Di Paolo v Secretary, Department of Social Services [2024] FCA 1313

Federal Court of Australia Di Paolo v Secretary, Department of Social Services [2024] FCA 1313 File number(s): VID 1113 of 2023

Judgment of: BUTTON J

Date of judgment: 15 November 2024

Catchwords: ADMINISTRATIVE LAW – appeal from decision of the Administrative Appeals Tribunal (Tribunal) setting aside decision of the Tribunal's Social Services and Child Support Division regarding the Applicant's social security entitlements – whether Tribunal erred in relation to the standard of proof – whether Tribunal erred in its application of the evidential onus of proof – whether Tribunal misunderstood or misapplied s 41 of the Trustee Act 1958 (Vic) – whether Tribunal failed to perform its irreducible jurisdictional task or afford the Applicant procedural fairness – whether Tribunal acted unreasonably or irrationally – whether Applicant failed to comply with s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) – where appeal commenced under s 44 of the AAT Act to proceed under the Administrative Review Tribunal Act 2024 (Cth) – appeal dismissed PRACTICE AND PROCEDURE – Application for an extension of time to file cross-appeal from the decision of the Tribunal – where no adequate explanation provided for the delay – where merit of proposed cross-appeal unclear – application dismissed

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Legislation: Administrative Review Tribunal Act 2024 (Cth) Social Security Act 1991 (Cth) Federal Court Rules 2011 (Cth) Trustee Act 1958 (Vic) Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 Briginshaw v Briginshaw (1938) 60 CLR 336 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598; 58 FLR 407 Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 East v Repatriation Commission (1987) 16 FCR 517; [1987] FCA 24 Freeman v Military Rehabilitation and Compensation Commission [2018] FCA 394 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Jones v Dunkel (1959) 101 CLR 298 Kamal v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 106; [2023] FCAFC 159 Cases cited: Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 200 KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 15; [2022] FCAFC 111 Leach v Comcare (2021) 285 FCR 326; [2021] FCAFC 134 McDonald v Repatriation Commission (1984) 1 FCR 354; [1984] FCA 59 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Parr v Commissioner of Taxation [2022] FCA 67 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 Prygodicz v Commonwealth (No 2) [2021] FCA 634 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 Tarrant v Australian Securities and Investments Commission (2015) 317 ALR 328; [2015] FCAFC 8