Salters and Telstra Corporation Ltd
[2000] AATA 734
•23 August 2000
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 Reddan gave oral evidence in support of Telstra's case. Regard was also had to the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") ("T documents") together with documents produced by both parties. On behalf of Mr Salters, his affirmation and affidavits by Mrs Annette Salters and Mr John Peter Vandeleur were produced. Affidavits by Dr Jill Georgina Reddan, Mr Ross Alexander McConaghy, Mr William John Dillon and Mr Martin Nothling were produced on behalf of Telstra.
THE ISSUES
There are two issues in this matter. The first is whether Dr Reddan's report was improperly or unfairly obtained. If so, the second issue arises. That is whether the Tribunal should allow it to be admitted in evidence at any hearing of the application.
BACKGROUND
After Mr Salters' solicitors had lodged his application for review in the Tribunal, Telstra's solicitors wrote to them on 9 September, 1999 and said:
"We refer to the above matter and advise that an appointment has been made for Mr Salters to be examined by Dr Jill Reddan at 11.00 a.m. on 11 November 1999.
Dr Reddan's rooms are … .
Would you confirm as a matter of urgency, that your client will be available to attend such appointment." (Mr Salters' affirmation, Attachment A)
Attached to the letter was a memorandum on Dr Reddan's letterhead. It was headed "Instruction to person undergoing examination" and continued:
"1. You will be in our office for three or more hours. This allows time for an interview and other investigations or other testing which may be necessary to be completed.
2.If reading glasses, contact lenses or hearing aids are required, then these should be brought to the evaluation.
3.A list of current medications should be brought to the evaluation.
4.Our staff do not provide child-minding.
5.A cancellation fee will apply if there is not two working days notice of an intention to cancel.
Please bring a copy of this letter to the evaluation." (Mr Salters' affirmation, Attachment B)
Dr Reddan is a Consultant Psychiatrist who was admitted to practice as a psychiatrist on 7 June, 1989. Mr Salters attended Dr Reddan's rooms at the appointed time and was accompanied by his wife. It is common ground between the parties, and I accept, that Dr Reddan first interviewed Mr Salters and then interviewed Mrs Reddan. I will return to this later.
Following the interview, Dr Reddan completed a report dated 23 November, 1999. In preparing it, she had regard to her interviews of Mr and Mrs Salters, the T documents and a report by Dr G Knight dated 14 December, 1998.
THE EVIDENCE
Mr David Salters
Mr Salters said in giving his evidence that he was represented by solicitors and that all the arrangements for him to see doctors had been made through them. He did not normally ask his solicitors for advice about whether to go to a doctor but if told to do something he did it.
In his affirmation, Mr Salters set out his recollection of events when he attended the appointment with Dr Reddan:
"6. … I requested permission from Dr Reddan for my wife to sit in on interview with me and this permission was refused and my wife was directed to sit outside during the course of my interview with Dr Reddan.
7.… following the interview I was asked by Dr Reddan to complete a lengthy questionnaire in a separate room;
8.… I now understand that whilst I was completing the said questionnaire my wife was interviewed by Dr Reddan.
9.… when Dr Reddan refused to allow Annette to accompany me she stated she would talk to Annette later.
10.… my recollection is that Dr Reddan asked me whether I minded if she spoke to my wife but did not explain the purpose.
11.… Dr Reddan did not subsequently explain the purpose of the interview with my wife.
12.…if Dr Reddan had sought my consent and explained the purpose of the interview I would have refused such consent."
In cross-examination, Mr Salters said that he understood that the purpose of the examination by Dr Reddan was to make an evaluation of him. It was not for the purposes of treatment but, had she given him any suggestions for treatment, he would have gratefully accepted them. He did not ask for any ideas regarding his treatment and did not recall expressing any dissatisfaction with his treating psychiatrist's treatment.
Mr Salters agreed with the propositions that Dr Reddan's report was to be furnished to assist a proper decision to be reached and that he wanted to assist the Tribunal to reach that proper decision. It had not been explained to him, however, that anyone would be interviewing his wife. Although the people to whom his wife speaks is a matter for her, the effect of Mr Salter's evidence was that his consent was required if she were to speak about him to Dr Reddan. It is required because the matters to be spoken about concerned him and not his wife. Mr Salters agreed with Mr Dickson that he and his wife are close and that she might be able to tell Dr Reddan of observations she had made of him. When asked whether he would have any problems with his wife's speaking about her observations if he thought they would help the case, Mr Salters replied that he would not if he were informed what the interview was about.
Mr Dickson explored with Mr Salters his views on whether he considered it better for people to be interviewed separately so that the views of each person could be ascertained and not become intermingled. He agreed but said "Yes. But who was there to be interviewed? Me or my wife?".
Mr Salters said that he and his wife were both present at the beginning of the interview when Dr Reddan spoke to both of them. He agreed that Dr Reddan had told them that she would talk with him first and his wife later. Mr Salters had asked her whether his wife could accompany him but was told that she could not. He had wanted her to be present for moral support and no other doctor had refused to see both at the same time. He was accompanied by his wife when he consulted his treating psychiatrist and when he saw any doctor whether for his own case or whether asked by Telstra's solicitors. Apart from his treating psychiatrist and Dr Reddan, he had not seen any other psychiatrists. When asked whether he told Dr Reddan of his concern, he replied that she had made it quite clear that her practice was to see him alone. Consequently, he thought that there was no problem with it.
Mr Salters said that Dr Reddan had asked whether he "minded her having a chat with" his wife. He agreed with Mr Dickson that Dr Reddan had told him that she wished to do so to obtain his wife's observations of him but, he continued, did not say that his wife's observations would form part of her report. He was happy for her to talk to his wife provided what was said did not form part of the report.
Had he known beforehand that Dr Reddan wanted to interview his wife and to include those comments in her report, Mr Salters said in re-examination, he would have taken advice from his solicitors. If the purpose of the interview with his wife had been explained as he was going into Dr Reddan's office, he would not have gone in and would have said "no" at that time. Mr Salters agreed with Mr Dickson that he did not at any time during the interview suggest that he should call his solicitors.
Mrs Annette Salters
Mrs Salters, who is a data entry clerk, said that she attended her husband's appointment with Dr Reddan and set out in her affidavit what happened when she did so:
"3. … Dr Reddan advised me that I was not allowed to accompany my husband whilst he was being interviewed and I sat in the reception area.
4.… after my husband had been interviewed he was asked to complete a questionnaire, which he did in a separate room.
5.… whilst my husband was completing the questionnaire I was invited into Dr Reddan's rooms where she commenced interviewing me in relation to my husband's condition.
6.… Dr Reddan did not seek my consent to be interviewed.
7.… I answered Dr Reddan's questions as I believed that she may have some advice for me in relation to appropriate treatment for my husband.
8.… Dr Reddan did not inform me that my interview would form part of the report which she intended to submit to the Respondent's solicitors.
9.… Dr Reddan did not inform me of the purpose for which she intended to use her interview with me.
10.… if Dr Reddan had sought my consent and explained the purpose of the interview I would have refused to be interviewed."
In cross-examination, Mrs Salters said that she now understands that the purpose of Dr Reddan's interviewing her husband was so include that interview in her formal report. That report was to be prepared for Telstra whom she described as "the opposition". Her understanding was that Dr Reddan was to give a report that was, in so far as it was possible to do so, favourable to Telstra. Mrs Salters said that she would not have thought that her involvement was required at all.
In cross-examination, Mr Dickson suggested to Mrs Salters that Dr Reddan had said to her and her husband that she would interview Mr Salters first and would talk to, or interview, her later. She replied that it was "something to that effect". She could not recall whether Dr Reddan had said that she would like to talk to her to get a bit of background. Mrs Salters said that she could recall them all introducing themselves and their shaking hands. Dr Reddan asked her if it would be "all right to have a bit of a chat". Dr Reddan had said words to the effect that she would like to interview her to obtain her observations of her husband and his progress.
Mrs Salters said that she knew that Dr Reddan had been arranged by Telstra of the purpose of obtaining a report. It was never her understanding that Dr Reddan had been arranged to treat her husband. Her husband already had a treating psychiatrist. She agreed that she had said that she believed that Dr Reddan might have some advice for her in relation to her husband's treatment. Dr Reddan did not offer any and Mrs Salters said that she did not ask any questions but she had been hoping for feedback from her. She said that she had not been told to hope for feedback by anyone else but had simply hoped for it herself. As far as she was concerned, she was having an informal chat with Dr Reddan and she thought that she might have got some feedback. She did not realise that what she said would be included in a formal report and she thought it was "just a chat between the two of us". At no time did she suggest to Dr Reddan that she did not want to give her the benefit of her observations. As she said, she thought it was "an informal chat". To her knowledge, she was not psychologically examined by Dr Reddan.
In cross-examination, Mrs Salters agreed with Mr Dickson that she was the person closest to her husband. She knows the circumstances in which he claims to have suffered an injury at work and knew his circumstances before that time. Mrs Salters agreed with Mr Dickson that she was in the best position to know the person her husband was before the injury and the person he was after that time. To a certain degree, her husband talks about his troubles and worries with her. More than likely she would be the first person that her husband would talk to about things but he did not do so about the incidents at the heart of his claim for compensation. He did not do so as he had not wanted to burden her, he said. She knew something was not quite right with him. There were changes in his happy nature.
Also in cross-examination, Mrs Salters agreed that she would be glad to assist the psychiatrist if she thought that her ideas would help in reaching a decision. She would also be glad to assist the Tribunal if she thought that her observations might help it do so. If required to do so, she could put her finger on things that alter her husband's outlook. When she sees Mr Salters' treating psychiatrist, she said, she does "not really" make a contribution by telling him of her observations. She does not have a lot of input, she said. On the "odd occasion" only would she add an observation. She would do so if she thought the situation called for it.
Mrs Salters agreed that she wants the best for her husband and also a just conclusion to the case. Having said that, she said, her husband is her husband but he is also an individual. If they were interviewed together, she agreed that she could add her observations and he would be free to agree or disagree as he thought fit. Mrs Salters agreed with Mr Dickson that, if she were to have a separate interview with Dr Reddan, it would be a matter for her and not for her husband. In relation to her visit to Dr Reddan's rooms, Mrs Salters said that she did not say anything when she was not permitted to accompany her husband while he was being interviewed by Dr Reddan.
When asked whether she had any difficulty with her husband's being interviewed without her, Mrs Salters said that her only purpose in going in with him was for emotional support in the sense of her "just being there". She did not expect to have any input at all. Mrs Salters also agreed with Mr Dickson that there had been occasions when she and her husband had been interviewed by a doctor or lawyer when it was hard to remember who had said what. In some circumstances and if a careful consideration was needed, she agreed, it might be better to have the contributions made separately.
Dr Reddan
In her affidavit, Dr Reddan set out what happened at the interview in the following passage:
"6. I indicated to Mr. and Mrs. Salters at the beginning of the evaluation that I would talk to his wife later.
7.At the end of the interview component of the evaluation, I asked Mr. Salters whether he had any objections to my speaking to his wife. I further informed him that I wished to seek her observations of him and of his progress.
8.Mrs Salters clearly stated that he was happy for me to do so.
9.Mrs Salters was not forced to see me and at the beginning of the interview I had with her, I informed her that I would like to have the benefit of her observations of her husband's mental state and progress.
10.At no time was Mr. Salters informed that I was seeing him for treatment.
11.Similarly, at no time was Mrs. Salters informed that I was seeing her to provide advice in relation to appropriate treatment for her husband.
12.If Mrs. Salters did not wish to give me the benefit of her observations of her husband, I would have been quite happy for her to have not attended or alternatively, to have not spoken with me.
13.At no time did Mrs. Salters ask me any questions about her husband's treatment.
14-18.…
19.I did not perform a psychiatric evaluation of Mrs. Annette Salters or in any way medically examine her and I did not express any opinion about her mental state or psychological functioning."
In cross-examination, Dr Reddan said that there was no reference to interviewing Mr Salters' spouse in the letter sent to his solicitors as she often does not know if there is a spouse or if he or she will be available. She could not remember specifically telling Mrs Salters that she would like a chat with her. The word "chat" is not a word she normally uses. She is not involved in a social exchange and would normally say that she would like to talk with the person.
Dr Reddan said that she had not specifically pointed out to Mrs Salters that she would use what she said in the report but Mr and Mrs Salters certainly knew of the report. She did not tell Mrs Salters that she was treating Mr Salters and Mrs Salters did not ask her any questions. With regard to paragraphs 8 and 9 of Mrs Salters' affidavit, Dr Reddan did not disagree with their content in that she did not, "in a specific sense" inform her that her interview would form part of her report or of the purpose for which she intended to use her interview with Mrs Salters. Dr Reddan was aware that she knew in general that her husband was seeing her for a report and she took notes in front of Mrs Salters.
With regard to paragraph 10 of Mr Salters' affidavit, Dr Reddan said that she asked Mr Salters whether he had any objection to her speaking with his wife as she would like to have the benefit of her observations. Paragraph 10 was true in part, she said. She has a standard pattern of what she says in these circumstances.
In her affidavit, Dr Reddan spoke of her practice in interviewing for medico-legal purposes and her practice in preparing the subsequent report:
"14. It is impossible to know whether collateral information provided by another party is of any value to the evaluation until after speaking with that party and that cannot be determined in advance.
15.It is not unusual for a spouse, close relative, or close friend to be interviewed as part of a psychiatric evaluation for either treatment or medico-legal purposes if time permits.
16.Very often no other person is immediately available, but if a spouse is immediately available, I often interview him or her.
17.It is my usual practice to conduct those interviews separately.
18.It is my practice to clearly outline in every report I do for medico-legal purposes, the information I was provided with and therefore it is my practice to set out in the report what any person I interviewed tells me. This does not necessarily mean that the information obtained from a spouse, close relative or close friend outweighs the information provided by the examinee."
In giving oral evidence, Dr Reddan referred to an extract from a booklet entitled Practice Guideline for Psychiatrists Evaluation of Adults (1st edition, 1995, Washington) ("Practice Guideline"), which has been prepared by the American Psychiatric Association. That association, she said, is possibly the premier association in the world and has 17,000 to 18,000 members. She was not aware of the percentage of psychiatrists who followed it but she knew that a number did. The Australian College has not produced anything similar. The extract reads:
"The interview-based data are integrated with data that may be obtained through other components of the evaluation, such as a review of medical records, a physical examination, diagnostic tests, and history from collateral sources.
…
The psychiatrist should always consider using collateral sources of information. Collateral information is particularly important for patients with impaired insight, including those with substance use disorders or cognitive impairment, and is essential for treatment planning for patients requiring a high level of assistance or supervision because of impaired function or unstable behavior (sic). Nonetheless, the confidentiality of the patient should be respected, except when immediate safety concerns are paramount. Family members, other important people in the patient's life, and records of prior medical and/or psychiatric treatment are frequently useful sources of information. The extent of the collateral interviews and the extent of prior record review should be commensurate with the purpose of the evaluation, the ambitiousness of the diagnostic and therapeutic goals, and the difficulty of the case." (pages 6 and 20)
With respect to gathering information from collateral sources, such as spouses, Dr Reddan said that there were more advantages in treatment, but that there were still some advantages in medico-legal interviews. At times, another significant person may have a better memory of how the patient's symptoms evidenced themselves than does the patient and he or she may have a better perception of the patient's response to treatment. He or she may also be able to compare the patient's level of functioning before and after treatment. His or her perceptions may not be accurate and so the information is not set in stone. At the same time, it may be useful if the person sees the patient on a day to day basis.
Mr John Peter Vandeleur
Mr John Peter Vandeleur is a solicitor who stated in an affidavit that he has practised extensively in the area of personal injury claims. He states that he has acted in numerous cases where the plaintiff has been examined by a psychiatrist whether engaged by the plaintiff or the respondent. He continues:
"5. I cannot recall any occasion in relation to any matter I have handled where a psychiatrist engaged by or on behalf of a Defendant has to my knowledge interviewed a Plaintiff's spouse or any person other than the Plaintiff for the purpose of preparation of a report."
Mr Ross McConaghy
Mr Ross McConaghy was admitted to practice as a solicitor in 1989. In an affidavit, he stated that he had extensive experience in relation to personal injury claims. Telstra is not a client of his and never has been, he said. He was then the solicitor in charge of the Personal Injuries Claims Section at Suncorp and had been for the previous four years. In that position, he said, he handled or supervised thousands of claims for damages for accidental personal injury. In relation to a psychiatrist's speaking to a spouse after speaking to the individual concerned and before preparing a report, Mr McConaghy said:
"8. I cannot recall any occasion when an injured claimant tried to refuse permission for the partner to be interviewed or complained that such an interview had taken place without the claimant's permission.
9.It is my experience that Psychiatrists often speak to the partner of the Plaintiff of Applicant prior to the presentation of their medico-legal report."
Mr William John Dillon
Mr William John Dillon is also a solicitor and he has practised since 1971. Since then, he said, he has had extensive experience in relation to personal injury claims and has acted for both plaintiffs and defendants. Telstra is not, and has not been, a client of his. Mr Dillon said that he is "… experienced in having Psychiatrists make examination in Personal Injuries Actions." (paragraph 5) He said that it is his "… experience that it is not unusual for Psychiatrists to speak to the partner of the Plaintiff of Applicant prior to preparation of any medico-legal report." (paragraph 7)
Dr Martin Nothling
Dr Martin Nothling is a consultant psychiatrist who has practised as a Consultant Physician in Psychiatry since 1975. He is a fellow of the Royal Australian and New Zealand College of Psychiatrists and an International Member of the American Psychiatric Association. Dr Nothling said that it is his experience "… as a practising Psychiatrist that in the course of examination of persons referred for medico-legal purposes or otherwise, [he] frequently speak[s] to the partner of that person as a source of collateral information." (paragraph 5)
Dr Donald Archibald Grant
Dr Donald Archibald Grant, who has been in practice as a Consultant Psychiatrist since 1983, is also a fellow of the Royal Australian and New Zealand College of Psychiatrists and is Clinical Associate Professor in Psychiatry at the University of Queensland as well as holding a number of other positions. In his affidavit, he said:
"5. I am informed by Dr. Jill Reddan and verily believe that in the current Application the Applicant David Salters was examined by her and subsequent to that examination, Dr. Reddan spoke to the Applicant's wife, Annette Salters prior to the preparation of her report.
6.It is my experience as a practising Psychiatrist that in the course of examination of persons referred for medico-legal purposes or otherwise, I frequently speak to the partner of that person as a source of collateral information."
The Practice Guideline
During the course of her evidence, I asked Dr Reddan for a full copy of the Practice Guideline. Through Telstra's solicitors, she sent a copy of pages 1-6 and page 20 of the publication.
In the passaged headed "Statement of Intent", the Practice Guideline states that it was developed by psychiatrists who are in active clinical practice while some contributors are primarily involved in research or other academic endeavours. The Practice Guideline has been extensively reviewed by members of the American Psychiatric Association as well as by representatives from related fields. At the outset, the document states that it:
"…is not intended to be construed or to serve as a standard of care. Standards of care are determined on the basis of all clinical data available for an individual case and are subject to … change as scientific knowledge and technology advance and patterns evolve. These parameters of practice should be considered guidelines only. Adherence to them will not ensure a successful outcome in every case, nor should they be construed as including all proper methods of care or excluding other acceptable methods of care aimed at the same results. The ultimate judgment regarding a particular clinical procedure or treatment course must be made by the psychiatrist in light of the clinical data presented by the patient and the diagnostic and treatment options available." (pages 3 and 4)
The section of the Practice Guideline headed "Summary" provides an overview of the organisation and scope of the recommendations made in the publication. It is important to note that the Practice Guideline "… focuses on the purpose, site, domains, and process of clinical psychiatric evaluations." (page 4) Discussed are "General psychiatric evaluations, emergency evaluations, and clinical consultations, conducted in inpatient, and other settings …" (page 4). The Practice Guideline continues:
"The domains of these evaluations include the reason for the evaluation, history of the present illness, past psychiatric history, general medical history, psychosocial/ developmental history (personal history), social history, occupational history, family history, review of systems, physical examination, mental status examination, functional assessment, diagnostic tests, and information derived from the interview process.
Processes by which information is obtained and integrated to address the aims of the evaluation are described. Methods of obtaining information discussed include the patient interview; use of collateral sources; use of structured interviews, questionnaires, and rating scales; use of diagnostic, including psychological and neuropsychological, tests; use of the multidisciplinary team; examination under medication and/or restraint; and the physical examination. The process of assessment includes diagnosis and case formulation, formulation of the initial treatment plan, decisions regarding treatment-related legal and administrative matters, addressing of systems issues, and consideration for sociocultural diversity.
Other special considerations discussed include interactions with third-party payers, privacy and confidentiality, legal and administrative issues in institutions, and evaluation of elderly persons. " (page 4 and 5)
In the passage headed "Introduction", the Practice Guideline states that it is "… intended primarily for general, emergency, and consultation evaluations for clinical purposes ..." and generally of adult patients aged 18 years or older (page 5). It then goes on to state that "Other psychiatric evaluations (including forensic, child custody, and disability evaluations) are not the focus of this guideline." (page 5)
CONSIDERATION
It was common ground between the parties that Telstra did not require Mr Salters to attend the appointment with Dr Reddan pursuant to the power given to it by s. 57 of the Act. I agree that is so for the wording of the letter written by Telstra's solicitors on 9 September, 1999 was not written in the terms of compulsion that would have been expected had s. 57 been relied upon. At the same time, I agree with Mr Keim's submission that s. 57 is an important part of the background in this matter. It is important for two reasons. The first is that, had Mr Salters declined to attend an appointment with Dr Reddan without reasonable excuse, it could be expected that Telstra would rely upon its powers of compulsion to require him to attend at some stage. It is reasonable to expect that a legal representative would advise his or her client to attend the examination having regard to that likelihood as well as to other relevant factors. The second is that it sets out the parameters of what Telstra could have required and so would have determined the basis upon which Mr Salters would have been advised to attend the examination. Those parameters are such that, had it been intended that Dr Reddan interview Mrs Salters and rely upon that interview, then Mrs Salters' consent to that interview should have been sought and the basis upon which her consent was sought made clear to her. It was common ground between the parties that Mrs Salters' could not have been required to attend the examination without her consent.
That brings me to the parameters of s. 57. Provided certain criteria are met (and there is no question that they were met in this case), s. 57(1) provides that Telstra "… may require the employee to undergo an examination by one legally qualified medical practitioner nominated …" by it. An employee may be required to attend more than one such examination but not at more frequent intervals than are specified in a written notice given by the Minister (s. 57(6)). Telstra is required to pay the cost of the examination and to reimburse the employee for the cost of the journey he or she must make, or accommodation he or she must obtain, to attend the examination (s. 57(3)). Should an employee refuse, or fail without reasonable excuse, to undergo that examination, or in any way obstruct an examination, his or her rights to compensation under the Act and to institute or continue any proceedings under the Act in relation to compensation are suspended. They are suspended until the examination takes place (s. 57(2)). No compensation is payable to an employee in respect of the period of suspension (s. 57(5)).
The essence of Mr Dickson's submissions was that Dr Reddan's practice accorded with common practice, there was prior consent to Mrs Salters' being interviewed by both Mr and Mr Salters (if, indeed, Mr Salters' consent was required) and the purpose of the interview, and the fact that it could affect her opinion, were explained to them by Dr Reddan. There was no basis upon which Dr Reddan's report should be excluded pursuant to either ss. 135 or 138 of the Evidence Act 1995 (Evidence Act). In any event, s. 33(1)(c) of the AAT Act is very broad when it provides that:
"In a proceeding before the Tribunal:
…(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate."
Quite apart from these matters, Mr Dickson submitted, there was no unfairness by reason of Mr and Mrs Salters' being interviewed separately by Dr Reddan. Neither Mr nor Mrs Salters indicated any dissatisfaction with that at the time of the interviews and, in any event, it is good practice as every lawyer is taught. There was no suggestion of any emotional or other factor making a joint interview with them desirable. Mr Salters has never asserted that his consent had to be obtained before his wife could be interviewed and, in any event, he agreed to her being interviewed. There is no property in a witness, Mr Dickson continued, especially when the witness is a spouse.
In considering the issues, it seems to me that the first thing to consider is the purpose of an expert witness's report for the report sought from Dr Reddan is that of an expert witness. In forming an expert opinion to enable an expert to prepare a report, an expert has to do so on the basis of certain premises of fact. Those premises of fact may be given to him or her by, for example, the solicitors who request a report. They may be premises that are stated in any written material supplied to the expert by those solicitors. They may be premises he or she may glean from other sources. From wherever they are gleaned, the premises upon which an expert bases his or her opinion must be expressly stated in the report. If they are not stated and if they are not readily identifiable or admitted by the parties, the report is not admissible in evidence. It is not enough simply to refer generally to evidentiary material en bloc without specifying the premises or facts upon which the expert relies. (Trade Practices Commission v Arnotts Ltd and Others (1990) 92 ALR 527 at 533, per Beaumont J).
The reason why it is important to state the premises in the report was explained by Lawton LJ in R v Turner [1975] 1 QB 834:
"'Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment, counsel calling an expert should in examination-in-chief ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination.'" (page 840)
Once it knows the facts upon which an expert opinion is based, the court or tribunal can distinguish between expert opinions. In this regard, Beaumont J in the Arnotts' case referred to a passage from Wigmore on Evidence (Chadbourne rev 1979, page 934):
"'The key to the situation, in short, is that there may be two distinct subjects of testimony – premises, and inferences or conclusions; that the latter involves necessarily a consideration of the former; and that the tribunal must be furnished with the means of rejecting the latter if upon consultation they determine to reject the former, ie of distinguishing conclusions properly founded from conclusions improperly founded.'" (page 531)
Having stated the premises, there is a question as to the truth of the facts in those premises. It may be that an expert can give evidence both as to the truth of the facts as well as to his or her expert opinion based on those facts. That may be the case where, for example, the issues are wholly within his or her expertise. It may be, however, that he or she can only give his or her expert opinion upon hypothetical matters and the truth or otherwise of those matters is left to the evidence of others. Whichever may be the case, it is not for the expert to make the findings of fact upon which his or her expert opinion is based for to do so would be to displace the role of the court or tribunal charged with fact finding.
That is not to say that the expert cannot do his or her own research. It is only to say that the expert must clearly state the facts that he or she draws from that research and on which he or she bases his or her opinion. If there are limitations to be placed upon the research undertaken it must come from requirements other than those to state clearly the premises in the report. Those requirements may be found in the professional standards and ethics pertaining to the expert and to those who request the report.
That brings me back to Dr Reddan's report. At the outset, she has set out the sources of her information: the interview and assessment of Mr Salters; the interview with Mrs Salters; T documents; report of Dr G. Knight dated 14 December, 1998; and a statement prepared under s. 37 of the AAT Act. The first 61/3 pages of her 15 page report set out the history of the presenting complaint given by Mr Salters. The next 2/3 of a page sets out what Mrs Salters said in her interview. It is followed by the past medical, surgical and psychiatric history and the personal history given by Mr Salters. Then follows that mental state examination in which Dr Reddan set out her own assessment of Mr Salters' mental state. Mr Salters completed the Minnesota Multiphasic Personality Inventory ("MMPI-2") which Dr Reddan described as "… a well researched psychometric instrument that is designed to assess current psychopathology and personality functioning. It consists of 567 items to which the individual answers 'true' or 'false'. It is not a diagnostic instrument." Dr Reddan then evaluated the accompanying material which comprised a letter written by Mr Salters to GIO Australia, another written by his supervisor and reports by Dr Holm, Dr Knight and Dr Low. In formulating her opinion, Dr Reddan stated that she had taken into account Mr Salters' self report, the history provided by Mrs Salters, the mental state examination, the result of the MMPI-2 and the accompanying material.
It would follow that Mr Keim is correct in submitting that Dr Reddan used the information gleaned from Mrs Salters in formulating her opinions and conclusions. The manner in which that information led Dr Reddan to form her opinions and conclusions and the weight she gave it when balanced with the other information she obtained is not clear either from her report or from her subsequent affidavit. All that is clear from that material is that the information obtained from a person's spouse, close relative or close friend does not necessarily outweigh that obtained from the person him or her self. That is not a criticism of the report for the premises upon which she stated her opinion are clear. The foundations of those premises can be tested during the hearing.
It is the manner in which Dr Reddan obtained part of the information upon which she based her premises that is in issue in this case. The manner was determined at the immediate level by Dr Reddan herself but it was also determined in the context of the purpose for which it was sought and by those for whom it was sought. Beginning with the immediate level, I am satisfied on the basis of the evidence I have been given that Dr Reddan thought that she was acting properly within the bounds of the request she had received and as she understood the requirements of her profession. With regard to the latter, her evidence of the propriety of speaking with a person's partner as a source of collateral information in medico-legal matters is endorsed by Dr Nothling and Dr Grant who are psychiatrists with considerable experience. I do not consider that it is endorsed by the extract from the Practice Guideline for it states that its focus is not upon, among others, forensic (i.e. medico-legal) evaluations. Indeed, the whole tenor of the passages I was forwarded by Telstra's solicitors is that they are directed to clinical evaluations. That those passages accurately reflect the tenor of the Practice Guideline is confirmed when reference is made to the whole of the publication.
I also accept that Dr Reddan thought that she had properly obtained the consent of Mr and Mrs Salters to her interviewing Mrs Salters. Whether she had in fact obtained their consent in a form that was appropriate to the circumstances is another matter and not a matter which it was entirely within her power to control. From Dr Reddan's point of view, I am satisfied that she asked Mr Salters whether he minded her speaking with his wife or whether he had any objection to her doing so. Both Dr Reddan and Mr Salters recall that and I base my finding on their recollection. On the same basis, I find that Mr Salters indicated in some way that he was happy for Dr Reddan to talk with his wife. The recollections of Dr Reddan and Mrs Salters vary a little but perhaps the variation is of no great moment. Mrs Salters recollection is that she was "invited" into Dr Reddan's rooms for a "bit of a chat". Dr Reddan's is that she indicated that she would like to talk to her. Whatever language was used, I find that Mrs Salters agreed to talk with Dr Reddan.
What it was agreed that Dr Reddan would talk about with Mrs Salters is another matter. I am satisfied that, to Dr Reddan's mind, there was only one focus of the conversation and that was all upon her medico-legal assessment of Mr Salters at the request of Telstra's solicitors. She was clear in her own mind and, as far as she was concerned, Mr and Mrs Salters knew that she would write a report about Mr Salters and that their interviews would assist her in writing that report. I accept that neither Mrs Salters nor Mr Salters questioned her as to why she wanted to speak with Mrs Salters and that Mrs Salters did not ask for advice about her husband's treatment.
Looking at the matter from the point of view of Mr and Mrs Salters, there is a different scenario. On the basis of the evidence of each of them, I accept that they both knew that Mr Salters had an appointment with Dr Reddan and that the appointment had been arranged by Telstra's solicitors. In Mrs Salters' words, Telstra was the "opposition". Telstra was the opposition but it goes without saying that a professional medical practitioner will give an independent opinion uninfluenced by the identity of the person requesting the opinion. Bearing that in mind, it is not at all unreasonable for Mrs Salters to think that Dr Reddan might have some advice for her in relation to the appropriate treatment for her husband even though Dr Reddan's primary task is to prepare a report. I do not accept that a person in Mrs Salters' position would expect to receive such advice only from her husband's own medical advisers. I accept that she did not convey that thought to Dr Reddan but it makes it no less a genuine thought influencing her actions in agreeing to talk to Dr Reddan about her husband. I accept her evidence that it was the reason why she agreed to speak with Dr Reddan. I do not resile from that conclusion even though I also accept that Mrs Salters continued to speak with Dr Reddan even when she saw Dr Reddan taking notes of what she said. The fact that Mrs Salters saw Dr Reddan taking notes does not lead to the conclusion that she must have known that Dr Reddan was doing so for the purposes of preparing her report and not for the purpose of giving advice. Although it does not influence my findings in this regard, I note that Dr Reddan did ultimately make a recommendation in her report as to Mr Salters' future treatment in addition to expressing her opinion on other matters.
The actions of Mr and Mrs Salters must also be considered against the wider backdrop of the circumstances in which they came to attend at Dr Reddan's rooms. Mr Salters has engaged solicitors to represent and advise him in these proceedings. His solicitors conveyed to him that Telstra had arranged the appointment with Dr Reddan. Although there is no specific evidence, I am satisfied that he would have been told the whole of the contents of Telstra's solicitors' letter of 9 September, 1999 including the attached notes from Dr Reddan. On the basis of the contents of that letter, I am satisfied that, before he attended Dr Reddan's rooms, Mr Salters would have understood that he was to be examined. From Dr Reddan's notes accompanying the letter, he would have understood that an examination comprised "an interview" (emphasis added), other investigations or other testing. I am satisfied that there is nothing in the correspondence of 9 September, 1999 that could have led him to think that his wife would be interviewed by Dr Reddan.
Is this a case of the type raised in Devi and Comcare (unreported, [AAT 11113], 27 May, 1996, Deputy President Chappell) in which it is not appropriate now to complain about the report when no complaint was made at the time it was requested? I think not. Mr Salters' solicitors had only the letter to advise them. They had no reason to think that they need advise Mr Salters whether or not he should take his wife to the interview or not for there was no suggestion that she was to be interviewed were she to attend. While Mr Dickson is quite right in submitting that Mr Salters never asserted what he described as "any unenlightened notion that relations between Mr Salters and his wife required that his consent be obtained before she could be interviewed" (submissions, paragraph 11(xiv)), his submission overlooks the fact that Mr Salters had a right to decide whether or not he asked his wife to attend the interview with him in the first place. I accept his evidence, and that of his wife, that she usually attended all of his medical appointments for moral support but asking her to attend for moral support for him and asking her to attend an appointment in which her views might be sought and used are two different matters. It was a matter upon which he might reasonably be expected to seek the advice of his solicitors.
I find that his solicitors did not advise him as to what he should do. I find that they did not do so for three reasons. The first was that, from the terms of the request in the letter of 9 September, 1999, they had no way of knowing that Mrs Salters would be interviewed. The second is that they can be expected to have had the terms of s. 57 of the Act in mind. If their client were not to agree to the request to attend the appointment for an interview, they would have been mindful that, as "the employee", he could have been required to "undergo an examination" pursuant to that provision. There is nothing in the letter to suggest that Telstra's solicitors were requesting anything other than that which they could otherwise require under s. 57.
The third, which is related to the first, is that there is no basis upon which I am satisfied that the solicitors should have known it from normal practice. That is so because I am not satisfied on the basis of the evidence that there is a normal practice that persons who accompany a legally represented claimant to the appointment may be interviewed by a psychiatrist for the purposes of a medico-legal report without prior notice to the claimant's legal representatives. The affidavits lodged on behalf of Telstra do not specifically address the issue. They address either the issue whether an injured claimant has ever tried to refuse permission for his or her partner to be interviewed or complained that such an interview has taken place (Mr McConaghy) or whether it is unusual for psychiatrists to speak to the claimant's partner prior to the preparation of any medico-legal report (Mr Dillon). They do not address the issue of whether a claimant was, in the past, given notice prior to the appointment that his or her spouse might be interviewed for the purposes of the particular reports or, if they were not, whether it was appropriate that notice not be given. The fact that no-one has complained in the past does not lead either to the conclusion that they have been given notice prior to the appointment or that they have not. Nor does it lead to the conclusion that, if there were no notice given, it was appropriate not to do so. Mr Vandeleur, on the other hand, does address both the issue of whether psychiatrists interview a claimant's spouse as a part of normal practice and whether or not notice should be given to the claimant's solicitors if they wish to do so. On the former point, his experience is to the contrary of that given by Mr Dillon and, on the latter, his evidence is that it is inappropriate not to give prior notice to the claimant's solicitors.
Was Mr Salters disadvantaged by not receiving notice of Mrs Salters' possibly being interviewed at some time before the appointment? The essence of Mr Dickson's submissions was that he was not disadvantaged. He advanced a number of reasons to support his submission: Mr Salters has not complained about the references to his wife in the reports of Dr Knight and Dr Low; the purpose of the examination was to provide specialist evidence to the Tribunal to assist it in reaching the correct or preferable decision and Mrs Salters would not contend that she would do anything other than assist the Tribunal; Mr and Mrs Salters did not attempt to contact his solicitors during the appointment with Dr Reddan; there was no unfairness in the manner in which the interviews were conducted; Mrs Salters' evidence is relevant and probative; the evidence in Dr Reddan's report is relevant and probative; and the AAT must have regard to evidence which is logically probative whether it is legally admissible or not (Re Pochiand The Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 257 per Brennan J).
The starting point for considering these submissions is the case of Re Pochi. Certainly, Brennan J in Re Pochi did say that the majority judgements in The King v War Pensions Entitlements Appeals Tribunal ex parte Bott (1933) 50 CLR 228 "… show that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not" (page 257). That is not to say, however, that logical probity is the only matter that is taken into account. It is apparent from the passages quoted by his Honour that issues of "substantial justice" must be taken into account. Immediately after the passage referred to by Mr Dickson, for example, he refers to a passage from the judgement of Starke J in Bott's case in which he said:
"'The Appeal Tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent medical opinion, for instance, upon oath, and whether cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence, and is authorized to act according to substantial justice and the merits of the case.'" (Bott's case pages 249-250 and Re Pochi page 257)
Earlier, Brennan J had referred to the dissenting judgement of
Evatt J in the same case when he said:
"'Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, "bound by any rules of evidence." Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice".'" (Bott's case page 256, and Re Pochi page 256)
At the heart of Re Pochi, then, is the need to ensure that substantial justice is achieved between the parties. That is not to say, however, that the rules of evidence are irrelevant for the rationales underpinning those rules may be relevant in considering what amounts to substantial justice.
With that in mind, I have turned to the Evidence Act 1995. Section 135 of the Evidence Act gives a court a general discretion to exclude evidence if its probative value is substantially outweighed by the danger that the evidence may be unfairly prejudicial to a party, be misleading or confusing, or cause or result in undue waste of time. It is, however, primarily s.138 upon which the parties focused in this case:
"138. (1) Evidence that was obtained:
(a)…; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)…
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant of Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."
Section 138 is not limited in its application to evidence obtained by law enforcement officers in consequence of an impropriety or of a contravention of Australian law. As Crispin J observed in R v Malloy [1999] ATCSC 118 (9 November, 1999):
" Furthermore, it is clear that the section applies to evidence that has been illegally or improperly obtained by anyone whilst the common law principle was generally applied in relation to evidence which has been procured by unlawful conduct on the part of police or other investigative officers. …" (paragraph 10)
Section 138(3) has been considered in several cases. In The Queen v John Nan Tuong (No SCC14 of 1995 Human Rights [1996] ACTSC 12 (19 March, 1996)), Miles CJ said:
"Sub-s. 138(3) lays down a non-exclusive list of matters which must be taken into account, leaving it to the Court to decide how such matters are to be taken into account and what weight is to be given to each. The sub-section does not state whether the relative weight of any such matters favours admission or non-admission. It may be implied that the weight of some matters favours admission.
For instance, if the probative value was high, that would tend to favour admitting the evidence. If the impropriety or contravention were deliberate that would tend to favour not admitting the evidence. On the other hand, it is far from clear whether the 'importance' of the evidence favours admission or non-admission. Behaviour contrary to the International Covenant on Civil and Political Rights would appear to favour non-admission.
…
In contrast, in the present case, the Bunning v. Cross test does not apply and whilst s.138 may require the exercise of a discretion very similar to that in Bunning v. Cross, it is the section to which the Court must pay attention, bearing in mind that the onus is on the prosecution to establish that the desirability of admitting the evidence outweighs the undesirability."
His Honour considered the provision again in The Queen v Tore Bjorn Haughbro (No SCC 164 of 1996 [1997] ACTSC 112, 19 December, 1997) where he decided to admit evidence procured by an under cover police operative:
"… Sub-section 138(3) provides for a number of particular matters that the Court must take into account, without limiting the Court to those particular matters. It may be that in some circumstances considerations relating to one or more of these particular matters are so over-whelming that consideration of any others may be ignored for the purpose of delivering reasons, but unless the case is a very clear one, the balancing exercise will usually be delicate and the Court will not be able to ignore any one of the particular matters which the section says must be taken into account. The matters enumerated constitute more than just a 'check list'. I think that in the circumstances of this case I am obliged to consider each matter in turn."
Master Connolly of the ACT Supreme Court also considered the discretion to exclude evidence pursuant to s.138 in Klein v Bryant ([1998] ACTSC 89, 4 September, 1998) where he said:
"44. I am satisfied that this provision, although usually considered in the context of criminal prosecutions, was intended to and does apply also to the consideration of the admissibility of evidence in civil matters (Odgers, Uniform Evidence Law, 2nd Ed, Federation Press 1977 p243; Cross on Evidence, Australian Ed, Heydon, 27,118). To the extent that this alters the proposition that at common law there was no discretion to exclude illegally obtained evidence in a civil claim (Pearce v Button (1985) 60 ALR 537 per Pincus J at 551), I am satisfied that this is the proper interpretation and intended consequence of the Evidence Act."
45. …
46. While a consideration of the admissibility of material said to be improperly obtained is now an exercise of a statutory discretion, I am able to obtain guidance from the common law discretion developed by the High Court in Bunning v Cross (1978) 141 CLR 54 at 74. In that case Stephen and Aickin JJ said that the common law discretion involved
'...the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to those whose task it is to enforce the law.'"
(and see also R v Malloy (op. cit., paragraph 10), Crispin J, at paragraph 10)
When regard is had to the principles in these cases, it seems that the ultimate test is whether it is a "fair thing" that the evidence be admitted. In other words, what does substantial justice require? As Miles CJ said in The Queen v Tore Bjorn Haughbro (No SCC 164 of 1996 [1997] ACTSC 112, 19 December, 1997) of the discretion in s. 138 in the context of a criminal proceeding:
"The balancing of the various factors required by sub-s.138(3) is not to be done in any mechanical way. There is nothing in the Evidence Act to indicate how much weight is to be given to one factor rather than another or whether the relative weight of a particular factor has admission or non-admission. … I agree with the remarks of Hidden J. in Salem at 17 that the ultimate and essential question to be decided is whether the public interest is best served by the admission of evidence tending to establish the accused's guilt of the crime notwithstanding that that evidence was obtained by the unlawful or improper conduct of law enforcement authorities. Once the impropriety or contravention is proved, then the prosecution must show that the discretion to exclude the evidence should not be exercised. …. I can do no better in summing up the position than by borrowing from the words of Judge Shadbolt, the trial judge in Salem, words which were approved by the Court of Criminal Appeal: '[The evidence] is not, in my view, evidence obtained at too high a price such as to offend against a sense of fair play or immediately to arouse feelings of moral outrage. …" (page 5)
Returning to Dr Reddan's report, it would appear that, on its face and subject to its being tested in the usual fashion, its content report is logically probative in deciding the issues in this case. It is an important piece in the evidentiary patchwork but it is not crucial in the sense that, admittedly at some expense, Telstra could obtain another report quite readily. An expert report obtained for the purposes of a merits review of a worker's compensation decision must be contrasted with, for example, evidence obtained for the purpose of a criminal proceeding in relation to a serious offence. In the criminal jurisdiction, the seriousness of the offence is a matter which has weighed in favour of the improperly obtained evidence being admitted into evidence: Cleland v The Queen (1982) 151 CLR 1 at 17; R v Addabbo (1982) 33 SASR 84 at 98.
Merits review is more akin to a civil claim for damages in which one party alleges that the other may be overstating their claimed disability. Such a proceeding was considered in Klein v Bryant (op. cit.) where Master Connolly stated:
"54. The strongest factor which favours non admission is the undesirability of, to adopt the words used by Their Honours in Bunning v Cross, providing curial approval or even encouragement of this type of conduct. I am satisfied that these factors are central to the consideration required to be made by s.138 of the
"...undesirability of admitting evidence which has been obtained in the way in which the evidence was obtained."
…
57. In the present case I am not, of course, considering the competing balance of convicting a person accused of a major drug offence and the conduct of police. It seems appropriate to observe that, to the extent that the motive of the party seeking admission of evidence is properly relevant, the public interest in the conviction of those guilty of crime may be more compelling than the public interest in demonstrating whether a claimant in a civil damages claim is overstating her level of disability."
Applying these principles to the case of a worker's compensation claim, the public interest in permitting the admission of evidence obtained with an impropriety so that the correct or preferable decision is reached in a particular case is not as pressing as it would be were the issue under consideration to be whether a person is guilty of a serious criminal offence.
The consequence of Mr Salters' not being informed that his wife could be interviewed by Dr Reddan is quite grave. It took away his right to consider before the appointment whether or not he would take her and his right to consider whether he should obtain the advice of his legal practitioners in that regard. To suggest that he could have sought such advice during the appointment is not realistic. There is no evidence to the effect that either Mr Salters or Dr Reddan raised the possibility that he might like to do so. Given Dr Reddan's understanding of the process, there is no reason why she should think to raise it. There is no evidence to suggest that Mr Salters thought to ask for the opportunity to get advice. It is understandable that he did not for, however sophisticated they may be in their own professions and place in the world, persons in Mr Salters' position are often loath to question a medical practitioner or to suggest that they should interrupt an appointment to seek the advice of another. That is so however great the personal warmth shown by the medical practitioner. In such circumstances, I do not accept Mr and Mrs Salters' apparent acquiescence as informed consent. As Cook J said in Meates v Attorney-General [1981] 2 NZLR 335: "…while consent may include acquiescence, it must be a genuine consent and not a mere acquiescence in what a person believes to be another's lawful right." (page 346 and see also Ghani v Jones [1975] 1 QB 693 at page 705 and Pearce v Button (1985) 60 ALR 537 at page 540 per Pincus J).
On the evidence I have, I am not satisfied that the failure to give Mr Salters' solicitors, and so Mr Salters, notice that Mrs Salters might be required is either deliberate or reckless. On the evidence, the most that I can say is that it came about because there may be no common understanding of what is the normal practice in such matters. There is no suggestion that the failure is inconsistent with any right recognised by the International Covenant on Civil and Political Rights. It is not clear whether any other proceeding has been, or is likely to be, taken in relation to this matter.
Taking all of the matters specified in s. 138(3) of the Evidence Act into account, I consider that Dr Reddan's report should not be admitted. The failure to advise Mr Salters' solicitors that Dr Reddan might ask his wife if she wished to be interviewed, placed him at a disadvantage in obtaining appropriate advice as to whether she should attend. It also placed Mrs Salters at a disadvantage in obtaining advice. On the basis of their evidence I accept that she would not have spoken to Dr Reddan had she been fully informed and advised. Both should have been given an opportunity to get advice. When the relative ease with which Telstra will be able to obtain and substitute an alternative report for that of Dr Reddan in these proceedings is balanced against the disadvantage under which Mr Salters was placed, I have come to the conclusion that Dr Reddan's report should not be admitted in evidence.
In reaching this conclusion, it seems to me that it is not to the point to consider whether or not Dr Reddan's report accurately reflects Mrs Salters' views. For that reason, I did not allow questions to test the accuracy of the report in that regard. It also seems to me not to the point to consider whether or not she has accompanied her husband to other appointments and has made a comment, or more than one, to the medical practitioner examining her husband. There is no evidence as to whether or not they had proper notice on those occasions or whether there was anything like an interview of Mrs Salters or simply comments she made while providing moral support for her husband.
I have taken into account the possibility that Mrs Salters could, at any hearing of the substantive merits of the case, be called as a witness and examined or cross examined as to her observations of her husband's condition. She certainly could be but, if that occurs, it can be expected that both she and Mr Salters will be advised appropriately by his solicitors as to what she is to expect and the use that will be made of her statements.
I am satisfied that both Mr and Mrs Salters want the Tribunal to consider the matter on the basis of all relevant material and to reach the correct or preferable decision. Their wanting that does not override my responsibility to ensure that the decision is reached after substantive justice has been provided to both parties.
Finally, I have considered whether the issue of the admissibility should have been deferred until the hearing of the substantive merits of the application. I have decided that it should not for to have done so would mean that the hearing might have needed to be adjourned while Telstra sought another expert opinion. As it is, Telstra has the opportunity to consider its position and take whatever steps it considers appropriate without the parties' and the Tribunal's incurring the costs of an interrupted hearing.
For the reasons I have given, I direct that the report of Dr Reddan dated 23 November, 1999 is not admissible at the hearing of the application.
I certify that the seventy nine preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed: ………………………....
M Martinez AssociateDate of Hearing 2 February, 2000
Date of Decision 23 August, 2000
Counsel for the Applicant Mr S Keim
Solicitor for the Applicant Maurice Blackburn Cashman
Counsel for the Respondent Mr R Dickson
Solicitor for the Respondent Standish Partners
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