Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 8, 26, 82

Administrative Appeals Tribunal Act 1975 (Cth) s 33

Cases cited: Casey v Repatriation Commission (1995) 60 FCR 510

Corke v Corke and Cook [1958] P 93

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

Re Tarrant and Australian Securities and Investments Commission [2013] AATA 926

List of

Texts/Papers cited: J D Heydon AC, Lexis Nexis, Cross on Evidence (at 3 August 2017)

Hon Justice Duncan Kerr, "Keeping the AAT from becoming a court", paper delivered to AIAL (NSW) Seminar, 27 August 2013

1. The appeal is dismissed.
2. Mr Sarbandi is to pay Mr Sharif the sum of $2,000.00 within 28 days of the date of these orders.

1. Amir Sarbandi has appealed against orders made by the ACT Civil and Administrative Tribunal (the original Tribunal) on 2 February 2017 that he pay Ali Sharif the sum of $2,000.00 within 28 days of the date of the orders.
2. In his application for appeal filed in the Tribunal registry on 27 February 2017, Mr Sarbandi stated the following reasons for appeal:

I do not owe Mr Ali Tofigh Sharif any money and He could not have any evidence for any money is owed to him as he is claming and I am shoked by the desision mad on 2-2-17 for to pay Him the money. I realy want to review this matter again and do the right thing please. (Errors in original)

1. Mr Sarbandi asked that the order be set aside "for now till this matter be hear[d] again."
2. At a directions hearing on 7 March 2017, the appeal Tribunal made procedural orders for the hearing of the appeal on 20 April 2017. Those Orders were varied on 13 March 2017 to change the dates. The date for the hearing was varied to accommodate Mr Sarbandi's overseas travel.
3. The orders were to the effect that:
   • (a) the appeal will be dealt with as a review of the decision of the original Tribunal;
   • (b) Mr Sarbandi was to order a transcript of the hearing on 2 February 2017 and provide the transcript and a written outline of his submissions (including what errors of fact or law he submits the original Tribunal made) no later than 14 July 2017;
   • (c) Mr Sharif would provide a written outline of his submissions by 21 July 2017;
   • (d) the appeal would be heard on 28 July 2017.
4. Mr Sarbandi did not provide a written outline of his submissions by 14 July 2017. Rather, he contacted the Tribunal by email on 17 July 2017 stating that he had recently returned to Australia and did not have access to his Internet and email services until 15 July 2017. He sought an extension of time to provide his submission. Mr Sharif opposed a further extension of time, and suggested that, if an extension was granted, he might need more than one week to prepare a response. No extension was granted. Rather Mr Sarbandi was advised to file his material as soon as possible. The parties were requested to use their best endeavours to ensure that the matter stayed on track.
5. On 20 July 2017, Mr Sarbandi sent the Tribunal an email on the subject "Transcript and my response." It stated:

Hi , I have hi light the few issues that I like you to look at before the hearing , The witness keep saying he is not a witness and he didn't see it and the time he is talking about at some point he say July and somewhere else he says October, And how ever she is turning that witness to become a pice of evidence but he is not giving any strong worlds that she can rely on but still at the end she is making a decision on that , Nothing on the massage, He didn't tel any one exactly at that time when it happened according to him ( why ???) , The witness only be came aware of this when he needed som assistance for legal aid , And at the end there is not evidence at all , why is she making me pay money ? (Errors in original)

1. From that statement and his statements at the hearing of the appeal, I understand "the witness" to be Mr Shayan and that Mr Sarbandi contends, in essence, that:
   • (a) the original Tribunal should not have relied on the oral evidence of Mr Shayan when deciding the case; and
   • (b) there was no evidence to support the orders made by the original Tribunal.

The conduct of the hearing before the original Tribunal

1. The hearing before the original Tribunal lasted about one hour. Evidence was given by Mr Shayan (who also was sworn to interpret evidence of Mr Sharif), then by Mr Sharif and Mr Sarbandi.

1. In summary, Mr Sharif said that he did painting and plastering work for Mr Sarbandi. He was paid $1,000.00 (of $1,350.00 owed to him) at a "petrol station close to my house." Mr Sarbandi told Mr Sharif he would take the additional money to him.
2. Subsequently, in late June or early July 2014,[1] they went to the Star Casino in Sydney for a one-day holiday. Mr Sarbandi lost money there and could not get more money from the ATM. Mr Sarbandi asked Mr Sharif for $1,000.00 which he said he would repay the next day. Mr Sharif apparently had about $1,650.00 in cash at that time. He gave Mr Sarbandi $1,000.00 which Mr Sarbandi lost at the casino. Mr Sarbandi asked Mr Sharif if he had some more money. Mr Sharif said he had $650.00 and Mr Sarbandi told Mr Sharif to give it to him. Again that money was lost. Later that evening, Mr Sarbandi told Mr Sharif that he would repay Mr Sharif the $1,650.00 borrowed at the casino and pay $350.00 for the work done by Mr Sharif (altogether $2,000.00) one week or 10 days later.
3. After they returned to Canberra, Mr Sharif:

make problem for one job with me and him and he [Mr Sarbandi] upset with me and too many texts back to me and me ask him, "Please give me my money. I want to fix my credit card with my landlord" because my landlord gave credit card to me some time for the money. He told me, "I give this credit card to give to you. If some time you need money and you don't have the money (indistinct) my credit card to you" and I said, "No problem." You can ask my landlord. Then after the credit card is closed my landlord told me, "Ali, please fix a credit card, my credit card" and me, "Okay, no problem." I text at him, "Please give my money back. I want to fix my credit card with my landlord and for my rent and already two months of my bill for my mobile is left. [2] (Errors in original)

1. Mr Sharif showed the original Tribunal a series of text messages on his mobile phone on 10 July 2014 asking Mr Sarbandi to pay the money so that he could fix his credit card with his landlord and pay rent, and Mr Sarbandi replying "Stop texting to me. I don't want to see you again and which money?" Mr Sharif replied "It's $2,000." There were further responses from Mr Sarbandi, some of them apparently in rude or coarse language.
2. Mr Sharif explained the absence of documentation about the amounts owing in the following terms:

It is part of our culture actually. ... It's a part of our culture because we made a friendship with someone there is just no, no, it's nothing. It will just be all right as a friend, you know? [3]

1. Mr Sharif said that he had no witnesses who know that he is owed money by, or that he loaned money to, Mr Sarbandi.[4]

1. Mr Shayan said that he had known Mr Sharif for about one and a half years. He was not a witness to the alleged events, but said that Mr Sharif told him that he lent Mr Sarbandi $1,000.00 at the casino in Sydney after Mr Sarbandi lost some money there. Mr Sharif also told Mr Shayan that Mr Sarbandi owed him an unspecified sum of money for building work.[5]
2. Mr Sharif spoke of both events in a conversation with Mr Shayan in about July or October 2016, before Mr Sharif consulted a lawyer. Mr Shayan clearly stated that he was not a witness to the alleged events. Rather, he said, Mr Sharif "told me about this story and the things I know but I have no idea and I have no evidence for this."[6]

1. In summary, Mr Sarbandi's evidence was that Mr Sharif did some work for him at an hourly rate (which was varied depending on the job) and he was paid every week so that "nothing was outstanding."[7] Although he is a licensed builder with an ABN, Mr Sarbandi had no documents to show how Mr Sharif was paid for each job. Rather, "he was cash on the spot. ... That's what he agreed as many hours he did for me on the spot I was paying cash."[8] Mr Sarbandi acknowledged there was no documentary record of having paid Mr Sharif.[9]
2. The following exchange took place between the original Tribunal and Mr Sarbandi:

PRESIDENT DANIEL: All right. So what was the method that you used to use? I'm trying to search for evidence that you had. There must be evidence that you paid Mr Sharif for his last job.

MR SARBANDI: I don't see a reason to explanation of no complaint. There is no complaint about the previous jobs, okay, so I shouldn't be explanation either.

PRESIDENT DANIEL: But as a businessman and a builder you would keep your own records, wouldn't you?

PRESIDENT DANIEL: So you don't keep a record of what you pay the labourers?

MR SARBANDI: I would love to make a statement. I hand it to my accountant and take a load off my tax. He was with me yesterday, my accountant, and we are crying and dying for such a statement that he was getting paid from me any time, any time.

PRESIDENT DANIEL: But you never documented any payments?

MR SARBANDI: Unfortunately. That was my way.[10]

1. It was apparent that Mr Sharif and Mr Sarbandi had been friends for some years. Mr Sarbandi said they "had a social life together." Mr Sharif would come to his house "all the time" and would stay at his house "sometimes."[11] Mr Sarbandi said that he assisted Mr Sharif at various times to get started in Australia after he arrived in about 2013, but eventually Mr Sharif's expectations were "getting a bit too high" and he was not worth the price he wanted to be paid to work, so Mr Sarbandi did not want to keep him on.[12]
2. Mr Sarbandi recalled the trip to Sydney with Mr Sharif but said he could not remember exactly when or for what reason or how they went to the Star Casino. Mr Sarbandi said that he paid for petrol, restaurants and hotels and said that he does not need Mr Sharif's money. He continued:

If there was any money owing to him it would be paid on the spot at that time. I don't need anyone's money. I do have enough money for myself. I don't need his money. There is nothing to hide ... from a situation that I don't want to say I went to the casino. I'll probably say I'll go to the casino if I need to go to the casino. If I go to the casino is nothing wrong with that.[13]

1. According to Mr Sarbandi, there was no conversation around the time of the trip to the casino about money owing.[14]
2. When asked if he could explain the quite elaborate story put by Mr Sharif, Mr Sarbandi suggested that Mr Sharif was "bonded to me a lot. He was bonded to me big time. He was relying on me and working with me for many years."[15]
3. Mr Sarbandi said that Mr Sharif "got sacked from me for his attitude reason and he got just upset he just made this a story. It's as simple as that." It appears that Mr Sharif was sacked immediately before Mr Sarbandi received communications from a lawyer engaged by Mr Sharif.[16] It also appears that Mr Sarbandi did not advise Mr Sharif that his services were no longer required but did not give him any more jobs and Mr Sarbandi did not continue working with him.[17]
4. When asked by the original Tribunal whether there were any questions he would like the original Tribunal to ask Mr Sharif and Mr Shayan on his behalf, Mr Sarbandi said "No." He was then asked whether there was anything that he could think of that had been said that he could explore and show that it is wrong. He replied "No."[18]

1. Having heard from both parties, the original Tribunal delivered oral reasons for ordering Mr Sarbandi to pay Mr Sharif the sum of $2,000.00 (comprising $1,650.00 that Mr Sharif lent to Mr Sarbandi at the casino, and $350.00 owed to Mr Sharif for work done by Mr Sharif). The original Tribunal did not award Mr Sharif's filing fee of $70.00.
2. The original Tribunal expressly noted that, while the Tribunal had had the opportunity to hear from both sides, it was "unfortunate that neither side of this dispute had documentation, contemporaneous documentation, that is invoices, bills or even a piece of paper saying, 'I agree I owe you money'. [19]
3. The original Tribunal noted the benefits of documenting legal arrangements in relation to such things as loans, and the consequences of not doing so including "the risk that you will not be believed." [20]
4. The original Tribunal described the evidence from both sides as "diametrically opposed." The Tribunal noted that both parties swore on the Quran to tell the truth, and that "both versions of events were potentially realistic." Neither of them was "inherently unbelievable." [21]
5. The original Tribunal continued:

I did feel that the applicant [Mr Sharif] appeared to be more credible and the applicant's version of events did tie in with the text message that he sent which was in evidence in the proceedings requesting that the money be paid.

On many occasions when the respondent [Mr Sarbandi] was asked questions his memory was unreliable. He appeared to be unwilling to explore the issues and satisfy the tribunal and in a sense, resentful that he had been brought to the tribunal. I can understand that sense of resentment but if you do not document how much you are obliged to pay somebody and that you have in fact paid them then this is the risk you are exposed to.[22]

1. The original Tribunal noted that it is "very rare" for the Tribunal to have to decide a matter on the basis of witness credibility. In this case, the Tribunal was willing to express an opinion as to credibility. The Tribunal preferred the evidence of the applicant, described as "a more credible witness."
2. By contrast, the original Tribunal found it "not comprehensible" for the respondent not to be in a position to demonstrate that wages had been paid for work that was done. He is an experienced registered builder and who has been in Australia 21 years, yet apparently his approach was to pay cash and not document his affairs.
3. The original Tribunal was not persuaded by Mr Sarbandi's contention that the claim was malicious and brought because he ceased to use Mr Sharif for labour because of the quality of Mr Sharif's work. The original Tribunal found there was never an incident where Mr Sharif was told he was not going to be used, and it seemed "unbelievable" that just because Mr Sarbandi was overseas Mr Sharif would have come up with an idea that he was owed money and then consulted a lawyer about the matter.
4. The original Tribunal was satisfied that the trip to the casino happened, the money was lent as described by Mr Sharif and has not been repaid by Mr Sarbandi, and that there was $350.00 owing for work.
5. Although Mr Sharif was successful, the original Tribunal did not award him his $70.00 filing fee. That decision was made on the basis that Mr Sharif was "also partly to blame" for the fact that he had to come to the Tribunal. In relation to the amount unpaid for his work, the original Tribunal stated that Mr Sharif should have had some sort of documentation (such as an email or text message) for work he does for somebody else.

1. At the hearing of his appeal, Mr Sarbandi expanded upon his written submission quoted at [7] above. He submitted that:
   • (a) Mr Sharif's claim and evidence was not true;
   • (b) the original Tribunal should not have relied on Mr Shayan's evidence;
   • (c) although there was an exchange of text messages between him and Mr Sharif, that exchange does not prove that Mr Sarbandi owes money to Mr Sharif; and
   • (d) even if the text messages were sent in or around July 2014, it is not clear when Mr Sharif claims that Mr Sarbandi owed money to him.

1. Mr Sharif's submissions are set out in English in an email message to the appeal Tribunal dated 27 July 2017. At the hearing of the appeal, Mr Sharif explained through his interpreter that the text of the email had been prepared by an interpreter. Mr Sharif had spoken what was to be included in the email, and the interpreter had written the text to reflect what Mr Sharif said. At the hearing, Mr Sharif did not add to the substantive content of his submission.
2. There was some discussion between Mr Sharif and Mr Sarbandi at the hearing of the appeal about one aspect of Mr Sharif's submissions, which provided information that was not available to the original Tribunal. I have disregarded that portion of the submissions for the purpose of deciding this appeal.
3. At the hearing of the appeal, Mr Sharif and his interpreter indicated that they had photographic images of the text messages from Mr Sharif's mobile phone, and an English translation of those messages. I declined to accept those documents into evidence. The original Tribunal had evidence of the content of at least some of those messages, and the general tone of the messages. The additional material, although apparently being no more than a complete record and translation of that exchange of text messages, might have constituted fresh evidence which is not admissible without leave in an appeal of this kind. I could see no reason to grant leave during the hearing. There was clear evidence of the content and tone of the text messages before the original Tribunal.
4. Mr Sharif's submissions are, in summary, as follows:
   • (a) Mr Shayan did not witness what happened between Mr Sharif and Mr Sarbandi (and Mr Sharif did not claim that Mr Shayan was present), but Mr Shayan claimed that he became aware of the matter from Mr Sharif in July;
   • (b) it was for the original Tribunal to decide the "legal matter" concerning Mr Shayan's evidence;
   • (c) there were many bases for the original Tribunal's decision;
   • (d) Mr Sharif gave the text messages to the original Tribunal;
   • (e) Mr Sarbandi accepted that Mr Sharif was working with him, and Mr Sarbandi did not reject the fact that they went to the casino together;
   • (f) it was difficult for Mr Sharif to keep records of payments, borrowing and lending. He worked for Mr Sarbandi as a "cash in hand" worker and, being new in Australia, he did not know much about the rules or his working rights but, in order to survive, agreed to this situation. His expenditure was also in cash and he always carried cash;
   • (g) as the transcript of the hearing before the original Tribunal shows, Mr Sarbandi accepted that he paid Mr Sharif in cash and did not keep any paperwork for those payments; and
   • (h) had Mr Sharif wanted to make a false claim he could have asked for more money. "But all I want is Justice."

1. As the original Tribunal observed, this is an unusual case because it turns almost entirely on the oral evidence of the protagonists who appeared before that Tribunal. There was no documentary evidence in the form of invoices, payment forms, or informal notes signed by the parties acknowledging the amount owed by one to the other or the receipt of payments from one to the other. The only material in addition to the oral evidence comprised text messages retained on Mr Sharif's mobile phone.
2. In order to decide the appeal, it is important to keep in mind the nature of the appeal and the role of the appeal Tribunal.
3. As the procedural orders cited at [5] above made clear, the appeal was dealt with as a review of the original decision on Mr Sharif's application.[23] That can be contrasted with the dealing with the appeal as a new application or a hearing de novo.[24] The appeal Tribunal is to decide the appeal by reference to the evidence before the original Tribunal. Leave was not given to the parties to adduce additional evidence at the appeal stage.
4. The issues in this appeal involve the evidence of Mr Shayan, the credit of the parties as witnesses, and the exchange of text messages. So far as I can tell from the written and oral submissions of the parties and the reasons for decision of the original Tribunal, the grounds of appeal are addressed by answering the following four questions:
   • (a) Did the original Tribunal wrongly receive Mr Shayan's statements as evidence in the proceeding?
   • (b) If so, to what extent did the original Tribunal rely (wrongly) on the statements of Mr Shayan when making the decision?
   • (c) Should the appeal Tribunal disturb a decision of the original Tribunal based primarily on the original Tribunal's assessment of the credit of witnesses?
   • (d) Was it permissible for the original Tribunal to rely to some extent on the text messages between Mr Sharif and Mr Sarbandi?

1. There are two ways of answering the first question: by reference to the relevant rules of evidence, and by reference to sections 7, 8 and 26 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
2. Before turning to the legal criteria, I note the unusual circumstances in which Mr Shayan gave evidence. He was present at the hearing to support Mr Sharif as an interpreter. It seems that Mr Sharif did not intend calling him as a witness. The original Tribunal asked questions that led to his statements which formed part of the evidence. It is clear from his evidence in February 2017 that:
   • (a) he had known Mr Sharif for about one and a half years (so had met him well after the events in or before July 2014);
   • (b) he was told in July or October 2016 about the events and amounts owing to Mr Sharif;
   • (c) he was not a witness to those events and said that Mr Sharif "told me about this story and the things I know but I have no idea and I have no evidence for this."[25]
3. Among the rules of evidence is a general prohibition on receiving into evidence prior consistent statements of a witness. The limited exceptions include where the prior consistent statements were made at a time of the events or when the events were fresh in the witness's memory, or to rebut a suggestion that a witness's account of events is of recent invention or a concoction. Until the witness's credit is put in issue on a specific point, the prior consistent statement should be rejected on the ground of relevance, even if it would otherwise be admissible under one or other of the established exceptions.[26]
4. It is not clear how Mr Shayan's statements, brief as they were, come within one of the exceptions to the general rule that prior consistent statements of witnesses ought not be admitted into evidence.
5. If Mr Sharif made those statements to Mr Shayan, those statements were not made contemporaneously with the alleged events. Rather, they were made about two years later, just before Mr Sharif sought legal advice.
6. Mr Shayan gave his evidence early in the original hearing, before Mr Sharif gave evidence. At that stage, the credit of Mr Sharif had not been questioned in the hearing and, as it happened, Mr Sarbandi did not ask any questions in cross-examination of Mr Sharif, nor did he take up the invitation of the original Tribunal to ask questions of Mr Sharif on Mr Sarbandi's behalf. Unless the original Tribunal considered from the outset that Mr Sharif's credit was in issue, it might be thought that Mr Shayan's statements did not come within the relevant exception to their exclusion.
7. There seems to have been no attack on the credit of Mr Shayan. However, having regard to the timing of Mr Sharif's statements to him, the content of those statements and the limited exceptions to the exclusion of prior consistent statements it is likely that the Tribunal had no obvious basis in the rules of evidence to receive his statements into evidence.
8. However, that does not dispose of the evidentiary point. Section 26 of the ACAT Act states:
   1. Tribunal may inform itself

The tribunal may inform itself in any way it considers appropriate in the circumstances.

1. Section 8 of the ACAT Act states:
   1. Rules of evidence

To remove any doubt, the tribunal need not comply with the rules of evidence applying in the ACT.

Note The tribunal may inform itself in any way it considers appropriate in the circumstances (see s 26).

1. Those sections do not mean that there are no rules governing the receipt of evidence at a hearing before the Tribunal. Section 7 provides:
   1. Principles applying to Act

_In exercising its functions under this Act, the tribunal must - _

(a) ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and

(b) observe natural justice and procedural fairness.

1. Provisions similar to sections 7, 8 and 26 of the ACAT Act are found in the legislation creating and governing tribunals elsewhere in Australia. For example, section 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides:

(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;

(b) the proceeding shall be conducted with as little formality and technicality and with as much expedition, as the requirements of this Act and of every other relevant enactment and a 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.

1. The operation and implications of that subsection, particularly section 33(1)(c), were considered by a Full Federal Court in Sullivan v Civil Aviation Safety Authority[27] (Sullivan), primarily by Justices Flick and Perry. The Court expressly stated that the procedures whereby superior courts of record resolve civil litigation (and the rules of evidence applicable in such litigation) cannot automatically be transposed to the sphere of administrative decision-making where the tasks entrusted to the making of such decisions and the procedures to be followed may be very different.[28] Decisions of that type are considered and made by the Administrative Appeals Tribunal (AAT).
2. The dispute before this appeal Tribunal is a civil dispute rather than merits review of an administrative decision. Nonetheless, the reasons for decision in Sullivan and judgments quoted in those reasons contain the following propositions that apply to this Tribunal:
   • (a) legislative provisions such as section 33 of the AAT Act (and hence comparable sections of the ACAT Act) are intended to be facultative, not restrictive, and their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals;[29]
   • (b) the procedural flexibility afforded to an administrative tribunal freed from the rules of evidence does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide guidance;[30]
   • (c) section 33(1)(c) of the AAT Act is to be read and applied in context. It is not a grant of power to depart occasionally from the strict application of the rules of evidence, but rather it presupposes and establishes a scheme for the AAT to inform itself of relevant matters in which (notwithstanding that the procedure of the AAT always remains within the AAT's independent control) the AAT, subject to the rules of natural justice, properly may rely on any probative materials relevant to its function;[31]
   • (d) section 33(1)(c) of the AAT Act simply provides that the AAT is not "bound" to apply the rules of evidence. It is not a prohibition upon the AAT applying those rules if it sees fit;[32]
   • (e) the reasons standing behind the common law rules of evidence may guide an administrative tribunal and the procedure which best facilitates the discharge of its statutory functions; indeed, in many instances, the common law rules of evidence are founded upon principles of common sense, reliability and fairness.[33]
3. Writing extra-judicially while he was President of the AAT, Justice Kerr contended that provisions such as section 33 of the AAT Act require that the admissibility of evidence in merits review tribunals should be determined exclusively by the limits of relevance rather than the interstices of the rules of evidence.[34] The freedom to take into account all of the relevant testimony, materials and circumstances known to it, removed from the strictures of the rules of evidence, is not freedom at large. It is a freedom to be fair.[35]
4. Applying those principles to the present case, it is clear that the original Tribunal had the power to inform itself in any way the Tribunal considered appropriate, and so could elicit the information provided by Mr Shayan. The Tribunal did not have to comply with the rules of evidence. Consequently, the first of the questions in [44] must be answered "No", and that ground of appeal must fail.
5. The original Tribunal could not have known what Mr Shayan would say in response to the Tribunals' questions. Having heard his statements, the original Tribunal had to decide what, if any, weight to give them.
6. Although the original Tribunal did not have to comply with the rules of evidence, the reasons behind, or principles underpinning, the general prohibition on receipt of previous consistent statements might have weighed against the original Tribunal relying on Mr Shayan's statements. It appears that overarching concern about such evidence being used in conventional court proceedings is that it might have been concocted or manufactured[36] and yet could be highly persuasive to a court or tribunal.
7. Given the paucity of documentary evidence or independent corroboration of the evidence of either Mr Sharif or Mr Sarbandi, there was a possibility that the statements made by Mr Shayan could have influenced the outcome in this case.
8. That leads to the second ground listed in [44], namely, to what extent did the original Tribunal rely on the statements of Mr Shayhan in making the decision?
9. It is clear that the original Tribunal asked questions of Mr Shayan because sometimes it is useful for a tribunal to "look back" and see whether either party had a conversation with someone "back when it happened", because "if you had a conversation back when it happened it's more likely to be true".[37] Mr Shayan did not give such evidence.
10. It is clear from his evidence that Mr Shayan was not a witness to the events in dispute and that Mr Shayan could only relate what he was told by Mr Sharif some time after those events were alleged to have occurred. He did not purport to do more than that, nor did Mr Sharif suggest otherwise at the hearing before the original Tribunal.
11. The reasons for decision given by the original Tribunal did not refer to Mr Shayan's statements. At most, it might be inferred that the original Tribunal gave some small regard to them. But there is no indication that those statements determined or were significant to the outcome of the case. It follows that the second ground of Mr Sarbandi's appeal must fail.

The role of the appeal Tribunal in considering an appeal against a decision based primarily on the original Tribunal's assessment of the credit of witnesses

1. There are well settled principles that govern how an appeal court or an appeal tribunal should proceed in circumstances such as this. As the authors of Cross on Evidence observe, quoting from numerous reasons for judgments:[38]

The appellate court will naturally be loath to disturb a finding of fact by the trial judge who has had the advantage of observing the demeanour of the witnesses, "their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial." ... The principle applies particularly where "the interests of individuals are divergent and conflicting, where personal feeling is acute, and where ... so much depends upon the character, personal motives and interests of individual persons." "Trial by transcript can seldom be an adequate representation of an oral trial..." Reading the transcript alone is not a substitute for seeing and hearing the witness, "since the transcript eliminates clues to voracity that are supplied by tone of voice, hesitation, body language, and other non-verbal expression." ... It does not follow that because the trial judge did not refer expressly to demeanour and credibility that they played no part in the judge's conclusions.

1. Second, as the authors of Cross on Evidence also state by reference to judgments:[39]

Errors of law or fact by the court below on other matters do not necessarily vitiate its conclusion on credibility. Hence it is unusual to set aside ... the findings of a trial judge based on the credibility of a witness unless it can be concluded that the trial judge failed to use or palpably misused the advantage he or she had of seeing and hearing the witness, or that the trial judge relied on evidence which was inconsistent with facts incontrovertibly established by the evidence, or that the trial judge acted on evidence which was glaringly improbable, or that the trial judge fell into some error of principle, or that the trial judge mistook or misapprehended the facts, or if the effect of the overall evidence was such that it was not reasonably open to make the findings. However, it is possible to set aside ... credibility-based findings in other circumstances, because "no short exhaustive formula" of the above kinds can meet every case. The court occasionally takes the view that the judge was wrong to give credence to a particular witness, or to find a witness unreliable, in either case because "a whole body of evidence points inescapably to a conclusion different from that reached by the judge at first instance, where in a complex pattern of events incontrovertible evidence can only be fitted into the pattern if a different view of the credibility of a witness is taken by the court on appeal."

1. It is clear from the oral reasons for decision that the main basis of that decision was the original Tribunal's assessment of the relative merits of the oral evidence given by Mr Sharif and Mr Sarbandi. The original Tribunal preferred the evidence of Mr Sharif because he appeared to be more credible than Mr Sarbandi based on his oral evidence and his demeanour (see [30] to [34]).
2. Applying the principles in the judgments referred to in Cross on Evidence, this appeal Tribunal should be loath to intervene to disturb the findings of fact by the original Tribunal.
3. It was reasonably open to the original Tribunal to prefer the evidence of one party over the other. Indeed, that was necessary to decide the case. The original Tribunal had the benefit of observing each of the witnesses and hearing what they had to say. There was no compelling (let alone incontrovertible) evidence to demonstrate that the decision of the original Tribunal to prefer the evidence of one witness rather than the other was wrong.
4. The third ground of appeal must fail.

1. There is no dispute that the parties exchanged text messages, and that those text messages were expressed in direct and at times rude or coarse language. What is in dispute is the substantive import of those messages. On the one hand, Mr Sharif relied on them to support his claim that, in or around July 2014, Mr Sarbandi owed him the amount of $2,000.00.[40] On the other hand, Mr Sarbandi submitted that the text messages do no more than demonstrate an exchange between them which reflected the ongoing dispute. At no point did he accept that he owes Mr Sharif any money. Among the passages from translated text messages read to the original Tribunal is the response apparently from Mr Sarbandi "Stop texting me. I don't want to see you again and which money?" The reply from Mr Sharif was "It's $2,000.00."[41]
2. In the reasons for decision, the original Tribunal stated that the applicant's version of events "did tie in with the text message that he sent which was in evidence in the proceedings requesting that the money be paid."[42] I conclude from that statement that the text messages had some bearing on the result in this case.
3. Unlike the statements made by Mr Sharif to Mr Shayad, the text messages from Mr Sharif were contemporaneous and were directed as a claim or demand to the person who Mr Sharif alleged owed him money rather than to another person.
4. The original Tribunal was entitled to consider the text messages as part of the overall set of circumstances that informed her decision, and to rely on them as supporting the oral evidence of Mr Sharif. The fourth ground of appeal must fail.

1. On the basis that:
   • (a) the statements by Mr Shayan played little or no part in the original Tribunal's assessment of the evidence and decision in this case;
   • (b) it was reasonably open to the original Tribunal to prefer the evidence of Mr Sharif to the evidence of Mr Sarbandi, and
   • (c) the reasons for doing so were supported by the text messages in evidence before the original Tribunal,

I am satisfied that the appeal should be dismissed.

1. Consequently, the original order that Mr Sarbandi to pay Mr Sharif the sum of $2,000.00 should stand but the date of payment should be varied to 28 days from the date of this decision.

[2] Transcript of proceedings pages 13-14

[3] Transcript of proceedings pages 19-20

[5] Transcript of proceedings pages 8-12

[6] Transcript of proceedings pages 7-8, 12

[9] Transcript of proceedings pages 27-28

[10] Transcript of proceedings pages 26-27

[14] Transcript of proceedings pages 22-23

[17] Transcript of proceedings pages 25-26

[22] Transcript of proceedings pages 33-34

[23] See ACT Civil and Administrative Tribunal Act 2008 s 82(b)

[24] See ACT Civil and Administrative Tribunal Act 2008 s 82(a)

[26] Cross on Evidence, [17250], [17300], [17305], [19005]

[27] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

[28] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [61]

[29] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, quoting from Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 628 (Gleeson CJ and McHugh J)

[30] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [97]

[31] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, [91] quoting from Re Tarrant and Australian Securities and Investments Commission [2013] AATA 926; (2013) 62 AAR 192, 209 (Kerr J and Sen Mem Redfern)

[32] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [121]

[33] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [93]- [95] and cases cited

[34] Hon Justice Duncan Kerr, "Keeping the AAT from becoming a court," AIAL (NSW) Seminar, 27 August 2013, page 6 citing Casey v Repatriation Commission (1995) 60 FCR 510, 514 (Hill J)

[36] Corke v Corke and Cook [1958] P 93

[38] Cross on Evidence, [11150] citations omitted

[39] Cross on Evidence, [11150] citations omitted

[40] Transcript of proceedings pages 15, 16, 17