Treverton v TAC [1998] VCAT 581

At the conclusion of the hearing before us on 9 September 1998, the Tribunal announced that we would seek to publish our decision on this preliminary issue as a matter of urgency to enable the substantive hearing to proceed on 28 September. Shortly before we had hoped to publish our reasons, the respondent's solicitors forwarded a supplementary submission under cover of letter dated 17 September 1998.

In the belief that the applicant desired an opportunity to present further oral argument, the Registrar fixed this matter for further hearing before us on 9 October. The applicant filed a further written submission dated 5 October 1998. The principal component of that submission was reliance upon the dicta of Hayne JA (as he then was) in an unreported decision of the Court of Appeal in Robins v Downes where His Honour said:

"It is sometimes permissible, indeed obligatory, for Counsel to communicate with the court, sending a copy of the communication to his or her opponent, after the close of argument. Counsel may, for example, discover a binding authority, or an authority of which the court should be aware, or wish to correct in their own statement. But Counsel is not permitted to supplement his or her argument without leave ... no such leave was sought in this case and it was not appropriate to seek to supplement argument in this way."

Counsel for the applicant submitted that in accordance with these principles, the further material should not be received and considered. They submitted that in any event the material relied upon in the Commission's supplementary submission derived from rules of court in Queensland and South Australia which had no precise analogue in Victoria and provided no useful guidance on the question before us.

The course followed by the Commission should not be encouraged. In a court or tribunal counsel are expected to provide the entirety of their submissions before the matter stands reserved, save where leave is specifically reserved. None of the circumstances mentioned by Hayne JA in Robins' case is satisfied here. The Commission's failure to present the entirety of its argument on the day is the less excusable because this preliminary issue was argued as a "set piece" and had already been broached before the learned President some weeks previously in the circumstances which we have already described. Nevertheless, we have to decide a novel and important question and we conceive ourselves not only entitled but bound to pay due regard to any material which may assist us in reaching the correct decision upon it. Accordingly, we will for the purposes of our decision consider all material placed before us including the supplementary submissions.

There are three medical reports in dispute. The Commission says that the sub-section entitles it to orders that they be produced to the Tribunal. The respondent objects to their production on the basis that they are privileged. The first of the reports is by a neurologist Dr Gates, dated 22 August 1996. It seems that Mr Treverton attended the doctor for treatment. In addition there is a further report by Mr D. Brownbill, Neurosurgeon, dated 12 December 1997 and a report by Mr Lloyd, Physiotherapist dated 5 August 1997. According to the applicant, the report from Dr Gates is privileged under Section 28(2) of the Evidence Act 1958 and all reports are the subject of legal professional privilege.

The provision relied on by the Commission is as follows:

"(3) The Tribunal may give directions under this section requiring a party to produce a document or provide information in a proceeding for review of a decision despite anything to the contrary in section 106(1) or any rule of law relating to privilege or the public interest in relation to the production of documents."

Section 106(1) of the Act provides that subject to certain exceptions:

"A person is excused from answering a question or producing a document in a proceeding if the person could not be compelled to answer the question or produce the document in proceedings in the Supreme Court."

Section 80(3) is without analogue in the Victorian Administrative Appeals Tribunal Act 1984 or the Commonwealth Administrative Appeals Tribunal Act 1975. When Mr Treverton's solicitors filed his application for review in September 1997 no provision existed which would have obliged him to produce any privileged document against his will.

This Tribunal has two species of jurisdiction: original and review jurisdiction: see Sections 40 to 42 of the VCAT Act. Review jurisdiction is defined by Section 42(1) as being:

"Jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision maker."

The present Tribunal's review jurisdiction broadly (though not exactly) corresponds with the jurisdiction of the old Administrative Appeals Tribunal. It seems curious that Section 80(3) with its power to override privilege exists solely in review jurisdiction. An applicant who alleged that he or she had been improperly discriminated against in relation to a claim for compensation lodged with the Transport Accident Commission could prosecute that claim in the Tribunal's original jurisdiction and in the Anti-Discrimination List. He or she would be entitled to resist production of any privileged documents. The same person who chose instead to seek a review of the substantive merits of the Transport Accident Commission's decision in the review jurisdiction would be subjected to the operation of Section 80(3) - whatever that might be and could not have absolute confidence of reliance on privilege. This seems paradoxical. Mr Cavanough, QC, who appeared with Mr R. Middleton on behalf of the Transport Accident Commission, suggested the rationale for the form of Section 80(3) applying in the Tribunal's review jurisdiction but not in its original jurisdiction, is to be found in the legislative history. Section 49 of the VCAT Act requires a decision maker whose decision is being reviewed to give a statement of reasons and lodge copies of all documents "in the decision maker's possession that the decision maker considers ... relevant to the review of the decision". This obligation is, by sub-section (5) imposed "despite any rule of law relating to privilege or the public interest in relation to the production of documents". Sub-section (3) is in the following terms:

"(3) If the Tribunal considers that there are further documents in the possession of the decision maker that may be relevant to the review, the Tribunal may give written notice to the decision maker requiring the decision maker to lodge the number of copies of those documents required by the rules with the Tribunal within the time specified in the notice."

Similar provisions were contained in Section 36 of the Administrative Appeals Tribunal Act 1984 with respect to the old Administrative Appeals Tribunal. These have their ultimate model in Section 37 of the Commonwealth Administrative Appeals Tribunal Act. In the Commonwealth Tribunal, Section 37(2) of that Act, which is the equivalent of Section 49(3) of the VCAT Act, has been held to create a regime of continuous disclosure of privileged documents by respondents: see Veloviski v Telstra Corporation (1998) 26 AAR 454. All these provisions are by their terms, directed only to respondents. In Mr Cavanough's submission, Section 80(3) was enacted to level the playing field for respondents.

The scope of legal professional privilege was crisply summarised by Deane J. in his judgment in Attorney-General (Northern Territory) v Maurice as follows:

"It is a substantive general principle of the common law and not a mere rule of evidence that, subject to defined qualifications and exceptions, a person is entitled to preserve the confidentiality of confidential statements and other materials which have been made or brought into existence for the sole purpose of his or her seeking or being furnished with legal advice by a practising lawyer or for the sole purpose of preparing for existing or contemplated judicial or quasi-judicial proceedings: see generally, Baker v Campbell [1983] HCA 39; [1983] 153 CLR 52."

[1986] HCA 80; (1986) 161 CLR 475, 490

It will be seen that documents brought into existence for the sole purpose of preparing for existing or contemplated quasi-judicial proceeding as well as proceedings in court are protected by the privilege. In Maurice's case the proceedings in question were non-judicial, being before the then Aboriginal Land Commissioner of the Northern Territory. Likewise, documents brought into existence for the sole purpose of preparation for a proceeding in this Tribunal would be protected. McMaugh v Australian Telecommunications Commission (1991) 22 ALD 393, a decision of the Commonwealth Administrative Appeals Tribunal constituted by Deputy President P.W. Johnston. To the same effect, Loknar v Secretary Department of Social Security (1992) 29 ALD 591, another decision of the Commonwealth Tribunal, this time constituted by Deputy President Breen. Since Section 49 and its predecessor Section 36 in the State jurisdiction and Section 37 in the Commonwealth Tribunal are directed only to the decision maker/respondents, nothing in those provisions would overreach an applicant's privilege. See Loknar's case.

The other privilege relied upon by Mr Treverton is solely statutory. Section 28(2) of the Evidence Act 1985 provides as follows:

"(2) No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding or an investigation by a Complaints Investigator under the Accident Compensation Act 1985 any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient."

An initial question arises as to whether this statutory doctor/patient privilege applies in the Tribunal at all. In Gleeson v Transport Accident Commission (1994) 6 VAR 217 where Judge Fagan then President of the Administrative Appeals Tribunal held that this privilege did not apply at all in that Tribunal. The reasons which led His Honour to this conclusion would appear, if accepted, to be equally applicable to this Tribunal. His Honour's views did not command universal support in the old Tribunal, for instance in an unreported ruling given 3 April 1995 (Novak v Transport Accident Commission), Deputy President Macnamara declined to follow Gleeson's case.

His Honour relied upon a number of authorities to reach his conclusion. He referred first to the remark of Gillard J. in Andasteel Constructions Pty Ltd v Taylor [1964] VicRp 17; [1964] VR 112, 114 where he (Gillard J.) said:

"Secondly the privilege is a curial one only to be exercised in a court and having no analogy to a proprietary right existing at large against the world."

Judge Fagan noted that in Carusi v Housing Commission [1973] VicRp 19; [1973] VR 215, Lush J. approved the dictum of Gillard J. in the Andasteel case. In Kaur v Australian Postal Commission [1991] AATA 128; (1991) 23 ALD 159, 163 Mr Handley a Senior Member of the Commonwealth Administrative Appeals Tribunal, held that the Section 28(2) privilege had no application to the Commonwealth Tribunal. There are other authorities to the same effect. See for instance Windsor v Australian Postal Corporation [1991] AATA 36; (1991) 22 ALD 401 (a decision of Mrs Dwyer). Judge Fagan referred to comments to the same effect by Ms McNicol in her work The Law Privilege (1992) 361-4.

Having reviewed these authorities we respectfully differ from Judge Fagan's conclusion. In the Andasteel case, it was sought to adduce evidence from a treating doctor on the basis of a consent furnished by the personal representative of a deceased person. The personal representative was not a party to the proceedings. It was in that context that Gillard J. said that the privilege was "curial". He meant that it was not to be regarded as a right transmissible by will. Since 1964, Section 28 has been amended, adding sub-section (3) which now provides specifically for waiver of the privilege by means of a consent from the legal personal representative of a deceased person. When Lush J. approved the statement in Andasteel, he did so as an explanation for his refusal to regard the privilege as being waived by a consent furnished by the patient to the Housing Commission years previously for administrative and non-curial purposes. In our view, neither Carusi nor Andasteel is of any assistance in determining whether the privilege applies in this Tribunal.

In commenting on Kaur's case, Ms McNicol notes that Mr Handley gave no reasons for his conclusion. Mrs Dwyer likewise did not offer any explanation as to why the doctor/patient privilege did not apply in the Commonwealth Tribunal. See [1991] AATA 36; 1991 22 ALD 401, 405 (paragraph 14). Both learned members reached their conclusion based upon an unreported decision of Keely J. in the Federal Court of Australia Brown v Commonwealth of Australia (22 August 1986) where His Honour concluded that the privilege had no operation in the Commonwealth Administrative Tribunal. His Honour reached this conclusion on the basis that the only means whereby provisions of the State Evidence Act could be rendered applicable to the Commonwealth Tribunal was by force of Section 79 of the Commonwealth Judiciary Act 1903 which provided:

"The laws of each State, including the laws relating to procedure, evidence, and the competency of witnesses, shall except as otherwise provided by the constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State."

Since the Commonwealth Administrative Appeals Tribunal is not a federal court, that section could have no application to it. Accordingly, Brown's case is an authority as to the meaning and operation of the Commonwealth Judiciary Act as it then stood, not the meaning and operation of the Victorian Evidence Act. Kaur's case and the commentary in McNicol based upon it, does not assist in determining whether this privilege applies in this Tribunal.

The question as to whether the privilege operations in this Tribunal should be answered by reference to the terms of the sub-section itself, the obvious question is whether a review proceeding in this Tribunal is to be regarded as a "civil suit, action or proceeding". That expression does not appear to be defined in the Evidence Act, however in Section 3(1) the expression "legal proceeding" is defined as follows:

" `Legal proceeding' includes any civil, criminal or mixed proceeding and any inquiry in which evidence is or may be given before any court or person acting judicially."

The expression "person acting judicially" is defined as follows in the same sub-section:

" `Person acting judicially' includes any court, judge, arbitrator, master and any person or body having by law or by consent a party's authority to hear, receive and examine evidence and any officer in any public department having in the discharge of his duties authority to examine evidence."

This indicates that the Victorian Evidence Act does not direct itself narrowly to courts in the traditional sense but extends to a wide range of quasi-judicial institutions. The Act defines "court" as follows:

" `Court' in relation to any legal proceeding, includes a person acting judicially."

It follows that for the purposes of the Evidence Act this Tribunal is a court. In our view, when used in the context of the Victorian Evidence Act containing the definitions we have just quoted, the expression "civil suit, action or proceeding" in Section 28(2) extends to a review proceeding in this Tribunal. Accordingly, the doctor/patient privilege does apply.

Mr Cavanough as we have already noted, submitted that Section 80(3) was a salutary levelling of the playing field. He acknowledged that orders under its terms were discretionary and were not to be made as of right. He noted that a patient attending a medical practitioner for assessment and report in connection with legal proceedings was not attending the doctor for either legal or medical advice. Accordingly, the intrusion upon traditional privilege sought did not go to the core of legal professional privilege which is intended to permit clients to speak candidly to their legal advisors for the purpose of receiving legal advice. Mr Cavanough also referred to the comments critical of doctor/patient privilege made by the Law Reform Commission in its Interim Report No. 26 on the Law of Evidence (1985).

In Mr Cavanough's submission, the making of orders along the lines sought as a matter of course would be conformable to the nature and object of Tribunal proceedings. He referred to and relied upon the decision of Eames J. in Bausch v Transport Accident Commission (1996) 11 VAR 117, 138 where His Honour described proceedings before the old Administrative Appeals Tribunal as "inquisitorial". On appeal to the Court of Appeal, Tadgell JA delivering the principal judgment (10 March 1998) said that a proceeding in the Administrative Appeals Tribunal "is in no sense to be treated as raising a lis amounting to an adversarial contest in which the Commission is entitled to engage in adversary tactics". He also relied upon Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408, 424-5 per Brennan J.; Greenback v Secretary Department of Social Security (1986) 9 ALD 338, 343; McMaugh v Australian Telecommunications Commission (1991) 22 ALD 393, 399 all of which authorities stressed the importance of all information being made available to a review tribunal to enable it to make the correct or preferable decision. This created a necessity for and an atmosphere where frank and full disclosure was to be made by both sides.

According to Mr Cavanough, the same principles were to be found embodied in Practice Direction 4A issued by the old Administrative Appeals Tribunal in relation to transport accident matters which has been adopted as Practice Note GENC3A by this Tribunal. He conceded however, that the Practice Direction did not and could not purport to override a claim of privilege which was properly available. See for instance Loknar's case (1992) 29 ALD 591, 593. He relied upon the following remarks of the Australian Law Reform Commission in its 26th Interim Report on Evidence Volume 1, paragraph 848, page 491:

"848 The need to justify privileges. In the formulation of proposals a fundamental concern of the public interest in an effective and credible trial system. Production of all relevant evidence enables litigation to be decided on the basis of a genuine attempt to find the facts and helps to ensure fair trial for all concerned. There is thus an important public interest in ensuring that as much relevant material as possible comes before the court. Accordingly, it may be said that:

Every exemption from this obligation to testify impedes the achievement of an indispensable requirement of civilised life, the fair administration of justice. Exemptions lessen the fairness of a trial, in as much as a trial is only as good as the evidence considered by the court.

The granting of a privilege limits the evidence that may be received and thus acts prima facie as an impediment to the fact-finding task with the courts. Any privilege proposed must be justified and this must be done by reference to a public interest whether incidental to the administration of justice or to some other public interest. The decision whether to allow a privilege must be the result of the weighing one against another or these competing interests. In the weighing process primacy must be given to the courts' need for evidence and to override that a case must be made out sufficient to counter balance this established public interest."

The supplementary submissions on behalf of the Commission referred to and relied on

(a) Order 38 of the Rules of the Supreme Court of South Australia; and

(b) Division 3A of Order 39 of the Rules of the Supreme Court of Queensland.

In relation to the Queensland rule, Mr Cavanough and Mr Middleton referred us to a decision of Mullighan J. of the Supreme Court of South Australia in the matter of Piber Pty Ltd v A.W. Baulderstone Pty Ltd (1992) 163 LSJS 380. Rule 38.01 requires each party in an action to "deliver to all other parties a full copy of every expert report in the party's possession or power relating to any matter in issue in the action". Sub-rule 4 permits the Court to relieve a party from the obligation to deliver the report to that party's opponent where the party contends that its case "would be unfairly prejudiced by the disclosure of a particular expert report". Mullighan J. said:

"The rule provides for a significant change in policy. No longer may a party withhold from the other party or parties a report of an expert even though he does not intend to call that expert but rely upon the report in some other way. The policy of the rule is for full disclosure so that all matters relating to expert evidence are known to all parties and their experts well before the trial so as to permit the narrowing of the issues and the acceptance by the parties of expert evidence which was not in dispute. A consequence of the present procedure is that disclosure of an expert's report which in some respects is unfavourable to a party, may advance the case of the other party, tactful withholding of reports is no longer permissible. Such a policy may be clearly discerned from the rule and is consistent with the purpose of expert evidence, namely to assist the Court with respect to matters which are not within the knowledge or experience of ordinary people."

(1992) 163 LSJS 380, 382

"The Master concluded, correctly in my view, that the new rule, being procedural in nature, operated retrospectively. This conclusion is not challenged in this appeal. When the rule was made it was envisaged that it would operate in relation to all pending actions as it contains no provision excluding retrospective operation."

Rule [39.39C] of the Rules of the Supreme Court of Queensland requires inter alia a plaintiff to disclose to the defendant:

"(f) All documents in the plaintiff's possession or power relating to the plaintiff's injury, loss (including economic loss) and treatment and without limiting the generality of the plaintiff's obligation the statement shall disclose -

(ii) documents if any concerning the refund of workers's compensation payments, social security benefits or any similar payments; ..."

Rule [39.29D] imposes similar obligations of disclosure upon defendants. Counsel for the Commission referred us to no authorities dealing with Rule [39.29C]. They did however, refer to Kitching v Millaquin Sugar Co Pty Ltd [1992] 1 Qd R 194 where Senior Master Horton QC held, not surprisingly that surveillance video was not comprised within the disclosure requirements of Rule [39.29D] even accepting that it was a "document" within the meaning of the Queensland Evidence Act 1977-1989. Mr Cavanough and Mr Middleton concluded in their supplementary submission:

"We respectfully submit that the very existence of the above mentioned provisions, and the observations on them made in the various cases referred to above, provide strong support for the procedure and application made by the respondent."

Mr Tobin who appeared with Ms Lloyd on behalf of the applicant, opposed the making of the orders sought by the Commission.

Mr Tobin's primary submission was that since under Section 51 of the VCAT Act the Tribunal in conducting the review "has all the functions of the decision maker", it would be wrong to furnish the Tribunal, save in exceptional cases, with material which would not have been available to the Commission as the primary decision maker. Proceedings in this Tribunal under the Transport Accident Act are frequently a prelude to proceedings in the County Court for damages. In an ordinary impairment assessment review pursuant to Section 46A typically the applicant's objective is to obtain an impairment rating of 30 percent or more to enable him to bring damages proceedings in the County Court. Under Section 47(7B) a worker injured in the course of his employment seeks to obtain an impairment assessment of 30 percent or more to enable him to bring common law proceedings. In the latter case, no impairment benefit is payable at all and there is no recovery unless the worker obtains an impairment rating in excess of 30 percent. Mr Tobin submitted it would be wrong in these circumstances to permit a disclosure in this Tribunal of material which would be privileged in the County Court. In his written submissions, Mr Tobin submitted that Section 80(3) should be regarded as directed to the respondent only, in the same manner as the Commonwealth Tribunal found was the case with respect to Section 37(2) of the Administrative Appeals Tribunal Act 1984.

Mr Tobin also submitted that Section 80(3) did not operate to override the doctor/patient privilege created by Section 28(2) of the Evidence Act 1958 at all. In his written submission he said:

"By applying principles of statutory interpretation in this case the maxim generalia specialibus non derogant, it is arguable that despite this general provision ... whilst the inquisitorial nature of the Tribunal is reflected in the Act the blanket ban on divulgence of doctor/patient discussions in all civil suits, actions and proceedings and the like under Section 28(2) of the Evidence Act was not only specific but in irreconcilable conflict with any provision in Section 98 [of the VCAT Act] that the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate and in Section 80(3)."

Finally Mr Tobin submitted since issues of privilege were substantive matters and not merely procedural, his client had a vested entitlement to rely upon the privileges asserted and that Section 80(3) would be regarded as having a purely prospective effect and not removing that accrued entitlement.

Mr Tobin said that if contrary to his submissions, Section 80(3) was to be regarded as empowering the Tribunal in this proceeding to require his client to disclose privileged material, the principles guiding the exercise of the discretion were such that no order should be made. He said that an order under Section 80(3) should be made against an applicant only in exceptional circumstances, for instance where evidence of a medical examination could not reasonably be obtained from any other source. He gave the example of an applicant who had been killed by some unrelated matter and whose compensation claim was being pursued by his estate. There may be other instances where evidence of an examination at a particular date may be of crucial importance relevant to an issue of causation. In the ordinary case however, the Commission had its powers of compulsion to require applicants to be examined by its own experts and accordingly it was equipped to obtain the evidence that it needed to put before the Tribunal. If it appeared that an applicant relying upon privilege was withholding apparently relevant medical reports, the Commission was at liberty to invite the Tribunal to draw adverse inferences along the lines of those referred to by the High Court of Australia in Jones v Dunkel (1959) 101 CLR 298 and by the Supreme Court (Full Court) in O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916.

According to Mr Tobin sub-section (3) of Section 80 could only be properly construed in light of sub-section (1) which is in the following terms:

"(1) The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding."

According to Mr Tobin an order under sub-section (3) should only be made where it was a demonstrated necessity.

In addition, Mr Tobin submitted that the words "despite ... any rule of law relating to privilege or the public interest ..." contained in Section 80(3) were not apt to overrule a statutory privilege such as the one created by Section 28(2) of the Evidence Act. He submitted that this phrase was apt to deal only with non-statutory privileges. The words which were apt to overrule a purely statutory privilege were to be found in Section 124(3) of the Transport (Rail Safety) Act 1996 which says:

"(3) This section has effect despite anything in any Act or rule of law to the contrary."

In our view the Commission's applications must fail. The transition from the old regime of the Administrative Appeals Tribunal established by the Administrative Appeals Tribunal Act 1984 to this Tribunal established by the VCAT Act 1998 is provided for in the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998. Section 312 of that statute enacts that Schedule 2 of the statute will make provision for these transitional matters. The present proceedings are dealt with in Clause 9 of Schedule 2 which provides inter alia:

"1. If immediately before the commencement day a proceeding in relation to a Tribunal matter was pending before a former Tribunal [this includes the old Administrative Appeals Tribunal] but the former Tribunal had not begun to hear that proceeding or had begun to hear it but had not been given evidence on any material question of fact, the proceeding is to be heard and determined by the new Tribunal and for that purpose -

(a) The proceeding is to be taken to have been commenced in the new Tribunal; and

(c) The procedure that applies to the proceeding on and after the commencement day is the procedure prescribed by the VCAT Act and the rules made under it in relation to that class of proceeding; and

(e) The new Tribunal has only the power, functions and duties which the former Tribunal would have had in relation to the proceeding under the enabling enactment and the Act by which the former Tribunal was established had the commencement day not arrived."

As previously noted, the orders sought by the Commission could not have been obtained from the old Tribunal. It is only if, according to the provisions just recited, Section 80(3) is to be regarded as applying to the present proceeding that the Commission can succeed in its application. Mr Cavanough QC, submitted that the making of an order for production of documents against a party is properly to be regarded as a procedural matter and accordingly sub-paragraph (c) of Clause 9(1) should render the provision of the VCAT Act applicable. He noted that Section 80 is to be found in Part 4 of the VCAT Act headed - "The Tribunal - General Procedure" and in Division 4 of that part headed "Preliminary Proceedings".

In a general sense an order for production of documents by a party is a procedural matter. It is obviously convenient and logical to place such a provision in the part of the Act dealing with procedure, but is that the end of the matter? Mr Cavanough did not submit that matters of privilege were to be regarded as purely procedural.

In our view his concession was clearly correct. In Reid v Howard (1995) 184 CLR 1, 11 the High Court considered the operation of the privilege against self-incrimination. It set aside orders made by the New South Wales Court of Appeal requiring a party to answer self-incriminating questions subject to directions limiting the use which could be made of those answers. In a joint judgment Toohey, Gaudron, McHugh and Gummow JJ said:

"As there was no appearance for the respondents, it is appropriate to state that the Court of Appeal was correct in its conclusion that the appellant is entitled to make and maintain his claim of privilege and to indicate why this is so. The privilege which has been described as a "fundamental ... bulwark of liberty" is not simply a rule of evidence, but a basic and substantive common law right."

The passage which I have already quoted from the judgment of Deane J. in Maurice's case was to the same effect with respect to legal professional privilege. In Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, 127 Dawson J. said of this privilege

"But it became firmly established in the modern in which it is expressed, not merely as a rule of evidence but as a matter of public policy with a natural application wherever compulsory disclosure of evidence is involved, whether in judicial proceedings or not."

Professor Campbell in her work "Rules of Court" (1985) observed:

"Thus a plaintiff and a personal injuries claim may (absent statutory provisions to the contrary) resist requests by the defendant to produce medical reports obtained by him, on his behalf, for the purpose of ascertaining whether he should litigate or for the purpose of assisting the preparation of his case, even though such reports being adverse to the plaintiff might assist the defendant in his defence.

... the clear implication to be drawn from the English Court of Appeal's decision in Warral v Reich [1955] 1 QB 296 and Causton v Mann Egerton (Johnsons) Ltd [1974] 1 WLR 162 is that a delegated power to make rules respecting the practice and procedure of a court would not authorise the adoption of rules which themselves require to empower a court to require that privileged documents be produced to other parties."

This is all obviously correct. Were it otherwise, the old Tribunal under its power to regulate its own procedure would have been able to make ad hoc directions and issue practice notes or directions overriding privilege. Mr Cavanough did not submit that such could be done. He conceded that Practice Direction 4A (now Practice Note GEN3A) was at pains within the context of establishing a "cards on the table face up" regime to avoid purporting to override any privileges. Likewise in Loknar's case Deputy President Breen of the Commonwealth Administrative Appeals Tribunal made an observation to the same effect.

"Indeed, the general practice direction and the medical practice direction made by the Tribunal's President, Justice D.F. O'Connor, concern themselves with that widespread practice and sensibly so. [That is the practice of putting the cards on the table face up.] There is nothing in any part of that, however, which can defeat a claim of legal professional privilege when it is properly made."

How then can it be contended that a direction or power to give a direction which overrides and removes substantive privilege rights is a mere matter of procedure? Mr Cavanough said that while the production of documents was procedural the overriding of privilege might be substantive. The primary operation of Section 80(3) was to authorise the giving of procedural directions for the production of documents. The fact that the process incidentally entailed the overriding of privilege was neither here nor there in his submission. We cannot agree. What Section 80(3) does is to create a composite power, a power

(b) to override that party's privilege to the extent necessary.

This composite power must be viewed in its totality and viewed in its totality it is not a matter of mere procedure. If it were possible, contrary to our view to regard the sub-section as containing two severable powers, namely one to require production of documents and the other to override the privilege, the first might be regarded as purely procedural but the second would be clearly non-procedural. It would be possible to achieve the result sought by the Commission only if both parts of the two-fold power were exercised.

Mr Cavanough in his supplementary submission placed reliance upon the dictum of Mullighan J. in Piber's case quoted above to the effect that the Supreme Court rule there considered which overrode legal professional privilege with respect to legal professional privilege "being procedural in nature, operated retrospectively". One's initial reaction to this decision is to wonder how it is, in light of the principles which we have already quoted, that the Supreme Court of South Australia in its rule making power could override legal professional privilege. Does that Court take a radically different view on this subject to the one which seems to flow from the authorities and text to which we have already made reference? Certainly not. In Cleland v Boynes (1978) 19 SASR 464 the Full Court of the Supreme Court of South Australia (Hogarth ACJ, Bright and King JJ) upheld as valid the then Rule 126A of the Local Court Rules of South Australia which required disclosure of all medical reports upon which a party proposed to adduce in evidence. It held the rule valid, distinguishing a decision of the Ontario Court of Appeal in Circosta v Lilly (1967) 61 DLR (2d) 12. In Circosta's case the Ontario Court of Appeal held invalid a rule of court which required disclosure of medical reports whether they would be relied upon or not. It was this distinction, which it found prevented the rule from infringing legal professional privilege, which was decisive in the Court's decision to uphold the validity of the rule. In Taylor v Guttilla (1992) 59 SASR 361 a Full Bench of the Supreme Court, King CJ, Legoe, Cox, Olsson and Mulligan JJ held that a revised version of Rule 126A which required disclosure of medical reports whether the disclosing party intended to rely upon it or not, to be ultra vires and invalid. King CJ contrasted the revised rule with the one upheld as valid by the Full Court in Cleland v Boynes, observing

"The present rule is much more drastic. It requires the production of reports irrespective of whether the author is to be a witness or the report used in the litigation. It applies to all reports where there is any issue concerning injury and illness and the only exception is an exempting order on the ground of undue prejudice. Legal professional privileges directly abrogated with respect to a wide class of documents disengaged or any connection which they might have with evidence to be given in the case. The only choice of the party, if he is to preserve privilege, is to discontinue the action or defence. The invasion of the substantive right is direct and substantial.

Procedure, as I pointed out in Karasaridis v Castoria Fur Products (1985) 37 SASR 345, 350, is the means by which substantive rights are enforced or protected. The rule in question in the present case is undoubtedly related to the method of conduct of litigation with respect to substantive rights and is therefore ex faci procedural. I have reached the conclusion, however, that the invasion of the substantive legal right of legal professional privilege, is so direct and so substantial, that the rule cannot be held to be "reasonably proportionate to the pursuit of the enabling purpose" namely the regulation of pleading practice or procedure. Properly characterised therefore it is not a rule for that purpose and is beyond the rule making power of the Chief Judge."

(1992) 59 SASR 361, 367-8

The Court unanimously held the rule to be invalid. How then did the same Court come to make the rule relied upon by Mr Cavanough and conceive that it was valid? This matter was taken up by Olsson J. He remarked:

"It is at once apparent that this appeal raises issues of considerable practical importance concerning the rule-making power not only in relation to the District Court but, potentially, the Supreme Court, although there are some important differences of statutory context and the rule expression related to the matter, which may well raise some other considerations."

(1992) 59 SASR 361, 375

His Honour then referred to Section 72 of the Supreme Court Act 1935 of the State of South Australia (as it then stood) and remarked:

"Secondly, s.72, having conferred power on three or more judges to make rules, inter alia, or regulating "the pleading practice and procedure of the Court in any jurisdiction" requires rules, when made, to be laid before both Houses of Parliament. It provides that subject to disallowance by either House, rules are to have the force of law, be judicially noticed and "be conclusively deemed to be valid".

This last "deeming" provision appeared in Section 72(4). The learned Chief Justice referred to Section 72(4) observing that it:

"Must have an important bearing on the validity of any rule of the Supreme Court which might otherwise be thought to be beyond power. I suppose that its purpose is to relieve the Supreme Court of the responsibility and necessity of adjudicating upon the validity of its own rules. There are, in the circumstances postulated, conclusively deemed to be valid. There is no such provision with respect to rules made under the Local and District Criminal Courts Act, and the invalidity of such a

rule does not necessarily imply the invalidity of a corresponding rule of the Supreme Court."

(1992) 59 SASR 361, 368

It is interesting to note that by the Statutes Amendment (Attorney-General's) Portfolio Act 1994 the South Australian Parliament repealed the conclusive deemed validity of Rules of the South Australian Supreme Court. The amended Section 72(4) merely provides that rules of court made under the section take effect from the date of publication in the gazette or on some later date specified in the rule. The Honourable S.J. Baker, Deputy Premier, in moving the second reading of the Bill in the Legislative Assembly on 5 May 1994 said:

"Section 62(h) and 72 of the Supreme Court Act 1935 provide for the gazettal and tabling of rules of court. The present provisions provide similarly to Section 10 of the Subordinate Legislation Act 1978 that the rules must be tabled in Parliament within 14 sitting days.

The sections are amended to remove the provisions about gazettal and tabling - the provisions of the Subordinate Legislation Act will then apply as they do to rules of court made under the District Court Act and the Magistrates' Court Act."

(See pages 1070 and 1071 of the relevant volume of the South Australian Hansard)

The purpose of this amendment seems to be not to call into question the validity of the Rules of the Supreme Court or render them open to a challenge to which they would not otherwise be open but merely to change the procedure and dispense with the requirement for tabling in Parliament before they take effect. Presumably Section 72(4) in its original terms would continue to apply to rules made whilst it was in force.

We have not troubled to carry out a similar analysis as to the history of the Rules of the Supreme Court of Queensland referred and relied upon by Counsel for the Commission. There is in our view much force in the submission that they apply in a different context. In particular they operate in a State where there is no statutory doctor/patient privilege.

One is left nevertheless with the paradox that Mulligan J. in Piber's case treated as procedural for the purposes of the presumption against statutory retrospectivity, rules of court which overrode legal professional privilege. In Taylor v Guttilla he concurred in the unanimous decision of a five judge bench to the effect that the operation of such a rule was not merely procedural. Taylor's case was heard and determined later in 1992 than Piber's case and as a decision of a five judge Full Bench was of higher authority.

It remains to consider however whether the concept of procedure and "procedural" are of identical content in the following different contexts:

(a) For the purposes of the rule against statutory retrospectivity (compare Piber's case);

(b) For the purpose of considering the scope of the traditional rule making power of a court (Taylor v Guttilla); and

(c) In Clause 9(1)(c) of this Tribunal's transitional provisions - which is the key context for our purposes.

In our view there is a significant distinction between the concept of a "procedural" requirement for the purposes of fixing the scope of a court's rule making power on the one hand and for the purposes of the presumption that statutory provisions affecting substantive rights are not retrospective but those affecting procedural matters are. As Professor Campbell in her book on Rules of Court (1985) notes

"There can be little doubt that [a court's rule making power] would not be held to permit changes to be made in rules as to who is a competent and compelable witness ..."

Yet for the purposes of determining whether a statutory provision is deemed retrospective, rules as to competence and compelability are treated as procedural. In R v Boland [1974] VicRp 100; [1974] VR 849 the Full Court (Adam, Little and McInerney JJ) considered an appeal against a conviction for kidnap contrary to Section 63A of the Crimes Act 1958. At the time the alleged offences were committed an accused person's wife was not a compelable witness to give evidence against him in a prosecution for that offence. The Crimes (Amendment) Act 1973 amended Section 400(3) of the Crimes Act 1958 so as to add the offence of kidnapping contrary to Section 63A to the occasions upon which an accused man's wife could be compelled to give evidence against him and Mr Boland's spouse was accordingly compelled to give evidence at his trial. This was relied upon as a ground of appeal against his conviction, it being submitted that to apply the amended version of Section 400 was to offend against the presumption against retrospectivity in relation to statutes affecting substantive rights. The Court rejected this submission saying:

"We are satisfied that there is no sufficient ground, by reason of this cannon of statutory construction, or qualifying the general language of s.400(3) as amended by Act No. 8410, so as to exclude from its operation the case of a wife who had married the accused for the case of a kidnapping which had not occurred before Act No. 8410 came into operation. The rule of construction in question is one for the protection of what may, for relevant purposes be described as "vested rights", the depravation of which would smack of injustice. The rights envisaged are "substantive rights" as distinct from what may be loosely described as "rights" of a merely procedural or evidentiary nature. The law does not recognise "vested rights" against subsequent changes in the general law affecting procedure or evidence: see per Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 at p.69. Hence the general statement of the canon statutory construction against retrospectivity has no application to statutes merely of a procedure or evidentiary character."

See also R v Murray [1886] NSWLawRp 55; (1886) 7 LR(NSW) 361 and Professor Campbell's work at the same page.

The concept of what is "procedural" as distinct from what is "substantive" is chameleon like depending upon context. For the purposes of the presumption against retrospectivity, provisions as to the quantum of damages have been held substantive rather than procedural. See Przetak v Metropolitan (Perth) Passenger Transport Trust [1961] WAR 2; Kraljevich v Lake View and Star Limited (1945) 7 TCLR 647; John Holland Constructions Pty Ltd v Hall (45 NTR 11); J. & P. Lemming Holdings Pty Ltd v O'Keefe [1984] VicRp 79; [1984] VR 1005. Nevertheless, when deciding whether a rule was procedural so as to be governed by the lex fori in accordance with the rules of international law, a majority of the High Court of Australian in Stevens v Head [1993] HCA 19; (1992) 176 CLR 433 held that Section 79 of the Motor Accidents Act 1988 restricting the amount that a plaintiff could recover for non-economic loss suffered as a result of a motor car accident was procedural rather than substantive. So when a claim was brought in Queensland in relation to a motor accident occurring in New South Wales, the New South Wales restrictive provision not being part of the lex fori did not apply to the assessment of damages.

What then is the proper construction of Clause 9(1)(c) of the Second Schedule to the Tribunals and Licensing Authorities (Miscellaneous Amendment) Act 1998? It requires the application of the "procedure" prescribed by the VCAT Act and the rules made under it. In our view, the "procedure" there referred to is procedure in the narrower sense, viz. the class of matters which are susceptible of a court's rule making power. The specific reference to rules made under the VCAT Act fortifies us in this view. Accordingly we reject the Commission's submission that the application of Section 80(3) is governed by Clause 9(1)(c).

Concluding that Clause 9(1)(c) of the transitional provisions does not apply to Section 80(3) is it affected by Clause 9(1)(e)? The sub-section is not, in our view, apt to create what might be described as either a "function" or a "duty". It is however properly described as creating a "power". The expression "power" is one frequently considered by courts in the context of powers of appointment and "fraud on powers" and the like. Our researches have not disclosed any apposite judicial statement as to statutory powers relative to matters of procedure or privilege. The following meanings from the Shorter Oxford Dictionary seem relevant:

"1. Ability to do something or anything, or to act upon a person or thing.

2. Ability to act or effect something strongly; physical or mental strength; vigour, energy; force of character; effect.

3. Active property; capacity of producing some effect.

4. Possession of control or command over others; dominion; government; sway; authority"

These definitions aptly describe what it is that Section 80(3) authorises and what the Commission seeks to invoke. In those circumstances, since the old Tribunal it is conceded did not have the power to make the orders sought, the Commission's application must be refused.

This is sufficient to dispose of the matter. Nevertheless, since it has been argued at some length, we think it appropriate to express our views upon what the fate of the application would have been had it not failed on the basis of the transitional provisions.

We deal first with Mr Tobin's submissions that the words in Section 80(3) are insufficiently precise to exclude the statutory doctor/patient privilege and that in any event since the provisions authorise the overriding only of "rules of law" as distinct from provisions of any statute, they do not authorise the overruling of a purely statutory privilege. We reject both those submissions. Deputy President P.W. Johnston of the Administrative Appeals Tribunal considered a similar fray in Section 37(3) of the Administrative Appeals Tribunal Act 1975 of the Commonwealth. He said:

"Mr Sonter, relying on statements of the majority in Baker v Campbell asserts that S.37(3) is insufficiently precise to exclude the claim of legal professional privilege. That, with respect, is clearly not tenable. The logical consequence of reading Subs (3) so literally is that no rule or privilege would be excluded since no specific reference is made to any other kind of privilege such as the rule against self-incrimination. Whilst there is a lack of specifics as to the kinds of privilege abrogated by S.37(3) it is not infected with the same kind of generality that caused French J. to say when discussing S.263 of the Income Tax Assessment Act: "In my opinion Baker v Campbell leaves no room for the proposition that the mere generality of the language of S.263 will displace legal professional privilege": FCT v Citibank_"_

(1991) 22 ALD 393, 398-9

In our view the same language used in Section 80(3) is sufficiently precise to deal with privilege generally and this is what Deputy President P.W. Johnston meant in McMaugh's case.

The next submission raises more interesting questions. Mr Tobin said that his researches and those of his junior did not disclose any useful authority upon the meaning of the phrase "rule of law". The only authority to which he could refer us was an unreported decision of the Administrative Appeals Tribunal of the Australian Capital Territory in the matter of Fahey v Psychologists Board of the Australian Capital Territory. Professor L.J. Curtis, President of the Tribunal, considered the meaning of the phrase "rule of law" in Section 37 of the Administrative Appeals Tribunal Act 1989 of the Territory which appears to be in the same terms as Section 37(3) of the federal Act. Professor Curtis concluded that this provision was apt to override any legal professional privilege which might attach to a document which otherwise had to be lodged pursuant to Section 37.

The word "law" is an expression frequently used and likely to bear different meanings in different contexts. The expression "rule of law" if made the subject of a computer search would be more likely to yield material relative to democratic government than to the issues now in hand. To move through reported decisions and serendipitously pick up references whether with the aid of a computer search or not, is in our view ultimately pointless. The meaning of a phrase such as "rule of law" or the word "law" is likely to differ according to its context. To give but two examples, in the famous and much criticised decision Watt v Westhoven [1933] VR 458 the Full Court of the Supreme Court of Victoria held that the phrase "the rules of the common law including the law merchant" appearing in Section 4 of the Goods Act 1928 did not include the rules of equity. In Re North Brisbane Finance and Insurances Pty Ltd (1983) 50 ALR 547, 549 speaking of the Commonwealth Shipping Registration Act 1981, McPherson J. (as he then was) said:

"It is, I consider, not open to doubt that the Commonwealth Act fulfils the description of "a law in force in the State relating to title to ships" [a phrase used in the Companies Code]. Even though it is not an enactment of the State Parliament, it nevertheless certainly is a law in force in the State."

In His Honour's view the word "law" was clearly wide enough to cover statutory law. More generally when in popular speech something is said to be "against the law" it is no less against the law if the law is the common law or a codifying provision in the Crimes Act. What then is the context in which the present phrase appears? It comes ultimately from the 1975 federal enactment. There were no federal statutory privileges in existence in 1975. For the reasons given in Brown's case a State statutory privilege could not apply in a federal tribunal. In our view the phrase "rule of law" in the 1975 Commonwealth Act and in Section 80(3) of the VCAT Act is intended to cover all rules which have the force of law whether they be common law rules, equitable rules, rules of the law merchant or statutory rules. Considering the available rules of law as to privilege and public interest immunity, the only present sources of rules on that subject are the common law and statute. There is no reason to think that Parliament intended to distinguish between these two sources. If it had sought to draw the distinction one would have expected that it would have made its intention clear in some fashion.

We reject the submission that because the Transport Accident Commission as a primary decision maker lacks the power to require production of privileged documents this Tribunal should not exercise such a power.

According to Section 51(1) of the VCAT Act this Tribunal has not only the powers of the original decision maker but also all functions bestowed by the VCAT Act, Regulations or other statutes. One obvious power possessed by the Tribunal but not y the Commission is the power to subpoena witnesses.

Since any document produced under compulsion of an order under Section 80(3) would be subject to an implied undertaking that it not be used for non-Tribunal purposes it could not be misused in subsequent Count Court proceedings without contempt of the Tribunal; Otter v McDonald (1997) 147 ALR 322 (Sundberg J.)

It follows that absent the operation of the transitional provisions, we would regard this as a proper occasion for the Tribunal to consider making an order under Section 80(3) of the VCAT Act. What principles would inform the decision whether to make the order or not? The introduction of the word "may" is apt to render the power discretionary. See Section 45 Interpretation of Legislation Act 1984. Whilst our minds have fluctuated on the point, ultimately we accept the force of Mr Tobin's submission that sub-section (3) must be read in light of sub-section (1). Sub-section (1) bestows the general power to give directions upon the Tribunal. Sub-section (3) deals with giving directions "under this Section" which we take to be an elliptical phrase meaning "give directions under the foregoing provisions of this Section". Unless a link back to the earlier sub-section were intended, the phrase would be entirely redundant. Accordingly, a direction should only be given if it is "necessary for the expeditious or fair hearing and determination of the proceeding". The criterion of necessity does not however erect a very high bar to surmount. We accept the statements made by the Law Reform Commission and the general statements as to the Tribunal's function that its proceedings have a primary objective to get to the truth and the public interest favours all probative evidence being made available. Nevertheless there are counter-vailing public interests. Accepting that the medical reports now sought are not part of the "core" portion of legal professional privilege, the process of obtaining legal advice and preparing a case for hearing in the Tribunal may be prejudiced if orders of this type are made as a matter of course. All courts and tribunals sitting in personal injury compensation jurisdictions note that medico-legal experts are frequently typecast as "applicant's doctors" or "respondent's doctors". Without suggesting any lack of integrity on the part of such practitioners it is obvious that either through personality or habit these typecast experts almost invariably see matters wholly from the point of view of the party which engages them. People sitting infrequently in personal injury compensation jurisdictions find in the long run the evidence of such practitioners of little value. The experts whose opinions command support are those who seem willing to express opinions in accordance with the substantive merit and who when confronted with material pointing away from their previously expressed opinions are prepared to give that material due consideration and perhaps modify their opinions. It is in the interests of truth that applicants be encouraged to consult experts of the latter rather than the former type. Their evidence is more likely to assist the quest for truth.

If the Commission can expect to obtain provision of reports such as these as a matter of course it is likely that applicant's advisors will avoid the risk of the inconveniently candid expert and direct their clients only to typecast "applicant's experts". Mr Tobin suggested with some plausibility, that applicant's practitioners may also resort to tactics such as asking medico-legal experts to provide a preliminary report by telephone and only then seeking a written report if the preliminary report seems satisfactory. Again, particularly in circumstances where what happened at particular examinations at particular times may be relevant to issues of causation or progress of disability anything which deters the making of comprehensive contemporaneous records of examinations would appear to be antithetical to the quest for truth.

Had Parliament intended to do away with privilege in the Tribunal, it could have said so. In Section 105 it went close to abolishing the privilege against self-incrimination. We conclude that in the ordinary circumstance, an applicant should be entitled to rely upon the privileges which would otherwise be available to him and that Section 80(3) is to apply only in unusual cases such as those suggested by Mr Tobin, namely an injury claimant killed by an unrelated cause, for the compensation claim being prosecuted by a deceased estate or a matter in which evidence of what was found on an examination at a particular time is of crucial importance on a causation issue. The circumstances which would justify the making of such orders are, like the categories of negligence, never closed. Particularly since we have already disposed of this matter on other grounds it would be injudicious for us to seek to go further. We do however indicate that the making of an order under Section 80(3) and the overriding of an applicant's otherwise available privileges should be regarded as the exemption rather than the rule.

We should add that we would not regard the rules of court from Queensland and South Australia relied upon by the Commission or any decisions made with respect to their operation as providing a useful guide as to the operation of Section 80(3). In both cases these rules create a prima facie obligation to disclose otherwise privileged material. The South Australian rule makes express provision for the Court to relieve a party of the obligation to disclose privileged information if that party would be subjected to unfair prejudice. Section 80(3) makes the disclosure discretionary. It would be wrong to suggest that the mere fact that the power is discretionary in itself creates a presumption against its exercise but it is clear that the presumption existing in the interstate rules that as a matter of course privileged information will be disclosed is entirely absent.

I certify that this and the preceding 33 pages are a true and correct copy of the decision of Judge Wood, Vice-President and Mr Michael Francis Macnamara, Deputy President.

FOR THE APPLICANT : Mr T. Tobin and Ms R. Lloyd

FOR THE RESPONDENT : Mr A. Cavanough, QC, and Mr R. Middleton

Accident Compensation Act 1985

Administrative Appeals Tribunal Act 1984

Commonwealth Administrative Appeals Tribunal Act

Commonwealth Judiciary Act 1903

Section 79

Commonwealth Shipping Registration Act 1981

Crimes Act 1958

Section 63A

Crimes (Amendment) Act 1973

Evidence Act 1958

Goods Act 1928

Interpretation of Legislation Act 1984

Section 45

Motor Accidents Act 1988

Section 79

Statutes Amendment (Attorney-General's) Portfolio Act 1994

Subordinate Legislation Act

Supreme Court Act 1935

Section 72

Transport Accident Act 1986

Section 77

Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998

Victorian Civil and Administrative Tribunal Act 1998-09-11

Andasteel Constructions Pty Ltd v Taylor [1964] VicRp 17; [1964] VR 112

Attorney-General (Northern Territory) v Maurice [1986] HCA 80; (1986) 161 CLR 475

Baker v Campbell [1983] HCA 39; [1983] 153 CLR 52

Bausch v Transport Accident Commission (1996) 11 VAR 117, 138

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Carusi v Housing Commission [1973] VicRp 19; [1973] VR 215

Causton v Mann Egerton (Johnsons) Ltd [1974] 1 WLR 162

Circosta v Lilly (1967) 61 DLR (2d) 12

Cleland v Boynes (1978) 19 SASR 464

Fahey v Psychologists Board of the Australian Capital Territory

Gleeson v Transport Accident Commission (1994) 6 VAR 217

Greenback v Secretary Department of Social Security (1986) 9 ALD 338

J. & P. Lemming Holdings PtyLtd v O'Keefe [1984] VicRp 79; [1984] VR 1005

John Holland Constructions Pty Ltd v Hall (45 NTR 11)

Karasaridis v Castoria Third Products (1985) 37 SASR 345, 350

Kaur v Australian Postal Commission [1991] AATA 128; (1991) 23 ALD 159

Kitching v Millaquin Sugar Co Pty Ltd [1992] 1 QdR 194

Kraljevich v Lake View and Star Limited (1945) 7 TCLR 647

Loknar v Secretary Department of Social Security (1992) 29 ALD 591

McMaugh v Australian Telecommunications Commission (1991) 22 ALD 393

O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916

Otter v McDonald (1997) 147 ALR 322

Piber Pty Ltd v A.W. Baulderstone Pty Ltd (1992) 163 LSJS 380

Przetak v Metropolitan (Perth) Passenger Transport Trust [1961] WAR 2

R v Boland [1974] VicRp 100; [1974] VR 849

R v Murray [1886] NSWLawRp 55; (1886) 7 LR(NSW) 361

Re North Brisbane Finance and Insurances Pty Ltd (1983) 50 ALR 547

Reid v Howard (1995) 184 CLR 1

Republic Gear Co v Borg-Warner Corp 381 F. 2d551

Republic of Costa Rica v Erlanger (1876) 3 Ch D 62

Stevens v Head [1993] HCA 19; (1992) 176 CLR 433

Veloviski v Telstra Corporation (1998) 26 AAR 454

Warral v Reich [1955] 1 QB 296

Watt v Westhoven [1933] VR 458

Windsor v Australian Postal Corporation [1991] AATA 36; (1991) 22 ALD 401