Omran, M. v Australian Postal Commission

[1992] FCA 93

JUDGMENT No. q3. ........ 1 ?L.

IN THE FEDERAL COURT OF AUSTRALIA	)
) No. NG 546 of 1991
GENERAL DIVISION	j

ON APPEAL FROM THE HONOURABLE MR JUSTICE MORLING

BETWEEN:	HonnMAD o m
Appellant
AND :	AUSTRALIAN  POSTAL
COMMISSION Respondent

CO-:	WILCOX, VON WUSSA & O'CONNOR JJ
PLACE :	SYDNEY  -
DATE :	13 FEBRUARY 1992

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

   The appellant pay the respondent's costs of the appeal.

Note:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. [See also
Order 37 rule 2(3)].

IN THE FEDERAL COURT OF AUSTRALIA	)	1	NO. NG 546 of
1991
NEW SOUTH WALES DISTRICT REGISTRY )	i
1
GENERAL DIVISION	1

ON APPEAL FROM THE HONOURABLE MR JUSTICE MORLING

BETWEEN :	MOEmmD oIcW4.M Appellant
AND :	AUSTRALIAN POSTAL COMMISSION
Respondent

CORAM:	WILCOX, VON WUSSA h O'CONNOR JJ
PLACE :	SYDNEY
DATE :	13 FEBRUARY 1992

EXTEMPORE REASONS FOR JlmGM3NT

THE COURT: The Court has had the opportunity to consider the submissions of counsel and is in a position to give judgment

immediately.

This is an appeal from a decision of a judge of this

Court, Morling J, dismissing an appeal from a decision of the
Administrative Appeals Tribunal. Two matters have been argued

on behalf of the appellant. In the first place, it is said

that the Tribunal denied natural justice to the appellant
because it proceeded to a decision without first ensuring that
counsel for the appellant had an opportunity to cross-examine
a medical expert, Dr Munro Alexander, who had written three
reports concerning the appellant which were tendered on behalf
of the respondent, and without expressly discounting Dr
Alexander's evidence. Secondly, the appellant contends that
the Tribunal erred in law in reaching conclusions concerning
the cause of the appellant's disability without appropriate
evidence or, alternatively, doing so upon the basis of the
Tribunal's own knowledge, undisclosed to the parties.

As to the latter submission, we are content to adopt

the reasons of Morling J. There was evidence to support the

Tribunal's finding that the cause of the appellant's disability was normal age degeneration rather than the trauma he suffered during the course of his employment. There is no basis for the suggestion that members of the Tribunal used their own expertise impermissibly, that is otherwise than to enable them to understand and weigh the evidence placed before them. Many of the matters put to us on behalf of the appellant really go to the factual correctness of the

Tribunal's decision, but of course that is not a matter for

US.

The more significant question is the appellant's

first point. In this respect we also agree with Morling J,

except that it appears that his Honour may have put the

situation too favourably to the appellant in saying, as he

did, that at the time of the tender: "Both counsel

implicitly, if not expressly, reserved the right to require
the authors of the reports to attend for cross-examination."

In fact it appears that counsel for the respondent

informed the Tribunal of Dr Alexander's unavailability before
she tendered his reports. Yet those reports were admitted
into evidence without objection or further reference to the

matter of cross-examination.

Whether or not the comment of the primary judge was

unduly favourable, it is clear that, at the end of the first day's hearing, counsel for the appellant was maintaining the position that he wished to cross-examine Dr Alexander.

Immediately before the Tribunal adjourned for the day the following exchange occurred - and I quote from the transcript:

"MRS SHARP:  Mr Tribunal, there is a further

complication. As I understand it my friend
requires Dr Alexander for cross-examination and
he is insistent upon it and Dr Alexander is

overseas until next week.

THE D.PRESIDENT:	Well, you can if you wish in
due course make an application for an

adjournment but I can assure you that three
days having been set aside for this matter will
make such an application a difficult one to
succeed in. I am not going to pre-judge the
application-but it will not be one that will be
greeted with open arms. Let us put it that
way.

It may well be that Dr Alexander's evidence by way of report should be discounted or the value of it should be given less weight by reason of the fact that he is not available for cross- examination. That is something that may be submitted. I will not rule on that until the position has considered and everybody understands where they are going.

MRS SHARP:	Yes, Mr Tribunal.
THE D.PRESIDENT:	Well, we will have a better

idea in the morning, will we, as to the goal we

are going to set for ourselves?

MR CHIPPINDALL:  We will endeavour to work out

some pattern of examination now, Mr President,

and find out who is available before we go home

.. . tonight. "

I should say that Mrs Sharp was counsel for the

respondent before the Tribunal and Mr Chippindall counsel for

the appellant.

On the following morning, as soon as the case was

called, Mr Chippindall took up the matter of witnesses.	The
transcript records the following:

"MR CHIPPINDALL:  There are some problems I am

afraid with doctors. We both have problems.
The situation is this: my learned friend gave
notice some time ago that certain doctors would
be required for cross-examination, on the
applicant's case. Yesterday agreement was
reached that certain of them would not be
called. That left possibly Dr Salama, who my

learned friend tells me she no longer requires,

although I have an updated report to tender;

Dr Kendall, who is available at 12 noon, and Dr
Selby-Brown, whom we now find has followed Dr
Alexander, my friend's witness, to some
conference somewhere and is not in Australia.
He was given notice of the hearing of 28 June
and I am instructed that when the hearing date
was set his availability was checked and we

were told he would be available on these dates.

THE D.PRESIDENT:	Who is available?
MR CHIPPINDALL:	Dr Kendall at noon. That is

the only one of my doctors that my friend

wishes to cross-examine.

THE D.PRESIDENT:  So Dr Kendall is the only one

required, and of the respondent's doctors we
still have Dr Fields.

MR CHIPPINDALL:	We do not require Dr Fields.
THE D.PRESIDENT:	Then Dr Kendall will be the

only medical witness?

MR CHIPPINDALL:  I think my friend requires Dr

Selby-Brown, but he, like her doctor, Dr

.	-	Alexander is apparently in foreign parts.
THE D.PRESIDENT:  That shortens things
considerably."
Mr Chippindall then tendered a medical report.

During the remainder of the morning, oral evidence was taken from a lay witness, the appellant and Dr Kendall. Shortly after the luncheon adjournment, M r Chippindall commenced his address. During the course of this address he made reference to criticisms of Dr Alexander's views which had been made by his witness, Dr Kendall. He also referred to the absence of Dr Alexander suggesting that, for that reason, the Tribunal should discount his evidence. During the course of that submission, the Deputy President asked Mr Chippindall what questions he would have asked Dr Alexander had he been

present. Mr Chippindall responded, referring to two respects

in which he suggested Dr Alexander's findings were
inconsistent with the other medical evidence. He was heard
out on that matter. At no stage of the proceedings did Mr
Chippindall seek an adjournment to enable Dr Alexander to be
present - he would apparently have been available during the
following week - or ask the Tribunal to disregard - as
distinct from discount - his reports.

In this situation we agree with Morling J that it

cannot properly be said that the Tribunal denied counsel the
right to cross-examine Dr Alexander. Although it is clear
that, on the afternoon of the first day, counsel did wish to
cross-examine it is far from clear, the next morning, that he
was maintaining'that position. We think that it was open to
the Tribunal to understand that Mr Chippindall accepted that
the matter should proceed to decision without that cross-
examination, possibly as something of a set-off against his
own advantage in having Dr Selby-Brown's evidence untested by

cross-examination.

As Morling J pointed out that attitude: " . . . was

one which many other competent counsel would have taken under
similar circumstances."

We add that, in a sense, M r Chippindall got the best

of both worlds by being able to put to the Tribunal, both
through the evidence of Dr Kendall and in his address, his

criticisms of Dr Alexander, but without exposing himself to Dr

Alexander's response.

We do not wish to minimise the importance of cross-

examination. It is undoubtedly true that in many cases cross-
examination has a vital role to play in evaluating the
reliability of evidence. This is particularly the case with
non-expert evidence, especially where matters of credibility
are involved. But, even in the case of expert evidence,
cross-examination will often expose deficiencies in a
witness's understanding of the relevant facts or in his or her
general knowledge or experience. Moreover, the physical
presence of a witness enables the tribunal of fact to
elucidate matters which may be obscure, either in the

. 8 .

witness's written report or in relation to other aspects of
the case. Where experts are in conflict, oral evidence will
sometimes assist a tribunal of fact to judge which of them is
likely to be the more reliable.

But it does not follow that the cross-examination of experts is essential to a fair hearing or that expert evidence which is not subject to cross-examination is thereby deprived

of any value. This is particularly the case where a report is
confined to observations made at the time. Everything must
depend upon the circumstances of the case, some account being
taken of the need to deal with matters as efficiently and
inexpensively as possible. No doubt for these reasons, it is

the practice in most personal injury cases for the

representatives of the parties to confine their requests for

cross-examination to a minimum, but without disqualifying
themselves from suggesting that the reports of other witnesses

ought to be discounted or rejected.

That is what occurred in this case. We think that

the Tribunal was justified in believing that M r Chippindall
had made a judgment, on balance, against pressing Dr
Alexander's attendance and that it was justified in giving

such weight as it thought proper to his reports. In our view,

there was no denial of natural justice. We think that the

appeal should be dismissed.

Counsel addressed on costs.

,- - ..

The Court is of the opinion that the usual course

ought to be taken and that the unsuccessful appellant ought to

be ordered to pay the respondent's costs.

The formal orders of the Court, therefore, will be

that the appeal be dismissed and that the appellant pay to the

respondent its costs of the appeal.

I certify that this and the preceding seven (7) pages

are a true copy of the Reasons for Judgment

of the C	o	~	r	t	%	.	~	~
Associate:

Dated:  13 February 1992

APPEARANCES

Counsel for the Appellant:  P S Jones

Solicitors for the Appellant:	Colin Daley Quinn & Dwyer
Counsel for the Respondent:	P Sharp
Solicitors for the Respondent:	Australian Government Solicitor
Date(s) of hearing:	13 February 1992