Supreme Court of Tasmania|1999-03-08|Before: Crawford J

R v Davis, Geoffrey & Vandenberg, John & Curtis, M & Crowther, N & Davies, F & S & Irwin, D & G & Evans, P & B & Myhill, P & Sampson B & S & Tierney, P & M; ex parte [1999] TASSC 22 (8 March 1999)

Administrative Law - Judicial review at common law - Procedural fairness - Rights of party affected to be heard - Nature of hearing - Opportunity to present case - Duty to observe rules of natural justice - Duty to act fairly - Whether witnesses may be cross-examined - Whether cross-examination "through the chair" is adequate - Resource Planning and Development Commission - Hearing of representations in relation to draft amendments to planning scheme.

Resource Planning and Development Commission Act 1997 (Tas), s10(1)(b).

Salemi v MacKellar [1977] HCA 26; (1977) 137 CLR 396; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1962 - [1963] HCA 41; 1963) 113 CLR 475, applied.

Judgment ID Number: [1999] TASSC 22

THE QUEEN v GEOFFREY DAVIS and JOHN VANDENBERG;

ex parte M CURTIS, N CROWTHER, F & S DAVIES, D & G IRWIN,

P & B EVANS, P MYHILL, B & S SAMPSON and P & M TIERNEY

1 Calvary Hospital occupies land on Lenah Valley Road in Hobart. Under the City of Hobart Planning Scheme 1982, the land is shown in Special Use Zone 7, a special precinct zoned specifically for use as a hospital. The hospital wished to erect more buildings on its land and to enlarge its operations into the neighbouring residential area. At its meeting on 27 January 1998, the Hobart City Council decided to initiate amendments to the Scheme which would permit the hospital to do so. The proposed amendments would inter alia enable the hospital to erect buildings on the existing site and extend the special precinct from one side of Raluana Lane to the other, thereby enabling the hospital to use the other side of the lane for an extensive car park.

2 By virtue of the Land Use Planning and Approvals Act 1993, ss35 and 36(1), the Council caused a copy of its decision and of the draft amendments to be submitted to the Resource Planning and Development Commission. By s36(4), the Commission was obliged to examine the draft amendments and, if they were suitable for exhibition, certify them accordingly and direct that they be publicly exhibited. In determining whether the draft amendments were suitable for exhibition, the Commission was required to have particular regard to the objective to encourage public involvement in resource management and planning as set out in Sch1, Pt1, item 1(c), (s36(5B)).

3 When a draft amendment of a planning scheme is placed on public exhibition by a planning authority (in this case the Hobart City Council) in accordance with s38, representations in relation to that draft amendment may be submitted to the authority by any person (s39(1)). Following the expiration of a period of time, the planning authority must forward to the Commission a report comprising a copy of each representation received by the authority in relation to the draft amendment, a statement of its opinion as to the merit of each representation and its recommendations in relation to the draft amendment as the authority considers necessary (s39(2)). As soon as practicable after receipt by it of a report under s39(2), the Commission must consider the draft amendment and the representations, statements and recommendations contained in the report (s40(1)). For the purpose of its consideration, the Commission must hold a hearing in relation to each representation contained in the report (s40(2)). Such a hearing is not required if the Commission is satisfied that all the representations are in support of the draft amendment or if persons who made representations do not wish to attend a hearing (s40(2A)). The Commission may consolidate any of the representations and hold a hearing in relation to the consolidated representations (s40(3)). Once the Commission has held all hearings and has completed its consideration under s40, it may require the planning authority to modify or alter the draft amendment or it may reject the draft amendment (s41). Alternatively, if the Commission is satisfied that the draft amendment is in order, it must give its approval to it (s42(1)) and the draft amendment subsequently comes into operation on a date specified by the Commission (s42(3)).

4 The Commission may delegate any of its functions or powers other than the power of delegation (Resource Planning and Development Commission Act 1997_,_ s8(1)). I understand it to be conceded that the Commission delegated its relevant functions and powers to the respondents, Geoffrey Davis and John Vandenberg. I will however refer to them as the Commission.

5 In this case, the draft amendments, submitted by the Hobart City Council, were publicly exhibited and representations in relation to them were submitted to the Council by a number of persons, including nearby residents. Subsequently the Council submitted its report to the Commission pursuant to s39(2). In that report, the Council inter alia supported the proposed amendments to the Scheme to provide for the hospital to be developed in accordance with a new master plan, insofar as the amendments related to alterations on the existing hospital block, but supported the representations of adjacent residents regarding the proposed rezoning of four properties on the western side of Raluana Lane and therefore did not support the rezoning of those four properties from a residential zone into the Special Use Zone 7, nor their inclusion within The Calvary Hospital Precinct - No 46. For the purposes of its consideration of the draft amendments and the representations, statements and recommendations contained in the report, the Commission proceeded to hold the hearing required by s40(2).

6 I understand that the prosecutors are nearby residents and that they all made representations under the Land Use Planning and Approvals Act 1993, s39(1). On about 18 August 1998, the Commission gave them written notice that a hearing would be conducted on 17 September 1998 (it was subsequently altered to 30 September 1998), to consider the representations to the draft amendments. They, or a representative, were invited to attend. The notice informed them where they could inspect the report of the Hobart City Council which had assessed the merits of the representations. The notice also stated:

"To assist with proceedings, the Commission would appreciate receipt of either your written evidence (matters of fact) or submission (legal or policy matters) one week prior to the hearing. Any member of the public can view the papers received at the Commission's office."

7 On 8 September 1998 the solicitor for the prosecutors wrote to the Commission asking inter alia for advice about how the Commission intended to conduct the hearing. He said he understood that in a recent matter the Commission would not permit parties, or their representatives, to cross-examine witnesses and that the Commission had said that it would only permit questions to be directed to the chair who, in his or her discretion, would then decide whether or not to ask those questions of the witness. He advised that if the Commission intended to proceed in that way at the hearing into the representations in this case, he would apply for an adjournment so that he could make an application to this Court. He expressed his view that the obligation of the Commission to observe the rules of natural justice (Resource Planning and Development Commission Act 1997, s10(1)(b)(v)) necessarily meant that the Commission must afford parties a reasonable opportunity to cross-examine any witness who gives evidence at a hearing. In a letter dated 14 September 1998, the Commission's executive officer replied that the Commission had determined that it would not ordinarily allow the cross-examination of witnesses and that legal advice provided to the Commission did not support the view that the requirement to observe the rules of natural justice necessarily meant that the Commission was obliged to allow the cross-examination of witnesses. The executive officer stated that the Commission accepted that procedural fairness may make cross-examination of witnesses necessary in certain limited circumstances, but not as a general rule. The prosecutors' solicitor was advised that before it would allow cross-examination in a particular case, the Commission would require persuasion that procedural fairness could not be sufficiently accorded by any other means.

8 It was the evidence of the prosecutors' solicitor that under cover of a letter dated 24 September 1998 he supplied the Commission, the Hobart City Council and the solicitor for Calvary Hospital with copies of the proofs of evidence the prosecutors intended to use. As I understand the evidence, they were proofs of evidence of one of the prosecutors, Mr Frank Davies, and of a Mr Alex Brownlie. By e-mail on 27 September 1998 the prosecutors' solicitor received from the Hobart City Council a proof of evidence of a consultant to the Council, Mr Michael Shield, who was the only witness the Council intended to call. Calvary Hospital prepared proofs of evidence of seven people. Copies of them were not supplied to the Commission until 28 September 1998, only two days before the hearing, and were not received by the prosecutors' solicitor until approximately 9am on 29 September 1998, the day before the hearing. However, on or about 4 September, the solicitor had received copies of reports of three of those witnesses, two of which were identical with their subsequent proofs of evidence. One of those reports, of Mr McNeill, had been substantially reworked and had very much increased in bulk when it was later transformed into Mr McNeill's proof of evidence. When the hearing commenced before the Commission on 30 September 1998, it became apparent that the proofs of evidence of witnesses Calvary Hospital intended to call had not been provided at all to three persons who had made representations and who were not represented by the prosecutors' solicitor.

9 At the hearing before the Commission on 30 September 1998, Mr Michael Shield announced that he was representing the Hobart City Council as its advocate and that only his evidence would be put forward on behalf of the Council. Counsel for Calvary Hospital announced the names of the seven witnesses who would be called by the hospital, five of whom were expert witnesses. Counsel for the prosecutors announced that he would call evidence from Mr Davies and Mr Brownlie. Counsel for a Mr Overton announced that he would not be calling evidence. Mr Brian Sampson announced that he was representing the New Town Progress Association but would not be calling expert witnesses. He is one of the prosecutors and, as such, was represented before the Commission by their counsel. Counsel for two other persons who made representations and who lived near the hospital, B H and E Burkett, announced that she would be making representations on their behalf but would not be calling evidence.

10 The chairperson said that the Council should present its case first, followed by Calvary Hospital and the expert witnesses and then the various representors.

11 The issue of cross-examination was then addressed. Counsel for the prosecutors submitted to the chairperson that it was a necessity in conducting a fair hearing that the Commission permit cross-examination of all the witnesses and particularly of expert witnesses. He said that his clients did not have a noise expert and there were a number of questions he wished to ask a Mr Terts (a consulting engineer to be called by Calvary Hospital whose proof of evidence dealt with the question of noise from the proposed car park and its control). He added that "frankly our case can only be presented with justice and fairness if you permit cross-examination". Counsel for the hospital submitted that it was a matter for the Commission's discretion and required a decision whether a fair hearing could be had without cross-examination. The chairperson then said that he would only allow questions of any witness to be directed through the chair, adding that he was "prepared to allow reasonably rigorous questions of experts". Counsel for the prosecutors accepted that the question fell within the discretion of the Commission and that legal authority revealed that in some circumstances cross-examination was appropriate and in other circumstances it was not. In this case, he submitted to the Commission, there was an obligation to observe the rules of natural justice. He said that the hearing was partly inquisitorial and partly adversarial, and he referred to the interests of the nearby residents which would be directly affected by the draft amendments. He said that "it would be grossly unfair, I submit, for example to permit Mr Terts to give evidence and not permit me to have free rein in cross-examining here", adding "I mean this is not a simple case - we just have to look at the bulk" (of evidence which it was intended to be called).

12 Counsel for the hospital drew the Commission's attention to Judicial Review of Administrative Action by Mark Aronson and Bruce Dyer (1996) at 566, where the authors stated that cross-examination is by no means an essential element of an oral hearing and that there are several good reasons why it may be inappropriate and refused, even where the procedures are otherwise adversarial. It increases the length, formality and cost of proceedings and may accentuate conflict. Another reason given by the authors was that if there are many parties involved, it may make the proceedings quite unmanageable. If the matter was not expressly addressed in the statute applying to the proceedings, then the authors said it is within the discretion of the tribunal. Counsel for the prosecutors responded by saying he did not dispute that the Commission had a discretion, the exercise of which depended upon the particular facts and circumstances of each case. He was supported in his submission with regard to cross-examination by counsel for B H and E Burkett. She submitted that the interests of such persons and their rights should be the primary consideration and that those rights could only be protected if those persons had the opportunity to cross-examine concerning the matters upon which the Commission would make its determination.

13 The Commission then adjourned the hearing to a date to be set, acceding to a request to do so by counsel for the prosecutors, so that they could apply to this Court for prohibition.

14 Mr Michael Casey, the executive officer of the Commission, explained in an affidavit read into evidence before me about what the allowing of "questions through the Chair" involves. He said that it requires a party or legal representative, desiring to ask a question of a witness, to inform the chairperson of the question sought to be asked and the chairperson will then ask the question of the witness. In some circumstances the chairperson might decline to ask it. "Generally speaking, the questions which the Chair will allow to be asked are questions which seek to clarify matters of fact or opinion that the witness has expressed in evidence." He explained that after each witness has given evidence, each party present or his legal representative is given the opportunity to address questions to the witness through the chair. Mr Casey explained that it was the practice of the Commission, before hearings, to request parties wishing to give evidence or make submissions, to provide the evidence or submissions in writing one week before the hearing date so that the evidence and submissions can be viewed at the Commission's office. In this way, each party who wishes to attend at the hearing is given the opportunity to be aware of the evidence and submissions that any other party intends to present at the hearing. Mr Casey said that in this case the evidence proposed to be called by Calvary Hospital was not received by the Commission until two days before the date set for the hearing and from his knowledge of the practice and procedures of the Commission with respect to its conduct of hearings, and given the bulk of the evidentiary material that the hospital intended to present and the lack of opportunity given to other parties to consider it, the Commission would have favourably viewed any request by another party for an adjournment.

15 The grounds upon which the order nisi was made and on which the prosecutors rely may be summarised as falling into two categories. Firstly, the prosecutors submit that the refusal to permit them to cross-examine witnesses deprived them of procedural fairness and secondly, they submit that the decision to refuse them permission to cross-examine was pre-determined, part of an inflexible policy, and made without regard to the particular circumstances of the case which was before the Commission.

16 Counsel for the prosecutors acknowledged that there is a body of judicial authority that a tribunal has a discretion whether to allow cross-examination, the exercise of which depends on the particular circumstances of the case. However, he submitted that in every case in which it was held that compliance with the rules of natural justice did not require cross-examination of witnesses to be permitted, the proceedings were not adversarial in nature. He described as his fundamental submission that if an inquiry is essentially adversarial in nature, then cross-examination should be permitted so as to afford procedural fairness. Counsel's references to cross-examination were to direct questioning by a party or a party's representative of a witness called by another party. Counsel for the prosecutors also referred to the evidence of Mr Casey that, generally speaking, the questions which the chair will allow are questions which seek to clarify matters of fact or opinion that the witness has expressed in evidence. Counsel for the prosecutors said that it may well be that he does not want to clarify matters of fact or opinion, but to undermine or discredit assertions by a witness, or he might want to leave a witness' evidence in a state of unclearness, incapable of being relied upon because it has not been shown to have a proper basis.

17 The requirement in the Resource Planning and Development Commission Act 1997, s10(1)(b)(v), that the Commission must observe the rules of natural justice in turn requires procedural fairness. What that requirement is in a particular case will depend on its own circumstances. The procedural consequences will not be the same for all courts and tribunals. Salemi v MacKellar [1977] HCA 26; (1977) 137 CLR 396 at 444; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1962 - [1963] HCA 41; 1963) 113 CLR 475 at 503. "What that procedure is to be in detail must depend on the nature of the tribunal" (Local Government Board v Arlidge [1915] AC 120 at 132) and the statutory framework within which the hearing takes place (Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (supra) at 504). The effect and application of the rules of natural justice will vary depending upon the character and function of the particular statutory tribunal or person in relation to whose deliberations they are invoked (Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 at 72). They may also vary from case to case, although each be conducted before the same tribunal or person. Salemi (supra) at 444. As was said by Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (supra) at 504:

"By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf Ridge v Baldwin [1963] UKHL 2; [1963] 2 WLR 935 at 947. As Tucker LJ said in Russell v Duke of Norfolk [1949] 1 All ER at 109, in a passage approved by the Privy Council in University of Ceylon v Fernando [1960] 1 All ER 631 at 637, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: 'the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth' [1949] 1 All ER 109 at 118. What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances."

18 It was observed by Vincent J in City of Brighton v Selpam Pty Ltd [1987] VicRp 5; [1987] VR 54 at 59 that although the task of determining whether, in any individual case, there has been adequate compliance with the rules of natural justice may often present substantial difficulty, it is clear that the minimum requirements enumerated by Lord Loreburn LC in Board of Education v Rice [1911] AC 179 at 182 must be satisfied. They include the provision of an adequate opportunity to parties in dispute to challenge or contradict material advanced against them, "a fair opportunity to any party interested to meet that information". R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 per Starke J at 250. Vincent J continued:

"However, as his Honour pointed out it does not follow automatically from this proposition that it is necessary for a body in the position of the Board to adopt procedures similar to those employed in the courts, and in any event it is clear from the legislation that it is not required to do so. Nor does it follow of necessity that the only method of challenge or contradiction which would be regarded as acceptable is that established by a capacity to cross-examine the author of any such material: see T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992, at p 995; [1968] 2 All ER 633, at p 634. But where a capacity to answer material effectively is unduly limited by an inability to cross-examine then the refusal to permit such a technique to be adopted may well constitute a failure to comply with the rules of natural justice. Whether such an opportunity should be provided must depend upon a careful analysis of the total circumstances in which the question arises for consideration."

19 The Resource Planning and Development Commission Act 1997, s4(2) provides that the Commission is part of Tasmania's resource management and planning system, the objectives of which are specified in Sch1, cl 1, as follows:

"(a) to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and

(b) to provide for the fair, orderly and sustainable use and development of air, land and water; and

(d) to facilitate economic development in accordance with the objectives set out in paragraphs (a), (b) and (c); and

(e) to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State."

20 By s5, the Commission consists of six persons who include a person who possesses planning experience, a person who possesses experience in public administration relating to project implementation, a person who possesses expertise and management experience in resource conservation, a person who, in the opinion of the Minister, possesses planning experience and appropriate experience in industry and commerce, a person who possesses resource conservation or planning experience nominated by the Minister to represent community interests and a person nominated by the Minister who is to be the chairperson of the Commission and Executive Commissioner.

21 It is to be observed, therefore, that the Commission is constituted largely by persons with particular experience and expertise in fields relevant to resource management and planning. By s8(1) it may delegate any of its functions or powers. In this case, the Commission delegated its functions and powers with respect to the holding of the hearing to two persons. It was an agreed fact before me that one of the two delegates was a member of the Commission, but I was told nothing about the experience and expertise of the delegates.

22 The statutory provisions relating to a hearing by the Commission are to be found in the Resource Planning and Development Commission Act 1997, Pt3. The procedure at the hearing is, subject to s11 of that Act, to be determined by the Commission (s10(1)(a) of that Act). By virtue of s10(1)(b), the Commission:

"(i) may inform itself about any matter in any way it thinks fit; and

(iii) may consult with such persons as it thinks fit; and

23 By virtue of s10(2), the Commission, before it begins a hearing, must publicly advertise the subject of the hearing and the time and place at which the hearing is to be held. Subject to special cases provided for, s11 requires a hearing to be held in public. By s11(4), the Commission may, if it thinks fit, permit or require a person who is to give evidence to the Commission to do so in writing. By subs(5), the Commission may, at a hearing, take evidence on oath or affirmation.

24 By s13, members and delegates of the Commission have, in the performance of their duties, the same protection and immunity as a judge of this Court and a person summoned to attend or appearing before the Commission as a witness has the same protection as a witness in a proceeding in this Court. By s14, the Commission has power to require persons to produce documents and to appear at a hearing to give evidence or to produce documents. By s15, a person who appears at a hearing to give evidence or produce documents may be entitled to be paid allowances for travelling and other expenses. It is an offence for a person who, without reasonable excuse, refuses or fails to comply with a notice from the Commission requiring that person to produce documents or to appear at a hearing to give evidence or produce documents at the hearing, or who refuses or fails to take an oath or make an affirmation when appearing at a hearing pursuant to the notice, or who refuses or fails to answer a question that is required by the person presiding at the hearing to be answered (s16(1)). The giving of false or misleading evidence or information to the Commission is made an offence by s17.

25 By the Land Use Planning and Approvals Act 1993, s8, the Commission has, as one of its functions, the certification and approval of planning schemes and amendments to planning schemes. By ss29(1)(a) and 32(1)(a), planning schemes and amendments to planning schemes must seek to further the objectives set out in Sch1 which include the objectives of the State's resource management and planning system contained in the Resource Planning and Development Commission Act 1997, Sch1, cl 1 (see above). They also include the following objectives of the planning process established by the Land Use Planning and Approvals Act 1993, s5, Sch1, Pt2:

"(a) to require sound strategic planning and co-ordinated action by State and local government; and

(b) to establish a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of land; and

(c) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land; and

(d) to require land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels; and

(e) to provide for the consolidation of approvals for land use or development and related matters, and to co-ordinate planning approvals with related approvals; and

(f) to secure a pleasant, efficient and safe working, living and recreational environment for all Tasmanians and visitors to Tasmania; and

(g) to conserve those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value; and

(h) to protect public infrastructure and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community; and

(i) to provide a planning framework which fully considers land capability."

26 The submission of counsel for the prosecutors that if an inquiry is essentially adversarial in nature, then cross-examination should be permitted so as to afford procedural fairness, is not supported by the cases as a proposition of law. However, a perusal of the cases does reveal that cross-examination is more likely to be required, so as to afford procedural fairness, in a hearing which is adversarial than in a hearing which is not adversarial but merely inquisitorial. The nature of the process is clearly a material consideration. In this case the nature of the hearing being conducted by the Commission was largely adversarial. The adversarial nature of the process arose because what was being conducted was a hearing into the representations of the prosecutors and other persons who were opposed to the proposed amendments to the relevant planning scheme. The hospital and the prosecutors were in direct conflict with one another, the hospital wishing to expand its operations in the promotion of its own interests and the prosecutors seeking to prevent or restrict that expansion in defence of their own interests.

27 However, the function of the Commission was partly inquisitorial. It had to approve or reject the proposed amendments, or to approve them in a modified or altered form, following the holding of the hearing. In the performance of that function, the Commission's duty was not merely to resolve the conflict between the interests of the hospital and the interests of the prosecutors and other representors. For example, it had a duty to consider the public interest in allowing the hospital to expand its operations on the land in question. In determining and resolving the overall public interest in a particular case, it could be expected that the Commission might need to look outside the evidence put before it by the persons attending the hearing. That it will do so is expected and authorised by the Resource Planning and Development Commission Act 1997, s10(1)(b), which gives the Commission authority to inform itself about any matter in any way it thinks fit, to receive oral or written evidence and to consult with such persons as it thinks fit and which provides that the Commission is not bound to act in a formal manner or to comply with the rules of evidence.

28 It should not be overlooked that the Commission was conducting a hearing into the representations (Land Use Planning and Approvals Act 1993, s40(2)) and importantly it was obliged, when doing so, to observe the rules of natural justice (Resource Planning and Development Commission Act 1997, s10(1)(b)(v)). The statutory requirement that the rules of natural justice be observed did not apply generally to the Commission's consideration of the proposed amendments to the planning scheme. It applied to the hearing the Commission was conducting into the representations which had been made by the prosecutors and others.

29 Observation of the rules of natural justice at a hearing generally requires procedural fairness. In this case it is not disputed that the prosecutors had the right to submit evidence in support of their representations and the right to dispute or contradict evidence forming the basis of views or arguments contrary to their own. With those rights in mind, the Commission requested those who were intending to take part at the hearing to put their evidence and submissions in writing and to provide the material to the Commission a week prior to the hearing. In that way all of the material could be viewed by all interested persons before the hearing. The Commission sought to afford the prosecutors, the hospital and all other interested persons the opportunity of ascertaining before the hearing the nature of the evidence, including expert evidence, with which they would have to deal. The Commission, for the purpose of affording procedural fairness, thereby required full disclosure of each person's case to all interested persons.

30 As I have pointed out more than once, the legislation did not provide that there be a hearing into whether the proposed amendments to the planning scheme should be approved. It required that there be a hearing into the representations by the prosecutors and other representors. Essentially it was to be a hearing into the matters raised by the persons in their representations. Procedural fairness required that the hospital should have a fair opportunity to meet those representations and the evidence the representors would seek to rely on at the hearing, just as much as the representors should have a similar opportunity to meet the hospital's case and evidence in opposition to their representations. I note that in a particular case representors might only make representations raising a small number of discrete issues and it might not be necessary for the Commission to inquire at the hearing into a number of other issues relevant to the question whether a proposed planning scheme, or amendments to a planning scheme, should be approved with or without modification or amendment, or rejected. In a sense, therefore, it is the representors who set the agenda for a hearing by the nature of what is contained in their representations which give rise to the holding of the hearing. In this case the representations have not been put before me.

31 As is stated in Judicial Review of Administrative Action (supra) at 566 - 567, cross-examination may be inappropriate for a number of reasons: it tends to increase the length, formality and cost of proceedings; it may accentuate conflict; and, if there are many parties involved, it may make the proceedings quite unmanageable. In this case, a total of twenty-seven representations were received. At the hearing before the Commission, six advocates announced that they were respectively appearing for the Hobart City Council, Calvary Hospital, thirteen representors, one representor, New Town Progress Association and two representors. I understand that four of the advocates were legal practitioners. Between them, all ten persons were intended to be called as witnesses, over half of them expert witnesses. It is not difficult to understand that in such a case the Commission would seek ways to limit the length and complexity of the hearing and to that end contemplate restricting cross-examination, at the same time requiring those involved to disclose their evidence and submissions to all interested persons prior to the hearing. However, to make it a general rule that cross-examination will only be allowed "through the chair" plainly creates other problems. It is potentially a cumbersome and very slow way of questioning witnesses, with a tendency to wear the patience of everyone, including the members of the Commission. A far more efficient method would be to allow direct cross-examination of witnesses, with the Commission intervening when necessary to disallow questions determined to be improper and inappropriate. I accept it is conceivable that a satisfactory and efficient hearing might be held in some cases with only cross-examination "through the chair", but I would expect it to be rare.

32 There were essentially two sides appearing at the hearing, one in support of the amendments and one against. The evidence it was proposed to call largely supported one side or the other and most of it came from experts. Although in an ideal world expert witnesses would express only their honest opinions, in the real world experience shows that not to be entirely the case. Certainly it is my experience that experts often support the case of the person who employs them to give evidence. They not infrequently take sides and unrestricted cross-examination of them is often the only effective way of testing their evidence or discrediting their opinions.

33 If the Commission wished, in the interests of economy of cost and time, to limit the cross-examination of witnesses, it was entitled to seek to do so, provided that when limiting cross-examination it did not unreasonably interfere with the right which those attending the hearing had to challenge the evidence and submissions of other persons. However, I regard it as inappropriate for the Commission to determine that as a general rule direct cross-examination would not be allowed. So as to ensure that natural justice is afforded, the issue of cross-examination should not have been predetermined in the way it was.

34 The system adopted by the Commission whereby persons who would be attending the hearing were required to lodge with the Commission, seven days before the hearing, the statements of evidence of witnesses who would give evidence, and the written submissions, was an effective way of giving to all concerned, notice of the cases which they might have to meet at the hearing. However, the notice given was short, providing for no more than seven days, and it did not give to interested persons an adequate opportunity to arrange for evidence in response, particularly expert evidence. Essentially, what the system required was that everyone prepare his or her case, including the evidence intended to be called, by no later than seven days before the hearing and then disclose it to all interested persons. Substantially, the only effective way in which those persons could challenge some of the matters of fact and opinion raised in the evidence to be called by others but not directly met, in whole or in part, by the evidence they intended to call themselves, was by direct challenge of the witnesses in the form of cross-examination. In this case, the capacity of the prosecutors to effectively deal with material which the Hobart City Council, and particularly Calvary Hospital, intended to put before the Commission, was unduly limited by the denial to them of the opportunity to cross-examine any witness, except by the cumbersome process of posing questions for the consideration of the chair, with every likelihood that only those questions which sought to clarify matters of fact and opinion that had been expressed by the witnesses in evidence would in fact be asked.

35 Accepting, as I do, the evidence of Mr Casey that questions asked through the chair are generally allowed if they seek to clarify matters of fact or opinion that a witness has expressed, I am strengthened in my conclusion that there would be a denial of procedural fairness to the persons taking part at the hearing. There has been revealed a misunderstanding on the part of the Commission of the nature and purpose of cross-examination. Although a cross-examiner may desire to clarify some expressions of fact and opinion, usually the most important objects of cross-examination are twofold: to elicit information about facts in issue or relevant to the issue which are favourable to the cross-examining party, and to cast doubt upon the accuracy of the examination-in-chief which has been given by the witness. Cross-examination can also be divided into two kinds: cross-examination to the issues and cross-examination directed to the credit of the witness.

36 I contemplated reaching a conclusion that the application to this Court was made at too early a stage. It would have been of great assistance to me if I could have observed how the system of cross-examination through the chair worked after the event, rather than being forced into the position of forecasting its outcome if the hearing had proceeded. I was tempted to refuse to rule on whether there was a denial of nature justice until after the hearing had been conducted by the Commission. However, it was the wish of the parties that I determine the issue of cross-examination for the guidance of the Commission at the hearing and, accordingly, I have done so.

37 I do not hold that effectively unrestrained cross-examination of all witnesses must be allowed by the Commission. Counsel did not seek to analyse in detail the prospective evidence of the intended witnesses. There may well be good reason for limiting the extent of cross-examination of particular witnesses and about particular matters. What I do hold is that, in the circumstances of this case, the Commission, by maintaining a refusal to allow direct cross-examination of any witnesses and, by way of general practice, allowing questions through the chair which seek to clarify matters of fact and opinion that a witness has expressed, thereby determined to deny procedural fairness to the prosecutors and to not observe the rules of natural justice.

38 I will hear counsel as to the orders it is appropriate to make in light of these reasons.

Resource Planning and Development Commission Act 1997(Tas)

Use Planning and Approvals Act 1993

R v Davis, Geoffrey & Vandenberg, John & Curtis, M & Crowther, N & Davies, F & S & Irwin, D & G & Evans, P & B & Myhill, P & Sampson B & S & Tierney, P & M; ex parte [1999] TASSC 22

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (67 paragraphs)

R v Davis, Geoffrey & Vandenberg, John & Curtis, M & Crowther, N & Davies, F & S & Irwin, D & G & Evans, P & B & Myhill, P & Sampson B & S & Tierney, P & M; ex parte [1999] TASSC 22 (8 March 1999)

Parties

Legislation Cited (2)

Cases Cited (2)