FEDERAL COURT OF AUSTRALIA

Danagher v Child Support Registrar [2014] FCA 1408

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1    On 26 July 2013 the appellant lodged with the Administrative Appeals Tribunal (Tribunal) an application for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 5 June 2013.

2    The application proceeded to the preliminary conference stage at which programming directions were made. At a non-compliance directions hearing listed on 8 January 2014, the Tribunal, comprising Deputy President Hotop, raised whether an application for an extension of time was necessary, and made programming orders for the appellant to lodge an application for an extension of time and affidavit in support of any such application relating to the lodging of the application for review on 26 July 2013.

3    Following an interlocutory hearing the Tribunal reserved its decision and delivered a written decision on 15 April 2014.

4    The appellant had contended that his application before the Tribunal was lodged within the time prescribed by s 29(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for making that application. His case was that he did not in fact receive a copy of the SSAT decision (the Decision) until 28 June 2013. Time starts to run from the date such a decision is given to the applicant: AAT Act s 29(2)(a).

5    At a hearing on 1 April 2014, the appellant gave oral evidence in response to questions from the Deputy President, the respondent and the other party in addition to his affidavit evidence. The Deputy President found that the appellant’s application was not lodged within the prescribed time as required under s 29(1)(d) of the AAT Act. He found that the time expired on 15 July 2013 on the basis of the presumption provided under s 29(1) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act). The Deputy President applied the presumption under s 29(1) of the Acts Interpretation Act and deemed the Decision to have been received by the appellant two working days after posting and thereby concluded that the Tribunal application had been filed out of time.

6    The Deputy President then dismissed the application for an extension of time, on the basis that he was not satisfied that it would be reasonable in all the circumstances of the case to extend the time for the filing of an application for review of the Decision until 26 July 2013 (being the date on which such application was made).

Nature of the appeal

7    An appeal to the Court from a decision of a Tribunal pursuant to s 44 of the AAT Act is restricted to an appeal on a question of law. Section 44(7) allows the Court to make findings of fact in limited circumstances. However, s 44 does not allow for an appeal on questions of fact.

8    As Brennan J said in Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77:

A finding by the A.A.T. on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the A.A.T. Act confers on a party to a proceeding before the A.A.T. a right of appeal to the Federal Court of Australia "from any decision of the Tribunal in that proceeding" but only "on a question of law". The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact.

9    The appellant’s notice of appeal raises the following questions of law:

1.    The Tribunal erred in law in that it:

(a)    failed to properly construe the meaning and effect of s 29(1) of the Acts Interpretation Act;

(b)    failed to give reasons, alternatively any good reasons, for its conclusion that the date of receipt of written notice of the Decision and reasons by the appellant was 17 June 2013;

(c)    failed to apply the applicable test for an extension of time application; and

(d)    in determining the application for an extension of time had regard to irrelevant matters and/or failed to have regard to relevant matters.

2.    The Tribunal committed jurisdictional error and thereby denied the appellant procedural fairness in that it adopted false assumptions, applying its own mores and standards, filtering through its own views as to what are appropriate behaviours, understandings and beliefs, and thereby proceeded to make adverse credibility findings against the appellant.

Proposed amended grounds

10    At the conclusion of the hearing I gave the appellant liberty to move to amend his grounds of appeal concerning matters which had been ventilated in argument before me, namely the capacity of the appellant’s letterbox to have physically accommodated the A4 envelope which contained the Decision and accompanying letter from the Deputy Registrar of the SSAT dated 13 June 2013.

11    The appellant has lodged a proposed amended notice of appeal with a proposed amended second question of law and new grounds six and seven in the following terms:

2.    The Tribunal committed jurisdictional error and thereby denied the applicant procedural fairness in that it adopted false assumptions, applying its own more and standards, filtering through its own views what are appropriate behaviours, understandings and beliefs, and thereby proceeded to make adverse credibility findings against the applicant. Further the Tribunal failed to bring the applicant’s attention to the “critical issue or factor” in its decision – that is, its disbelief regarding his evidence relating to the size and shape of his letter box – and to afford him an opportunity to respond to that issue which was adverse to his interests, but which the Tribunal proposed to take into account in conducting its review.

. . .

6.    There was no evidence that contradicted the applicant’s evidence in relation to his letter box, the placing of the card in his box or the collection of the A4 letter – it was simply not believed. For a positive finding to be made that the applicant’s letter box could in fact receive the A4 envelope and that accordingly he did not receive a post office card and thereafter to collect the letter, the AAT had the power, and the duty (in accordance with the principles of natural justice/procedural fairness), to afford the applicant the opportunity to adduce further evidence (if any was available to the applicant), (such as photographs of the applicant’s letter box).

7.    The tribunal’s failure to do so resulted in a denial of natural justice/ procedural fairness, as it was clear to the Tribunal that such further evidence on the part of the applicant (such as photographs of the letter box) inevitably could have had a determinative bearing on the outcome of the tribunal’s decision.

12    The appellant also seeks to add to the prefatory part of ground six (proposed ground eight) the following:

8.    Had the AAT not committed the jurisdictional error and accorded the applicant procedural fairness by not making the false assumptions and the errors identified in this notice, the AAT would have afforded the applicant an opportunity to adduce further evidence and found that applicant did not receive a copy of the SSAT decision until 28 June 2013. …

13    I will not permit the proposed amendments.

14    In relation to paras 1 to 6 of the appellant’s further submissions, certainly the Tribunal was obliged to accord procedural fairness to the appellant in considering his application for an extension of time within which to lodge his application with the Tribunal for review of the Decision.

15    However, the proceedings before the Tribunal are inquisitorial. The proceedings are not adversarial, and the Tribunal is not in a position of a contradictor. It was for the appellant to advance such evidence or argument he wished to advance in support of his claim: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187].

16    “Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]. Nor does procedural fairness require the Tribunal to disclose to an applicant what it is minded to decide so that the parties may have a further opportunity of criticising the Tribunal member's mental processes before she or he reaches a final decision: SZBEL at [48], quoting F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock.

17    It was entirely for the appellant to advance whatever evidence or argument he wished to advance in support of his claim that the Decision and reasons were not delivered to him and that he did not collect them until 28 June 2013. The appellant tendered written evidence as well as oral evidence at the Tribunal hearing on 1 April 2014, at which he was represented by counsel. He could have adduced additional evidence as to the size of the opening in his letterbox, including photographic evidence. This was entirely a matter for him.

18    The decision in Ovens v Civil Aviation Safety Authority (2010) 119 ALD 519 does not assist the appellant. There the Tribunal had relied upon the published protocol when there was a crucial change between the draft protocol and the published protocol. The applicant was not made aware that the Tribunal proposed to apply to him the criteria in the published protocol. The applicant was not afforded an opportunity to deal with the matters adverse to his interests that the Tribunal proposed to take into account in conducting its review by reason of applying the published protocol: Ovens at [47]-[52]. In those circumstances the Tribunal was obliged to bring to the applicant's attention the "critical issue or factor", namely his compliance with the criteria of the published protocol (at [51]). Its failure to do so was a denial of procedural fairness.

19    Here, the critical issue or factor upon which the Tribunal's decision turned was the date upon which the Decision and reasons were delivered to the appellant and/or he received them. The appellant was well aware of this and adduced evidence and made submissions in relation to the issue.

20    There was no breach of procedural fairness by reason of the Tribunal not disclosing to the appellant that it did not or might not accept his evidence on this issue, nor consequentially in not giving him the opportunity to put on further evidence.

Question 1(a): meaning and effect of s 29(1) of the Acts Interpretation Act

21    Section 29(2) of the AAT Act relevantly provides that the time within which a person may lodge an application for review with the Tribunal is “the period commencing on the day on which the decision is made and ending on the twenty-eighth day after … the day on which a document setting out the terms of the decision is given to the applicant”.

22    Section 103X of the Child Support (Registration and Collection) Act 1988 (Cth) requires the SSAT, within 14 days of any decision on a review, to give written notice of the decision to the parties.

23    Section 28A of the Acts Interpretation Act relevantly provides that where any Act requires a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, the document may be served on a natural person by leaving it at, or sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document.

24    Section 29 of the Acts Interpretation Act provides:

Meaning of service by post

(1)    Where an Act authorises or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

(2)     This section does not affect the operation of section 160 of the Evidence Act 1995.

25    The Decision recorded the date the Decision was posted as 13 June 2013. The covering letters to the appellant and the other party were dated 13 June 2013.

26    There was a dispute before me as to whether the reasons for decision were before the Tribunal. More importantly, however, it is plain that the Tribunal implicitly found that the reasons for decision were in the envelope under the cover of the letter from the Deputy Registrar of the SSAT dated 13 June 2013. The letter to the appellant refers to the “decision and reasons enclosed”.

27    The appellant’s evidence was that the envelope he received contained the letter and “documents”. These likely were the Decision and reasons. I have proceeded on that factual basis.

28    The Tribunal (at [31]) concluded that written notice of the Decision was sent by pre-paid post to the address of the appellant on 13 June 2013. The Tribunal (at [32]) concluded, pursuant to s 29(1) of the Acts Interpretation Act, that service of the SSAT Registry’s letter dated 13 June 2013 (Thursday), and the enclosed copy of the Decision and reasons, was deemed to have been effected at the time at which it would have been delivered in the ordinary course of post, namely on 17 June 2013 (the following Monday).

29    The Tribunal considered whether “the contrary [was] proved”. It concluded that it was not. The Tribunal rejected the appellant's evidence that he did not receive the Decision until 28 June 2013: at [33]. In so finding, later in the Tribunal’s reasons, when considering the same explanation by the appellant as to when and the circumstances in which he received the Decision, the Tribunal stated as follows at [41]:

In the Tribunal’s opinion, the explanation provided by the applicant, in his abovementioned affidavit and in his oral evidence (see paragraphs 18-19 above), for not lodging with the Tribunal his application for review of the SSAT’s decision of 5 June 2013 until 26 July 2013 is unsatisfactory.

30    The Tribunal concluded that his evidence in this respect was an implausible self-serving reconstruction and rejected it.

31    The error of law contended for under Question 1(a) has not been established.

32    The appellant relied upon the provisions of s 160 of the Evidence Act 1995 (Cth) (Evidence Act).

33    Section 160(1) of the Evidence Act provides that:

It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.

34    The appellant submits that s 160, which is applicable to federal courts, affords a presumption as to when the article is to be taken to have been delivered, namely on the fourth working day after posting.

35    The respondent submits that there is doubt as to whether s 160 has application in this case.

36    It is not apparent that any submissions were put to the Tribunal as to the applicability or otherwise of s 160. The provision is not mentioned in the Tribunal’s reasons. In any event I am of the opinion that s 160 has no application to the Tribunal.

37    The Evidence Act by s 4(1) relevantly provides that the Act applies to all proceedings in a federal court. “[F]ederal court” is defined in the Dictionary to the Evidence Act and includes within its meaning, relevantly, a body that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence. The Tribunal is not such a body. The procedure in the Tribunal is governed by its constituting legislation, the AAT Act. By s 33(1)(c) of the AAT Act the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

38    It follows that the Tribunal is not a “federal court”. It is not a body required to apply the laws of evidence. Accordingly s 160 has no application.

39    In any event, even if the four day presumption in s 160 of the Evidence Act applies, rather than the ordinary course of post being two days, the appellant was still out of time with his Tribunal application. Service would be presumed to have been effected on 19 June 2013.

Question 1(b): alleged failure to give reasons

40    The question articulated in the notice of appeal is that the Tribunal failed to give reasons, alternatively any good reasons, for the conclusion that the date of receipt of written notice of the Decision and reasons by the appellant was 17 June 2013.

41    The appellant submitted in relation to this question that, having correctly found that the Decision was sent by pre-paid post to the address of the place of residence of the appellant, the Deputy President erred in law in that he:

(a)    incorrectly deemed the date of receipt of written notice of the Decision and reasons by the appellant as 17 June 2013 (as set out above); and

(b)    failed to have regard to the uncontradicted evidence before the Tribunal, to the contrary, that the actual date of receipt was in fact 28 June 2013.

42    He then submitted that the Deputy President gave no explanation or reasons or alternatively any good reasons for disregarding the appellant's evidence, but rather rejected the appellant's evidence as not credible based upon mere speculation and thereby applying (incorrectly) a presumption that the Decision was received two days after posting.

43    The appellant’s consequent submission is that the Deputy President committed jurisdictional error in that he did not assess the appellant’s case on the basis that his evidence might possibly be true. Instead he simply rejected the appellant’s evidence as an implausible self-serving reconstruction of events.

44    The Tribunal was required to consider and weigh the evidence as a whole. I am satisfied from a consideration of the reasons read in their entirety that it did so.

45    It was not incumbent on the respondent to adduce contradictory evidence. In any event, the explanation that his mailbox could not accommodate A4 envelopes other than probably, if they contained up to two sheets of paper but no more, was not one advanced by the appellant until he was questioned during the Tribunal hearing. It was open to the Tribunal to weigh the explanation, including its plausibility, which it did. It required the Tribunal to consider whether the post office would likely have taken around 11 days (17-27 June 2013) in putting a card in the appellant’s mailbox if it were the case that the A4 envelope containing the letter and the Decision was not able to be inserted. The Tribunal considered the explanation implausible and a reconstruction. It was open to it to do so.

46    It is correct that the Tribunal did not articulate its reasons for rejecting the appellant’s evidence that he had received the Decision only on 28 June 2013 at the point in its reasons where it stated its acceptance of the respondent’s submissions: at [27].

47    However, when dealing with the explanation provided by the appellant as to his delay in lodging his application for review (assuming that it was lodged out of time) it is quite evident that the Tribunal rejected this explanation as implausible: at [41]. I have earlier set out in part the content of this paragraph. It was the same explanation as that referrable to the appellant’s contention that he received the Decision only on 28 June 2013.

48    Moreover, the submissions of the respondent to which I have just referred, which were accepted by the Tribunal, are to be found at [26] in the Tribunal’s reasons. The submissions were referrable to the deeming provision in s 29(1) of the Acts Interpretation Act and its application “unless the contrary is proved”. The effect of the submissions was that the contrary had not been proved. The “contrary” was the explanation given in evidence by the appellant that he received the Decision on 28 June 2013, evidence which was rejected by the Tribunal.

49    The Tribunal did not in its reasons, as contended by the appellant, apply a test which required the appellant to adduce independent, objective, corroborative evidence to what occurred. The Tribunal merely stated that absent such evidence it regarded the evidence given on this question by the appellant as implausible. Such evidence could have been adduced by him including evidence as to the precise size and specifications of his letterbox, evidence from the post office as to its normal practice in relation to leaving cards in householders’ letterboxes where mail will not fit, and whether records are maintained by the post office evidencing that a card has been left deposited in a householder’s mailbox and on what date.

50    I do not accept that the Tribunal failed to have regard to the appellant’s evidence that he did not receive a copy of the Decision until 28 June 2013. Plainly it did but rejected it as, in the circumstances identified, implausible.

51    Its approach to the assessment of the appellant’s evidence was one which was fairly open to it. The Tribunal's findings in relation to the credibility of the appellant was a fact-finding task within its jurisdiction: see NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9]; SZHZD v Minister for Immigration [2008] FMCA 4. A tribunal of fact is always entitled to assess evidence by considering the "apparent logic of events" (see Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 at [30]-[31]). The appellant’s challenge amounts to an impermissible merits review of the Tribunal’s decision.

52    There is no obligation on the Tribunal “to accept uncritically any and all the allegations made by an applicant, nor does it mean that the Tribunal has to have some rebutting evidence available before it can find that a particular factual assertion is not made out”: Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 at [13].

53    Based upon the evidence and material before the Tribunal and the Tribunal's analysis of it, the conclusions reached on the appellant’s credibility and the implausibility of his evidence were reasonably open to the Tribunal.

Question 1(c): alleged error in relation to the extension of time

54    The appellant submits that the Deputy President erred in law in that, having correctly identified the applicable test for the extension of time, being whether the extension is fair and equitable in all the circumstances (Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344), he incorrectly proceeded to determine the application by reference to a test as to whether there was an acceptable or satisfactory explanation for the appellant’s delay and whether it was reasonable in all the circumstances to grant the extension.

55    Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 at 480 said, when considering similar provisions under the former High Court Rules, that in considering whether there would be an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time.

56    I do not accept that the Tribunal applied the wrong test. The Tribunal correctly identified at [36] that s 29(7) of the AAT Act confers a broad discretionary power to grant an extension of time if it is “satisfied that it is reasonable in all the circumstances to do so”. Rather, in its reasons at [37] it set out the general principles found in Hunter Valley Developments as summarised in Re Johnson and Commonwealth of Australia [1990] AATA 1 at [19].

57    At [38] of its reasons the Tribunal correctly stated:

Although, as held by the Full Federal Court in Comcare v A’Hearn (1993) 45 FCR 441, the giving of an acceptable explanation for delay in lodging an application for review is not an essential pre-condition of the favourable exercise of the discretion to grant an extension of time for the lodging of such an application, the Full Court said (at 444) that “it is to be expected that such an explanation will normally be given, as a relevant matter to be considered”.

58    This observation alone demonstrates that the Tribunal did not construct an incorrect test. The position was to the contrary.

59    Then at [48]-[49] of its reasons, having considered a number of factors relevant to the exercise of its discretion dealt with at [41]-[47] of those reasons, the Tribunal refused to extend time. These factors included the appellant’s explanation for the delay but traversed matters beyond that, including the merits of the proposed application.

60    At [47] the Tribunal expressly stated that it was unnecessary to canvass in detail the other considerations referred to in Hunter Valley Developments and Re Johnson other than to say that none of those other considerations militated in favour of the grant of an extension of time.

61    No error of law, in this regard, contended for by the appellant, was made by the Tribunal.

Question 1(d): irrelevant and relevant matters

62    The appellant further submits that the Tribunal committed errors of law in the exercise of its discretion by having regard to irrelevant considerations and failing to have regard to relevant considerations in that:

Irrelevant considerations

(a)    The Tribunal determined that the appellant had no credibility, by reference to the Deputy President’s own mores and standards, filtering through his own views as to what he believed should have occurred (a guess or speculation as to what might or should have happened is not evidence) and having thereby made adverse findings of credibility in relation the appellant’s (uncontradicted) evidence based on this false assumption, it then directed itself to look for and require that the appellant have independent, objective corroborative evidence;

(b)    having found no independent, objective corroborative evidence (without specifying of what), the Tribunal further found that the appellant’s evidence was an implausible self-serving reconstruction of events and rejected the appellant’s evidence in its entirety;

(c)    it determined further that if the appellant had felt as strongly against the Decision as he said he did, the appellant would have filed his application as soon as possible after, if not immediately upon, the date that he said he received the Decision, and not filed it on the last date permitted under the rules. An applicant is entitled to use the entirety of the prescribed time period and no adverse inference (or inquiry as to why such time was used) is permissible;

(d)    it determined that the that filing of the application for review on the last date permitted under the rules was conduct that led to the conclusive finding that the appellant’s evidence (presumably when taken as a whole) was disingenuous and unreasonable;

(e)    it determined that the failure of the appellant to notify the respondent or the other party of his intention to lodge an application prior to the date on which the appellant believed the application should be lodged weighs against the grant of an extension.

Relevant considerations

(f)    it failed to balance the consequence of the time having elapsed and why it elapsed - failing to properly consider the impact on the affected parties of an 11 day delay;

(g)    it failed to have proper regard, or at all, to the:

(i)    prejudice which the appellant would suffer if the extension of time was not granted;

(ii)    absence of any evidence of prejudice on the part of the respondent or the other party in the event that an extension of time were granted by the Tribunal.

63    As to these asserted errors of law I accept the respondent’s submission that the matters characterised by the appellant as irrelevant considerations are but factual findings which were open to the Tribunal to make. The appellant’s complaints in this respect again stray into a merits review. I also accept the submission of the respondent that the relevant considerations said to have been ignored, or not taken into account, are simply components or aspects of the balancing task before the Tribunal which in each case the Tribunal was entitled to give appropriate weight to or reject.

Question 2: jurisdictional error: denial of procedural fairness

64    These grounds are particularised in a way that does not bespeak a denial of procedural fairness. Rather, it is a challenge to the way that the Tribunal reasoned to its conclusions on the facts and in particular its adverse credibility findings which governed those conclusions.

65    Again, it is an attempt at merits review which is not open to the appellant in this Court.

Discretion

66    It is the case that the delay was only 11 days. Here the Tribunal weighed the relevant factors going to the exercise if its discretion. The explanation advanced by the appellant was rejected as implausible. This was not merely a failure to provide an explanation but rather the provision of one which the Tribunal implicitly did not accept as genuine. Mere absence of specific prejudice to the opposing party whilst a relevant factor is not determinative.

67    Whilst the Tribunal found the consideration of the merits of the proposed application to be neutral it was placed in this position by the failure of the appellant to condescend to any particulars whatsoever as to why he contended that the Decision was wrong, whether in his application for review or in submissions put to the Tribunal on the extension application. The high water mark of the basis of his challenge to the Decision appears from his application for review lodged on 26 July 2013 namely “Errors by SSAT – In fact and in law”.

68    It was for the appellant to advance submissions on the merits. This could not be avoided by some agreement made with the respondent or other party. It is not in their gift to deny the Tribunal such information. Ultimately it is for the Tribunal to weigh the various considerations one of which could and ordinarily would include consideration of the merits, assisted by submissions from the applicant at least.

69    As McHugh J said in Gallo v Dawson at 480, where an application is for an extension of time in which to file an appeal it is always necessary to consider the prospects of the applicant succeeding in the appeal. This is apt also in a case such as this.

70    The Court and the public have an interest in compliance by parties with the rules governing the administration of justice before courts and tribunals. It is not simply a matter of whether there is prejudice to the parties or any of them.

71    As to prejudice, counsel for the appellant conceded there was none other than the loss of the right to a review of the Decision. Such is not ordinarily regarded as prejudice in the orthodox sense, at least not without content being given to that right. There was nothing before the Tribunal which informed that question.

72    I am not satisfied that any relevant error of law has been demonstrated. Ultimately the refusal to grant the extension of time was a discretionary decision by the Tribunal. It is not for this Court to substitute its own view as to how that discretion ought to have been exercised. The principles set out in House v The King (1936) 55 CLR 499 are apt.

73    Chief Justice Latham in Lovell v Lovell (1950) 81 CLR 513 at 519 observed that when an appellate tribunal is considering questions of weight referrable to a discretionary judgment it is not in the same position as the primary judge. He explained that in the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.

74    This formulation was adopted by McLure JA (Steytler P agreeing) in Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 at [36].

75    No such contention was put by the appellant nor were there grounds for it to have been put.

76    Mere allegations, as in effect are made here, that the decision-maker did not give sufficient weight to particular matters are not the kinds of errors which attract appellate intervention in respect of a discretionary judgment or decision. See eg Comcare v Post Logistics Australasia Pty Ltd (2012) 207 FCR 178.

77    Matters of weight are for the Tribunal: see eg Minister for Immigration and Multicultural Affairs v Indatissa (2001) 64 ALD 1 at [32].

78    The appeal will for these reasons be dismissed. The appellant will be ordered to pay the respondent’s costs.

Associate:

Dated:    22 December 2014