O'Sullivan v Repatriation Commission [2003] FCA 387

FEDERAL COURT OF AUSTRALIA

O'Sullivan v Repatriation Commission [2003] FCA 387 ADMINISTRATIVE LAW – procedural fairness – applicant cross-examined on a tax return obtained by the respondent from the Australian Tax Office – page missing from return – cross-examination proceeds on false assumption – whether breach of procedural fairness – whether it matters that the members of the AAT were not personally at fault – whether breach material. ADMINISTRATIVE LAW – contravention of s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) – failure to observe procedures required by law to be observed in the making of the decision PRACTICE & PROCEDURE – requirement under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) to give reasons – editing of ex tempore judgments or statements of reasons Administrative Appeals Tribunal Act 1975 (Cth), ss 39, 43, 44 Veterans' Entitlement Act 1986 (Cth), ss 13(1), 15(1), 23, 24, 120(4), 120(6) Income Tax Assessment Act 1936 (Cth), s 16(4)(d) Flentjar v Repatriation Commission (1997) 48 ALD 1 cited Forbes v Repatriation Commission (2000) 101 FCR 50 cited Commissioner of Taxation v Osborne (1990) 26 FCR 63 cited Ma v Commissioner of Taxation (1992) 37 FCR 225 cited Hadid v Redpath [2001] NSWCA 416 cited Kioa v West (1985) 159 CLR 550 cited Australian Postal Commission v Hayes (1989) 23 FCR 320 cited Sullivan v Department of Transport (1978) 20 ALR 323 cited Opitz v Repatriation Commission (1991) 29 FCR 50 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 cited Hot Holdings Pty Ltd v Creasy (2002) 193 ALR 90 cited R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 considered Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 195 ALR 1 considered National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296 followed Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 cited R v Secretary of State for the Home Department; Ex parte Al Mehdawi [1990] 1 AC 876 distinguished Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 followed Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1242 cited Stead v State Government Insurance Commission (1986) 161 CLR 141 cited M Aronsen and B Dyer, Judicial Review of Administrative Action (2nd ed, 2000) LAWRENCE O'SULLIVAN v REPATRIATION COMMISSION N 1412 of 2002 SACKVILLE J SYDNEY 1 MAY 2003