Groom and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 202

Administrative Appeals Tribunal

DECISION AND REASONS FOR INTERLOCUTORY DECISION [2008] AATA 202

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1137

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PETER THOMAS GROOM

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Respondent

INTERLOCUTORY DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date14 March 2008

PlaceHobart

Decision The Tribunal grants leave to the applicant to adduce further evidence of his changed circumstances since the hearing.  The applicant is to provide written submissions as to the evidence that he proposes to adduce and the form in which such evidence will be presented.  Such written submissions should be received within seven days from the date hereof.  Within seven days of receipt of the applicant's submissions the respondent shall advise if he wishes to cross-examine the applicant.

..............................................

Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE - application by applicant for a postponement of the handing down of the decision and a reopening of the case to make further submissions and tender further evidence of changed circumstances occurring after the hearing - application not opposed by respondent - whether AAT has discretion to grant leave

Administrative Appeals Tribunal Act 1975, s.33(1)(b), 33(1)(c)

X v Minister for Immigration and Multicultural Affairs [2002] 67 ALD 355 at 360

Kowalski and Military Rehabilitation and Compensation Commission [2007] AATA 1988

REASONS FOR INTERLOCUTORY DECISION

14 March 2008 Ms A F Cunningham (Senior Member)   

1.      The applicant has applied for the review of a decision which rejected his claim for disability support pension (DSP) on the basis that he is precluded from receiving compensation affected payments for the period 29 August 2002 until 19 April 2017 as a result of receiving a lump sum compensation payment.  The hearing concluded on 20 December 2007 when final submissions were made.

2.      In a letter to the Tribunal dated 20 February 2008 the applicant's solicitor advised that he had been contacted by his client a fortnight ago and informed that his circumstances had changed.  In view of the changed circumstances, it was requested that no decision be made by the Tribunal until additional evidence is received with an opportunity for the parties and the Tribunal to consider its implications.  The applicant's solicitor advised that the respondent supported this course of action.

3.      The Tribunal's decision had been finalised but had not at that stage been handed down.  The applicant and respondent were both requested to provide written submissions as to why the decision should not be handed down. 

4.      The written submissions from the applicant's solicitor advised that the applicant had sold his house on 25 January 2008 for $140,000.00 and used some of the proceeds of sale to settle outstanding debts which were identified.  Further that the applicant had moved to Victoria where he is currently residing with friends and incurred relocation and travel expenses.  The applicant's solicitor advised that receipts of expenditure would be confirmed within a fortnight.  The Tribunal was referred to the decision in X v Minister for Immigration and Multicultural Affairs [2002] 67 ALD 355 in support of the application that the Tribunal take account of matters brought to its attention after the hearing but before the decision is handed down.

5.      The respondent's solicitor supports the applicant's request that the Tribunal receive additional evidence of changed circumstances which occurred after the hearing.  The respondent contends that the applicant now has available liquid resources which were not available to him at the time of the hearing.

6.      This is not a case where the evidence sought to be adduced was available at the time of the hearing but concerns matters which occurred after the conclusion of the hearing and prior to the handing down of the Tribunal's decision.

7.      The Tribunal in X v MIMA (supra) declined to take account of additional evidence namely contents of a diary which had been submitted but not translated into English.  On appeal the Full Court of the Federal Court agreed with the decision of the primary Judge that the Tribunal had an obligation to take this evidence into account.  The Full Court said that where the legislation does not impose a cut-off date within which evidence should be taken, an administrative decision maker is obliged to make a decision on the evidence available up to the time that the decision is made and to determine the relevance and weight of that evidence.

8.      Deputy President B T Lander reached a similar conclusion in Kowalski and Military Rehabilitation and Compensation Commission [2007] AATA 1988 on an application by the applicant to reopen his case to make further submissions and tender further evidence that had been forwarded to the Tribunal following the conclusion of the hearing. In that case the applicant was unrepresented and some of the material sought to be adduced could have been submitted during the course of the hearing. Nevertheless the Tribunal allowed the application which was opposed by the respondent who conceded that the AAT has a discretion to grant such an application. Reliance was placed on the provisions of s.33(1)(c) of the Administrative Appeals Tribunal Act 1975 which provide:

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

and s.33(1)(b) which provides:

"Proceedings should 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".

9.      The approach of the Courts is to generally refuse an application to adduce further evidence which was available at the time of the original hearing.  The Tribunal has frequently stated however that it is not constrained by the procedures adopted by the Courts nor the rules of evidence although they may provide some guidance.  The evidence that is sought to be adduced in this case however is that of a change of circumstances which occurred after the hearing.  The role of the Tribunal is to make the correct or preferable decision on the material before it. (Bushell v Repatriation Commission [1992] HCA 47).

10.     The Tribunal has become aware of material which may impact on its decision.  It is appropriate that the Tribunal receive that evidence and hear submissions from the parties as to its weight and relevance and then discharge its duty to arrive at the correct or preferable decision taking account of all of the relevant circumstances of the case.

11.     Deputy President Lander said in response to dicta referred to him regarding the Court's attitude for applications for leave to reopen a case at paragraph 30:

"The AAT, of course, is not sitting on appeal but is sitting on a review of a decision of an administrative decision maker.  However, we think that for the orderly disposition of business in the AAT, no party should be able to make further submissions or attempt to adduce further evidence after the AAT has completed its hearing without first obtaining the leave of the AAT".

12.     The Tribunal grants leave to the applicant to adduce further evidence of his changed circumstances since the hearing.  The applicant is to provide written submissions as to the evidence that he proposes to adduce and the form in which such evidence will be presented.  Such written submissions should be received within seven days from the date hereof.  Within seven days of receipt of the applicant's submissions the respondent shall advise if he wishes to cross-examine the applicant. 

I certify that the 12 preceding paragraphs are a true copy of the reasons for the interlocutory decision herein of Ms A F Cunningham (Senior Member)

Signed:  R Hunt (Administrative Assistant)

Date of Interlocutory Hearing      Interlocutory Hearing on the papers
Date of Interlocutory Decision     14 March 2008
Solicitor for the Applicant            Mr Ben Bartl, Hobart Community Legal Service
Counsel for the Respondent       Mr Brian Morgan
Solicitor for the Respondent       Mr David Wilson, Australian Government                  Solicitor