Victorian Civil and Administrative Tribunal|2002-05-10|Before: Eames J, Woodward J

Golem v Transport Accident Commission [2002] VCAT 319 (10 May 2002)

Transport Accident - liability accepted - later allegation of fraud - whether onus of proof exists - general principles of procedure - order of presenting evidence.

MEDIUM NEUTRAL CITATION [2002] VCAT 319

The background of the matter could be summarised as follows. The Applicant Denis Golem alleges that he sustained injuries to the leg in a transport accident on 11 September 1994, when, as he was alighting from a motor vehicle in which he had been a passenger, the vehicle continued to move. The Applicant made the appropriate claim and, on 31 October 1994, the Respondent accepted liability for medical and like expenses and continued to pay those for a number of years. By letter dated 22 August, 2000, the Respondent advised the Applicant that, on the basis of witness statements provided and medical information to hand, it considered that the Applicant was not and never had been entitled to payments from the Respondent in respect to any transport accident on 11 September 1994. Accordingly, it denied liability for any further payments of medical and other expenses, effective immediately. It became apparent during submissions that the Respondent, in terminating benefits, was of the view that the Applicant's claim was fraudulent and that no transport accident as described by the Applicant had ever occurred. In any event, the Applicant being dissatisfied with the decision of the Respondent to terminate benefits, applied pursuant to Section 77 of the Transport Accident Act 1986 for a review by this Tribunal of the Respondent's decision.

It is against this background that argument has taken place concerning the procedure to be adopted in relation to the hearing of the application, and a ruling required accordingly. I should say at this stage that counsel for each party advanced most helpful and detailed submissions and referred me to a large number of authorities.

The first question to be considered is whether an onus or burden of proof exists in a hearing such as this before this Tribunal.

Bearing in mind the decision of the Federal Court in McDonald v. Director-General of Social Security (1984) 1FCR 354 and of the Court of Appeal in Transport Accident Commission v. Bausch 1998 4VR 249, and also bearing in mind the remarks of Eames J in that case at first instance, it seems to me that no burden of proof, in the curial sense, exists. It may well be that there are situations where the manner of conducting a matter before a Tribunal reviewing an administrative decision is virtually identical to that of conducting a case pursuant to the adversarial system. It may also be that, as mentioned by Woodward J. in McDonald at page 357, argument concerning whether an "onus of proof", exists may become a matter of choosing labels. However, it seems to me that the clear state of the law is that a burden of proof in the curial sense does not exist.

What is required of the Tribunal, placing itself effectively in the shoes of the decision maker, is a state of satisfaction that the decision at which it arrives is the correct decision on the basis of the material then before it. Doubtless parallels exist and assistance can be gained from a considerable number of decisions relating to bodies operating as judicial tribunals, and such decisions include Commonwealth of Australia v. Muratore [1978] HCA 47; (1978) 141 CLR 296, Phillips v. Commonwealth of Australia [1964] HCA 22; (1964) 110 CLR 347, Pethick v. Commonwealth of Australia [1960] HCA 75; (1960) 103 CLR 643 and Green v. VWA (1997) 1 VR 364. Both parties argued, that to varying degrees, these decisions provided assistance to them. However, the bottom line is that the authorities establish that, in proceedings such as this before a Tribunal such as this and pursuant to legislation such as the Victorian Civil and Administrative Tribunal Act 1998, no burden or onus of proof in the curial sense exists.

It may be that, the closer one gets to something resembling an adversarial contest with experienced counsel representing the parties, the closer one gets to the system applied in the courts and the greater the reluctance on the part of the Tribunal to interfere and impose its own inquisitorial directions - see the remarks of Eames J in Bausch v. TAC. Similarly, it may be that a finding of fact without the necessary supporting evidence can constitute an error of law - a concept which bears some resemblance to a burden of proof. However, as has been said, matters such as these may only serve to disguise the true nature of the hearing by the Tribunal. It remains inquisitorial and, in such context, the concept of a burden proof such as that operating in a court of law has no place, save in a situation where there is some specific provision such as S.76(2) of the Transport Accident Act - see Re Treloar and TAC 1990 4 VAR 75.

Accordingly, I find in favour of the argument advanced by Mr. Griffin on behalf of the Transport Accident Commission and, as a result, need make no ruling on the question of where such a burden would otherwise have rested.

I turn now to the question of the conduct of the proceedings and the order in which evidence shall be received. In this regard, I would make the following observations.

(i) In deciding a matter in its review jurisdiction, the Tribunal has all the functions of a decision maker in addition to any other functions that may be conferred - see Section 51 of the Act. Further, it seems clear from the authorities that the Tribunal puts itself in the position of the decision maker, which in this instance would be the Commission - see, for example, the remarks of Woodward J in McDonald.

(ii) Whatever may be the position in relation to the burden of proof, the manner in which the Tribunal informs itself is a matter for it. As Woodward J said in McDonald as page 356,

"Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However, these may be of assistance in some cases where the legislation is silent."

This is consistent with the provisions of the Act, and in particular Section 98, wherein it is stated that the Tribunal may inform itself on any matter as it sees fit and may regulate its own procedure.

(iii) The Tribunal is bound by the rules of natural justice. In addition, it is bound to act fairly. Sections 97 and 98 make this clear. Thus it is bound to afford to the parties procedural fairness.

(iv) The Tribunal is not bound by the rules of evidence or any practices or procedures applicable to courts of record - see Section 98(1)(b). However, the rules of evidence are not lightly to be discarded. It seems to me that this is particularly so in a situation such as the present case, where an adversarial approach is being adopted by experienced counsel. I refer again to the remarks of Eames J mentioned above.

(v) Assistance can be gained in relation to the use of the rules of evidence in a Tribunal such as this from the following observations of Evatt J in R V War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256: -

"Some stress has been laid by the present respondents upon the provision that the tribunal is not, in the hearing of appeals, "bound by any rules of evidence". Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although the rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice".

As far as I can ascertain, whilst contained in a dissenting judgement, this statement has not been the subject of subsequent judicial criticism. It is a statement which is referred to and supported by the author in "Natural Justice" by Geoffery A. Flick, second edition, at pages 70 and 71. The author there also refers to the observations of Sir Alfred Denning in "Freedom Under The Law" at page 90 where a warning has been given not to dispense with rules of evidence and procedure altogether because the endeavour to provide some form of rough justice may mean that justice becomes so rough that it ceases to be justice. Clearly, whilst there does not have to be strict and undeviating application of the rules of evidence, the above observations are useful and in my opinion should be borne in mind, particularly where a case is to be contested in a vigorous, adversarial fashion.

(vi) In my opinion, such an approach may also be of some assistance in relation to the practice and procedures to be adopted. As with the rules of evidence, rules of practice and procedure which assist in the administration of justice have evolved. As was said by Fox J in Kuswardana v. Minister for Immigration and Ethnic Affairs [1981] FCA 66; (1981) 35 ALR 186 at 199:

"..... we should be cautious in trying to apply to procedures and practices operating in an administrative setting those which apply in a judicial setting. This is not to say that an administrative tribunal may not, subject to the regulations governing it, find it convenient or helpful to follow in some respects procedures which over the span of many years have been found by courts of law to be most conducive to the interests of justice".

It is interesting to note that an approach consistent with this has been adopted previously in appropriate circumstances by this Tribunal. In Jacques Nominees Pty Ltd v. National Mutual Trustees Pty Ltd (2000) 16 VAR 152 it was observed that VCAT frequently adopts the Supreme Court rules as a guide to practice and procedure, providing that the adoption of such rules did not breach the rules of natural justice. Further, in Bufalo Corporation Pty Ltd v. Bulla Road Pty Ltd (unreported, 26 May 2000) Deputy President Cremean observed that VCAT was able to adopt any of the practices or procedures of courts of record and did indeed adopt in the particular case such a practice or procedure as a matter of basic fairness.

(vii) The Tribunal must conduct each proceeding with as little formality and technicality as the Act and a proper consideration of the matters before it permit. However, it seems to me that, in giving proper consideration to a matter before it, the Tribunal may, in a particular case, find assistance and guidance both in the rules of evidence and in the practices and procedures of courts of record. Section 98(1)(d) does not seem to me to mean that what could be described as "Rafferty's Rules" prevail. For example, His Honour Judge Wood in Re Hulls and Department of Treasury and Finance (unreported, 27 October 1998) observed that it would be inconsistent with the requirements of Section 98(1)(d) for VCAT to seek to inform itself by the receipt of irrelevant material. As Mr. Brett on behalf of the Applicant so trenchantly observed, some procedure, some order of receiving evidence, must be established or we will all simply sit looking at each other in silence. Similarly, it seems to me that, particularly in a matter which is being contested in an adversarial way, there must be a beginning and an end to evidence and to the material presented on behalf of the respective parties. The rules of evidence and the practices and procedures of courts of record can assist in this regard. Such an approach is in no way inconsistent with the requirements of Section 98(1)(d) and is consistent with the requirement of fairness contained in Section 97 of the Act.

In summary, it seems to me that the following is what could be described as a general approach that can be adopted in an adversarial-type case, such approach being consistent with the operation of the Act and with the authorities. In placing itself in the shoes of the decision maker, the Tribunal can and frequently will gain assistance from reference to the rules of evidence and to the practices and procedures of courts of record. It is not bound by such rules, practices or procedures, but is bound to act fairly, and this includes the affording of procedural fairness. In arriving at the procedure to be adopted, it is a matter for the Tribunal itself to determine, bearing in mind the requirement for fairness, and bearing in mind what was described by Woodward J as "considerations of natural justice or common sense". As stated, the established rules of evidence and of practice and procedure may assist in this regard, and particularly where the matter is proceeding as an adversarial contest.

It is against this background that I shall rule as to the sequence in which evidence is to be presented in this case.

I am of the view that the Transport Accident Commission should present its evidence first. I am of this view for the following reasons, which are not listed in order of importance:-

(a) It is the Commission which is seeking to disturb the status quo. It accepted liability to pay benefits in 1994 and in fact paid them for almost 6 years before making a determination that such payment should cease. As I understand it, such determination was made in what could be described as a unilateral way, in that no particular application by, correspondence from or meeting with the Applicant at that time seems to have provoked it.

(b) The Commission, as decision maker, conveyed its decision to the Applicant in a very brief letter dated 22nd August 2000 which letter contained a minimum of information and gave no real explanation as to why it had reached the determination that it had. It seems to me fair that, at the hearing of the matter, it should present the material upon which it relied in arriving at its decision, and present that material and evidence prior to the Applicant being obliged to make a decision as to whether or not to present material or evidence. This is particularly so when it is borne in mind that there does not seem to have been anything current from the Applicant before the decision maker when the decision was taken.

(c) It is of assistance to recall the role which the Commission should play in a hearing such as this, even when the matter is being contested in an adversarial fashion. There was a timely reminder of this in the judgement of Tadgell JA in TAC v. Bausch at page 259. His Honour there said:-

"It should again be unnecessary to say that the community is entitled to expect that the scheme will be administered fairly, honestly and impartially and with proper regard to the purposes for which it was established. The scheme necessarily carries with it an entitlement on the part of a disappointed claimant to have an administrative decision by the commission properly reviewed by the tribunal. That entitlement carries, of course, a corresponding obligation on the part of the commission, as the primary administrative decision-making body, to assist the tribunal in making the review......The review is in no sense to be treated as raising a lis or amounting to an adversarial contest in which the commission is entitled to engage in curial tactics. That is not to say that there cannot be disputed issues between the parties raised for resolution, or that the commission may not seek actively to support before the tribunal its decision which is under review. If it does seek to do so, however, it is a fortiori imperative that its reasons for its decision, and the material that it considered in making it, should be squarely and unequivocally revealed to the tribunal".

It seems to me to be entirely consistent with this approach that, in a case such as this and where, as shall be discussed, a serious allegation has been made, the Commission should go first. It should assist the Tribunal as a reviewing body by placing before it squarely and unequivocally the material upon which it relies, and it seems to me that, when it is the party making such allegation, it should not have the benefit of the Applicant going first so that it can have the advantage of cross-examining him in an endeavour to underpin the material upon which it relied when making its decision. This last mentioned aspect of the procedure could well be considered a curial tactic.

(d) It is of interest to note the procedure which was in fact adopted in Bausch. In Bausch, liability was accepted by the Commission in respect of an accident and payments made to the claimant. The Commission also granted consent to the claimant to institute proceedings. Various intermediate steps then seem to have been taken or not taken. However, approximately 6 years after the acceptance of the claim, the Commission stated that it was not liable to compensate the claimant as, at the time of the accident, he had been on a protected journey pursuant to the provisions of the Accident Compensation Act. There is no need to go further into the technicalities of what occurred in Bausch. Suffice to say that it was a situation where a claim was accepted and some 6 years later the Commission determined that it was not liable to pay benefits pursuant to the Act. The claimant sought a review of this decision by the Administrative Appeals Tribunal. It is apparent that at such review the Commission led its evidence first - see page 254 of the judgement of Tadgell JA. Of course, this in no way binds the Tribunal as to the procedure to be adopted in this case. However, it is of interest that, in a case where there are some marked similarities to the present case, the Commission led its evidence first and this evoked no comment or criticism from the Court of Appeal.

(e) As stated, the Tribunal assumes the position of the decision maker. Of course, this does not mean that it must assemble the material necessary to arrive at a decision in exactly the same way as the original decision maker did or would. However, it is interesting to note that, in this case, the original decision maker appears to have arrived at its decision without calling upon the Applicant to provide any, or any current, material. It appears not to have foreshadowed to the Applicant its intention of arriving at such a decision or indeed that it was investigating the possibility of arriving at such a decision. It simply made its decision based upon the material which it had gathered and without reference to the Applicant. Obviously I need not go about arriving at a decision in the same way, but the manner in which the original decision maker arrived at its decision seems to me to be another factor which underlines the procedural fairness of having it lead its material prior to the Applicant being called upon.

(f) It is clear from what has been put to me by Counsel, apart from what is contained in the documentation, that the benefits payable to the Applicant were terminated because it is now alleged that the accident either did not happen or did not happen in the manner described. Mr. Brett put it that payments had been terminated because the Commission considered that what had occurred was a fraud. The Commission, through Mr. Griffin, did not dissent from this. Indeed, as outlined by Mr. Griffin, it became quite clear that fraud was exactly what was being alleged. I make it clear that I am not now dealing with the standard of proof that is required but rather with the sequence in which evidence or material should be received. Thus, when a criminal or quasi-criminal allegation is made in a civil matter, some exactness of proof is expected, as stated by Dixon J in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362. In coming to the ruling under consideration, I am minded more of what is required by way of procedural fairness than by any statements concerning the standard of proof, but in so doing consideration of the attitude of courts of record to serious allegations can be of assistance.

(g) The legal proposition that he who asserts must prove is one more properly used in the context of a discussion concerning burden of proof, and, as has been stated, that concept does not exist in a hearing such as this. It is a legal proposition which is, in turn, related to the right or obligation to begin. However, as has been discussed, some assistance can be gained by way of reference to what occurs in a court of record. As was stated by the Full Court of the Supreme Court of Victoria in The City of St. Kilda v. Evindon Pty Ltd and others [1990] VicRp 67; 1990 VR 771 at 775:--

".... there is nothing to suggest that the fairness required of the tribunal by the principles of natural justice is significantly different in nature from what would be required of the judges of a court hearing any proceeding. The statutory provisions give the tribunal a court-like function in hearing appeals. As in the case of a court, it is the duty of the tribunal within its area to administer justice according to the law. ..... There is nothing about the nature of the tribunal, its inquiry, the power it exercises or the statutory provisions applying to it which would make it appropriate that the practices it should follow to accord natural justice be significantly different from those a court would be expected to follow."

The Tribunal there being discussed was the Administrative Appeals Tribunal.

(h) It seems to me that the practice which a court would follow in a case such as this would be to require a party seeking to alter the status quo by alleging fraud to go first. It is interesting that in McDonald, and whilst discussing the question of a burden of proof, Jenkinson J refers to a text, "An Exposition of the Practice Relative to the Right to Begin" by W M Best. This book was published in 1837. At that time, and in a context where the parties seemed largely to have been fighting for the right to begin rather than trying to avoid same, where fraud was alleged, the party alleging fraud basically went first - see pages 46 and 47 of Best and the cases there referred to. Further, at page 63, reference is made to the decision of Bryan v. Wagstaffe and to a quotation from Abbott CJ as follows - "I think the defendant .... should begin, because the affirmative of the question of fraud lies upon him ......".

Of course these old cases were decided at a time of great technicality in the law and also in the context of "onus probandi". Nevertheless, they illustrate the point that for many years in courts of record a party alleging fraud can be called upon to begin. Again, whilst this is in no way binding, it also can be of assistance in determining the order of procedure in a matter such as this.

In summary, and for all of the above reasons, it seems to me that in a case such as this the Tribunal, in informing itself as it thinks fit and in regulating its own procedure in accordance with Section 98(3) of the Act, can and should direct that the Commission lead its evidence first. This seems to me to accord with procedural fairness and with the fundamental requirement that the Tribunal act fairly.

Civil and Administrative Tribunal Act 1998

Golem v Transport Accident Commission [2002] VCAT 319

At a glance

Court

Decision date

Before

Source

Judgment (42 paragraphs)

Golem v Transport Accident Commission [2002] VCAT 319 (10 May 2002)

Parties

Legislation Cited (2)

Cases Cited (7)