FEDERAL COURT OF AUSTRALIA Avery v Commissioner of Taxation [2010] FCA 615 Citation: Avery v Commissioner of Taxation [2010] FCA 615 Appeal from: Avery and Commissioner of Taxation [2009] AATA 559 Parties: STEPHANIE TATIANA PATRICIA AVERY v COMMISSIONER OF TAXATION and ADMINISTRATIVE APPEALS TRIBUNAL File number(s): NSD 931 of 2009 Judge: JAGOT J Date of judgment: 17 June 2010 Legislation: Administrative Appeals Tribunal Act 1975 (Cth) Freedom of Information Act 1982 (Cth) Date of hearing: 3 June 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 22 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms T Wong Counsel for the Second Respondent: The Second Respondent did not appear Solicitor for the First Respondent: DLA Phillips Fox IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 931 of 2009 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: STEPHANIE TATIANA PATRICIA AVERY Applicant AND: COMMISSIONER OF TAXATION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: JAGOT J DATE OF ORDER: 17 JUNE 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the first 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 931 of 2009 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: STEPHANIE TATIANA PATRICIA AVERY Applicant AND: COMMISSIONER OF TAXATION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: JAGOT J DATE: 17 JUNE 2010 PLACE: SYDNEY REASONS FOR JUDGMENT THE APPEAL 1 This is an appeal against a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of the Commissioner of Taxation (the Commissioner) to refuse a request by the applicant, Stephanie Tatiana Patricia Avery (Ms Avery), that her full legal name be used on all of the Commissioner's documents. 2 Ms Avery's request was made under s 48 of the Freedom of Information Act 1982 (Cth). That section provides as follows: Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person: (a) that is incomplete, incorrect, out of date or misleading; and (b) that has been used, is being used or is available for use by the agency or Minister for an administrative purpose; the person may apply to the agency or Minister for: (c) an amendment; or (d) an annotation; of the record of that information kept by the agency or Minister. 3 A request to amend records may be granted in accordance with s 50(1) of the Freedom of Information Act, which is in these terms: (1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that: (a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and (b) the information is incomplete, incorrect, out of date or misleading; and (c) the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose; the agency or Minister may amend the record of information. 4 In its decision of 30 July 2009 affirming the Commissioner's decision to refuse Ms Avery's request the Tribunal was satisfied that the Commissioner's documents constituted records of personal information and contained personal information about Ms Avery (her name) and had been or were available for use by the Australian Taxation Office within the meaning of ss 48 and 50(1) of the Freedom of Information Act. The Tribunal, however, was not satisfied that the Commissioner's documents were incomplete, incorrect or out of date. In this regard, the Tribunal accepted that a number of the documents extracted from the Commissioner's records did not show Ms Avery's full legal name, Stephanie Tatiana Patricia Avery. Instead, the documents showed abbreviated versions of Ms Avery's name, including "Stephanie T Avery", "Stephanie Avery", and "Stephanie Tatiana Avery". According to the Tribunal, the extent to which a statement might be regarded as incomplete or incorrect depends on the context. The Tribunal found that, in context, the Commissioner's documents were not incomplete or incorrect and had not been suggested to be out of date. Further, the Tribunal considered that the Commissioner's documents were not misleading when their potential use was considered in context. For these reasons the Tribunal (at [57]) was not satisfied that "the cumulative threshold requirements for amendment of a record laid down by ss 48 to 50" of the Freedom of Information Act were met. The Tribunal also indicated that, had the contrary conclusion been reached thereby enlivening the power in s 50, Ms Avery's request should nevertheless be refused on discretionary grounds (at [59]-[63]). 5 Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) permits a party to a proceeding before the Tribunal to appeal to the Federal Court on a question of law from any decision of the Tribunal in the proceeding. Ms Avery's appeal from the Tribunal's decision (by a second further amended notice of appeal filed on 20 April 2010) identifies three matters said to be questions of law. Those questions are as follows: (a) whether breach of rules of natural justice has occurred in connection of making the decision. (b) whether [the Tribunal] failed to observe procedures required by law to be observed. (c) whether [the Tribunal] to [sic] give adequate grounds for the decision where inadequacy of the decision can be described with reference to the provisions of sections 5(1)(f), 5(1)(j), 5(1)(e) and 5(2)(a), 5(2)(b), 5(1)(h) and 5(3)(b) of Administrative Decisions (Judicial Review) Act 1977. 6 Ms Avery filed written submissions in support of her appeal. These submissions, and the further oral submissions Ms Avery made during the hearing, may be summarised as follows: (1) Ms Avery's correct name is Stephanie Tatiana Patricia Avery. (2) When government departments, such as the Australian Taxation Office, use a different name Ms Avery has difficulty proving her identity. Identity fraud is a growing problem. Ms Avery wants to be known by her full legal name only. (3) The Australian Taxation Office's computer records show Ms Avery's name in an incomplete and incorrect manner, including as "Stephanie Avery" and "Stephanie T Avery". Ms Avery requested that her name be corrected on all Australian Taxation Office documents but the request was refused, leading to the application to the Tribunal for review. (4) As to the first question of law, the Tribunal failed to make directions about the applicable procedures as provided for in ss 33(1A) and 33(2A) of the Administrative Appeals Tribunal Act and the Administrative Appeals Tribunal General Practice Direction. The requirements of the General Practice Direction (citing s 33 of the Administrative Appeals Tribunal Act) were not observed (as there was no statement of issues, no second conference, no statement of facts and contentions, and no exchange of case lists). Further, the Commissioner gave no notice about cross-examination. Cross-examination was a new procedure for Ms Avery and she had no notice that she would be required to cross-examine the Commissioner's witness, David Allen. This was unfair and accordingly the Commissioner had not acted as a model litigant. Ms Avery was also concerned that, given the difficulty she experienced in settling the index to the appeal books for this appeal, all of the documents might not have reached the Tribunal. Confirming this concern was the fact that the Tribunal referred to "abbreviated" forms in its decision. The Tribunal also failed to comply with s 39 of the Administrative Appeals Tribunal Act as the Tribunal failed to direct Ms Avery to file submissions before the hearing and refused her application to make further submissions after the hearing, including refusing to allow her to rely on two additional documents identified as attachments B and C under cover of a letter dated 11 June 2008. The Commissioner objected to these documents and the Tribunal refused to allow Ms Avery to rely on them showing its lack of neutrality or bias. (5) As to the second question of law, Ms Avery repeated that the Tribunal had acted in breach of s 33 of the Administrative Appeals Tribunal Act by not applying its General Practice Direction. According to this submission the Tribunal failed to hold a directions hearing, did not direct Ms Avery about the procedures required to be followed, did not require written submissions or a statement of facts and contentions, did not require an agreed statement of facts, did not hold a second hearing conference, did not require hearing certificates to be lodged, and did not require the Commissioner to give Ms Avery a list of cases. Further, the Commissioner did not file a statement under s 37 of the Administrative Appeals Tribunal Act but only purportedly did so and did not provide all relevant documents. As such the Commissioner did not assist the Tribunal as required by s 33(1AA) of the Administrative Appeals Tribunal Act. Further, the decision could not be made and reasons for it could not be given by a person in the Australian Taxation Office's IT department. The IT department was only able to implement the policy made by others. The Tribunal also failed to comply with s 40(1C) of the Administrative Appeals Tribunal Act by not summoning a person on request. Also the Tribunal did not give directions to Ms Avery about further cross-examination on affidavits or statements. (6) As to the third question of law, the Tribunal has not complied with s 49(3) of the Administrative Appeals Tribunal Act as its decision was wholly based on Mr Allen's evidence. Mr Allen, however, was not the decision-maker and the evidence of Mr Allen was never given to the decision-maker. Mr Allen was a technical expert on computer programs but had nothing to do with and could not make the decision about how names should be presented on the computer system. The Commissioner did not give the Tribunal any policy about recording names on the computer system. Thus there is no evidence of the Australian Taxation Office's authority to record names in a way that departs from a person's full legal name. The computer records show different names for Ms Avery which cannot be justified. The Tribunal also accepted controversial evidence that use of a person's full legal name would be detrimental to a taxpayer's privacy and increase the risk of identity theft but there is no evidence for these claims and use of altered names might assist in concealing identities and criminal activities. Refusing to correct Ms Avery's name could be against the Australian Taxation Office's by-laws; but it was not possible for Ms Avery to adduce evidence as to any such by-laws because the Tribunal refused her summons. The Tribunal also did not take into account that her altered name caused Ms Avery a material disservice such as not being able to receive her refund cheque as the name on the refund was "Stephanie T Avery" which was incorrect. Nor did it take into account that her legal name is not active on the computer system of the Australian Taxation Office without manual intervention and is used for more than merely working purposes. It is unreasonable for the Australian Taxation Office not to use her legal name when the current computer system does not preclude its use. The current system has space for 38 characters which is enough for Ms Avery's correct name to be used. Concerns about the use of long names of trusts and the like were irrelevant as the Australian Taxation Office would have another template for these names. It would not be difficult for the Australian Taxation Office to correct Ms Avery's name. No re-programming of the system would be required. In any event the full benefits to Ms Avery from her correct name being used should be taken into account. The decision about the use of resources should be made by the correct decision-maker and not Mr Allen from the IT Department. DISCUSSION 7 For the reasons given below Ms Avery's submissions that the Tribunal erred in law must be rejected. 8 Section 33 of the Administrative Appeals Tribunal Act concerns the Tribunal's procedure. The section provides that "the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal" (s 33(1)(a)), the basic requirement being that "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" (s 33(1)(b)). Sections 33(1A) and 33(2A) provide the Tribunal with a discretion to hold a directions hearing and to make any such necessary directions as to the procedure to be followed in connection with a hearing. Contrary to Ms Avery's submissions, this discretion does not amount to an obligation upon the Tribunal to make any particular procedural directions. 9 The Tribunal's General Practice Direction, on which Ms Avery relied, was made under s 20(2) of the Administrative Appeals Tribunal Act. Under that section the President of the Tribunal may give directions as to the procedure of the Tribunal generally. The General Practice Direction, according to its own terms: …sets out the procedure to be adopted for all applications lodged in the Tribunal throughout Australia where the applicant is represented… 10 Ms Avery was not represented in the proceeding before the Tribunal. Accordingly, the General Practice Direction did not apply. Ms Avery said that s 33 of the Administrative Appeals Tribunal Act did not distinguish between represented and unrepresented applicants and there was no reason for such a distinction. However, this is beside the point. Ms Avery is claiming that the Tribunal breached the rules of natural justice by not applying to her the General Practice Direction. But, on its own terms, the General Practice Direction did not apply to her proceeding. Even if it did apply it would not assist her case on appeal. This is because the General Practice Direction also states that the Tribunal can vary the procedures set out in the General Practice Direction. Either way, nothing in the General Practice Direction can found an argument that a failure to apply all or any of its terms to Ms Avery's proceeding before the Tribunal resulted in a breach of the rules of natural justice. 11 Ms Avery's point about cross-examination also does not disclose any breach of the requirements of natural justice. The transcript shows that Mr Allen's affidavit was tendered. He was available to give evidence by telephone. The Tribunal asked Ms Avery if she wished to question Mr Allen. After some discussion Mr Allen gave evidence in chief explaining certain paragraphs in his affidavit. Ms Avery then cross-examined Mr Allen. She expressed surprise at the process and said she might need to go through the affidavit again to make sure she had no more questions. However, the evidence shows that Ms Avery was served with a copy of Mr Allen's affidavit on 18 March 2009. The Tribunal notified Ms Avery of the hearing date on 30 March 2009. The hearing took place before the Tribunal on 28 May 2009. In other words, Ms Avery must have been aware that the Commissioner intended to rely on Mr Allen's affidavit. The fact that Mr Allen gave evidence in chief at the hearing and was thereafter available for cross-examination could not have caused any material unfairness to Ms Avery. It was a matter for the Tribunal to control its own hearing procedures and the Tribunal did so by allowing evidence in chief and cross-examination in the ordinary course. This conclusion also means that Ms Avery's suggestion that the Commissioner did not act as a model litigant cannot be accepted. 12 Ms Avery's apparent difficulties in agreeing the index to the appeal book for this appeal are incapable of supporting any alleged legal error by the Tribunal. The Tribunal's references to "abbreviated" forms in its reasons for decision are to the various abbreviated forms of Ms Avery's name apparent in the Commissioner's documents. They do not show that documents did not reach the Tribunal. Ms Avery's concern in this regard is merely speculative. 13 Section 39(1) of the Administrative Appeals Tribunal Act provides that: Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents. 14 This section does not require the Tribunal to direct written submissions before a hearing. Nor does it require the Tribunal to allow a party to make further submissions or rely on further evidence after a hearing has been completed. The transcript shows that the Tribunal invited Ms Avery to explain her case, allowed her to cross-examine Mr Allen, allowed her to tender a document and invited her to respond to the Commissioner's submissions. Nothing in this course of events suggests any procedural unfairness to Ms Avery. 15 Ms Avery indicated throughout the hearing that she wished to tender a document which she could not locate. She described this as a copy of a screen showing a list of types of names. The transcript shows that in the context of Ms Avery's express wish to find and tender this document the Tribunal directed that any further evidence should be submitted by 11 June 2009. The formal record of direction of 28 May 2009 states that on or before 11 June 2009 Ms Avery was to give the Tribunal and Commissioner "a copy of the screen print-out of the ATO summary screen on which she wishes to rely". The Tribunal reserved its decision. On 5 June 2009 Ms Avery wrote to the Tribunal seeking to vary the directions by extending the time for compliance to 21 July 2009, as well as file written submissions and any alternative chronology by 20 August 2010, and attaching a summons to give evidence. This latter document was a summons to the Australian Taxation Office generally. On 11 June 2009 Ms Avery wrote to the Tribunal again attaching three documents, a computer screen print out, a refund notice with cheque and two private rulings. On 24 June 2009 the Tribunal granted Ms Avery leave to rely on attachment A to the letter of 11 June 2009 but otherwise refused her requests, noting that the Tribunal member's term expired on 31 July 2009 making a decision before that date necessary. 16 Contrary to Ms Avery's submissions nothing in this sequence of events discloses any breach of the rules of natural justice. The Tribunal was entitled to ensure that its formal direction reflected its obvious intention of permitting Ms Avery to tender the one further document she indicated she wished to rely on during the hearing. The transcript is thus not inconsistent with the formal record of direction. In context the Tribunal was not indicating to Ms Avery that she could file "any" evidence whatsoever. It was indicating that she had until 11 June 2009 to file the additional document she had identified but could not locate during the hearing. Nothing in s 39 of the Administrative Appeals Tribunal Act required the Tribunal to vary its direction as Ms Avery sought. The Tribunal also had no obligation to issue a summons merely because Ms Avery requested it. The Tribunal member was a presidential member of the Tribunal and thus empowered by s 40(1C) of the Administrative Appeals Tribunal Act to refuse any request to issue a summons. In any event, it must be remembered that Ms Avery's request was not made during the hearing. It was purported to be made after the hearing had been completed. The request also did not identify the person to whom the summons was supposed to be issued. Nothing in the Administrative Appeals Tribunal Act or the rules of natural justice obliged the Tribunal to accede to these requests by Ms Avery. Nor is the sequence of events in any way capable of supporting Ms Avery's contention that the Tribunal lacked neutrality or was biased against her. 17 Ms Avery's submissions about s 37 of the Administrative Appeals Tribunal Act are also misplaced. Section 37(1) is as follows: (1) Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of: (a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and (b) every other document or part of a document that is in the person's possession or under the person's control and is relevant to the review of the decision by the Tribunal. 18 Ms Avery's complaint about documents appears to stem from the fact that the Commissioner refused to allow her to inspect the Australian Taxation Office's computer system and, presumably, print out all documents she saw fit for the purpose of tender at the hearing. That does not alter the fact that the Commissioner produced the documents relevant to the decision. Ms Avery's complaint about the statement appears to be that the statement was not made by the person actually responsible for the decision. The relevant "person" within the meaning of s 37, however, is the Commissioner of Taxation. The Commissioner presumably acts through numerous officers who are delegates. The fact that Ms Avery is not satisfied that the statement the Commissioner filed under s 37 was not prepared by the actual decision-maker on behalf of the Commissioner is incapable of disclosing any legal error by the Tribunal in respect of the decision the Tribunal made. Similarly, Ms Avery's concern that the IT Department should act on instructions from others who make policy is incapable of supporting any alleged legal error by the Tribunal. The same conclusion applies to s 33(1AA) of the Administrative Appeals Tribunal Act ("In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding"). The relevant person within the meaning of this section is the Commissioner. Nothing in the available material suggests that the Commissioner did other than use his or her best endeavours to assist the Tribunal to make its decision. 19 Section 49(3) of the Administrative Appeals Tribunal Act relates to the Administrative Review Council and is irrelevant. Section 43(2B), however, does provide that "(w)here the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based". If this is the section Ms Avery had in mind then it is apparent that the Tribunal complied with the obligations imposed on it in this regard. The Tribunal gave its findings on material questions of fact and referred to the evidence on which it relied. The Tribunal was entitled to take into account Mr Allen's evidence whether or not it was before the original decision-maker. The Tribunal is required to decide the proceeding on the evidence before it and in so doing is not limited to the material before the original decision-maker. 20 Ms Avery's submissions about the policies (or lack of evidence of policies) of the Australian Taxation Office as to recording names is speculative and does not assist in identifying any error of law by the Tribunal. Ms Avery's submissions about the potential benefits and detriments of the use of a person's full name or an abbreviate version and her objection to the Tribunal's acceptance of Mr Allen's evidence concerns the merits of the decision and not its legality and thus is of no assistance to her case given that this appeal is limited to questions of law. The submissions about the Tribunal not taking certain matters into account and taking irrelevant matters into account, on analysis, is also a submission about the weight the Tribunal gave the evidence before it which cannot establish any error of law. The same conclusion applies to Ms Avery's submissions about the capacity of the current computer system to show her full name and the ease with which any required alterations could be accommodated. These are matters of merits and cannot support an appeal which is limited to questions of law. 21 In conclusion, the difficulty for Ms Avery is that this appeal can be brought from the Tribunal's decision only on questions of law. Ms Avery's submissions involve complaints about the procedures applied to the hearing of her review application in circumstances where none of the material discloses anything other than the Tribunal hearing and disposing of a proceeding in the ordinary course and in accordance with the obligation imposed on it by the Administrative Appeals Tribunal Act. Insofar as her submissions relate to the substance of the Tribunal's decision Ms Avery's concerns relate to maters of merit and not questions of law. The appeal papers (including the supplementary appeal book on which Ms Avery relied) do not disclose any question of law which, if answered in Ms Avery's favour, would affect the validity of the Tribunal's decision. 22 For these reasons the appeal must be dismissed. The usual order as to costs should also be made. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 17 June 2010