FRANCIS and INSPECTOR-GENERAL IN BANKRUPTCY
[2018] AATA 92
•31 January 2018
FRANCIS and INSPECTOR-GENERAL IN BANKRUPTCY [2018] AATA 92 (31 January 2018)
Division:Taxation and Commercial Division
File Number: 2014/3965
Re:LOUISE FRANCIS
APPLICANT
AndINSPECTOR-GENERAL IN BANKRUPTCY
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:31 January 2018
Place:Melbourne
Although the Tribunal does not have any obligation to give reasons for the directions hearing held on 15 November 2017, it has explained what was discussed at that directions hearing.
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Deputy President S A Forgie
Catchwords
BANKRUPTCY – PRACTICE AND PROCEDURE – directions hearing – request for reasons – no direction made – matter adjourned to allow discussions – explanation given but no obligation to give reasons for a decision made on a procedural step in the proceedings that does not resolve an issue.
Legislation
Administrative Appeals Tribunal Act 1975 ss 25, 33, 35, 36D, 43
Administrative Decisions (Judicial Review) Act 1977 ss 3, 5, 6, 7, 13
Bankruptcy Act 1966 ss 139J, 139K, 139L, 139M, 139N, 139P, 139R, 139S, 139T, 139U, 139W, 139WA, 139ZA, 139ZD, 139ZF, 149Q, 153B
Social Security Act 1991 s 1064-B1
Bankruptcy Regulations 1996 rr 8.12C, 8.12E
Cases
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 64 ALJR 462; 94 ALR 11
Francis v Eggleston Mitchell Lawyers [2011] FMCA 805
Francis v Eggleston Mitchell Lawyers Pty Ltd (No 2) [2012] FCA 485
Francis v Eggleston Mitchell Lawyers Pty Ltd (formerly Eggleston Mitchell Lawyers) [2012] HCATrans 232
Francis v Eggleston Mitchell Lawyers Pty Ltd [2013] FCA 564
Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18
Lamb v Moss [1983] FCA 254; (1983) 76 FLR 296; 49 ALR 533; 5 ALD 446
Secondary Materials
REASONS FOR DECISION
Deputy President S A Forgie
On 15 November 2017, I held a directions hearing in this matter under s 33 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and made directions. The applicant, Ms Francis, asked me for written reasons for my directions when she wrote to the Tribunal on 12 December 2017. Although I do not have any obligation to give written reasons for my directions, I have prepared them and set them out below. I also give reasons for my conclusion that I am not obliged to do so.
THE DIRECTIONS HEARING
In this part of my reasons, I will summarise events that have happened in relation to File No. 2014/3965, to which the directions hearing related, and refer also to File No. 2017/2664, which relates to another application lodged by Ms Francis in a related matter. I will do so as both matters relate to the administration of Ms Francis’s bankrupt estate under the Bankruptcy Act 1966 (Bankruptcy Act). I will begin with the broader background that led to these matters before turning to the particular applications.
Background to the making of the Sequestration Order and seeking its annulment
The background to this matter was set out by the Full Court of the Federal Court in its judgment in Francis v Eggleston Mitchell Lawyers Pty Ltd,[1] when it dismissed her appeal from a judgment of Marshall J in Francis v Eggleston Mitchell Lawyers Pty Ltd.[2] It begins in proceedings begun by Ms Francis in 1993 when she suffered a personal injury and sought damages from the State of Victoria. She alleged that, in 2000, her then solicitor settled those proceedings without her authority and then retained the services of another solicitor when the State of Victoria began proceedings for specific performance against her. When the second solicitor presented her with his memorandum of professional costs in October 2004, Ms Francis disputed them. The solicitor itemised his fees but she did not pay them. This led to proceedings in the Supreme Court and the Master made an order by consent on 11 May 2006 that Ms Francis pay the solicitor’s bill of costs assessed in the sum of $11,847.40.
[1] [2014] FCAFC 18; Rares, Flick and Bromberg JJ
[2] [2013] FCA 564
In 2008, the partnership in which the second solicitor was a partner dissolved and the partners assigned all of the business, work in progress, book debts and liabilities of the former partnership to a company incorporated in that same year. With the professional costs still unpaid and acting under its business name as entered on the Register of the Legal Services Board of Victoria, the company arranged for Ms Francis to be served with a Bankruptcy Notice issued on 17 September 2010. She did not comply with that Bankruptcy Notice with the consequence that the company lodged a Creditor’s Petition in the then Federal Magistrates Court.
On 25 July 2011, a Registrar heard the Creditor’s Petition and made a sequestration order against her estate. Mr Gess Rambaldi and Mr Andrew Yeo were appointed Trustees of her bankrupt estate. Ms Francis had opposed the making of the order but her solicitor had been late in arriving at the Court and did not arrive until after his client had been made bankrupt. She sought review of the Registrar’s order but failed in the Federal Magistrates Court.[3] She lodged an appeal but this was dismissed by Jessup J when she failed to comply with a direction of the Federal Court.[4] Ms Francis applied to the High Court for special leave to appeal but leave was refused on the basis that it had no prospects of success. That factor outweighed all other considerations.[5]
[3] Francis v Eggleston Mitchell Lawyers [2011] FMCA 805; Riley FM
[4] Francis v Eggleston Mitchell Lawyers Pty Ltd (No 2) [2012] FCA 485; Jessup J
[5] Francis v Eggleston Mitchell Lawyers Pty Ltd (formerly Eggleston Mitchell Lawyers) [2012] HCATrans 232; Crennan J
Ms Francis then applied to the Federal Court under s 153B(1) of the Bankruptcy Act for annulment of the sequestration order. She was represented by Senior and Junior Counsel. Her application was heard by Marshall J, who refused to annul the order.[6] The grounds on which he did so are apparent from the judgment of the Full Court when it said:
“ The central issue in this appeal is whether the primary judge erred in failing to be satisfied that a sequestration order against the estate of the appellant, Louise Francis, ought not have been made by a registrar of the Federal Magistrates Court on 25 July 2011. …
The primary judge was not satisfied that the sequestration order ought be annulled on any of the three bases put by senior and junior counsel who then appeared for Ms Francis. She had contended that, first, the petitioning creditor was the first respondent, Eggleston Mitchell Lawyers Pty Ltd (the company) and that it was not a creditor of hers, secondly, the Master’s order was not a final judgment within the meaning of ss 40(1)(g), (3) and 41(3) of the Act and, so, could not found the creditor’s petition and, thirdly, she was solvent as at 25 July 2011 because she was able to pay her debts as and when they fell due.”[7]
The Full Court dismissed Ms Francis’s appeal.
[6] Francis v Eggleston Mitchell Lawyers Pty Ltd [2013] FCA 564
[7] [2014] FCAFC 18 at [1] and [2]
Legislative background relating to administration of a bankrupt estate
Under s 115 of the Bankruptcy Act, Ms Francis’s bankruptcy commenced at the time of the commission of her earliest act of bankruptcy within the six month period before the date on which the Creditor’s Petition was presented.[8] As she was required to do under the Bankruptcy Act, Ms Francis lodged her Statement of Affairs with the Trustee on 12 April 2013.
[8] Bankruptcy Act; s 115
In general terms, all property that belonged to, or was vested in, a bankrupt person at the commencement of bankruptcy is property that is divisible among that person’s creditors. So too is property that the bankrupt person acquires or that devolves upon him or her after the commencement of the bankruptcy and before his or her discharge. That is the broad effect of s 116 although it goes on to deal with specific property that is divisible among the creditors and that which is not as do other provisions of Division 3 of Part VI of the Bankruptcy Act. Division 4 of Part VI is concerned with the realisation of property and the powers of a trustee in relation to that property and the administration of the estate.
Division 4B of the Bankruptcy Act is directed to ensuring that a bankrupt person who derives income during the bankruptcy also pays contributions to his or her bankrupt estate. It is also directed to enabling the recovery of certain money and property for the benefit of his or her bankrupt estate.[9] The word “income” is defined in s 139L. It includes an amount received by a bankrupt person under a trust to the extent that the amount was paid out of income of the trust.[10] The circumstances in which a person is taken to derive income are the subject of ss 139M and 139N. Section 139U obliges a bankrupt person to give the trustee a statement of, in summary, all of the income he or she and his or her dependants derived and expect to derive at the end of a contribution assessment period (CAP).[11]
[9] Bankruptcy Act; s 139J
[10] Bankruptcy Act; s 139L(1)(a)(iv)
[11] A “contribution assessment period” begins on the day of bankruptcy, or an anniversary of that day, and ends one year later or on the day the bankrupt person is discharged or the bankruptcy is annulled: Bankruptcy Act; s 139K.
The circumstances in which a person is liable to pay contributions are determined by reference to ss 139P to 139T of the Bankruptcy Act. The starting point is s 139P, which provides:
“(1) Subject to section 139Q, if the income that a bankrupt is likely to derive during a contribution assessment period as assessed by the trustee under an original assessment exceeds the actual income threshold amount applicable in relation to the bankrupt when that assessment is made, the bankrupt is liable to pay to the trustee a contribution in respect of that period.
(2) Subject to section 139Q, if the income that a bankrupt is likely to derive during a contribution assessment period as assessed by the trustee under an original assessment does not exceed the actual income threshold amount applicable in relation to the bankrupt when that assessment is made, the bankrupt is not liable to, but may if he or she so wishes, pay to the trustee a contribution in respect of that period.”
The approach dictated by s 139P underpins the formula provided in s 139S to work out the amount of the contribution. Section 139S provides:
“The contribution that a bankrupt is liable to pay in respect of a contribution assessment period is the amount worked out in accordance with the formula:
Assessed income – Actual income threshold amount 2
where:
Assessed income means the amount assessed by the trustee to be the income that the bankrupt is likely to derive, or derived, during the contribution assessment period.
Actual income threshold amount means the actual income threshold amount assessed by the trustee to be applicable in relation to the bankrupt when the assessment is made.”[12]
[12] The expression “actual threshold income amount” is defined in s 139K where it is determined by reference to a base income threshold amount which is increased by a specified percentage based on whether or not the bankrupt person has dependants and, if so, how many. The “base income amount” is, for a CAP of one year, the amount that is, at that time, specified in column 3, item 2, Table B, point 1064-B1, Pension Rate Calculator A in the Social Security Act 1991: Bankruptcy Act; s 139K. Point 1064-B1 provides that a person’s maximum basic rate (for pensions such as an age pension, disability pension, carer pension and others specified in point 1064(1)) is determined by reference to the person’s family situation and the amount set out in Table B corresponding to that situation.
Section 139T permits a bankrupt person to apply to the trustee in writing to make a determination which, for all practical purposes, will have the effect of increasing the income threshold amount used in the formula. If it is increased, the contribution that the bankrupt person is liable to pay is reduced but the trustee may only make determination if satisfied that the person will suffer hardship if required to make the contribution as originally assessed under s 139P. The trustee’s decision is reviewable under Subdivision G of Division 4B.[13]
[13] Bankruptcy Act; s 139T(12)
Section 139W obliges a trustee to make an assessment of the income a bankrupt person is likely to derive, or has derived, during each CAP and to do so as soon as practicable to the start of that CAP. The trustee must also determine the actual income threshold amount that is applicable in relation to the bankrupt person when the assessment is made and any contribution that the person is liable to make in respect of the CAP under s 139S.
Section 139R of the Bankruptcy Act provides that:
“Any liability of a bankrupt under section 139P or 139Q is not affected by his or her discharge from bankruptcy after the making of the assessment that gave rise to the liability.”
That is consistent with the fact that the Bankruptcy Act does not impose any limit on an assessment under s 139W and the assessment may be made after the end of a CAP or at a time after a bankrupt is discharged.[14]
[14] Bankruptcy Act; s 139WA
Discharge from bankruptcy is the subject of Part VII of the Bankruptcy Act. Section 149 provides for automatic discharge by operation of law but bankruptcy may be extended when a notice of objection is filed under Subdivision B of Division 2 of Part VII. Section 149K provides for review of a decision to file a notice of objection by the Inspector-General. Section 149Q provides that an application may be made to the Tribunal for review of the Inspector-General’s decision on that review or her decision refusing a request to review a decision of the trustee to file a notice of objection.
Application No. 2014/3965
Mr Yeo and Mr Rambaldi had been appointed as the Trustees of Ms Francis’s bankrupt estate under the Sequestration Order. They made assessments of Ms Francis’s ability to pay contributions to her bankrupt estate in each of three Contribution Assessment Periods (CAPs). Ms Francis sought review of the Trustees’ assessments by applying to the Inspector-General under s 139ZA of the Bankruptcy Act. On review, s 139ZD gave the Inspector-General all the powers of the Trustees and could either confirm their assessments or set them aside and make fresh assessments under s 139ZD. Her delegate carried out the review and decided to set aside the assessments made by the Trustees and to make fresh assessments of Ms Francis’s liability to pay contributions in respect of the CAPs. The assessments as made by the Trustees and those made subsequently by the Inspector-General are:
Contribution Assessment Period
CAP
Trustees’ assessment
Inspector-General’s assessment
25 July 2011 – 24 July 2012
1
$35,775.71
$29,882.60
25 July 2012 – 24 July 2013
2
$78,189.23
$70,784.43
25 July 2013 – 24 July 2014
3
$36,220.71
$18,468.30
Relying on her powers under s 139ZD of the Bankruptcy Act, the delegate made the revised assessments after concluding that Ms Francis had derived the following income in the CAPs:
Contribution Assessment Period
Income from
LE Francis TrustIncome from
JKF TrustAdditional income (reimbursement of legal fees)
CAP 1
$44,519.60
$28,789.00
CAP 2
$50,010.25
$64,850.00
$40,252.00
CAP 3
$39,000.00
$11,480.00
The delegate also decided that Ms Francis was not entitled to a reduction under s 139N(1)(a)(i) of the Bankruptcy Act as she had not submitted her income tax returns or paid any tax to the Commissioner of Taxation for the previous 15 years or more.
During this period, Ms Francis took proceedings in the Federal Court both at first instance and on appeal seeking to have her bankruptcy annulled. She was unsuccessful in each and also in proceedings taken in the High Court in a related matter.
Ms Francis lodged an application in the Tribunal under s 139ZF for review of the delegate’s, and so the Inspector-General’s, decision. The matter was not proceeded with while Ms Francis attended to court proceedings relating to her beneficial interest in her late mother’s estate. Putting aside the toing and froing that has occurred in this matter, at my request, Mr Yeo wrote to Ms Francis providing an estimate of the amount of payment required to annul her bankruptcy following the Commissioner of Taxation’s (Commissioner’s) having lodged a Proof of Debt (POD) on 23 October 2017 in the amount of $318,613.85 replacing an earlier POD on 28 February 2017. Mr Yeo set out his costs incurred to date and an estimate of his costs until a proposed annulment of the bankruptcy. After including those costs and the outstanding amounts owed to creditors, including the Commissioner, and interest and deducting amounts available in cash held at banks, Mr Yeo estimated that a total of $296,911.12 was required to annul the bankruptcy. He also referred to Ms Francis’s interests in two properties that were available to meet the outstanding debt.
Application No. 2017/2664
On 29 November 2013, the Trustees issued three remuneration claim notices (RCNs) under former r 8.12C of the Bankruptcy Regulations 1996 (Bankruptcy Regulations) and sent them to Ms Francis on 4 December 2013. In total, they claimed remuneration of $238,984.50 plus Goods and Services Tax (GST) for the period 9 August 2011 to 29 September 2013. Ms Francis applied for review of those RCNs by an application dated 1 January 2014 but not received by the Inspector-General until 9 January 2014. After making various enquiries, the Inspector-General decided on 7 April 2017 that Ms Francis had not made her application for review of the RCNs within the 28 time limit provided for in the former r 8.12E(2) of the Bankruptcy Regulations and also refused to extend that time. Ms Francis lodged an application for review of the Inspector-General’s decision in the Tribunal on 4 May 2017.
Directions hearing on 15 November 2017
The directions hearing related to File No. 2014/3965 but both matters were discussed. Ms Francis indicated that she maintained her objection to the amount of the assessments that had been made by the Inspector-General on review in substitution for those made by the Trustees. As I understand her, Ms Francis also thought that the Trustees’ had carried out their assessments for the CAPs negligently and should not be permitted to charge for doing so. The Trustees’ costs have never been “legitimised”, Ms Francis said, and the Trustee should not have extended her bankruptcy. She was never insolvent. It was fraud to demand money from her when she did not owe it. Ms Francis wanted to obtain legal advice and she indicated that she would be lodging a lot more applications in the Tribunal.
In relation to the Trustees’ remuneration, including the costs they have incurred in the administration of Ms Francis’s bankrupt estate, the Inspector-General agreed to provide copies of the documents referred to in a Schedule to the decision that had been made on 7 April 2017. It was my understanding that Ms Francis was to engage in further discussions with Mr Yeo regarding her payment of an amount that would finally clear the debts.
Having said that, it was also clear that Ms Francis’s second application in the Tribunal concerned the amount of remuneration to which the Trustees are entitled and the costs they have claimed. The amount affects the size of the overall debt still outstanding. As the two matters are intertwined, the possibility of joining the two matters was raised. I expressed the view that this may be what is done in the end but we need to see whether there is any progress made in the discussions that were scheduled between Ms Francis and the Trustees or their representatives. We would follow the matter up after Christmas as to the discussions and the way forward after the Inspector-General sent the documents to Ms Francis as agreed in relation to File No. 2017/2664. I made no directions.
During the course of the directions hearing, I did raise the question whether there was any point in going down the path of reviewing the assessments in relation to three CAPs when there are sufficient funds to pay for the debts of Ms Francis’s bankrupt estate. Although it is not in issue in this case, it is difficult to see how an objection to her discharge from bankruptcy could be maintained if all of the debts have been repaid. My thinking along those lines presupposes, of course, that Ms Francis agrees that the total debt is owed and/or that she and the Trustees are able to reach an agreement on the amount of that debt. As well as the debt owed to the Commissioner of Taxation, that debt now includes the Trustee’s remuneration, which is quite considerable. Ms Francis has challenged the amount of that remuneration. She is entitled to do that as she did the making of the Sequestration Order in the first place and the amount of professional costs rendered by the solicitors whom she retained in relation to her personal injury claim. Her efforts to have her bankruptcy annulled were unsuccessful even though she lodged an appeal in the Federal Court from the Sequestration Order made by a Registrar of the then Federal Magistrates’ Court, lodged a further unsuccessful appeal to the Full Court of the Federal Court from the judgment of the Federal Court and then an unsuccessful application for leave to appeal in the High Court.
In each stage following her rights, Ms Francis expended considerable emotional costs and, in the initial appeal to the Federal Court, significant legal costs at least in the form of the costs of Senior and Junior Counsel in the proceedings before Marshall J. In each matter, the Trustees were also parties and their costs became costs in her bankrupt estate and so payable from it. What was a dispute over legal fees in relation to legal services rendered during or before 2004 and taxed in the sum of $11,847.40 has become a situation in which she has been made bankrupt and, including the sum of $318,613.85 owed to the Commissioner for 15 years of income and the Trustees’ remuneration and costs and estimated, owes $1,108,017.42.
If she pursues the issue of her being made bankrupt in the first place, which she cannot do in the Tribunal and it is difficult to see how she could do so successfully in the Federal Court now that it has heard and decided her applications, the Trustees’ costs will increase and, as a consequence, the amount of the debt owed by her bankrupt estate. Ms Francis’s financial position, which might be thought to have been comfortable, is quickly being eroded. As I have said, she is entitled to seek review of the assessments for each of the CAPs but to do so would be pointless if she can reach an agreement with the Trustees and resolve the matter. She is entitled to seek review of the Trustees’ remuneration and their costs and I suggested that if she wishes to do so, the application regarding the assessments for each of the CAPs should be joined.
I also suggested that to take further steps regarding annulment as she has indicated she might is putting good money after bad and, in the end, it is all money from her bankrupt estate. I suggested at the directions hearing that she think about all of these things and make efforts to come to a resolution with the Trustees. The matter was adjourned.
NO ENTITLEMENT TO REASONS
I have set out what happened in the directions hearing and placed it in its context. There were no directions arising out of the matters that were discussed and explored. As I said at the outset, a party to a proceeding does not have an entitlement to written reasons and I will explain why that is so.
Administrative Appeals Tribunal Act 1975
Section 43(1) of the AAT Act provides that, for the purpose of reviewing a decision, the Tribunal may exercise all of the powers and discretions that are conferred by any relevant enactment on the person who made the decision. The decision that is being reviewed is the decision in relation to which an application for review has been lodged in the Tribunal and that may be reviewed by the Tribunal. A decision in relation to which an application may be lodged is a decision that an enactment, including a regulation, has specified as a decision in relation to which an application may be made. That is the effect of ss 25(1), (2) and (3) of the AAT Act. In the case of the application in File No. 2017/3965, that decision is the Inspector-General’s decision when reviewing the Trustees’ assessments. It is identified in s 139ZF of the Bankruptcy Act:
“An application may be made to the Administrative Appeals Tribunal for the review of:
(a)a decision of the Inspector-General on the review of a decision by a trustee to make an assessment; or
(b)a decision by the Inspector-General refusing a request to review a decision by a trustee to make an assessment.”
Having carried out the review, the Tribunal is required to make a decision in writing. Its decision must be a decision either affirming or varying the decision under review or setting aside that decision and either substituting a decision or remitting the matter for reconsideration in accordance with any directions or recommendations it made. Once it has made its decision, the Tribunal must give a copy of its decision to each party in the proceeding: s 43(3).
The Tribunal’s decision and its reasons for decision are two separate things just as a court’s judgement and reasons for judgment are two separate things. In the case of the Tribunal, s 43(2) of the AAT Act provides:
“Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.”[15]
The choice whether to give reasons orally or in writing is that of the Tribunal. If it chooses to give oral reasons, a party to the proceeding may ask for a statement in writing of the reasons but must do so within 28 days after the day on which a copy of the decision is given to that party.[16] The Tribunal has 28 days after receiving the request within which to give a statement in writing of its reasons.[17] That statement must include its findings on material questions of fact and refer to the evidence or other material on which the findings were based.[18]
[15] The content of those reasons must include the Tribunal’s findings on material questions of fact and a reference to the evidence or other material on which those findings were based: AAT Act; s 43(2B).
[16] AAT Act; s 43(2A)
[17] AAT Act; s 43(2A)
[18] AAT Act; s 43(2B)
Section 35 is concerned with confidentiality and s 36D with confidentiality when certain matters of public interest are relevant considerations. Neither is relevant in this case so that I was required to give reasons for any decision that I made on review of a decision made by, in this case, the Inspector-General.
I was not reviewing the decision of the Inspector-General. Instead, I was concerned with procedural matters directed to moving the application to some resolution. I held the directions hearing under the authority of s 33 of the AAT Act and gave “directions” and made no decision of the sort referred to in s 43(1). Therefore, I was under no obligation to give reasons under s 43(2) of the AAT Act.
Administrative Decisions (Judicial Review) Act 1977
Section 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) provides:
“Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Circuit Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.”
Applications may be made under ss 5, 6 or 7 of the ADJR Act. Taking s 5(1) as an example, “A person who is aggrieved by a decision to which this Act applies … may apply to the Federal Court … for an order in respect of the decision …” on one or more of the grounds that are then specified. A “decision to which this Act applies” is defined in s 3(1) to mean “… a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not …) …” under an enactment as defined in s 3(1) but excluding decisions made by the Governor-General or a decision included in any of the classes of decision set out in Schedule 1 to the ADJR Act.
In the context of s 5, in which it was considered by the High Court in Australian Broadcasting Tribunal v Bond[19] (Bond). Before turning to the ADJR Act Mason CJ, with whom Brennan and Deane JJ concurred, found that the word “decision” has a variety of potential meanings. He looked to the fact that the ADJR Act is a remedial statute. Its being a remedial statute indicates that no narrow view should be taken of the word “decision”. An examination of its provisions, though, suggested that the word should have a relatively limited field of operation. The relevant policy provisions are competing. Mason CJ weighed them:
“… On the one hand, the purposes of the A.D.(J.R.) Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of ‘decision’ is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen C.J. and Lockhart J. appeared to emphasize the first of these considerations in Australian National University v Burns …, there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret a ‘decision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.
The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable ‘decision’ is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Another essential quality of a reviewable decision is that it be a substantive determination. …
If ‘decision’ were to embrace procedural determinations, then there would be little scope for review of ‘conduct’, a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the ‘conduct’ of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of an adjournment in this way is more consistent with the concept of ‘conduct’ than with the notion of ‘decision under an enactment.’.”[20]
[19] [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 64 ALJR 462; 94 ALR 11; Mason CJ, Brennan, Deane, Toohey and Gaudron JJ
[20] [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11 at [31]-[34]; 336-338; 10-11; 23-24
Mason CJ made it clear that a reviewable decision need not be one which ultimately determined all of the issues when he referred to Lamb v Moss.[21] His Honour said:
“ Lest it should be thought otherwise, I should say that, to the extent in Lamb v Moss that the magistrate decided that a prima facie case had been established and that he would proceed with the committal proceedings, a reviewable decision had been made. That decision was one for which s 41(2) of the Justices Act 1902 (NSW) specifically provided. The decision resolved an important substantive issue to be determined before the ultimate decision could be made under s 41(6) of that Act whether to commit the defendant for trial or discharge him from custody.”[22]
[21] [1983] FCA 254; (1983) 76 FLR 296; 49 ALR 533; 5 ALD 446
[22] [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11 at [36]; 338; 12; 24
Some hearings that do not lead to review of a decision and a final decision under s 43 of the AAT Act but they can arguably be said to resolve a substantive issue and would lead to an entitlement to reasons. A decision on an application for a stay under s 41 of the AAT Act would be an example. It resolves the issue of whether the decision under review continues to operate and be in effect during the proceedings for its review. Procedural matters, however, do not resolve any substantive issue and this case was concerned solely with procedural matters. Apart from a decision to adjourn the directions hearing to enable negotiations between the parties, not only did I not make a decision in the directions hearing I held on 15 November 2017, I did not make any form of decision that resolved any substantive issue. There was no decision of the sort in relation to which a person could seek review under s 5 of the ADJR Act.
Section 6 of the ADJR Act would not support an application for review. It relates to conduct for the purpose of making a decision. My conduct of the directions hearing was directed to making some progress in the parties’ being ready for hearing so that the Tribunal could make a decision if they could not resolve it. It was not conduct for the purpose of making a decision per se. Neither was it conduct that amounted to failure to make a decision for it was not a proceeding directed to the resolution of the substantive matter but with progressing the matter to a point where the decision could be made.
For these reasons, I was not obliged to give reasons under either the AAT Act or the ADJR Act but I have set out what happened during the course of the directions hearing held on 15 November 2017 and what was sought to be achieved.
| I certify that the preceding forty (40) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
.......[sgd]...........................................................
Associate
Dated: 31 January 2018
| Date of directions hearing: | 15 November 2017 |
| Self-represented Applicant: | Ms Louise Francis |
Solicitor for the Respondent: | Mr Varun Ravindran and Mr Jonathan Massenya |
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