Re Geoffrey Oldfield v Secretary To the Department of Primary Industry [1988] FCA 99 (14 April 1988)

FEDERAL COURT OF AUSTRALIA

Re: GEOFFREY OLDFIELD
And: SECRETARY TO THE DEPARTMENT OF PRIMARY INDUSTRY
No. WAG 72 of 1987
Administrative Appeals Tribunal

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Forster(1) and Lee(1) JJ.

CATCHWORDS

Administrative Appeals Tribunal - appeal - failure of Tribunal to make recording or notes of counsel's submissions - whether "error of law" - Administrative Appeals Tribunal Act 1975 - s.33.

Administrative Appeals Tribunal Act ss.33, 44

Ex parte Wood (1889) 6 WN (NSW) 78

Ex parte Reid (1943) 43 SR NSW 207

Klopper v Hogg (1961) WAR 92

Caratti v Commissioner of Police (1974) WAR 73

HEARING

PERTH
14:4:1988

Counsel for the Applicant: Mr. D.R. Clyne

Solicitors for the Applicant: Frank, Unmack & Cullen

Counsel for the Respondent: Mr. C.J.L. Pullin

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The applicant's appeal be dismissed.

The applicant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an appeal from the Administrative Appeals Tribunal ("the Tribunal") constituted by a Deputy President against the Tribunal's refusal to grant an extension of time for lodging an application to that Tribunal for the review of a decision.

2. The applicant was and is a professional fisherman engaged in the bluefin tuna fishery. Persons so engaged are allotted a quota of fish which they may catch in a particular season. One element in the calculation of the quota is the "best catch" in a single season. The applicant had allotted him a quota of 23.782 tonnes of southern bluefin tuna. He applied to the Department of Primary Industry to review the quota allotted to him on bases which it is unnecessary to examine for present purposes. This application was refused by one Core a delegate for the purpose of the Minister of Primary Industry. This refusal was conveyed to the applicant by a letter dated 11 March 1985 from Core which contained the paragraph "If you are not satisfied with this decision you may, subject to the provisions of the Administrative Appeals Tribunal Act 1975, make application to the Aministrative Appeals Tribunal in the capital city of your State, for a review of that decision. Applications should be lodged in writing within 28 days of receipt of this letter".

3. By application dated 9 March 1987 the applicant applied to the Tribunal for an extension of time for lodging an application for review of the decision of which he complains. The ground stated in this application was, "The applicant was not informed of his right to appeal from the decision and has only recently become aware that he had such a right". In view of the explicit paragraph in Core's letter quoted above this reason lacks force as was conceded before the Tribunal and before us by counsel for the applicant. It was submitted to the Tribunal that the applicant misunderstood the extent of his right to have the decision reviewed by the Tribunal and also that he was not in a financial position to engage a legal practitioner and pursue his case.

4. Before going to the grounds of the appeal before us it is necessary to mention that one of the difficulties about this case is that there is no transcript of the proceedings before the Tribunal, nor have we had the benefit of any notes which may have been made by the learned Deputy President. The lack of a transcript is the basis of one of the grounds of appeal and is of direct importance to the two other grounds.

5. Pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 ("the Act") the appeal to this Court from the Tribunal may be only on a matter of law. The objective correctness or otherwise of the decision is not a matter for us to consider.

6. The notice of appeal, as amended, recites three questions of law said to be raised on the appeal. Two were deleted at the outset of the hearing before us and the remaining question, question 2(ii) was, "Did the Tribunal err in law in that it based its decision on evidence and submissions which were not put before the Tribunal?"

7. The grounds pleaded in the notice of appeal less two which were abandoned at the outset of the hearing are as follows :

"(b) The Tribunal erroneously said in its decision
that it was argued on behalf of the Respondent
that Australia's treaty obligations with Japan
and New Zealand would be prejudiced if the
Applicant was granted an extension. No such
submissions were put to the Tribunal by the
Respondent.

(c) The Tribunal erroneously said in its decision
that it was argued on behalf of the Respondent
that if the Applicant was successful then the
Southern Blue Fin Tuna Quota presently
allocated may need to be redistributed with
the consequence that the tonnage allocation of
present quota would have to be reduced. No
such submission was put to the Tribunal by the
Respondent.

(e) The learned Deputy President erred in law in
failing to ensure that a transcript of
evidence or notes of evidence were kept or
available for the purposes of an appeal."

8. At the commencement of the hearing two affidavits were tendered and by consent admitted into evidence. One was that of Graeme Adrian Payne sworn on 29 February 1988. He is a legal practitioner who appeared before the Tribunal for the applicant by leave as he was not then a legal practitioner. The second affidavit is that of Heather Margaret Riley sworn 2 March 1988. Miss Riley is a legal practitioner who appeared before the Tribunal for the respondent. Both deponents give their account of what they say took place before the Tribunal.

9. Mr. Payne's affidavit contains paragraph 25 which is as follows :

"To the best of my knowledge and belief and
according to notes that I made at the end of the
hearing of the Application, Miss Riley at no time
argued that Australia's treaty obligations with
Japan and New Zealand would be prejudiced if the
Applicant was granted an extension, nor did she
argue that if the Applicant was successful then
the Southern Blue Fin Tuna Quota presently
allocated may need to be redistributed with the
consequence that the tonnage allocation of present
quota would have to be reduced."

10. It is argued that if it be so that it was neither argued before the Tribunal that treaty obligations could be prejudiced if the applicant were granted an extension of time and then obtained a further quota, nor that the bluefin tuna quota presently allocated would need to be reduced and if those arguments were taken into account by the learned Deputy President then a denial of natural justice occurred because the applicant had no opportunity of answering the arguments. As to the last point the learned Deputy President commences the last paragraph of his reasons with the words, "It is the opinion of the Tribunal, having weighed all these matters ...". Counsel for the applicant argued that this indicates that the learned Deputy President has accepted the arguments. We do not agree with this but if the arguments were not put it is probably enough if he merely considered them.

11. As against Mr. Payne's affidavit Miss Riley swears in her affidavit as follows :

"3. I believe that I did put to the Tribunal the
submissions referred to in grounds (b) and (c) of
the Amended Notice of Appeal, although I have only
a vague recollection of actually doing so."

12. In addition to this vague recollection Miss Riley also deposes that both the matter of the international agreement and the effect on other quota holders were mentioned in facsimile messages sent by the respondent to her instructing solicitors which messages formed part of her instructions. Copies of these messages are exhibited to Miss Riley's affidavit from which incidently it becomes apparent that there was no treaty between Australia, Japan and New Zealand but an "arrangement". We do not think the difference between "treaty" and "arrangement" is significant for present purposes. Also exhibited to Miss Riley's affidavit is a photocopy of her notes for her submission to the Tribunal which contains the following in her handwriting, "If these and other applications succeed tonnage value of unit may have to be reduced defeating the reasonable expectations of other". The topic of the treaty or arrangement was not included in Miss Riley's notes. She swears in her affidavit that her notes were prepared hurriedly and that she did not have time to write down everything that she intended to argue.

13. It must not be overlooked that the learned Deputy president in his apparently carefully considered reasons says that both of these questions were argued. Counsel for the applicant speculated that perhaps the learned Deputy President had these grounds put to him in another tuna quota matter concerning a man named Kent which he heard on the same day. Kent's matter, however, was heard after the applicant's matter and was heard by way of a telephone hook-up. The Tribunal's decision to refuse an extension of time to Kent was handed down immediately after the close of argument. There is some confusion about dates but it appears that the Tribunal's reasons for decision in the current matter were handed down some nine days after the hearing.

14. If we are to conclude that there has been a denial of natural justice because of the apparent consideration by the Tribunal of two arguments which it is said by the applicant, he had no opportunity to answer, it will be necessary for the applicant to discharge the onus upon him of satisfying us that the arguments were not put to the Tribunal. In view of the learned Deputy President's specific mention in his reasons that they were put and in view of Miss Riley's instructions, her notes and her affidavit, we are unable to be satisfied that the arguments were not put notwithstanding Mr. Payne's affidavit. There is therefore no basis for grounds (b) and (c) which must be dismissed.

15. There remains ground (e) that "The learned Deputy president erred in law in failing to ensure that a transcript of evidence or notes of evidence were kept or available for the purposes of an appeal". The short answer to this ground is that no sworn oral evidence was adduced on either the applicant's behalf or the respondent's behalf as deposed to by Miss Riley. The only evidence properly so called consisted of documents although it is certain that counsel on both sides made assertions to the Tribunal which were treated by the Tribunal in the same way as evidence is normally treated. Without objection from the respondent or the Court the argument was however put that the learned Deputy President should have ensured that a transcript was made or that "proper" or "accurate" notes were kept by the Tribunal of what was said before it by counsel on both sides. Failure to see that a recording was made for transcription or proper notes taken is said to have been an error of law on the footing that where a statute under which a Tribunal is established makes provision for an appeal a record of proceedings before the Tribunal should be kept. We should point out that in Supreme Courts and in this Court, although the obligation to take a recording of sworn evidence for transcription could hardly now be doubted, it has never been suggested that there is an equal obligation to make a recording of counsel's addresses.

16. No doubt it is desirable that all Tribunals from which an appeal may lie should keep a record of what takes place before them. Whether or not there is a legal obligation to do so is another question.

17. The first thing to note is that the Act does not require that the Tribunal however constituted should keep a record of any sort of the proceedings before it.

18. Section 148 of the Justices Act 1902 of Western Australia gives parties interested in a conviction or order made by Justices the right to have a copy of the depositions amongst other things. This plainly imports a duty to keep at least notes of the depositions of witnesses. No such duty express or implied is placed upon the Tribunal by any provision of the Act under which it is established.

19. Section 33 of the Act is in part as follows :

"33. (1) In a proceeding before the Tribunal -

(a) the procedure of the Tribunal is, subject
to this Act and the regulations and to
any other enactment, within the
discretion of the Tribunal; and

(b) the proceeding shall be conducted with as
little formality and technicality, and
with as much expedition, as the
requirements of the Act and of every
other relevant enactment and a proper
consideration of the matters before the
Tribunal permit; and

(c) the Tribunal is not bound by the rules of
evidence but may inform itself on any
matter in such manner as it thinks
appropriate."

20. The cases cited by counsel for the applicant; Ex parte Wood (1889) 6 WN (NSW) 78; Ex parte Reid (1943) 43 SR N.S.W. 207; Klopper v. Hogg (1961) WAR 92 and Caratti v. commissioner of Police (1974) WAR 73 all concern the obligations of magistrates' courts to keep some record of what takes place before them. Such courts are bound by the statutes which create them and at common law to observe certain formalities and technicalities. The procedure of the Tribunal on the other hand is, subject to the Act and the regulations and any other enactment, within the discretion of the Tribunal. Neither the Act nor any regulation or other enactment provides for the keeping of a record by the Tribunal. In addition the Tribunal's proceedings shall be conducted "with as little formality and technicality, and with as much expedition as the requirements ... permit".

21. This provision as to informality no doubt permits a hearing to be conducted on a telephone hook-up as was the matter of Kent.

22. No doubt it might be convenient to have a full record of all that occurred before the Tribunal but we are unable to discern in the authorities any positive legal obligation to do so. The failure to do so whether considered as a breach of natural justice or otherwise provides no ground of appeal.

23. In our opinion the appeal should be dismissed with costs.