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.