Skarzynski v Secretary, Department of Education, Employment and Workplace Relations
[2009] FCA 1134
•9 OCTOBER 2009
FEDERAL COURT OF AUSTRALIA
Skarzynski v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1134
ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal rejecting applicant’s claim to newstart allowance under Social Security Act1991 (Cth) – where Tribunal found that applicant was not unemployed for purposes of s 593(1) of Social Security Act1991 (Cth) – where applicant purchased, repaired and then sold motor vehicles at a profit – where Tribunal rejected applicant’s evidence as to time he spent on vehicle-related activities – whether Tribunal committed error of law by failing to set out findings on material questions of fact or by failing to refer to evidence or other material which supported its findings as required by s 43(2B) of the Administrative Appeals Act 1975 (Cth) – whether Tribunal committed error of law by denying applicant procedural fairness or because there was no probative material to support its findings of fact or because it was biased in taking into account the applicant’s previous acts of dishonesty
Held: appeal dismissed – Tribunal set out findings as to level or intensity of applicant’s vehicle-related activities and referred to evidence that applicant had been dishonest in support of its rejection of the applicant’s evidence
Acts Interpretation Act 1901 (Cth) s 25D
Administrative Appeals Tribunal Act 1975 (Cth) s 44, s 593
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13
Federal Court Rules O 53 r 3(4)
Migration Act 1958 (Cth) s 430
Social Security Act 1991 (Cth)Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 referred to
Brown v The Repatriation Commission (1985) 7 FCR 302 referred to
Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 253 ALR 263 referred to
Civil Aviation Safety Authority v Central Aviation Pty Limited [2009] FCAFC 137 referred to
Collector of Customs v Agfa-Gevaert Ltd (1995-1996) 186 CLR 389 referred to
Collector ofCustoms v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 referred to
Comcare Australia v Lees (1997) 151 ALR 647 referred to
Hussain v Minister for Foreign Affairs & Anor (2008) 169 FCR 241 referred to
Lang v Comcare (2007) 44 AAR 370 referred to
McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 referred to
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to
Repatriation Commission v O’Brien (1985) 155 CLR 422 referred to
Secretary, Department of Employment and Workplace Relations v Joss (2006) 152 FCR 541 referred to
Suters v Australian Postal Corporation (1992) 28 ALD 320 referred to
TelePacific Pty Ltd v Federal Commissioner of Taxation (2005) 58 ATR 441 referred to
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 referred to
Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425 referred toKRZYSZTOF SKARZYNSKI v SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
SAD 215 of 2008
BESANKO J
9 OCTOBER 2009
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 215 of 2008
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: KRZYSZTOF SKARZYNSKI
ApplicantAND: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
9 OCTOBER 2009
WHERE MADE:
MELBOURNE VIA VIDEO LINK WITH ADELAIDE
THE COURT ORDERS THAT:
1.The applicant’s application by notice of motion dated 18 May 2009 to amend his notice of appeal be refused.
2.The appeal be dismissed.
3.The applicant pay the respondent her costs of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 215 of 2008
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: KRZYSZTOF SKARZYNSKI
ApplicantAND: SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
JUDGE:
BESANKO J
DATE:
9 OCTOBER 2009
PLACE:
MELBOURNE VIA VIDEO LINK WITH ADELAIDE
REASONS FOR JUDGMENT
This is an appeal by Mr Krzysztof Skarzynski from a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 December 2008. The respondent to the appeal is the Secretary, Department of Education, Employment and Workplace Relations. The appeal is brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The appeal under that section is limited to an appeal on a question of law.
The decision of the Tribunal dealt with the applicant’s entitlement to a newstart allowance under the Social Security Act 1991 (Cth) (“the Act”). The applicant received a newstart allowance from on or about 19 September 1997 to 4 May 2006. The payment of the allowance was cancelled on 4 May 2006 on the ground that the applicant was not unemployed and therefore he was not entitled to receive the allowance. A debt was raised against him for the payments he had received during the above period. Following a reconsideration of that issue, the debt was calculated at $74,835.71 in respect of the period from 24 July 1998 to 4 May 2006. On 24 August 2006, the applicant lodged a new claim for a newstart allowance pursuant to the Act. That claim was rejected. The decision to reject that claim was reconsidered, but the decision was affirmed.
The applicant requested a review of the above decisions. On the review, the decisions were affirmed by an authorised review officer. The applicant then applied to the Social Security Appeals Tribunal (“SSAT”) for a review of the decisions. The SSAT decided that the applicant was unemployed within the meaning of that term in s 593(1) of the Act during the period from 24 July 1998 to the date of its decision on 3 July 2007. The SSAT set aside all of the decisions under review and remitted the matters back to Centrelink to consider whether the applicant was otherwise qualified for a newstart allowance during all or any part of the period from 24 July 1998 to 3 July 2007.
On 6 August 2007, the respondent applied to the Tribunal for review of the decision of the SSAT.
The Tribunal decided to set aside the decision under review and, in lieu of that decision, the Tribunal decided that the applicant was not entitled to a newstart allowance during the period 1 July 2001 to 31 December 2005 and that the amount of the newstart allowance paid to him during that period is a debt due by him to the Commonwealth. In short, the basis of the Tribunal’s decision was that the applicant’s activities of buying, repairing and selling cars meant that he was not unemployed within the meaning of that term in s 593(1) of the Act.
The Tribunal also decided that the decision to cancel the payment of the newstart allowance with effect from 4 May 2006 should be remitted to the respondent for reconsideration in accordance with the Tribunal’s reasons, and that the decision to refuse the application for the newstart allowance lodged on 24 August 2006 should also be remitted to the respondent for reconsideration in accordance with its reasons.
The scope of the applicant’s appeal
The applicant’s appeal to this Court relates to the decisions made by the Tribunal with respect to the period from 1 July 2001 to 31 December 2005.
In order to understand the nature of the applicant’s appeal, it is necessary to identify the key issues addressed by the Tribunal and its conclusions in relation to those issues.
1.The first issue before the Tribunal was whether the applicant was “unemployed” within the meaning of that term in s 593(1) of the Act between 24 July 1998 and 4 May 2006. The Tribunal found that the intensity or level of the applicant’s activities for the period from 1 July 2001 to 31 December 2005 was such that he was not “unemployed” within the meaning of that term in s 593(1) of the Act.
2.The second issue was whether there were reasons to treat the applicant as unemployed notwithstanding that he had undertaken paid work. The Tribunal decided that there were no reasons within s 595(1) of the Act to treat the applicant as unemployed.
3.The third issue was whether the applicant failed to satisfy the activity test within s 601(1) of the Act. The Tribunal rejected the contention that the applicant did not satisfy the activity test.
4.The fourth issue was whether the applicant was erroneously exempted from the activity test for the periods from 14 November 1997 to 4 August 2000 and from 7 February 2000 to 7 August 2002. The Tribunal found that there was no basis for a conclusion that the applicant was erroneously exempted from the activity test during the said periods.
5.The fifth issue was whether the newstart allowance was correctly cancelled with effect from 4 May 2006. As I understand the Tribunal’s reasons, it found that the applicant was unemployed as at 4 May 2006, but could not determine if he satisfied the activity test at that time.
6.The sixth issue was whether the debt should be waived or written off. The Tribunal concluded that there was no reason to write off all or part of the debt under s 1236(1A) of the Act, or to exercise the discretion to waive the debt under s 1237AAD of the Act.
7.The seventh issue was whether the applicant’s application for a newstart allowance lodged on 24 August 2006 was correctly rejected. Again, the Tribunal was satisfied that the applicant was unemployed as at 24 August 2006, but it could not be satisfied of the other necessary matters, including whether the applicant met the activity test.
The applicant appeared before me in person. His notice of appeal identified eleven alleged questions of law. All but one of his alleged questions of law relate to the first issue. The eleventh alleged question of law relates to the sixth issue.
On 30 April 2009, the applicant filed written submissions consisting of 112 pages. I will refer to this document as the applicant’s written submissions. The respondent filed an outline of submissions consisting of 17 pages and the applicant filed written submissions in reply consisting of four pages.
On 18 May 2009, which was two days before the date fixed for the hearing of the appeal, the applicant issued a notice of motion in which he sought an order giving him leave to amend his notice of appeal to add further questions of law. Such leave is necessary: Federal Court Rules O 53 r 3(4). The notice of motion was supported by an affidavit sworn by the applicant in which he alleged errors of law not stated in the notice of appeal. The notice of motion and affidavit of the applicant did not expressly articulate the questions of law that the applicant wished to raise in addition to those in his notice of appeal. Doing the best I can, the applicant appears to be seeking leave to raise three matters not in his notice of appeal. Each of the three matters relate to the first issue before the Tribunal.
First, the applicant alleges that, in considering the level or intensity of his vehicle-related activities (a concept I explain below), the Tribunal failed to take into account what he called “hard” evidence suggesting that his activities were not at such a level or intensity as to justify a finding that he was not unemployed within the meaning of that word in s 593(1) of the Act. The applicant alleges that this evidence was “objective” evidence and it was not affected by whether his estimates of time were accepted. The evidence consisted of evidence of transactions on the applicant’s American Express account as shown in his American Express statements. The applicant alleges that almost all of his purchases of paint and new parts were made on his American Express account and that the record of such transactions gave the best indication of the level or intensity of his vehicle-related activities. This particular matter is referred to in the applicant’s written submissions (see, for example, pages 15-17 and pages 66-82) and was the subject of his oral submissions.
Secondly, the applicant alleges that the Tribunal erred in the weight it accorded to advertisements the applicant placed in The Advertiser and the Trading Post for the sale of motor vehicles because the Tribunal double-counted the advertisements. In other words, some of the advertisements put before the Tribunal were in fact copies of the advertisements already before the Tribunal.
Thirdly, the applicant alleges that the Tribunal erred in its analysis of the applicant’s purchase of parts and materials.
I will deal with these three matters after I have examined the eleven alleged questions of law in the applicant’s notice of appeal. None of the three matters raise a question of law and none of them support a conclusion that the Tribunal has committed an error of law. The applicant’s application for leave to amend his notice of appeal must be refused.
The Tribunal’s reasons
In the circumstances, it is necessary for me to address the Tribunal’s reasons only in relation to the first issue and the sixth issue.
The first issue: whether the applicant was “unemployed” within s 593(1) of the Act between 24 July 1998 and 4 May 2006
The Tribunal set out the legal principles relevant to a determination of whether the applicant was “unemployed” within the meaning of that term in s 593(1) of the Act. He referred to the decision of Graham J in Secretary, Department of Employment and Workplace Relations v Joss (2006) 152 FCR 541. One of the principles the Tribunal formulated was that the question of whether a person is unemployed is a question of fact and degree, and regard should be had to the intensity with which the person applies himself or herself to particular work or a particular enterprise. There is no doubt that the question of whether a person is unemployed is essentially one of fact and degree to be decided having regard to the relevant principles: McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609. It was not suggested on the appeal that the Tribunal had applied the wrong legal test.
The applicant purchased damaged cars at auction and then repaired them for his own use. He later conceived the idea of developing a small part-time business to make some extra money by buying damaged cars, repairing them and then reselling them at a profit. The Tribunal referred to the steps taken by the applicant from December 2000 onwards which, the respondent contended, were consistent with the applicant operating a business.
There was detailed evidence before the Tribunal in relation to the acquisition and disposal of various vehicles during the period from 24 July 1998 to 4 May 2006.
In his case before the Tribunal, the applicant distinguished between cars registered in his name for his personal use which were his property, cars registered in Ms Jolanta Kucmierz’s name (a friend of the applicant), which were her property and which were either for her personal use or for their joint use, and, finally, cars purchased for the applicant’s admitted business as a sole trader, which he said were his property.
The Tribunal rejected such a distinction. The Tribunal’s reasons are explained in the following passage:
“However, for the purposes of determining whether Mr Skarzynski was unemployed during the relevant period, I do not think that it is appropriate to divide the vehicles into those separate categories. It is apparent from Mr Skarzynski’s evidence that he regularly purchased damaged cars, and then repaired them and onsold them, often within a comparatively short time of the repairs being completed. Many of the cars were purchased by him and onsold by him, after being registered in his name. In some cases vehicles were used by him for his personal use, but then sold after a relatively short period. I find that those vehicles nevertheless formed part of his business, and should not be excluded from my determination of his employment activity by characterising such vehicles as personal vehicles. In a significant number of other cases, the cars were purchased with funds provided by Ms Kucmierz, and after being repaired by Mr Skarzynski, they were registered in her name and sold, again usually within a short time of being registered, and after she had used them in the meantime. Some vehicles that had been purchased with the intention of using them for a joint holiday were sold after they had been so used. It is apparent that Mr Skarzynski and Ms Kucmierz intended, if possible, to resell the vehicles at a profit. Mr Skarzynski was actively involved in selecting, purchasing, repairing and selling the vehicles registered in Ms Kucmierz’s name. I find that these combined activities constituted the carrying on by Mr Skarzynski of a business activity, which comprised the whole of the purchases and sales of the vehicles in question, whether they were ultimately used by him or Ms Kucmierz for personal purposes, or registered in his name or in her name.
Mr Skarzynski claimed that the purpose of his work on vehicles that he and Ms Kucmierz owned and that were used by them for their own personal use was to minimise the high cost to them of owning a vehicle (see exhibit R2, page 43). I accept that this was the position, but he could only achieve this by taking steps to select, purchase, repair and resell suitable vehicles at a profit. He admitted that he intended to make a profit. The purpose for which he used the resulting profit does not alter the character of his activities. I find that those activities constitute employment activities for the purposes of determining whether he was unemployed within the meaning of s 593(1) of the SS Act, especially as those activities were taking place at the same times as similar activities in relation to vehicles which Mr Skarzynski admitted were business activities, albeit on what he asserted to be a ‘hobby’ scale.”
The Tribunal said that, on that analysis, it was not necessary for it to determine the nature of the business relationship, if any, between the applicant and his friend, Ms Kucmierz. The Tribunal said that, in case it was wrong, it was satisfied that the relationship was a joint venture. The Tribunal explained its reasons for reaching that conclusion, but it is not necessary for me to set out those reasons.
The Tribunal set out a table reflecting information provided by counsel for the respondent which showed the number of vehicle purchases and sales and probable purchases and sales for the financial years ended 30 June 1998 to 30 June 2007. In determining the inferences or conclusions which should be drawn from this information, the Tribunal said that it took into account the following:
1.Some vehicles were purchased for parts only.
2.Some vehicles were found after purchase to be not worth repairing and were on-sold without any work being done on them.
3.Some of the “vehicles” were trailers rather than cars.
4.Some vehicles are still owned by the applicant.
5.Some vehicles were purchased by the applicant for others and those vehicles were excluded.
The Tribunal then assessed the activity which would have been associated with the purchases, repair work and sales. It noted that the time involved in those activities would have varied from one vehicle to another.
The applicant had put before the Tribunal a lengthy document which he said represented his “side of the story”. The document became exhibit R2 before the Tribunal.
The Tribunal rejected the applicant’s evidence (including his assertions in exhibit R2) as to the amount of time he spent on the purchase, repair and sale of vehicles. The Tribunal explained its reasons for doing so in the following passage:
“However, I do not accept the estimates of time in exhibit R2, or Mr Skarzynski’s evidence as to his estimates of the time spent on the sale, repair and purchase of vehicles. Whilst he sought to justify the false information he provided in connection with the two dealings with HomeStart Finance to which I have referred above on the basis that he needed funds to pay down his credit cards, and on the basis that his behaviour was little different from people obtaining mortgages through ‘Lo Doc’ loan applications, the fact is that he was deliberately untruthful in those dealings. He also included incorrect information in a report form sent to Centrelink in 2006, in which he falsely reported that he had worked for 6 hours (exhibit A1, T42, page 988). Those matters indicate a propensity to act dishonestly in order to achieve a financial advantage or to avoid a detriment. Further, the total number of vehicles which Mr Skarzynski and Ms Kucmierz acquired during the relevant period has emerged progressively as a result of the continuing inquiries made by the Secretary; Mr Skarzynski did not at first, even in exhibit R2, disclose particulars of all of the transactions that are potentially relevant to the extent of his activities. I consider that his evidence as to the time he spent on the activities related to the vehicles in question was unconvincing and unreliable, and find that in his evidence and in exhibit R2, he significantly under-estimated the time he spent on those activities.
The amount of time spent on the relevant activities is a matter peculiarly within Mr Skarzynski’s own knowledge. There is no reliable evidence before me on that issue in view of my assessment of Mr Skarzynski’s evidence.”
The Tribunal then turned to consider whether it should infer from the evidence that the intensity of the applicant’s business activities reached such a level, during the whole or part of the period from 24 July 1998 to 4 May 2006, that he ceased to be unemployed for the purposes of s 593(1) of the Act. The Tribunal said that, in the absence of credible evidence of the time actually spent on the relevant activities, the number of vehicles purchased, repaired and sold (subject to the matters identified in [23]-[24] above), and the activities normally associated therewith provided “an appropriate basis for assessing the intensity of his business activities”. The Tribunal examined the number of purchases and sales and probable purchases and sales during the period from 24 July 1998 to 4 May 2006 and reached the following conclusions:
“I find that in the period from 1 July 2001 to 31 December 2005, the intensity of his activities was such that he was not unemployed within the meaning of s 593(1) of the SS Act. In reaching this conclusion, I take into account that (in addition to the numbers of vehicles acquired and sold during that period), some fifteen loans were made to him by Ms Kucmierz. Further, the evidence as to Mr Skarzynski’s purchases of parts and materials indicates a more intense level of activity during the period to which I have referred, even if (as Mr Skarzynski states) those purchases are reduced by 50% so as to be confined to those effected by him. I refer in this regard to the summary in exhibit R2 at pages 31-35, and I note that the records there summarised are not complete, because they do not include purchases made in cash. I have also taken into account that during the above period, Mr Skarzynski also sold or endeavoured to sell parts from vehicles which he had purchased for their parts. I am satisfied that the level of Mr Skarzynski’s activities went beyond what could fairly be described as a hobby or small scale business, designed as a supplement rather than as an alternative to wages, as Mr Skarzynski contends.”
The Tribunal said that, in order to determine whether the applicant was “unemployed” during the relevant period, it did not need to determine the profitability or otherwise of the applicant’s activities.
The Tribunal addressed an assertion by the respondent that the applicant had a business relationship with a Michael Stockton during the relevant period and that that meant he was not “unemployed”. The Tribunal then said:
“I referred above to a number of other matters on which the Secretary relied in support of its contention that Mr Skarzynski was not unemployed during the relevant period. Mr Skarzynski addressed each of these matters in exhibit R2. In particular, he explained his reasons for obtaining an Australian Business Number and registering for GST, for registering the business name ‘Autocare Port Adelaide’, for listing that name in the telephone directory, for obtaining a telephone connection for premises at Aberdeen Street, Port Adelaide, for using those premises after he had purchased certain damaged vehicles, and for arranging for electricity to be provided to the premises. He also explained that for a number of years prior to the relevant period, and also during the relevant period, he had allowed Ms Kucmierz and Michael Stockton to use his American Express card, and he explained the arrangements he had with them for them to pay what they owed for purchases made by them with the card. I found some of Mr Skarzynski’s explanations as to the above matters somewhat bizarre, but am not persuaded that the above matters in themselves prove that he had ceased to be unemployed (except for the period to which I have referred above), and I find it unnecessary to make any further findings in relation to those issues.”
The sixth issue: whether the debt should be waived or written off
As I have said, the Tribunal said that the case before it was not a case in which it was appropriate to write off all or part of the debt under s 1236(1A) of the Act. It held that there was equity in the applicant’s house and it could not be said that it would not be cost-effective for recovery action to be taken.
The Tribunal examined the authorities on the term “special circumstances” in s 1237AAD of the Act and then said:
“I have referred above to Mr Skarzynski’s financial position. I also take into account that he has a back condition that restricts his capacity for work. However, in matters where debts are raised for over-payment of benefits paid under the SS Act, the recipients of the benefits are frequently in difficult financial circumstances, and have health issues that are often more serious or of a more incapacitating nature than Mr Skarzynski’s condition. I do not think that these matters constitute special circumstances, or that this is an appropriate case for the exercise of the discretion conferred by s 1237AAD of the SS Act.”
Questions of law and grounds of appeal
The scope of an appeal under s 44(1) of the AAT Act and the requirement that the notice of appeal state a question, or questions of law, have been discussed in the authorities. The relevant principles are well established and I refer to Brown v The Repatriation Commission (1985) 7 FCR 302; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175; Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; Hussain v Minister for Foreign Affairs & Anor (2008) 169 FCR 241. The difference between a question of fact and a question of law has also been discussed in the authorities. Again, although there are sometimes difficulties in applying the relevant principles, they are well established and I refer to Collector ofCustoms v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Collector of Customs v Agfa-Gevaert Ltd (1995-1996) 186 CLR 389.
In the applicant’s notice of appeal, the alleged questions of law and the grounds of appeal appear as one matter. I will, for convenience, refer to each matter as a ground. In some grounds where a finding of the Tribunal is identified, it is alleged that no reasonable person could have made the finding. That is not a ground upon which a finding of fact may be challenged. I have read those grounds as involving an allegation that there was no evidence to support a finding. This may be an allegation of a question of law. On analysis, many of the grounds of appeal involve challenges to findings of fact made by the Tribunal. In those cases where it is arguable a question of law is raised, the ground must be rejected because there is no error of law by the Tribunal.
I have considered the applicant’s written and oral submissions. I will not summarise all of them. Many of them discuss matters of fact. The applicant asks this Court to make findings of fact. For example, although it is difficult to compartmentalise the applicant’s submissions, in his written submissions the first twenty pages deal with alleged errors of law and the balance of the submissions deals with the factual findings the applicant asks this Court to make. One of the pre-conditions for this Court to exercise the power to make findings of fact is that there be an error or errors of law. There are no errors of law in this case.
Ground one
The first ground relates to the Tribunal’s findings as to the applicant’s evidence regarding the time he spent on the activities associated with the vehicles the Tribunal identified (“the vehicle-related activities”). The Tribunal found that the applicant’s evidence was unconvincing and unreliable and that, in his evidence and exhibit R2, he significantly under-estimated the time he spent on the vehicle-related activities. The first ground is that, in connection with those findings, the Tribunal failed to comply with s 43(2B) of the AAT Act. Section 43(2B) is in the following terms:
“Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.”
Section 43(2B) of the AAT Act is in similar terms to provisions in other Commonwealth Acts (Migration Act 1958 (Cth) s 430(1); Acts Interpretation Act 1901 (Cth) s 25D; Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13(1)). These provisions have been considered in the authorities.
The question whether the Tribunal has complied with s 43(2B) in a particular case is, I think, a question of law: Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 253 ALR 263 at 271-273 [30]-[37] per Perram J.
The question whether a failure by the Tribunal to comply with s 43(2B) is an error of law which vitiates the Tribunal’s decision is not, as far as I can see, clearly answered by the authorities: Repatriation Commission v O’Brien (1985) 155 CLR 422 at 445-446 per Brennan J; Comcare Australia v Lees (1997) 151 ALR 647 at 658-659 per Finkelstein J; TelePacific Pty Ltd v Federal Commissioner of Taxation (2005) 58 ATR 441 at 451 per Sackville J; Lang v Comcare (2007) 44 AAR 370. The answer to the question may turn on an examination of the effect of the particular failure on the Tribunal’s decision. I do not need to determine the question in this case because I have decided that the Tribunal did not fail to comply with s 43(2B).
Since writing these reasons, I note that the Full Court of this Court held in Civil Aviation Safety Authority v Central Aviation Pty Limited [2009] FCAFC 137 that a failure by the Tribunal to comply with s 43(2) of the AAT Act is an error of law. However, the Court also held that a failure to comply with s 43(2) did not inevitably lead to an order setting aside the decision. Whether the decision is set aside will depend on the facts and circumstances of the individual case and the exercise of the discretion conferred by s 44(5) of the AAT Act.
The obligation in s 43(2B) relates to the Tribunal’s “findings on material questions of fact”. On one view, the material question of fact on the particular issue of whether the applicant was unemployed within s 593(1) was the level or intensity of the applicant’s vehicle-related activities judged by reference to the amount of time and effort he expended on those activities. The Tribunal made its decision with respect to that matter by drawing inferences from evidence it accepted. On one view, the Tribunal’s conclusion that the applicant’s evidence on this topic was unreliable was no more than the rejection of an item of evidence which might otherwise have assisted it in making its finding on a material question of fact. On this view, the Tribunal’s conclusion on the reliability or otherwise of the applicant’s evidence was not a finding on a material question of fact. Without pausing to discuss some of the issues which arise, I refer to Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. I will not take such an approach because it seems to me that, in a case of this nature the better view is that the question of what is a finding on a material question of fact depends very much on the nature and circumstances of the decision. That was the approach taken by Stone J in Lang v Comcare (2007) 44 AAR 370. In this case, the applicant’s evidence as to the time he spent on his vehicle-related activities was an important consideration in terms of a decision as to whether he was unemployed within the meaning of the term in s 593(1) of the Act. He was the only witness before the Tribunal who could and did give direct evidence on the issue.
I do not think there is any doubt the Tribunal set out in its reasons its findings on material questions of fact relevant to the applicant’s evidence of the time and effort he expended on vehicle-related activities. I refer to the passage in the Tribunal’s reasons set out above (at [26]). The applicant’s real complaint seems to be that the Tribunal’s reasons did not contain a reference to the evidence or other material on which the findings were based.
In summary, that evidence or other material was as follows:
1.The applicant was deliberately untruthful in two dealings he had with HomeStart Finance, and he also included incorrect information in a report form sent to Centrelink. The dealings with HomeStart Finance involved the applicant signing forms in fictitious names and the preparation of fictitious pay-slips. The incorrect information in a report to Centrelink involved the applicant falsely reporting that he worked for six hours. The Tribunal found that those matters indicated “a propensity to act dishonestly in order to achieve a financial advantage or to avoid a detriment”.
2.The total number of vehicles which the applicant and Ms Kucmierz acquired from 24 July 1998 until 4 May 2006 emerged progressively as a result of enquiries made by the respondent, and the applicant did not at first, even in exhibit R2, disclose particulars of the transactions that were potentially relevant to the extent of his activities.
Those matters are referred to in the same passage which contains the Tribunal’s findings. Ground one raises a question of law, but the applicant’s allegation that the Tribunal failed to comply with s 43(2B) of the AAT Act is not made out.
In so far as there was an obligation on the Tribunal, aside from s 43(2B) of the AAT Act, to explain its reasons for rejecting evidence not directly contradicted by other evidence (see Suters v Australian Postal Corporation (1992) 28 ALD 320), the Tribunal complied with that obligation.
As part of ground one, the applicant submitted that the matters the Tribunal relied on could not justify the finding it made. First, he contended that because his dishonesty did not occur in his claim for the newstart allowance, or in the course of his evidence to the Tribunal, it should have been ignored. That contention is incorrect and his dishonesty was a matter the Tribunal was entitled to take into account. Secondly, he contended that the Tribunal erred in concluding that the total number of vehicles “emerged progressively”. However, that is a challenge to a finding of fact and cannot be characterised as an error of law having regard to the fact that there was evidence upon which the Tribunal could make that finding.
Ground two
The second ground also relates to the findings of the Tribunal referred to in ground one. It is said by the applicant that an important part of the applicant’s vehicle-related activities was the repair work carried out by the applicant himself. The first limb of the second ground is that there was no challenge to the applicant’s evidence in this respect and that therefore the Tribunal’s finding was made in breach of the rules of procedural fairness. The second limb of the second ground is that the Tribunal’s finding that the applicant had underestimated the time he spent on vehicle-related activities was not based on any evidence.
In so far as it is alleged that there was a breach of the rules of procedural fairness, that allegation must be rejected. The applicant’s submissions in exhibit R2 indicate that he was aware that the time he spent on vehicle-related activities, including the repairs he did himself, was an issue. Furthermore, the issue was clearly raised with the applicant in cross-examination and was raised by the respondent in her oral submissions. I refer to the transcript for 17 October 2008 at page 41 and the transcript for 24 October 2008 at page 20.
In so far as the complaint is that there was no evidence to support the Tribunal’s finding, that must be rejected for the reasons given in relation to ground one.
Ground three
The third ground also relates to the findings of the Tribunal referred to in ground one. The third ground is that there was no probative material to support a finding that the applicant had significantly underestimated the time he spent on vehicle-related activities.
This ground must be rejected for the same reasons given in relation to grounds one and two.
Ground four
The fourth ground also relates to the Tribunal’s findings referred to in ground one. The fourth ground is that the Tribunal was biased and had prejudged the applicant’s evidence based on dishonest conduct by him in the past.
This ground must be rejected. The Tribunal was entitled to rely on what it called a propensity “to act dishonestly in order to achieve a financial advantage or to avoid a detriment” and the fact that it did so does not indicate bias or prejudgment on its part.
Ground five
The fifth ground relates to the Tribunal’s finding that the business activity carried on by the applicant included not only vehicles purchased for the applicant’s business as a sole trader, but also vehicles purchased by the applicant or Ms Kucmierz, even if the latter vehicles were purchased by them with the intention of using them for personal purposes. This finding was said to be so unreasonable that no reasonable person could make it.
The Tribunal’s finding was based on the following grounds:
1.The applicant regularly purchased damaged cars and then repaired them and onsold them, often within a comparatively short time of the repairs being completed. Many of the cars were purchased by him and onsold by him, after being registered in his name. In some cases, vehicles was used by him for his personal use, but then sold after a relatively short period.
2.In other cases, the cars were purchased with funds provided by Ms Kucmierz, and after being repaired by the applicant, they were registered in her name and sold, again usually within a short time of being registered, and after she had used them in the meantime. Some vehicles which had been purchased with the intention of using them for a joint holiday were sold after they had been so used. The applicant and Ms Kucmierz intended, if possible, to resell the vehicles at a profit. The applicant was actively involved in selecting, purchasing, repairing and selling the vehicles in Ms Kucmierz’s name.
3.Even accepting that the applicant’s work on vehicles that he and Ms Kucmierz owned and that were used by them for their own personal use was carried out to minimise the high cost to them of owning a vehicle, the applicant could only achieve this by taking steps to select, purchase, repair and resell suitable vehicles at a profit and he admitted that he intended to make a profit. The purpose for which the applicant used the resulting profit did not alter the character of his activities.
The Tribunal took the view that these findings or conclusions led in turn to the conclusion that all the vehicle-related activities carried out by the applicant constituted “employment activities” for the purpose of determining whether the applicant was “unemployed” within the meaning of that term in s 593(1) of the Act.
In my opinion, there is no error in the reasoning of the Tribunal, let alone an error of law. The Tribunal was entitled to take into account what actually happened to the vehicles. It was entitled to take into account the applicant’s intention (and that of Ms Kucmierz) in relation to vehicles allegedly purchased for personal use. It was entitled to proceed on the basis that the purpose for which a profit resulting from the purchase, repair and sale of a vehicle was to be used by the applicant did not alter the character of his activities.
The applicant modified his challenge to the Tribunal’s findings in his written submissions (page 84) and in his oral submissions. He accepted that it was not an error for the Tribunal to take into account some of his activities in connection with vehicles purchased for personal use, but that it was an error for it to take into account other activities. He drew a distinction between repairs, which he conceded it was appropriate for the Tribunal to take into account, and activities that a “normal” person purchasing a vehicle for personal use would engage in. As to the latter category, he submitted that the time spent on such activities should not have been taken into account. In the latter category, he placed attendance at auctions and other activities related to the purchase of a vehicle. I reject this submission. For the reasons previously given, there was no error associated with the Tribunal’s findings. In truth, the applicant’s attack is one directed to factual findings made by the Tribunal.
Ground six
The sixth ground of appeal relates to the finding of the Tribunal referred to in ground five and a finding by the Tribunal that it accepted that the purpose of the applicant’s work on vehicles that he and Ms Kucmierz owned and that were used by them for their own personal use was to minimise the high cost to them of owning a vehicle. The sixth ground of appeal is that the two findings are contradictory and thus the Tribunal’s approach was illogical. In my opinion, this represents a challenge to findings of fact made by the Tribunal. In any event, the factual findings can be reconciled. The applicant was doing the repairs to minimise the high costs of owning a vehicle, but, in addition, he intended to make a profit on the resale of the vehicles. The latter finding was open to the Tribunal and is sufficient to justify the approach taken by it.
Ground seven
The seventh ground relates to the second finding referred to in ground six. In connection with that finding, the Tribunal said that the applicant admitted that he intended to make a profit. The seventh ground is that the applicant never made such an admission. This ground does not raise an error of law. In any event, as the transcript in the supplementary appeal papers shows, there was evidence to support the Tribunal’s conclusion.
Ground eight
The eighth ground relates to the Tribunal’s finding that, from 1 July 2001 to 31 December 2005, the intensity of the applicant’s activities was such that he was not unemployed within the meaning of that term in s 593(1) of the Act. The eighth ground is that this finding is so unreasonable that no reasonable person could make it. I have concluded that the other grounds of appeal must be rejected. The question which lies behind the finding challenged in ground eight is, as the authorities indicate, a question of fact and degree. In my opinion, it was clearly open to the Tribunal to reach the conclusion it did and this ground does not raise a question of law.
Ground nine
The ninth ground relates to the findings of the Tribunal referred to in ground one and ground eight respectively. The ninth ground is that the finding referred to in ground one is erroneous and that, as a result, the finding referred to in ground eight is erroneous. I have rejected grounds one and eight and, accordingly, this ground must be rejected.
Ground ten
The tenth ground relates to the final decisions made by the Tribunal. The tenth ground is that they are erroneous in view of the errors identified in grounds one to nine. I have rejected grounds one to nine and, accordingly, this ground must be rejected.
Ground eleven
The eleventh ground relates to the Tribunal’s finding that there was equity in the applicant’s house. The eleventh ground is that that finding was contrary to the evidence and that the finding should have been that there was no equity in the applicant’s house. It followed, so the applicant submitted, that a finding should have been made that it would not be cost-effective for the Commonwealth to take action to recover the debt within s 1236(1A) of the Act. There was evidence to support the finding of the Tribunal and, in those circumstances, this ground does not raise a question of law.
The matters raised in the application for leave to amend the notice of appeal
In my opinion, leave to amend the notice of appeal under O 53 r 3(4) of the Federal Court Rules should be refused. None of the three matters set out in the notice of motion and affidavit raise a question of law.
I refer to my earlier summary of the three matters (at [12]-[14]).
As to the first matter, that matter, on the face of it, is a challenge to a finding of fact. It cannot be characterised as an error of law on the basis that the Tribunal failed to have regard to the “hard” or objective evidence because the Tribunal did have regard to the evidence and I refer to the passage in the Tribunal’s reasons set out in [27] above. Furthermore, the evidence was before the Tribunal and I refer to exhibit R2 at pages 31-35 where there is an extensive reference to the transactions on the applicant’s American Express account and submissions as to the conclusions about the intensity or level of the applicant’s activities which could be drawn therefrom. I note, for example, that the applicant set out tables showing purchases of paint from 1999 to 2005.
As to the second matter, that does not raise an error, let alone an error of law. The Tribunal’s treatment of the advertisements went no further than what is set out in the following passage from its reasons:
“The Secretary also tendered documents establishing that Mr Skarzynski had over the years placed a number of advertisements in The Advertiser and The Trading Post for the sale of motor vehicles, and that he had bought and sold motor vehicles through two auction houses, namely Pickles Auctions and ManheimFowles Pty Ltd.”
There is no reason to think that the Tribunal double-counted the number of advertisements as was asserted by the applicant. Even if it did, while that may have led to an error of fact, it did not constitute an error of law.
As to the third matter, there is no reason to think the Tribunal erred in its analysis of parts and materials. Even if it did, there is nothing to suggest that such an error was an error of law.
A matter raised by the respondent
As the applicant was unrepresented and, as the respondent has obligations as a model litigant, it raised with the Court a possible error in the Tribunal’s reasons. The matter related to the power in s 595(1) to treat a person as being unemployed in certain circumstances. In the course of its reasons dealing with that issue, the Tribunal said:
“But even if I were to accept Mr Skarzynski’s contention that from an overall point of view he made no profit from his activities, that is not a matter in itself that would lead me to conclude that in the circumstances of this matter, his employment activities should be disregarded. Such a conclusion would be inconsistent with the authorities to which I have referred above, and with other authorities to the same effect, where the tribunal has concluded that the fact that relevant activities have not resulted in a profit does not mean that a person was unemployed.”
The possible error arises if this passage is construed as a statement by the Tribunal that the absence of a profit or remuneration should not be taken into account or is neutral as far as an exercise of the power in s 593(1) is concerned.
I have read the Tribunal’s reasons carefully. I accept the respondent’s contention that, when the Tribunal’s reasons are considered as a whole, there is no error of law involved in the Tribunal’s approach to the exercise of the power in s 595(1) of the Act. The Tribunal took into account the relevant considerations including the fact that it did not appear that the applicant’s activities resulted in “any substantial profit or remuneration”. The latter fact was not, in the Tribunal’s opinion, sufficient of itself to justify an exercise of the discretion in the applicant’s favour. That was an approach which was open to the Tribunal and one which did not involve error.
Conclusion
For the above reasons, the appeal must be dismissed with costs.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 9 October 2009
The Applicant appeared in person. Counsel for the Respondent: Ms K Bean Solicitor for the Respondent: Minter Ellison Lawyers
Date of Hearing: 20 May 2009 Date of Judgment: 9 October 2009
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