Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2011] FCA 28 - FCA 2011 case summary — Zoe

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

[2011] FCA 28

Federal Court of Australia|2011-02-01|Before: Cowdroy J

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Source facts

Court

Federal Court of Australia

Decision date

2011-02-01

Before

Cowdroy J

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

The Application for Extension 14 The application is supported by an affidavit of Mrs Evans sworn on 20 October 2010. It records her state of ill health and her incredulity at the Tribunal's decision. Mrs Evans' affidavit states that after receiving the Tribunal's reasons she wished to obtain further advice before taking any steps to appeal. She stated that she had received such advice and wished to appeal. 15 Mr Evans provided an affidavit sworn 15 September 2010. He deposed that following receipt of the judgment of the Tribunal on 5 August 2010, an application was made by Mrs Evans' solicitors for the transcript of the Tribunal hearing, but that such transcript was not provided to him until more than a fortnight after such request. It appears that although Mrs Evans and Mr Evans were aware of the requirements for an appeal, they chose not to file a holding appeal pending preparation of a comprehensive notice of appeal.

[2]

Respondent's Submissions 16 The respondent refers to the requirement under s 44(2)A of the Administrative Appeals Tribunal Act 1975 ('the AAT Act') and O 53 r 6 of the Rules which requires that a notice of appeal be filed and served within 28 days of the written notification of the Tribunal's decision. The respondent submits that both Mrs Evans and Mr Evans were fully aware of Mrs Evans' right of appeal but consciously decided to allow such time to elapse. 17 The respondent does not submit that it will suffer any prejudice if the extension were to be granted. However, its primary ground in opposing the application is the lack of merit in the proposed appeal. The respondent submits that the draft notice of appeal does not identify any question of law sufficient to attract the jurisdiction of this Court under s 44 of the AAT Act and that the specific allegations contained in the draft notice of appeal do no more than challenge the factual findings of the Tribunal. In particular, the respondent submits that the finding concerning the non-existence of the alleged agreement was a factual finding of the Tribunal.

[3]

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.

[4]

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.

[5]

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.

[7]

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.

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

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