Video Evidence
14 This conclusion makes it strictly unnecessary to deal with the procedural issue. However, as the matter is to be reheard, it is as well that I say something about the issue.
15 During cross examination of the respondent, counsel for Australia Post sought to show the witness some video tape. The senior Tribunal member intervened, indicated an adverse view as to that request and referred counsel to his decision in Re Prica and Comcare (1996) 44 ALD 46 ("Prica"). A ruling was deferred until the following morning. On the following day there was considerable argument. Counsel for the respondent put, amongst other things, that his client was prejudiced as agreement had been reached that the doctors would give evidence by telephone and could not see the video. He also submitted that he would not be in a position to immediately call rebutting evidence. The video was ruled inadmissible for any purpose, with reasoning to be delivered later. The reasons of the Senior Member were included in the final Tribunal decision. The Senior Member said:
"140. … the nub of my reasoning was as follows. The respondent did not give notice of the existence of the video to the members of the Tribunal or to the applicant. The applicant was ambushed. The video film was not disclosed to the applicant until well into his cross-examination. The opportunity for inspection was to occur at the time of disclosure. To admit the video into evidence would have denied the applicant a proper opportunity to present his case. The means to avoid this consequence was to refuse to admit the evidence."
16 That view is directly contrary to a considerable body of authority in this and other Courts. It will suffice to refer to Australian Postal Commission v Hayes (1989) 23 FCR 320 ("Hayes"), Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 411 at 424.1, Rose & Bloxham v AE Bridges (1997) 79 FCR 378 at 387C-G, Re An Application for Writs of Certiorari and Mandamus against Burton; Ex parte Burns [1998] WASC 98, Robbins v Harbord (1994) 62 SASR 229 at 237.8 and BHP Pty Co Ltd v Mason (1996) 67 SASR 456 at 461-465. Those authorities establish that, absent special circumstances, Australia Post was denied natural justice or procedural fairness at least in not being able to show the video to the respondent in cross examination and ask questions based upon that.
17 The full reasons of the Senior Member are too lengthy to set out in this judgment. In large measure they reflect the opinion he had expressed in the decision in Prica to which he referred when the issue first arose. They reflect a developed and reasoned view as to the general policy which the Tribunal should adopt in relation to video evidence, which is directly at odds with the line of authority to which I have referred, particularly Hayes. There is some attempt to distinguish Hayes, and some reference to the circumstances of the particular case, but the decisive consideration was general policy and the philosophy underlying it. In my opinion it was not open to an individual senior member of the Tribunal to choose to depart from the effect of decisions of this Court on policy grounds, whatever the merits of those policy grounds might be. To do so was, in itself, an error of law which, on the basis of binding authority, has the effect of denying Australia Post natural justice or procedural fairness which, it was agreed by the parties, is also an error law within s 44 of the AAT Act.
18 I should make it clear that in my opinion the complaints of counsel for the respondent as to the availability of medical evidence and other rebutting evidence is not relevant to the issue as to whether Australia Post was entitled to show the video to the respondent in the course of cross examination. Those issues would arise if and when some other use was sought to be made of the video.
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. The decision of the Senior Member in Prica was not the equivalent of either and should not have been regarded as if it were.