Case: State Electricity Commission v Commissioner for Equal Opportunity [1992] 1 VR 79
Outcome: cited
2(c) in the notice of appeal asks whether the Panel had complied with the obligation imposed upon it by s 160(1)(b) of the Act. Section 160(1)(b) requires the Panel to prepare a written statement setting out the reasons for its decisions. Mr Kennedy complains that first, the Panel made a bald finding on his claim for serious misfortune; second that it did not provide reasons for preferring AFMA's construction of s 27 to that advanced by him; and third that the Panel did not provide reasons as to how it reached its conclusion that he suffered serious misfortune only during the February - November 1998 and July 1999 - April 2000 periods. Mr Kennedy submits that a party is entitled to know why he won or lost. A reading of the Panel's reasons would, it was submitted, leave the fair-minded reader none the wiser as to why he was only partially successful. He relied on the decision of Gobbo J in State Electricity Commission v Commissioner for Equal Opportunity [1992] 1 VR 79 in which his Honour held (at 88) that reasons for decision which fail to disclose the process of reasoning of the decision maker are "defective and show error of law on the face of the record". There can, in my view, be no doubt that the Panel has failed to comply with the requirements of s 160(1)(b) that it "prepare a written statement ... setting out the reasons for [its] decision". Were it not for another statutory provision, to which I will shortly refer, it might readily be argued that the Panel has complied with this obligation. It has produced a document of some 20 pages which contains 86 paragraphs which it has published as its reasons for its decision on Mr Kennedy's appeal. The question remains, however, whether the published reasons are sufficiently detailed to meet the obligation imposed by s 160(1)(b). Section 25D of the Acts Interpretation Act 1901 (Cth) provides that, where another Act requires that a Tribunal give written reasons for its decisions "the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based". As already noted there is authority to support an affirmative answer to this question. It is to be found in the Victorian Supreme Court's decision in the State Electricity Commission case. Authority is also to be found in decisions of this Court. In Dornan v Riordan (1990) 24 FCR 564 , a Full Court held that a failure to give adequate reasons constitutes an error of law justifying the setting aside of an administrative decision. See also Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 ; Preston v Secretary, Department of Family and Community Services (2004) 39 AAR 177 at 184; Hill v Repatriation Commission [2004] FCA 832 ; (2004) 207 ALR 470 at 474; and, most recently, Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137. These were cases in which the tribunal concerned had produced cryptic and uninformative reasons such that the reviewing court could not discern why it was that the tribunal had reached the impugned decision. In particular it was not possible to determine whether the correct legal principles had been applied. In Dornan , the Full Court drew on authorities such as Pettitt v Dunkley [1971] 1 NSWLR 376 in which appellate courts had found that trial judges erred in law if they failed to provide reasons or sufficient reasons thereby depriving the appeal court of the capacity to determine whether a verdict had been reached in accordance with law. No order was sought by Mr Kennedy, in the course of the present appeal, requiring the Panel to provide reasons which satisfied its statutory obligations. This decision was, no doubt, influenced, in part at least, by the fact that one of the two members of the Panel who made the decision (Mr Baston) is no longer a Panel member. Had a mandatory order been made, the Panel probably could not have complied with it because the reasons given must be those of the decision-makers and not their successors: cf State Electricity Commission at 86. The questions of law posed above at [33] should each be answered: Yes. The appeal must be dismissed. The applicant should pay the first respondent's costs of the application. I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 21 December 2009 Counsel for the Applicant: Mr N J D Green QC (on 28 and 29 May 2009), Mr T D Best and Mr R J L McCormack (on 14 and 15 April 2009) Solicitor for the Applicant: Middletons Counsel for the First Respondent: Ms D Mortimer SC and Mr R Niall Solicitor for the First Respondent: Deacons Date of Hearing: 14 April, 15 April, 28 May and 29 May 2009 Date of Judgment: 21 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1485.html