The applicant's legal representatives may attend the substantive hearing by audio-visual link.

Health Practitioner - application for applicant health practitioner and his legal representatives to attend the substantive hearing of his application other than in person.

Tasmanian Civil and Administrative Tribunal Act 2020; ss 82

Dr Brett Crawford v Chiropractic Board of Australia [2024] TASCAT 223;

Australian Competition and Consumer Commission v World Netsafe [2002] FCA 526;

Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651

1. The applicant is a chiropractor, practicing in the north of Tasmania.
2. In July 2024 the Chiropractic Board of Australia (the Board) decided that the applicant had contravened s 133 of the Health Practitioner Regulation National Law (the National Law) in relation to advertising of his chiropractic business, which is a regulated health service. The Board, in making its decision, said that it had formed a reasonable belief that the applicant's professional conduct and/or performance was unsatisfactory, and as a consequence of that decision imposed conditions upon the applicant's registration.
3. Following an application by the applicant the Tribunal decided in December 2024 to stay the Board's decision pending the hearing and determination of the application for review of that decision (see Dr Brett Crawford v Chiropractic Board of Australia [2024] TASCAT 223).
4. The substantive hearing of the application for review of the Board's decision is listed for Wednesday 16 April 2025. The applicant has asked the Tribunal to exercise its discretion under s 82 of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act) to permit the applicant and his legal representatives to attend the hearing other than in person, specifically by audio video link (AVL).
5. The question of the applicant's attendance, or otherwise in person, and the attendance by his legal representatives is the issue that presently needs to be resolved.

1. On 4 October 2024 the respondent filed a Tribunal book enclosing documentation upon which the respondent intended to rely in the substantive hearing.
2. On 8 October 2024 the respondent advised that it intended to file a further discrete bundle of evidence on the basis that the applicant had changed the name of his business and the respondent considered that filing the material was necessary to ensure the Tribunal had the most contemporaneous evidence.
3. On 13 November 2024 the respondent filed an outline of submissions and other evidentiary material supported by affidavit as per its email of 8 October 2024.
4. Earlier today, Thursday 10 April 2025 the applicant filed and served a response to the respondent's submissions delivered on 13 November 2024 outlining the applicant's position in relation to the submissions of the respondent.
5. The applicant's solicitor was also given the opportunity to file further submissions in support of the application for the applicant and his legal representatives to attend the hearing remotely. I indicated that I would provide a decision in relation to that issue by close of business today.

1. The application for remote attendance at the hearing has been put on a number of bases.
2. The applicant says that the respondent will not suffer any prejudice if the proceedings are conducted by having the applicant and his representatives attend the hearing by AVL.
3. Secondly, the applicant refers to the main objectives of the Tribunal that are set out in s 10 of the TASCAT Act, and particularly the objectives that the Tribunal
   • be accessible, by being easy to find, easy to access, and responsive to parties, especially people with greater needs for assistance than others: s 10(1)(b)
   • keep costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate: s 10(1)(d)
4. Thirdly, the applicant submits that professional conduct hearings frequently proceed by audio visual link in many jurisdictions Australia wide. The applicant says cross-examination has been conducted without difficulty in such jurisdictions, particularly where all parties are represented and the matter is well prepared. The applicant says that the documents in the matter have already been managed electronically and all parties have the technological capability of conducting a hearing by audio visual link and on that basis no legitimate procedural disadvantage has been raised by the respondent.
5. The applicant notes that the respondent has confirmed that it is not opposed to the hearing being conducted by audio visual link remotely.

1. Section 82 of the TASCAT Act relevantly provides:

(1) If the Tribunal considers it appropriate, it may allow - > > (a) the parties and their representatives; and > > (b) any witnesses, or one or more of them - > > to participate in any proceedings by means of telephone, video link or any other system or method of communication.

2. The starting point under s 82 of the TASCAT Act therefore is that parties, their representatives and any witnesses participate in person in proceedings before the Tribunal. The Tribunal has a discretion to permit participation in the proceedings by any other means.
3. It is frequently the case that parties to proceedings in the Tribunal may agree that certain evidence may be given other than in person, and ask the Tribunal to exercise its discretion to excuse personal attendance by, for example, expert witnesses.
4. Similarly, parties to proceedings may ask the Tribunal whether it is prepared to determine matters on the papers, in circumstances where neither party may be required to attend the Tribunal in person, or at all.
5. However, there may be considerations that mitigate against the exercise of the Tribunal's discretion to permit evidence to be taken other than in person. In Australian Competition and Consumer Commission v World Netsafe [2002] FCA 526 at [7-8] it was observed:

... I think it right to recognise that there are deficiencies when evidence is taken by video-link when compared with evidence given viva voce. I think the criticisms voiced by Giles J in Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd, unrep, SCNSW, 11 March 1997 (Sunstate) at 4 are sound: > > The ordinary procedure is [that a witness gives oral evidence before a judge in a courtroom] and there are sound reasons for following it unless cause to the contrary be shown. The conduct of proceedings in open court, available to public scrutiny, is of great importance. Cross-examination may be more difficult when video evidence is taken because documents have to be transmitted or produced in an unfamiliar manner, because of delay in voice transmission, or for other reasons, and the effectiveness of cross-examination as a weapon in the fight for truth should not be unduly hindered. And in many cases the Court is assisted in fact by observance of what is misleadingly called the demeanour of the witnesses, upon which the taking of video evidence may impact. All that said, particularly where the evidence is relatively uncontroversial, the cross-examination is not likely to be lengthy, or no real issue of credit is involved, the taking of video evidence can be beneficial to the administration of justice and consistent with justice between the parties. It may permit the Court to receive the evidence of a witness that would otherwise not have been available, it may permit the evidence to be received without causing undue inconvenience to witnesses

6. Similarly, in Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651, Palmer J noted at [27-28]:

Clearly, in matters such as interlocutory applications, directions and the like where it is unlikely that substantial evidence will be required or substantial documentation will be in issue, it will often be highly convenient and cost-efficient to conduct the hearing by video link if witnesses, parties or counsel are not located in the same city. However, where the matter in contest involves major issues of credit or where documentary material of some volume and complexity is likely to be deployed in Court, it is still desirable, in my opinion, to have the witness in Court for examination, unless good reasons are shown to the contrary.

7. Applying the above principles, it may be the case that the Tribunal exercises the discretion to permit witnesses to give evidence remotely where it is unlikely that substantial evidence will be required, cross-examination will not involve significant volumes of documentation, or issues of credit do not arise.

1. In the present situation the applicant asks that he be excused from attending the Tribunal in person for the hearing of his application, and he attend by AVL. He also asks that his legal representatives be permitted to attend by AVL, rather than in person.
2. I have considered the applicant's submissions. It is my view that the objective of the Tribunal at s 10(1)(b) of the TASCAT Act has no relevance to the present issue. The principles that I have set out above are relevant to a consideration of what may be 'just and appropriate' under the objective at s 10(1)(d) of the TASCAT Act.
3. The applicant filed and served today an outline of submissions in response to the respondent's submissions dated 13 November 2024.
4. The applicant's submissions refer to an affidavit of the applicant that will be filed by close of business today. The contents of that affidavit are, obviously, not known at this stage to either myself nor, I expect, the respondent. There is a real possibility that the respondent may require the applicant for cross examination at the substantive hearing next week.
5. The onus to satisfy the Tribunal that it ought to allow attendance other than in person rests on the party seeking the exercise of the discretion. Because I can make no assessment at this stage that the substantial hearing will not involve issues of credit, or lengthy cross examination of the applicant, it will be necessary for him to attend the Tribunal in person for the substantive hearing.
6. However, I determine that the applicant's legal representatives may attend the hearing by audio visual link. I anticipate that the applicant's counsel will be well aware of their obligations to the Tribunal, and will ensure that the hearing will be able to proceed efficiently with remote attendance by counsel.