Dobbie, M. v Department of Social Security [1995] FCA 303

CATCHWORDS

ADMINISTRATIVE LAW - Administrative Appeals Tribunal - breach of natural justice - whether denial of fair hearing - whether denial of opportunity to make submissions prior to finding of fact - whether failure to consider submissions on evidence - s.39 Administrative Appeals Tribunal Act 1975 (Cth)

Lambe v. Director-General of Social Services (1981) 38 ALR 405

Dennis Willcox Pty Ltd v. Federal Commissioner of Taxation (1988) 79 ALR 267

Kentucky Fried Chicken Pty Ltd v. Gantidis (1979) 140 CLR 675

Stead v. State Government Insurance Commission (1986) 161 CLR 141

Vakauta v. Kelly (1989) 167 CLR 568

MARY DOBBIE v DEPARTMENT OF SOCIAL SECURITY VG 347 of 1994

COURT: Black CJ, Jenkinson and Heerey JJ

PLACE: Melbourne

DATE: 7 April 1995

IN THE FEDERAL COURT OF AUSTRALIA)

VICTORIA DISTRICT REGISTRY ) No VG 347 of 1994

GENERAL DIVISION )

On appeal from a judge of the Federal Court of Australia

BETWEEN: MARY DOBBIE

Appellant

AND: DEPARTMENT OF SOCIAL SECURITY

Respondent

COURT: Black CJ, Jenkinson and Heerey JJ

DATE: 7 April 1995

PLACE: Melbourne

MINUTES OF ORDER

The Court orders that:

1. The appeal be allowed.

2. The orders made by Sweeney J on 15 September 1994 be set aside and in lieu thereof it be ordered:

(a) The decision of the Administrative Appeals Tribunal in matters no. V91/745 and V92/576 made on 23 April 1993 be set aside.

(b) The case be remitted to the Administrative Appeals Tribunal for rehearing according to law.

3. The respondent pay the applicant's costs of this appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY ) No VG 347 of 1994

GENERAL DIVISION )

On appeal from a judge of the Federal Court of Australia

BETWEEN: MARY DOBBIE

Appellant

AND: DEPARTMENT OF SOCIAL SECURITY

Respondent

COURT: Black CJ, Jenkinson and Heerey JJ

DATE: 7 April 1995

PLACE: Melbourne

REASONS FOR JUDGMENT

BLACK CJ:

The circumstances under which this appeal comes before the Court are described in the reasons for judgment of Heerey J which I have had the advantage of reading. The respondent sought recovery from the appellant of what it claimed to be an overpayment of pension. The primary issue before the Administrative Appeals Tribunal was whether the appellant was a "widow" within the meaning of the Social Security Act 1947 (Cth) while she was in receipt of a widow's pension between 1983 and 1989. It was contended by the respondent that during the relevant period the appellant was living with a Mr Dobbie, to whom she was not then married, as his wife "on a bona fide domestic basis" so as to be outside the definition of "widow" in the Act. As Heerey J points out, the application of this statutory test, and a similar test which had effect from 1 March 1989, required "all facets
of the inter-personal relationship" of the two persons to be taken into account: Lambe v Director-General of Social Services (1981) 38 ALR 405 at 413. In support of its contention that Mrs Dobbie was living in a de facto marriage relationship, the respondent relied upon, amongst other circumstances, a statutory declaration made by the appellant in 1983 in which she described herself as "Mary Alice Dobbie formerly Mary Ellesley of 276 Richardson Street, Middle Park . . . married woman". The respondent also relied upon a statutory declaration made by Mr Dobbie in 1984, in connection with the same matter, in which he described himself as being "of 276 Richardson Street, Middle Park" and in which he deposed that he was "the husband of Mary Alice Dobbie of 276 Richardson Street, Middle Park".

The appellant and Mr Dobbie both gave evidence before the Tribunal. They denied that the appellant had been living with Mr Dobbie as his wife during the relevant period and they sought to explain what they had deposed to in the statutory declarations. In substance, they said that the solicitor who had prepared the declarations had not understood the appellant's instructions. On the third day of the hearing the respondent called the solicitor to give evidence about those instructions. Apparently no claim for legal professional privilege was made. As soon as the solicitor's evidence had been given, and before there was any opportunity for the appellant's solicitor to address the Tribunal, the Tribunal took a short adjournment. When the hearing resumed the presiding Deputy President immediately announced that the Tribunal would make an adverse finding against the appellant on the issue of her relationship with Mr Dobbie and that it was "quite satisfied that for the period in dispute the applicant and Mr Dobbie have resided in a de facto relationship". The whole of the relevant passage in the transcript is important and has been set out by Heerey J in his
reasons for judgment.

In adopting the course it did the Tribunal was no doubt intending to be helpful to the appellant; having come to a conclusion on the primary issue it then needed further information about the subsidiary issue, which was whether recovery of all or some of the overpayment of pension should be waived under s.1237 of the Social Security Act 1991 (Cth). It thought, too, that the waiver issue might be capable of resolution between the parties and proposed to adjourn the matter for an hour or so to enable discussions to take place.

I agree with Heerey J that what the Tribunal said about the primary issue cannot be regarded as tentative, provisional or subject to further argument. Not only was the statement made by the Deputy President unequivocal in its terms but the subsequent discussion confirms the conclusion that the Tribunal had finally made up its mind. That discussion was confined to the consequences of the finding, and when the solicitor for the appellant referred to the draft final submission that counsel had prepared the Deputy President said that ". . .any submissions regarding what might be termed the substantive issue . . . would not be required, having heard all the evidence".

The appellant's case before the learned primary judge, and before us, was that in these circumstances procedural fairness was denied to the appellant and it was said that the later receipt by the Tribunal of written submissions by her counsel, covering both the primary and the subsidiary issues, did not cure what had happened on the third day of the hearing. This
was because it should be concluded, so it was argued, that to the extent that the submissions dealt with the primary issue, the Tribunal did not take them into account.

In my view the Tribunal was required in the circumstances of the present case to receive and to take into account final submissions by the appellant on the primary issue in the matter before it. Quite apart from the common law requirements of procedural fairness, the Tribunal was required by s.39 of the Administrative Appeals Tribunal Act 1975 (Cth) to ensure that:

"every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents."

There is no reason to read the reference to the particular instance of documents as limiting by implication the generally expressed obligation, which one would in any event expect, to give every party a reasonable opportunity to present his case.

In a matter such as the present a reasonable opportunity to present the appellant's case necessarily involved her having an opportunity to make final submissions on the questions of fact raised by the primary issue in the case. She wished to contend that despite the statutory declarations and the evidence of the solicitor, the argument in favour of the conclusion that she had indeed been living with Mr Dobbie as his wife was not as it might seem, and that if other matters were taken into account, particularly the wills she and Mr Dobbie had made during the period in question and their respective financial arrangements, the evidence took on quite a different complexion. In the circumstances, the reasonable
presentation of the appellant's case required that she have the opportunity to make submissions reviewing the whole of the evidence, drawing particular attention to the matters upon which she wished to rely, and generally summing up.

In my view the Tribunal, although trying to be of assistance to the parties, was in error in finding against the appellant on the primary issue without first giving her an opportunity to make a final submission. As I have said, and I emphasise, the Tribunal's conclusion on that issue was not tentative, provisional or subject to further argument. Had the Tribunal, at that point, formally determined the application as far as the primary issue was concerned, there would have been an incurable denial of procedural fairness.

The question then is whether the subsequent filing of written submissions by counsel for the appellant means that the appellant did, after all, have a reasonable opportunity to present her case. The difficulty I have in concluding, as we were urged to do and as the learned primary judge found, that the deficiency was cured by the availed-of opportunity to put written submissions before the Tribunal stems from the unequivocal way in which the Tribunal expressed its conclusion about the primary issue and the Deputy President's statement, very shortly thereafter, that written submissions on that issue would not be required.

The Tribunal did of course agree to receive written submissions and it set a timetable for their filing but it did so in the context of having said, minutes earlier, that it was quite satisfied that the appellant and Mr Dobbie had resided in a de facto marriage relationship and, in effect, that submissions on that issue would not be required. In the circumstances the Tribunal's agreement to accept written submissions appears to have been directed to the extant subsidiary issue of waiver. The Tribunal would plainly need submissions about the subsidiary issue, because it had not had any and it had expressed some concern about that issue. The Tribunal said nothing to suggest any change in the view expressed through the presiding member that written submissions on what it called the substantive issue "would not be required, having heard all the evidence". Moreover, that appears to have been how it was seen by Mr Blackberry, who represented the respondent, because his written submissions referred to the Tribunal's finding on the primary issue but did not otherwise address it; he confined his submissions to the waiver issue.

In that special context the absence of any mention in the reasons for decision delivered some time later of any of the specific matters so strongly relied upon by the appellant in the written submissions as to the primary issue has a significance that does not ordinarily attach to the failure to mention particular points in reasons for decision. Although it is well established that the failure to mention a particular contention in reasons for decision does not necessarily demonstrate a failure to take that contention into account even where, as here, there is a statutory obligation to give reasons (see s.43(2) of the Administrative Appeals Tribunal Act), nevertheless a court may look at the whole of the circumstances to determine whether or not a particular matter was in fact considered.

A Full Court of this Court has previously held that the Administrative Appeals Tribunal should, in a statement of reasons for decision given pursuant to s.43(2) of the Administrative Appeals Tribunal Act, refer to submissions that are worthy of serious consideration and seriously advanced to the Tribunal: Dennis Willcox Pty Ltd v. Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 per Jenkinson J, Woodward and Foster JJ concurring.

I consider that Mrs Dobbie's final submissions, particularly as regards the question of the relative weight to be placed on the evidence of the solicitor on the one hand and the apparently conflicting evidence of the terms of the two wills on the other, were submissions worthy of serious consideration. The failure of the Tribunal to mention the submissions, in the context of the statutory obligation contained in s.43(2), tends to support an inference that those submissions were not considered. In Kentucky Fried Chicken Pty Ltd v. Gantidis (1979) 140 CLR 675 Stephen J with whom, subject to a presently irrelevant qualification Gibbs, Mason and Aikin JJ agreed, said (at 682):

"Where appellate administrative tribunals are required by statute to include in their decisions a statement of reasons for arriving at them there will be little difficulty in assigning some significance to silence; it will at least reveal a failure to comply with the requirement of the statute and may go so far as to impugn the decision itself..."

In the circumstances of the present case I consider that the conclusion to be drawn is that the Tribunal did not change its mind but remained of the view, expressed at the hearing, that submissions on the substantive issue were not required. What it intended should be given, and what it took into account, were the written submissions on the subsidiary question of waiver. I do not think it should be concluded that the Tribunal did, after all, take into account the appellant's submissions on the substantive issue and it follows that, in my view, the receipt of written submissions which included submissions on that issue did not result in the appellant having had the opportunity to present her case, an opportunity that in an
important respect was denied to her at the hearing.

I would therefore allow the appeal from the decision of the primary judge. In place of his Honour's order dismissing the application by way of appeal from the decision of the Administrative Appeals Tribunal I would order that that appeal be allowed, that the decision of the Tribunal dismissing the application for review of the decision of the Social Security Appeals Tribunal be set aside and that the matter be remitted to the Administrative Appeals Tribunal for rehearing. The respondent should pay the costs of the application by way of appeal to the primary judge and of this appeal.

There is no substance in the complaint, which does not appear to have been raised before the primary judge, that the Tribunal in some way erred in law by adjourning the final part of the hearing to a date, some three months after the initial two days of hearing, upon which counsel for the appellant was unavailable. The adjournment of a part-heard case can give rise to various difficulties and the unavailability of counsel on a later date suitable to the court or tribunal and the other parties is one of them. Cases can be envisaged in which a party would be gravely prejudiced if a part-heard case were adjourned to a date upon which counsel who had the conduct of the matter was, for some good and unavoidable reason, unavailable but this was not such a case. The issues were straightforward, there was no witness whose evidence was part heard, a full transcript was available and the time for which the matter was to be adjourned was quite sufficient for other representation to be obtained or, as happened, for the solicitor for the appellant to take over the case.

I certify that this and the preceding 10 pages are a true copy of the reasons for judgment of the Honourable Chief Justice Black.

Associate:

Date:

IN THE FEDERAL COURT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY ) No. VG347 of 1994

GENERAL DIVISION )

On appeal from a judge of the Federal Court of Australia

BETWEEN: MARY DOBBIE

Appellant

AND: DEPARTMENT OF SOCIAL SECURITY

Respondent

CORAM: Black CJ, Jenkinson and Heerey JJ.

PLACE: Melbourne

DATE: 7 April, 1995

REASONS FOR JUDGMENT

JENKINSON J.

The circumstances giving rise to the appeal and the questions which the appeal raises are rehearsed in the reasons for judgment of Heerey J. which I have had the advantage of reading.

I agree, for the reasons Heerey J. gives, that the Administrative Appeals Tribunal was required by law to afford the appellant the opportunity to present, by the person representing her, her submissions concerning the findings to be made by the Tribunal as to whether at relevant times she was a person who was living with another person of the opposite sex on a bona fide domestic basis.

It is in my opinion clear that when the proceeding before the Tribunal was adjourned on 22 December 1922 the Tribunal had plainly declared its intention not to comply with that requirement. Thereafter the presentation to the Tribunal of written submissions on behalf of the appellant, not only on the subject on which submissions had been invited by the Tribunal but also concerning the findings to be made on the subject about which the Tribunal's conclusion had been declared on 22 December, enabled the Tribunal to comply with that requirement if it should choose to give consideration to the written submissions on the latter subject.

I would be surprised if the Tribunal failed to give consideration to those submissions, which were of no great length and which it would be natural that a member of the Tribunal would read to make sure he had not erred in reaching the conclusion which the Tribunal had declared. But the ancient injunction, audi alteram partem, was and is not designed merely to guide the exercise of the power to determine persons' rights and obligations. It is designed to assist those persons and the members of the community among whom the power is exercised to accept the determination made as fairly made, whether or not the determination is thought by those persons to be correct. As in a case of apparent bias, those who have extensive experience of the process of making such determinations and are acquainted with the decision maker are likely to accept the determination as fairly made. But the parties affected by the determination and those other members of the community whose attention is drawn to it will commonly lack both that experience and that acquaintance. It is one of the principal purposes of the rule audi alteram partem, as of disqualification for apparent bias, that the parties and the community may be enabled to accept the determination made as fairly made.

There is nothing in the text of the Tribunal's reasons for its decision to indicate that the Tribunal had given consideration to any of the written submissions on the question whether the appellant lived at relevant times with Mr. Dobbie on a bona fide domestic basis. The absence of such an indication leaves unqualified the statements by the Deputy President on behalf of the Tribunal on 22 December 1992, which statements had in my opinion constituted a refusal to entertain submission on that question. To the parties and interested members of the community there has been no indication by the Tribunal of a change of mind about that refusal. The cases which establish that omission of reference to a submission in reasons for an administrative decision does not necessarily support a conclusion that the submission has not been considered do not contradict a conclusion that omission of reference to submissions on an issue which have been made in disregard of an unqualified refusal to entertain submissions on that issue leaves the refusal unqualified.

In Stead v. State Government Insurance Commission (1986) 161 C.L.R. 141 at 145-146 the High Court observed:

"It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact."

For a court restricted to review for error of law the task is even harder. I cannot be satisfied that the denial of natural justice in this case could have had no bearing on the determination of the issue of fact.

I agree with Black C.J. that there is no substance in the other ground of appeal, and for the reasons his Honour gives.

I agree in the orders proposed by the Chief Justice.

I certify that this and the 3 proceeding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.

Associate

Dated: 7 April, 1995

IN THE FEDERAL COURT OF AUSTRALIA)

)

VICTORIA DISTRICT REGISTRY ) No. VG 347 of 1994

)

GENERAL DIVISION )

B E T W E E N:

MARY DOBBIE

Appellant

- and -

DEPARTMENT OF SOCIAL SECURITY

Respondent

CORAM: Black CJ, Jenkinson and Heerey JJ

DATE: 7 April 1995

PLACE: Melbourne

REASONS FOR JUDGMENT

HEEREY J:

Between 6 October 1983 and 1 May 1989 the appellant was in receipt of a widow's pension. A delegate of the Secretary of the respondent decided to raise an overpayment of pension amounting to $30,288.50 on the ground that during the period mentioned a de facto relationship was in existence between the appellant and a Mr John Dobbie. Another delegate made a decision not to waive the debt in respect of such overpayment, either in whole or in part, under s 1237 of the Social Security Act 1991 (Cth).

The appellant sought review of those decisions by the Social Security Appeals Tribunal and thereafter by the Administrative Appeals Tribunal (the Tribunal). Both applications were unsuccessful, except that the Tribunal decided that recovery of the overpayment should be waived as to 50 per cent.

The appellant then appealed to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Her appeal was dismissed by Sweeney J on 15 September 1994. She now appeals against his Honour's decision.

Issue on the Appeal

The case of the appellant before us was that the hearing before the Tribunal disclosed a failure to accord her natural justice by giving her a reasonable opportunity to present her case.

Evidence Before the Tribunal

The appellant was born in 1922. Her first husband died in 1959. She is the owner and occupier of a house at 276 Richardson Street, Middle Park. The appellant first met Mr Dobbie in about 1975 when he came to fix her television set. According to the appellant, the relationship which thereafter ensued did not go beyond social outings and occasional overnight stays, during which Mr Dobbie occupied a separate room. Mr Dobbie had a house of his own in Prahran which he sold in 1988.

Mr Dobbie conducted a television repair business under the name "J Campbell Television Service". For a number of years in the relevant period that business was advertised in the Yellow Pages of the Melbourne Telephone Directory with the appellant's home telephone number. There was also a sign advertising the business painted in the front window of the appellant's house giving Mr Dobbie's Prahran telephone number.

In 1983 the appellant instructed her solicitor to make an application to the Registrar of Titles for removal of a carriageway easement affecting her property. In support of her application she made statutory declarations in September and October 1983 in which she described herself as "Mary Alice Dobbie formerly Mary Ellesley of 276 Richardson Street, Middle Park in the State of Victoria, married woman". In November 1984 Mr Dobbie made a statutory declaration in support of the application in which he described himself as being "of 276 Richardson Street, Middle Park in the State of Victoria TV repairman" and deposed "That I am the husband of Mary Alice Dobbie of 276 Richardson Street, Middle Park".

Mr Dobbie claimed the appellant as a dependant spouse in income tax returns for the years 1985 to 1989. There was evidence of an extract of title of Mr Dobbie's Prahran property which revealed that when he became registered as proprietor on 24 February 1978, following the registration of the transfer to him from the executor of the will of his late wife, his address was given as 276 Richardson Street, Middle Park. Although this change of address occurred before the relevant period, Mr Dobbie continued using the appellant's address thereafter and throughout the relevant period.

In about March 1989 the respondent department commenced an investigation of the appellant's circumstances, following an allegation made by an informer that she was living in a de facto relationship with Mr Dobbie. When interviewed on 6 April 1989
she denied that allegation. On 26 April 1989 she wrote to the department stating that she was to be married to Mr Dobbie on 29 April. The marriage in fact took place on that date.

Up until 30 April 1989 the relevant statutory definition of a widow under the Social Security Act 1947 excluded

a woman who is living with a man as his wife on a bona fide domestic basis, although not legally married to him.

On 1 March 1989 the widow's pension was replaced by a "sole parent's pension". Persons were disqualified from such a pension if they were a "married person", which included a "de facto spouse", that is to say

a person who is living with another person of the opposite sex as the spouse of that other person on a bona fide domestic basis, although not legally married to that other person. (s3(1))

The application of these statutory tests required "all facets of the inter-personal relationship of the two persons ... to be taken into account": Lambe v Director-General of Social Service (1981) 38 ALR 405 at 413.

Proceedings Before the Tribunal

The hearing of the application to the Tribunal constituted by Deputy President B M Forrest and Members G Brewer and L Rodopoulos commenced on 21 September 1992 and continued on the following day. Mr Peter Gebhardt of counsel appeared for the appellant and Mr Kim Blackberry, a departmental officer, for the respondent.

The hearing was not concluded on 22 September and the Tribunal adjourned the hearing to 22 December 1992. Mr Gebhardt said that he was not available on that day, but the Tribunal declined to fix another hearing date.

When the hearing resumed on 22 December the appellant was represented by Mr Gebhardt's instructing solicitor, Mr D Shaw. Mr Anthony Hill was called by Mr Blackberry. Mr Hill, who had acted for the appellant in connection with the easement application, testified as to the instructions given to him by the appellant and Mr Dobbie in relation to the statutory declarations. No objection was taken on the grounds of legal professional privilege.

After Mr Hill's evidence was completed the Deputy President announced:

Gentlemen, before we proceed further with this matter, there is a matter I would like to just take a short break to discuss with my colleagues.

Following a short adjournment the transcript records the following exchange:

THE D. PRESIDENT:Now, gentlemen, I have now had an opportunity to discuss the future course of this application with my colleagues. Mr Shaw, we propose to give an indication now that the tribunal will make an adverse finding against your client insofar as the nature of this dispute is concerned. On all the evidence that has been before the tribunal, we are quite satisfied that for the period in dispute the applicant and Mr Dobbie have resided in a de facto relationship. Its the consequences that flow from that that we wanted to draw to your attention this morning.

The difficulty for the tribunal is this: that as you would have had an opportunity to read the transcript, is that the consequences of that finding in regard to the overpayment is this: that the tribunal has not been given details of the
circumstances of your client for the purpose of how it treats the overpayment. It seems to us that it may well be an appropriate time now, in view of that finding, to have a short adjournment of this matter this morning to enable you to discuss with Mr Blackberry, to see if that second issue which flows from our finding, can be resolved.

Now, that is an opportunity we are extending to you, if you and your client wish to avail yourself of that. Alternatively, the tribunal would simply proceed on the basis of what is before it, but it seems to us that fairness would dictate that you be given that opportunity and that we adjourn this matter for an hour or so to see if you can endeavour to effect some resolution of the consequences which flow from the threshold finding.

MR. SHAW: It had been my intention to request that we make our final submissions in this matter in writing.

THE D. PRESIDENT:Yes.

MR SHAW: And the reason that we did that was because it was because Mr Gebhardt is obviously absent ---

THE D. PRESIDENT:Yes.

MR SHAW: And he has in fact prepared a draft final submission. I would prefer a situation where the matter was adjourned to early in the new year, when I might seek Mr Gebhardt's advice as to how we should proceed further on this thing.

THE D. PRESIDENT:Well, any submissions regarding what might be termed the substantive issue ---

MR SHAW: Yes.

THE D. PRESIDENT:--- would not be required, having heard all the evidence.

MR SHAW: But in terms of what we might be able to resolve with the department, I obviously have not had the opportunity to speak to Mr Blackberry ---

THE D. PRESIDENT:--- Well, that is right. This is what I am really saying to you now. I appreciate your position. You have come into the matter late ---

MR SHAW: But what I was going to just go on and say was that we have been attempting for some considerable period to reach some sort of resolution of this matter, obviously not in the expectation of the finding of the fact would go against us, but rather than have to go through the process that we have gone through before this tribunal previously. So on that sort of basis I am just not terribly optimistic that the department is going to be very accommodating of this. I mean, I have always felt that, in line with the observations which were made in the first SSAT decision, that this matter ought to be resolved something along the lines of the fact that Mrs Dobbie has always been entitled to the age pension and that would be the matter ought to be finally dealt with, but that certainly has not been a successful way for it as far as I can see, but I am happy perhaps to stand the matter down very briefly to see whether - or perhaps Mr Blackberry could indicate to the tribunal whether there is any purpose in these discussions

There followed some discussion between the Deputy President, Mr Blackberry and Mr Shaw as to whether any further negotiations should take place. The transcript then records:

THE D. PRESIDENT:Well, do I take it that you do not wish to avail yourself of this opportunity; for the matter to be stood down? Is that, what I understand ---

MR SHAW: Yes, that is correct.

THE D. PRESIDENT:You do not wish to do that?

MR SHAW: I do not.

THE D. PRESIDENT:No. All right. Very well then.

MR SHAW: Can I perhaps indicate that Mr Gebhardt will be back in his office on 5 January. I think that if we had the opportunity to discuss with Mr Gebhardt the transcript of what transpired today and perhaps if we could undertake to come back to you perhaps a fortnight after 5 January, given that I will not be back in the office until 11 January, but I can certainly start Mr Gebhardt on the process on 5 January, even if I am not around.

THE D. PRESIDENT:Very well. Well, the applicant is given until 22 January to submit any final submissions and the respondent will have seven days thereafter, which will be 29 January. Is there anything else gentlemen?

MR SHAW: No.

THE D. PRESIDENT:Thank you. We will now adjourn.

Mr Gebhardt prepared written submissions dated 22 January 1993 which were lodged with the Tribunal. The submissions commenced

Notwithstanding the decision made with respect to the applicant and the findings as yet being undisclosed to the applicant, the following submissions are made with respect to this matter.

The submissions then proceeded to canvass the evidence as to the issue of de facto relationship as well as the issue of waiver.

Mr Blackberry lodged written submissions which commenced

Given the Tribunal's indication that a finding will be made against the applicant in the substantive matter the submission will only address the question of waiver.

On 23 April 1993 the Tribunal handed down a decision affirming the decision to raise an overpayment of $30,288.50 but varying the decision as to waiver to the extent that the right of the Commonwealth to recovery of the overpayment be waived as to 50 per cent.

Although there is no specific reference to Mr Gebhardt's written submissions as a document, the Tribunal's reasons include the expression "it was submitted" (at 15) in a context which, on comparison with the written submissions, makes it clear that arguments in that document are being discussed.

On the issue of de facto relationship, the Tribunal reviewed the evidence and concluded (at 12):

Considering all the circumstances, we think it more probable than not that they lived on a bona fide domestic basis at 276 Richardson Street, Middle Park during the relevant period despite their evidence to the contrary.

There is no explicit textual link between the discussion of matters on the de facto relationship issue in the Tribunal's reasons and Mr Gebhardt's written submissions. Mr Gebhardt had stressed the significance of the parties' wills in the following passage (underlined in his submissions):

It is our submission that the wills in referring to "my friend" and "unmarried" and the cogent fact of their date - 1988 (before any investigation) point to a relationship which is difficult to categorise, beyond the mutuality of two elderly people, but which is not one that leads to the applicant/appellant being caught by the provisions of the Act.

The Tribunal's reasons contain no reference to this point.

Decision of Primary Judge.

At first instance Sweeney J reviewed the competing arguments and found that the appellant had failed to establish that there was any error by the Tribunal in respect of its findings.

I now turn to the issues which were raised on the appeal before us.

Adjourned Date - Availability of Counsel

In my view, the Tribunal was, in the circumstances of this case, entitled to select a date for the adjourned hearing even though it did not suit the appellant's counsel. When any hearing is adjourned part-heard, a court or tribunal will ordinarily try to suit the availability of counsel as far as is reasonably practicable, but counsel do not have an absolute right to veto a date which does not suit them.

If, as seems a reasonable assumption, the Tribunal was unable to fix an earlier date than 22 December 1992, the date chosen involved an adjournment of three months. That delay was getting close to the outer limits of what was acceptable if some semblance of continuity in the hearing was to be retained. With the immediate onset of the Christmas break any further delay would have created more difficulty. A transcript was available
and there was ample opportunity to obtain alternative representation, either by briefing other counsel or, as in fact happened, Mr Gebhardt's instructing solicitor appearing himself.

Natural Justice - Presentation of Case

Notwithstanding the submissions of counsel for the respondent, what the Tribunal said as to the substantive issue on 22 December 1992 could not reasonably be regarded as tentative, provisional or subject to further argument. In its terms the Tribunal's statement was quite unequivocal:

On all the evidence that has come before the tribunal, we are quite satisfied that for the period in dispute the applicant and Mr Dobbie have resided in a de facto relationship.

The discussion which followed was confined to what should be the consequences of that finding, viz whether there should be any waiver and, if so, to what extent.

If the Tribunal was obliged to receive submissions on behalf of the appellant as to fact and/or law, then there was a breach of that obligation. The question would then arise whether such breach was cured by the acceptance of Mr Gebhardt's subsequent written submissions.

In my opinion there was such an obligation in the circumstances of the present case. Section 39 of the Administrative Appeals Tribunal Act provides that, subject to some other sections of the Act not presently material,

... the Tribunal shall ensure that every party to a proceeding before the tribunal is given a reasonable opportunity to present his case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

I do not read the concluding reference to submissions in relation to documents as cutting down by implication the extent of the expression "a reasonable opportunity to present his case".

The Tribunal's jurisdiction extends to cases raising a very wide variety of disputed legal and factual issues. Generally speaking, the procedure to be adopted by the Tribunal is within its discretion: s 33(1)(a). However in the present case the issue as to the existence or otherwise of a de facto relationship turned on a number of primary facts. Some of those facts were disputed. Other facts, such as the making of the statutory declarations, were not disputed but provoked explanations or qualifications, the veracity of which in turn had to be assessed. To urge on the appellant's behalf the significance all these facts had for the ultimate issue was a task appropriate for the professional skills of analysis and persuasion possessed by the legal practitioners who acted for the appellant. The Act confers on parties before the Tribunal a right to be represented "by some other person": s 32. Obviously enough, that other person may not be a legal practitioner. But the Act recognises the importance to the effective presentation of a party's case of having his or her chosen representative present the case. The proper presentation of a case of this nature on behalf of the appellant necessitated the opportunity to draw everything
together in a final submission - although not necessarily an oral one.

But written submissions were subsequently lodged on behalf of the appellant and accepted by the Tribunal. In a way, the question which then arose bears some analogy to the issue of waiver of the right to complain about apparent bias: cf Vakauta v Kelly (1989) 167 CLR 568 at 571, 577, 587. In that case Toohey J, with whom Brennan, Deane and Gaudron JJ were in general agreement, said (at 587):

There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the judge to withdraw from the case. It may be enough that counsel make clear that objection is taken to what the judge has said, by reason of the way in which the remarks will be viewed. It will then be for the judge to determine what course to adopt, in particular whether to stand down from the case. For counsel to invite the judge to withdraw from the case may be quite premature, particularly if the judge acknowledges the apparent bias in what has been said and thereafter takes steps to dispel that apprehension. But, as Dawson J noted in Re JRL; Ex parte CJL (1986) 161 CLR 342, suspicion of bias based on preconceptions existing independently of the case `may well be ineradicable'. In that situation there will be no option but to ask the judge to disqualify himself. In any event objection must be taken: see Re McCrory; Ex parte Rivett (1995) 21 VLR at p 6. It was not taken in the present case.

In the result, when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased.

But such observations are useful by way of analogy only. Counsel for the appellant in the present case made no complaint on the grounds of apparent bias (still less actual bias). The present case does not involve any apprehension of bias, in the sense of predetermination of an issue. Rather the complaint is that on the substantive issue of de facto relationship the hearing
terminated prematurely and before the appellant's counsel had a reasonable opportunity to present her case. There is no suggestion that there was any ground for apprehension of bias, in the sense of prejudgment, of the issue prior to the Deputy President's announcement after the short adjournment on 22 December 1992. The present case therefore is one where the complaint is, on proper analysis, one of a denial of natural justice which affected the entitlement of the party to make submissions on an issue of fact: cf Stead v State Government Insurance Commission (1986) 161 CLR 141.

The circumstances already mentioned in relation to the waiver issue show that the Tribunal in fact received and read Mr Gebhardt's submissions. It cannot be concluded that the Tribunal did not also take into account the matters urged in the written submissions on the de facto relationship issue. The fact that the Tribunal's reasons made no explicit reference to the written submissions or matters contained in them in relation to this issue is not conclusive: Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at 678, 680, 682. It is true that the Tribunal, in contrast to the administrative body with which Gantidis was concerned, had a statutory duty to give reasons for its decision: s 43(2). However not every failure by the Tribunal to mention a contention advanced on behalf of a party will amount to failure to comply with such a requirement or demonstrate that the contentions were not considered in deciding the matter before the tribunal: Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 per Jenkinson
J (Woodward and Foster JJ agreeing). In Dennis Willcox the Full Court concluded that there had been a failure by the Tribunal to take into account a particular contention; but the contention in question was a discrete question of fact and law, namely the quantum of the amount to be assessed under s 26(a) or s 26AAA of the Income Tax Assessment Act 1936 (Cth), quite apart from the question whether there should have been any assessment at all. It was, as it were, a separate compartment of the case "worthy of serious consideration and seriously advanced to the Tribunal" (ibid).

Notwithstanding that the Tribunal indicated on 22 December 1992 that it had come to a firm and final conclusion on the de facto relationship issue, it did not then pronounce a legally binding decision. When the members subsequently received and read the written submissions on behalf of the appellant, it was still possible for them to change their minds, in the sense that this was a course legally open to them (subject however to giving Mr Blackberry an opportunity to respond: cf Stead). The most likely reason why they did not change their minds was that the case against the appellant was a strong one and there was nothing in Mr Gebhardt's submissions, able and comprehensive though they were, to persuade them to such a change. I do not draw the conclusion that the members of the Tribunal deliberately shut out of their minds, and refused to consider, that part of the submissions dealing with the substantive issue.

The most that can be said is that some evidentiary material such
as the wills of the appellant and Mr Dobbie relied on in support of the appellant's case were not mentioned in the Tribunal's reasons. A decision-maker is not required, in reasons for decisions, to deal with every item of evidence and every factual contention advanced on behalf of a party.

The appeal should be dismissed with costs, including reserved costs.

I certify that this and the preceding fourteen (14) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Dated: 7 April 1995

Associate

Counsel for the Appellant: S P Gebhardt

Solicitors for the Appellant: Holding Redlich

Counsel for the Respondent: C Gunst

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 10 March 1995

Place of Hearing: Melbourne

Date of Judgment: 7 April 1995

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