Z v Director General, Department of Transport

1 This decision deals with the question of whether the Appeal Panel, after setting aside a decision of the Tribunal, should proceed to dispose of the appeal on the merits, or remit the matter to be reheard by the Tribunal. The question then arises as to whether the Tribunal should be as previously constituted or differently constituted.

2 Where an appeal is successful on a question of law the orders which the Appeal Panel can make (Administrative Decisions Tribunal Act 1997 (Tribunal Act), s 114(2) include but are not limited to: '(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted), (b) an order remitting the case to be heard and decided again by the Tribunal (as originally constituted or similarly constituted) either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel, (c) an order made in substitution for an order made by the Tribunal.' 3 Alternatively the Appeal Panel may, upon application, extend the appeal to a review of the merits (Tribunal Act s 113) and it may exercise all the functions conferred on the Tribunal at first instance (Tribunal Act s 115(2)).

4 The case involves an administrator's decision to revoke passenger transport authorities. The holder of the authorities applied for review of the decision by the Tribunal. The Tribunal conducted a review, and affirmed the administrator's decision. On appeal, this Appeal Panel found that the Tribunal's decision was affected by error due to an omission that gave rise to procedural unfairness (referral in reasons for decision to material adverse to the applicant that had inadvertently not been disclosed to applicant): Z v Director General, Department of Transport [2001] NSWADTAP 14 (24 May 2001). The order was: '1. That the decision under appeal be set aside. 2. That the matter be relisted for directions before the Appeal Panel.' 5 It was unclear at the time of hearing the appeal whether the applicant if successful wished to have leave to extend his appeal to the merits. We raised in our decision the question of whether it might be convenient in the circumstances to go and dispose of the matter without remitting it.

6 The President (sitting alone) resumed on 5 June 2001 to consider further directions. There was disagreement between the parties as to the course to be followed. As it was not possible for the matter to be dealt with by consent, the President reconvened the Appeal Panel. With the agreement of the parties, the Appeal Panel has considered the matter on the papers (see Tribunal Act s 76) including the transcript of proceedings on 5 June 2001. This is our decision.

7 The applicant has indicated that he now seeks leave to have the Appeal Panel deal with the merits. We raised in our original reasons for decision the possibility that this might be an appropriate course, as in the course of considering the grounds of the appeal it had been necessary to review all the evidence considered by the Tribunal, and there had been several submissions at the appeal hearing by Mr Z which went to the merits of the Tribunal's decision.

8 At the hearing on 5 June 2001, Mr Wozniak, solicitor for the administrator, indicated that he would be seeking to raise fresh material (as he is entitled to do) when the merits were reconsidered. Consequently, he felt that the most appropriate course was for the matter to be remitted to the Tribunal as previously constituted. Mr Z on the other hand indicated, as we have noted, that he was happy for the Appeal Panel to proceed to consider the merits, but if it were to be remitted that it be remitted to a Tribunal differently constituted.

9 Had it been the case that there was no likelihood that any fresh material would be introduced, the Appeal Panel would have been inclined to have proceeded to dispose of the matter, as the relevant material is not great in volume or complexity and finality would be achieved. However, it is not desirable that the Appeal Panel be called on to consider fresh evidence and possibly make additional findings beyond those already made by the Tribunal. Ideally all findings of significance should be made in the one proceeding by the same member or panel of members. So our first conclusion is that the conventional practice of remitting the application to the Tribunal below for rehearing should be followed. Mr Z's application for leave to extend to the merits is, therefore, refused.

10 As to the question of whether an application should go back to the same Tribunal or one differently constituted, there are competing considerations. On the one hand by remitting it to the same member, it will not be necessary for that member to refamiliarise him or herself with the factual background. He or she can move on to deal with any new material. On the other hand there may be a perception on the part of the successful party on appeal that the member who had ruled against that party may be affected by their previous view. It may be suspected that a member might seek in the next decision to justify their earlier decision.

11 In this case Mr Z has expressed concern that he may not be dealt with fairly, given the nature of procedural error that has already occurred.

12 The Federal Court hears appeals on error of law grounds against decisions of various Commonwealth Tribunals. It has an analogous role in the Federal arena to that played by this Appeal Panel in relation to the Divisions of this Tribunal. That Court has explained the circumstances in which it considers it advisable for the remitter to contain an express direction that the quashed proceedings be reheard by a differently constituted Tribunal. In Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42, Davies and Foster JJ said: 'If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member's views have been stated. Thus, if a decision of the Administrative Appeals Tribunal has been set aside and the matter remitted for rehearing, the President of that Tribunal ordinarily allocates to the rehearing a different member of the Tribunal. There are, of course, cases where it is convenient for the Tribunal as previously constituted to deal with the matter. And occasionally the Court itself expresses such a view, so as to make it clear that it would not be improper for the Tribunal as previously constituted to consider the matter again. See for example: Versatile Carpets Pty Ltd v Collector of Customs (unreptd, Fed Ct, Sweeney, Woodward and Davies JJ, 21 February 1985) in which the Court remarked, '… subject to questions as to availability of members, it would be helpful it the matter were heard by the Tribunal as it has so far been constituted.''

13 These issues received close consideration in the recent Federal Court case of Industry Research & Development Board v IMT Ltd [2001] FCA 85 (16 February 2001, RD Nicholson J). The Administrative Appeals Tribunal had dealt with an application for review of a decision refusing to make available funds to a project which the applicant claimed fell within the relevant criteria under legislation for the making of an industry research and development grant. The factual and legal material was complex. For example there were 430 pages of oral evidence and 657 pages of exhibits considered at hearing. The respondent to the appeal conceded that there were errors of law in the reasons for decision of the Tribunal such as to require that the decision be set aside. The issue for the Court was whether it should go on to dispose of the matter or remit to the same or a differently constituted Tribunal.

14 Because of the scale of that case, considerations of convenience and the efficient use of resources appeared to favour giving the case back to the same Tribunal. In opposing the respondent's motion that the case be dealt with in that way, the applicant referred to instances in the transcript where there was disputed evidence and where the ultimate findings would have required conclusions as to credit to be formed. The Court was satisfied that in relation to two key witnesses whose evidence was in conflict 'there was a quite profound and antagonistic gulf between [them]' and 'there was indeed a major issue of credibility': at [32]. Even though no formal findings as to credit had been made, the Court was satisfied that the Tribunal could not have reached its key conclusions without forming a view as to credibility. On the other hand, where no issues of credibility were involved, the High Court has considered that it is not appropriate for a direction to be given to send the matter back to a differently constituted bench: Australian Railways Union & ors; ex p Public Transport Corporation (1993) 117 ALR 17 at 25.

15 Nicholson J in Industry Research and Development Board noted that the usual practice in the New South Wales Supreme Court is for the Court of Appeal not to deal with the issue of the assignment of the case when remitting it for rehearing or reconsideration. In Steedman v Baulkham Hills Shire Council (No 2) (13 August 1993) Kirby P said (passage set out in a Note in (1994) 68 ALJ 79): 'Normally this Court, when remitting a matter to a Division of the Supreme Court or another Court or Tribunal subject to its authority, will not interfere with the assignment of the hearing to a particular person. That is left to the internal arrangements of the Division, Court or Tribunal concerned. In special circumstances, an Appellate Court may direct the Court or Tribunal below to be differently constituted.'

16 Our conclusion is that the Federal practice and the New South Wales practice is that normally no express direction as to constitution is given as part of the order for remittal. But there may be a difference between them in relation to how orders silent as to this matter operate in practice. According to the Northern NSW FM case the usual Federal practice on remitter is for the President of the Tribunal to assign the matter to a member other than the original member. It is not clear whether a listing convention of this kind is followed in New South Wales. In both jurisdictions the making of an express direction that a Tribunal (or lower court) be differently constituted is not routine. The New South Wales approach would appear to be only to give an express direction where there are 'special circumstances'. What the 'special circumstances' may be was not spelt out by Kirby P.

17 In this instance we are satisfied that there should be an express direction. Our conclusion is the same as that reached by Nicholson J in the Industry Research and Development Board case but having regard to somewhat different factors.

18 This is not a case strictly about credibility. Nothing that Mr Z placed before the Tribunal below was rejected on grounds of credit. It is, however, a case relating to the fitness, character and general repute of the applicant. Mr Z's confidence has been damaged, by not having had the opportunity to respond to material that was prejudicial to him prior to its inclusion in the reasons for decision. In these circumstances, it would in our view be preferable if the matter was dealt with by another member. Another member would bring a fresh mind to consideration of the question of whether that material should be taken into account on the next occasion. A reasonable person would, we consider, see it as preferable that the question be considered by a member who has not already based part of their judgment as to fitness and repute on that material.

Order 19 Further to its decision delivered 24 May 2001, the Appeal Panel directs:

1. That the matter be remitted for rehearing by the Tribunal differently constituted.

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