Federal Court of Australia|1993-04-30|Before: Spender J

Re Noeleen Fairlie Dolan v the Australian and Overseas Telecommunications Corporations [1993] FCA 202; (1993) 114 ALR 231 (1993) 17 Aar 355 (1993) 42 FCR 206 (30 April 1993)

And: THE AUSTRALIAN AND OVERSEAS TELECOMMUNICATIONS CORPORATIONS

Workers' Compensation - Administrative Law Number of pages - 24

Workers' Compensation - commonwealth employee - appeal from a decision of the Administrative Appeals Tribunal deciding that the applicant did not suffer from any permanent impairment attributable to her employment.

Administrative Law - procedural fairness - rule in browne v dunn - whether it is 'rule of evidence' - whether natural justice required that evidence introduced to contradict that of the applicant should first be put to her so that she could explain the contradiction - whether sufficient notice of the contradiction had been given - whether any unfairness to the applicant resulted.

Administrative Law - procedural fairness - privilege against self-incrimination - whether adverse inferences can be drawn against a person by reason that the person has asserted a claim to privilege against self-incrimination.

Administrative Law - procedural fairness - duty to provide reasons for the decision - adequacy of reasons - standard to be expected of the Tribunal - whether the reasons satisfactorily explained the basis of the Tribunal's decision.

Adams v Lloyd (1858) 3 H and N 351; 157 ER 508

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1991) 170 CLR 321

Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132

Blackwood Hodge Pty Ltd v Collector of Customs [1980] FCA 96; (1980) 47 FLR 131

Bradley v O'Hare (1956) 156 NYS 2d 533

Bulstrode v Trimble [1970] VicRp 104; (1970) VR 840

Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399

Cokely v Cokely (1985) 469 So 2d 635

Consolidated Edison Co. v NationaL Labour Relations Board (1938) US 197

Dandridge v Corden (1827) 3 CandP 11; [1827] EngR 638; 172 ER 300

Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267

Fletcher v Commissioner of Taxation (1988) 19 FCR 442

Giannarelli v Wraith (No 2) [1991] HCA 2; (1990-1991) 171 CLR 592

Hoskins v Repatriation Commission [1991] FCA 559; (1991) 32 FCR 443

Karidis v General Motors-Holdens Pty Ltd (1971) SASR 422

Marine Midland Bank v John E Russo Produce Co. Inc. (1980) 427 NYS 2d 961

Millman v Tucker (1803) Peake Add Cas 322

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1984) 44 FLR 41

Northern New South Wales FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39

Olin Corporation v Castells (1980) 428 A 2d 319

Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482

Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228

Tice v Mandel (1956) 76 NW 2d 124

Counsel for the applicant: Ms S.M. Kiefel QC with Mr J.A. Logan

Counsel for the respondent: Mr G.J. Gibson QC with Ms E. Ford

1. The decision of the Tribunal of 14 July 1992 be set aside and the matter be remitted to the Tribunal for re-hearing, according to law.

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

SPENDER J This is an Appeal from a decision of the Administrative Appeals Tribunal (the 'Tribunal') given on 14 July 1992, affirming the decision made by a delegate of the Australian and Overseas Telecommunications Corporation ('AOTC') on 19 August 1991 that:

a) Noeleen Fairlie Dolan did not suffer from any permanent

impairment attributable to employment and consequently is

not entitled to a payment pursuant to s.24 or s.25 of the

Commonwealth Employees' Rehabilitation and Compensation Act

1988;

b) the degenerative disease cervical spondylosis was an

underlying condition and did not result from her

employment;

and

c) the effects of right shoulder pericapsulitis which did

result from employment with the forerunner of AOTC had

ceased.

2. The delegate of AOTC had been invited at a preliminary conference to reconsider a determination of 29 January 1990, dealing with permanent impairment entitlement, and a determination of 16 November 1990 dealing with liability in relation to the cervical condition and pericapsulitis.

3. The determination of the 16 November 1990 was that the employment of Mrs Dolan "did not contribute in a material degree to the contraction, aggravation acceleration or recurrence" of generalised degenerative cervical spondylosis from which Mrs Dolan suffers, and that while Mrs Dolan's "employment did contribute in a material degree to the contraction and aggravation (of the condition of post surgical pericapsulitis) the effects (of that contraction and aggravation)...on employment, have now ceased."

4. The determination of 29 January 1990 was that the delegate was not satisfied that Mrs Dolan's impairment was permanent.

5. On reconsideration of these determinations, the delegate made the determination the subject of the review by the Tribunal.

6. Three bases were relied on by Ms S Keifel QC, senior counsel for the applicant. She submitted that in two respects, Mrs Dolan had been denied procedural fairness. The first of those was the claim that the rule in Browne v. Dunn (1893) 6 R 67 had been breached in the particular circumstances of the proceedings before the tribunal. The second was that in assessing Mrs Dolan's credibility, the Tribunal had taken into account as a factor adverse to her reliability, the circumstance that Mrs Dolan had declined to answer a question whether she had continued to receive social security benefits after remarrying and recommencing work with Telecom in 1985, relying on privilege. The third basis of appeal was that in breach of the duty imposed on the tribunal by s. 43(2B) of the Administrative Appeals Tribunal Act 1975 (the 'Act'), the reasons for decision of the Tribunal do not satisfactorily explain the basis of the Tribunal's decision so as to indicate why it was made and to enable an appeal court to ascertain the reasoning upon which the decision was based.

7. The Tribunal was obliged to adopt "fair procedures which are appropriate and adapted to the circumstances of the particular case" Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, per Mason J at 585, quoted with approval in Fletcher v. Commissioner of Taxation (1988) 19 FCR 442 at 454-5.

8. The Tribunal is not bound by the rules of evidence: Section 33(1)(c) of the Act. However, the rules of evidence have a role to play, in the context of the obligation on the Tribunal to afford procedural fairness. In Pochi v. The Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482, Brennan J, speaking as the President of the Tribunal, said at 492:

"The Tribunal and the Minister are equally free to disregard

formal rules in receiving material on which the 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 (1938) US 197, at p 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 The King v. War Pensions Entitlement Appeal Tribunal; Ex

parte Bott [1933] HCA 30; (1933) 50 CLR 228 at p 256 '...No Tribunal can, without

grave danger of injustice, set (the rules of evidence) 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'."

The judgment of Brennan J at first instance was affirmed on appeal: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1984) 44 FLR 41.

9. The effect of the rule in Browne v Dunn (especially at 70-71 per Lord Herschel LC) is that any matter on which it is proposed to contradict the evidence-in-chief given by a witness must normally be put to him so that he may have an opportunity of explaining the contradiction, and failure to do so, may be held to imply acceptance of the evidence-in-chief.

10. The application of the rule in Browne v. Dunn was categorised by Pincus J in Hoskins v. Repatriation Commission [1991] FCA 559; (1991) 32 FCR 443, as an aspect of the principle of natural justice. Pincus J concluded, at 446, that the non-observance of the rule of Browne v Dunn could vitiate a decision of the Tribunal. He found that in particular circumstances of that case, the rule had not breached.

11. The rule in Browne v. Dunn was explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation in (1983) 1 NSWLR 1 at 22-23.

12. What is claimed to be a breach of the rule in Browne v. Dunn is the use made by AOTC of a video which had been taken on 11 October 1988 and which recorded Mrs Dolan hanging out wet clothes on quite a high line and for a considerable period of time. Mrs Dolan had ceased employment in March 1987 and claimed she was still suffering work related symptoms. The case for AOTC was that if the applicant suffered those symptoms for which compensation had earlier been received, those symptoms were resolved before payment of weekly compensation ceased in September 1990.

13. The proceedings before the Tribunal occupied four days. As the Tribunal indicated, there was no dearth of medical reports before the Tribunal. There was serious conflict between the views of medical practitioners called for Mrs Dolan and those for AOTC; in particular there was a significant difference of opinion between the orthopaedic surgeons, Dr Robert Cooke and Dr Gregory Nutting, on the one hand, and Drs Pentis and Curtis on the other.

14. Mrs Dolan was the first witness before the Tribunal. In cross-examination, she was asked:

"Now, you recall saying in your evidence-in-chief that you had

difficulty hanging out the washing; do you recall that?--- Yes,

I do still have difficulty. And you told Ms Gow, I think, in early

1987 that, in fact, you could not hang out the washing - - - ?---

Yes, I said there are times that I cannot do things, and there are

times that I can. And you have seen a video that was taken of you,

have not you?---Yes, I certainly have."

15. A copy of the video tape had been supplied to the solicitors for Mrs Dolan prior to the hearing before the Tribunal.

16. Ms Ford, counsel for AOTC before the Tribunal then said:

"I propose to show that to members of the tribunal, but

perhaps we can do that after Dr Kazlauskas?

"I also informed Telecom that even though it hurt I still had

to do these things because I was a woman on my own, and I had

two children to look after."

17. The Ms Gow referred to in the preceding evidence was a private psychologist treating Mrs Dolan in 1987. She was not a representative of Telecom.

18. After the video had been played and tendered, Professor Smithurst, a member of the Tribunal asked Mrs Dolan:

"Now, when you were hanging out the washing, did you notice

... any problems, any symptoms at the end of the time?"

"(A)s I told Telecom that at times it stressed me to do these

things ... (A)t no time did I say to Telecom that I could not

do them, it was a case of had to."

She was then shown Ms Gow's report which included the statement:

"Noeleen's normal survival functioning has been affected by

this disability she can't hang out the washing, pluck her

eyebrows, wash the floors, push the vacuum cleaner, dig in the

garden, polish the floor, clean the bathroom, repair or

renovate the house."

19. The statement "She can't hang out the washing?" was then put to her. Mrs Dolan answered, "That is right, well as I said, sometimes I can and sometimes I cannot. It all depends on what degree of pain I am".

20. The video, which had been referred to in the earlier cross examination, was not shown until a psychiatrist, Dr Kazlauskas had been ed to give evidence and also after the interposition of Mrs Coles, an occupational therapist.

21. Before Mrs Coles gave evidence, Mr J Logan, Counsel for Mrs Dolan, said:

"Mrs Coles is outside. I do not know if my learned friend

intended to have her view the videos as well but.... it would

save a bit of time."

"I am happy to leave the video until after Mrs Coles ..."

"It is just that one would expect an occupational therapist

might be able to make some comment on the video if it is to be

of any moment in the case..."

23. After some discussion, Ms Ford indicated "It is not going to form part of my cross examination of Mrs Coles at all".

24. Mrs Coles was then interposed at the request of Mr Logan, and the cross examination of Mrs Dolan was resumed after Mrs Coles evidence was concluded.

25. The video was not subsequently shown to other orthopaedic witnesses, either in evidence-in-chief or cross-examination. In the course of final submissions, Ms Ford submitted, "It is quite clear from the video that there is no incapacity."

26. Ms Keifel QC accepted that the video was relevant to Mrs Dolan's credit. Her submission was that its use for the purpose of demonstrating lack of incapacity in Mrs Dolan constituted a contravention of the rule in Browne v. Dunn.

27. In my opinion, there was no obligation on AOTC to invite comment by Mrs Coles or any of the orthopaedic witnesses as to their impressions of the video or its significance. In the context of the issues between the parties before the Tribunal, it is not to be supposed that the potential significance of the video had escaped either party. Solicitors for Mrs Dolan had been supplied with the video prior to the hearing. The short point is that the video went to the credit of Mrs Dolan, only if it demonstrated a capacity which she claimed not to have. It therefore had a potential relevance, both to capacity and to her credit, but any effect on her credit was as a consequence of what the video demonstrated, in the context of claims Mrs Dolan had made concerning her capacity to hang out washing.

"The applicant stated that at no time had she told Telecom of

her inability to hang out washing.... Yet in the report of

psychologist K. M. Gow, 2 June 1987,...it was stated

'Noeleen's normal survival functioning has been affected by

this disability. She can't hang out the washing ...'"

Ms Keifel QC criticised this part of the Tribunal's reasons because the video was taken in October 1988 and Mrs Dolan saw Mrs Gow in June 1987, and then not at Telecom's behest.

29. Notwithstanding these criticisms, the evidentiary value of the video on the question of capacity was for the Tribunal to assess. In the circumstances of the proceedings before the Tribunal, there was no obligation to invite comment from Mrs Coles or the orthopaedic witnesses concerning what was depicted on the video. I do not regard the statement by Ms Ford during the hearing that the video was "not going to form part of my cross-examination of Mrs Coles", as indicating that the video was not sought to be relied on as an indicator of physical capacity and the degree of impairment.

30. Its value on the question of credit, depended on its ability to be an indicator in those respects.

31. Further in my opinion, not putting the video to the medical witnesses in the course of their cross examination, produced no unfairness to the applicant. This was not a case where Mrs Dolan was ambushed by the respondent's reliance, in submissions, on a piece of evidence, the existence of which the applicant was unaware until the completion of the evidence of her witnesses. This position may be contrasted with the examples given by Hunt J in Allied Pastoral Holdings Pty Ltd v. Commissioner of Taxation (supra) at pages 23-24.

32. In Seymour v. Australian Broadcasting Commission (1990) 19 NSWLR 219 at 224, Glass JA said that the purpose of the rule in Browne v. Dunn was to prohibit the unfair conduct of trials. His Honour said at 225:

"But in my opinion it is going all together too far to contend

that evidence which would otherwise be relevant to a conclusion

for which one party contends should be disregarded because its

implications have not been put to the party against whom the

inference is to be drawn. In my opinion, the trial judge would

have been entitled to refuse such a direction and his failure to

give it does not entitle the plaintiff to a new trial".

See also Bulstrode v. Trimble [1970] VicRp 104; (1970) VR 840 at 849 and Karidis v. General Motors - Holdens Pty Ltd (1971) SASR 422, at 425-6.

33. It is to be noted that Mr Logan did not himself deal with the video in the course of examination of any witness, apart from Mrs Dolan, nor did he apply to have any witness recalled, or apply to produce evidence in rebuttal or otherwise make any submission on the point until final addresses.

Procedural Fairness and the Privilege against Self-Incrimination

34. In the course of cross examination of Mrs Dolan, Ms Ford said to her:

"I put to you that you continued on that assistance (from the

Department of Social Security) well after your commencement of

employment with Telecom."

35. Objection was taken to this question. In the absence of Mrs Dolan, Ms Ford said:

"(T)he questions that I am now proposing to ask relate to

certain instructions that I hold in relation to the receipt of

benefits from the Department of Social Security during a period

when she was employed and had in fact remarried and this affects

the credit of the witness to a very large extent particularly when

her symptoms are very subjective".

36. The presiding member indicated that the questioning would be permitted. When Mrs Dolan returned, Mr Logan said,

"In my submission, Mrs Dolan should be reminded that she is -

privileges about that sought of question is one which on its

face does bespeak the commission of a federal offence, or

could put one on a train on enquiry in that regard".

"You are not required, Mrs Dolan, to answer any question which

- the answer of which may in some way incriminate or have the

potential for incriminating you, do you understand that?"

to which she replied, "Yes", and the presiding member continued,

"So that if a question is asked which you think requires an

answer which may, or it gives you cause for concern that you

may be incriminating yourself by giving that answer, you are

not required to answer that question."

"Mrs Dolan, my question to you went something along these

lines: that - I put it to you that after you commenced your

employment with Telecom you continued to receive this benefit

from the Department of Social Security?"

to which Mrs Dolan said, "I do not wish to answer that". Ms Ford said:

"I also put to you that you in fact continued to receive this

benefit after you married Stephen Rhodes?"

to which Mrs Dolan said, "And I do not wish to answer that".

38. The written submissions on behalf of AOTC to the Tribunal commenced:

"Credibility of the applicant is of prime importance because

of the subjective nature of her injuries. The applicant's

account of her injuries, as given to the Tribunal and her

doctors, cannot be relied upon:-

...

(ii) The applicant did not deny obtaining benefits from the

Department of Social Security after remarrying and commencing

work with the respondent; ..."

"You may wish to draw your own conclusions from the fact that

she did not deny obtaining benefits from the Department of

Social Security after remarrying and after commencing work

with the respondent. The Tribunal is entitled to draw its own

conclusions from the demeanour of the witness at that time and

her response to those questions."

The thrust of that submission was the subject of objection by Mr Logan during his address. He said,

"As far as the reference to social security matters was

concerned, in my submission you do not prove something by seeing

someone take a claim of privilege, in so far even as it is

relevant at all. It has never been the case that in civil or

criminal proceedings, one proves a point by putting a proposition

and having someone claim a privilege which the law permits. If

you did that, if that is the case you may as well deny the

privilege".

39. Paragraph 11 of the Tribunal's reasons was as follows,

"The Tribunal heard evidence from the applicant who was, in

our view, an unreliable witness in respect of the period she was

away from work between 3 July 1985 and 26 August 1985. She told

the Tribunal that she rested her arm as much as possible to give

it total rest. In cross- examination it was elicited that she

had, during that same period, gained work experience and then

worked part-time ad a barmaid. Nor was it denied that she has

obtained benefits from the Department of Social Security after

remarriage and commencement of work with the respondent.

It was stated by the applicant that it was expected of her by the

respondent that she resume keyboard work on her return to work in

February 1988 when in fact no keyboard work was required"

"We have come to the view that the applicant's own evidence

must be treated with caution and this has also meant that a

history given to medical practitioners by the applicant must

also be treated cautiously. The Tribunal, having listened to

the applicant, was not satisfied as to the frankness of her

answers to questions".

40. While the Tribunal expressed the view that Mrs Dolan was an unreliable witness "in respect of the period she was away from work between 3 July 1985 and 26 August 1985", the tenor of the Tribunal's reasons is that it formed the view that she was unreliable. I think paragraph 11 of the reasons is properly to be construed as saying that the view of the Tribunal was that Mrs Dolan was unreliable, and that view was in part based on the fact that she claimed privilege when asked whether she had obtained benefits from the Department of Social Security after re-marriage and commencement of work with the respondent. That is to say, one factor in the finding of unreliability was her failure to deny what was put to her in relation to payment of social security benefits after re-marriage and commencement of work with Telecom, in reliance on the privilege against self-incrimination.

41. The submission by Ms Keifel QC, is that it is not permissible to draw an inference adverse to a party from that party's reliance on a claim of privilege, based on the privilege against self-incrimination.

42. Mr G Gibson QC, Senior Counsel for the respondent, said that the Tribunal was free to draw whatever inferences it considered appropriate from the applicant's refusal to answer questions in reliance on the claim to privilege against self-incrimination. He referred to 19th century English cases as providing support for this claim.

43. Bartlett v. Lewis [1862] EngR 683; (1862) 12 CB(NS) 249, 171 ER 1139, was a case concerning whether one might object to interrogatories, as opposed to grounding a refusal to answer interrogatories, by the consideration that answers, if given in the affirmative, would render the party interrogated liable to criminal prosecution. At 261-2, ER 1142, Erle CJ said:

"I entirely differ from the proposition...that the inference

which a jury might naturally be expected to draw from the parties

refusal to answer the interrogatories affords a reason why they

should not be permitted to be put...It is the proper province of

the law to bring all frauds to the light: and I cannot think of

man as more deserving of sympathy and protection because his

iniquities come up to the indictable point."

44. Earlier in the course of the argument the Chief Justice said:

"I must confess I do not see why a guilty man should not be

prejudiced in the eyes of a jury."

45. In R v. Watson [1817] EngR 133; (1817) 2 Stark 116 at 152-3[1817] EngR 133; , 171 ER 591 at 605, Bayley J said:

"The rule is, that a party against whom a witness is called,

may examine witnesses as to his general character; but he is not

allowed to prove particular facts in order to discredit him ...

You may indeed ask the question of the witness himself; but if he

chooses to answer the question, you must stand or fall by the

answer which he gives. He may demur to the question, for he is

not bound to criminate himself; and if he refuse, this is not

without its effect with the jury. If you ask a witness whether he

has committed a particular crime, it would be perhaps be going to

far to say that you may discredit him if he refuse to answer; it is

for the jury to draw what inferences they may."

46. Boyle v. Wiseman [1855] EngR 110; (1855) 10 Ex 647, 156 ER 598, decided that a party subpoenaed as a witness can not object to be sworn and examined on the ground that the only relevant questions which could be put to him, are such as that would intend to incriminate him; he must, if he sees fit, claim his privilege to answer such questions. In the course of argument, it was submitted at 651, ER 600:

"The very fact of the defendant refusing to answer would be

evidence against him".

"I think not. The protection given by the statute would be of

no avail, if the refusal to answer was construed into evidence

of guilt. It is impossible, however, to prevent the jury

drawing their own conclusions."

"As the law now stands, it seems to me that a party not

denying a fact which it is in its power to deny, gives a

colour to the other evidence against him".

47. In Dandridge v. Corden (1827) 3 C and P 11; [1827] EngR 638; 172 ER 300, a witness said that a bill was accepted for a valuable consideration but declined to say what the consideration was, as he might make himself liable to a qui tam action. Lord Tenterden CJ said:

"I cannot make him answer if he does not think proper. The

effect of it will be, that if he does not state what the

consideration was, it will stand as if there was no

consideration at all."

48. In addition, American authority was relied on:

. Cokely v Cokely (1985) 469 So 2d 635 at 637, a decision of

the Court of Civil Appeals of Alabama;

. Olin Corporation v Castells (1980) 428 A 2d 319, 322 a

decision of the Supreme Court of Connecticut;

. Marine Midland Bank v John E Russo Produce Co. Inc. (1980)

427 NYS 2d 961, a decision of the Court of Appeals of New

York;

. Bradley v O'Hare (1956) 156 NYS 2d 533 at 540, a decision

of the Supreme Court of New York, Appellate Division;

. Tice v Mandel (1956) 76 NW 2d 124 at 138, a decision of the

Supreme Court of North Dakota.

49. In Volume 8 of the 1961 McNaughton edition of Wigmore on Evidence at 439 (para. 2272), the learned author says:

"The rule (against self-incrimination) does not preclude the

inference where the privilege is claimed by a party to a civil

cause."

The footnote to this statement says: "The opinions in the cases on this point ... are confused." The paragraph commences at 425 with the observation:

"The question whether an inference may be drawn from a

person's exercise of his privilege, and whether he may

properly be penalised because of it, is one which may well

puzzle by its anomalies."

50. Professor Julius Stone in his work, "Evidence - Its History and Policies", Butterworths, 1991, says at 561:

"Few pivotal conceptions of the law of privilege have had a

history as long and complex as that of the privilege against

self-incrimination."

"Much has been urged both for and against the desirability of

this privilege."

51. Professor Stone, at 571, refers to Millman v Tucker (1803) Peake Add Cas 322, where Lord Ellenborough regarded it as his duty to instruct the jury "that if the witness chose to avail himself of the protection which the law gave him, he was not thereby at all discredited" and "(t)here was an end to the induction of a witness if a demurrer to the question were to be taken as an admission of the fact inquired into." However, Professor Stone observed:

"Yet to instruct the jury to resist an irresistible inference

seems too futile an undertaking".

"The better view is, therefore, that the jury is free to draw

what inferences it pleases from the claim of privilege",

citing R v Watson, Boyle v Wiseman and Dandridge v Corden.

52. Notwithstanding these weighty pronouncements, in my opinion, no adverse inference is to be drawn against a person by reason that the person has asserted a claim of privilege against self-incrimination.

53. In Bray: Principles of Practice of Discovery (1885), Reeves and Turner, at 315, the learned author states:

"The parties refusal to answer is not to be taken as a

presumption or as evidence or as an admission of his guilt...

otherwise the privilege would be destroyed": see Wentworth v Lloyd

[1864] EngR 492; (1864) 10 HL Cas 589 at 590- 2; [1864] EngR 492; 11 ER 1154.

"But though this be so in principle, in practice it is

impossible that the party should not sometimes be prejudiced

by his refusal to give the discovery".

"It may have however been pointed out that it is sufficient if

the parties swears that he believes the discovery would tend to criminate himself": Lamb v Munster 10 QBD 111, where Field J defined a tendency to criminate to mean a tendency to bring him into the peril and possibility of being convicted as a criminal.

55. In Cross on Evidence, 3rd Australian Edition, paragraph 3.6 at page 615, footnote 16, the learned authors make a general observation about privilege:

"(N)o adverse inference should be made from the fact that the

privilege is claimed."

In footnote 16, Wentworth v Lloyd is cited, and then appears:

"The statement of principle from this case appears in the

standard texts (though with a query in Phipson 13th ed para

15-06, so far as not answering incriminating questions is

concerned) and doubtless is an accurate statement of the law."

56. In Phipson on Evidence, 14th Edition, paragraph 20-05 at page 495, it is said that the suggestion made in the 13th Edition of Phipson, that there might be an exception about being unable to draw adverse inferences in the case of the self-incrimination privilege, "does not seem to be correct".

57. There is no doubt that no adverse inference can be derived from a claim to legal professional privilege: Wentworth v Lloyd (supra), Giannarelli v Wraith (No 2) [1991] HCA 2; (1990-1991) 171 CLR 592 at 605. The reason given in Phipson as to why the position about inferences is not different in relation to the self-incrimination privilege from that in respect of other privileges is compelling: "The privilege is intended to protect the innocent and the guilty alike". Amongst the authority cited in Phipson at footnote 17 for this proposition is Adams v Lloyd (1858) 3 H and N 351; 157 ER 508, Pollock CB in that case at page 361-2, ER 510, said:

"I have always thought that the law on that subject was

correctly stated by Maule, J, in the case of Fisher v. Ronalds

[1852] EngR 1047; (12 CB 762). He there said, in the course of the argument:

'Itis the witness who is to exercise his discretion, not the Judge.

The witness might be asked, 'Were you in London on such a day?'

and, though apparently a very simple question, he might have good

reason to object to answer it, knowing that, it he admitted that

he was in London on that day, his admission might complete a chain

of evidence against him which would lead to his conviction. It isd

impossible that the Judge can know about that. The privilege

would be worthless if the witness were required to point out how

his answer would tend to criminate him.' The course of

administration of the law in this country has always been, never

to compel a witness to answer a question which has a tendency to

criminate himself. This is considered so sacred a principle that

the right of a plaintiff or a defendant in a civil suit is taken

away by it, however important the testimony may be, even though it

might establish his title to an estate or interest ever so

large."

58. In my opinion, since the privilege is able to be relied on if the answer might tend to incriminate, it is impermissible to draw any adverse inference, because the drawing of an adverse inference necessarily assumes that the answer would incriminate. The reason for the existence of a rule is quite a different matter from the permissible consequences of the exercise of a rule. I acknowledge that the rationale for legal professional privilege is not the same as the rationale for the privilege against self-incrimination. While the reasons for the respective privileges might be different, I can see no logical reason why an adverse inference can not be drawn from the exercise of legal professional privilege yet such an inference can be drawn where the privilege exercised is that against self-incrimination.

59. In either case, it seems to me that a person could legitimately ask "why claim the privilege, if there is nothing to hide?" If, as seems clearly to be the case, it is wrong to draw an adverse inference from the exercise of legal professional privilege, it is also wrong to permit an adverse inference from the exercise of the privilege against self-incrimination. If to permit an adverse interest would undermine the very existence of legal professional privilege, the same applies to the privilege against self-incrimination. It would, in truth, be a "snare" or "delusion". A refusal to answer, based on privilege would for all evidentiary purposes be the equal to an unqualified admission of the truth of the question.

60. The question whether a particular inference can be drawn from facts found or agreed, is a question of law. Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1991) 170 CLR 321 at 355 per Mason CJ (Brennan, Toohey and Gaudron JJ agreeing).

61. This case is not a case of a wrong finding, but rather the fact- finding process of the Tribunal has been tainted by a legal error in relation to the inference, if any, which might be drawn from a self- incrimination privilege claim. It may be that the other basis were sufficient to reach the same conclusion, but it is not possible to say that the same conclusion would have been reached, absent the impermissible adverse inference based on the claimed privilege against self-incrimination.

62. It is accepted that the credibility of Mrs Dolan was a crucial matter. The error in this aspect of the matter may have deprived Mrs Dolan of a successful outcome. In those circumstances the decision, in my opinion, has to be set aside; Stead v. State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. Pincus J in Hoskins v Repatriation Commission (supra) at 446 said:

"If, in truth, the failure to put to the applicant the

suggestion that he was exaggerating his symptoms was in breach of

the requirements of natural justice, then one should not speculated

as to whether or not questioning on the point might have enabled

the applicant to improve his position."

63. The third basis of appeal is based on the adequacy of reasons.

64. The Federal Court does not hold the Tribunal's reasons for decision to a standard of perfection: Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 517. It is right generally to adopt a restrained approach to examining the adequacy of the reasons of the Tribunal: Blackwood Hodge Pty Ltd v Collector of Customs [1980] FCA 96; (1980) 47 FLR 131 at 145. Nonetheless, s. 43(2B) of the Act requires the Tribunal to expose its reasoning process for reaching particular conclusions and to make findings on material questions of fact. The reasons do not expressly refer to "findings of fact", and the only "findings" are conclusionary.

65. It was submitted for the respondent that the position here is similar to that in Bisley Investment Corporation, where Lockhart J (with whom Sheppard J generally agreed) said at 152:

"It is true that in the course of its lengthy reasons for

decisions the Tribunal did not say expressly that it made

particular findings of fact; but it referred to many matters of

fact relevant to the issues before it. Plainly the Tribunal

regarded these matters as relevant and material; otherwise it is

difficult, if not impossible, to conceive why any reference was

made to them at all."

66. Paragraphs 13 to 16 of the Reasons recite parts of the evidence of a number of the psychiatrists called to give evidence. Nowhere is it said that the passage of evidence set out is relied on or accepted.

"While the applicant relied on the evidence of Drs Kazlaukas

and Spelman, the respondent contended that this evidence could not

be seen as discreet and isolated from various incidents in the

applicant's life: suffering five miscarriages during a period of

eighteen weeks on the in vitro fertilisation programme from

October 1983 to February 1984; her second husband leaving her in

early 1987 and her then having to live in rented accommodation

with her children in Brisbane distanced from friends and

relatives."

68. What the Tribunal intended the contents of this paragraph to convey, I am unable to discern.

69. Similarly, paragraphs 17 to 24 extract pieces of evidence from various of the orthopaedic surgeons. Paragraph 18 refers to the evidence of Dr John Pentis, who was supportive of the case of Mrs Dolan. It reads:

"Dr John Pentis, orthopaedic surgeon ... was of the opinion

that the problems the applicant presently had were because

procedures which had been performed on her shoulder had not

settled completely so she was suffering residual effects from

those as well as from synovitis in the wrist. The neck problem he

thought was related to the upper limb. He agreed under

cross-examination that this diagnosis of sympathetic dystrophy causalgia

type syndrome in the right upper limb was basically a subjective

one...Questioned by the Tribunal as to restricted domestic

activities such as hanging out washing he opined that these

activities should be limited as there could be problems associated

with this."

70. I regretfully can discern nothing in the paragraph, or elsewhere, to indicate that the views expressed there were rejected, or any basis for rejection.

71. In parts of its reasons, it expressed the view that Mrs Dolan's evidence, and hence the histories given to medical practitioners, should be treated with caution. That is not the same thing as saying that her evidence is rejected, or that the conclusions of the medical practitioners, should for that reason, not be relied upon.

72. Having recited pieces of the evidence and submissions of Counsel, the Tribunal in paragraph 37 said:

"The Tribunal has to be satisfied that the revocation of

compensation payments was correct. The Tribunal has concluded

on the balance of probabilities that the applicant has not

suffered any continuing compensible incapacity from the periods

of incapacity beginning July 1985 and March 1987. That is not

to say that she is not suffering disabilities but that those

conditions can no longer be reasonably attributed to the period

of work for which she was granted workers' compensation. From

13 March 1987 to September 1990 the applicant was on

compensation. The Tribunal is satisfied that compensation for

work related injury was properly revoked".

73. I am unable to accept that those parts of the evidence extracted by the Tribunal support and explain the conclusions which it reached. Looking at the reasons as a whole, I am not able to be discern the Tribunal's conclusions as to what disabilities Mrs Dolan suffered or why the Tribunal concluded that these no longer had a compensable quality.

74. There was a further submission based on the Tribunal's failure to discuss submissions made to it with respect to the rule in Browne v Dunn and the effect of a claim to privilege on the ground of self- incrimination. In my opinion, this omission does not amount to a breach the obligation under s.43(2B) to give reasons. The Tribunal in paragraph 11 gave effect to AOTC's submission concerning the claim to privilege.

75. Not every failure to mention a contention advanced on behalf of the party, will amount to a failure to comply with the requirements of that section. These matters were in a sense peripheral to the matters that the Tribunal had to determine: Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276 and Casarotto v Australian Post Commission [1989] FCA 116; (1989) 86 ALR 399 at 402.

76. As to the future disposition of the matter, I set aside the decision of the Tribunal of 14 July 1992. I remit the matter to the Tribunal for re-hearing, according to law: Northern New South Wales FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39.

77. That case suggests that the constitution of the Tribunal on the re-hearing is a matter for the President of the Tribunal. No doubt the circumstance that strong findings in credit have been expressed by the Tribunal in the matter appealed from, based in part, in my opinion, on impermissible inference, would be a relevant consideration to the composition of the Tribunal on re-hearing.

Employees' Rehabilitation and Compensation Act 1988

Appeals Tribunal Act 1975

Re Noeleen Fairlie Dolan v the Australian and Overseas Telecommunications Corporations [1993] FCA 202;

At a glance

Court

Decision date

Before

Source

Judgment (180 paragraphs)

Re Noeleen Fairlie Dolan v the Australian and Overseas Telecommunications Corporations [1993] FCA 202; (1993) 114 ALR 231 (1993) 17 Aar 355 (1993) 42 FCR 206 (30 April 1993)

Parties

Legislation Cited (2)

Cases Cited (17)