FEDERAL COURT OF AUSTRALIA

Charara v Commissioner of Taxation [2016] FCA 451

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal made on 9 April 2015 dismissing the applicant’s review application be set aside.

3.    The applicant’s review application be remitted to the Administrative Appeals Tribunal, differently constituted, to be reheard and decided again.

4.    There be no order as to costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    Self-represented parties can present unique and difficult challenges for courts and tribunals alike. This matter provides a good example of how best not to deal with those challenges.

2    The applicant, Mr Jamal Charara, is a businessman of sorts. He also describes himself on his letterhead, perhaps ominously, as a “very experienced litigant” in a long list of areas of law in many different courts and tribunals. If Mr Charara’s letterhead is to be taken at face value, his past experience as a litigant extended to litigation concerning taxation law in both this Court and the Administrative Appeals Tribunal. As luck would have it, this matter apparently fell within his area of litigious expertise.

3    Mr Charara commenced administrative review proceedings in the Tribunal in respect of objection decisions of the respondent, the Commissioner of Taxation, concerning a number of taxation assessments. Despite his self-professed experience as a litigant in such matters, the review proceedings did not end well for Mr Charara. In the midst of his cross-examination by counsel for the Commissioner, Mr Charara unsuccessfully applied for the presiding Tribunal member to recuse himself. He then unsuccessfully applied for an adjournment.

4    It was at that stage that things got difficult and particularly challenging for both Mr Charara and the Tribunal alike. The presiding Tribunal member directed Mr Charara to return to the witness box. Mr Charara told the Tribunal that he could not because he was incapacitated. He then left the hearing room. He returned briefly, but then apparently collapsed onto his chair. Mr Charara was apparently assisted from the hearing room, after which an ambulance was called and he was conveyed to St Vincent’s hospital for treatment.

5    The Tribunal hearing proceeded whilst Mr Charara was being treated in hospital, but not for long. Initially, the Tribunal member said that he intended to continue to hear and determine the review application in Mr Charara’s absence. Over the luncheon adjournment, however, it seems that the member had a change of heart. He decided to dismiss Mr Charara’s application pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that Mr Charara had failed to proceed with his application and had failed to return to the witness box.

6    Mr Charara appealed the Tribunal’s decision to dismiss his claim pursuant to s 45A(2) of the AAT Act. The appeal was brought pursuant to s 44 of the AAT Act. The appeal raises two questions of law: first, whether in dismissing Mr Charara’s application the Tribunal misconstrued or misapplied s 42A(5) of the AAT Act; and second, whether Mr Charara was denied procedural fairness on the ground of apprehended bias.

Background

7    It is unnecessary to delve in any great detail into the intricacies of Mr Charara’s review application in the Tribunal. That is fortunate, because the parties did not provide much assistance to the Court in that regard. Ultimately, at the Court’s request, the Commissioner tendered the objection decision that was the subject of the review application, together with the respective Statements of Facts, Issues and Contentions that had been filed in the Tribunal by Mr Charara and the Commissioner. Following is a brief summary of the background facts and circumstances so far as they are able to be gleaned from those documents. It must be said, however, that those documents are far from pellucid or helpful.

8    Mr Charara conducted, or was associated in some way with, a number of businesses. One of those businesses involved the sale of printer cartridges and stationery. The other involved the provision of services including debt collection, repossession and the service of documents. Mr Charara’s business was registered under the A New Tax System (Goods and Services Tax) Act 1999 (Cth). He used the business name Austpower Commercial Services. Mr Charara was also, at various times, a director of a number of companies, including Austpower Commercial and Technology Supplies Pty Ltd, Media Press Computer Supplies Pty Ltd and Mediapress Computer Supplier Pty Ltd.

9    Mr Charara relevantly lodged GST returns under the GST Act in respect of the period from 1 December 2009 to 31 December 2011. He relevantly lodged income tax returns for the income years ended 30 June 2008, 2009, 2010 and 2011.

10    On 4 May 2012, the Commissioner commenced an audit into Mr Charara’s income tax and GST affairs. That audit was finalised in late April 2013. It resulted in the issue of GST assessments in respect of amounts payable under the GST Act for the overall period October 2009 to December 2011, and amended income tax assessments in respect of income tax for the years ended 30 June 2008, 2009, 2010 and 2011.

11    The main basis for the GST assessments and amended income tax assessments would appear to be that Mr Charara was the sole signatory and authorised operator of a number of bank and debit card accounts during the period 2008 and 2011. The Commissioner’s audit identified a number of deposit and credit transactions in those bank accounts. The Commissioner inferred that those transactions related to taxable supplies and represented the proceeds of Mr Charara’s business operations. It would appear that Mr Charara claimed that the deposits did not, or did not entirely, relate to taxable supplies or receipts from his business operations. He provided explanations for the transactions in his bank accounts that were supposedly consistent with that claim. The Commissioner did not accept Mr Charara’s explanations. The assessments and amended assessments were issued on that basis.

12    Mr Charara was also assessed as being liable for administrative penalties arising from shortfalls in his GST and income tax returns.

13    Mr Charara objected to the Commissioner’s GST assessments, amended income tax assessments and penalty assessments. On 11 December 2013, the Commissioner partially allowed the objections in relation to the GST assessments and amended income tax assessments and essentially disallowed the objections to the penalty assessments.

14    On 5 February 2014, Mr Charara filed an application for review of the objection decisions in the Tribunal.

15    The core issue for the Tribunal was whether the GST assessments, amended assessments and penalty assessments were excessive. The onus was on Mr Charara to prove that they were: Taxation Administration Act 1953 (Cth) s 14ZZK(b). To a large extent, the resolution of that issue hinged on the explanations given by Mr Charara in relation to the various transactions in his bank accounts. The question, put simply, was whether Mr Charara’s evidence concerning the entries in his bank accounts was credible and reliable.

16    It can perhaps be accepted that the resolution of the primary factual dispute concerning Mr Charara’s explanations of the various deposits and transactions may have involved some complexity. It would seem that a surprising volume of documentation supposedly relating to the transactions was produced. Some of Mr Charara’s explanations were, it appears, somewhat elaborate or involved. Still, the amounts involved were not particularly large. The GST assessments totalled just over $4,000 and the related penalty assessments just under $4,000. The amended assessments totalled just over $23,000 and the associated penalties just over $23,000. The number of relevant transactions was not particularly large and there were apparently only two witnesses to be called in the Tribunal: Mr Charara and a friend or associate of his named Mr Ercan Sogutlu. And, as has been said, at the end of the day the main question for the Tribunal was whether Mr Charara’s evidence concerning the source of the deposits was credible and reliable. If it was not, it was unlikely that Mr Charara would have been able to discharge his onus of proving that the assessments were excessive.

17    Despite this, the proceedings in the Tribunal appeared to take on a somewhat bewildering complexity. It is not entirely clear why. There appears to have been a number of directions hearings during 2014. At those hearings the Tribunal directed the parties to, amongst other things, exchange electronic spreadsheets identifying the relevant assessment and penalty decision amounts and their respective contentions in relation to them. There is no suggestion that Mr Charara failed to comply with any of the Tribunal’s directions, which were apparently designed to prepare the matter for hearing. As will be seen, however, in its reasons for dismissing Mr Charara’s application, the Tribunal complained about Mr Charara’s lack of competence in using the relevant spreadsheet software. It would seem that the Tribunal’s insistence on having the parties reduce the facts and contentions to a computer spreadsheet or spreadsheets ultimately complicated rather than simplified the matter. It also appears to have led to some degree of confusion and frustration at the final hearing.

18    There is no need to delve into the minutiae of the parties’ rival contentions concerning the relevant bank account deposits and other transactions. The questions of law raised by Mr Charara’s appeal do not hinge on the resolution of the factual issues that arose at the review stage. In any event, the parties provided little assistance to the Court in comprehending the rival contentions. Some, but not all, of the evidence that was before the Tribunal was tendered by the Commissioner in these proceedings. That was ostensibly so the transcript of the cross-examination of Mr Charara could be read and understood in context. That evidence will be touched on later in relation to the question of law concerning apprehended bias. Neither Mr Charara nor the Commissioner made any, or any detailed, submissions in this Court concerning the rival facts and contentions at the review stage.

The tribunal hearing

19    Mr Charara’s review application in the Tribunal was eventually set down for hearing for four days commencing on 7 April 2015.

20    It would appear that nothing of particular significance to these proceedings occurred on the first hearing day in the Tribunal. That said, an inexplicably large volume of documentation appeared to be tendered. Mr Charara gave an opening address of sorts, though the transcript reveals that what really occurred was an ongoing exchange or interaction between Mr Charara and the Tribunal. Much of the interaction appeared to be directed at the electronic spreadsheet or spreadsheets. There appeared to be a degree of confusion surrounding the spreadsheets. Nevertheless, the transcript reveals that Mr Charara attempted to explain, and the Tribunal apparently sought to understand, Mr Charara’s explanations concerning various line items in the spreadsheets.

21    Mr Charara’s allegation of apprehended bias on the part of the Tribunal did not rely on anything that occurred on the first hearing day. Rather, his case focused on exchanges that occurred between him and the Tribunal member on the second and third days of the hearing in the course of his cross-examination by the Commissioner’s counsel. Nevertheless, it is necessary to have some regard to the first hearing day to put the later events in context. The transcript reveals that the Tribunal member appeared to be genuinely attempting to come to grips with Mr Charara’s case on his review application. To be sure, and with the greatest respect to Mr Charara, that does not appear to have been an easy task.

22    Difficulties began to emerge almost immediately upon the commencement of Mr Charara’s cross-examination on the second hearing day. Early on in the cross-examination, Mr Charara, who it must be recalled was self-represented, objected to a question asked of him by the Commissioner’s counsel. The question itself appeared to be fairly innocuous. Perhaps for that reason, the Tribunal member immediately directed Mr Charara to answer the question without asking him what the basis of his objection was. Mr Charara responded to the member’s direction by maintaining that he refused to answer the question on the basis that he was not going to “implicate” himself (T220, line 31, 8/4/15). The member responded in the following terms (at T220 line 45 to T221 line 1, 8/4/15):

I direct you to answer the question and I specifically draw your attention to the provisions of the Administrative Appeals Tribunal Act that permit me to dismiss the application where you fail to comply with a direction of the Tribunal.

23    Whether that direction was justified or warranted in the circumstances is debatable. Certainly Mr Charara did not think so. He immediately responded by contending that the member was being “heavy-handed”. The Tribunal member replied that he was “in control of the proceedings” and asked counsel for the Commissioner to put the question again. Counsel for the Commissioner did so and Mr Charara answered the question without further objection. Regrettably, however, this exchange appeared to set the tone for what followed.

24    There is no doubt that Mr Charara was, at times, a somewhat difficult and at times irascible witness. On a number of occasions he did not directly answer questions put to him by the Commissioner’s counsel. On occasions he queried or criticised questions that were put to him, or otherwise criticised the conduct of counsel for the Commissioner. On those occasions, the Tribunal member directed Mr Charara to answer questions and reminded him, in at times forceful terms, that he was in control of the proceedings and that Mr Charara was not to issue instructions or ask questions.

25    Initially those exchanges were not particularly problematic. The difficulties really began when, some way into the cross-examination on the second day, the Tribunal began to take a more active role in the questioning of Mr Charara. Initially the Tribunal’s questioning appeared to be directed to clarifying or understanding aspects of Mr Charara’s evidence. Increasingly, however, the questioning began to take on the appearance of cross-examination. At times the questioning by the member was forceful and not in open or non-leading terms. At times it was lengthy and wide-ranging. Indeed, at times, the member appeared to almost take over and set the agenda or direction of the questioning. Often, after a lengthy series of questions, the member would then invite the Commissioner’s counsel to take up the line of questioning.

26    One example of the Tribunal member taking the lead on questioning Mr Charara about a particular topic will suffice. In his evidence, Mr Charara produced a number of cash sales invoices that related to sales made by his business, Austpower Commercial Services. Mr Charara’s case was that those cash sales explained some of the transactions in his bank account. He also produced invoices from a business known as Quick Charge that he claimed corresponded to those cash sales. He claimed that the Quick Charge invoices recorded his cost of acquiring the goods later sold by him in the cash sales. The Tribunal member questioned Mr Charara at length about the correlation between the cash sale invoices and the Quick Charge invoices. For example, the Tribunal questioned Mr Charara about the system which apparently resulted in later cash sales invoice including a reference (in italics) to the earlier Quick Charge Invoices. That system had not been the subject of any questions by counsel for the Commissioner.

27    Perhaps more significantly, the Tribunal also asked a series of questions that appeared to undermine Mr Charara’s evidence about the cash sales. The questions related to a particular cash sales invoice dated 6 August 2007 (at page 407 of the “T documents”) that recorded the purchase of a number of different ink cartridges. Those ink cartridges apparently were for use in five different printers. Mr Charara’s case was that this cash sales invoice corresponded with a Quick Charge invoice dated 1 March 2007. That invoice supposedly showed the cost to Austpower Commercial Services of acquiring the goods the subject of the cash sale. The Tribunal’s questions queried why a single customer would purchase ink cartridges for five different printers. The following extract provides an example of the nature and character of the Tribunal’s questioning of Mr Charara (at T246 line 37 to T249 line 26, 8/4/15).

SENIOR MEMBER: We might put it slightly differently?---Yes.

If we look at the invoice on page 407?---Yes.

It lists five items in a particular sequence. Correct?---Yes.

If you look at the invoice on page 35, the items are listed in the same sequence?---Yes.

If you look at the descriptions for each item, the item details on page 4 is not exactly the same as the description on page 35 - - -?---Correct.

- - - but they look to be substantially the same items?---Yes.

Are they the same items?---They are the same items.

The next question is, is there any relationship between the items on page 407, for example – do they relate to a group of products that would inherently be likely to be purchased at the same time?---They were popular lines of stock that we had to stock.

I understand that?---He suggests that I was expecting this customer to walk in and buy this particular product. No. My answer is no.

I’ll just go back?---Yes.

The question I asked you was whether or not when you look at the five items, they are all related to one purchase. Namely, if a person was buying the first item which is – what – a cartridge, is it?---Yes.

If a person was buying a cartridge on line 1, would that person be inherently likely to purchase the other items that are listed below at the same time or is there no - - -?---That is a hypothetical question. I can’t answer that question because I’m not going to predict what people will come into buy. Let me answer this with - - -

You might be misunderstanding my question?---Yes.

The person who purchased the first item, the Hewlett Packard cartridge there - - -?---Yes. Yes.

- - - that would go in a particular machine?---Yes. All of them go into particular machines.

If a person had the particular machine that used the first cartridge, would a person with that machine also be likely to need the other cartridges set out below for the same machine?---Yes, it’s possible because this – like I said earlier in my evidence, I said we targeted specific machines to stock. You get it? Reserve stock on. So that stock have to always be on hand. If somebody comes two years later and buys that stock, that’s entirely up to them. But my obligation as a businessman was to target the specific machines and keep that stock. Those were the popular machines at those periods of time.

You’re not answering my question?---I have answered your question.

No, you’re not because you’ve misheard my question. The first cartridge belongs to a particular machine?---Yes. Let me look at that, sorry. Are we looking at page 35?

Page 4?---Yes, your Honour.

If you look at it, it looks as if it’s a Hewlett Packard laser jet printer?---Yes.

If you look at the second item, it doesn’t include laser jet which suggests it’s not a laser printer cartridge?---It is a laser printer cartridge, from my experience.

All right?---All of these here are laser printer.

If a person had a machine that used the 2100/2200 cartridge - - -?---Yes.

- - -that same machine wouldn’t also be able to use the 1200 or 1000 cartridge, item 3, would it?---No.

So different machines?---Different machines.

Right. That’s the point that I was asking you?---Yes.

A person who used the first cartridge for a particular machine, wouldn’t have the need, for that machine, to purchase the other cartridges?---No. That’s correct. For example, if I run my organisation, I get four printers of four - - -

But you’re not answering my question?---I have answered it.

I am asking about one particular machine. A person who used the cartridge number 1 for one machine wouldn’t be able to use the following cartridges for the same machine. Correct?---No.

You agree with me?---Yes.

Each of the following items, the 1010 cartridge, the 1200 cartridge, the 1100 cartridge and the 3300 cartridge, they all go to different machines?---100 per cent.

None of the items are capable of being used interchangeably from one machine to the other?---No. It depends. During those days Hewlett Packard used to manufacture different kinds of machines to today. In some cases if you have – for example, I can’t tell you now but based on my past experience, if you have the machine of 4200, it’s possible that the 4200 would be able to take the 5200.

Looking at these descriptions here now, are you able to say whether any of those cartridges would be interchangeable from one machine to the other?---Doing the best I can, not being an expert on the machines, no. My answer is no. They are all for – doing the best I can, these are five different machines.

Now, Mr O’Brien, you might want to go back and ask a question.

MR O'BRIEN: Sir, what I was suggesting to you - - -?---Don’t go there.

Don’t you go there. Don’t go there, Mr O’Brien. You are under me. Don’t you even try.

SENIOR MEMBER: Mr Charara - - -?---Yes, don’t do it.

Mr Charara, I’m getting a little - - -?---I have this temper when somebody allege something that I – I don’t like it. Let me inform the court of that. You can see that I don’t like it.

Well, thank you for that information and now I’ll give you another piece of information?---Yes.

You are dragging the proceedings out and you are interfering with their efficiency by failing to discipline yourself as a witness. Please assist me by disciplining yourself, listening to the questions and answering the questions without venturing unnecessary exchanges directed at Mr O’Reilly[sic]. Do you understand me?---Thank you, your Honour. Go ahead, Mr O’Brien.

28    Plainly, the Tribunal’s questions directly challenged the plausibility and credibility of Mr Charara’s evidence concerning the correspondence between the cash sales invoices and the Quick Charge invoices.

29    Whilst it is not possible to fully appreciate the tone of the questioning from the transcript alone, there is little doubt that relations between the Tribunal member and Mr Charara soured considerably as the hearing progressed. That was in no small part due to the nature and extent of the questioning conducted by the Tribunal member.

30    After the luncheon adjournment, Mr Charara raised his first direct objection to the manner in which the Tribunal member was conducting the hearing. The following exchange occurred (at T276 line 4 to T277 line 17, 8/4/15).

SENIOR MEMBER: Yes, Mr O’Brien.

MR CHARARA: Good afternoon, your Honour. There are some issues I’d like to raise first, so we are quite aware of it if I go back and give evidence. And please, with all due respect, I want you to please listen to me and when I’m finished you raise your point. I have some concerns about you, with respect. There are a few things you say which were totally outside your jurisdiction. First, I have no idea what I’m saying. Two, I tried - - -

SENIOR MEMBER: Are you making an application?

MR CHARARA: I’m not making an application at this stage.

SENIOR MEMBER: Well then why should I listen to you?

MR CHARARA: I want to raise some issues before I go back there. On that basis, judges of trial, I seek leave to hand up a copy of the case of – pardon me, your Honour.

SENIOR MEMBER: You’re not making an application?

MR CHARARA: I’m not making – I don’t wish to. I just wish - - -

SENIOR MEMBER: All right then. Well, go back in the witness box.

MR CHARARA: No, I wish to say, are preliminary issues that is intimidating me while I’m giving evidence. I don’t want that. If I’m being intimidated I will halt, so for those reasons I want to raise some issues. I will go back. I’m not making an application. I don’t have – I don’t have too much concern at this stage but I have relatively small concerns.

SENIOR MEMBER: Go back in the witness box.

MR CHARARA: No. I will say this, with great respect, your Honour.

SENIOR MEMBER: I direct you to go back into the witness box now.

MR CHARARA: Yes, but it is – I, as a self-represented applicant before this court, have the right to express my view in line with the manner in which the proceedings be conducted.

SENIOR MEMBER: No, you don’t, Mr Charara. I direct you – I direct you, in accordance with section 42A subsection (5) to go back into the witness box now.

MR CHARARA: Well, if I’m pressed then I will make an application for you to remove yourself. I’ll proceed to make the application.

SENIOR MEMBER: You want 5 to make the application?

MR CHARARA: Well, if you’re willing to listen to me I will not - - -

SENIOR MEMBER: You either make your application or you don’t.

MR CHARARA: Well, I don’t seek to make an application at this stage.

SENIOR MEMBER: All right, well go back into the witness box, please, and let’s get on with the case.

MR CHARARA: On that basis please do not intimidate me anymore, please. You’re determined to be somebody who doesn’t know about the system.

31    Mr Charara returned to the witness box after this exchange as he was directed to do. The questioning continued. As before, a good deal of the questioning was conducted by the Tribunal member.

32    At one stage, the Commissioner’s counsel’s questions were directed to a series of invoices relating to the supply of ink toner. Most of the invoices were on the letterhead of Austpower Commercial Services. Within the sequence of invoices, however, was an invoice apparently on the letterhead of Mediapress Computer Supplies Pty Ltd. The invoice was dated 1 November 2007. The company had, however, apparently been wound up on 3 September 2007. Counsel put to Mr Charara that he was “hiding other business receipts from your business by invoicing in the name of a company you purport to have closed down” (T287 8/4/15). Mr Charara denied that suggestion. He claimed that the invoice had been printed on the incorrect form by Austpower Commercial Services’ accounting software, MYOB. Counsel challenged this answer on the basis that Mr Charara had earlier stated that none of Mr Charara’s other businesses used the MYOB software.

33    At that stage, the Tribunal member took up the questioning. The following exchange occurred (at T287 line 45 to T289 line 36, 8/4/15).

SENIOR MEMBER: I’m sorry?---I stand by my answer - - -

No, you said this company didn’t use Austpower?---No, no. Yes. I said, this company did not use Austpower Commercial Services system because the company was closed down, but - - -

MediaPress Computer Supplies Pty Ltd never 5 used Austpower’s MYOB account. Is that what you’re saying?---After it was closed down, yes. But I explained why this invoice came on. I think I’ve explained that every day, I can re-explain it.

What you said was that you think that when you reprinted it, somehow or other when you were operating the MYOB account for Austpower Commercial Services, somehow or other the computer just spat out an invoice for MediaPress Computer Supplies Pty Ltd?---Invoice.

Yes?---Yes.

I’ve got to tell you I think that’s just nonsense?---What was that?

I’ve got to tell you I think that’s just nonsense?---Well, then again you can tell me that (indistinct), your Honour. I will point out – what I’m saying is – what I’m saying is, if that is the case I will subpoena this customer to produce the original invoice that will have the same number, okay, but not MediaPress. So that will clear the doubt. When – it’s possible – what is possible is, no way in the world would I have supplied the customer on a MediaPress Computer Supply. That’s fraud. That’s unlawful. The company was closed down by the Supreme Court. But these are not – these invoices were reprint from the records in the computer. In the process of reprinting it is possible that MediaPress invoice may have been printed out, but the items on the invoice were sold by Austpower. That’s my answer.

The invoice number 206?---Yes.

That was reprinted out for the Tax Office, was it?---All the invoice – all these – these – not the purchase number, all these sales, or account invoices were reprinted out.

Yes, Mr O’Brien.

MR O'BRIEN: Sorry, that question. We didn’t get these invoices until now for these proceedings, not printed out for us.

SENIOR MEMBER: Mr Charara, the MYOB system, when you operated it, it has a file for each trading entity, doesn’t it. So to open the system up you’ve got to pick the Austpower file to open up MYOB?---In this case – in my case I use one file for one company only, and I use one company. But in this case the MYOB that MediaPress use was using before I established Commercial Services. It was that MYOB that I took, and (indistinct) MediaPress - - -

Yes, but when you used the MYOB software, you can use it for multiple trading entities, but each trading entity has its own separate file?---Well, I’m not the expert, I have not – maybe it’s possible, I have not used it for – in my case, in my experience, I have used it only for one entity. But maybe it’s possible you can use it for more than one entity.

There would be no reason for your Austpower Commercial Services MYOB account, there would be no reason for that MYOB file to have a MediaPress invoice template, would there?---No. No. If I saw – if I was operating this computer, MYOB has John Peter Limited, and I sold it to Peter Jackson. Peter Jackson only have to clear out my file, like work out my details and then start it all over - - -

Please, just answer my question. If you were using MYOB for Austpower Commercial Services, there is no reason in conducting the business of Austpower Commercial Services for the MYOB file to have an invoice template for Austpower Commercial Services, is there?---No, there’s no reason you can have.

All right, let me go back. When you operate the MYOB system and create an invoice, does it save the invoice as a separate invoice? You don’t have to recreate it every time you want it?---Save the invoice plain, but when you go to print it, it ask you for the form, what invoice you want to print on. So in other word, they all sit in there, but no company details. The only way a company detail, it will ask you to select the invoice you want to print, so in doing so I’ve mistaken it, once I selected MediaPress to print out of that.

So you don’t know whether that’s happened, but that’s what you suggest might - - -?---From the face of this that’s what happened because I have the full knowledge that these sales were made to this company from Commercial Services.

All right. Yes, Mr O’Brien.

(Emphasis added)

34    As will be seen, Mr Charara’s application for the Tribunal member to disqualify himself on the basis of apprehended bias was based in part the member’s statement that he thought Mr Charara’s evidence about this invoice was “just nonsense”. This exchange also provides another example of the Tribunal effectively taking over the questioning of Mr Charara. After this exchange, counsel for the Commissioner obviously considered it unnecessary to ask any further questions about the invoice. The ground had been fully covered by the Tribunal.

35    The questioning of Mr Charara continued in much the same way for the balance of the day. On the following morning, the third day of the hearing, Mr Charara applied for the Tribunal member to recuse himself on the grounds of apprehended bias.

THE RECUSAL APPLICATION AND DECISION

36    Mr Charara’s application that the Tribunal member recuse himself was based on seven complaints or contentions. Each of the complaints related ultimately to the claim that the Tribunal member was predisposed in favour of the Commissioner.

37    First, Mr Charara claimed that the Tribunal member had twice told Mr Charara that he did not believe him. Second, Mr Charara relied on the exchange, referred to earlier, during which the Tribunal member referred to Mr Charara’s evidence about a particular invoice as being “nonsense”. Third, Mr Charara complained that the Tribunal had conducted the cross-examination on behalf of the Commissioner. Fourth, Mr Charara claimed that the Tribunal had instigated particular lines of questioning in favour of the Commissioner. Fifth, Mr Charara contended that the Tribunal had continuously assisted the Commissioner’s position. Sixth, Mr Charara alleged that the Tribunal had failed to respond to his complaint, at the beginning of the second day, that the Tribunal member’s conduct of the hearing was intimidating him. And seventh, Mr Charara complained generally that the Tribunal’s approach to the hearing was not fair or impartial.

38    The Tribunal member refused to recuse himself. He rejected each of Mr Charara’s contentions or complaints.

39    In relation to first contention, there was some confusion or uncertainty concerning Mr Charara’s claim that the Tribunal member had told Mr Charara that he did not believe him. The transcript, which was not available at the time, does not record any such exchange. Nor do the hearing tapes record any such statement. Nevertheless, at the time of the recusal application, counsel for the Commissioner advised the Tribunal member that he recalled one occasion when the Tribunal member said that he did not believe Mr Charara. That was in the context of the questions concerning the invoice on the letterhead of Mediapress Computer Supplies Pty Ltd. That was the same series of questions during which the transcript records the Tribunal referring to Mr Charara’s evidence as “just nonsense”.

40    Mr Charara’s evidence in this Court was that the Tribunal did say “I don’t believe you” twice during the questioning. Evidence was also led from Mr Sogutlu to the same effect. It was not directly put to either Mr Charara or Mr Sogutlu in cross-examination that their evidence in that regard was false, though they were questioned about whether they had made and retained any notes. Both maintained that they had made notes during the hearing. Neither produced copies of those notes.

41    In all the circumstances, the evidence of Mr Charara and Mr Sogutlu that the Tribunal member said “I don’t believe you” should be accepted, despite the fact that it does not appear in the transcript or on the hearing tapes. That is so particularly given the candid concession by counsel for the Commissioner at the time of the recusal application. Important also is that the Tribunal member did not directly dispute that he had said those words, either in the course of the recusal application, or in his decision to refuse the application.

42    The Tribunal’s response to both the first contention (“I don’t believe you”) and the second contention (“just nonsense”) was that those exchanges had to be considered in context. The context appeared to be that the evidence of Mr Charara that provoked these statements was, in the Tribunal member’s view, not credible. Indeed, the Tribunal appeared to reason that after further questioning from the Tribunal, Mr Charara had effectively abandoned that evidence. In the member’s ex tempore decision, the member reasoned as follows (at P2 line 42 to P3 line 4, 9/4/15):

I do recall expressing some scepticism about that explanation for the invoice, but I also recall that I followed up with a series of questions designed to try and clarify the actual process by which the invoice may have been produced. That process revealed that Mr Charara did not now recall whether the invoice was printed from the live MYOB computer system, in which the invoice would have to be generated afresh, or whether it was printed from an archived or filed copy of the invoice which may be able to be printed without reconstructing the actual MYOB accounting software process of creating the invoice.

At the end of that series of questions and development, my clear recollection is that Mr Charara no longer pursued any espousal of any particular reason why the invoice under the letterhead, MediaPress Computer Supplies Limited, appears in the sequence in which it does. But he was quite candid in responding to my question in saying that he believed that whatever the apparent visual anomaly on the form, he was quite satisfied that it was nevertheless an invoice of Austpower Commercial Services.

43    The Tribunal rejected Mr Charara’s third contention on the basis that s 2A(b) of the AAT Act gave the Tribunal power to conduct the examination on behalf of the Commissioner. Section 2A(b) provides as follows:

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is:

…

(b)    fair, just economical, informal and quick…

44    The Tribunal member thus apparently did not take issue with the contention that he conducted the examination on behalf of the Commissioner. He rejected this ground on the basis that the Tribunal had power to do so.

45    Likewise, in relation to Mr Charara’s fourth contention, the Tribunal member did not appear to take issue with the fact that he had, on at least one occasion, instigated a particular line of questioning that had not earlier been pursued by counsel for the Commissioner. The particular example referred to was the series of questions the Tribunal member asked about the italicised portion of the cash sales invoices and the correlation between those invoices and the Quick Charge invoices. The Tribunal member said it was correct that those issues had not been “significantly developed” by counsel for the Commissioner. He maintained, however, that nonetheless the “thrust” of the cross-examination by counsel was that the suggested correlation was “fanciful”. The Tribunal member reasoned that his questioning was designed to clarify the evidence that had already been given by Mr Charara on that topic (at P4, lines 9-34, 9/4/15):

Mr Charara gave some evidence about what the purpose of that italicised font was. He is quite correct in saying that the significance of that italicised font and the content of the information it contains was not significantly developed by Mr O’Brien in the course of his examination. However, it was the clear thrust of Mr O’Brien’s cross-examination that he regarded the explanation that Mr Charara was giving about the correlation between the Austpower Commercial Services invoices and the supplier invoices, which he had nominated, was fanciful. That is my paraphrase of the thrust of Mr O’Brien’s cross-examination.

Alerted to that apparent purpose of the cross-examination, my concern in asking questions about the content of the invoice was to make sure that I had a proper understanding before me of what significance could properly be attributed to the content of the invoice, the italicised font, and how it – and in particular whether or not the content of that field was restricted either by any limitation in the procedures within the computer system of Austpower Commercial Services or limitations within the practices that it followed.

Far from that series of questions of mine pre-empting anything the respondent did, it was in fact an attempt to clarify the content of the evidence that had already been given for the purpose of properly informing myself about the weight that could properly be attached to the cross-examination that had hitherto been conducted. In actual fact, if Mr Charara’s view is that in taking that course I was pre-empting the respondent, the plain fact of the matter is that he fails to understand what has been going on in the proceedings.

46    The Tribunal member rejected Mr Charara’s fifth contention, that he had continually assisted the Commissioner’s position, on the basis that Mr Charara had failed to give any examples of when that was supposed to have occurred.

47    Mr Charara’s sixth contention related to the Tribunal’s response to the complaint of intimidation he made at the commencement of the second hearing day. The Tribunal member pointed out, in response, that Mr Charara had not made any application. If he had done so, the Tribunal member said that he would have dealt with it. The Tribunal reasoned (at P5, lines 6-12, 9/4/15):

I point out that I am in control of these proceedings. I will not be lectured to by any party. I will not be the subject of vague accusations of intimidation. If there is an application to be made it will be made and it will be determined. I am not here to do anything other than to listen to the proceedings, to conduct them efficiently and to ensure that each party has the opportunity to be heard. I will not, as I say again, be the subject of fatuous patronising comments that have no real contribution to the conduct of the proceedings.

48    Finally, in relation to Mr Charara’s complaint that the Tribunal member’s conduct of the proceedings had not been fair or impartial, the Tribunal member accepted that his participation in the proceedings had been “necessarily somewhat active”. The member explained that his active participation was brought about by the fact that the voluminous documentary evidence had not been effectively assembled into spreadsheets by the parties. He asserted that Mr Charara had been a “conspicuous defaulter in contributing to the assembly of that material” and had omitted parts of the spreadsheets provided by the respondent. Mr Charara denied that was the case. In any event, the Tribunal member said that this had led to frustration on his part (at P6, lines 45-47, 9/4/15):

The frustration that I feel in dealing with this matter will be quite evident to those in court. It explains why I have been as active in participating in the proceedings as I have.

49    In his reasons for refusing to recuse himself, the Tribunal member referred in detail to the authorities concerning apprehended bias. It is unnecessary to repeat what the Tribunal said in relation to those authorities. There could be no suggestion that the Tribunal was not cognisant of the relevant principles. The question is whether, in refusing Mr Charara’s application, the Tribunal misapplied those principles.

The Dismissal

50    Mr Charara applied for an adjournment immediately following the dismissal of his recusal application. He claimed that he was “not competent” and that he needed to seek a psychological assessment to determine whether he was capable of giving evidence before the Tribunal. The Tribunal inquired whether the Commissioner had an application to make. The Commissioner’s counsel replied that his application was that the matter should proceed and that, if Mr Charara was not prepared to go back into the witness box, the matter should be dismissed.

51    Mr Charara did not lead any evidence in support of his adjournment application. He submitted that he was “incapacitated” and had been intimidated by the member. He said he needed to consult an expert to produce a report so that he could evaluate whether he was competent and still had “the original self-esteem” that he had when he first appeared before the Tribunal.

52    Perhaps not surprisingly, the Tribunal member did not immediately accept Mr Charara’s assertions from the Bar table that he was incapacitated. He questioned Mr Charara about his claims. That questioning revealed that Mr Charara was not under medical treatment for any psychological condition, that he did not have a psychological practitioner that he could consult, that he did not consult a psychologist after the proceedings had been adjourned the previous day, and that he had not identified any medical practitioner that he would like to consult. Mr Charara did state, however, that he intended to approach a medical practitioner that day and that he only sought an adjournment for a few days. Counsel for the Commissioner maintained his objection to the adjournment application.

53    The Tribunal rejected Mr Charara’s adjournment application and characterised it as “ill-founded”.

54    Following the rejection of Mr Charara’s adjournment application, the Tribunal directed Mr Charara to return to the witness box. The member referred in that context to s 42A(5) of the AAT Act. Mr Charara replied that he was incapacitated. In response to a question put to him by the member, Mr Charara said that he was not refusing to return to the witness box, but was incapacitated. The Tribunal adjourned for 10 minutes.

55    Mr Charara did not appear when the hearing was reconvened after the ten minute adjournment. Counsel for the Commissioner applied for Mr Charara’s review application to be dismissed. The Tribunal member stated that he was not going to dismiss the application. Rather, he was going to continue with the hearing. The Tribunal member indicated that he was not going to dismiss the proceeding for “non-compliance” because “it could be reinstated and that’s going to waste everyone’s time”. Counsel for the Commissioner pointed out that reinstatement after a dismissal was not “automatic” and that Mr Charara would have to show that the dismissal was in error. The Tribunal member repeated that he was “not minded to do it”.

56    The Tribunal member’s reference to reinstatement was an apparent reference to s 42A(10), which relevantly provides that the Tribunal may reinstate an application if it appears to the Tribunal that it has been dismissed in error. Counsel for the Commissioner’s reference to the reinstatement not being automatic was a reference to the need to show that the dismissal was in error. It should be noted, in this context, that the Commissioner did not suggest in this Court that the availability of reinstatement by the Tribunal under s 42A(10) meant that Mr Charara should have sought reinstatement before instituting this appeal, or that he should be denied relief on discretionary grounds even if he was able to demonstrate legal error on the part of the Tribunal.

57    After some further brief exchanges between the Tribunal member and counsel for the Commissioner, Mr Charara returned to the hearing room. He advised the Tribunal member that he had made an appointment with a doctor the following day. The member replied that he was not adjourning the proceedings.

58    What occurred next is critical. The transcript reveals the following exchange (at T17, lines 6-21, 9/4/15):

MR CHARARA: Well, you see, your Honour, you can’t make judgment. If your Honour dismiss this application but with great respect if you - - -

SENIOR MEMBER: I’m not going to dismiss the application. I’m not going to dismiss the application.

MR CHARARA: Well, I can’t give evidence. The evidence incomplete.

You don’t have evidence , well that will be totally - - -

SENIOR MEMBER: Mr Charara, it’s a matter - - -

MR CHARARA: It will be inconsistent with the Judiciary Act. It can’t be. No way. I will not accept it. I’m said I will call for ambulance to take me out of the court and also take me to police, ring 000. Tell them to come. Ring anyway, ring 000. My brain’s hurting me. Your Honour, I’m saying they call the ambulance.

(Emphasis added)

59    Mr Charara’s evidence concerning the events that followed was (at [19]-[22]):

The member then took a break at that point of time I and Ercan went to my office and I emailed for an appointment with Dr Gabriella Unsen, when we got back to the Tribunal I handed to the Member copy of the email and copy to Counsel, but the member kept saying that your application is refused and I kept saying that I was sick and I was unable to give evidence until Tuesday 14/4/15. Annexed hereto and marked "AFC2" is copy of email appointment.

During the to and fro between I and the Member I suddenly collapsed on the chairs behind me and I can't recall what happened at that very moment but I remember saying to Ercan call the ambulance I can't breathe, I recall Ercan holding and walking with me out into the conference room which was about few metres away from the front of the hearing room. I remember Ercan lading me on the floor and he called the ambulance.

After Ercan called the ambulance my chests was increasing in pain Ercan then walk me down to the foyer area because there was not much air in the room, the ambulance officer then met us in the foyer of the Tribunal and gave medical attendance to me.

Whilst the ambulance officers were attending to me in the foyer I saw the Commissioner of Taxation Solicitor Ms Hammond looking at me and walked passed first and the Counsel O'Brien few minutes later walked pass and waved to me.

60    Mr Sogutlu’s evidence was to the same effect. Both Mr Charara and Mr Sogutlu were cross-examined about this evidence, though not to great effect. They maintained their version of events. Their evidence was not significantly undermined by any evidence given during cross-examination.

61    Mr Scott Wearne, an employee of the Australian Taxation Office who was present in the hearing room at the time, gave the following evidence concerning the events (at [16]-[18]):

Mr Charara then stepped backwards from the bar table and sat on a chair across the aisle nearest me, then laid back in the chair and said to no one in particular.

“My brain hurts.”

And:

“Someone call an ambulance.”

The senior member continued with the hearing and everyone, including Mr Sogutlu, remained where they were.

After a couple more minutes Mr Charara then got up from the chair and unassisted walked out of the hearing room. Soon after Mr Sogutlu followed him.

62    Mr Wearne was not cross-examined by Mr Charara.

63    It is difficult to resolve the differences between the evidence of Mr Charara and Mr Sogutlu, on the one hand, and Mr Wearne on the other. That is so particularly in the absence of any cross-examination of Mr Wearne. It may be accepted that each of the witnesses was endeavouring to tell the truth and to give their best recollection of the events in question. The differences between the accounts are largely matters of impression and degree. One difference, for example, is whether Mr Charara left the hearing room assisted or unassisted by Mr Sogutlu. Mr Wearne says Mr Charara left unassisted. Mr Charara and Mr Sogutlu say that Mr Sogutlu was holding Mr Charara. Whether that amounts to assistance is a question of degree.

64    Ultimately the differences are not significant and do not matter. The important point is that there is no dispute that an ambulance was called. When it arrived, Mr Charara was attended to by paramedics. Mr Charara’s evidence was that the paramedics examined him. Mr Charara asked them if he was fit to go back to the hearing room to continue his case. The paramedic replied: “No, your condition is worse, we have to take you to the hospital”. Mr Charara was not cross-examined about his evidence to that effect.

65    In any event, Mr Charara was conveyed to St Vincent’s Hospital. A report from a senior resident medical officer of St Vincent’s Hospital to another doctor records that Mr Charara presented to the Emergency Department of the hospital at 12.39 pm. The presenting problem was recorded as being “syncope”. Syncope is the temporary loss of consciousness caused by a fall in blood pressure. The report continued:

Well recently. Went to work today - works as Barrister- got into heated argument in court, started hyperventilating, taken outside by friend, friend reports patient going pale and collapsing, unresponsive for l-2mins. Nil seizure like activity, nil incontinence/tongue biting, nil post ictal period.

Orientated immediately following event, complained of sharp left sided chest pain -resolved spontaneously enroute to ED. Nil SOB/palpitations. Nil headache/visual changes.

Asymptomatic in department. Bloods unremarkable including negative troponins.

ECG shows SR, nil acute changes.

CXR - nil pathology seen, pending formal report.

He is being discharged home today. Would [appreciate] your review this week. I understand he was hypertensive on his last visit to you and was [hypertensive] in department today - would appreciate your review with view to starting treatment as [appropriate].

66    It can be seen that much of the report is based on what the staff in the Emergency Department were told by Mr Charara and Mr Sogutlu. Mr Charara was showing no symptoms when he presented at the hospital, other than hypertension. Nonetheless, the author of the report plainly did not consider that Mr Charara was feigning illness, or that the episode was some sort of contrivance or ruse. Mr Charara was referred to another doctor for further review and treatment as appropriate. There is no evidence that Mr Charara subsequently returned to the hospital for further treatment.

67    After Mr Charara left the hearing room, the Tribunal member indicated that he proposed to continue with the hearing. The transcript records that the hearing did proceed for a short time in Mr Charara’s absence. The Tribunal member adjourned for lunch at 11.49 am. When the hearing resumed shortly after 2.00 pm, the transcript records the following exchange between the Tribunal member and counsel for the Commissioner (at T25 line 6 to T26 line 3, 9/4/15):

MR O’BRIEN: I saw him outside the lift bank when I went out, I saw him sitting there on a lounge, so I’m not sure what else has happened after that.

SENIOR MEMBER: I have to say I saw him in the hands of what appeared to be a paramedic at some stage.

MR O’BRIEN: Right.

SENIOR MEMBER: It inclines me to take the course somewhat different to what I had indicated before, Mr O’Brien. I had indicated before that I proposed to simply proceed on the basis of disposing of the matter by giving some oral reasons along the lines that I had foreshadowed before. If Mr Charara, however, is simply physically unable to be here because he is undergoing some medical treatment it gives rise to one potential issue, and also if I take on the onus of giving reasons for decision they would not be as fulsome as might otherwise occur, and it may be it may provide an avenue for the matter to be dealt with somewhere else on the basis of failure to take into relevant considerations, or whatever.

In those circumstances my inclination at the moment is to proceed contrary to what I said before in dismissing the proceedings under subsection 42A(5) on the basis that Mr Charara has failed to, first of all, comply with my direction in relation to going back into the witness box and, secondly, he has failed to proceed because he is simply not here. That gives me the discretionary power to dismiss the application. What I was concerned about beforehand was whether or not that was an appropriate power to exercise, having regard to the possibility of reinstatement under subsection (9). I don’t want to expose the parties into several rounds of proceedings if that can possibly be avoided.

But having considered the matter further, and taking into account what may be Mr Charara’s physical or medical inconvenience, the course I propose to adopt is to dismiss the proceedings under subsection (5), but in the course of doing so I am going to give some reasons as to why I consider it is appropriate to dismiss the proceedings at this stage, rather than to either adjourn them or take on the burden of giving a full set of reasons.

MR O’BRIEN: Right.

SENIOR MEMBER: Do you want to dissuade me from that course?

MR O’BRIEN: I’ll just get some instructions. No, we’re happy with that approach.

68    Mr Charara, of course, was not present in the hearing room at the time of this exchange. He was being treated at St Vincent’s Hospital. Because he was not present, Mr Charara did not know that the Tribunal proposed to dismiss his application. The last thing Mr Charara had heard from the Tribunal before he was taken to hospital was that the Tribunal was not going to dismiss his application, but would proceed with the hearing.

69    The other important point revealed by this exchange is that it is clear that the Tribunal member was well-aware that Mr Charara had been treated by paramedics after leaving, or being assisted from, the hearing room. Mr Charara’s uncontested evidence was that counsel for the Commissioner was also aware of that fact.

70    The Tribunal member delivered a lengthy ex tempore decision dismissing Mr Charara’s review application. The member’s reasons include a lengthy recitation of the nature of the proceedings and the conduct of the proceedings to date. The Tribunal member’s account of the proceedings included the member’s attempts to have the parties prepare spreadsheets, as well as his own preparation of various spreadsheets and summaries (which he somewhat inexplicably had marked as exhibits as he gave his reasons). More significantly, the member gave a detailed recitation of Mr Charara’s evidence and his assessment of it. What that recitation reveals is that, as Mr Charara had contended in his recusal application, the member had formed an adverse view of Mr Charara and the merits of Mr Charara’s case. That was despite the fact that the evidence was not complete. The member summarised his attitude to Mr Charara’s review application as follows (at P22, lines 5-17, 9/4/15):

For all of those reasons I am profoundly sceptical that there is any substance in the merits of Mr Charara’s review application. I am equally sceptical that he is really motivated to cooperate and participate in the proceedings in any really effective way. That suspicion is prompted partly by the difficulties that I have had and that the respondent has had in dealing with him in attempting to compile the spreadsheet information, and it has been exacerbated by the numerous instances in which I have had to inform Mr Charara in no uncertain terms in the course of the proceedings that I was controlling the proceedings, he was not to make speeches, that he was to endeavour to answer the questions and that he was to endeavour to focus and discipline himself appropriately, in order to assist me and, indeed, the respondent in achieving an economical and efficient resolution of the proceedings.

71    It is somewhat unclear exactly what the merits of Mr Charara’s review application had to do with the question whether the application should be dismissed under s 42A on the basis that Mr Charara had not complied with a direction to return to the witness box. It would appear, however, that the member’s “profound” scepticism about the merits of Mr Charara’s review application (albeit that the evidence was not complete and the hearing not concluded), and his negative attitude to Mr Charara generally, fed into his reasons for dismissing the review application.

72    The member gave the following reasons for dismissing the application (at P22 line 19 to P23 line 24, 9/4/15):

The situation as it presently is, is that in the course of yesterday Mr Charara did resume his cross-examination after I had directed him to do so, but then made an application this morning for me to effectively remove myself from the proceedings on the basis of apprehended bias. After that application I directed Mr Charara to resume his position in the witness box. He has refused to take that course.

He has made another application for an adjournment. When that was refused he simply absented himself from the hearing. That situation is one in which Mr Charara now has, on any objective view, failed to proceed with the application, he has failed to do so, notwithstanding that we are now in day five of the hearing, that he has had numerous opportunities to prepare his information and has been endeavouring to do so assiduously, judging by the sheer volume of material that he has produced. He has failed to comply with my direction to resume his position in the witness box and to continue with the hearing.

There is in my view no doubt in those circumstances that section 42A gives the tribunal the discretionary power to dismiss the application without proceeding to review. In the normal course of the events if the matter was one in which Mr Charara was labouring under a real personal difficulty I might be disinclined to exercise the discretion, however there are other considerations. Firstly, the tribunal does have an obligation under section 2A to pursue an objective of providing a mechanism of review that is fair, just, economical, informal and quick.

The matters in dispute in this assessment appear to involve in the case of the income tax assessment decisions an amount of $46,194. In the case of the GST provisions the amount involved is $7,947. They are not large sums and, in so saying, I do not wish to convey any suggestion of indifference to the size of those dollar values. Many people in this community have an annual income and many welfare recipients are forced to survive on amounts less than those sums, so they are not insignificant but they are modest in the scheme of things.

Against the background where Mr Charara lost no time in telling me that in the course of his activities in 2007 he had access to something in excess of $600,000 and where he has been able to conduct various business enterprises with at least the substantial sales values that he himself disclosed on page 54 of his return to the Commissioner in 2008 I am not satisfied that the amount in question is so significant that it requires me or, indeed, warrants me taking a view other than that after five days of hearing and the opportunities Mr Charara has had to present his case, and the assistance I have endeavoured to give him in eliciting with some degree of care and precision the matters that he wants to put forward, I am far from persuaded that the appropriate course is other than to dismiss the proceedings.

I am encouraged in that view by the reasons that I have earlier articulated, namely, a profound scepticism that there is any underlying merit in Mr Charara’s review application, in the sense that I doubt very much that he has the ability, or has even endeavoured to establish in any meaningful way, that the assessment decisions in relation to GST and income tax assessment were wrong or were excessive.

73    The Tribunal member’s statement, in his reasons, that Mr Charara “simply absented himself” was, at the very least, questionable. The Tribunal member omitted to mention that there was at least a potential issue concerning Mr Charara’s health. No mention was made of the fact that Mr Charara had been seen to be treated by paramedics during the luncheon adjournment. The Tribunal member’s oblique reference to the approach he might have taken if Mr Charara was “labouring under a real personal difficulty” suggests that the Tribunal had formed the view that Mr Charara was not labouring under any personal difficulties. The member plainly considered that the episode that resulted in Mr Charara being treated by paramedics was some form of contrivance or ruse. The Tribunal member made no attempt, however, to ascertain whether that was in fact the case.

Did the Tribunal misconstrue or misapply s 42A of the AAT Act in dismissing the application?

74    Section 42A is in Division 5 of the AAT Act. Division 5 sets out the procedural powers of the Tribunal. Section 42A gives the Tribunal power to dismiss an application for review of a decision without proceeding to review the decision. One of the circumstances in which the Tribunal has that power is provided in s 42A(5), which is in the following terms:

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

(a)    to proceed with the application; or

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

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

75    The discretionary power to dismiss an application under s 42A(5) is in aid of the objective in s 2A(b) of the AAT Act: Berry v Commissioner of Taxation [2015] FCA 1244 at [35]. That section provides as follows:

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is:

…

(b)    fair, just economical, informal and quick…

76    Section 33(1)(b) of the AAT Act is also relevant. It provides:

(1)    In a proceeding before the Tribunal:

…

(b)    the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit…

77    Section 33(2) of the AAT Act provides that the Tribunal may give directions as to the procedure to be followed for the purposes of ensuring that the proceeding is conducted in accordance with s 33(1). Some of the types of directions that the Tribunal may give are set out in s 33(2A) of the AAT Act. It could not be doubted that the Tribunal has the power to direct an applicant who has or wishes to give evidence in support of the review application to answer questions put by the respondent or the Tribunal: to “get in the witness box”, as it were.

78    The discretionary power in s 42A(5)(b) of the AAT Act is only in enlivened if the applicant fails “within a reasonable time” to comply with the direction. Thus, before the Tribunal exercises the discretion, it must consider and determine not only whether there has been a failure to comply with the direction; it must also consider and determine whether a reasonable time has elapsed since the relevant failure. An omission to do so would constitute a misapplication of s 42A(5).

79    The discretion must only be exercised sparingly and as a matter of “last resort”: Guse v Comcare (1997) 49 ALD 288 at 291. That is because it involves denying an applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).

80    In exercising the discretion, the Tribunal must also afford the applicant procedural fairness: Guse v Comcare at 291. Procedural fairness would ordinarily require the Tribunal to give the applicant the opportunity to make submissions as to why the discretion should not be exercised. That would include giving the applicant an opportunity to put forward submissions concerning whether there had been a failure to comply with a direction and, if so, whether a reasonable time had elapsed since that failure. It would also ordinarily extend to giving the applicant an opportunity to explain or justify any failure, or to advance any reasons why, despite the failure, the application should not be dismissed. Depending on the particular circumstances, it might also extend to giving the applicant a further opportunity to comply or to remedy the default.

81    There may be some circumstances where this is difficult. For example, an applicant who simply absents himself or herself from the hearing room with no indication that he or she intends to return may, depending on the circumstances, be taken to have forfeited any right to make any submissions as to why his or her application should not be dismissed: cf. Andelman v Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2011] FCA 299. There may be no denial of procedural fairness in those circumstances. The particular facts and circumstances of each case must be separately considered to determine what procedural fairness required in the circumstances.

82    If the applicant does provide an explanation for why a direction has not been complied with, or an argument as to why the discretion to dismiss the application should not be exercised, those explanations or arguments are mandatory relevant considerations: LVR (WA) Pty Ltd v Administrative Appeals Tribunal and Another (2012) 203 FCR 166 at 195[122]. Failure to take any such explanations or arguments into account would constitute an error of law in the exercise of the power: LVR at 198[143]. And, in order to take an explanation into account, the Tribunal must “engage in an active intellectual process, in which each relevant matter receive[s] [its] genuine consideration”: LVR at 198[145] citing Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99 at [44]-[45]; Tickner v Chapman (1995) 57 FCR 451 at 462; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 540[105].

83    When regard is had to the principles concerning the proper construction and application of s 42A(5) of the AAT Act, it is clear that, in dismissing Mr Charara’s application in the circumstances, the Tribunal misconstrued and misapplied s 42A(5). That is so for a number of reasons.

84    First, the Tribunal member did not turn his mind to whether a “reasonable time” had elapsed since Mr Charara’s failure to comply with the direction to return to the witness box. The member did not refer to this requirement in his reasons for dismissal. He appears to have proceeded on the basis that it was sufficient that Mr Charara had failed to comply with the relevant directions.

85    It should be noted, in this context, that there was no suggestion that the ten minute adjournment taken after Mr Charara’s initial refusal to return to the witness box was a “reasonable time”. Nor could there be. The Tribunal member proceeded with the hearing after that adjournment. The member declined to dismiss the proceedings at that stage. Nor was it suggested that the luncheon adjournment was a “reasonable time”. Up to the time the proceedings were adjourned for lunch, the hearing was proceeding on the basis that there would be no dismissal under s 42A(5). There was no further direction for Mr Charara to return to the witness box either immediately before or immediately after lunch when the member changed his mind and decided to dismiss the application.

86    Second, the Tribunal did not approach the exercise of the discretion on the basis that it should only be exercised sparingly and as a last resort. It did not turn its mind to whether there were other alternatives available. One alternative was to adjourn the matter, even if only for a short period of time. That no doubt would have been difficult for the Tribunal, given that the Tribunal had just refused Mr Charara’s adjournment application. That said, the refusal of the adjournment application occurred before Mr Charara was treated by paramedics and taken to hospital. The circumstances that led to Mr Charara leaving the hearing room and being taken to hospital undoubtedly put the Tribunal in a difficult and challenging position. Nonetheless, an adjournment would have at least given the Tribunal the opportunity to explore whether Mr Charara was, in fact, suffering from some sort of medical or psychological episode.

87    There may also have been other options available to the Tribunal, including the option initially adopted by the Tribunal, namely proceeding with the hearing in Mr Charara’s absence. That may also have been problematic, though in the circumstances it may have been a preferable course. The Tribunal did not, however, turn its mind to whether there were any alternatives. It did not approach dismissal with caution or on the basis that it was a remedy of last resort that should only be utilised sparingly.

88    Third, and perhaps most significantly, the Tribunal denied Mr Charara procedural fairness in dismissing his application in the circumstances. Critically, the Tribunal initially told Mr Charara that it would not dismiss his application pursuant to s 42A(5) as a result of his failure to re-enter the witness box. It told him it would proceed with the hearing. The Tribunal then changed its mind. It did so in the absence of Mr Charara. Mr Charara was in hospital at the time.

89    The Tribunal did not give Mr Charara any, or any appropriate, opportunity to respond to or make submissions about the findings that underpinned its decision to dismiss the application. Nor was Mr Charara given any opportunity to advance arguments or submissions in support of the proposition that he did not fail to comply with any direction, or that a reasonable time had not elapsed since any such failure. Nor was Mr Charara afforded the opportunity to fully explain or justify his failure, or advance any reasons for why his application should not be dismissed despite the failure.

90    The Tribunal also appears to have taken a number of other considerations into account in deciding to dismiss Mr Charara’s claim. In particular, it took into account its “profound scepticism” about the merits of Mr Charara’s application. It also took into account a view or finding that Mr Charara was not motivated to cooperate in the proceedings, or that he did not have the ability to, or had not endeavoured to, genuinely demonstrate that the Commissioner’s assessments were excessive. For the reasons given later, it is at least questionable whether those were relevant considerations in the exercise of the s 42A discretion. But if they were, the Tribunal gave Mr Charara no opportunity to respond to any of those matters.

91    Fourth, the Tribunal did not consider those explanation or justifications that Mr Charara had, or had attempted to, put forward in support of his position. Prior to being taken to hospital, Mr Charara had claimed that he was suffering from, or labouring under, some form of medical or psychological condition or episode. He claimed that he was incapacitated and unable to return to the witness box. Whilst one can perhaps understand why the Tribunal may have initially been sceptical about Mr Charara’s claims in that regard, the Tribunal was nonetheless required to give those claims genuine consideration.

92    It is difficult to avoid the conclusion that the Tribunal did not give the issue concerning Mr Charara’s mental condition any genuine consideration. It appears to have simply assumed that Mr Charara’s claimed condition was a ruse or contrivance. The fact that Mr Charara had been treated by paramedics and taken to hospital should have caused the Tribunal to revisit and perhaps revaluate that initial assumption. Given that development, the Tribunal should have at least considered adjourning the matter so that inquiries could be made, or evidence led, about Mr Charara’s condition.

93    The explanations that Mr Charara had advanced based on his mental condition were mandatory considerations. The Tribunal did not genuinely have regard to them, at least from that point in time when Mr Charara was taken to hospital.

94    It should also be noted in this context that at the hearing of Mr Charara’s appeal, the Commissioner submitted that the episode that resulted in Mr Charara being treated in hospital was in fact a contrivance or ruse. That submission is rejected. No such proposition or allegation was put to Mr Charara in cross examination. The Commissioner made no real attempt to test or question Mr Charara’s evidence concerning the circumstances that led to him being treated in hospital. The Commissioner did not query or question the Emergency Department report.

95    Fifth, the Tribunal had regard to a number of apparently irrelevant considerations in exercising its discretion. In particular, it had regard to its own “profound scepticism” concerning the merits of Mr Charara’s application. It is difficult to see why the Tribunal’s scepticism about the merits of Mr Charara’s application was a relevant consideration having regard to the subject matter scope and purpose of s 42A(5) of the AAT Act. The discretionary power to dismiss an application under s 42(5) is not concerned with the merits of the application. It is concerned with dismissal for reasons other than the merits of the decision: specifically, for failing to comply with a procedural direction within a reasonable time.

96    The fact that Mr Charara, an unrepresented applicant, had apparently failed to meet the Tribunal’s somewhat onerous and perhaps even unrealistic expectations relating to the preparation of electronic spreadsheets appears to have been equally irrelevant. The Tribunal did not purport to dismiss the proceedings on the basis of any failure by Mr Charara to comply with its directions relating to the spreadsheets. The Tribunal’s scepticism about Mr Charara’s efforts and genuineness in preparing the spreadsheets and cooperating in the proceedings was, in all the circumstances, an irrelevant consideration.

97    Finally, having regard to each of the matters just referred to, and the circumstances generally, it is difficult to avoid the conclusion that the Tribunal’s decision to dismiss the proceedings was legally unreasonable having regard to the principles considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28.

98    Putting aside the specific errors that have already been identified, the particular facts and circumstances of Mr Charara’s case suggest that the decision to dismiss his application for failure to comply with the direction was outside the range of possible lawful outcomes of the exercise of the power under s 42A(5) of the AAT Act. The decision to summarily dismiss Mr Charara’s application under s 42A(5) was, in all the circumstances, unreasonable and plainly unjust. No Tribunal, acting reasonably, should have exercised the dismissal discretion in the circumstances.

99    The considerations that support a conclusion of legal unreasonableness have already been referred to at length. In short, the Tribunal initially told Mr Charara that it would not dismiss the application under s 42A(5). It then changed its mind. It did so at a time when Mr Charara was being treated in hospital and therefore did not know, and could not have known, about the Tribunal’s change of mind, let alone sought to persuade the Tribunal that the circumstances did not justify or warrant the exercise of the power. The Tribunal gave no attention to whether the dismissal under s 42A(5) was a proportionate response in the circumstances, given it was a power to be exercised sparingly and as a last resort. No consideration was given to the availability of any alternative course of action. In particular, no consideration was given to whether the matter should have been adjourned, at least for a short period of time, so that enquiries could have been made concerning Mr Charara’s circumstances.

100    The test for legal unreasonableness is unquestionably stringent. An administrative decision is not legally unreasonable simply because the supervising court would have exercised the power differently, or because the court has a different view of what would have been a reasonable or proportionate response in the circumstance. The decision has to be outside the range of possible acceptable outcomes given the facts and the subject matter scope and purpose of the power in question. Cases involving such decisions are rare.

101    Given the findings that have already been made, it is unnecessary to reach a final conclusion concerning legal unreasonableness. It would also perhaps be undesirable to reach a concluded view about this matter given that Mr Charara did not directly argue that the decision was legally unreasonable. The Commissioner accordingly did not advance any submissions on that issue.

102    Two further points should be addressed.

103    First, the Commissioner submitted that this case was similar to Andelman. In that case, Jagot J dismissed an appeal from a dismissal under s 42A(5). Her Honour found, having regard to the particular facts and circumstances of the case, that the dismissal was not beyond power and did not involve any contravention of the rules of natural justice. The facts in that case were distinguishable from the facts of this case. Mr Andelman’s review application was listed for a one day hearing in the Tribunal. At the very beginning of the hearing, Mr Andelman claimed that the Tribunal member was biased. He threatened to withdraw from the proceedings. The member attempted to advise Mr Andelman about what might happen if he did that. Mr Andelman did not listen and told the member that he did not care if the Tribunal made a decision without him and did not care what decision the Tribunal made. He absented himself from the hearing. Jagot J found that it was open to the Tribunal member to infer that Mr Andelman had no intention of returning.

104    Here, the hearing had been going for three days. Another hearing day was allocated. The Tribunal member initially told Mr Charara that he would not dismiss his application on the basis of him failing to comply with a direction. Mr Charara did not simply absent himself from the hearing. He was taken away in an ambulance and treated at hospital. It cannot be concluded on the evidence that Mr Charara’s condition was feigned or that the calling of an ambulance was an elaborate contrivance or ruse. It cannot be inferred that Mr Charara had no intention of returning to the hearing.

105    Second, the Tribunal was, to an extent, encouraged to dismiss the application by the Commissioner. It was the Commissioner who first applied for the application to be dismissed. The Commissioner did not counsel or caution the Tribunal member against dismissal when the Tribunal member changed his mind over lunch. That was despite the fact that the Commissioner was apparently aware, through his lawyers, that Mr Charara had been treated by paramedics. While Mr Charara was a difficult opponent, and the Commissioner’s counsel can perhaps be forgiving for thinking that dismissal was an easy option, Mr Charara was self-represented. Caution and restraint was clearly warranted. It was not excused. It is difficult to avoid the conclusion that the Commissioner did not discharge his obligations as a model litigant in the particular circumstances of this matter.

Did the Tribunal member err in law in refusing to recuse himself?

106    It is strictly unnecessary to consider this question given the findings and conclusions that have been reached concerning the decision to dismiss the application under s 42A(5) of the AAT Act. Nevertheless, given the possibility of an appeal, the question concerning apprehended bias should be addressed, difficult as it is.

107    The basis upon which it was contended that the Tribunal member should have recused himself was apprehended bias. The relevant test and applicable principles relating to apprehended bias are well settled. They are not, however, always easy to apply. There is often no bright dividing line.

108    There is no dispute that the Tribunal must afford procedural fairness to the parties in review proceedings. Apprehended bias is an incident of procedural fairness. If there was an apprehension of bias on the part of a Tribunal member, a hearing conducted by that member would be unfair.

109    Apprehended bias is established if a fair-minded lay observer might reasonably apprehend that the decision-maker (here the Tribunal member) might not bring an impartial mind to the resolution of the question that the decision-maker has to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344[6]. Application of the apprehension of bias principle requires two steps: it requires identification of what is said might lead the decision-maker to decide a case other than on its legal and factual merits; second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on the merits: Ebner at 345[8].

110    The test is objective. It also involves possibilities (real and not remote) not probabilities. The question is not whether the decision-maker would not actually bring an impartial mind to the matter. The question is whether the hypothetical lay observer might reasonably apprehend that to be the case.

111    Mr Charara identified predisposition as being the basis of his contention of apprehended bias. He contended, in effect, that the Tribunal member had, during the course of the hearing, revealed himself as being predisposed towards the Commissioner and against Mr Charara. He was not open to persuasion. Mr Charara relied primarily on comments made by the Tribunal about his evidence (“I don’t believe you” and “just nonsense”) and excessive questioning by the Tribunal, including questioning about issues that had not been identified or explored in cross-examination by the Commissioner. Mr Charara contended that the Tribunal member’s predisposition meant that he was unlikely to decide his case on the basis of its legal and factual merits. He argued in effect that the member was not open to persuasion by Mr Charara.

112    Whilst Mr Charara’s contentions were couched in terms of actualities, the question is whether a fair minded lay-observer might infer from the Tribunal member’s conduct of the hearing that the Tribunal member might be predisposed against Mr Charara and not open to persuasion: that there was nothing Mr Charara could say or do to change the Tribunal member’s preconceived views: Re Refugee Review Tribunal; Ex parte H and Another [2001] HCA 28; (2001) 179 ALR 425 at 435[29]-435[31]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531[71]; NADH of 2001 v Minister for Immigration and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 265 at 268[16]-269[19] (Allsop J, Moore and Tamberlin JJ agreeing); SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.

113    Such an apprehension must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546. Allegations of apprehended bias must be “distinctly and clearly proved”: Jia Legeng at 531[69]; and should not be too readily acceded to lest parties are encouraged to have their applications heard and resolved by someone thought to be more likely to decide the case in their favour: JRL at 352.

114    The hypothetical reasonable lay-observer is integral to the objective test. The observer should not to be taken to be someone who is wholly uninformed and uninstructed about the matter to be decided: rather, they should be taken to be someone who had an understanding of the circumstances and nature of the proceeding: Johnson v Johnson (2000) 201 CLR 488 at [53] (Kirby J). They would be someone who was neither complacent, nor unduly sensitive or suspicious: British American Tobacco Services v Laurie (2011) 242 CLR 283 at 306[47] (French CJ); Johnson v Johnson at [53] (Kirby J).

115    In considering whether apprehended bias based on the conduct of a decision-maker in the course of a hearing has been made out, each case must be considered having regard to its own particular facts and circumstances. Observations and findings made in previous cases may be of some assistance. Care must be taken, however, not to transpose general statements or findings made in other cases to what may be quite different facts or circumstances in the matter under consideration.

116    In the context of hearings in the (former) Refugee Review Tribunal, it has been held that robust and forthright testing of the visa applicant’s claims by the Tribunal does not necessarily sustain a finding of apprehended bias: SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17]; NAOX v Minister for Immigration and Citizenship (2009) 112 ALD 54 at 61[41]-61[43]; SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125 at [47]; SZOEV v Minister for Immigration and Citizenship (2010) 117 ALD 324 at 527[18]. Hearings in the then Refugee Review Tribunal, which are now conducted in the Migration and Refugee Division of the Tribunal, are, however, different in important respects to other proceedings in the Tribunal. They are more fundamentally inquisitorial. The Minister for Immigration is not represented and the Tribunal member conducts all the questioning.

117    In the judicial context, it has been said that judges are no longer expected to sit mute “as inscrutable as the Sphinx” while evidence is advanced and arguments are presented: Johnson v Johnson at 493[13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). It is expected that judges can and perhaps should, in some circumstances, express tentative views: Antoun v R [2006] HCA 2; (2006) 224 ALR 51 at 60[32]. Statements that amount to provisional views put forward to test the evidence and invite further persuasion do not suggest a closed mind.

118    Where a complaint is made of excessive questioning or inappropriate comment, the central question is whether “the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and ‘into the perils of self-persuasion’”: Galea v Galea (1990) 19 NSWLR 263 at 281C (Kirby ACJ). That question must be answered having regard to the context of the whole trial and the number, length, terms and circumstances of the interventions. Questioning designed to clear-up evidence that may have been overlooked, or left in an uncertain or equivocal state, is unlikely to be problematic: R v Esposito (1998) 45 NSWLR 442 at 472C (Wood CJ at CL). Questioning that amounts to cross-examination designed to discredit or undermine a witness is in a different category.

119    Momentary or occasional outbursts or displays of impatience, irritation or ill-temper will not alone give rise to an apprehension of bias: Galea at 279F-280A (Kirby ACJ), 283C (Priestly JA): R v Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230[20]; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [81]. Nor will strong language or harsh tones alone be sufficient: Penhall-Jones v State of NSW [2007] FCA 925 at [92] – [97]; SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [31]. Those sorts of matters all have to be considered in the context of the entire hearing. Apprehended bias will not be established by cherry-picking statements made during a hearing and considering them in isolation: Dye v Commonwealth Securities Ltd (No 4) [2010] FCA 910 at [94].

120    The Court had before it the trial transcript of the three day hearing that took place in early April 2015. The hearing tapes were tendered by the Commissioner, but only as evidence that the Tribunal member could not be heard on the tapes to have said “I don’t believe you” at any time during the hearing. Neither Mr Charara nor the Commissioner invited the Court to listen to the hearing tapes for the purposes of considering the tone of the questioning by the Tribunal.

121    When the transcript is considered in its entirety, can it be concluded that a fair minded bystander, who was present throughout the hearing, and who had some understanding of the issues, might reasonably apprehend that the Tribunal member might not bring an impartial mind to the merits of Mr Charara’s application? Can it be concluded that a reasonable by-stander might reasonably infer from the Tribunal member’s conduct during the hearing that the Tribunal member might have had a predisposition towards the Commissioner, and was not open to persuasion?

122    The answers to those questions are not easy. The case is borderline.

123    There could be no real doubt that some aspects of the Tribunal member’s conduct of the hearing were less than ideal. That is particularly the case given that Mr Charara was self-represented. The “just nonsense” comments clearly fall into that category. Those statements were, however, isolated and related to only one aspect of Mr Charara’s evidence. One can perhaps understand how and why the Tribunal member may have been sceptical, if not incredulous, about that piece of evidence. It was perhaps unfortunate, however, that the member expressed his scepticism in such emphatic and categorical terms.

124    It is more difficult to assess the statement or statements apparently made by the Tribunal member to the effect that he did not believe Mr Charara. Those statements do not appear in the transcript and cannot be heard on the hearing tapes. It is therefore difficult to place them in context. It is reasonable to infer, however, that like the “just nonsense” comments, they were isolated and related to only one aspect of Mr Charara’s evidence. Indeed, they were most likely made about the same evidence.

125    Whilst those comments were perhaps unfortunate, they do not alone establish apprehended bias on the part of the Tribunal member. There is no principle that a judge must never express his or her scepticism about the evidence given by a witness. In Galea, Meagher JA said (at 283E-283G):

Where, as in the present case, a judge is confronted by a witness who is both deceitful and evasive, there is no principle that he is not at liberty to express his measured displeasure at being trifled with. There is no principle that he must endure the ordeal with ladylike serenity… a timely intervention serves the interest of the party leading such evidence, as it provides him with a chance to mend the damage already inflicted.

126    The tone and content of some of the Tribunal member’s other interjections, rulings or directions was also somewhat unfortunate and at times unhelpful, particularly since Mr Charara was representing himself. The direction given to Mr Charara, early in the cross-examination, that he answer a question, together with the implicit threat that his application might be dismissed if he refused to comply, perhaps falls into that category. The Tribunal member’s repeated and somewhat bombastic statements about him being in control at the proceedings are perhaps another example.

127    Mr Charara was, however, at least at times, a difficult and unsatisfactory witness. Many of his answers to questions were unresponsive and argumentative. The situation was complicated by the fact that Mr Charara represented himself. Some of his responses were, as a result, part objection, part submission and part answer to the question. There is no doubt that this caused some frustration on the part of the Tribunal member.

128    In all the circumstances, most of the interjections and directions given by the Tribunal member to Mr Charara were justified, even if the language and tone was not always entirely appropriate. They do not demonstrate apprehended bias.

129    Of more concern is the manner and extent of the Tribunal member’s questioning of Mr Charara. The Tribunal member was perfectly entitled to ask questions for the purpose of clarifying answers and aspects of Mr Charara’s evidence. To some extent the Tribunal was also entitled to ask questions about areas of the evidence that might have been overlooked or which were causing him concerns. It is reasonable to conclude that much of the Tribunal member’s questioning fell into one or other of those categories.

130    Some of the Tribunal’s questioning, however, appeared to cross the line into the area of cross-examination that was designed to, or at least had the effect of, undermining aspects of Mr Charara’s evidence.

131    The questioning of Mr Charara concerning the claimed correlation between the cash sales invoices and the Quick Charge invoices perhaps falls into that category of questioning. Counsel for the Commissioner began to cross-examine Mr Charara on that topic. The Tribunal member effectively took that questioning over. The questioning picked up on points or issues that had not previously been directly addressed in counsel’s cross-examination. The questions put by the Tribunal were not in open terms. They had the form, appearance and flavour of cross-examination designed to discredit or undermine Mr Charara’s evidence on this topic. The Tribunal member effectively “moved into counsel’s shoes”. This was particularly problematic in circumstances where Mr Charara was self-represented. Contrary to what the Tribunal member apparently thought, the broad objective in s 2A of the AAT Act did not justify this type of questioning.

132    This questioning by the Tribunal member, to the extent that it crossed into the territory of cross-examination, must again, however, be considered in the context of the hearing as a whole. It must also be considered in the context of the issues and challenges that the Tribunal member faced in comprehending Mr Charara’s evidence and contentions. In the scheme of things, the extent to which the Tribunal member’s questioning crossed the line was not significant. It concerned some only of Mr Charara’s evidence. The evidence that the questioning related to was evidence that naturally invited some scepticism or suspicion. Overall it does not reasonably suggest that the Tribunal member had reached a concluded view, or was not open to persuasion, or might decide Mr Charara’s application other than on merit.

133    Whilst the matter is, as has been said, somewhat borderline, when the hearing is considered as a whole, it cannot be concluded that a fair minded by-stander might reasonably apprehend that the Tribunal member might not bring an impartial mind to the matter. A fair minded by-stander would be unlikely to infer from the conduct of the hearing that the Tribunal member had effectively made up his mind and was not open to persuasion, or was otherwise predisposed against Mr Charara. Whilst the various deficiencies or unsatisfactory aspects of the Tribunal member’s conduct of the proceedings, considered alone or altogether, might have led the bystander to feel a vague sense of unease or disquiet, that is not enough to establish apprehended bias: cf. Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 at 441[100].

134    As already indicated, apprehended bias must be firmly established and clearly proved. That is particularly so in cases involving an alleged predisposition of the decision-maker based on the conduct of the trial. Were it otherwise, parties who sensed that they were not faring well in the proceedings would be encouraged to attempt to have their case decided by someone else.

135    In all the circumstances, apprehended bias on the part of the Tribunal member has not been made out. It follows that the Tribunal member did not err in law in refusing to recuse himself on Mr Charara’s application.

136    Finally, some reference should be made in this context to some of the statements made in the Tribunal member’s reasons for dismissing Mr Charara’s application pursuant to s 42A(5) of the AAT Act. As indicated earlier, in those reasons the member stated that he was “profoundly sceptical that there [was] any substance in the merits of Mr Charara’s review application”. He also stated that he was “equally sceptical that [Mr Charara was] motivated to cooperate and participate in the proceedings in any really effective way”.

137    What, if any, use can be made of those statements in determining whether the Tribunal member erred in refusing to recuse himself? Do they suggest predisposition or prejudgment?

138    Whilst expressed in strong and emphatic terms, those statements do not suggest that the member had a concluded view about the merits of Mr Charara’s review application. Whilst unequivocal, the views expressed were nonetheless provisional in terms. The member said that he was sceptical about the merits of Mr Charara’s case. He did not say that he had concluded that it had no merit.

139    Perhaps more significantly, at the time of Mr Charara’s recusal application, the Tribunal member’s profound scepticism was unexpressed. The fair minded observer of the proceedings up to the point of the recusal application would not have heard the words “profoundly sceptical” being uttered by the member in any context. It is difficult to see how, in those circumstances, the subsequent statements made by the Tribunal in his reasons for dismissing the application could inform whether, at the time of the recusal application, the hypothetical fair-minded observer might reasonably apprehend that the Tribunal member might not bring an impartial mind to the resolution of the proceedings. The fact that the Tribunal member may have held those views concerning the merits of Mr Charara’s case would not have been known to the observer.

Conclusion and disposition

140    The tribunal erred in law in dismissing Mr Charara’s application pursuant to s 42A(5) of the AAT Act. The Tribunal misconstrued and misapplied s 42A(5) and denied Mr Charara procedural fairness by denying him the opportunity to make submissions as to why the application could or should not have been dismissed. Mr Charara has not, however, demonstrated that the Tribunal member erred in refusing to recuse himself. Apprehended bias on the basis of predisposition or prejudgment has not been made out.

141    The decision to dismiss Mr Charara’s application should be set aside. Mr Charara’s review application should be remitted to be heard and decided again by the Tribunal. Given the views expressed by the Tribunal member in his reasons for dismissing the application, the Tribunal should be constituted by a different member.

142    Given that Mr Charara was self-represented, both before the Tribunal and on appeal, there should be no order as to costs.

Associate:

Dated:    29 April 2016