(b) preventing the cross examination of Ms M in relation to her evidence that Mr P was not complying with the consent orders?
113 The Tribunal was bound to afford the parties procedural fairness. A denial of procedural fairness is an error of law. Therefore an appeal from a decision of the Tribunal alleging such an error raises a question of law within s 44 of the AAT Act: Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28.
114 Given that the Tribunal was required to afford procedural fairness to Mr P, the relevant questions are what the principles of procedural fairness required in the particular circumstances of the case and whether those requirements were satisfied. Consideration of those questions demands an analysis of the statutory provisions governing the Tribunal's procedure and an evaluation of the procedure that was adopted in the particular circumstances of the case. As the plurality of the High Court said in Assistant Commissioner Condon v Pompano Pty Limited (2013) 295 ALR 638 at [156]:
The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed in the context of administrative decision-making but in terms which have more general and immediate application, "[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice". To observe that procedural fairness is an essential attribute of a court's procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them."
115 The relevant provisions governing the Tribunal's procedure include s 39 of the AAT Act, which relevantly provides as follows:
Opportunity to make submissions concerning evidence
39 (1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
116 The obligation imposed by s 39 is to ensure that every party "is given a reasonable opportunity to present his or her case"; it does not mean that the Tribunal has to ensure that the party takes the "best advantage" of that opportunity: Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], (2000) 60 ALD 737 at 748. In Sullivan v Department of Transport (1978) 20 ALR 323 at 343, Deane J (with whom Fisher J agreed) said that "neither the Act or the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled": see also De Simone v Federal Commissioner of Taxation [2009] FCAFC 181 at [15]; Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26 at [45]; Caporale v Commissioner of Taxation [2012] FCA 86 at [45]; Kolya at [48].
117 In considering what the principles of procedural fairness required in the circumstances of this matter, and whether those requirements were satisfied, it is relevant to have regard to the fact that Mr P was not represented before the Tribunal: Minogue v Human Rights and Equal Opportunities Commission (1999) 84 FCR 438 at [26]-[29]. In Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 Allsop P (as his Honour the Chief Justice then was) made the following observations in the context of the question whether a trial judge denied procedural fairness to an unrepresented litigant:
[6] At the root of procedural fairness is the provision of a fair hearing to a litigant and the basal notion that the litigant has understood the proceedings before him or her and has had an adequate opportunity given to him or her, considering his or her attributes, qualities and deficiencies which render the litigant more or less able to vindicate his or her rights in court. A sharp line between rules and consequences cannot be drawn in this respect. Analogies of the rules of the game and how the game is played may be helpful at one level, but ultimately each circumstance has to be analysed and evaluated to see whether, in a human context, a fair hearing has been provided.
[7] More than a few litigants appear for themselves. Subject to any lawful procedure of a court, that is their right. Their right is to approach the judicial branch of government for the vindication of rights, private and public. This is an essential Constitutional aspect of our society. It is necessary to recognise that however easier it may make it to have the assistance of skilled professional lawyers assisting the court (and if I may respectfully say so, of the character we have had provided to us today) it is the litigant and his or her rights that are the subject of vindication.
[8] Litigants reflect the community in general. They come in a variety of forms. Those who seek to represent themselves may do so for many reasons: lack of funds, inability to obtain assistance, for whatever reason, a personal desire to participate. The reason does not matter. One consequence of people appearing for themselves is that they suffer the dual strain of being both litigant and advocate. All who have undertaken the strain of advocacy understand the strains involved in one task. The combined role must be doubly stressful.
[9] None of the above is to underestimate the ability of some litigants in person and, I emphasise at this point that I am not referring to Mr Jeray, to manipulate the legal system for ulterior motives, often to the great cost and strain of their opponent parties and to the system of justice itself. Litigation almost always has at least two sides and to indulge any whim of a litigant in person in an expensive, stressful and complex undertaking that is litigation is a step that is unwise. To indulge unthinkingly any whim of a litigant in person can cause great hardship to parties who oppose to them.
[10] The balance of fairness, procedural rigour and wise and practical indulgence in managing litigation by a judge is no simple task. Too indulgent an attitude to a litigant in person will unfairly burden the other side. An absence of proper regard for the needs of the litigant in person my cause injustice.
[11] The balance can be a fine one. Sometimes the difference is one of evaluative assessment about which minds can differ. Though the ultimate question of whether a tribunal has afforded procedural fairness is a judgment of the satisfaction of an essential legal and Constitutional standard, it is decided principally by reference to a factual evaluation of a normative consideration of fairness in the judicial process. It is unnecessary to consider further any philosophical or legal consideration as to the character of the judgment or evaluation involved.
[12] It is of course necessary to have regard not to what a judge might advisedly do best to exemplify judicial practice, but rather the question is what a judge must do to provide a fair hearing and equal justice.
118 On this appeal, Mr P relied on an affidavit sworn by him which annexed correspondence between himself, the Registrar's legal representative and the Tribunal in the period leading up to the hearing. The transcript of a directions hearing before the Tribunal was also in evidence. In his correspondence with the Registrar and the Tribunal, Mr P detailed his understanding of the requirements of procedural fairness, raised a number of issues relating to the fairness of aspects of the Tribunal's procedures, complained about the conduct of a directions hearing, referred to the Registrar's obligations as a model litigant, contended that the Registrar was not complying with those obligations and sought an adjournment of the hearing until the Registrar explained "exactly the legislation or policy that assists the Tribunal to determine care without considering nights so that the applicant might prepare his case." The adjournment application was refused.
119 It is unnecessary to recite in any detail all of the various allegations and contentions made in Mr P's correspondence, or the surrounding facts and circumstances relevant to those allegations. That is because ultimately Mr P's case on appeal that he was denied procedural fairness rests essentially on only two contentions. The first contention is that he was not given a reasonable opportunity to present his case and make submissions because the Tribunal refused or failed to explain the approach that would be used to determine his percentage of care. The second contention is that the Tribunal prevented him from cross-examining Ms M in relation to her evidence that Mr P was not complying with the consent orders.
120 Neither contention has any merit. Mr P was not denied procedural fairness by the Tribunal. He was, in all circumstances, provided a fair hearing and equal justice.
121 The background to Mr P's contention that the Tribunal was obliged to, but did not, explain to him the approach that would be used to determine the percentage of care begins with the judgment of Buchanan J. In his judgment, Buchanan J expressed doubts about, but did not decide, whether in determining actual care the Registrar, (or the Tribunal standing in the Registrar's shoes) was required to apply the methodology in s 54A of the Act.
122 On this point, Buchanan J said (at [11]):
To this point, the parties have argued their respective cases on the basis that decisions should be made as to who had the care of C on the nights he spent at St Joseph's College. It was agreed that C was in the care of the applicant or the second respondent on each of the 82 nights of the year that C spent with one or the other, and there is no basis to doubt or disturb that common position. It appears to have been assumed that it is also either necessary or appropriate for the 201 nights that C spends at St Joseph's College to be attributed somehow to, or between, the applicant and/or the second respondent. That assumption, in my respectful view, is much less sound. I shall return to it after I have exposed in a little more detail the way in which the parties argued their position before the AAT and the view which the SSAT and the AAT took of their arguments.
123 Following the remittal of the matter to the Tribunal, Mr P wrote to the Tribunal requesting information about the "key issues" so as to address his "lack of understanding of how the matter would progress". A directions hearing was in due course held. It appears that the Registrar's solicitor appeared in person whereas Mr P appeared by telephone. That directions hearing was unsatisfactory as far as Mr P was concerned. He subsequently complained about the fact that only he appeared by telephone. He also complained about other aspects of the conduct of the senior member who conducted the directions hearing (who was not the same member who ultimately heard the matter). It is unnecessary to explore the various complaints about the directions hearing. They do not directly relate to the alleged denial of procedural fairness ultimately pursued by Mr P on this appeal. In any event, even if substantiated, these complaints would not establish a denial of procedural fairness given what occurred subsequent to the directions hearing.
124 One important matter that did emerge from the directions hearing was that, given Mr P's contention that he did not understand the key issues or the way in which the matter would progress in the Tribunal, the Registrar was directed to file an SFIC first, before Mr P was required to file his SFIC. This the Registrar did. Ordinarily an applicant in the Tribunal files a SFIC before a respondent.
125 The Registrar's SFIC set out, in relatively short, simple and understandable terms, the relevant background to the proceedings, the relevant legislative provisions, the facts that the Registrar considered relevant, the issues before the Tribunal and the Registrar's contentions in relation to the facts and issues. It included the following paragraphs in relation to the possible approaches that the Tribunal could take to determine the percentage of care:
28. An analysis of the relevant provisions of the Assessment Act, the FCA Judgment and The Guide suggest three possible options. They are that the AAT may determine each parent's percentage of care (with respect to [Master C]) under s 50(2) of the Assessment Act by:
28.1 Option A: utilising s 54A(1) to determine actual care by reference to the number of nights [Master C] is in the care of each parent, including by attributing nights spent at boarding school to either one parent or the other (or, subject to s 54A(3), both);
28.2 Option B: utilising s 54A(1) to determine actual care by reference to the number of nights [Master C] is in the care of each parent, without attributing nights spent at boarding school to either parent; or
28.3 Option C: determining actual care other than by reference to the number of nights [Master C] is in the care of each parent.
29. Each of these possibilities was alluded to, and expressly left open, by Buchanan J. For example, his Honour:
29.1 described as "much less sound" the assumption that the it [sic] was "necessary or appropriate" for the nights that [Master C] spends at St Joseph's College "to be attributed somehow to, or between, the applicant and/or the second respondent" (FCA Judgment at [11], see also at [13] and [14]);
29.2 stated that it was "not clear…that is necessary under the Act to actually assign the period, or days within it, to one parent or the other" (at [31]); and
29.3 referred, with apparent approval, to the statements in The Guide concerning the approach the Registrar may take in determining actual care, or might take if actual care cannot be determined (at [33]).
30. No particular approach is mandated by either the FCA Judgment or The Guide. Ultimately, it is a matter for the AAT to determine the preferable decision based on the dictates of good administration and individualised justice (even if that means departing from government policy, including The Guide). And although, in making its determination, the AAT is required to take account of the facts set out at pars 8-11 above - the weight to be placed on each fact is a matter for the AAT alone.
126 The Registrar contended that Option C was the appropriate course: Paragraphs 36 and 37 of the Registrar's SFIC clearly set out the Registrar's contentions in that regard:
36. That leaves Option C, which the Registrar contends is the preferable course, because it permits percentages of care to be determined, directly under s 50 and without recourse to s 54A(1), by assessing actual care other than by reference to the number of nights [Master C] spends with each parent (thus avoiding the somewhat artificial task of attempting to assign nights at boarding school to either or both parents).
37. If Option C is adopted by the AAT then, in the present case, where it is no longer in dispute that actual care is divided equally between the applicant and second respondent outside of boarding school periods, and that each parent retains "equal shared parental responsibility" for [Master C], including during periods at which he is at boarding school, the preferable decision is that each parent's percentage of care for [Master C] should be set at 50%.
127 The Registrar's explanation of the relevant legislation and policy and his contentions concerning how the Tribunal should approach the determination of care in the matter did not satisfy Mr P. Instead, it unleashed a further series of emails in which Mr P demanded, amongst other things, further explanation of "how the percentage of care will be determined without reference to nights". That was a reference to the Registrar's preferred position that care should be determined in this matter without recourse to s 54A. Mr P's demands are typified in an email of 24 April 2013 from Mr P to the Tribunal in which Mr P said:
Again, it the Tribunal is not willing to provide an adjournment; natural justice and procedural fairness dictate that the Tribunal have the Child Support Registrar (Registrar) explain exactly the legislation or policy that assists the Tribunal to determine "care without considering nights" so that the Applicant might prepare his case. The smoke and mirror approach currently being adopted by the Registrar might be acceptable in the traditional adversarial proceedings, not in this case with an unrepresented Applicant, the father, presenting his case against three legally qualified solicitors.
128 Mr P's professed lack of understanding about how the Tribunal might determine the percentage of care and his professed inability to prepare his case in this respect must be considered in light of the fact that on 10 April 2013 Mr P filed a 58 page SFIC. Amongst other things, Mr P's SFIC contained detailed contentions and submissions in relation to the Act, the Guide and the approach that the Tribunal should take in determining care. In it, Mr P contended, in effect, that the Tribunal should not accept the Registrar's preferred approach because that approach would be contrary to law (including that it would result in the same error found by Buchanan J in the first appeal proceeding) and contrary to the policy set out in the Guide.
129 A fair reading of Mr P's SFIC reveals that Mr P clearly understood and was responding to the critical issues for determination by the Tribunal. Mr P's contention that he did not understand how the Tribunal might approach the determination of care and was unable to properly present his case was, and is, disingenuous and must be rejected.
130 The same conclusion is reached when regard is had to the transcript of the hearing before the Tribunal. Whilst Mr P repeatedly claimed that he needed assistance and did not understand the issues, it is tolerably clear from the way he conducted himself during the hearing that he well-knew what the important issues for determination were.
131 Mr P relies on the well-known decision of the Full Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. At 591-592 of the judgment, the Full Court said:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from is nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
132 The difficulty for Mr P, is that his SFIC and the record of the Tribunal proceedings generally reveals that he was well aware of all issues critical to the decision which were not otherwise apparent from the nature or terms of the Act. The Registrar's SFIC clearly identified the key issues. Whilst the Tribunal ultimately reached conclusions adverse to Mr P, those conclusions were potentially open given the known material. Given the way Mr P conducted himself before and during the hearing, it is clear that he was aware of this. The Tribunal was not obliged to expose its mental processes or provisional views to comment by Mr P before making its decision. In any event, it is clear that during the course of the hearing the Tribunal did expose its thinking in a way that enabled Mr P to respond accordingly.
133 The second contention that forms the basis of Mr P's claim that he was denied procedural fairness concerns Ms M's evidence, given during cross-examination by Mr P, that she did not believe that Mr P was complying with the consent orders. That evidence is extracted earlier in this judgment ([19] above).
134 The following appears in the transcript after Ms M gave this evidence:
SENIOR MEMBER: Ms [M], stop.
MR [P]: At no point was that question asked of any one - of either one of us at the AAT, and it was a - and Buchanan J didn't test it, he assumed that the AAT ---
SENIOR MEMBER: I want you to stop now.
MR [P]: Sorry.
SENIOR MEMBER: All I can do is leave that to your submissions. It's there, all right? Go on please, any other questions?
135 When this exchange is considered in the context of the case Mr P was advancing in the Tribunal, the issues the Tribunal was required to decide and the conduct of the hearing generally, it is not surprising that the Tribunal appears to have put a stop to Ms M's evidence and Mr P's line of questioning in relation to compliance with the consent orders.
136 As indicated earlier, Mr P had not contended in his SFIC that the consent orders were not being complied with, let alone that he was not complying with them. His only contention was that there was an apparent inconsistency between orders 4 and 7 in relation to where Master C was to reside. Given Mr P's concession that Master C's time outside boarding school was split between his parents, that technical argument was immaterial. Mr P's case before the Tribunal focused on Master C's time at boarding school and his contention that he paid the school fees. Ms M's belief that Mr P was not complying with the orders in some way was largely irrelevant to that issue.
137 The likely irrelevance of any further evidence that could have been elicited from Ms M on this topic is demonstrated by what occurred earlier in the cross-examination of Ms M. Mr P had been cross-examining Ms M about matters that could only be regarded as trivial, such as whether Ms M had on occasion inappropriately held onto Master C's clothes. He also began to question Ms M about the proceedings that had been commenced in the Federal Magistrates Court alleging non-compliance with the consent orders. There was evidence before the Tribunal to the effect that those proceedings had been withdrawn by consent. There was, not surprisingly, an objection to the relevance of this line of questioning by both the Registrar and Ms M. It is equally not surprising that the presiding senior member was reluctant to allow the proceedings to descend into an examination of trivial matters that were the subject of the withdrawn Federal Magistrates Court proceedings. It is in that context that the exchange relied on by Mr P must be considered.
138 Three other matters should also be noted. First, the transcript records that Mr P said that he agreed with Ms M. In these circumstances it is difficult to see what relevant questions Mr P would have advanced had he been permitted to pursue the cross-examination.
139 Second, and perhaps more significantly, after he had asked Ms M and Mr P to stop dealing with this topic, the senior member indicated that the issue should be left to submissions. Mr P made no submissions on the issue of non-compliance with the consent orders. Given the case he was advancing before the Tribunal that is not surprising. It again demonstrates that any evidence that Mr P may have elicited from Ms M on this topic was likely to be irrelevant.
140 Third, one can perhaps sense a note of exasperation on the part of the Tribunal by this stage of the proceeding. When read in the context of the conduct of the hearing up to this point, that is perhaps understandable. It would perhaps have been prudent for the senior member to at least further inquire of Mr P why he contended that the evidence of Ms M that she believed that Mr P was not complying with the orders was relevant to his case. However, given the way Mr P had conducted his case before the Tribunal up to this point, as well as the earlier exchange in relation to non-compliance with the consent orders, the fact that the senior member did not do this is not a material defect in the conduct of the hearing.
141 Mr P was not denied procedural fairness as a result of not being permitted to pursue what was, in the context of the issues and contentions before the Tribunal, almost certainly an irrelevant line of questioning. There was no practical injustice. Even if this did, in some way, amount to a denial of procedural fairness, I am not in any event persuaded that this could have made any difference or had any bearing on the application: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [32]-[38]; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Review Tribunal Ex parte Aala (2000) 204 CLR 82 at 116-117.
142 In rejecting Mr P's contention that he was denied procedural fairness, due regard has been given to the fact that he was unrepresented before the Tribunal. A fair reading of the record of the Tribunal's conduct of the review reveals that the Tribunal acted, as best it could, to diminish any disadvantage that Mr P may have had as an unrepresented applicant: cf. Rajski v Scitec Corporation Pty Ltd (unreported, NSW Court of Appeal, 16 June 1986) at [14] and [27]). The Tribunal was assisted in that regard by the Registrar, through the Registrar's legal representative. Mr P's assertions, in his correspondence with the Tribunal, that the Registrar acted otherwise than as a model litigant, or otherwise than in accordance with s 33(1AA) of the AAT Act were, and are, without substance.