Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia

ORDERS

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The respondent pay the appellant’s costs.

3. The matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be heard according to law.

Note: Order 3 was inserted on 6 March 2023 pursuant to rule 39.05(h) of the Federal Court Rules 2011 (Cth).

REASONS FOR JUDGMENT

THE COURT:

1. The appellant appeals from orders made by the primary judge dismissing its “appeal” under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act): Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2022] FCA 606 (“J”). It is unnecessary to repeat the factual background. It is clearly and thoroughly set out by the primary judge in his reasons.

2. The appellant relied on nine grounds of appeal before this court. At the centre of its case was a contention that the Administrative Appeals Tribunal failed properly to exercise its jurisdiction to conduct a “review” of the kind it was required to conduct. It was common ground that, if this contention was made out, the matter would need to be remitted to the Tribunal to be heard according to law and it would be unnecessary to decide the remaining issues in the appeal.

3. The contention that the Tribunal failed properly to exercise its jurisdiction was based on the fact that the Tribunal’s reasons reproduced, without attribution and almost entirely verbatim, 64 of the 67 paragraphs of the respondent’s submissions as its own reasons. The reasons comprised 100 paragraphs.

4. The primary judge recorded at [99] to [101] (emphasis in original):

[99] … [O]f the 100 paragraphs, about 65 paragraphs and their footnotes comprise unattributed copying of the respondent’s written submissions. Those paragraphs that were not copied from the respondent’s written submissions included –

(a) [3] to [20] setting out uncontroversial matters such as the identification of the applicant’s registered activities, and the relevant statutory provisions;

(b) a framing of the issues at [47];

(c) identification of the witnesses who gave evidence at [50];

(d) summaries of the applicant’s submissions at [52] to [59], including observations by the Tribunal at [52], [53], [57] and [59] in response to the submissions that were put;

(e) references to and summary of the applicant’s submissions in reply at [60] and [61];

(f) identification of the Tribunal’s conclusion at [62]; and

(g) a comment about the oral testimony of the applicant’s witnesses at [70].

[100] Otherwise, the Tribunal’s consideration of the evidence comprising [63] to [69], and [71] to [97] were copied essentially verbatim from the respondent’s submissions, although as I have stated there was some re-ordering of things. The copying included the footnotes in the respondent’s submissions, most of which were reproduced as footnotes in the Tribunal’s statement of reasons. The footnotes included detailed references to authorities, and to the documentary evidence and transcript. The copying extended to the reproduction of the following typographical errors that were contained in the respondent’s written submissions –

(a) at [37], which was copied from [22] of the respondent’s submissions, “field” was misspelled as “filed” in a quotation from [2.13] of the explanatory memorandum to the Tax Laws Amendment (Research and Development) Bill 2010 (Cth); and

(b) at [71], which was copied from [39] of the respondent’s submissions, “ZAP contact mobile app”, which was referred to on a number of occasions in the evidence before the Tribunal, was misspelled as “ZAP contract mobile app” (underlining added).

[101] However, balanced against the above are other typographical errors in the respondent’s submissions that the Tribunal did not adopt –

(a) footnotes (62), (76), and (89) of the Tribunal’s reasons contain corrected references to documents before the Tribunal that were cited in footnotes (51), (65), and (78) of the respondent’s submissions; and

(b) at [81], the Tribunal corrected the date on which the report of an expert, Dr Kerr, had been filed with the Tribunal.

5. The primary judge stated at [133] (emphasis in original):

In my view, it was not ideal for the Tribunal to express its reasons for decision by reproducing mostly verbatim the respondent’s submissions to it, without acknowledging expressly that this was the course that it took. Although it might be apparent what was done, for the Tribunal to produce reasons in this way without attribution is liable to fuel perceptions on the part of applicants for review and others that the Tribunal has not given independent consideration to the matters under review, and does little to meet the exhortation in s 2A(d) of the AAT Act that the Tribunal is to pursue a mechanism of review that promotes public trust and confidence in its decision-making. However, these observations do not address whether there were any legal consequences of the course that the Tribunal took, to which I will now turn.

6. The primary judge’s observations should be emphasised. The problem with copying one side’s submissions verbatim, and not revealing any real engagement with the case put by the losing party, is that the losing party is left with a real and often justified sense that the party has not been heard and that the party was not afforded the review which the party had a right to receive. It leaves parties before the Tribunal with a sense that they have been dealt with unjustly and unfairly. Irrespective of the legal consequence of such copying, it should not happen. It is damaging to public confidence in the Tribunal.

7. The primary judge considered various cases in which similar issues had arisen. At [143], his Honour referred to the decision of MZZZW v Minister for...