Consideration
99 As Mr Frugtniet pointed out, the starting point to consider this ground of appeal is s 33(1)(c) of the AAT Act which provides:
(1) In a proceeding before the Tribunal:
…
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
100 In Pochi (at 491-2), in considering how facts are to be proved and what will amount to sufficient proof in the absence of rules of evidence binding the Tribunal, Brennan J observed, among other things, that the Tribunal may have regard to logically probative evidence which is relevant to the issues before it.
101 The manner in which the Tribunal considers it to be appropriate to inform itself of relevant matters will vary from case to case. However, it will necessarily be informed by the circumstances of the particular case and the objective of the Tribunal set out in s 2A of the AAT Act. In particular, the Tribunal is required, in carrying out its function, to pursue the objective of providing a mechanism of review that is accessible, fair, just, economical, informal, quick and promotes public trust and confidence in its decision making.
102 Mr Frugtniet's contention that findings of the Tribunal are affected by error because it impermissibly had regard to findings made in other proceedings is essentially the same argument as he raised in Frugtniet v Migration Agents Registration Authority [2017] FCA 537; 156 ALD 79. In that case Mr Frugtniet argued that the Tribunal's reference to, or reliance on, findings made by other decision makers, including other tribunals and courts, was contrary to s 91 of Evidence Act. In rejecting that argument, after noting that the Evidence Act applies to all proceedings in a "federal court" as defined, at [213]-[214] Kenny J said:
[213] The Tribunal does not fall within this definition since it is not required to apply the laws of evidence. Section 33(1)(c) of the AAT Act expressly provides that "the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate". Section 91 of the Evidence Act does not therefore apply to the Tribunal: see also Danagher v Child Support Registrar (2014) 228 FCR 213; [2014] FCA 1408 at [37]-[38] (Gilmour J); Ralph v Repatriation Commission (2015) 145 ALD 357; [2015] FCA 165 at [64] (Murphy J); and Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; 322 ALR 581; 141 ALD 540; [2014] FCAFC 93 at [91] (Flick and Perry JJ).
[214] As the MARA submitted, the Tribunal may use the findings of another tribunal or of a court as the basis for its own findings, according such findings the weight that it considers appropriate in all the circumstances of the case: see, e.g., the reasons for decision of the Tribunal in Re Thorpe at [72].
103 In Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 133 ALD 39 Jessup J said at [62]:
Before turning to those issues, it is necessary to say something about the legal framework within which the Tribunal's fact-finding function was set. The Tribunal is not a court, and is not bound by the rules of evidence: AAT Act, s 33(1)(c). It must, however, proceed by reference to "rationally probative evidence" rather than on mere "suspicion or speculation": Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 685. If it does so, its finding on a question of fact will not be assailable in a proceeding under s 44 of the AAT Act unless that finding was not reasonably open on the evidence. Where the finding has been made by inference, no error of law will have been made so long as there was some basis for the inference: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 326. The nature and limits of the Tribunal's function in these and allied respects were described in detail by Greenwood J (Weinberg J agreeing) in Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 at 294-299.
104 The Tribunal is entitled to make use of the findings of other tribunals or courts. In doing so, it has a discretion as to the weight it should give such findings.
105 We turn our attention to the use made by the Tribunal of the other decisions about which Mr Frugtniet complains.
106 As is evident from a review of the Tribunal's reasons, it relied on the findings of other decision makers in coming to a view on the threshold question of whether it had reason to believe that Mr Frugtniet was not a fit and proper person to engage in credit activities, perform one or more functions as an officer of another person who engages in credit activities or control another person who engages in credit activities. The Tribunal noted that the bar to meet the threshold for that inquiry was lower than that for the second inquiry, whether a banning order should in fact be made and, if so, its extent and duration.
107 At [46] of its reasons the Tribunal set out the nine matters which it considered and which concerned eight decisions. Relevantly:
(1) it is evident from a review of the Tribunal's summary of those decisions (at reasons [46]) that Mr Frugtniet was a party to seven of the eight decisions referred to and considered by the Tribunal;
(2) the majority of those decisions were included in the T-Documents required to be lodged with the Tribunal pursuant to s 37 of the AAT Act such that Mr Frugtniet was on notice of them;
(3) at the hearing before the Tribunal, ASIC referred to those decisions. For example in opening submissions on day one counsel appearing for ASIC said:
A majority of the material before the [Tribunal], in the T documents, are the decisions of various other courts and tribunals in which various findings of fact are made about the applicant and his conduct. And I intend to briefly take the [Tribunal] through those documents and identify the findings on which ASIC relies to say that there is reason to believe that the applicant is not a fit and proper person.
(4) counsel for ASIC then took the Tribunal to, and over objection from Mr Frugtniet tendered as exhibits, the decisions referred to at [46(a)], [46(b)], [46(c)], [46(d)], [46(f)], [46(g)], [46(h)] and [46(i)] of the reasons. Those decisions had been included in the T-Documents in advance of the hearing and Mr Frugtniet clearly had notice of ASIC's intention to rely on them.
108 As we have already observed the Tribunal only relied on the decisions of other decision makers in relation to the first question it had to resolve, whether it had "reason to believe" as required by s 80(1)(f) of the NCCP Act sufficient to enliven its discretion to consider whether a banning order should be made and its terms.
109 In considering the latter question, namely, whether a banning order should be imposed, the Tribunal did not rely on other decisions but made its own findings of fact. Insofar as it did so, Mr Frugtniet contends that in three instances the Tribunal made findings that were not reasonably open to it based on probative evidence and that in two instances it made impermissible reference to decisions.
110 As to the contention that the Tribunal made findings that were not reasonably open to it on the evidence, it is relevant to recall that an appeal from the Tribunal to this Court can be brought in relation to a question of law: see s 44(1), AAT Act and Rawson Finances at [62].
111 Relevantly, in Rawson Finances at [84] Jagot J (with whom Nicholas J agreed) said:
The distinction between evidence or material which could support a factual finding and evidence or material which should or should not have supported such a finding is fundamental to the exercise of jurisdiction which is limited to questions of law. When courts refer to there being "no probative" evidence to support a finding or a finding not being "reasonably open" or "open" on the evidence (as in Australian Broadcasting Tribunal v Bond at 359-360) or it being necessary that a finding be based on "some probative material or logical grounds" and that a finding not be "completely arbitrary" … the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted the making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of a fact and no logical grounds to support the fact, the finding of that fact will involve error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula "some probative material or logical grounds" does not convert questions of fact into questions of law.
(Emphasis added.)
112 We turn to consider the particular findings which Mr Frugtniet contends were not supported by probative evidence.
113 The first of these is the Tribunal's finding at [52] and [55]-[68] of its reasons about the representations made by Mr Frugtniet to the Magistrates' Court. In summary the Tribunal found that:
(1) on 25 May 2010 Mr Frugtniet attended the Magistrates' Court to assist members of a swimming group in which he was involved. Although Mr Frugtniet had a law degree he was not admitted to practice. Upon meeting at court, the barrister for the opposing side inquired whether Mr Frugtniet was a sole practitioner. He responded "yes";
(2) later that morning Mr Frugtniet appeared before a Magistrate who asked for which firm he worked. Mr Frugtniet responded "sole practitioner, your Honour";
(3) before the Tribunal Mr Frugtniet's evidence (as recorded at reasons [57]) included:
…, what is alleged against me that I misrepresented a barrister and I misrepresented a Magistrate. Unfortunately and regrettably that's what I did. I did so, I can only say, not with any intention, because you see I was a sole practitioner in immigration and I was a sole practitioner in tax, and I should have understood also, and I know it's encroaching upon more than an overview, but you see, Deputy President, at least I should be - it was one of those days where I was rushed, because normally what I would have done if that was the case, the first thing I would have done was I would have sought leave, and there's no suggestion that leave would not have been granted…
… My whole intention was to seek leave and it was as simple as, you know, "I seek leave to appear, you know, insofar as I'm not admitted as a legal" - I would have said that. What actually happened was I was confronted with a situation where the lawyer or the barrister I should say, for the other side, approached me and in the course of, I think him asking me as to from what firm I was from. I said "Sole practitioner". I know it might seem implausible but I didn't intend to convey that I was a sole practitioner as in lawyer but that's how it was read and I can't help but feel - given that I could easily have got leave and done what I did.
But so then the situation arose in court where I think it is stated the Magistrate says to me, "please stand" and the question is put to me, "What firm are you from?" And I said, "Sole practitioner". Looking back on it obviously it could not have done anybody any good other than to convey the impression that I was a sole practitioner practising law.
(Footnote omitted, emphasis in original.)
(4) in the disciplinary proceeding instituted by the LIV in VCAT against Mr Frugtniet (LIV Proceeding), the barrister who appeared for the opposing party in the Magistrates' Court gave evidence consistent with the evidence given by Mr Frugtniet to the Tribunal. However, VCAT's decision in the LIV Proceeding records that Mr Frugtniet gave evidence to it denying that he said the words "sole practitioner" or "solicitor" to the barrister;
(5) Mr Frugtniet's evidence given in the LIV Proceeding was inconsistent with the evidence he gave before the Tribunal. Further, Mr Frugtniet gave evidence in that proceeding to the effect that he appeared "personally through a power of attorney as the spokesperson for the firm of Vasta and others" and claimed that his entitlement to appear arose out of a power of attorney executed by his clients such that he did not need to seek leave to appear. The Tribunal found that Mr Frugtniet's evidence in the LIV Proceeding could not be reconciled with the evidence that he gave to the Tribunal; and
(6) it was clear from the evidence given by Mr Frugtniet to it that he defended the LIV Proceeding on a false basis in that he denied under oath facts about a conversation which he now admitted occurred in the same way as described by the other witness, the barrister, in the LIV Proceeding.
114 The Tribunal was satisfied that Mr Frugtniet's evidence of his conversation with the barrister given in the LIV Proceeding was knowingly false and that he made the false statement in a deliberate attempt to avoid an adverse disciplinary finding: reasons at [64].
115 We are satisfied that those findings were supported by the material before the Tribunal.
116 First, as is apparent from the transcript of the hearing before the Tribunal, Mr Frugtniet gave the evidence recorded at [113(3)] above. In that evidence he plainly conceded that he made a misrepresentation about his status as a lawyer who was a "sole practitioner" to a barrister and a Magistrate in the course of the LIV Proceeding.
117 Secondly, in VCAT's decision in the LIV Proceeding, which was admitted into evidence before the Tribunal, commencing at [75] VCAT set out the evidence given by and on behalf of Mr Frugtniet to it including at [77]-[80] that:
77 On 25 May 2010 [Mr Frugtniet] said he had arrived late to Werribee Magistrates Court, Mr Vasta accompanied him to the Registry Counter where he said:
"My name is Frugtniet. I appear as spokesman pursuant to a power of attorney." I handed it over the counter, the original, and I said, "Could you please stamp and provide me a copy, stamp it and give me a copy."
78 The original Power of Attorney was stamped and he was given back a copy of the stamped original.
79 In relation to his initial conversation with Mr Lowry at the Werribee Magistrates Court:
a. He denied that Lowry carried a book;
b. He denied that he said "sole practitioner" or "solicitor:'
c. Mr Vasta was with him and within hearing of their conversation;
d. The conversation which he said occurred was as follows:
"I'm Stephen Lowry, barrister, and I appear for the defendant." I said, Mr name is Rudy Frugtniet." I don't recall him asking me to say can you spell it or anything or even repeat it, I said, "Rudy Frugtniet." I said, "I appear personally through a power of attorney as the spokesperson for the firm Vasta & Ors." And he said, "Are you appearing for Vasta or are you appearing for Vasta and the others, and my answer, to the best of my recollection was, "I appear for them all but they are not here at the moment…"
80 When [Mr Frugtniet] appeared before the Magistrate and answered "sole practitioner" he was merely referring to the fact that he was a sole practitioner migration agent, tax agent and conveyancer. He did not have legal practitioner in mind. Furthermore, he had already filed the Power of Attorney with Registry and had no reason to believe that the Magistrate did not have such document in the file before him.
118 It is apparent from VCAT's reasons that Mr Frugtniet gave evidence to VCAT in which, in contrast to his evidence before the Tribunal, he denied that he said to the barrister that he was a sole practitioner or solicitor, gave evidence of his conversation with the barrister to the effect that he appeared through a power of attorney and evidently made no mention of being "a sole practitioner" and explained what he had intended to convey when he informed the Magistrate that he was a "sole practitioner".
119 This evidence supports the Tribunal's finding that there was a discrepancy between the evidence Mr Frugtniet gave to VCAT in the LIV Proceeding and the evidence he subsequently gave to the Tribunal about events which took place at the Magistrates' Court.
120 In the circumstances, there was sufficient probative evidence to support the Tribunal's findings in relation to Mr Frugtniet's conduct in the Magistrates' Court and the evidence he gave in the LIV Proceeding about his attendance at and appearance before that court.
121 The second finding which Mr Frugtniet contends was not supported by probative evidence is the Tribunal's finding that Mr Frugtniet was involved in falsifying an immigration skills assessment. The Tribunal made its findings at [69]-[75] of its reasons. In doing so the Tribunal:
(1) referred to the decision in Frugtniet v Migration Agents Registration Authority [2016] AATA 299 (Frugtniet v MARA) in which the Tribunal, differently constituted, affirmed a decision of MARA to cancel Mr Frugtniet's registration as a migration agent and as part of that decision considered whether Mr Frugtniet was involved in fabrication of documents used to obtain a favourable skills assessment to support a skilled visa application for Mr Bastola;
(2) noted that before it Mr Frugtniet accepted that Mr Bastola was his client and that he had assisted him to prepare a visa application but denied his involvement in the preparation of the application to TRA which included documents which fabricated Mr Bastola's work experience;
(3) set out that part of Frugtniet v MARA where the facts relating to the fabrication of those documents were recorded; and
(4) set out the evidence given by Mr Frugtniet to it noting first that Mr Frugtniet maintained that he was not involved in the preparation of the false work history which enabled Mr Bastola to obtain a favourable skills assessment from TRA but also that much of his evidence confirmed many of the critical facts found in Frugtniet v MARA.
122 At [74]-[75] of its reasons the Tribunal found, based on Mr Frugtniet's own evidence, that the basic facts giving rise to the deception were not in dispute and that Mr Frugtniet's explanation to it as to why the conspirators chose his contact details for "Mr Evans", who signed the letter in support of the skills assessment application which detailed Mr Bastola's work experience, was not credible and explained why it had formed that view.
123 Mr Frugtniet's evidence to the Tribunal, recorded at [72] of its reasons, supports the Tribunal's findings. Mr Frugtniet accepted that Mr Bastola submitted a skills assessment to TRA which included a letter purportedly signed by a Mr Evans who was described as a director and executive chef of Café Miro. The letter from Mr Evans stated that Mr Bastola had completed 900 hours of work experience at Café Miro and that if TRA wished to discuss its content it could contact Mr Evans by sending a request to a GPO box or fax number or by phone at a mobile phone number. The GPO box provided belonged to Mr Frugtniet at one point and then to Unique Mortgage Services Pty Ltd. Mr Frugtniet accepted that he had access to the GPO box at all times, and the mobile phone number provided for Mr Evans was Mr Frugtniet's mobile phone number. Given those facts there is no basis on which it could be said that the Tribunal's findings were not open to it or that they were not supported by probative evidence.
124 The third matter about which Mr Frugtniet complains is the Tribunal's findings about an answer he gave to MARA in 1999 when completing a form (1999 Form) to renew his registration as a migration agent. The Tribunal addressed this issue at [76]-[79] of its reasons. The form in question was not in evidence before the Tribunal. Rather the Tribunal had before it a letter dated 19 December 2005 from MARA to Mr Frugtniet (2005 MARA Letter) which included:
In your application for repeat registration received by the Authority on 27 October 1999 and declared by you as being complete, correct and up to date in every detail on 26 October 1999 you were asked the following question:
11. Are you the subject of any criminal charges still pending before a Court, or have you ever been convicted of an offence which is not spent? Refer to Part VIIC Crimes Act 1914 (Cth) for a definition of a spent conviction.
You answered no to this question. According to the information before the Authority you were subject to criminal charges still pending before a court. You had been charged with six counts of theft and three of attempted theft, but were not acquitted of these charges until 23 March 2000.
125 The Tribunal noted that in evidence before it Mr Frugtniet accepted, on the balance of probabilities, that what was recorded in the 2005 MARA Letter accurately reflected the question he was asked and the answer he gave in the 1999 Form and that he was the subject of pending criminal charges at the time he answered the question posed in the 1999 Form. Based on that evidence, the Tribunal found that it had no reason to doubt that the 2005 MARA Letter accurately reflected the question asked and the answer given in the 1999 Form and that by answering "no" Mr Frugtniet gave "incorrect" information to MARA.
126 Once again there was evidence before the Tribunal to support its findings. As it observed, it did not have the 1999 Form but it had before it the 2005 MARA Letter which set out the question asked and the answer given at the relevant time. In cross examination the 2005 MARA Letter was put to Mr Frugtniet by counsel for ASIC. Mr Frugtniet gave the following evidence:
Q: Would you accept that it's more likely than not that MARA's got it right, about what you answered in your form?
A: Yes, I'm trying to accede to that proposition.
And:
Q: Thank you. All right. So, assuming that it's more likely than not that you answered "no" to this question, would you accept that that answer is false?
A: I don't know how you define false. In the context of an innocent mistake or an intentional response - I can't quite agree with you in that sense of the word. No. I don't agree with you on the face of it. You can make an innocent mistake. You can, for reasons that I've canvassed, define the answer to be incorrect. But, to be false, context are not more than that.
Q: So, what you're doing there is really taking issue with the word "false", trying to say well, I didn't - I may not have meant it, therefore it's no false. Is that what you're trying to say?
A: Well, yes, I mean it could have been mistake, it could have been a misapprehension, or what I thought needn't be disclosed, you know. In that sense of the word. For the reasons that I've canvassed.
Q: But do you accept that it's not factually accurate?
A: Yes, it would not be factually accurate. Yes, that would be correct.
Q: All right. So, I think after all of that, I hesitate to summarise, but we've gotten to the point where you accept that it was more likely than not you answered no. And that if you did answer no, that that answer would have been incorrect - or factually inaccurate?
A: That would be right.
Q: Okay. Because - and the reason it would have been factually inaccurate is because, at that time, you were actually the subject of pending criminal charges relating to your employment at the ANZ Bank. Is that correct?
A: Correct.
Q: And obviously those charges were ultimately thrown out. Is that right?
A: Weren't thrown out. They were - I was acquitted by a jury.
127 We are satisfied, based on the available evidence, that the Tribunal's findings were reasonably open to it.
128 The final two matters about which Mr Frugtniet raises an issue are the references to a VCAT decision in relation to a review of a decision by the Travel Agent's Licensing Authority to cancel Corine Frugtniet's (Mr Frugtniet's former wife) travel agent's licence (at reasons [46(a)]) (which we will refer to as the Tarson Decision) and the decision in Re Frugtniet and Secretary, Department of Family and Community Services (2004) 84 ALD 774 (at reasons [46(d)]) (which we will refer to as the Newstart Allowance Decision). Mr Frugtniet contends that by the Tribunal's reliance on those decisions he was denied procedural fairness because he was not a party to the proceeding giving rise to the Tarson Decision and because the Newstart Allowance Decision was set aside.
129 The Tarson Decision was one of the adverse findings to which ASIC took the Tribunal in relation to its consideration of whether it had reason to believe that Mr Frugtniet was not a "fit and proper person" to carry on credit activities. Mr Frugtniet was not a party to the proceeding which gave rise to the Tarson Decision but gave evidence in the proceeding. The Tribunal's sole reference to the Tarson Decision is at [46(a)] of the reasons where it referred to VCAT's finding about Mr Frugtniet as a witness saying he:
…was verbose and argumentative in his answers. His accounts of events, in some cases, were inconsistent…[m]oreover his evidence at some points, particularly in regard to [an IATA inspector's] visit was simply incredible.
130 At [49] of its reasons, in response to a submission by Mr Frugtniet that in some cases the decisions referred to at [46] of the Tribunal's reasons had been set aside and in other cases he was unable to challenge the veracity of some of the findings made against him, including in the Tarson Decision, the Tribunal said:
Even if we disregard the adverse findings contained in decisions that were set aside on appeal or where the applicant did not have an opportunity to challenge the evidence, we are satisfied the balance of the adverse findings provide ample reason to believe the applicant is not a fit and proper person to engage in credit activities.
131 That is, while not expressly disavowing reliance on the findings in the Tarson Decision, the Tribunal was satisfied, even excluding those decisions which had been set aside on appeal or where Mr Frugtniet had not had an opportunity to challenge the evidence (e.g. the Tarson Decision) and based only on the balance of the decisions, that it had reason to believe that Mr Frugtniet was not a fit and proper person to engage in credit activities.
132 But even if the Tribunal did place some reliance on the findings about Mr Frugtniet in the Tarson Decision we do not accept that any procedural unfairness arose.
133 The Tarson Decision was included in the T-documents such that Mr Frugtniet had advance notice of the fact that it was to be before the Tribunal. He was cross examined in relation to the Tarson Decision and the evidence he gave to VCAT in the proceeding before it. He had an opportunity to respond to the questions in cross examination and to make submissions about the Tarson Decision, including whether the Tribunal should have regard to the findings in it, which it seems he did.
134 Further, a review of the reasons in the Tarson Decision shows that, while Mr Frugtniet was not a party to the proceeding before VCAT, he was one of four witnesses and in VCAT's opinion he "dominated" the proceeding, "seemed to usurp the positions both of client and instructing solicitor", was referred at one time by Mr Palmer, counsel appearing for Mrs Frugtniet, as "my client" and made an unsuccessful application to be joined as a party. The reasons disclose that Mr Frugtniet had more than a passing interest in the proceeding giving rise to the Tarson Decision and seemed to have a significant involvement in it.
135 As a final matter we note that Mr Frugtniet raised an almost identical argument in Frugtniet v Australian Securities and Investments Commission [2016] FCA 995; 152 ALD 31 (Frugtniet v ASIC). There, among other things, Mr Frugtniet contended that it was procedurally unfair for the Tribunal in that case to have had regard to the findings made in the Tarson Decision. In addressing that contention at [87]-[89], in a finding that was not disturbed on appeal, Bromberg J relevantly said:
[87] … The question is only whether it was procedurally unfair for the [Tribunal] to have had regard to findings that were made in a proceeding in which Mr Frugtniet had no ability to appeal. The answer is that it was not.
[88] Mr Frugtniet was aware that the findings made in the Tarson proceeding were in issue before the [Tribunal]. He was aware of the nature and content of the findings made in the Tarson proceeding. He had the opportunity to deal with those findings in the course of the hearing before the [Tribunal]. It was open to him, for example, to argue that they should be given no or diminished weight as a consequence of his inability to appeal. He had the ability to put information and submissions to the [Tribunal] in support of an outcome consistent with his interests.
[89] Taking a broader view, there was no practical injustice in the procedure adopted by the Tribunal. Indeed, it is difficult to see what more it could have done with a view to enabling Mr Frugtniet to address the substance of the Tarson findings as he saw fit. The procedural fairness ground fails. …
136 To like effect are the findings of a Full Court of this Court (Fox, Blackburn and Lockhart JJ) in Barbaro v Minister for Immigration and Ethnic Affairs (1982) 44 ALR 690; (1982) 65 FLR 127 in relation to a submission that the Tribunal there denied natural justice to the appellant by relying on the "Report of the New South Wales Royal Commission into Drug Trafficking", which was before it, to conclude that the appellant was involved in the activities of a criminal organisation and had a role beyond that of a mere labourer. The Full Court found that the submission failed as a matter of fact because of the content of the report. However it went on to observe that, while the question was academic, it doubted that there would have been a denial of natural justice if the Tribunal had drawn more from the report. At 693-4 the Full Court said:
The essence of the objection is that the appellant did not appear, nor was he represented, or asked to appear, before the Royal Commission: he did not have an opportunity to test the evidence given to it. To stop there, we think it is highly unlikely that he was unaware of the Royal Commission or of the nature and extent of its inquiries, so far as the latter might affect him. It is therefore a matter of surmise whether he had the opportunity to seek representation, or to appear in person, before the Commission. However, accepting the submission on this aspect, his complaint is that it was an impossible task for him to overcome, before the Tribunal, the Royal Commissioner's finding. The fact was, however, that he was represented by counsel before the Tribunal, and then gave evidence himself, denying the alleged membership, and, indeed, knowledge of the alleged organization.
The content, or requirements, of natural justice vary with the circumstances of each case, but some guidelines have been formulated. It is established that, in general, reliance by a tribunal upon a provision such as s 33(1)(b) and (c) of the Administrative Appeals Tribunal Act is not per se a breach of the rules of natural justice (see per Diplock LJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 All ER 81; [1965] 1 QB 456; Myers v Director of Public Prosecutions [1964] 2 All ER 8 81; [1964] 3 WLR 145; Kavanagh v Chief Costable of Devon and Cornwall [1974] 2 All ER 697 at 698; [1974] QB 624 at 633 per Lord Denning MR; Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 686-90; 4 ALD 139 at 156-7 , per Deane J).
The admission of an adverse hearsay report, without an opportunity being provided to cross-examine the author, does not by itself amount to a denial of natural justice (T A Miller Ltd v Minister of Housing and Local Government [1968] 2 All ER 633; [1968] 1 WLR 992; Kavanagh v Chief Constable of Devon and Cornwall, supra: see also R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 244, 250). Consideration of whether there has been a denial of natural justice must have regard to statutory provisions, such as s 33 of the Administrative Appeals Tribunal Act (as well as ss 30, 31 and 32). In the present case, it seems to us that the appellant was treated fairly. He had an opportunity by his own evidence, and by any other he could produce, to refute statements in the Report, and he had a legal representative through whom all appropriate submissions could be made.
137 The findings in Frugtniet v ASIC and the observations of the Full Court in Barbaro apply equally to the argument made here in relation to the Tribunal's reference and regard to the findings in the Tarson Decision.
138 The Tribunal considered the Newstart Allowance Decision at [46(d)] of its reasons. It said:
In its decision in Re Frugtniet and Secretary, Department of Family and Community Services (2004) 84 ALD 774, which related to an overpayment of social security payments to Mr Frugtniet, the AAT concluded Mr Frugtniet had received an overpayment. The AAT made the following findings about his conduct:
(i) When he first applied for Newstart Allowance on 6 March 1998 the applicant falsely stated in the application form that he had not been studying in the last six months;
(ii) In a form completed by the applicant on 10 March 1998 Mr Frugtniet falsely stated that he was not self-employed or the owner of a business;
(iii) When he commenced paid employment on 27 April 1998 the applicant failed to disclose this to Centrelink;
(iv) Over at least two years the applicant failed to disclose to Centrelink his employment and income;
(v) On forms submitted to Centrelink in April and May 2000 the applicant falsely stated that he was not employed;
(vi) During the period from 22 August 1998 to 6 July 2000 the applicant's actual income was $76,828.66 but he only declared income of $200.
139 In the Newstart Allowance Decision the Tribunal found that Mr Frugtniet had given false answers in the forms he completed as part of his application for the Newstart allowance and failed to subsequently disclose the total income he had received over a two year period. While the Tribunal ultimately found that there had been an overpayment of the Newstart allowance to Mr Frugtniet, it set aside the decision under review because of the respondent's failure to comply with s 11 of the Data-Matching Program (Assistance and Tax) Act 1990 (Cth). It found that the respondent should not have taken any action to recover the overpayment until such time as there was compliance. Because Mr Frugtniet had been successful in the proceeding, he could not appeal the AAT's decision and thus challenge the adverse findings of fact.
140 Mr Frugtniet contends that given his inability to challenge the findings, the Tribunal ought not to have placed reliance on those findings and that it was procedurally unfair for it to do so. However, as with the Tarson Decision, the Tribunal's reliance on the findings in the Newstart Allowance Decision was extremely limited, if at all, given its approach and the finding it expressed at [49] of its reasons. Further, as was the case with the Tarson Decision, the Newstart Allowance Decision was included in the T-Documents, Mr Frugtniet had notice of the fact that it would be in the material before the Tribunal and had the opportunity to address the Tribunal in relation to it.
141 Having regard to the matters set out above, there was ample evidence to support the Tribunal's findings about which Mr Frugtniet complains and no denial of procedural fairness in the Tribunal's reliance on the two matters identified by Mr Frugtniet.
142 Ground 3 is not made out.