Klopper v Hogg C1961] WAR 932

ON APPEAL from the Administrative Appeals Tribunal constituted by Mr R.D. Nicholson

2. The applicant pay the respondent's costs of the appeal.

WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

ON APPEAL from the Administrative Appeals Tribunal constituted by Mr R.D. Nicholson Deputy President

CORAM: Bowen C.J., Forster and Lee JJ. 14 April 1988

This is an appeal from the Administrative Appeals Tribunal ("the Tribunal") constituted by a Deputy President against the Tribunal's refusal to grant an extension of time for

lodging an application to that Tribunal for the review of a

The applicant was and is a professional fisherman engaged in the bluefin tuna fishery. Persons 50 engaged are allotted a quota of fish which they may catch ina particular season. One element in the calculation of the quota is the "best

catch" in a single season. The applicant had allotted him a quota

of 23.782 tonnes of southern bluefin tuna. He applied to the Department of Primary Industry to review the quota allotted to him on bases which it is unnecessary to examine for present purposes. This application was refused by one Core a delegate for the purpose of the Minister of Primary Industry. This refusal was conveyed to the applicant by a letter dated 11 March 1985 from Core which contained the paragraph "If you are not satisfied with this decision you may, subject to the provisions of the Administrative Appeals Tribunal Act 1975, make application to the Administrative Appeals Tribunal in the capital city of your State,

for a review of that decision. Applications should be lodged in

By application dated 9 March 1987 the applicant applied to the Tribunal for an extension of time for lodging an application for review of the decision of which he complains. The ground stated in this application was, "The applicant was not informed of his right to appeal from the decision and has only recently become aware that he had such a right". In view of the explicit paragraph in Core's letter quoted above this reason lacks force as was conceded before the Tribunal and before us by counsel for the applicant. It was submitted to the Tribunal that the applicant misunderstood the extent of his right to have the decision reviewed by the Tribunal and also that he was not in a

financial position to engage a legal practitioner and pursue his

Before going to the grounds of the appeal before us it is necessary ta mention that one of the difficulties about this case is that there is no transcript of the proceedings before the Tribunal, nor have we had the benefit of any notes which may have been made by the learned Deputy President. The lack of a transcript is the basis of one of the grounds of appeal and is of

Pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 ("the Act") the appeal to this Court from the Tribunal

may be only ona matter of law. The objective correctness or

otherwise of the decision is not a matter for us to consider.

The notice of appeal, as amended, recites three questions of law said to be raised on the appeal. Two were deleted at the outset of the hearing before us and the remaining question, question 2(ii) was, "Did the Tribunal err in law in that it based its decision on evidence and submissions which were not

The grounds pleaded in the notice of appeal less two

which were abandoned at the outset of the hearing are as follows :

"(b) The Tribunal erroneously said in its decision that it was argued on behalf of the Respondent that Australia's treaty obligations with Japan and New Zealand would be prejudiced if the Applicant was granted an extension. No such submissions 'were put to the Tribunal by the Respondent.

(c) The Tribunal erroneously said in its decision that it was argued on behalf of the Respondent that if the Applicant was successful then the Southern Blue Fin Tuna Quota presently allocated may need to be redistributed with the consequence that the tonnage allocation of

present quota would have to be reduced. No such submission was put to the Tribunal by the Respondent.

(e) The learned Deputy President erred in law in failing to ensure that a transcript of evidence or notes of evidence were kept or available for the purposes of an appeal."

At the commencement of the hearing two affidavits were tendered and by consent admitted into evidence. One was that of Graeme Adrian Payne sworn on 29 February 1988. He is a legal practitioner who appeared before the Tribunal for the applicant by leave as he was not then a tlegal practitioner. The second affidavit is that of Heather Margaret Riley sworn 2 March 1988.

Miss Riley is a legal practitioner who appeared before the

Tribunal for the respondent. Both deponents give their account of

Mr. Payne's affidavit contains paragraph 25 which is as

"To the best of my knowledge and belief and according to notes that I made at the end of the hearing of the Application, Miss Riley at no time argued that Australia's treaty obligations with Japan and New Zealand would be prejudiced if the Applicant was granted an extension, nor did she argue that if the Applicant was successful then the Southern Blue Fin Tuna Quota presently allocated may need to be redistributed with the consequence that the tonnage allocation of present quota would have to be reduced."

Tt is argued that if 1t be so that it was neither arqued before the Tribunal that treaty ohligations could he prejudiced if the applicant were granted an extension of time and then obtained a further quota, nor that the bluefin tuna quota presently allocated would need to be reduced and if those arguments were taken into account by the learned Deputy President then a denial of matural justice occurred because the applicant had no opportunity of answering the arguments. As to the last point the learned Deputy President commences the last paragraph of his reasons with the words, "It ais the opinion of the Tribunal, having weighed all these matters ...". Counsel for the applicant argued that this indicates that the learned Deputy President has accepted the arguments. We do not agree with this but if the

arguments were not put it is probably enough if he merely

As against Mr. Payne's affidavit Miss Riley swears in

"3, I believe that I did put to the Tribunal the submissions referred to in grounds (b) and (ec) of

the Amended Notice of Appeal, although I have only a vague recollection of actually doing so."

In addition to this vague recollection Miss Riley also deposes that both the matter of the international agreement and the effect on other quota holders were mentioned in facsimile messages sent by the respondent to her instructing solicitors

which messages formed part of her instructions. Copies of these

messages are exhibited to Miss Riley's affidavit from which

ineidently 1t becomes apparent that there was no treaty between Australia, Japan and New Zealand but an "arrangement". We do not think the difference between "treaty" and ""arrangement" is significant for present purposes. Also exhibited to Miss Riley's affidavit 1s a photocopy of her notes for her submission to the Tribunal which contains the following in her handwriting, "If these and other applications succeed tonnage value of unit may have to be reduced defeating the reasonable expectations of other". The topic of the treaty or arrangement was not included in Miss Riley's notes. She swears in her affidavit that her notes were prepared hurriedly and that she did not have time to write

It must not be overlooked that the learned Deputy President in his apparently carefully considered reasons says that both of these questions were argued. Counsel for the applicant speculated that perhaps the learned Deputy President had these grounds put to him in another tuna quota matter concerning a man named Kent which he heard on the same day. Kent's matter, however, was heard after the applicant's matter and was heard by way of a telephone hook-up. The Tribunal's decision to refuse an extension of time to Kent was handed down immediately after the Close of argument. There is some confusion about dates but it

appears that the Tribunal's reasons for decision in the current

matter were handed down some nine days after the hearing.

Tf we are to conclude fhat there has been a denial of

natural justice hecause of the apparent consideration by the

Tribunal of two arguments which 14 is said by the applicant, he

had no opportunity to answer, it will be necessary for the

applicant to discharge the onus upon him of satisfying us that the

arquments were not put to the Tribunal. In view of the learned

Deputy President's specific mention in his reasons that they were

put and in view of Miss Riley's instructions, her notes and her

affidavit, we are unable to he satisfied that the arguments were

not put notwithstanding Mr. Payne's affidavit. There is therefore

no basis for grounds (b) and (c) which must be dismissed.

President erred in law in failing to ensure that a transcript of

evidence or notes of evidence were kept or available for the

purposes of an appeal". The short answer to this ground is' that

no sworn oral evidence was adduced on either the applicant's

behalf or the respondent's behalf as deposed to by Miss Riley.

The only evidence properly so called consisted of documents

although it is certain that counsel on both sides made assertions

to the Tribunal which were treated by the Tribunal in the same way

as evidence is normally treated. Without objection from the

respondent or the Court the argument was however put that the

learned Deputy President should have ensured that a transcript was

made or that "proper"" or "accurate" notes were kept by the

Tribunal of what was said before it by counsel on both sides.

Failure to see that a recording was made for transcription or f u.

proper notes taken is said to have been an error of law on the footing that where a statute under which a Tribunal is established makes provision for an appeal a record of proceedings before the Tribunal should be kept. We should point out that in Supreme Courts and in this Court, although the obligation to take a recording of sworn evidence for transcription could hardly now he doubted, it has never been suggested that there is an equal

obligation to make a recording of counsel's addresses.

No doubt it 1s desirable that all Tribunals from which an appeal may lie should keep a record of what takes place before them. Whether or not there is a legal obligation to do so is

The first thing to note is that the Act does not require that the Tribunal however constituted should keep a record of any

Section 148 of the Justices Act 1902 of Western Australia gives parties interested in a conviction or order made by Justices the right to have a copy of the depositions amongst other things. This plainly imports a duty to keep at least notes of the depositions of witnesses. No such duty express or implied 1s Placed upon the Tribunal by any provision of the Act under

(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal: and

(Db) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the

requirements of the Act and of every other relevant enactment and ai proper

consideration of the matters before the Tribunal permit; and (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." The cases cited by counsel for the applicant; Ex arte Wood (1889) 6 W.N. (N.S.W.) 78; Ex parte Reid (1943) 43 S.R.

N.S.W. 207; Klopper v. Hogq £19611] W.A.R. 92 and Caratti v.

Commissioner of Police (19741 W.A.R. 73 all concern the

obligations of magistrates' courts to keep some record of what takes place before them. Such courts are bound by the statutes which create them and at common law to observe certain formalities and technicalities. The procedure of the Tribunal on the other hand is, subject to the Act and the regulations and any other enactment, within the discretion of the Tribunal. Neither the Act nor any regulation or other enactment provides for the keeping of a yvecord by the Tribunal. In addition the Tribunal''s proceedings shall be conducted "with as little formality and technicality, and

with as much expedition as the requirements ... permit".

This provision as to informality no doubt permits a

hearing ta b# conducted on a telephane nook-up as was the matter

No doubt 1t might be convenient to have a full record of all that occurred before the Tribunal but we are unable to discern in the authorities any positive legal obligation to do so. The failure to do sa whether considered as a breach of natural justice

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment

Solicitors for the Applicant: Frank, Unmack & Cullen

Solicitors for the Respondent: Australian Government Solicitor