06 December 2021
6 min read
#Australian Government, #Government, #Dispute Resolution & Litigation
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The recent Full Court of the Federal Court of Australia decision in QDKH v National Disability Insurance Agency [2021] FCAFC 189 (QDKH) demonstrates that it is not easy to identify what litigation strategy would best serve the Commonwealth’s interests in a review conducted by the Administrative Appeals Tribunal (AAT).
In QDKH, the Full Court allowed the appeal, reversed the AAT’s decision, with costs, and remitted the decision under review back to the AAT because it held that the additional disability supports sought by the applicant should have been determined by the AAT, even though they were not sought by the applicant at the time of the original decision made by the National Disability Insurance Agency (NDIA).
In this article, we share a four-step approach that has worked well for us in managing countless AAT reviews for the Commonwealth over many years. But first, it may assist to briefly address the AAT’s ground rules.
The AAT, like the Federal courts, sits within the Attorney-General’s portfolio, but unlike the judiciary it:
It follows the Administrative Appeals Tribunal Act 1975 (Act) and applies the law which is relevant to the decision under review, to the information and evidence at the time of the AAT hearing[2]. Under section 43(1) of the Act, the AAT may affirm, vary, set aside or remit the decision under review. An AAT review and its decision, properly conducted, will supersede and cure any legal defect with the original decision[3]. Under section 44 of the Act, an AAT decision may be appealed to the Federal Court.
Meeting with the clients and listening carefully to their instructions is, of course, the best place to start. We suggest a four-step approach:
We discuss the application of each step below.
Reviewing the decision under review, including any original or internal review decision (i.e. by Comcare or NDIA), should identify the relevant law, facts and client reasoning.
Check with the client that the filed application included the full decision (and any attachments) under review, and then determine whether the AAT has ‘jurisdiction’ to review it[4]. This includes identifying the enabling legislative provisions. If the AAT lacks jurisdiction, this should be brought to the applicant’s and AAT’s attention straight away.
Request from the client all information referred to and relied upon in the decision under review, and any other relevant information. This is a continuous obligation until the final hearing[5]. Work with the client to prepare a suitable T-documents and evidence timetable and any confidentiality or suppression orders over sensitive government information and seek these from the AAT, preferably by consent.
If disclosure of relevant information would prejudice Australia’s security, defence or international relations, then protective Ministerial certificates may also be required (under sections 36, 39A and 39B of the Act). Ultimately, we should work with the client to determine the sufficiency of the relevant information and address any information gaps, including from experts.
One of my favourite quotes from The Simpsons show is:
“Lionel Hutz: Don't worry, Homer. I have a foolproof strategy to get you out of here: surprise witnesses, each more surprising than the last. I tell you, the judge won't know what hit him!”
An applicant will intimately know their case, but the application itself may lack sufficient particulars. It’s not uncommon for an application to state “I disagree with the decision under review” or “the decision was wrong in law and fact” or something equally as nebulous. In such cases, seeking further information from the applicant about which parts of the decision they take issue with will minimise the risks of unfavourable outcomes at the hearing, including adjournments and costs. Furthermore, if the applicant seeks other/additional decisions which the Commonwealth client did not originally address (as what happened in QDKH), then seeking AAT remittal orders may be the quickest and less costly option for both parties.[6]
We can request further particulars, information, documents or evidence from the applicant, and issue summonses if necessary. Identifying and evaluating the applicant’s position from the outset makes it easier to address it in our evidence and submissions and for our client to comply with its duty to assist the AAT to make its decision (under section 33(1AA) of the Act).
And Lionel Hutz won’t get to spring surprise witnesses on the AAT at the final hearing.
Our Commonwealth client’s primary duty (and ours as its representatives) is to assist the AAT to make the right decision. Hence, we need to work with our client to determine from the outset (and certainly well before the hearing) what is ‘currently’ the correct or preferable decision. Even if the decision may have been correct at the time it was made, there may have been a change in circumstances or new evidence, which makes remittal a better option than defending it[7].
However, once the above four steps are followed, if the decision under review remains correct and preferred, then we can and should prepare as strong and persuasive evidence and information as possible, and submit that it be affirmed by the AAT. This approach would be in accordance with the Act and also within the Commonwealth’s model litigant principles.
If you have any questions about this article, please speak to us or contact us here.
[1] O’Sullivan v Australian Securities and Investments Commission [2018] FCA 228 at [36].
[2] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 at 589; 46 FLR 409; Nevistic v Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 38; 34 ALR 639; 51 FLR 325.
[3] See Twist v Randwick Municipal Council (1976) 136 CLR 106 and NBMW v Minister for Immigration and Citizenship [2013] FCA 651.
[4] This takes some investigative work. It’s not uncommon for incomplete decisions under review inadvertently being provided to applicants or lodged by them with the AAT. Some classified decisions, such as security assessments and security clearance vetting decisions, are not provided in full to applicants (only the truncated, unclassified version are). Furthermore, where security assessments are generally AAT reviewable, vetting and employment decisions are not. For example, see VXYH v Director-General of Security [2014] AATA 368.
[5] Under section 37(1) of the Act, a statement of reasons and T-documents must be lodged within 28 days, or as otherwise directed, but relevant information must still be filed right up to the hearing date. Often, several ‘tranches’ of T-documents, including updated expert evidence, may be required right up to the final hearing date.
[6] The AAT would generally benefit from having such matters remitted back to the Commonwealth for re-determination. The applicant may then be satisfied with the Commonwealth’s new decision (and the entire case may then be withdrawn or dismissed by consent), issues may be narrowed, or at the very least, the AAT has the benefit of then reviewing the Commonwealth’s updated decision.
[7] Sections 26 and 42D of the Act explain that Commonwealth respondents cannot re-determine decisions being AAT reviewed, unless they are remitted by AAT order.
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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