Elbayeh v Secretary, Department of Education, Employment and Workplace Relations

Federal Court of Australia|2012-08-08|Before: Murphy J

The application for findings of fact to be made by the Court 56 Mr Elbayeh also submits that the Court should make the following findings of fact: (a) That the Applicant's arrangement with the Respondent for the repayment of the debt at the rate of $80 per week was a reasonable arrangement; (b) That the Applicant had never failed to comply with the requirements of the repayment arrangement with the Respondent; and (c) That the Applicant did not suffer form a gambling problem as at 2003. 57 I reject this submission. Section 44(7) of the AAT Act provides: If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if: (a) the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as a result of an error of law); and (b) it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to: [a series of factors are then set out] 58 First, I reiterate my view that none of the findings of fact made by the Tribunal constitute an error of law. Accordingly, it is not open to the Court to make the findings sought by Mr Elbayeh as to do so would be inconsistent with the findings of fact already made. 59 Second, it must be noted that while s 44 gives the Court an express statutory power to make findings of fact, this power is limited. In Etheridge Branson J explained at [17]: Although recent amendments to s 44 of the AAT Act have given the Federal Court limited powers to make findings of fact (see, s 44(7) to (10)), this is a power available to be exercised after the Court has given consideration to the questions of law which constitute the subject matter of the appeal. If the answers to those questions, or any of them, lead to relief being granted to the applicant, the limited power to find facts which is vested in the Court by s 44(7) may be exercised, where it is convenient to do so having regard to the factors identified in the subsection, to avoid the need for the matter to be remitted to the Tribunal for further consideration. 60 I have not granted any relief to Mr Elbayeh, and there is no basis to find facts so as to avoid the inconvenience, cost and delay of the matter being remitted to the Tribunal. The only point of making the findings of fact sought by him would be to usurp the fact finding role of the Tribunal and the Court is not empowered to do so.

Question 4 61 Question 4 in the Amended Notice of Appeal does not turn on a finding of fact made by the Tribunal. However, it has no merit. 62 I do not accept Mr Elbayeh's submission that subs 1230C(2)(b) operates so that once the instalment repayment arrangement of $80 per week based on the circumstances then existing had been put in place, the Secretary was not able to later determine that in different circumstances a different arrangement was reasonable. There is nothing in s 1230C which operates to require that an assessment as to whether an arrangement is reasonable can only be made once. As I have already noted, the reasonableness of a repayment arrangement is conditioned by factors including the debtor's financial circumstances, the available alternative methods, and the length of time which it would take to repay the debt under the repayment arrangement offered. Such matters may well change over time and the Act does not operate to lock the Secretary into a repayment arrangement reached when circumstances were different. 63 For example, in the circumstances of this case, one may well accept that an arrangement to repay the debt at $80 per week was reasonable when the only way that Mr Elbayeh could do so was by weekly deductions from his Newstart Allowance. However, when he became entitled to receive a lump sum payment of about $75,000 the circumstances had changed, and the Secretary was able to again determine that issue. The Tribunal found that in the new circumstances an offer of repayment at the rate of $80 per week was not reasonable. I do not accept that this finding is an error of law.

Conclusion 64 I order that the appeal be dismissed and that the applicant pay the respondent's costs. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

Is there a question of law raised in the appeal? 17 The existence of a question of law "is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it": Brown v Repatriation Commission (1985) 7 FCR 302 at 304 per Bowen, Fisher and Lockhart JJ ("Brown"). 18 In Comcare v Etheridge (2006) 149 FCR 522 ("Etheridge") at 527 to 528 the Full Court per Spender, Branson and Nicholson JJ considered the meaning and limits of a "question of law" under s 44(1) and made the following observations: … an appeal "on a question of law" is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53, r 3(2)(b). 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. … 19 Rule 33.12 of the Federal Court Rules 2011 sets out the procedural requirements in relation to appeals under s 44. It provides that the notice of appeal must state the precise question or questions of law to be raised on the appeal. The Court requires strict compliance with this rule: Lambe v Director-General of Social Services [1981] 57 FLR 262 at 264. As Stone and Branson JJ observed in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [18] (in reference to the predecessor provision to rule 33.12): In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. 20 In my view, the Amended Notice of Appeal does not set out precisely framed or pure questions of law as required. It sets out the following purported questions of law for determination: 1. Whether, on the material presented to the Tribunal, it was possible for the Tribunal to hold that the garnishee notice issued by the Respondent had been issued in compliance with the requirements of section 1230C of the Act; 2. Whether the Respondent exercised the discretion under section 1230C(3) of the Act correctly; 3. Whether the Respondent gave improper weight to the Applicant's past conduct, constituting an error of law in the application of section 1230C(3) of the Act by drawing the wrong inference from fact; 4. Whether a "reasonable arrangement to repay [a] debt" for the purposes of section 1230C(2)(b)(i) of the Act can be rendered unreasonable by a change in circumstances of the parties to the arrangement. 21 The Amended Notice of Appeal also sets out the following grounds: 1. The Respondent was not entitled to issue a garnishee notice pursuant to section 1230C(1)(e) as it had not established at the time of issuing the garnishee notice that the Applicant had failed to enter into a reasonable arrangement to repay the debt or that after having entered into such an arrangement the Applicant had failed to make a particular payment in accordance with the arrangement. Prior to issuing the garnishee notice the Respondent had entered into an arrangement with the Applicant for repayment of the debt requiring the payment of $80 per week. The Applicant had not failed to make these payments. 2. The Applicant had complied with previous instalment plans for payment of the debt as agreed between the parties. The Tribunal member erred in finding that a garnishee notice was appropriate within the meaning of section 2130C(3) of the Act because other alternatives for payment of the debt had failed. The Tribunal member based this finding of law by drawing the wrong inference of fact, namely the 'failure of these [alternative] methods in the past' (at para [12]). 3. The Tribunal erred in finding that the arrangement previously entered into between the Applicant and the Respondent for the repayment of the debt was rendered inappropriate once the Applicant had received a termination payment. 4. The Tribunal member erred in finding that the Applicant had a continuing gambling problem in 2003 based on medical and other evidence from 2000. The Applicant did not have a gambling problem at the relevant time. 5. The Applicant's experience in hospitality was not relevant to determining whether the Applicant was able to continue to comply with the arrangement between the Respondent and Applicant for the repayment of the debt as at the time that the garnishee notice was issued. 22 It is apparent from the Amended Notice of Appeal that the purported questions of law are imprecise, too broad, and are not pure questions of law within the meaning of s 44 of the AAT Act. Even so, it is clear enough from the grounds advanced and the submissions made on behalf of Mr Elbayeh that at the core of his case is the contention that the Tribunal made errors of law in making various findings of fact without having a proper basis upon which to do so. I deal with those purported errors of law below.

Legal principles relevant to a challenge to a finding of fact by the Tribunal 34 The legislature has placed the task of assessing facts in the hands of the Tribunal and not the Court. An appeal lies to the Court only if the Tribunal's decision is materially affected by an error of law. The Court should be cautious before it embarks on its own analysis of that evidence: Brown at 304. 35 There is no error of law in making a wrong finding of fact and no error of law in drawing an inference based upon illogical reasoning as long as the inference drawn was reasonably open on the facts. As long as there is some evidence to support a finding of fact, no error of law will have been committed: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 per Mason CJ. The Tribunal does not commit a reviewable error merely by finding facts wrongly or upon a doubtful basis or by adopting unsound or questionable reasoning: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257. 36 As was observed by Fox, Deane and Morling JJ in Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 at 411: An appellant who attacks a conclusion of the Tribunal because of a deficiency of proof said to amount to an error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based. 37 In a similar vein, Goldberg J noted in Parks Holdings Pty Ltd v CEO of Customs [2004] FCA 820 at [62]: The tribunal is the ultimate determiner of the facts and it should only be in exceptional cases, where there is a clear case that there was no evidence to support a particular finding and conclusion, that the Court should undertake that exercise. If there be evidence supporting the Tribunal's findings or conclusions, then the Court should resist the temptation to consider the evidence going the opposite way for the purpose of establishing that there was no evidence upon which a finding could have been made.

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