Consideration
28 This Court's jurisdiction is confined to a consideration of whether the Tribunal erred with respect to a question of law: s 44(1) of the AAT Act. I accept the submission of the first respondent that the error is not so confined as to have to constitute jurisdictional error. Nevertheless, the error must be on a question of law which in this case is a purported failure to determine a material issue. The applicant argued variously that it was a failure to determine whether to "admit" (or not admit), to "take in account" or to "consider" the evidence of Mr Considine.
29 The purported error is directed to the Tribunal's procedure rather than the merits of the outcome. As correctly submitted by the first respondent, it would be apt to mislead if the Court were to consider too closely in this case whether the Tribunal was correct in its overall outcome or if the Tribunal was correct to accept Mr Considine's evidence from an evidentiary as opposed to procedural perspective. For the reasons which follow, I do not accept that the Tribunal failed to determine this purported material issue.
30 A review of the transcript reveals that, consistent with the informal procedure adopted routinely by the Tribunal, by consent, the Tribunal admitted the evidence of Mr Considine and allowed the matter to proceed with that evidence before it by reference to any submissions the applicant wished to make as to "weight". This is evident by reason of the following.
31 A review of the entire transcript reveals that the applicant's (then) counsel, at the outset of the hearing, accepted, despite Mr Considine being unavailable for cross-examination, that he was "just going to have to deal with the matter on that basis". The counsel thereafter raised what he described as a "global objection to the evidence" on unfairness grounds (given the absence of responses to particulars).
32 Consistent with this acceptance, the applicant's counsel thereafter agreed to the informal procedure proposed by the Senior Member, as contained in the critical passage of the transcript, extracted at [17] above. A fair reading of the exchange is that the Tribunal proposed a course by stating "can we deal with it this way?" which was that "if the evidence is taken in", meaning the evidence is admitted on the basis that the applicant's counsel's objection is noted, and submissions could be made as to its weight. I accept the first respondent's submission that the phrase "taken in" is to be equated with more formal language of being admitted - that is, taken in and considered. This is particularly so given the Senior Member appears to have deployed the statutory language which gives the Tribunal power to "take evidence" on oath or affirmation: see ss 40(1)(a), 40(3) and 40(5) of the AAT Act. Furthermore, whilst the Senior Member used a compound phrase describing two things - what she could do with it and what weight should be attributed to it - I accept the first respondent's submission that, in context, it can only be read as admitting the evidence, taking it into account and determining what weight should be attributed to it. I do not accept the applicant's submission that it constituted a provisional admission for which there was then an obligation on the Tribunal to later determine and give reasons for deciding whether to admit it and take it into account.
33 My view is supported by the Tribunal's approach being in conformity with the Tribunal's statutory purpose to act in a fair, just, economical, informal and quick way, the statutory requirement for its proceedings to be conducted with as little formality and technicality and as much expedition as possible and where the Tribunal is not bound by the rules of evidence: ss 2A(b), 33(1)(b) and 33(1)(c) of the AAT Act.
34 Furthermore, the Tribunal acted in a manner consistent with this interpretation, by thereafter marking the evidence and giving it exhibit numbers and, by contrast, it did not mark it for identification, did not require that the applicant's objection be dealt with separately first and prior to the substantive submissions and did not, at any stage, give an indication that the "objection" would be deferred to be determined with reasons in the decision. I do not accept in these circumstances the argument of the applicant, that the agreement as to procedure, involved a "provisional admission".
35 In response to the Tribunal's proposed course, the applicant's counsel stated "I'd be content with that course". He justified this acceptance by the foreshadowed comity between his submissions as to the effect of the deficiencies in the particulars "on the evidence" and his final submissions as to the outcome. This immediate articulation as to what his submissions would comprise, reveals that the nature of the objection was as to what weight could be placed on the evidence, rather than its admissibility. Questions concerning the admissibility of evidence must be distinguished from those relating to weight. The former is a matter of law for the court, the latter is a question of fact.
36 This articulation supports an interpretation that the "objection" was not one in a true sense as to admissibility under evidentiary principles, but rather what weight should be given to the evidence.
37 A consideration of the applicant's submissions thereafter confirm this view. Whilst the applicant identified five sections of the Tribunal transcript in his submissions as purportedly comprising "objections", the applicant's senior counsel correctly conceded that at least two of those parts constituted submissions as to weight. A review of each of these portions of the transcript in the context of the transcript as a whole, reveal:
(a) there was never any claim of inadmissibility by reference to evidentiary principles even on general terms, let alone by reference to the Evidence Act 1995 (Cth) (which in any event does not apply in the Tribunal: s 33(1)(c) of the AAT Act);
(b) the submission was, in part, at a high level of generality, For example, the first transcript extract, relied upon in the applicant's submissions, referring to Mr Considine's evidence was that it was "so lacking as to not in any way able [sic] to support the decision that it has been made"; and
(c) to the extent that there was an attack on Mr Considine's evidence, it was on the basis of the corresponding absence of adequate responses to particulars giving rise to "patent unfairness" or such that the first respondent could not meet its onus . For example, the second and fifth transcript references, relied upon by the applicant, comprise a submission by the applicant's counsel as to the absence of particulars and given the Tribunal was the repository of all information, the consequent "patent unfairness" of the Tribunal to rely on Mr Considine's evidence. This, and the subsequent passage, appears to be the height of the purported "objection" articulated by the applicant. The third reference in the applicant's submissions again comprises a general submission, in essence that the evidence of Mr Considine would not "allow the [first] respondent to meet its practical onus". Clearly, each of these portions of the transcript reveal submissions which do not comprise an objection but go to what weight is afforded to the evidence.
38 In this regard, to the extent that there is a complaint regarding the inter-party request and answer of particulars (the foundation for the unfairness submission), this was done outside any procedural process sanctioned by the Tribunal and where procedural steps were available to the applicant which he did not take, as identified at [14] above. The Court does have some concern about there being a complaint regarding an alleged failure on the part of the Tribunal to determine the objection, where the applicant did not avail himself of the Tribunal's processes to obtain information and did not seek to cross-examine the witness.
39 I note that at the end of the second reference, the applicant's counsel stated:
No consideration of any of those issues and that's why I was going to make the objection and I do make the objection to Mr Considine's evidence. It is patently unfair in the circumstances for the respondent to reply upon all of this evidence from Mr Considine to found their decision and to hold back all of these particulars, all of this information that has been sought. So as I made clear earlier this morning, Senior Member if you're against me in relation to the objection to the material and the material is admitted I rely upon all of the submissions that I'm making as to why the respondent can't make out its practical onus.
40 There are a number of ways to read this passage. On one view, the applicant's counsel is acknowledging that the Senior Member had already made the decision to admit the evidence. On the other hand, in isolation, it appears to suggest that it was the (mis)understanding of the applicant's counsel that there was an extant objection for which no decision had been made to admit the material.
41 It is my view, despite this submission, that it is clear, from a consideration of the entirety of the transcript and the reasons provided above, that the evidence had been admitted by the Tribunal subject to submissions as to weight. The fact of any misunderstanding on the part of the applicant's (then) counsel (if there was one) as to the procedure which had been adopted does not constitute any error of law on the part of the Tribunal in the discharge of its functions.
42 By reason of so finding, there was no failure to decide whether to "admit" the evidence and no requirement for the Tribunal to make any decision (or justify by reasons) as to the course which had been taken.
43 When evidence is admitted subject to weight, there is no obligation imposed upon the Tribunal to address the weight question expressly. It does so implicitly by its reference to the evidence it relies upon to form the bases for its findings on material questions of fact, consistent with its obligations under s 43(2B) of the AAT Act. At the Tribunal hearing, the applicant's counsel rightly conceded that weight issues do not give rise to questions of law: A question of weight to be attributed to evidence cannot give rise to an error of law and is fundamentally within the province of the Tribunal.
44 Having so decided, there is no need for the Court to consider the various submissions and/or "objections" made by the applicant: This would constitute a descent into merits review.
45 However, even if there had been such an objection made and a provisional tender had been accepted by the Tribunal, there remained admissible evidence upon which the Tribunal could rely. I accept the submission of the first respondent that, even if there was any failure to consider the admissibility of the evidence, and the objection was taken, it could not lead to any different outcome because it is inevitable that it would have been received subject to weight in the manner in which the Tribunal did receive it. This is because Mr Considine's evidence was unquestionably relevant to a fact in issue: Mr Considine, having worked in various front line management roles since 2010 with respect to Field Communications Technicians, gave evidence as to the overtime hours worked by employees performing comparable work to that of the applicant between June 2015 and 2016 and 42 weeks for the financial year ending June 2018.