Review of Decisions Operational Guideline - Appeals to the Federal Court on a question of law

7. Appeals to the Federal Court on a question of law

A person who is not satisfied with an external review can appeal the AAT's decision to the Federal Court on a question of law (external)  (section 44(1) AAT Act).

The NDIA can also appeal to the Federal Court if dissatisfied with a decision of the AAT due to a question of law.

This type of review is limited in that the Federal Court cannot reconsider the merits of an AAT decision. Rather, the Federal Court is confined to hearing appeals on a question of law. The Federal Court provides information on its website (external) , regarding appeals from a decision of the AAT.

Persons considering appealing a decision of the AAT on a question of law are encouraged to seek independent legal advice before proceeding.

7.1 What is a question of law?

A question of law may include, for example, whether:

  • the AAT denied a person procedural fairness;
  • the AAT incorrectly interpreted or applied the NDIS Act;
  • the AAT applied or identified the correct test; or
  • there was any evidence to support a finding of fact made by the AAT.

See also the distinction between questions of fact and questions of law in section 44 Appeals to the Federal Court (external)  located on the Federal Court's website.

7.2 What is the time limit for appealing to the Federal Court?

An appeal must be lodged within 28 days of receiving notice of the AAT's external review decision, or within such further time allowed by the Federal Court (section 44(2A) AAT Act).

7.3 Who are the parties to the court proceedings?

The parties to the Federal Court proceedings are the people who were the parties to the AAT proceedings during the external review.

7.4 What orders can the court make?

When deciding an appeal the Federal Court can make any order it thinks appropriate (section 44(4) AAT Act).

This may include orders:

  • affirming the decision of the AAT (meaning the decision is not changed);
  • setting aside the decision of the AAT;
  • directing the case back to the AAT for a re-hearing; or
  • dismissing an appeal if it is satisfied that the proceeding is frivolous or vexatious.

7.5 What happens to the AAT decision whilst an appeal is being conducted?

A decision made by the AAT continues to have effect from the time it is made and is not affected because a person appeals that decision.

However, a person may seek an order from the Federal Court (i.e. a stay order) suspending the operation of the AAT's decision. The stay order may or may not be granted.

This page current as of
18 July 2019