Case: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Outcome: applied
The tribunal noted that at the commencement of the hearing Mr Seymour challenged the validity of the decision that had been made by a body which described itself as the Professional Standards &amp; Registration Sub-Committee of the Authority. The tribunal referred to its earlier ex tempore decision in which it had ruled that the sub-committee had not been given a delegation in writing pursuant to s 319A of the Act and that therefore its decision was invalid. The tribunal noted that pursuant to Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; 41 ALR 307 and Z ubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344 it had jurisdiction to review the impugned decision and in doing so could exercise all the powers and discretions of the Authority. The Tribunal dealt with the first of the Authority's contentions by reciting the facts the subject of the institution of the contempt proceedings before Buddin J and noting the plea of guilt. After recording his Honour's orders, the Tribunal continued: '12. Buddin J in his judgment refers to the circumstances of the offence. It would appear that the Applicant acted for a client in the purchase of a property and that the solicitor for the vendor assumed that the Applicant was a solicitor and the Applicant did not disabuse the vendor's solicitor of that assumption. As Buddin J said in his judgment at paragraph 6: "... I have no difficulty in accepting Ms Doolin's evidence that had she known that the offender was not a solicitor, she would have approached her dealings with him quite differently. I accept that she would not have, for example, permitted him to act as her firm's agent on settlement. Nor is it likely that she would have forwarded the signed transfer to him in the circumstances in which she did, or at least not without having first obtained instructions about the matter." 13. The circumstances which led to the orders of Blanch J were not before me and the Applicant was vague when asked to recount the events leading to the proceedings before Blanch J in 1994. I find that a clear inference is that the Applicant did purport to act as a solicitor, hence the nature of the orders made. 14. In the course of his judgment, Buddin J referred to proceedings before Barr J in 1997 where the Law Society of New South Wales had sought orders from the Supreme Court that the Applicant was in contempt of that Court for failing to comply with the orders of Blanch J. There were in those proceedings, three transactions in which the Applicant's conduct was alleged to have constituted breaches of the orders made by Blanch J. That Notice of Motion was dismissed by Barr J and an appeal against his decision was dismissed by the Court of Appeal on 3 May 1999 (see Law Society of New South Wales v Seymour [1999] NSWCA 117). 15. As Buddin J pointed out, the significance of those proceedings was that only just over 12 months after those proceedings were brought to finality in his favour, the Applicant embarked upon the activities which gave rise to the proceedings before him.' 39 Mr Seymour argued that because the original decision was invalid the tribunal either had no jurisdiction to embark upon a review, or that if I were minded to uphold the appeal to the Court I ought to remit the matter directly to the original decision-maker rather than the tribunal pursuant to s 44(4) of the AAT Act. He made a formal submission that Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, 41 FLR 338, was wrong but acknowledged that I am bound to follow it. The Authority submitted that the approach of the tribunal applying well known authority was correct. 123 Ordinarily, where the legislature has given a party aggrieved by an administrative decision a full statutory right of appeal on facts and law, that is indicative of a legislative intention that that right is the party's only means of redress against the failure of the original decision-maker to follow, according to law, the rules of procedural fairness in coming to the decision: The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation [1981] HCA 33 ; (1981) 147 CLR 471 at 484 per Mason J, with whom Murphy J at 489, Aickin J at 493 and Wilson J at 494 agreed on this point; Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106 at 113-117, esp at 117; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344 at 354 [31] - [32] (and see too at 353 [29] where Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, 41 FLR 338; was followed). 125 In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 314-316, Bowen CJ and Smithers J at 337 (Deane J dissenting at 344) held that s 25 of the AAT Act allowed the tribunal to review a 'decision' where the person who purported to make the decision had no power to do so. Both Bowen CJ and Smithers J pointed out that a construction of s 25 of the AAT Act which required the decision the subject of an application before the tribunal for review to be legally valid and effective would create practical problems and inconvenience. And as Hely, Gyles and Allsop JJ held in Minister for Immigration v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314 at 322 [33] it is clear that, unless a statute provides otherwise, the tribunal can review a decision which was not authorized by law or by statute. 126 Here, on 14 February 2005 the Authority wrote to Mr Seymour notifying him that '... the Authority has made the decision to refuse your application for registration. At that time, no one was aware that there had been no formal delegation to the actual decision-maker to make that 'decision'. Mr Seymour immediately applied on 17 February 2005 to the tribunal to review the 'decision' and on 14 April 2005 the tribunal granted a stay of the 'decision' which had the effect of permitting Mr Seymour to continue to act as a migration agent. 130 It would produce great uncertainty if the result of the majority decision in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; 41 FLR 338, which has stood for over 27 years, were now to be ignored. An example of a consequence of ignoring the settled course of authority in this Court suffices to show the unlikelihood that the Parliament intended such a result. If the original decision were found by the tribunal to have been made by a person without authority to make it or to have been infected by jurisdictional error, and the tribunal then made a decision using its powers under s 43(1) of the AAT Act to stand in the stead of the original decision-maker, the original decision-maker could set the tribunal's decision at nought by making a new decision on the basis that, notwithstanding that the tribunal had a full hearing on the merits, its decision was no decision at all. Rather than providing the subject with an effectual means of redress against the use of the executive power, the AAT Act would be turned into an instrument of uncertainty. Such a result cannot have been intended by the Parliament. Rather, I am of opinion that the intention of the Parliament in enacting the AAT Act was to enable the tribunal to review decisions which were affected by jurisdictional error as well as ones where there was some, even unknown, defect in the decision-maker's capacity to make the decision in question.