In Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18, the Federal Court provided greater clarity on the role of notices of objection to competency under the Federal Court Rules (the Rules) in administrative law litigation. Importantly, Perram J found that, unlike applications made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) or under the Migration Act 1958 (Cth) (Migration Act), the rules governing appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) make no provision for the filing of a notice of objection to competency. Thus, any such notice filed in an appeal under the AAT Act will be in itself incompetent.
Under the Rules, a respondent may file such a notice in applications arising under the ADJR Act (pursuant to O 54, r 4) and in applications under the Migration Act (O 54B, r 3). It has been held that a notice of objection to competency is "clearly intended to encourage a respondent...to inform the applicant at the earliest possible date that jurisdiction is an issue" (Coal and Allied Operations Pty Ltd v Industry Research and Development Board [1992] FCA 890, unreported decision, 16 November 1992, per Beaumont J). Perram J further noted that such a notice has the effect of "putting [the applicant] at risk of an adverse costs order" and serves the purpose of "securing the respondent's rights to costs". In this sense, the notice plays an important role with respect to costs in the proceedings. However, before the decision in Yao, there was uncertainty as to whether a notice could be filed in appeals to the Federal Court under s 44 of the AAT Act.
Background
The applicant, Mr Yao, received Newstart allowance from Centrelink. His payments were cut off by Centrelink for eight weeks after he failed to sign "Activity Agreements" requiring him to undertake activities at a particular branch of Mission Australia.
Mr Yao unsuccessfully sought internal review of the decision to stop his allowance. H e was also unsuccessful in an appeal to the Social Security Appeals Tribunal. Mr Yao then applied for review in the AAT, which is still pending. Mr Yao sought in those proceedings to issue six summonses. At a directions hearing, the presiding member ordered the issue of one of those summonses but refused the issue of the other five.
Mr Yao then appealed that decision to the Federal Court under s 44 of the AAT Act. In response, the respondent filed a notice of objection to competency in the matter.
The primary issues regarding the notice of objection to competency were the nature and status of the notice and the extent to which filing the notice was consistent with the Rules.
Judgment
With respect to the applications under the ADJR Act, Perram J observed:
Perram J further noted that a similar structure existed under the Rules with respect to applications under the Migration Act. However, he found that with respect to appeals under s 44 of the AAT Act, there is no provision under O 53 of the Rules which allows a respondent to file a notice of objection to competency. As his Honour observed, the "reasons why O 53 does not contain provisions like r 4 and r 7 of O 54 and O 54B are obscure but the short fact is that it does not and it would be beyond a legitimate approach to the reading of the Rules to proceed as if it did".
The Court also considered the nature of notices of objection to competency and particularly the contention that "a notice of objection to competency is a species of application by which proceedings may be dismissed". While Perram J ultimately dismissed Mr Yao's application on other grounds, he found that the notice of objection to competency was "not a device by which an application to dismiss proceedings may be pursued" and that the notice was "merely a document securing the respondent's right to costs".
Implications
The decision is interesting because it clarifies the way in which the Federal Court will approach notices of objection to competency. The decision departs from previous Federal Court practice which had allowed the filing of such notices in appeals under s 44 of the AAT Act (Alexakis v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1878; Burgess v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 861). Furthermore, Perram J clearly sets out the purpose and practical value of notices of objection to competency as vehicles for providing notice and securing costs rather than as a substantive mechanism for dismissing applications based on competency.
The implications of Yao for administrative law litigation are twofold. First, the decision highlights that respondents to applications under the ADJR Act and the Migration Act will only be able to rely on notices of objection to competency as a procedural mechanism for securing costs where proceedings are dismissed for want of jurisdiction. If the respondent seeks to dismiss the proceedings on the basis of competency, they will need to file a specific application for judgment to dismiss or stay the proceedings within 14 days under O 54 r 7 or O 54B r 6. This will require respondents to make a choice within 14 days of the initial application as to how to proceed.
Second, it highlights that this choice is not open to respondents in AAT appeals. The Rules provide for neither the filing of a notice of objection to competency nor an application to dismiss or stay the proceedings. If a respondent wishes to dismiss proceedings brought under s 44 of the AAT Act, they will instead need to rely on the court's general power under s 31A of the Federal Court of Australia Act 1976 (Cth) to dismiss a proceeding lacking reasonable prospects of success.
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