Chan v Secretary, Department of Family and Community Services [2003] FCA 799

Chan v Secretary, Department of Family and Community Services [2003] FCA 799

The AAT direction joining the child as a party in substitution for Ms Vu was a procedural direction, not the effective decision or determination of the application for review nor a substantive part of it. Accordingly, the appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) was incompetent. Any debate about whether the child's interests were affected did not justify treating the process as an application for relief under s 39B of the Judiciary Act 1903 (Cth) or s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Jurisdiction
Australia
Judgment Date
31 July 2003
Procedural Posture
Appeal Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) / Competency Objection to Appeal From an Administrative Appeals Tribunal Procedural Direction
Outcome
The appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) was dismissed as incompetent, with the applicant to pay the respondents' costs from 14 June 2003.
Legal Topics
['administrative Appeals Tribunal Appeals' 'competency of Appeal' 'joinder of Parties' 'family Assistance Benefits' 'costs']
['administrative Law' 'social Security'] ['administrative Appeals Tribunal Appeals' 'competency of Appeal' 'joinder of Parties' 'family Assistance Benefits' 'costs']

Case Brief

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Procedural Posture

Appeal Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) / Competency Objection to Appeal From an Administrative Appeals Tribunal Procedural Direction

Legal Issues

  1. 1 ['Whether an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) lay from an AAT procedural direction joining the child as a party in substitution for Ms Vu.' 'Whether the initiating process should be treated as an application for relief under s 39B of the Judiciary Act 1903 (Cth) or s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).' "Whether the applicant should pay the respondents' costs."]

Ratio Decidendi

The AAT direction joining the child as a party in substitution for Ms Vu was a procedural direction, not the effective decision or determination of the application for review nor a substantive part of it. Accordingly, the appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) was incompetent. Any debate about whether the child's interests were affected did not justify treating the process as an application for relief under s 39B of the Judiciary Act 1903 (Cth) or s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Court Disposition

The appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) was dismissed as incompetent, with the applicant to pay the respondents' costs from 14 June 2003.

Orders

  • ['The "appeal" under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) be dismissed as incompetent.' "The applicant pay the respondents' costs from 14 June 2003."]