Minister for Immigration Local Government and Ethnic Affairs v Taveli
(1990) 23 FCR 162(Judgment by: Hill J)
Minister for Immigration Local Government and Ethnic Affairs
vTaveli
Judges:
Davies J
French J
Hill J
Legislative References:
Ombudsman Act 1976 (NSW) - The Act
Freedom of Information Act 1982 (NSW) - The Act
Administrative Decisions (Judicial Review) Act 1977 - s 5(2)(b); s 13; s 16(1)
Administrative Appeals Tribunal Act 1975 - s 28
AAT Act - s 43
Broadcasting Act 1942 (NSW) - s 40B(1)(d)
Migration Act 1958 - The Act
Evidence Act 1905 - Pt IIIA
Civil Evidence Act 1968 - The Act
Commonwealth Evidence Act 1905 - s 7B
Tribunals and Enquiries Act 1958 - The Act
Case References:
Williams v Lloyd - (1933-4) 50 CLR 341
Sezdirmezoglu v Minister for Immigration and Ethnic Affairs - (1983) 51 ALR 561
Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs - (1983) 51 ALR 561
Sezdirmezoglu and Anor v Acting Minister for Immigration and Ethnic Affair - (1983) 51 ALR 561
Ridge v Baldwin - (1964) AC 40
R v Waltham Forest LBC ex parte Baxter - (1988) 2 WLR 407
R v Supplementary Benefits Commission ex parte Singer - (1973) 1 WLR 713
R v Southamptom Justices ex parte Green - (1976) 1 QB 11
R v Northumberland Compensation Appeals Tribunal, Ex parte Shaw - (1952) 1 KB 338
R v Home Secretary ex parte Khawaja - (1984) AC 74
R v District court of Queensland Ex parte Thompson - (1968) 118 CLR 488
Public Service Board of New South Wales v Osmond - (1986) 159 CLR 656
Public Service Board of NSW v Osmond - (1986) 159 CLR 656
Park Oh Ho v Minister for Immigration and Ethnic Affairs - (1989) 64 ALJR 34
O'Reilly v Mackman - (1983) 2 AC 237
O'Reilly v Mackman - (1983) 2 AC 237
Minister for Immigration and Ethnic Affairs v Arslan - (1984) 55 ALR 361
Minister for Immigration and Ethnic Affairs and Anor v Arslan and Anor - (1984) 55 ALR 361
Lutterell v Reynell - (1671) 1 Mod 282; 2 Hawk PC 431
Kioa v West - (1985) 159 CLR 550
Iveagh v Minister of Housing and Local Government - (1964) 1 QB 395
Givaudan and Co Ltd v Minister of Housing and Local Government - (1967) 1 WLR 400
George v Secretary of State for the Environment - (1979) 77 LGR 689
Edwards v Bairstow - (1956) AC 14
Dalton v Deputy Commissioner of Taxation (NSW) - (1985) 7 FCR 382
Burns v Australian National University - (1982) 40 ALR 707
Baldwin and Francis Ltd v Patents Appeal Tribunal and Ors - (1959) AC 663
Baldwin and Francis Ltd v Patents Appeal Tribunal - (1959) AC 663
Atra v Farmers' and Graziers' Co-Op Co Ltd - (1986) 5 NSWLR 281
Ansett Transport Industries (Operations) Ltd v Secretary Department of Aviation - (1987) 73 ALR 193
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation - (1983) 1 NSWLR 1
Adelaide Chemical and Fertilizer Co Ltd v Carlyle - (1940) 64 CLR 514
ARM Constructions Pty Ltd v Deputy Commissioner of Taxation - (1986) 65 ALR 343
Judgment date: 31 May 1990
Judgment by:
Hill J
I have had the opportunity to read the reasons for judgment prepared by both Davies and French JJ. The facts are fully set out in the judgment of French J and need not be repeated. With respect I agree, for the reasons given by French J, that whether or not in the present case the statement by the Minister given under s 13 of the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") was admissible in evidence on a tender by counsel for the Minister, the acceptance into evidence of that statement would make no difference to the outcome of the present appeal.
With respect I also agree with his Honour's conclusion that the learned trial judge's order that the decisions under review be set aside as from the date of those decisions was plainly not in error.
Strictly therefore it is unnecessary to consider for the purposes of the present appeal whether the statement under s 13 of the Act should have been accepted into evidence on a tender of it by the Minister. However, as this matter was fully debated before us and as it has been dealt with by both Davies and French JJ. I propose to deal shortly with the question.
The statutory background to s 13 of the ADJR Act has been fully dealt with in both of the judgments of Davies and French JJ and need not be canvassed at length. Absent such a provision there is no obligation upon a decision-maker at common law to give reasons for an administrative decision: Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 660. Without reasons which make intelligible the true basis of the decision (cf ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 65 ALR 343 at 349 (Burchett J)) a person affected by an administrative decision will not know the matters that the decision-maker has taken into account and often will not be able to determine whether an error has been made in the decision making process. By requiring a decision-maker to set out his findings on material questions of fact by reference to the evidence or other material on which those findings were based and by requiring the decision-maker to give reasons for the decision, s 13 of the ADJR Act enables the person affected by the decision to understand the basis upon which the decision was made and by exposing the process of reasoning permits that person or his advisers to assess whether the decision should be accepted or challenged: Burns v Australian National University (1982) 40 ALR 707 at 719.
However as Davies J points out, the statement under s 13 does not itself form part of the decision-making process. The statement need not be supplied by the decision-maker unless it is requested by a notice in writing within the times stipulated by s 13(5), which, in the case of a decision the terms of which were not recorded in writing and set out in a document furnished to the person affected by the decision, must be made within a reasonable time after the decision was made. Were the statement of reasons under s 13 part of the decision-making process itself those reasons would then be admissible as part of the res gestae. Where however the reasons may be prepared some considerable time after the decision-making process itself was complete it can hardly be said to be part of the res gestae and for that reason admissible.
The mere fact that the statement is required by statute does not in my view provide a reason for the adoption of a different view. In particular the obligation to furnish a statement does not, in my view, render admissible that which was otherwise inadmissible. The case of Givaudan and Co Ltd v Minister of Housing and Local Government (1967) 1 WLR 400 is not authority to the contrary. The statutory requirement there under consideration was a requirement that the reasons in writing be notified with the decision. In any event, as the Full court of this court pointed out in Minister for Immigration and Ethnic Affairs v Arslan (1984) 55 ALR 361 at 364 the reasons of the decision-maker were treated as an admission against the Minister and not evidence, prima facie or otherwise, of the facts stated in the letter of reasons.
While O 54 r 3 of the Rules of this court provides for the filing of a s 13 statement by an applicant for review, I agree, with respect, with Davies J that that rule is not a rule directed to the admissibility of evidence. As his Honour points out, the proper and orderly conduct of the case at a pre-trial stage may be greatly assisted by recourse to the s 13 statement. Indeed, the rules make clear that except where the contrary is provided, the rules of evidence will apply to proceedings in the court. Such dispensation as the rules provide is generally quite narrow: cf O 33 r 2 and 3.
As a matter of ordinary principle a statement made after the event will not generally be received as evidence in favour of the person making the statement: Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514, 530-533; Williams v Lloyd (1933-4) 50 CLR 341 at 371. Such evidence is not only self-serving but is a narrative of a past event and purports to be the equivalent of or a substitute for direct testimony of the event it narrates. The exception to this rule that the state of a man's mind may be proved by evidence of the words and acts which identify that state of mind even when not contemporaneous with the time when the state of mind is to be considered, discussed in detail in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1 at 6-7, is not presently relevant.
In considering the question of admissibility it is, of course, always necessary to consider the issue which arises between the parties. In the present case an issue was whether the decision-maker, Mr Luu, had in fact taken into account in making his decision the alleged presence of the respondent, Mr Faka'osi, at the hotel brawl, a matter upon which Mr Faka'osi was not given the opportunity to comment. A statement made subsequent to the making of the decision, not under oath, to the effect that Mr Luu did not take these matters into account in arriving at his decision is, in my view, as much a narrative of a fact as would be a statement by a policeman made some time after an accident of the events he observed and falls within the category of evidence that is not (in the absence of a statutory provision to the contrary) admissible on the principles discussed by Dixon J in Adelaide Chemical and Fertilizer Co Ltd (above).
The decision of the Full court of this court in Minister for Immigration and Ethnic Affairs v Arslan (1984) 55 ALR 361 is not to the contrary. I have perused the transcript of the proceedings at first instance from which it appears that the s 13 statement in that case was sought to be tendered by counsel for the decision-maker and counsel for the person affected by the decision indicated to the court that he desired the statement to be tendered in any event. Accordingly the statement was accepted in evidence by consent. It was then used as the basis of admissions against the decision-maker at first instance.
On appeal in Arslan, therefore, the issue was not the admissibility of the statement in evidence but a different question, namely whether, it having been tendered by consent, it could be treated as evidence of the facts which lay behind the decision. The court, Sweeney, St John and Morling JJ commented as follows at 363-364:
It seems to us that the applicant for a review of a decision may extract from it, and use, such statements as are admissions in his favour but the officer, or Minister, whose decision is being reviewed, cannot use the statement as evidence of the facts contained therein in a self-serving way.
It is true that in Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561 at 570, Smithers J said that a statement under s 13 is evidence of the reasons for the decision referred to in the statement. His Honour said:
'There is a preliminary question concerning the evidentiary status of the statement of reasons provided by the Minister on 15 September 1983. The statement was not in the form of an affidavit and was merely tendered at the commencement of the hearing. Some guidance as to the status of the reasons can be gleaned from Givaudan and Co Ltd v Minister of Housing and Local Government (1967) 1 WLR 400; (1966) 3 All ER 696. In that case the Minister was under a statutory duty to provide reasons pursuant to the Tribunals and Inquiries Act 1958. His Honour Mr Justice Megaw said (WLR at 409): 'The document containing the Minister's reasons is ... an important document, required by statute to be prepared for a particular and important purpose, and it must be, and no doubt is, regarded by the Minister as such. The whole of its contents must be assumed prima facie, at least, to have been inserted for a relevant purpose: namely, the setting forth with reasonable precision and clarity of matters which are relevant as indicating and explaining positively or negatively the reasons for the Minister's decision.' In line with the thrust of these comments I take the view that the statement of reasons provided by the Minister, unless effectively challenged, are evidence of the reasons for his decision.' If one goes to Givaudan's case it is clear that, in making the statement relied upon by Smithers J,
Megaw J (as he then was) was dealing with an argument on behalf of the Minister that the Minister did not take an irrelevant Bill or an Act into account in making his decision. Megaw J used the Minister's statement of reasons as an admission against him. In our view, the case is not authority for the proposition that the statement is prima facie evidence of the facts stated therein.
In any event we do not think that what was said by Smithers J is inconsistent with the view that we have already expressed that the making of a decision is not evidence of the facts that may underlie the decision itself. Thus a statement in a s 13 statement that the Minister's decision was based upon his opinion that a person was of a bad character would be evidence only of the fact that the Minister held that opinion. It would not be evidence that the person was, in fact, a person of bad character.
In the context of the case, where the statement was tendered by consent, the statement was to be accepted as evidence against the decision-maker that the Minister had held the opinion (and presumably taken it into account) that the applicant was of bad character. The case does not stand as authority that the decision-maker could tender the statement as evidence that he had not taken into account a matter otherwise adverse to the person affected by the decision.
No argument was addressed to us that the statement was admissible pursuant to the provisions of Part IIIA of the Evidence Act 1905 relating to the admissibility of business records and in these circumstances it seems preferable not to decide that issue. Notwithstanding the width of the concept of a document which forms part of a record of a business there is a real issue whether it would extend to a statement prepared under s 13. Further, the Evidence Act does not, as such, render admissible the document itself, it merely renders admissible a statement in the document: Re Marra Developments Ltd (1979) 2 NSWLR 193. There will be an issue whether a s 13 statement forms part of a record of a business (in the defined sense) and of course issues both as to whether the statement is excluded from admissibility under the Evidence Act as made or obtained in contemplation of a legal proceeding (cf Atra v Farmers' and Graziers' Co-Op Co Ltd (1986) 5 NSWLR 281) and whether the statement is, in terms of the provisions, one that is otherwise inadmissible.
It follows that I agree with Davies J that his Honour was correct in rejecting the tender of the s 13 statement. With respect to Davies J, however, I cannot accept all that his Honour has written concerning the undesirability of decision-makers being subject to cross-examination.
Order 54 r 8 permits the court in an application for administrative review to dispense with the attendance for cross-examination of a person making an affidavit. Whether that dispensing power will be exercised will depend upon all the circumstances of the case and in particular the issues which are raised between the parties. No doubt cross-examination directed to the materials that were before the decision-maker will be unlikely to be productive. But the more usual case is that an applicant will seek to challenge a decision on the ground that the decision-maker took into account irrelevant matters or failed to take into account relevant matters. An applicant may also, as in the present case, seek to show that the decision took into account a matter personal to the applicant in respect of which the applicant is given no chance to put his side of the case.
In such circumstances, which are far from rare, it may only be by a careful cross-examination of the decision-maker that the true reasons for the decision will become clear. The fact that a s 13 statement is often prepared at a time somewhat distant from the actual decision, at a time when the possibility of litigation will be obvious and often with the assistance of legal advisers attuned to the issues which are likely to arise, cannot be ignored. It would be unfortunate if this court should be seen to be enunciating a principle of general application that leave to cross-examine will rarely be granted. Each case will depend upon its own facts; the inconvenience to the decision-maker will no doubt be a factor to be taken into account. In the end, however, the question must be determined as Lord Diplock said in O'Reilly v Mackman (1983) 2 AC 237 at 282-3 in accordance with the "justice of the particular case'.
I would dismiss the appeal with costs.