Federal Court: Before appeal proceedings at FCA finalised, Callinan AC prepared a Report on the AAT, which included the following passage: "[the MRD Legal Services Section of the AAT has] prepared from time to time “templates” of determinations. I am told that at one stage, this section either volunteered to, or otherwise sought, and did in fact, “check” decisions by Members, on occasions requesting, if not almost insisting, upon changes beyond proofing changes". Appellants sought leave to issue a subpoena to MRD Legal Services Section to produce all documents exchanged with Member which could constitute legal advice. In support of leave application, Appellants' solicitor claimed Member's Linkedin profile revealed Member was legally qualified but "did not have a background in legal practice", thus supporting inference Member received legal advice. If Member received legal advice, did that vitiate AAT's decision?
Some of the questions to the FCA were as follows:
Question 1: Did the documents sought by the Appellants "have potential relevance to the pleadings as they stand"?
Question 2: Did the Appellants identify "with any clarity any new ground of appeal from the decision of the Federal Circuit Court that could be raised referable to the Tribunal member receiving legal advice or a template for reasons"?
Question 3: Did the Appellants "put forward any evidence that the Tribunal member did in fact receive legal advice from the MRD Legal Services Section"?
Question 4: Does "the professional background of a Tribunal Member [support] an inference that he either required or received legal advice or assistance"?
Question 5: Does "a LinkedIn page alone necessarily reflects all of the Members’ professional training, education and experience"?
Background: A Registrar of the Federal Circuit Court (FCCA) had issued the following Order:
2. By 4.00pm on 16 November 2017 the first respondent shall file and serve a bundle of relevant documents (green book) in an electronic form and for that purpose, the document shall:
(a) be in a portable document format (PDF)
(b) be capable of being searchable for specified text;
(c) have an index and shall be paginated;
(d) have each entry in the index bookmarked; and
(e) be set so that when opened:
(i) it shall display a 100% zoom; and
(ii) the bookmarks menu shall be displayed.
Question: Was an audio recording a “document” within the meaning of the Registrar's Orders?
Question 7: If the Appellants provided unparticularised grounds of review to the FCCA and if it is "the practice of the [FCCA] that the parties exchange detailed written submissions", was it incumbent on the Minister to request particularisation of those grounds?
The FCA answered those questions as follows:
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