Buchanan v Administrative Appeals Tribunal

Events in Court yesterday morning 6 I understand that Mr Buchanan lives outside Cairns in north Queensland. In previous directions hearings in this matter Mr Buchanan has appeared by telephone, although I understand that he does not have a telephone or a mobile phone himself. 7 At the directions hearings on 1 July 2013 and 18 July 2013 however I made it very clear that yesterday's hearing was to be in Brisbane, and that Mr Buchanan was required to appear in person. 8 At the directions hearing on 1 July 2013 I note the following exchange between the Bench and Mr Buchanan: HER HONOUR -- The second qualification I want to make is this: if you are seeking an adjournment to have the matter heard in Brisbane where pro bono appears available we are not ping pong balls in this court, Mr Buchanan. We are not having the matter heard in Cairns, back to Brisbane, then back to Cairns because it suits you. If you want this matter, hearing on 18 July vacated and brought back to Brisbane then I will ask Ms Auld to speak. It may very well [be] that AGS has no objections at the end of the day. Indeed, frankly it would suit me much better to have the matter heard in Brisbane but we are then not going to have the matter relisted in Cairns after the trouble the court has been to because you can't get pro bono counsel or it suits you to have the matter returned to Cairns. Is that clear? MR BUCHANAN: Well that's exactly the point, your Honour. There isn't any in Cairns and I've been ..... in Cairns via Brisbane again. (transcript 1 July 2013 p 7 ll 37-46, p 8 ll 1-2) 9 Further, at the directions hearing on 18 July 2013 the transcript records the following exchange: HER HONOUR: - - - you know, overload themselves if I can't hear this matter for some time. So, Mr Buchanan, you've heard what I've said. This matter will now be listed for Brisbane, I hasten to add. MR BUCHANAN: Yes, your Honour. I will have to speak to the Bar Association and see if they can help me. HER HONOUR: All right. That's up to you, Mr Buchanan. We've done what we can. (transcript 18 July 2013 p 21 ll 25-33) 10 I note that Order 3 made in this proceeding on 18 July 2013 was that: The application for extension of time to appeal, the notice of appeal from the decision of the Administrative Appeals Tribunal dated 12 December 2012, and the notice of objection to competency filed by the second respondent on 3 May 2013, be listed for hearing together for half a day on 23 October 2013 in Brisbane. 11 I also note the Notice of Listing in this matter dated 19 July 2013 addressed to Mr Buchanan, a copy of which is on the Court file, which clearly stated that the place of the hearing was the Commonwealth Law Courts in Brisbane. 12 There is no reason for Mr Buchanan to have misunderstood that the matter was listed in Brisbane on 23 October 2013, or that he was required to attend the hearing. Indeed, Mr Buchanan's submissions filed on 20 September 2013 refer to "Federal Court Hearing (Brisbane)". 13 I note that Mr Buchanan made no application for leave to appear yesterday by telephone. Certainly in relation to this hearing, unlike for previous directions hearings where the Court had corresponded with Mr Buchanan to arrange a telephone link for him through the Family Law Court registry in Cairns, no such arrangements had been made. 14 When Mr Buchanan did not appear yesterday morning I asked the Court Officer to call the matter outside the Court. There was no response by Mr Buchanan. As it appears that Mr Buchanan does not have a telephone, a mobile telephone, an email address or a fax number, it was not possible for the Court to communicate with him to ascertain why he had not appeared.

Request for adjournment 15 In submissions filed by Mr Buchanan on 18 October 2013 Mr Buchanan sought an adjournment of the hearing on (in summary) the following grounds: Mr Buchanan is unable to afford legal assistance, but has obtained the pro bono assistance of a third party, Ms Serene Teffaha. In a copy of a letter which appears to be from Ms Teffaha dated 15 October 2013 and addressed to the solicitors for the Commissioner, Ms Teffaha describes herself as a "Human Rights Advocate". I understand that Ms Teffaha is not a legal practitioner, as she describes herself in the letter as "an admitted solicitor who is in the process of acquiring a practising certificate". I understand further that Ms Teffaha resides in Melbourne, but that she was unavailable for the hearing yesterday because: I have a Court matter in Sydney that I am attending to and it is scheduled for Directions Hearings on 23 October 2013 and 25 October 2013. In her letter, Ms Teffaha also stated that Mr Buchanan had "only recently apprised her of his circumstances" and she "requires further time to prepare". 16 Further, attached to Mr Buchanan's List of Authorities and Legislation filed 18 October 2013, Mr Buchanan included what appears to be a letter from consultant psychiatrist Dr Paul Trott dated 16 October 2013. In that letter, Dr Trott stated that Mr Buchanan suffers from a chronic moderate Post Traumatic Stress Disorder which has evolved into that of chronic moderate to severe Anxiety Disorder Not Otherwise Specified, as defined in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSMIV). In particular, Dr Trott states that Mr Buchanan is unable to prosecute his applications effectively as a litigant in person. In particular, I note Dr Trott's statement that: It is noted that Mr Buchanan presently faces complex legal difficulties and lacks the means for legal representation due to his limited finances. Mr Buchanan further is unable to self represent due to his unfortunate illnesses, which appear to be a combination of untreated Anxiety Disorder Not Otherwise Specified, as well as his personality style, including the anxious worrying mixed obsessional avoidant traits. It is my clinical opinion that Mr Buchanan would find the demands of the court proceedings to be beyond his capacity, especially if placed in a self representation role, or if he were to be cross examined due to his level of disability from the above discussed conditions. It would seem best and appropriate that Mr Buchanan be allocated legal representation so that he can negotiate the present legal issues. 17 At the hearing yesterday I refused to adjourn the hearing. I did so, taking into consideration principles relevant to determining an application for adjournment of a hearing, including that: such a decision requires the exercise of the discretion of the Court: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; the discretion in respect of ordering or refusing an adjournment miscarries where the refusal of an adjournment results in one of the parties being unable adequately to present his case: Thornberry v R (1995) 69 ALJR 777; an adjournment should ordinarily be granted where there is a proper basis for an application for an adjournment, and refusal would seriously prejudice the party seeking the adjournment and not prejudice the other party: Jordan v Smart [1961] NSWR 735. 18 In applying these principles, I formed the view that it was proper to refuse the application for adjournment of the hearing for the following reasons. 19 First, this matter has been before the Court since 7 May 2013 when the first directions hearing was held. This is the second time Mr Buchanan has sought an adjournment of the hearing. The matter was listed for hearing on 18 July 2013 in Cairns, however Mr Buchanan sought an adjournment to attempt to procure pro bono legal assistance. I was prepared to accede to Mr Buchanan's application and vacate the hearing, and indeed the Court requested pro bono legal assistance for Mr Buchanan but to no avail. I have no details as to Ms Teffaha's status other than an unsworn letter annexed to submissions of Mr Buchanan. In my view it is not appropriate to again adjourn the hearing to an unspecified date, because a week before the hearing Mr Buchanan informs the Court that his "adviser" is not available when the date of the hearing has been known for some time. I consider that this uncertainty is unfairly prejudicial to the Commissioner, who is entitled to meet the case brought against him by Mr Buchanan. In my view, as a matter of effective case management, it is proper that the hearing proceed. 20 Second, while there is some unsworn evidence before the Court as to Mr Buchanan's mental state, I note that Mr Buchanan has conducted himself competently in Court on at least three occasions in this proceeding (7 May 2013, 1 July 2013 and 18 July 2013). 21 Third, in his appeal before this Court Mr Buchanan is entitled to raise only questions of law: s 44(1) AAT Act. No additional evidence is required - or, indeed, permitted - and accordingly there will be no cross-examination of witnesses (including Mr Buchanan) as anticipated by Dr Trott. 22 Fourth, this matter was relocated from Cairns to Brisbane in light of Mr Buchanan's requests for adjournment. At the last directions hearing I informed Mr Buchanan that I would not be minded to adjourn the hearing again if he was unable to obtain legal assistance, or merely because an adjournment suited him (transcript 1 July 2013 p 8 ll 29-46, p 12 ll 1-5). No compelling reason has been advanced to cause me to alter this view. 23 Finally, and for reasons to which I will shortly turn, I consider that Mr Buchanan's substantive appeal has no prospects of success. To continue to delay the hearing of this proceeding, and in particular the Commissioner's notice of objection to competency, is potentially a waste of time and resources of both the Court and the parties.

Remaining applications 24 I now turn to the remaining applications, namely: the Commissioner's notice of objection to competency; Mr Buchanan's application for extension of time; and Mr Buchanan's notice of appeal.

Relevant decision of the Tribunal 25 The decision against which Mr Buchanan appeals is that of Senior Member McCabe in The Taxpayer v Commissioner of Taxation [2012] AATA 919. The decision is relatively short, and it is useful to set it out in full because it explains the background to the current proceeding in this Court: 1. This application for reinstatement was declined for reasons given orally at the hearing on 12 December 2012. The applicant subsequently requested written reasons for that decision. The following reasons are based on the notes taken by my associate at the hearing. 2. The applicant wants to be released from his liability to pay tax in the amount of $119,748.05. He owns assets but has not worked for many years and claims he is experiencing financial hardship. The Commissioner was not satisfied and declined to release the taxpayer from the obligation to pay tax. 3. The matter came on for a hearing before Deputy President Hack in Cairns on 5 November 2012. A few days before, the applicant had asked to attend the hearing by telephone, but the request was declined. That is not surprising: the applicant's evidence was likely to be crucial, and it would be harder to make an assessment of credit if the Tribunal did not have the opportunity to observe the applicant in person. The hearing would also be more difficult to manage because the applicant could not be shown documents. In any event, the applicant was required to attend. He said he could not because he suffered from post traumatic stress disorder (PTSD). He was asked to provide medical evidence but appropriate evidence was not forthcoming. The matter was dismissed under s 42A(2) of the Administrative Appeals Tribunal Act 1975. 4. The applicant subsequently applied for reinstatement. He appeared by phone at the hearing for reinstatement on 27 November 2012. He repeated his claims about PTSD. He did not have any additional evidence but said he had an appointment to see a psychiatrist within a week or so. I decided to adjourn the application for reinstatement so I could have that evidence to hand before making a decision. 5. A report from Dr Trott dated 10 December 2012 was duly filed. Dr Trott confirmed the applicant suffered from a chronic moderate untreated PTSD which has morphed into a chronic moderate anxiety disorder not otherwise specified. Dr Trott confirmed the applicant "would find the court attendance difficult" and suggested evidence could be given by a less confronting method, such as telephone or video evidence, or he could have the assistance of a support person if he were to appear in court. 6. I do not think the evidence of Dr Trott established it would be unfair or inappropriate to require the applicant to attend, albeit that provision could be made for him to have the assistance of a support person. 7. The matter came back on for hearing on 12 December. The Commissioner continued to oppose reinstatement. 8. Section 42A(9) says the Tribunal may reinstate the application if it is satisfied it is appropriate to do so. When considering a request for reinstatement, the Tribunal will usually have regard to a number of factors albeit that it is required to reach a view that it is appropriate in all the circumstances to reinstate (or not) the application. 9. I am not particularly impressed by the applicant's excuse for not attending the hearing. He did not have access to a competent medical opinion at the time he decided not to attend. If he had sought appropriate assistance and treatment, he would have been able to go through with the hearing. He pointed out he had earlier been involved in proceedings involving Centrelink where he was allowed to participate by phone, but that was a different sort of matter raising different issues. He was not entitled to assume he could proceed in that way on a subsequent occasion. 10. Even so, I accept the applicant faced difficulties. What of the other matters? I must consider prejudice. The Commissioner has already thrown away substantial costs in dealing with this matter. He sent representatives to Cairns for the hearing when the applicant did not show up as required. The prejudice for the applicant is presumably greater: he will not have the opportunity to press his claim, although the Commissioner's representative, Mr Bell, suggested there was a chance the applicant could seek the indulgence of the Department of Finance and Administration. 11. There is also the question of merit: does the substantive application have sufficient merit to justify reinstatement? I am not supposed to conduct a mini-trial, and I am reluctant to deny the applicant the opportunity to represent his case if there is material suggesting there may be real issues to be decided. One must be particularly careful in the case of an unrepresented applicant who is not necessarily in a position to immediately point to the merits of his case. 12. After hearing from the parties, I decided the applicant's case is not especially meritorious. While there are disputes about valuations, the applicant does have access to assets that are capable of satisfying, or partly satisfying, his obligations. A perusal of the limited material available on the file together with the submissions of the applicant suggests he has limited prospects of success, given the requirement in s 14ZZK of the Taxation Administration Act 1953 that he establish the Commissioner's decision should be made differently. CONCLUSION 13. In all the circumstances, I am not satisfied it would be appropriate to reinstate the application.

Appeal against Tribunal decision 26 In his notice of appeal filed 1 February 2013 Mr Buchanan specified the decision from which he was appealing as a decision of the Tribunal of 12 December 2012 "pursuant to subsection 42A(4) of the AAT Act to refuse to reinstate the application for reasons given orally at hearing 5.11.2012". Mr Buchanan specified the questions of law to be raised on the appeal as: 1. Disability discrimination/denial of natural justice. 2. Procedure withheld in circumstances where it was not just. 27 Mr Buchanan sought the following orders: AAT decisions of 5 November 2012 and 12 December 2012 be set aside for further directions to be made. Remit matter to AAT for hearing. 28 The ground upon which Mr Buchanan relied was: Failing to provide applicant with fair opportunity to be heard.

Objection to competency of the appeal 29 An objection to competency of an appeal from a decision of the Tribunal may be filed in accordance with r 33.30 of the Federal Court Rules. Rule 33.30 appears in Div 33.2 of the Federal Court Rules which relates to appeals from the AAT. Rule 33.30 provides: 33.30 Notice of objection to competency of appeal (1) A respondent who objects to the competency of an appeal must, within 14 days after being served with a notice of appeal, file a notice of objection to competency: (a) in accordance with Form 68; and (b) that, briefly but specifically, states the grounds of the objection . (2) The applicant carries the burden of establishing the competency of an appeal. ... (5) If the Court decides that an appeal is not competent, the appeal is dismissed. 30 The grounds of objection to competency stated by the second respondent in the notice of objection to competency filed on 3 May 2013 are: 1. That the 2 Questions of Law (the Questions), as stated in the Notice of Appeal: 1.1. Do not properly articulate a question of law arising in the proceedings; and 1.2. Contrary to Rule 33.12(2) of the Federal Court Rules 2011, the Questions fail to state any precise question or questions of law to be raised on appeal. In the alternate: 2. Section 42A(10) of the Administrative Appeals Tribunal Act 1975 (the Act) permitted the Tribunal to reinstate [2012] AATA 919 (the proceedings) at its own discretion. 3. The Questions allege a denial of natural justice and procedural fairness which is without merit as it is clear from the face of the Tribunal's reasons for decision that the Applicant was afforded an opportunity to be heard prior to the Tribunal making its final decision.

Consideration 31 The application before Senior Member McCabe was for reinstatement of Mr Buchanan's substantive application to review the deci`sion of the Commissioner, where the Commissioner had upheld a decision to refuse Mr Buchanan a release from the payment of a taxation liability in the amount of $119,748.05 incurred between the income years ended 30 June 2001 to 2008. As is clear from the reasons for decision of Senior Member McCabe, Mr Buchanan's substantive application had been dismissed by Deputy President Hack pursuant to s 42A(2) of the AAT Act for want of appearance of Mr Buchanan. 32 An application for reinstatement of a decision of the Tribunal may be made pursuant to s 42A(9) of the AAT Act, which provides: If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances. 33 Relevantly, s 42A(8) of the AAT Act provides: If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application. (I note that there is no suggestion that the orders of the Tribunal in dismissing Mr Buchanan's substantive application on 5 November 2012 were made in error, so as to invoke s 42A(10) of the AAT Act.) 34 The power vested in the Tribunal to reinstate an application pursuant to s 42A(9) of the AAT Act is clearly a discretionary power. Factors relevant to the exercise of that discretion will vary depending on the facts of an individual case. However, relevant factors include: the conduct of the applicant for reinstatement; any prejudice (most obviously prejudice to the respondent); the merits of the substantive case; and in considering these matters, the overriding obligation to do what is fair in the circumstances. (Trustee of the Mladenis Family Trust T/A Affinity Consulting Services v Commissioner of Taxation [2006] FCA 1406 at [4].) 35 In this case Mr Buchanan's sole ground of appeal is that he has been denied the opportunity to be heard. Linked with this ground of appeal are the "questions of law" which Mr Buchanan states form the basis of his appeal, namely that he has been the subject of discrimination because of a disability, and that he has been the victim of a denial of natural justice. In this respect I note the following comments of Kenny J in Price Street Professional Centre Pty Ltd v Commissioner of Taxation (2007) 97 ALD 593; [2007] FCAFC 154: [22] The jurisdiction conferred on the Court by s 44(1) of the AAT Act is a limited one. It is to hear and determine an appeal "on a question of law" only. The findings of fact that have been made by the Tribunal are generally not amenable to challenge unless the manner of their making gives rise to a question of law: see, for example, Sharp Corporation of Australia Pty Ltd v Collector of Customs (1999) 59 FCR 6 ('Sharp') at 12 per Davies and Beazley JJ and 16 per Hill J. The distinction between a question of fact, a question of mixed fact and law, and a question of law can be difficult to discern. Notwithstanding this, the competency of an appeal under s 44(1) depends on the identification of a question, which is properly characterized as a question of law, as the subject of the appeal: see also Comcare v Etheridge (2006) 227 ALR 75 ('Comcare v Etheridge') at 80 per Branson J (with whom Spender and Nicholson JJ agreed) and the cases cited. As her Honour said: The legislature, by creating a statutory right of appeal to a party to a proceeding before the tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the court on an appeal under s 44(1) to review factual findings of the tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing. 36 Her Honour continued: [24] … To quote the Full Court in Pozzolanic at 286: The appealable error of law must arise on the facts found by the Tribunal or must vitiate the findings made or must have led the Tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law: Waterford v Commonwealth (1987) 163 CLR 54 at 77-78. Where the decision of the Tribunal involves matters of fact and degree, then provided it applies correct principles of law, no appeal will lie: Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 365. [25] Whether there is a question of law upon which an appeal can be grounded will mostly depend on the particular decision under challenge, and the issue a litigant seeks to agitate, rather than the subject matter of the decision … 37 Mr Buchanan is a litigant in person. Articulating questions of law adequate to found an appeal to this Court from a decision of the Tribunal is a difficult exercise, perhaps particularly so for a person who is self-represented. However in this case it is clear that Mr Buchanan's appeal has no merit. 38 First, Mr Buchanan has not properly articulated errors of law in the decision of the Tribunal constituted by Senior Member McCabe, such as to support an appeal to this Court pursuant to s 44 of the AAT Act. Allegedly being the subject of discrimination because he has a disability and being denied natural justice do not, without further particularisation, constitute errors of law in the decision of the Tribunal: cf Phillips v Inspector-General in Bankruptcy (2011) 121 ALD 562; [2011] FCA 612 at [61]. 39 Second, even treating such claims as errors of law for the purposes of this proceeding, the material Mr Buchanan has filed in support of his assertions is of no assistance in considering this appeal. In summary, Mr Buchanan has filed a series of submissions in which he claims that: He has been kept out of the workforce since a vicious assault in 1979, and has had problems compounded by the negligence of a hospital and wrongful dismissal by his previous employer. He has been required to treat net rental income as crimes compensation in lieu of lost wages. The Commissioner refused to negotiate on his debt during the hearing prior to the Tribunal decision. He has opinions from the Disability Discrimination Commission (Sydney) that to force him to attend in person is a breach of federal disability discrimination law. The Tribunal erred in dismissing his case despite a psychiatric report confirming his inability to attend in person. Being confronted directly by the Australian Taxation Office or its representative is traumatic, and he requires a legal adviser. Senior Member McCabe erred in referring to the "limited material available on the file" when in fact there were hundreds of pages of documents including numerous Tribunal test cases where the Tribunal found in favour of other applicants. 40 However taking into consideration these submissions it is clear that: Merely because the Tribunal did not find in Mr Buchanan's favour does not mean that it has erred in law, or indeed at all. In complaining about factual findings of the Tribunal, Mr Buchanan appears to be seeking a merits review, which is beyond the power of this Court in terms of s 44(1) of the AAT Act. Refusal by the Tribunal to reinstate Mr Buchanan's substantive application in circumstances where he failed to attend does not, as a matter of law, constitute discrimination against him, irrespective of any claimed advice Mr Buchanan states he has received from the Australian Disability Discrimination Commissioner. The conduct of the Commissioner in relation to Mr Buchanan is a factual issue, and does not on its face relate to any question of law. The reference by Senior Member McCabe to "limited material available on the file" does not, of itself, constitute an error of law or suggest that the Senior Member did not have regard to all material before him. 41 Third, in any event it is clear that, in reaching his decision, the Senior Member had regard to: psychiatric information provided by Mr Buchanan, including the extent to which it was unfair or inappropriate to require Mr Buchanan to attend a hearing (at [5] and [6]); the reasons why Deputy President Hack dismissed Mr Buchanan's substantive application (at [3]); Mr Buchanan's explanation for failing to attend the hearing before Deputy President Hack notwithstanding the direction that he do so (at [3], [5], and [9]); possible prejudice to both parties should the substantive application be reinstated or fail to be reinstated (at [10]); whether the material on file and Mr Buchanan's submissions had merit (at [11] and [12]). 42 These were clearly relevant considerations for the Senior Member in determining the application for reinstatement before him. 43 In my view, Mr Buchanan's claims that the decision of the Senior Member contained errors of law cannot be substantiated. It follows that Mr Buchanan has failed to allege an appealable error of law on the part of the Tribunal, his appeal is not competent, and the proper order is to dismiss Mr Buchanan's appeal on the merits. 44 Further because Mr Buchanan's grounds of appeal have no merit it is proper that the Court refuse his application to extend time in which to file the notice of appeal from the decision of the Tribunal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. 45 Finally, s 43 of the Federal Court of Australia Act 1976 (Cth) confers a broad discretion on the Court in respect of costs orders. The Commissioner has sought his costs in the proceedings. As a general proposition, costs follow the event and a successful party is entitled to its costs unless special circumstances justify some other order: Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748. I am satisfied that the Commissioner is entitled to his costs in the proceedings in circumstances where: he has been successful in relation to his applications before the Court; and Mr Buchanan's claims clearly lacked merit. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.