HOFMANN and REDDING

[2012] FCWA 84

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: CHILD SUPPORT (REGISTRATION and COLLECTION) ACT 1988

LOCATION: PERTH

CITATION: HOFMANN and REDDING [2012] FCWA 84

CORAM: CRISFORD J

HEARD: 15 AUGUST 2012

DELIVERED : 13 SEPTEMBER 2012

FILE NO/S: PTW 4930 of 2010

BETWEEN: PAUL AARON HOFMANN

Applicant

AND

NAOMI JADE REDDING
First Respondent

AND

CHILD SUPPORT REGISTRAR
Second Respondent

Catchwords:

CHILD SUPPORT APPEAL - Procedural fairness - Error of Law - Ground proven

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr R Klimek

First Respondent : Mr J Hedges

Second Respondent : Mr Kaplan

Solicitors:

Applicant: Klimek & Co

First Respondent : Hunter Cook Legal

Second Respondent : Department of Human Services

Case(s) referred to in judgment(s):

Australian Telecommunications Corporation v Lambroglou (1990)12 AAR 515

Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143

Frost & Frost & Anor (SSAT Appeal) [2011] FMCAFam 1311 at [66]

Kioa v West (1985) 159 CLR 550 at 584-585

Manchester & Manchester [2011] FMCAfam 1215

Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304 at 314

R v Commonwealth Conciliation and Arbitration Commission ex parte Angliss Group (1969) 122 CLR 546 at 552 – 553)

Russell v Duke of Norfolk [1949] 1 All ER 109 at 118

Stead v State Government Insurance Commission (1986) 161 CLR 141

Tasman & Tisdall [2008] FMCA 126

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL

JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Background to proceedings

1The appellant, [Paul Aaron Hofmann], and the respondent [Naomi Jade Redding], were married [in] February 2008 and separated a little over two years later [in] March 2010. They have one child together, [Ashley Hofmann] born on [in] April 2009. This is an appeal from proceedings in the Social Security Appeals Tribunal (SSAT) about what child support (if any) the appellant should pay for Ashley.

2At the time of marriage, both parties worked full time. However, when Ashley was born, the respondent took paid and unpaid leave and became Ashley’s primary carer. After separation, the respondent continued to be Ashley’s primary carer, but returned to work 2 days a week. The appellant was working full time as a company director and CEO.

3The respondent applied to the Child Support Agency (CSA) for an assessment of child support on 22 March 2010. On 22 June 2010, a Senior Case Officer of the CSA made an assessment on the basis that the appellant had $0 income for the period 22 March 2010 to 22 June 2010. The respondent objected to that assessment and on 6 September 2010 her objection was rejected. The respondent then appealed the assessment to the SSAT. On 10 February 2011, the SSAT heard the appeal as a hearing de novo and set the appellant’s taxable income for the period from 1 July 2010 to 30 June 2011 at $125,400 per annum, while maintaining the assessment of his income for the period March 2010 to 30 June 2010 at $0. It is from this decision that the appellant now appeals.

Proceedings in the Family Court

4On 15 March 2011, the appellant filed a notice of appeal in the Family Court which asserted 12 grounds of appeal. This appeal came before a Magistrate who summarily dismissed the appeal on 26 May 2011. Written reasons for the dismissal were given on 12 April 2012. Following receipt of these reasons, the appellant attempted to file a notice of appeal against the Magistrate’s decision on 14 May 2012. The appeal was accepted for filing. It was allowed by consent on 6 July 2012. In allowing the appeal, the presiding judge made orders that the notice of appeal filed 15 March 2011 be remitted for re-hearing in the Magistrates Court. As the parties are also involved in substantive proceedings in the Family Court in relation to their parenting arrangements and property settlement, this appeal was transferred to the Family Court to be heard before me. I heard submissions from the appellant, the respondent and the Child Support Registrar (as second respondent) on 15 August 2012.

Grounds of Appeal

5In the outline of submissions filed by the appellant on 10 August 2012, the appellant relied on only two of the original grounds of appeal set out in his notice of appeal of 15 March 2011. Those grounds are:

1.The Social Security Appeals Tribunal (“Tribunal”) has failed to correctly apply s88 of the Child Support (Registration and Collection) Act 1988 (Cth) (“CSRC Act”);

2.The Tribunal has failed to correctly arrange for hearings pursuant to s103A of the CSRC Act.

6The appellant said that I should read these grounds as if they alleged a denial of procedural fairness to the appellant. I deal with this issue a little further on in the judgment. However, in support of the allegation that he was denied procedural fairness, the appellant referred to a number of factual matters and material not previously in evidence before this Court.

7The crux of his argument was that he was denied procedural fairness because he appeared by telephone at the SSAT hearing while the respondent appeared in person. The background to this circumstance was set out in the appellant’s written submissions as follows:

The appellant and first respondent received written notice pursuant to Section 103A of the Registration and Collection Act that they were required to attend the scheduled hearing in person. Later the appellant received a conflicting letter from the SSAT advising him that he was required to attend by telephone. The appellant emailed the SSAT to seek clarification as to the contradictory requests, namely that he was to attend the hearing both in person and by telephone. The appellant received an email in response from the SSAT requiring him to appear by telephone. The appellant also spoke to an employee of the SSAT who told him that he was required to appear by telephone and not in person.

8The appellant also relied on parts of the transcript of the proceedings of the SSAT on 20 January 2011 which showed that Ms Martellotta, the Principal Member of the SSAT, had requested that the parties appear in person, and that the appellant informed the SSAT that he had been told to appear by telephone. The hearing then proceeded on the basis that the SSAT could adjourn the hearing if it deemed such action necessary.

9At the hearing before me on 15 August 2012, I was presented with copies of the correspondence between the appellant and the SSAT which confirmed that:

•On 26 November 2010, the Principal Member of the SSAT made directions that both parties would participate in person at the hearing to be scheduled on 20 January 2011;

•The SSAT wrote to the appellant on 29 November 2010 to inform him that his hearing would be conducted by telephone at 10:30am on 20 January 2011;

•The SSAT also provided a document of the same date showing a hearing scheduled for the appellant on the same date and time at 109 St Georges Tce, Perth;

•The appellant wrote via email to the SSAT on 10 December 2010 asking for confirmation of which information was correct;

•A representative of the SSAT replied to the appellant’s email on 13 December 2010, confirming that the telephone meeting was the correct information.

10No evidence was given in relation to the alleged telephone calls between the appellant and employees of the SSAT. I was referred to other parts of the transcript as they related to the specific submissions of the appellant. I deal with that evidence in my discussion below.

The relief sought

11In his notice of appeal of 15 March 2011, the appellant sought the following orders:

1. That the decision of the Tribunal of 22 Feb 2011 be set aside with immediate effect pursuant to the provisions of s98E of the Act apply;

2. That the income generated by [CAM] Pty Ltd as Trustee for [C] Trust in relation to [employment omitted] by the Applicant be included in the calculation of the Applicant’s adjusted taxable income for the period 1 Jul 2010 to 30 Jun 2011; and

3. That the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997 otherwise apply in the calculation of the Applicant’s adjusted taxable income for the period 1 Jul 2010 to 30 Jun 2011.

12In written and oral submissions, the appellant no longer sought orders in these terms. It was submitted that if I was minded to allow the appeal, the appropriate course would be to set aside the decision of the SSAT and remit the matter to the SSAT for rehearing under s110F of the CSRC Act.

The relevant law

13The appeal to this court comes before me on the basis of s110B of the Child Support (Registration and Collection) Act 1988 (Cth):

110B Appeals from decisions of SSAT

A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.

14It is clear from this section that the preliminary inquiry I must make is whether any of the grounds of appeal relied upon by the appellant can be categorised as questions of law. If not, I must dismiss the appeal.

15It appears to be accepted by the parties, and I am also satisfied, that a ground of appeal which raises the question of whether procedural fairness was given to a party is an appeal on a question of law (Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 37 AAR 309 at 312). In Tasman & Tisdall [2008] FMCA 126, Brown FM gave a succinct summary of what constitutes an error of law (at [44]):

An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:

• fails to construe properly the legislative provisions applicable;

• identifies the wrong issues or asks itself the wrong questions;

• ignores relevant material or relies on irrelevant material;

• fails to accord procedural fairness to the party before it;

• makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.

16The appellant argues that his grounds of appeal can be read as an appeal on the grounds of procedural fairness, and as such, the appeal is one on a question of law.

Reading the grounds of appeal

17As a general rule, a ground of appeal must be “stated with precision as a pure question of law” (Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [18]).

18The submissions on behalf of the appellant highlight that at the time the appellant drafted his notice of appeal, he was unrepresented. I was referred to authority such as LDME and JMA (SSAT Appeal) [2007] FLC 98-034 where Halligan FM (at [31]) took the view that

an unduly legalistic or pedantic approach should not be taken in analysing…grounds of appeal...especially with unrepresented litigants. The court must try to identify from the case presented whether the question of law arises that may justify the order sought and strive consistent with the requirements of procedural fairness to deal with the substance of the case.

19It was proposed that I should accept that despite the drafting of the grounds of appeal, the appellant was in fact asserting a denial of procedural fairness.

20Counsel for the Child Support Registrar submitted that the grounds of appeal relied upon by the appellant did not on their face reveal a question of law. Counsel submitted that the ground of procedural fairness is a substantively different ground from that pleaded in the notice of appeal. While the CSR accepted that I should proceed ‘without undue formality’ (Family Court Act 1998 (WA), s212(3)) it submitted that as the appellant was now represented in relation to this appeal, he should have filed an amended notice of appeal setting out the basis of his procedural fairness ground of appeal. Counsel argued that by failing to do so and failing to provide supporting evidence to the court prior to the hearing, the CSR has been prejudiced in the presentation of its case.

21I was also referred to Australian Telecommunications Corporation v Lambroglou (1990)12 AAR 515 where Ryan J said (at 527):

...it simply begs the question of law to commence it with the words “Whether the Tribunal erred in law.” If the question, properly analysed, is not a question of law no amount of formulary like “erred in law” or “was open as a matter of law” can make it into a question of law.

22Ground 1 of the appeal alleges that the Tribunal failed to correctly apply s88 of the CSRC Act, which reads:

88 SSAT objective

In carrying out its functions under this Act, the SSAT must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

23Ground 2 of the appeal alleges that the Tribunal failed to correctly arrange for hearings according to s103A of the CSRC Act, which reads:

103A Arrangements for hearings

(1) The SSAT Principal Member must fix a day, time and place for the hearing of a review of a decision if:

(a)an application is made to the SSAT for review of the decision; and

(b)the parties to the review do not reach an agreement before a hearing of the review is to begin; and

(c)the SSAT Principal Member has not already done so at a pre‑hearing conference.

(2) The SSAT Principal Member must give the applicant and any other parties to the review written notice of the day, time and place fixed for the hearing of the application.

(3) The notice under subsection (2) must be given a reasonable time before the day fixed for the hearing.

24Section 103A deals with the requirement that the Principal Member of the SSAT set a time and place for hearing and inform the parties. Any breach of that section could not be reviewed by this Court, as it involves actions and decisions of the Principal Member, not of the Tribunal itself.

Other jurisdictional issues – s 103C(3)

25In his written and oral submissions, counsel for the CSR says that at least part of the appellant’s grounds of appeal as set out in his submissions of 10 August could not be determined by this court.

26Part of the appellant’s complaint in relation to procedural fairness is that he was told by the SSAT to appear by telephone when he could have appeared in person. The CSR says that the decision to have the appellant appear by telephone is a decision of the Principal Member of the SSAT under s 103C(3), and as such cannot be the subject of an appeal under s110B. Section 103C(3) reads:

(3)The SSAT Principal Member may determine that submissions to the SSAT by a party or a party’s representative are to be made by telephone or by means of other electronic communications equipment.

27Section 110B allows appeals against a decision of “the SSAT”. SSAT is defined in s4 of the CSRC Act as the ‘Social Security Appeals Tribunal’, while the SSAT Principal Member is defined separately as ‘the Principal Member of the SSAT’ (see also Manchester & Manchester [2011] FMCAfam 1215, per Halligan FM at [75]). I accept that I have no power under s110B to review a decision of the Principal Member.

28However, the evidence before me shows that Ms Martellotta, the Principal Member, directed that both parties were to appear in person. The directions made by her on 26 November 2010 state:

I hereby direct that…the Applicant [Ms Redding] will participate in person and the Other Party [Mr Hofmann] will participate in person.

29Further, in the transcript of proceedings, Ms Martellotta (who also sat on the Tribunal) reiterated her directions:

MS MARTELLOTTA: …Can I just clarify at the outset, just so it’s clear, I did indicate in my directions that I had wanted both parties present in person today

MR HOFMANN: Yes

MS MARTELLOTTA: It appears that, due to some misunderstanding on the part of our registry, Mr Hofmann, you were advised that you could participate by telephone; is that correct?

MR HOFMANN: Well, not so much that I could. I was actually told that I had to participate by telephone I was- I – I actually rang and said that I – I understood that I had to come in and they said, “No. You don’t. You – you need to be by phone.”

MS MARTELLOTTA: Yes

MR HOFMANN: so I – I was quite – quite happy to come in, no problems doing that at all.

MS MARTELLOTTA: Okay

MR HOFMANN: In fact, I probably would have preferred to.

MS MARTELLOTTA: Right. Well, I think that would have been our preference as well.

30I am not restricted from reviewing the conduct of the hearing before the SSAT to establish whether the appellant was afforded procedural fairness in those proceedings. There is in this case no question of reviewing a decision of the Principal Member. The question before me is whether the administrative error that led to the appellant appearing by telephone and the decision of the Tribunal to continue the hearing in those circumstances has contributed to or resulted in a denial of procedural fairness to the appellant.

31It would have been desirable for the grounds of appeal to have been amended by the appellant after he retained counsel. However, from the outset it appears to have been reasonably obvious that the appellant was making a general complaint about a lack of procedural fairness. He has not articulated that in a precise legal fashion, but that is, and has always been, the nub of his argument. This was recognised by Magistrate Stewart in her written reasons of 12 April 2012. She remarks that the appellant “essentially claimed that he had been denied procedural fairness…”.

32I do not consider that any party has suffered significant disadvantage as a result of any lack of amendment to the grounds of appeal. I am satisfied the issue has been appropriately covered in both written and oral submissions.

Was the appellant denied procedural fairness?

The relevant law

33The requirements of procedural fairness have been discussed in numerous cases. The two broad rules which must be adhered to were clearly set out in Frost & Frost & Anor (SSAT Appeal) [2011] FMCAFam 1311 at [66]:

In brief terms, the requirement that a hearing be procedurally fair requires the decision making tribunal concerned to apply the rules of natural justice. There are two traditional rules of natural justice. Firstly, the hearing rule which requires a decision maker to hear a person before making a decision which affects the interests of that person. Secondly, the bias rule which provides for the disqualification of a decision maker where doubts arise as to the actual or perceived impartiality of the decision maker concerned. (citations omitted)

34It does not appear to be strongly alleged by the appellant that the Tribunal was, or gave the appearance of being, biased against him. His argument appears to rest on the “hearing rule” (audi alteram partem), requiring that ‘the person concerned should have a reasonable opportunity of presenting his case’ (Russell v Duke of Norfolk [1949] 1 All ER 109 at 118, cited with approval in R v Commonwealth Conciliation and Arbitration Commission ex parte Angliss Group (1969) 122 CLR 546 at 552 – 553).

35I was not referred to any case authority where the rule has been applied to give a party a right to present their case in person rather than by telephone, or even a case where such a circumstance contributed to a party being denied the opportunity to present his case.

36However, it is clear that what is required to ensure procedural fairness depends on the nature of the matter being heard. As Mason J said in Kioa v West (1985) 159 CLR 550 at 584-585:

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, Kitto J. pointed out (at pp 503-504) that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on "the particular statutory framework". What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting (citation omitted).

In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations…

37Gibbs CJ similarly noted in the same case (at 563) that:

[t]he rules of natural justice are flexible, requiring fairness in all the circumstances, including the nature of the power exercised and the statutory provisions governing its exercise: Bread Manufacturers of N.S.W. v. Evans (1981) 56 ALJR 89, at pp 94, 101; 38 ALR 93, at pp 102, 117; National Companies and Securities Commission v. The News Corporation Ltd. (1984) 58 ALJR 308, at pp 314, 318; 52 ALR 417, at pp 427-428, 434.

38In light of these guiding statements, it is appropriate to have regard to some of the legislative provisions which govern the exercise of power by the SSAT. In particular, s88 of the CSRC Act requires that ‘[i]n carrying out its functions under this Act, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick’. I also note s103N:

103N Hearing procedure

(1) The SSAT, in reviewing a decision under this Part:

(a)is not bound by legal technicalities, legal forms or rules of evidence; and

(b) is to act as speedily as a proper consideration of the review allows; and

(c)in determining what a proper consideration of the review requires, must have regard to the objective laid down by section 88.

(2)The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate.

Discussion

39In oral and written submissions, the appellant alleges that he was disadvantaged by appearing by telephone in the following ways:

•the appellant did not elect to attend by telephone;

•the respondent was not instructed to attend by telephone;

•the appellant did not have to opportunity to peruse documents referred to by the tribunal;

•the appellant had difficulty hearing the proceedings at certain times;

•the appellant may have found it more difficult to follow the proceedings than if he had appeared in person;

•a document was handed up during proceedings and the appellant was not provided with a copy of it until after the proceedings had adjourned.

40The appellant also alleged that the proceedings were abruptly concluded and the appellant was denied the opportunity to make further submissions in response to submissions of the respondent. I will set out the relevant evidence relating to each allegation below.

Appearance by telephone

41The appellant’s written submissions assert that the appellant was ‘disadvantaged’ because:

20.1the appellant did not elect to attend by telephone, but rather was compelled to attend in such a manner despite making reasonable enquiries upon receipt of the conflicting information from the SSAT to the notice of the hearing;

20.2the first respondent obtained no such conflicting information;

20.3the appellant had a diminished opportunity to engage with the members of the SSAT by telephone than he would have had if he was present at the hearing.

42Counsel for the appellant submitted that potentially the fact of the appellant appearing by telephone when it was his preference to appear in person in and of itself prejudiced the appellant and resulted in procedural unfairness. The above written submissions appear to be directed to this issue.

43Counsel for the CSR submitted that there is a dearth of evidence in respect of what he submitted was a crucial part of the appellant’s case. He submitted that it was necessary for the appellant to produce evidence to show what submissions or responses he would have made either during or after the hearing that he was prevented from making because of his appearance by telephone; that is, the appellant has failed to show in what way he was disadvantaged by the procedure adopted by the Tribunal. Counsel referred to Minh v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 304 at 314 where Weinberg J said:

The duty to act fairly, in the sense of according procedural fairness, may of course be breached if a party is not given a reasonable opportunity to make relevant submissions, to give evidence, and to call witnesses in support…

At the same time, however, the opportunity to make relevant submissions, to give evidence, and to call witnesses in support which must be afforded will always be qualified by a requirement that the material and argument sought to be presented must be sufficiently relevant and significant to warrant being received.

44Counsel for the CSR argued that no evidence had been given that the appellant had been denied the opportunity to present any relevant evidence or submissions as a result of the way the hearing was conducted. This submission was also addressed and supported by Counsel for the respondent, who referred to the case of Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 37 AAR 309, in which their Honours Gray A-CJ and North J held that a court should ‘refuse to set aside [an] order if it cannot be shown that the denial of procedural fairness deprived the applicant of a fair opportunity to obtain a favourable decision’. The High Court considered a similar issue in Stead v State Government Insurance Commission (1986) 161 CLR 141, where the court commented (at 145):

… not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.

45Their Honours phrased the test in the following terms (at 147);

All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.

46Even taking this into account, I do find the appellant’s submission has merit. However, I will return to consider it again at the conclusion of the judgment.

Difficulty hearing proceedings

47The appellant’s written submissions says that the appellant was ‘disadvantaged’ because:

20.5the appellant had difficulty audibly hearing some of the comments made during the hearing…

20.6The hearing of itself was more difficult for the appellant to follow by telephone than if would have been if he were present, particularly given he is a self-represented litigant.

48Some examples were referred to in the transcript of hearing (page 17):

MR HOFMANN: Can – sorry, can – can I just ask that Naomi talk slower because I’m trying to take notes here for things that I’m going to raise as questions. But I can’t if – if – if you’re racing along, Naomi.

…

MS MARTELLOTTA: [addressing Ms Redding] so you’ve heard that so if you could slow down. But in essence, I think Ms Hofmann is making the point that in her view there’s no evidence that the outstanding payment hasn’t been made.

MR HOFMANN: I understand.

49Similar requests to repeat evidence or slow down the dialogue were made throughout the hearing. In each instance the discussion prior to the request was repeated or summarised.

50I find no merit in this argument of the appellant. The transcript speaks for itself.

Availability of documents A1 to A82 and B1 to B129

51The appellant’s written submissions assert that the appellant was ‘disadvantaged’ because

20.4the appellant did not have the opportunity to peruse disclosure documents provided by the First Respondent paginated as A1 to A8 [sic] and B1 to B129 which the appellant had not been provided, yet could have had the opportunity to view at the hearing if he had been present at the hearing.

52I was referred to particular passages of transcript concerning this issue. When asked if he had the papers numbered A1 to A82 in front of him his response was as follows:

MR HOFMANN: Sorry, which papers were they?

MS MARTELLOTTA: A1 to – A1 to A82.

MR HOFMANN: No. I have no idea what you’re talking about.

MS MARTELLOTTA: So these are additional documents that were lodged by Ms Hofmann as part of – in response to the directions that we issued.

MR HOFMANN: No. No. I don’t have any of that.

MS MARTELLOTTA: So you don’t have those papers?

MR HOFMANN: No. No.

MS MARTELLOTTA: And are you saying that you haven’t received them?

MR HOFMANN: I haven’t received them, no.

MS MARTELLOTTA: Okay.

MR HOFMANN: Which – which documents are – there are the response to the disclosures that you – you requested from me, and – and from Naomi?

MS MARTELLOTTA: Correct.

MR HOFMANN: I – I definitely have not received any of those.

53The Principal Member then went on to confirm the appellant had the papers numbered B1 to B129. He confirmed that he had them in front of him, although he thought perhaps some of the documents would only be on his laptop. In any event, documents B1 to B129 were those filed by the appellant for the hearing.

54Returning to the issue of documents A1 to A82 the transcript reads as follows:

MR HOFMANN: So what – what address was the – the material from Naomi sent to?

MS MARTELLOTTA: Well, I assume to the address that – I don’t have a copy of the covering letter, but I’m assuming it would have been sent to the address that’s with the registry.

MR HOFMANN: To the PO Box, yes.

MS MARTELLOTTA: And it would have been the same address that I assume that he directions were sent to.

MR HOFMANN: The letters, yes. Well, that’s the post office box and that was checked – it would have been checked a week ago at the – at the latest.

MS MARTELLOTTA: Okay. So you haven’t checked your mail in the last week?

MR HOFMANN: Well, not in the last week, no.

MS MARTELLOTTA: This week?

MR HOFMANN: Or thereabouts.

MS CROSS: Well then, that’s probably the explanation.

MS MARTELLOTTA: Yes. So, as Ms Cross pointed out, that’s probably the explanation as to why you haven’t ---

MR HOFMANN: Right.

MS MARTELLOTTA: --- got those documents.

MR HOFMANN: Okay.

MS MARTELLOTTA: But as I said I’m inclined to proceed and ---

MR HOFMANN: Yes.

MS MARTELLOTTA: --- if that becomes an issue I think we can deal wit that as and when it arises.

MR HOFMANN: No. I’m fine with that.

55I am not satisfied there is merit in this argument of the appellant. Again, the transcript speaks for itself.

Tender of additional document by the respondent

56The appellant’s written submissions say that the appellant was ‘disadvantaged’ because:

20.7the first respondent was able to tender a document during the hearing that he appellant had not seen, not was he able to view as he would have been able if he was present.

57I was referred to the following passage of transcript:

MS HOFMANN: okay. Well, firstly, if I can just go through the notes that I’ve got on the comments that Paul sent in his documents that he has just sent through to you, and then I would like – just like to go through the submission that I have based on the financial information that Paul has and has not provided.

MS MARTELLOTTA: Okay.

MS HOFMANN: So, if that’s okay?

MS CROSS: Yes.

MS MARTELLOTTA: We’re happy with that.

MS HOFMANN: And I can provide you with the notes from the solicitor here, and I had one for Paul as well.

MS MARTELLOTTA: Okay, Do you want to give those to us now?

MS HOFMANN: I could give them both to you.

MS MARTELLOTTA: That might be helpful as you go through.

MS CROSS: Yes.

MS HOFMANN: Yes. But ---

MS MARTELLOTTA: Mr Hofmann, we will arrange for a copy of that to be sent to you.

MR HOFMANN: Sure.

58I accept that the document referred to was not available to the appellant at the Tribunal hearing. I was not presented with any evidence as to whether the appellant was later provided with a copy of the document as indicated by the Tribunal. It was submitted that the appellant did receive the document after the hearing but was not allowed the opportunity to respond to its contents.

59I find no merit in this argument as I am satisfied the appellant had an appropriate opportunity at the conclusion of the hearing to address this matter - I will refer to this under the heading - Further contact with the SSAT.

Abrupt end to proceedings

60In oral submissions, counsel for the appellant raised the manner in which proceedings were concluded as an event in which procedural fairness was denied to the appellant.

61The relevant parts of the transcript read as follows:

MS MARTELLOTTA: Okay. Look, at this point I think it’s appropriate that we conclude the hearing. We’ve been her for a number of hours, and I thank you both for your patience. You still there, Mr Hofmann Mr Hofmann?

MR HOFMANN: Sorry. I – I actually didn’t get a chance to respond so ----

MS MARTELLOTTA: Okay. Were there some points that you wanted to respond to?

MR HOFMANN: Well, I mean ---

62The appellant then addresses his view of some of the issues raised in the proceedings. Ms Martellotta concludes the hearing and advises the parties on the procedure to follow next.

MR HOFMANN: Just a quick question for you ---

MS MARTELLOTTA: No. I’ve concluded the hearing now, Mr Hofmann.

MR HOFMANN: I – I understand that. I’m not asking it as part of the hearing. I’m asking it – just a question. Is that okay or am I not allowed to ask a question?

MR HOFMANN: Just in relation to – there are various points that Naomi raised in her first, sort of, stint of talking ---

MS MARTELLOTTA: Yes.

MR HOFMANN: and I didn’t get a chance to respond to any of those points, none of – none of them are particularly concerning to me because I think we’ve dealt with the central issues, but obviously I haven’t had a right of reply to some of those things. I don’t want – want them to be read out of context down the track saying ---

MS HOFMANN: I have a few things to say too.

MS MARTELLOTTA: No.

MR HOFMANN: --- I never – I never objected to those things being said. You know what I mean?

MS MARTELLOTTA: Okay. Look, as I have indicated the hearing is now concluded.

MR HOFMANN: Yes. I understand.

MS MARTELLOTTA: If there’s a need a need for us to seek clarification from either party on any points we will write to the parties and seek those clarifications. As far as the members of this tribunal are concerned, at this point we have sufficient information to move forward on this matter.

MR HOFMANN: No worries.

63I find no merit in Mr Hofmann’s argument on this issue. I find the Principal Member afforded the appellant adequate opportunity to address the relevant issues throughout the proceedings. At this point the hearing was over. There is nothing to suggest the appellant was seeking to address any issue likely to impact on the outcome. The hearing was brought to an end in an appropriate manner.

Further contact with the SSAT

64After the hearing on 20 January 2011 was concluded, the appellant corresponded with the SSAT on a number of occasions. On the evening of 20 January, the appellant wrote to the SSAT providing an additional document which he considered it was appropriate to send through to the SSAT. On 27 January 2011, the SSAT received further correspondence from the appellant in relation to the directions made for disclosure on 20 January 2011. On 1 February 2011, the SSAT received further disclosure documents from the appellant. On 10 February the SSAT received a letter from the appellant in which he responded to items in a letter from the respondent to the SSAT and a further email attaching further disclosure documents.

Conclusions

65It is trite to say that justice does not exist in a vacuum. It can extend beyond the interests of the parties to any particular litigation. There is a public interest in the way in which justice is administered.

66There is no doubt that it is common place these days to conduct proceedings before courts and other bodies, such as tribunals, by telephone. It is a method routinely used for a variety of reasons, including the saving of money and time. It can also circumvent the considerable inconvenience often experienced by parties who live far away from the tribunal or who have work related or child care commitments.

67Various procedural rules have been crafted to inform persons presiding over or appearing before such bodies of how such audio links are to be implemented. This, however, is not the issue here.

68How does the Court assess procedural fairness in this case? Simply put, the question I am to address is whether the procedure utilised by the SSAT on this occasion was fair. What needed to be done by the Tribuna to preserve fairness? The Principal Member mandated the manner in which the hearing was originally anticipated to take place – with both parties appearing in person. It is reasonable to assume that this original direction on 26 November 2010 was considered appropriate in all the circumstances of this case.

69Due to an administrative error the appellant was then advised he would be appearing by telephone. It is common ground that the reason the appellant did not appear in person was an error of the tribunal itself. It was not a request he made. It was not a request the respondent made. It was not the desired method of proceeding.

70I find that a fair procedure is one that is applied evenly so that, generally speaking, the parties are faced with a “level playing field”. Due to the manner in which the appellant discovered the procedural error - at the hearing itself - the perception of bias or lack of procedural fairness may not have been immediately apparent to him. He did not immediately seek an adjournment or complain loudly. This cannot, necessarily, be construed as an acceptance the procedure is fair.

71A considerable part of the submissions of the CSR and the respondent focussed on whether the appellant had a reasonable opportunity to present his case. He did present his case, but I find that the procedural error denied him the opportunity to present his case:

· in the manner originally nominated by the tribunal as being appropriate;

· in his preferred manner; and

· in the manner afforded to the other party.

72There is, of course, the countervailing argument that the SSAT has an obligation to pursue an objective of providing a mechanism of review that is fair, just, economical, informal and quick.

73There is no doubt that the course taken here on 20 January 2012 was, at first blush, economical, informal and quick. However, I am not satisfied that it was either fair or just.

74I have also considered whether if the appellant had appeared in person there would have been a different outcome. The appellant suggests that he lacked an ability to engage appropriately with members of the tribunal because he was not able to see them. He was not able to gauge their reactions to his presentation or submissions. Not only that, he had difficulty hearing them and reviewing documents. I have found little merit in most of his complaints, but I am simply unable to assess to what extent, if any, he would have been able to persuade and engage in an enhanced manner if he had appeared in person. This is not a case where both parties participated by telephone or the appellant chose to do so.

75In all the circumstances I intend to grant the appeal on this basis alone and remit the matter to the SSAT for rehearing under s 110F of the CSRC Act.

76I will hear submissions, if any, in relation to the issue of costs.

I certify that the preceding [76] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate