Commission for Children and Young People v FZ

[2011] NSWCA 111

Court of Appeal

New South Wales

Case Title:

Commissioner for Children and Young People v FZ

Medium Neutral Citation:

[2011] NSWCA 111

Hearing Date(s):

5 April 2011

Decision Date:

09 May 2011

Jurisdiction:

Before:

Hodgson JA at [1]; Young JA at [7];  Handley AJA at [77]

Decision:

Orders:
(1) Grant leave to appeal.
(2) Direct that the appellant file a notice of appeal in the form of the draft notice of appeal within 7 days.
(3) Order that the appeal be dismissed.
(4) Order that the appellant pay the respondents' costs.
(5) Order that the primary judge's orders 4 and 5 as to anonymity be confirmed.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW- natural justice-evidence of key witness admitted notwithstanding witness not present for cross-examination- finding of denial of procedural fairness upheld.

ADMINISTRATIVE LAW- tribunal not bound by rules of evidence- applicant to satisfy tribunal that he is no risk to children-
Commissioner raising particular incidents-no onus on Commissioner to prove those incidents occurred- onus remains on applicant.

Legislation Cited:

Administrative Decisions Tribunal Act 1997, ss 70, 73
Commission for Children and Young People Act 1998, ss 32, 33J

Cases Cited:

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Commissioner for Children and Young People v IK [2005] NSWSC 1136
Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315 at [84]
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
R v Commissioner for Children and Young People [2002] NSWIR Comm 101
Ramsay v Australian Postal Corporation (2005) 147 FCR 39
Re Benson and Hughes (1994) 17 Fam LR 761
Roberts v Balancio (1987) 8 NSWLR 436

Texts Cited:

Category:

Principal judgment

Parties:

Commissioner for Children and Young People (Appellant)
FZ (First Respondent)
Administrative Decisions Tribunal (Second Respondent)

Representation

- Counsel:

Counsel:
Dr J Griffiths SC and J Hutton (Appellant)
S A Beckett (First Respondent)
Second Respondent submitted

- Solicitors:

Solicitors:
I V Knight, Crown Solicitor (Appellant)
Logical Legal (First Respondent)

File number(s):

2009/298136

Decision Under Appeal

- Court / Tribunal:

- Before:

Harrison J

- Date of Decision:

08 October 2010

- Citation:

FZ v Commissioner for Children and Young People [2010] NSWSC 1144

- Court File Number(s)

2009/298136

Publication Restriction:

No names of parties or persons referred to in reasons to be published save that appellant may be named and 1st respondent referred to as FZ

Judgment

1. HODGSON JA: I agree with the orders proposed by Young JA, and subject to what I say below, I agree substantially with his reasons.

1. I would give greater significance to the question of unavailability of a witness than does Young JA.

1. In the present case, the onus was on the applicant to prove that he "does not pose a risk to the safety of children": s.33J of the Commission for Children and Young People Act 1998. A hearsay statement may be rationally probative against the non-existence of such risk, and it may be appropriate to admit such material if it is fair to an applicant to do so.

1. What is fair may depend partly on what is possible. If it is truly not possible to have the maker of the statement attend for cross-examination, then in my opinion it may be fair to admit the statement, even though the statement is a crucial piece of evidence and to admit it would not have been fair if the maker of it could have attended but did not.

1. In the present case, there is no error in the primary judge's view that KB's statement was sufficiently important to make it unfair to admit it, when it was not proved that KB was unable to attend for cross-examination.

1. I do not think his view to that effect was vitiated by his erroneous reference to the need for allegations to be proved against the applicant to the Briginshaw standard.

1. YOUNG JA: This is the concurrent hearing of an application for leave to appeal and, if that succeeds, the hearing of the appeal itself. The appeal is brought from a decision of Harrison J made 8 October 2010 [2010] NSWSC 1144.

1. Harrison J was hearing an application by the present respondent, who has been referred to below and will be referred to in these reasons as FZ, to set aside a determination of the Administrative Decisions Tribunal. That Tribunal had dismissed FZ's application for an order under the Commission for Children and Young People Act 1998 (the Act) declaring that Part 7 Division 2 of the Act not apply to him.

1. The primary judge determined that application favourably to FZ on one of the eight complaints put forward by the respondent. The judge remitted the application for hearing before a differently constituted tribunal for decision according to law.

1. The need for the application arose because FZ had pleaded guilty to and was convicted of a sex crime in 1982 when he was 17. As a consequence, he was a "prohibited person" under the Act. This meant that he was unable to drive school buses.

1. FZ is now 36. He has been on a disability support pension since 1996. He worked as a bus driver from 1985 up to November 2007 when he was notified that, because of his conviction, he was a prohibited person and could not drive buses on which children would travel. Driving buses was, it would appear the only steady employment available to FZ.

1. The Tribunal determined that FZ had not demonstrated that he was not a risk to the security of children.

1. The Tribunal took into evidence a statement of one KB, the daughter of FZ's erstwhile (off and on) de facto partner. This statement appears to have made some allegations of indecent assault occurring in 2000 when she was about 14 (she was 24 at the time of the Tribunal hearing). FZ was never charged in respect of what was contained in that statement.

1. Despite the fact that her statement was tendered, KB was never summoned to attend the tribunal and there was no opportunity for FZ's counsel to cross examine her.

1. The primary judge held that, in this particular case, FZ was denied procedural fairness because he did not have the opportunity to cross examine KB and test her evidence.

1. The appellant says in the draft notice of appeal that the primary judge misconstrued the Act when making his determination that the Tribunal had denied FZ procedural fairness. The complaint is also that the primary judge effectively ruled that the Tribunal comply with the rules of evidence when the Act specified otherwise. However, in submissions, counsel put that the first matter is the only vital issue in the appeal.

1. On the application and appeal Dr John Griffiths SC and Mr James Hutton appeared for the appellant and Mr Simeon A Beckett appeared for FZ. When I refer to the respondent in these reasons, the reference is to FZ; the second respondent, the Tribunal, took no active part in the appeal.

1. Counsel for the appellant accepted that, even in the case of a tribunal that is not obliged to apply the rules of evidence, there may be circumstances where a tribunal denies procedural fairness by acting on a hearsay statement without giving the opportunity for cross examination.

1. The respondent consents to leave to appeal being granted. He acknowledges that a point of public importance is involved.

1. The question is not really one for the consent of the parties, but the concession is a significant matter. Despite my preliminary feeling that the primary judge's decision appeared to be correct, in my view, we should act on the basis that that concession was rightly made and leave to appeal should be granted.

1. Turning now to the appeal itself, the central feature of the appeal is determining just how significant the evidence of KB was to the Tribunal's determination.

1. Before turning to the transcript and submissions, the following observations are helpful in gleaning the principles on which the Tribunal should operate. This exercise is greatly assisted by the fact that the contentions of the parties are almost ad idem on these principles.

1. Section 70 of the Administrative Decisions Tribunal Act 1997 requires the Tribunal to give to each party "a reasonable opportunity ... to present the party's case" and "to make submissions". This is reinforced by s 73(4)(c).

1. Section 73 makes it clear that, although the tribunal is not bound by the rules of evidence, its power to inform itself is modified to the extent that that provision is "subject to the rules of natural justice".

1. In Ramsay v Australian Postal Corporation [2005] FCA 640; 147 FCR 39 , Spender J said at 47 [27]:

"While a right to cross-examination is not necessarily to be recognised in every case as an incident of the obligation to accord procedural fairness, the right to challenge by cross-examination a deponent whose evidence is adverse, in important respects, to the case a party wishes to present, is."

1. Thus it is necessary to consider how close to the core of the issue this particular matter is.

1. Before the primary judge, the respondent submitted that the point was critical. However, the appellant submitted that the point was not critical; the Tribunal only gave limited weight to KB's statement and relied on additional material in reaching its decision.

1. In particular, Dr Griffiths says that, whilst the Tribunal's loose use of language sometimes operates to obscure the fact, on the proper construction of its judgment, the Tribunal reached its decision on the evidence of KB's mother and a sexually explicit text sent from FZ's phone (a matter to which I will return) and not primarily on KB's statement.

1. The respondent gains considerable advantage on this point as the primary judge clearly reached the opposite conclusion. Indeed, his Honour said at [44] about KB's allegations, "They were unarguably critical to the Tribunal's decision".

1. The primary judge further said at [44] and [48]-[50]:

"[44] It seems to me to be fundamental that any decision to admit the record of interview and simultaneously not to arrange for KB to be available for cross-examination if required should only have been made for very sound and clearly exposed reasons, which should also have been provided to the parties in a detailed, logically argued and comprehensible way. KB's allegations were unsworn and untested. They had inexplicably not been pursued as support for a case against the plaintiff in any court. The plaintiff denied them. They were unarguably critical to the Tribunal's decision. The plaintiff's application on one view would have succeeded 'but for' the allegations. The truth of the allegations was essential to the Tribunal's determination and so KB's credit was crucial to the defendant's case in the way identified in both Hayes and Ramsay . However, the Tribunal did not sufficiently distinguish between the making of the allegations in the record of interview and the truth of the allegations once they were made. This was a denial of procedural fairness of a most fundamental kind. There were no demonstrated or acceptable reasons for not requiring KB to face her contradictor, particularly when the product of an unquestioning acceptance of her allegations had the potential to sound in such important consequences for the plaintiff.

...

[48] The plaintiff was entitled to more than merely an opportunity to know the evidence against him and to be heard in relation to it, as the authorities reveal. The fundamental issue was whether there was any material that could legitimately be regarded as evidence in the first place. That analysis could not properly be made, and was not made in the present case , by accepting KB's allegations at face value or without subjecting them to scrutiny. The suggestion that the plaintiff might in the circumstances have somehow had an advantage, because no criticism can be levelled at his evidence since it was not tested, only serves to recognise the significance of the plaintiff's principal proposition. It plainly fails to come to terms with the fact that the plaintiff's decision or obligation to respond to KB's allegations ought not on one view logically to have been triggered before the allegations had been subjected to forensic examination and testing.

[49] The significance of the failure to permit the plaintiff to cross-examine KB is also somewhat ironically reflected in what the Tribunal said at [49]:

'[49] In my view, while the weight to be given to the allegations of VB and KB ought to be limited due to the fact that KB was not available to be cross-examined by counsel for the applicant, even that limited weight would appear to be quite considerable in all the circumstances for the reasons stated above.'

[50] It seems clear that the Tribunal recognised that the weight to be given to the allegations should be limited and yet it proceeded to give them full weight and ultimately conclusive effect. There was no meaningful reconciliation of the tension between the recognition that only limited weight can be given to the allegations on the one hand and a later finding that such 'limited weight would appear to be quite considerable' on the other hand. This effectively amounted to an acknowledgement in terms of the importance of the need to accord the plaintiff procedural fairness, whilst simultaneously creating the very circumstances within which to argue that he had not received it."

1. The Tribunal appears to have considered the existence of KB's statement as a core matter in its decision. It stated at [25] (White Book 103):

"A critical issue raised in these proceedings was whether the Tribunal should have regard to material relating to allegations made by the daughter of the applicant's former partner, KB."

1. The Court must, of course, analyse the whole of the Tribunal's judgment, though some passages are keystones, such as that to which I have just referred.

1. The Tribunal then notes in succeeding paragraphs that FZ did not have the opportunity of cross examining KB, however, the question was really one of the weight to be given to her evidence, not its admissibility. At [27] the Tribunal ruled:

"Its relevance is obvious. The evidence ought to be admitted and assessed in the light of the remaining evidence."

1. The Tribunal noted that FZ denied KB's allegations and that the Commissioner bore the evidentiary onus on this issue. Although it is not necessary to discuss this point, it is expedient to do so and I will return to it.

1. The Tribunal noted that two allegations made by KB seemed to be corroborated. The first was that FZ threatened to hit KB with a ruler at Bankstown hospital. The second was that FZ sent KB a sexual message from his mobile phone to her. In the latter case, the Tribunal accepted, despite FZ's denials, that as the message was sent from his phone, it more likely than not was sent by him. This would seem to be within its fact finding mandate. However, the real matter in dispute was whether the message was intended for KB or for her mother.

1. Dr Griffiths says that the primary judge understated the significance of the sexually explicit text and did not appreciate that the Tribunal's ultimate decision was based not only on KB's statement, but also on the sexually explicit text and KB's mother's evidence.

1. Dr Griffiths points to [60] of the Tribunal's decision, that is, the final paragraph of the reasons which contains a summary of the reasons for decision. The Tribunal said:

"In my view, there appears to be substance in the 2000 and 2001 allegations. But for those allegations the risk would seem to be sufficiently low to enable the Tribunal to make the order sought, especially as FZ seeks an exemption only to work as a bus driver and does not seek to work with children in a direct sense."

1. Whilst it is clear that the reference to "2001" is to the sexually explicit text, Dr Griffiths says, and Mr Beckett denies, that the reference to "2000" includes all the allegations of 1995-6 which were reported to the police in 2000.

1. It is a little difficult to be convinced of the truth of that submission because the Tribunal did not use precise language. I tend to agree with Mr Beckett that the reference to "2000" means what it says and does not include the incidents of 1995-6 even though they were part of what was reported later.

1. In any event, it must not be overlooked that, when considering the material outside KB's statement, the Tribunal could not overlook the fact that its weight might possibly have been affected by KB's cross-examination. Particularly is this so as the material in evidence shows that both KB and her mother from time to time made quite different statements about FZ's behaviour towards them. Indeed, mother and daughter were inconsistent with each other in some respects.

1. At [47] the Tribunal noted that it was put that it was unfair that FZ was cross examined and KB was not. The Tribunal said that all that FZ's entitlement was merely to know the evidence against him and to reply to it. He was given that right.

1. The Tribunal also remarked that the evidence of unavailable witnesses was frequently admitted by courts and the standard of procedure in the tribunal was not higher than the courts. This was unfortunate. First, it is rare indeed for courts to act on the evidence of unavailable witnesses where the witness goes to a core issue and, secondly, there was no material before the Tribunal to suggest that KB was unavailable. The highest it went was that, nine years previously, KB professed some fear of FZ. Thirdly, the tribunal had already decided to admit the evidence of KB saying that the only consideration was a matter of weight.

1. It would seem from the transcript of the evidence before it that, initially, the

Tribunal was a little sceptical about the professed fear of KB. After all, fear of a 14 year old living in the same house as FZ was different to a possible fear of a married woman of 24 living apart from him. However, the then counsel for the Commissioner told the Tribunal that KB's presence had been requested and declined.

1. The Tribunal did not take the matter further and neither party requested the Tribunal to issue a summons for KB's attendance. Although Dr Griffiths places store on the failure of FZ to ask for a witness summons, this is probably answered by Mr Beckett who submitted that it would have been forensically foolish for him to do so.

1. It would have been good practice for the Tribunal to have enquired what

the exact position of KB was. Few people actually want to come to court to give evidence. Some people may have a genuine fear of their opponent, some may think they do. Procedures can be put in place such as allowing the evidence to be given by video link, to lessen potential problems. However, having evidence on core aspects of a case tested by cross examination is usually essential to ascertaining the truth.

1. In the instant type of case, it is particularly important that the Tribunal ascertain whether the statement of KB was her own unaided work or made at her mother's prompting and suggestion.

1. As the Tribunal had accepted that KB was unavailable, the principal decision that the Tribunal needed to make was whether to admit KB's statement when she was not available for cross examination on it.

1. It did not really address this issue. Rather as appears from [49] of the decision, the Tribunal ruled that whilst the weight to be given to KB's evidence must be limited due to what the Tribunal called "the fact that KB was not available to be cross examined ... even that limited weight would appear to be quite considerable in all the circumstances for the reasons stated above."

1. It is a little hard to identify "the reasons stated above". However, the whole set of reasons speaks to me that the KB evidence was at the core of the decision.

1. Mr Beckett put in his written submissions [37]-[38]:

"[37] The following issues arose for cross-examination of KB:

a. How did she explain the three disparate types of allegations of 'sexual abuse' contained in her record of interview, in the departmental notes and the notes of the psychologist;

b. Had the mother manipulated KB to give the answers in the record of interview owing to VB's tendency to give embellished, false or misleading evidence;

c. Had a history of VB hitting KB (recorded in Department of Community Services records) influenced her giving truthful evidence to the police;

d. How did she explain substantial discrepancies in the timing of when the sexual abuse last occurred;

e. Was she reluctant to give evidence to the Tribunal because the allegations in her record of interview were false.

f. Did she refuse to give police a statement in 2001 about an allegation that the plaintiff had sent her a sexually explicit text because the allegation was false.

[38] Further, the Tribunal made specific findings about the reliability of KB and VB's evidence. As stated above, VB's 'overall credibility' was undermined and there was a possibility of exaggeration or embellishment or falsification. The Tribunal held there were discrepancies between the accounts of KB and VB and a history of bitterness between FZ and VB and perhaps FZ and KB. KB's credibility was of significant importance in the proceedings and was unable to be resolved unless she was cross-examined. FZ required such an opportunity to test her evidence in order to fully put his case."

1. These appear to be strong submissions.

1. The primary judge considered this part of the case before him at [20] et seq.

1. His Honour noted at [23] that when KB's statement was admitted on the first day of hearing, the Deputy President of the Tribunal said that she agreed with Mr Beckett that it would be a departure from the Tribunal's usual procedure to allow the evidence to be admitted where there was no cross examination, but the material was relevant and some regard ought to be given to the allegations and the respondent would have an opportunity to answer them.

1. The primary judge pointed out at [42], relying on what Rothman J had said in Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315 at [84], that natural justice requires that a party have the opportunity to controvert the opponent's evidence and that often "the only practical means of controverting evidence will be to cross-examine."

1. I have already set out the primary judge's findings at [48]-[50] and what his Honour said at [44] about KB's allegations; "They were unarguably critical to the Tribunal's decision".

1. It will be remembered too, that the Tribunal itself used similar words in [25] of its reasons.

1. Dr Griffiths puts that the primary judge proceeded under a misconception. He says the Tribunal gave only limited weight to KB's statement and placed more significance on the evidence of KB's mother and the documentary evidence.

1. However, in paragraph 43 of those submissions, Dr Griffiths modifies his approach and puts "It is doubtful whether the sexual assault allegations in respect of KB were of clinching importance". The primary judge held they were, for the reasons he gave.

1. In my view, the primary judge was well entitled to come to the view he did. It is almost as if he made a finding of fact as to how the Tribunal approached the issues before it. In any event, I am unpersuaded that his Honour's analysis was in any way erroneous. Indeed, I would come to the same conclusion myself.

1. Dr Griffiths puts that, in any event, the respondent needed to establish that he was no risk to children. Whilst it was common ground that that expression meant "real risk" or "a likelihood of harm or a recognized potential" to cause harm, R v Commissioner for Children and Young People [2002] NSWIR Comm 101, the expert evidence called by FZ only went so far as to say that his risk of reoffending was "low to moderate" or "low". The evidence had to establish more than that. No-one was prepared to say that he was not a real risk to children. Thus, the application must have failed in any event.

1. There is considerable force in this submission. It must be remembered that the exercise with which the Tribunal was concerned was protective not punitive. The vital question was whether the applicant had proved on the balance of probabilities that he was of no real risk to children.

1. The Administrative Decisions Tribunal Act in s 73(2) specifies that the Tribunal is not bound by the rules of evidence.

1. This sort of provision is not unusual in administrative law and in cases involving child protection. Its scope was analysed by Hodgson J (as his Honour then was) in Roberts v Balancio (1987) 8 NSWLR 436 where he said that the provision gave the Court a discretion to act on material which is rationally probative, but the Court must determine in all the circumstances whether it is proper to act on such material and must act fairly towards the parties.

1. Thus, the Tribunal, if it considered that it was appropriate to do so and that it could do so with fairness to each party, was entitled to look at allegations as well as proved facts in making its determination of the vital issue.

1. As I put to Mr Beckett in argument, if one gets a report from a child in Tweed Heads that the applicant behaved inappropriately to her and a child in Albury makes an exactly similar complaint as does a child in Broken Hill and there is clearly no association between the three children, the fact that three independent allegations are made may well, in the absence of proof to the contrary, be sufficient to say that the applicant has not shown himself to be no real risk to children.

1. It is a little disturbing that the Tribunal, and indeed, to some extent the primary judge, appeared to take the view that if the Commission made or relied on an allegation, it was up to the Commissioner to establish such allegations to the Briginshaw standard of the civil onus (see Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336). That is wrong. The onus of proof of the vital question is on the applicant at all times.

1. Whilst on this topic, I should refer to the decision of Cooper AJ in Commissioner for Children and Young People v IK [2005] NSWSC 1136 where his Honour said more than once that, in the present sort of case, the applicant must satisfy the Tribunal on the Briginshaw standard that he is not a risk to children.

1. I am not completely happy with that reference to Briginshaw . The applicant has to prove a negative to the civil standard (see s 33J of the Act). The Tribunal is aware of the purpose of the statute and of s 32 of the Act; that the welfare of children is of paramount importance when implementing the Act. However, the word "paramount" indicates that the matter specified is not to be the sole matter considered (see eg the discussion by Chisholm J in Re Benson and Hughes (1994) 17 Fam LR 761) .

1. There was discussion before us as to what should have happened, had the evidence before the Tribunal disclosed that KB had died or was physically incapable of attending for cross examination, even by video link. There was an assumption that the Tribunal would then have been justified in admitting the evidence and discounting its weight. The discussion then moved to what degree of unavailability was required before this position was reached.

1. I believe that this may be the wrong way of looking at the problem. The real question is whether to admit the evidence of a witness on a core matter when the tribunal knows that it cannot be tested by cross examination and may deny the applicant a fair trial. It may be that even when there is a clear and compelling reason why that witness is unavailable, the Tribunal might still consider it appropriate not to receive the evidence.

1. Accordingly, I do not consider that examination of the concept of witness unavailability, such as that which occupy texts such as in the 8 th Australian edition of Cross on Evidence (2010) [35055], need concern us in this case.

1. Again, the Tribunal might be of the view that it is fully capable of having a fair trial by discounting the weight of the evidence of a person who does not attend the hearing and is thus not cross examined.

1. However, in the instant case, the inconsistent statements of KB, the conflict in the evidence of mother and daughter and the possibility that KB was over-influenced by her mother would seem to me to make such a course unlikely.

1. Before concluding, I should note that some of the difficulties of the primary judge and this Court have flowed from some imprecise language in the Tribunal's statement of reasons. I recognise that the High Court has said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 that judges should not expect the same standard of precision of language from a tribunal as they would from a court. However, the present Tribunal is not a lay tribunal, it is constituted by a person styled a "judicial member". Further, whilst I do not encourage loquaciousness, if shorthand expressions such as the reference to "2000" in [60] are employed, great care must be taken to ensure that there is no ambiguity.

1. Having said all this, the final question that must be addressed is whether the Tribunal's decision was in breach of the respondent's right to a fair hearing. For the above reasons, the primary judge's negative answer to this question must be upheld. Thus, in my view, the appeal must be dismissed with costs and the matter remitted to the Tribunal for a new hearing.

1. I thus propose the following orders:

1. Grant leave to appeal.

2. Direct that the appellant file a notice of appeal in the form of the draft notice of appeal within seven days.
3. Order that the appeal be dismissed.
4. Order that the appellant pay the respondents' costs.
5. Order that the primary judge's orders 4 and 5 as to anonymity be confirmed.

1. HANDLEY AJA: In this matter I have had the benefit of considering the reasons for judgment of Hodgson and Young JJA in draft.

1. I agree with Hodgson JA and, subject thereto, with Young JA. I will add brief additional reasons.

1. Harrison J said [44]: "KB's allegations were unsworn and untested ...They were unarguably critical to the Tribunal's decision.".

1. In these circumstances, FZ's prospects of success depended on a successful objection to the admission of KB's statement or a successful cross examination if her statement was admitted.

1. If the Tribunal had been satisfied on proper materials that KB was truly unavailable, for whatever reason, it could have admitted her statement and given it appropriate weight. I agree with Hodgson JA that in such a case the Tribunal would not deny the adverse party procedural fairness.

1. In this case the Tribunal was not justified in treating KB as unavailable. An unwilling witness, amenable to Court process, is not unavailable. The fears of a 14 year old are not a reason for treating the witness as unavailable 10 years later.

1. The admission of KB's statement, when prima facie she was available, denied FZ the right to present an important part of his case. It deprived him of his only real chance of success in the proceedings. In effect the Tribunal refused to hear the only case FZ then had.

1. The situation would be quite different if KB was truly unavailable. In that situation a decision to admit her statement would not deprive FZ of any opportunity to cross examine that witness. There would be no denial of FZ's right to be heard and no denial of procedural fairness.

1. I agree with the orders proposed.

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