Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Consideration: Delay 18 As to the failure to file the Notice of Appeal within time, O 53 r 6(1) of the Rules provides: Filing and service of notice of appeal (1) Within the time specified in paragraph 44 (2A)(a) of the Administrative Appeals Tribunal Act 1975, the party desiring to appeal from the decision shall file a notice of appeal in the appropriate Registry. 19 Section 44 of the AAT Act makes provision for appeals from the Tribunal to the Court. Section 44(2A) provides: An appeal by a person under subsection (1) or (2) shall be instituted: (a) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and (b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976 . 20 It is accepted that upon an application being made for an extension of time in which to file an appeal under the Rules, an applicant must show an acceptable explanation for the delay; that it is fair in the circumstances that an extension of time be granted; and that there is merit in the proposed appeal in that there is a bona fide issue for determination: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 and Ramirez v Ramirez [2009] FCA 1033 at [13]-[21]. See also Peczalski v Comcare (1999) 58 ALD 697 at [19]. 21 As to the question of delay, the Court notes the evidence before it that Mrs Evans sustained a delay in receiving a transcript. The Court also takes into consideration the fact that Mrs Evans was elderly and that the effect of the Tribunal's decision necessitated careful deliberation by her in consultation with her legal advisors and with Mr Evans. The delay is negligible, namely 12 days, and the respondent does not suggest it has sustained any prejudice in consequence solely of the delay. 22 The Court notes that an acceptable explanation for the delay is not a pre-condition for the granting of leave: see Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540 at [20]. In the circumstances, the Court considers that the explanation for the delay, whilst barely satisfactory, is not of itself a fact that would disqualify the application for an extension of time.

Consideration: Merits of Appeal 23 As to the merits of the proposed grounds of appeal, s 44(1) of the AAT Act limits appeals to this Court to those where 'the subject matter of the appeal is the question or questions of law': see Branson J in Comcare v Etheridge and Others (2006) 149 FCR 522 at [13]. Mixed question of fact and law do not constitute questions of law within s 44(1) of the AAT Act: see Etheridge at [16]. 24 In Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410 the Full Court of the Federal Court of Australia considered the meaning of the phrase 'on a question of law' for the purposes of s 44 of the AAT Act and identified the following at [13] as satisfying such requirement: 1. Whether the AAT has identified the relevant legal test: Scicluna 72 NSWLR 674 at [68] and Collins v Administrative Appeals Tribunal [2007] 163 FCR 35 at [55]; 2. Whether the AAT has applied the correct test: Repatriation Commission v Hill (2002) 69 ALD 581 at [59]; Commissioner of Taxation v Zoffanies Pty Ltd (2003) 132 FCR 523 at [25]; Tax Agents' Board v Bray (2004) 58 ATR 118 at [19]; Collins 163 FCR 35 at [55]; 3. Whether there is any evidence to support a finding of a particular fact: Minister for Immigration and Multicultural Affairs v Al Miahi (2001) 65 ALD 141 at [34]; and 4. Whether facts found fall within a statute properly construed: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. 25 The respondent's submission that the draft notice of appeal does not raise questions of law is, for the most part, correct. Some of the grounds of appeal contained in the applicant's draft notice of appeal seek to review the factual findings of the Tribunal which is impermissible before this Court unless such finding is vitiated by an error of law (see Waterford v The Commonwealth of Australia (1987) 163 CLR 54 per Brennan J at 77). Other grounds in the draft notice of appeal merely assert errors of law in respect of certain findings. Such grounds do not constitute questions of law raised for determination: see Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524. 26 Mrs Evans' draft notice of appeal lists 11 'Questions of Law' marked (a)-(k). Such questions are to a degree repetitious. During the hearing before this Court, counsel for Mrs Evans made oral submissions which both simplified and elaborated the grounds contained in the draft notice of appeal which had been previously filed as an annexure to Mr Evans' affidavit. The Court considers that such submissions have defined four grounds which may raise questions of law for determination by the Court.

Ground 1 - Natural Justice - Rejection of Mr Evans' Evidence 27 The first ground raises the question whether there was a denial of natural justice. The Tribunal transcript records that at the hearing the Tribunal member raised an issue concerning the truthfulness of the testimony concerning the existence of the agreement that had been provided by Mr Evans. Mr Evans' testimony was important to the Tribunal's findings concerning the existence of the agreement. The transcript records an exchange between counsel for the respondent, Mr Carter, and the Tribunal member as follows: MR CARTER: And then as to the submission that the evidence that the applicant gave was truthful, I mean, we hear the deal with the existence of a legally enforceable agreement, I think that --- TRIBUNAL MEMBER: You are not going to say that it wasn't are you? MR CARTER: That's right. No, I'm not. I'm not going to raise that. TRIBUNAL MEMBER: Okay. Well, I think that's pretty important. MR CARTER: Yes, and I just want to make the point that we're here looking at trying to quantify what this agreement is, if anything. TRIBUNAL MEMBER: Well, if that's the only evidence we have, and we believe it's true, that that's pretty important. 28 Despite the above exchange the Tribunal in its reasons found that there was no agreement, a result which Mr Evans contends was only possible through the rejection of some or all of his testimony. 29 Mrs Evans submitted that there has been a denial of natural justice because the Tribunal implicitly indicated during the hearing before it (as indicated by the above extract) that the truthfulness of Mr Evans was not in doubt. Mrs Evans claimed that because of such indication, it was necessary for the Tribunal member to indicate that she had rejected the evidence of Mr Evans. 30 The respondent submits however that the findings of the Tribunal do not constitute a rejection of the evidence of Mr Evans as a credible witness. The respondent contends that the evidentiary bar required to establish the alleged agreement was not satisfied and accordingly the existence of such agreement was rejected.

Finding 31 There is no obligation upon a Tribunal to put to a party its thought processes and an erroneous finding of fact is not sufficient to constitute an error of law: see Waterford at 77; Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268 per Finn J at [31]. Nor was there any obligation for the Tribunal to 'put to' Mr Evans that his testimony would not be accepted. The Tribunal was required to make its determination on the evidence before it. As its reasons reflect, it was simply not satisfied that the evidence before it disclosed the existence of an agreement between Mr Evans and his parents. Such finding does not constitute an error of law. Accordingly the Court is satisfied that no leave should be granted to appeal on the above ground.

Ground 2 - The Exclusion of Evidence 32 Despite the conclusion above, the Tribunal's finding concerning the existence of the agreement is complicated because of its earlier finding which possibly incorrectly excluded evidence relating to the terms of the agreement. This complication arises in the following way. 33 The Tribunal found: I also had before me, a Statutory Declaration of Mrs Evans (Exhibit A2), which Mr Prince conceded was written for her. As I understand Mrs Evans is likely not to have fully comprehended the Declaration she signed, and was not able to be questioned about it, I have accorded it little weight in coming to my decision. 34 Mrs Evans submitted that there was no evidence to support two factual findings made in this passage, namely that the statutory declaration was 'written for her', and secondly, that she was unable to comprehend the statutory declaration when she signed it. 35 As to the first finding, the only evidence which could have related to the finding that the statutory declaration was 'written for' Mrs Evans, was based upon the following exchange between the Tribunal member and Mr Evans concerning the preparation of the statutory declaration: Do you know who prepared that statement? That is, who drafted and prepared it? ---Mr Price, with mother. 36 Such a statement does not prima facie support the Tribunal's conclusion that the document was 'written for' Mrs Evans. 37 As to the second finding of the Tribunal relating to the capacity of Mrs Evans to understand the statutory declaration when it was subscribed, the statement before the Tribunal of Mr Price, solicitor for Mrs Evans, was as follows: MR PRICE: Only because her health, as I understand it, precluded her. By that time - she made the statement at the time when she was --- TRIBUNAL MEMBER: Well, it's dated the 9th. MR PRICE: --- capable of doing so and that unfortunately is now - her position has now deteriorated where I don't think there would be any genuine utility in obtaining a statement because she may not, subsequently, at this point in time necessarily, be fully aware of what it is she is saying. 38 Mrs Evans submitted that there is no suggestion that, at the time she signed the declaration, she was not able to comprehend her actions. Accordingly Mrs Evans submitted that the Tribunal member made an error of law by giving little weight to the statutory declaration on account of the fact that the Tribunal understood Mrs Evans to have had a limited comprehension of the contents of the declaration she signed. 39 Mrs Evans submitted that such error has resulted in the miscarriage of justice since an acceptance of the contents of her statutory declaration was fundamental to establishing the existence of the agreement, and her statutory declaration supported the evidence of Mr Evans relating to the terms of the agreement. 40 The respondent submits that since Mrs Evans did not attend for examination or cross-examination, the Tribunal member was entitled to draw the conclusion that any evidence Mrs Evans provided in the Statutory Declaration was of little weight.

Finding 41 There has been significant judicial difference upon the question of whether a 'perverse' finding of primary facts should constitute an error of law: see the dissenting judgment of Kirby P (as he then was) in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 147-153 and his Honour's judgment (as Kirby J) in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1. 42 The Tribunal's decision to dismiss Mrs Evans' statutory declaration as having little weight may have been motivated by its understanding that the declaration had been prepared for her and that she was unlikely to have comprehended it. Such dismissal was central to the Tribunal's finding that there was no legally binding or enforceable agreement between the parties as claimed. Further, the Tribunal was not satisfied that Mr Evans had foregone monies that he would otherwise have been entitled to had he remained in his career in the theatre. As a result of the Tribunal's findings against the statement of Mr Price, the Tribunal could have improperly limited the evidence of Mrs Evans. It follows that it is possible that by virtue of a misunderstanding by the Tribunal, an error of law has occurred: see Craig v The State of South Australia (1995) 184 CLR 163 at 179. Whether a miscarriage of justice has in fact resulted from the Tribunal's assessment of the statutory declaration is not now for determination. 43 Although the draft notice of appeal has not expressed the ground clearly, the Court is satisfied that a question arises whether the Tribunal correctly understood Mr Price's statement regarding the capacity of Mr Evans; whether the Tribunal improperly limited Mrs Evans' evidence; and whether Mrs Evans' evidence, if afforded greater weight and combined with the evidence of Mr Evans, would result in the agreement being upheld.

Ground 3 - Existence of a Rebuttable Presumption 44 A further issue raised by the draft notice of appeal relates to the Tribunal's finding regarding the parties' intention to create legal relations. The Tribunal member found: There is a rebuttable presumption of fact that close relatives such as parent and child do not intend their arrangements to create legal relations. (Jones v Padavatton [1969] 2All E.R. 616) 45 Mrs Evans submitted that the above finding does not reflect the current state of the law in Australia and relied on the authorities of Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at [25]-[27] and Gray v Gray and Another (2004) 12 BPR 22,755. 46 The respondent submits that the Tribunal's ultimate findings were made on the basis that insufficient evidence had been provided to support the existence of the agreement. The respondent rejects Mrs Evans' claim that the Tribunal's decision was made on the basis of a failure to overcome a rebuttable presumption. 47 Further, the respondent submits that the Tribunal's findings were clearly open to it and that the reference to Jones v Padavatton [1969] 2 All ER 616 was appropriate and consistent with other referenced authorities such as Frendo v Secretary, Department of Social Security (1987) 77 ALR 682 and Re Follone and Secretary, Department of Social Security (1987) 11 ALD 477.

Finding 48 In circumstances where Mr Evans' claims were dismissed on the basis of an insufficiency of evidence, the issue of the evidentiary burden that Mrs Evans was required to satisfy is of critical significance. 49 The question of the sufficiency of the evidence to support the agreement is also linked to Ground Two above which concerns the Tribunal's finding in relation to the weight to be placed on Mrs Evans' Statutory Declaration. Accordingly, this ground of proposed appeal is inextricably connected to the previous potential grounds of appeal. 50 A question of law arises whether the Tribunal was incorrect in holding that a rebuttable presumption applied to the legal relationship of Mr Evans and his parents.

Ground 4 - Conduct of the Parties 51 The Tribunal found that the conduct of the parties through the payment of the monies to Mr Evans following the making of the agreement was irrelevant to the existence of the agreement. 52 Mrs Evans submitted that conduct is relevant to the consideration of whether any agreement existed: see Country Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193 at [162]. Mrs Evans submitted that such conduct might also be relevant to the establishment of the existence of an implied term and refers to the observation of Gyles J in Council of the City of Sydney v Goldspar Australia Pty Ltd (ACN 002 705 991) and Another (2006) 230 ALR 437 at [164] in which his Honour said: I can see no difficulty in regarding subsequent conduct as relevant to the question as to whether a term is necessary to give business efficacy to the contract. 53 Whilst the respondent submits that such finding is a finding of fact, such issue is also related to the totality of the evidence concerning the existence or otherwise of the agreement, and whether the agreement fails for uncertainty. Such ground is indirectly linked to Ground Two above in that its central complaint relates to the Tribunal's erroneous limitation of the evidence. As such, a question of law arises.

Conclusion 54 The Court is satisfied that issues of law can be raised for consideration, and that the interest of justice warrants the grant of an extension of time. However, the notice of appeal will require re-drafting to raise the two issues of law which arise, namely: 1. Did the Tribunal wrongfully limit the evidence of the applicant in respect of the alleged agreement between the Applicant, her husband and her son, Mr Gordon Evans thereby leading the Tribunal to make erroneous findings in relation to the existence of the agreement? 2. Did the Tribunal err in finding that a rebuttable presumption existed that close relatives such as parents and children do not intend arrangements to create legal relations and accordingly did it apply the wrong legal test? I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.