Case: Sullivan v Department of Transport (1978) 20 ALR 323
Outcome: considered
I was referred to what was said by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 342, namely: " Section 39 of the Administrative Appeals Tribunal Act provides, for present purposes, that 'the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case'. In dealing with an application for review, the Tribunal is plainly under a duty to act judicially, that is to say, with judicial fairness and detachment. In these circumstances, the requirement contained in s 39 that the Tribunal shall ensure that a party to the proceedings before it be given a reasonable opportunity to present his case constitutes statutory recognition of an obligation which the law would, in any event, imply. Where a Tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe (see R v Moodie (1977) 17 ALR 219 at 225)." 25 A little later (at 343) his Honour said: "A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. ... The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment." 26 When pressed as to what the Deputy President should have done in the circumstances but did not do, counsel for the applicant submitted: (1) "First and foremost he should have canvassed the possibility of having the matter heard by another member of the Tribunal." As I have indicated at [20(6)] above, presumably the Deputy President did not undertake any such canvassing because he was aware that no hearing rooms were available on any day up until 20 December 2006. (2) "[H]e should have canvassed the dates, between 1 December of that year ..." and 7 December as to whether the matter could be heard by himself or another member of the Tribunal. As I have indicated in [20(4)] above, my reading of the relevant excerpt from the transcript indicates that the Deputy President did not have any days available from that moment until 20 December 2006, other than the next day (28 November 2006) and possibly 8 December 2006. That last-mentioned date was not a choice because of lack of availability of a hearing room, and the possibility of the matter being heard by another member of the Tribunal in the 1 to 7 December 2006 period was out for the same reasons. 27 Finally, the applicant submitted that the subsequent conduct of the hearing, together with the Deputy President's initial instinct to accede to the request to adjourn the matter, only serves to emphasize the merits of the adjournment application the reason the Deputy President chose not to do so being apparently based entirely on pragmatic considerations regarding room availability. 28 While it is clear that a refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case see Deane J in Sullivan at 343 whether it does or not depends on what underlies the request for an adjournment. For example, and this is close to the example cited by Deane J in Sullivan , if a party makes application for an adjournment to enable him to procure a particular person as a witness, refusal of that application may well constitute such a failure. The refusal of an application for an adjournment predicated on a lack of legal representation and a need for time to secure such representation, as in the present case, may also constitute such a failure, but then again it may not. It will depend on the facts and circumstances of the case, in particular how the lack of legal representation impacted (adversely) on the ability of the applicant to present his/her case.