Linfox Australia v Hilbert [2025] FCA 1213

Did the Tribunal deny the Applicant procedural fairness, as required by s 39(1) [Administrative Appeals Tribunal Act 1975 (Cth)], and/or by reference to common law principles, by failing to give the Applicant a reasonable opportunity to inspect and make submissions about a document that the [Tribunal] found itself and proposed to have regard to?

1. Linfox contends that it "was never notified of the Tribunal's research and was never given the opportunity to inspect the article and to present evidence and/or submissions in relation to the article". It maintains that the "Tribunal had, or may have had, regard to the article in a manner adverse to [Linfox]" in making the decision as demonstrated by the Tribunal's reasoning process, and that doing so "affected the Tribunal's decision". This is said to have involved a denial of procedural fairness, constituting an error law.
2. Mr Hilbert now concedes, prior to the hearing of the appeal, that the first question raised by Linfox in the notice of appeal is to be answered in the affirmative and that the appeal should therefore be allowed. He does so in the form of certain "Notes" appended by the parties to consent orders which they have promoted. Mr Hilbert concedes that the Tribunal had or may have had regard to the article in a manner which was adverse to Linfox. He concedes also that Linfox was not notified of the Tribunal's research and was not given an opportunity to inspect the article and to present evidence or submissions in relation to it, and that this constitutes a denial of procedural fairness on the part of the Tribunal and an error of law.
3. Mr Hilbert must also be taken to concede that the denial of procedural fairness was material in that there is at least a realistic possibility that it affected the Tribunal's decision. That is because, absent such a possibility, there would be no basis for the court to grant the relief now sought by Linfox: see, for example, Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 78 (Colvin, Anderson and Owens JJ).
4. The consent orders which the parties propose provide for relief to be granted where a material error of law on the part of the Tribunal is conceded. However, the court must itself be satisfied of the alleged error and the appropriateness of exercising its jurisdiction to grant the relief sought by the parties, even where the proper contradictor consents to that relief: HSCK v Minister for Immigration and Multicultural Affairs [2025] FCAFC 17 at [7] (Stewart, McElwaine and McEvoy JJ) citing Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [11]- [12] (French J), approved in Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574 at [13]- [15] (Downes, Greenwood and Tracey JJ), and VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3] (Colvin J).
5. Having reviewed the Tribunal's reasons, the notice of appeal and the proposed orders and accompanying notes provided by the parties, I am satisfied that the Tribunal failed to provide Linfox with a reasonable opportunity to inspect and make submissions about the article in accordance with the requirements of s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth), as to which see Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482 at [70] (Dowsett, Murphy and White JJ). I am satisfied that the Tribunal proposed to have regard to the article, and that it did so in a manner which would appear from its reasons to have been adverse to Linfox in relation to an evidentiary issue which was of primary importance to the question for determination.
6. I accept therefore that the Tribunal denied procedural fairness to Linfox in a manner which deprived Linfox of a realistic possibility of a different outcome. This was an error of law and the appeal should be allowed. In these circumstances there will be orders allowing the appeal, setting aside the Tribunal's decision, and remitting the matter to the Administrative Review Tribunal to be determined according to law. As the parties are agreed that there should be no order as to costs, no order will be made.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy .