SEBASTIAN & GEYER and CSR (SSAT APPEAL)
[2012] FMCAfam 1089
•9 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SEBASTIAN & GEYER and CSR (SSAT APPEAL) | [2012] FMCAfam 1089 |
| CHILD SUPPORT – Appeal – appeal from decision of Social Security Appeals Tribunal – where SSAT affirmed decision under review – review of decision by tribunal – appeal to court from tribunal on questions of law – credibility issue – whether further cross-examination should have been permitted by the Tribunal – procedural fairness – whether Appellant denied natural justice in not being permitted further-cross examination of the Respondent – no duty to conduct a further oral hearing – no duty to make a party available for cross-examination – no power to require a party to give oral evidence and be cross-examined. ADMINISTRATIVE LAW – Tribunal – decision – judicial review by appeal – proceedings under Child Support (Registration and Collection) Act 1988 s.110B are in the original jurisdiction of the Court – proceedings are in the nature of judicial review – moving party is the appellant. COSTS – Application for costs – whether costs should be awarded. |
| Administrative Appeals Tribunal Act 1975 (Cth), s.44 Child Support (Registration and Collection) Act 1988 (Cth), ss.4, 17, 17A, 71, 95, 103C, 103D, 103G, 103K, 103N, 110B Victorian Civil and Administrative Tribunal Act 1998 (Vic), s.148 Federal Magistrates Court Rules 2001, Part 1, Sch. 1 |
| Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Hurt v Rossall (1982) 43ALR 252 Kioa v West (1985) 159 CLR 550 Manchester & Manchester (SSAT Appeal) [2011] FMCAfam 1215 Osland v Secretary Department of Justice [No.2] (2010) 241 CLR 320 Parkin & Sykes (SSAT Appeal) [2011] FMCAfam 839 Rose v Bridges (1997) 79 FCR 378 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 Strauss & Strauss (1998) 22 Fam LR 653; FLC 92-797; [1998] FamCA 2 Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56; (2001) 105 FCR 212 |
| Applicant: | MR SEBASTIAN |
| First Respondent: | MS GEYER |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 308 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 August 2012 |
| Date of Last Submission: | 14 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fermanis |
| Solicitors for the Applicant: | Russo & Partners |
| Solicitors for the First Respondent: | No appearance |
| Solicitor for the Respondents: | Mr Gouliaditis |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Appeal against the decision of the Social Security Appeals Tribunal made on 9 December 2011 and despatched on 20 December 2011 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sebastian & Geyer and CSR (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 308 of 2012
| MR SEBASTIAN |
Applicant
And
| MS GEYER |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Appeal
This is an Appeal from a decision of the Social Security Appeals Tribunal made on 9 December 2011 and dispatched on 20 December 2011. The Tribunal varied the decision under review by crediting an additional non-agency payment of $50.00 made on 26 June 2008 under section 71 of the Child Support (Registration and Collection) Act 1988.
In his Notice of Appeal filed on 31 January 2012 the Appellant seeks the following Orders:
1. The Appeal is allowed.
2. (abandoned)
3. The Court set aside the decision of the Social Security Appeals Tribunal made on 20 December 2011 in that the sum of $4,770.00 be credited as a Non Agency Payment pursuant to Section 71(1) Child Support (Registration and Collection) Act 1988 (Cth) and remit back to the Social Security Appeals Tribunal for hearing before a different Member.
4. In the alternative to Order 3 sought, the Court set aside the decision of the Social Security Appeals Tribunal made on 20 December 2011 in that the sum of $4,770.00 be credited as a Non Agency Payment pursuant to Section 71(1) Child Support (Registration and Collection) Act 1988 (Cth) and remit back to the Registrar of the Child Support Agency for hearing before a different Officer.
The Appellant relies on the following grounds of appeal:
1. (abandoned)
2. (abandoned)
3. The Social Security Appeals Tribunal fell into jurisdictional error by failing to afford procedural fairness to the Appellant by:
a. not relisting the hearing of the matter before it once it had received copies of the First Respondent’s bank statements after 26 September 2011; and
b. not providing the Appellant with the opportunity to cross-examine the First Respondent as to the contents of those bank statements.
4. The Social Security Appeals Tribunal fell into error by reaching its conclusion, in that the sum of $4,770.00 be credited as a Non Agency Payment pursuant to Section 71(1) of the Child Support (Registration and Collection) Act 1988 (Cth), which was not reasonably open to it by failing to provide the Appellant with the opportunity to cross-examine the First Respondent as to the contents of her bank statements received by the Social Security Appeals Tribunal after 26 September 2011.
Background
The Appellant and the First Respondent are the parents of two boys, who were born on (omitted) 1996 and (omitted) 1997. The Appellant has a child support liability in respect of the two children which was registered for collection by the Child Support Agency on 2 September 2002.
After the Child Support Agency made attempts to collect amounts of child support claimed to be owing, the Appellant’s solicitors commenced correspondence with the Agency about a number of payments they said had been made by the Appellant directly to the First Respondent. The amounts claimed to have been made by the Appellant between 1 July 2002 and 30 April 2010 totalled $52,890.00. The First Respondent denied that an amount of that nature had been paid to her.
The Tribunal noted in its decision that the Agency obtained information from the (omitted) Bank, including copies of the First Respondent’s bank statements from 20 November 2010 to 19 January 2011.
On 9 February 2011 an officer of the Agency refused to credit non-agency payments totalling $28,800.00 for the period 1 July 2002 to 30 June 2008 but credited non-agency payments of $1,550.00 based on receipts provided by the Appellant. Other payments claimed by the Appellant between 1 July 2008 and 30 April 2010 were disallowed.
The Appellant’s solicitors lodged an objection of 7 March 2011.
On 6 May 201 an objections officer partly allowed the objection, noting that the Appellant had provided additional bank receipts for deposits to the First Respondent’s account totalling $3,170.00. The objections officer also concluded that the amounts totalling $1,550.00 previously allowed had been correctly credited as non-agency payments. The objections officer was not satisfied that there was sufficient proof of the other payments.
Application to the Social Security Appeals Tribunal
On 1 June 2011 the Appellant applied to the Social Security Appeals Tribunal for a review of the decision of the objections officer.
The Tribunal hearing was scheduled for 22 July 2011. The Appellant attended accompanied by Mr Fermanis of counsel. There was no appearance by or on behalf of the First Respondent at the hearing. The Tribunal took the view that the First Respondent did not intend to participate in the hearing and decided to proceed in her absence. The Tribunal deferred making its decision until it had obtained additional information from the Child Support Agency.
Later, it was ascertained that the documents sent to the First Respondent had been returned unclaimed. A further address was obtained for her and, when she was contacted, she advised that she did wish to participate in the review.
A further hearing took place on 26 September 2011, at which the Appellant and his counsel attended and the First Respondent attended by telephone. After the hearing, the Tribunal deferred making its decision in order to request further information from the First Respondent and the (omitted) Bank. The additional material provided by the (omitted) Bank was provided to the parties. After receipt of that material, the Appellant’s accountants provided further submissions to the Tribunal.
The Tribunal made its decision on 9 December 2011.
The Tribunal Decision
On 9 December 2011, the Tribunal decided to vary the decision under review and credit an additional non-agency payment of $50 made on 26 June 2008 under section 71 of the Child Support (Registration and Collection) Act 1988.
In its written reasons, the Tribunal set out the issue to be decided:
The issue to be determined by the Tribunal is whether payments made to Ms Geyer by Mr Sebastian should be credited towards the enforceable maintenance liability.[1]
[1] Tribunal’s Reasons for Decision paragraph [20]
Under the heading Documentary Evidence the Tribunal set out the following material that it had received:
a)information received from the Child Support Agency under subsection 95(3) of the Child Support (Registration and Collection) Act 1988;
b)a written submission by counsel for the Appellant and further copies of bank receipts, which were provided at the hearing on 22 July 2011;
c)additional documents provided by the Child Support Agency after the hearing of 22 July;
d)an addendum to the earlier submissions by counsel for the Appellant;
e)documents provided by the (omitted) Bank after the hearing on 26 September 2011; and
f)additional submissions and attachments provided by the Appellant’s accountants on 14 November 2011.
Under the heading Information Provided At The Hearing the Tribunal set out a detailed summary of the following:
a)the oral submission by Mr Fermanis of counsel at the hearing on 22 July 2011;
b)the oral evidence of the Appellant at the hearing on 22 July 2011;
c)the oral evidence of the First Respondent at the hearing on 26 September 2011, including answers to questions put to her by the Appellant’s counsel; and
d)the oral evidence of the Appellant on 26 September 2011.
Under the heading Discussion of Evidence the Tribunal considered the maters before it, in a discussion that extended from paragraph 56 to 74 of the Tribunal’s Reasons for Decision.
The Tribunal made the following findings of fact (summarised):
a)The Appellant is the person liable to pay child support;
b)From 2 September 2002 the child support liability was enforceable by the Child Support Agency;
c)The Appellant made deposits totalling $3,170.00 to the First Respondent’s bank account between 6 September 2002 and 11 February 2004 that were accepted by the Child Support Agency as non-agency payments;
d)The Appellant made deposits totalling $1,550.00 to the First Respondent’s bank account between 27 January 2009 and 3 November 2010 that were accepted by the Child Support Agency as non-agency payments;
e)On 26 June 2008 the Appellant deposited $50.00 to the First Respondent’s bank account; and
f)On 7 March 2011, as part of his objection to a decision made by the CSA, Mr Sebastian requested that a payment of $20,000 made by him to Ms Geyer on 11 December 2003 be taken into consideration. This payment appears not to have been notified to the CSA prior to the objection and was not referred to by the objections officer. The Tribunal finds that the CSA has made no decision in relation to the request for consideration of the payment.[2]
[2] Tribunal’s Reasons for Decision paragraph [80]
Under the heading Application of the Law And Reasons the Tribunal referred to s.71 of the Child Support (Registration and Collection) Act 1988, which provides that:
a)a payee or a payer may apply to the Child Support Registrar for a payment made directly to the payee to be treated as having been made to the Registrar; and
b)the payment must have been intended by both the payee and the payer to be paid in complete or partial satisfaction of an amount payable under the child support liability.
The Tribunal also referred to s.4 of the Act, which defines the terms:
a)“enforceable maintenance liability”;
b)“registered maintenance liability” under ss.17 and 17A; and
c)“child support enforcement period”.
The Tribunal was satisfied that some of the payments the subject of the application were actually made because it had sighted deposit receipts and bank statements confirming those payments. The Tribunal was satisfied as to the proof of the following payments:
a)deposits totalling $3,170.00 made between 6 September 2002 and 11 February 2004;
b)deposits totalling $1,550 made between 27 January 2009 and3 November 2010; and
c)a deposit of $50.00 made on 26 June 2008.
The Tribunal was not satisfied that there was sufficient evidence to substantiate any of the other payments claimed. It referred to the decision of the Full Court of the Family Court in Strauss & Strauss[3] where Nicholson CJ, Fogarty and O’Ryan JJ said at 84,949:
The essential point which was made by both the Registrar and her Honour[4] was that ss.71 and 71A make it clear that the discretion of the Registrar to credit non agency payments only applies if the payments are made after the child support liability has been registered with the Registrar under the Registration Act.
[3] (1998) 22 Fam LR 653; FLC 92-797; [1998] FamCA 2
[4] Martin J of the Family Court of Western Australia who, sadly, recently passed away
The Tribunal noted that even if it had been satisfied that the payments claimed to have been made prior to 2 September 2002 had actually been made, they could not have been accepted as non-agency payments under s.71 of the Act as they would not have been made during an enforceable maintenance liability period.
The Tribunal noted that the Child Support Agency had made no decision in relation to a payment of $20,000.00 said to have been made by the Appellant to the First Respondent on 11 December 2003. Accordingly, the Tribunal found that it had no jurisdiction to consider the matter under s.89 of the Act, nor had it the power to remit the matter to the Child Support Agency for a decision. However, it was open to the Appellant to request the Child Support Agency to apply the amount of $20,000.00 towards the child support liability.
Appeal
The Appellant filed a Notice of Appeal against the Tribunal’s decision on 31 January 2012.
Counsel for the Appellant made an oral submission to the Court and relied on a helpful and well-crafted written submission. The thrust of the Appellant’s case is that the Tribunal should have re-listed the matter for further hearing, to allow cross-examination of the First Respondent as to the contents of the bank statements provided to the Tribunal after the hearing on 26 September 2011. The Appellant submits that:
…having regard to the diametrically opposed positions of the Applicant and the First Respondent with respect to the Applicant’s assertions that he made certain payments to her that the Applicant be afforded the opportunity to test the reliability and veracity of the First Respondent as to her denials that the payments as alleged by the Applicant occurred.[5]
[5] Appellant’s Written Submission filed 31 July 2012 at [17]
The Appellant relied on the decision of Halligan FM in Parkin & Sykes (SSAT Appeal)[6] where his Honour said at [18]:
The SSAT is an administrative tribunal, not a court. It is not bound by rules of evidence, and nor is it limited in the evidence it considers to that which the parties place before it. The Tribunal itself may gather evidence and may base its decision in whole or in part on evidence it gathers, subject to affording the parties procedural fairness by informing them of the evidence gathered and giving them an opportunity to respond to that evidence.[7]
[6] [2011] FMCAfam 839
[7] [2011] FMCAfam 839 at [18]
The Appellant also relies on the decision of Fox J in Hurt v Rossall[8] in support of the proposition that natural justice required an opportunity for the Appellant to cross-examine the First Respondent:
If a tribunal is hearing contested claims in what may be called an adversarial situation, so that its proceedings are analogous to court proceedings, it will normally be expected to ensure confrontation and permit cross-examination.[9]
[8] (1982) 43 ALR 252
[9] (1982) 43 ALR 252 at 259
Counsel for the Appellant quite properly conceded that the Appellant had “a distinct lack of documentation to substantiate his claim as to whether the payments were made”.[10] However, he submitted that the Tribunal treated the hearing as an adversarial situation and, by permitting the parties to give oral evidence in chief and by way of cross-examination, the Tribunal “opened the door” to further cross-examination of the first Respondent.
[10] Submission paragraph [8]
The Appellant relies on the decision of Dixon CJ in Hampton Court Ltd v Crooks[11], where his Honour said at 371:
A plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away according to the power of the party to produce it.[12]
[11] (1957) 97 CLR 367
[12] (1957) 97 CLR 367 at 371
Counsel for the Appellant submitted that the above decision is analogue to this situation in that the material circumstances of the payments alleged to have been made by the Appellant are peculiarly within the First Respondent’s knowledge. The Appellant ought to have been able to test the First Respondent’s knowledge. In failing to permit further cross-examination, the Tribunal denied the Appellant natural justice and procedural fairness.
The First Respondent chose not to participate in the hearing.
The Child Support Registrar provided a helpful and well-crafted submission and Mr Gouliaditis, solicitor, spoke to that submission on the hearing day.
It was submitted that, once it is accepted that a denial of procedural fairness raises a question of law, the issue before the Court is “whether, in the circumstances, procedural fairness required that the SSAT relist the matter for a third oral hearing after receipt of the relevant bank statements, and provide Mr Sebastian with an opportunity to cross-examine Ms Geyer with an opportunity to cross-examine Ms Geyer as to the content of those statements”.
It was submitted that the Appellant’s contentions should be rejected for four separate reasons:
a)that there was no duty to conduct a further oral hearing;
b)that there was no duty to make the First Respondent available for cross-examination;
c)that the Tribunal had no power to make the First Respondent available for cross-examination; and
d)no further hearing was requested.
First, there is no duty to conduct a further oral hearing. Subsection 103C(1) permits a party to make oral submissions, written submissions, or both. A hearing may be conducted solely on the basis of written submissions, but only if all parties to the review consent to the hearing being conducted without oral submissions (s.103D(1)(b)).
Here, the Appellant was given two opportunities to make oral submissions. Procedural fairness requires that the Tribunal must disclose to an affected party any material that is adverse to that party and is “credible, relevant and significant to the decision”[13] . This occurred, and the Appellant was given the opportunity to respond to that information, which he did.
[13] Kioa v West (1985) 159 CLR 550 per Brennan J at 629
However, there is no universal rule that requires decision to conduct an oral hearing (Chen v Minister for Immigration and Ethnic Affairs[14]), let alone a general rule that a further hearing must be conducted after an initial hearing upon the receipt by the decision-maker of additional information.
[14] (1994) 48 FCR 591
The Child Support Registrar relied on the decision of the Full Court of the Federal Court in Win v Minister for Immigration and Multicultural Affairs[15] in support of the proposition that the facts raised in the bank statements and the credibility of the parties were live issues at the hearing.[16]
[15] [2001] FCA 56; (2001) 105 FCR 212
[16] (2001) 105 FCR 212 at 219 [28]
As to the appellant’s proposition that some administrative proceedings are so akin to curial proceedings that procedural fairness confers a right to cross-examine an opposing party, in reliance on Hurt v Rossall, the Child Support Registrar submitted that Fox J said in that case that a tribunal is not in general obliged to grant a party the right to test by cross-examination information derived from an outside source (at 258). Further, s.103N provides that the Tribunal, in reviewing a decision, is not bound by legal technicalities, legal forms or rules of evidence (s.103N(1)(a)), and it may inform itself on any mater relevant to a review of a decision in any manner it considers appropriate (s.103N(2)).
The third point is that the Tribunal does not possess the power to require the giving of oral evidence and the submission of witnesses to cross-examination (Rose v Bridges[17] per Finn J at 387G). The Tribunal may take evidence on oath or affirmation (s.103G) but has no power per se to require a person to attend and answer questions. That power resides in the Principal Member (s.103K(1)(b)).
[17] (1997) 79 FCR 378
There is a clear distinction between the Principal member and the SSAT in conferring various powers and functions in relation to an Application for Review (Manchester & Manchester (SSAT Appeal)[18] per Halligan FM at [75]).
[18] [2011] FMCAfam 1215
The fourth reason given by the Child Support Registrar is that the Appellant did not request a further hearing in order to cross-examine the First Respondent. When the SSAT received the bank statements from the First Respondent’s bank it forwarded copies to the Appellant for his comments on that information. The Appellant did not seek a further hearing. Instead, he instructed his accountants to prepare a revised list of payments and forwarded this document to the Tribunal.
Thus, it is submitted, the Tribunal cannot be criticised for failing to permit further cross-examination of the First Respondent when the Appellant had the opportunity to seek a further hearing but chose to respond to the information in another way.
The Child Support Registrar seeks an order dismissing the Appellant’s Notice of Appeal.
The Child Support Registrar also seeks an order for costs in the sum of $8,328.50, calculated in accordance with the scale set out in Part 1 of Schedule 1 to the Federal Magistrates Court Rules 2001.
Conclusions
The parties’ submissions refer to the Appellant as the “Applicant” and the Child Support Registrar refers to this proceeding as an “appeal” (inverted commas in the original). The Child Support Registrar’s submissions goes on to state that:
The proceeding is, accordingly, a statutory appeal under s. 110B in the Court’s original, rather than appellate, jurisdiction.[19]
[19] Submissions of the Child Support Registrar paragraph [2].
The Child Support Registrar refers to the decision of Halligan FM in LDME & JMA (SSAT Appeal)[20] at [17]-[40], where his Honour noted at [21] that the provisions of s.110B of the Child Support (Registration and Collection) Act 1988 and s.44(1) of the Administrative Appeals Tribunal Act 1975 are identical. Halligan FM pointed out at [22] that the term “appeal” is potentially confusing, as the proceedings are within the original jurisdiction of the court hearing them (see Drake v Minister for Immigration and Ethnic Affairs[21] at 581).
[20] (2007) 38 Fam LR 132; [2007] FMCAfam 712
[21] (1979) 24 ALR 577
The High Court has considered similar wording to s.110B in s.148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act) in Osland v Secretary, Department of Justice[22], where French CJ, Gummow and Bell JJ (applying Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic)[23] at [79]), held at [17]:
[22] (2010) 241 CLR 320
[23] (2001) 207 CLR 72
It is necessary to refer to the nature of the jurisdiction and powers of the Court of Appeal in an appeal from an order of the Tribunal…The relevant jurisdiction and powers are set out in s 148 of the VCAT Act, which provides, inter alia:
“Appeals from the Tribunal
(1) A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding…[24]
[24] (2010) 241 CLR 320 at 331 [17] per French CJ, Gummow and Bell JJ
Their Honours went on to hold:
Section 148 confers “judicial power to examine for legal error what has been done in an administrative tribunal”[25]. Despite the description of proceedings under the section as an “appeal”, it confers original not appellate jurisdiction; the proceedings are “in the nature of judicial review”[26][27]
[25] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 at 79 [15] per Gaudron, Gummow, Hayne and Callinan JJ
[26] Ibid
In Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic)[28], it was held that:
Section 148 of the VCAT Act is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. Although s.148 uses the word “appeal”, it is clear that the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review.[29]
[28] supra
[29] [2001] CLR 72 at 79 [15] per Gaudron, Gummow, Hayne and Callinan JJ
The two decisions of the High Court quoted above confirm the view of Halligan FM in LDME at [22] that the section confers original jurisdiction on the Court. It is also clear that the proceedings are in the nature of judicial review.
The two decisions, however, are described by the High Court as an appeal and the moving party is described as “the appellant” rather than “the applicant”.
The Appellant claims that he was denied procedural fairness by the Social Security Appeals Tribunal by not being given a further hearing where he could cross-examine the First Respondent on the contents of her bank statements.
In my view the appeal must fail for the reasons cited in the submissions of the Child Support Registrar. The Appellant’s case before the Tribunal suffered from what his counsel quite properly described as “a distinct lack of documentation to substantiate his claim as to whether the payments were made”. This was always going to be a difficult hurdle for the Appellant to surmount in his application for review by the Tribunal.
The credibility of the parties was always an issue, and the Appellant, through his counsel, was afforded the opportunity to cross-examine the First Respondent at the hearing on 26 September 2011. He also availed himself of the opportunity to make written submissions.
It would appear that, even if the Appellant had been able to cross-examine the First Respondent a second time, once he had access to the bank statements, this would have been a futile process. He had not been able to produce sufficient documentary evidence to establish his claims at the hearing on 26 September. The First Respondent’s bank statements were put to him as information that was adverse to his case. What, then, would have been achieved by cross-examining the First Respondent on the bank statements? The Appellant had no fresh evidence to put to her.
There had been an oral hearing. The Tribunal had no duty to conduct a further hearing, nor did it have a duty to require the First Respondent to attend for further cross-examination, even if it did have the power, which is doubtful.
The Appellant’s appeal is that he was in some way denied procedural fairness because he was not offered a further opportunity to cross-examine the First Respondent in a further attempt to make out his case for him. The decision in Hampton Court Ltd v Crooks[30] does not assist the Appellant. This was not a case where “the material facts are peculiarly within the knowledge of the defendant”[31]. The facts sought related to payments claimed to have been made by the Appellant. His knowledge of those facts should have been just as great as the knowledge of the First Respondent.
[30] supra
[31] Supra at 371
The other hurdle which the Appellant has been unable to surmount is the fact that when the adverse information of the bank statements was made available to him by the Tribunal for his comments, he did not ask the Tribunal to schedule another hearing so that he could cross-examine the First Respondent. Instead, he chose to respond in another way, by relying on a submission from his accountants.
The Appellant was not denied procedural fairness by the Tribunal. The Appeal must fail.
The Court will consider the question of costs
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 9 October 2012
[27] (2010) 241 CLR 320 at 331-332 [18] per French CJ, Gummow and Bell JJ
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