Aunela and Telstra Corporation Ltd

[2007] AATA 1392

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1392

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2006/144

GENERAL ADMINISTRATIVE DIVISION		)
Re		ERIC AUNELA

Applicant

And   TELSTRA CORPORATION LTD

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Date4 June 2007

PlaceCanberra

Direction

1. Pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 the Tribunal directs that until further direction disclosure of the contents of the video, the report relating to the video and the two medical reports referring to the video being documents filed by the Respondent in the Tribunal on 26 February 2007 is restricted to the Respondent, its legal advisers and Members of the Tribunal.

2. Pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 the Tribunal directs that until further direction or the expiration of 14 days from the date of this direction, whichever first occurs, disclosure of these Directions and these Reasons is restricted to the Respondent, its legal advisers and the Members and staff of the Tribunal.

3.      The Respondent has liberty to apply for an extension of the fourteen day period referred to in the preceding Direction.

..................................................

J.W. Constance. Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE- Disclosure of tribunal documents- Video film evidence alleged to rebut bona fides of Applicant’s claim- application for confidentiality order to not disclose existence of video to Applicant before cross-examination at hearing- whether to be granted

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 35, 37

Australian Postal Commission v Hayes and Another (1989) 23 FCR 320

Australian Postal Corporation v Bessey (2001) 32 AAR 508

Re Stoiche and Telstra Corporation Ltd (1996) 40 ALD 369

Re Scott and Commissioner for Superannuation (1986) 9 ALD 491

Re Taxation Appeals NT94/281-291 (1995) 21 AAR 275

Khan (Avranzgeb) v Armaguard Ltd[1994] 1 W.L.R 1204

Libby-Mills v. Commissioner Of Police For The Metropolis [1995] P.I.Q.R 324

Re Queensland Mines Ltd and Export Development Grants Board (1985) 7 ALD 357

REASONS FOR DECISION

J.W. Constance, Senior Member

4 June 2007

INTRODUCTION

1.Telstra Corporation Ltd has applied for a direction which will have the effect of preventing Mr Aunela becoming aware of the existence of video film of his undertaking various activities.  Telstra is seeking that such a direction remain in effect until Mr Aunela has been cross-examined at the hearing of his application for a resumption of compensation under the Safety, Rehabilitation and Compensation Act 1988.

BACKGROUND

2.The chronology of relevant events is as follows:

·19 April 1993: Mr Aunela suffered an injury at work for which Telstra paid him ongoing compensation;

·16 March 2006: Telstra decided that as at that time Mr Aunela no longer suffered from the effects of the injury and ceased to pay compensation to Mr Aunela;

·1 June 2006: Telstra affirmed the decision of 16 March 2006;

·16 June 2006: Mr Aunela applied to the Tribunal for a review of Telstra’s decision;

·17 July 2006: Telstra lodged with the Tribunal documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1988 (Cth);

·26 February 2007: Telstra lodged further documents pursuant to section 37 being a surveillance film showing Mr Aunela and a report and two medical reports referring to that film; the film was taken in October 2006;

·there have been two preliminary conferences in these proceedings but a conciliation conference has not yet been held.

THE APPLICATION BEING CONSIDERED

3.Telstra has applied for a direction “preventing disclosure of this material to the Applicant until he has provided his evidence-in-chief at a hearing.”  This direction is sought pursuant to subsection 35(2)(b) of the Act and refers to the video and associated reports.

4.Section 35 provides in part:

(1)Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.

(2)Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order…

(b)  give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and…

(3)   In considering:

(a)  whether the hearing of a proceeding should be held in private; or

(b)  whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;

the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.

5.So as not to render the application ineffective should Telstra succeed in its argument I gave Telstra the opportunity to put its case in an ex parte hearing held in private.  It must be clearly understood that I have made no assessment of, nor have I made any assumptions relating to, the truthfulness of claims made by Mr Aunela.  Any reference to his credibility in these reasons is made solely for the purposes of considering the argument put by Telstra.

ARGUMENT BY TELSTRA

6.In support of its application Telstra relied upon the decisions of the Federal Court in Australian Postal Commission v Hayes and Another (1989) 23 FCR 320 and Australian Postal Corporation v Bessey (2001) 32 AAR 508. It was argued that these cases are authority for the proposition that if Mr Aunela became aware of the existence of these documents Telstra would be denied procedural fairness as it would be denied the opportunity to conduct effective cross-examination of Mr Aunela on the major issue of his credibility.

7.Telstra’s argument for the application of these decisions in this case can be summarised as follows;

·Mr Aunela’s alleged disabilities arising from the initial injury cannot be established by medical examination and determination of the extent of his incapacity will largely depend upon his acceptance as a truthful witness;

·the surveillance of Mr Aunela provides objective evidence which challenges the existence of the claimed condition and the extent of the claimed disability;

·if Mr Aunela becomes aware of the existence of the documents he will be “put on guard” and may alter his evidence accordingly, thus denying Telstra a fair opportunity to cross-examine him;

·even if Mr Aunela became aware of the existence of a confidentiality order without being made aware of the particular  documents to which it applied, Mr Aunela or his legal representatives would be likely to draw the conclusion that the documents included surveillance material favourable to Telstra;

·if Mr Aunela is a truthful witness disclosure of the evidence during cross-examination would not cause unfair prejudice to him;

·the giving of a direction which discloses the existence of surveillance material may discourage decision makers from providing that material to the Tribunal prior to the hearing.

ISSUES FOR DETERMINATION

8.The first question for decision in this application is whether Mr Aunela should be made aware of the existence of the video and the related documents.  If so, a further question arises as to whether Mr Aunela should be able to inspect the documents at this stage of the proceedings.

REASONING

9.In Australian Postal Commission v Hayes, the issue before the Court was whether the Applicant should be able to view the surveillance film prior to completing her evidence-in-chief, her representatives having already become aware of its existence.  The Court did not deal with the question of when an applicant, who is unaware of the existence of a surveillance document, should be made aware of its existence.  However the Court did decide that the Applicant was not entitled to view the film before she completed her evidence-in-chief.  The Court expressed its reasoning as follows:

“In a case where there is a dispute as to the existence of a physical disability, being a disability whose existence or otherwise cannot be established by independent objective evidence in relation to which the acceptance or rejection of the claimants account of his/her symptoms is likely to be critical, counsel contended the right to cross-examine effectively must include the right to test the credit of the claimant………. If, in such a case, the claimant has seen the film before he or she has become committed to an account of the disabilities, the claimant may tailor his or her evidence so as to accommodate the film, leaving false evidence unexposed and uncontradicted.

I think that the above submission must be accepted.” [1]

[1] At pp. 326-327.

It was not suggested that the respondent’s ability to effectively cross-examine the applicant had been compromised by the applicant being aware of the existence of the film. 

10.It is important to note that the Court also had this to say:

“ The overriding obligation of the Tribunal is to mould its procedures to the demands of fairness……….There is everything to be said, in the vast majority of cases, for insistence upon the full and early disclosure of all material documents.  But, in an exceptional case in which a party can demonstrate that the temporary suppression of a document is necessary for the proper presentation of its case, the ideal of openness must give way to the Tribunal's statutory obligation to give to all parties a reasonable opportunity to present their cases." [2]

[2] At pp.328-329.

11.In Australian Postal Corporation v Bessey, the Federal Court considered the issue of whether a surveillance film was admissible in evidence in a situation in which it had not been shown to an applicant until part way through his cross-examination and the existence of which was not known to the applicant prior to that time.  The Court referred to the decision in Australian Postal Commission v Hayes together with other authorities and applied the principles in those decisions to conclude “ absent special circumstances, Australia Post was denied natural justice or procedural fairness at least in not being able to show the video to the respondent in cross-examination and ask questions based upon that." [3]  Again the Court did not deal with the question of whether it was appropriate that the existence of the video had not previously been disclosed to the applicant, although it did not comment adversely on this fact.

[3] At p.512.

12.At the conclusion of the judgment on page 512, the Court added:

“I am not dealing here with either the giving of a general practice direction by the president of the Tribunal or with the giving of express directions as to procedure in advance of the hearing of a particular case.  Those situations are distinct from the present and can be considered when and if necessary."

13.The question of whether the existence of a surveillance video should be disclosed to an applicant before cross-examination was before the Tribunal in Re Stoiche and Telstra Corporation Ltd (1996) 40 ALD 369, a decision of Deputy President Barnett. Apart from an undertaking given by the party in possession of the video the relevant facts are indistinguishable from the matter before me. In Re Stoiche the Tribunal made the following direction:

“WHEREAS the respondent has undertaken that any additional costs to the applicant caused by the late disclosure of the video film and associated reports would be borne by the respondent, the tribunal directs that, the video film of the applicant and associated reports obtained by the respondent Solicitor not be released to the applicant until the respondent has had the opportunity to cross-examine the applicant or until further order of the Tribunal." [4]

[4] At p.372.

14.Although not stated in the direction it is clear from the reasons for the decision that the Tribunal did not require that the existence of the documents be disclosed to the applicant prior to cross-examination.

15.Although Telstra was aware of the undertaking given in Re Stoiche it did not offer to give a similar undertaking in this matter.  Whilst I regard the giving of such an undertaking as a relevant factor to be considered, the failure of Telstra to give a similar undertaking in this matter has not affected the directions I propose to give.

16.It is important that, as far as possible, the Tribunal be consistent in its decisions: Re Scott and Commissioner for Superannuation (1986) 9 ALD 491 at 499. For this reason I have given very careful consideration to Re Stoiche, particularly noting that it is a decision of a former Deputy President of the Tribunal.  However in Re Scott the Tribunal specifically referred to changes to the legislation and/or new decisions of the Federal Court as being reasons for the Tribunal not to follow one of its earlier decisions

17.Since the decision in Re Stoiche the Federal Court has indicated that express directions in a particular case may remove it from the application of the principle of non-disclosure.[5] Unless an applicant is aware of the existence of a surveillance video it is unlikely that he or she will seek any directions relating to it.  This suggests that if the possibility of directions such as those envisaged by the Federal Court is to have any application in reality, the applicant, in this case Mr Aunela, should be informed of the making of a confidentiality order and the general description of the documents to which it relates.

[5] Australian Postal Corporation v Bessey (referred to in paragraph 11 of this judgement).

18.Also there have been changes to the legislation since 1995 which support the making of a direction which will have the effect of informing Mr Aunela of the existence of the video and reports. In 2005 section 2A was inserted in the Act. It reads:

“ In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick."

At the same time the Tribunal was given increased powers to engage in alternative dispute resolution processes designed to assist parties to resolve their differences at an early stage, without the delay and cost associated with proceeding to a final hearing[6].

[6] See Division 3 – Alternative dispute resolution processes.

19.Further, the Tribunal recently issued a new Guide to the Workers’ Compensation Jurisdiction effective from 30 April 2007. Section 4.3 of that Guide provides in part:

“Respondents must also seek leave of the Tribunal at the hearing to rely on any material that has not been disclosed to the Tribunal and the other party prior to the hearing.  This includes video surveillance evidence or other material to be used in the cross-examination of a witness."

20.The qualification expressed by the Court in Australian Postal Corporation v Bessey, the amendments to the Act and the provisions of the  new Guide cause me to conclude that Mr Aunela should be made aware of the existence of the surveillance video and reports.  This will maximise the chances of a resolution of this matter as economically and quickly as possible and will allow the proper consideration of appropriate use of one or more of the alternative dispute resolution processes available to the parties.  It would be most undesirable that this matter be allowed to proceed through the extensive pre-hearing processes (including a conciliation conference) with Mr Aunela being unaware of the existence of potential evidence against him, which, on the argument of Telstra, may be critical in bringing the Tribunal to the conclusion that the decision under review should be affirmed.  To do otherwise may be to cause unnecessary and substantial costs to be incurred by both parties, to delay the resolution of the application by several months and to increase the resources the Tribunal will need to allocate to resolving the dispute

21.I also note the following in a decision of Matthews J, as President of this Tribunal:

“This tribunal is bound by the decision in Hayes. However, I consider that that case must be seen as the high point for a party who is seeking to have otherwise relevant documents withheld from disclosure to another party. Hayes was decided in 1989. The intervening years have seen increased openness in the litigation process, together with a move away from the traditionally adversarial “ambush” method of conducting trials. This in my view is to be applauded. Little is to be gained in my experience by adopting confrontationist approach to litigation. This approach very frequently leads to an outcome which is welcome to no-one, at least to none of the parties. On the other hand, openness and cooperation can often serve to produce agreement where agreement had been thought to be impossible, and at the very least to isolate and focus upon the major issues in a case, thus containing what can sometimes be prohibitively expensive both in human and financial terms. This “cards on the table” approach has recently led the English courts to conclude that, in all but very rare personal injury cases, video films should be disclosed to plaintiffs. (Khan (Avrangzeb) v Armaguard Ltd[1994] 1 W.L.R 1204)[7]”

Deputy President Barnett distinguished this decision but the principles stated by Matthews J are applicable to the matter before me.  In a decision of the English Court of Appeal, which followed the decision of Khan cited by Matthews J, Hoffman L.J. had this to say:

‘Attacking the credit of a witness by dramatic confrontation in the witness box is so much part of the English forensic tradition, so hallowed in history and fiction, that lawyers are naturally reluctant to be deprived of the chance to ambush the opposing party with some devastating piece of cross-examination. But times have changed…… ’ [8]

[7] Re Taxation Appeals NT94/281-291 (1995) 21 AAR 275 at 280 per Matthews J.

[8] Libby-Mills v. Commissioner Of Police For The Metropolis [1995] P.I.Q.R 324 at 328.

22.A decision that Mr Aunela be informed of the existence of the documents is consistent with the principle in section 39 of the Act (that every party have a reasonable opportunity to inspect any documents to which the Tribunal proposes to have regard in reaching a decision) and in section 35 (that documents lodged with the Tribunal should be made available to all parties). These principles are both subject to the Tribunal directing otherwise but together they form the starting point from which the Tribunal should proceed.

23.Having read the report of the material depicted in the video and the medical reports I am satisfied that knowledge of the existence of the video and the reports will not permit Mr Aunela to tailor his evidence in any way, should he feel the need to do so. Knowledge of the existence of the documents alone will not provide Mr Aunela with the means of knowing what the documents contain.  I repeat that I have not made any finding or assumption that Mr Aunela would have any need to change his evidence in this case and that discussions as to this possibility are purely hypothetical for the purposes of consideration of Telstra’s arguments.

24.In this case Telstra can be afforded procedural fairness by a direction that until further direction the contents of the documents not be disclosed to Mr Aunela.  This will allow the Tribunal to give further consideration as to the appropriate directions to be made as the matter proceeds.  Mr Aunela may apply for a direction that the contents be disclosed to him.  If he does so the Tribunal will need to consider the appropriate course to ensure procedural fairness is accorded to both parties.  This will include ensuring that Telstra maintains its ability to effectively cross-examine Mr Aunela at a hearing in accordance with the principles set out by the Federal Court in Australian Postal Corporation v Hayes and Australian Postal Corporation v Bessey.  What may be necessary to ensure procedural fairness will need to be assessed in view of the status of the matter at the time.  Without making any decision on the issue and by way of example only, in this case it may be that it can be ensured by directing that Mr Aunela be entitled to inspect the contents of the documents after he has filed a detailed statement as to the nature of the incapacity which he claims he suffers.  Such a procedure would be consistent with the approach of the Tribunal as outlined in the Guide to the Workers’ Compensation Jurisdiction to which I have referred.  Under the Guide the Tribunal will make greater use of directions specific to each matter rather than relying on a General Practice Direction.

25.I do not accept as valid the argument that disclosure of the existence of surveillance material may deter decision makers from providing such material to the Tribunal in advance of the hearing. Section 37 of the Act imposes an obligation on the decision maker to lodge all documents in the person’s possession or control which are “relevant to the review of the decision by the Tribunal.”  In reality this obligation is often met by the decision maker in reliance upon the relevant agency or Department with the assistance of solicitors.  All involved in the process should ensure that the Act is complied with in this regard.

26.Normally the Tribunal’s reasons for decision are published without restriction.  However there may be situations in which some restriction on the extent of publication for a limited time is proper: Re Queensland Mines Ltd and Export Development Grants Board (1985) 7 ALD 357 at 378. In this case I consider it is proper to limit the publication of these reasons for a period to allow Telstra the opportunity to consider any further action it may wish to take before Mr Aunela is made aware of them.

DIRECTION

27.Pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 the Tribunal directs that until further direction disclosure of the contents of the video, the report relating to the video and the two medical reports referring to the video being documents filed by the Respondent in the Tribunal on 26 February 2007 is restricted to the Respondent, its legal advisers and Members of the Tribunal.

28.Pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 the Tribunal directs that until further direction or the expiration of 14 days from the date of this direction, whichever first occurs, disclosure of these Directions and these Reasons is restricted to the Respondent, its legal advisers and the Members and staff of the Tribunal.

29.The Respondent has liberty to apply for an extension of the fourteen day period referred to in the preceding Direction.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.

Signed:          .....................................................................................

Geoff Foley, Associate

Date of Hearing  24 May 2007
Date of Decision  4 June 2007
Solicitor for the Respondent         Sparke Helmore