FEDERAL COURT OF AUSTRALIA

Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority

[2014] FCA 314

THE COURT ORDERS THAT:

1.    Dispensation is granted to the respondent from the operation of r 33.30(1) of the Federal Court Rules 2011 (Cth).

2.    The objection to the competency of the appeal is upheld.

3.    The appeal is dismissed.

4.    On or before 4.00pm on 11 April 2014, the parties file and serve written submissions they wish to make as to the costs of this proceeding, limited to 3 pages.

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

REASONS FOR JUDGMENT

INTRODUCTION

1        On 17 October 2013, the applicant filed a notice of appeal in this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Tribunal made on 17 September 2013. By that decision, the Tribunal refused, pursuant to s 42A(10) of the AAT Act, to reinstate the applicant’s application for review in the Tribunal. That review application related to the decision of the respondent to refuse the applicant registration as a registered training organisation (RTO) under the National Vocational Education and Training Regulator Act 2011 (Cth) (the Act).

2        By a notice filed in this Court on 28 November 2013, the respondent has objected to the competency of the appeal. The objection to competency was listed for separate determination by the Court. Prior to the hearing of the objection to competency and, in order to give the applicant a reasonable opportunity to present argument on the objection to competency, the Court dispensed with the requirement under r 4.01(2): see Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 46. The dispensation was expressed to operate only until the determination of the respondent’s objection to competency.

3        The practical effect of the dispensation was to allow Mr Simon Smith to appear on behalf of the company. Mr Smith is the sole director and shareholder of the applicant. The evidence suggests Mr Smith is the sole director and shareholder of at least one other corporation, and that through these companies he proposed to market 30 different vocational education and training qualifications across five industry areas. To do so required the applicant, and any other corporation, to be registered under the Act.

4        As I found in the dispensation decision, Mr Smith is the single individual sitting behind the applicant company. He obviously controls and directs all its operations, and undertakes decision-making on its behalf. He has conducted this proceeding on behalf of the applicant, including filing numerous and lengthy affidavits and submissions. I considered it was appropriate to allow him personally to make submissions on behalf of the corporation in respect of the objection to competency.

5        For the reasons which follow, the objection to competency will be upheld. No question of law is stated in the notice of appeal and this Court has no jurisdiction under s 44 of the AAT Act. It is not appropriate to consider granting leave to amend the notice of appeal, first because no such application has been made and secondly, even if it were, there is no indication that if leave were granted a question of law sufficient to found this Court’s jurisdiction would be identified by the applicant.

EVIDENCE ON THE OBJECTION TO COMPETENCY

6        Subject to one matter which I deal with below, the evidence before the Court on the objection to competency hearing was not contentious. The Court has before it the Tribunal’s reasons dated 11 October 2013, the transcript of proceedings before the Tribunal on the reinstatement application on 17 September 2013, the full transcript of the second day of hearing before the Tribunal on review on 21 August 2013, and an extract (tendered by the applicant) of the Tribunal hearing on the first day of the review on 20 August 2013. The Court also had in evidence the parties’ statements of facts and contentions before the Tribunal on the review in August 2013, and the notification of discontinuance/withdrawal under s 42A(1A) of the AAT Act, filed in the Tribunal by the applicant’s counsel on the second day of the review hearing, 21 August 2013. The applicant tendered, without objection from the respondent, a bundle of material which was before the AAT which it submitted formed part of the material on which its legal arguments to the Tribunal were based.

7        The applicant also sought to rely on an affidavit of Simon Joseph Smith sworn 14 February 2014. The respondent objected to the admission of this affidavit in its entirety. The respondent submitted the contents were in reality submissions, and that parts of the contents were scandalous because they contained unsubstantiated allegations against officers of the respondent and its legal representatives. The respondent also objected on the grounds of relevance to much of the content of the affidavit.

8        The affidavit does make serious allegations against officers of the respondent, its legal representatives and the Tribunal. Although those allegations may deal with matters of great concern to Mr Smith, and no doubt if invited he would wish to try and substantiate them, they have no place in documents dealing with an appeal on a question of law from the Tribunal’s refusal of a reinstatement application. Despite his “undertakings” to the Court on the occasion of the dispensation application, and despite what was said in my reasons for judgment on the application for dispensation from legal representation, Mr Smith seems determined to continue to make inflammatory allegations. Absence of legal representation does not mean that individuals (whether representing themselves or, as in this case, a corporation) are freed from the constraints of respectful and restrained behaviour which are expected to attend participation in legal proceedings. Mr Smith’s conduct is not, in my opinion, yet at the persistent level of disregard and inappropriateness found by the Full Court in Bahonko v Nurses Board of Victoria [2008] FCAFC 29 at [10], nor by Mansfield J in Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42; [2010] FCA 413 at [34]. However, his allegations are inflammatory and no doubt offensive to those at whom they are directed.

9        Therefore, if the contents of the affidavit were otherwise relevant and admissible, I would in an exercise of discretion pursuant to s 135 of the Evidence Act 1995 (Cth) decline to admit those parts which contain allegations against the respondent, its legal representatives and the Tribunal.

10        However, the contents of the affidavit are inadmissible. In large part, the contents are argumentative and do not depose to facts. Other parts (such as Mr Smith’s assertions about how important the truth is to him) are self-serving and irrelevant to any matters before the Court. Where the affidavit does deal with factual matters (such as the asserted lack of time and resources at Mr Smith’s disposal to conduct this proceeding), those matters are not relevant to the question whether the applicant’s notice of appeal raises a question of law, although no doubt Mr Smith sees them generally important to explain how difficult he has found it to conduct this proceeding on behalf of the company.

11        Where the contents of the affidavit effectively make arguments in support of the identification of a question of law in the applicant’s notice of appeal, or in support of the applicant’s contention concerning denials of procedural fairness by the Tribunal, I have read and considered those matters as a submission. Except in that limited sense, I have not taken into account the contents of Mr Smith’s affidavit.

REVIEW IN THE TRIBUNAL

12        The applicant had applied to the respondent for registration as a RTO operating in Tasmania. In its application it relied on an audit conducted in Western Australia of another corporation controlled by Mr Smith. The applicant contended that, since it would mirror the standards, staff resources and management of the Western Australian corporation, the respondent could be satisfied of all requisite matters and should approve the registration.

13        The respondent apparently did not agree, and refused registration. In particular, it appears there was a “compliance report” in respect of the applicant, which was undertaken for the respondent and upon which it relied in refusing registration. The applicant, and Mr Smith, disputed the legitimacy of this report in several ways. In the Tribunal, the applicant sought to persuade the Tribunal on the merits as to why it should be found to be compliant with all mandatory considerations under the Act.

14        However, as a threshold matter, the applicant raised a legal argument before the Tribunal. It contended that, by reason of the operation of some transitional provisions under the National Vocational Education and Training Regulator (Transitional Provisions) Act 2011 (Cth) (Transitional Act), its application was deemed to have been approved. In particular, the applicant contended that Tasmania met the definition of a “referring state” in s 5(1)(b) of the Act, and that the “relevant commencement day” for the new law for Tasmania therefore was that set out in paragraph (b) of the definition in Schedule 1 of the Transitional Act — namely, the date the relevant referring state legislation received Royal Assent. This date was 22 December 2011. Section 7(1)(c) of the Transitional Act provides that, where an application is pending before a state regulator at the relevant commencement day (such as the applicant’s), the national regulator must decide that application under the new law within six months of the relevant commencement day. Item 11(4) of Schedule 1 to the Transitional Act provides that, if a decision is not made within that six-month period, the application is taken to have been granted. The decision of the respondent to refuse registration was not made until 1 August 2012 and, therefore, the applicant contended, the applicant’s application should have been deemed to be granted. The respondent contended in response that, by operation of s 7(2) of the Act and cl 4(iii) of the National Vocational Education and Training Regulator Act (Classification of States) Determination 2011 (Cth), Tasmania was covered by s 7(2) of the Act, for which the relevant commencement day is the date the adopting state law comes into force. That date for Tasmania was 15 February 2012 and, the respondent contends, therefore the decision was made well within the prescribed six-month time limit.

15        The presently important feature is that the applicant put what it contended was a straightforward legal argument resulting in its application for registration being deemed to have been approved. The applicant sought to have the Tribunal determine the review on this basis. I shall refer to this as “the applicant’s legal contention”. For completeness, I note the applicant also raised an improper purpose argument which it said vitiated the respondent’s refusal decision at first instance.

16        A copy of the applicant’s statement of facts and contentions filed with the Tribunal, together with attachments, was in evidence before the Court on the objection to competency hearing. It is signed by a member of counsel at the Victorian Bar. It presents, clearly and succinctly, the applicant’s legal contention, the improper purpose argument and other contentions on the merits of the respondent’s refusal decision.

17        The review application was listed for hearing on 20-23 August 2013 and commenced as scheduled. Counsel who prepared the applicant’s statement of facts and contentions appeared on behalf of the applicant. Mr Smith made some suggestion before this Court that her appearance was in some way qualified, but I find that the transcript extract of the first day of hearing, and the whole transcript of the second day of the Tribunal hearing, demonstrate counsel acted in the usual fashion on behalf of the applicant. The Tribunal conducted the review consistently with ordinary practice, by addressing counsel for the applicant and the legal representative for the respondent, as it usually would. Despite some suggestions in submissions by Mr Smith that, had the Tribunal hearing proceeded, he would have cross-examined the respondent’s witnesses himself, on the evidence before the Court and to the point at which a withdrawal notice was filed by the applicant with the Tribunal, it is clear the applicant was legally represented in the Tribunal.

18        The Tribunal’s reinstatement refusal decision then records the following in terms of the course of the merits review hearing in August 2013 (Avetmiss Easy Pty Ltd and Australian Skills Quality Authority [2013] AATA 732):

3.    … The hearing commenced on 20 August 2013. Mr Smith was called as the first witness for the Company and was being cross-examined on behalf of the Authority when the hearing was adjourned to resume at 10am the following day, 21 August 2013.

4.    When the hearing resumed Mr Smith was not present to continue giving evidence. Counsel for the Company informed the Tribunal that she was instructed:

    To seek to have the Tribunal decide a particular legal issue which was in contention between the parties; and

    If the Tribunal was not able to confine its decision to the legal issue alone, the application was to be withdrawn in its entirety.

5.    After considerable discussion between the Senior Member, Counsel for the Company and Counsel for the Authority, the Senior Member informed the parties that in order to decide the legal issue as requested by the Company, it would be necessary to continue to hear the matter. This would have required a resumption of the taking of Mr Smith’s evidence. The Senior Member indicated that he would do this if that was the wish of the Company. At this point Counsel for the Company advised the Tribunal that in those circumstances she was instructed to withdraw the application.

6.    Whilst the hearing was still being conducted Counsel for the Company completed and lodged with the Tribunal a written notice in accordance with sub-section 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) withdrawing the application. The notice was signed by Counsel for the Company and was dated 21 August 2013. The relevant part of the document read:

In accordance with section 42A (1A) of the Administrative Appeals Tribunal Act 1975, I hereby advise the application is discontinued/withdrawn.

19        I am satisfied from an examination of all the evidence before the Court that is an accurate summary of what occurred. The applicant’s legal contention, which I have described, was the “particular legal issue” identified in the Tribunal’s reasons.

20        Despite the withdrawal of the application for review being on the express instructions of Mr Smith, on 23 August 2013 (that is, two days later) Mr Smith then applied on behalf of the applicant for reinstatement of the review application.

21        The Tribunal’s reinstatement power is contained in s 42A(10) of the AAT Act. The reinstatement application was set down for hearing on 17 September 2013. Mr Smith appeared on behalf of the applicant at that hearing and the respondent was represented. The transcript of that hearing in evidence before the Court reveals that Mr Smith had filed a written submission on behalf of the company before the hearing.

22        The Deputy President indicated that he had read the transcript of the review hearing in August 2013. The following exchange occurred:

DEPUTY PRESIDENT: You have a need to show that the application that was previously before the Tribunal was dismissed in error.

MR SMITH:    I think it is extremely important; and it wasn’t dismissed, it was withdrawn.

DEPUTY PRESIDENT:    No, actually it was dismissed under the Act. Once you lodge a notice of withdrawal, then by force of the Act it’s then dismissed.

23        Mr Smith then sought to explain matters to the Tribunal which he said were important for it to understand. The Tribunal sought to have Mr Smith focus on the Tribunal’s reinstatement power and why he contended it should be exercised. During the course of exchanges between Mr Smith and the Tribunal, Mr Smith alleged that his counsel had not informed him that the withdrawal of an application for review meant that it would be treated as dismissed. The Tribunal pointed out to Mr Smith that he had been in the witness box at the end of the first day of the review hearing and he was not even in attendance at the start of the second day. I extract what I consider to be the relevant parts of Mr Smith’s responses:

MR SMITH:    Yes, because the Tribunal had taken a completely different approach and wouldn’t listen to a word I said, even though I showed proof and evidence on paper.

DEPUTY PRESIDENT:    You were, as I understand it, in cross-examination at the time.

MR SMITH:    Yes, under a document that is illegal, that the Tribunal should have, on its own initiative, validated before letting it get past into evidence … But this matter went far and beyond, and then he put me to a point of utmost stress by showing my life savings to the whole court for no reason. But not even the Regulator does that.

…

He rejected my evidence of an equivalent audit report under the same Acts and Standards, and that if you’ve read the intent of the Act, of the ASQA Act, you would realise that the whole reason is that it was created because of the inconsistency between the States.

…

So, are you telling me that he can provide an unfair hearing that is essentially, in my view, breaches of my natural justice? It is illegal and because of the withdrawal it falls outside of it being in error.

DEPUTY PRESIDENT:    Again, Mr Smith, I am not telling you anything about the hearing other than the fact that I have taken into account – or, if necessary, would take into account – that you did not attend for the continuation of cross-examination if I got to that point.

MR SMITH:    Because the evidence was void.

24        The Deputy President again sought to have Mr Smith focus, not on the course of the hearing before the Tribunal, but what Mr Smith said was the error for the purposes of the reinstatement power under s 42A(10). Mr Smith then gave the following explanation:

MR SMITH:    The error which gave rise was the fact that I was put under examination under a false document and therefore I lost faith in this Tribunal as being fair and just; and I was deprived of my rights of a fair hearing and I gave up and I said to counsel, “Continue, on the legal merits, on a legal basis because on the legal basis we’re deemed deregistered because it was a void decision, it was made for an improper purpose” and she had so much evidence and case law on that, that I provided. And if you look at the transcript that was provided by Mr Cribb I don’t see two days worth of legal discussions, I don’t think it was given due consideration. So therefore this last resort was if the Tribunal won’t act within its responsibility to abide by an Act, which you don’t have discretion over, then withdraw.

DEPUTY PRESIDENT:    Yes, and that’s what the company did.

MR SMITH:    Yes, but you didn’t abide by the Act and you don’t have discretion. He promised to go through the legal submissions. He didn’t.

…

MR SMITH:    … This is supposed to be a fair and efficient, cost-effective Tribunal and for someone to pay $40,000 and on Day 2 to just have it wiped out in 30 minutes does not seem fair to me, and it was wiped out due to an error; and the error was that the Tribunal failed to look at all the facts and reasons of law for the actual case. Because I gave up on – I tried to tell them that they were wrong on the actual merits point of view and I thought, okay, “Well if you want to make a decision on me I’ll just go straight to the Federal Court. That’s fine.”

But on the deeming point of view I was right, and I was right as well on the merits. But in deeming you’ve had the jurisdiction to hear it and he promised it. He promised a hearing on the deeming of the void decision and we didn’t’ get it.

…

So my understanding was, with regards VCAT and other areas, and other places that are supposed to be fair, is that if you withdraw with the right to reinstatement then you can come back and you can show the deficiencies and you can tell the deficiencies and you can even say where the path went wrong.

…

MR SMITH:    It was the morning of that day, about five minutes before where I said, “Run the legal, take your two days, do what you have to do. I want to be deemed and then I’ll go to the Federal Magistrates Court when they cancel it the next day.” They already set me up for failure. The very first they said they’re going to cancel me if I’m registered – on a technicality.

…

No, I decided that I had answered all the questions that parliament intended by saying that, “My evidence is in my compliant order report which created your Act”.

25        The respondent’s representative then submitted there was no “error” by the Tribunal for the purposes of s 42A(10). As to Mr Smith’s argument about the deemed decision, the respondent’s representative submitted (omitting interruptions from Mr Smith and comments from the Deputy President):

MR CRIBB:    … To potentially bore you with the detail, there were two issues in what could be described as the deeming issue. One was: on what date did the respondent have to make a decision by before the applicant was deemed deregistered under the transitional provisions? The respondent always said that date was the 14th or 15th of August 2012.

…

MR CRIBB:    The 14th or the 15th August 2012. On the first day of the hearing – and I haven’t got a copy of that transcript – the applicant conceded that that date was correct.

…

Thank you, Deputy President. The concession was made on Day 1 that because the respondent had made a decision on the 1st or 2nd of August, before the decision if I can put it that way; because that decision was made on that date the first issue of the deeming date went away because the alternative version that the applicant had maintained up until the first day of the hearing was that the relevant starting date for a six-month period was a date in December which meant we had until a date in June to make our decision. But the six months commenced on 15 February 2012, being the date of the operation of the Tasmanian legislation. So that was the first issue. I say that that was set aside.

The second issue was the applicant said – and this is in the transcript of 21 August but I’m paraphrasing. The applicant said that the decision that the respondent had made on the 1st or 2nd of August was void because it had not been made in accordance with the relevant legislation. A lot of discussion between the Senior Member and Ms Fitzgerald, counsel for the applicant, focussed on what was, in effect, the consequences of that. The case that the Senior Member referred to of Brian Lawlor – L-a-w-l-o-r – Automotive indicated that the Tribunal had the power to review a decision, even if the decision was not properly made, and that’s Brian Lawlor’s case; and the respondent had no problem with that.

26        The references by the respondent’s representative are to the well-established principle in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167, a decision of the then President of the Tribunal, Brennan J, affirmed on appeal: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1.

27        The respondent then submitted the applicant’s counsel was clear about her instructions to withdraw the application for review, and acted on those instructions. The transcript of the second day of the August 2013 hearing which is in evidence before me confirms that to be the case. The respondent then took the Tribunal to authorities about s 42A(10) and the meaning of “error”, and in particular Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383; [2002] FCAFC 367 at [27]-[35] per Wilcox and Downes JJ. The Deputy President indicated his familiarity with that decision and that he would take it into account.

28        The respondent then submitted that there was no “error” for the purposes of s 42A(10) because what occurred in the August Tribunal hearing was precisely what the applicant had instructed counsel to do. The respondent then also submitted even if there was some error, the Tribunal had a discretion under s 42A(10) and should not exercise it favourably to the applicant. The respondent pointed out that Mr Smith could have attended on the second day and taken the opportunity to talk to his counsel in more detail, but he elected not to.

29        In reply, Mr Smith identified the error in the August hearing as being that the Tribunal had indicated to the applicant’s counsel that it would not consider the legal argument without hearing evidence on the merits of the review application. He submitted:

He then used his discretion to not do the legal, and 30 minutes is not a two-day hearing – on extensive case law – because the void provision, even though it’s agreed that it’s been voided, it’s a question of: does that change the date of the actual deeming? You see, there are so many more factors that would open and if the date of the deeming was there then I’d been deemed. So, you see, it would have changed everything.

30        The Tribunal then gave an ex tempore decision, dismissing the application for reinstatement. During the giving of these reasons, there were further interruptions from Mr Smith, and exchanges with the Deputy President. From the transcript it appears Mr Smith began to leave as the Tribunal was delivering its reasons, but ultimately decided to remain. He did however, request written reasons from the Tribunal.

THE TRIBUNAL’S REASONS

31        The Tribunal’s written reasons are dated 11 October 2013: see Avetmiss [2013] AATA 732.

32        After setting out what it understood Mr Smith’s complaints to be about the Tribunal’s acceptance of the applicant’s withdrawal (and therefore the deemed dismissal) in August 2013, the Tribunal (at [14]-[15]) outlined the principles to be applied, by reference to Goldie (2002) 121 FCR 383; [2002] FCAFC 367:

The scope of the error which must be established to enable the Tribunal to exercise the discretion given to it by subsection 42A(10) of the Act is not limited to an administrative error made by the Tribunal or a member of its staff; any error sufficiently proximate to the dismissal under subsection 42A(1B) may enliven the discretion. However it is the act of dismissal, and not the preceding hearing, which must be shown to have been attended by error.

If there was an error in the manner of the conduct of the earlier hearing, the Company had available to it the appropriate remedies and was represented by Counsel who could have (and may have) advised the Company in relation to them. However the conduct of that part of the hearing which affected the lodging of the notice of withdrawal is a relevant consideration.

33        The Tribunal observed that the deeming provision concerning dismissal in s 42A(1B) is enlivened by the lodging of a notice of withdrawal and no “agreement” from the Tribunal is required. It expressed its view that Mr Smith well understood the effect of the instructions he gave to the applicant’s counsel, and rejected an argument that s 42A(10) involved a “right” to reinstatement.

34        The Tribunal then expressed its conclusion (at [21]) thus:

Having considered all of the issues raised on behalf of the Company I have decided that there was no error associated with the dismissal of these proceedings. The application was withdrawn by Counsel, in accordance with her instructions. This was done only after Counsel advanced the argument as to the manner in which the matter should proceed following Mr Smith’s decision to absent himself from the hearing. Prior to the application being withdrawn the Tribunal considered this argument and determined the question. It may be that Mr Smith’s expectations as to the time the argument would take and the likely outcome were not met. These are not relevant considerations.

35        In the alternative, the Tribunal also indicated that, even if it had found error, in the exercise of its discretion it would not have ordered reinstatement. It set out the applicable principles to the exercise of discretion from the decision of Re White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 204; [2007] AATA 1712, and concluded (at [25]-[27]):

In this matter the application of the first and second principles would have led me to the conclusion that the application should not be reinstated. On the material before me I am unable to determine whether the application, if reinstated, has merit. However in reaching my conclusion as to the exercise of the discretion I have assumed, for the benefit of the Company, that the application does have merit.

On 21 August 2013 the Tribunal heard argument from Counsel for the Company as to the manner in which the Company wished to have the hearing proceed. At the conclusion of this argument the Tribunal indicated that if the matter was to proceed further it would be necessary to continue to hear all of the relevant evidence. Without any justification, Mr Smith had absented himself from the hearing and was not available for his cross-examination to continue. Even if the notice of withdrawal had not been filed, the matter could not then have proceeded immediately.

The application for review was before the Tribunal for just under 12 months before it was withdrawn by the Company. The pre-hearing processes included two telephone conferences, three directions hearings and a conciliation conference. Both parties attended these conferences and hearings; substantial documentation was filed. In fairness to the Authority the administrative process should be finalised within a reasonable time and there should be certainty in administrative decision making.

THE NOTICE OF APPEAL UNDER SECTION 44

36        The respondent spent some time in submissions addressing the question of which decision was the subject of the notice of appeal in this Court. The notice contained the following passage:

The Applicant hereby appeals from the decision of ADMINISTRATIVE APPEALS TRIBUNAL VICTORIA made effective on 18th September at The Administrative Appeals Tribunal Vic.

The Tribunal decided to dismiss the application for reinstatement of a ‘sham hearing’ without using its inquisitive obligation because we were forced to withdraw due to a complete injustice and lack of procedural fairness, and the fact that everything said by me was ignored, despite being the most experienced person in the room in the subject matter. We were forced to withdraw due to a complete lack of procedural fairness and under the Act a withdrawal is deemed as a dismissal (Evidence of Dismissal attached). There was a reinstatement hearing which was dismissed (what I am appealing) because the DP did not hear any evidence in respect to the fair hearing rule due to the section of the Act that limits the withdrawal to show only an error in the withdrawal. Evidence was taken away and the member was bias, and under the belief of a Department whom had omitted vital facts and committed perjury. Furthermore, Mr Smith himself felt that there were inconsistencies the application of his human rights to give evidence and to the fair hearing rule in the unfinished substantive hearing where her was forced to withdraw because the Tribunal erred in refusing to hear legal contentions costing $40,000 compelling them to take a view straight from an Act of Parliament. They also erred in stating that that had to hear what they call ‘merits’ despite merits being shown – when even the decision maker made its decision without any evidence on the simple basis that it had ‘run out of time’. This is a failure of the justice system and an absolute lack of procedural fairness.

(Emphasis in original.)

37        The notice of appeal then reproduces parts of s 42A of the AAT Act, being the provision considered by the AAT on 17 September 2013 in relation to the applicant’s application for reinstatement.

38        In those circumstances, there is no doubt the decision under appeal is the Tribunal’s refusal to reinstate the applicant’s review application. Mr Smith confirmed this in oral submissions, accepting (albeit with some reluctance) that it was not possible to appeal from the applicant’s own conduct of withdrawing its merits review application.

39        The notice of appeal is discursive, and ranges over matters such as whether the applicant needs to be represented by a lawyer, the underlying claims forming part of the initial review before the Tribunal, and the alleged denial of procedural fairness on the day the applicant’s counsel withdrew the review application. It also then touches on complaints about the reinstatement hearing and decision.

40        Under a heading “Questions of law”, the following appears:

1.    Should the substantive 20% completed case be the subject of this appeal, or the reinstatement. In both cases procedural fairness was ignored.

2.    The substantive 20% completed case

41        The orders sought in the notice of appeal include injunctive relief against the respondent relating to the registration of the applicant as a RTO, reinstatement of the application for review before the Tribunal, orders concerning how the Tribunal is to treat particular evidence and factual matters, as well as access to documents the applicant asserts should have been produced in answer to a summons. There is also reliance on “the Chart of Human Rights”, which I take to be a reference to the Charter of Human Rights and Responsibilities Act 2006 (Vic).

42        Then appear 15 contentions, levied both against the Tribunal constituted to hear the review in August 2013, and the Tribunal as constituted to consider the reinstatement application in September 2013.

43        The contentions which deal with the Tribunal as constituted for the merits review in August 2013 must be put to one side as this Court is not considering any appeal under s 44 from what occurred on 21 August 2013, nor could there be one. Nor is there any application for judicial review under s 39B of the Judiciary Act 1903 (Cth) in respect of what occurred at that hearing.

44        The contentions which are made against the Tribunal as constituted for the reinstatement application in September 2013 appear to be the following:

…

1.

h. The DP made an error of law in refusing to reinstate the application after pointing out sheer evidence of a denial of procedural fairness and natural justice of the way the hearing was progressing. I should have never been on the witness stand until the very fake document the respondent relied on was validated from my denied telephone witnesses. This would have been appropriate in the circumstances considering the Tribunal is meant to act in accordance with the Chart of Human Rights and just and fair given all the circumstances. The reasons outlined in my complaint and this review demonstrates a dismissal in error further because:

(a) The member failed to use the required inquisitive nature to understand why someone would spend 3 years and so much money and walk away with nothing without an explanation. The instructions were that this would not happen, as the Tribunal promised a 2 day hearing on the legal merits. Last resort was to withdraw, and I saw this as a non-event because the Tribunal has no discretion over Acts of Parliament, and their intent, second reading speeches, and everything included in my T-Docs.

i. (At that time) the Tribunal has further refused to provide a statement of reasons despite asking in both circumstances, so I therefore ask the court to order it – and on the basis that every circumstance I raised did not offset the balance of probability, that is important.

…

3.    For the assistance of the Court, I attach the complaint made against the parties involved in this breach of procedural fairness on two accounts, as well as another request for written reasons specifically relating to why my evidence of a sheer lack of procedural fairness did not show reasonable grounds for reinstatement.

4.    The member breached the inquisitive nature rule of the AAT Act. Why after 3 years, when instructing a barrister to go through the 2 days of legal submissions (these days were estimated by the Tribunal) and withdraw losing enormous amounts of money after 35 minutes on the day legal submissions were to be heard. The legal submissions relate to the merit and the voiding of the decision, removing the discretionary power outside the Tribunal.

5.    Furthermore the written reasons are contradictory to what actually occurred and prove that both that hearing and the partial hearing was conducted illegally – against federal legislation, and further evidence will be provided on this.

THE RESPONDENT’S CONTENTIONS ON THE OBJECTION TO COMPETENCY

Dispensation

45        Properly, the respondent notes in its submission that it requires dispensation or an extension of time in which to file its objection to competency because it was lodged outside the 14 days prescribed in the Federal Court Rules 2011 (Cth) (the Rules). The notice of appeal was served on the respondent on 29 October 2013 and the 14-day period prescribed by r 33.30(1) then commenced. However, the objection to competency was not filed until 28 November 2013. The respondent accordingly seeks dispensation under r 1.34 of the Rules.

46        No evidence was adduced by the respondent to explain the delay in filing the notice of objection to competency. Mr Smith did not object to dispensation being granted.

47        Despite the absence of an explanation for the delay (a circumstance which should not be repeated when a dispensation of this kind is sought, especially since the filing of a notice avoids the costs consequences imposed by r 33.30(4)), I am satisfied there is no relevant prejudice to the applicant in the granting of an extension of time, nor could there be, as the Court must be satisfied it has jurisdiction under s 44 of the AAT, whether or not an objection to competency is made.

48        Further, dealing with the matter separately and in advance of preparation for final hearing is a cost-effective and efficient way in which to deal with a threshold question such as jurisdiction, and in that sense advances the objectives set out in s 37M of the Federal Court of Australia Act 1976 (Cth). Dispensation should be granted to the respondent from the operation of r 33.30(1).

The respondent’s submissions

49        The respondent submits that the two “Questions of law” which I have extracted at [40] above do not properly articulate a question of law arising in the proceeding and do not state any precise question or questions of law to be raised on appeal, contrary to r 33.12(2) of the Rules. It contends that, even outside these two paragraphs, no such question of law is identified. In the absence of a question of law, it contends the jurisdiction of the Court is not enlivened and the Court cannot entertain the appeal, relying on statements to that effect in Rana v Repatriation Commission (2011) 126 ALD 1; [2011] FCAFC 124 at [11] per Kenny, Stone and Logan JJ.

50        The respondent submits that r 33.30(2) provides that “[t]he applicant carries the burden of establishing the competency of an appeal.” It submits that the effect of r 33.30(5) is that, if the Court decides that an appeal is not competent, the appeal is dismissed.

51        After articulating the approaches taken in this Court to the need for a question of law to arise clearly before this Court has jurisdiction, and after addressing what matters are capable of constituting questions of law, the respondent contended that there were authorities in this Court to the effect that grounds expressed in a notice of appeal cannot be relied upon as giving rise to a question of law. It referred to P v Child Support Registrar (2013) 62 AAR 17; [2013] FCA 1312 at [51] per Wigney J; Mulherin v Commissioner of Taxation [2013] FCAFC 115 at [8] per Edmonds, Griffiths and Pagone JJ. In the latter case, the Full Court stated:

It is conceivable that a question of law was capable of being extracted from the material, but was not stated with the clarity and definition necessary to engage the jurisdiction of the Court.

52        Nevertheless and without the Court engaging in any “extraction” from the text of a notice of appeal, the notice must be read fairly and as a whole: Rana 126 ALD 1; [2011] FCAFC 124 at [14]. The respondent appeared to concede as much from its reliance on the observations of Dodds-Streeton J in Phillips v Inspector-General in Bankruptcy (2011) 54 AAR 463; [2011] FCA 612 at [60]:

In the present case, it is not possible, even on a benevolent reading, to discern from any individual purported question, the questions as a whole, or (in so far as it is permissible) the supporting grounds, a coherent articulation of a question of law.

53        The respondent accepted the statements from this and other courts about the difficulties facing persons who are not legally trained in formulating a legal document which must comply with both s 44 of the AAT Act and the applicable Federal Court Rules: see, eg, the observations of Pagone J in Hoe v Manningham City Council [2011] VSC 37 at [6]-[7], [21]. However, the respondent submitted that no fair or even generous and beneficial reading of the notice of appeal as it stands could result in the identification of a question of law, such as the authorities have articulated must exist.

54        The substance of the respondent’s submission on the notice of appeal in its current form is that it articulates a litany of complaints by the applicant about not only the Tribunal’s refusal to reinstate the review application, but more obviously about the Tribunal’s conduct of the review application on 20 and 21 August, as well as interlocutory steps before those dates such as a refusal to issue summonses. The notice of appeal was, the respondent submitted, an invitation to the Court to conduct a “Royal Commission” into how the Tribunal dealt with the review application.

55        The respondent made a number of submissions about the formulation of the questions of law in the notice of appeal, and about the notice of appeal generally. It contends that the first part of question 1, extracted at [40] above, appears to request advice from the Court about which decision the Company should appeal. It does so by asking whether the appeal be (i) the reinstatement decision (ie, the decision of Constance DP) or (ii) the earlier hearing (ie, the hearing before Fice SM). Next, the respondent contends that the “bald” assertion of a denial of procedural fairness cannot constitute a question of law sufficient for jurisdiction under s 44.

56        Third, the respondent submits that both the questions and much of the rest of the contents of the notice of appeal concern the hearing before Fice SM in August 2013, including interlocutory processes leading up to that hearing. However as the respondent correctly observes, there is no appeal under s 44 in respect of the Tribunal’s conduct of the review up to and including 21 August 2013, and any such would be out of time, not to mention the difficulties facing the applicant in seeking to appeal from its own decision to withdraw the review.

57        The respondent describes the notice of appeal as “prolix and replete with scandalous unsubstantiated accusations and pejorative language”. It further contends it is confusing because the grounds “slide” between assertions against aspects of the August review hearing and the reinstatement application.

58        The respondent properly accepts that there is an invocation in both the questions of law and the notice more generally of a denial of procedural fairness. It accepts that a denial of procedural fairness by the Tribunal may constitute an error of law, which may become the subject of a properly drafted question of law that validly invokes the jurisdiction of the Court under s 44(1) of the AAT Act: Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28; [2003] FCAFC 143 at [8] per Gray ACJ and North J.

59        It submits however that simply to assert a want of procedural fairness does not constitute a question of law. It relies on observations by Tracey J in Peters v Comcare (2013) 137 ALD 375; [2013] FCA 1361 at [13] that assertions as to natural justice are “in substance, no more than allegations of error which, whilst they might, if reframed, constitute grounds of appeal, do not constitute questions of law”.

60        The respondent submitted that the applicant had the opportunity, which it took, to file written submissions before the reinstatement hearing. It also had the opportunity, which it took, to make oral submissions. The transcript in evidence before the Court demonstrates, the respondent contends, that the Tribunal gave the company every opportunity to attempt to persuade it about why there was an “error” for the purposes of s 42A(10). The Tribunal went to the extent of explaining, more than once, what it needed to be satisfied about, in the clearest of terms.

61        The respondent also made some submissions about the August review hearing, but in my opinion the conduct of that review is not the subject of this appeal under s 44. The conduct of that review, and what occurred on 21 August 2013, no doubt provides the foundation for what Mr Smith submitted to the Tribunal in September 2013 was the “error” which should persuade the Tribunal to reinstate the application. The August review is relevant only in that sense.

THE APPLICANT’S CONTENTIONS

62         The submissions put by Mr Smith on behalf of the applicant ranged far and wide. That is understandable from the perspective of a layperson, concerned to try and give the Court the “whole picture” of the course of the applicant’s dealings with the respondent and the Tribunal in respect of its attempts to register as a RTO. Mr Smith has a sense that his professional reputation is at stake by reason of the registration refusal and the ongoing disputes with the respondent. There is no objective basis in the evidence for Mr Smith’s belief, and indeed evidence to which the respondent took the Court demonstrated a fair and measured approach by the respondent. Nevertheless, through his submissions on behalf of the company it was very clear Mr Smith was anxious the Court see the broader picture of how unfair it was the applicant had not secured registration.

63        During oral argument, I attempted to encourage Mr Smith to focus on what he identified as the legal errors in the Tribunal’s reinstatement decision, and the process it adopted. He had difficulty in maintaining such a focus, in a similar way to the lack of focus in the written material submitted on behalf of the applicant prior to the hearing.

64        It is clear that Mr Smith cannot understand why the applicant’s legal contention about a deemed decision on the applicant’s registration was not immediately accepted by the Tribunal at the August hearing. His submissions in this Court portrayed that argument as obviously right. His submissions were equally emphatic about what he described as the “illegality” of the audit conducted by the respondent and on which it relied to refuse the applicant’s registration. So too, his submissions about the respondent’s decision to refuse registration being hastily made to avoid the effect of the deeming provisions and therefore made, in his eyes, for an improper purpose. All these arguments were expressly raised in the contentions filed with the Tribunal on behalf of the applicant, and in the transcript from the August hearing. While Mr Smith may have considered they were obviously correct, the Tribunal clearly did not agree.

65        The weight which should be given to the fact that a “sibling” company to the applicant had passed an audit under the equivalent Western Australian regulatory scheme, in circumstances where Mr Smith assured the respondent and the Tribunal that the applicant’s RTO business would be conducted in precisely the same way, was also a source of significant complaint by Mr Smith. Relying on the uniform nature of the scheme across Australia, and the intention of the national training framework to create consistency, Mr Smith expressed disbelief in his submissions to this Court that both the respondent and the Tribunal could suggest that whether or not a related company had passed an audit in Western Australia was not relevant to whether the applicant met the required standards. However, it is clear from the transcript that the August Tribunal was of the firm view the Western Australian audit was not relevant and no legal error in it taking that view was identified to the September Tribunal on the reinstatement application. Mr Smith’s complaint was rather that he was right and the August Tribunal and the respondent were wrong. I note however, that the respondent’s contentions before the August Tribunal also alleged that the “sibling” company was not in fact registered as an RTO in Western Australia, as Mr Smith appeared to suggest.

66        As to the matters identified in paragraph [44] above, from the grounds in the notice of appeal, Mr Smith made oral submissions really only about the first of those. He submitted that there was general unfairness in his being subjected to cross-examination for a considerable part of the first day of the August hearing, especially when the cross-examination concerned an audit report which was, in his opinion, “illegal”. He submitted he mostly answered “no comment”. The applicant did not seek to tender this part of the transcript of the first day of the review hearing. Mr Smith made a submission that he did not consider it worthwhile to pay for that transcript. Reluctantly, he agreed that he had chosen not to appear to continue his cross-examination at the start of the second day, but maintained that there was no point in it continuing. Faced with the suggestion that usually it is not up to a witness to decide when her or his cross-examination is at an end, he appeared unwilling to accept this proposition.

67        Mr Smith made no submissions about the inadequacy of the Tribunal’s reasons, although he did point to parts of them with which he disagreed.

68        He added, by way of a general submission, that the Tribunal did not give his evidence and submissions on the reinstatement hearing any weight, but rather ignored them. He said the Tribunal was not entitled to do that.

69        Finally, by way of a clear concession made several times during the course of the hearing, Mr Smith agreed that he had instructed the applicant’s counsel to withdraw the review application at the start of the second day, if the Tribunal refused to deal with the applicant’s legal contention in the way Mr Smith wanted the Tribunal to deal with it. He maintained, consistently with the contents of the notice of appeal, he was unaware that a withdrawal would be deemed as a dismissal by the Tribunal, although he accepted this was the effect of s 42A(1B) of the AAT Act.

CONSIDERATION

70        There are many authorities of this Court and the High Court about the difference between questions of law and questions of fact. Determinations vary, even if the principles to be applied appear to be the same. This is not a case which calls for the fine distinctions which sometimes need to be made in considering whether a notice of appeal states a question of law.

71        Typical considerations on an appeal under s 44 were set out by Dowsett and Gordon JJ in Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410; [2010] FCAFC 94 at [13], in the following terms:

1.    Whether the AAT has identified the relevant legal test: Scicluna 72 NSWLR 674 at [68] and Collins v Administrative Appeals Tribunal (2007) 163 FCR 35; [2007] FCAFC 111 at [55];

2.    Whether the AAT has applied the correct test: Repatriation Commission v Hill (2002) 69 ALD 581 at [59]; Federal Commissioner of Taxation v Zoffanies Pty Ltd (2003) 132 FCR 523 at [25]; Tax Agents’ Board v Bray (2004) 58 ATR 118 at [19]; Collins 163 FCR 35 at [55];

3.    Whether there is any evidence to support a finding of a particular fact: Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]; and

4.    Whether facts found fall within a statute properly constructed: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.

72        The existence of a question of law under s 44 is jurisdictional, and it is that circumstance which requires the Court clearly to be able to identify what the question of law is. The point is made by Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178, by reference to the use in s 44 of the phrase “on a question of law” (emphasis added):

The existence of a question of law is … not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself.

73        Whereas with a qualifying term such as “involves” there may be room to read notices of appeal more broadly, the authorities are clear that is not the case with an expression such as the one in s 44 of the AAT Act. The High Court repeated this observation in Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [20] per French CJ, Gummow and Bell JJ, in relation to the jurisdiction of the Victorian Supreme Court on appeal from VCAT, where the phraseology in s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is substantively the same:

[i]ts powers must, as with the equivalent powers of the Federal Court in relation to the AAT, be exercised having regard to the limited nature of the appeal. Absent such restraint, a question of law would open the door to an appeal by way of rehearing.

74        The need to identify a question of law stems in part from the similarities between this kind of jurisdiction and the supervisory jurisdiction of a Court on judicial review. The purpose and limits of such judicial supervision can be explained by drawing on some well-known observations by Brennan J in Attorney-General (NSW) v Quin (1998) 170 CLR 1 at 35-38:

Judicial review has undoubtedly been invoked, and invoked beneficially, to set aside administrative acts and decisions which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful.

…

The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government.

…

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

…

If it be right to say that the court’s jurisdiction in judicial review goes no further than declaring and enforcing the law prescribing the limits and governing the exercise of power, the next question immediately arises: what is the law? And that question, of course, must be answered by the court itself. In giving its answer, the court needs to remember that the judicature is but one of the three coordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual. The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious.

…

The courts — above all other institutions of government — have a duty to uphold and apply the law which recognizes the autonomy of the three branches of government within their respective spheres of competence and which recognizes the legal effectiveness of the due exercise of power by the Executive Government and other repositories of administrative power. The law of judicial review cannot conflict with recognition of the legal effectiveness of the due exercise of power by the other branches of government.

If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk. The risk must be acknowledged for a reason which Frankfurter J. stated in Trop v. Dulles:

All power is, in Madison’s phrase, “of an encroaching nature.” … Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.

If the courts were to postulate rules ostensibly related to limitations on administrative power but in reality calculated to open the gate into the forbidden field of the merits of its exercise, the function of the courts would be exceeded: cf. R. v. Nat Bell Liquors Ltd.

75        The similarity between appeals on a question of law and the supervisory jurisdiction of the courts at once highlights the importance of the clear expression of a question of law, but also the importance of reading notices of appeal fairly so that tribunals subject to such appeals on a question of law remain within the confines of their jurisdiction and act lawfully, and the Court’s supervisory function is preserved.

76        It is true that many lawyers never master the art of articulating a question of law, so to expect a person who is not legally trained to be able to do so is generally unrealistic. That is why, where a person is unrepresented (or, here, where a company is represented by its controlling mind who is not legally trained), in order to ensure that the interests of the administration of justice are fulfilled, the notice of appeal should be read as a whole, and read fairly.

77        Recognising minds differ on such matters, in my opinion a requirement that a notice of appeal be read fairly, rather than generously or benevolently, is a preferable approach. It provides more consistency with the role of the Court. It involves neither overzealous scrutiny, nor technicality, nor the imposition of a standard which in the circumstances it would be unreasonable to expect a non-legally trained person to meet. Fairness allows for the reading of a notice of appeal in its context: that is, reading all of the notice rather than simply that nominated as the “question of law”. Depending on the circumstances, context may also require regard to be had to other evidence. For example, if a denial of procedural fairness is alleged, reading the words of the notice in isolation from any admissible evidence about the process adopted by a tribunal may not be a fair reading of the notice. On the other hand, a fair reading does not involve the creation by the Court of a contention which is not present in the terms of a notice of appeal, read in its context. Nor does it involve the redrafting of a notice. Where the Court concludes the party has identified a question of law arising from the tribunal decision, but that question is not reflected in the terms of the notice fairly read, then consideration may need to be given to whether leave should be granted to the party to file an amended notice of appeal.

78        In the present appeal, the applicant has identified, in its questions of law as stated, and by reference at least in part to the Tribunal’s reinstatement decision, that “procedural fairness was ignored”. In one sense there is little difficulty in rephrasing this statement as a question: “In making its decision to refuse to reinstate the review application under s 42A of the AAT Act, did the Tribunal deny the applicant procedural fairness?” In my opinion, to rephrase the question in that way is within the concept of reading the notice of appeal fairly. That is because the applicant has, as the respondent conceded, identified a failure by the Tribunal which is capable of establishing an error of law — namely, denial of procedural fairness in the making of the reinstatement decision.

79        The central question is, having engaged in a fair reading of that kind, can it be said that the notice of appeal states a question of law with sufficient precision to give the Court jurisdiction under s 44?

80        In my opinion the clear answer is that it does not. The reason is that, even rephrased, the question is too broad. A denial of procedural fairness is a conclusion reached after examination of a decision-making process and the identification of a flaw of a particular kind in that process.

81        Although he was describing the place of procedural fairness in the function performed by a court, in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638; [2013] HCA 7 at [188], Gageler J set out its fundamental attributes (in part by reference to the observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]):

Procedural fairness requires the avoidance of “practical injustice”. It requires, at the very least, the adoption of procedures that ensure to a person whose right or legally protected interest may finally be altered or determined by a court order a fair opportunity to respond to evidence on which that order might be based.

82        Of course, in any given situation, and depending on the nature and content of the power to be exercised, procedural fairness may require more than this — such as consideration of a claim made (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26), affording a right to cross-examine (Ramsay v Australian Postal Corporation (2005) 147 FCR 39; [2005] FCA 640 at [27] per Spender J), or refusal of an adjournment (Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J).

83        Some precision is always required to identify the flaw in the process said to constitute the denial of procedural fairness. That is because the avoidance of practical injustice in any given case will depend on factors such as the statutory context, the nature of the decision and the decision-maker, the factual circumstances, and the issues in contention. Whether a tribunal such as the Administrative Appeals Tribunal has denied procedural fairness to a party before it cannot be a question posed in the abstract because it cannot be answered in the abstract. The circumstances said to constitute the denial must be identified.

84        That is not to require a level of legal precision or technicality beyond the reach of a layperson. But it is to require a linking of the Tribunal’s task, the factual circumstance and the practical injustice which is identified.

85        Nothing of that kind is present in the notice of appeal, even read as a whole and read fairly. For that reason, the conclusion must be that there is no question of law stated in the notice of appeal and the appeal is not competent.

86        On the evidence, it is difficult to see how such a flaw could have been identified in any event. The reinstatement application was heard orally by the Tribunal after giving the applicant an opportunity to make written submissions in advance of the hearing, which it took up. Mr Smith then made lengthy submissions before the Tribunal on behalf of the applicant, and the Tribunal member fairly and conscientiously assisted him to understand the kinds of issues he needed to address. Mr Smith was given an opportunity to respond to matters raised by both the Tribunal and the respondent. Time and again, the transcript reveals the Tribunal member sought to bring Mr Smith’s attention back to the statutory criteria relevant to the Tribunal’s reinstatement power. The Tribunal’s reasons do not disclose that it relied on matters not put to Mr Smith, or which the applicant had no opportunity to address. As I have observed, considering the matter in this way is generous on an objection to competency and goes beyond what the Court is required to do, but given the tenacity with which Mr Smith has pursued this matter, it seems best to consider whether the evidence discloses any scintilla of a suggestion of a denial of procedural fairness by the Tribunal. In my opinion it does not, quite the contrary.

87        Outside the allegation of denial of procedural fairness, the matters listed under the heading “Questions of law” in the notice of appeal raise nothing which could possibly be considered to be a question of law as the authorities have described it. Nor is there anything in the notice of appeal as a whole, read fairly, which suggests there is any other question of law raised by the applicant about the Tribunal’s reinstatement decision. Rather, the applicant complains more about the Tribunal’s failure to reconsider for itself the entire course of the hearing in August 2013. That was not the Tribunal’s function under s 42A(10).

88         Further, the Tribunal in the reinstatement application was faced with a situation where the applicant had elected to withdraw its review application. It was that withdrawal which led to the dismissal, rather than any conduct by the Tribunal. In those circumstances, identifying an error of the kind that meets the requirements of s 42A(10) would be difficult in the extreme. The Tribunal’s reasons fairly recognise this in the extracts I cited at [34] above.

89        The objection to competency should be upheld.

Is there a basis to consider granting leave to amend the notice of appeal?

90        No application was made by the applicant to amend its notice of appeal, although the Court’s power of amendment and the circumstances in which it might be exercised were raised during oral argument. On the basis that the applicant is represented by a layperson, I have given independent consideration to this issue.

91        The Court has power to grant leave to amend a document in a proceeding, including an originating process such as a notice of appeal, under s 44 of the AAT Act: r 33.15 and r 1.34. No unnecessarily strict approach should be taken and, if a grant of leave to recast a notice of appeal will reduce what was a prolix and broad complaint to one whose subject matter is a question of law, then that is an approach the Court should consider. There may be other factors which will affect the exercise of the discretion to grant leave to amend a notice of appeal under s 44 of the AAT Act, but the Court’s wide power of amendment should be exercised fairly and to serve the interests of justice. Therefore, where — especially with an unrepresented litigant — it appears to the Court that the subject matter of the appeal is, or can be confined to, a question of law, in my opinion consideration should be given to granting leave to amend the notice of appeal accordingly. The features of the Court’s jurisdiction under s 44, which is akin to its original supervisory jurisdiction, while constraining the matters the Court may consider on appeal, also serve to highlight the importance of the jurisdiction to the administration of justice.

92        In the present case, there is nothing in the notice of appeal as a whole, nor in the evidence before me, or the submissions made, which satisfy me it may be appropriate to consider granting leave to amend the notice of appeal. The appeal in this proceeding is from an exercise of discretion by the Tribunal under s 42A(10). Whilst Mr Smith’s submissions made it clear he disagreed with the view taken by the September Tribunal of what had occurred in the August hearing, and that he considered it contrary to law, there is nothing in the notice of appeal read fairly and as a whole, together with the evidence concerning the course of the reinstatement hearing and decision, which could be seen as giving rise to a question of law raised by the applicant in respect of the Tribunal’s reinstatement decision. Rather, the complaints are about the lawful choices made by the Tribunal as first constituted in August 2013 as to how to conduct its review. The Tribunal as constituted on the reinstatement decision correctly identified those choices as being free from error for the purposes of the application under s 42A(10).

93        Taking an even more generous approach than the one which in my opinion is appropriate, even if one might discern the prospect of an argument being formulated on a question of law about an “error” for the purposes of s 42A(10) in the Tribunal’s process in August 2013, I am not satisfied any contentions or material have been put before the Court to show that the Tribunal’s exercise of discretion on the reinstatement application miscarried in a way which might prompt the Court to consider granting leave to the applicant to reformulate its notice of appeal so as to attempt properly to raise a question of law.

94        The Tribunal on the reinstatement decision correctly saw what had occurred on the second day of the review hearing in August 2013 as an election by Mr Smith on behalf of the applicant not to proceed with the review. Even if one characterises it, as Mr Smith sought to do in his submissions, as “a last resort”, it remained an election not to pursue a merits review through to its conclusion. It was freely made, while the applicant (and Mr Smith) had the benefit of counsel’s advice and representation. Even if, contrary to the view I have formed, a procedural “error” in the Tribunal’s process could be identified, it was within the Tribunal’s discretion on the reinstatement application to take the view that ultimately the reason for the dismissal of the application was not any error by the Tribunal in August 2013, but rather the election of the applicant to withdraw its review application. In those circumstances it was open to the Tribunal to refuse reinstatement.

95        There is no basis to consider granting leave to amend the notice of appeal. The objection to competency having been upheld, the proceedings in this Court should be dismissed on the basis that the Court has no jurisdiction. The parties will have seven days from the delivery of judgment to make any submission they wish to make concerning the appropriate orders as to costs in this matter.

POSTSCRIPT

96        Since I reserved judgment on the objection to competency on 17 February 2014, the applicant has filed, or sought to file, a number of documents with the Court. The first is an affidavit, dated 14 February 2014, sworn by Mr Smith on 24 February 2014 and emailed to my chambers on that day. In that affidavit, Mr Smith sets out what he says are the events that occurred leading up to and during what I understand to be a telephone directions hearing for an application for an extension of time to review a decision of the respondent that the applicant had on foot in the Tribunal against the respondent. At this telephone directions hearing, Mr Smith deposes, the company’s application was dismissed, while he was on hold on the telephone with the Deputy President’s staff.

97        Next, Mr Smith filed an interlocutory application dated 7 March 2014 and an accompanying affidavit, sworn by him on 7 March 2014. These documents were presented to the Registry for filing on that day. The applicant sought 11 interlocutory orders. By those orders the applicant requests that the “matter” be listed for an urgent directions hearing, and that I grant leave to the applicant to tender into evidence a document referred to as “DAY 1 PART 2 TRANSCRIPT”, which I understand to be another part or the remainder of the transcript of proceedings in the Tribunal before the Senior Member on Tuesday 20 August 2013. Part of that transcript already had been tendered by the applicant during the course of the hearing and is in evidence before me.

98        The applicant also seeks leave to tender as evidence material relating to the telephone directions hearing described by Mr Smith in his affidavit, including a document described as “REASONS FOR DECISION”, an audio tape of a voicemail message from a member of staff of the Deputy President of the Tribunal, and a document described as “THE LETTER OF REASONS WHY THIS SHOULD BE STAYED”. Further, the applicant seeks leave to tender with the Court further evidence as to its financial position, including profit and loss statements for the 2013 financial year.

99        By those proposed orders, the applicant also seeks a stay of this proceeding “until the full story is heard”, and seeks an order that it have leave to later pursue a “cross-claim (or in the alternative) claim damages under the ‘abuse of process’”. The applicant seeks an order that the Tribunal officially be joined as a respondent to the proceeding, and an order also is sought for “a formula of costs” for the efforts Mr Smith has expended in “the first two hearings”, which I understand to be the hearing before the Senior Member and the hearing of the application for reinstatement before the Deputy President.

100        The interlocutory application and accompanying affidavit have not been accepted for filing by the Registry.

101        On 19 March 2014, the applicant filed with the Court a further affidavit of Mr Smith, sworn on the same day and annexing the reasons for the decision of the Deputy President to dismiss his application at the directions hearing on 24 February 2014. Through this affidavit, the applicant seeks further orders from this Court, including: an injunction “on any activity by the Tribunal to hear any matter (being the reinstatement of the attached decision full of incorrectness)”; a hearing of the legal contention that the applicant claims was not properly considered by the Tribunal and declarations on the law in favour of the applicant; that the Court make recommendations to “IBAC”, which I take to be a reference to the state anti-corruption body established in Victoria by the Independent Broad-based Anti-corruption Commission Act 2011 (Vic); and seeks “permission for monetary, punitive and losses in health and stress” for Mr Smith.

102        A second further affidavit was filed by the applicant on 20 March 2014, again sworn by Mr Smith on the same day, and annexing two documents. The first is a minute paper for the Executive Council, dated 25 October 2012 and signed by the Minister for Tertiary Education, Skills, Science and Research, recommending for the approval of the Governor-General in Council that Dr Dianne Orr be appointed to the role of Deputy Chief Commissioner of the National Vocational Education and Training Regulator. The second annexed document is correspondence from the Tribunal to the company, indicating that the hearing of an application for reinstatement filed by the company, previously listed for 31 March 2014, has been vacated pending my decision in this proceeding. In the affidavit Mr Smith again refers to the decision of the Deputy President to dismiss his application at the telephone directions hearing on 24 February, and makes further, unsubstantiated allegations of “abuse of the law” against the respondent.

103        On 3 April 2014, and after being notified of the date and time for handing down of these orders and reasons, Mr Smith attempted to file a further affidavit, dealing with essentially the same subject matter as his previous affidavits to which I have referred.

104        I do not propose to accept the interlocutory application, and I do not propose to list it for hearing. It is irrelevant to the only question before the Court in the objection to competency application: namely, whether the current notice of appeal on which the applicant relies raises a question of law.

105        The affidavits which Mr Smith has filed or sought to file since judgment was reserved are irrelevant for the same reasons.

Associate:

Dated:    4 April 2014