Administrative Appeals - Proceedings before the Administrative Appeals Tribunal - Procedural fairness - Claim for Commonwealth Employees' compensation - Film held by employer allegedly depicting activities of employee - Direction that film be shown to employee at commencement of her evidence in chief - Whether such direction impedes exercise of employer's right to present its case.

Administrative Appeals Tribunal Act 1975, ss.33, 37, 39.

Compensation (Commonwealth Government Employees) Act 1971, Part V.

Commonwealth Employees' Rehabilitation and Compensation Act 1988, ss.59, 129.

Mr G J Johnson

Solicitors for the Applicant: Australian Government

Solicitor

Counsel for the Second

The decision of the first respondent, made on 28 February 1989, that the applicant produce and show to the second respondent at the commencement of her evidence in chief the film held by the applicant which is said to depict certain activities of the second respondent be set aside.

The matter be remitted to the first respondent to be heard and determined according to law.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an application, made under the Administrative Decisions (Judicial Review) Act 1977, whereby the applicant, the Australian Postal Commission, challenges certain conduct of the first respondent, Dr Robert A Hayes, a Senior Member of the Administrative Appeals Tribunal, in connection with an appeal brought to that Tribunal by Ursula Barnbrooke, the second respondent.

2. The facts are within a short compass. Ms Barnbrooke is employed by the Commission as a mail officer. On 24 March 1986 she claimed compensation, pursuant to the Compensation (Commonwealth Government Employees) Act 1971, in respect of "pain in the right hand" which she attributed to sorting mail bags. Liability was accepted and compensation was paid for the period extending to 8 March 1988, upon which date a decision was made by a delegate of the Commissioner for Employees' Compensation to terminate the payment of compensation.

3. On 2 May 1988 Ms Barnbrooke made an application pursuant to s.63 of the Compensation (Commonwealth Government Employees) Act for the review of that decision by the Administrative Appeals Tribunal. In accordance with the usual procedures adopted by the Tribunal, medical reports were exchanged by the parties. These reports revealed that there was an issue between the parties as to whether Ms Barnbrooke suffered any continuing disability in her hand.

4. The matter was set down for hearing before Dr Hayes on 28 February 1989. As a result of a letter which had been sent to the District Registrar of the Tribunal by the solicitor for the Commission requesting the provision at the hearing of video recording facilities, the solicitors for Ms Barnbrooke became aware that, at the hearing, the Commission proposed to use a video film allegedly portraying their client's activities. At the commencement of the hearing counsel for Ms Barnbrooke raised this matter, requesting access to the film prior to the completion of her client's evidence in chief. Argument ensued, during the course of which counsel for the Commission pressed the view that much might depend upon Ms Barnbrooke's credit and that this could best be tested if the film was first shown to her during the course of cross-examination. Dr Hayes made reference to the desirability of an "open disclosure in advance of all material and that we should not be operating on the basis that a person is set up to be taken by surprise by surveillance film".

5. After further discussion and a short adjournment Dr Hayes ruled that the appropriate course would be for Ms Barnbrooke to be shown the film at the commencement of her evidence in chief, at which time the film should be tendered in evidence. Dr Hayes gave reasons for that ruling, as follows:

"Well the reasons are that I do not see any

disadvantage to the respondent in the

applicant not being taken by surprise; that

is not outweighed by the prejudice to an

applicant being taken by surprise. So it is a

matter of the equitable balance, if you like

disadvantage, to a respondent as against

disadvantage to the applicant; and I think,

balancing them out, the balance swings in

favour of letting the applicant see the film

because the film is part of what will be in a

sense alleged against her and in fairness,

where something is alleged against a person

before the Tribunal, then the applicant should

not be taken by surprise, but should have the

opportunity of seeing that and giving her

explanation for what is said.

Furthermore, there is the advantage of letting

doctors see the film and commenting on the

film and giving explanations, for example,

particularly from an applicant's point of

view, as to why an applicant with a disability

as claimed might nevertheless still be able to

perform certain physical movements that that

person has been revealed in the film as being

able to perform. Because a lay person such as

myself can often be prejudiced against an

applicant through not having a proper

explanation from the medical experts as to why

certain movements are possible and still

consistent with some sort of level of

disability. And as doctors can be

superimposed just out of sheer practical

necessity as and when they arrive, I think

there are just practical advantages in being

open about the film, letting an applicant see

it, letting her doctors see it and comment

upon it so that the Tribunal can form a proper

scientific view as to the extent of the

applicant's disability.

Those are the advantages. The disadvantage to

the respondent is that it loses its

opportunity, in a sense, to show an applicant

as being a person who cannot be believed or

who lacks credit in some way or is prone to

exaggerate or whatever. But, while in a sense

the element of surprise is a good weapon in

trying to cast doubt on an applicant's credit,

there are still many other opportunities to

reflect upon credit and I believe that, in the

course of a long hearing where an applicant is

seeing many doctors, if there are going to be

inconsistencies which reflect on the

applicant's credit, then the respondent will

have the opportunity to explore those and

really, taking away the surprise element of

the film is just removing one of the many

possibilities of exposing a person who is

pursuing an exaggerated or contrived claim in

some way.

Finally, my reasons drive from a view of this

Tribunal as not being like a court, but as

providing for a forum for review of

administrative decision-making in the context

of a body of Commonwealth administrative law,

which includes a concept of freedom of

information, openness in government

decision-making and, in those circumstances,

even though it is a compensation claim and a

greal deal of money can often hang in the

balance, nevertheless the principle still

applies that the person whose decisions are

being reviewed is a Commonwealth agency and

the person who is affected by that decision is

a Commonwealth employee and this Act, the

Freedom of Information Act and other

legislation will interact to require that

everything be as open as possible and as fair

as possible and, if there is to be a

disadvantage to someone from that oppenness,

then it is fairer that the Commonwealth and

its agencies carry the burden of the

disadvantage, they being so much more powerful

than the person who is attempting to have

their decision-making reviewed."

During the course of some subsequent discussion, Dr Hayes indicated that the ruling which he had made was one of general application. He said that, the proper procedure in connection with a surveillance film having been raised by the case, "I have now had the opportunity to think about it and I think in future matters, certainly before me, that this is the way it ought to be done".

6. At the request of the counsel for the Commission, Dr Hayes adjourned the further hearing of the matter until a date to be fixed. On 14 March 1989 the present Application was filed whereby the applicant sought an order that the direction made by Dr Hayes be set aside and the matter be remitted to him to be determined according to law.

7. Before dealing with the arguments of counsel in connection with the substantial point in the case, the reviewability of Dr Hayes' ruling, I should refer to a submission made on behalf of Ms Barnbrooke that the Court ought to decline relief on discretionary grounds. Counsel refers to Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533 wherein a Full Court declined, in the exercise of its discretion, to intervene in committal proceedings then being conducted before a magistrate. At p 564 the Court stated that the power to make an order of review under the Administrative Decisions (Judicial Review) Act in respect of committal proceedings "should be exercised only in most exceptional cases, especially in respect of a decision in the course of proceedings". The approach taken in Lamb v Moss has been followed in subsequent cases. I referred to some of these cases in Forsyth v Rodda (2 December 1988, not reported) and I need not repeat those references. It is sufficient to say that, notwithstanding the general principle enunciated in Lamb v Moss, upon a number of occasions the Court has considered upon their merits decisions made by magistrates during the course of committal proceedings. This course has been considered appropriate in cases where disposal of the point without delay would be likely to settle some question of principle, leading to an earlier resolution of the principal proceeding.

8. I think that a similar approach should be taken to applications to review decisions arising out of other types of proceedings. On the one hand the Court should be astute to protect parties from the expense and delay of unnecessary applications: see the comments of Deane J in Director-General of Social Services v Chaney [1980] FCA 87; (1980) 31 ALR 571 at p 593. But, on the other hand, the Court ought not to deny relief upon the merits in a case where a question of substance arises, which may be important in the disposal of the principal proceedings, particularly where the effect of refusing relief will be irreversible. The present dispute involves a short question of principle which is not only important to the resolution of the principal litigation between these parties but, as Dr Hayes has indicated, will also have ramifications for other cases. Moreover, if the Court declines on discretionary grounds to interfere, the film will be shown to Ms Barnbrooke before she gives her evidence. At that point, the possibility of counsel for the Commission cross-examining Ms Barnbrooke without her being aware of the content of the film will disappear. No order of this Court, upon an appeal against any decision in favour of Ms Barnbrooke, could restore that possibility. It seems to me that the argument relating to discretion ought to be rejected, and that the Court ought to consider the dispute between the parties upon its merits.

9. As I have indicated, the decision terminating compensation payments was made under the Compensation (Commonwealth Government Employees) Act. That Act provided, by Part V, for the review of decisions of the Commissioner for Employees' Compensation by the Administrative Appeals Tribunal. Once Ms Barnbrooke exercised her right to apply for review, by filing her application on 2 May 1988, the provisions of the Administrative Appeals Tribunal Act 1975 came into play, governing the conduct of that review, subject only to such presently irrelevant modifications as were made to that Act by Part V of the Compensation (Commonwealth Government Employees) Act.

10. On 1 December 1988 the Commonwealth Employees' Rehabilitation and Compensation Act 1988 took effect. It repealed the Compensation (Commonwealth Government Employees) Act. But that repeal did not affect Ms Barnbrooke's then pending application for review. Section 129 of the Commonwealth Employees' Rehabilitation and Compensation Act provides:

"129. (1) Where a person was, immediately

before the commencing day, entitled to apply to the

Administrative Appeals Tribunal for review of a

determination under the 1971 Act but had not made

such an application before that day, Part VI of

this Act applies as if:

(a) the person were a claimant under this

Act; and

(b) the reference in subsection 63(3) to 30

days after the day on which the

determination first came to the notice of

the claimant were a reference to 30 days

after the commencing day.

(2) Where the Commonwealth is a party to any

proceedings relating to any matter arising under

the 1912 Act, the 1930 Act or the 1971 Act

(including proceedings under Part V of the 1971

Act), being proceedings instituted but not

completed before the commencing day, those

proceedings may be continued on and after that day

and, where the proceedings are so continued, the

relevant authority and the Commonwealth shall be

parties to those proceedings."

11. Sub-section (1) of s.129 does not apply to the present case; Ms Barnbrooke had made her application to the Tribunal before the commencing day. But s.129(2) does apply. By the combined effect of s.4 and s.5(7) of the Commonwealth Employees' Rehabilitation and Compensation Act the "Commonwealth" is defined to include, in relation to a person who is employed by a Commonwealth authority, that authority. The term includes the Commission.

12. Part IV of the Administrative Appeals Tribunal Act deals with reviews by the Tribunal. It includes three sections referred to in argument in this case. The first is s.33, relating to procedure. Relevantly, it provides:

"33. (1) In a proceeding before the Tribunal--

(a) the procedure of the Tribunal is, subject

to this Act and the regulations and to

any other enactment, within the

discretion of the Tribunal;

(b) the proceeding shall be conducted with as

little formality and technicality, and

with as much expedition, as the

requirements of this Act and of every

other relevant enactment and a proper

consideration of the matters before the

Tribunal permit; and

(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.

(2) For the purposes of sub-section (1),

directions as to the procedure to be followed at or

in connection with the hearing of a proceeding

before the Tribunal may be given--

(a) where the hearing of the proceeding has

not commenced--by the President or by a

member authorized by the President to

give directions for the purposes of this

paragraph; and

(b) where the hearing of the proceeding has

commenced--by the member presiding at the

hearing or by any other member authorized

by the member presiding to give such

directions.

(3) A direction as to the procedure to be

followed at or in connection with the hearing of a

proceeding before the Tribunal may be varied or

revoked at any time by any member empowered in

accordance with this section to give such a

direction in relation to the proceeding at that

time."

(4) ...

(5) ..."

13. The second section referred to by counsel is s.37 which deals with the production of documents. It is accepted on all sides that a film is a "document" within the meaning of this section. It is necessary only to set out portion of the section:

"37. (1) A person who has made a decision that

is the subject of an application for review by the

Tribunal shall, within 28 days after receiving

notice of the application, lodge with the Tribunal

such number of copies as is prescribed of--

(a) a statement setting out the findings on

material questions of fact, referring to

the evidence or other material on which

those findings were based and giving the

reasons for the decision; and

(b) every other document or part of a

document that is in his possession or

under his control and is considered by

him to be relevant to the review of the

decision by the Tribunal.

(1A) ...

(1B) ...

(1C) ...

(1D) ...

(2) Where the Tribunal is of the opinion that

particular other documents or that other documents

included in a particular class of documents may be

relevant to the review of the decision by the

Tribunal, the Tribunal may cause to be served on

the person a notice in writing stating that the

Tribunal is of that opinion and requiring the

person to lodge with the Tribunal, within a time

specified in the notice, the prescribed number of

copies of each of those other documents that is in

his possession or under his control, and a person

on whom such a notice is served shall comply with

the notice.

(3) This section has effect notwithstanding any

rule of law relating to privilege or the public

interest in relation to the production of

documents.

(4) ..."

"39. Subject to sections 35 and 36, the

Tribunal shall ensure that every party to a

proceeding before the Tribunal is given a

reasonable opportunity to present his case and, in

particular, to inspect any documents to which the

Tribunal proposes to have regard in reaching a

decision in the proceeding and to make submissions

in relation to those documents."

15. Section 35 deals with private hearings. Section 36 provides for the making by the Attorney-General of a certificate that disclosure of particular information would be contrary to the public interest on one or more of specified grounds. Thereupon a person required by, or under, the Act to disclose information, or to produce a document, to the Tribunal is not excused from the requirement but the Tribunal must take certain action to restrict publication of that information or document. The detail of s.36 does not matter for present purposes. Its relevance is that it shows that lodgment of a document with the Tribunal does not necessarily mean that it is to be produced to a party.

16. Although s.33 gives to the Tribunal a wide discretion as to the procedure to be adopted in reviewing a decision, it is clear that the Tribunal is bound to accord to the parties natural justice; or, as the concept is now more frequently called, procedural fairness. The principles enunciated by the High Court of Australia in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 apply: see particularly the exposition of Mason J at pp 582-584. An essential ingredient of procedural fairness is the opportunity of presenting one's case; see per Brennan J in Kioa at p 615. In Sullivan v Department of Transport (1978) 20 ALR 323 at p 342 Deane J expressed the view that s.39 of the Administrative Appeals Tribunal Act "constitutes statutory recognition of an obligation which the law would, in any event, imply. Where a tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe".

17. The question then, in the present case, is whether the direction given by Dr Hayes in relation to the film held by the Commission was a direction which denied to the Commission procedural fairness. If it was, the direction is reviewable by this Court, pursuant to s.5(1)(a) of the Administrative Decisions (Judicial Review) Act. If it was not, the Court may not intervene; its procedures being a matter for the Tribunal to determine, the Court has no warrant to impose its opinion as to the desirability of the course proposed to be adopted.

18. The case put by counsel for the Commission is that the effect of the direction given by Dr Hayes will be to impede the presentation by their client of its case. Counsel argue that the opportunity of presenting a case, in any inter partes litigation, involves not merely the opportunity of adducing one's own evidence but also the opportunity of testing the opponent's evidence. They refer to the words of Gibbs CJ in Kioa at p 569:

"If the rules of natural justice were

applicable, the appellants were entitled to a

fair opportunity to correct or contradict any

relevant material prejudicial to them."

19. Counsel argue that the testing of opposing relevant material by cross-examination is an essential feature of the opportunity to correct or contradict that material; it is not enough that the party against whom the evidence is led has the right to present evidence in reply. Moreover, although counsel accept that there exists some discretion to control cross-examination so as to ensure relevance and to guard against repetition and prolixity, it is said that the right to cross-examine means the right effectively to cross-examine. If directions given by a court or a tribunal have the effect of so fettering cross-examination that a witness' evidence cannot properly be tested, procedural fairness has been denied. Reference is made to The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at pp 33-34 by way of example.

20. In a case where there is a dispute as to the existence of a physical disability, being a disability whose existence or otherwise cannot be established by independent objective evidence and in relation to which the acceptance or rejection of the claimant's account of his or her symptoms is likely to be critical, counsel contend that the right to cross-examine effectively must include the right to test the credit of the claimant. One way of testing the credit of such a claimant, counsel say, is to ask questions which require the claimant to commit himself or herself in relation to the extent of the disability -- the actions which he or she can, and cannot, perform -- before confronting the claimant with a film depicting his or her actions. If it should happen, in such a case, that the film shows the claimant performing actions which have been said to be impossible, doubt may be cast upon the claimant's credit, causing the tribunal of fact to be cautious about relying on the claimant's evidence in relation to matters incapable of objective demonstration. If, in such a case, a claimant has seen the film before he or she has become committed to an account of the disabilities, the claimant may tailor his or her evidence so as to accommodate the film, leaving false evidence unexposed and uncontradicted.

21. I think that the above submission must be accepted. It is the everyday experience of those who attend courts that cross-examination is at its most effective when the evidence of a witness is able to be confronted by documents. But, as with any other cross-examination, it is normally necessary for the cross-examiner first to have the witness commit himself or herself to a precise version of relevant matters; the process which the late Mr J W Smyth QC called "closing the gates": see "Bar News", the journal of the New South Wales Bar Association, Autumn 1988 pp 12-13. It is important, in that process, that a mendacious witness not be aware of the material available to the cross-examiner to contradict the evidence under manufacture.

22. In writing the above, I make no assumption as to the veracity or otherwise of Ms Barnbrooke. That is a matter to be determined by the Tribunal, not by this Court. I simply observe that to deny the cross-examiner the opportunity of having Ms Barnbrooke commit herself to a version of relevant facts is to deny the right fully to test her evidence; and, therefore, to deny to the Commission a reasonable opportunity of presenting its case.

23. In his reasons for the ruling, quoted above, Dr Hayes spoke of a possible prejudice to Ms Barnbrooke in the course suggested by counsel for the Commission. With respect to Dr Hayes I am unable to see any relevant prejudice. Having regard to the nature of the issue it seems likely that much will depend upon the Tribunal's assessment of Ms Barnbrooke's credit. If, without the benefit of having first seen the film, she gives evidence which is consistent with the film, or if, after that evidence, counsel for the Commission chooses not to tender the film, Ms Barnbrooke's credit can only be enhanced. It seems to me that, if she gives accurate evidence, Ms Barnbrooke has nothing to fear from the film. If she were to be tempted to give false evidence, she may have something to fear; but a course which is likely to expose falsehood cannot properly be described as prejudicial.

24. The submissions of counsel for Ms Barnbrooke do not dispute what has been set out above. But counsel says that these observations are not relevant to proceedings before the Administrative Appeals Tribunal, which are inquisitorial rather than adversarial in character. Reference is made to the principle, which was discussed in McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at pp 356-357 and 368-369, that there is no legal onus of proof before the Tribunal. However, as was pointed out in East v Repatriation Commission [1987] FCA 242; (1987) 74 ALR 518 at p 535, even before the Tribunal it will often be in the interests of a party to adduce particular evidence because, in the absence of such evidence, the Tribunal will not be free to make the decision sought by that party. Equally, it will be in the interests of the opposing party to test, and hopefully to destroy, that evidence. In that sense, proceedings before the Tribunal are adversarial, the parties being in active dispute on an issue and being each concerned to have findings of fact conducive to their interests.

25. Reliance is placed by counsel for Ms Barnbrooke on s.37 of the Administrative Appeals Tribunal Act, the argument being that this section establishes a rule that all relevant material must be disclosed before the commencement of the hearing. But I do not think that it covers the present case. In the first place s.37 is addressed to the original decision-maker; in this case the Commissioner for Employees' Compensation. The section is not addressed to the party before the Tribunal, the Commission. The rationale of s.37, no doubt, is that, as the Tribunal is to stand in the shoes of the original decision-maker and to make the decision which is the correct or preferable one, on the material before it, in relation to the subject decision -- see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at p 589 -- it is necessary that it have all of the material which was before the original decision-maker. But that particular rationale does not extend to material which has since come into existence.

26. Secondly, as I noted briefly in referring to s.36, s.37 only imposes a requirement that documents be lodged with the Tribunal. It says nothing about the production of documents to the parties or their use in the hearing by the Tribunal. Section 36 imposes some restrictions on production and use, but only in relation to documents covered by a certificate from the Attorney-General. Section 39 requires that the parties be given the opportunity to inspect any documents to which the Tribunal proposes to have regard in reaching a decision, but it does not require that access be given at any particular point of time. Subject to ss.36 and 39, the production and use of documents lodged with the Tribunal under s.37 are matters for the Tribunal. Ordinarily, the documents will be made available, as of course, to the parties at or before the commencement of the hearing. They are generally numbered as "T documents" and treated as material before the Tribunal to be used by the parties at the hearing as they may see fit. But there is no statutory requirement that the Tribunal proceed in this way. If good cause can be shown for proceeding in a different manner, this course is open. If it appears that the production of a particular document at a particular stage to a particular person (even a party) will result in a denial of procedural fairness, the Tribunal may make a direction restricting access at that stage; even to a document which was considered by the original decision-maker. I agree that this would be an exceptional case. It is not easy to envisage circumstances under which it would be necessary. But, if it is open to the Tribunal to restrict access to a document which was before the original decision-maker, this position applies even more strongly to documents prepared for the purpose of the hearing before the Tribunal. The overriding obligation of the Tribunal is to mould its procedures to the demands of fairness.

27. The comment which I have just made is relevant to Dr Hayes' observations regarding the open conduct of proceedings before the Tribunal. Openness is a notable feature of the Tribunal's procedures. It is a feature which has contributed significantly to the Tribunal's efficiency and which has enhanced the status of its decisions. There is everything to be said, in the vast majority of cases, for insistence upon the full and early disclosure of all material documents. But, in an exceptional case in which a party can demonstrate that the temporary suppression of a document is necessary for the proper presentation of its case, the ideal of openness must give way to the Tribunal's statutory obligation to give to all parties a reasonable opportunity to present their cases.

28. A similar response may be made to Dr Hayes' observations about the advantage of medical witnesses having seen the film before giving their evidence. I do not doubt that it will often be an advantage for a non-medical tribunal to have the comments of medical witnesses on a film depicting a claimant's activities. But, ordinarily, a claimant is called first; so that the film would be in evidence before any medical witness gives evidence. It is true that, as a matter of convenience, medical witnesses are sometimes interposed before the claimant's evidence is complete, but this is done merely as a matter of convenience to those witnesses. In the rare case in which convenience conflicts with fairness, convenience must give way. Any counsel who wishes a witness to comment upon the film will need to hold back that witness until the film is in evidence.

29. Finally, reference is made by counsel for Ms Barnbrooke to s.59(1) of the Commonwealth Employees' Rehabilitation and Compensation Act. That sub-section provides:

"59.(1) A relevant authority shall:

(a) on request by a claimant--give to the

claimant any document held by the

authority that relates to the claimant's

claim; or

(b) on request by the Commonwealth--give to

the Commonwealth any document held by the

authority that relates to a claim under

this Act."

The Commission is a "relevant authority" for the purposes of this provision.

30. Submissions are put on behalf of the parties as to the extent of the obligation imposed by s.59(1)(a); counsel for the Commission contending that the documents there referred to are limited to those documents which relate directly to the claim, as distinct from documents relating to a defence to the claim. I need not express any view about that contention. It seems to me to be clear that s.59 has no application to the present case. The claim arose and was considered under the old Act, the Compensation (Commonwealth Government Employees) Act. The matter was taken to the Tribunal pursuant to Part V of that Act and it is now governed by the Administrative Appeals Tribunal Act. It is true that the proceedings before the Tribunal are preserved by s.129 of the new Act, the Commonwealth Employees' Rehabilitation and Compensation Act, and it is possible that others of the transitional provisions contained in Part X of the Act may turn out to be relevant. But otherwise the new Act has no relevance to this case.

31. I am of the opinion that the particular direction given by Dr Hayes in this case had the effect of infringing the right of the Commission to present its case. Accordingly, that direction ought to be set aside. I propose to so order and to order that the matter then be remitted to Dr Hayes to be determined according to law. The Commission makes no application for an order for costs.