Oliveri v Administrative Appeals Tribunal - [1997] FCA 1303

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - review of decision of Administrative Appeals Tribunal - respondent sought closed hearing before Tribunal - Tribunal directed that material be kept confidential until cross-examination of the applicant - whether applicant denied natural justice - whether respondent entitled to a “legitimate forensic advantage”

Administrative Appeals Tribunal Act 1975 (Cth), s 35, s 37
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 6(1)(a)

Australian Postal Commission v Hayes (1989) 23 FCR 320, considered
Drake v Minister For Immigration And Ethnic Affairs (1979) 46 FLR 409, applied
Re Taxation Appeals - NT94/281 and NT94/291 21 AAR 275, applied

DOMINIC OLIVERI v ADMINISTRATIVE APPEALS TRIBUNAL AND ANOR
N298 of 1996

MADGWICK J
27 NOVEMBER 1997
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 298 of 1996

BETWEEN:

DOMINIC LAURENCE OLIVERI
APPLICANT

AND:
AND:

ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENT

MICHAEL GREGORY JONES
SECOND RESPONDENT

JUDGE(S):

MADGWICK J

DATE OF ORDER:

27 NOVEMBER 1997

WHERE MADE:

SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

The direction of the Tribunal be set aside.

The matter is to be remitted to the Tribunal for determination according to law.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 298 of 1996

BETWEEN:

DOMINIC LAURENCE OLIVERI
APPLICANT

AND:
AND:

ADMINISTRATIVE APPEALS TRIBUNAL
FIRST RESPONDENT

MICHAEL GREGORY JONES
SECOND RESPONDENT

JUDGE(S):

MADGWICK J

DATE:

27 NOVEMBER 1997

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Background

The applicant, Mr Oliveri, a solicitor, was declared bankrupt on 23 December 1993. On 5 October 1994, the second respondent, the trustee of the bankrupt’s estate, made an assessment of Mr Oliveri’s annual income from the date of bankruptcy for the purpose of determining the amount that Mr Oliveri was to contribute towards his bankrupt estate. The trustee did not consider Mr Oliveri’s claim that he only earned $300 per week gross as a solicitor to be a reasonable one, having regard to his qualifications and experience. Pursuant to s 139Y of the Bankruptcy Act 1966 (Cth), the trustee assessed Mr Oliveri’s income to be $65,000, and indicated that he believed this assessment to be “quite conservative”, based on “an expected salary for a solicitor of [Mr Oliveri’s] experience at the lower range for a small sized firm”.

Mr Oliveri lodged an application for review of the trustee’s decision with the Administrative Appeals Tribunal on 3 November 1994. On 20 September 1995, the trustee brought an application under s 35(2) and (3) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to file material that would not be disclosed to Mr Oliveri until counsel had an opportunity to cross examine him. It was counsel’s submission that the purpose of the material was to provide the trustee, as respondent in the proceedings, with a “legitimate forensic advantage” that would otherwise be lost if the material was revealed to Mr Oliveri. The Tribunal agreed to a closed session, in the absence of Mr Oliveri and his counsel,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] FCA 1303
Decision Date: 27 NOVEMBER 1997

CaseChat Overview and Summary

The applicant, Mr Oliveri, sought a review of a decision made by the Administrative Appeals Tribunal (AAT). The AAT had directed that certain material be kept confidential until the cross-examination of Mr Oliveri. Mr Oliveri contended that this decision denied him natural justice and procedural fairness. The central legal issues were whether the applicant was denied natural justice and whether the respondent was entitled to a "legitimate forensic advantage." The court considered whether the AAT had correctly exercised its discretion in allowing the material to remain confidential.

The court found that the AAT had erred in law by not determining whether the material was relied upon by the trustee. The court held that the AAT should have required the material, which should have been lodged with the AAT under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), to be lodged. The court also found that the AAT failed to examine the material itself to weigh the competing detriments before deciding to deny Mr Oliveri access to it. These were errors of law. The court concluded that the matter should be remitted to the AAT to be dealt with according to law. If the respondent wishes to make an application that Mr Oliveri not inspect the material which has been filed, then the AAT can consider the matter in accordance with the principles set out in the judgment.

The court ordered that the direction of the AAT be set aside and that the matter be remitted to the AAT for determination according to law.

Orders