LVR (WA) Pty Ltd v Administrative Appeals Tribunal - Administrative Law

The Federal Court has handed down its judgment in the case of LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90, allowing the appeal and setting aside the previous order. 

The appeal was from orders made by the primary judge on 6 October 2011 dismissing with costs an application dated 15 July 2011. That application was for an order of review of a decision of the Administrative Appeals Tribunal made on 30 July 2010 dismissing, under s 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), a number of applications.

In a judgment by North, Logan and Robertson JJ, it was noted that the background of the case involved unusual circumstances. In particular, there was the question of whether the Tribunal had brought its own mind to bear on the issues before it. The reasons of the Tribunal extended to 59 paragraphs and, with the exception of a small number of words, phrases and sentences, were taken verbatim and without attribution from the written submissions filed in the Tribunal on behalf of the Commissioner. The judges noted that these circumstances would give rise to a serious concern that the Tribunal had failed to bring its own mind to bear on the issues before it and thus that it had constructively failed to exercise its jurisdiction.

Furthermore, the extensive copying, without attribution, of the Commissioner’s written submissions filed before the hearing in the Tribunal did not extend to the only paragraphs of those submissions which considered the content of the affidavit of Mr HB Schokker sworn 21 June 2010 (the Schokker affidavit). It was only paragraphs 70 and 71 of the Commissioner’s written submissions filed in the Tribunal on 23 June 2010 which referred to the Schokker affidavit and the preceding 69 paragraphs did not so refer and were not amended to deal with the substance of what was then the very recent Schokker affidavit. Thus the great bulk of the Commissioner’s submissions did not take into account the contents of the Schokker affidavit but this is what the Tribunal reproduced. The Tribunal did not reproduce paragraphs 70 and 71.

In this hearing, it was concluded that “neither the extent of the unattributed copying nor the fact that what was copied from the Commissioner’s submissions did not refer to and was not updated to take account of the Schokker affidavit was drawn to the attention of the primary judge.”

As a result, the Court allowed the appeal, with the decision of the Tribunal being set aside and the matter referred to the Tribunal for further consideration.

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