Case: Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522
Outcome: followed
In Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 , Branson J (Spender and Nicholson JJ agreeing) stated at [14] that the legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1) of the AAT Act, ' disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal '. An appeal under s 44 is therefore different to an appeal by way of rehearing under s 24 of the Federal Court of Australia Act 1976 (Cth). Rather, an appeal under s 44 is of the same character as the subject matter of a reference of a question of law under s 45 of the AAT Act. Justice Branson also summarised (and applied) Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 ; (2003) 76 ALD 321. 98 In Birdseye , the appeal was brought in reliance on s 44 of the AAT Act. Justices Branson and Stone expressed approval of comments made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178 where his Honour pointed out that where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law stated ( Birdseye at [11]; cf Etheridge at [13]). Their Honours also approved the comments of Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 namely that ' If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law ' ( Birdseye at [13] [15]; cf Etheridge at [15]). Accordingly, a mixed question of fact and law is not a question of law within s 44(1) of the AAT Act ( Birdseye at [18]). 99 Justice Branson pointed out at [27] and [30] in Etheridge that judicial review under s 5(1) of the ADJR Act is also available for Tribunal decisions under the SRC Act where such an application is made. In Brown v Repatriation Commission [2006] FCA 914 Branson J referred at [8] to the fact that the ADJR Act provided an alternative source of jurisdiction to the AAT Act. In Barry Branson J made orders under s 5 of the ADJR Act for errors of law when it was not clear that the Court's jurisdiction under s 44(1) of the AAT Act was properly invoked. Mr Sellick argues that her Honour's comments in Etheridge and Brown are obiter and that Ms Barry was unrepresented so that no submissions on jurisdiction under the ADJR Act were made. 101 Mr Sellick submits that where an appeal lies under s 44 of the AAT Act, applications brought under s 5 of the ADJR Act should be dismissed unless the subject of the appeal is a decision going to practice and procedure. He relies on Duong v Australian Postal Corporation (2005) 41 AAR 288 at [12] where Edmonds J dismissed an ADJR Act application where the Tribunal decision did not go to practice and procedure. His Honour followed Tuite v Administrative Appeals Tribunal [1993] FCA 71 ; (1993) 40 FCR 483 where Davies J had held that, as s 44 of the AAT Act provides a specific procedure for the granting of relief by the Court in respect of decisions of the AAT, that procedure should be adopted and applications brought under s 5 of the ADJR Act, where an appeal under s 44 of the AAT Act is available, should be dismissed as of course (at 484). Justice Davies expressed the view at 484 that questions of law as provided for in s 44 of the AAT Act encompass grounds enunciated in s 5 of the ADJR Act. Duong was decided prior to Etheridge , a decision of the Full Court and Tuite was decided prior to Birdseye, which discussed the difficulties in the framing of questions of law . Further, the ADJR Act is not only available for matters of practice and procedure ( Bond at 337 per Mason CJ; Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 at [89] [90] per Gummow, Callinan and Heydon JJ). 102 Several decisions of the Court have followed Tuite (eg Peczalski v Comcare (1999) 58 ALD 697 per Finn J ; Chowdhary v Bayne [1999] FCA 41 ; (1999) 29 AAR 100 per Finn J ; Percerep v Minister for Immigration &amp; Multicultural Affairs [1998] FCA 1088 ; (1998) 86 FCR 483 per Weinberg J) but Mr Sellick did not point to any case where that course was taken since Etheridge . 104 The ADJR Act and s 39B of the Judiciary Act were introduced after the AAT Act. Decisions of the Tribunal have not been excluded by the schedule to the ADJR Act. The question of jurisdiction under those Acts in addition to jurisdiction under the AAT Act was considered by a Full Court in Etheridge . I see no reason to strike out the ADJR Act application as a matter of course. I do not accept Mr Sellick's submission that the applications cannot be advanced and heard simultaneously on similar grounds.