CMW22 v Administrative Appeals Tribunal [2023] FCA 262

CMW22 v Administrative Appeals Tribunal [2023] FCA 262

Perry J refused recusal because none of the appellant's asserted grounds established apprehended or actual bias: his lack of consent was irrelevant, her appointment as a Deputy President of the AAT under the AAT Act involved no alleged or actual involvement in the appellant's AAT matters and had no logical connection to any risk of deciding otherwise than on the merits, and no basis for actual prejudgment was identified. The appeal was incompetent because the FCFCOA decision appealed from was a summary dismissal for no proper question of law and no reasonable prospects of success, making it interlocutory in nature; the appellant therefore required leave to appeal under s 24(1A) of the...

Jurisdiction
Australia
Judgment Date
24 March 2023
Procedural Posture
Appeal From Federal Circuit and Family Court of Australia (division 2) Summary Dismissal Decision / Notice of Objection to Competency and Recusal Application Determined on the Papers
Outcome
Appeal dismissed with costs; recusal application refused.
Legal Topics
['leave to Appeal From Interlocutory Judgment' 'competency of Appeal' 'summary Dismissal' 'apprehended Bias and Actual Bias' 'recusal' 'vexatious Proceedings Orders' 'suppression of Identity in Child Support Review Proceedings']
['practice and Procedure' 'administrative Law' 'child Support and Maintenance'] ['leave to Appeal From Interlocutory Judgment' 'competency of Appeal' 'summary Dismissal' 'apprehended Bias and Actual Bias' 'recusal' 'vexatious Proceedings Orders' 'suppression of Identity in Child Support Review Proceedings']

Case Brief

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Procedural Posture

Appeal From Federal Circuit and Family Court of Australia (division 2) Summary Dismissal Decision / Notice of Objection to Competency and Recusal Application Determined on the Papers

Legal Issues

  1. 1 ['Whether Perry J should recuse herself because she was a Deputy President of the Administrative Appeals Tribunal and for the other grounds asserted by the appellant.' 'Whether the appeal from the Federal Circuit and Family Court of Australia (Division 2) summary dismissal decision was competent without leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).' 'Whether dismissal of the appeal was required under r 36.72 of the Federal Court Rules 2011 (Cth).' 'Whether it may be appropriate to consider a vexatious proceedings order under s 37AO of the Federal Court of Australia Act 1976 (Cth).']

Ratio Decidendi

Perry J refused recusal because none of the appellant's asserted grounds established apprehended or actual bias: his lack of consent was irrelevant, her appointment as a Deputy President of the AAT under the AAT Act involved no alleged or actual involvement in the appellant's AAT matters and had no logical connection to any risk of deciding otherwise than on the merits, and no basis for actual prejudgment was identified. The appeal was incompetent because the FCFCOA decision appealed from was a summary dismissal for no proper question of law and no reasonable prospects of success, making it interlocutory in nature; the appellant therefore required leave to appeal under s 24(1A) of the...

Court Disposition

Appeal dismissed with costs; recusal application refused.

Orders

  • ['The appeal is dismissed under rule 36.72 of the Federal Court Rules 2011 (Cth).' "The appellant is to pay the second respondent's costs as agreed or taxed."]