Salters and Telstra Corporation Ltd - [2000] AATA 734

CATCHWORDS - EVIDENCE – whether psychiatric report obtained improperly or unfairly – applicant's wife interviewd without notice or informed consent – Tribunal exercised its discretion to exclude the evidence.

Administrative Appeals Tribunal Act 1975 – ss 33, 37
Evidence Act 1995 - ss 135, 138
Safety, Rehabilitation and Compensation Act 1988 – ss 14, 57,

Cleland v The Queen (1982) 151 CLR 1; (1982) 57 ALJR 15; (1982) 43 ALR 619
Devi and Comcare (unreported, [AAT 11113], 27 May, 1996, Deputy President Chappell
Donnelly v Repatriation Commission (1987) 73 ALR 350; (1987) 12 ALD 529
Ghani v Jones [1975] 1 QB 693
Kirkpatrick v Commonwealth (1985) 62 ALR 533; (1985) 9 FCR 36
Klein v Bryant ([1998] ACTSC 89, 4 September, 1998)
McMullen v Commissioner for Superannuation (1985) 61 ALR 189; (1985) 3 AAR 358
Meates v Attorney-General [1981] 2 NZLR 335
Pearce v Button (1985) 60 ALR 537; (1985) 8 FCR 388
R v Addabbo (1982) 33 SASR 84
R v Turner [1975] 1 QB 834
Re Pochi and The Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; (1979) 2 ALD 33; (1979) 36 FCR 482
The King v War Pensions Entitlements Appeals Tribunal (1933) 50 CLR 228
The Queen v John Nan Tuong (No SCC 14 of 1995 Human Rights [1996] ACTSC 12 (19 March, 1996)
The Queen v Tore Bjorn Haughbro (No SCC 164 of 1996 [1997] ACTSC 112, 19 December, 1997)
Trade Practices Commission v Arnotts Ltd and Others (1990) 92 ALR 52; (1990) 22 FCR 527

DECISION AND REASONS FOR DECISION [2000] AATA 734

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1999/809
GENERAL ADMINISTRATIVE DIVISION      )

Re DAVID McCAULEY SALTERS

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION AND REASONS FOR DECISION

Tribunal Miss S A Forgie (Deputy President)

Date 23 August, 2000

Place Brisbane

DecisionThe Tribunal directs that the report of Dr Reddan dated 23 November, 1999 is not admissible at the hearing of the application.
S A FORGIE
Deputy President

REASONS FOR DECISION

On 27 July, 1999, the applicant, Mr David Salters, applied for review of a reviewable decision of a delegate of the respondent, Telstra Corporation ("Telstra") dated 9 June, 1999. That decision affirmed an earlier determination dated 3 March, 1999, which had refused Mr Salters' claim for compensation under s.14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of major depression suffered on or about 15 April, 1998.

During the course of the preliminary proceedings, a question arose as to the admissibility of a report prepared on behalf of Telstra by Dr Jill Reddan and dated 23 November, 1999. Both parties asked that its admissibility be determined before the preliminary proceedings were concluded and before any hearing of the application. At the directions hearing, Mr Salters was represented by Mr Keim of counsel and Telstra was represented by Mr Dickson of counsel. Mr Salters gave evidence in support of his own case together with his wife and Dr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] AATA 734
Decision Date: 23 August 2000

CaseChat Overview and Summary

In the case of Salters v Telstra Corporation Ltd, the applicant, David McCauley Salters, contested the admissibility of a psychiatric report obtained by the respondent, Telstra Corporation Limited, during the course of an application under the Safety, Rehabilitation and Compensation Act 1988. The dispute was heard by the General Administrative Division of the Administrative Appeals Tribunal (AAT) in Brisbane, with Miss S A Forgie acting as the Deputy President. The central issue before the Tribunal was whether the psychiatric report in question was obtained improperly or unfairly, specifically whether the applicant's wife was interviewed without proper notice or informed consent, and if so, whether the Tribunal should exercise its discretion to exclude the evidence under the Evidence Act 1995.

The Tribunal considered the provisions of the Evidence Act 1995, particularly sections 135 and 138, which address the admissibility of evidence obtained unfairly. The Tribunal examined the circumstances under which the psychiatric report was obtained, noting that the wife was interviewed without prior notice or informed consent. This raised concerns about the fairness of the process. The Tribunal also took into account the relevant statutory provisions, including sections 14 and 57 of the Safety, Rehabilitation and Compensation Act 1988. The Tribunal's decision was influenced by several precedents, including Cleland v The Queen, Kirkpatrick v Commonwealth, and Meates v Attorney-General, which underscore the importance of fairness and due process in the acquisition of evidence. After thorough deliberation, the Tribunal concluded that the psychiatric report was indeed obtained unfairly and exercised its discretion to exclude the evidence under section 33 of the Administrative Appeals Tribunal Act 1975.

As a result of this decision, the Tribunal directed that the report of Dr Reddan dated 23 November, 1999, was not admissible at the hearing of the application. The Tribunal's decision highlights the importance of ensuring that evidence is obtained in a manner that respects the rights and dignity of individuals involved in the proceedings.

Orders