Copper Mines of Tasmania Pty Ltd v Cooper
[2018] TASSC 25
•25 May 2018
[2018] TASSC 25
COURT: SUPREME COURT OF TASMANIA
CITATION: Copper Mines of Tasmania Pty Ltd v Cooper [2018] TASSC 25
PARTIES: COPPER MINES OF TASMANIA PTY LTD
v
COOPER, Simon John
THE HONOURABLE ELISE ARCHER, ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
FILE NO: 547/2018
DELIVERED ON: 25 May 2018
DELIVERED AT: Hobart
HEARING DATE: 23 May 2018
JUDGMENT OF: Estcourt J
CATCHWORDS:
Administrative Law – Prerogative writs and orders – Prohibition – Generally – Coronial inquest – Natural justice obligations – Denial of procedural fairness – Receipt of inadmissible expert opinion evidence – Tender of expert reports without calling the authors – Relief in the nature of prohibition granted to applicant
Supreme Court Rules, r 623
Aust Dig Administrative Law [1228]
Magistrates - coroners – The coroner and the coroner's court – Proceedings at inquest or inquiry – Natural justice – Whether relief should be granted prohibiting coroner calling witness – Whether inadmissible opinion evidence should be received at inquest – Whether expert reports relied upon by non expert witness admissible without calling authors
Coroners Act 1995, s 51
Walter Mining Pty Ltd v Coroner Hennessey [2009] QSC 102; In Re McKerr's Application (No 2) [1993] NI 249; R v Avon Coroner; ex parte Bentley [2001] EWHC Admin 170; R v Doogan; ex parte Lucas-Smith (2006) 158 ACTR 1, referred to
Aust Dig Magistrates [2854]
REPRESENTATION:
Counsel:
Applicant: C Gunson SC, A Walker
Second Respondent: P Turner
Solicitors:
Applicant: McCullough Robertson
Second Respondent: Solicitor General
Counsel for Person Served:
Barminco Ltd : P Jackson SC
Gerard Clyde: K Baumeler
Solicitors for Person Served:
Barminco Ltd: HWL Ebsworth
Gerard Clyde: Kennedys Law
Judgment Number: [2018] TASSC 25
Number of paragraphs: 40
Serial No 25/2018
File No 547/2018
COPPER MINES OF TASMANIA PTY LTD v SIMON JOHN COOPER
REASONS FOR JUDGMENT ESTCOURT J
25 May 2018
Introduction
This is the return of a general order to show cause why an order for relief similar to a writ of prohibition should not be granted to prohibit the respondent coroner from proceeding to call Mr John Webber as a witness on the inquest into the deaths of Craig Nigel Gleeson, Alistair Michael Lucas and Michael George Welsh at the Mount Lyell Mine. Mr Gleeson and Mr Lucas died in an incident on 9 December 2013. Mr Welsh died on 17 January 2014 in a separate incident. The coroner is conducting a single inquest into all three deaths. The general order to show cause was made by Holt AsJ on 13 March 2018.
The Mount Lyell Mine is leased by and operated by the applicant, Copper Mines of Tasmania Pty Ltd. However the operational mining activities at the relevant times were undertaken by a contractor to that company, Barminco Ltd. Mr Gleeson and Mr Lucas were employees of Copper Mines of Tasmania Pty Ltd, and Mr Welsh was an employee of Barminco Ltd.
Mr Gleeson and Mr Lucas died at work following the collapse of a temporary platform that they were working on over part of the mineshaft. This application does not relate to that part of the inquest.
The inquest also includes consideration of the mud rush that occurred at the mine on 17 January 2014, which fatally injured Mr Welsh. The application relates to the inquest only insofar as it relates to that incident.
The bulk of the evidence sought to be adduced from Mr Webber is in the form of a report entitled "Overview Report of the CMT Mount Lyell Fatal Mudrush Incident Investigation 17 January 2014 Privileged and Confidential information for the Coroner and the Director of Public Prosecution [sic]." The report was prepared and compiled by Mr Webber and commissioned by Worksafe Tasmania. It contains complex and detailed information about safety at the mine, the nature of the terrain, geological factors, staffing movements, safety protocols and other information relevant to the incident.
The extent of the prohibition sought by the applicant is limited to prohibiting the coroner from receiving evidence from Mr Webber, who is said to be an expert. However, Mr Webber has referred in his report to several technical and consultants' reports (the source reports), and the applicant seeks to prevent their tender on the inquest without the makers of those reports being called.
The coroner has published a decision in which he has held that the inquest may be assisted by the evidence of Mr Webber, and that accordingly he will be called as a witness at the inquest. Mr Webber's experience of some 40 years is in the field of mining engineering. He has a Bachelor of Science in Mining Engineering, is a registered Tasmanian Department of Mines Mine Manager, and he has worked as a miner.
Mr Webber's evidence had earlier been sought to be tendered by the prosecution in proceedings under s 32 of the Work Health and Safety Act 2012 brought against the applicant arising from the same incident. The applicant objected to the entirety of Mr Webber's evidence, and that objection was upheld by the magistrate hearing the prosecution. The charge was dismissed as a consequence.
It is unnecessary for me to recount the rulings of the learned magistrate or the respondent because, for the purposes of the present application, it can be assumed, without finding, that much of the evidence sought to be impeached does fail to identify the facts or assumptions on which Mr Webber's opinion is based, and does fail to distinguish those facts from the opinion itself (Dasreef Pty Ltd v Hawchar [2011] HCA 21, 243 CLR 588 at [37] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). And it can be similarly assumed that Mr Webber is not qualified to express expert opinions in relation to many areas covered in his report (s 76 of the Evidence Act 2001), and that the reasoning process underpinning his conclusions are not made transparent (Dasreef at [42]).
In other words it can be assumed for the moment that the evidence is legally inadmissible as opinion evidence on the bases asserted by grounds 1(a), (b) (c) (e) and (f) of the general order to show cause. I reserve for separate consideration the issues raised by ground 1(d) of the order as to Mr Webber's reference to and reliance upon the source reports.
The applicant's argument
In the applicant's written contentions Mr C Gunson SC submits that, because Mr Webber's report does not even substantially comply with the principles applicable to the admissibility of expert evidence, it follows that the applicant will be denied procedural fairness if Mr Webber gives evidence at the inquest. Further it is submitted that the source reports do not fall into the recognised category of articles or reports in scientific publications, or statements of general application by organisations, public authorities or persons regarded by experts to have expertise in the relevant area, such that they can separately be tendered in evidence of their own force, and thus that their tender without calling their authors will deprive the applicant of procedural fairness.
The applicant submits that although not bound by the rules of evidence, a coroner should pay due regard to them and where she or he does not strictly apply them, should ensure that by not doing so no real injustice will result (Re Medical Act 1959 [1973] Tas R 43 at 67 per Neasey J) and must afford procedural fairness to potentially affected persons.
Section 51 of the Coroners Act 1995 provides:
"51 Rules of evidence not applicable
A coroner holding an inquest is not bound by the rules of evidence and may be informed and conduct an inquest in any manner the coroner reasonably thinks fit."
Section 52 of the Coroners Act provides;
"52 Rights of interested persons
…
(4) A person who the coroner considers has a sufficient interest may appear or be represented by an Australian legal practitioner or, with permission of the coroner, by any other person at an inquest, call and examine or cross-examine witnesses, and make submissions, at an inquest.
The applicant submits that the rules as to the requirements of expert witnesses, but particularly in relation to the identification of expertise, the identification of assumed facts, and subsequent proof of those underlying facts are not mere technical rules of evidence, but are principles founded on fairness and good sense. It submits that in coronial proceedings the reports and evidence of expert witnesses must comply with those rules, at the very least to a substantial degree, to ensure fairness to interested parties appearing before the inquest. It is asserted that to permit expert evidence to be admitted in coronial proceedings that does not comply with those common law rules is to deny procedural fairness to interested parties and to render nugatory the right to cross-examine the witness as permitted by s 54 of the Coroners Act.
In summary the applicant submits that Mr Webber's report falls woefully short of meeting the requirements for expert evidence to be admitted and are such that the applicant will effectively be denied its statutory right to cross-examine him.
In support of its submissions in this regard the applicant relies on In Re McKerr's Application (No 2) [1993] NI 249, CA (NI) per Hutton LCJ; R v Avon Coroner; ex parte Bentley [2001] EWHC Admin 170 at [85]-[86]; R v Doogan; ex parte Lucas-Smith [2004] ACTSC 91 (approved by the Full Court of the Australian Capital Territory in R v Doogan; ex parte Lucas-Smith (2006) 158 ACTR 1 at 27 [106], per Higgins CJ, Crispin and Bennett JJ).
I will return to those authorities in the context of the issues raised by ground 1(d) of the general order to show cause and the issue of the respondent's proposal to receive the source reports without calling their authors. However I do not accept that they make out the applicant's contention that it will be denied natural justice because Mr Webber's report does not meet the rules as to the requirements of expert witnesses for expert opinion evidence.
In Priest v West and Percy [2012] VSCA 327, Maxwell P and Harper JA, agreeing with Tate JA, said, at [5]-[6] :
"[5] Under s 62(1) of the Act, the Coroner holding an inquest is expressly not bound by the rules of evidence. The subsection provides, moreover, that the Coroner 'may be informed ... in any manner that the Coroner reasonably thinks fit'. As Tate JA notes, the trial judge took the view that these and related provisions gave coroners 'considerable latitude as to the manner in which an inquest is conducted'. In his Honour's view, this statutory flexibility and 'wide discretion' told against the argument that the Coroner in the present case was bound to have regard to the material in the disputed statements.
[6] With respect, we think these provisions point to the opposite conclusion. While undoubtedly giving the Coroner (appropriately) broad scope to shape and direct an investigation, these provisions emphasise Parliament's intention that the Coroner should not be constrained in carrying it out. It is precisely because the Coroner must do everything possible to determine the cause and circumstances of the death that Parliament has removed all inhibitions on the collection and consideration of material which may assist in that task. Parliament has, in particular, exempted the Coroner's processes from the rules which limit the admissibility of evidence in court proceedings. Far from justifying a narrow view of the scope of an investigation, these provisions oblige the Coroner to take an expansive or inclusive approach, in our view." [Footnotes omitted.]
A case which dealt with very similar issues to the present is Walter Mining Pty Ltd v Coroner Hennessey [2009] QSC 102. It involved an application for judicial review of a decision by a coroner to receive the evidence of a witness, a Mr Smyth, who possessed twenty years' experience in coal mines, much of which concerned mine safety. The applicant asserted that Mr Smyth was not an expert in any identified field of knowledge recognised by the law. McMeekin J, in upholding the coroner's decision, said at [37]-[39]:
"[37] The fallacy in the submission made by the applicant lies in its fundamental contention that opinion evidence that would not be admissible in a court of law cannot, by reason of that inadmissibility, be logically probative of any matter that the Coroner must decide. The legislative direction that the Coroners Court is not bound by the rules of evidence and may inform itself 'in any way it considers appropriate' on its face precludes any such argument.
[38] Nor is it difficult to see why, in the instant case, evidence from someone with Mr Smyth's background and training may be of assistance to the Coroner. Let us say that an 'expert' advances a proposition that some change ought to be made to the way in which underground mining is carried out. What if Mr Smyth responds that, by reason of his experience he could anticipate that such a change would not work for reasons that he states. He is expressing an opinion. He may not have the expertise of the alleged expert. But he brings to the task a different perspective and one which deserves respect.
[39] And what if the situation be that Mr Smyth has advanced some proposition that in his opinion will meet a risk to health and safety exposed in the circumstances of the death the subject of the inquiry? He may not have the expertise that would permit a court of law to receive his opinion. But to advance the opinion, based as it would be, presumably, on his practical background, might throw open for discussion a line of enquiry that might otherwise have been ignored by the 'experts'. The Coroner, or interested parties, might be prompted to ask questions that would not otherwise occur to them. It may be that after closer examination the Coroner would reject any such suggestion. She would be obliged to do so if the only evidence supporting the proposition was that of a lay person without any special knowledge on the subject, or if such evidence was contradicted by unanimous, strong and appropriately qualified opinion. But until all the evidence is in and weighed what is of assistance and what is not cannot be known." (Emphasis added.)
If the coroner has decided to call Mr Webber then the applicant has a right to cross-examine him. The objection that that is somehow procedurally unfair is without foundation in my view. The observations of McMeekin J in Walter Mining Pty Ltd v Coroner Hennessey at [55]-[58] resonate in the present case:
"[55] The nature of the grievance claimed here highlights the point. It is contended that that if this application is not acceded to then the applicant, who was the deceased's employer, will need to address the whole of the evidence given by Mr Smyth, even though parts of it are in the nature of opinion evidence which he may not be qualified to give and which the Coroner ought to ignore. Given that by this application close and detailed consideration has been given to every word of his evidence the added burden thereby placed on the applicant by a refusal of the application does not seem, with respect, to be so great.
[56] This grievance may be contrasted with the important public function that the Coroner is required to discharge of establishing the causes and circumstances of a death and exploring ways that deaths in the like circumstances can be avoided in future. While this court will be astute to protect the rights of citizens affected by the inappropriate use of administrative powers here no significant right is even potentially adversely affected.
[57] An alternative argument that the applicant advances is that the danger to the applicant is that a finding might be made, adverse to its interests, based solely on an opinion expressed by Mr Smyth for which he is not qualified within the common law test and in respect of which no form of redress is open to the applicant. In my view that submission is wrong. The Coroner is required to reduce her findings and comments to writing and deliver them to certain named parties including the applicant. Her findings can be set aside. The grounds on which a District Court may set aside a finding include if there was no evidence to support it or if the finding could not 'be reasonably supported by the evidence'. Those provisions seem plainly wide enough to offer the protection the applicant claims is lacking. If the only evidence to support a finding was the unqualified opinion of a lay person, unsupported by any other evidence, then the applicant or any other interested person dissatisfied with the finding has the right to apply to have it set aside.
[58] Second, the very width of the evidence gathering power that Parliament has entrusted to a coroner will make it a rare case indeed where this Court should interfere with the gathering of that evidence. The inappropriateness of doing so was explained by Muir J in Doomadgee, in a passage which seems to have been ignored in the present application:
'[36] The scope and indefinite boundaries of a coroner's roles under sections 45 and 46, generally make it inappropriate to interfere with the gathering of evidence by a coroner, at least with the exercise in which the coroner is engaged is within the ambit of either section 45 or section 46. Normally, it will be inappropriate also to seek from a coroner a ruling that one piece of evidence or another is inadmissible or irrelevant as if the coroner were conducting a civil or criminal trial. Questions of judgment which require the exercise of common sense and restraint are involved and reasonable minds may well differ as to what evidence ought to be received …'." (Emphasis added)
In my view the foregoing observations are dispositive of a claim of a denial of natural justice against the applicant on the basis of the coroner's proposal to receive Mr Webber's report. Woefully inadequate as it may be, parts of the report comprise admissible evidence. Difficult as it may be, the report can be dissected. Parts of it can be objected to on the inquest as unfair. And, Mr Webber can and no doubt will be cross-examined upon it. The complexity of the cross-examination does not to my mind amount to a relevant unfairness given the length at which the report has already been scrutinised. Nor does Mr Webber's role as an investigator. Moreover, any finding of the coroner based on inadequate or partial evidence can be set aside by this Court. Although the content of natural justice varies from case to case (Clarence City Council v South Hobart Investments Pty Ltd [2007] TASSC 16, 16 Tas R 201 at [27], there is no doubt that the principles of natural justice apply to coronial proceedings, and that relief in the nature of prohibition is available to prevent their breach (R v Doogan; ex parte Lucas-Smith (above) at [10]) however, the applicant's principal contention fails in my view to establish the fact or likelihood of such a breach.
My view is not the same however as to the issue of the receipt by the respondent, via the evidence of Mr Webber, of the source reports, without the authors of those reports being called as witnesses at the inquest. I draw the inference from the materials in evidence before me that the respondent proposes to take that course.
The applicant contends that, in addition to the primary relief it seeks concerning Mr Webber's evidence, the following questions directly arise concerning the source reports:
aCan the Geotechnical Review of Sublevel Caving at Mt Lyell Mine report authored by Ernesto Villaescusa dated August 2013 be tendered into evidence at the inquest without calling the author?
bCan the Geotechnical Review of Sublevel Caving at Mt Lyell Mine report authored by Ernesto Villaescusa dated April 2013 be tendered into evidence at the inquest without calling the author?
cCan the Mt Lyell Inrush – Mudrush Risk Assessment report authored by Peter Standish dated 29 October 2012 be tendered into evidence at the inquest without calling the author?
dCan the draft Mt Lyell Review of Mudrush TARPS report authored (it seems) by Mike Thomas dated 19 November 2011 be tendered into evidence at the inquest without calling the author?
eCan the Mt Lyell Draw Strategy Review report authored (it seems) by Tony Grice dated 21 September 2011 be tendered into evidence at the inquest without calling the author?
fCan the memorandum on Iron Blow Open Pit water level monitoring and potential inflow into cave area authored by Clint Scott dated 21 June 2010 be tendered into evidence at the inquest without calling the author?
gCan the Hydrogeology of the Prince Lyell Copper Mine report authored by R Virtue and K Taylor dated February 2010 be tendered into evidence at the inquest without calling the authors?
The applicant submits that even if the authors were called, none of the reports should, be admitted into evidence at the inquest because:
·the reports are not in the form or style of an expert report for the purposes of litigation;
·the qualifications of the authors is not clear;
·the reports were, on occasions, prepared by a "team" rather than a single expert, and the reports do not differentiate the opinions of each author;
·the reports often rely on other reports;
·the reports were not prepared for the purpose of litigation and were not necessarily prepared for the purpose of managing the risk of mudrush at the mine.
I reject that latter submission for the same reasons that I have concluded that the respondent is entitled to receive and consider Mr Webber's report for what it is worth. The question for the coroner is purely one of the weight of the evidence.
In respect of the former submission however the applicant is assisted by the decisions I have referred to above at [17]. While it is true, as pointed out by counsel for the respondent, Mr Turner, that these cases, in the main, concern access to documents or materials to which an expert had regard, the underlying principles that emerge from those authorities are to my mind subtly different. They are, I apprehend, first, that a failure to call witnesses with relevant evidence, and instead simply relying on their statements is unfair, and second, that the fact that the respondent is not bound to observe the rules of evidence is an important reason for the applicant to be given generous access to any material available to the expert in connection with his report so as to be able to cross-examine effectively.
As was said by the Full Court of the Federal Court in TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83, 232 FCR 361 at [86], the concern of the law is to avoid practical injustice, and fairness is "normative, evaluative, context-specific and relative". In the context of the present case the content of natural justice, to my mind, is such as to require that the applicant be able to cross-examine the authors of the source reports upon which Mr Webber draws, but to which he cannot speak.
In Re McKerr's Application (No 2) (above), the Court of Appeal in Northern Ireland held that a refusal to provide counsel for the next-of-kin a copy of a police statement from which a witness had refreshed his memory before giving evidence was unfair. Hutton LCJ held that the rules relating to inspection of documents used to refresh memory were not "mere technical rules of evidence but is a principle founded on fairness and good sense".
In R v Avon Coroner; ex parte Bentley (above), Sullivan J held that the discretion to call witnesses must be exercised fairly, and for the purpose for which it is conferred, namely the making of a sufficient investigation into the matters prescribed by the relevant coroner's rules, and that the failure to call witnesses with relevant evidence, and instead simply rely on their statements being read out, rendered the right to examine witnesses nugatory.
In R v Doogan; ex parte Lucas-Smith (above), an application for prerogative relief was made in relation to the inquest into the tragic Canberra bushfires. The coroner had refused an application to require production of various documents taken into account or considered by expert witnesses when preparing their reports. The coroner had ruled that the conduct of the inquest was unimpeded by the rules of evidence, and that the request for production was akin to a request for discovery in civil proceedings. After discussing the rules applicable to expert evidence and production of documents regarding expert reports, Whitlam J held at [13]-[15]:
"[13] In my opinion, the fatal flaw in the respondent's approach was that she never reminded herself of the special features of expert evidence. She referred to s 47(1) of the Act, which provides:
'A coroner is not bound to observe the rules of procedure and evidence applicable to proceedings before a court of law.'
This is not a warrant for ignoring the principles to which she was referred. They were principles designed to achieve fairness in cross-examination of experts, not rules of evidence. Indeed, the fact that the respondent is not bound to observe the rules of evidence is an important reason for a cross-examiner to be given generous access to any material available to or generated by the expert in connexion with his report. In ordinary civil litigation any factual underpinnings of an expert's opinion will have to be established by admissible evidence. In a proceeding where that it is not the case caution should be shown in refusing access to such material. Such a denial may be potentially productive of great injustice …
[15] … The Federal Court cases relied on by the prosecutors should have been heeded by the respondent. They show the wide range of documents that may be requested in respect of an expert's report. The opinion of an expert is not to be tested in coronial proceedings in any different way to ordinary civil litigation. The object of cross-examination remains the same so long as the evidence is relevant. …".
That finding was approved by the Full Court of the Australian Capital Territory in R v Doogan; ex parte Lucas-Smith (as above) at 27 [106] per Higgins CJ, Crispin and Bennett JJ. That involved a separate application for prerogative relief heard by the Full Court and was not an appeal from a first instance judgment of Whitlam J referred to above.
In the circumstances of the present case the application of the principles to be distilled from those cases means, to my mind, that the mere provision of copies of the source reports, without calling the authors of those reports, is not sufficient to afford the applicant procedural fairness. The focus must be on access to the facts and matters underpinning, but not necessarily stated or explained, on the face of those reports. This is particularly so given that the reports are not scientific data of general application, which may be derived from sources usually relied on by experts, and that Mr Webber cannot himself speak with the relevant specialised knowledge to the particular matters within those reports that are peculiar to the case.
In Bodney v Bennell [2008] FCAFC 63, the Full Court of the Federal Court observed at [92]-[93]:
"[92] Before the Evidence Act it was well established that experts are entitled to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, as a basis for their opinions. In Borowski v Quayle [1966] VR 382 at 386 (Borowski) Gowans J, quoting Wigmore on Evidence 3rd ed, vol 2 at 784-785, said that to reject expert opinion because some facts to which the witness testifies are known only upon the authority of others, 'would be to ignore the accepted methods of professional work and to insist on finical and impossible standards'. Experts may not only base their opinions on such sources, but may give evidence of fact which is based on them. They may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information, in the sense they rely for such data not on their own knowledge but on the knowledge of someone else. The weight to be accorded to such evidence is a matter for the court. See generally Borowski at 385-387, PQ v Australian Red Cross Society [1992] 1 VR 19 at 34-35, H v Schering Chemicals [1983] 1 WLR 143 at 148-149, Millirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 161-163 and Jango (No 4) at [8].
[93] There is nothing in the Evidence Act that displaces this body of law…".
However, in PQ v Australian Red Cross Society [1992] 1 VR 19, McGarvie J at 36 pointed out the following important distinction:
"So far I have been dealing with the entitlement of an expert witness to give evidence of facts of general application. Facts peculiar to the particular case are in a different position. They have to be proved by evidence admissible under the ordinary rules: R v Fizzell (1987) 31 A Crim R 131 and R v Turner [1975] QB 834, at p 840. These are facts of the type which in R v Abadom [1983] 1 WLR 126, at p 131 were treated as the facts basic to the question on which the expert was asked to express an opinion. That case draws the distinction between an expert's reliance on facts peculiar to the particular case, which require proof according to the ordinary rules of evidence and reliance on scientific data of general application, which may be derived from sources usually relied on by experts such as the witness."
An examination of the source reports confirms, in my view, the applicant's submission that the material contained in them comprise facts peculiar to the particular case of the Mount Lyell Copper Mine and are not documents containing scientific data of general application capable of tender in their own right.
Mr Webber, not being the author of those reports and not being able to speak to them directly and authoritatively with the relevant expertise, it would, in my view, be unfair to the applicant if the facts and opinions contained in them were tendered otherwise than through their authors. If the authors of those reports were not called in those circumstances it could legitimately be said that the applicant was denied natural justice by not being able to test by cross-examination any of their statements that might be adverse to the applicant's interests.
It is true, as was pointed out by Burbury CJ in R v Public Vehicles Licensing Appeal Tribunal; ex parte Transport Commission [1971] Tas R 145 at 150, that the technical rules of evidence are not part of the rules of natural justice, but as was said in TCL Air Conditioner (Zhongshan) Co Limited v Castel Electronics Pty Ltd (above) at [86], the required content of fairness in any particular case will depend on context; constitutional, statutory and human, and on all the circumstances of the case. The context and circumstances of this case, to my mind, require that an opportunity be given to interested parties to cross-examine the authors of the source reports if the respondent proposes to receive them, or to receive evidence from Mr Webber which relies on them.
It could be said of course that as a well-resourced interested party the applicant could itself call the relevant witnesses. If it chose not to however it would not, in my view, render the receipt by the respondent of the source reports without calling their authors any less a denial of procedural fairness.
It follows from all that I have said that this is not a case of the wrongful reception of evidence. To the extent that I have found, it is a case of the respondent proposing to deny the applicant natural justice in the form of a failure to afford procedural fairness. In such a case the applicant is, in my view entitled to relief similar in nature to a writ of prohibition. I will hear counsel as to the terms of the orders.
2
9
1