Towers and Anor and Optus Administration Pty Ltd and Anor
[2011] AATA 832
•24 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 832
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4903
GENERAL ADMINISTRATIVE DIVISION ) Re Roderick Towers Applicant
And
Optus Administration Pty Ltd
Respondent
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4825;
GENERAL ADMINISTRATIVE DIVISION ) 2010/5109 Re John Phillips Applicant
And
Thales Australia Limited
Respondent
DECISION
Tribunal Senior Member A K Britton Date24 November 2011
PlaceSydney
Decision 1. The application made by each respondent for orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) that they not be required to provide to the applicant a copy of the “surveillance material” until such time as it has had an opportunity to cross-examine the applicant, or until further order of the Tribunal, is granted.
2. The application made by each respondent for an order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) that it not be required to disclose to the applicant the existence of the “surveillance material” until such time as it has had an opportunity to cross-examine the applicant is refused.
3. Order 2 does not take effect until 29 November 2011 in the matter of Towers and Optus Administration Pty Ltd (2010/4903) and, 8 December 2011 in the matter of Phillips and Thales Australia Limited (2010/4825; 2010/ 5109).
4. This decision is not to be provided to the applicant in Towers and Optus Administration Pty Ltd (2010/4903) before 29 November 2011 and the applicant in Phillips and Thales Australia Limited (2010/4825; 2010/ 5109) before 8 December 2011. Further publication of this decision is prohibited until 8 December 2011.
........................[sgd]......................
Senior Member A K Britton
CATCHWORDS
PRACTICE AND PROCEDURE – evidence – video surveillance and reports – respondent sought non-disclosure direction until applicant cross-examined – procedural fairness – application granted in part
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) – ss 35, 37, 39Kioa v West (1985) 159 CLR 550
Australian Postal Commission v Hayes and Another (1989) 23 FCR 320
Australian Postal Corporation v Bessey (2001) 32 AAR 508; [2001] FCA 226
Kingham v Cole (2002) 118 FCR 289; [2002] FCA 45
Re Applicant and Deputy Commissioner of Taxation (1995) 41 ALD 683; [1995] AATA 95
Re Stoiche & Telstra Corporation Ltd (1995) 40 ALD 369
Re Karhani and Linfox Australia Pty Ltd [2011] AATA 506
Re Aunela and Telstra Corporation (2007) 95 ALD 785
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130REASONS FOR DECISION
24 November 2011 Senior Member A K Britton 1. Thales Australia Limited and Optus Administration Pty Ltd, the respondents in unrelated proceedings before the Administrative Appeals Tribunal (AAT), have each made ex parte applications to be released from their respective statutory obligation to provide to the applicant workers all documents relevant to the reviewable decisions prior to hearing. The applications are sought in respect of surveillance film recordings taken of each applicant worker and associated reports. Both applications were heard in the absence of the applicants.
2. Each respondent is a “licensed corporation” under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Each made a reviewable decision that is now the subject of an application for review by the AAT. Each decision relates to the refusal of a claim made by a worker under the Act. Suffice to say, for current purposes, each respondent has concerns about the veracity of the account given by the applicant worker about the nature and severity of their claimed incapacity.
3. The documents the subject of the applications are identified in letters from the respondents’ solicitor (who represented both respondents) addressed to the Registrar of the AAT, dated 9 February 2011. In respect of each application, they include a surveillance DVD and associated reports. For convenience I will refer to these documents collectively as “the surveillance material”.
4. These reasons do not address the merits of either reviewable decision, only the issue of whether the procedural orders sought by respondents should be granted.
Obligation to disclose and provide relevant documents
5. The AAT is required to afford procedural fairness to all parties. One aspect of procedural fairness is the hearing rule that requires among other things that each party to proceedings be given a reasonable opportunity to present their case. That requirement is reflected in ss 35, 37 and 39, amongst other provisions of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
6. The principle is articulated in s 39 of the AAT Act which provides:
Opportunity to make submissions concerning evidence
(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
7. Section 37 requires the decision-maker to lodge with the Tribunal and provide to each other party to proceedings every document in their possession or control that is relevant to the review of the decision before the Tribunal, within 28 days after receiving notice of an application for review to the Tribunal, or such other period as determined by the Tribunal (s 37(1)). The surveillance material is apparently relevant to each reviewable decision and therefore falls within the scope of s 37(1).
8. Section 37(1AF) provides that a document that falls within the scope of s 37(1) need not be lodged with the Tribunal in certain circumstances:
When document not required to be lodged
(1AF) If:
(a) a person who has made a decision that is the subject of an application for a review by the Tribunal would, apart from this subsection, be required under paragraph (1)(b) to lodge 2 copies of a document or a part of a document with the Tribunal in respect of the application; and
(b) within the period applicable under subsection (1) the person:
(i) applies to the Tribunal for a direction under subsection 35(2) in relation to the document or part of the document and lodges with the Tribunal, together with the application for the direction, 2 copies of the document or part of the document; and
(ii) gives a copy of the application for the direction to each party to the application for review;
the person is not required to comply with paragraph (1)(b) in relation to the document or part of the document unless and until the Tribunal, after hearing the application for the direction, directs the person to do so.
9.The application made by each respondent was made under s 35(2) of the AAT Act which provides:
(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
…
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.
10.Section 35(3) provides:
(3) In considering:
…
(b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.
Orders sought
11. Each respondent seeks an order under s 35(2)(c) to the effect that until such time as it has had an opportunity to cross-examine the applicant, it not be required to:
·provide to the applicant a copy of the surveillance material (the proposed non-provision order); and
·disclose to the applicant the existence of the surveillance material (the proposed non-disclosure order).
12. The respondents adduced evidence to the effect that each has a surveillance policy, which is subject to audit by Comcare and each complied with that policy in commissioning the subject surveillance material.
13. In addition, each respondent undertook to bear any additional costs that might be incurred by the applicant as a result of the late disclosure and provision of the surveillance material.
Provision of surveillance material to the applicant
14. There is no issue that if the surveillance materials are to be relied upon by the respondents in the substantive proceedings, they must be provided to the applicant. The only issue is timing.
15. In Australian Postal Commission v Hayes and Another (1989) 23 FCR 320, Wilcox J considered an application in similar terms to the proposed non-provision order. That matter concerned a claim for workers’ compensation brought by an applicant worker who had been the subject of video surveillance. His Honour held that the AAT had erred by requiring that the worker be granted access to the surveillance video before she gave her evidence. His Honour held that the video evidence was critical to the Commission’s case, as the applicant’s physical abilities and credibility were squarely in issue. He said that to deny the cross-examiner the opportunity of having the applicant commit herself to a version of the facts before viewing the video evidence would have been to deny the Commission its right to fully test the worker’s evidence and therefore a reasonable opportunity of presenting its case. His Honour said, at 326:
[T]he testing of opposing relevant material by cross-examination is an essential feature of the opportunity to correct or contradict that material; it is not enough that the party against whom the evidence is led has the right to present evidence in reply. Moreover, although counsel accept there exists some discretion to control cross-examination so as to ensure relevance and to guard against repetition and prolixity, it is said that the right to cross-examine means the right effectively to cross-examine. If directions given by a court or a tribunal have the effect of so fettering cross-examination that a witness's evidence cannot properly be tested, procedural fairness has been denied.
16. His Honour observed, at [327], that:
[I]t is the everyday experience of those who attend courts that cross-examination is at its most effective when the evidence of a witness is able to be confronted by documents. But, as with any other cross-examination, it is normally necessary for the cross-examiner first to have the witness commit himself or herself to a precise version of relevant matters; the process which the late Mr J W Smyth QC called "closing the gates", see "The Art of Cross-examination" (Autumn 1988) Bar News at 12-13. It is important, in that process, that a mendacious witness not be aware of the material available of the cross-examiner to contradict the evidence under manufacture.
17. The approach taken in Hayes was adopted by Gyles J in Australian Postal Corporation v Bessey (2001) 32 AAR 508.
18. Heerey J In Kingham v Cole (2002) 118 FCR 289, declined to follow the approach adopted in Hayes and commented at 297:
The judgment in Hayes makes no reference to the decision of the High Court in NCSC [National Companies and Securities Commission v The News Corp Ltd (1984) 156 CLR 296] some five years earlier. Hayes appears to elevate a useful forensic technique to the status of a mandatory legal rule binding an administrative decision-maker. I would respectfully decline to follow it.
19. Kingham concerned the conduct of proceedings under the Royal Commissions Act 1902 (Cth). While as the above comments made by Heerey J in Kingham make clear, Hayes is not without its critics (see also for example the comments of Mathews J in Re Applicant and Deputy Commissioner of Taxation (1995) 41 ALD 683 at 688) it is directly on point and binding on the Tribunal. Accordingly, I have decided to make the non-provision orders sought.
Disclosure of the existence of the surveillance material
20. The more difficult issue is whether the applications for non-disclosure orders should be granted. That issue must, by necessity, be decided before the applicants are aware of its existence. It is not possible to say at this stage whether the surveillance materials are reliable, directly relevant to the issues that fall to be determined or, as the respondents apparently contend, adverse to the applicants. The materials may be fatal to each applicant’s claim. Alternatively, each applicant may be able to provide an entirely innocent and plausible explanation for what the respondents apparently believe to be revealed by the surveillance material, namely a discrepancy between their claimed and actual disability. That is a matter for evidence.
21. The issue of whether a non-disclosure order is appropriate was not expressly addressed in Hayes. In Bessey, Gyles J declined to address the issue and said at para [19]:
I am not dealing here with either the giving of a general practice direction by the president of the Tribunal or with the giving of express directions as to procedure in advance of the hearing of a particular case. Those situations are distinct from the present and can be considered when and if necessary.
22. The respondents contend that it has been “cemented practice” within the AAT since the decision of the Tribunal in Re Stoiche & Telstra Corporation Ltd (1995) 40 ALD 369 to make a non–disclosure order of the type sought in these proceedings. In support, they point to a number of examples of cases where non-disclosure orders have been granted. They acknowledge however that this practice is not universal.
23. In ReKarhani and Linfox Australia Pty Ltd [2011] AATA 506 and Re Aunela and Telstra Corporation (2007) 95 ALD 785, Deputy President Constance declined to follow the approach endorsed in Stoiche. In Aunela, after a detailed consideration of amendments to the AAT Act and the Guide to the Workers’ Compensation Jurisdiction introduced since Stoiche, the Deputy President concluded that the applicant worker should be made aware of the existence of the surveillance video and reports. He reasoned at 789-790:
[T]his will maximise the chances of a resolution of this matter as economically and quickly as possible and will allow the proper consideration of appropriate use of one or more of the alternative dispute resolution processes available to the parties. It would be most undesirable that this matter be allowed to proceed through the extensive pre-hearing processes (including a conciliation conference) with Mr Aunela being unaware of the existence of potential evidence against him, which, on the argument of Telstra, may be critical in bringing the Tribunal to the conclusion that the decision under review should be affirmed. To do otherwise may be to cause unnecessary and substantial costs to be incurred by both parties, to delay the resolution of the application by several months and to increase the resources the Tribunal will need to allocate to resolving the dispute.
24. I am not entirely convinced that the approach favoured in Stoiche can be elevated to the status of “cemented practice” within the AAT. In any event, neither Stoiche nor Aunela are binding. While consistency in decision-making is desirable, in the absence of authority of a superior court, members of the AAT are entitled to reach their own conclusion as to the proper approach to an application for a non-disclosure order.
25. The respondents’ applications are bolstered by their undertaking to bear any additional costs that the applicants might incur as a result of the non-disclosure of, and access to, the surveillance materials. This removes as a ground for concern the additional costs the applicants might incur as a consequence of the late provision and disclosure of the existence of the material.
26. Nonetheless, there are a number of factors that in my opinion weigh against making the orders sought. First, the applications were made out of time. A decision-maker who wishes to be released from the statutory obligation to lodge with the Tribunal a section 37(1) document and the concomitant obligation to provide a copy of that document to all parties, must make an application for a direction under s 35(2) within 28 days after receiving notice of the application for review by the AAT, or such other period as ordered by the Tribunal (s 37(1AF)(b) of the AAT Act). Compliance with a procedural provision of this type takes on particular importance where an application is made without the knowledge of the other party and heard in their absence. Absent a direction made by the Tribunal under s 35(2) the respondents were required to lodge s 37 documents by December 2010 (the applications for review having been made in November 2010). The applications for release were not lodged until early February 2011.
27. Second, s 35 of the AAT Act directs the Tribunal to take as the “basis of its consideration” the principle that it is desirable that the parties have access to the contents of documents lodged with the Tribunal. The Tribunal must nonetheless pay “due regard” to any reason why disclosure of matter contained in any document should be restricted. Before an order can be made under s 35 the Tribunal must be satisfied that it is desirable to do so by reason of the confidential nature of any evidence, or the confidential nature of any matter, or any other reason. As Brennan J emphasised in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 510, the power conferred by s 35 is to be exercised "sparingly", a view endorsed by the Full Court of the Federal Court in Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130, at 148.
28. Third, as pointed out by DP Constance in Aunela, amendments to the AAT Act and Practice Directions introduced since Stoiche place greater emphasis on the use by the AAT of alternative dispute resolution and instruct the Tribunal to pursue the objective of providing a mechanism of review that is not only fair and just but quick and economical. The late disclosure of the existence of the surveillance material may delay the resolution of the application.
29. Fourth, as properly conceded by the respondents, any prejudice they might suffer as a consequence of being required to disclose the existence of the surveillance material is of a lesser order than that which might result if they were required to provide access to that material prior to the applicants giving their evidence. In both proceedings, each applicant has now filed a significant body of evidence about their alleged incapacity. Each has filed and served a statement that sets out their account of their functional capacity. In addition, a number of medical reports have been filed by both parties in each proceeding that record the history given by each applicant to the expert who prepared the report. This is not a case where the first time an applicant is asked to commit themselves to an account of their claimed symptoms arises in evidence-in-chief.
30. The “norm” established by s 35 is open justice. That norm is reflected in s 37 of the AAT Act, which requires the decision-maker to provide each other party all documents relevant to the decision under review. While the Tribunal can make orders to release the decision-maker from that requirement, the power to do so is to be exercised sparingly. The issue is not whether the respondents’ case would be strengthened if the applicants were unaware of the existence of the surveillance video but whether the respondent would be denied a reasonable opportunity to present their case if required to do so. I think it is something of a stretch to suggest that a non-disclosure order is necessary if the respondents are to be given a fair hearing. Having had “due regard” to the reasons given by the respondents for applying for the non-disclosure order I am not satisfied that it is desirable to make that order.
Orders
31. I have decided to grant the non-access order and not grant the non-disclosure order. I have also decided that the order to refuse to make the non-disclosure order will not come into effect for a short period to allow the respondents to consider any further action they might wish to take before the applicants are notified of the Order. One of the matters (Towers v Optus Administration Pty Ltd) is listed for hearing next and therefore the publication of these reasons is delayed for a short period in respect of that matter. The orders in relation to the other matter, Phillips v Thales Australia Limited (2010/4825; 2010/ 5109) which is not currently listed for hearing with come into effect in 14 days from the date of this decision.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
Signed: .........................[sgd]....................................
Associate to Senior Member A K BrittonDate/s of Hearing: 16 November 2011
Date of Decision: 24 November 2011
Counsel for the Respondent: Mr G Watson SC
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