonses, the structure of the Act requires that any complaint Mr Gadzikwa sought to pursue in respect of that issue by way of appeal could only be after the conclusion of the substantive proceedings in the Tribunal. 21 Fourth, although Mr Gadzikwa relied on the High Court decision of Adam P Brown 148 CLR 170, I do not accept his submission that the case is authority for the proposition that the present appeal is competent. The appeal in Adam P Brown 148 CLR 170 concerned an interlocutory decision of the Federal Court of Australia, the subject of appeal to the Full Court and then the High Court. As the majority explained in Adam P Brown 148 CLR 170: 9. Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error principle, but the decision appealed from must work a substantial injustice to one of the parties… 10. … Considerable argument was directed to the question whether a court has power, otherwise than in the case of mistake operative at the time of giving it to release a party from an undertaking, at least in the absence of the consent of the other party. But in our opinion a court undoubtedly has such a power. Just as an interlocutory injunction continues "until further order", so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust (Emphasis added.) 22 The present case is not an example of circumstances where the Court is tasked with exercising control over its interlocutory orders. Rather, the appeal before this Court is an application, in the original jurisdiction of the Court, subject to the statutory framework put in place by the Act. The decision of the Tribunal the subject of the present proceedings was an administrative decision. This Court has found repeatedly that the Act confines appeals against decisions of the Tribunal to those which effectively determine the proceedings, and indeed fall within the scope of s 43(1) of the Act. 23 In my view the principles set out in Adam P Brown 148 CLR 170 are not applicable to the present appeal. 24 Fifth, there is ample authority that a decision of the Tribunal refusing the issue of summonses is not a "decision" which can be the subject of an appeal in accordance with s 44(1) of the Act - and in particular I note the decisions in Yao [2010] FCA 18, Phillips v Inspector General in Bankruptcy [2011] FCA 612 and Douglass [2017] FCA 1105. 25 Sixth, Mr Gadzikwa contended that Deane J in Chaney 47 FLR 80 had not definitively found that only effective decisions of the Tribunal could be the subject of appeal pursuant to s 44(1) of the Act, because the word "decision" will only "ordinarily refer to an announced or published ruling or adjudication". However, at 103, Deane J observed: 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 pursuant 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 "decisions" may properly be given. 26 The uncertainty suggested by Mr Gadzikwa was clearly explainable as relating to recognised qualifications to the meaning of "decision" for the purposes of s 44(1), as set out in this observation by Deane J. 27 Seventh, the fact that the Tribunal committed its reasons to writing, as requested by Mr Gadzikwa, does not mean that its decision is an effectively final decision, and appellable pursuant to s 44(1) of the Act, notwithstanding that s 43(1) of the Act contemplates that an appellable decision will be "in writing". Mr Gadzikwa directed my attention to the observation of Deane J in Chaney 47 FLR 80 at 102 that: …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. 28 However in my view, and contrary to the submission of Mr Gadzikwa, this observation was not a prescriptive statement indicating that a written decision by the Tribunal invariably meant that it was a final decision. 29 Eighth, to the extent that the decision in Mladenov [2015] FCA 1472 suggests that a refusal by the Tribunal to order the production of documents is a "decision" within the meaning of s 44(1) of the Act, I respectfully disagree with that proposition. Indeed, the comment at [60] of Mladenov [2015] FCA 1472 that "there is an open question whether a ruling in respect of the production of documents is a decision for the purpose of s 44(1)" of the Act cites as authority Yao [2010] FCA 18 at [29]. Paragraph [29] of Flick J's decision in Yao [2010] FCA 18 is as follows: 29. No "question of law" for the purposes of s 44 - and no legal error for the purposes of judicial review - is evident in the Tribunal's decision. The Tribunal, when refusing to issue the summonses in issue, was exercising a discretionary power. Whether another Tribunal member may have exercised the discretion in the same manner is not to the point. No legal error is discernible in the manner in which the Tribunal member in the present proceeding exercised the discretion he was called upon to exercise. 30 Plainly, this observation by Flick J does not support the proposition that a decision by the Tribunal to refuse to issue summonses is a "decision" which can be the subject of appeal to the Federal Court. 31 Ninth, although Mr Gadzikwa submits that the Tribunal has been unhelpful in failing to respond to his requests for assistance in seeking the issue of subpoenas, this criticism, even if true, is not an issue of relevance to the proceedings currently before this Court. 32 Finally, although Mr Gadzikwa claimed from the Bar Table that he had received a letter from the Tribunal dated 20 March 2020 indicating that he "might be able to appeal" from the Tribunal's decision of 18 March 2020, I consider this to be irrelevant to the issues currently before me. Not only is the letter not before the Court (nor, insofar as I can ascertain, made available to Comcare), but it binds neither the Court nor the Tribunal. Rather, I consider it likely that the wording of the letter would have been a standard response by the Tribunal to litigants who are dissatisfied by Tribunal decisions of all kinds. 33 In my view the appeal is incompetent, and should be dismissed.

Costs 34 Comcare has sought costs of and incidental to these proceedings. 35 Rule 33.30 of the Federal Court Rules provides: 33.30 Notice of objection to competency of appeal (1) A respondent who objects to the competency of an appeal must, within 14 days after being served with a notice of appeal, file a notice of objection to competency: (a) in accordance with Form 68; and (b) that, briefly but specifically, states the grounds of the objection. (2) The applicant carries the burden of establishing the competency of an appeal. (3) A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the appeal. (4) If a respondent has not filed a notice under subrule (1), and the appeal is dismissed by the Court as not competent, the respondent is not entitled to any costs of the appeal. (5) If the Court decides that an appeal is not competent, the appeal is dismissed. 36 Comcare submitted, in summary: Although its notice of objection to competency was filed 4 days late on 11 May 2020, Mr Gadzikwa was put on notice at that point that his appeal was incompetent by the filing of the notice; and Mr Gadzikwa has not suffered any prejudice from the late filing of the notice of objection to competency. 37 Mr Gadzikwa directed my attention to [8] of his affidavit of 30 July 2020 in which he excerpted a passage from a letter he wrote to Comcare on 11 May 2020 in the following terms: …you wish to have it both ways; technicalities when it suits you and seek they be ignored when they don't. we both know a grave injustice was committed by [the Tribunal] and he question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration in disputes over competency. 38 Mr Gadzikwa further submitted: Costs ought not be awarded; It is an open question whether or not interlocutory decisions are decisions for the purposes of s 44(1) of the Act; It is in the public interest to shed further light on that question, particularly where interlocutory decisions intersect with injustice; and Comcare did not file a notice of objection to competency within time prescribed by the Federal Court Rules. 39 Section 43(2) of the Federal Court of Australia Act 1976 (Cth) provides that, except as provided by any other Act, the award of costs is in the discretion of the Court or Judge. 40 Subject to one qualification, in my view costs ought to follow the event and Mr Gadzikwa be liable to pay the costs of Comcare of and incidental to these proceedings: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11. While the notice of objection to competency was filed out of time by Comcare: Mr Gadzikwa has identified no prejudice suffered from the late filing of the notice, referable to its timing of filing (as distinct from the inevitable consequences of a successful objection to the competency of his appeal). Contrary to Mr Gadzikwa's submissions, I do not consider it an open question whether interlocutory decisions are decisions for the purposes of s 44(1), and further I do not consider it in the public interest to "shed further light" on that question. This is because I am satisfied that, again contrary to Mr Gadzikwa's submissions, the issue he raises is settled in light of such authorities as Chaney 47 FLR 80. As time was extended by the Court to permit Comcare to file its notice of objection to competency out of time, the notice was validly filed for the purposes of r 33.30. I consider an order that costs ought follow the event an appropriate order for the purposes of s 43(2) of the Federal Court Act. 41 The qualification relates to the costs of and incidental to the case management hearing of 4 June 2020 when the Court ordered an extension of time for Comcare to file its notice of objection to competency. Costs of that hearing were reserved on 4 June 2020. In my view Comcare ought be liable to bear its own costs of and incidental to that case management hearing, in circumstances where it was required to make submissions concerning an order that an extension of time for the filing of the notice of objection to competency be made. I see no reason why Mr Gadzikwa should be liable for costs in respect of this matter. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.