Australian Trade Commission v Underwood Exports Pty Ltd

[1997] FCA 1224

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 167 of 1996

BETWEEN:	AUSTRALIAN TRADE COMMISSION         APPLICANT
AND:	UNDERWOOD EXPORTS PTY LTD         RESPONDENT

JUDGE:	MANSFIELD J
DATE:	11 NOVEMBER 1997
PLACE:	ADELAIDE

REASONS FOR DECISION

HIS HONOUR: When I gave judgment in this matter I reserved the question of whether the matter should be remitted to the Administrative Appeals Tribunal to be heard by a differently constituted Tribunal to that which heard the decision appealed from, or whether the Tribunal as initially constituted should simply further hear and determine the application. Either course of action is available under s 44 of the Administrative Appeals Tribunal Act 1975.  I reserved that question at the request of the parties so that they could consider my reasons before making submissions as to the appropriate course of action.

The submission of Mr Tracey QC of counsel for the applicant is that the matter should be remitted to a Tribunal differently constituted from the earlier Tribunal.  That would involve a full rehearing, with the costs and delay associated with that course of action, subject to such agreement between the parties as could be arrived at as to the use of the evidence already given and subject to the Tribunal, as then constituted, itself receiving and considering parts of that evidence as evidence before it.  The submission of Mrs Marks of counsel for the respondent is that I should simply remit the matter for further hearing and determination by the Tribunal as constituted originally, so that there would then be no need for any further evidence to be adduced.  It would simply be up to the Tribunal to make findings on the matters upon which to date I have concluded that it failed to do so.  The saving in time and costs, and the relative speed with which such a course of further hearing could be carried out, are obvious.  Such considerations were forcefully urged upon me by Mrs Marks.

There is no dispute as to the applicable principles.  They are discussed by the Full Court of this Court in Northern New South Wales FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 per Davies and Foster JJ at 42-43, and more recently by Sheppard J in Brackenreg v Comcare Australia (1995) 56 FCR 335 at 343-352 and by Heerey J in Nabru Nominees Pty Ltd as Trustee of the Urban Family Trust No. 2 Trust v Commissioner of Taxation (1997) ATC 4902 at 4911. Those cases make it plain that, generally speaking, it will seem fairer to the parties if a decision has been set aside for error that it be heard and determined by a differently constituted Tribunal.

It would be rare that there is reason to think that the Tribunal as originally constituted would not review and rehear a matter in good faith and with impartiality.  There is no reason to think that of the Tribunal as originally constituted in the present circumstances.  Indeed Mr Tracey did not suggest that.  I add that I have no doubt that the Tribunal as originally constituted did act, and if this matter were remitted back to it would act, in good faith.

It is also important that the appearance of fairness and impartiality on the part of the Tribunal be ensured.  The issue for my judgment is whether, if the matter is referred back to the Tribunal as originally constituted, in effect to make further findings of fact, the reasonable person observing what has happened would be satisfied that justice had necessarily been done if the decision in favour of the present respondent remained.  That paraphrases the question as posed by Sheppard J in Brackenreg (above) at 352.

Mrs Marks for the respondent has urged that this is one case where that question can be answered in the affirmative.  I have carefully considered her submissions.  There are, as noted above, strong practical considerations which make that course of action desirable, if it is a proper one.  However, I do not think the answer lies simply with the proposition that the case is one where the Tribunal as originally constituted simply failed to express its findings on certain questions of fact and it can now do so.  It is not a case where no question as to the credibility of several witnesses before it is unimportant.  My decision has been reached after a lengthy review of the steps taken by the Tribunal in its conclusions.  Although in a somewhat different context to that facing Heerey J in Nabru Nominees (above), it would have to “patch up” its reasons, to use his Honour's expression at 4911.  It would have to do so having expressed, to some degree, conclusions adverse to the credibility of at least one important witness for the applicant in circumstances where, as I have found, its reasons for reaching that point in its decision making process, including the weight it attached to evidence relating to an earlier point in time and which goes to the reliability of the evidence of that witness, are not expressed at all.  There is the risk of the appearance of an ex post facto rationalisation of the significance of that earlier evidence to fit in with that explicit, but limited, conclusion on credit if the Tribunal ultimately adhered to in its initial conclusion.

Accordingly, in my view, the appropriate course is that the matter be remitted to a Tribunal constituted differently from the original Tribunal.  I so order.

The applicant seeks an order for costs of this appeal.  No submission was put in opposition to that.  In my view the respondent should pay to the applicant its costs of the appeal to be taxed, and I so order.

Finally, the respondent seeks a cost certificate under ss 6 and 8 of the Federal Proceedings (Costs) Act 1981.  It is eligible to apply for those certificates under those provisions.  The power of the Court to grant certificates under those sections is discretionary.  The respondent must show some ground for the Court to exercise its discretionary power in its favour:  Main v Main (1949) 78 CLR 636 at 643. Error of law on the part of the Tribunal leading to the allowing of the appeal is not of itself a sufficient reason to exercise the discretion in the respondent's favour: Reeve v Fowler [1965] NSWR 110; Commonwealth of Australia v Twyman (1985) 8 ALD 554.

Here there is no conduct of the respondent which in any sense disentitles it from an order under those sections.  It needs to go further.  I think on the material before me that it can do so.  In its conduct of the proceedings before the Tribunal, it appears to have adduced evidence directed appropriately to resolution of the critical facts for the Tribunal to decide, and to have sought from the Tribunal findings on those critical matters.  It has played no part in the Tribunal falling into the error of law in then failing to make those findings which I have discerned.  That consideration was also treated as relevant, in a somewhat different context, by Tamberlin J in Minister for Human Services and Health v Haddad (1995) 39 ALD 557.

In those circumstances in my view it is appropriate to exercise my discretion in favour of the respondent under s 6 of that Act. I certify that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 to the respondent in respect of the costs incurred by the respondent in relation to this appeal, and in respect of costs incurred by the appellant in respect of the appeal that are required to be paid by the respondent to the appellant in pursuance of my order.

I do not make an order in the nature of a cost certificate under s 8 of that Act. Although the applicant is within the eligibility requirements of that section, I do not think it would be an appropriate exercise of my discretion to do so. Unlike the order I have just made under s 6, such an order would protect the respondent in respect of the costs of the rehearing before the Tribunal, whatever its outcome. There would need to be some additional fact or factors warranting the making of such an order beyond those identified in relation to the application under s 6. I do not consider that on the matters identified to me there is a proper basis for so doing.

Accordingly, I presently decline to grant the respondent a certificate under s 8 of the Federal Proceedings (Costs) Act 1981 in respect of the rehearing before the Tribunal. Counsel for the respondent has applied for this application to be adjourned further, for consideration to be given to further pursuing it when the Tribunal has further considered its decision. That course is not apposed by the applicant. Accordingly, I adjourn the respondent’s application for a costs certificate under s 8 of the Federal Proceedings (Costs) Act 1981 to a date to be fixed.  I give liberty to apply on seven days’ notice with respect to that application.  I note that the respondent’s solicitors will inform the Court in a timely manner as to whether the application is to be further pursued.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Date:  

Counsel for the Applicant:	Mr R R S Tracey QC
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mrs S L Marks
Solicitor for the Respondent:	Sheezel Sandor & Associates
Date of Hearing:	6 November 1997
Date of Judgment:	11 November 1997