Case: Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 ; (2003) 76 ALD 321
Outcome: considered
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]). 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).