Buttigieg v Comcare

[2017] AATA 1002

Buttigieg and Comcare [2017] AATA 1002 (27 June 2017)

Division: General Division

File Number(s):      2016/1779

Re:Neil Buttigieg

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date:27 June 2017  

Place:Melbourne

The Tribunal decides:

1. to adjourn further consideration of the respondent’s application for an order under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act) to enable the respondent to consider its position in light of these reasons; and

2. in relation to the ongoing obligation on decision-makers to provide material documents under s 38AA of the AAT Act that:

   (a)  the provision does not preclude the operation of the substantive rules of law of legal professional privilege and public interest immunity; and

   (b) any application for an order of confidentiality under s 35 of the AAT Act concerning lodgement of documents, including surveillance material, under s 38AA is to be made known to any other party to the proceeding.

.........[sgd]............................................................

Deputy President S A Forgie

Catchwords

PRACTICE AND PROCEDURE – whether application for confidentiality order to be disclosed to other party – s 38AA decision-maker has an ongoing requirement to lodge documents relevant to the review – document includes surveillance – legal professional privilege and public interest immunity still apply - the application itself is to be disclosed to other party or parties but not the document over which the confidentiality is sought – matter adjourned

Legislation

Acts Interpretation Act 1901 ss 2, 2B

Administrative Appeals Tribunal Act 1975 ss 2A, 18B, 25, 35, 37, 38AA

Administrative Appeals Tribunal Amendment Act 1977 s 23

Administrative Appeals Tribunal Amendment Act 2005 s 3 and Sch 1 and item 124

Crimes Act 1914 s 10

Freedom of Information Act 1982 ss 54S, 55, 56

Law and Justice Legislation Amendment Act (No.1) 1995 s 3 and Sch 2 and item19

Seafarers Rehabilitation and Compensation Act 1992 s 79

Tribunals Amalgamation Act 2015 s 3 and Schedule 1, cl 87 and cll 73-86

Law and Justice Legislation Amendment Bill (No. 3) 1994

Cases

Australian Postal Corporation v Bessey [2001] FCA 266; 32 AAR 508

Australian Postal Commission v Hayes [1989] FCA 176; (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135; 10 AAR 303

Baker v Campbell (1983) 153 CLR 52

Bienstein v Attorney-General [2009] FCA 1501

Boyes v Colins [2000] WASCA 344; 23 WAR 123

Brown v Metro Meat International Ltd [2000] WASCA 123

Collins v Military Rehabilitation & Compensation Commission [2005] FCA 1862; 147 FCR 570; 225 ALR 558; 89 ALD 51

Commissioner of Police, New South Wales v Guo [2016] FCAFC 62

Commissioner of the Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501; 141 ALR 545

Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409

Grant v Downs (1976) 135 CLR 674; 11 ALR 577

Jacobson v Rogers [1995] HCA 6; (1995) 182 CLR 562

Kingham v Cole [2002] FCA 45; 118 FCR 289

Morton v Colonial Mutual Life Assurance Society Limited [2013] FCA 681

Ramsay v Australian Postal Commission [2005] FCA 640; (2005) 147 FCR 39

Re Stoiche and Telstra Corporation Ltd [1995] AATA 306; (1995) 40 ALD 369

Re Tuimaseve and Minister for Immigration and Border Protection [2017] AATA 413

Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673

Secondary Materials

Advocacy; David Ross QC, 2^nd edition, Cambridge University Press, 2007

General Practice Direction

Lodgement of Documents under Sections 37 and 38AA of the AAT Act

The Art of Cross Examination; JW Smyth QC, Bar News, Autumn 1988

REASONS FOR DECISION

Deputy President S A Forgie

1. The applicant, Mr Buttigieg, has applied for review of a decision made by the respondent, Comcare. The respondent has surveillance footage, investigation reports and a medical report which it wishes to lodge in the Tribunal but whose contents and whose existence it wishes to keep from the applicant unless and until it chooses to reveal it in the course of cross-examination. Consequently, it applied for an order under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act) that its contents not be disclosed to the applicant and that the application itself not be disclosed, to the applicant. Its application brings into play, the meaning of s 38AA of the AAT Act. The effect of that provision is to place an ongoing obligation on the decision-maker to lodge and serve copies of documents that come into its possession and that are relevant to the review of the decision and to do so even after it has complied with its obligation under s 37.

1. On my understanding of s 38AA, it must be read as being applicable only to those documents in respect of which a claim for privilege or public interest has not been made or, if it could be made, will not be made. Therefore, the surveillance footage will only have to be lodged and served if it is not a document in respect of which a claim for legal professional privilege has not been made or will not be made at a later time. As I do not know what the respondent intends, I have adjourned consideration of its application to enable it to consider its position.

1. In view of the nature of the respondent’s application, which raised questions as to whether the applicant should be advised of the existence of the surveillance footage at this stage of the proceedings, I heard the respondent’s application on an ex parte basis in the absence of the applicant and his representatives.  I made an order suppressing not only the identification of the applicant and the respondent as well as the file number and identity of the respondent’s counsel.  Due to an unfortunate error within the Melbourne Registry, the applicant’s solicitors were told that I was about to give my decision regarding the respondent’s application on the subject of surveillance footage.  After another ex parte hearing with the respondent’s solicitors, I have set aside any confidentiality order relating to the application and my reasons. Surveillance footage has not been lodged at this stage. If the respondent chooses to rely on my interpretation and not to produce the surveillance footage under s 38AA, it will need to make good any claim that it is subject to legal professional privilege. In practical terms, that means that I do not need to consider the respondent’s application for an order under s 35 and adjourn further consideration.

THE SUBMISSIONS

1. On behalf of the respondent, Mr Woulfe of counsel submitted that I had the power to make an order under s 35 so that not only would the surveillance footage, investigation reports and a medical report be kept from the applicant but so too would any other document which is held by the Tribunal and which relates to the existence of that material. He points out that the surveillance footage and surveillance and medical reports came into existence after the applicant had made an application to the Tribunal. Some say that it is better to know all of the material when preparing a case but s 39 of the AAT Act ensures that each and every party has a reasonable opportunity to present his, her or its case to the Tribunal. That means that each and every party has a right to cross-examine witnesses called by parties. The right to present a case conferred by s 39 is a matter of procedure and there would need to be clear words in the AAT Act or other relevant enactment to take it away.

1. Cross-examination may be conducted in various ways.  When other information is available to the cross-examiner and that information suggests that events might not be as a witness states, one of those ways is to put questions based on that information but without disclosing that it is held.  Those questions will give the witness the opportunity to accept or deny the propositions inherent in each of those questions and to offer an explanation or clarification if he or she will.  If no explanation or clarification is given and all possible explanations raised by the information have been the subject of questions put to the witness, the information itself can be put.  If the witness, who has already been given every opportunity to give an explanation in the preceding questions and no possible explanation has been overlooked, does not give an explanation there can be none when the information is put.[1]  A party should be permitted to cross-examine in that way.

   [1] The Art of Cross Examination; JW Smyth QC, Bar News, Autumn 1988 at 12-16

1. The Tribunal kept this in mind in Re Stoiche and Telstra Corporation Ltd[2] when it decided that procedural fairness would be denied to the respondent if the Tribunal ordered the disclosure of a video.  It would be denied because Telstra Corporation Ltd (Telstra) would be denied the opportunity to conduct effective cross-examination on the major issue of Mr Stoiche’s credibility.  In reaching that conclusion, the Tribunal took account of, among others, the fact that all of the medical witnesses would have formed their opinions having regard to Mr Stoiche’s description of his symptoms and would not have seen the surveillance footage of him in the video.  Even so, it decided that the potential prejudice to Telstra outweighed any prejudice to Mr Stoiche.  Any concerns that the Tribunal had regarding the potential of its decision to lengthen the hearing while the medical witnesses viewed the video were mitigated by Telstra’s undertaking that it would bear the costs caused to Mr Stoiche by its not having disclosed the video before the hearing.

   [2] [1995] AATA 306; (1995) 40 ALD 369; Deputy President Barnett

1. Counsel submitted that the requirements of s 38AA of the AAT Act are somewhat analogous to discovery in the courts but not entirely so. He referred to cll 4.44 to 4.48 of the General Practice Direction made by the former President of the Tribunal on 30 June 2015. Those clauses read:

   “4.44    You and the decision-maker must lodge with us and give to each other any evidence on which you or the decision-maker propose to rely at the hearing in accordance with any direction we have made.

   4.45Subject to any other direction or order we may make, if you or the decision-maker intend to rely on video surveillance material at the hearing and that material has not already been lodged with us and given to any other party, it must be lodged with us and given to any other party at least 28 days before the day on which the hearing is listed to commence.

   4.46If video surveillance material has not been lodged with us and any other party prior to the hearing in accordance with this Direction, or such other direction or order that we may make, you or the decision-maker may not rely on the material as evidence in the application without the leave of the AAT.

   4.47We will not make a direction under section 35 in respect of video surveillance material unless there is a persuasive reason, in the particular circumstances of an individual case, which requires us to make such a direction.  That fact that the credibility of another party may be in issue will not, of itself, be a sufficient reason to make such a direction.

   4.48Video surveillance material includes footage recorded in any format, any report relating to the footage and any log sheets produced in connection with the footage.”

1. Counsel placed particular emphasis on the opening words to cl 4.45: “Subject to any other direction or order we may make”.  The respondent in this case is seeking another order as contemplated by the clause.  Clause 4.46 acknowledges that there is flexibility when it states that surveillance material that has not been lodged with the Tribunal and served on the other party or parties may not be relied upon “without the leave of the AAT”. 

1. Clauses 4.44 to 4.48 of the General Practice Direction effectively deal with the lodgement of documents provided for by ss 37 and 38AA of the AAT Act. Nothing in the extrinsic material accompanying the introduction of s 38AA in the AAT Act suggested that a provision addressed to a procedural matter was intended to remove or diminish the right of a party to cross-examine a witness effectively. Furthermore, the power conferred on the President by s 18B of the AAT Act allows him to give directions on a range of matters, including procedural matters, to ensure that the Tribunal has the flexibility it requires to meet the needs of each case that comes before it. Clause 1.4 of the General Practice Direction states that “The AAT may alter the procedures set out in this Direction to suit individual applications.”

CONSIDERATION

1. In order to understand the nature and scope of the obligations imposed by s 38AA and the latitude of any discretion that I may or may not have, I have looked first to the history of the provisions. I have begun with s 37 of the AAT Act as it is currently drafted and then traced its legislative history in order to understand the obligation imposed by s 38AA. In doing so, I will omit reference to any obligations imposed in relation to the Tribunal’s Security Division and its Social Security and Child Support Division (SSCSD) as their added complexity is not relevant to the issue I must decide.

   Section 37 as in force from 16 May 2005 and having regard to amendments made in 1995,[3] 2005[4] and 2015[5]

   [3] Law and Justice Legislation Amendment (No. 1) Act 1995; No. 175 of 1995; s 3(2) and Schedule 2; Item 19

   [4] Administrative Appeals Tribunal Amendment Act 2005; No 38 of 2005; s 3 and Schedule 1, Item 124

   [5] Tribunals Amalgamation Act 2015; No. 60 of 2015; s 3 and Schedule 1; Items 73 to 86

2. The general obligation imposed on a decision-maker to lodge documents and give them to the other party or parties is found in s 37(1) of the AAT Act. It provides that:

   “Subject to this section, a person who has made a decision that is the subject of an application for review … by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of:

   (a)a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

   (b)subject to any other directions given under section 18B, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.”

In certain circumstances, the time within which such documents must be lodged may also be shortened under s 37(1A).[6]

[6] Section 25(5) of the AAT Act provides that, if an enactment provides for applications for review to be made to the Tribunal and also prescribes the time within which a person is required to do an act or thing, failure to do so within the time limit is deemed to constitute the making of a decision not to do that act or thing. Section 54S of the Freedom of Information Act 1982 (FOI Act) is an example of such a provision as is s 79 of the Seafarers Rehabilitation and Compensation Act 1992.  An earlier formulation leading to a similar outcome in permitting an application to be made to the Tribunal when the principal officer of an agency or the Minister had not made a decision on internal review under the FOI Act was found in s 56.  Section 56(1) provided that, where a request for access had been made and a decision had not been made within the time required by s 56(1)(b), then, for the purpose of enabling an application to be made to the Tribunal under s 55, the principal officer of an agency or the Minister was deemed to have made a decision refusing to grant access to the document.  The principal officer of an agency or the Minister was deemed to have made a decision refusing to grant access to the document.  Section 56 was considered by Gray J in Bienstein v Attorney-General [2009] FCA 1501 when he said at [42]: “… A statement under s 37(1) of the AAT Act is a statement of reasons (including findings on questions of fact) by the original decision-maker.  Such a statement is required to be accompanied by the documents relevant to the review by the Tribunal of the decision.  In the absence of an actual decision, it is hardly surprising that the Tribunal resisted Ms Bienstein’s attempts to persuade it to require the lodging of that statement by either the Attorney-General or the Minister.  Nor is it surprising that, when the Tribunal did accede to Ms Bienstein’s request and order s 37 statement, the statements were not of great assistance to her.  There was no actual decision reasons for which could be given.  There was no review of such an actual decision by the Tribunal, so it was difficult to know what documents might have been relevant to such a review if there had been any decision. …”. In this passage, Gray J does not directly deal with the issue whether a decision deemed to have been made by a person enlivens the obligation under s 37(1) of the AAT Act. Given the principles underlying review in the Tribunal, it seems to me that, however cursory the statement might be in the case of a deemed decision, it will be required under s 37(1)(a) as a decision made in the negative has been deemed to have been made. The same applies to the obligation imposed by s 37(1)(b) on the person deemed to have made that decision in the negative. That decision in the negative will shape the documents that must be lodged. As s 38AA applies to a person to whom s 37(1) applies, it will apply to the person deemed to have made the decision of which review is sought.

1. The obligation imposed by s 37(1)(a) is subject to ss 37(1AB) and (1AC):

   “(1AB) The Tribunal may direct a person who is required to lodge a copy of a statement under paragraph (1)(a) to lodge instead of that statement a copy of a document setting out the reasons for the relevant decision, within the specified period.  The person must comply with the direction.

   (1AC)If a person has, in accordance with a direction given under subsection (1AB), lodged with the Tribunal a copy of the document setting out the reasons for a decision, the Tribunal may at any later time direct the person to lodge with the Tribunal, within such period as the Tribunal determines, a statement in accordance with paragraph (1)(a).”

1. The obligation imposed by s 37(1) as qualified by provisions such as ss 37(1AB) and 37(1AC) is limited to lodgement of a statement and of documents with the Tribunal. Section 37(1AE) imposes a separate obligation to serve or give that statement and those documents to the other party or parties. Again omitting reference to provisions relating to matters heard in the SSCSD, it provides that:

   “A person who is required under subsection (1) … or (1AB) to lodge a copy of a statement or document with the Tribunal within a particular period must, unless the Tribunal directs otherwise, also give a copy of the statement or document to each other party to the proceeding, within the same period.”

1. Sections 37(1AF) and 37(1AG) further qualify the obligation to lodge and to serve certain documents but impose a separate obligation on the decision-maker to give notice of those documents to each party to the application for review. They provide:

   “(1AF)  If:

   (a)a person who has made a decision that is the subject of an application for a review by the Tribunal would, apart from this subsection, be required under paragraph (1)(b) or subsection (1AAB) to lodge a copy of a document with the Tribunal in respect of the application; and

   (b)within the period applicable under subsection (1) the person:

   (i)applies to the Tribunal for a direction under subsection 35(3) or (4) in relation to the document and lodges with the Tribunal, together with the application for the direction, a copy of the document; and

   (ii)gives a copy of the application for the direction to each party to the application for review;

   the person is not required to comply with paragraph (1)(b) or subsection (1AAB) in relation to the document unless and until the Tribunal, after hearing the application for the direction, directs the person to do so.

   (1AG)Subsection (1AF) does not affect the obligation of a person referred to in that subsection to comply with paragraph (1)(b) or subsection (1AAB) in relation to a document to which that subsection does not apply.”

1. The obligation imposed by s 37 has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents. That is the effect of s 37(3).

The addition of sections 37(1AE) to 37(1AG) in 1995

1. The addition of ss 37(1AE) to 37(1AG) received no specific attention in the Second Reading Speech delivered in either the Senate[7] or the House of Representatives although the history of the review leading to them is traced in the latter.  The Explanatory Memorandum accompanying the Law and Justice Legislation Amendment Bill (No. 3) 1994 does not add any further insight beyond repeating their substance.

   [7] Senator Faulkner, Minister for the Environment, Sport and Territories, Senate Hansard, 7 December 1994 at 4117 and Mr Duncan, Parliamentary Secretary to the Attorney-General, House of Representatives Hansard 1 December 1995 at 4441

1. In so far as the decision-maker’s obligation to lodge documents under s 37(1)(b) was concerned, the addition of ss 37(1AF) and (1AG) made no change. Section 37(1AG) simply reminds the reader that the requirements of s 37(1)(b) do not affect the decision-maker’s obligation to comply with s 37(1)(b). Section 37(1AF) itself is drafted on the basis that the decision-maker must lodge a copy of the document which it wishes to keep from the other party or parties.

1. The change that s 37(1AF) made was in relation to the notification that the other party or parties might, or might not be given of a document that the decision-maker had lodged but did not want disclosed to him, her or them. Although required to lodge every document in the decision-maker’s possession and relevant to the review of the decision, the decision-maker could apply ex parte for an order under ss 35(3) or (4) of the AAT Act[8] restricting access to the document and to the ex parte application itself so that, if granted, it, and even the application under s 35 and any consequent order, would not become known to the other party or other parties. Arguably, the effect of s 37(1AF) was inserted in the AAT Act so that the existence of the document could not be kept from them but the decision-maker could apply to the Tribunal to keep its contents from them. If the Tribunal thought that an order under ss 35(3) or (4) should not be made, the decision-maker would then be obliged to lodge the document under s 37(1)(b). A consequence of its being obliged to do so is that it would be required to give a copy of the document to the other party or parties to the application unless the Tribunal directed otherwise under s 37(1AE). Just how s 37(1AE) and any application for an order under s 35 as contemplated by s 37(1AF) are meant to mesh together is not made clear.

   [8] Sections 35(3) and (4) provide:

1. Can the obligations imposed by ss 37(1AE) and 37(1AF) be varied by a direction given by the Tribunal? Section 18B(1) of the AAT Act provides that the President may give written directions in relation to, among other matters “the procedure of the Tribunal”.[9]  Section 18B(4) goes on to provide, in so far as it is relevant for the purposes of this case, that:

   “Without limiting subsection (1), directions may deal with matters relating to the provision of documents under sections 37 and 38AA, including any or all of the following matters:

   (a)documents that are or are not required to be lodged under paragraph 37(1)(b) and subsection 38AA(1);

   (b)documents that are or are not required to be lodged under subsection 37(1AAB) for the purposes of second reviews;

   (c)lodgement of documents for the purposes of subsection 37(1AB);

   (d)lodgement of additional copies of documents;

   (e)documents that are to be given to other parties under subsection 37(1AE).”

   [9] AAT Act; s 18B(1)(b)

1. It is to be noted that each of the provisions specified in s 18B(1) either states that obligation it imposes is subject to directions given under s 18B or acknowledges that the obligation it imposes is subject to the direction of the Tribunal. I will omit reference to s 37(1AAB) as it relates to second tier reviews from the Tribunal’s SSCSD:

   section 37(1)(b):        The decision-maker must lodge with the Tribunal a copy of, “… subject to any directions given under section 18B, every other document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.” (emphasis added)

   section 38AA(1)         If certain criteria apply, the decision-maker “… must, subject to any directions given under section 18B, lodge a copy of the document with the Tribunal as soon as possible after obtaining possession.” (emphasis added)

   section 37(1AB)         “The Tribunal may direct a person who is required to lodge a copy of a statement under paragraph (1)(a) to lodge instead … “ a different form of statement of reasons. (emphasis added)

   section 37(1AE) A person who is required to lodge a statement or document under, among others, ss 37(1) or (1AB) must ”unless the Tribunal directs otherwise”, give a copy of the statement to the other party or parties. (emphasis added)

1. Section 37(1AF) does not have any reference to directions made by the President under s 18B and does not give the Tribunal any discretion. The only direction s 37(1AF) refers to is a direction given by the Tribunal in the exercise of the discretion conferred upon it under ss 35(3) or (4). It is not a reference to a direction as to the documents to which s 37(1AF) may apply or a reference to whether a copy of the application for a direction under ss 35(3) or (4) must be given to each party to the application for review. The documents and statement to which the obligation under s 37(1AF) applies is determined by two factors. One is that they are documents which the decision-maker wishes to keep from the other party or parties to the application. The second factor is that they are documents that come within the obligation imposed by s 37(1)(b). That second factor may be affected by a direction made by the President under s 18B. Once a document falls within s 37(1)(b), it seems to me that the decision-maker must follow the procedure set out in s 37(1AF). There is no discretion to do otherwise. The only discretion that there is room for is that which may be exercised under ss 35(3) or (4).

1. Clauses 4.44 and 4.48 of the General Practice Direction are not related to the obligation under s 37 (or s 38AA) but to the obligation of each party to lodge with the Tribunal, and give to the other party or parties, all of the evidentiary material on which he, she or it proposes to rely at the hearing. Clauses 4.4 to 4.6 refer to a separate Practice Direction entitled “Lodgement of Documents under Sections 37 and 38AA of the AAT Act” and signed by the former President on 30 June 2015. Clause 5 is consistent with the interpretation of s 37(1AE) that I have set out in the previous paragraph. It reads:

   “5.1 Unless we direct otherwise, the decision-maker must give a copy of the Section 37 documents to any other party within the period for lodging the documents with us: subsection 37(1AE).

   5.2Where a decision-maker has made, and given to any other party, an application for a direction under section 35 in relation to a document, the decision-maker is not required to give a copy of the document to another party unless or until we:

   (a)decide the application for a direction under section 35; and

   (b)direct the decision-maker to do so.”

Section 38AA

1. Putting aside the obligation imposed in relation to second tier reviews in SSCSD matters under s 37(1AAB), the obligation imposed by s 38AA is imposed on the decision-maker who has an obligation to lodge documents under s 37(1) if:

   “at any time after the end of the applicable period under the subsection and before the Tribunal determines the review:

   (i)        the person obtains possession of a document; and

   (ii)       the document is relevant to the review; and

   (iii)a copy of the document has not been lodged with the Tribunal in accordance with the subsection;

   the person must, subject to any directions given under section 18B, lodge a copy of the document with the Tribunal as soon as practicable after obtaining possession.”[10]

   [10] AAT Act; s 38AA(1)(b)

1. Section 38AA(2) imposes another obligation on the decision-maker when it provides that:

   “Subsections 37(1AA), (1AE), (1AF) and (1AG) apply in relation to the requirement in subsection (1) of this section as if:

   (a)that requirement were the requirement referred to in those subsections; and

   (b)the references in subsections 37(1AE) and (1AF) to lodging or giving within a period were reference to lodging or giving as soon as practicable.”

1. When it draws in ss 37(1AE) and (1AF), the structure of s 38AA(1) and s 38AA(2) largely reflects that of s 37(1)(b) and ss 37(1AE) and (1AF). It defines the person upon whom the obligation to lodge and serve documents is imposed, the decision-maker, and defines the scope of those documents while providing a path that must be followed if the decision-maker does not wish to serve a document on the other party or parties to the application. Like s 37, the principle underlying s 38AA that all of the parties should have the documents that are relevant to the review of the decision and that are in the possession of the decision-maker and that are relevant to the review of the decision. There is, however, one difference between the obligation imposed by s 37 and that imposed by s 38AA. That difference lies in the effect on the obligation of any rule of law relating to privilege or the public interest in relation to the production of documents. By virtue of s 37(3), the obligations imposed by s 37 to lodge and serve documents are unaffected by any claim that the documents are exempt from production or service by virtue of, for example, their being subject to legal professional privilege. There is no equivalent of s 37(3) to be found in s 38AA.

Practice Direction: Lodgement of Documents under Sections 37 and 38AA of the AAT Act

1. Clause 9 of the Practice Direction on the Lodgement of Documents under Sections 37 and 38AA of the AAT Act states:

   “Ongoing requirements to lodge relevant documents under section 38AA

   9.1After the time for complying with section 37 has ended and before the review is determined, a decision-maker must lodge with us a copy of any document that comes into the decision-maker’s possession and is relevant to the review, other than any document:

   (a)previously lodged with us under section 37;

   (b)already given to us by another party; or

   (c)we have given to the decision-maker.

   9.2A Section 38AA document must be lodged as soon as practicable after the decision-maker obtains possession or control of the document.

   9.3The decision-maker must also give a copy of any Section 38AA document to any other party at the same time, unless the decision-maker applies for a direction under section 35 of the AAT Act in relation to the document in accordance with the procedures specified in Section 3 of this Direction.[11]

   Video surveillance material

   9.4Subject to any other direction or order we may make, if a decision-maker intends to rely on video surveillance material at the hearing of an application and that material has not already been lodged with us and given to any other party, the decision-maker must give a copy of the material to us and to any other party at least 28 days before the day on which the hearing is listed to commence.

   9.5If video surveillance material has not been given to us and any other party prior to the hearing in accordance with this Direction, or such other direction or order that we may make, the decision-maker may not rely on the material as evidence in the application without the leave of the AAT.

   9.6We will not make a direction under section 35 in respect of video surveillance material unless there is a persuasive reason, in the particular circumstances of an individual case, which requires us to make such a direction. The fact that the credibility of another party may be in issue will not, of itself, be a sufficient reason to make such a direction.”

   [11] Section 3 of the Direction deals with the procedure under s 37(1AF). It also notes at cl 3.6 that “… certain information may be protected from disclosure where an Attorney-General gives a certificate under section 36 or 36B that disclosure of matter contained in a document would be contrary to the public interest.” Sections 36 and 36B impose an obligation on the Tribunal to protect the information but also specify the limited circumstances in which the Tribunal may permit disclosure of that information to all or some of the parties to the application for review.

Sections 37 and 38AA and legal professional privilege and public interest immunity

A.       Legal professional privilege

1. Legal professional privilege is a rule of law.  If there had been any doubt following the enactment of the Evidence Act 1995, that doubt was removed when the Gleeson CJ, Gaudron, Gummow and Hayne JJ decided in Daniels Corporation International Pty Ltd v ACCC:[12]

   “          It is now well settled that legal professional privilege is a rule of substantive law … which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.  …”[13]

   [12] [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561

   [13] [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561 at [9]; 552; 564

1. The person claiming legal professional privilege must establish the facts that give rise to the privilege.  That may be done by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence.[14]   The form in which the communications are made is irrelevant.  As McHugh J said in Commissioner of the Australian Federal Police v Propend Finance Pty Ltd:[15]

   “… The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice.  The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client’s affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice.  As long as the communication was made or the material recorded for the sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant.”[16]

   [14] Grant v Downs (1976) 135 CLR 674; 11 ALR 577 at 689; 589 per Stephen, Mason and Murphy JJ

   [15] [1997] HCA 3; (1997) 188 CLR 501; 141 ALR 545; Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ

   [16] [1997] HCA 3; (1997) 188 CLR 501; 141 ALR 545; at 553; 584

1. The “sole purpose” test to which McHugh J referred has now been overtaken by the “dominant purpose” test[17] but McHugh J’s expression otherwise remains relevant.  Provided the material meets the description of documents and communications that come within the privilege, it is of no consequence that they were gathered or the communications made for the purpose of obtaining legal advice about an administrative decision or for legal proceedings in a court or for merits review proceedings in an administrative tribunal.  The reason for this was explained by Mason and Wilson JJ in Waterford v The Commonwealth[18] when they said in the context of a claim for exemption under then s 42 of the Freedom of Information Act 1982 (FOI Act)[19] that, provided the relevant purpose test was satisfied:

   “… there is no warrant to draw an arbitrary line through the functions of government in order to exclude the privilege from those described as of an administrative nature.  All the functions of executive government may be so described.  No distinction can be drawn between a decision to grant a pension and a decision whether to defend a claim in tort or contract.  The growing complexity of the legal framework within which government must be carried out renders the rationale of the privilege … increasingly compelling when applied to decision-makers in the public sector.  The wisdom of the centuries is that the existence of the privilege encourages resort to those skilled in the law and that makes for a better legal system. …

   …

   … [T]he nature of the proceedings on an application for review cannot affect the matter.  The relevant question is whether the document to which access is sought is an exempt document.  If the privilege attaches, it will have the character from the beginning, regardless of whether or not the decision to refuse access is reviewed.”[20]

   [17] See Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123; 201 CLR 49 at [61]; 73; 139 per Gleeson CJ, Gaudron and Gummow JJ

   [18] [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673; Mason, Wilson and Brennan JJ; Deane and Dawson JJ dissenting

   [19] Section 42(1) provided that “A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.”

   [20] [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673 at 64; 679

1. Similar principles were applied more recently by the Full Court of the Federal Court in Commissioner of Police, New South Wales v Guo[21] when it considered whether common law public interest immunity had been displaced by the provisions of the AAT Act.  Like legal professional privilege, public interest immunity is a doctrine of substantive law and represents a fundamental immunity available in judicial and quasi-judicial proceedings but not confined to such proceedings.[22]  It is not to be abrogated except in the clearest terms.[23] 

   [21] [2016] FCAFC 62; Collier, Robertson and Griffiths JJ

   [22] Jacobson v Rogers [1995] HCA 6; (1995) 182 CLR 562 at 588-589 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ; Brennan and McHugh JJ dissenting

   [23] Jacobson v Rogers [1995] HCA 6; (1995) 182 CLR 562 at 589

1. In Baker v Campbell,[24] for example, s 10 of the Crimes Act 1914 provided that a Justice of the Peace might grant a search warrant if satisfied of certain matters. In essence, the warrant authorised the person to whom it was issued to seize anything which would afford evidence of the commission of an offence having been committed against the laws of the Commonwealth. The warrant did not exclude documents subject to legal professional privilege and s 10 made no reference to it. A member of the Australian Federal Police attempted to seize documents held by a firm of solicitors and, if documents subject to legal professional privilege were excluded from the terms of the warrant, they were properly excluded. In finding that s 10 had not excluded the privilege, Deane J said that:

   “          It is a settled rule of construction that general provisions of a statute should only be read as abrogating common law principles or rights to the extent made necessary by express words or necessary intendment. … Both logic and authority support the present day acceptance of the preservation of that confidentiality as a fundamental and general principle of the common law.  It is to be presumed that if Parliament intended to authorize the impairment or destruction of that confidentiality by administrative action it would frame the relevant statutory mandate in express and unambiguous terms.”[25]

   [24] (1983) 153 CLR 52; Murphy, Wilson, Deane and Dawson JJ; Gibbs CJ, Mason and Brennan JJ dissenting

   [25] (1983) 153 CLR 52 at 116-117

B. Legal professional privilege abrogated by s 37(3)

1. Section 37(3) specifically provides that the section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents. It is a provision that did not appear in the AAT Act as first enacted[26] but was included when s 37 was repealed and substituted by the Administrative Appeals Tribunal Amendment Act 1977.[27] If an Explanatory Memorandum was written, and it need not have been at that time, I have been unable to locate a copy. The Second Reading speeches delivered in the Parliament do not refer to s 37.[28] 

C. Is legal professional privilege abrogated in relation to documents lodged under s 38AA?

[26] Act No. 90 of 1995

[27] Act No. 58 of 1977; s 23

[28] Hansard, House of Representatives, 28 April 1977; Mr Ellicott, Attorney-General and Hansard, Senate, 24 May 1977

1. Applying the principles expressed by the High Court in, for example, Baker v Campbell, the common law relating to legal professional privilege will only be abrogated if Parliament did so either expressly or by necessary implication. It has not done so expressly but I will now consider whether abrogation must necessarily have been intended by Parliament having regard to the words of s 38AA and the AAT Act generally.

1. Section 38AA was inserted in the AAT Act by the Tribunals Amalgamation Act 2015 (TA Act), which also amended s 37.[29]  Clauses 474 to 476 of the Explanatory Memorandum to the Tribunals Amalgamation Bill 2015 are concerned with the enactment of a new s 38AA. It begins by restating the obligation to lodge material with the Tribunal imposed by s 38AA(1) and then notes that:

   “475. The continuous disclosure obligation in new section 38AA would reflect existing policy within the SSAT; see subsections 157(3)-(5) of the SSAT Act, subsections 232(3)-(6) of the PPL Act, subsections 119(3)-(5) of the FAA Act and subsections 95(3)-(6) of the CSRC Act. The proper conduct of reviews is assisted by the Tribunal having all relevant information before it. The President’s ability to make practice directions to define the scope of the continuous disclosure obligation would ensure that it is not unduly burdensome on decision-makers.

   476. New subsection 38AA(2) would apply subsections 37(1AA), (1AE), (1AF) and (1AG) to the continuous disclosure obligation in the same way as these sections apply to the primary obligation on decision-makers to lodge material documents with the Tribunal. This would have the effect that the Tribunal could order that additional copies of documents provided under section 38AA be lodged; that unless the Tribunal orders otherwise, the decision-maker would be required to provide copies of the documents lodged under section 38AA to the other parties; and that the decision-maker could seek an exemption from the requirement to lodge documents under section 38AA where the document is the subject of an application for a non-disclosure direction under section 35.”

   [29] TA Act; s 3 and Schedule 1, cl 87 (s 38AA) and cll 73-86 (s 37)

1. No provision was made in s 38AA reflecting the terms of s 37(3). When s 38AA(1)(a) identifies the person upon whom the obligation is imposed by reference to his or her being a person to whom s 37(1) (or s 37(1AAB)) applies, that does not of itself import the substance of s 37(3) into s 38AA. Identification of the person upon whom the obligation is imposed is one thing and the obligation another. The obligation is the subject of s 38AA(1)(b) as qualified by s 38AA(2) and by any directions made by the President under s 18B. The Explanatory Memorandum said of s 18B(1) that it was intended to reflect the policy of the then existing ss 20(2) and (4) of the AAT Act but to enable Practice Directions to be made in all or some of the Divisions of the amalgamated Tribunal as required. No reference is made in s 18B to any rule of law relating to privilege or the public interest in relation to the production of documents.

1. I have then turned to the practical consequences of the express abrogation of legal professional privilege and public interest immunity in s 37(3). The reason for Parliament’s turning its mind to matters of privilege and immunity under s 37 and abrogating it throws some light on why it might not have done so in relation to the continuing obligation to lodge documents under s 38AA. The obligation imposed on a decision-maker by s 37 relates to documents that will, for the most part, have been in the possession of the decision-maker when the decision was made or, if not, would have been by the time the documents were prepared for the purposes of s 37. That means that all documents relevant to the Tribunal’s review of the decision are lodged at an early stage. Where there is a need to maintain confidentiality, s 37(1AF) deals with that but the other party or parties will always know that the decision-maker has applied for an order under s 35. The fact that a document may be subject to legal professional privilege or a claim for public interest immunity becomes just one of the factors that is taken into account in considering that application for an order under s 35. That accords with the principle underpinning s 37 that the parties should know the material on which the decision under review was made in the first place and which the decision-maker has when an application for review is lodged.

1. Once an application for review of that decision has been lodged and the parties are preparing their cases, considerations of openness continue to retain their validity but so too does the Tribunal’s obligation imposed on it by s 39(1) in all Divisions other than the Security Division and the SSCSD.  Section 39(1) provides that:

   “Subject to sections 35, 36 and 36B, the Tribunal shall 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 these documents.”

1. Sections 36 and 36B are concerned with cases in which the Commonwealth or a State Attorney-General has issued a public interest certificate and may limit the documents that a party may see. An order under s 35 may also limit a party’s access to certain documents. Apart from those provisions, s 39 imposes an obligation on the Tribunal to give a reasonable opportunity to every party to present his or her case. Section 39 then places particular emphasis on one part of that obligation. That part is to ensure that each party to an application has a reasonable opportunity to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions regarding those documents. That emphasis does not, however, lessen other aspects of that obligation.

1. The other aspects of that obligation would include, for example, permitting the parties to give evidence whether in written or oral form and permitting them to cross-examine witnesses called by another party to give evidence.  In some instances, effective cross-examination may require a document to be kept from the witness and, as a consequence, from the other party or parties.  This was described in the paper delivered by Mr Smyth QC and to which counsel referred.  It is also referred to as “closing the gates” and was described by David Ross QC in Advocacy:[30]

   “… Literally, a farmer will close the gates to prevent stock from getting out.  As a figure of speech it describes how an advocate cuts off any chance of escape of a witness.  The advocate induces the witness to deny every possibility except the one that promotes the cross-examiner’s case.  The advocate closes the gates one by one. …”[31]

   [30] 2^nd edition, Cambridge University Press, 2007 at [5150]

   [31] At [5150] (citation omitted)

1. That is a means of cross-examination used in the Tribunal generally and, in this context, in its compensation jurisdiction.  It may have the air of a tool used in adversarial proceedings but it is equally at home in non-adversarial or administrative proceedings where the task is to find the decision that is the correct decision.  As will be seen from the analysis of various authorities outlined in the Attachment to these reasons, it has met with favour in authorities such as Australian Postal Commission v Hayes[32] (Hayes).  In that case, Wilcox J saw no prejudice to an applicant in asking her to commit to her view of factual matters and then, if her view was contradicted by a video, putting that video to her.  To do so was consistent with a well-settled course likely to expose falsehood if there were any.  That would seem to be an approach consistent with the Tribunal’s obligation in reviewing an administrative decision.  It must reach the decision that is correct in law and on the evidence or, if there is more than one correct decision, that which is preferable.[33] In more recent times, a different view has been expressed. The line of cases expressing that view is also set out in the Attachment but, given that there is no mention of the conflicting authority in the Explanatory Memorandum to the TAA, that would not seem to have influenced Parliament.

   [32] [1989] FCA 176; (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135; 10 AAR 303

   [33] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 at 589; 68, 419 per Bowen CJ and Deane J

1. Given the role that a document may play in cross-examination, the nature of the obligation imposed on the Tribunal by s 39, the need to balance the competing considerations in fulfilling that obligation and the status of legal professional privilege and public interest immunity as rules of law, it seems to me that Parliament has not impliedly repealed those rules of law in s 38AA.

1. This view of s 39 does not cast aside notions of openness and exchange of material that has traditionally accompanied the Tribunal’s jurisdiction in what is now referred to as its General and Other Divisions.  The material that would be kept from a party or parties by a decision-maker would only be that over which he or she could legitimately claim that it was exempt from production on the ground that it was subject to legal professional privilege or public interest immunity. 

Practical implications of sections 37 and 38AA

1. I have considered the practical implications of my understanding of ss 37 and 38AA by reference to surveillance footage. Whether the surveillance footage is held in the form of a DVD, video, USB or some other medium, it is a “document” for it comes within paragraph (c) of the definition of “document” in s 2B of the Acts Interpretation Act 1901 (AI Act).  There is nothing in the AAT Act that suggests that Parliament would not have intended that definition to apply.[34] Section 2B provides that the word:

   “document means any record of information, and includes:

   (a)anything on which there is writing; and

   (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

   (c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and

   (d)a map, plan, drawing or photograph.”

   [34] AI Act; s 2(2)

1. If a decision-maker has surveillance footage at the time that he or she makes his or her decision or subsequently at the time when he or she is complying with the obligation to lodge documents under s 37(1)(b), he or she must lodge that surveillance footage with the Tribunal. If the decision-maker does not wish to give a copy of the surveillance footage to the other party or parties to the application for review in accordance with s 37(1AE), he or she must follow the procedure in s 37(1AF). That means that the decision-maker will give the other party or parties notice that there is a document and apply to the Tribunal for an order under ss 35(3) or (4) of the AAT Act. Putting aside surveillance footage for the moment, this is not uncommon when, for example, a document contains references to third parties who have nothing to do with the proceedings. The nature of the document and the reason for the confidentiality order would be apparent from the face of the application. When surveillance material is in issue, considerations that might apply would include whether it was available to the decision-maker and part of the evidentiary material on which findings of fact were made and the decision reached. If it was so available, that might weigh against a confidentiality order’s being made but, whether it would or would not, would depend on all of the factors in a particular case.

1. If surveillance footage came into possession of the decision-maker after the documents had been lodged under s 37, consideration then has to be given to the continuing obligation under s 38AA. If the surveillance footage were obtained as a result of, for example, its being produced to the Tribunal under summons and the decision-maker wished to rely on it, he would lodge a copy of the surveillance footage with the Tribunal under s 38AA. The decision-maker will be obliged to do that because, under s 38AA(1), he or she must:

   “… subject to any directions given under section 18B, lodge a copy of the document with the Tribunal as soon as practicable after obtaining possession.”

The decision-maker would have to give the surveillance footage to the other party or parties to the application under s 37(1AE) unless he or she followed the course set out in s 37(1AF) and applied to the Tribunal for an order under ss 35(3) or (4) of the AAT Act for a confidentiality order. That other party or those other parties would then become aware that surveillance footage existed or, if they did not, at least that there was a document over which the decision-maker sought a confidentiality order.

1. If the surveillance footage were obtained in circumstances in which it is subject to legal professional privilege, there is no obligation to lodge or disclose it under s 38AA. There is no need to apply for an order under s 35 of the AAT Act to prohibit or restrict disclosure of the surveillance footage for it will not have been lodged with the Tribunal. This means that the Tribunal is not placed in the uncomfortable position of being asked to keep from one party, or from some of the parties, information relevant to the review of the decision.

1. This view of s 38AA is, of course, subject to the success of the claim that the document is immune from production by reason of legal professional privilege or public interest immunity. If the document is not produced and the claim is not made out, it may be that the use that might be made of the document would be in the discretion of the Tribunal after hearing both parties. A similar issue is currently on appeal[35] and I take the matter no further than to raise it.

   [35] Re Tuimaseve and Minister for Immigration and Border Protection [2017] AATA 413; Deputy President Forgie, Senior Member Nikolić and Member A Burke (Tuimaseve)

Section 18B and the Practice Direction

1. A Direction made under s 18B cannot override the interpretation of the AAT Act by the Federal Court.[36] If I am correct and s 38AA must be read as subject to legal professional privilege and public interest immunity, so too must the President’s Practice Direction entitled “Lodgement of Documents under Sections 37 and 38AA of the AAT Act”.  The power that he or she is given under s 18B(4) is to make directions “relating to the provision of documents under section … 38AA …”. As the documents that are the subject of s 38AA exclude those which are the subject of legal professional privilege or public interest immunity, the power given to the President under s 18B must be similarly confined. Therefore, in so far as the Practice Direction makes specific reference to video surveillance material, it must be read as a reference to video surveillance material which will not be subject to a claim for legal professional privilege.

   [36] “… It is plain that a practice directioncannot confer on the AAT a power which it does not otherwise have under the Act, or under authority conferred by statute: see Comcare v Labathas [1995] FCA 1702; (1995) 61 FCR 149 at 154. See also Re Murray [and Repatriation Commission [1998] AATA 631] at [22] where Senior Member Lewis cites Re Williams and Australian Electoral Commission and The Greens [1995] AATA 160; (1995) 38 ALD 366 at 373.”: Collins v Military Rehabilitation & Compensation Commission [2005] FCA 1862; 147 FCR 570; 225 ALR 558; 89 ALD 51 at [27]; 578; 566; 58 per Jacobson J

DECISION

1. I have decided to adjourn further consideration of the respondent’s application for an order under s 35 of the AAT Act to enable it to consider its position in light of these reasons.

ATTACHMENT

Authorities regarding surveillance material in the Tribunal

1. These paragraphs form part of my reasons for decision but are set out separately as they are concerned with the views that have been expressed regarding the use of surveillance footage in earlier authorities. I would note at the outset that all were decided before s 38AA was inserted in the AAT Act and related to material obtained after the decision-maker had complied with the obligation to lodge documents relevant to the review of the decision under s 37(1)(b). With one or two variations that are of no consequence in this matter, s 37(1)(b) has been drafted in terms that are broadly consistent throughout. None of the cases deals with the issue of whether the surveillance footage is exempt from production by virtue of legal professional privilege and that all were decided before s 38AA was inserted in the AAT Act. The paragraphs are drawn from the reasons for decision in Tuimaseve in which I was one of the members who decided the case.

1. The circumstances in which a party must reveal video surveillance material to the other party was considered by Wilcox J in Australian Postal Commission v Hayes[37] (Hayes).   Senior Member Hayes had directed the Australian Postal Commission (APC) to screen a video of Ms Barnbrooke’s activities before she gave evidence in chief in support of her claim for compensation.  The APC had intended to screen it following her evidence and before it commenced cross-examination. 

[37] [1989] FCA 176; (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135; 10 AAR 303

1. In deciding the issue, Wilcox J began by stating that the Tribunal is bound to accord the parties procedural fairness.  An essential ingredient of procedural fairness is the opportunity of presenting one’s case. 

   “… In Sullivan v Department of Transport (1978) 20 ALR 323 at 342 Deane J expressed the view that s 39 of the Administrative Appeals Tribunal Act ‘constitutes statutory recognition of an obligation which the law would, in any event, imply. Where a tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe.’’’[38]

[38] [1989] FCA 176; (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135; 10 AAR 303 at 326; 288-289; 140; 309

1. Counsel for the APC submitted that testing of opposing relevant material by cross-examination is a relevant feature of the opportunity to correct or contradict that material.  To fetter cross-examination so that a witness’s evidence cannot be properly tested is to deny procedural fairness.  The case of Hayes involved a dispute about the existence of a physical disability whose existence could not be determined by objective independent evidence and in relation to which Ms Barnbrooke’s description of her symptoms and the acceptance of her description or otherwise was likely to be crucial in the resolution of the case. 

1. Wilcox J accepted the submission saying:

   “… It is the everyday experience of those who attend courts that cross-examination is at its most effective when the evidence of a witness is able to be confronted by documents.  But, as with any other cross-examination, it is normally necessary for the cross-examiner first to have the witness commit himself or herself to a precise version of relevant matters; the process which the late Smyth QC called ‘closing the gates’: see ‘The Art of Cross Examination’ (Autumn 1988) Bar News at 12-13.  It is important, in that process, that a mendacious witness not be aware of the material available to the cross-examiner to contradict the evidence under manufacture.

   In writing the above, I make no assumption as to the veracity or otherwise of Ms Barnbrooke.  That is a matter to be determined by the tribunal, not by this court.  I simply observe that to deny the cross-examiner the opportunity of having Ms Barnbrooke commit herself to a version of relevant facts is to deny the right fully to test her evidence; and, therefore, to deny the Commission a reasonable opportunity of presenting its case.”[39]

[39] [1989] FCA 176; (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135; 10 AAR 303 at 327; 290; 141; 310

1. As to any prejudice to Ms Barnbrooke, Wilcox J observed that he could see none.

   “… Having regard to the nature of the issue it seems likely that much will depend on the Tribunal’s assessment of Ms Barnbrooke’s credit.  If, without the benefit of having first seen the film, she gives evidence which is consistent with the film, or if, after that evidence, counsel for the Commission chooses not to tender the film, Ms Barnbrooke’s credit can only be enhanced.  It seems to me that, if she gives accurate evidence, Ms Barnbrooke has nothing to fear from the film.  If she were to be tempted to give false evidence, she may have something to fear; but a course which is likely to expose falsehood cannot be properly be described as prejudicial.”[40]

[40] [1989] FCA 176; (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135; 10 AAR 303 at 327; 290; 141; 310

1. Since Hayes was decided in 1979, s 37 of the AAT Act has undergone some amendments. We refer, for example, to the addition of the requirement not only to lodge but to give the documents to the other party or parties. That was a requirement that did not appear in s 37 when Hayes was decided.  It was a requirement when Ramsay v Australian Postal Commission[41] was decided and, by that time, provisions such as s 37(1AF) had been added to s 37. The principle that there is an obligation to ensure procedural fairness for all parties was underlined in that case. In Australian Postal Corporation v Bessey,[42]  Gyles J observed that the “authorities establish that, 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”. 

[41] [2005] FCA 640; (2005) 147 FCR 39

[42] [2001] FCA 266; 32 AAR 508 at [16]; 512

1. Other cases have followed Hayes but, in deciding Kingham v Cole,[43] Heerey J declined to do so saying that it:

   ““appears to elevate a useful forensic technique to the status of a mandatory legal rule binding an administrative decision-maker”.”[44]

[43] [2002] FCA 45; 118 FCR 289

[44] [2002] FCA 45; 118 FCR 289 at [26]; 297

1. Various authorities both supporting and not supporting the approach taken in Hayes were considered by Flick J in Morton v Colonial Mutual Life Assurance Society Limited.[45]  He concluded that the principles set out by Ipp J in Boyes v Colins[46] were equally applicable to the proceedings before him.  Flick J summarised them as:

   [45] [2013] FCA 681

   [46] [2000] WASCA 344; 23 WAR 123

   “·         the potential for plaintiffs giving dishonest evidence and the view there expressed that ‘the court should be biased towards disclosure, subject to there being persuasive grounds by reason of the particular circumstances of the individual case to make an order in terms of the rule’: [2000] WASCA 344 at [60]. In doing so, Ipp J referred with approval to the observations of Mathews J in Re Taxation Appeals NT 94/281-291 [1995] AATA 95, 30 ATR 1279 that the situations in which evidence could be withheld would be ‘rare indeed’ and that it ‘would certainly not be sufficient for a party merely to show that the material was capable of contradicting another party’s version, even accepting that the credibility of that other party was critical to the case’;

   ·the need to take into account the potential unfairness to both parties and not merely the interests of the party seeking to withhold the video surveillance material;

   ·the fact that the appellant in that case had already committed herself as to the nature and extent of her disabilities;

   ·the policy that had been pursued by the Supreme Court of Western Australia, and other Courts, which endorsed the practice of parties putting their ‘cards on the table’;

   ·the fact that it is erroneous to reason that there is an absence of prejudice and that the Court should give no protection to a claimant who has failed to properly and accurately advise her legal advisers as to their physical capabilities;

   ·the need for consideration to be given to ‘case management and related considerations’; and

   ·‘unfairness in regard to settlement negotiations’.”[47]

[47] [2013] FCA 681 at [28]

1. In Boyes v Colins, Ipp J developed each of the principles summarised by Flick J.  Of particular relevance in this case is his Honour’s development of his statement that it is erroneous to reason that there is an absence of prejudice and that the Court should give no protection to a claimant who has failed to properly and accurately advise her legal advisers as to their physical capabilities.  Ipp J took the view that this type of reasoning was erroneous and referred to a judgment of Wheeler J in Brown v Metro Meat International Ltd[48] where Wheeler J observed (at [23]):

   “[D]isclosure of the videotaped material allows the worker and his or her advisers to consider the possibility of settlement without the spectre of some action which is forgotten or able to be innocently explained being produced at trial in a manner which has a disproportionate impact.  It is not an answer to this last contention that the worker ‘must know what she/he did’, since very few individuals can recall every action undertaken over the period which usually precedes litigation of this kind ...”.[49]

   [48] [2000] WASCA 123

   [49] [2000] WASCA 123 at [23]

1. While we note that more recent authority suggests a move in the general position taken by the Federal Court, we also note that the more recent authority does not address the differences between the task of the Tribunal and that of a court be it the Federal Court or the Supreme Court of a State.  Our task is to review administrative decisions on their merits on the evidence and material before us and, in doing so, to arrive at the correct or preferable decision.[50]  That is to say, it must reach the decision that is correct in law and on the evidentiary material.  If the decision is a discretionary decision there is more than one decision that may be made.  Having regard to the legislative framework within which the decision must be made and having regard to the evidentiary material, the decision that we must choose must be the preferable decision of those correct decisions that may be made.  Unless changed by a particular legislative context, no party bears a burden of proof to persuade the tribunal which decision should be made. 

   [50] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 at 589; 68, 419 per Bowen CJ and Deane J

1. It is clear from the nature of our task that we are not limited in our consideration to the cases pleaded by the parties as a court would be in adversarial proceedings. We are not limited to the case theory of either party. The rules of the criminal court where the prosecutor carries a burden of proof and presents a case against an accused who generally carries no such burden, have no analogy in a merits review tribunal. Our task is to arrive at the correct or preferable decision on the evidence and material before us and not to choose this party’s case or that party’s view of the decision we should make. Provisions such as ss 37 and 38AA support the process that enables us to do that by ensuring that the decision-maker is generally obliged to put all evidentiary material on the table. The Tribunal uses its directions power under s 33 of the AAT Act to ensure that the applicant or other parties are generally under a similar obligation.

1. Similar powers and practices have been introduced into the courts with an expectation that, like the Tribunal, the evidentiary material will generally be available to the parties before the hearing.  That similarity, however, does not alter the different nature of the tasks carried out by the Tribunal and by the courts.  Given that essential difference, it seems to us that we are bound by the judgment of Gyles J in Bessey but that we should pay careful regard to the principles enunciated in subsequent authorities in relation to proceedings in the courts as well as subsequent amendments to the AAT Act.  We refer in particular to the objectives stated in s 2A of the AAT Act.  When we do that, it seems to us that we must bear in mind our fundamental duty to ensure that we accord procedural fairness to each of the parties and that, in so far as it is consistent with that duty, we ensure that parties have access to all evidentiary material when it comes to hand.

I certify that the sixty-two [62] preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie

Signed:           ……….[sgd]..............................................

Associate

Dates of Hearing (ex parte)                 23 March and 5 May 2017

Date of Decision  27 June 2017

Counsel for the Respondent               Mr Peter Woulfe

Solicitor for the Respondent               Mr Christopher Bilboe

Comcare

“(3)       The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a)         information tending to reveal the identity of:

(i)          a party to or witness in a proceeding before the Tribunal; or

(ii)any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or

(b)         information otherwise concerning a person referred to in paragraph (a).

(4)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties of information that:

(a)relates to a proceeding; and

(b)is any of the following:

(i)information that comprises evidence or information about evidence;

(ii)information lodged with or otherwise given to the Tribunal.”