Ingot Capital Investments Pty Limited & Ors v Macquarie Equity Capital Markets Limited & Ors

Ingot Capital Investments Pty Limited & Ors v Macquarie Equity Capital Markets Limited & Ors - [2006] NSWSC 530 - NSWSC 2006 case summary — Zoe

[33]

… (c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. 13 In proceedings in which a decision is reviewed the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision (s 43(1)). In Re Pochi v Minister for Immigration & Ethnic Affairs (1979) 26 ALR 247, Brennan J, as President of the AAT, said at 256: How are facts to be proved, and how is the sufficiency of proof to be determined when there are no rules of evidence binding upon either the Minister or the Tribunal? Section 33(1)(c) of the Administrative Appeals Tribunal Act provides that "the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate". Although the Tribunal is governed by statute in the approach which it must take in assessing the evidence, and the Minister is not, I do not know that the statute confines the Tribunal to an approach which is more restricted than the approach which the Minister might properly take in assessing the same evidence. The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that "this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force", as Hughes CJ said in Consolidated Edison Co v National Labour Relations Board 305 US 197 at 229. To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J pointed out, though in a dissenting judgment, in R v War Pensions Entitlement 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 rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'." That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence.

[36]

(3) This section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents. 16 There is no definition of "proceeding" in the Act, however s 4 provides relevantly that the Act applies to "all proceedings in a federal court" (Cth Act) or "all proceedings in a NSW court" (State Act). The definitions of "federal court" in the Commonwealth Act and "NSW court" in the State Act include "any person or body (other than a court) that, in exercising a function under the law of the Commonwealth [State], is required to apply the laws of evidence". It has not been submitted that there is any relevant difference between the "laws of evidence" in s 4 of the Act and the "rules of evidence" in s 33 of the AAT Act for the purposes of this Motion. The AAT is not "required" to apply the laws of evidence and is therefore not a "Court". It follows therefore that the Act does not apply to the AAT. Common law (litigation) privilege 17 The common law privilege was referred to in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 as a "rule of substantive law". Gleeson CJ, Gaudron, Gummow and Hayne JJ said at 552: It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may be noted that the "dominant purpose" test for legal professional privilege was recently adopted by this Court in Esso Australian Resources Ltd v Federal Commission of Taxation in place of the "sole purpose" test which had been applied following the decision in Grant v Downs. 18 There are two aspects, or limbs, to the common law privilege: the first protects communications between the client and the lawyer that are made for the dominant purpose of providing legal advice to the client (advice privilege); the second protects communications between the client and the lawyer made for the dominant purpose of providing the client with legal services in connection with pending or anticipated legal proceedings (litigation privilege). Relevantly to the subject documents on this Motion McHugh J said in Daniels in relation to advice privilege at 563: Legal professional privilege describes a person's immunity from compulsion to produce documents that evidence confidential communications about legal matters made between a lawyer and a client or between a lawyer and a third party for the benefit of a client. 19 There is no definition of "proceeding" in the Supreme Court Act 1970 or in the Civil Procedure Act 2005. In contrast, the term is defined in s 4 of the Federal Court of Australia Act 1976 (Cth) as "a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal".

[39]

200 In the Final Report of the Australian Law Reform Commission Report on Evidence (No 38) the application of the bill is discussed at [55]-[57]. The following appears at [57]: Proceedings. The Evidence Bill applies, subject to specified exceptions, in all proceedings in federal courts and in courts of the Territories. It applies whenever evidence is to be adduced, including in bail applications, interlocutory proceedings and proceedings heard not in open court but in chambers. It applies, not only in ordinary trials (whether civil or criminal) but also in matters such as bankruptcy proceedings . There are transitional clauses included to deal with hearings commenced but not concluded before the commencement of the Bill. [Emphasis added] 201 Though "bankruptcy proceedings" are specifically referred to, it does not follow that an examination after the sequestration order is made and the debtor is made a bankrupt is such a proceeding. The paragraph makes clear that it is proceedings "whenever evidence is to be adduced ". 21 In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, Bowen CJ and Deane J said of the AAT at 584-585: The general functions conferred upon the Tribunal are plainly administrative in character. … Neither the fact that the Tribunal possesses certain procedural powers ordinarily enjoyed by courts nor the fact that the Tribunal is authorized to decide questions of law arising in proceedings before it means that, in performing these administrative functions, it is exercising judicial power. The fact that the Tribunal for the hearing of the review in the present matter was constituted by a single presidential member whose qualifications happened to be that he was a judge of this court may perhaps be thought to add to the Tribunal a superficial "trapping of curial decision-making". The trappings of decision-making are not however necessarily indicative of the existence of judicial, as destinct from administrative, power (see generally, R v Quinn ; Exparte Consolidated Food Coporation (1977) 16 ALR 569-576 at 574). Many tribunals whose functions are purely administrative are under a duty to act judicially, that is to say, with judicial detachment and fairness. The trappings of judicial decision-making are, in some cases, no less appropriate to such a tribunal than they are to a court concerned with the exercise of judicial power of the Commonwealth. 22 In Cheney v Spooner (1929) 41 CLR 532 Isaacs and Gavan Duffy JJ, in dealing with the appellants contention that there was no "trial or proceeding" in which the appellant could be lawfully required to give evidence, referred to the existence of a "distinct judicial proceeding" (at 537). In Proust v Blake (1989) 17 NSWLR 267 at 270, Samuels JA noted that the term "proceeding" is not defined in the Supreme Court Act and that "it is used very generally" in that Act "to cover the whole variety of forensic exercises which may occur in the Court". In Blake v Norris (1990) 20 NSWLR 300 at 306 Smart J said: In Stroud's Judicial Dictionary , 5th ed, vol 4 at 2029-2035, some fifty-five instances are given of the use of the words "proceeding" or "proceedings" in legislation, rules of court or documents having legal significance. The meaning depends on the context in which the word is used. In some cases it is equivalent to "an action" whereas in others it may mean a step in an action. Sometimes it may include a counter claim. The Oxford Companion To Law (1980) by Professor Walker states (at 1002-1003) that "proceedings" is sometimes used as including, or meanings, an action or prosecution, and sometimes as meaning a step in an action. The word "proceeding" is capable of such a variety of meaning that dictionary definitions as to its ordinary or natural meaning are not of much use. They tend to highlight the number of meanings which the word can bear.

[52]

152 In support of its contention that litigation privilege should extend to communications brought into existence in connection with the Inquiry, AWB pointed to the following matters. First, the Commissioner's terms of reference require him to report on the lawfulness of AWB's conduct and whether criminal or other legal proceedings should be instituted against AWB or any person associated with it. Thus, the Inquiry may have far-reaching consequences, legal or otherwise, for AWB and persons associated with it. Secondly, the Commissioner has conducted public hearings and witnesses have been examined and cross-examined at those hearings. The Commissioner has permitted AWB and others to be represented at the hearings, and it was said that the proceedings before the Inquiry have had an adversarial dimension to them. Thirdly, AWB submitted that evidence and other material had to be carefully prepared for the Inquiry, especially in view of the criminal penalties which attach to evidence which is untruthful. The preparation of evidence to be placed before the Inquiry necessitated legal assistance. In view of these considerations, AWB submitted that there is a compelling case for extending the second limb of the privilege to the Inquiry and, in particular, to the preparation of evidence for potential submission to the Inquiry. 153 AWB submitted that the policy considerations that attract privilege for documents that are brought into existence for the dominant purpose of providing legal services in connection with litigation apply with equal force to documents that are brought into existence for the dominant purpose of preparing and submitting evidence to the Inquiry. More specifically, it submitted that the broad rationale adopted by the High Court in Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 ( 'Carter' ) that underpins both limbs of legal professional privilege, namely that it is 'a practical guarantee of fundamental, constitutional, or human rights... and a corollary of the rule of law' (at 161 per McHugh J) supports the extension of the privilege beyond adversarial litigation to the conduct of this particular Inquiry, at least insofar as it affects AWB and its employees.

[64]

26 Waterford v The Commonwealth of Australia (1987) 163 CLR 54 was an appeal from a decision of the Full Federal Court [(1985) 7 ALD 93] dismissing an appeal from a decision of the AAT [(1984) 5 ALD 588]. The appellant had made a request in accordance with s 15 of the Freedom of Information Act 1982 (Cth) (the FOI Act) of the Department of Treasury (the Department) for access to documents relating to projections in the 1982/3 Budget Papers and in a subsequent Ministerial press release in relation to the number of people who would receive unemployment benefits. The Department refused access to those documents. The appellant applied to the AAT for review of that decision. 27 Prior to the AAT giving its decision in relation to the appellant's application, the appellant sought access to the documents in the Department's possession that related to the processing of his original request. The Department refused access to those documents. The appellant then applied for a review of that decision in the AAT. The documents that were identified in respect of that process included: (i) notes prepared by the Officers of the Department; (ii) letters between the Attorney General and the Treasurer; and (iii) memoranda between the Departmental Officers and Officers of the Deputy Crown Solicitors Office of the ACT (subsequently the Australian Government Solicitor). 28 In the AAT the Department claimed that the documents were exempt documents, inter alia, under s 42(1) of the FOI Act which provides: A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege. 29 The AAT held that each of the documents was exempt under s 42(1) and the Full Federal Court (Fisher, Gallop and Neaves JJ) dismissed the appeal. The appeal to the High Court was dismissed (Mason and Wilson JJ, Brennan J; Deane and Dawson JJ dissenting). In the joint judgment of Mason and Wilson JJ, their Honours identified the central question in the appeal as (at 60): … whether it is open to the Commonwealth to claim legal professional privilege in the circumstances of this case, that is to say in respect of documents the subject matter of which is legal advice obtained from within the Government and concerned with proceedings pending in the tribunal. 30 Their Honours said of s 42(1) of the FOI Act (at 64): The plain reading of this provision would suggest that Parliament has acknowledged expressly that legal advice tendered in connexion with the process of administrative decision-making will attract the privilege. Furthermore, the nature of the proceedings on an application for review cannot affect the matter. The relevant question is whether the document to which access is sought is an exempt document. If the privilege attaches, it will have the character from the beginning, regardless of whether or not the decision to refuse access is reviewed. 31 Their Honours also said (at 67): But the point of overriding importance to the appellant's argument focuses on the second category of documents to which the privilege attaches, that is to say, professional communications between a client and his legal adviser in connexion with legal proceedings . It was to this category of documents that much of the appellant's request for access related. If a communication satisfies the description of a document brought into existence for the sole purpose of enabling a confidential professional communication between a client and his legal adviser in connexion with pending or anticipated legal proceedings then in our opinion it follows that it is an exempt document within the meaning of s. 42 of the Act. In such a case it is not to the point that the document may contain advice which relates to matters of policy as well as of law. It is the connexion between the document and legal proceedings that establishes its character and thus attracts the privilege. 32 Dawson J drew the distinction between a situation in which advice was given by an in-house lawyer "in a professional capacity in relation to a professional matter" and that given to assist the government "in the purely executive function of decision making". His Honour held that the former attracted privilege and the latter did not. Dawson J identified the privilege that was in issue in the proceedings as follows (at 95): The legal professional privilege relied upon in this case is that which attaches to communications between a legal adviser and his client for the purpose of giving or receiving legal advice and to documents recording those communications or containing information for the purpose of enabling the advice to be given. 33 At 101 his Honour said: The relevant documents for which privilege was claimed in this case relate, however, not to the decision to refuse access to the document to which access was originally sought and refused, but to the proceedings before the Tribunal in which that refusal was contested. … Thus the communications for which privilege was claimed in this case appear to relate, not to advice given to assist in reaching the decision to refuse access to those documents (a decision which would have been simply in the administration of the Act), but to the proceedings before the Tribunal in which the decision to refuse access was contested. The concept of litigation for the purpose of the doctrine of legal professional privilege is, I think, wide enough to embrace the proceedings before the Tribunal which were conducted upon adversary lines and contemplated legal representation. Communications for the purpose of giving and receiving legal advice in relation to those proceedings fell, in my view, within the privilege. … [I]t is clear enough that in giving legal advice about the proceedings before the Tribunal [the legal advisers] were acting in a professional capacity in relation to a professional matter and enjoyed the relationship of lawyer and client with the respondent. 34 That statement at the commencement of the second paragraph above is the passage quoted by Young J in AWB at par [160]. The applicant submitted that when the passages above are read together it can be seen that Dawson J was indicating that advice in relation to the AAT proceedings was, for the purposes of advice privilege at common law, legal advice. It was submitted that this was to be contrasted with advice in relation to the decision whether or not to refuse access to documents, which would be advice to assist with the purely executive function of decision-making.

[65]

35 It was submitted that the question of whether litigation privilege extended to the communications in connection with the hearing of an application before the AAT does not appear to have been an issue in Waterford in the Full Federal Court [(1985) 7 ALD 93] or to have been the subject of argument before the AAT [(1984) 5 ALD 588]. It was submitted that such argument was conducted in terms of advice privilege. I agree with that submission. 36 The respondents submitted that the question of whether the application before the AAT was a "legal proceeding" for the purposes of the FOI Act was accepted by Mason and Wilson JJ in their finding (at 67) that communications in relation to an application before the AAT would be privileged if there was "connection between the document and the legal proceedings". The respondents also submitted that Mason, Wilson, Brennan and Deane JJ did not query the status of the AAT proceeding as "legal proceedings" notwithstanding that the issue was clearly raised by Dawson J. The respondents made the following submission: 9. Dawson J (dissenting) considered that the question of privilege should not be determined by reference to the Freedom of Information Act , but under the common law doctrine of legal professional privilege, as communications for which privilege was claimed related to the AAT's decision to refuse access to the documents and not to the Department's refusal. Dawson J confirmed that the common law doctrine of litigation privilege could apply to proceedings in the AAT. This element of his Honour's judgment is accepted by Young J in Cole … The interpretation of the common law doctrine of litigation privilege in both Cole and Waterford is entirely consistent with the respondent's interpretation of s 119 of the Act. 37 In contrast, the applicant submitted that in the passage at paragraphs [160]-[161] of AWB, Young J did not say that litigation privilege extends to communications regarding AAT proceedings. I agree that Young J did not make that express statement. His Honour identified the fact that AWB relied on what Dawson J said in Waterford and contrasted the position between the AAT and the Royal Commission there under consideration. His Honour did not analyse the nature of AAT proceedings other than to say that the AAT is "vested with statutory authority to determine issues with legally binding consequences". It seems to me that, rather than endorsing what Dawson J said in Waterford, Young J accepted the statement as correct for the purpose of drawing the distinction between the AAT and the Royal Commission and in doing so identified an attribute of the AAT that was not available to the Royal Commission. 38 The applicant conceded that the decisions in Waterford and AWB identified some relevant factors for determination in this Motion being: (1) the fact that the AAT proceedings contemplated legal representation (Waterford per Dawson J at 101); (2) the fact that the AAT is "vested with statutory authority to determine issues with legally binding consequences" (AWB per Young J at [161]); and (3) the statement that the AAT proceedings were "conducted on adversary lines" (Waterford per Dawson J at 101).

[67]

40 It is accepted that the AAT has statutory authority to determine issues that are legally binding on parties. There are many bodies that make decisions that are legally binding on individuals, for example the Australian Taxation Office in relation to assessments, licensing authorities in relation to the granting of licenses and local councils in relation to development consents. Once again this criterion alone does not seem to me to be a proper basis upon which litigation privilege should be extended to AAT proceedings, however it is a matter to be taken into account in determining whether litigation privilege extends to the AAT. 41 In Re L (a minor) [1997] AC 16, a case referred to by Young J in AWB, a two year old child was admitted to hospital in an unconscious state after consuming a quantity of prescription methadone. The child recovered quite quickly after medical treatment. The parents were both registered heroin addicts and the mother claimed that the child had taken the methadone accidentally. The local authority obtained an emergency protection order and then commenced care proceedings in the county court under Part IV of the Children Act 1989 (UK). The mother was granted leave to disclose the court papers to a medical expert, for the purpose of a report regarding the frequency of the consumption of methadone by the child. That report was to be filed with the court. The local area police sought access to the report for the purposes of investigating criminal offences. Bracewell J made an order authorising disclosure of the report to the police authority. The mother appealed on the basis that the report was protected by legal professional privilege and that it infringed her privilege against self-incrimination. The Court of Appeal dismissed the appeal and the mother appealed to the House of Lords. 42 Lord Jauncey of Tullichettle, (with whom Lord Lloyd of Berwick and Lord Steyn agreed, Lord Mustill and Lord Nicholls of Birkenhead disagreeing) said (at 25): Litigation privilege, as it has been called, is an essential component of adversarial procedure and continued( at 25): Finally, in Waugh v British Railway Board [1980] A.C. 521, 536 Lord Simon of Glaisdale said: " This system of adversary forensic procedure with legal professional advice and representation demands that communications between lawyer and client should be confidential, since the lawyer is for the purpose of litigation merely a client's alter ego. So to material which is to go into the lawyer's (i.e. the client's) brief or file for litigation. This is the basis for the privilege against disclosure of material collected by or on behalf of a client for the use of his lawyer in pending or anticipated litigation …" 43 Lord Jauncey referred to the numerous cases in which wardship proceedings had been held to be non-adversarial and after observing that in both wardship and care proceedings the welfare of the child is the primary consideration, his Lordship agreed with Sir Stephen Brown P in the Oxfordshire case [1994] Fam. 151, that care proceedings "are essentially non-adversarial" (at 25-26). His Lordship said: However in these proceedings, which are primarily non-adversarial and investigative as opposed to adversarial, the notion of a fair trial between opposing parties assumes far less importance. In the latter case the judge must decide the case in favour of one or other party upon such evidence as they choose to adduce, however much he might wish for further evidence on any point. In the former case the judge is concerned to make a decision which is in the best interest of the child in question and may make orders which are sought by no party to proceedings: sections 10 (1) (b) , 31(5), 34(5) of the Act. Furthermore, the court has wide powers under rule 4.11 (9) (10) of the Rules to require the guardian ad litem to obtain expert reports and other assistance. Thus the court is seeking to reach a decision which will be in the best interests of someone who is not a direct party and is granted investigative powers to achieve that end. In these circumstances I consider that care proceedings under Part IV of the Act are so far removed from normal actions that litigation privilege has no place in relation to reports obtained by a party thereto which could not have been prepared without the leave of the court to disclose documents already filed or to examine the child. 44 The reference to the proceedings being far removed from "normal actions" seems to me to be a reference to the normal or usual actions of the Court. That is, its usual or normal actions of hearing cases on the evidence adduced by the parties and not going beyond those "actions", for instance, by calling evidence on its own motion or requiring production of possibly relevant documents. 45 Lord Nicholls, in delivering the minority opinion in Re L, suggested that the litigation privilege was a "safeguard" to a "fair hearing" in family proceedings. In AWB Young J expressed the rationale with precision when he said that litigation privilege operates to "secure a fair civil or criminal trial within our adversarial system of justice" (at [158]).

[68]

46 In Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 Fox J said (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. They plainly must be able to accept concessions of fact, but so to express the matter is to confuse their function, which is one of the administrative inquiry, without rules of evidence. 47 The respondents did not call any evidence in relation to the manner in which proceedings are conducted in the AAT. The fact that legal representation is contemplated in the AAT does not mean that the proceedings are adversarial. The fact that the legal representatives of the applicants in AAT proceedings may argue for an outcome different to that in the decision under review whilst the decision-maker is represented does not mean that the proceedings are adversarial. It is important to consider the functions and powers of the AAT in determining whether the proceedings are adversarial. 48 In APRA v VBN & Ors [2005] FCA 1868, in an application pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B(1A)(a) and (c) of the Judiciary Act 1903 (Cth), Ryan J reviewed the decision or conduct of the AAT in making an order under s 37(2) of the AAT Act that the decision-maker lodge certain documents, including "legal advice" and "relevant instructions" relating to the "interpretation and application of the law relating to the decision under review". In its reasons for making the order the AAT observed that s 37(3) "expressly abrogates legal professional privilege in relation to documents that must be lodged with the Tribunal under ss 37(1) or 37(2)". 49 Ryan J held that the reach of the sub-section did not extend to expressions of legal opinion or advice that may have been available to the decision-maker but were not considered in the course of arriving at the impugned decision (at [32]) but that the AAT retained the "facility" to require the decision-maker to lodge "copies of legal advices which may be relevant to the review" (at [58]). His Honour said: 38. At [21] of its reasons the Tribunal observed that s 37(3) "expressly abrogates legal professional privilege in relation to documents that must be lodged with the Tribunal under ss 37(1) or 37(2). It also appears to do so in relation to the documents that must be given to each other party of the proceeding. …". With respect, it may put the effect of s 37(3) too high to say that it "abrogates" legal professional privilege. What the sub-section does, in my view, is to require the earlier provisions of s 37 to be given full effect in the sense that privilege cannot be advanced as a reason or excuse for not complying with those sub-sections … …

[70]

I have already indicated at [8] above my tentative view that s 37(3) of the Act does not "abrogate" privilege, including legal professional privilege. If, as I think, scope remains for the Tribunal to give effect to legal professional privilege attaching to documents required to be lodged by a decision-maker, a decision which denies that effect has a final impact on what the High Court has identified as a substantive common law right or immunity. It is therefore a decision under an enactment notwithstanding that it is procedural in the sense of being made on the way to arriving at the ultimate decision entrusted to the Tribunal. 50 Section 37(3) makes clear that a claim for legal professional privilege is not available to resist the production of documents ordered to be produced pursuant to s 37(2) of the AAT Act. The express exclusion of that common law right or immunity is confined to that aspect of the AAT's powers. It does not affect the existence of the right in relation to other aspects of the AAT's powers. On one view of it, the limit of s 37(3) of the AAT Act and the absence of any other express exclusions, confirms the availability of the common law privilege in relation to review proceedings. However that does not mean that both limbs of the common law privilege are available. It is necessary to analyse the nature of the review "proceedings" to decide whether litigation privilege is available. 51 In McDonald v Director-General of Social Security (1984) 1 FCR 354, the Director General's decision was challenged on a number of bases including that the AAT had erred in failing to place an onus of proof on the respondent. In the Full Court (Woodward, Northrop and Jenkinson JJ) Northrop J said (at 365-366): A person makes a claim for a pension and that claim is determined by the Director-General or his delegate. The Director-General, or his delegate, determines a claim on all the relevant material in his possession. Parties do not appear before him. There are no adversary procedures. In one sense it is true to say that a claimant has an onus of proof, but the use of that expression obscures the true nature of the duty imposed on the Director-General, or his delegate, to determine the matter. A pension is paid only so long as the pensioner is qualified to receive the pension.

[73]

Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings. 53 These observations are at odds with what Dawson J said in Waterford, however it must be remembered that his Honour did not analyse the AAT Act nor did he provide any reasons for his conclusion that the AAT proceedings were conducted on "adversary lines". It must also be remembered that the AAT Act had only been in force for about four years at the time that Dawson J made his observations. I am of the view that the observations of Northrop J and Brennan J are more powerful and persuasive on the question of whether proceedings in the AAT are "adversarial". They lead to the conclusion that the proceedings are not adversarial. 54 Section 33(1AA) of the AAT Act is also of significance. This is the statutory recognition of what Northrop J said in relation to the decision-maker appearing to "assist the Tribunal". It may be that the outward appearance of the proceedings (as referred to by Northrop J in McDonald and Brennan J in Bushell) is adversarial, but the overriding statutory obligation of assistance to the Tribunal by the decision-maker is another factor that leads me to the conclusion that the proceedings are non-adversarial. Other factors to be taken into account in deciding whether litigation privilege is available include that the AAT stands in the shoes of the decision-maker and is able to inform itself in any manner that it deems fit. It is able to go beyond the submissions put to it by those appearing before it and is able to require the production of documents that it regards "may be relevant to the review of the decision". It may inquire into matters as it sees fit. The Tribunal's power to, itself, call evidence is also relevant: Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 1979 ALD 634. The AAT is not a court and the decision on a review does not involve the exercise of judicial power: Drake v Minister of Immigration and Ethnic Affairs (1979) 24 ALR 577 (at 584-585 per Bowen CJ and Deane J).

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