Twentyman v Secretary, Department of Social Services

Post-hearing development 28 The day after the Court reserved its judgment, the applicant sent an email to the New South Wales District Registry, a copy of which was also sent to the respondent's solicitor. He said that he wished to provide to the Court some material to which his counsel had referred during the hearing which was not in evidence on the application but had been adduced in evidence below. The documents were the respondent's letter dated 21 April 2005 (addressed to the applicant) and extracts from the respondent's website which the applicant said confirmed his evidence that he only needed to inform the respondent of his departure overseas if there may be an impact on the rate of his pension payment. He said that the website material was provided in support of grounds 10, 11 and 12. 29 The applicant also sought to provide documents from Centrelink's electronic screens dated 9 January 2016 (both unredacted and redacted), which he said were contrary to the primary judge's finding at [12] of his reasons for judgment. 30 The applicant's email dated 17 April 2019 also included material which can only be described as further submissions by him. 31 The Court invited the respondent to communicate its attitude to this material. Its response may be summarised as follows: (a) the letter dated 21 April 2005 is already in evidence before the Court as an exhibit to the applicant's affidavit dated 8 March 2019; (b) it expressed no view as to whether the Court should have regard to the extract from the Department's website, which had been included in the application book below; (c) it took no view as to whether the Court should have regard to the redacted electronic screen dated 9 January 2016 as this was also included in the material below; (d) it opposed the applicant's request to tender the unredacted electronic screen dated 9 January 2016 because that document was not in evidence below and no explanation has been provided as to why it was not tendered at the hearing on 16 April 2019; and (e) it opposed the Court having regard to those parts of the applicant's email dated 17 April 2019 which took the form of submissions in circumstances where the Court did not grant leave to file further submissions and the applicant was represented by counsel on a direct access basis. 32 The applicant sent a second email on 26 April 2019 to the New South Wales District Registry seeking to provide the entire application book before Wigney J and asking for the opportunity to make further submissions. The respondent was not copied in to this email. The email was sent after the parties had been notified that judgment would be delivered on 29 April 2019.

The parties' submissions summarised 33 The parties' submissions, where relevant, are summarised and addressed in my reasons below for refusing to extend time and for not admitting the further evidence. I should make it clear, however, that I have not taken into account those parts of the applicant's post-hearing email which constitute submissions. The Court did not grant leave for the parties to file submissions after judgment was reserved. The applicant was represented by competent counsel at the hearing and there was no suggestion that supplementary submissions would be made after the hearing had ended and after judgment was reserved. The applicant's attempt to have the Court take into account additional submissions made by him personally and not through his counsel during the course of the hearing is contrary to basic notions of the desirability of finality in litigation. For similar reasons, I have not examined or taken into account the material described in the applicant's second email, nor do I give leave for the applicant to make further submissions as requested. In addition to the fundamental concept of finality mentioned earlier, it was quite improper of the applicant to approach the Court ex parte in the manner that he did.

Analysis and determination of the interlocutory applications

(a) Extension of time to appeal 34 The applicant submitted that time should be extended because it was reasonably arguable that the rule in Browne v Dunn did apply to the proceeding in the second AAT. He submitted that there were conflicting authorities on the issue and that it is in the public interest for the Full Court of this Court to resolve the conflict. He referred inter alia to decisions such as S154/2002, the Full Court's decision in Sullivan, and to the first instance decisions in Millar v Commissioner of Taxation [2015] FCA 1104; 67 AAR 490 (Millar) and Calvista. 35 There are four fundamental difficulties with the applicant's contentions concerning the rule in Browne v Dunn. First, the primary judge did not hold that the rule, either in substance or in form, never applies in AAT proceedings. As his Honour made clear in [78] of his reasons for judgment, even if the rule does not "strictly apply" in the Tribunal, "there undoubtedly may be circumstances where it would be a denial of procedural fairness for the AAT to make a finding of fact contrary to the evidence of a witness in circumstances where that finding was not put to the witness…". 36 Secondly, to the extent that the applicant relies upon s 2A of the AAT Act as supporting his proposed case regarding the rule in Browne v Dunn, that statutory provision is merely "aspirational or exhortatory in nature, rather than [as] a source of directly enforceable rights and obligations" (see Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 417 at [80] per Griffiths J), as cited by the primary judge at [79]. 37 Thirdly, a perhaps more fundamental problem concerns the proposition that the principles of procedural fairness effectively incorporate the rule in Browne v Dunn. The applicant's counsel properly acknowledged in oral address before me that it was not inappropriate for the primary judge to have approached the matter in this way. 38 The relevant principles of procedural fairness as they relate to the fair hearing rule were summarised by the primary judge at [83]. There can be no doubt that the principles of procedural fairness applied in the proceedings conducted by the second AAT. As Brennan J stated in Kioa v West (1985) 159 CLR 550 (Kioa) at 629 (emphasis added): … in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. 39 Earlier, in Kioa, Brennan J referred at 618 to the joint judgment of Dixon CJ and Webb J in Commissioner of Police v Tanos (1958) 98 CLR 383 at 395, where their Honours described as "a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard" (emphasis added). 40 The difficulty for the applicant is that, by his own actions, he deprived both himself and the respondent of that opportunity because he left the second AAT hearing before he could be cross-examined. Thus he deprived the respondent of the opportunity to question him on the matters about which he now complains and he necessarily denied himself the opportunity to be heard in relation to those matters in his cross-examination. In effect, the applicant by his own conduct waived the sufficient opportunity he had of a fair hearing because he absented himself from the hearing room and denied himself (as well as the respondent) the opportunity of providing further evidence to the AAT in respect of these matters (see generally, Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Law Book Co, 2017) at [7.400]). It was this conduct which the primary judge relied upon in concluding that there was no procedural unfairness, as is made clear at [96] and [99] of his Honour's reasons for judgment. The steps leading up to the applicant's decision to leave the hearing room are fully described by the primary judge at [87] to [96], including the statement by the respondent's counsel which is referred to at [90] that he proposed to ask some questions of the applicant in relation to "the lead up to the decision to cancel". That opportunity never presented itself because the applicant was not available for cross-examination. 41 I reject the applicant's submission that, in the circumstances that occurred, the second AAT should have adjourned the hearing, whether of its own volition or on application by the respondent. It was the applicant's conduct alone which meant that he was not available for cross-examination on the scheduled hearing date, notwithstanding that the respondent had said that it wanted to ask him some questions about events leading up to the cancellation. 42 Fourthly, and separately from the other reasons given by the primary judge for rejecting the applicant's claim of procedural unfairness, his Honour explained at [101]-[104] why the applicant had not suffered any "practical injustice", with reference to the principle established in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]. Significantly, the finding that the applicant had suffered no "practical injustice" is an alternative basis for the rejection of the applicant's procedural unfairness case. It is notable that the amended draft notice of appeal in support of the applicant's application for an extension of time does not challenge this alternative basis. That finding would therefore stand even if the applicant was permitted to appeal on other aspects of the primary judge's findings relating to procedural unfairness. This provides a further compelling reason why time should not be extended. 43 For these reasons, I do not consider that the applicant has any prospects of succeeding in relation to the proposed grounds of appeal which relate to the rule in Browne v Dunn, a failure to give effect to s 2A of the AAT Act or procedural unfairness. 44 Turning now to address the applicant's claims that the primary judge made findings of fact that were unsupported by the evidence, 12 such findings are identified in the draft amended notice of appeal. 45 The first thing to note is the significance of s 44(7) of the AAT Act, which is relevant to the question whether the findings of fact attributed to the primary judge by the applicant are truly findings of fact made by his Honour, as opposed to descriptions of findings made by the AAT. The effect of s 44(7) of the AAT Act is to permit the Court in a s 44 appeal to make findings of fact that are not inconsistent with findings of fact made by the AAT (other than findings made by the AAT as a result of an error of law) and as long as the Court is satisfied of the matters which are set out in s 44(7)(b). In making any such findings, the Court may have regard to evidence which was before the AAT and also receive further evidence. It is apt to note here that the further evidence which the applicant seeks to adduce in the present proceeding is not evidence within the meaning of s 44(7)(b) and the applicant places no reliance upon that provision for that purpose. 46 In my respectful view, most of the findings of fact which are attributed to the primary judge in the draft notice of appeal are actually descriptions of findings of fact made by the second AAT and are not independent findings made by the primary judge. This is reflected in the fact that most of the so-called "findings of fact" made by the primary judge which the applicant proposed to challenge appear in a section of the reasons for judgment headed "Factual Background" and plainly refer to findings made by the second AAT. 47 For completeness, however, and recognising the amount of time which was devoted at the hearing by the applicant's counsel to the matters set out in [16] of the reasons for judgment, it is desirable to say something more about proposed ground 6 before turning to the other proposed grounds relating to alleged fact finding which was unsupported by the evidence. 48 The primary judge said at [16]: 16. The Department sent Mr Twentyman a letter dated 11 October 2005. The letter was sent to the Punchbowl address. Mr Twentyman was overseas at the time the letter was most likely delivered. The letter contained the same pro-forma notice as the 21 April letter. Indeed, it would appear to be fairly obvious, and largely common ground, that all Department correspondence to "customers" contained a notice in the same or similar terms. 49 In proposed appeal ground 6, the applicant contends that the primary judge made a finding of fact at [16] which could not be supported by the evidence. In particular, he complains that there was no supporting evidence for the primary judge's statement that the letter dated 11 October 2005 "contained the same pro-forma notice as the 21 April 2005 letter". The applicant contends that the notices are different. The 21 April 2005 letter said in part: If you plan to travel outside Australia, you must let us know within 14 days of making the decision to go. Please check with us to make sure of your entitlements during your absence. You may not be entitled to your pension or some of the additional payment for the period you are away. If you do not advise Centrelink of your departure, your payment may be stopped while you are overseas. 50 By contrast, the 11 October 2005 letter, which was tendered in the present proceeding as Exhibit 1, said: If your travel plans change and you no longer intend to return to Australia on the date you advised us you must tell us. 51 For the following reasons, I do not consider that proposed ground 6 is reasonably arguable. (For the purposes of considering this proposed ground, I have taken into account the full terms of the letter dated 21 April 2005, which was already in evidence prior to the applicant's post-hearing email). Even if it be accepted that the terms of the notice in the two letters are different and not the same as described by the primary judge, I cannot see the materiality of any such error. The applicant's counsel attempted to demonstrate materiality by reference to [59] of the reasons for judgment and the reference there to the second AAT's finding that, when the cancellation decision was made, the applicant had "departed Australia three times without complying with the notice issued pursuant to s 68 of the Administration Act dated 21 April 2005 requiring him to advise [the Department] within 14 days of making the decision to travel outside Australia". This is a reference to the second AAT's finding at [70] of its reasons for decision. The three departures are identified there as 19 July, 22 August and 8 December 2005, all being dates post 21 April 2005. The second AAT also referred in that paragraph to its finding that the applicant had been reminded during a telephone conversation with a Departmental officer on 11 October 2005 that he had to advise Centrelink prior to leaving the country and also that he had implicitly acknowledged that he knew that but preferred to follow the advice of his friends. Much of the file note of that conversation on 11 October 2005 is set out at [14] of the primary judge's reasons for judgment. 52 The applicant contended that both the AAT and the primary judge should have found that he had in fact advised the Department of his plan to depart Australia well before 11 October 2005, presumably, including the three dates set out in the second AAT's reasons at [70], because the Department's letter dated 11 October 2005 made express reference to him having "advised us" of the date on which he intended to return to Australia. The applicant contended that this indicated that he had in fact given prior notice to the Department of his departures. 53 The difficulty with this contention lies in the fact, however, that the file note of the conversation which occurred between the applicant and a Departmental officer on 11 October 2005 (and which preceded the sending of the first of two letters by the Department to the applicant on that day, i.e. Exhibit 1) includes an express reference to the applicant confirming to the Departmental officer on that day that he was telephoning from Thailand. The relevant part of the file note read as follows: I asked customer how he supported himself whilst he was o/s and he said "it only costs $5 a day to live here". i asked customer if he is currently in Thailand and he stated "yes". I asked why he didn't advise me he was calling from Thailand and he stated he didn't want me to know… 54 Thus the terms of the 11 October 2005 letter do not necessarily support the applicant's contention that they demonstrate that he had notified the Department of his departures before 11 October 2005. It was reasonably open to the second AAT to make the finding that it did at [70] and the applicant has no prospects of establishing that the finding was unsupported by any evidence, or that any misdescription by the primary judge in [16] of the terms of the two notices is a material error. The applicant may not agree with the findings but there is some evidence to support them. 55 As to the other proposed grounds of appeal relating to alleged findings of fact by the primary judge, none has sufficient merit to warrant an extension of time for the following brief reasons: (a) As to ground 2, even if there is evidence that on 11 October 2005 the applicant called the Department to question the suspension of his pension, it is an undisputed fact that it was not until February 2016 that he formally sought a review of the decision to cancel his pension. (b) Ground 3 focusses upon the statement that, from at least March 2002, the applicant began "to travel overseas for lengthy periods", where the applicant contends that his trips were relatively short. This does not involve a finding of fact which is arguably unsupported by the evidence in circumstances where the actual travel dates are set out at [8] of the primary judge's reasons for judgment. Moreover, the materiality of the alleged error has not been demonstrated. (c) Ground 4 contends that the primary judge made a finding of fact which could not be supported by the evidence when his Honour said at [9] that, on 21 April 2005, the Department sent the applicant "a letter concerning his pension", when that letter simply confirmed that the applicant's rent assistance had been reinstated following its cancellation on 7 April 2005. That does not mean, however, that the letter is not appropriately described as a letter "concerning" the applicant's pension. Nor is the materiality of any alleged error demonstrated or evident. (d) Ground 5 challenges the alleged lack of evidence to support the primary judge's statement at [11] that there was no indication in the Department's records that the applicant had notified the Department that he was departing Australia on 19 July 2005 and 22 August 2005. The applicant draws attention to a Departmental electronic document which records that the applicant advised it on or about 22 August 2005 that he was "touring outside Australia". The respondent submitted that, in fact, there is no reference in that electronic document to the applicant having notified the Department of his 22 August 2005 travel. During oral submissions, the only argument made in relation to ground 5 was that the 11 October 2005 letter implied that the applicant had notified Centrelink of his travel at some earlier date, and it was submitted that this earlier date was 22 August 2005. That date appears to have come from a second letter from the Department on 11 October 2005 informing the applicant that information from the Department of Immigration and Multicultural Affairs indicated that the applicant had departed Australia on 22 August 2005 and asking the applicant to confirm if this information was incorrect. Contrary to the applicant's argument this letter does not indicate that the applicant notified the Department of his 22 August 2005 travel. Instead it implies the opposite. The Department learnt of the travel through other means and had to contact the applicant to have that information confirmed subsequently. The argument relying on the first 11 October 2005 letter is rejected for the reasons given earlier in relation to Ground 6. This ground was not developed any further in oral submissions. The applicant has not established any arguable error alleged nor has he demonstrated its materiality to the primary judge's decision. (e) Ground 6 has been addressed above. (f) Ground 7 challenges the primary judge's statement at [16] that the Departmental correspondence contained a notice in the same or similar terms to that set out in the 21 April 2005 letter. This ground overlaps with ground 6 and has insufficient prospects for the reasons given above. It also fails to acknowledge the significance at [16] of the primary judge's use of the phrase "similar terms". (g) Ground 8 relates to the statement that the Department's records did not include any record that the applicant had advised it of his departure, when the applicant was under no obligation of notification once his pension was suspended on 26 September 2005. That statement is in fact supported by some evidence, namely the evidence that there was no record held by the Department of the applicant advising of his departure. Moreover, if there is any error, the applicant failed to demonstrate how it is material. (h) Ground 9 focusses upon the terms of the Department's letter dated 4 February 2016, the relevant parts of which are set out by the primary judge at [22]. At [23], the primary judge said that there was no other file note or documentary record of the precise reasons for the Department's cancellation decision other than the reference in that letter to the applicant's "departure overseas". If there was any error in this statement, in the sense that other reasons for the cancellation could be extracted from other Departmental documents, the primary judge's observation at [23] was actually favourable to the applicant and the materiality of the alleged erroneous statement has not been demonstrated. (i) Ground 10 focuses upon the primary judge's statement at [98] that there was an inconsistency between the applicant's evidence concerning the conversation which he claimed he had had with the Department in March 2002 or later and the Department's October 2005 notes recording conversations which the applicant is recorded as saying that he had been told by his friends that he did not need to advise the Department of short trips overseas. The inconsistency is plain and the contention that it is unsupported by the evidence is hopeless. The contention would not be strengthened if the Court took into evidence extracts from the respondent's website as per his post-hearing email dated 17 April 2019. Even if that material confirmed the applicant's evidence that he only needed to inform the respondent of his departure if there may be an impact on the rate of his pension payment, the relevant issue is the correctness of the primary judge's statement at [98] that there was an inconsistency as described above. The additional material would not remove that inconsistency. Nor would it overcome the fact that the primary judge's statement is supported by some evidence. (j) Ground 11 focuses upon what the primary judge said at [100], namely that, having regard to everything that occurred during the second AAT hearing, "it was not procedurally unfair for the Tribunal to not accept the [applicant's] evidence that, at some time on or after 1 March 2002, the Department told him that he did not have to advise it of short trips overseas, even though the Secretary's legal representative did not cross-examine [the applicant]". It is far from clear that this statement constitutes a finding of fact, as opposed to a statement of the primary judge's conclusion that there had been no procedural unfairness. Moreover, the proposed ground overlaps extensively with the applicant's separate complaints relating to procedural unfairness, which are untenable for reasons given above. The extracts from the respondent's website as referred to in the applicant's post-hearing email would not overcome these difficulties. (k) Ground 12 focusses upon the statement at [102] that the Department's documents recorded that, on 1 March 2012, the applicant advised it that he was going overseas, but the documents did not record the Department ever telling the applicant that he did not need to advise it of short trips. The primary judge's statements at [102] are supported by his Honour's analysis of the transcript of the second AAT hearing. Moreover, this ground overlaps with the applicant's procedural unfairness case and it has insufficient prospects for similar reasons given above relating to ground 1. The extracts from the respondent's website as referred to in the applicant's post-hearing email would not overcome these difficulties. (l) Ground 13 challenges the primary judge's statements at [103] concerning the AAT's finding that the applicant was not cooperating with the Department's investigation at the time of the cancellation decision. There is no independent finding of fact by the primary judge. Moreover, there plainly was evidence to support the second AAT's findings by reference to the Department's documentary records. It is hopeless to contend that the finding could not be supported by the evidence. It is equally hopeless to contend that there was no evidence to support the primary judge's statement that the applicant and his counsel were plainly on notice that there was an issue concerning the applicant's evidence which conflicted with the Department's records. These statements were made in the context of the primary judge explaining why there was no "practical injustice" so as to give rise to procedural unfairness. 56 Finally, as to applicant's contention that the primary judge applied "an incorrect legal principle" in determining that whether a decision is "correct or preferable" did not involve a question of law, the applicant was unable to refer to any authority to support his claim in relation to this matter, nor was it elaborated upon in any meaningful way in either his written or oral submissions. The primary judge was plainly correct to reject this so-called "question of law" on the basis that it was simply an invitation impermissibly to challenge the merits of the second AAT's decision.

(b) Leave to rely on further evidence 57 As to the interlocutory application seeking leave to rely on further evidence, it should be dismissed for the following reasons. First, as the applicant's counsel frankly pointed out, the material was provided to "assist" the Court and was "not crucial to the applicant's case". No real attempt was made to explain how the voluminous material was probative or relevant to any of the matters raised in the draft amended notice of appeal. Subject to what is said at [58] below I cannot discern how the material is probative or relevant to the extension of time application or to the draft amended notice of appeal, 58 Secondly, I am not satisfied that the applicant has adequately explained why this material was not obtained and provided earlier, bearing in mind that he was legally represented before the second AAT and was also legally represented for at least some of his proceeding before the primary judge before he apparently withdrew his counsel's instructions. 59 I note that the further evidence includes a copy of the Department's letter dated 21 April 2005, but it is plain that a copy of that letter was in evidence before the primary judge and relevant parts of it are set out at [9] of the reasons for judgment. 60 Finally, as to the applicant's post-hearing request that the Court have regard to Centrelink's redacted and unredacted electronic screens dated 9 January 2016, as noted above, the respondent does not oppose that request in respect of the redacted electronic screen because it was in evidence below, but it opposes the unredacted electronic screen being now put into evidence because it was not in evidence before the Court below and no explanation has been provided as to why it was not sought to be tendered at the hearing. I accept those submissions. 61 It should also be added that the applicant sought to rely on the unredacted electronic screen as supporting his claim that the primary judge erred in [12] of his Honour's reasons for judgment in stating that an internal Department record suggested that the reason for the applicant's pension being suspended was the failure to advise Centrelink of his departures overseas. The applicant said that the unredacted electronic screen shot showed that the reason for the suspension was "as a result off a tipoff in relation to a marriage like relationship which also resulted in a tipoff in relation to the customer's regular trips overseas." An additional difficulty confronting the applicant is that his proposed notice of appeal contains no proposed ground in relation to the primary judge's statements in [12]. That is another reason for not permitting the applicant to have leave to rely upon the unredacted electronic screen.

Conclusion 62 For these reasons, both interlocutory applications will be dismissed, with costs. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.