Mladenov v DEWR - [2008] FMCA 628

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MLADENOV v DEWR

[2008] FMCA 628

ADMINISTRATIVE LAW – Appeal from the Administrative Appeals Tribunal Social Security – member of a couple – whether denial of procedural fairness – appeal allowed.

Administrative Appeals Tribunal Act 1975, ss.40(1A), 41B
Evidence Act 1995, s.147
Social Security Act 1991, ss.4(2)(a), 4(3)

Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28, [2003] FCAFC 143
Mahon v Air New Zealand Ltd [1984] AC 808, [1984] 3 All ER 201
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Applicant:

RISTO MLADENOV

Respondent:

SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

File Number:

MLG 1209 of 2007

Judgment of:

Riley FM

Hearing dates:

4 February 2008, 17 March 2008 & 14 May 2008

Date of Last Submission:

14 May 2008

Delivered at:

Melbourne

Delivered on:

17 July 2008

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

P J Ginnane

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The appeal be allowed.
The decision of the Administrative Appeals Tribunal made on

16 May 2007
be set aside.
The matter be remitted to the Administrative Appeals Tribunal for rehearing and redetermination according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1209 of 2007

RISTO MLADENOV

Applicant

And

SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

REASONS FOR JUDGMENT

(errors in original)

This is an appeal from a decision of the Administrative Appeals Tribunal made on 16 May 2007. The AAT by that decision affirmed a decision of the Social Security Appeals Tribunal made on 11 November 2005. The SSAT had decided that the applicant was a member of a couple, consisting of himself and his former wife. The SSAT decided that the applicant had been overpaid certain benefits which had been paid to him at the single rate rather than the married rate.
The SSAT had also made essentially the same decision in respect of the applicant’s former wife, Ms Kozarova. That decision was affirmed by the AAT. Ms Kozarova has also appealed to this court.
The respondent’s solicitors wrote to the court on 19 December 2007 noting that the two appeals had been listed before two separate Federal Magistrates and suggesting that it might be prudent for one Federal Magistrate to hear the two appeals consecutively. The respondent did not mention the existence of Ms Kozarova’s appeal at the directions hearing in this matter on 17 October 2007. My associate wrote to the respondent’s solicitors on 20 December 2007 advising that an application to hear the matters consecutively could be heard on

4 February 2008
. The respondent’s solicitors did not file an application seeking such orders. Neither the applicant nor Ms Kozarova sought such orders. Accordingly, the two matters remain in the dockets of two different Federal Magistrates.

Legislation

The AAT noted that s.4(2)(a) and s.4(3) of the Social Security Act 1991 (“the Act”) apply to determine whether a person is a member of a couple for the purposes of the Act. Those provisions are as follows:
4(2) Subject to subsection (3), a person is a member of a couple        for the purposes of this Act if:
(a)the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; …
4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) … the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a)the financial aspects of the relationship, including:
(i)      any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)     any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)   any legal obligations owed by one person in respect of the other person; and
(iv)    the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i)      any joint responsibility for providing care or support of children; and
(ii)    the living arrangements of the people; and
(iii)   the basis on which responsibility for housework is distributed;
(c)the social aspects of the relationship, including:
(i)      whether the people hold themselves out as married to each other; and
(ii)    the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)   the basis on which the people make plans for, or engage in, joint social activities;
(d)any sexual relationship between the people;
(e)the nature of the people’s commitment to each other, including:
(i)      the length of the relationship; and
(ii)    the nature of any companionship and emotional support that the people provide to each other; and
(iii)   whether the people consider that the relationship is likely to continue indefinitely; and
(iv)    whether the people see their relationship as a marriage-like relationship.

Background

The applicant is 59 years old. He was born in Macedonia. He married Ms Kozarova and came to Australia in 1972. They returned to Macedonia in 1981 and then returned to Australia in 1985. They jointly rented a home in St Albans and had two sons.
The applicant alleged that he and Ms Kozarova separated on

8 April 1994
. They divorced in July 2006. The alleged overpayments were made between March 1995 and June 2001. It was common ground that since the alleged separation on 8 April 1994, Ms Kozarova remained in the family home. The applicant claimed to live elsewhere, but admitted that he returned frequently to the family home.

The AAT’s reasons for decision

The AAT noted that the applicant did not call any witnesses to give evidence in support of his claims. In particular, the AAT noted that he did not call evidence from his adult children who had at most material times been living in the matrimonial home. Nor did the applicant call evidence from any friends or neighbours. The AAT drew the inference that the evidence of the uncalled witnesses would not have assisted the applicant.
The AAT concluded that the applicant and Ms Kozarova were the members of a couple. The AAT’s reasons were set out at length and included the following.
The applicant claimed in documents lodged with Centrelink to have lived in a caravan at an address owned or occupied by his friend Julia from April 1994. However, another document lodged by the applicant with Centrelink indicated that he lived at the same address from April 1995 and that it was owned or occupied by Debbie.
A form dated 21 April 1995 lodged by the applicant with Centrelink indicated that at that time he was living separately under one roof with Ms Kozarova at the family home. The applicant said in the form that he would continue to do so until he could afford to move out. The AAT noted that the applicant had not explained why he had lodged that form if he had in fact moved out as he claimed.
The applicant told the AAT that he later rented accommodation in

St Albans
from unidentified Asian people. He said he could not identify them because it would affect their Centrelink benefits and, alternatively, they had threatened him. The applicant refused to answer questions about the identity of the people from whom he had allegedly rented accommodation. The applicant said that the questionnaires completed by the occupiers of premises he claimed to have lived in, who denied any knowledge of him, were false. The AAT concluded that the applicant’s claim about living at these other addresses was a charade.
The AAT noted that the records of the Western General Hospital and Victoria Police showed that the applicant had assaulted and intimidated Ms Kozarova at the family home on numerous occasions. The applicant claimed that he went there at the end of the working day to collect his mail. The AAT considered that the frequency of Ms Kozarova’s hospital admissions, the times of those admissions, and the frequency of the police attendances, all pointed to the applicant being at the family home on many occasions other than at the end of the working day.
The AAT noted that two surveillance videos were taken of the applicant, one on three consecutive days in November 2003 and one in June 2004. They showed the applicant driving his car out of the driveway of the family home early in the morning, going to his workplace, and driving back to the family home in the afternoon. The applicant said he left the car overnight at the family home to be used by his son, Elvis. When it was pointed out that Elvis was in jail on the date one of the videos was taken, the applicant disputed the dates on the video and said he left the car for his other son, Stiven. The AAT rejected that explanation and found the applicant to be untruthful. The AAT considered that the applicant was living at the family home with Ms Kozarova on the days the videos were taken.
The AAT noted that in the video of June 2004, the applicant admitted that the passenger in the car was Ms Kozarova. She was depicted in the video a short time later returning the vehicle to the family home and removing groceries from the boot. The AAT concluded that she did so with the applicant’s permission.
The AAT noted that the applicant gave the telephone number of the family home as his telephone number in applications for motor vehicle finance in July 2002 and July 2003, to Western General Hospital in July 2002, to a prospective employer, Canny Carrying Company, in September 1996, in a compensation claim in March 1997 and in an advice to an insurance company in 1996. The AAT considered that this evidence pointed to the applicant living in the family home.
The AAT noted that the applicant nominated himself and Ms Kozarova as joint borrowers for motor vehicle finance for a car which the applicant delivered to Ms Kozarova, saying “here is your new car.”
The AAT noted that the applicant and Ms Kozarova had a joint account with the National Australia Bank. The applicant claimed that it was for his sole use after separation. He had his income paid into it. Ms Kozarova, however, told Centrelink that she was receiving $50 or $130 maintenance per fortnight from the applicant. The AAT considered that these amounts could be described as housekeeping expenses, consistent with the applicant and Ms Kozarova being a couple.
The applicant agreed that he had been in a hairdressing partnership with Ms Kozarova from 14 February 1994, but claimed that she ran the business alone after 8 April 1994 when they allegedly separated. However, in a statement to Victoria Police made in November 1995, when the hairdressing premises were burnt down, Ms Kozarova said the applicant was her partner. In a declaration to Centrelink in November 1995, Ms Kozarova said that she and the applicant owned the business 50:50.
The applicant agreed that he and Ms Kozarova visited their son Elvis together when Elvis was in Castlemaine jail. The applicant agreed that Ms Kozarova had visited him on one occasion when he was in jail for three months.
The AAT summarised its reasons for finding that the applicant and Ms Kozarova had been a couple at all relevant times as follows:
71. In summary, I am satisfied that at all relevant times the wife and the husband lived at the St Albans address because:
(i) the wife admitted she lived there and;
(ii) the frequency of the husband’s attendance evident by:
·his use of that address as a mailing address;
·his admissions of attending to collect his mail;
·his being observed on surveillance films entering and leaving the premises
do not point to them living separately and apart on a permanent or indefinite basis.
72. Additionally:
·access by both to a joint bank account
·the evidence of the wife driving the husband to work and returning home, in his car
·her visiting him in gaol and them both jointly visiting Elvis in gaol
·both using the same telephone numbers of the St Albans address
·the admission by the wife to Police after the date of alleged separation of being in partnership with her husband
·the failure to call any persons to give evidence in support
·buying and selling motor cars.
·use by each applicant of each others changed names
·the frequency of him being inside the premises as evident by the wife’s admissions to hospital by reason of his assaulting or intimidating her
·the husband being recorded as next of kin
point to them being members of a couple.

The grounds of appeal

The applicant appeared on his own behalf before the AAT and before this court. When the matter came before the court on 4 February 2008, I asked counsel for the respondent about a possible denial of procedural fairness to the applicant arising from the circumstances described in paragraph 3 of the AAT’s reasons for decision. That paragraph is as follows:
3. The application brought by the applicant and his former wife were both listed for hearing during the same five day period but each application was heard separately. The applicant appeared without representation. … The applicant and his former wife were separated from each other during the hearing of each application and did not hear each other’s evidence. … This decision will be in two parts. The first part, under the heading The Evidence will record and summarise the evidence of the applicant only. The second part, under the heading Conclusion and Reasons for Decision will refer to the evidence of both parties from which findings will be made. …
This passage raised the possibility that the AAT had based its decision, in part, on evidence that the applicant had not heard and had not had an opportunity to test or rebut. Counsel for the respondent suggested that there had probably been no denial of procedural fairness, because the evidence given by Ms Kozarova was duplicated in evidence given by the applicant himself or consisted of documentary evidence copies of which had been given to the applicant. However, counsel was not in a position on that day to take the court to the alternative sources for the findings the AAT had made apparently in reliance on Ms Kozarova’s evidence. The applicant appeared to understand the issue.
It was ordered on 4 February 2008 that the applicant file and serve any affidavit and any submissions on the question of procedural fairness by 25 February 2008 and the respondent file and serve such documents by 11 March 2008. If the ground seemed viable at that point, it would of course have been necessary for the applicant to file an amended notice of appeal including that ground.
The applicant did not file any documents by the due date but filed a document on 12 March 2008 that was headed “Affidavit” but which was not sworn or affirmed. It appeared to query certain findings of fact made by the AAT and referred to and had stapled to it a psychological report dated 11 January 2006 and a psychiatric report dated 27 October 2005. Both documents concerned the applicant’s son, Elvis, who was in Port Philip Prison at the time of both reports. In the reports, Elvis said his parents had separated in about 1996, in one case, and in about 1994, in the other. In the second report, Elvis also said there was no violence in the family, which seems to be contradicted by the evidence before the AAT.
As I understand the applicant, the psychological and psychiatric reports were not in evidence before the AAT. There was no testing of the evidence in the reports and, as the AAT observed, neither Elvis nor Stiven were called to give evidence. The applicant did not explain and I am unable to see how the reports suggest that the AAT made an error of law in this case.
The matter returned to the court on 17 March 2008. The respondent was unprepared for certain aspects of the argument that the applicant sought to put. Orders were made for the applicant by 31 March 2008 to file any amended notice of appeal he sought to rely on and written submissions with transcript references and references to the relevant paragraphs of the AAT’s decision concerning the two issues that the applicant apparently wished to rely upon, namely, the AAT’s failure to summon certain witnesses and the AAT’s reliance on certain documents that the applicant claimed he was not given.
On 28 March 2008, the applicant filed an amended notice of appeal, a document headed “Affidavit” which was not sworn and a document headed “Written Submissions”. At the final hearing on 14 May 2008, the applicant told the court that he only wished to rely on the points raised in his amended notice of appeal filed on 28 March 2008, and on the AAT’s failure to summon certain witnesses and its reliance on certain documents that the applicant was not given.
Although the applicant was unrepresented, I do not consider that it would be appropriate to go beyond the points raised in the amended notice of appeal and the points on which the applicant expressly stated that he wished to rely. While the court can give some assistance to unrepresented litigants, it cannot run their cases for them and it cannot decide matters on grounds of appeal on which they do not wish to rely.
The amended notice of appeal filed on 28 March 2008 set out four grounds. I will set out the grounds verbatim and deal with them in order.

Ground 1: On 15-06-2007 on my Notice of Appeal I was asking for rehearing my case at Federal Magistrates Court of Australia, and I want to be heard at that Court.

On an appeal from the AAT, the court is not permitted to conduct a rehearing of the case that was before the AAT. The court is only permitted to consider whether the AAT made an error of law. If such an error is found, the court may remit the matter to the AAT for rehearing and redetermination according to law.
The applicant apparently wished to present evidence to this court that was not before the AAT. The time to give that evidence was when the matter was heard before the AAT. The appeal process is not intended to give a dissatisfied litigant a chance to run his case again, with better evidence, in circumstances where he simply chose not to put that evidence before the original decision maker. As a general rule, litigants have one chance to put their case. The applicant cannot complain now that the AAT took an adverse view of the facts if the applicant chose not to put the appropriate evidence before the AAT. Ground 1 is not sustainable.

Ground 2. And still I want to be given subpoena to 4 witnesses to attendet at the Court for cross-examination.

Under this ground, the applicant gave particulars of the witnesses that he wished to call as follows:
The witnesses names:
A=Julie Ricardo, Fraud Investigater Centrelink Officer, about her investigation, T document and forming opinion regards her decision, and I want to see how she can be supporting her lies.
B=Niel Carrol ARO Area West, Centrelink Officer again to be called for his opinion to answer regards his file notes and 2 decisions, to se how he can support his lie.
C=Ken Richards the Director of KNM transport, for his own opinion to answer, about given statement to Centrelink Officer AB 100 + 101
D=Industrial Accident Assessor Pty Ltd for given report to Centrelink provided information on video film, running sheet by 2 operaters, to be looked at, that 2 video films been taken on 2003 and 2004. AB 68 to 98 for 2003 and AB 130 to 148 = 2004.
The witnesses the applicant wished to call to give evidence in this court are people he should have called to give evidence before the AAT. As I understand the applicant’s submissions, he did not wish to call them before this court to establish that the AAT had made errors of law, but to show that the AAT had made errors of fact. This court is unable to entertain an appeal on that basis.

Ground 3. If the Respondent and the Tribunal don’t want to be called any persons to give evidence to be support on any relevant time theirs, or on my application, which have been rejected by them, by their opinion, for interest on both of them. Than why the Tribunal want to accepted my privacy issues, and the Tribunal is satisfied with that. And Tribunal make order to prohibiting publication of the names and the addresses on both applicants. AB 526 number 5, AB527 number 6.

On the applicant’s application, the AAT made an order restricting publication of his name. The applicant does not challenge that order. Otherwise, this ground is unintelligible.

Ground 4. NOTE: I hereby acknowledge that this statement is true and correct and I make it in the believe that a person making a false statement in the circumstances is liable to the penalties of perjuri, and I want to see that.

This is not a ground of appeal.

Additional grounds

The applicant raised two further grounds in his amended notice of appeal filed on 22 August 2007, which were overtaken by his amended notice of appeal filed on 28 March 2008. However, at the hearing on 14 May 2008, the applicant clearly indicated that he wished to rely on the two further grounds before this court. The grounds were firstly that the applicant had asked the AAT to summon the witnesses mentioned above and the AAT had refused to do so and secondly that the AAT had accepted T documents that had not been exchanged prior to the hearing. The applicant submitted, in effect, that these matters amounted to errors of law which had deprived him of the opportunity to properly put his case.

The summoning of witnesses ground

The AAT is empowered to summon witnesses under s.40(1A) of the Administrative Appeals Tribunal Act 1975. It customarily summons witnesses at the request of a party, provided that the evidence sought to be adduced from the witnesses appears to be relevant to an issue in dispute. If the AAT refused a request for a summons to be issued for relevant evidence to be adduced, and the relevance of the evidence had been adequately explained to the Tribunal, the refusal could well amount to an error of law.
The question of the applicant’s request to summon the three people and the company mentioned under ground 2 was addressed at the hearing before this court on 17 March 2008. The applicant told the court that he had asked the AAT at a number of directions hearings to issue the four summonses (see transcript 17 March 2008 page 12, line 22). After one such directions hearing, on 7 September 2006, the AAT sent the applicant a letter asking him the names of the people he wanted summoned and the relevance of their evidence (see transcript 17 March 2008 page 27, line 10 and exhibit B to the applicant’s affidavit filed on 21 November 2007). The applicant told the court that he gave the AAT a list of the witnesses he wanted summoned, but, in the case of Industrial Accident Assessor Pty Ltd, he was unable to nominate the particular people he sought. He did not know their names and wanted the company to be summoned so he could discover their names. The people concerned were the makers of the surveillance videos.
The applicant did not produce to the court a copy of any document by which he had explained to the AAT the relevance of the evidence he sought to adduce. There were some references in the transcript of the proceedings before the AAT on the first day of the hearing, being

29 November 2006
, to the applicant’s request for the summonses to be issued. However, those references do not include an intelligible explanation of the relevance of the evidence of the proposed witnesses.
Page 6 of the transcript of the proceedings before the AAT on

29 November 2006
shows that the member said, on the first day of the hearing, in relation to the proposed witnesses:
I don’t see the relevance of those persons to the proceedings. … but I confirm, as I did to you yesterday [at a directions hearing], that if during the course of these proceedings by reason of the evidence that is heard, those persons do assume some significance or some relevance, then because this hearing is listed for a couple of days summonses can be issued and served during the currency of these proceedings.
In effect, the AAT invited the applicant to ask for the witnesses to be summoned if and when their evidence became relevant. The applicant told this court on 17 March 2008 that he did not ask the AAT, during the course of the hearing, to issue the summonses that he had previously mentioned (see transcript 17 March 2008 page 26, line 43 to page 27, line 7). In the circumstances, I am not satisfied that the applicant has demonstrated that the AAT erred in not summoning the proposed witnesses.
In any event, the applicant has still not explained the relevance of the evidence of the proposed witnesses. The decisions of the Centrelink officers were overtaken by the reviews by the SSAT and the AAT. The decisions of the Centrelink officers were irrelevant, because the operative decisions were remade by the SSAT and the AAT on the basis of the material before them.
Ken Richards, as the applicant’s former employer, made a statement to Centrelink. The only aspect of the statement that the AAT noted was the report by Mr Richards that the applicant’s wife sometimes picked him up from work (see paragraph 18 of the reasons for decision). The AAT recorded the applicant’s response to this evidence as being that the employer could not have seen who collected him from work. However, when the applicant was shown the video of the applicant being dropped at work by Ms Kozarova, the applicant conceded that it probably was Ms Kozarova who had driven him to work on that occasion, but on other occasions, he said he was probably picked up by some girls. (At page 107, line 24 of the transcript of 30 November 2007, the applicant admitted that Ms Kozarova had probably driven him to work several times.)
Ultimately, the AAT based its decision (as summarised in paragraph 72 of its reasons) on, among other things:
the evidence of the wife driving the husband to work and returning home in his car.
Because this aspect of the reasons refers to Ms Kozarova returning home in the car, which Mr Richards did not claim to have seen, the evidence that the AAT relied on for this conclusion appears to have been the video evidence rather than Mr Richard’s statement. Moreover, the AAT appears to have only relied on one incident of Ms Kozarova driving the applicant to work, which the applicant admitted in any event. Accordingly, Mr Richard’s statement was not relied on by the AAT in reaching its conclusion.
The two people who had taken the surveillance videos also kept a running sheet which contained various interpretations and opinions about what they had seen. The running sheet was excluded from evidence by the AAT on the basis that the people who had made the videos were unavailable to give evidence. However, the videos were admitted into evidence, apparently on the basis that they spoke for themselves, and the AAT is not bound by the rules of evidence.
The applicant sought to explain the fact that the videos depicted him returning the car to the family home each afternoon by saying that he left the car there for his son Elvis to use. When it was pointed out to the applicant that, during November 2003, when the first video was taken, Elvis was in jail, the applicant disputed the dates on the video. He then agreed that he had left the car at the family home on occasions when Elvis was in jail and said that, on those occasions, he had left the car for his other son, Stiven.
While the applicant disputed the dates and times of the videos, the AAT did not rely on the specific dates or times in its reasons. It simply noted at paragraph 71 “the frequency of the husband’s attendance evident by … his being observed on surveillance films entering and leaving the premises”. The applicant himself freely admitted that he attended the family home frequently, although he claimed that the purpose of his visits was to see his children and collect his mail. (For example, the applicant said on 29 November 2006, at page 347 of the transcript, line 39, “I was always there helping [Elvis].” The applicant told this court that he attended the family home 10 times a week (see transcript 14 May 2008 page 54, lines 30-43.)
Ultimately, the dates and times shown on the videos were not significant, because the AAT did not rely on them. Accordingly, any cross examination of the people who made the videos concerning the dates or times on which they were made had no impact on the decision.
All in all, I am not persuaded that any of the summonses that the applicant asked the AAT to issue went to any matter on which the AAT ultimately relied. Accordingly, I am not persuaded that the AAT’s refusal to issue the summonses constituted an error of law in the circumstances of this case.
However, I must also say, that, as the matter stood at the commencement of the hearing, Ken Richards and the video operators should have been summoned. Ken Richards made a statement that the respondent intended to rely upon. The applicant was entitled to cross examine him. It was only as the case unfolded that Ken Richards’ statement was overtaken by admissions made by the applicant and the other evidence in the case, such that the AAT found it unnecessary to rely on Ken Richards’ statement. That could not have been predicted at the outset.
Similarly, the respondent intended to rely on the videos. The applicant was entitled to cross examine the makers of them. The dates and times of video evidence would normally be matters of significance. While s.147 of the Evidence Act 1995 provides for a presumption of accuracy of documents produced by devices in the course of business, that presumption may be rebutted by evidence sufficient to raise a doubt about their accuracy. The applicant was entitled to attempt to raise such a doubt by cross examining the makers of the videos.
Counsel for the respondent explained to the AAT on

29 November 2006
(see transcript 29 November 2006 page 3, line 43) that the surveillance operators had left the company. One was employed as a truck driver and one was overseas. There was no indication of how long he was overseas for. The fact that an employee has left the company is beside the point. The fact that one witness was overseas may have warranted an adjournment, or may have meant that only the other operative should have been summoned. These matters were not explored.
As it transpired, the AAT found it unnecessary to rely on the particular dates and times when the videos were made, though that could not have been predicted at the outset. For the reasons explained, the decision ultimately made by the AAT did not turn on the evidence that the applicant wanted to test. Accordingly, I am not persuaded that the failure to summon the proposed witnesses affected the outcome and amounted to an error of law.

The exchanging of T documents ground

The question of whether the AAT erred in law by not ensuring that

T documents were exchanged before the hearing was discussed at length during the hearing before this court on 17 March 2008. The applicant made it clear that his complaint was not that T documents had not been exchanged, but that he had requested certain documents from the respondent before the hearing in the AAT and the respondent had failed to provide them to him. That could only amount to an error of law on the part of the AAT if the AAT took into account documents that had not been disclosed to the applicant.
It was common ground that the applicant gave to the respondent prior to the hearing in the AAT a list of the documents he sought from the respondent. A copy of the list is contained in exhibit PJH-1 to the affidavit affirmed by Peta Jane Heffernan on 13 March 2008 and filed in this court on that date. The list is dated 26 May 2006 and is as follows:
1. Department of Justice 14 pages
2. From hospital information for Roza
3. Ambulance Jan 2005 at Centrelink for Roza
4. Information from Keilor Down for last 10-12 years
5. Ambulance from Falcon Walk [the family home]
6. Transcript from landline messages from myself
7. Miska and Nikola (Nick) Anastasovski
8. Tax file for Roza 93-94-95
9. Medical certificate for 1994 for myself
The applicant told the court at the hearing on 17 March 2008 that he was told in April 2006 to make a list of the documents he needed (see transcript 17 March 2008 page 40, line 34). His response was to lodge the list dated 26 May 2006. Counsel for the respondent raised the issue of these documents at the hearing in the AAT on 30 November 2006 “as a matter of housekeeping” and as a matter of fairness to the applicant (see transcript 30 November 2006 page 172, line 5 and page 173, line 10). Counsel advised the AAT and the applicant that some of the listed documents had been provided and some had not. Counsel told the AAT and the applicant that the ones that had not been provided were not provided for reasons of privacy or because the respondent did not have them.
Counsel said to the AAT and the applicant that if the applicant wished to raise any issues in relation to the listed documents, he had the opportunity to do so at that time. However, as far as I can tell from the transcript, the applicant was not told that the respondent would ask the AAT to take into account documents that were put into evidence in Ms Kozarova’s proceeding but that the applicant had not been given.
The affidavit affirmed by Peta Jane Heffernan on 13 March 2008 stated that, at the directions hearing on 28 November 2006, “The parties also obtained copies of all documents filed with the Tribunal.” That evidence was not specifically challenged in this court. However, it self-evidently concerns only documents filed with the court prior to the commencement of the hearing on 29 November 2006.
I will address each of the listed documents in turn.

a. The Department of Justice document

The applicant told the court that he had been given 24 pages of the Department of Justice document but 10 pages were missing (see transcript 17 March 2008 page 33, line 8). He said the document was relevant because it consisted of his prison records in which he had told the prison authorities that he was separated. He said the respondent had relied on the part of the document that said that Ms Kozarova had visited him in jail (which the applicant admitted) but did not produce the part of the document where he had told the authorities he was separated.
If the Department of Justice document did contain a statement from the applicant that he had separated from his wife, it would have constituted a prior consistent statement about his marital circumstances and would have lent weight to his claim to have been separated at relevant times. However, the document is not before this court. The applicant did not provide sworn evidence of the contents of the document. I only have the applicant’s bare assertion about the contents of the document. The applicant could presumably have obtained his own prison records under Freedom of Information laws or he could have asked the AAT to summon the documents, after explaining their relevance. He could also have subpoenaed the documents in this court. He took none of these steps. In the circumstances, I am unable to be satisfied that the Department of Justice document contained the matters asserted by the applicant.
In any event, it was for the applicant to make out his case in the AAT. It was up to him to gather the evidence from its original source and present it the AAT. In the case of the Department of Justice document, he did not do so. The applicant told the AAT on 29 November 2006 (see transcript 29 November 2006 page 26, line 43) that he had a letter from the prison which recorded him saying in 2000 that he was separated. However, the applicant did not tender that letter.
The Department of Justice document was not an exhibit before the AAT in either the applicant’s or Ms Kozarova’s matters. The jail visit referred to in it was the subject of questions and admissions but the document was not tendered. It was not referred to in the AAT’s reasons for decision. Accordingly, there is no basis for a conclusion that it was taken into account by the AAT without being disclosed to the applicant. In the circumstances, even if the whole document was not provided by the respondent to the applicant, and even if the document contained the matters asserted by the applicant, it did not result in there being an error of law on the part of the AAT.

b. The hospital records

The hospital information about Roza consisted of Ms Kozarova’s hospital admission records. The respondent admitted that these records were not provided by the respondent to the applicant, ostensibly for reasons of privacy (see transcript 30 November 2006 page 172, line 42 and page 174, line 2 and paragraph 5 of the affidavit affirmed by Peta Jane Heffernan on 13 March 2008). The transcript of Ms Kozarova’s proceeding before the AAT (which is exhibit PJH-3 to the affidavit affirmed by Peta Jane Heffernan on 13 March 2008) shows that Ms Kozarova’s hospital records were tendered as exhibits in that proceeding. The AAT relied on Ms Kozarova’s hospital admission records in its decision in the applicant’s proceeding.
In particular, the AAT said the following:
55.    …there is much evidence of the husband having assaulted his former wife and having been abusive. The records of Western General Hospital and of Victoria Police bear testament to his behaviour. The assaults and intimidation have occurred by his initiation at the St Albans address ….
57.    The frequency of the hospital admissions by the wife as a consequence of assault by her husband, the times of her admissions and the frequency of attendances by police all point to him being at those premises on many occasions other than at the end of a working day. …
62.    …[The telephone number of the family home] was given by him as his telephone number in an entry in the Western General Hospital records where he is described as the next of kin in July 2002. That same number is recorded against the wife upon her admission to the Western General Hospital in September 2001 and February 2004.
63.    … [A particular telephone number is also recorded as her telephone number on her admissions to the Western General Hospital in July and November 2002 and January and February 2004. It is also worthy to note that at the admission to the Western General Hospital in 2001, this telephone number is recorded as being the wrong number and the number referred to earlier namely, (refer paragraph 59) is recorded as being the correct telephone number. …
72.    [The Tribunal is satisfied that the applicant and Ms Kozarova were husband and wife at all relevant times because]: …
both using the same telephone number of the St Albans address …
the frequency of him being inside the premises as evident by the wife’s admissions to hospital by reason of his assaulting her or intimidating her
the husband being recorded as next of kin
I will return to the significance of the AAT’s reliance on the hospital records that were not provided to the applicant.

c. The ambulance records

The applicant admitted to this court that the AAT did not rely on the ambulance records (see transcript 17 March 2008 page 38, line 10 to 18). He was unable to explain their relevance to the court. Accordingly, I can only conclude that the applicant has not demonstrated an error of law by the AAT in relation to these documents.

d. The Keilor Downs records

The document described as “information from Keilor Downs” was a reference to the records held by Keilor Downs police station. These documents were relied on by the AAT in paragraphs 55 and 72 of its decision. When asked by the court, counsel for the respondent advised that he did not know whether the police records were provided to the applicant or not. They do not appear to have been tendered in either the applicant’s proceeding or in Ms Kozarova’s proceeding. Accordingly, it appears that the police records were the subject only of questions and admissions. The applicant made assertions from the bar table about the police records but did not provide to the court any admissible evidence that he had not been given copies of them. In the circumstances, I am not prepared to accept that the applicant was not given copies of the police records.

e. The landline message transcript

The applicant explained that the document described as a “transcript of landline messages” was a transcript of telephone messages he had left on Ms Kozarova’s telephone. Counsel for the respondent advised the AAT on 30 November 2006 that the respondent had never had a copy of that transcript and it belonged to Ms Kozarova (see page 432, line 7). The applicant told the court that there is no reference in the AAT’s decision to the telephone messages (see transcript 14 May 2008 page 19, line 45). I have been unable to find any reference to the landline messages in the exhibits in either the applicant’s case or Ms Kozarova’s case.
Accordingly, I am unable to see how there was any error of law made by the AAT in relation to the telephone messages. In any event, it was up to the applicant to obtain the records from Ms Kozarova. If she refused to provide them, the applicant needed to ask the AAT to issue a summons, and explain the relevance of the material. There is no indication that the applicant took that course.

f. Miska and Nikola (Nick) Anastasovski.

The applicant did not explain the significance of the document described as “Miska and Nikola (Nick) Anastasovski”. I am unable to see how it suggests that the AAT made an error of law.

g. Tax file for Roza 93-94-95

The document described as “tax file for Roza 93-94-95” was a reference to Ms Kozarova’s tax records for 1993, 1994 and 1995. The applicant said the relevance of these documents was that Ms Kozarova had said in the tax returns that she was in partnership with the applicant 50:50 until 1995. If she had done so, that would tend to go against the applicant’s case that they had separated.
There is no mention in the AAT’s decision of Ms Kozarova’s tax records. I am unable to conclude that AAT made an error of law in relation to the tax records. I would add that, if in fact the applicant had been in partnership 50:50 with Ms Kozarova, he could have asked the tax office himself for copies of the relevant partnership returns. Alternatively, he could have asked the tax office for a statement to the effect that he was disclosed in the tax returns as a partner in the hairdressing business only for a particular period. There is no indication that he did so.

h. Medical certificate for 1994 for myself

The document described as a “medical certificate for 1994 for myself” is self-evidently the applicant’s own document. He could presumably have obtained the relevant information from his own doctor. The medical certificate was not referred to by the AAT. I fail to see how it could have been led to an error of law by the AAT.

The significance of the hospital records

The respondent submitted that any evidence given in Ms Kozarova’s proceeding that the AAT gave weight to was merely confirmatory of evidence given by the applicant. That is certainly true in so far as the frequency of the applicant’s attendance at the family home is concerned. However, the respondent did not take the court to any evidence given by the applicant to the effect that he was properly described in the hospital records as Ms Kozarova’s next of kin or to the effect that he actually had the same telephone number as Ms Kozarova. I have looked at the transcript of the applicant’s proceedings in the AAT and I have been unable to find any reference to Ms Kozarova’s hospital records or any evidence about the applicant being her next of kin or using the telephone number of the family home as his telephone number.
The respondent submitted that the applicant was alerted to all the evidence that the respondent intended to rely upon by being given a copy of the respondent’s written submissions on the final day of the hearing. The applicant denied being given a copy of the submissions. However, the transcript of the proceedings before the AAT on 8 February 2008 (page 220, line 44) shows that counsel for the respondent gave the applicant a copy of the respondent’s written submissions at the commencement of the respondent’s oral submissions. That was after the conclusion of the applicant’s oral submissions and before the applicant was given an opportunity to reply.
I do not consider that furnishing the applicant with written submissions at that late stage, when the applicant was given no opportunity to read them, could have given him effective notice of the matters contained in documents tendered during Ms Kozarova’s evidence. In any event, the written submissions were not put before this court. I am therefore unable to conclude that they were capable of alerting the applicant to the relevant matters.
The respondent’s closing oral submissions in the AAT did refer to the hospital records indicating that the applicant was always nominated as Ms Kozarova’s next of kin, or her carer, or the person at home with her valuables (see transcript 8 February 2007 page 230, line 4).
In final reply, the applicant said that he had repeatedly asked to see the hospital records that contained his name and he still wanted to see them (see transcript 8 February 2007 page 234, line 14 to 26). He said that “they” had said the hospital records were not relevant but they were hiding something: line 24. The AAT interrupted and told the applicant that this was the occasion for the applicant to make any comments on the respondent’s submissions.
In normal circumstances, that would be right. However, if the applicant had been legally represented, a formal application might have been made to the AAT at that point for the provision of the hospital records, and, if need be, for the reopening of the case, to prevent a denial of procedural fairness. In effect, the applicant was seeking to do that in the present case, albeit without the legal language. However, his application, as it were, was refused.
Counsel for the respondent does not appear to have mentioned in his oral submissions the issue of the hospital records showing the telephone number of the family home as the applicant’s telephone number. Accordingly, the applicant was not given any opportunity to deal with this evidence.
In the end, the applicant was not given a real opportunity to deal with the evidence of him being recorded as Ms Kozarova’s next of kin or the evidence of him apparently using the telephone number of the family home as his own. These were significant pieces of evidence that the AAT specifically relied upon in its summary of the reasons for concluding that the applicant was the member of a couple.
The respondent submitted that the AAT is not bound by the rules of evidence. That is so, but it is bound by the rules of procedural fairness.
The respondent also noted that under s.41B of the Administrative Appeals Tribunal Act 1975, the AAT is entitled to proceed in the absence of a party who has had proper notice of the proceeding. That is undoubtedly correct. However, the AAT is not entitled to rely on documents that have not been provided to an applicant who attends his or her hearing, except, for example, where there are reasons of national security. No such reason was advanced in this case.
The respondent referred to Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [76], where it was said that the proceedings before the Refugee Review Tribunal (“the RRT”) were not to be treated as if they were a trial in a court of law. The RRT is governed by very different legislative provisions to those governing the AAT. In the RRT, there is no respondent. The procedures in the AAT are much more akin to those in a court of law. In any event, the RRT and the AAT are subject to the rules of procedural fairness, as Aala makes abundantly clear.
The respondent said that there was no power in the AAT to consolidate proceedings. That may be so. However, where the AAT relies in one proceeding on evidence given in another, it is clearly a basic requirement of procedural fairness that the party concerned is given proper notice of that evidence.
The respondent submitted that, to establish a denial of procedural fairness, the applicant needed to show that he was denied an opportunity to respond to a particular matter, and it would have made a difference to the outcome. That is not entirely correct. It is enough that the evidence could have made a difference. For example, in Mahon v Air New Zealand Ltd [1984] AC 808 at 821; 3 All ER 201 at 210, Lord Diplock said the question was whether the material “might have deterred [the decision maker]… from making the finding even though it cannot be predicted that it would inevitably have had that result.” (emphasis in original) That passage was cited with approval in Aala at [78] and applied at [80].
In my view, the provision of the hospital records could have made a difference to the outcome in this case. If the applicant had been alerted to the issues, he may have been able to give a reasonable explanation of why he was shown as Ms Kozarova’s next of kin and why the telephone number of the family home was given as his telephone number. The respondent would no doubt say that the case against the applicant, even without those two aspects of the evidence, was compelling. However, that is not a matter for the respondent or the court to determine. It is a matter for the AAT to determine.
The respondent referred to Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143, (2003) 131 FCR 28 and highlighted the dissenting judgment of Gyles J. However, at [8] Gray ACJ and North J said that:
Given the state of the authorities, this Court should accept the principle that a denial of procedural fairness is an error of law and that, therefore, an appeal from a decision of the Tribunal on the ground of such a denial raises a question of law. For this purpose, it is undesirable to attempt to distinguish between a denial of procedural fairness resulting from a course of action chosen by the Tribunal in conducting the case before it and a denial that is unintended and results from an error of fact made by the Tribunal. In the circumstances, the proceeding has been commenced properly and amendment is unnecessary. It goes without saying that, if an amendment were necessary, leave to make it should have been given, for the purpose of enabling the applicant to put his case.
Applying the majority judgment in Clements, it was an error of law, being a denial of procedural fairness, for the AAT to rely on documents that had not been provided to the applicant. The denial of procedural fairness raised a question of law sufficient for an appeal from the AAT to this court.
However, the respondent relied on Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 to say that the question of law was inadequately drawn. However, the problem with the proposed question of law in Birdseye was not merely a matter of drafting but an irreparable deficiency. The question of law in the present case was clear, and the respondent knew perfectly well what it was, even if the unrepresented applicant did not articulate it concisely.
In all the circumstances, I consider that the question of law was adequately raised. The matter must be remitted to the AAT for rehearing according to law.

Additional matters

I should add that it was suggested to the court that the applicant was not given Ms Kozarova’s hospital records for privacy reasons. It was not explained to the court how privacy considerations prevented the hospital records being given to the applicant but did not prevent them being given to the respondent and the AAT. If the hospital records, with any necessary deletions, could not have been given to the applicant, then the AAT should not have been invited by the respondent to decide the applicant’s case on the basis of them. The respondent should have relied only on the other evidence available to him, which was extensive.
Although the applicant did not take the point, the AAT should not have been invited by the respondent to take into account in the applicant’s proceeding all of the evidence given in Ms Kozarova’s proceeding, unless he was given reasonable notice of that evidence. The procedure that was adopted was fundamentally flawed and was very likely to lead to a denial of procedural fairness.
The respondent asked for the applicant to be out of court during Ms Kozarova’s proceeding (see transcript 29 November 2006 page 8, line 40). The applicant agreed to give his evidence first (see transcript 29 November 2006 page 9, line 23). The AAT asked the applicant if he wished to call Ms Kozarova to give evidence in his proceeding, and, if so, the AAT told him he could ask her questions (see transcript 29 November 2006 page 9, lines 26 and 33). He said he did not wish to ask her any questions (see transcript 29 November 2006 page 9, line 37). In the context, he may have merely meant that he did not wish to call her to give evidence in his proceeding.
At the conclusion of the applicant’s evidence, the AAT told him that there would be a discussion about starting his ex-wife’s case. The AAT then asked the applicant, “Did you want to know whether you can wait outside or whether you can go?” He was not at that stage given the option of staying to hear Ms Kozarova’s evidence.
In any event, it was not explained to the applicant that evidence might be given and documents might be tendered in Ms Kozarova’s proceeding that he knew nothing about but which the AAT might take into account. In these circumstances, it cannot be thought that the applicant gave informed consent to the matter being dealt with as it was.
The conclusion that there was an error of law in this case does not necessarily mean that there was an error of law in Ms Kozarova’s case. She was represented throughout the applicant’s proceeding and her own, though she was not personally present during the applicant’s proceeding. I am unaware of any suggestion that the AAT relied on documents in Ms Kozarova’s proceeding that were not provided to her. In any event, her appeal will be dealt with by a different Federal Magistrate.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate: Catherine Wilson

Date: 17 July 2008