Case: Peko-Wallsend Ltd [1986] HCA 40 ; (1996) 162 CLR 24
Outcome: applied
The errors of law alleged are that the AAT took into account irrelevant considerations and that there was no evidence upon which it could reach the conclusion that it did. Mason J in Peko-Wallsend Ltd [1986] HCA 40 ; (1996) 162 CLR 24 at 40 (' Peko ') explained the concept of relevant and irrelevant considerations as it applies to statutory decision-makers as follows: 'In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken in to account in the exercise of that discretion are similarly unconfined, except in so far as there may be some implied limitation on the factors to which the decision-maker may legitimately have regard. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.' (citations omitted) 10 Contrary to the appellant's contention, there was evidence 'to support the Tribunal's decision that the income derived by the applicant between 4 September 2000 and 3 September 2001 was in the sum of $58,500.00' being the statement of income to that effect made by the appellant on a credit card application dated 5 March 2000. 11 On this point, the AAT said, inter alia: 'Given the lack of information and evidence available to the Tribunal in seeking to calculate the likely income of Mr Trkulja in the period 4 September 2000 to 3 September 2001, it is virtually impossible to do so. Given the history of Mr Trkulja in failing to provide information, failing to maintain financial records, his evasiveness, and, at times, contradictions when under examination and speaking in generalities rather than specifics at the hearing, his evidence cannot be accepted. I am satisfied that his income in the relevant period was in excess of that claimed by him to be income in his statement filed with the trustee and the respondent. On the other hand, I am satisfied that the trustee's assessment, on the basis on which it was calculated, was excessive. I am inclined to agree with the respondent that, if anything, the respondent's assessment was likely to have been low. Nevertheless, the respondent's assessment was based on a signed application for credit by Mr Trkulja, albeit at a time prior to his bankruptcy and the commencement of the contribution assessment period. I acknowledge that, pursuant to s 139X of the Act, the trustee may disregard information provided by the bankrupt and make an assessment on the basis of what the trustee consider to be the correct information where he considers the information provided by the bankrupt is or may be incorrect. However, I do not believe that this empowers the trustee to simply add up the total expenditure of the bankrupt during the period and assume that it represented income. Given the circumstances of this case, I am of the view that the respondent's assessment should be affirmed on the basis that there was little or no change in Mr Trkulja's circumstances between March and May 2000 and September 2001. Consequently, the decision in relation to the income contribution assessment should be affirmed.' 12 It was open to the AAT to determine that there was no relevant change to the appellant's circumstances between the date of the application and the relevant period in so far as those circumstances concerned his income. The weight accorded to the evidence before the AAT was a matter for the AAT. 13 Similarly, the stated income of the appellant on a credit card application could not be said to be an irrelevant consideration as described in Peko ; rather, it would seem to be directly relevant to the very question before the AAT. In reality, the appellant is seeking to re-litigate facts determined by the AAT. It follows that the appellant fails on this ground of appeal. 14 The appellant's second ground of appeal concerns the notice of objection filed by the trustee pursuant to s 149D(1)(d) of the Act, which was upheld by the second respondent and the AAT. Section 149D(1) of the Act relevantly provides: 'The grounds of objection that may be set out in a notice of objection are as follows: ... (d) the bankrupt, when requested in writing by the trustee to provide written information about the bankrupt's property, income or expected income, failed to comply with the request; ...' 15 The appellant alleges that in making its finding on this point, the AAT relied upon hearsay evidence. In affirming the second respondent's decision on this ground of objection, the AAT set out a number of paragraphs from the second respondent's statement of facts and contentions filed in the AAT proceeding. However, prior to setting out these paragraphs, the AAT said: 'The background facts leading to the ground of objection pursuant to s 149(D)(1)(d) of the Act were conveniently summarised in the respondent's statement of facts and contentions. The supporting documentation was provided to the Tribunal.'