CONSIDERATION
58 In addition to the affidavit accompanying the notice of appeal, the applicant filed a document entitled "Submission" which covered the same ground as the affidavit and was in large part identically worded.
59 The applicant argued his case on appeal for the production of documents as if it were a rerun of the application before the AAT. He made no attempt to point to a question of law arising from the consideration by the AAT of his claim for production of the documents. That is perhaps not surprising as the applicant was not legally represented and apparently did not understand that the particular jurisdiction of the Court was limited by s 44(1) of the AAT Act.
60 There is an open question whether a ruling in respect of the production of documents is a decision for the purpose of s 44(1) of the AAT Act: Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 241, at [29]. For present purposes it will be assumed that the conclusions of the AAT made at the directions hearing on 25 June 2014 in relation to the production of different categories of documents were each such a decision.
61 The list of documents claimed by the applicant in the course of the appeal was somewhat more limited than the list of documents sought by him before the AAT. However, the documents now claimed were also claimed before the AAT. The documents now claimed mostly related to the applicant's employment with Port Link and KNM Transport. In the 25 June 2014 directions hearing, the AAT determined that the respondents had provided all of the relevant documents which they had relating to those subjects. The applicant did not suggest that the AAT was wrong in its conclusions. There is no basis for contending that the AAT made any error in the conclusions it reached.
62 Even if the AAT had made a mistake in its assessment, the mistake would not raise any question of law. The decisions of the AAT in respect of documents were discretionary decisions. The extent to which such decisions might be questioned on appeal is limited by the principles established in House v The King [1936] HCA 40; 55 CLR 499 at 504:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The applicant did not point to any error in the AAT's reasoning which invoked these principles.
63 A question of law may have arisen if the AAT had failed to accord the applicant procedural fairness in the resolution of the claim for production of documents. No such allegation was made and nothing in the transcript of the directions hearing provides any basis for such a suggestion. The AAT referred to each of the documents or categories claimed and then heard the submissions from each party relating to the claim for production of those categories or documents. The AAT then determined the argument separately for each of the categories or documents. In many instances the AAT explained to the applicant the process to be followed at the hearing and how any deficiency in the documentary proofs provided by the respondents would mean that the respondents would not succeed. The AAT also explained that it could compel witnesses to attend to give evidence on behalf of the applicant if he asked the AAT to do so and provided reasons for the exercise of that power. In those ways the AAT provided the applicant with assistance appropriate to his situation as a lay person conducting his defence in a legal proceeding without a lawyer.
64 In these circumstances no question of law arises from the decision of the AAT made at the directions hearing in respect of the production of documents.
65 The second central complaint of the applicant is that the AAT did not accept his evidence but rather accepted the evidence of the respondents. In his affidavit and submission the applicant identified multiple passages in the transcript of the hearing before the AAT containing evidence or submissions which he contends should have been accepted. The passages referred to include the following: T8 lines 30 - 40; T130; T131; T136 lines 26 - 45; T137; T10 line 9 to 17; T4 lines 35 to 45; T5 lines 1 to 47; T6 lines 1 to 42; T7 lines 20 to 47; T116 lines 37 to 44; T145 lines 24 to 47; T146 lines 16 to 23; T138 lines 31 to 47; T139 lines 1 to 27; T86 line 37 to 47; T133 line 1 to 21; T116 lines 41 to 43; T137; T3 lines 1 to 41; T19 lines 28 to 33; T22 lines 25 to 46.
66 Most of these passages reflect the applicant's contention that he did not work for Port Link in the 1995-96 income year, and that he did notify Centrelink that he was employed by KNM Transport.
67 By way of example, the applicant relied on the following passage at T138 concerning notification of Centrelink:
MR MLADENOV: Now, the Centrelink was not fair, I say again, and that's why on three attempts when notify Centrelink no one done it and still continue coming the money. You say why not return the money I said I don't care. I say even now I don't care. Somebody give me the money I take it. Why not? I no stealing, I take it, and was taking. Then on 9 January they stopped 2004. Now, I didn't argue why they stop. I only argue - most of my argument towards the - with the Centrelink for '95/'96 and again KNM Transport, South Kingsville. When I notify them and I said I been asked that I ring. I spoke with somebody on the phone and he arranged me appointment to go see him in the office, Neil Carroll, authority review officer from previous case, and I told him the same things. If I go back by the transcript 2006-8 or so on when I've been asked question exactly the same I been told, which is true.
If the tribunal not accept this, that's fine, I cannot argue. Maybe somebody else can help. But I said I notified them three times and after that I don't care.
68 In relation to his contention that he did not work in 1995-96, by way of example, the applicant relied on the following passage:
MR MLADENOV: … they're saying I was employed - sorry I raised my voice - I was employed '95/'96, that financial year, and I claim in '96, but which is not true. I didn't work one second.
SENIOR MEMBER: Yes. Well, that's something different. We'll deal with that. Yes. Okay.
MR MLADENOV: I want to prove it because I have been working '94/'95. Yes. And I injury myself, '95 in January. Since January '95, 13 January '95, I didn't was working until September '96, 12 September I believe it was that when I tried to do something.
69 Again, the applicant attempted to reargue the merits of the case on appeal. He did not articulate any question of law to be determined. He simply contended that the AAT should have found for him on the facts. In an appeal under s 44(1) of the AAT Act the jurisdiction of the Court is limited to resolving questions of law. As Brennan J said in Waterford v The Commonwealth [1987] HCA 25; 163 CLR 54 at 77:
A finding by the A.A.T. on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the A.A.T. Act confers on a party to a proceeding before the A.A.T. a right of appeal to the Federal Court of Australia "from any decision of the Tribunal in that proceeding" but only "on a question of law". The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. ...
70 In his affidavit and written submission, the applicant says that the AAT was not interested in or did not care about his evidence. In [16] of his affidavit he stated:
If can be read all transcript, and will be see that error of law from a Tribunal, on my relevant evidence, the Tribunal is not interest or don't care, but from respondent on same evidence Tribunal care and accepted.
71 The transcript references provided by the applicant in his affidavit, for example those listed in [65] above, mainly referred to evidence on the two issues referred to in [66] above, namely the applicant's contentions that he did not work for Port Link in the 1995-96 income year, and that he did notify Centrelink that he was employed by KNM Transport. In several instances the references were to passages in which the AAT ruled certain evidence was irrelevant, or where the AAT accepted the respondents' evidence rather than the applicant's. If the applicant's complaint alleged a denial of procedural fairness, that complaint would have raised a question of law. But, in context the submission by the applicant that the AAT 'was not interested in or did not care about his evidence' particularised the failure of the AAT to accept the defence which the applicant mounted. In any event, no allegation of a denial of procedural fairness could be sustained. The AAT listened to the evidence given by the applicant and raised issues arising from other evidence where it contradicted the evidence given by the applicant in order to give him an opportunity to respond to the other evidence.
72 As the applicant has not identified any question of law to be resolved by the Court, the Court does not have jurisdiction and the purported appeal is incompetent.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.