Siddha Yoga Foundation Ltd v Strang, Claire
[1996] FCA 47
•9 Feb 1996
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG6 of 1995
GENERAL DIVISION )
On Appeal from the General Division of the Administrative Appeals Tribunal constituted by Mrs. J.R. Dwyer
BETWEEN: SIDDHA YOGA FOUNDATION LIMITED
Applicant
AND: CLARE STRANG
First Respondent
AND: DEPARTMENT OF IMMIGRATION AND ETHNIC AFFAIRS
Second Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 9 February, 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The order contained in paragraph 3 of the order made on 27 October 1995 be set aside.
The matter of the review by the Administrative Appeals Tribunal in so far as it concerns the questions whether each of the documents to which reference is made in the orders contained in paragraphs 1 and 2 of the order made on 27 October 1995 is an exempt document by virtue of s.45 of the Freedom of Information Act 1982 be remitted to the Administrative Appeals Tribunal constituted otherwise than as heretofore to be heard and determined according to law.
The applicant pay the respondent's costs of this day's hearing.
(Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.)
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG6 of 1995
GENERAL DIVISION )
On Appeal from the General Division of the Administrative Appeals Tribunal constituted by Mrs. J.R. Dwyer
BETWEEN: SIDDHA YOGA FOUNDATION LIMITED
Applicant
AND: CLARE STRANG
First Respondent
AND: DEPARTMENT OF IMMIGRATION AND ETHNIC AFFAIRS
Second Respondent
CORAM: Jenkinson J.
PLACE: Melbourne
DATE: 9 February, 1996
REASONS FOR JUDGMENT
The power of the Court to make an order that the remitted matter be heard by a member of the Tribunal other than the member from whose decision the appeal was brought is to be found in the rules of the Court, the order not having been entered. The failure to make any provision of that kind in the order was a consequence of the fact that the judgment was a reserved judgment, and included minutes of orders. If any party desired any variation of the orders as pronounced, it was incumbent, in my opinion, on that party to notify the court within 24-48 hours, or perhaps a little longer, and bring the matter back.
That was not done. But the passage of time, while it may affect the question of costs, and in some circumstances might affect the exercise of the discretion, does not, so far as it appears to me on the material before me, affect the exercise of the discretion here. No doubt the inconvenience and interference in the smooth administration of the Administrative Appeals Tribunal has been somewhat increased by the delay, but there were some apparent misunderstandings, failures of communication, which contributed to some extent to the delay.
I then enter upon the question as to whether an order of the kind sought should be made. In my opinion there is no material before me at all which would raise a case of bias or reasonable apprehension of bias. I use those two expressions as shorthand expressions with a well known meaning in the law. What is in question is whether the discretionary power that the Court has should be in this case influenced to make the order by the considerations which were stated by Davies and Foster JJ. in Northern New South Wales FM Pty. Limited v. Australian Broadcasting Tribunal 1990) 26 F.C.R. 39 at 42-44. It is true that their Honours were concerned with the exercise of the power conferred by section 16 of the Administrative Decisions (Judicial Review) Act. It is true that the substance of that provision is relevantly quite different from the substance of the provisions in section 44 of the Administrative Appeals Tribunal Act. But their Honours make it clear in their joint judgment that they regard the exercise of the two discretions as to be influenced in the same way by the considerations to which they refer. At all events, while there may be circumstances in which a distinction would be drawn between the two forms of re-hearing, one by an administrative decision maker other than the Administrative Appeals Tribunal and the other by the Administrative Appeals Tribunal in exercise of its review functions, nothing appears to suggest that this particular case calls for a distinction except the distinction to which Mr. Hurley pointed, that in the Administrative Appeals Tribunal Act there is both a specific power conferred on the President to nominate the member of the Tribunal to hear a particular proceeding and there is also the provision in s.44(6) of the Administrative Appeals Tribunal Act.
I regard sub-section 44(6) as enacted to make clear the legal situation that, unless the court gives a direction to the contrary, any appropriately qualified member of the Tribunal may constitute the Tribunal for a re-hearing when there has been an order remitting a case to be heard and decided again. And the provision which empowers the President to nominate the person to constitute the Tribunal was exercised in this case at a time when there was no restriction on the identity of the person. But, if the order sought is made, of course there will be such a restriction and the power will have to be exercised within the constraint of that restriction. I do not regard the circumstance that I would be, if I made the order sought, as it were contradicting the decision of the President as a matter to which in itself regard must be paid. Of course, I have to pay regard to the fact that the President's time has been wasted and that delay has occurred. Of course, I have to have regard to the reasons which the President gave to the solicitors for the applicant for her decision and, of course, I have considered those reasons carefully for the benefit that they provide me in exercising the different function that I have.
The principle as stated by Davies and Foster JJ. is that when decisions in judicial and administrative proceedings are set aside in toto and the matter is remitted to be heard and decided again, justice is in general better seen to be done if the court or the tribunal is reconstituted for the purposes of the re-hearing, and that that is so because the member constituting the tribunal in the original inquiry or hearing will ordinarily have expressed a view upon facts which will have to be determined in the re-hearing and the aggrieved party may think that a re-hearing before the tribunal as originally constituted could be worthless for the member's views have been stated. This is a doctrine quite distinct from the doctrines relating to disqualification for bias, actual or apprehended. It is based on an indulgence to the irrational though sometimes quite understandable reactions of persons who are not familiar with the processes of the law or of administration according to law. The doctrine which is there stated - the word doctrine is perhaps the wrong word to use - it is a general precept of what might be thought to be ordinarily a safe and wise course to take. I am not suggesting that it is intended by their Honours to be rigidly binding and the circumstances of cases are so various that there will be many occasions on which the course that is indicated as generally preferable will not be the course taken. But I accept that general approach, as I think I must as a single judge. When I look at the reasons for decision of the Tribunal it is apparent, in my view, that in relation to section 45 findings were expressed. I use the expression findings not only to comprehend findings about matters of historical fact or matters of prophecy as to the future but also findings as to the quality of statements about a person's behaviour which is part of the factual material that determines the outcome according to law of the question which section 45 poses. They are not conclusions of law and therefore one can only describe them as conclusions of fact. And there are such expressions. I have given as an example the characterisation of certain assertions of historical fact about a person's behaviour as "tittle tattle". There are other indications of evaluative judgments in the paragraphs to which Mr. Strong directed my attention. It is true that it may be that they were expressed in fields which legally do not actually arise, but I cannot be certain of that because the matter of the section 45 exemption has been remitted as a whole. I should say for clarity that that course was taken deliberately. When I framed the order I did not consider that it would be practicable to effectively, and without risk of confusion of the parties and of the Tribunal, hive out of the section 45 question some particular area related to the particular error of law which I had identified, and that was the reason why the orders in respect of the two documents were expressed in the way they were.
I should also mention the point that Mr. Hurley made, that the observations in the Northern New South Wales FM Case are about a situation where the decision has been set aside for error and remitted in toto for re-hearing. I understand the point, but I do not think it avails him in the circumstances of this case. The claim for exemption by reference to section 45 was and remains a whole decision in itself and it is quite separate from the claims for exemption under the other sections which were heard and determined, and involved at the first hearing a determination of questions of fact and required the expression by the Tribunal of views about those questions of fact.
It appears to me that this is a case which falls within the ambit of the general precept that their Honours stated. It is true that there will be more time consumed in a hearing by somebody who has not come to this matter previously. But that increase in time and trouble will perhaps be a good deal greater for the Tribunal, regrettably, than it will be for the parties. I would suppose that the Tribunal would, in accordance with its efficient practices, be likely if at all possible to read all the documentary material which provides the setting before the hearing commences. Once the Tribunal has done that, the time needed for the actual hearing, one would think, would be not greatly more before the nominated member than it would have been before the original member. But, whether that be so or not, I do not think that that consideration should result in the discretion being exercised against the order sought. That would be the position very commonly and this is not, as cases before the Administrative Appeals Tribunal go, by any means a complicated or long-running case. For those reasons, I think that I should recall order 3 and in lieu thereof order the same as it was before but with these words inserted:
"be remitted to the Administrative Appeals Tribunal constituted otherwise than as heretofore to be heard and determined according to law."
I certify that this and the 6 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.
Associate
Dated: 9 February, 1996
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