Kumar v Secretary, Department of Social Services

1. The objection to competency be upheld.
2. The appeal be dismissed.
3. The applicant pay the first respondent's costs, of and incidental to the proceeding, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 On 20 December 2018, the applicant, Mr Nitesh Kumar, filed in the Court's Queensland District Registry a notice of appeal by which he sought to challenge an order of the Administrative Appeals Tribunal (Senior Member Tavoularis) (Tribunal), given at Brisbane on 30 November 2018. The order was in these terms: The Tribunal ORDERS, pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), that the implementation of the decision under review is stayed until the hearing of this application on, 30 January 2019, or until further order of the Tribunal. 2 In form, the notice of appeal purports to initiate an appeal against that order, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). On 31 January 2019, the respondent Secretary to the Department of Social Services (Secretary) filed an objection to competency. By that objection, the Secretary alleges that the Tribunal's stay order was not a decision from which an appeal can be brought pursuant to s 44 of the AAT Act. Reference is made in the notice of objection to a judgment given in this Court's original jurisdiction: Frugtniet v Tax Practitioners Board (2013) 60 AAR 515; [2013] FCA 752 (Frugtniet). 3 Today is the appointed day for the first case management hearing. Upon the case being called on, I drew to Mr Kumar's attention the prospect that I would be bound to hold that the appeal was incompetent, having regard to the Full Court's judgment in Director-General of Social Services v Chaney (1980) 47 FLR 80 (Chaney's case). I offered Mr Kumar an opportunity to make submissions as to an adjournment and, in any event, should he wish, as to the merits of the point raised by the Secretary in his notice of objection to competency. For his part, Mr Kumar signified that he was familiar with Chaney's case and the point, but that the present case was distinguishable, because there existed constitutional matters. In relation to those, he handed up - and it became an exhibit - a proposed notice of constitutional matter under s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act). 4 Mr Kumar also sought the amendment of the existing notice of appeal in terms recorded in a document entitled Supplementary Notice of Appeal. That also became an exhibit. 5 The presence of the asserted constitutional matter was said to be a distinguishing feature not present either in Chaney's case or, for that matter, in Frugtniet. But there is no point in giving notice of a proceeding which is incompetent. That proposition may be subject to a qualification in the event that the constitutional issue goes to the method of challenge, which is said not to be open, but that is not this case. The constitutional issues arise not in relation to s 44 of the AAT Act but rather in relation to social security legislation. 6 Frugtniet, to which I was helpfully taken in detail by Mr Black in his submissions on behalf of the Secretary, is an example of the application of Chaney's case in the context of a purported challenge under s 44 of the AAT Act to a stay order made by the Tribunal. Frugtniet is certainly on point, but the root authority is Chaney's case. The long and the short of it is that, to be amenable to challenge by way of appeal under s 44 of the AAT Act, a decision of the Tribunal must have the quality of finality about it. Axiomatically, the stay order sought to be challenged by appeal under s 44 in this case does not have that quality. 7 Mr Kumar also tendered, without objection, a letter which the Tribunal had sent to him on 30 November 2018, attaching a copy of the stay order. That too became an exhibit. In that letter, the Tribunal advised: If you think the decision is wrong, you might be able to appeal to the Federal Court of Australia. 8 In terms, the statement quoted is accurate, in that it does not affirmatively state that there is an ability to appeal to this Court against the order. Instead, that prospect is put conditionally (see the word "might"). But even if the statement were more emphatic, it could not alter the position which prevails as a matter of law, having regard to Chaney's case. 9 None of this is to hold that the stay order made by the Tribunal is entirely immune from challenge. Having regard to s 75(v) of the Constitution, that could never be so in relation to the High Court's entrenched constitutional writ jurisdiction. That aside, there are means by which such an order may be challenged by way of judicial review in this Court, either under s 39B of the Judiciary Act or under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Any such subsequent proceeding by Mr Kumar would, though, raise a question as to whether a grant of leave was necessary, having regard to an order made by the Court on 21 December 2018 under s 37AO of the Federal Court of Australia Act 1976 (Cth) (FCA Act). It is not necessary further to pursue that subject. For the moment, it is enough to recognise that, for the reasons given, the proceeding is indeed incompetent. Accordingly, it must be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.