Jacob v Secretary Department of Social Services

1. The respondent's notice of objection to competency filed on 18 February 2022 be withdrawn.
2. The appeal be allowed.
3. The decision of the Administrative Appeals Tribunal (Tribunal) made pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) and dated 6 January 2022 dismissing the applicant's application for review be set aside.
4. The matter be remitted for reconsideration in accordance with law by the Tribunal differently constituted. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

FEUTRILL J: 1 On 1 February 2022, the applicant (Mr Jacob) filed a notice of appeal from a decision of a member of the Administrative Appeals Tribunal by which Mr Jacob's proceedings in the Tribunal were dismissed under s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth). The notice of appeal was brought under s 44 of the AAT Act and r 33.12 of the Federal Court Rules 2011 (Cth). On 18 February 2022, the respondent (Secretary, Department of Social Services) filed a notice of objection to competency. 2 Subsequently, at a case management hearing on 30 March 2022, the Secretary indicated an intention to withdraw the objection to competency and to accept that the appeal should succeed on the ground that there had been a failure to afford Mr Jacob procedural fairness and an error of law on the part of the Tribunal. However, as of 30 March 2022, there was no agreement between Mr Jacob and the Secretary as to the form of the orders that should be made in the appeal. Accordingly, I made orders for directions for the purpose of placing materials before the Court identifying the factual and legal bases of the accepted error of law and the jurisdiction of the Court to determine the appeal and make orders in favour of Mr Jacob. 3 On 12 April 2022, the Secretary filed an affidavit of Mr Andrew Shinnick sworn 12 April 2022. On 3 May 2022, the Secretary filed written submissions. 4 On 26 July 2022, the matter came before me for final hearing. Mr Jacob did not appear, but before that hearing, on 23 June 2022, the parties filed a minute of consent orders in the following terms: 1. The respondent's notice of objection to competency filed on 18 February 2022 be withdrawn. 2. The appeal be allowed. 3. The decision of the Administrative Appeals Tribunal (Tribunal) made pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and dated 6 January 2022 dismissing the applicant's application for review be set aside. 4. The matter be remitted for reconsideration in accordance with law by the Tribunal differently constituted. 5 While it is not normally necessary for the Court to provide reasons for making orders by consent of the parties, for the reasons which follow, in this case, I consider that I should give brief reasons for making the orders to which the parties have agreed. What follows are those reasons. 6 In making a consent order a court exercises judicial power. An order disposing of proceedings by consent must be self-explanatory as must any order. It is not appropriate to make an order of uncertain content or the content of which is to be derived from materials which are not on the public record. In the exercise of its power the Court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so. It is important that the Court itself addresses and is satisfied of the basis upon which its order is to be made and in particular where the order sets aside the decision of an official decision-maker or a tribunal: Kovalev v Minister for Immigration & Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [9], [11], [13]. Moreover, as French J (as his Honour then was) observed in that case (at [13]): It is also a substantial discourtesy for a court to overturn the decision of an official decision-maker and a fortiori that of a statutory tribunal without consideration of the error that leads to the decision being overturned or communication of the terms of that error to the decision-maker or tribunal. If such a determination is to be set aside on the basis that it has failed to apply or has misapplied the law whether substantive or procedural, there may potentially be some precedential impact in other like cases. To permit the principle underlying the order to be formulated only by the parties in their submissions to the decision-maker or the Tribunal leaves the content of that principle in the hands of the parties. 7 When the matter came before me for final hearing, I indicated that there may be a question as to whether the Court has jurisdiction under s 44(1) of the AAT Act to review a 'decision' of the Tribunal to dismiss an application for review under s 42A(5) of that Act. There is long-standing authority to the effect that, subject to two qualifications not relevant to this matter, an appeal under s 44(1) of the AAT Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Normally, such a decision will be the final decision under s 43 of the AAT Act: Director-General of Social Services v Chaney [1980] FCA 87; (1980) 3 ALD 161 at 181; see also MDXJ v Secretary, Department of Social Services [2019] FCA 2163; (2019) 168 ALD 454 at [15]-[26]. However, there is little doubt that the Court has jurisdiction to set aside a decision of the Tribunal where there has been a failure to afford procedural fairness under s 39B of the Judiciary Act: Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574 at [5]-[9]; LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; (2012) 203 FCR 166 at [122], [137] and [146]. 8 Given the manifest jurisdiction of the Court under s 39B of the Judiciary Act, at my invitation at the hearing on 26 July 2022, the Secretary's counsel indicated that the Secretary had no objection to the Court, pursuant to the power in r 1.34 of the Rules, treating Mr Jacob's notice of appeal as an appeal under s 44(1) of the AAT Act, alternatively an application for judicial review under s 39B of the Judiciary Act. Nonetheless, upon reflection, I do not consider that it would be an appropriate exercise of the power under r 1.34 of the Rules to treat the notice of appeal alternatively as an application under s 39B because it is the Tribunal or the relevant member, not the Secretary, who is the applicable officer of the Commonwealth against whom a writ of mandamus or prohibition or an injunction may be sought under s 39B and neither the Tribunal nor the relevant member is a party to the proceedings and a signatory to the consent order. 9 I have decided to give reasons because I expressed the above reservation and, although the orders will be made by consent, the exercise of judicial power on the appeal will have a degree of effect as a precedent on the question of jurisdiction. Therefore, it is appropriate to state the reasons that I am satisfied that the Court has power and it is appropriate to make the requested orders. Also, the form of the consent order is not self-explanatory of the failure to afford procedural fairness and resulting error of law and, therefore, it is appropriate to give reasons identifying that error and ground upon which the appeal is to succeed. 10 Regarding the jurisdiction of the Court under s 44(1) of the AAT Act, Mr Jacob has sought to invoke that jurisdiction and the Secretary has accepted that the appeal is competent and that it should succeed on the ground referred to above. Further, a decision to dismiss an application for review under s 42A(5) constitutes the effective decision or determination of the application for review in the Tribunal even though it is not a 'final' decision on the merits of the application formulated in accordance with the provisions of s 43 of the AAT Act. Moreover, an appeal from a decision that has the practical effect of bringing a proceeding in the Tribunal to an end will not lead to fragmentation or disruption of the proceedings by appeals made instanter before the final determination of the proceedings in accordance with s 43 of the AAT Act. 11 Additionally, there are authorities in which an appeal under s 44(1) of the AAT Act from a dismissal of an application for review in the Tribunal under s 42A(5) has been entertained without any apparent objection to jurisdiction: e.g. Guse v Comcare [1997] FCA 961, upheld on appeal in Guse v Comcare (1997) 47 ALD 495; Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299; (2011) 213 FCR 345 and Charara v Commissioner of Taxation [2016] FCA 451; (2016) 160 ALD 57. These authorities are founded on the assumption or acceptance, albeit without consideration of the question, that the decision to dismiss without proceeding to a review in the Tribunal was a decision for the purposes of an appeal under s 44(1) of the AAT Act. Accordingly, I accept that the Court has jurisdiction under s 44(1) of the AAT Act to hear an appeal from a decision to dismiss an application for review in the Tribunal made under s 42A(5) of that Act. 12 As to the error of law of the Tribunal, as was observed in the Secretary's written submissions, there are some deficiencies in the notice of appeal, however, considering the available material as a whole these reveal an error of law. The error arises from the following summary of the facts taken from the Secretary's submissions which I accept. (1) On 17 February 2020, Services Australia made a decision to cancel Mr Jacob's newstart allowance from 18 November 2019. (2) On 3 June 2020, an authorised review officer affirmed the decision to cancel Mr Jacob's newstart allowance. (3) On 11 September 2020, the Social Services & Child Support Division of the Tribunal affirmed the decision of the authorised review officer. (4) On 23 September 2020, Mr Jacob applied to the General Division of the Tribunal for review of the decision of the Social Services & Child Support Division. The matter first came before the Tribunal for hearing on 16 August 2021. The hearing was adjourned and directions were made for the parties to file further submissions in writing. On 24 August 2021, Mr Jacob emailed the Tribunal a list of documents upon which he intended to rely along with a bundle of evidence. Responsive submissions were filed by the Secretary on 30 August 2021. (5) On 31 August 2021, the Tribunal wrote to the Secretary stating that the hearing listed for 2 September 2021 would be adjourned due to unavailability of the presiding member of the Tribunal. On 2 September 2021, the Tribunal relisted the matter for hearing on 16 September 2021. (6) On 9 September 2021, Mr Jacob wrote to the Tribunal by email stating that he could not attend the hearing on 16 September 2021 because he would be observing Yom Kippur. On 13 September 2021, the Tribunal relisted the matter for hearing on 30 September 2021. (7) A further hearing was held on 30 September 2021. On 4 October 2021, further directions were made for the filing of written submissions by the parties. The Secretary was directed to file further written submissions by 29 October 2021 and Mr Jacob was required to file responsive submissions by 12 November 2021. (8) On 28 October 2021, those directions were varied to extend the time for compliance. On 4 November 2021, the Secretary filed submissions, and by virtue of the extension given, Mr Jacob was required to file responsive submissions by 26 November 2021. (9) On 17 November 2021, Mr Jacob wrote to the Tribunal indicating that he could not comply with the direction. On 17 November 2021, the Tribunal responded to Mr Jacob's email acknowledging his circumstances and stating that the Tribunal would contact him again in four weeks' time. (10) The Tribunal subsequently attempted to contact Mr Jacob a number of times by telephone but was unsuccessful. (11) On 6 January 2022, Member Dr Huntley dismissed the application pursuant to s 42A(5) of the AAT Act, on the ground that Mr Jacob had failed, within a reasonable time, to comply with a direction made by the Tribunal under s 33(2) of the AAT Act. 13 There is no evidence that Mr Jacob was informed, prior to 6 January 2022, that the Tribunal was contemplating dismissing the application because of Mr Jacob's failure to comply with the direction to file responsive submissions by 26 November 2021. Indeed, the Tribunal's email of 17 November 2021 was to the effect that Mr Jacob was not required to comply with the orders at that time and the Tribunal would contact him in four weeks. No indication was given that his application may be dismissed if he failed to comply within that or any other timeframe. Likewise, there is no evidence that Mr Jacob was invited to a hearing, or otherwise invited to comment on, explain or advance reasons why the application should proceed notwithstanding his non-compliance with the relevant direction. 14 I accept, on the basis of the Secretary's submissions and affidavit filed in the appeal, that the Tribunal erred in law and failed to afford Mr Jacob procedural fairness in that he was not given any opportunity to explain, or advance reasons why the matter should proceed notwithstanding that he had not complied with the direction to file responsive submissions by 26 November 2021 or within four weeks thereafter. The appeal should succeed and the Tribunal's order should be set aside on that ground. 15 The parties have also agreed to and requested that an order be made remitting the matter for reconsideration in accordance with law by the Tribunal differently constituted. As I indicated earlier in these reasons, it is a substantial discourtesy for a court to overturn the decision of an official decision-maker. Also, there is authority for the proposition that ordinarily orders remitting a matter to the Tribunal for rehearing or reconsideration ought not to be prescriptive as to how the Tribunal is to be constituted on such a rehearing or reconsideration. The subject of such constitution is usually regarded as a matter for the President of the Tribunal: e.g. Read v Military Rehabilitation and Compensation Commission [2018] FCA 848; (2018) 158 ALD 537 at [38]. 16 Nonetheless, the Court has an undoubted power to remit the matter to the Tribunal for determination in accordance with law before a differently constituted tribunal. Where, as here, the member of the Tribunal has made an error of law comprised of a failure to afford the appellant natural justice, there is good reason for directing that the matter be reconsidered before a differently constituted tribunal: Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497 at [88]-[95]; Escobar v Spindaler (1986) 7 NSWLR 51 at 58. 17 For the above reasons, orders will be made, by consent, in accordance with the parties' consent order dated 23 June 2022. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.