Klewer v National Disability Insurance Agency [2020] FCA 161

FEDERAL COURT OF AUSTRALIA

Klewer v National Disability Insurance Agency [2020] FCA 161 Appeal from: Klewer and National Disability Insurance Agency [2019] AATA 4974

File number: NSD 2077 of 2019

Judge: PERRAM J

Date of judgment: 21 February 2020

Catchwords: ADMINISTRATIVE LAW – appeal from order of Administrative Appeals Tribunal that matter be held in abeyance pending appointment of litigation representative – where Respondent filed notice of objection to competency of appeal – whether order of Tribunal a 'decision' within meaning of Administrative Appeals Tribunal Act 1975 (Cth) s 44 – consideration of principle in Director-General of Social Services v Chaney [1980] FCA 108; 47 ALR 80 PRACTICE AND PROCEDURE – where Tribunal found it has implied power to appoint litigation representative under its general legislative power to determine procedure – where no specific legislative power exists – where real question of correctness of Tribunal's conclusion – consideration of alternative avenues of challenge to Tribunal's conclusion

Legislation: Constitution s 109 Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33, 44 Judiciary Act 1903 (Cth) s 39B Federal Court Rules 2011 (Cth) r 9.61 Guardianship Act 1987 (NSW)

Cases cited: Attorney-General (NSW) v Klewer (No 3) [2010] NSWSC 9; 264 ALR 535 Director-General of Social Services v Chaney [1980] FCA 108; 47 FLR 80 Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 Grassby v The Queen [1989] HCA 45; 168 CLR 1 Herald & Weekly Times Ltd v Medical Practitioners Board (Vic) [1999] 1 VR 267 Kiefel v State of Victoria [2014] FCA 604 Klewer v Attorney-General (NSW) [2010] NSWCA 219 Palmer v Clarke (1989) 19 NSWLR 158 Parsons v Martin (1984) 5 FCR 235