Transcript Appeal Proofing Decisions - COAT | Council of Australasian

Appeal Proofing Decisions
Senior Member Anne Britton
www.aat.gov.au
Have I……..
• Correctly named and identified each party
• Made a decision within power
• Identified all relevant factual and legal issues
in dispute
• Identified the correct statutory provision
• Addressed each element of the relevant
statutory provisions
• Applied the correct onus and standard of
proof (if any)
• Made findings about any relevant and
consequential matter in dispute
• Included a “because” clause answering any
“why” question
• Addressed all significant and consequential
arguments made by the losing party
• Made orders within power
• Given the parties an opportunity to make
submissions if making a costs order
• Not relied on particular kinds of evidence
• Not made a stray, inconsistent statement
1. Correctly named and
identified each party
2. Made a decision within power
3. Identified all relevant factual
and legal issues in dispute
4. Identified the correct statutory
provision
Is it correct in terms of time?
Are any regulations or rules relevant?
If paraphrased have you “glossed up” the
provision?
5. Addressed each element of
the relevant provision
I … it is a salutary discipline for every decisionmaker to refer to the terms of the relevant
statutory provisions and to identify each element
of the statutory cause of action. Had the
Tribunal in this case set out or paraphrased in
its reasons for decision the terms of s 16 and s
19 [of the Safety, Rehabilitation and
Compensation Act 1988 (Cth)] it is unlikely that
it would have overlooked their critical elements.
Australian Postal CorporationvBarry [2006] FCA 1751at [25] per Branson J
6. Applied the correct onus and
standard of proof (if any)
7. Made findings about any
relevant and consequential
factual matter in dispute
8. Included a “because” clause
Downes J: A “because” clause answering
the question “why” must be included.
Why did I decide —
• The person is in need of a guardianship order:
Guardianship Act 1987
• The offending conduct was “because of” the
claimant’s race
• That the correct and preferable decision is …
• One person’s account/expert’s opinion is
preferred over another
• Mr Smith’s evidence was unreliable
Avoid:
“Dr Bloggs said X. Dr Smith said Y. I prefer
the opinion of Dr Bloggs”
“Having regard to all relevant evidence and
the submissions made by the parties the
correct and preferable decisions is…”
[The Tribunal’s reasons for decision] …. fall on
the wrong side of the line: they do not show an
active intellectual engagement with the question
how the factor or consideration of general
deterrence was taken into account, and
therefore whether it was taken into account at
all, in the exercise of a discretion to cancel. Mr
Lafu would be left to guess what role, if any, the
issue of general deterrence had played. …
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140
at [49]
…
9. Addressed all significant and
consequential arguments
made by losing party …
… but not every irrelevant and
hopeless point.
Many of the frequently repeated submissions were
manifestly untenable, and many were manifestly
misconceived or lacking in any substance. To address
every one of the matters purported to be raised in the
submissions of the appellant (written and oral) would be
well nigh impossible. It is also unnecessary, because
while we have considered all that the appellant put in his
submissions there is no need to discuss arguments which
are hopeless or inconsequential to the result in the
proceedings. … we have confined these reasons to those
issues with which we understand the appellant has
principally concerned himself and which we see as of
some significance or consequence.
Bar-Mordecai v Rotman &Ors [2000] NSWCA 123 at [212]
10. Made orders within power?
• Are they within power?
• Are they clear and concise?
• Should the parties be given an opportunity
to comment on the form of orders?
11. Given parties an opportunity
to make submissions if a
costs order is to be made
12. Relied on:
• Evidence that was not admitted?
• Knowledge that the parties have not an
opportunity to comment on that is not
common knowledge?
• A decision handed down after the hearing?
13. Made any stray inconsistent
statements