procedural fairness
43 At the hearing, counsel for Mr Schiffer made submissions in accordance with the grounds stated in the amended notice of appeal. They relevantly were that the Tribunal erred in failing:
(a) to identify to the Applicant, as a litigant in person, adequately and unambiguously the decision that was under review;
(b) to raise squarely for the Applicant issues regarding the reviewability of the contribution assessment;
(c) to suggest to the Applicant that he might seek an adjournment of the hearing of his application for review in light of the introduction of evidence in respect of the AMP shares which had not been included in the 'T' documents.
(a) Identifying the decision under review
44 Counsel for Mr Schiffer invited the court to infer that Mr Schiffer was confused about the decision under review. Counsel contended that this inference should be drawn from Mr Schiffer's review application, his original notice of appeal, and what happened at the hearing, as recorded in the transcript.
45 By describing, in his review application filed in the Tribunal on 28 August 1998, the decision made on 10 July 1998 as the decision to be reviewed, Mr Schiffer plainly identified the respondent's decision to file the first notice of objection. The review application does not evidence any confusion. In his extension of time application, Mr Schiffer identified the decision to be reviewed as "[Mr Pattison's] objection to my discharge of bankruptcy" dated 10 July 1998. In his original notice of appeal, Mr Schiffer said that the question of law to be raised on the appeal was "the ground on which the Trustee in Bankruptcy based his objection to discharge the Bankrupt … was not valid …". There was no relevant confusion shown here. Further, as the preceding account of the hearing before the Tribunal makes plain, at the outset of the hearing, the Tribunal specifically informed Mr Schiffer that the decision under review was his trustee's decision to file the first notice of objection. The trustee's representative reiterated this in closing submissions.
46 Counsel for Mr Schiffer contended that, in the hearing, Mr Schiffer focussed on what he alleged to be the mistaken basis of the assessment. Counsel contended that this evidenced confusion on Mr Schiffer's part as to the decision under review. Bearing in mind what I have already said, I reject this contention. In any event, the assessment was relevant to the decision under review. In making his decision, the respondent relied on Mr Schiffer's non payment of the assessment in connection with the ground identified in s 149D(1)(f) of the Act. Mr Schiffer's response to the assessment was also relevant to the respondent's reasons for the decision. Mr Schiffer focussed upon the alleged erroneous basis of the assessment because that was the way in which he chose to meet the respondent's case. I do not, however, infer from this that Mr Schiffer was mistaken as to the decision under review.
(b) Reviewing the assessment
47 Counsel for Mr Schiffer submitted that, since the Tribunal permitted Mr Schiffer to challenge the assessment in the manner described, then "the Tribunal had a duty to raise squarely for him the need to have that decision reviewed". Counsel contended that the problem had been compounded by the Tribunal's line of questions about Mr Schiffer's income because this matter was, so counsel submitted, only relevant to the assessment. I reject this submission. These questions were relevant to the respondent's reasons for the decision under review (such as whether further investigation would be for the benefit of creditors and whether the bankrupt was failing to make proper disclosure).
48 As already noted, the material in the documents before the Tribunal made it plain enough that the respondent had informed Mr Schiffer that he had separate rights of review in respect of the assessment and the first notice of objection. Mr Schiffer had, moreover, conceded that he had already invoked review rights in respect of the assessment, although he had not pursued them.
49 In the circumstances of the case, the Tribunal did not fail in any duty to inform Mr Schiffer about his review rights. (It is unnecessary to deal with a further contention that it would have been open to the Tribunal to have granted an extension of time pursuant to s 29(7) of the AAT Act, to enable it to review the decision to issue the assessment.)
(c) Availability of an adjournment?
50 Counsel for Mr Schiffer submitted that the Tribunal had denied Mr Schiffer procedural fairness by failing to inform him that he might seek an adjournment "to better prepare his Application upon the AMP shares issue".
51 The AMP shares issue was relevant to Mr Schiffer's credibility. The letters tendered by the respondent's representative and accepted by the Tribunal indicated that Mr Schiffer had received some $39,000, in consequence of a share sale, that he had not disclosed to his trustee. The AMP shares issue was relevant to the respondent's claim, included in the statement of his reasons for his decision, that Mr Schiffer had failed to disclose information about his assets, and that the respondent needed further time to complete his investigations, for the ultimate benefit of Mr Schiffer's creditors.
52 Counsel for Mr Schiffer referred to the fact that the letters tendered on the respondent's behalf at the hearing were not included in the documents that the trustee provided to the Tribunal in discharging obligations under s 37(1)(b) of the AAT Act. Section s 37(1)(b) of the AAT Act requires the decision-maker to lodge with the Tribunal every document in his possession that he considers relevant to the review of the decision by the Tribunal "within 28 days after receiving notice of the application (or within such further period as the Tribunal allows)". Under this provision, the documents that must be lodged are those that the decision-maker considers relevant when he or she comes to lodge them. There are two matters to note: first, the obligation imposed by s 37(1)(b) is not an on-going one for the course of the Tribunal proceeding and, secondly, the discharge of the obligation depends on the opinion of the decision-maker concerning the relevance of documents to the Tribunal's review. This does not mean that the decision-maker is free to form an opinion in any way he pleases. He or she must act conscientiously, and in accordance with law: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ("Wu Shan Liang") at 275-276. Further, this does not mean that a decision-maker need not disclose to the Tribunal information that he or she subsequently considers relevant to the Tribunal's review: see, e.g., [79] below. It may be recalled that the decision under review was made on 7 July 1998, and that Mr Schiffer lodged his review application on 28 August 1998. The court file, which includes documents forwarded by the Tribunal pursuant to s 46(1)(a) of the AAT Act, does not disclose precisely when the respondent first lodged the T documents with the Tribunal. The AMP wrote to the respondent on 19 August 1998 about the sale of shares allegedly belonging to Mr Schiffer. The respondent wrote to Mr Schiffer about the matter on 20 August 1998 and, when Mr Schiffer did not respond, again on 27 April 1999. The respondent did not have any documents in his possession relating to the share sales at the time he filed the first notice of objection and, in consequence, he may properly have considered that they were neither relevant to his decision nor to the Tribunal's review of it. His legal representative took the view (which I accept) that two letters relating to the share sales issue were relevant to the Tribunal's decision, but this does not mean that the respondent breached his obligation under s 37(1)(b) of the AAT Act. I therefore reject the submission made by counsel for Mr Schiffer. The Tribunal had, moreover, made no direction in terms of s 37(2) of the AAT Act.
53 As already noted, the AMP shares issue was the basis for the second notice of objection, filed on 3 September 1998. Although the decision concerning the second notice of objection was not before the Tribunal, this does not mean that matters pertinent to it were not also pertinent to the first notice of objection. Moreover, even if Mr Schiffer had not anticipated that the AMP shares issue would arise at the hearing before the Tribunal in July 1999 (and there is no evidence of this), his trustee's concerns about the issue were not new to him. These concerns had been conveyed to him in mid 1999 by the respondent's letters of 20 August 1998 and 27 April 1999 and formed the basis of the second notice of objection that was sent to him under cover of a letter dated 24 September 1998.
54 Counsel for Mr Schiffer submitted that, in the absence of an adjournment, Mr Schiffer had not been given an opportunity to adduce "oral or documentary evidence in corroboration of his evidence" that the shares were beneficially owned by his wife and not by him. I reject the submission that this constituted a breach of the rules of procedural fairness.
55 In connection with the procedural fairness issue, both parties referred to Sullivan v Department of Transport (1978) 20 ALR 323 ("Sullivan"), which concerned, in part, the duties of the Tribunal in hearing an unrepresented applicant's challenge to a decision refusing him a commercial pilot's licence on medical grounds. In the course of the Tribunal's hearing, the review applicant indicated that he wished to question a medical practitioner who was not present. He also failed to refer to the possibility that he might be granted a conditional licence.
56 The parties relied on observations of Deane J (with whom Fisher J agreed). His Honour said at 342-343:
Section 39 of the Administrative Appeals Tribunal Act provides, for present purposes, that 'the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case'. In dealing with an application for review, the Tribunal is plainly under a duty to act judicially, that is to say, with judicial fairness and detachment. In these circumstances, the requirement contained in s 39 that the Tribunal shall ensure that a party to the proceedings before it be given a reasonable opportunity to present his case constitutes statutory recognition of an obligation which the law would, in any event, imply. Where a Tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe … . If, in all the circumstances, the failure of the Tribunal to adjourn the matter to enable Dr Evans to be called as a witness or to alert the appellant of his right to apply for such an adjournment constituted a denial to the appellant of a reasonable opportunity of presenting his case, both the common law principles applicable to a tribunal under a duty to act judicially and the specific provisions of s 39 of the Act entitle the appellant to the intervention of this court.
… In the ordinary case, a tribunal which is under a duty to act judicially and which has the relevant parties before it will be best advised to be guided by the parties in identifying the issues and to permit the parties to present their respective cases in the manner which they think appropriate. Circumstances may, of course, arise in which such a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case. Ordinarily, however, in the absence of a request for assistance or guidance by a party who is appearing in person, a tribunal under a duty to act judicially should be conscious of the fact that undue interference in the manner in which a party conducts his case may, no matter how well intentioned, be counter-productive and, indeed, even overawe and distract a party appearing in person to the extent that it leads to a failure to extend to him an adequate opportunity of presenting his case.
A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment to enable him to procure Dr Evans' attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment … . In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor 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.
57 In Sullivan, the applicant before the Tribunal indicated that he wished to call Dr Evans as a witness but he gave no indication that he thought it appropriate that the proceedings be adjourned to permit Dr Evans to be called. Deane J rejected the suggestion that he "may have been under a misapprehension as to the ability of the Tribunal to procure Dr Evans' attendance or as to his right to seek an adjournment". His Honour observed that there was "nothing to indicate that that was the case". His Honour concluded at 343-344:
In the context of the express invitation to the appellant, at the conclusion of the evidence, to adduce any further evidence or other material and of the complete absence of any indication by the appellant that he was under any misapprehension or that he desired that the proceedings be adjourned, the failure of the Tribunal either to adjourn the proceedings of its own motion or expressly to inform the appellant of his right to seek an adjournment did not, in my view, constitute a failure to ensure that the appellant was given a reasonable opportunity of putting his case or otherwise involve a failure to observe the requirements of natural justice.
58 In Titan v Babic (1994) 49 FCR 546, the Full Court of this Court (Northrop, Neaves, Ryan, French and O'Loughlin JJ) affirmed a similar principle. The Court observed at 554-555:
Where it is apparent that a party who does not have legal representation has misunderstood procedural requirements so that he or she is not in a position to complete the presentation of evidence, an adjournment might be considered in the interests of justice provided that no irreparable substantive or procedural injustice is done to the other party involved. In any such case the granting of an adjournment will be a matter of discretion. In this case there was no application for an adjournment nor does there seem to have been any intelligible explanation to the Master of Mr Titan's failure to arrange his witnesses. It may be that in some cases a tribunal should, to avoid possible injustice, inquire of an unrepresented person the reason for the failure properly to prepare his or her case. Again, that is a matter of discretion limited by the necessity that the tribunal be, and appear to be, impartial as between the parties.
The Full Court determined in Titan v Babic that there was no error on the part of the Master who, at a hearing for the assessment of damages in a personal injury action, had not granted an adjournment or inquired further since the plaintiff's misunderstanding that he was precluded from calling further witnesses was not apparent from anything said by the plaintiff to the Master. The plaintiff's failure flowed from his own misunderstanding of what he could do at the hearing.
59 In the present case, the Tribunal gave Mr Schiffer a reasonable opportunity to present his case. At the outset, as already noted, the Tribunal invited him to raise any queries he might have regarding procedure to be followed. Later on, after hearing Mr Schiffer's evidence, the Tribunal specifically asked him whether he intended to call any other witnesses and, towards the conclusion of the hearing, the Deputy President gave him an opportunity to say what he wished in conclusion. Mr Schiffer declined the opportunity to call further witnesses. He did not question the Tribunal's procedures, and he did not ask for any adjournment of the proceeding. His counsel did not suggest that he misunderstood the Tribunal's procedural requirements, and there was nothing that would have led the Tribunal to doubt his comprehension. There is nothing in the conduct of the hearing before the Tribunal that supports the proposition that Mr Schiffer could not have asked for an adjournment had he wanted one. There is nothing that would indicate that the Tribunal would not have given proper consideration to any such application.