Case: Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206
Outcome: cited
The submissions of the applicant may be summarised as follows: &#8226; There is a common law duty to observe procedural fairness where the exercise of power is liable to affect a person's rights, status, interests or legitimate expectations ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584). The applicant in this case was not afforded procedural fairness in relation to the question of whether the Tribunal had jurisdiction to hear the complaint. This is a question of law and may be appealed to this Court pursuant to s 46 of the Act . &#8226; The applicant must be given an opportunity to address issues that are troubling the Tribunal ( Cole v Cunningham (1983) 49 ALR 123 at 128). At the time of its hearing the Tribunal failed to inform the applicant that the question of jurisdiction was a live issue. In fact, the Tribunal had conceded in correspondence that it did have jurisdiction as follows: o In a letter from the Tribunal to the applicant on 16 November 2006, the Tribunal raised the question of jurisdiction with the applicant. It was submitted by the applicant that this reference to jurisdiction was clearly referring to s 14(6B) of the Act . Paragraph 3 of the letter stated: The Act imposes certain time limits on dealing with disability complaints so it is very important that you provide these workers compensation details so that the Tribunal can determine whether or not your complaint is within its jurisdiction. o In his letter to the Tribunal of 24 November 2006 the applicant stated he had tried to claim the benefit from the time his employment was terminated, but was informed by the former fund to wait until after the court case. o In its letter to the applicant of 15 February 2007 the Tribunal stated at para 2: I wish to confirm that the Tribunal has established its jurisdiction to deal with your complaint and has now sought additional information from the Fund to assist with our inquiry into your complaint. o No issues of jurisdiction of the Tribunal, whether as a result of expiration of time or otherwise, were raised by the Tribunal at the hearing, and the applicant was not invited to make submissions relating to jurisdiction at the Tribunal hearing. o Following the Tribunal's letter dated 15 February 2007, jurisdiction was not raised by the Tribunal until publication of the Tribunal's determination and reasons on 7 December 2007. &#8226; The applicant submitted that for the Tribunal to have acted fairly in the circumstances in this case, the Tribunal would have been required, at the least, to have notified the applicant that jurisdiction was a live issue and afforded the applicant the opportunity to make submissions on the jurisdiction question. &#8226; Finally, the applicant acknowledged that whether relief was granted to the applicant was at the discretion of the Court, and if the return of a matter to the Tribunal would be futile or where the error relied upon by the Tribunal could not have made a difference to the outcome of the case, the court should refuse to grant relief ( Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206). In this case however the applicant submitted that the Court should exercise its discretion in favour of the applicant because: o the Tribunal did not make findings of fact beyond those set out at [8] of the determination and reasons (which were only background facts); o there is a significant amount of medical evidence that has not been considered by the Trustee or the Tribunal. This could add weight to the applicant's case before the Tribunal, making it "possible" the end result might not be the same at a further hearing ( Santa Sabina College v Minister for Education (1985) 58 ALR 527 at 540). 24 Mr Scott-McKenzie conceded that the Court has a discretion to refuse to grant relief where the end result of granting the relief would be the same as the original decision of the Tribunal. In this case however I do not consider it to be a foregone conclusion that the Tribunal would be bound in law to make the same decision as that appealed from to this Court ( Nguyen v Minister for Immigration Affairs (1998) 88 FCR 206 at 213-214). At a reconstituted Tribunal hearing the applicant would have an opportunity to make submissions to the Tribunal in relation to the timing of the filing of his claim with the Trustee. Further, I accept the submission of Mr Scott-McKenzie that there is additional medical evidence available to the Tribunal which, if accepted, could result in a decision favourable to the applicant. Of course whether the second respondent made a decision that was fair and reasonable within the meaning of the Act is a question for the Tribunal to decide upon the factual evidence before it, not a decision for this Court. However in my view the applicant's case before the Tribunal is not so hopeless that remitting this matter to the Tribunal could not possibly result in a different outcome. 25 I have found that the Tribunal has failed in its obligation of procedural fairness to the applicant by not allowing him a reasonable opportunity to make submissions as to the Tribunal's jurisdiction. Denial of procedural fairness is a question of law pursuant to s 46 of the Act . Accordingly I find that the ground of appeal raised by the applicant is substantiated, and the application should be granted. 26 The second respondent submitted to any orders of the Court, other than with respect to costs. In this case, however, it is clear that the respondents have been properly served throughout these proceedings, and were aware of the hearing before me. As a general proposition, costs follow the event, and no reasons have been put to me to diverge from the general approach to costs in the circumstances of this case. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 14 October 2008 Counsel for the Applicant: Mr HA Scott-Mackenzie RFD (Pro Bono) Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second Respondent: The Second Respondent did not appear Date of Hearing: 26 September 2008 Date of Judgment: 15 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1528.html