Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: cited
applicant contended that the AAT ought not to have made the findings it did about Dr Kennedy's evidence without giving notice to the applicant and his counsel that it intended to do so. In the recent judgment in the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (2006) 81 ALJR 515, the procedural fairness obligations of another tribunal under the Migration Act , in relation to the issues arising in hearings, have been stated succinctly. At [29]-[34], the High Court referred to the dichotomy suggested by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592, between a decision-maker's obligation to identify an issue not obviously open on the known material, and his or her lack of obligation to expose in advance aspects of the mental processes by which the decision-maker arrives at a decision. The High Court pointed out that the dichotomy does not necessarily encompass all possible kinds of cases that may fall for consideration, and focussing on it may distract from the fundamental principles that are engaged. The High Court emphasised the principle, referred to in Alphaone at 590-591, that the right to be heard ordinarily requires that the party affected be given the opportunity of ascertaining the relevant issues, and that this may involve more than simply knowing what is the ultimate decision to be made. At [47]-[49], the High Court pointed out that sometimes it is necessary for the decision-maker to indicate what he or she thinks the issues are, either by the questions he or she asks during a hearing, or more explicitly. What is not required is for the decision-maker to give a running commentary on what he or she thinks about the evidence that is given. The High Court did say that, even if the issues are properly identified, there may be cases that would yield to analysis in the terms identified in Alphaone . It appears from this reasoning that the distinction between an issue not obviously open on the known material, and an aspect of the decision-maker's mental processes is a valid distinction, but that care must be taken to avoid trying to force each case into one or other of those categories. In terms of the dichotomy raised by the Full Court in Alphaone , the issue on which the AAT's treatment of Dr Kennedy's opinion turned was one obviously open on the known material. It was an issue that emerged during the course of the evidence, with which the applicant and his counsel had to deal if they could. Instead of attempting to deal with the issue by seeking an adjournment, for the purpose of obtaining further evidence from Dr Kennedy, counsel for the applicant chose largely to ignore the issue of the applicant's offences in August 2004 in making her submissions. She certainly chose to ignore the inconsistencies between the applicant's evidence and that of Dr Kennedy. Undoubtedly, as the evidence stood, this was a legitimate forensic tactic, for the purpose of minimising the importance of the issue in the mind of the Deputy President. The tactic failed. It is not open to the applicant then to contend that the AAT denied him procedural fairness because it made a factual finding adverse to him. The finding was clearly open on the evidence as it stood. The factual issue of the value of Dr Kennedy's expressed opinion, in the light of the subsequent evidence about the applicant's treatment programs in prison and his August 2004 offences, could not be said to have been a matter of surprise to the applicant, with which he was unable to deal within the hearing. There was no denial of procedural fairness by the AAT in the way in which it dealt with Dr Kennedy's evidence. The applicant having failed to make out the errors of law that he sought to establish on the part of the AAT, the appeal must be dismissed. No reason was advanced, and none appears, why the usual order, that costs follow the event, should not be made. The applicant will therefore be ordered to pay the Minister's costs of the proceeding. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 3 August 2007 Counsel for the applicant:: G Costello Solicitor for the applicant: O'Sullivan &amp; Ruffilli Counsel for the respondent: R Knowles Solicitor for the respondent: Australian Government Solicitor Date of hearing: 9 February 2006 Date of judgment: 3 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1142.html