Federal Court. Does s 41(2) of the AAT Act authorise the making of an order after the AAT has made its decision? Is the subject of s 43(5C) the operation or implementation of the AAT's decision, instead of the decision under review by the AAT? Can it be said that "the power under s 44A(2)..., to make an order staying or otherwise affecting the operation or implementation of a decision the subject of an appeal to [FCA], should be construed so that it is [not] limited to a power that has prospective effect only", at least in circumstances where an "applicant has made a claim for final relief that the Tribunal’s decision be set aside ab initio"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Does s 41(2) of the AAT Act, which authorises the AAT to order the stay of a decision under review, authorise the making of an order after the Tribunal has made its decision?
Question 2: Subsection 43(5C) of the AAT Act provides that, if AAT has made an order under s 41(2) which was in force immediately before its decision, then, unless AAT, FCA or FCCA otherwise orders, the operation or implementation of the AAT's decision is stayed. Is the subject of s 43(5C) the operation or implementation of the AAT's decision, instead of the decision under review?
Question 3: Can it be said that "the power under s 44A(2) of the AAT Act, to make an order staying or otherwise affecting the operation or implementation of a decision the subject of an appeal to this Court, should be construed so that it is [not] limited to a power that has prospective effect only", at least in circumstances where an "applicant has made a claim for final relief that the Tribunal’s decision be set aside ab initio"?
The FCA answered those questions as follows:
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