Cap21 v Administrative Appeals Tribunal

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FEDERAL COURT OF AUSTRALIA

CAP21 v Administrative Appeals Tribunal [2022] FCA 729  

File number(s): ACD 36 of 2021
Judgment of: GOODMAN J
Date of judgment: 27 June 2022
Catchwords: ADMINISTRATIVE LAW – whether the Administrative Appeals Tribunal failed to afford procedural fairness to an applicant for an order pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) – Tribunal had regard to a newspaper article in reaching its decision without providing the applicant an opportunity to inspect that article or make submissions concerning it – material breach of the obligation to afford procedural fairness – jurisdictional error established
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Public Service Act 1999 (Cth)
Cases cited:

AFD21 v Minister for Home Affairs [2021] FCAFC 167; (2021) 393 ALR 398

Australian Securities and Investments Commission v Administrative Appeal Tribunal [2009] FCAFC 185; (2009) 181 FCR 130

Devasahayam and Comcare [2010] AATA 784

Fletcher v Federal Commissioner of Taxation [1988] FCA 362; (1988) 19 FCR 442

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Modini and Tax Agents’ Board of Queensland [2005] AATA 1200

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441

O’Sullivan v Repatriation Commission [2003] FCA 387; (2003) 128 FCR 590

Re Lawrance and CRS Australia [2004] AATA 1136; (2004) 85 ALD 238

Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33

Repatriation Commission v Farley-Smith [2007] FCA 1058; (2007) 96 ALD 348
Division: General Division
Registry: Australian Capital Territory
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 60
Date of hearing: 8 June 2022
Counsel for the Applicant: Ms D Forrester and Ms N Maddocks
Solicitor for the Applicant: Maddocks
Counsel for the First Respondent: The first respondent filed a submitting appearance (save as to costs).
Counsel for the Second Respondent: The second respondent appeared in person.
Counsel for the Third Respondent: The third respondent filed a submitting appearance (save as to costs).

ORDERS

ACD 36 of 2021
BETWEEN:

CAP21

Applicant
AND:

ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

GREGORY HAYWOOD

Second Respondent

COMCARE

Third Respondent

ORDER MADE BY:

GOODMAN J

DATE OF ORDER:

27 JUNE 2022

THE COURT ORDERS THAT:

1.The order made by the first respondent on 12 April 2021 be set aside.

2.The first respondent hear and determine according to law the application of the applicant for an order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) prohibiting or restricting the publication or other disclosure of the applicant’s name or other information tending to reveal the identity of the applicant within the decision of the first respondent published on 16 March 2021.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GOODMAN J

INTRODUCTION

  1. On 16 March 2021, the Administrative Appeals Tribunal published its decision (2021 Decision) in a proceeding between the second…

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Details
Case
[2022] FCA 729
Decision Date

CaseChat Overview and Summary

In Cap21 v Administrative Appeals Tribunal, the applicant sought judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth). The applicant, who had previously given evidence in two separate Tribunal proceedings, argued that the Tribunal failed to provide her with procedural fairness when it made a decision not to grant her application for an order to restrict the publication of her name in the reasons for the Tribunal's decision. The Tribunal had considered a newspaper article in making its decision but did not provide the applicant with an opportunity to inspect the article or make submissions about it. The central legal issue before the court was whether the Tribunal's failure to afford procedural fairness to the applicant constituted a jurisdictional error. The court held that the Tribunal's consideration of the newspaper article without providing the applicant an opportunity to inspect it or make submissions about it did indeed breach the obligation to afford procedural fairness, and as such, the Tribunal had acted beyond its statutory authority. The court set aside the Tribunal's decision and remitted the matter back to the Tribunal for reconsideration according to law. The court's decision emphasised the importance of procedural fairness in administrative decision-making and underscored that failure to provide an opportunity to make submissions on relevant material can lead to a jurisdictional error.

Orders

Orders of the court

1. The order made by the first respondent on 12 April 2021 be set aside.

2. The first respondent hear and determine according to law the application of the applicant for an order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) prohibiting or restricting the publication or other disclosure of the applicant’s name or other information tending to reveal the identity of the applicant within the decision of the first respondent published on 16 March 2021.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The applicant seeks judicial review of the s 35(3) Decision. Mr Haywood opposes the application for judicial review. The Tribunal and Comcare have filed submitting appearances.BACKGROUND In 2003, Mr Haywood commenced employment with the Department of the Environment. From 2011, Mr Haywood reported directly to the applicant. On 31 January 2012, Mr Haywood and another colleague attended a meeting with the applicant at which the applicant recounted a joke she had heard on a television program the previous night. Mr Haywood took offence at a word used in that joke. On 9 December 2013, Mr Haywood submitted a claim for compensation to Comcare. On 7 April 2014, Comcare denied liability in respect of Mr Haywood’s claim. That position was affirmed on reconsideration on 4 July 2014. Mr Haywood then commenced a proceeding in the Tribunal seeking a review of Comcare’s decision (First Tribunal Proceeding). In April 2015, the applicant provided a signed written statement in the First Tribunal Proceeding and in June 2016, she gave evidence at the hearing of the First Tribunal Proceeding and was cross-examined by Mr Haywood. On 31 August 2016, the Tribunal in the First Tribunal Proceeding affirmed the decision under review and published reasons for that affirmation (2016 Decision). The 2016 Decision was published on the website. It referred to the applicant and the telling of a joke but did not refer to the content of the joke. During September 2016, two newspapers published an article concerning the First Tribunal Proceeding which referred to Mr Haywood and his ‘supervisors’, but not to the applicant (First and Second Newspaper Articles). Subsequently, a third newspaper published an article concerning the First Tribunal Proceeding which did refer to the applicant (Third Newspaper Article). In February 2018, Mr Haywood submitted another compensation claim to Comcare. On 6 August 2018, Comcare declined Mr Haywood’s claim for compensation and on 31 October 2018 affirmed that decision following a request for reconsideration by Mr Haywood. On 11 December 2018, Mr Haywood commenced a proceeding in the Tribunal seeking review of Comcare’s decision (Second Tribunal Proceeding). In February 2020, the applicant made a witness statement in the Second Tribunal Proceeding. That statement made no reference to the Third Newspaper Article. From 16 November to 18 November 2020, the Tribunal heard the Second Tribunal Proceeding with some attendees in person and others attending by Microsoft Teams. The applicant gave evidence on 17 November 2020 and was cross-examined by Mr Haywood. On 16 March 2021, as noted above, the Tribunal delivered the 2021 Decision in the Second Tribunal Proceeding. On 17 March 2021, the 2021 Decision was published on the website. On that day, a representative of the applicant’s current employer wrote to the Tribunal on behalf of the applicant seeking urgent consideration of the redaction of the applicant’s name and information identifying her from the 2021 Decision.

Evidence

Evidence Before The Court

It is thus unnecessary to consider the applicant’s remaining grounds of review (failure to consider mandatory relevant considerations; taking into account irrelevant considerations; legal unreasonableness; and errors of law): AFD21 v Minister for Home Affairs [2021] FCAFC 167; (2021) 393 ALR 398 at 415 [61]. MR HAYWOOD’S EVIDENCE AND SUBMISSIONS Mr Haywood provided extensive evidence and submissions. Much of his evidence was admitted subject to objections as to relevance or because it was not material that was before the Tribunal. To the extent that such objections were taken, they are upheld. Mr Haywood’s case was not directed at answering the applicant’s application for judicial review of the s 35(3) Decision, despite the indication that the Court provided to him at a case management hearing on 30 March 2022 that the matter for determination was a narrow one, namely, whether the Tribunal made an error in not making a confidentiality order in favour of the applicant with respect to the 2021 Decision. Instead, Mr Haywood’s case was wide-ranging and in effect sought to overturn the 2016 Decision and the 2021 Decision (in respect of which decisions Mr Haywood did not seek judicial review or lodge an appeal (on a question of law) under s 44 of the Act); and to make a miscellany of complaints about the manner in which he had been treated. Whilst there can be no doubt that Mr Haywood feels aggrieved, such matters are quite irrelevant to the applicant’s application for judicial review of the s 35(3) Decision. Mr Haywood sought to justify his approach on the basis that the orders he sought (including orders overturning the 2016 Decision and the 2021 Decision and for punitive damages payable by the applicant for her alleged conduct) were orders that the Court could (and should) make because the applicant’s Further Amended Originating Application for judicial review included within the “Orders Sought”: “Such further or other order as this Honourable Court thinks fit”. That attempted justification is misconceived. The “Orders Sought” were sought by the applicant and not by Mr Haywood and were sought within the confines of her application for judicial review. As noted above, Mr Haywood did not seek judicial review of, or appeal, either the 2016 Decision or the 2021 Decision. CONCLUSION For the reasons set out above, the s 35(3) Decision should be set aside and the applicant’s application for an order under s 35 of the Act should be remitted to the Tribunal for determination according to law. I will make orders accordingly.

Decision

Reasons for decision

On 31 August 2016, the Tribunal in the First Tribunal Proceeding affirmed the decision under review and published reasons for that affirmation (2016 Decision). The 2016 Decision was published on the website. It referred to the applicant and the telling of a joke but did not refer to the content of the joke. During September 2016, two newspapers published an article concerning the First Tribunal Proceeding which referred to Mr Haywood and his ‘supervisors’, but not to the applicant (First and Second Newspaper Articles). Subsequently, a third newspaper published an article concerning the First Tribunal Proceeding which did refer to the applicant (Third Newspaper Article). In February 2018, Mr Haywood submitted another compensation claim to Comcare. On 6 August 2018, Comcare declined Mr Haywood’s claim for compensation and on 31 October 2018 affirmed that decision following a request for reconsideration by Mr Haywood. On 11 December 2018, Mr Haywood commenced a proceeding in the Tribunal seeking review of Comcare’s decision (Second Tribunal Proceeding). In February 2020, the applicant made a witness statement in the Second Tribunal Proceeding. That statement made no reference to the Third Newspaper Article. From 16 November to 18 November 2020, the Tribunal heard the Second Tribunal Proceeding with some attendees in person and others attending by Microsoft Teams. The applicant gave evidence on 17 November 2020 and was cross-examined by Mr Haywood. On 16 March 2021, as noted above, the Tribunal delivered the 2021 Decision in the Second Tribunal Proceeding. On 17 March 2021, the 2021 Decision was published on the website. On that day, a representative of the applicant’s current employer wrote to the Tribunal on behalf of the applicant seeking urgent consideration of the redaction of the applicant’s name and information identifying her from the 2021 Decision. Also, on 17 March 2021, the applicant provided a written submission (applicant’s submission) to the Tribunal. It did not refer to the Third Newspaper Article. Following a request by the Tribunal, the applicant’s submission was provided in a redacted form to Mr Haywood and Comcare and their response was sought. Comcare took a neutral position. On 24 March 2021, Mr Haywood’s submission was filed. Mr Haywood’s submission referred to the publication of his name in “various media outlets” but did not identify any particular outlet (and in particular the Third Newspaper Article). On 25 March 2021, the applicant provided further information to the Tribunal, in support of her application (applicant’s further submission). That submission did not refer to the Third Newspaper Article. On 12 April 2021, as noted above, the Tribunal made the s 35(3) Decision and on 28 April 2021 the Tribunal provided its Reasons. On 11 May 2021, the Tribunal made an order preventing the publication of the 2021 Decision and the Reasons, pending the resolution of this application for judicial review. THE REASONS

Ratio Decidendi

Legal Principle Established

Finally, the Tribunal (at [54]) recorded its sympathy for the applicant’s position. The Tribunal noted that the applicant was a longstanding public servant against whom Mr Haywood had made numerous allegations over many years; that she gave evidence in each of the Tribunal Proceedings; that no adverse findings had been made against her in either of these proceedings; and that Mr Haywood had been unsuccessful in both proceedings. The Tribunal acknowledged that despite this, the details of the claims made in the Tribunal are no doubt hurtful and embarrassing. However, on balance, the Tribunal was not satisfied that these factors, nor the reasons advanced by the applicant, were sufficient to depart from the Tribunal’s broad objectives and considerations in providing its review process in this proceeding under the Act. CONSIDERATION The Court’s task is to determine, by reference to the grounds of judicial review advanced by the applicant, whether the s 35(3) Decision was made within the authority conferred upon the Tribunal by the Act. In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [29]-[30], Kiefel CJ, Gageler, Keane and Gleeson JJ explained (footnotes omitted):[29]The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid. [30]The statutory limits of the decision-making authority conferred by a statute are determined as an exercise in statutory interpretation informed by evolving common law principles of statutory interpretation. Non-compliance with an express or implied statutory condition of a conferral of statutory decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred by statute. Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation. The applicant contended that the Tribunal had acted beyond the authority conferred upon it by the Act and in particular that it had failed to afford her procedural fairness; it had failed to consider mandatory relevant considerations and had considered irrelevant considerations; it had acted legally unreasonably; and it had made errors of law.