Booth v Blackmore

[2019] FCCA 2105

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOOTH v BLACKMORE & ANOR [2019] FCCA 2105

Catchwords:
CHILD SUPPORT – Appeal – Appellant fails to identify any question of law and no error of law is apparent from AAT decision – Appeal dismissed – order made for Appellant to pay costs of the Second Respondent.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Applicant: MR BOOTH

First Respondent: MS BLACKMORE

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: PEG 131 of 2019

Judgment of: Judge Vasta

Hearing date: 23 July 2019

Date of Last Submission: 23 July 2019

Delivered at: Perth

Delivered on: 23 July 2019

REPRESENTATION

Counsel for the Applicant: Mr C. Cheng

Solicitors for the Applicant: Ally Legal

The First Respondent appearing on her own behalf via telephone link.

Counsel for the Second Respondent: Ms A. Zinn and Ms R. Taseff

Solicitors for the Second Respondent: Mills Oakley Lawyers

ORDERS

1. That the Applications filed 11 April 2019, 28 June 2019 and 1 July 2019 are dismissed.

2. That the Applicant pay the costs of the Second Respondent fixed in the sum of $7,200.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing (or email to [email protected]) from either party seeking that written reasons be produced.

IT IS NOTED that publication of this judgment under the pseudonym Booth v Blackmore & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 131 of 2019

MR BOOTH

Applicant

And

MS BLACKMORE

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 4 February 2019 the Administrative Appeals Tribunal  (“the AAT”) set aside a decision and in substitution ordered the following:

   a)That the adjusted taxable income of Ms Blackmore was varied to $79,374 per annum from 1 April 2017 to 30 June 2017;

   b)That Ms Blackmore’s adjusted taxable income was varied to $93,252 per annum from 1 July 2017 to 31 August 2018; 

   c)That Mr Booth’s adjusted taxable income was varied to $108,500 per annum from 1 April 2017,  and that adjusted taxable income is to be inflated by the March weighted average CPI on 1 July each year from 1 July 2018 until there is a terminating event;  and

   d)The part of the departure decision that was made on 7 September 2015 that increases Mr Booth’s rate of child support payable (on the child’s private school tuition fees) ceases to apply on 31 December 2019.

2. The Applicant, Mr Booth, has appealed that decision by an application lodged on 11 April 2019 but amended a few times to the current application that was dated 1 July 2019. 

3. To understand this matter, one does need to go through the background to this case.  The Applicant, Mr Booth, and the First Respondent, Ms Blackmore, are the separated parents of a child, whom I will not name.  That child was born on … 2002.  The Applicant, Mr Booth, the father, is the parent liable to pay child support.  The child support case was registered on 28 May 2010, and the child has been in the primary care of Ms Blackmore since 2011. 

4. On 7 September 2015, decision-maker A, who was a delegate of the Child Support Registrar, considered a change of assessment application made by Ms Blackmore and decided that the adjusted taxable income for Mr Booth from 10 August 2014 to 31 October 2015 would be set at $165,000 and there would be increases from there, and that there would be annual rate of child support increases that followed such increases in the ATI.  There was no objection to that decision. 

5. On 9 March 2017, the Applicant, Mr Booth, lodged a change of assessment application on the basis that the income, property and financial resources of one or both of the parents made that current assessment unfair.

6. On 18 May 2017, Ms Blackmore cross-applied on the basis that the earning capacity of one or both of the parents made the assessment unfair. 

7. On 15 June 2017, decision-maker Murray, who was a delegate of the Child Support Registrar, found that the Applicant’s reasons were established and varied the assessment so that the ATI of Ms Blackmore was set at $75,000 and the ATI for Mr Booth was set at $108,500, and that Mr Booth would be increased using the CPI weighted average for the preceding March quarter.  The decision otherwise did not change the departure determination made by decision-maker A with regard to additional amounts set in recognition of the contribution to the tuition cost for the child.

8. On 14 February 2018, Mr Booth objected to the decision, and on 20 March 2018, he was granted an extension of time to object to that decision. 

9. On 21 May 2018, an objections officer allowed the objection in part.  The objections officer set aside the decision that had been made on 15 June 2017 and decided that decision-maker A’s decision of 7 September would cease on 31 March 2017, and for the period 1 April 2017 to 30 June 2018, the Applicant was assessed to pay the applicable minimum annual rate of child support, and from 1 July 2018, the usual formula of assessment provisions would apply.

10. Ms Blackmore lodged an application for first review to the Social Services and Child Support division of the AAT, and on 4 February 2019, the AAT gave the decision to which I have earlier referred. 

11. The AAT decision was a very thorough one, and then went through the history of the matter from the time that the matter was referred to the AAT by Ms Blackmore.  What had occurred was that, on 25 October 2018, both parents had to participate in a directions hearing at 1.00 pm Queensland time; that is because Mr Booth lived in Perth and Ms Blackmore lived in Queensland and the AAT member was in Queensland.

12. There were reminders sent to both parents by text message the day before.  Ms Blackmore was phoned at the scheduled time.  Mr Booth was phoned and the call went to voicemail; a message was left.  A phone call again occurred at 1.05pm, 1.10pm and 1.15pm, and on each occasion the call went to voicemail.  The directions hearing continued in the absence of Mr Booth.  He did not subsequently contact the Tribunal to explain why he did not make himself available to participate in the hearing. 

13. The AAT issued written directions, which were for Mr Booth to provide the following evidence by 21 December 2018:

    a)Documentation, if available, in support of his statement that his former employer did not offer him further employment at a reduced salary prior to making his existing position of employment redundant;

    b)his 2015 and 2016 tax returns, including all schedules;

    c)his 2017 tax return, including schedules, if available; 

    d)medical evidence in support of his statement that he needed to come home and look after sick children; 

    e)his bank account statements of all bank accounts to which he was a signatory from the period 1 July 2017 to 30 June 2018; 

    f)bank account statements for the month of November 2016 of the bank account that involved a transfer of $34,500, and

    g)If Mr Booth was not a signatory of that account as at 1 July 2017, evidence when he ceased to be a signatory of that account;  and

    h)Either the BAS statements in respect of his new wife’s business, and if the wife was unwilling to provide that documentation, for Mr Booth to immediately notify the Tribunal registry that he was unable to provide that documentation and the Tribunal would consider issuing a notice to the wife compelling her to provide that documentation.

14. Those directions were not complied with.  On 8 January 2019, the Tribunal registry wrote to Mr Booth and asked him to provide written submissions as to why he should not be removed as a party on the basis of his non-compliance; he did not comply with those directions either. 

15. Nevertheless, the AAT could have removed him as a party, but decided not to.  On 22 January 2019, there was some partial compliance with the directions, but certainly there was no documentation in support of the statement that his employer did not offer him further employment.  He said he did not possess any documentation.  And he did not provide his 2015 or 2016 tax returns.

16. At the hearing, he did say to the member that he had a constitutional right not to lodge a tax return and was not going to lodge tax returns for those two years, but he did provide a copy of his 2017 tax return. 

17. The AAT noted that Mr Booth had remarried and that his wife had three children from a previous relationship; those children are now 21, 19 and 16.  Mr Booth claimed that he had been unemployed since December 2016 and his decision to remain unemployed had been justified on the basis that he had caring responsibilities, in particular, the middle child had some mental health issues for which he needed to provide care.

18. The AAT noted that he had not provided any medical evidence, or any other sort of evidence, in support of that statement, though he did claim that he could not obtain such evidence because he is the stepfather of the children and not the biological father. 

19. The AAT referred to the fact that the Applicant had not provided all of the bank account statements for which he was asked, and Mr Booth said that he did not know that he was required to do so, despite the directions clearly telling him that he was to do so.  He was asked to explain the deposit of $34,500 into his National Australia Bank and he referred the Tribunal to another bank account statement which showed a deposit of $36,082 with another account number; and when that was pointed out to him, he claimed that he only just realised his mistake.

20. He did not provide any BAS statements for the Business B, and he said that was because he was unable to do so.  He thought that it was not relevant to the case and that he could not be compelled to provide that documentation.  Again, when referred to the direction that had been given, he said that he did not understand that. 

21. There was a full hearing then on 4 February 2019.  The AAT went through what it was that it was supposed to do, and that was to determine whether there needed to be a departure from the decision; whether if there was to be a departure, what would the departure be; and, whether it was just and equitable, and then, after that, whether it was otherwise proper.

22. The Tribunal did go through the law, as it was, and spoke about what the facts were as to whether there had been a change in the financial circumstances of the parents.  With regard to Mr Booth, the Tribunal noted that whilst he may not be employed now, his employer wrote to him before terminating his employment saying that his position has been made redundant. However, that same letter also noted, “…prior to implementing the decision to make your position redundant, the employer offered you the role on a reduced salary, which you refused”.

23. The Tribunal noted that the dismissal had been part of an application before the Fair Work Commission that was later withdrawn.  The Applicant, Mr Booth, told the Tribunal that he had not noticed that the letter from his former employer had offered him employment at a reduced salary.  He said that he still did not notice that when taking on the matter in the Fair Work Commission or during discussions with the union about prospects of success.  Not surprisingly, the AAT did not find that explanation probable at all.

24. The AAT did not accept his excuse that he could not obtain medical evidence in respect of his stepchildren.  The AAT did not accept his evidence that he had mistakenly provided evidence of another deposit to the bank account.  The Tribunal did not accept his excuse that he did not understand the direction that he was to notify the Tribunal registry.  The Tribunal did not accept his assertion that he did not know that he was required to provide bank accounts, and certainly the Tribunal did not accept that he was under no legal obligation to not put in tax returns for the ’16 and ’17 financial years.

25. In the end, the Tribunal went through what the financial position of the Applicant was on the material that it had before it, noting that the Applicant had failed to provide the material that he was ordered to provide. 

26. In the end, the Tribunal came to the conclusion that, when looking at all of the matters, that to keep up with the expenses that he had, the Applicant had paid some $78,500 per annum in meeting his own expenses.  That meant that, if that were what he were receiving “net”, he would have to earn $108,500 per annum “gross” to receive $78,500 net, which would give him, as it were, the capacity to pay the expenses that he said that he had.

27. He told the Tribunal that there was an investment property, but that two years ago the property was demolished so it was simply a vacant block of land for which he did not receive any income.  The Tribunal also queried how it was that the Applicant was able to meet his ongoing expenses. It noted a statement from the child, the subject of these proceedings, who had apparently told his mother that the child had worked with the father in the business that the new wife was running and that the father was charging $90 per hour cash in hand and he cleaned yards, weeded gardens, mowed lawns and built decks, all for profit.

28. Those duties that were described also matched with the description of the wife’s business that was on the wife’s business webpage.  The Applicant had said in his documentation to the Child Support Agency that he does not have a business, that he did not run a business, that he does not run any business or anyone else’s business, that he was not self-employed, that he does not contract any work, and that the time that he and his son did some jobs, that was for his sick mother-in-law and there was no payments made.

29. There were items in the Applicant’s bank accounts that showed that he had received money from some other persons.  There was a $300 deposit that the Applicant said was his attending upon a person to collect a debt for his wife’s business, but that he did not have his wife’s bank details on him at the time and asked the person to simply transfer the money to his own bank account. 

30. When it was pointed out that there was no transfer of money from his own bank account to his wife’s, he said that he told his wife that he put the money into his bank account and his wife said, “Well, you can keep that money”.

31. There was another transfer from the same person for $40 into the same bank account some time afterwards, and the transaction had been referred to in the bank accounts as “lawn mowing”.  Again, the Applicant gave a very similar excuse as to why it was there.  However, there were other deposits into the bank account from other people. One deposit for $530 and one for $80, and the Applicant gave similar excuses that he went to collect debts but did not have his wife’s bank account details and simply gave his own bank account details.  Not surprisingly, the AAT did not accept that excuse at all.

32. In the end, the AAT was not satisfied that the Applicant was not “not unemployed”, to use a triple negative.  At paragraph 48, the AAT said this:

    There is very little evidence of the quantum of [Mr Booth’s] actual income and financial resources.  It could be argued that he has failed to demonstrate that the administrative assessment is unjust and inequitable. (The administrative assessment for the purposes of the current proceedings in the assessment pursuant to the departure decision that was made in September 2015.) However, on balance, I consider it likely that his income and financial resources significantly reduced when his position at [his former employer] was made redundant.  [Mr Booth] was aware that if he failed to comply with his legal obligation to fully and frankly disclose his income and financial resources, a decision-maker might make robust findings from the available evidence; the original decision-maker adopted that approach when she concluded that [Mr Booth’s] income and financial resources were fairly reflected for child support purposes in an adjusted taxable income of $108,500 per annum, based on the evidence he provided concerning his personal expenditure. In the absence of more probative evidence on point, I respectfully agree with the original decision-maker’s reasoning and conclusion on that issue.  The reduction in [Mr Booth’s] income and financial resources constitutes special circumstances such that the application of the administrative assessment would result in an unjust and inequitable determination of child support payable. Reason 8 is established.

33. The AAT then went on to consider what departure would be just and equitable and came to the view that the proposed decision to vary the parents’ adjusted taxable incomes and increase Mr Booth’s rate of child support payable would be just and equitable.

34. It then looked at whether it would be otherwise proper and came to a result that it would be proper and therefore made the decision. 

35. It is trite to say that any appeal to this Court from a decision of the AAT must, and can only, be on a question of law.

36. The Applicant has said to the Court that there are four questions of law to be answered.  The first question is “1. Whether, the finding that the Applicant had an adjusted taxable income of $108,500 from 1 April 2017 is supported by evidence?” 

37. Again, it is trite to say that a contest as to facts is not a question of law.  A question of law only arises if it is that there is no evidence upon which to support a conclusion.  In this case, the Applicant has made quite voluminous submissions as to how it was that the evidence should have been looked at and how the Tribunal should have come to the decision, but that is engaging in an impermissible merits review.

38. The AAT is required to find an adjusted taxable income.  Of course, in coming to such a decision, there will not be the ability to be precise or to have exact figures.  In this case, it was made even more difficult by the fact of the Applicant’s blatant disregard for the directions that had been given by the AAT prior to the hearing.  The evidence before the AAT led to a conclusion that the Applicant was expending approximately $78,500 just to meet his expenses with regard to mortgages and other expenses. 

39. That was a finding of fact that was well and truly open on the evidence before the AAT.  Extrapolating from that amount of money as a net sum, it is open to the AAT to find then that a gross sum of $108,500 can be calculated. 

40. The Applicant says that there is no evidence for this, but there is evidence based on what it is that was before the Tribunal as to the expenses that were being met.  There was no other conclusion that could be made by the Tribunal, on the evidence that was before it, that these expenses were being met by the Applicant. 

41. It seems to me, then, that whether or not the Tribunal should have made a determination or made the exact sum of $108,500 is really not to the point. The fact is that the conclusion that $108,500 was the adjusted taxable income of the Applicant could be made.  If such a conclusion could be made, then it is not open to say that there is no evidence. 

42. Therefore, as far as the first supposed question of law is concerned, it is not a question of law, it is a question of fact, and that fact has been determined.

43. I will skip and go to what is said to be the third question.  The third question is whether the finding that the Applicant is an unreliable witness and intentionally did not fully and frankly disclose his financial circumstances was supported by evidence. 

44. It is clear in the dissertation of the facts that I gave that such a conclusion was well and truly open to the Tribunal.  The Applicant has especially pointed to a statement that was made in the transcript by the Tribunal where the Tribunal had said this at page 48, line 28:

    And I also observe that [Mr Booth] was – I was unable to contact [Mr Booth] for the directions hearing, and when I issued directions to him, he largely failed to comply with those directions.

    And that’s some evidence which might suggest that he’s unlikely to be more forthcoming with evidence in the future, which might make it more appropriate to make a longer decision.

1. There was also reliance upon statements in the reasons of the Tribunal where the Tribunal did find, as I had earlier pointed out, that the Applicant, Mr Booth, was an unreliable witness. 

2. On the evidence that was before the Tribunal, that was a finding that was well and truly open to it.  It does not disclose any question of law.  The evidence was clear. 

3. The fourth question is “whether the finding that the Applicant did not remain unemployed was supported by evidence”.  The way in which the Applicant argued this point was to show why it was that, on the evidence, one could not say that the Applicant was employed.

4. The Applicant argued he did not have an ABN number or an ACN number, that there was no other indicia of employment.  The question is not whether he was employed, but whether he was not unemployed, and there is a very big difference in those two. 

5. In the evidence that was before the Tribunal, especially that of the payments by persons into the Applicant’s bank account, it was open to the Tribunal to reject the very fanciful excuses given by the Applicant and instead use that as evidence to show that the Applicant was not unemployed. 

6. Again, whilst there is evidence of that, the conclusion that the Tribunal made was open.  Therefore, there is no question of law in regards to that matter. 

7. The last question of law, that has been put is framed this way:

   2. In issuing the directions for disclosures at the directions hearing, and conducting the final hearing, whether the AAT afforded procedure fairness to the Applicant when the AAT issued directions for the Applicant only to provide a large number of documents, repeatedly questioned the Applicant on the same matters, did not follow through the advice from the Applicant to admit further evidence, and stated the Applicant is “unlikely to be more forthcoming with evidence in the future” at the final hearing?

8. What the Applicant is saying is that one can look through a number of circumstances, and whilst looking at each of those circumstances, they themselves may be not capable of showing a breach of procedural fairness or of bias or apprehension of bias. But when one looks at the whole of those matters together and not seriatim, then one can, to use the Applicant’s words, easily come to a conclusion that there has been procedural fairness, an apprehension of bias and actual bias, and that that is a question of law.

9. There is no doubt that such a finding would be a question of law and would mean that the Court could look at the matter.  However, one has to see whether the evidence itself actually measures up to that. 

10. The first aspect that the Applicant has spoken of is the issuing of the directions.  I have read those directions into the record, and it is uncontested that they were made in the absence of the Applicant, even though the AAT member had contacted the Applicant by text the day before to remind him of the hearing and had phoned him on four occasions.

11. Those directions, themselves, are not in any way peculiar, nor do they, in and of themselves, show any particular preconceived notion.  What it does show is that the Tribunal was wanting to ensure that it had all available material so that it could clinically determine what the financial position of the Applicant actually was. 

12. The directions were clear, and they also had an acknowledgement that it may be difficult, if not impossible, for the Applicant to comply with those.  If it was either difficult or impossible, then the direction had that the Applicant was to contact the registry and the AAT registry would then see what they could do about the matter.

13. There is nothing wrong with those matters or the directions or the manner in which they were given.  The Applicant says there were no such other directions given to the First Respondent.  Whilst one does not have to acknowledge every bit of evidence that was before the AAT, when one goes through the decision and what the AAT said, the AAT were quite satisfied, on the material before them, that they knew what the financial position of the First Respondent was. 

14. There was no need to issue directions for Ms Blackmore to provide financial material because Ms Blackmore had already complied with what was needed. There does not seem to be anything more to that aspect. 

15. The next matter is that the AAT failed to admit further evidence when the Applicant offered it to the AAT during the final hearing.  That submission stems from an exchange between the AAT member and the Applicant at page 24-25.  The AAT member said to the Applicant:

    So I just wanted to provide you with a further opportunity to comment on your non-attendance at the directions hearing but I think I’ve given you that opportunity, but to come back to, I guess, the directions hearing and then where we are in relation to this 34 and a half thousand dollar deposit. Is there a reason why you didn’t provide the bank account statements for that bank account for that month as …?

    And the applicant interrupted:

    As I said, there is – because I don’t access that bank account.  I’ve never … that bank account. I’m happy to provide any – any details of that bank account… account.

    The AAT said:

    So you can provide a statement for November 2016?

    The applicant said:

    I presume so, yes.  I would have to go … and get it.  Yes.

    The AAT:

    So I’ve already directed you to do that so why haven’t you provided it?

    The Applicant said:

    Do I need to tell you again?  I do not access.  It never even occurred to me that this was needed for this hearing.  It’s my wife’s bank account: my wife’s money.

    The AAT said:

    And I don’t – I don’t want to sound like I’m just repeating myself but it’s an important point and so just to make sure there’s no misunderstanding, – you were directed to provide it so it wasn’t a question of whether …

    Again, the Applicant interrupted and said:

    No, I was directed to provide a sum of 34,000 and whatever it was, and I went through my bank statement. I’ve seen the sum of 36,000 and I thought that

    The AAT said:

    Yes.

    The Applicant continued:

    was what you were after because it’s in my bank account.

    The AAT said:

    But it’s not a different – it’s a different month. I think that was in January.

    The Applicant said:

    I understand that was a couple of months later.  I understand that but that’s what I assumed you were after because that’s in my bank account and you’re after my – my stuff in my bank account.  This other bank account, like I say, you’ve alerted me and I do understand my name is attached to that bank account.  It’s on the account but I don’t use that account.  I don’t even – it doesn’t occur to me that these are my…It’s my wife’s account.  It’s my wife’s money in that bank account.  I don’t have access.  I don’t do anything with that bank account.

16. What is alleged here is that the AAT did not give the Applicant the opportunity to give to the AAT a copy of that bank account and to explain that matter. 

17. The next point is that the AAT had a preconceived opinion that the Applicant was unlikely to be more forthcoming with evidence in the future.  I have already read that passage into the record. 

18. The next point is that the AAT repeatedly asked the Applicant the same or similar questions backwards and forwards during the cross-examination in relation to the Tribunal member’s voice messages, the hearing directions, the $34,500 transaction from the wife’s account, he and his wife’s investment properties and his wife’s income of $80,000.

19. There are a number of references in the submissions to what has occurred in the transcript.  I am not going to read all of those into the record.  Suffice it to say that I have read the record, I have read the transcript and I have seen what it is that the Applicant is talking about. 

20. However, I do not see that there is badgering there.  They are logical questions that follow on from each other, which at times do happen to traverse back to matters that had been previously canvassed.  In my reading of the transcript, it is often not that the Tribunal member has been badgering the Applicant, but that the Applicant frequently interrupts and, quite tersely, puts forward what it is that he wants to say; especially where it is that he does not accept that what the AAT is doing has anything to do with what he considers to be relevant in this particular matter.

21. The last matter is that what the Applicant testified to was that he did have some information that he wanted to provide in relation to what he was supposed to under the directions, but what he did was he sent that material to the Child Support Registry and not the Tribunal.  The complaint is that the AAT did not consider that that was a legitimate excuse from a person who was a layperson and did not understand the difference between the Child Support Registry and the AAT.

22. I have not commented on each of those matters in and of themselves quite yet because it is not so much looking at them seriatim that would show whether there has been bias; it is looking at them as a whole that may establish bias. 

23. As I have said, I have looked through the transcript as a whole.  Whilst it may be that there have been things that may have been done differently or, with hindsight, better handled, that does not, to me, illustrate, when looking at the matter as a whole, that the Tribunal has acted in a way that demonstrates procedural unfairness, apprehended bias or actual bias.

24. Nothing that has been demonstrated to me to show why the matters were procedurally unfair.  I have gone through each of those matters that the Applicant has pointed to.  The allegation that there were preconceived opinions is simply not illustrated.  The way in which the AAT went through the matters were extremely methodical and made sure that the Applicant had every possible opportunity to explain himself.  The statements that the Tribunal had made during the transcript were not improper statements. 

25. An observation that the Applicant was “unlikely to be more forthcoming with evidence in the future” was simply an observation that was based upon the past behaviour of the Applicant.  It is no more than the Tribunal making comments in their fact-finding function.  It does not bespeak to me of bias, but rather a methodical going-through of the evidence and making conclusions that were open on the evidence. 

26. To establish apprehended bias or actual bias, there has to be, at the very least, an apprehension by a fair-minded lay observer that the AAT has already made up its mind so that, despite whatever evidence or whatever arguments were going to be put to the AAT, there was never going to be any chance that they would have been received upon fertile ground or that the mind of the AAT was open to be changed.

27. That is an extremely high threshold to jump.  The Applicant himself has given evidence that he feels as though he did not get a fair hearing.  The questioning of him was certainly robust, but his behaviour up to that time had been nothing short of appalling.  He had not complied with these directions and had given the most ridiculous excuses as to why not.  For him to say that he had a constitutional right not to put in tax returns if he did not want to, is an example of the belligerent way in which he was approaching this matter.

28. It seems to me that the AAT member actually did extremely well to keep the matters on track and to be as thorough as he could and to give the Applicant every opportunity to explain himself.  If there is any criticism, it may well be that, whilst the Applicant said that he now realised that he should have been giving those bank account statements or that he had gotten a bank account statement wrong and he would fix that up, that the AAT should have allowed that to happen. 

29. However, it seems to me, on my reading of the transcript, that the AAT member, quite properly, in the exercise of his fact-finding function, did not accept that the Applicant had actually made a mistake; but rather, he was purposely trying to avoid giving to the AAT and to the First Respondent, Ms Blackmore, any of that material that would disclose what his true financial situation was.

30. In those circumstances, it was open for the Tribunal to come to the conclusion that, given the attitude that the Applicant had displayed so far, that even if given another opportunity, the Applicant would not comply. 

31. That finding was something that was open on the evidence.  It seems to me that it cannot be established that there has been procedural unfairness, nor can it be established that there has been any apprehended bias, and certainly it could not be established that there has been actual bias. 

32. Therefore, there is no question of law that arises from the decision of the AAT.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:       23 July 2019