FEDERAL COURT OF AUSTRALIA

LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by Gilmour J on 6 October 2011 be set aside and the following orders made in their place:

(i)     the application for an order of review of the decision of the first respondent made on 30 July 2010 (the decision) be allowed;

(ii)     the decision be set aside;

(iii)    the matter to which the decision relates be referred for further consideration by the first respondent;

(iv)     the second respondent pay the applicants’ costs of and incidental to the application for an order of review, as agreed or taxed.

3.    The second respondent pay the appellants’ costs of the appeal, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This appeal is from orders made by the primary judge on 6 October 2011 dismissing with costs an application dated 15 July 2011. That application was for an order of review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 30 July 2010 dismissing, under s 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), a number of applications.

2    Section 42A(5)(b) of the AAT Act provides:

(5)    If an applicant for a review of a decision fails within a reasonable time:

(a)    …; or

(b)  to comply with a direction by the Tribunal in relation to the application;

the Tribunal may dismiss the application without proceeding to review the decision.

3    The notice of appeal to the Full Court contained only one ground, as follows:

The primary judge erred in finding that the First Respondent [the Tribunal] did not improperly exercise its power conferred by s.42A(5) of the Administrative Appeals Tribunal Act 1975 by reason of failing to take into account a relevant consideration, namely the responsive content of the Affidavit of HB Schokker sworn 21 June 2010.

Additional grounds were argued before the primary judge, the major ground being an unsuccessful allegation of Wednesbury unreasonableness: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

4    The appellant companies sought orders setting aside the decision of the Tribunal and the reinstatement of their applications in the Tribunal. We will refer to those companies as the appellants, although they were applicants before the Tribunal and before the primary judge.

5    Although the appeal raises a short and orthodox question, the circumstances in which that question arises are, in our experience, unique. The reasons of the Tribunal extend to 59 paragraphs and, with the exception of a small number of words, phrases and sentences, were taken verbatim and without attribution from the written submissions filed in the Tribunal on behalf of the Commissioner. Approximately 95% of the paragraphs of the reasons were so taken from the Commissioner’s written submissions filed in the Tribunal before the hearing in the Tribunal on 24 June 2010 and a further three or four paragraphs of the Tribunal’s reasons were taken from the Commissioner’s written reply, dated 14 July 2010, to the written submissions of the appellants before the Tribunal. Of themselves, these circumstances would give rise to a serious concern that the Tribunal had failed to bring its own mind to bear on the issues before it and thus that it had constructively failed to exercise its jurisdiction. That jurisdiction in the present circumstances would include whether or not to exercise the discretion conferred on the Tribunal by s 42A(5)(b) of the AAT Act to dismiss the applications without proceeding to review the Commissioner’s decisions. The position in the present case is not, however, left at that level of generality because of an additional fact. Thus we do not need to decide and do not decide whether or not there has been a constructive failure to exercise jurisdiction.

6    That additional fact is that the extensive copying, without attribution, of the Commissioner’s written submissions filed before the hearing in the Tribunal did not extend to the only paragraphs of those submissions which considered the content of the affidavit of Mr HB Schokker sworn 21 June 2010 (the Schokker affidavit). As explained in the Commissioner’s further written submissions filed for the purposes of this appeal on 23 May 2012, in the circumstances we set out in [24] below, it was only paragraphs 70 and 71 of the Commissioner’s written submissions filed in the Tribunal on 23 June 2010 which referred to the Schokker affidavit and the preceding 69 paragraphs did not so refer and were not amended to deal with the substance of what was then the very recent Schokker affidavit. Thus the great bulk of the Commissioner’s submissions did not take into account the contents of the Schokker affidavit but this is what the Tribunal reproduced. The Tribunal did not reproduce paragraphs 70 and 71.

Background

The Tribunal

7    By its decision the Tribunal dismissed for non-compliance with directions made on 26 August 2009, Applications for Review of the disallowance of objections to various assessments and notices of penalty issued by the Commissioner to the appellants.

8    The Tribunal made directions on 26 August 2009 in the same terms in relation to each of the applications (“the Relevant Directions”). The Relevant Directions were varied by the Tribunal on 20 November 2009 by extending the time for filing. The Relevant Directions related to the manner in which the appellants’ voluminous evidence, including witness statements, should be (re)filed.

9   The appellants filed 77 lever arch files of documents in response to the Relevant Directions in December 2009 and January 2010 (“the Relevant Documents”). At the same time and also in response to the Relevant Directions the appellants filed two witness statements in addition to those previously filed.

10   At a Directions Hearing on 19 March 2010, the Commissioner asked the Tribunal to set the matter down for a Dismissal Hearing on the grounds that the appellants had failed to comply with the Relevant Directions. The Tribunal then made directions for filing of affidavits by the parties prior to the Dismissal Hearing.

11    As set out in the Commissioner’s chronology filed on this appeal and agreed to by the appellants, on 19 March 2010 the Tribunal made directions that the Commissioner file and serve by 12 April 2010 affidavits setting out the grounds for the Commissioner seeking dismissal; the appellants file any affidavits in reply by 3 May 2010; and the applications then be listed for a Dismissal Hearing.

12    On 12 April 2010 the Commissioner filed and served affidavits of Ms Coates and Mr Mancini.

13    On 3 May 2010 the appellants filed and served a “Master Index” and the witness statement of Mr Schokker.

14    On 11 May 2010 the Tribunal listed the dismissal hearing for 24 June 2010.

15    On 14 May 2010 the appellants filed and served an affidavit of Mr Schokker.

16    On 31 May 2010 the Commissioner filed and served an affidavit of Mr Mancini in response to Mr Schokker’s witness statement of 3 May 2010.

17    On 21 June 2010 the appellants filed and served the Schokker affidavit.

18    On 23 June 2010 the Commissioner filed and served a written outline of submissions.

19    On 24 June 2010 there was a hearing in the Tribunal of the Commissioner’s dismissal application. At that hearing counsel for the Commissioner made extensive oral submissions about the substance of the Schokker affidavit. The legal representative of the appellants made some reference to that affidavit but sought and was granted leave to deal in writing with the Commissioner’s submissions. The Tribunal made directions that the appellants file and serve those submissions by 8 July 2010 and the Commissioner file and serve closing submissions by 15 July 2010. That timetable was followed by each side.

20    On 30 July 2010 the Tribunal published its decision and reasons for decision.

The judgment of the primary judge

21    The primary judge set out the grounds for review. As we have noted, a single ground only remains: failing to take into account a relevant consideration, namely the responsive content of the Schokker affidavit.

22    The primary judge then set out the relevant law, including reference to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 (Rezaei); Singh v Minister for Immigration and Multicultural Affairs [2006] FCA 1113 (Singh) at [22]-[34]; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [82]. There does not appear to have been any controversy before the primary judge as to these matters and there was no such controversy before the Full Court.

23    The primary judge considered the issue of the Schokker affidavit as follows:    

[25]    The applicants assert that the Tribunal failed to take account of the affidavit     of Bernard Schokker sworn 21 June 2010 (the Schokker affidavit).

[26]    In the Decision the Tribunal does not refer at all to this affidavit. It was filed in response to the affidavit of Sandro Gianni Mancini sworn on 31 May 2010 (Mancini Affidavit). Mr Mancini is an Audit Leader/Senior Auditor employed by the Commissioner in the Complex Audit area of the Compliance Section in the Goods and Services Tax Business line of the Australian Taxation Office. His affidavit including annexures comprises 161 pages. The applicants submit that the structure and text of the Reasons for Decision indicates the Tribunal did not take the Schokker Affidavit into account. They refer, in particular, to the following paragraphs in the Reasons for Decision: paragraphs 6 (lists only affidavits filed by the Commissioner); 9 (chronology does not mention the Schokker Affidavit, ending rather with the Mancini Affidavit); 25 (suggesting applicants have failed to challenge specific points as to the elements of non-compliance and failed to attempt any point by point response but cf Schokker Affidavit); 37 (granted opportunity to provide affidavit evidence); 48; and 50-55.

[27]    This they say is the position despite:

(a)    the Tribunal referring to and relying on the Mancini Affidavit in concluding that there was ‘continuing non-compliance with the Relevant Directions’;

(b)    the relevance of evidence challenging the specific allegations of non-compliance and in opposition to the application to dismiss, as referred to by the Tribunal itself; and

(c)    the Schokker Affidavit being before the Tribunal at the time of the hearing.

[28]    The Commissioner submits that these matters relied upon by the applicants do not support their contentions that “the structure and text of the Tribunal’s decision” indicates that the Tribunal did not take the Schokker affidavit into account because:

1.    para 6 of the Tribunal’s Reasons for Decision is merely listing the sources of the relevant Chronology;

2.    para 25 of the Tribunal’s Reasons for Decision refers only to the applicants’ submissions, not to the applicants' evidence. What it says about the applicants' submissions is entirely accurate;

3.    para 37 of the Tribunal’s Reasons for Decision is no more than a statement of the procedural fairness which had been afforded to the applicants by the Tribunal;

4.    para 48 of the Tribunal’s Reasons for Decision has nothing to do with the Schokker affidavit;

5.    paras 50-55 of the Tribunal’s Reasons for Decision do no more than indicate that the Tribunal accepted (as it was entitled to do so) Mr Mancini’s evidence in concluding that what the applicants had filed did not comply with the Tribunal’s directions. In addition to the affidavit evidence the Tribunal also had access to the filed document (sic) themselves in reaching that conclusion;

6.    in particular, paras 53-55 discuss the applicants’ failure to file a Master Index which complied with the Relevant Directions. The Schokker affidavit does not address the issues of non-compliance discussed in those paragraphs.

[29]    The absence of any reference to the Schokker affidavit in the Reasons for Decision in my view does not mean that the Tribunal did not take it into account.

[30]    The Commissioner makes the following submissions which I accept. The Tribunal was referred to the Schokker affidavit in both the oral and written submissions of the parties. For example, the Schokker affidavit was discussed in paras 70 and 71 of the Commissioner’s written submissions dated 23 June 2010 and the Tribunal was referred to the Schokker affidavit by counsel in oral argument when numerous submissions were made in respect of the affidavit. At paras [21]-[27] of the Reasons for Decision the Tribunal summarises the contentions made by the applicants in opposition to dismissal by reference to the applicants’ written submissions. In paras [22]-[25] of the Tribunal’s Reasons specific reference is made to the assertions in the applicants’ submissions before the Tribunal that the applicants had complied with the Relevant Directions. The applicants’ submissions before the Tribunal (in para 3) refer to the Schokker affidavit as part of the basis to support their contention that they had complied with the Relevant Directions.

[31]    The Schokker affidavit is descriptive of the documents to which it refers. It is assertive to the extent that Mr Schokker states at [9] that “the applicants have filed the requested documents in accordance with the directions of the Tribunal.”

[32]    There is no obligation on the Tribunal to mention or discuss in its Reasons for Decision every piece of evidence which is before it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46].

[33]     The Tribunal, as author of the Relevant Directions, was well able to assert (sic) for itself whether these directions had been complied with by the applicants. It found that there had not been due compliance.

The Full Court hearing

24    Some days before this appeal came on for hearing, the Court drew to the attention of the parties the apparent extent of the verbatim copying without attribution of the Commissioner’s submissions by the Tribunal and the apparent history of the drafting of those submissions. Neither of these matters had been addressed in the written submissions of the parties filed for the purposes of the appeal to the Full Court. One of the matters on which the Court sought the assistance of the parties was how it was that submissions came to be put to the primary judge in the form recorded at [26]-[30] of his Honour’s judgment (see above).

25    The Commissioner’s response at the Full Court hearing, in relation to “the structure and text of the Tribunal’s decision” referred to by the primary judge at [28] was that that was not the Commissioner’s characterisation but the appellants’ submission and what his Honour was setting out at [28] was the Commissioner’s response to those submissions. It was purely a response to the submission that the appellants had put up: the appellants never said that the Tribunal did not take the Schokker affidavit into account because the Tribunal’s reasons were copied.

26    As will appear more fully below, in our opinion this was not an adequate or appropriate response by the Commissioner.

The hearing before the primary judge

27    We remain gravely concerned that the very unusual circumstances we have outlined above were not sufficiently drawn to the attention of the primary judge. It appears there were outlines of submissions to the primary judge which this Court does not have. However a copy of the transcript of the hearing before the primary judge was provided to the Court. Although reference was there made by counsel for the appellants to an example of the Tribunal’s reasons, to the effect that as an example a paragraph seemed to have come almost directly out of the Commissioner’s submissions, it was also put that the Commissioner’s submissions came before and did not refer to the Schokker affidavit. These latter propositions, as we have explained, are not strictly accurate and the appellants’ submissions before the primary judge on this issue seem to have gone off on that point.

28    Indeed this was one relevant submission put on behalf of the Commissioner when he submitted that his written submissions did refer to the Schokker affidavit in paragraphs 70 and 71. But at that point the Commissioner’s submissions did not say that the preceding 69 paragraphs of his submissions to the Tribunal which were largely copied by the Tribunal were written without taking into account the Schokker affidavit.

29    Again, when the primary judge asked whether the chronology at [9] of the Tribunal’s reasons was lifted from somewhere, counsel for the appellants said she had not been able to check that or check it directly. No doubt however the submission was clearly put that the Tribunal had “skipped over” the Schokker affidavit. Later, in the course of the Wednesbury unreasonableness submission counsel for the appellants said that [51] of the Tribunal’s reasons “seems to be drawn from Mr Mancini’s affidavit”.

30    On behalf of the Commissioner it was put to the primary judge that one question was whether the Tribunal was bound to have regard to the content of the Schokker affidavit because it was largely a statement of submission in response to Mr Mancini’s affidavit, but the main argument seems to have been that the Tribunal’s decision rested as a matter of the merits on an overarching failure to comply with the directions. The primary judge was then taken to [54] of the Tribunal’s reasons without any indication to him that that paragraph was copied from the Commissioner’s submissions, apart from the substitution of the words “the respondent and Tribunal are” for the words “the respondent is”.

31    The submission was then made on behalf of the Commissioner to the primary judge that it was clear from the Tribunal’s reasons that the Tribunal had had regard to the Schokker affidavit. This submission was advanced by reference to [21] to [27] of the reasons of the Tribunal. Counsel for the Commissioner took the primary judge to [22] and to [25] and, having read out [25], submitted that the Tribunal was absolutely right about that and the Tribunal had in mind clearly paragraph 3 of the appellants’ written submissions. Because, so it was submitted to the primary judge, [25] of the reasons of the Tribunal referred in the last sentence to paragraph 3 of the appellants’ submissions below and those submissions contained a reference to the Schokker affidavit it was therefore clear from that fact alone that the Tribunal did have regard to the Schokker affidavit. However the Commissioner did not tell the primary judge that [25] of the reasons of the Tribunal was taken word for word and without attribution from the Commissioner’s reply submissions to the Tribunal at paragraph 2.

32    Similarly, the primary judge was taken to [48] of the reasons of the Tribunal without being told that that paragraph was copied verbatim from paragraph 45 of the Commissioner’s submissions.

33    Again counsel for the Commissioner took the primary judge “to the paragraphs in [the Tribunal member’s] reasoning in which he explains why he takes the view that the documents are the way that they had been presented and the files do not comply with the relevant directions”. Reference was then made to [49] of the Tribunal’s reasons without making clear to the primary judge that that paragraph was copied verbatim from paragraph 47 of the Commissioner’s submissions.

34    Next the primary judge was taken to [50] of the Tribunal’s reasons (“then paragraph 50 is important”). Paragraph [50] of the Tribunal’s reasons was read out to the primary judge but his Honour was not told of its provenance. Suffice to say that it was copied verbatim from paragraph 48 of the Commission’s submissions.

35    The primary judge was taken to [51.1] through to [51.7] of the Tribunal’s reasons. Paragraphs [51.1] to [51.3] were read to the primary judge but the primary judge was not told that they were copied verbatim from paragraph 49 of the Commissioner’s submissions. It is true to say, as was submitted, that these paragraphs are related to paragraphs 13 to 23 of Mr Mancini’s affidavit but it is also true to say that the language comes directly from the Commissioner’s submissions. We set these paragraphs out at [66] below.

36    In submissions to the primary judge, [52]-[54] of the Tribunal’s reasons were then read out. In [52] the sentence, “The Tribunal finds that the Relevant Documents do not comply with the Relevant Directions”, is not found in the Commissioner’s submissions to the Tribunal. Paragraphs [53] and [54] are taken from paragraphs 50 and 51 of the Commissioner’s submissions verbatim apart from the addition of the words “and the Tribunal are”.

37    Next it was submitted to the primary judge that the Tribunal gave an illustration at [55] of the reasons beginning “This is best illustrated by way of an example … ”. But the primary judge was not told that that paragraph was copied from paragraph 52 of the Commissioner’s submissions. The balance of [55] of the reasons of the Tribunal was read out. As we set out at [66] below, they also were copied from paragraph 52 of the submissions of the Commissioner.

38    All of this was presented as the Tribunal member’s own thought processes, except where there was a reference back to the Coates or Mancini affidavits.

39    We have given examples of the way the case was conducted before the primary judge. We conclude that neither the extent of the unattributed copying nor the fact that what was copied from the Commissioner’s submissions did not refer to and was not updated to take account of the Schokker affidavit was drawn to the attention of the primary judge.

40    In our opinion if the appellants failed fully to explain the position to the primary judge then the Commissioner should have done so to make sure the primary judge understood the full circumstances. Although the Commissioner said in his further written submissions to the Full Court that he had “always proceeded on the basis that the similarity in the Tribunal’s Reasons indicated that the Senior Member had adopted the relevant contentions of the Commissioner”, that basis of proceeding was not made clear to the primary judge and, if it had been, would have been sufficient only if it led to further explanation as to the extent of the copying and the history of what was copied. Neither was the extent of the copying or the history of what was copied apparent to the Full Court from the opening written submissions of the parties.

41    We continue to have difficulty in understanding why counsel for the parties did not fully explain these matters to the primary judge. Counsel for the appellants had not appeared in the matter before the Tribunal so that may provide some explanation. But counsel for the Commissioner had so appeared. In addition, the Commissioner was or should have been acting as a model litigant.

42    Speaking generally and without reflecting on counsel who appeared before us, being a model litigant requires the Commonwealth and its agencies, as parties to litigation, to act with complete propriety, fairly and in accordance with the highest professional standards. This obligation may require more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations: see notes 2 and 3 to clause 2 of Appendix B to the Legal Services Directions 2005 made under section 55ZF of the Judiciary Act 1903 (Cth)). That statutory instrument reflects an expectation the courts in our system of justice have of the executive government and its emanations but this is no new subject owing its origin just to that statutory instrument. Instead, as Melbourne Steamship Limited v Moorhead (1912) 15 CLR 333 at 342 reveals, that expectation, even a century ago, was of long standing. To bring the matter up to the present we note that in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 286 ALR 501, Heydon J said ASIC accepted that there was, in the words of Griffith CJ in Moorhead, an “old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects”. Its powers are exercised for the public good. It has no legitimate private interest in the performance of its functions. And often it is larger and has access to greater resources than private litigants. Hence it must act as a moral exemplar: see [239] per Heydon J. ASIC accepted what was said on these points in P & C Cantarella Pty Ltd v Egg Marketing Board for New South Wales [1973] 2 NSWLR 366 at 383; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 197; and  Scott v Handley (1999) 58 ALD 373; [1999] FCA 404 at [43]–[45]. In our opinion, counsel representing the executive government must pay scrupulous attention to what the discharge of that obligation requires, especially where legal representatives who are independent of the agency are not involved in the litigation.

The degree of unattributed copying

43    Lest it be thought that we are making a quantitative rather than a qualitative assessment of the extent of the copying, further detail of the extent and nature of that unattributed copying follows. We of course accept that reviewing courts must avoid over-zealous scrutiny of an administrator’s reasons: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 at 272 (Wu Shan Liang) but given the source of the Tribunal’s reasons we consider that greater scrutiny than usual is warranted.

44    The first three paragraphs of the reasons of the Tribunal followed closely paragraphs 1 to 4 of the Commissioner’s written submissions apart from paragraph 3 which contained a reference to a letter from the Commissioner to the Tribunal requesting the directions hearing referred to in paragraph 4. We would categorise this material as non-contentious and no particular issue arises from it apart from the general issue of unattributed copying from the submissions of a party.

45    Paragraphs [4] and [5] of the Tribunal’s reasons were almost identical to paragraphs 5 and 6 of the Commissioner’s submissions but we make the same comment. The Tribunal omitted some detail which showed that at the relevant time, July 2007, the amounts claimed by the Commissioner from the two companies for both GST and income tax and administrative penalties amounted to some $22.25 million. Also the Tribunal omits paragraph 7 of the Commissioner’s submissions which referred to a witness statement filed on 1 May 2008 by Allen Caratti for the companies. The substance of the Commissioner’s paragraph 8 was included in the Tribunal’s [4].

46    Paragraph [6] of the reasons of the Tribunal was the same as paragraph 9 of the Commissioner’s submissions although the Tribunal added the sentence “the relevant chronology is set out in some detail in affidavits filed by the respondent in support of the dismissal applications being … ”. Paragraph [7] of the Tribunal’s reasons followed paragraph 10 of the Commissioner’s submission although the Tribunal substituted the words “The Tribunal has had regard particularly to Annexure 1” for the words “I also refer particularly to Annexure 1”.

47    Paragraphs [8] and [9] of the reasons of the Tribunal, which cover nine pages, are almost identical to paragraphs 11 and 12 of the Commissioner’s submissions. We refer in more detail to these paragraphs below at [74]-[75]. The Tribunal omits to reproduce some seven subparagraphs of the chronology of 49 subparagraphs dealing with communications between the parties and the detail of certain events in the Tribunal. As we have indicated, in the context of the issues in this Court, [8] and [9] of the reasons of the Tribunal, particularly the chronology of the filing of the applicants’ evidence, are of great significance.

48    Paragraphs [10] to [16] of the reasons of the Tribunal are identical to paragraphs 13 to 19 of the Commissioner’s submissions. Because it was not contentious no particular issue arises apart from the general issue of unattributed verbatim copying from the submissions of a party.

49    Under the heading “Contentions of the Respondent in Support of Dismissal”, paragraphs [17] to [20] of the reasons of the Tribunal reproduce paragraphs 20 to 23 of the Commissioner’s submissions. Paragraph [17] adds the words “(see below as to the details of the failure to comply)” and thus oddly merges the Commissioner’s contentions with the Tribunal’s reasons. Paragraph [20] of the Tribunal’s reasons adds the words “on the basis of the documents which have been filed by the applicants” which again oddly adds to the Commissioner’s contentions.

50    Under the heading “Applicants’ Contentions” the Tribunal then sets out at [21] to [27] material which was not taken from the Commissioner’s submissions dated 23 June 2010. However paragraphs [21] and [25]-[27] are substantially identical to paragraphs 2, 3 and 4 of the Commissioner’s written reply submissions to the Tribunal dated 14 July 2010. Because this material was copied we are not prepared to infer that the Tribunal did take into account the Schokker affidavit by virtue only of the fact that paragraph 4 of the Commissioner’s reply submissions referred back to paragraphs 68 to 79 of the Commissioner’s 23 June 2010 submissions which in turn included a reference to the Schokker affidavit amongst those paragraphs 68 to 79.

51    Similarly, we are not prepared to infer from the reference to the appellants’ written submissions in [22]-[24] of the Tribunal’s reasons that the Tribunal read and considered the Schokker affidavit to which the appellants’ written submissions made a reference in paragraph 3. We would however infer that the Tribunal read the appellants’ written outline of submissions of 27 paragraphs filed in the Tribunal on 8 July 2010. This is because [22] of the reasons of the Tribunal quoted from paragraph 4 of those submissions. Further, [24] of the reasons of the Tribunal had its source in paragraph 11 of those submissions.

52    In our view this bare reference to the Schokker affidavit by reference to the appellants’ written submissions does not provide an adequate foundation on which to conclude that the Schokker affidavit was taken into account. This is because the submissions referred to but did not set out the content of the Schokker affidavit. Thus in our view it is special pleading of an unattractive kind for the Commissioner to have submitted that [25] of the reasons of the Tribunal did not indicate that the Schokker affidavit was not taken into account by the Tribunal, because [25] refers only to the appellants’ submissions not to the appellants’ evidence, and at the same time to submit that the Tribunal must have taken into account the Schokker affidavit because it was referred to in the appellants’ submissions.

53    Thus, contrary to the conclusion of the primary judge at [30] we would not accept that [25] of the reasons of the Tribunal show that the Tribunal did take into account the responsive content of the Schokker affidavit. Further, as we have already said, the primary judge was not apparently told but it is the fact that [25] of the reasons of the Tribunal was copied from the reply submissions of the Commissioner to the Tribunal.

54    We come now to the heart of the matter at [28] and following of the reasons of the Tribunal under the heading “Tribunal’s Findings”.

55    Paragraphs [28]-[36] reproduce paragraphs 24 to 32 of the Commissioner’s written submissions of 23 June 2010 although a sentence is omitted from paragraph 25 and another sentence omitted from paragraph 29, and a few words added to paragraphs 26 and 28. Paragraph [36] omits the quote provided in the written submission but mistakenly leaves the colon. However this material reproduces a general discussion of the decided cases and was not controversial. Again, because it was not contentious no particular issue arises from this apart from the general issue of unattributed verbatim copying from the submissions of a party.

56    Paragraph [37] contained a finding which, subject to what we are about to say, was copied from paragraph 33 of the Commissioner’s submission. First, the words “the Tribunal has followed” were amended to read “the Tribunal is of the view that”. Second, the words “more than” were inserted before the reference to “a reasonable time”. Third, “including numerous extensions of time” was added after “a reasonable time”. Fourth, the word “also” was added by the Tribunal. This was a significant paragraph of the reasons of the Tribunal which we discuss more fully at [76] below in terms of the changed meaning of the reference to “opportunity to provide evidence in affidavit form”.

57    Paragraph [38] of the reasons of the Tribunal reproduced a small part of paragraph 30 of the Commissioner’s submissions. Paragraph 35 of the Commissioner’s submissions was not reproduced. It referred to the dismissal of proceedings which had the consequence that there was then no impediment to the Commissioner seeking to recover any outstanding tax in any court of competent jurisdiction, but we do not find this difference to be material as the same concept is referred to in the immediately following paragraph.

58    Paragraph [39] of the reasons of the Tribunal reproduced paragraph 36 of the Commission’s submissions but added the words “The Tribunal is mindful that”. The passage reproduced from Guse v Comcare (1997) 49 ALD 288 at 291 was also shortened by the Tribunal to omit the reference to the genuineness of the claim.

59    Paragraph [40] of the reasons of the Tribunal was modelled on, but different from, paragraph 37 of the Commissioner’s submissions. Side by side they read as follows:

60    Under the heading “the Relevant Directions”, [41] to [48] of the reasons of the Tribunal followed closely paragraphs 38 to 45 of the Commissioner's submissions. Paragraph 46 of the Commissioner’s submissions was omitted. The only changes of any significance were in [41], [44], [45] and [47] of the reasons of the Tribunal.

61    As to [41] it and its source were as follows:

62    In [44] “properly” was inserted in the middle of “to review”.

63    In [45] the words “could be interpreted to demonstrate” were omitted and the words “seems to show” substituted. Further, the phrase “is not clear” was omitted and the words “has not been explained and the effect thereof is to further confuse an already confused situation” substituted.

64    In [47] the words “in December 2009 and January 2010 in purported compliance with the Relevant Directions” were added.

65    Paragraph [48] of the reasons of the Tribunal, which was the same as paragraph 45 of the Commissioner’s submissions should be reproduced side-by-side with its source.

66    From the end of [48] to [55] of the Tribunal’s reasons, the Tribunal set out a review of the evidence. This material, including the heading, was copied without indicating its source from paragraphs 47-52 of the Commissioner’s submissions. We set out these paragraphs of the Tribunal’s reasons, with any changes made to the corresponding paragraphs of the Commissioner’s submissions, except changes from upper case to lower case, indicated in square brackets:

The Relevant Documents and the Relevant Witness Statements

49. At paragraphs 18-19 of her affidavit Ms Coates briefly particularises her view that the Relevant Documents were not filed in accordance with the Relevant Directions. At Annexure 7 to her affidavit is a letter dated 10 February 2010 from the respondent to the applicants’ solicitor which sets out in more detail the bases on which the respondent contends the Relevant Documents have not been filed in accordance with the Relevant Directions:

49.1.    there was no “Master Index” as required in the Tribunal’s directions which identified which witness statements would be relied on at the hearing;

49.2.    the applicants did not provide any information to the respondent about which documents would be relied on by which witnesses and in respect of which issue;

49.3.    the applicants did not advise whether all or some of the documents and witness statements previously filed with the Tribunal had been uplifted from the Tribunal;

49.4.    the documents were not numbered and the documents were not arranged in groups in accordance with the [Relevant] Directions;

50.    The affidavit of 31 May 2010 of Mr Mancini refers to and reviews the Schokker witness statement of 3 May 2010 in respect of the applications of both applicants. Mr Mancini further sets out [the basis for the respondent’s contention] that the applicants have not complied with the Relevant Directions. Mr Schokker purports to attach a “Master Index” at attachment HBS2 in the form required by the Tribunal and set out at paragraph 4 of the Relevant Directions. Paragraph 4(b) of the Relevant Directions requires each witness to identify from the list of documents required by paragraph 2(a) of the Directions the particular documents or groups of documents they will rely on by reference to the relevant document numbers. Paragraph 2(a) requires the documents relied on to be numbered, paginated, described and arranged in groups according to listed categories. The categories relate to the categories of claims made by the applicants in their objections/amended objections.

51.    At paragraphs 13-23 of his affidavit Mr Mancini particularises why [his view is that] HBS2 does not comply with the Relevant Directions requiring a Master Index:

51.1.    HBS2 purports to rely on annexures to witness statements which have been uplifted and not refiled;

51.2.    there is no list of documents and the documents filed are not numbered;

51.3.    the documents or groups of documents to be relied on by each witness are not identified, the list merely says all documents will be relied on by Mr Schokker;

51.4.    the documents are not filed in the groups specified in the Relevant Directions;

51.5.    the documents include duplicated and irrelevant material;

51.6.    the documents are not consistently in chronological order and not all are paginated;

51.7.    contrary to the assertions of Mr Schokker the documents are not arranged in the groups described in his 3 May witness statement (paragraph 41 Mancini affidavit.)

52.    [The Tribunal finds that the Relevant Documents do not comply with the Relevant Directions.]

53.    Mr Schokker’s affidavit sworn on 13 May and filed 14 May 2010 confirmed the contents of his witness statement of 3 May 2010 and annexed an identical annexure to HBS2 (the Schokker “Master Index”) as annexure HBS2A. The Schokker “Master Index” does not refer to any witness statement or affidavit of Mr Schokker after 21 January 2010. The effect is that applicants are saying that they do not intend to rely on any of these witness statements or affidavits at a substantive hearing.

54.    Despite the (re)filing of the applicants’ documents (for the third time) in December 2009/ January 2010 and the filing of the Schokker “Master Index” the respondent [and the Tribunal are] in no better position than the first time the documents were filed to know which documents will be relied on by each witness in each witness statement in relation to each issue.

55.    This is best illustrated by way of an example using the applicant LVR. A witness statement of Schokker on 23 December 2009 was filed in support of this application:

55.1.    paragraph 2(b) of the Relevant Directions requires the applicant to provide a Master Index which, in respect of each witness statement, lists every document or group of documents on which the witness intends to rely in respect of the claims in its amended objection relating to:

“Net amounts in Business Activity Statements amended objection:…LVR second paragraph - the applicant’s calculations of each item in each relevant BAS”.

55.2.    The Schokker “Master Index” lists the witness statement of Mr Schokker dated 23 December 2009 and states that in respect of “all paragraphs” of that witness statement Mr Schokker will rely on [“]all documents[”] in files 1-26, 29, and files 33-60 (which is the whole of every one of the 54 files of documents for LVR).

55.3.    The effect of this assertion in the Schokker “Master Index” is that in respect of that witness statement Mr Schokker will rely on all the filed documents in respect of each and every paragraph [contained in his statement. This is an unacceptable proposition].

67    In our opinion, if the Tribunal had taken into account the Schokker affidavit this was where reference to it would have been made. As the Schokker affidavit went to compliance with the Relevant Directions it should have been dealt with, one way or another, by the Tribunal. It is unnecessary to go into detail because the Tribunal did not. But material which could have been relevant to those parts of the affidavit of Mr Mancini set out by the Tribunal at [51] of its reasons would include paragraphs 8 to 10, 13, 14 and 32 of the Schokker affidavit. We do not mean to be exhaustive. We return to this aspect of the matter below.

68    Paragraph [56] of the Tribunal’s reasons was adapted from paragraph 54 of the Commissioner’s submissions.

Contrary to the submission of the Commissioner to us, we do not accept that this paragraph of the reasons of the Tribunal constituted an indication by the Tribunal that there had been an express copying or substantially verbatim adoption of the Commissioner's written submissions to the Tribunal.

69   The Tribunal then omitted paragraphs 55 to 60 of the Commissioner’s submissions. Paragraph [57] is almost identical to paragraph 61 of the Commissioner’s submissions:

70    The Tribunal then omitted paragraph 62 of the Commissioner’s submissions, dealing with the liabilities for each applicant as at 12 April 2010.

71    Under the heading “Procedural Fairness”, [58.1]-[58.3] of the Tribunal’s reasons reproduced paragraphs 63-65 of the Commissioner’s submissions.

72    The Tribunal’s reasons then omitted paragraphs 67 to 78 and 80 to 81 of the Commissioner’s submissions.

73   The final paragraph of the reasons of the Tribunal is to be compared to paragraph 79 of the Commissioner’s submissions as follows:

74    By reason of the copying, on some occasions the meaning of the words used has changed between their source, the Commissioner’s submissions, and the Tribunal’s reasons. For example, at [8] of the Tribunal’s reasons there was a reference to “and the most recent filed material”. Because this copied the Commissioner’s submissions, which at that point were not updated to refer to the Schokker affidavit, the Tribunal should not be taken to be referring at [8] to the Schokker affidavit. In the same paragraph it was said that this most recent filed material “is also referred to below”. Again, a change in meaning has occurred. This tends to show a lack of active intellectual process in the Tribunal’s decision-making.

75    Similarly, the meaning of the opening words of paragraph 12 of the Commissioner’s submissions “Listed below is a brief chronology of the filing of the Applicants’ evidence since the filing of the Applications in 2007 … ” followed by 49 sub-paragraphs taking events up to 2 June 2010 had a different meaning when six weeks later and after the filing of the Schokker affidavit, [9] of the Tribunal’s reasons began, “The following is a brief chronology of the filing of the applicants’ evidence since the filing of the applications in 2007 … ” followed by 40 sub-paragraphs also taking matters up to 2 June 2010. The former is understandable given that paragraph 12 was not revised to take into account the Schokker affidavit. The latter, in not referring to the Schokker affidavit, is incomplete and inaccurate. Again, this tends to show a lack of active intellectual process in the Tribunal’s decision-making.

76    Again, [37] of the reasons of the Tribunal copied paragraph 33 of the submissions of the Commissioner, which was not revised for the Schokker affidavit. In part [37] read:

The applicants have had every opportunity to remedy the non-compliance, they have been granted [more than] a reasonable time including numerous extensions of time to do so, and have [also] been granted an opportunity to provide evidence in affidavit form as to why the applications should not be dismissed.

The words in square brackets were those added by the Tribunal. But the reference to the opportunity to the “applicants” to provide evidence had a changed meaning. In the Commissioner’s submissions it did not refer to the Schokker affidavit but in the Tribunal’s reasons it should have so referred. Because of the provenance of the reasons of the Tribunal, in our view [37] of its reasons should not be construed as referring to the Schokker affidavit or its contents.

77    Paragraph [46] of the reasons of Tribunal shows the dangers of copying. What had been, at [43] of the Commissioner’s submissions, references to the number of witness statements became, in the Tribunal’s reasons, part of the paragraph numbering. The Commissioner’s paragraph read:

43.    Prior to the filing of the Relevant Documents, the Applicants had also filed:

43.1    7 witness statements of Hank Schokker and 2 witness statements of Daniel Romano their solicitor [listed at paragraph 4 Mancini affidavit of 31 May 2010];

43.2    2 witness statements of Allen Caratti [listed at attachment HBS2 to Schokker witness statement 3 May 2010].

The corresponding paragraph in the Tribunal’s reasons read:

46.    Prior to the filing of the Relevant Documents, the applicants had also filed:

46.1.1 witness statements of Hank Schokker and 2 witness statements of Daniel Romano their solicitor [listed at paragraph 4 Mancini affidavit of 31 May 2010];

46.1.2 witness statements of Allen Caratti [listed at attachment HBS2 to Schokker witness statement 3 May 2010].

78    In our opinion, if these matters had been drawn to the attention of the primary judge two things would have followed. First, submissions to the primary judge in the form to which we have referred would not have been put or, if put, sustained. Second, it would have been apparent to the primary judge, as it is to us, that the Tribunal had failed to take into account the substance of the Schokker affidavit.

79    It is not for this Court, and it was not for the primary judge, to make findings on the merits of whether there had been non-compliance with the directions, a failure to comply within a reasonable time, or on the matters going to discretion. It seems to us, with respect, that much of the argument before the primary judge was directed to the first of these issues. Perhaps this was because of the emphasis on Wednesbury unreasonableness.

80    We would reject the argument, which was not in terms renewed before us, that the Tribunal had dealt with the case on the overarching basis that there had been a failure to comply with the procedural intent of the directions which was to compel the appellants to identify each document in relation to each witness statement or each group of documents relevant to each live issue in the proceedings. That would have been an insufficient basis because it would not have included matters going to the discretion which, as we consider below at [122], was a mandatory relevant consideration.

Authorities

81    We were not taken to and we are not aware of any authority in this country dealing with very substantial and unattributed copying of a party’s submissions as the basis of the reasons of a tribunal. There are some decisions of superior courts in Australia but more particularly in North America which deal with the issue of such copying by judges and we shall refer briefly to them, noting that different considerations apply to evaluating the reasons of a court than apply to the reasons of a tribunal: see Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [53] and Wu Shan Liang (above).

Australian cases

82    Some of the Australian cases deal with template or standard paragraphs where a tribunal has copied some paragraphs from other documents, usually previous decisions of that tribunal. Litigants challenging such use have sought to put the matter of complaint into various categories of jurisdictional error, most frequently apparent bias or other denial of procedural fairness. However some of the cases refer to the question whether the tribunal had considered the matter for itself. A major distinguishing feature between those cases and the present case is that in each of those cases, with the exception of Huluba v Minister for Immigration & Anor (1995) 59 FCR 518, the first instance tribunal was dealing with a number of cases which raised the same or similar issues, that is, the same or similar claims about the same countries. Cases in this category are Lek v Minister for Immigration & Anor (1993) 43 FCR 100; Wu Shan Liang v Minister for Immigration [1994] FCA 926 (Wilcox J); and the Full Court decisions in Chu v Minister for Immigration & Anor (1997) 78 FCR 314, Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940, Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425, where Addo (above) was distinguished, and SZQHH v Minister for Immigration and Citizenship [2012] FCAFC 45; (2012) 200 FCR 223.

83    In Wu Shan Liang (above) Wilcox J had said

[52]     The summary I have set out demonstrates, I think, that none of the so-called "standard paragraphs" concerns assessment of the circumstances of individual applicants. Indeed, little of the adopted material contains expressions of personal opinion. In the cases where personal opinions are expressed, other delegates have chosen not to adopt the material. It is obvious that delegates felt free to choose whether or not to adopt the previously-prepared material. Where they did adopt it, they seem to have been ready to vary its basic form so as to make it more accurately reflect their own views. Despite the concern which the use of "standard paragraphs" should always evoke, I see no reason to doubt that the delegates who refused the subject applications ultimately expressed their own views in their own way.

We note that only a part of this judgment is reported at (1994) 48 FCR 294 and that part does not include the paragraph we have set out above.

84    In the decision of the High Court in Wu Shan Liang (above) at 266 Brennan CJ, Toohey, McHugh and Gummow JJ said:

A different delegate rejected the claims of each respondent in separate reasons for decision. Each set of reasons followed a broadly similar form. This was, at least partly, due to the practice of addressing common claims with "standard paragraphs" which had been prepared for the use of delegates. This practice was the subject of extensive argument before Wilcox J. His Honour rejected submissions that the use of such standard paragraphs indicated that the delegates "failed to give proper, genuine and realistic consideration to the merits of each application". Wilcox J's conclusion on this point was not the subject of consideration by the Full Court and the matter was not pressed in this Court. A statement of reasons for a decision reviewable under the AD(JR) Act is not invalid merely because it employs a verbal formula that is routinely used by persons making similar decisions. If the formula is used to guide the steps in making the decision and reveals no legal error, the use of the formula will not invalidate the decision. On the other hand, if a decision-maker uses the formula to cloak the decision with the appearance of conformity with the law when the decision is infected by one of the grounds of invalidity prescribed by the Act, the incantation of the formula will not save the decision from invalidity. In such a case, the use of the formula may even be evidence of an actionable abuse of power by the decision-maker. As the significance of the formulae employed by the respective delegates of the Minister in making their decisions in the present cases was not canvassed before us, we say no more about it.

85    The Commissioner relied on the judgment of French J, as his Honour then was, in WAFK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1293; (2003) 133 FCR 209. In that case the issue arose from the use by the Refugee Review Tribunal of uniform text in some sections of its reasons, including sections in which it made findings about the credibility of the appellant. Counsel for the appellant submitted that the overwhelming majority of the “independent information” which the Tribunal set out in its reasons was copied from previous Tribunal decisions. French J did not consider that, even if a cut and paste technique had been adopted, as seemed likely, that was indicative of a failure by the Tribunal to carry out its statutory function. While French J thought it would be preferable for Tribunal members in drafting their reasons to express their conclusions in their own words rather than those of another decision by another member, failure to do so did not indicate that the Tribunal member had not applied his or her mind to the facts or that the Tribunal member did not in fact hold the view expressed in the reasons given. French J found that no jurisdictional error was disclosed.

86    To the same effect are the observations of Kenny J in Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108 at [10] to which the Commissioner referred before us.

87    Although the Commissioner sought to rely on these two cases for the proposition that it was merely preferable for the Tribunal not to copy material verbatim, in our opinion the circumstances of the present case are quite different. In those cases the copying was not from a party’s submissions and the extent of the copying was less.

88    Though the “core functions” of the Tribunal and the Refugee Review Tribunal are the same, the conduct of a review on the merits, see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [18] and Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 (Drake), one of the differences between the Refugee Review Tribunal (RRT) and the AAT, as there indicated by the High Court, is that in the RRT the primary decision-maker does not appear before the tribunal as a contradictor. Further, different and more benign considerations arise with respect to the copying of common form material in high volume decision-making in relation to many similar claims, providing always that it is evident that this has not been done to the exclusion of a consideration of the merits of an individual case. The present was not within that class of case.

89    In Huluba (above) Beazley J, as her Honour then was, held that procedural fairness required the second decision-maker to apply an independent mind to the decision-making process but that did not occur. It was obvious that the second decision-maker used substantial portions of the report of the first decision-maker. Those passages contained critical findings. In contrast to Lek (above), the second decision-maker used material from the first decision-maker's report which was specific to the applicant. They contained the decision-maker's findings as to whether the applicant’s alleged activities were presently grounds for persecution in Romania and as to the applicant's credibility, both critical factors in the decision of both decision-makers. If a decision-maker adopted the reasoning of another without applying an independent mind to the matter, the consideration of other material could not cure the breach of procedural fairness that had occurred: Huluba (above) at 530. Her Honour considered that the use of the same language, sometimes in florid terms, on critical aspects of the decision-making process, made it more probable than not that the second decision-maker did not apply an independent mind to the decision-making process.

90    The principles that have been applied are that at a general level there is no legal error in the use of standard paragraphs. As a matter of the quality of decision-making, some courts have indicated it is preferable or desirable not to use such paragraphs. Where the paragraphs in question relate to the individual circumstances of an applicant, particularly a person's credibility, then closer scrutiny of a decision which contains standard paragraphs is appropriate and necessary to determine whether the tribunal has discharged its statutory function and exercised its jurisdiction to review the decision before it. It is permissible to use standard paragraphs as a guide but not so as to seek to cloak the decision with the appearance of legality.

91    In our view, speaking generally, it is more appropriate to consider these matters by reference to whether or not the tribunal has discharged its statutory role, its jurisdiction to review the decision before it, rather than to approach it by reference to procedural fairness or the inflexible application of policy or acting under dictation. In our view the fundamental question is whether there has been a constructive failure on the part of the decision-maker to perform its allotted task. In a particular case it may also be that adopting submissions has the consequence that the tribunal has failed to disclose its reasoning.

92    In relation to template or standard paragraphs, relevant to the question, to be answered objectively, whether or not the decision-maker has performed its allocated task will be the following:

(i)    the function of the decision-maker and the source of that function;

(ii)    the source of the copied material;

(iii)    the subject-matter of the copied material;

(iv)    whether the copied material was controversial;

(v)    the similarity of the claim to the claim from which the material was copied;

(vi)    the extent of the copying;

(vii)    whether the copied material was up to date;

(viii)    whether the material was used in addressing the individual circumstances of an applicant, including credibility, particularly in evaluating the claim or application; and

(ix)    whether the fact of copying and the source of the copied material was acknowledged.

93    The circumstances in these cases were quite different to the present. This is because first, in the present case, it was the submissions of one of the parties which were copied not an earlier decision of the Tribunal. Second, the degree of copying is relevant. Third, there is a difference between copying, for example, an uncontroversial chronology or statement of facts and unattributed, pervasive copying of argument and conclusions. Fourth, in the RRT cases the tribunal was dealing with material which was arguably common both to the case from which the material had been copied and to the decision in hand.

94    In relation to the decisions of courts, in SZMUV v Minister for Immigration and Citizenship [2009] FCA 205 Flick J considered reasons of a Federal Magistrate who had expressed his reasons for decision over some nine pages but, of those nine pages, over two pages set out verbatim the submissions of the Minister as to the relevant “background”; one page set out verbatim the grounds of the Amended Application; and a further two pages adopted and set out verbatim the Minister’s written submissions on substantive issues. The balance of the judgment, some four pages, set out the reasons as expressed by the Federal Magistrate. Flick J concluded that notwithstanding the extent to which the Federal Magistrate had simply incorporated the submissions, the Federal Magistrate did carefully review the materials before him and in doing so committed no error.

95    Similarly, in SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107 Flick J held that the case before him was an instance where such reasons as had been provided, albeit reasons which largely reproduced the submissions and reasons of others, did disclose the manner in which the Federal Magistrate proceeded. Flick J said:

[6]     The appropriateness of reproducing the work of others may in large part depend upon the circumstances of each individual case. But the repetition of the reasoning and submissions of others has many dangers. At the very least, it may create in the mind of a disappointed litigant the belief that independent judicial consideration has not been given to the legal and factual merits presented for resolution. It may also place in peril the discipline imposed upon a judicial officer of independently recording in writing reasons for decisions. An argument which may initially appear incontrovertible may become more uncertain of resolution as the process of writing reasons for any decision is undertaken.

96    In SZMUV (above) Flick J referred also to Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407, where the Court of Appeal considered reasons of the lower court which dealt with the submissions of the parties as follows:

The evidence in this matter is all contained in the applicant's case and the circumstances of the commencement of the relationship between the applicant and the first respondent and what transpired thereafter up until the date of injury and indeed thereafter, are all detailed therein. There is no reason why the whole of the applicant's evidence and the other evidence contained in the applicant's case should not be accepted and I do accept it in its entirety.

Counsel for the first and second respondent have stated that regardless of any determination of mine . . . this matter will be removed forthwith to the High Court. Thereafter I feel it would be of little assistance to anyone for me to embark upon the delivery of lengthy reasons and indeed bearing in mind the constitutional issues involved and the place of their final resolution, impertinent for me to do so.

I therefore say this. I incorporate into this judgment the transcript of the submissions made by all the parties.

I prefer to accept the submission made by Mr Handley on behalf of the applicant (worker) and also those of Mr Katz on behalf of the State of New South Wales where he supported Mr Handley and for the reasons contained therein, I am persuaded and I find that the applicant has discharged his onus in all respects and is entitled to an award.

I am persuaded and find that the Workers Compensation Act 1987 New South Wales provides the remedies sought by the applicant. . . . I am also persuaded and find that this Court is invested with jurisdiction to make an award.

Kirby P (as his Honour then was), with whom Priestley JA and Waddell A-JA agreed, said, at 417:

(3) It may be possible to conceive an instance where the incorporation of submissions by one party in reasons for judgment would be an adequate compliance with the judicial duty to provide reasons. That was certainly not the case here. . . This Court has no idea of the basis upon which Moroney CCJ entered his award. Unless a judicial officer states that basis, there is a risk that he or she will not have addressed attention adequately, or at all, to the arguments of the parties. Certainly, there is the risk that the parties will so conclude and that is damaging to the administration of justice . . .

To this reference may be added Pollard v Wilson [2010] NSWCA 68 at [166] where the New South Wales Court of Appeal said:

[165]    Pages 8 to 43 of the reasons consist of a verbatim reproduction of the submissions made by counsel for the Council. His Honour said of the submissions that they were “an excellent analysis of the relevant law” and further said “I agree with that analysis and (counsel’s) conclusion in her written outline of submissions.” After reproducing the document his Honour said (at [26] of the reasons):

The plaintiff having failed to prove its case against the second defendant on the balance of probabilities, means there will be a verdict for the second defendant and the plaintiff is to pay the second defendant’s costs.

[166]     The submissions made by counsel for the Council are well constructed and the reasoning is sound. However, the conclusions depend upon various assertions as to the relevant facts. Although the assertions are made, his Honour nowhere in his reasons indicates that he has analysed the relevant evidence and himself concluded that the assertions made by counsel are justified by the evidence. He should have done so.

97    See also Fletcher Construction Australia Ltd v Lines MacFarlane & Marshal Pty Ltd (No 2) (2002) 6 VR 1 at [163]-[165] and C v B (2006) 35 Fam LR 285; [2006] FAMCA 513 where Fletcher Construction (above) was considered. In C v B (above) at [107] it was held that there was substance in the submission that justice was not seen to be done as a result of the failure of the trial judge to deal with certain submissions. The court said it may well have been open to the trial judge to have quickly dismissed the significance or relevance of a witness and to indicate why it was that he was drawn to the conclusions that he reached. The difficulty was that the trial judge simply did not deal with that material at all.

98    We do not further consider copying by judges in Australia because there are important differences between those cases and the position of tribunals. One important difference is the nature of the reviewing court’s jurisdiction: in the case of a tribunal it is generally judicial review rather than an appeal, although it may not be so in non-federal jurisdiction: see Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390. In turn, the nature of the reviewing court’s jurisdiction may well have consequences in terms of the available relief, that is, whether the reviewing court will decide the matter for itself or remit to the tribunal. Further, the obligation on a judicial officer to give reasons has a different source and has different requirements.

North American cases

99    In the United States, in Anderson v Bessemer City 470 US 564 (1985) the Supreme Court referred to the practice of certain courts announcing a decision and leaving it to the prevailing party to write the findings of fact and conclusions of law and said at 572 that it too had criticised courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citation to the record. The court said it was also aware of the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they had already been informed that the judge has decided in their favour. Nonetheless, the court said the findings were those of the court and were to be reversed only if clearly erroneous.

100    In Andre v. Bendix Corp. 774 F.2d 786, 799-801 (1985) the Federal Court of Appeals, Seventh Circuit said at 800 the court had recognized that where a district court adopted a party's proposed findings of fact wholesale or verbatim, the resulting findings were “not the original product of a disinterested mind.” Thus, when a district court adopted a party’s proposed findings of fact, “we examine the findings especially critically when deciding whether they are clearly erroneous.”

101    In Walton v United Consumers Club, Inc 786 F.2d 303 (1986) the Federal Court of Appeals, Seventh Circuit said at 313:

The wholesale adoption of a party's proposed findings obscures the reasoning process of the judge. It deprives this court of the findings that facilitate intelligent review. It causes the losing litigants to conclude that they did not receive a fair shake from the court. If a judge allows himself to act as a mouthpiece for the winning party, the loser may conclude that the judge was not impartial - that he was an advocate, using an advocate's words, rather than a disinterested evaluator of the several advocates' urgings. This is an especially serious problem when the judge adopts language from a brief as opposed to selecting from among findings of fact that have been proposed by one side and subject to criticism by the other side. See In re X-Cel, Inc., 776 F.2d 130, 133-34 (7th Cir. 1985). It is important that justice be seen to be done, just as it is important that justice be done. The adoption of a brief as findings of fact does not give the parties the appearance of careful, detached judicial conduct.

102    More recently, in Bright v Westmoreland County 380 F.3d 729 (2004), the Federal Court of Appeals, Third Circuit said at 731-732:

We have held that the adoption of proposed findings of fact and conclusions of law supplied by prevailing parties after a bench trial, although disapproved of, is not in and of itself reason for reversal. . . . However, we made clear that the findings of fact adopted by the court must be the result of the trial judge’s independent judgment. Pa. Envtl. Def. Found.: (PEDF) v. Canon-McMillian Sch. Dist., 152 F.3d 228, 233 (3d Cir. 1998) (citing with approval Odeco, Inc. v. Avondale Shipyards, Inc. 663 F.2d 650, 652-53 (5th Cir. 1981)). “The central issue is whether the district court had made an independent judgment.” Id.

Here, however, we are not dealing with findings of fact. Instead, we are confronted with a District Court opinion that is essentially a verbatim copy of the appellees’ proposed opinion. This fact, even standing alone, would be enough for us to distinguish the holdings in Anderson and Lansford-Coaldale. We agree with the Court of Appeals for the Fourth Circuit’s observation that:

There is authority for the submission to the court of proposed findings of fact and conclusions of law by the attorneys for the opposing parties in a case, and the adoption of such of the proposed findings and conclusions as the judge may find to be proper …But there is no authority in the federal courts that countenances the preparation of the opinion by the attorney for either side. That practice involves the failure of the trial judge to perform his judicial function.

Chicopee Mfg. Corp. v. Kendall Co., 288 F.2d 719, 725 (4th Cir. 1961) (emphasis added).

Judicial opinions are the core workproduct of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party’s proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. We, therefore, cannot condone the practice used by the District Court in this case.

See also In Re Community Bank of Northern Virginia and Guaranty National Bank of Tallahassee Second Mortgage Loan Litigation 418 F.3d 277 (2005) at 300-302 where the Federal Court of Appeals, Third Circuit cited Bright (above) for the proposition that there must be evidence in the record demonstrating that the District Court exercised "independent judgment" in adopting a party's proposed findings. In Community Bank, the only evidence the Court of Appeals found in the record that the District Court exercised independent judgment was the fact that it said it did. By contrast, there was substantial basis in the record to question whether “independent judgment” was exercised. The Court of Appeals was therefore concerned that the District Court may have abdicated its role as a neutral and independent adjudicator or, at the very least, sacrificed independent judgment for administrative efficiency. The Court of Appeals then went on to consider the particular requirements flowing from Rule 23 of the Federal Rules of Civil Procedure in relation to class actions.

103    In United States v Troy B. Jenkins 60 MJ 27 (CAAF 2004), the question for the United States Court of Appeals for the Armed Forces was whether Jenkins received the legal and factual review he was entitled to under Article 66(c), UCMJ, 10 USC § 866(c) (2000). Because the court could not conclude that he received such an assessment, it remanded for a new Article 66(c) review conducted by a separate panel comprised of judges who did not participate in appellant’s prior evaluation. The lower court, the Navy-Marine Corps Court of Criminal Appeals (CCA), opinion was 15 pages in length. Thirty-one of the 45 paragraphs, not including record excerpts, were taken virtually or wholly verbatim from 29 of the 33 paragraphs in the Government’s nineteen-page Answer before the CCA. This was done without attribution. These paragraphs included the statement of facts, legal analysis, and conclusions of law. The CCA’s opinion also included an original paragraph stating that it had carefully reviewed the record of trial, the appellant's five assignments of error, the Government’s answer, and the appellant’s reply and that it concluded that there was merit in the appellant’s summary fifth assignment of error and that the appellant was entitled to relief. In all other respects, the CCA concluded, the findings and sentence, upon reassessment, were correct in law and fact and that no error materially prejudicial to the substantial rights of appellant was committed.

104    The United States Court of Appeals for the Armed Forces concluded as follows at 29-30:

After reviewing the CCA’s opinion, we are left in doubt that Appellant received the independent Article 66(c) review to which he was entitled. On the one hand, there are indicia within the opinion of independent review. . . .

On the other hand, the portions of the Government’s Answer incorporated into the CCA’s opinion are substantial. This material includes matters of fact, including contested facts, as well as matters of law. In the Article 66(c) context, replication of a party’s brief disguises the nature and substance of the court’s independent factual and legal review. As a result, neither we nor the parties can be sure where and perhaps whether the Government’s argument ends and the lower court’s independent analysis begins. This conclusion is not based on a mathematical calculation of replication. Nor need we look within the lower court’s deliberations to make such a determination. It is based on the manifest demonstration on the face of the CCA’s opinion that substantial portions are derived wholly or virtually verbatim from a party’s brief. We note that “substantial” conveys both qualitative and quantitative meaning. Thus, an Article 66(c) error based on the copying of a party’s brief may be rooted in the replication of certain important or contested facts, crucial legal analysis, legal conclusions, or some combination thereof, as well as the volume of material copied. Such judgments are case contextual; however, assuredly an original opinion manifesting independent analysis negates need for review for an Article 66(c) error based on the copying of a party’s brief.

. . . In short, the fact that Appellant received some of what he was entitled to does not mean that he received all to which he was entitled. The lower court’s opinion indicates that he did not.

105    In Canada, a recent decision is Cojocaru (Guardian Ad Litem) v British Columbia Women’s Hospital 2011 BCCA 192; 17 BCLR (5th) 253. An appeal is pending in the Supreme Court.

106    In Cojocaru, Mr Justice K Smith, who dissented on this point, said at [20]:

     . . . the reasons for judgment run to 368 paragraphs (105 pages) in length. The trial judge copied, without so acknowledging, 321 paragraphs almost word-for-word from the respondents’ written closing submissions (with inconsequential changes, such as replacing phrases like “it is submitted” with phrases like “I have concluded”). Forty paragraphs were written in the trial judge’s own words and the remaining seven paragraphs contain a mix of passages copied from the respondents’ written submissions and passages written in the words of the trial judge.

107    The judgments of the court referred to three reported instances in Canada of a trial judge reproducing substantially all of the submissions of a party as reasons for judgment: R v Gaudet (1998) 40 OR (3d) 1 (CA); Sorger v Bank of Nova Scotia (1998) 39 OR (3d) 1 (CA) and Janssen-Ortho Inc. v Apotex Inc. 2009 FCA 212, 392 NR 71. The court also referred to other reported cases in which the trial judge had adopted a party’s submissions by reference: R. v Dastous (2004) 181 OA 398, 60 WCB (2d) 335; Canada (Attorney General) v Ni-Met Resources Inc. (2005) 74 OR (3d) 641 (CA) and R. v Kendall (2005) 75 OR (3d) 565 (CA).

108    The majority in Cojocaru on this aspect of the case, Madam Justice Levine and Madam Justice Kirkpatrick, held at [111] that the trial judge had not independently and impartially considered the law and the evidence and arrived at his own conclusions on the complex issues before him. They said at [113] a close examination of the trial judge’s published reasons, laid side-by-side with the respondents’ written submissions, left the indelible impression that the trial judge could not have applied his own reasoning process to the case. This impression was most acute in that portion of the reasons that addressed liability. At [117], the majority said an informed and reasonable observer could not help but be astonished by the virtual absence of consideration of the appellants’ arguments and the evidence adduced in support of their positions.

109    Madam Justice Levine and Madam Justice Kirkpatrick said at [120]-[121] and [125] that in the majority of the earlier cases in which the trial judge adopted or reproduced a party’s submissions, the trial judge acknowledged that the analysis was taken from the submissions of one of the parties. In only one case, Janssen-Ortho Inc. (above), did the trial judge reproduce submissions without attribution. The concern in that case that the adoption of a party’s written submissions without an acknowledgment may lead to the impression that the judge had not done the work which he was called upon to do had materialized in this case, as a reasonable and informed observer could not be persuaded that the trial judge examined all of the evidence before him and made appropriate findings. The conclusion that the written reasons did not provide an opportunity for meaningful appellate review of the decision did not relate to the words themselves, but to the circumstances of their creation.

110    Lastly, at [127], the majority said that consideration of the relevant principles in the context of the composition of the trial judge’s reasons for judgment convinced them that the reasons did not meet the functional requirement of public accountability, and as such, were not amenable to meaningful appellate review of their correctness. The form of the reasons, substantially a recitation of the respondents’ submissions, was in itself “cogent evidence” displacing the presumption of judicial integrity, which encompassed impartiality. Impartiality was necessary to trial fairness. None of the parties to this litigation was fairly treated by the failure of the trial judge to grapple properly with this case. Neither they nor members of the public could be satisfied that justice had been done. The reasons were not transparent and persuasive, and their acceptance by the court would risk undermining the confidence of the public in the administration of justice.

111    The relevant principles which emerge from the cases in the United States are that a deal of leeway was given to courts which copied findings of fact only and the decisions would only be reversed when clearly erroneous but such a course led to increased scrutiny on appeal. An issue of process arose in that the adoption of findings of fact did not give the parties the appearance of careful, detached or independent judicial conduct. In relation to the copying of submissions or of the “opinion”, that practice could involve the failure of the trial judge to perform his or her judicial function. As the Court said in Troy B. Jenkins (above) this conclusion was not to be based on a mathematical calculation of replication but on the demonstration on the face of the lower court’s opinion that substantial portions were derived wholly or virtually verbatim from a party’s brief. The word “substantial” conveyed both a qualitative and a quantitative meaning.

112    In Canada, the principles referred to the presumption of judicial integrity, which encompassed actual and apparent impartiality, and whether the judge had applied his own reasoning process to the case: in a case of unacknowledged copying, could a reasonable and informed observer be persuaded that the trial judge had examined all of the evidence before him and made appropriate findings. The court looked beyond the words themselves and to the circumstances of their creation. Issues of public accountability and confidence in the administration of justice were invoked.

Submissions

113    The appellants submitted that the proper inference to be drawn from the facts was that the Tribunal failed to take into account and assess evidence it was bound to take into account when making its decision, given that the Schokker affidavit was substantively responsive to evidence relied on by the Tribunal.

114    Having made the point that the Tribunal’s decision did not refer to the content of the Schokker affidavit the submission continued that the structure and text of the decision indicated that the Tribunal did not take the Schokker affidavit into account. The appellants referred to paragraphs [9], [25], [37], [48] and [50]-[55] of the Tribunal’s decision.

115    The appellants submitted that the Schokker affidavit was central to their submissions that they had complied with the Relevant Directions. Accordingly, the content of the Schokker affidavit was required to be given sufficient weight by the Tribunal: Lovell v Lovell (1950) 81 CLR 513 at 533. Further, any failure by the Tribunal to have regard to the evidence going directly to the issues would be a failure to discharge the duty of review: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [52].

116    The appellants noted that the index they had handed up to the primary judge and which was attached to his Honour’s judgment remained an accurate listing of the content of the Mancini affidavit and the Schokker affidavit (amongst others) in relation to the Relevant Directions.

117    The Commissioner submitted that the Tribunal was clearly aware of the Schokker affidavit and its contents. The affidavit was referred to in both the oral submissions and the written submissions of the parties. It was clear that the Tribunal had regard to the appellants' written submissions. Save for the reference to the Schokker affidavit in paragraph 3 of the appellants' written submissions before the Tribunal of 8 July 2010, the appellants made no attempt in their submissions to elucidate for the benefit of the Tribunal the relevance of the contents of that affidavit to the Tribunal's consideration of whether the Relevant Directions had been complied with.

118    Thus the Commissioner put in issue the submission of the appellants that the Schokker affidavit was central to the appellants’ submissions that it had complied with the Relevant Directions. He attached a schedule of references in the Tribunal transcript of the hearing on 24 June 2010 to the Schokker affidavit. That schedule showed that counsel for the present appellants referred to the Schokker affidavit five times in the course of the Tribunal hearing on 24 June 2010 and that counsel for the Commissioner referred to it approximately 34 times in that transcript.

119    The Commissioner submitted that the Schokker affidavit in which the deponent commented on the contents and use of particular documents referred to by Mr Mancini was not directly relevant to the issue of whether the appellants had complied with the Relevant Directions.

120    The Commissioner then dealt with eight matters of detail in the Schokker affidavit and the issue of compliance.

121    The Commissioner submitted that even if it were the case that the Tribunal had overlooked the Schokker affidavit it was not a failure to take into account a relevant consideration merely because the Tribunal had not referred to a piece of evidence which the Court thinks relevant. The Commissioner referred to three decisions of this Court which we consider below.

122    We should add that it was correctly and properly conceded before the Full Court that the explanation of an applicant as to why a direction of the Tribunal had not been complied with and an applicant's explanation as to why the summary dismissal power for failure to comply with the direction should not be exercised were mandatory relevant considerations for the purposes of s 42A(5)(b) of the AAT Act in the sense in which that ground of review is explained in Peko-Wallsend Ltd (above) at 39–42 per Mason J. We would add that an applicant's explanation that it had not failed to comply with a direction is also a mandatory relevant consideration for those statutory purposes.

Consideration

123    The AAT Act does not make detailed prescription as to the practices and procedures which the Tribunal must follow in either the pre-hearing or hearing phases of the exercise of its review function. Rather, subject to any requirement flowing from the particular statute which has conferred a review jurisdiction on the Tribunal, the practices and procedures to be followed are within the discretion of the Tribunal: s 33(1)(a) of the AAT Act. Further, in light of that, it is incumbent on a court to exercise a principled restraint in respect of the judicial review of procedural decisions made by the Tribunal: Rana v Repatriation Commission (2011) 196 FCR 137 at [32]. That said, “proper consideration” in terms of s 33(1)(b) of the AAT Act is consideration which is not only procedurally fair but is indeed and can be seen to be consideration by the member constituting the Tribunal.

124    In this case, the starting point must be the content, rather than the fact, of the Schokker affidavit. The question is whether there was one or more matters of substance in that affidavit, relevant to the issue of compliance or non-compliance with the Relevant Directions, with which the Tribunal did not deal. Despite the submission on behalf the appellants we do not consider this falls to be considered as a matter of the weight to be given to the Schokker affidavit. The issue is whether the substance of that affidavit was considered despite the absence of reference to it.

125    The second preliminary observation we make is that it is not for this Court to go into the merits of the matters raised in the Schokker affidavit. It was for the Tribunal to deal with those matters whether by finding that they had substance or that they did not.

126    The third preliminary observation we would make is that it was common ground that there was no reference in the decision of the Tribunal to the Schokker affidavit.

127    Fourth, the Court does not decide what it was, subjectively, the Tribunal remembered or of which it was aware at the date of its decision. The Court can proceed only by reference to the Tribunal’s reasons. For that reason we reject the submission on the part of the Commissioner that the Tribunal was clearly aware of the Schokker Affidavit because it was referred to in submissions.

128    Indeed, in our opinion, the fullest evaluation of the substance of the Schokker affidavit was that undertaken in oral submissions on the part of the Commissioner on 24 June 2010. Yet, as we have said, nowhere does the Tribunal refer to those oral submissions whether by way of reference or otherwise. This is a strong indication that the Tribunal did not itself engage in any such evaluation.

129    The other reference to the content of the Schokker affidavit is in the written submissions filed for the Commissioner in the Tribunal and which constituted approximately 95% of the Tribunal’s reasons. Yet, as we have said, the later added paragraphs of those submissions which do refer to the substance of the Schokker affidavit, paragraphs 70 and 71, were among the few paragraphs of those written submissions of the Commissioner which were not copied by the Tribunal. Neither were those paragraphs otherwise referred to by the Tribunal except by further general reference where the Tribunal copied parts of the Commissioner’s reply submissions.

130    It is clear to this Court that the reason the Tribunal did not refer to the contents of the Schokker affidavit was not so much reference to “the structure and text of the Tribunal’s decision” but to the immediate source of the Tribunal’s reasons, being the Commissioner’s written submissions to it, and to the drafting of those written submissions without reference to the substance of the Schokker affidavit in the parts copied by the Tribunal. It is a distraction to examine the reasons of the Tribunal as if they were an independent text without reference to their source.

131    Contrary to the tenor of one of the submissions on behalf the Commissioner before us, it is not simply a matter that would have been cured if the Commissioner’s submissions had added a reference to the Schokker affidavit at the end of the chronology after paragraph 12.49 of those submissions copied by the Tribunal as its [9.40]. Merely to list the document in written submissions copied verbatim would not show that the Tribunal had taken into account the substance of that material.

132    More importantly, [51] of the reasons of the Tribunal set out by reference to certain paragraphs of Mr Mancini’s affidavit why a document referred to as HBS2 did not comply with the relevant directions requiring a Master Index. However, because [51] of the reasons of the Tribunal copied verbatim paragraph 49 of the written submissions of the Commissioner made to the Tribunal, which submissions were drafted without reference to the Schokker affidavit, it follows that the Tribunal did not at that point consider the contents of the Schokker affidavit.

133    Similarly, at [54] and [55] the reasons of the Tribunal set out why the Commissioner and the Tribunal were in no better position than the first time the documents were filed to know which documents would be relied on by each witness in each witness statement in relation to each issue and then stated that this was best illustrated by reference to the witness statement of Schokker of 23 December 2009 and the effect of the assertion in the Schokker Master Index. However, because [54] and [55] of the Tribunal’s reasons largely copied paragraphs 51 and 52 of the written submissions of the Commissioner made to the Tribunal, which submissions were relevantly drafted without reference to the Schokker affidavit, it follows that the Tribunal did not consider the contents of the Schokker affidavit.

134    In relation to [51] of the reasons of the Tribunal, the appellants’ schedule, attached to the judgment of the primary judge, set out where the Schokker affidavit responded to the matters in [51] of the Tribunal’s reasons. The first example was with reference to [51.1] of the text of the reasons of the Tribunal: “HBS2 purports to rely on annexures to witness statements which have been uplifted and not refiled”. The schedule referred to paragraphs 8 to 10 of the Schokker affidavit explaining that the indication in the Master Index that the appellants sought to rely on the annexures to Mr Schokker’s affidavit of 12 September 2008 “is not correct and was an oversight by me when swearing my affidavit of 13 May 2010”. The next example was with reference to [51.2] of the reasons of the Tribunal: “there is no list of documents and the documents filed are not numbered”. The schedule referred to paragraphs 12 and 13 of the Schokker affidavit which said that the documents had been numbered appropriately, they were the only set of documents to be relied on by the appellants and that the numbering of those documents represented a combination of the file number and the page number which the deponent had described at paragraph 4.2 of his affidavit of 23 December 2009 for one of the appellants. Other examples were given in the schedule.

135    We have not sought to evaluate the force or otherwise of this and other material in the Schokker affidavit. That is a matter for the Tribunal. Thus although the Commissioner dealt in his written submissions to the Full Court with eight matters of detail in the Schokker affidavit and the issue of compliance we regard those matters as going to the merits of the decision.

136    In our opinion, the Tribunal did not conduct that evaluation of the material in the Schokker affidavit, whether by reference to written submissions on behalf the Commissioner or oral submissions on behalf the Commissioner or otherwise. For the reasons we have explained, the Tribunal did not address compliance with reference to the Schokker affidavit although in a paragraph copied verbatim and without attribution from the Commissioner’s written reply submissions there is a reference to a submission which refers to the Schokker affidavit. Importantly, nowhere does the Tribunal refer to the detailed analysis of the Schokker affidavit by counsel for the Commissioner in oral submissions.

137    We find that the Tribunal did not have regard to the material in the Schokker affidavit and thus it failed to have regard to the appellants’ explanation relevant both to the question of breach of the Tribunal’s directions and to the exercise of the Tribunal’s discretion conferred by s 42A(5)(b) of the AAT Act.

138    The Commissioner’s written submissions to the Full Court went into some detail as to the “deficiencies” in the Schokker Affidavit. If these criticisms had been contained in the reasons of the Tribunal they would have established that the Tribunal had taken the Schokker affidavit into account.

139    Similarly, if it was the position, as put as a matter of speculation to us on behalf the Commissioner, that the Tribunal did not refer to the Schokker affidavit because it did not advance the case of the appellants, then the Tribunal should have said so in its reasons.

140    In the Commissioner’s submissions to us, the following was put:

The Tribunal's findings at paragraph 51 of its Reasons were clearly open on the evidence and were not substantially challenged by the appellants (save for their unsubstantiated assertion in paragraph 3 of the appellants' written submissions that there had been compliance with the Relevant Directions) …

However, as we have noted, [51] of the reasons of the Tribunal were taken directly from paragraph 49 of the Commissioner’s submissions to the Tribunal and, although not referred to by the Tribunal, there were responses, for better or worse, to the Mancini affidavit in the Schokker affidavit. Otherwise, the submission we have set out at the beginning of this paragraph goes to the merits. The question of whether the Tribunal’s findings were open to it does not arise on this judicial review application.

141    The Commissioner relied on Rezaei (above) at [57]; Singh (above) at [25]-[34]; and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303 at [28].

142    In Rezaei, Allsop J said Yusuf (above) did not stand for the proposition that merely because some piece of evidence which the court thought was relevant in the evidential or probative sense could be seen not to have been weighed or discussed, a relevant consideration had not been taken into account and the decision-maker thereby had failed to embark on or complete his or her jurisdictional task. “Relevant” for this purpose meant that the decision-maker was bound by the statute or by law to take this into account. We agree, but that principle does not touch the present case where the appellants’ response to an application for dismissal of the proceedings was not taken into account and the decision-maker thereby failed either to embark on or to complete his jurisdictional task.

143    In Singh, Jacobson J explained WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 and said the Full Court, by referring to “important relevant material”, did not intend to elevate a failure to refer to evidence to a ground of jurisdictional error. If it did, the decision in WAFP would be contrary to established principles. Again, we agree. There is a distinction between failure to deal with an aspect of the evidence and failure to address a claim or an integer of the claim. As the Full Court said in WAEE (above) at [46], it is not necessary for a tribunal to refer to every piece of evidence and every contention of an applicant in its written reasons; there is a distinction between failure to refer to evidence and failure to address a contention which constitutes a claim or an integer of a claim. Transposing that to the present context however, in our opinion it is an error of law in determining an application under s 42A(5)(b) of the AAT Act not to take into account the response by an applicant going to the issues of breach of directions and the exercise of discretion to dismiss the application.

144    In SZNPG (above) at [28] the Full Court said that an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims was not jurisdictional error, so long as the error, whichever it be, did not mean that the RRT had not considered the applicant’s claim. Again, we agree but for the reasons we have given, the present case falls within that proviso.

145    In Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99; [2011] FCAFC 59 at [44]-[45] a Full Court restated that the obligation of a decision-maker to consider mandatory relevant matters required a decision-maker to engage in an active intellectual process, in which each relevant matter received his or her genuine consideration (see Tickner v Chapman (1995) 57 FCR 451 at 462 and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [105]). Once a matter had been identified as a mandatory relevant consideration, it was the salient facts that gave shape and substance to the matter that must be brought to mind. These were the facts which were of such importance that, if they were not considered, it could not be said that the matter had been properly considered (see Peko-Wallsend (above) at 61). We agree, but as we have explained there was no proper consideration of the substance of the Schokker affidavit in this case.

Conclusion

146    For these reasons, the appeal is allowed, the decision of the Tribunal set aside and the matter referred to the Tribunal for further consideration. Nothing that we have said should be taken to indicate the outcome of any such further consideration: that is a matter for the Tribunal. It is not necessary to consider the question of whether, for the purposes of any further consideration, the Tribunal should be differently constituted (as to which see Comcare v Broadhurst [2011] FCAFC 39; (2011) 120 ALD 228 and Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) (2011) 282 ALR 24) as the Court was told that the member of the Tribunal who made the decision has since retired from the Tribunal.

Associate:

Dated:    22 June 2012