Sheward and National Disability Insurance Agency
[2021] AATA 3372
•20 September 2021
Sheward and National Disability Insurance Agency [2021] AATA 3372 (20 September 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/3473
Re:Julie Sheward
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Member Dr C Huntly
Date:20 September 2021
Place:Perth
The directions made by the Tribunal on 25 August 2021, being that the Concurrent Witnesses must prepare a joint statement and file the joint statement with the Tribunal on or before 11 October 2021, shall stand.
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Member Dr C Huntly
CATCHWORDS
PRACTICE AND PROCEDURE – Administrative Appeals Tribunal Act 1975 (Cth) –– interlocutory decision –– directions regarding concurrent evidence –– objection made to use of concurrent evidence procedure –– Tribunal consideration –– General Practice Directions –– Use of Concurrent Evidence Guideline –– submissions not persuasive –– directions stand.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 18B(1), 33, 68AA
CASES
Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) [2012] FCA 385
Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454
Liverpool Roman Catholic Archdiocese Trustees Inc V Goldberg (No 3) [2001] 4 All ER 950
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Nagel v Clay (2020) Fam CA 326
SECONDARY MATERIALS
Administrative Appeals Tribunal, General Practice Direction (28 February 2019)
Administrative Appeals Tribunal, Persons Giving Expert and Opinion Evidence Guideline (30 June 2015)
Administrative Appeals Tribunal, Use of Concurrent Evidence in the AAT Guideline
(30 June 2015)REASONS FOR INTERLOCUTORY DECISION
Member Dr C Huntly
20 September 2021
BACKGROUND
On 25 August 2021 directions were issued by Member Dr Colin Huntly to the parties in the matter of Re: Sheward (Applicant) and National Disability Insurance Agency (Respondent) (No 2020/3473).
Those directions inter alia included directions relating to the hearing of expert witnesses nominated by the parties, Ms Dreyer for the Applicant and Ms Chandler for the Respondent (the Concurrent Witnesses), pursuant to the Tribunal’s General Practice Direction (General Practice Direction)[1] and the Tribunal’s relevant guidelines, namely “Use of Concurrent Evidence in the AAT” (Concurrent Evidence Guidelines)[2] (the concurrent evidence directions).
[1]Administrative Appeals Tribunal, General Practice Direction (28 February 2019), ‘Expert and opinion evidence’ [2.15]-[2.17]; ‘Medical and other expert reports and witnesses’ [4.49]-[4.52].
[2]Administrative Appeals Tribunal, Use of Concurrent Evidence in the AAT Guideline (30 June 2015).
Parties were granted leave to make further submissions in respect of the concurrent evidence directions. By written submission dated 1 September 2021 the Respondent objected to the concurrent evidence directions based on a number of factors, each of which appear to relate to two broad grounds, namely:
(a)the Respondent appears to object to the Applicant’s choice of expert witness per se, due to perceived conflict of interest issues, that have been addressed at some length in prior written submissions of the Respondent; and
(b)the Respondent suggests that the evidence of two of its preferred expert witnesses (namely Ms Chandler and Mr Willis) are equally relevant to any assessment of the expert evidence of the Applicant’s preferred expert witness (Ms Dreyer).
A brief email addressing the Respondent’s submissions was subsequently received from the Applicant’s representative on 8 September 2021. That written submission concurred with the Respondent’s overall conclusion, regarding the concurrent evidence directions.
The Tribunal is grateful to the parties for their thoughtful written submissions relating to the concurrent evidence direction.
Respectfully, however, these submissions by the parties appear to be based on both a misconception as to the nature, and a prejudgment of the outcome, of:
·the conference of expert witnesses and
·the joint report required by the concurrent evidence direction.
Applicant’s submissions
With respect to the written submissions of the Applicant’s representative; in the context of a review application, it is the Tribunal, and not the parties, that must determine questions of fact as a matter of law. Accordingly, the Applicant’s brief submissions are not persuasive.
Respondent’s submissions
The Respondent’s 1 September 2021 submissions, state the Respondent’s understanding that the Tribunal prefers to use the concurrent evidence procedure.[3]
[3]Respondent’s Written Submissions (01 September 2021) [5].
The bulk of the remainder of the Respondent’s submissions of 1 September 2021 proceed on the basis of a misconception of the concurrent evidence procedure. As can be seen in the General Practice Direction extract above, the Tribunal’s guidance documents relating to expert evidence set out the Tribunal’s expectations, not its ‘preferences’.
Discussion
The Respondent is referred to the General Practice Direction,[4] specifically, at [2.16], which states:
We have a guideline which informs parties and experts about our expectations in relation to this type of evidence: see the AAT’s Persons Giving Expert and Opinion Evidence Guideline. Compliance with the matters set out in the guideline may be relevant to determining the weight we will give to the evidence.
(emphasis added).
[4]Issued by the President pursuant to s 18B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). See also the AAT Act at s 33 (Cf: s 68AA).
Similarly, the General Practice Direction addresses “Medical and other expert reports and witnesses”[5] in the following terms:
If you and the decision-maker both want to call experts to give oral evidence at a hearing, unless we direct otherwise, the experts are to give their evidence concurrently. We will usually make a direction relating to the procedures to be followed. For more information, see the AAT’s Use of Concurrent Evidence in the AAT Guideline.
You and the decision-maker must use your best endeavours to facilitate the concurrent evidence procedure, including ensuring that an expert:
(a)is given a copy of the guideline; or
(b)already has a copy of that document.
(emphasis added).
[5][4.51]-[4.52].
Accordingly, the concurrent evidence guideline to which the Respondent refers in its submissions must be read in terms of them being an expectation. This is not how the Respondent’s written submissions are drafted and that misconception necessarily colours those submissions.
Parties are further referred to the President’s “Practice Direction: Review of National Disability Insurance Scheme Decisions” at [7.4]-[7.5]. Specifically:
If there are expert witnesses, such as specialist doctors, we will expect them to give their evidence at the same time. For more information about this, see the “Use of Concurrent Evidence in the AAT Guideline”.
(emphasis added)
Accordingly, parties to an application lodged in the Tribunal, pursuant to the National Disability Insurance Scheme (NDIS) governing legislation should understand that the default position with respect to expert witnesses traversing the same expert evidentiary territory is that the Tribunal’s concurrent evidence procedure will apply. For these reasons, the submissions of the parties are not persuasive.
CONSIDERATION
For the avoidance of any doubt, parties are advised that the substance of the Respondent’s written submissions of 1 September 2021 has been considered. Firstly, with respect to the conflict of interest concerns raised repeatedly by the Respondent in submissions to date with respect to the Applicant’s expert witness.
The Respondent’s written submissions state:[6]
… the Respondent considers that Ms Dreyer has a financial interest in recommending the support in issue which was not disclosed to the respondent and this is a central issue in this case. It is uncertain the extent to which the interest was disclosed to the applicant.”
[6]Respondent’s Written Submissions (01 September 2021) [7].
Notwithstanding the ambiguity of this contention, the expert technical witness relied upon in this matter by the Respondent (Mr Willis) appears to have a financial interest with respect to the technical solution favoured by that witness. This financial interest appears to be similar to that to which the Respondent takes objection regarding the Applicant’s expert witness.
Accordingly, any decision-maker considering the facts in issue in this application will need to address their mind to the question of the qualifications of relevant expert witnesses and any mitigating factors that must be taken into consideration when weighing what value to give to that evidence.
Be that as it may, it is the therapeutic evidence at issue in this application to which the concurrent evidence directions are addressed. That is to say, the therapeutic assessments and support solutions recommended by Ms Dreyer for the Applicant and Ms Chandler for the Respondent. Nothing in the evidence before the Tribunal to date suggests that the Respondent’s expert technical witness (Mr Willis) is qualified to opine on either Ms Dreyer or Miss Chandler’s therapeutic assessments. Indeed, such evidence would be open to critique on the basis of relevance, if not admissibility.
The Tribunal must rationally evaluate the therapeutic assessments of the expert witnesses for both the Applicant and the Respondent. The concurrent evidence directions allow for this in a suitable and established manner. It is proposed that, once the joint report is submitted, a further telephone directions hearing may be held between the parties to discuss how this evidence will be taken at the hearing. At the hearing, the experts can be taken through their joint report in the agreed manner and (as appropriate) particular expert witnesses can be cross-examined on their evidence, including as to credit in the normal course.
That being said, it is noted that the Respondent’s current intention is to call its expert technical witness. Nothing in the documentation received to date suggests that the Applicant’s expert therapeutic witness is being relied upon as an expert technical witness with respect to the particular supports for which funding is being sought. Where a witness provides an opinion outside their area of expertise, submissions can be made at that time as to the relevant weight that should be put on such evidence.
Witness “bias” and Tribunal proceedings
Something should also be said about the question of witness bias in the context of expert evidence. The Tribunal is aware of English dicta suggesting that, where there is a relationship between a proposed expert and the party calling the expert which a reasonable observer might think was capable of affecting the views of the expert so far as to make them unduly favourable to that party the experts evidence should not be admitted (however unbiased the conclusion of the expert might probably be in fact).[7]
[7]Liverpool Roman Catholic Archdiocese Trustees Inc v Goldberg (No 3) [2001] 4 All ER 950 per Evans-Lombe J
This view has not been adopted in Australia.[8] Accordingly, the preferable view appears to be that bias per se is not a bar to admissibility of expert witness evidence in any judicial proceeding in Australia.
[8]See Nagel v Clay (2020) Fam CA 326 at [136]-[152] (Harper J); Ananda Marga Pracaraka Samgha Ltd v Tomar (No 4) [2012] FCA 385 [36]-[51] (Dodds-Streeton J); Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 (Pagone J (generally)).
Given that the Tribunal is not bound by the rules of evidence, it would be inappropriate to adopt a view of expert evidence that was more restrictive than that adopted by the Courts.[9] That is not to say that such considerations and other related matters relevant to the credibility of evidence are irrelevant in all cases, particularly regarding the weight that might be placed on such evidence. Merely that the questions are not the same and must be rationally addressed.
[9]AAT Act s 33.
CONCLUSION
In conclusion, parties are reminded that expert witnesses will be required to attest to their qualifications, accreditation, and experience relevant to the making of their therapeutic assessments in this instance. They should also be reminded that their overriding duty, when appearing in these proceedings will be to the Tribunal and not to their clients, and that they will be required to give sworn evidence. As to countervailing considerations such as bias and conflict, these clearly go to weight and are a question of fact for the Tribunal. Submissions may of course be made at the relevant times by any party wishing to express particular concerns.
In the event that there might be a suggestion that the proceedings of the Tribunal itself would be infected by bias on the part of an expert witness, parties are referred to the discussion by Gleeson CJ and Gummow J in Minister for Immigration And Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531-532.
DETERMINATION
Accordingly, the directions made by the Tribunal on 25 August 2021, being that the Concurrent Witnesses must prepare a joint statement and file the joint statement with the Tribunal on or before 11 October 2021, shall stand.
Following receipt of the joint statement produced by the Concurrent Witnesses, a further telephone directions hearing will be held with the parties, to discuss the way in which these witnesses will be taken through their evidence by the Tribunal at the hearing.
I certify that the preceding 28
(twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Dr C Huntly.....[Sgd]..............................
Associate
Dated: 20 September 2021
Date of Hearing: 15 September 2021 Representative for the Applicant: Ms J Girvan, Coda Auslan Services Representative for the Respondent: Ms S Ryan, NDIA
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