Case: Sullivan v Department of Transport (1978) 20 ALR 323
Outcome: considered
The applicant responds that in view of the fact that he was unrepresented, it was unfair of the Tribunal to ask him whether he was claiming aggravation. That issue was essentially a medico-legal issue and the applicant, who had neither medical nor legal training, may have been unaware of the legal implications of his answer. The applicant points to the fact that the claim of aggravation had been before the original decision-maker, and that under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal has the power to inform itself as it thinks appropriate. The applicant says that, if the Tribunal confined itself because of the applicant's answer to this question, the Tribunal failed to afford procedural fairness to the applicant, and relies upon Sullivan v Department of Transport (1978) 20 ALR 323 at 342-3 per Deane J. 39 The respondent rejects the submission that the Tribunal 'manoeuvred' the applicant into a disadvantageous position. The respondent says that the applicant at no time requested assistance or guidance, and does not make any complaint that he was prevented from presenting his claim in the manner in which he intended. The Tribunal was merely refraining from interfering in the applicant's case: see Sullivan at 342-3. The respondent says that it was not incumbent upon the Tribunal to frame the applicant's claim on his behalf, and to have done so would have contravened the impartiality and neutrality which are vital to fairness between the parties: see Rajski and Anor v Scitec Corporation Pty Ltd (unreported, Court of Appeal of New South Wales, 16 June 1986). 57 In these circumstances, and even having taken into account the fact that the applicant was unrepresented, I consider that the evidence was insufficient to raise this question as a real issue in the proceedings. In coming to this conclusion, I bear in mind the observations of Woodward J in Charvid , where his Honour said (at 129): 'Counsel relied ... on s 43 of the Administrative Appeals Tribunal Act 1975 , which requires the Tribunal to give reasons for its decision, which, if in writing, "shall include its findings on material questions of fact and a reference to the evidence ... on which those findings were based". Arising from this requirement, it is to be assumed that any matters not dealt with in the Tribunal's reasons must have been found to be not material to its decision: Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 353. There could, however, be two reasons for a matter raised in the hearing not being dealt with in the decision. It could be that the Tribunal took the view that, whatever the state of the evidence, the matter was not important or "material" to the issues which it had to determine; or it could be that, although the matter was potentially important, the evidence on it was so skimpy or uncertain that no useful conclusion could be drawn. The Tribunal need not attempt, in its reasons, to deal with every matter which has been covered by evidence before it, or even every matter dealt with in counsel's arguments. The requirement of s 43 is, in my view, that the Tribunal should deal with all the matters which it is bound by relevant legislation to consider, or which it has found persuasive, or which have been urged upon it and would have been persuasive had they been established by the evidence: Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126; 37 ALR 620 at 621.'