Druett v Administrative Appeals Tribunal [2003] FCAFC 234 (22 October 2003)

Last Updated: 22 October 2003

FEDERAL COURT OF AUSTRALIA

Druett v Administrative Appeals Tribunal [2003] FCAFC 234

ADMINISTRATIVE LAW - Jurisdiction of Administrative Appeals Tribunal - No reviewable decision identified by appellant.

Administrative Appeals Tribunal Act 1975 (Cth) s 25

GARRY DRUETT v ADMINISTRATIVE APPEALS TRIBUNAL

N388 of 2003

WILCOX, CONTI and BENNETT JJ

22 OCTOBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N388 of 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GARRY DRUETT APPELLANT
AND:	ADMINISTRATIVE APPEALS TRIBUNAL RESPONDENT
JUDGES:	WILCOX, CONTI AND BENNETT JJ
DATE OF ORDER:	22 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N388 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GARRY DRUETT APPELLANT
AND:	ADMINISTRATIVE APPEALS TRIBUNAL RESPONDENT

JUDGES:	WILCOX, CONTI AND BENNETT JJ
DATE:	22 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal, by Garry Keith Druett, against an order of a Judge of the Court (Jacobson J) dismissing his `appeal' against a decision of the Administrative Appeals Tribunal (`the Tribunal'). The notice of appeal names the Tribunal as respondent to the appeal, incorrectly we believe. The Tribunal has not taken any active part in the hearing of the appeal. That course was consistent with the observations of the High Court of Australia in The Queen v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-36.

2 The notice of appeal in this proceeding does not specify any other respondent, such as a Commonwealth agency whose decision was to be reviewed by the Tribunal. However, when filed, the notice of appeal that instituted the proceeding heard by Jacobson J specified as respondents `the Departments of Health and Family and Community Services'. This specification was apparently intended to refer to the New South Wales Department of Health and the New South Wales Department of Community Services (`DOCS').

3 At the hearing before the Tribunal, the member (Ms N Isenberg) sought to identify the decision in relation to which the appellant sought review. The appellant conceded he was unable to point to `something in writing' by a Commonwealth agency, but he said that Medicare ought not to have made certain payments. It seems this was not the main grievance aired by the appellant before the Tribunal. He was concerned about two much more important matters. First, the appellant was concerned about the treatment provided by Blacktown Hospital in 1993 to his newborn son, Gregory Druett. He said this treatment had caused Gregory to become brain-damaged. The appellant was also concerned about the way in which the Health Commission of New South Wales had responded to his complaints about that treatment.

4 Second, it appears that in 1998 DOCS removed all four of Mr and Mrs Druett's children from their care. Mr Druett is deeply unhappy about this and has endeavoured in vain to regain custody of the children.

5 It seems that Ms Isenberg pointed out to the appellant the limits of the Tribunal's jurisdiction. She gave him an opportunity to file further material within seven days of the hearing but he did not do so.

6 In her reasons for decision, Ms Isenberg noted that the Administrative Appeals Tribunal Act 1975 (Cth) does not itself set out the decisions that may be reviewed by the Tribunal; jurisdiction is conferred by other statutes. Ms Isenberg pointed out that Medicare was set up by the Health Insurance Commission Act 1973 (Cth), but that Act does not provide for review by the Tribunal; nor does the National Health Act 1953 (Cth), or any other Commonwealth statute. As Medicare was the only Commonwealth agency mentioned by the appellant, Ms Isenberg concluded the Tribunal had no jurisdiction to hear the appellant's complaints. She made a formal decision to that effect.

7 At the hearing before Jacobson J, the appellant took his Honour through his children's history and elaborated his complaints against Blacktown Hospital (and the Western Sydney Area Health Service) and DOCS. However, it seems he made no complaint against any Commonwealth agency.

8 In his reasons for decision, Jacobson J summarised the complaints made by the appellant and also the Tribunal's reasons for decision. He referred to s 25 of the Administrative Appeals Tribunal Act, in particular subss (1) and (4). Those subsections read:

`(1) An enactment may provide that applications may be made to the Tribunal:

(a) for review of decisions made in the exercise of powers conferred by that enactment; or

(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

...

(4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment.'

9 Jacobson J noted the Tribunal had pointed out that the legislation governing Medicare does not provide for review of its decisions by the Tribunal, neither does any other Commonwealth statute. At paras [20]-[23] his Honour went on:

`For those reasons, the Tribunal found at par 8 that it had no jurisdiction under s 25 of the Act to hear Mr Druett's complaints.

In my opinion the decision of the Tribunal was correct. Certainly I can see no error of law in the approach taken by the Tribunal. The approach which the Tribunal took was, it seems to me, in accordance with the provisions of the Act, and in particular ss 25(1) and 25(4) of the Act.

This morning, I asked Mr Druett whether he could point to any decision under any enactment which would indicate that the Tribunal made an error of law in coming to the view that it did not have jurisdiction to hear his complaint. Mr Druett said that he could not direct me to anything to show that the Tribunal was in error.

It follows that the appeal must be dismissed with costs and I so order.'

10 Because of the difficulty in identifying a relevant Commonwealth agency, and the lack of any respondent to the appeal, Wilcox J arranged for the appeal to the Full Court to be listed for directions prior to the day appointed for oral argument. At the directions hearing, it became apparent that the appellant had difficulty in identifying a relevant Commonwealth agency but he requested further time to consider the situation. Wilcox J acceded to this request and adjourned the directions hearing for a week. On the resumed hearing and after further discussion, it was agreed (and Wilcox J so directed) that the appeal should proceed on the basis of written submissions to be furnished by the appellant. These submissions have now been received and considered by us.

11 It is impossible to read the papers in this case without feeling a strong sense of sympathy with the appellant, and his wife, in relation to their children. Whatever the merits of the decisions made by DOCS officers and the State courts in relation to the children, separation from their children must be heart-breaking for both parents. However, these were decisions of State agencies, in relation to which the Tribunal lacked any jurisdiction. The same statement may be made about actions and decisions of Blacktown Hospital and the Western Sydney Area Health Service.

12 Despite invitations by presiding officers, at every level of this case, the appellant has been unable to identify a relevant Commonwealth agency decision. We cannot find such a decision. Accordingly, we must agree with Ms Isenberg and Jacobson J that the Tribunal had no jurisdiction in relation to the appellant's application.

13 In an attempt to find some element of Commonwealth jurisdiction, Mr Druett included in his written submissions references to various provisions of the Commonwealth Constitution (ss 51(xxxi), 80, 116 and 117) and to the Trade Practices Act 1974 (Cth). However, none of those provisions has any application to this case. The only question is whether there was a decision of a Commonwealth agency that was reviewable by the Tribunal. Plainly, there was not. The appeal must be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 22 October 2003

The appellant appeared in person.
Solicitor for the respondent (Administrative Appeals Tribunal):	Australian Government Solicitor
Hearing by written submissions.