Al-Huda Pty Limited and Secretary, Department of Education, Skills and Employment

[2021] AATA 1147

Al-Huda Pty Limited and Secretary, Department of Education, Skills and Employment [2021] AATA 1147 (4 May 2021)

Division:GENERAL DIVISION

File Number(s):      2018/6379

Re:Al-Huda Pty Limited

APPLICANT

AndSecretary, Department of Education, Skills and Employment

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:4 May 2021

Place:Sydney

The correct and preferable decision is that the hearing listed for 5-7 May 2021 be adjourned for a period of two months.

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The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – request for adjournment of hearing – where new evidence discovered before hearing – application for adjournment granted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 39

Migration Act 1958 (Cth) Pt 5

CASES

Bobolas v Waverley Council [2016] NSWCA 139

Sullivan v Department of Transport (1978) 20 ALR 323

Minister for Immigration and Citizenship v Li [2013] HCA 18

SECONDARY MATERIALS

Administrative Appeals Tribunal – General Practice Direction – Direction given under section 18B of the Administrative Appeals Tribunal Act 1975

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

4 May 2021

BACKGROUND

1. On Friday 30 April 2021, five days before the hearing was due to commence, the Respondent emailed the Tribunal requesting that the hearing be postponed due to the fact that evidence which it considered to be directly relevant to the issues to be determined had only recently come to light as a result of an exercise conducted by its NSW counterpart, the State Regulatory Authority (SRA).  Postponement of the hearing was opposed by the Applicant on the basis that firstly, the Respondent had known about the matters raised some two weeks ago, and secondly, that the Applicant, on the basis of the material supplied by the Respondent to both the Tribunal and the Applicant, was in a position to deal with the material if the hearing were to proceed on the dates originally allocated for the hearing. The Applicant also said that it was relevant that the Applicant’s main witness, Ms Tlais was four months pregnant, and lengthy delay might affect her capacity to appear as a witness.

   A BRIEF HISTORY OF THE MATTER

2. The Applicant applied to the Tribunal for review of a decision of an authorised review officer dated 1 November 2018 to affirm a decision made by a delegate of the Respondent dated 21 September 2018 to cancel the Applicant's approval as a provider of child care services pursuant to s 195H(1)(b) of the Current Administration Act.

3. On 29 June 2020, the Tribunal affirmed the reviewable decision.

4. On 27 July 2020, the Applicant applied to the Federal Court of Australia for judicial review of the Tribunal's first decision.

5. On 16 October 2020, the Federal Court allowed the Applicant's appeal and remitted this matter to the Tribunal to be heard and determined according to law.

6. A Telephone Directions Hearing was held with the parties by telephone on 12 January 2021. Following the hearing, the Tribunal made directions on 13 January 2021 for the parties to file all evidence, Statements of Facts, Issues and Contentions, and Hearing Certificates with the Tribunal by the end of April 2021, with the hearing to be set down for the dates of 5-7 May 2021.

7. The direction made by the Tribunal on 13 January 2021 was later varied by the Tribunal on 20 April 2021 at the request of the Respondent. The Tribunal granted the Respondent a two-week extension of time to file its Statement of Facts, Issues and Contentions, and granted both parties extra time to file hearing certificates with the Tribunal.

8. On Friday 30 April 2021, three business days before the hearing was due to commence, the Respondent contacted the Applicant and the Tribunal requesting that the hearing be adjourned on the basis that the Respondent had obtained new and probative evidence from the SRA, who had conducted inspections at the Applicant’s premises between the dates of 20 and 30 April 2021.

   THE LAW

9. The principles in relation to the granting of an adjournment in circumstances such as this are well settled. In particular, courts and tribunals have a primary obligation to ensure that proceedings are conducted fairly and in accordance with the requirements of the law (Bobolas v Waverley Council [2016] NSWCA 139 at 247).

10. There are also relevant sections of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and general directions made by the Tribunal. In this regard, I note the Tribunal’s general practice direction, which provides at paragraph 4.41:

    We will not grant an application for an adjournment made less than ten working days before the hearing unless there are particular and compelling reasons for the hearing to be adjourned. An application made on the day of a hearing, even when advance notice has been given, will not be granted unless there are exceptional reasons.

11. The Tribunal is also bound by the provisions of section 39(1) of the AAT Act, which provides as follows:

    Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

12. Section 39 was considered by the Full Court of the Federal Court in Sullivan v Department of Transport (1978) 20 ALR 323 at 342-343 where Deane J stated as follows:

    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 (see R v Moodie (1977) 17 ALR 219 at 225 )…

    A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case… 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.

13. Each case before the Tribunal is clearly to be decided on its own merits. The overall requirement that the Tribunal must act reasonably is strengthened by the requirement for the Tribunal to conduct its proceedings in a manner which is just, economical, informal and quick. This was considered by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 in relation to a similar provision in Part 5 of the Migration Act 1958 (Cth), where in a majority judgement, the Court at 95-97 said as follows:

    The implication of reasonableness is, rather, strengthened by the inclusion of express requirements that the MRT “shall, in carrying out its functions…pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick” and “in reviewing a decision…shall act according to substantial justice and the merits of the case”…

    The express requirements for the MRT to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick” and to “act according to substantial justice and the merits of the case” have been held not to result in invalidity merely because a conclusion can be drawn by a court that some action the MRT has taken does not objectively comply with one or more of the statutory expressions in which the requirement is couched (191). The requirement for the MRT to “act in a way that is fair and just” is of a similar nature (192). Both are couched in language that is broad and that is best seen to be exhortatory or aspirational. They “really describe the grounds upon which a more or less discretionary judgement must be formed” by the MRT (193).

    Their combined effect is to require that the MRT, in performing its duty to review a decision, seek to act: in a way that is “fair and just”; in pursuit of the objective of providing a mechanism of review that is “fair, just, economical, informal and quick”; and according to “substantial justice and the merits of the case” (194). Their “mere erroneous application” does not amount to a failure by the MRT to comply with a requirement essential to the valid performance of its duty to review a decision; but their “neglect” does (195). Neglect in the relevant sense need not be the product of bad faith; it can be product of unreasonableness.

    OBSERVATIONS

14. The decision to postpone a hearing literally within 2 or 3 days of it being due to commence is not a decision to be taken lightly. A postponement of the hearing itself has the capacity to cause considerable inconvenience to the parties, including additional cost and potential inconvenience to witnesses. It is not however, the Tribunal’s obligation to concentrate on looking after the convenience of one party or another. As clearly enunciated by the NSW Court of Appeal in Babolas v Waverley Council [2016] NSWCA 139 at 247, the Tribunal’s primary obligation is to “ensure that a trial is fair, which entails ensuring that the trial is conducted fairly and in accordance with law”.

15. I do not accept that the fact, Ms Tlais is four months pregnant, is of itself a proper reason not to postpone the hearing. Again, the court’s obligation is to ensure fairness in the conduct of the trial in accordance with law and not to allow those considerations to be overridden by the personal circumstances of one of the parties, unless, of course, there are compelling reasons to do so. This is not the fact in this case.

16. I accept that the evidence provided to the Respondent by the SRA on 30 April 2021 is probative evidence which goes directly to the issues to be determined in this matter. As pointed out by the Respondent during the interlocutory hearing, Ms Tlais in her affidavit of 30 March 2021 claims that all of breaches alleged against the Applicant are historical and says that steps have been taken to improve the situation. However, if the new information provided by the Respondent is true, it goes directly to that issue and would suggest that the Applicant may not have taken appropriate steps to meet its obligations or the promises made to the Respondent.

17. The Respondent is not seeking a lengthy adjournment, but rather a period of two months, in order to allow the Respondent to collate and consider all of the evidence, and to file and serve all of the material upon which it intends to rely on both the Applicant and the Tribunal. Such a time period would also allow the Applicant to properly consider all of the matters to be put before the Tribunal against it and to seek advice and fully and adequately prepare its case. I note that the Applicant said it did not require time to consider the new material the subject of this hearing. Again, this is not determinative of the matter. The Tribunal must consider and decide for itself what is fair and reasonable and in the best interests of justice.

18. The Applicant’s assertion that the Respondent may somehow have been party to the actions of the SRA was not proven and in fact, no evidence was put forward in this regard, although I note that the Respondent did accept that an officer of the Commonwealth Department of Education, Skills and Employment was present at the SRA’s visits to the Applicant’s principal office on 20 and 21 April 2021. In any event, the actions of the SRA only took place on or after 20 April 2021. There was no evidence that it was a “planned event” and even if this were so, it is not determinative of the matter, although it may be a relevant issue to consider.

    DECISION

19. Having regard to all of the circumstances of this case, as outlined above, I am satisfied the Tribunal’s overriding obligation to ensure that the proceedings are conducted fairly and in accordance with the law requires that the matter be adjourned in order to ensure that the new evidence outlined by the Respondent in its email of 30 April 2021 can be properly considered by both parties within a reasonable timeframe.

20. Accordingly, I am satisfied that the correct and preferable decision is that the hearing be adjourned for a period of two months and I make the following orders:

    (a)The hearing listed for 5-7 May 2021 is vacated.

    (b)The matter is relisted for hearing on 19, 20 and 21 July 2021.

    (c)The Direction made by the Tribunal on 13 January 2021, and varied on 20 April 2021, is vacated.

    (d)The Respondent is to file further evidence and an amended Statement of Facts, Issues and Contentions by 1 June 2021.

    (e)The Applicant is to file any further evidence in reply and an amended Statement of Facts, Issues and Contentions by 29 June 2021.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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Associate

Dated: 4 May 2021

Date(s) of hearing:	4 May 2021
Date final submissions received:	4 May 2021
Counsel for the Applicant:	Ms Jennifer Mee
Solicitors for the Respondent:	Mr Tal Aviram, Clayton Utz