Comcare v Maganga

Chronology of the various injuries 3 The injury complained of by Mr Maganga and considered by the Tribunal occurred on 29 November 2004. However, prior to this injury, Mr Maganga had made other claims in respect of injuries to his left knee. 4 Mr Maganga claimed to have injured his left knee twice in Bourke in February 1997. Mr Maganga said that he suffered an injury on 14 February 1997 to his left knee while 'walking home from work through the streets in town' when he was assaulted ('the first injury'). Mr Maganga also said that he injured his knee on 15 February 1997 when he was assaulted ('the second injury'). The second injury was the subject of a successful claim for criminal injuries compensation which was submitted the following year with the NSW Victims Compensation Tribunal ('the victim claim'). 5 On 24 February 2006 Mr Maganga completed a claim for compensation in respect of the first injury. That claim was refused by Comcare, inter alia, on the basis that it was not satisfied that the injury had occurred while Mr Maganga was travelling home from work. 6 Mr Maganga also said that he injured his left knee on 13 August 2003, again on his way to work ('the third injury'). Mr Maganga claimed workers' compensation in respect of that injury. Liability was refused by Comcare. 7 The left knee injury in dispute in these proceedings was said by Mr Maganga to have occurred on 29 November 2004 while he was on his way to work ('the fourth injury'). Mr Maganga claimed workers' compensation for the fourth injury in December 2004. Liability to pay compensation for this injury was denied on the basis that Comcare was not satisfied that it had occurred while Mr Maganga was on his way to work.

Review by the Tribunal 8 Mr Maganga initially sought review in the Tribunal in respect of Comcare's denial of compensation regarding the first, third and fourth injuries. 9 The reviewable decisions in respect of the three claims came, together, to the Tribunal. The Tribunal issued directions in all three proceedings on 21 November 2006 that Mr Maganga file and serve material relating to the victim claim. No such material was filed and served. The three applications were listed for hearing together. On 7 and 12 June 2007, the Tribunal issued summonses to the NSW Victims Compensation Tribunal and to Mr Maganga's former solicitors for production of criminal injuries compensation records. 10 On 15 June 2007, Mr Maganga discontinued the proceedings for the first and third injuries. 11 The hearing of the application in respect of the fourth injury was heard on 18 June 2007. The primary issue was whether the fourth injury had, in fact, occurred on the way to work. There were no witnesses to the injury and credit was strongly in issue. 12 During the hearing in the Tribunal Mr Maganga was cross-examined, over objection, on the injuries of 1997. The cross-examination covered the number of injuries and the claim form for the first injury. Counsel for Comcare specifically asked if Mr Maganga had claimed compensation with Comcare for the first injury and Mr Maganga said that he had not. However, when shown the claim form Mr Maganga said that he had indeed claimed compensation for that injury but that he had been confused by the question. Mr Maganga was also questioned on the circumstances of the fourth injury and certain apparent inconsistencies were put to him, such as where he said the injury had occurred and at what time. 13 Comcare says that it had reason to believe that when Mr Maganga lodged the claim for workers' compensation in February 2006 for the first injury he may have falsely characterised that injury as a "journey" injury. In the claim form for the first injury, Mr Maganga had given the following history: · He injured his left knee. · He first sought medical treatment on 17 February 1997 (approximately) in Bourke. The doctor was not named. · He was referred to Dr Still in the ACT for orthopaedic review. · He answered "no" to the question: "have you ever had a similar symptom, injury or illness before, work-related or otherwise". · He answered "yes" to the question: "have you ever received medical treatment for a similar injury or illness" and referred to 'subsequent Comcare claims and AAT Review'. · He said that the injury occurred in Bourke, walking home from work; that he attempted to stop an assault; the assailants attacked him; he fell injuring his left knee; he took refuge in a house; the assailants threw rocks on the roof. 14 The history about the occurrence of the first injury was very similar to the account of the second injury that resulted in the victim claim payment. Dr Still was the doctor that Mr Maganga consulted in respect of the victim claim. 15 As recorded in the Tribunal's reasons, Comcare's counsel sought access to the file produced by Mr Maganga's former solicitors in response to the summons in relation to the victim claim ('the summonsed documents'). It did so to ascertain whether Mr Maganga had made inconsistent statements in relation to the first and second injuries and the first injury claim. 16 Counsel for Comcare argued that they had demonstrated a clear inconsistency between the evidence that Mr Maganga gave during the hearing and past statements made by him. The Tribunal accepted that the relevant questions went to credit. It was apparent that Mr Maganga's version of events was challenged. 17 The Tribunal refused Comcare access to the summonsed documents.

THE TRIBUNAL'S DECISION 18 The reasons for the Tribunal's refusal to give Comcare access to the summonsed documents were: · that it would have been 'unfair' to admit the material; · that '…it was inappropriate for Comcare to be permitted to go on a fishing expedition to ascertain what the file contained, particularly when the documents sought (if they existed) were sought only to impugn the credit of a witness…' citing Fried v National Australia Bank (2000) 175 ALR 194 at 200; and · that there 'was no suggestion that the file may contain material relevant to the determination of the factual issue before [the Tribunal]'. 19 Similarly, the Tribunal rejected the tender of other documents by Comcare which included 1997 medical reports. These reports were drafted after the first and second injuries and referred to one fall but not to two and to an injury occasioned on 15 February 1997, the second injury that resulted in the victim claim. There was also a description of the incident as an assault occurring outside a house where Mr Maganga had been sitting. Comcare submitted that the documents would show that Mr Maganga had made inconsistent statements regarding an injury or injuries suffered in 1997. Further, Comcare submitted to the Tribunal that the summonsed documents may well demonstrate that Mr Maganga had knowingly or recklessly given false evidence to the Tribunal. However, the Tribunal rejected the documents as not relevant to the issue in dispute and also on the ground that 'procedural fairness required that Comcare not be allowed to contradict Mr Maganga's answers to questions which went only to his credit'. 20 The Tribunal noted that the rules of evidence did not apply in the Tribunal (s 33(1)(c) of the AAT Act) but accepted that they had 'a role to play'. The Tribunal cited Piddington v Bennett & Wood Proprietary Limited (1940) 63 CLR 533 at 545 where Latham CJ stated: Any witness may be cross-examined for the purpose of discrediting him. But if questions affect only the credit of a witness and are not relevant to the matters actually in issue in the case, the witness's answers cannot be contradicted by other evidence except in certain exceptional cases. Exceptions to the rule at common law are that after cross-examination of his opponent's witnesses a party may give evidence to show that they are notorious liars, or have given their testimony from a corrupt or other wrong motive, or that they have previously made statements inconsistent with their evidence. The Tribunal stated that counsel for Comcare had "expressly disavowed" any claim that the documents were sought to be tendered in support of an argument that Mr Maganga was a "notorious liar". 21 Ultimately, the Tribunal was satisfied that Mr Maganga '…was a witness who gave his evidence honestly'. The Tribunal also noted that at all times the issue before it was whether the injury to Mr Maganga's knee occurred on his way to work but that '…nevertheless contrary allegations (such as that the injury occurred at home) were not put to him and consequently did not have the opportunity to assess Mr Maganga's veracity when his truthfulness was under direct challenge'. The Tribunal set aside Comcare's decision to deny compensation for the fourth injury.

SUBMISSIONS 22 Comcare submits that there was evidence before the Tribunal which cast doubt on the reliability and honesty of Mr Maganga's evidence of the separate assaults in 1997. Accordingly, Comcare argues that it was "on the cards" (Alister v The Queen (1983-1984) 154 CLR 404 at 414 per Gibbs CJ) that the summonsed documents might show that Mr Maganga had previously attempted to pass off a non work-related injury to his left knee as a "journey" injury, which was the very issue in the Tribunal proceedings in relation to the fourth injury. Comcare argues that if the summonsed documents showed there was only one left knee injury in 1997, this, together with cross-examination on the summonsed documents, would have reflected on Mr Maganga's reliability and credit in this Tribunal hearing and demonstrated that he had lied to Comcare and to the Tribunal. Accordingly, Comcare submits that the Tribunal denied it procedural fairness in refusing leave to inspect those documents. 23 The proposition put by Comcare is that, in proceedings which depend substantially on the credit worthiness of a party concerning his behaviour or activity, a proper basis exists for inspecting documents relevant to the honesty of that party on an earlier occasion with respect to the same behaviour or activity. This was not a general character attack on Mr Maganga but the information in the summonsed documents would have formed a substantial basis for cross-examination. The Tribunal permitted cross-examination on the 1997 injuries which challenged Mr Maganga's version of events but, Comcare submits, wrongfully withheld the right to inspect documents on the same subject. 24 Mr Maganga submits that in seeking to prove its case Comcare was, as a matter of fairness, obliged to put to Mr Maganga certain matters including the assertion that he lied to the Tribunal concerning the circumstances of the injury and that he submitted a compensation claim to Comcare which he knew to be false. Mr Maganga submits that Comcare did not put any of these matters to him and that Comcare's decision not to do so was not affected by the Tribunal's decision to deny access to the summonsed documents. Accordingly, Mr Maganga says, Comcare is bound by the way it conducted its case and its decision not to challenge Mr Maganga's credit. Mr Maganga also submits that the Tribunal was correct in not allowing access to the summonsed documents in circumstances where those documents went only to credit.

CONSIDERATION 25 Section 40(1D) of the AAT Act provides that the Tribunal may give a party leave to inspect a document produced under summons. The relevant procedure is generally within the discretion of the Tribunal (s 33(1)(a) of the AAT Act). The Tribunal is required to give proper consideration to matters before it (s 33(1)(b)) and to ensure that every party to a proceeding is given a reasonable opportunity to present his or her case (s 39(1)). A "reasonable opportunity to present his or her case" requires the Tribunal to apply notions of procedural fairness (Repatriation Commission v Farley-Smith (2007) 96 ALD 348 at [54] per Middleton J; Australian Postal Corporation v Hayes (1989) 23 FCR 320 at 326 per Wilcox J).

Reasonable opportunity to present a case 26 In Hayes Wilcox J outlined several propositions relevant to the Tribunal's discretion. His Honour noted that although the AAT Act grants the Tribunal a wide discretion as to the procedure to be adopted in reviewing a decision, the Tribunal is bound to accord the parties natural justice (at 326). At the heart of the requirements of natural justice is the principle that a party must be given a reasonable opportunity to present the case. The opportunity of presenting a case includes the opportunity to adduce one's own evidence and the opportunity to test the opponent's evidence. 27 Justice Wilcox also held in Hayes that the right to cross-examine means the right effectively to cross-examine and that if directions given by a court or tribunal have the effect of fettering cross-examination such that a witness' evidence cannot be tested, procedural fairness has been denied (at 326-327). In a case where there is a dispute as to an issue which cannot be established by independent objective evidence and a rejection of the claimant's account is likely to be critical, the right to cross-examine effectively must include the right to test the credit of the claimant. 28 Comcare challenges the Tribunal's decision to refuse leave to inspect the summonsed documents. The alleged deficiencies in the cross-examination of Mr Maganga are not relevant to these grounds. Further, the asserted obligation on the part of Comcare to put these matters to Mr Maganga is misplaced. In Re Ruddock; Ex parte Applicant S154/2002 (2002) 201 ALR 437, Gummow and Heydon JJ (with whom Gleeson CJ agreed) referred (at [55]) to the rule in Browne v Dunne and noted at [56] that '…the rule has no application to proceedings in the tribunal…administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures'. Their Honours went on to note that the rule in Browne v Dunne had no application to proceedings in the Refugee Review Tribunal (at [57]), see also Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]). In Lawrance v Centrelink (2005) 88 ALD 664 Hely J referred to S154/2002 and found that the rule in Browne v Dunne has no application to proceedings in the Tribunal (at [31]). Regardless, it is evident from the cross-examination that did take place, that credit was strongly in issue and that Mr Maganga's version of events in relation to the 1997 injuries was challenged. 29 It is also misplaced to argue that Comcare's cross-examination of Mr Maganga was not affected by the Tribunal's decision to deny access to the summonsed documents. If a denial of procedural fairness can be shown, a court should not refuse relief unless it is confident that the breach could not have affected the outcome (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [104] per McHugh J, citing Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). In this case, it cannot be shown that the Tribunal's decision not to allow Comcare access to the summonsed documents did not ultimately affect the outcome of the decision. Comcare submits that cross-examination is "at its most effective" when the evidence of a witness is able to be confronted by documents (Hayes at 326-327). This argument has force in circumstances where credit is, as here, the issue in consideration. The Tribunal's refusal of access to the summonsed documents potentially denied Comcare the opportunity to cross-examine Mr Maganga effectively. In these circumstances it cannot be said that Comcare's cross-examination was insufficient or that Comcare chose not to cross-examine Mr Maganga on certain issues going to credit.

Documents going only to credit 30 Mr Maganga also submits that the Tribunal is not bound by the rules of evidence in s 33 of the AAT Act, although he accepts that they cannot be ignored (Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 at 207 per Spender J; Haberfield v Department of Veterans Affairs (2002) 121 FCR 233 at [58] per Sackville J). Mr Maganga points to s 102 of the Evidence Act 1995 (Cth) where 'evidence that is relevant only to a witness's credibility is not admissible'. Mr Maganga also refers to Fried where Weinberg J set aside a subpoena where it was agreed that the only purpose for which the documents were sought was to attack the credit of a witness (at [21]-[30]). In Fried (at [29]) Weinberg J held that it was not appropriate for a court to permit a subpoena to stand which 'does little more than trawl for documents which may be used to impugn the credit of a particular witness'. Mr Maganga submits that the reasoning of Weinberg J is apposite and should be followed. 31 In Fried Weinberg J accepted that there is authority for the proposition that it may be legitimate to issue a subpoena directed to a third party in order to obtain documents which are to be used solely to impeach the credit of a witness (at [24]). Regardless, the subpoena in Fried was issued to capture documents which might have shown that two non party companies had lodged income tax returns without fully declaring interest earned. The substantive proceedings between the parties in Fried did not concern alleged under-reporting of income tax. Accordingly, the documents in question related only to a credit issue, an issue unrelated to the issues in the proceedings. This was recognised by Weinberg J at [26] where his Honour noted that the documents sought were wholly unconnected with those issues. 32 Unlike Fried, Mr Maganga's credit constituted the main issue in this proceeding. AsWeinberg J noted in Fried at [29], there should be a legitimate forensic purpose in seeking the relevant documents which 'must be identifiable, and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness'. The summonsed documents fulfilled those criteria. The Tribunal erred in finding that the documents sought were going only to a question of credit and hence that they were inadmissible.

Was the exercise a fishing expedition? 33 In the context of credit, the Tribunal noted that it was inappropriate for Comcare to go on a "fishing expedition" to ascertain what the file contained. 34 A party seeking to inspect documents does not need to demonstrate that relevant documents exist (Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts [2007] FCA 1398 at [47], [52] per Graham J; Alister at 451 per Brennan J). In any event, in this case there was no doubt that the summonsed documents did exist as they were produced to the Tribunal. It was also apparent that they were likely to be relevant to a issue in the proceedings. Further, it is not fishing to seek documents going to the credit of a crucial witness (Fried at [24]).

Does Comcare need to prove that the summonsed documents would establish a particular fact? 35 The Tribunal also determined that it would have been unfair to Mr Maganga to admit the material in the summonsed documents into evidence. 36 The test for permissible inspection is not whether the documents ought to be admitted into evidence (National Employers' Mutual General Association Ltd v Waind (1978) 1 NSWLR 372 at 385-386 per Glass JA; Albert Hadid v Lenfest Communications Inc [1998] FCA 470 per Lehane J). Mr Maganga no longer seeks to uphold this aspect of the Tribunal's reasons where it held that inspection of the summonsed documents should not occur in circumstances where they may not ultimately be admissible. 37 Nonetheless, one of the Tribunal's reasons for considering that it would be unfair to admit the summonsed documents was its view that sufficient relevance could only be established if the material would show that Mr Maganga had made an inconsistent statement in giving evidence to the Tribunal. This is not the correct test. A party seeking to inspect documents does not need to establish, on the basis of probabilities, that the documents will establish anything (Trade Practices Commission v Arnotts (No 2) (1989) 21 FCR 306 per Beaumont J; Telstra Corporation at [47], [52] per Graham J). Rather, the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings (Waind per Moffitt P at 384; Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 at [26]). 38 Further, the test of relevance for the purpose of inspection is not confined to whether the documents in question will or may establish an inconsistent statement by a witness giving evidence in the proceedings or whether the documents themselves will prove a fact in issue. The Court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation (Maronis Holdings Ltd v Nippon Credit Australia Ltd (2000) 18 ACLC 609 per Bryson J at [20]) or if they might be used for a legitimate forensic purpose in cross-examination (Maronis at [18], [20]; Carter v Hayes SM (1994) 61 SASR 451 at 453, 456-457 per King CJ, Bollen and Mullighan JJ agreeing; R v Spizzirri [2001] 2 QdR 686 at [24] per Pincus JA, White J agreeing). The summonsed documents, prima facie, were relevant to the claimed fourth injury which claim depended, in turn, on Mr Maganga's credit.

CONCLUSION 39 Although the Tribunal has a discretion under s 33(1)(a) of the AAT Act as to the relevant procedure for access to summonsed documents, this discretion is subject to the overarching obligation on the Tribunal to ensure that each party is given a reasonable opportunity to present their case. Specifically, the Tribunal must accord the parties procedural fairness. The requirement to accord procedural fairness includes a requirement to allow a party to test the evidence of a witness. While cross-examination to test the credit of a witness where that credit is not in issue may be excluded (Fried), credit was the main issue in these proceedings. The summonsed documents were, prima facie, relevant to the proceedings. There was a reasonable possibility that they could have assisted in the resolution of issues in the proceedings. Further, it was clear that the summonsed documents existed and counsel for Comcare was not merely "fishing" in order to seek documents going to the credit of a crucial witness (Fried at [24]; Bailey at [26]). The Tribunal erred in law in refusing Comcare leave to inspect the summonsed documents. 40 The Tribunal denied Comcare procedural fairness in not allowing it access to the summonsed documents. That is a question of law for the purposes of s 44 of the AAT Act (Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [3]-[8] per Gray ACJ and North J). It is also a ground of judicial review (s 5(1)(f) of the ADJR Act). As a result, Comcare was unable to cross-examine Mr Maganga effectively on an issue that was of direct relevance in and central to the proceedings. It is no answer to submit that Comcare's cross-examination of Mr Maganga was insufficient or that Comcare chose not to cross-examine Mr Maganga on certain issues going to credit in a situation where it was denied the opportunity effectively to cross-examine.

ORDERS 41 The appeal is allowed. The matter is remitted to the Tribunal for reconsideration according to law. 42 Comcare does not seek an order that Mr Maganga pay its costs. Accordingly, each party is to pay his or its own costs of the proceedings. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: 7 March 2008 Counsel for the Applicant: T Howe QC

Solicitor for Mr Maganga: Pamela Coward & Associates