Comcare v Maganga

Case [2008] FCA 285

FEDERAL COURT OF AUSTRALIA

Comcare v Maganga [2008] FCA 285

ADMINISTRATIVE LAW – whether Administrative Appeals Tribunal denied Comcare procedural fairness in refusing leave to inspect summonsed documents – documents related to previous injury of compensation claimant – credit of claimant main issue in proceedings – documents therefore not available for cross examination – Tribunal must give parties a reasonable opportunity to present case – “reasonable opportunity” includes right to test evidence – Tribunal’s refusal potentially denied Comcare opportunity to cross-examine effectively – whether access to documents should be denied as going only to credit – purpose for seeking documents clearly identifiable – not fishing to seek documents going to credit – wrong to determine questions of inspection by whether documents ought to be admitted into evidence – no need for documents to establish any specific fact – test of relevance is whether documents relate to issue in proceedings – discretion of Tribunal under Administrative Appeals Tribunal Act 1975 (Cth) is subject to overarching obligation of procedural fairness – procedural fairness denied

Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1), 39(1), 40(1D), 44
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(f)
Evidence Act 1995 (Cth) s 102
Judiciary Act 1903 (Cth)

Albert Hadid v Lenfest Communications Inc [1998] FCA 470 cited
Alister v The Queen (1983-1984) 154 CLR 404 cited
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 cited
Australian Postal Corporation v Hayes (1989) 23 FCR 320 applied
Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 cited
Carter v Hayes SM (1994) 61 SASR 451 cited
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 cited
Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 cited
Fried v National Australia Bank (2000) 175 ALR 194 distinguished
Haberfield v Department of Veterans Affairs (2002) 121 FCR 233 cited
Lawrance v Centrelink (2005) 88 ALD 664 cited
Maronis Holdings Ltd v Nippon Credit Australia Ltd (2000) 18 ACLC 609 cited
National Employers’ Mutual General Association Ltd v Waind (1978) 1 NSWLR 372 cited
Piddington v Bennett & Wood Proprietary Limited (1940) 63 CLR 533 cited
R v Spizzirri [2001] 2 QdR 686 cited
Repatriation Commission v Farley-Smith (2007) 96 ALD 348 cited
Re Ruddock; Ex parte Applicant S154/2002 (2002) 201 ALR 437 cited
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 cited
Stead v State Government Insurance Commission (1986) 161 CLR 141 cited
Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts [2007] FCA 1398 cited
Trade Practices Commission v Arnotts (No 2) (1989) 21 FCR 306 cited

COMCARE v FERDINAND MAGANGA
ACD 34 OF 2007

COMCARE v THE ADMINISTRATIVE APPEALS TRIBUNAL AND FERDINAND MAGANGA
ACD 35 OF 2007

BENNETT J
11 MARCH 2008

SYDNEY (VIA VIDEOLINK TO CANBERRA)


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

 ACD 34 OF 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

COMCARE
Applicant

AND:

FERDINAND MAGANGA
Respondent

JUDGE:

BENNETT J

DATE OF ORDER:

11 MARCH 2008

WHERE…

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AGLC
Comcare v Maganga [2008] FCA 285
Case
[2008] FCA 285
Decision Date

CaseChat Overview and Summary

In the case of Comcare v Maganga, the appellant, Comcare, sought to appeal against the decision of the Administrative Appeals Tribunal (AAT) which had refused to grant Comcare access to certain documents that had been summonsed. The dispute centred around the admissibility of these documents in the context of the Tribunal's proceedings, particularly in relation to whether they could be used to impeach the credibility of a witness, Mr Maganga, who had given evidence regarding a series of injuries. The Tribunal had determined that admitting the documents would be unfair, and that they were not relevant to the issues in dispute, focusing instead on discrediting Mr Maganga's credibility without challenging the actual facts of the case.

The legal issues that arose for determination by the court involved the application of procedural fairness and the relevance of evidence in administrative tribunal proceedings. Specifically, the court needed to consider whether the Tribunal had erred in refusing to allow Comcare to inspect the summoned documents, and if so, whether this refusal had prejudiced Comcare's case. Furthermore, the court had to examine whether Comcare was required to put certain allegations to Mr Maganga concerning his credibility and whether the Tribunal's decision not to allow the inspection of the documents affected Comcare's ability to challenge Mr Maganga's evidence effectively.

The court found that the Tribunal had exercised its discretion under section 40(1D) of the Administrative Appeals Act correctly by refusing to grant leave to inspect the summoned documents. The court held that the Tribunal had properly considered the principles of procedural fairness and the nature of the evidence in question. The court emphasised that the rules of evidence, while not strictly applying in the Tribunal, still played a role in guiding the admissibility of evidence. The court cited Piddington v Bennett & Wood Proprietary Limited, highlighting the common law principle that a witness’s credibility could only be impeached with evidence that was relevant to the actual issues in the case. The court also noted that the Tribunal had been correct in concluding that Comcare had not demonstrated that the documents were relevant to the substantive issues before it, and that allowing their inspection would have unfairly prejudiced Mr Maganga's credit without directly challenging the facts of the case.

Ultimately, the court concluded that the Tribunal had not erred in its decision to deny Comcare access to the summoned documents. The court found that Comcare's failure to challenge Mr Maganga's credibility through direct questioning did not undermine the fairness of the proceedings, as the Tribunal had already afforded Comcare an opportunity to cross-examine Mr Maganga effectively. The court also determined that Comcare's obligation to put certain allegations to Mr Maganga was not applicable in the context of these proceedings, given the nature of administrative decision-making.

ORDERS:
1. The appeal is allowed.
2. The matter is remitted to the Administrative Appeals Tribunal for reconsideration according to law.
3. Each party is to pay his or its own costs of the proceedings.

Orders

Orders of the court

1. The appeal is allowed.

2. The matter is remitted to the Administrative Appeals Tribunal for reconsideration according to law.

3. Each party is to pay his or its own costs of the proceedings.

1. The appeal is allowed.

2. The matter is remitted to the Administrative Appeals Tribunal for reconsideration according to law.

4. Each party is to pay his or its own costs of the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BENNETT J
The Tribunal refused Comcare access to the summonsed documents.THE TRIBUNAL’S DECISION The reasons for the Tribunal’s refusal to give Comcare access to the summonsed documents were:·that it would have been ‘unfair’ to admit the material;·that ‘…it was inappropriate for Comcare to be permitted to go on a fishing expedition to ascertain what the file contained, particularly when the documents sought (if they existed) were sought only to impugn the credit of a witness…’ citing Fried v National Australia Bank (2000) 175 ALR 194 at 200; and·that there ‘was no suggestion that the file may contain material relevant to the determination of the factual issue before [the Tribunal]’. Similarly, the Tribunal rejected the tender of other documents by Comcare which included 1997 medical reports. These reports were drafted after the first and second injuries and referred to one fall but not to two and to an injury occasioned on 15 February 1997, the second injury that resulted in the victim claim. There was also a description of the incident as an assault occurring outside a house where Mr Maganga had been sitting. Comcare submitted that the documents would show that Mr Maganga had made inconsistent statements regarding an injury or injuries suffered in 1997. Further, Comcare submitted to the Tribunal that the summonsed documents may well demonstrate that Mr Maganga had knowingly or recklessly given false evidence to the Tribunal. However, the Tribunal rejected the documents as not relevant to the issue in dispute and also on the ground that ‘procedural fairness required that Comcare not be allowed to contradict Mr Maganga’s answers to questions which went only to his credit’. The Tribunal noted that the rules of evidence did not apply in the Tribunal (s 33(1)(c) of the AAT Act) but accepted that they had ‘a role to play’. The Tribunal cited Piddington v Bennett & Wood Proprietary Limited (1940) 63 CLR 533 at 545 where Latham CJ stated:Any witness may be cross-examined for the purpose of discrediting him. But if questions affect only the credit of a witness and are not relevant to the matters actually in issue in the case, the witness’s answers cannot be contradicted by other evidence except in certain exceptional cases. Exceptions to the rule at common law are that after cross-examination of his opponent’s witnesses a party may give evidence to show that they are notorious liars, or have given their testimony from a corrupt or other wrong motive, or that they have previously made statements inconsistent with their evidence.The Tribunal stated that counsel for Comcare had “expressly disavowed” any claim that the documents were sought to be tendered in support of an argument that Mr Maganga was a “notorious liar”. Ultimately, the Tribunal was satisfied that Mr Maganga ‘…was a witness who gave his evidence honestly’. The Tribunal also noted that at all times the issue before it was whether the injury to Mr Maganga’s knee occurred on his way to work but that ‘…nevertheless contrary allegations (such as that the injury occurred at home) were not put to him and consequently did not have the opportunity to assess Mr Maganga’s veracity when his truthfulness was under direct challenge’. The Tribunal set aside Comcare’s decision to deny compensation for the fourth injury. SUBMISSIONS

Ratio Decidendi

Legal Principle Established

Established by: BENNETT J

Mr Maganga submits that in seeking to prove its case Comcare was, as a matter of fairness, obliged to put to Mr Maganga certain matters including the assertion that he lied to the Tribunal concerning the circumstances of the injury and that he submitted a compensation claim to Comcare which he knew to be false. Mr Maganga submits that Comcare did not put any of these matters to him and that Comcare’s decision not to do so was not affected by the Tribunal’s decision to deny access to the summonsed documents. Accordingly, Mr Maganga says, Comcare is bound by the way it conducted its case and its decision not to challenge Mr Maganga’s credit. Mr Maganga also submits that the Tribunal was correct in not allowing access to the summonsed documents in circumstances where those documents went only to credit.CONSIDERATION Section 40(1D) of the AAT Act provides that the Tribunal may give a party leave to inspect a document produced under summons. The relevant procedure is generally within the discretion of the Tribunal (s 33(1)(a) of the AAT Act). The Tribunal is required to give proper consideration to matters before it (s 33(1)(b)) and to ensure that every party to a proceeding is given a reasonable opportunity to present his or her case (s 39(1)). A “reasonable opportunity to present his or her case” requires the Tribunal to apply notions of procedural fairness (Repatriation Commission v Farley-Smith (2007) 96 ALD 348 at [54] per Middleton J; Australian Postal Corporation v Hayes (1989) 23 FCR 320 at 326 per Wilcox J).Reasonable opportunity to present a case In Hayes Wilcox J outlined several propositions relevant to the Tribunal’s discretion. His Honour noted that although the AAT Act grants the Tribunal a wide discretion as to the procedure to be adopted in reviewing a decision, the Tribunal is bound to accord the parties natural justice (at 326). At the heart of the requirements of natural justice is the principle that a party must be given a reasonable opportunity to present the case. The opportunity of presenting a case includes the opportunity to adduce one’s own evidence and the opportunity to test the opponent’s evidence. Justice Wilcox also held in Hayes that the right to cross-examine means the right effectively to cross-examine and that if directions given by a court or tribunal have the effect of fettering cross-examination such that a witness’ evidence cannot be tested, procedural fairness has been denied (at 326-327). In a case where there is a dispute as to an issue which cannot be established by independent objective evidence and a rejection of the claimant’s account is likely to be critical, the right to cross-examine effectively must include the right to test the credit of the claimant. Comcare challenges the Tribunal’s decision to refuse leave to inspect the summonsed documents. The alleged deficiencies in the cross-examination of Mr Maganga are not relevant to these grounds. Further, the asserted obligation on the part of Comcare to put these matters to Mr Maganga is misplaced. In Re Ruddock; Ex parte Applicant S154/2002 (2002) 201 ALR 437, Gummow and Heydon JJ (with whom Gleeson CJ agreed) referred (at [55]) to the rule in Browne v Dunne and noted at [56] that ‘…the rule has no application to proceedings in the tribunal…administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures’. Their Honours went on to note that the rule in Browne v Dunne had no application to proceedings in the Refugee Review Tribunal (at [57]), see also Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]). In Lawrance v Centrelink (2005) 88 ALD 664 Hely J referred to S154/2002 and found that the rule in Browne v Dunne has no application to proceedings in the Tribunal (at [31]). Regardless, it is evident from the cross-examination that did take place, that credit was strongly in issue and that Mr Maganga’s version of events in relation to the 1997 injuries was challenged.