Blocki v Workcover/Cgu

3 Based upon this figure, the Corporation rejected the worker's later claim for compensation arising out of the alleged disability he sustained with the employer.

4 In challenging that determination the worker asserts that the redemption agreement is invalid. His counsel submits that s 42(2) of the Act, which provides:-

"An agreement for the redemption of a liability under this section cannot be made unless-

(a) the worker has received competent professional advice about the consequences of redemption; ..."

has not been complied with because that advice that he was given by the solicitor was not competent.

5 During the course of her opening address, Ms Layton's QC, went into some detail as to the alleged deficiencies of the solicitor's advice. She indicated that she intended to place evidence of the advice before the Tribunal through a witness statement that had been prepared for the worker and through some supplementary oral evidence given by him.

6 Some debate then ensued as to whether this was an appropriate case for the worker to give his evidence, at least partially, through a witness statement. Mr White QC, for the respondent, contended that because he did not have a statement from the solicitor, his capacity to cross examine the worker might be compromised and that in all the circumstances the worker should not be given an unfair advantage of having his evidence in chief placed before the Tribunal through a document that had been crafted by his solicitors.

7 During this exchange I was advised by both counsel that the solicitor had not spoken to either of their instructing solicitors.

8 This was a matter of some concern to me because it seemed to me that what the solicitor might have to say about the advice that he gave to the worker might be very important in determining the fate of this case. I therefore raised with the parties whether this was an appropriate case for the Tribunal, of its own initiative, to require the solicitor to come to the Tribunal to give evidence in the form of a deposition outside the trial process so that each party could consider whether they wished to call the solicitor.. I invited the parties to take instructions. Although they both expressed some reservations about my power to do so, they did not oppose me taking that course. Accordingly, I arranged for an urgent advice to be sent to the solicitor advising him of my proposed course of action and inviting him, if he wished, to address me as to whether I had the power to require his attendance at the Tribunal for the purpose of enabling the Tribunal and the parties to examine him or whether I had the power, pursuant to s 84A of the Act to require him to attend at the Tribunal to give evidence in the proceedings presently before me.

9 Ultimately, the solicitor appeared through counsel and advised the Tribunal that if I issued a direction for him to provide a statement to the parties that he would comply with direction.

10 I made that order. These reasons explain why I did so.

11 In Obacelo Pty Limited v Taveraft Pty Limited (unreported Federal Court of Australia 13 June 1986) Wilcox J made the point at par 65:-

"It not uncommonly happens that a person is in a position to give to a Court material evidence yet no party wishes to call that witness. A party calling a witness suffers the disadvantage of being burdened, without the opportunity to challenge it by cross-examination, with such part of the evidence of that witness as assists the opponent's case whilst being forced to suffer cross-examination by the opponent on that part of the evidence which assists his or her own case. A dilemma whether or not to call a particular witness may arise in a variety of situations."

"A common example is the case where there is a contest as to the terms of a transaction or of representations made in the presence of a person, who is thus able to give material evidence, but who has an interest or motive other than to tell the whole truth; which interest or motive might lead the witness to give false or misleading evidence, potentially damaging to the party desiring to call him or her in respect of other aspects of the case."

12 I do not for a moment suggest that the solicitor's reluctance to come forward or the parties' reluctance to call him arises as a result of this. There is no reason to think that the solicitor will not answer truthfully any question that is put to him in relation to this matter. It is likely that the solicitor's reluctance to talk to either side in the case before me arises out of his possible concerns in relation to his insurance obligations to his professional indemnity insurer. If the solicitor has given incompetent advice and if it is determined that this does not provide a basis upon which to set aside the redemption agreement, it might be that an action for damages could be pursued against the solicitor at common law.

13 Be that as it may, this clearly was a case where there was a material witness that neither party wished to call without knowing what he would say.

14 The capacity of a Judge sitting in a civil court to call a witness has been the subject of much debate and some conflicting decisions. These are collected in an article published by Justice Sheppard: "Court Witnesses - A Desirable or Undesirable Encroachment of the Adversary System?" (1982) 56 ALJ 243. Wilcox J in Obacelo Pty Limited (supra) discusses some later judgments at par 71 and 72.

"In the article to which I have referred Sheppard J suggested that the law ought to be as stated by Lord Esher M R in Coulson, permitting the presiding judge to call a witness -- even over the opposition of a party -- but that the discretion to take this course should be exercised sparingly and with great care. That suggestion is consistent with the principle adopted by the High Court in respect of criminal trials in Apostildies and with the opinion expressed by Street CJ in Damic; assuming, as was assumed in those two cases, that, if the witness gave material evidence, counsel for an affected party could cross-examine, as of right and not merely by leave. It appears to me that the decisions subsequent to the article require me to hold that the proposition argued by Sheppard J should now be regarded as the law in Australia, for civil as well as from criminal trials..."

16 I respectfully adopt this as a correct statement of the common law.

17 Being of that view it seemed to me that to construe s 84A of the Act which provides:-

"The Tribunal may, on the application of a party to proceedings or on its own initiative, issue a summons requiring a person to appear before the Tribunal at a specified time and place to give evidence or to produce evidentiary material (or both)." (emphasis added mine)

as permitting me to adopt the course proposed by me was not a particularly radical one but rather was generally consistent with the position at common law.

18 In any case, even if the position at common law were not as I understand it to be, I would nevertheless have come to the same result. Although judicial determinations are conducted in an adversarial way and have many of the trappings of a conventional trial at common law, there are features of the Workers Compensation Tribunal that set it apart from more traditional courts. The Tribunal is not, for example, bound by the rules of evidence: s 84. It is obliged to act to according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms: s 85. Matters cannot get to judicial determination unless they have first gone through a compulsory and interventionist process of conciliation in which parties are obliged to disclose to the conciliator the existence of all evidentiary material, including material that might otherwise be privileged: s 92(1)(b)(i). Within that forum, the Tribunal can summons not just the parties to the dispute, but "any other persons who may be able to assist in resolving the dispute": s 92B(2).

19 All of this leads me to conclude that a presidential member hearing a judicial determination is not a mere by-stander leaving it solely up to the parties to run the case. I think that at judicial determination is a trial of the type described by Frankfurter J in Johnson v United States [1948] USSC 18; (1947) 333 US 46 at 54 where he said in commenting upon the role of a US Federal Court Judge:-

"A trial is not a game of blind man's bluff; and the trial judge - particularly in a case where he himself is the trier of facts upon which he is to pronounce the law - need not blindfold himself by failing to call an available vital witness simply because the parties, for reasons of trial tactics, choose to withhold his testimony. Federal Judges are not referees at prize fights but functionaries of justice."

20 In my opinion, whatever is the position at common law, the nature of the Tribunal and of the dispute resolution process provided for by the Act compels a liberal construction of s 84A. I think that provision enables the Tribunal to call a witness that the parties do not, for whatever reason, choose to call. Having reached that view I considered that it was within my power to direct that witness to provide a statement.

21 I accept that restraint is called for and that it would only be in exceptional circumstances that one would adopt this course. But, it seemed to me, that this was an exceptional case, and that the justice of this case required the timely provision of a statement from the solicitor whose evidence might be very material to its outcome. Therefore, having concluded that the statutory powers conferred upon me by the Act empowered me to issue such a direction, I resolved to do so.