MDXJ v Secretary, Department of Social Services

1. The appeal be dismissed on the basis that it is incompetent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BESANKO J: 1 The applicant in this proceeding seeks to appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). These reasons deal with the competency of the appeal. The competency issue involves a question as to whether there is a decision of the Tribunal within s 44(1). 2 The matter before the Tribunal involved two applications for Second Review of a decision of the Social Services and Child Support Division (Tier 1) of the Tribunal. The applicant and the second respondent, who were formerly husband and wife, each made an application to the Tribunal. They are the parents of two children, one of whom I will identify as "Child A". The case before the Tribunal concerned the payment of a Family Tax Benefit (FTB) for Child A. He had not been in the applicant's care since 15 September 2016. The case concerned the entitlement to FTB under the A New Tax System (Family Assistance) Act 1999 (Cth) (Family Assistance Act) for the period following 15 September 2016. The Tribunal at Tier 1 decided that Child A was an FTB child of the applicant until 17 November 2016, that an interim period applies and that the percentage of care the applicant has of Child A in the interim period is 40%. 3 Two matters occurred in the course of the proceeding before the Tribunal. First, the applicant applied to the Registrar of the Tribunal to issue summonses to Child A's general practitioner and school under s 40A of the AAT Act to attend at a hearing of the Tribunal. The Registrar refused to issue the summonses and referred the matter to a Tribunal member for a decision. Secondly, the Tribunal decided to hold what it called a preliminary hearing on a defined issue. The directions to achieve this were made on 7 August 2018 and were as follows: 1. The matter is to be listed for a preliminary hearing on the issue of whether a 'care arrangement applies in relation to [the] child' for the purposes of paragraph 35C(1)(a) of the Family Assistance Act 1999 and the making of the interim care determination the subject of the review. 2. On or before close of business on 21 August 2018, [the applicant] is to provide: (a) an extract of the transcript he wishes to rely on, and any further documentary evidence he wishes to rely upon at the preliminary hearing; and (b) any written submission he wishes to make on the preliminary issue, limited to three pages. 3. On or before close of business on 21 August 2018, [the other party] is to provide: (a) any further documentary evidence she wishes to rely upon at the preliminary hearing; and (b) any written submission she wishes to make on the preliminary issue, limited to three pages. 4. On or before close of business on 21 August 2018, the Secretary is to make any written submission the Secretary wishes to make on the preliminary issue, limited to three pages. 5. The question of the issuing of the summonses requested by [the applicant] is adjourned to a later date. No summons is to issue in these proceedings until further order of the Tribunal. 4 The Tribunal in its written reasons explained the reasons it adopted this approach (at [4]-[8]): 4. This is a decision record arising out of an interlocutory hearing conducted on 4 September 2018 to consider a discrete part of the review. MDXJ has applied to the Tribunal to issue a number of summonses to third parties. The Registry has refused to issue the summonses and referred the matter to a Tribunal member for a decision about the issue of the summonses. 5. The summonses may relate, on the face of it, to evidence potentially relevant to a very broad discretion addressing whether 'special circumstances' are present for the purpose of extending an interim care period. Despite the superficial appearance of relevance of the witnesses and evidence sought by the summons, the compulsory involvement of third parties (such as teachers and doctors) in proceedings of this nature should be required only as a last resort. 6. It appeared to me however, having regard to the differing approaches between the authorised review officer (ARO) and the Tribunal at Tier 1, that the matter called first of all for the resolution of a preliminary matter which may limit the scope of what evidence may be relevant, and may in fact reveal that the proposed evidence is not relevant to the review. 7. The Tribunal's decision at Tier 1 turned in part on the exercise of the discretion within section 35L of the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) in the context of potentially informative appeal proceedings in the Family Court having yet to be resolved. The material and witnesses called for in the summons may arguably be relevant to the exercise of that discretion, but I note also that where a discretion is expressed in such general terms, it is difficult to rule out any particular topic of evidence as irrelevant. 8. The ARO's decision however was made on the basis that the preliminary criteria for an interim care determination (under section 35C of the Family Assistance Act) were not made out. The preliminary issue I have identified therefore is whether section 35C of the Family Assistance Act has any application to this review. If it does not, then the basis for issuing the summonses for the purpose of the discretion in section 35L does not arise. There are however a number of layers of complexity to the answer to that question, including evidence about contravention proceedings in the Federal Circuit Court, an appeal to the Full Family Court, the status of communications about care arrangements for Child A and the interrelationship between section 35C and section 23 of the Family Assistance Act. 5 The outcome of the hearing on 4 September 2018 was described by the Tribunal as "Directions on Preliminary Issue" and were as follows: 1. The request to issue summons is refused. 2. The matter is to be listed for a further hearing at a date to be advised by the Registry for the parties to be heard on the issue of final orders and the decision in the reviews. 6 With respect to s 35C of the Family Assistance Act and "its scheme of dual care percentage", the Tribunal said that as it had found that a care arrangement did not apply in relation to Child A, the scheme could not be invoked. Further, the discretion in s 35L to effectively extend or reduce the interim period in special circumstances had no application. It followed then that the summonses directed to obtaining evidence potentially relevant to the discretion in s 35L would not produce relevant evidence and that the request to issue the summonses "is refused". 7 The Tribunal went on to consider the relationship between s 35C and s 23 and I will return to this matter. 8 The applicant, who has at all times appeared in person, purported to appeal from the directions made by the Tribunal under s 44(1) of the AAT Act. The right under s 44(1) is a right to appeal from any decision. The directions made by the Tribunal do not finally dispose of the two applications made to it and, in those circumstances, a question arises as to whether the directions are a decision from which an appeal under s 44(1) may be brought. 9 The first respondent, the Secretary, Department of Social Services, told the Court that the issue of jurisdiction was considered by the Department and, in the end, it was decided that the Tribunal had, in fact, decided all the issues before it and that "it had then left open the question of how it is going to order those issues to be dealt with". 10 I raised the issue of jurisdiction because the authorities are clear that jurisdiction cannot be conferred by agreement, consent or waiver: Price Street Professional Centre Pty Ltd v Commissioner of Taxation [2007] FCAFC 154; (2007) 243 ALR 728 at [31] per Kenny J and at [74] per Greenwood J. I heard the parties on the issue of whether there was a decision within s 44(1) of the AAT Act and, as I have said, it is this matter which is the subject of these reasons. 11 Before turning to consider the authorities on what constitutes a decision under s 44(1) of the AAT Act, it is convenient to elaborate on the issues before the Tribunal. 12 Under s 23 of the Family Assistance Act, a person within the terms of the section could establish a qualifying period of up to 14 weeks (s 23(5)(b)(i)), subject to a discretion to specify an earlier day (s 23(5)(b)(ii) and (5A)). The effect of the Tier 1 Tribunal's decision was to allow 9 weeks. Under ss 35C and 35L an interim period determination of up to 26 weeks may be made. I record the fact that the applicant wishes to argue that the 26 week period referred to in s 35L is, or can be, in addition to the 14 weeks making a total (potentially) of 40 weeks. 13 The respondent submitted that the Tribunal had made a decision negative to the applicant in relation to the discretion in s 35L(5) and that that decision was a decision for the purposes of s 44(1) of the AAT Act. The respondent further submitted that it "seems reasonably certain" the Tribunal had decided that s 23 did not benefit the applicant, but queried that, if that was the case, it was not clear what then needed to be done in terms of the second direction made by the Tribunal. The respondent admitted that before the Tribunal the applicant had claimed that s 23 needed to be examined. 14 The applicant's submissions as to whether the s 23 discretion had been dealt with by the Tribunal seemed to involve the following contentions: (1) a contention that it had been dealt with and that he had been unsuccessful. As the applicant put it, "there is absolutely nothing left"; (2) the Tribunal had failed to examine the proper relationship between s 35C and s 23 and, as I understand it, that failure was said by the applicant to be a significant omission in its reasoning; and (3) at the same time, he seemed to make a procedural fairness complaint that s 23 had been dealt with despite the fact that it was not part of the preliminary issue. 15 Section 44(1) of the AAT Act is in the following terms: 44 Appeals to Federal Court of Australia from decisions of the Tribunal 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. 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) 148 CLR 170 at 176-7; 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) 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. … 28. In Federal Commissioner of Taxation v Beddoe [(1996) 68 FCR 446], which concerned an application under the AD(JR) Act [Administrative Decisions (Judicial Review) Act 1977 (Cth)] to review directions made by the tribunal under s 33 of the AAT Act for the filing and exchanging of answers to questions prior to a hearing Spender J, said at FCR 453; ALD 568; ALR 390: It is in my opinion wholly undesirable that the process contemplated by the AAT Act should be fragmented by applications seeking to challenge intermediate directions or determinations made along the way to reaching an ultimate determination of the issue before the tribunal, in the same way that this court should be reluctant to fragment the criminal process by entertaining applications under the AD(JR) Act in relation to committal proceedings and, in particular, intermediate rulings or determinations made in the course of committal proceedings rather than the ultimate decision to commit. 21 In Kumar v Secretary, Department of Social Services [2019] FCA 202, the applicant sought to appeal from an order of the Tribunal that stayed "the implementation of the decision under review" (at [1]). The respondent filed an objection to competency alleging that the stay order was not a decision within s 44 of the AAT Act. Justice Logan held that the appeal was incompetent on the basis that the stay order did not have the quality of finality required by Chaney (at [6]). 22 In Hutchison v Australian Securities and Investments Commission [2018] FCA 1002, Banks-Smith J considered the competency of an appeal from a decision of the Tribunal to refuse to order the production of certain documents. Her Honour concluded that the appeal was incompetent because the decision was not "an effective decision or determination of the application for review" (at [5]). 23 In Cremona v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 1003, North J considered the competency of an appeal against orders made by the Tribunal refusing the applicant leave to issue a summons to produce documents based on relevance. His Honour concluded that the appeal was incompetent because the decision was an interlocutory decision which did not determine the underlying application for review (which concerned the entitlement of the applicant to an allowance under the Social Security Act 1991 (Cth)). 24 In Ibarcena v Cole [2003] FCA 417, Finn J considered whether an intimation by a Senior Member of the Tribunal in the course of hearing two applications (prior to reserving his decision) as to the likely outcome of those applications constituted a "decision". His Honour said (at [5]): In the present matter, the evidence before me satisfies me that the Tribunal has not reached a determination in this matter at all. The decision is reserved. Equally, I am satisfied, given the requirement of finality, that the term "decision" does not apply to intimations of likely success in a proceeding, let alone as to comments on relevance. For these reasons I am satisfied that the appeal, so called, in this matter is destined to inevitable failure for the reason that the jurisdiction to entertain the matter has not properly been enlivened. There is simply no decision against which the alleged appeal is said to lie. 25 In Minister for Immigration and Citizenship v Hassani [2007] FCA 436; (2007) 219 FCR 144, I considered the competency of a purported appeal under s 44 of the AAT Act from orders of the Tribunal that were in the following terms: (a) The matter be adjourned until 1 May 2006 for a further telephone directions hearing; (b) Either party is at liberty to apply for an earlier telephone directions hearing in the event that the criminal proceedings in the Magistrates Court involving the applicant are finalised before 1 May 2006. I concluded that these orders did not constitute a decision under s 44 because they did not amount to a final decision or determination (at [29]). The orders merely deferred or adjourned consideration of the underlying application for review. 26 The above are the authorities to which I was referred. There are no doubt a number of other authorities. However, there is no suggestion that the test is other than as stated by Deane J in Chaney and set out above with the addition, it seems, of a third exception involving rulings under ss 36(3), 36B(3), 36A(2)(b) or 36C(2)(b). In any event, what was argued in this case was that the s 35C issue was a separate part of the proceeding before the Tribunal in respect of which an independent decision may properly be given. 27 In terms of the two directions made by the Tribunal, the Secretary did not suggest that the first direction was a final decision. That approach is plainly correct. The Secretary's submission related to the second direction. It was not that that direction embodied a final decision, but behind it there was a decision concerning the application to this case of s 35C of the Family Assistance Act. The Secretary accepted that the issue of whether the jurisdiction of the Court was enlivened was "not a clear cut issue". 28 In the discussion and observations that follow, there is no implicit criticism of the Tribunal's decision to hold a preliminary hearing on a defined issue. In theory, at least, there is a distinction between a decision which is a step along the way to a final conclusion, and a decision on a separate part of the case where a separate decision may properly be given. Although the case involved the Administrative Decisions (Judicial Review) Act 1977 (Cth), the following observations of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 337 are instructive: The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a fining or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. 29 If one considers terminology and form, the Tribunal's reasons and directions do not amount to a decision within s 44(1) of the AAT Act. They were the result of a preliminary hearing on a defined issue and are described as "Directions on Preliminary Issue". The hearing was described by the Tribunal as an "interlocutory hearing", albeit to consider a discrete part of the review (at [4]), resolution of a "preliminary matter" (at [6]), and "the preliminary issue … identified" (at [8]). Importantly, the second direction itself suggests that no final decision had been made because the parties were to be heard as to final orders and "the decision in the reviews" (emphasis added). 30 The Secretary sought to focus on what the Tribunal had decided, rather than matters of terminology and juris. What had been decided was the non-application of ss 35C and 35L and that was a separate part of the case upon which a separate decision may properly be made. Leaving aside for the moment the matters of terminology and form to which I have referred, the difficulty with this argument is this issue is not separate from the issue raised in relation to s 23. That, in turn, led to submissions about the extent to which the issues concerning s 23 were raised and determined. Section 23 was not part of the defined issue. 31 It seems that the applicant raised the relationship between s 35C and s 23 towards the end of the hearing and the Tribunal addressed the relationship and, as I would understand it, the Tribunal found that the qualifying period began and ended at the same instant because of the terms of s 23(5), and because of its conclusion that the same circumstances that led it to conclude that "the care arrangement in the form of the court order of 4 August 2013 did not 'apply' in relation to Child A", also led the Tribunal to the conclusion that no family law order was "in force" in relation to Child A during the period beginning when Child A ceased to be in the applicant's care (at [80]). The Tribunal expressed its conclusion in the following way (at [81]-[82]): 81. In this way, even though section 23 is drafted differently to section 35C, its terms have no practical effect to preserve Child A as an FTB child of MDXJ in circumstances where the care arrangement did not apply, the court order was not in force, and where at that point Child A entered the care of his other parent. 82. In my view, in the circumstances of this case, there is no tension between section 23 and section 35C of the Family Assistance Act. The application of the facts I have found to section 23 mean that Child A does not continue to be MDXJ's FTB child, and there is no utility in exercising the discretion in section 23(5A) of the Family Assistance Act. The application of the facts I have found to section 35C means that it does not operate to require care determinations be made to create an interim care period, and the exercise of discretion to change the duration of the interim care period in section 35L does not arise. This very much looks like the Tribunal is deciding that s 23 has no application and that ss 35C and 35L cannot be invoked. This would suggest that the order was likely to be that the orders of the Tribunal (Tier 1) be set aside and the decision of the authorised review officer restored. 32 However, although the Secretary at times submitted that the Tribunal did decide the s 23 issue, he seemed reluctant to embrace the point wholeheartedly. Counsel for the Secretary said in the course of submissions the following: MR DUBE: … As I understand the reasons and the effect of order 2, it's not apparent whether the tribunal has left that issue open or not. It seems reasonably certain that it has determined section 23 doesn't benefit the applicant. But if that is the case, it's not then clear what the tribunal thought needed to be done in respect of order 2. 33 For his part, the applicant complained that he had not been accorded procedural fairness in relation to the s 23 issue. It was not part of the defined issue and it was raised by him towards the end of the hearing. The subsequent procedural direction on 4 September 2018 giving him leave to file a written submission did not overcome the lack of procedural fairness. 34 In my opinion, the argument of the Secretary relying, and only relying, on the Tribunal's decision with respect to s 35C must fail because it is not separate from the s 23 issue such that it was appropriate for it to be the subject of a separate decision. Even if it is proper to take into account that the Tribunal expressed a definite conclusion with respect to the s 23 issue, the form of the directions are significant. On the further hearing, it is possible the applicant would have been given the opportunity to make any further submissions about the s 23 issue or that the defined issue would have been amended to include the s 23 issue and to what extent would there have been further submissions on the fate of the two applications. 35 I do not consider that the Tribunal's reasons and directions are a decision within s 44(1) of the AAT Act. The appeal is incompetent and must be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.