FANDS (ACT) PTY LTD v COMMISSIONER FOR ACT REVENUE (No 1) (Administrative Review)
[2017] ACAT 71
•15 September 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
FANDS (ACT) PTY LTD v COMMISSIONER FOR ACT REVENUE (No 1) (Administrative Review) [2017] ACAT 71
AT 16, 23, 24, 25, 26, 27/2017
Catchwords: ADMINISTRATIVE REVIEW – President’s power to appoint assessor to the Tribunal – qualifications of assessor – process of appointment – function of assessor – Tribunal may ask assessor for expert advice – assessor to provide specialist or technical advice – assessor a tribunal member – assessor not to decide a question in the application – Tribunal may decide its own procedure in relation to a particular matter in a hearing – procedure to be followed in seeking advice from assessor when hearing and determining present applications
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 8, 23, 26, 52, 88, 89, 97, 108, 109
Queensland Civil and Administrative Tribunal ACT 2009 (QLD) ss 110, 111
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal (Valuer) Assessor Appointment 2017 (No 1) Notifiable Instrument N12017
Cases cited:Attorney-General (Qld) v Kamali (1999) 106 A Crim R 269
Beecham Group Ltd v Bristol Myers Co [1980] 1 NZLR 185
Genetic Institute Inc v Kirin-Amgen Inc(No 2) [1997] 78 FCR 368
Matthews v SPI Electricity Pty Ltd & Ors [2013] VSC 630
Richardson v Redpath, Brown & Co Ltd [1944] AC 62
Tribunal: President G Neate AM
Date of Reasons for Decision: 15 September 2017
RULING ON ROLE OF ASSESSOR
Unusual issues have arisen in relation to the composition of the ACT Civil and Administrative Tribunal (the Tribunal) allocated to hear the applications that are the subject of these proceedings.
For cases such as this, involving expert evidence about the valuation of land, the Tribunal would usually include a member or members of the Tribunal with land valuation qualifications. Because two Tribunal members with such qualifications are associated with the applicant FANDS (ACT) Pty Ltd, and other members of the Tribunal have associations with those members, I thought it prudent to allocate myself to constitute the Tribunal and to appoint as an assessor an expert in land valuation with no association with the parties.
Counsel for the respondent Commissioner for ACT Revenue has raised issues in relation to the nature of the role of the assessor appointed for the purpose of these proceedings, and how the assessor’s role will be exercised in the course of the hearing and, potentially, after the hearing is concluded but before the decision is delivered.
I will deal briefly with four matters in response to the issues raised by counsel:
(a)the power to appoint an assessor;
(b)the purpose of appointing an assessor;
(c)the position or status of an assessor; and
(d)the procedure to be followed by the Tribunal in relation to the assessor.
Power to appoint an assessor
Section 97 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides:
(1) The president may appoint a person to the tribunal as an assessor.
(2) However, the president must not appoint a person under subsection (1) unless satisfied that the person has the experience or expertise to qualify the person to exercise the functions of an assessor.
...
(4) The appointment of an assessor is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.
Section 89 provides, in part:
(4) The president may appoint an assessor to the tribunal for an application.
(5) However, the president must not allocate an assessor to a tribunal unless there is at least one presidential member or non-presidential member allocated to the tribunal.
Those sections have been satisfied in relation to these proceedings with:
(a)the appointment of me as the presidential member of the Tribunal for these applications;
(b)the appointment by me of James John Trickett, a person with valuation and legal qualifications and expertise, and extensive experience in such matters (including in his roles as Valuer-General for Queensland, and then as a member and subsequently President of the Land Court of Queensland), as an assessor.
Mr Trickett’s appointment was made in the ACT Civil and Administrative Tribunal (Valuer) Assessor Appointment 2017 (No 1) dated 29 May 2017[1] which was notified as required.
[1] Notifiable Instrument N12017
Section 109 of the ACAT Act states:
109 Undertaking before exercising tribunal member functions
Before exercising any function as a tribunal member, the member must give an undertaking to the Territory in accordance with schedule 1—
(a) for a presidential member—before a judge of the Supreme Court; or
(b) for a non-presidential member or assessor—before a presidential member.
On 11 September 2017, Mr Trickett gave an undertaking to the Territory in the terms set out in Schedule 1 to the ACAT Act before me.
Purpose of appointing an assessor
Section 108(1) of the ACAT Act states:
(1) An assessor may exercise any function given to an assessor under this Act.
Section 97(3) of the ACAT Act provides:
(3) An assessor may provide specialist or technical advice to a tribunal for an application, if asked by the tribunal.
Mr Trickett has been appointed to provide me with specialist or technical advice, as requested, in relation to the evidence and submissions made about the applications that are the subject of these proceedings.
The use of assessors to assist a judge in understanding scientific, technical or medical matters is time honoured. More than 60 years ago, Viscount Simon LC wrote in Richardson v Redpath, Brown & Co Ltd[2] of the role of medical assessors in court proceedings:
But to treat a medical assessor, or indeed any assessor, as though he were an unsworn witness in the special confidence of the judge, whose testimony cannot be challenged by cross-examination and perhaps cannot even be fully appreciated by the parties until judgment is given, is to misunderstand what the true functions of an assessor are. He is an expert available for the judge to consult if the judge requires assistance in understanding the effect and meaning of technical evidence. He may, in proper cases, suggest to the judge questions which the judge himself might put to an expert witness with a view to testing the witness’s view or to making plain his meaning. The judge may consult him in case of need as to the proper technical inferences to be drawn from proved facts, or as to the extent of the difference between apparently contradictory conclusions in the expert field.[3]
[2] [1944] AC 62
[3] [1944] AC 62, 70 cited in Attorney-General (Qld) v Kamali (1999) 106 A Crim R 269, 274-5 (de Jersey CJ, Thomas JA and Demack J)
Subject to some qualifications that I will describe later, that is the role which Mr Trickett will perform for the Tribunal in these proceedings.
Position or status of an assessor
There is a question about the position or formal classification of an assessor when their function is to provide advice “to a tribunal” yet they are appointed “to the tribunal”.
Section 89 of the ACAT Act is headed Constitution of tribunal for applications. Subsections (1) and (2) state that the President “must allocate tribunal members to a tribunal” for an application, and “may allocate” one or more presidential or non-presidential members to the Tribunal for the application. Section 89(4) and (5) provide:
(4) The president may appoint an assessor to the tribunal for an application.
(5) However, the president must not allocate an assessor to a tribunal unless there is at least one presidential member or non-presidential member allocated to the tribunal. (Emphasis added)
The Dictionary to the ACAT Act provides that:
tribunal member means a presidential member, non-presidential member or assessor.
The definition of ‘tribunal’ in the Dictionary of the ACAT Act does not provide additional clarification or insight in relation to the status of an assessor. Rather:
tribunal means—
(a) the ACT Civil and Administrative Tribunal established under section 88; and
(b) for an application—means the tribunal made up under section 89 for the application; and
(c) for an appeal—an appeal tribunal
Sections 88 and 89 come within Part 9 of the ACAT Act, which is headed The ACT civil and administrative tribunal, and Division 9.1 Establishment and constitution. I have noted already the procedure by which the Tribunal is constituted for an application.
Section 109, quoted above, also appears to treat an assessor as if they are a member of the Tribunal. The undertaking set out in Schedule 1 to the ACAT Act is headed Undertaking for exercise of tribunal member functions.
If those sections are considered alone it seems that the President of the Tribunal may appoint an assessor ‘to’ a Tribunal (in the sense of being part of rather than to assist), but only if at least one presidential member or non-presidential member of the Tribunal is allocated to the Tribunal. In other words, an assessor alone cannot constitute the Tribunal.
It appears elsewhere in the ACAT Act that an assessor has a more limited role than another type of member of the Tribunal. Section 26 provides:
26 Tribunal may inform itself
The tribunal may inform itself in any way it considers appropriate in the circumstances.
The first example of how ‘the tribunal’ may inform itself set out at the end of that section is:
1 asking an assessor for expert advice on a matter.
Section 52(2), which deals with decisions of a Tribunal constituted for an application with more than one Tribunal member, states:
(2) A question in the application is decided according to the decision of the majority of members (other than any assessor) of the tribunal for the application.
In summary, I will proceed on the basis that, for the purpose of these proceedings:
(a)I have allocated myself to the Tribunal for these applications;
(b)I have appointed an assessor to the Tribunal for these applications; and
(c)the assessor is to assist me by providing specialist or technical advice to the Tribunal, if asked by me.
Procedure to be followed by the Tribunal in seeking advice from the assessor when hearing and determining the present applications
The ACAT Act provides little guidance as to how an assessor is to provide assistance to the Tribunal.
As noted earlier:
(a)the Tribunal may ask an assessor for expert advice on a matter (section 26); and
(b)an assessor may provide specialist or technical advice to a Tribunal for an application, if asked by the Tribunal (section 97(3)).
The ACAT Act does not provide specifically how, or when, that advice might be sought or given.
Guidance on that matter must be sought from other sections of the ACAT Act, primarily section 7, but also sections 8, 23 and 26.
7 Principles applying to Act
In exercising its functions under this Act, the tribunal must—
(a) ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and
(b) observe natural justice and procedural fairness.
8 Rules of evidence
To remove any doubt, the tribunal need not comply with the rules of evidence applying in the ACT.
Note The tribunal may inform itself in any way it considers appropriate in the circumstances (see s 26).
...
23 Tribunal decides own procedure
The tribunal may decide its own procedure in relation to a particular matter in a hearing or a step in dealing with an application if no procedure is prescribed under this Act or an authorising law for the application or the rules.
Note 1 The procedures of the tribunal must be as simple, quick, inexpensive and informal as is consistent with achieving justice.
Note 2 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
...
26 Tribunal may inform itself
The tribunal may inform itself in any way it considers appropriate in the circumstances.
Examples
1 asking an assessor for expert advice on a matter
2 relying on previous experience in relation to the matter
Note 1 The tribunal must observe natural justice and procedural fairness (see s 7).
Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
Counsel for the Commissioner provided helpful written submissions which draw attention to the role of an assessor appointed to ‘help’ the Queensland Civil and Administrative Tribunal under detailed provisions, primarily in sections 110 and 111, of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
So far as I can tell, there are material differences between the scheme in the QCAT Act and the less prescriptive provisions of the ACAT Act. In particular, the ACAT Act describes the assessor as a member of the Tribunal and does not set out the functions of an assessor in the same way as the QCAT Act. Of more direct relevance to this case is that I do not intend to ask the assessor to conduct an inquiry or investigation, or to provide a report on such an inquiry or investigation.[4] Nor, having regard to the ACAT Act, would or could I ask him to make a decision of the Tribunal.
[4] See Queensland Civil and Administrative Tribunal Act 2009 section 111
In crafting the procedure to be followed when hearing and deciding these applications, I have drawn on a ruling of Justice J Forrest of the Victorian Supreme Court in Matthews v SPI Electricity Pty Ltd & Ors[5] (Matthews), which in turn was informed by the observations and experience of other judges in other cases – Justice Barker of the High Court of New Zealand in Beecham Group Ltd v Bristol Myers Co[6] and Justice Heerey of the Federal Court of Australia in Genetic Institute Inc v Kirin-Amgen Inc(No 2)[7].
[5] Matthews v SPI Electricity Pty Ltd & Ors [2013] VSC 630
[6] Beecham Group Ltd v Bristol Myers Co [1980] NZLR 185
[7] Genetic Institute Inc v Kirin-Amgen Inc(No 2) [1997] 78 FCR 368
Although the Matthews case involved judicial proceedings, the statutory context in which the ruling was made is similar to the statutory context operating in relation to Tribunal proceedings in the sense that the applicable legislation did not set out specific limitations upon, or guidance concerning, the appropriate role of assessors appointed “to assist the court.”
I have considered the statutory context in which an assessor has been appointed to this Tribunal, the purpose of his appointment, and the need to observe natural justice and procedural fairness. Acting pursuant to section 23 of the ACAT Act to decide the Tribunal’s procedure in relation to the hearing of the present applications, I set out below the scope of the role of the assessor in this case:
(a)The assessor’s role is to assist the Tribunal by providing expert advice on a matter or matters arising in the course of, and in relation to, the applications in these proceedings, but he will not make decisions in relation to the applications that are the subject of these proceedings.
(b)The assessor will sit with me during the hearing. He may question the experts (or counsel) in this context. However, such questioning will be limited to clarification of the evidence; that is, where he considers the evidence to be ambiguous, unclear or incomplete.
(c)I may consult with the assessor while sitting if I find a point of evidence unclear and seek his immediate input as to an appropriate or useful inquiry to make.
(d)I will consult with the assessor whilst in my office on matters raised by the experts in their oral evidence and in their individual reports. This may include advice as to any questions the assessor thinks I should ask counsel or the experts in order to determine the questions at hand.
(e)I will seek the guidance of the assessor on technical matters about which I lack the requisite knowledge to understand without qualified assistance. This may include instruction on matters fundamental to, for example, valuation methodology.
(f)If the assessor raises a theory or opinion that has not previously been identified by the parties, I will discuss the theory or opinion with counsel.
(g)The assessor may from time to time provide me with advice on matters over which there is dispute between the experts. Such advice is not binding, and the determination of a particular issue rests with me.
(h)I anticipate that I will consult with the assessor immediately after the conclusion of the evidence and, from time to time, while drafting the decision. The consultation is likely to include seeking confirmation from him that I have properly understood the meaning of the expert evidence.
(i)The assessor’s role is confined to providing advice and ensuring that I have comprehended the evidence given.
(j)The decision on these issues is mine and mine alone.
………………………………..
President G Neate AM
HEARING DETAILS
FILE NUMBER: | AT 16, 23, 24, 25, 26, 27/2016 |
PARTIES, APPLICANT: | FANDS (ACT) Pty Ltd |
PARTIES, RESPONDENT: | Commissioner for ACT Revenue |
COUNSEL APPEARING, APPLICANT | Mr P Walker SC, Ms A Irving |
COUNSEL APPEARING, RESPONDENT | Mr C Erskine SC, Ms K Katavic |
SOLICITORS FOR APPLICANT | Trinity Law |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | President G Neate |
DATES OF HEARING: | 12 September 2017 |
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