Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299 (31 March 2011)

Last Updated: 31 March 2011

FEDERAL COURT OF AUSTRALIA

Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299

Citation:		Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299
Appeal from:		Andelman and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (Administrative Appeals Tribunal, No. 2009/4180, 29 October 2010)
Parties:		MIKHAIL ANDELMAN v SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
File number(s):		NSD 1580 of 2010
Judge:		JAGOT J
Date of judgment:		31 March 2011
Catchwords:		ADMINISTRATIVE LAW – unrepresented litigant – procedural fairness – whether application made for reconstitution of Administrative Appeals Tribunal under s 21A of Administrative Appeal Tribunal Act 1975 – whether unrepresented applicant had failed to proceed with application as contemplated by s 42A(5) – whether power to dismiss application under s 42A(5) available where application for recusal of sitting Tribunal member had been made and not determined – whether exercise of discretion to dismiss application resulted in denial of natural justice – extent of Tribunal’s obligation to explain procedures
Legislation:		Administrative Appeals Tribunal Act 1975 (Cth) Federal Court Rules O 80
Cases cited:		Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 Kowalski and Repatriation Commission [2009] AATA 807 Mellor and Australian Postal Corporation [2010] AATA 288 Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438
Date of hearing:	22 March 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	41
Counsel for the Appellant:	Mr A M Pickles
Solicitor for the Respondent:	Mr A Markus of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1580 of 2010

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	MIKHAIL ANDELMAN Appellant
AND:	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	31 MARCH 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal as agreed or taxed.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1580 of 2010

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	MIKHAIL ANDELMAN Appellant
AND:	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent

JUDGE:	JAGOT J
DATE:	31 MARCH 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BACKGROUND

The appeal

1. These reasons for judgment concern an appeal against the order of the Administrative Appeals Tribunal (the Tribunal) dismissing the appellant’s application for review of a decision, made by Centrelink and affirmed by the Social Security Appeals Tribunal, to require the appellant to repay certain amounts on account of overpayments of his old age pension.
2. Under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), a party to a proceeding before the Tribunal may appeal to this Court on a question of law only.

The initial hearing of the appeal

3. When the matter first came before me for hearing on 31 January 2011 the appellant, Mikhail Andelman, was unrepresented. He was assisted by an interpreter in the Russian language. Unsurprisingly, given his status as a layperson and the fact that English is not his native language, it was not apparent that Mr Andelman understood that this Court’s jurisdiction was limited to deciding questions of law and did not enable a review of the merits of the decision requiring him to repay part of his old age pension. However, the submissions for the respondent, the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary), helpfully identified the relevant statutory provisions and potential legal considerations while maintaining (as appropriate in the circumstances) that Mr Andelman’s notice of appeal did not raise any question of law as required to enliven this Court’s jurisdiction. The Secretary’s submissions referred to a letter written by Mr Andelman to the Tribunal on 8 October 2010 requesting that the Tribunal be reconstituted so that his matter could be heard by another member of the Tribunal. The Secretary’s submissions said that:

The making of such an application, and the procedures for dealing with it, are provided for in s 21A of the AAT Act.

4. The Secretary submitted, however, that Mr Andelman had abandoned his proceeding (in circumstances explained further below) and thus had also abandoned his application under s 21A of the AAT Act. It followed, according to the Secretary’s submissions, that the Tribunal was empowered to make the order it did on 29 October 2010, which was in these terms:

As the Applicant has failed to proceed with this matter, pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975, the application for review is DISMISSED.

5. Section 21A of the AAT is as follows:

(1AA) This section does not apply in relation to proceedings in the Security Appeals Division.

(1) At any time during the hearing of a proceeding before the Tribunal (other than a proceeding in which the Tribunal is constituted by a presidential member who is a Judge and 2 other members), a party to the proceeding may apply to the Tribunal as constituted for the purposes of the proceeding requesting that the Tribunal be reconstituted for the purposes of the proceeding.

(2) Upon the making of an application under subsection (1), the Tribunal as constituted for the purposes of the proceeding shall, after receiving the submissions made in support of the application and any submissions made in opposition to the application, notify the President of the making of the application and give him or her particulars of those submissions.

(3) The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction that the Tribunal as constituted for the purposes of the proceeding be reconstituted by:
(a) adding one or more members; or
(b) removing one or more members; or
(c) substituting one or more other members;
(or any combination of these).

(4) Where a direction is so given, the Tribunal as reconstituted in accordance with the direction shall continue the proceeding and may either:
(a) complete the proceeding; or
(b) at any time remit the proceeding to the Tribunal as previously constituted for completion by the Tribunal as previously constituted.

6. Section 42A(5) of the AAT Act is in these terms:

(5) If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.

The amended notice of appeal

7. As a consequence of the Secretary’s submissions (which characterised Mr Andelman’s letter of 8 October 2010 as the making of an application under s 21A of the AAT Act), I decided that further assistance was required from both parties on the relationship between ss 21A and 42A(5) in order to ascertain whether there was any question of law arising from the circumstances in which the Tribunal dismissed Mr Andelman’s application for review. I therefore adjourned the hearing of the appeal on 31 January 2011 and, under O 80 of the Federal Court Rules, referred Mr Andelman to the Registrar for referral to a lawyer on the pro bono panel for legal assistance in relation to the appeal. Mr Pickles of counsel accepted the referral under O 80. Thereafter, I made directions permitting the filing and service of an amended notice of appeal and further written submissions from both parties. The amended notice of appeal, filed on 1 March 2011, raised the following questions of law:
   1. Whether the Tribunal had power to dismiss the appellant’s application for review pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (AAT Act) whilst the appellant’s request for reconstitution of the Tribunal remained undetermined.
   2. Whether the Tribunal had power under s 42A(5) to dismiss the application at all in the circumstances.
   3. Whether the Tribunal failed to afford the appellant procedural fairness by dismissing his application for review without first hearing submissions and determining the application for reconstitution of the Tribunal.
      

The reconvened hearing of the appeal

8. At the reconvened hearing on 22 March 2011, Mr Pickles appeared on behalf of Mr Andelman and Mr Markus on behalf of the Secretary. I wish to acknowledge their valuable assistance in clarifying the issues to which this appeal gives rise. In order to understand those issues it is necessary to record in more detail the events leading up to and the circumstances of the hearing before the Tribunal on 29 October 2010.

The hearing before the Tribunal

9. On 8 October 2010 Mr Andelman wrote to the Tribunal. Before writing that letter, Mr Andelman had been informed by the Tribunal of the Senior Member of the Tribunal to whom his case had been allocated for hearing. Mr Andelman’s letter identified the Senior Member by name, and referred to another case of Mr Andelman’s which had been heard by that Senior Member in 2006. According to Mr Andelman, the earlier decision of the Senior Member was wrong. Mr Andelman expressed a concern about the Senior Member’s alleged lack of knowledge. He also said that when he saw the Senior Member he felt uncomfortable. The letter concluded with a request that another member of the Tribunal hear his case.
10. At the hearing on 29 October 2010, the same Senior Member presided. Mr Andelman appeared assisted by an interpreter. Ms Harlock appeared for the Secretary. A transcript of the hearing is available. After the interpreter was sworn in the transcript records that:

THIS TRANSCRIPT IS ONLY OF PROCEEDINGS IN THE ENGLISH LANGUAGE

11. The hearing proceeded as follows:

MR ALLEN: Now, Ms Harlock, you’re appearing for the respondent.
MS R. HARLOCK: Yes, I am, Senior Member.
MR ALLEN: Very well. Mr Andelman.
MR M. ANDELMAN: Yes. I don’t like this hearing.
MR ALLEN: Yes.
MR ANDELMAN: Because I don’t like your decision.
MR ALEN: Yes.
MR ANDELMAN: Because I was last time and you abused me very hard. You make me very big problem. And when I take it your decision to Bondi Junction – your own decision the customer officer take the decision like this one, put it in the rubbish. They said “you silly – this man is a silly man. He don’t complete the kind of knowledge in Centrelink law.” And he fixes my pension and rent assistance.
MR ALLEN: Very well. And who is this Centrelink officer?
MR ANDELMAN: The centre – Borsat Selden.
MR ALLEN: What?
MR ANDELMAN: You want his name?
MR ALLEN: Yes.
MR ANDELMAN: Borsat Selden.
MR ALLEN: Selden?
MR ANDELMAN: Yes. That’s it. This what I do want today you make a decision, because I know you not have knowledge in Centrelink law, I think that I have to take knowledge twice more for you. This what I don’t want you at this hearing.
MR ALLEN: Well, I know you have written to the tribunal, Mr Andelman.
MR ALLEN: Yes.
MR ALLEN: And a copy of that letter we’ll mark as exhibit A1.
EXHIBIT #A1 COPY OF LETTER FROM MIKHAIL ABDELMAN TO THE TRIBUNAL
MR ALLEN: Ms Harlock, have you seen the letter?
MS HARLOCK: No, I haven’t.
MR ALLEN: I’ll pass it down to you.
MR ANDELMAN: No, I was here 8 October.
MR ALLEN: Yes.
MR ANDELMAN: I made this application for witness for Carmel Wright.
MR ALLEN: Yes.
MR ANDELMAN: With Ms Isenberg, and I asked a very simple question: Ms Isenberg, you want the court ..... She don’t answer because here nobody want to talk. Here, everybody want own your life. Nobody want listen at all. This case anyway cannot exist because I like Carmel Wright will be here. If she not here I want you answer me all these question about social security law.
MR ALLEN: Mr Andelman, the possibility does exist that I should disqualify myself from hearing this matter if you - - -
MR ANDELMAN: No, no, sorry. I feel very sick when I see you. And I am terrible sick and I cannot see your face and I cannot talk with you. This when I start now jumping and I feel very bad and I am sorry, I cannot participate in this case. I’m sorry. I must leave, because if I stay another 10 minutes ambulance must pick me up. I’m sorry.
MR ALLEN: Mr. Andelman.
MR ANDELMAN: Yes.
MR ALLEN: So far - - -
MR ANDELMAN: You can make a decision without me. I know you’d make a decision your application is successful. I know 100 per cent. I know you acknowledge. In this case I don’t want you make a decision.
MR ALLEN: Well - - -
MR ANDELMAN: I – under human rights, I have choice.
MR ALLEN: Mr Andelman.
MR ANDELMAN: Yes.
MR ALLEN: I must be very – I must caution you. If you abandon this hearing now - - -
MR ANDELMAN: Yes. I not abandon. I like this hearing, but I don’t like you.
MR ALLEN: Well, that is not a good enough reason to - - -
MR ANDELMAN: But I make this reason – I tell the reason is because you abused me last time. You don’t listen last time to me, what I want to say. You put me in witness box like a slave. You don’t let me tell one word. You can reach a short-term solution like last case. When I have a witness and I want ask the witness question, you only just told me, “I will make a decision and I don’t care what your witness will have said.” You breached the law. I have a right to have my witness and my witness must be given evidence. Sorry. You can make a decision without me.
MR ALLEN: Well, Mr Andelman, I must - - -
MR ANDELMAN: Yes. I am sorry. I cannot see you face and I don’t care what you make a decision.
MR ALLEN: Very well.
MR ANDELMAN: You make a decision without me. I was here on 8 October and I still not have decision what Ms Isenberg make it, why she refuse Carmel Wright to come to this case. Sorry.
MR ALLEN: Ms Harlock, the matter, I think, is now dismissed. The applicant has withdrawn from the hearing.
MS HARLOCK: He certainly has withdrawn from the hearing, yes.

12. After some further discussion with Ms Harlock the Senior Member said:

... [Mr Andelman] has certain problems with me hearing the matter. But at this stage, I do not regard him as having made out a case that I am biased. He certainly didn’t like the last decision I made, but that’s - - -

13. Thereafter the Senior Member said:

Right. Well, as I said, the applicant has withdrawn from the hearing, so the decision under review is taken to be affirmed.

14. The Senior Member did not provide reasons for the decision. Subsequently the Tribunal issued an order dismissing the application for review in the terms set out above.

THE STATUTORY SCHEME IN MORE DETAIL

15. Section 2A of the AAT Act specifies that:

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

16. Part III of the AAT Act regulates the organisation of the Tribunal including, in Div 3, its constitution and reconstitution. Division 3 contains s 20B, under which the President of the Tribunal may give directions as to the persons who are to constitute the Tribunal for the purpose of a particular proceeding. Section 21, quoted above, is also in Div 3 of Pt III of the AAT Act. By s 23B the President must have regard to certain matters when giving a direction as to who will constitute the Tribunal.
17. Part IV of the AAT Act concerns the Tribunal’s review functions. In short, under s 25(4), the Tribunal has power to review any decision in respect of which application is made to it under any enactment. Section 33(1) governs the review process as follows:

(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;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this 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.

18. Various provisions of the AAT Act enable the Tribunal to dismiss proceedings without carrying out or completing a review. These include dismissal by consent (s 42A(1)), dismissal after notice in writing of discontinuance or withdrawal (s 42A(1A)), dismissal if a party fails to appear (s 42A(2)), dismissal if the decision is not reviewable (s 42A(4)), and dismissal for failure within a reasonable time to proceed with an application or comply with a direction (s 42A(5)). As noted, in the present case the Tribunal dismissed Mr Andelman’s application under s 42A(5)(a) (for failure to proceed within a reasonable time with the application). Sections 42A(6)-(10) are relevant to dismissal on this basis. They provide as follows:

(6) If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.

(7) Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, conference, mediation or hearing, as the case may be.

(8) If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.

(9) If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

(10) If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

19. By these provisions the Tribunal may reinstate an application dismissed under s 42A(2) for failure to appear on application by the party concerned (ss 42A(8) and (9)). However, where an application has been dismissed under s 42A(5), the Tribunal may reinstate the application only if it appears to the Tribunal that the application has been dismissed in error (s 42A(10)).
20. Under s 43(1), for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. The Tribunal must make a decision in writing which affirms, varies or sets aside the decision under review. Under s 43(2) the Tribunal is to give reasons for a decision under s 43(1) orally or in writing. By contrast, no reasons are required to be given for a decision to dismiss a proceeding under s 42A (as no review takes place and so s 43(2) does not apply).

APPLICABLE PRINCIPLES

21. Mr Andelman was not represented before the Tribunal. Accordingly, the observations in Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438; [1999] FCA 85 (Minogue) are relevant, namely:

[26] Unrepresented litigants present difficult issues for courts and for individual Judges. As the majority observed in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 415:

Whilst the right of a litigant to appear in person is fundamental, it would be disregarding the obvious to fail to recognise that the presence of litigants in person in increasing numbers is creating a problem for the courts.

Increasing attention is being devoted to the policy issues created by the increasing numbers of litigants in person. See, for example, Australian Law Reform Commission, The Unrepresented Party (Background Paper 4, December 1996).

[27] In Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, the High Court considered whether [sic] the trial judge's exercise of discretion to refuse an extension of time for lodging an application for maintenance and support under the Administration and Probate Act 1958 (Vic). The Court observed (at 150) that a

frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.

In Abram v Bank of New Zealand [1996] ATPR 41-507, at 42-347, a Full Federal Court, faced with an unrepresented litigant's claim that the trial judge had not given him appropriate assistance to present his case, made this comment:

What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case.

We respectfully agree with this observation. Because the duty of the judge varies according to the factors identified by the Full Court in Abram, the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented: cf MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512; DA Ipp, Judicial Intervention in the Trial Process (1995) 69 ALJ 365 at 369-370.

[28] The general principles governing the role of the judge in civil proceedings involving an unrepresented litigant have been stated in Rajski v Scitec Corporation Pty Ltd [(unreported, NSWCA, Kirby, Samuels and Mahoney JJ, 16 June 1986)]. Samuels JA said this (at 14):

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.

Mahoney JA made the following observation (at 27):

Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.

These comments have been referred to with approval in subsequent cases: see In the Marriage of Johnson (1997) 139 FLR 384 (Fam Ct/FC) at 406 (and cases cited there); Morton v Vouris (1996) 21 ACSR 497 at 513-514 per Sackville J. There is nothing in Neil v Nott inconsistent with what was said in Rajski v Scitec Corporation.

[29] A trial Judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 (NSW CA) at 397 per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network [(unreported, VSC, Smith J, 15 September 1997)] at 6.

22. In Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 (Jeray) the New South Wales Court of Appeal, dealing with a trial judge’s alleged denial of procedural fairness to an unrepresented litigant, also made observations relevant to the present case. At [6]-[12] Allsop P said:

[6] At the root of procedural fairness is the provision of a fair hearing to a litigant and the basal notion that the litigant has understood the proceedings before him or her and has had an adequate opportunity given to him or her, considering his or her attributes, qualities and deficiencies which render the litigant more or less able to vindicate his or her rights in court. A sharp line between rules and consequences cannot be drawn in this respect. Analogies of the rules of the game and how the game is played may be helpful at one level, but ultimately each circumstance has to be analysed and evaluated to see whether, in a human context, a fair hearing has been provided.

[7] More than a few litigants appear for themselves. Subject to any lawful procedure of a court, that is their right. Their right is to approach the judicial branch of government for the vindication of rights, private and public. This is an essential Constitutional aspect of our society. It is necessary to recognise that however easier [sic] it may make it to have the assistance of skilled professional lawyers assisting the court (and if I may respectfully say so, of the character we have had provided to us today) it is the litigant and his or her rights that are the subject of vindication.

[8] Litigants reflect the community in general. They come in a variety of forms. Those who seek to represent themselves are one of those types of litigants. Litigants who represent themselves may do so for many reasons: lack of funds, inability to obtain assistance, for whatever reason, a personal desire to participate. The reason does not matter. One consequence of people appearing for themselves is that they suffer the dual strain of being both litigant and advocate. All who have undertaken the strain of advocacy understand the strains involved in one task. The combined role must be doubly stressful.

[9] None of the above is to underestimate the ability of some litigants in person and, I emphasise at this point that I am not referring to Mr Jeray, to manipulate the legal system for ulterior motives, often to the great cost and strain of their opponent parties and to the system of justice itself. Litigation almost always has at least two sides and to indulge any whim of a litigant in person in an expensive, stressful and complex undertaking that is litigation is a step that is unwise. To indulge unthinkingly any whim of a litigant in person can cause great hardship to parties who oppose to them.

[10] The balance of fairness, procedural rigour and wise and practical indulgence in managing litigation by a judge is no simple task. Too indulgent an attitude to a litigant in person will unfairly burden the other side. An absence of proper regard for the needs of the litigant in person may cause injustice.

[11] The balance can be a fine one. Sometimes the difference is one of evaluative assessment about which minds can differ. Though the ultimate question of whether a tribunal has afforded procedural fairness is a judgment of the satisfaction of an essential legal and Constitutional standard, it is decided principally by reference to a factual evaluation of a normative consideration of fairness in the judicial process. It is unnecessary to consider further any philosophical or legal consideration as to the character of the judgment or evaluation involved.

[12] It is of course necessary to have regard not to what a judge might advisedly do best to exemplify judicial practice, but rather the question is what a judge must do to provide a fair hearing and equal justice.

23. Allsop P (with whom MacFarlan JA agreed) found that, in all of the circumstances of that case, the trial judge did not afford Mr Jeray procedural fairness. At [30]-[31] Allsop P concluded:

[30] However difficult and obstinate Mr Jeray may have appeared to the learned primary judge, I am of the view that he did not have sufficient [sic] explained to him for it to be concluded legitimately that he had a fair hearing on the fourth day.

[31] This is not to require perfection; it is not a call to pander to every whim of a litigant in person. Rather in my view it is an assessment of the evaluative conception of fairness in the circumstances of this case.

24. According to Macfarlan JA at [37]:

Fairness to the appellant required that he be told what the judge considered to be the effect of his conduct and of the consequences to the appellant of him discontinuing the proceedings.

25. In his dissenting judgment Young JA referred to another decision of the New South Wales Court of Appeal at [54] as follows:

[54] As to this, the respondents accept that in fulfilling the basic obligation to ensure a fair trial, additional obligations may fall upon a judge where there is a litigant in person. Indeed, the respondent’s counsel accepted that the law in this respect was appropriately stated by Justice Basten with whom Justices Hodgson and Bell agreed, in Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 [48]. Justice Basten said:

The relevant principles, if they can be so described, derive from the obligation of a trial judge to take appropriate steps to ensure that a party appearing unrepresented has sufficient information about the practice and procedure of the Court as is reasonably practicable for the purpose of ensuring a fair trial.

26. Although Minogue and Jeray concerned the obligations of judges, the Tribunal is equally bound to afford those appearing before it procedural fairness. Accordingly, the observations in each case relating to unrepresented litigants are apt to apply to the Tribunal in the exercise of its review functions.

SECTION 21A OF THE AAT ACT

27. Mr Markus acknowledged that an application for reconstitution made before a hearing could be treated as continuing in certain circumstances. Accordingly, Mr Andelman’s letter of 8 October 2010, if it otherwise constituted an application under s 21A of the AAT Act, could satisfy the requirement of s 21A that the application be made at “any time during the hearing”. Mr Markus submitted, however, that there was a real question whether Mr Andelman’s letter of 8 October 2010 was an application within the meaning of s 21A at all. Mr Markus referred to two decisions of the President of the AAT, Downes J, dealing with s 21A (Kowalski and Repatriation Commission [2009] AATA 807 (Kowalski) and Mellor and Australian Postal Corporation [2010] AATA 288 (Mellor)). In Mellor, in which more detailed reasons are given than in Kowalski, Downes J dealt with an application under s 21A and made the following observations:

[10] The application was made under s 21A of the [AAT] Act. That section was inserted in the [AAT] Act in 1977, relatively shortly after the tribunal was established. Prior to that time a presidential member was required to preside at a hearing of the tribunal. The amendments in 1977 permitted the tribunal to be constituted in a number of ways and a number of these without a presidential member presiding.

[11] Section 21A operates on matters where the hearing has commenced. It permits a party to “apply to the tribunal as constituted... requesting that the tribunal be reconstituted...”. The tribunal hears the application and then, pursuant to section 21A(2), notifies “the President of the making of the application and give[s] him or her particulars of [the] submissions.” Section 21A(3) confers a discretion on the president “after taking the submissions into account” to reconstitute the tribunal “if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing.”

[12] The plain meaning of these words is that the president can only reconstitute the tribunal, under this subsection, in the circumstance that I have just quoted. There is nothing which suggests that the president can reconstitute the tribunal for any other reason. It is true that this limitation on the power is not introduced until the section refers to the powers of the president, but that limitation must be read back into the earlier subsections and must there qualify the circumstances in which the application can be made. I do not think it is necessary to look outside the [AAT] Act to come to this conclusion. However, the conclusion is confirmed from the second reading speech of Mr Ellicott QC, the then Attorney-General, on introducing the relevant bill in the Parliament on 28 April 1977.

[13] It follows that the tribunal can only reconstitute the panel for the hearing of this matter under s 21A where it is determined that the proceeding relates to matters of such public importance as justify that course. In my opinion, there are no circumstances of sufficient public importance to justify me in reconstituting the tribunal.

28. In the same matter, at [15]-[17], Downes J noted that:

[15] So it is not appropriate to reconstitute the tribunal under s 21A. That is not, however, an end of the matter. The tribunal is plainly bound by the rules of natural justice. This is tacitly recognised by s 14 of the [AAT] Act relating to the interests of members and by other sections. However, it does not depend upon recognition in the [AAT] Act and many judicial decisions establish the proposition that the tribunal is bound by the rules of natural justice. One of those rules is, of course, the rule relating to apprehended bias.

[16] It is usually appropriate for the tribunal, as constituted for a hearing, to determine itself an application to the tribunal that one or more of the members comprising the tribunal for a hearing should be recused on the basis of apprehended bias. It is not, for reasons I have given, appropriate for such an application to be made under s 21A, but an application based on the rules of natural justice can simply be made directly to the tribunal as constituted to hear the matter.

[17] It follows that the ordinary and appropriate course, in my view, would have been for the application under s 21A to have been rejected, but for Dr Alexander to have entertained an application on the broad grounds of the rules of natural justice. However, that did not happen and the matter, through the s 21A application, came before me.

29. Despite Mr Pickles’ cogent submissions to the contrary, I am persuaded that Mr Markus is correct in his submissions that the member of the Tribunal to whom an application for reconstitution is made must be entitled (and bound), in the first instance, to determine whether the application engages s 21A of the AAT Act all. This is not to say that the member may undertake the exercise of consideration which is vested in the President by s 21A(3) of the AAT Act. If an application has been made under s 21A(1), and submissions made as required by s 21A(2), then it is a matter for the President alone to determine whether the matters to which the proceedings relate are of such public importance as to justify a direction for the reconstitution of the Tribunal under s 21A(3). The President’s function under s 21A(3), however, is not usurped by the Tribunal determining for itself whether or not an application has been made to it under s 21A(1). Indeed, the Tribunal must be bound to determine that for itself in order to discharge its functions under s 21A(2).
30. The reasoning in Mellor reflects not only this practical and legal reality (that an application under s 21A can only be made to the Tribunal during the hearing), but also the reality that s 21A (a specific statutory regime for reconstitution of the Tribunal in circumstances where the President considers that the matters to which the proceeding relates are of such public importance to justify the giving of a direction for the Tribunal to be reconstituted) operates against the background of the common law principles of natural justice by which the Tribunal is bound. As Downes J said, one of the key elements of natural justice is the rule against bias. Ordinarily, an application that a decision-maker disqualify himself or herself on the ground of bias (apprehended or actual) must be made in the first instance by the decision-maker in question. Section 21A is not a substitute for the ordinary common law position. The section has a limited operation. The touchstone of it operation is that the matters to which the proceeding relates be matters which the President might consider of such public importance as to justify the giving of a direction for reconstitution of the Tribunal. Accordingly, if a party requests reconstitution of the Tribunal merely on the ground of bias (actual or apprehended) then, in the ordinary course, the Tribunal would be entitled to treat that application as one based on the common law principles by which the Tribunal is bound and not as an application under s 21A of the AAT Act. Nothing in such an application, in the ordinary course, would engage the provisions of s 21A. This conclusion is consistent with the recent decision of Downes J in Kowalski and Repatriation Commission [2011] AATA 197.
31. Mr Andelman’s application that another member of the Tribunal hear his case did not purport to be an application under s 21A(1) of the AAT Act. Nothing in the letter of 8 October 2010, or in Mr Andelman’s reference to it during the hearing on 29 October 2010, indicated any attempt to make an application under the scheme established by s 21A. For these reasons the Tribunal had no obligation receive submissions and notify the President of the making of an application under s 21A(2). It is true that the transcript does not suggest that the Tribunal turned its mind to the question whether or not there was any such application. But this is immaterial. There was no such application and, as such, the Tribunal had no obligations either under or in connection with s 21A of the AAT Act.
32. In any event, and as Mr Markus also submitted, the question whether the Tribunal had before it an application under s 21A of the AAT Act is not determinative. An application under s 21A, like any other application, can be withdrawn or discontinued. In the present case the real question is whether, in the circumstances of the case, the Tribunal was able to dismiss the proceeding under s 42A(5). This involves two sub-questions. The first is whether the factual conditions of s 42A(5) were satisfied. The second is whether the circumstances were such as to make dismissal of the proceeding under s 42A(5) a breach of the Tribunal’s obligation, in accordance with the laws of natural justice, to give Mr Andelman a fair hearing.

DISMISSAL UNDER S 42A(5) OF THE AAT ACT

Submissions for Mr Andelman

33. The submissions for Mr Andelman (other than those relating to s 21A of the AAT Act, discussed above) may be summarised as follows: – (i) Mr Andelman did not fail to proceed with the application, (ii) to the contrary, the transcript discloses that Mr Andelman wished to proceed with the application but simply felt unable to do so before the Senior Member, (iii) accordingly, the factual pre-conditions to an exercise of power under s 42A(5) did not exist, (iv) alternatively, the Tribunal was bound to hear submissions and determine Mr Andelman’s application for another member of the Tribunal to hear his case before exercising any power under s 42A(5), and (v) by analogy to Jeray, exercising the power under s 42A(5) in all the relevant circumstances involved a breach of the Tribunal’s obligation to give Mr Andelman a fair hearing because the Tribunal wrongly assumed that Mr Andelman wished to abandon the hearing and did not explain to Mr Andelman the relevant procedures for the determination of his application for another member of the Tribunal to hear his case before Mr Andelman left the hearing. According to these submissions, the hearing before the Tribunal effectively miscarried at the outset. It was not made clear to Mr Andelman that the Tribunal as currently constituted had to deal with his application for another member of the Tribunal to hear his case in the first instance. It was wrongly put to Mr Andelman that he was abandoning the hearing when he was not. The Tribunal gave no practical assistance to Mr Andelman. The Tribunal did not warn Mr Andelman of the consequences of leaving the hearing, and the fact that Mr Andelman did so is immaterial in any event: even if he had sat there and refused to participate further, the same position would have resulted. In the circumstances in which it found itself after Mr Andelman had left the hearing the Tribunal was bound not to exercise any power of dismissal under s 42A(5), as to do so would amount to a breach of the requirements of procedural fairness. Rather, the Tribunal was required to determine the extant application for another member of the Tribunal to hear Mr Andelman’s case and to notify Mr Andelman of that decision before any determination could be made in relation to his substantive application for review.

Discussion

34. The decision in Jeray reflects the concern of the common law to ensure that a party to a dispute resolved through a judicial or quasi-judicial determination receives a fair hearing. In the ordinary course, a fair hearing is a hearing on the merits of the substantive dispute. The provisions of s 42A of the AAT Act implicitly recognise that, in some circumstances, resolution following a hearing on the merits of the substantive dispute is not always feasible. The proceeding, in such cases, may be determined by the other courses of action for which the section provides. The mere fact that action is taken under one of those provisions does not, however, immunise the action against judicial review for breach of the requirements of natural justice.
35. The reasoning in Jeray discloses also that the question whether obligations of procedural fairness have been fulfilled or contravened involves a close consideration of the facts of the particular case. Of particular importance is the observation of Allsop P at [12] that it is “necessary to have regard not to what a judge might advisedly do best to exemplify judicial practice, but rather... [to] what a judge must do to provide a fair hearing and equal justice.”
36. On close consideration of the facts of the present case, I am satisfied that the power under s 42A(5) of the AAT Act was available to the Tribunal. Furthermore, I am not persuaded that the requirements of procedural fairness precluded the Tribunal from exericisng this power in all of the circumstances which confronted it on 29 October 2010.
37. In reaching this conclusion I have given full weight to Mr Andelman’s lack of legal representation, age (he is in receipt of an old age pension), difficulties with the English language (he speaks and understands some English but it is clearly not his first language), and emotional state (he appeared from the transcript to have been in emotional distress at the Tribunal hearing and exhibited similar distress in the course of the appeal before this Court). All of these factors indicate that Mr Andelman needed substantial help from the Tribunal in order to understand its procedures and to enable him to obtain a fair hearing. The conclusion which I have drawn is that nothing the Tribunal did operated to deprive Mr Andelman of the help he required. To the contrary, by his own conduct, Mr Andelman disabled the Tribunal from providing him with any explanation of its procedures or with any assistance so as to ensure a fair hearing of his application for review on its merits.
38. The facts of the present case are distinguishable from those in Jeray. As the transcript discloses, Mr Andelman made his objection to the constitution of the Tribunal immediately. The Tribunal (properly) elicited Mr Andelman’s reasons for wishing the Tribunal to be reconstituted. After Mr Andelman explained his position the Tribunal, again properly, referred to the letter of 8 October 2010 and made it an exhibit in the proceeding. Far from causing the proceeding to miscarry, it was necessary and appropriate for the Tribunal to ensure it had before it all material relevant to Mr Andelman’s request for another member to hear his review application. It was also necessary and appropriate for the Tribunal to ensure, as it did, that the Secretary’s representative was aware of the contents of Mr Andelman’s letter. Those preliminary matters having been dealt with, the Senior Member began to explain to Mr Andelman the procedures involved in an application for him to disqualify himself and for another member of the Tribunal to hear Mr Andelman’s case. This is apparent from the Senior Member’s words, “Mr Andelman, the possibility does exist that I should disqualify myself from hearing this matter if you...”. The Senior Member was never able to complete this sentence because Mr Andelman interrupted him. Mr Andelman’s interruption was to the effect that he could not participate in the case because seeing the Senior Member made him feel seriously sick and he had to leave. The balance of the hearing consisted of the Senior Member making further attempts to explain relevant procedures to Mr Andelman but, on each occasion, being cut off by Mr Andelman insisting that the Senior Member could make a decision without Mr Andelman. The fact that, in the course of so doing, Mr Andelman also said, “I not abandon. I like this hearing, but I don’t like you”, cannot be read in isolation but must be construed in the context of the hearing as a whole. It was after making this statement that Mr Andelman repeated (twice) that the Tribunal could “make a decision without [him]” and that he did not care what decision the Tribunal made. Mr Andelman then acted upon these latter statements by leaving the Tribunal hearing altogether.
39. At that point, the Tribunal was confronted by circumstances in which the applicant for review had left the hearing. Not unreasonably, the Tribunal characterised this as Mr Andelman having withdrawn from the hearing. In other words, on the day and at the time the matter was fixed for final hearing, and in circumstances where the Secretary’s representative was in attendance for the purpose of that hearing, the Tribunal was left without an applicant for review to proceed with the application. Moreover, the Tribunal was entitled to infer (as I have no doubt it did) that Mr Andelman was not likely to return to proceed with the hearing at any time later in the day. In these circumstances it was open to the Tribunal to conclude that Mr Andelman had failed within a reasonable time to proceed with his application. The time to proceed with the application was the hearing which had been fixed for 29 October 2010. The application for another member of the Tribunal to hear the case was part of that hearing (although it was ancillary to the substantive dispute). Mr Andelman left the hearing with a clear indication that he had no intention of returning. That constituted a failure to proceed within the application (including the application for another member of the Tribunal to hear the case) within a reasonable time. As such, the factual conditions of s 42A(5) were satisfied and the power of dismissal under that section was available to the Tribunal.
40. Unlike in Jeray, there was simply no opportunity under the circumstances outlined above for the Tribunal to afford Mr Andelman any practical assistance. On the two occasions the Tribunal sought to provide Mr Andelman with information about the applicable procedures, as explained above, it was prevented from doing so by Mr Andelman’s own conduct. Having left the hearing, Mr Andelman ensured that the Tribunal had no opportunity to provide him with any explanation of its processes at all. It was neither inappropriate nor impermissible for the Tribunal to attempt to advise Mr Andelman about the consequences of walking out of the hearing. Nor was it impermissible for the Tribunal to exercise its powers under s 42A(5) of the AAT Act after Mr Andelman did so. It cannot be the case that that the Tribunal was precluded from exercising its powers under s 42A(5) merely because Mr Andelman had applied for the Senior Member to disqualify himself from hearing the application. First, Mr Andelman left the hearing and thus could not be said to have continued with his application for disqualification. If it were otherwise then, as Mr Markus submitted, an applicant for review would be vested with a right to an adjournment after making any such application merely by reason of leaving the hearing before the Tribunal had been afforded an opportunity to explain the consequences of doing so and the processes available for the determination of the application. Second, and in any event, the transcript shows that the Senior Member was not persuaded that Mr Andelman’s application could succeed on the ground of apprehended bias. Again as Mr Markus said, the transcript cannot be equated to reasons for a decision. As such, it does not matter that the Senior Member said “the matter, I think, is now dismissed” before referring to the application for disqualification. Nor does it matter that the transcript does not disclose the Tribunal’s consideration of the discretionary factors weighing for and against dismissal. It cannot be inferred from the transcript that the Tribunal did not appreciate the discretionary nature of the power it was exercising or its consequences, or that it failed to take account of any relevant consideration in making its decision to dismiss Mr Andelman’s application. The conclusion must be that the circumstances of and reasons for the decision to dismiss the proceeding under s 42A(5) were not such as to entail a breach of the Tribunal’s obligation to give Mr Andelman a fair hearing.
41. For these reasons, this is not a case where the dismissal of the proceeding under s 42A(5) was beyond power or involved any contravention of the requirements of natural justice. Accordingly, the questions of law identified in the amended notice of appeal must be answered against Mr Andelman as follows:
    • Question 1: Does not arise.
    • Question 2: Yes.
    • Question 3: No.
      

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated: 31 March 2011