Federal Court (Full Court). Is the Minister's compliance with the model litigant obligations a constraint on the exercise by the Tribunal of its powers? Can a change to a foreshadowed hearing procedure "give rise to procedural unfairness where the affected person does not have the chance to object to the change"?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can it be said that the Tribunal's obligation under s 39(1) of the AAT Act, to "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", "reflects the position at common law and is no higher than that obligation"?
Question 2: Is the obligation under s 39(1) of the AAT Act to provide a reasonable opportunity, “not necessarily an optimal one”?
Question 3: May the Tribunal’s discharge of its obligation under s 39(1) to provide a reasonable opportunity "require it in certain circumstances to be proactive, to be flexible and to actively consider the circumstances of a review applicant"?
Question 4: Is the Minister's compliance with the model litigant obligations a constraint on the exercise by the Tribunal of its powers?
Question 5: Can a change to a foreshadowed hearing procedure "give rise to procedural unfairness where the affected person does not have the chance to object to the change"?
Question 6: Is it "generally ... insufficient for applicants to show no more than a medical condition may have deprived them of the ability to put their cast to best advantage"?
Question 7: Can it be said that, "generally speaking, the natural justice hearing rule (the right to procedural fairness), like the bias rule, can be waived", even if a party is not represented?
Question 8: Absent fraud, is an applicant before the Tribunal bound by the conduct of their lawyers?
Question 9: Can it be said that "silence can amount to a waiver of the requirements of procedural fairness, although whether it will do so may depend on the forensic circumstances"?
Question 10: Can it be said that "both the tribunal and this court are entitled to assume that a party’s legal representatives are aware of their client’s basic rights and will seek to enforce them when they see fit"?
Question 11: Can the insistence over an interpreter’s request that the interpreter interpret fragments of sentences before being given the complete sentence give rise to a misunderstanding?
The FCAFC answered those questions as follows: