Walker, Kelvin v Secretary, Department of Employment, Education, Training & Youth Affairs
[1996] FCA 1082
•21 Nov 1996
IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) No. QG 161 of 1996
GENERAL DIVISION )
BETWEEN: KELVIN WALKER
Applicant
AND: SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS
Respondent
CORAM: Spender J
PLACE: Brisbane
DATE: 21 November 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application is dismissed with costs, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) No. QG 161 of 1996
GENERAL DIVISION )
BETWEEN: KELVIN WALKER
Applicant
AND: SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS
Respondent
CORAM: Spender J
PLACE: Brisbane
DATE: 21 November 1996
REASONS FOR JUDGMENT
On 11 September 1996 Kevin Walker filed an application for an order of review in the Federal Court of Australia, Queensland District Registry. That application was:
"[An] Application to review a decision of Deputy President Forgie of the Administrative Appeals Tribunal sitting alone on the 5/9/1996, to allow cross-examination as credit."
I take this to be a reference to cross-examination as to Mr Walker's credit. The application continued:
"The Applicant is aggrieved by the decision and conduct because:
1.that allowing cross-examination going to credit has no probative value;
... "
Mr Walker then referred to other matters which do not seem to be relevant to his being aggrieved by the decision
referred to in his application, namely, the decision to allow cross-examination as to credit.
On 25 October 1996 the respondent to Mr Walker's application filed a notice of motion seeking orders:
"1. That pursuant to Order 20 rule 2 of the Federal Court Rules, the Applicant's application for an order of review under the Administrative Decision (sic) (Judicial Review) Act 1977, be dismissed on the grounds that no reasonable basis for the application is disclosed or the application is frivilous (sic) or vexatious.
Alternatively, that the Applicant's application for an order of review under the Administrative Decision (sic) (Judicial Review) Act 1977 be dismissed pursuant to section 10(2)(b) of the said Act.
The applicant pay the Respondent's costs of and incidental to the application.
... "
On 5 September 1996 Mr Walker appeared before the Administrative Appeals Tribunal ('the Tribunal') constituted by Deputy President S.A. Forgie, seeking to challenge a decision made by the Social Security Appeals Tribunal affirming a decision by a delegate of the Secretary of the Department of Employment, Education, Training and Youth Affairs to raise and recover the sum of $2456.00, which represented Austudy payments made to Mr Walker for the period between 10 June 1995 and 27 October 1995.
In the reasons for decision given by the Tribunal dated 23 September 1996, the Deputy President said in paragraph 2:
"...During the hearing, Mr Walker objected to questions asked of him in cross-examination. He indicated that he would lodge an application in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 seeking review of my decision that he answer some of those questions. "
In paragraph 9 of her reasons, the Deputy President indicated that "...Mr Walker's credit is in issue in this case", and in paragraph 12 she said:
"As Mr Clark's questions were relevant to Mr Walker's credibility and as his credibility is relevant in deciding the issues in this case, I allowed the questions. "
Notwithstanding that view, rather than continuing to hear and reach a final decision on the matter, the Tribunal adjourned the proceedings so as to permit Mr Walker to bring the present application. This is the course which was referred to by Von Doussa J in Pancontinental Mining Limited v Burns (1994) 52 FCR 454 at 464 and 465, where his Honour said:
"The undesirability of entertaining proceedings to review decisions made in the course of criminal proceedings whilst those proceedings are continuing has often been emphasised, as to do so fragments the criminal process: Lamb v Moss (1983) 76 FLR 296; Vereker v O'Donovan [1988] 6 Leg Rep SL 3; Yates v Wilson (1989) 168 CLR 338 at 339. Similar considerations arise on an application for an order for review of an interlocutory order or procedural ruling in the course of a hearing before the AAT. However the public interest considerations which militate against hearing such an application in criminal proceedings may not be so strong in non-criminal proceedings, and the Court may more readily entertain an application where resolution of a question raised by the applicant for an order for review is likely in the long run to save time and
expense by shortening proceedings or to prevent possible prejudice or injury to the rights of the parties to the proceedings, or of third parties. The decision in Australian Postal Commission v Hayes (1989) 23 FCR 320 provides an example. There, the Court set aside a direction made by the Tribunal as to the procedure to be adopted during a hearing as the direction could have led to procedural unfairness if it were implemented when the hearing proceeded. Wilcox J at 323 said:
'It is sufficient to say that, notwithstanding the general principle enunciated in Lamb v Moss, upon a number of occasions the court has considered upon their merits decisions made by magistrates during the course of committal proceedings. This course has been considered appropriate in cases where disposal of the point without delay would be likely to settle some question of principle, leading to an earlier resolution of the principal proceeding.
I think that a similar approach should be taken to applications to review decisions arising out of other types of proceedings. On the one hand the court should be astute to protect parties from the expense and delay of unnecessary applications: see the comments of Deane J in Director-General of Social Services v Chaney (1980) 47 FLR 80 at 103. But, on the other hand, the court ought not to deny relief upon the merits in a case where a question of substance arises, which may be important in the disposal of the principal proceedings, particularly where the effect of refusing relief will be irreversible. The present dispute involves a short question of principle which is not only important to the resolution of the principal litigation between these parties but, as Dr Hayes had indicated, will also have ramifications for other cases. "
I should say the circumstances in which the Tribunal should adjourn to permit a challenge to a procedural ruling will be infrequent. This seems to me to be particularly the case where the ruling is based on a view as to relevance.
In my opinion, in the circumstances of this case, the decision to permit cross-examination as to credit cannot constitute a denial of procedural fairness so as to amount to conduct permitting review under the provisions of the Administrative Decisions (Judicial Review) Act 1977 ('the Act'). This is not a case (of which Australian Postal Commission v Hayes (supra) is an example), where the conduct engaged in by the Tribunal amounts to a denial of procedural fairness.
The contention on behalf of Mr Walker is that his credit is not relevant to any issue before the Administrative Appeals Tribunal. The Tribunal has ruled that that area of inquiry is relevant and therefore questioning as to his credit is admissible. Questions of procedure such as arise when questions of admissibility of evidence fall to be considered, in my opinion, even if they be decided wrongly, do not amount to a denial of procedural fairness, and a claim that they do is not, in my opinion, reasonably based.
If the course adopted by the Tribunal is in error, it may be that the final conclusion of the determination by the Tribunal is tainted with legal error so as to permit a successful challenge under the provisions of the Act to that final decision. However, in my opinion, the futility of the present application by Mr Walker is so patent that it would be an abuse of the process of the court to permit it to proceed.
I have indicated that I cannot see how the decision to permit cross-examination as to credit in the present case could constitute a denial of procedural fairness: it may very well be that a failure to permit cross-examination would constitute a denial of procedural fairness.
The High Court in Wakeley v The Queen (1990) 64 ALJR 321 said at 325:
"The limits of cross-examination are not susceptible of precise definition, for a connection between a fact elicited by cross-examination and a fact in issue may appear, if at all, only after other pieces of evidence are forthcoming. Nor is there any general test of relevance which a trial judge is able to apply in deciding, at the start of a cross-examination, whether a particular question should be allowed. Some of the most effective cross-examinations have begun by securing a witness's assent to a proposition of seeming irrelevance. Although it is important in the interests of the administration of justice that cross-examination be contained within reasonable limits, a judge should allow counsel some leeway in cross-examination in order that counsel may perform the duty, where counsel's instructions warrant it, of testing the evidence given by an opposing witness. Lord Hanworth MR, in words which commanded the approval of the House of Lords in Mechanical and General Inventions Co and Lehwess v Austin and the Austin Motor Co [1935] AC 346 at 359, said:
'Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness. "
Australian Postal Commission v Hayes (supra) was decided before the judgment of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. In an early case, Director-General of Social Services v Chaney (1980) 31 ALR 571, Deane J with whom Fisher J agreed said at 590:
"The word 'decision' is a word of indeterminate meaning. In some contexts, it can refer to the mental process of making up one's mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word 'decision' may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word 'decision' has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate (see, eg, Registrar of Workers' Compensation Commission v FAI Insurances Ltd [1977] 1 NSWLR 422 at 448) or be limited to referring only to a determination which effectively disposes of the matter in hand (see, eg Winter v Winter [1933] NZLR 289 at 295; Penniel v Driffill [1980] WAR 30 at 32).
Deane J then said at 593:
"The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act. "
In Bond's Case (supra), Mason CJ (with whom Brown and Deane JJ agreed) said at 337:
"... a reviewable 'decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning
leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Another essential quality of a reviewable decision is that it be a substantive deter- mination. "
Mason CJ said, importantly for the present case, at page 337:
"If 'decision' were to embrace procedural determinations, then there would be little scope for review of 'conduct', a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the 'conduct' of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of 'conduct' than with the notion of 'decision under an enactment'. "
And later at 342, in a passage of his judgment under the heading "Meaning of 'Conduct'" Mason CJ said:
"It would be strange indeed if 'conduct' were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process. "
Accordingly, there is a clear distinction between a decision and conduct engaged in for the purpose of making a decision. The challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision making process, except in the sense that if the decisions are procedural in character, they will be part of the conduct which is under challenge. In relation to conduct, the complaint is that the process of decision-making was flawed. In relation to a decision, the complaint is that the actual decision was erroneous. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to 'conduct'. That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice.
As I indicated in Commissioner of Taxation v Beddoe (an unreported judgment of 31 July 1996), the position referred to by the Chief Justice may be different where compliance with the directions of the Tribunal would amount to denial of natural justice.
It seems to me, therefore, that on a detailed analysis, what Mr Walker has embarked upon in the present proceedings falls within O 20 r 2 of the Federal Court Rules.
This is so in every respect referred to in sub-rule (1).
On the material presently before the court no reasonable cause of action is disclosed. Further, in a very real sense the proceeding is vexatious, for the reasons referred to by von Doussa J in the Pancontinental Case to which I have earlier made reference, as having a tendency to fragment the review process; and thirdly, having regard to the view I have formed, the futility of the orders claimed by Mr Walker are so patent that to permit the proceedings to continue would constitute an abuse of a process of this court.
There is an associated matter raised by Mr Walker which appears not to be covered by his application, and it is his claim that he is entitled to be made aware of material to be put to him in cross-examination in advance of that cross-examination. It is necessary for a party in compliance with the rule of fairness expressed in Browne v Dunn (1894) 6 R 67 (HL) to put that party's case sufficiently to an opposing party in cross-examination so as to give to that opposing party the opportunity of dealing with the case for which the cross-examining party contends but there is no requirement when one is cross-examining as to credit for a person to know in advance the ammunition which is to be fired at him or her in cross-examination.
As Lord Handworth MR said in a passage earlier referred to in the judgement of Wakeley v The Queen:
"Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. "
If in fact as contended by Mr Walker his credit is irrelevant to any issue before the Tribunal, then the error by the Tribunal in reaching a contrary view may found a basis in which any final determination which the Tribunal reaches may be open to attack for legal error under the provisions of the Administrative Appeals Tribunal Act 1975. That, however, is a matter which may never arise.
From the transcript of the proceedings before the Tribunal on 5 September 1996, it seems to me that Mr Walker is suffering from a concern about matters that are not the central questions on his application to the Tribunal for a review of the decision by the Social Security Appeals Tribunal; if in fact those central complaints of his are to be directly addressed, much of what he sees as erroneous inquiries will be of at best marginal significance.
For the reasons which I have expressed I ought, consistent with provisions of O 20 r 2 of the Federal Court Rules, order that the proceedings be dismissed.
I have heard the submissions of the parties on costs.
The appeal, for the reasons that I have expressed, is dismissed with costs, to be taxed if not agreed.
I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.
Associate
Date: 21 November 1996
The applicant appeared in person.
Counsel for the respondent : Mr P E Hack
instructed by : Australian Government Solicitor
Date of Hearing : 21 November 1996
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