Tsiamis v Comcare

The evidence of Mr O'Shea - the missing link ? 13 Before the Tribunal, Ms Tsiamis was entitled to a "reasonable opportunity to present … her case": Administrative Appeals Tribunal Act s 39(1). 14 It is understood that an argument sought to be advanced by Ms Tsiamis is that she was denied a "reasonable opportunity" by reason of Mr O'Shea: (i) having not disclosed to the Coroner her presence on the roof of the lift when the accident occurred; and (ii) being unwilling to answer questions when he appeared before the Tribunal. 15 As to the former argument, it was common ground that Mr O'Shea had not been asked, when appearing before the Coroner, whether anyone else (and presumably Ms Tsiamis) was also riding on the roof of the lift when the accident occurred. The transcript of the proceeding before the Coroner was before the Tribunal and discloses no such question having been put. Whether any such question should have been put to Mr O'Shea is, with respect, of no immediate relevance. It was the evidence that was before the Tribunal that is presently under scrutiny. In the absence of any question having been put to Mr O'Shea during the Coronial inquiry as to Ms Tsiamis' presence at the scene of the accident, no question of Mr O'Shea having "lied" to the Coroner could arise for consideration by the Tribunal. But such was the submission of Ms Tsiamis on the occasion of the first directions hearing before this Court. That submission is rejected. 16 As to the latter argument, Ms Tsiamis had forwarded to the legal representatives of Mr O'Shea a series of questions she proposed to ask Mr O'Shea when her claim was being heard by the Tribunal. She was advised that Mr O'Shea would either "not comment" or would "not respond" to the proposed questions. Before the Tribunal the issue again emerged when the Tribunal member addressed the legal representative then appearing for Mr O'Shea and referred to the indication previously given that Mr O'Shea "will not respond to questions about the incident on 14 December 1981". The legal representative responded by stating that the Tribunal "could have heard more" but for the fact that no certificate could be given by the Tribunal pursuant to s 128 of the Evidence Act 1995 (Cth). The power to give a certificate protecting a witness from self-incrimination pursuant to that section is confined to a "court". That term is not defined. The Tribunal member then presumably acceded to that view and indicated that no question would be permitted as to "whether any other person was or was not present on that occasion". No question arose in the present proceeding as to whether the Tribunal was correct in its conclusion that a Tribunal was not a "court" and, accordingly, not empowered to give a certificate under s 128. That certainly has been the position adopted on at least one other occasion by the Tribunal: e.g., Re Hourani and Tax Practitioners Board [2012] AATA 518 at [8]-[11], 58 AAR 104 at 107. 17 The Tribunal further concluded that Mr O'Shea had a "reasonable excuse" for not answering questions on that topic and, presumably for that reason, would not be guilty of an offence in not answering questions: Administrative Appeals Tribunal Act s 62(4). 18 But any argument that in so proceeding Ms Tsiamis was denied a "reasonable opportunity" to be heard before the Tribunal is an argument without substance. 19 There is no denial of a "reasonable opportunity" for the purposes of s 39 of the Administrative Appeals Tribunal Act in circumstances where a witness properly invokes a privilege against self-incrimination. Although s 33(1)(c) of that Act provides that the Tribunal is not bound by the rules of evidence, that freedom does not carry with it the ability to require a witness to answer questions which (for example) may expose him to self-incrimination. The privilege against self-incrimination is "one deeply rooted in the law as a fundamental right": Griffin v Pantzer [2004] FCAFC 113 at [44], 137 FCR 209 at 228 per Allsop J (as his Honour then was) (Ryan and Heerey JJ agreeing). It is a privilege available generally "even in a non-curial context, as the foundation of an entitlement not to answer a question or produce a document": [2004] FCAFC 113 at [44]. A "reasonable opportunity" does not require a hearing in which a witness may be compelled to abandon a privilege the common law has long recognised. 20 Nor would it have been open for the Tribunal to have drawn an adverse inference from the fact that Mr O'Shea had indicated that he would decline to answer certain questions: Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 at 215-216, Spender J there observed: 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 cannot 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. 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 inference 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 equivalent to an unqualified admission of the truth of the question. 21 No denial of the opportunity guaranteed by s 39 of the Administrative Appeals Tribunal Act is thus exposed.

The remaining arguments 22 Ms Tsiamis, it was understood, also sought to identify a "question of law" by reason of her being denied a "reasonable opportunity" to be heard by reference to either: the medical practitioners who were called themselves being denied an opportunity to express an opinion upon the basis that Mr O'Shea would corroborate her account of being present on the lift when the accident occurred; or "new evidence" - being the material set forth in the transcript and findings of the Coroner. On either approach, the error was said to be ultimately found in Mr O'Shea not coming forward and acknowledging her presence at the time of the accident. 23 These further arguments are equally without substance. Ms Tsiamis, when initially making her claim for compensation on 6 June 2011, completed the form provided in part (without alteration) as follows: 25. What action, exposure or event happened to cause your injury or illness? Whilst standing on top of the lift, the mechanic at the back pulled a lever and fell off, consequently dying. I was witness to this incident & then went into shock immediately

Her own account as to what she maintained she had witnessed was thus available from the outset. The account provided by Ms Tsiamis to the medical practitioners who were called to give evidence was nevertheless more cryptic. She explained that she was fearful that a more expanded account may expose her to criminal proceedings. Before the Tribunal, however, she gave an account of her presence at the scene of the accident. She was not denied any opportunity to present her own account of where she was and what she was doing on 14 December 1981. She has not been denied any opportunity for her to provide her account and for medical practitioners to express an opinion based upon that account. 24 The Tribunal proceeded to resolve the claim for compensation upon the basis of the factual material then before it. In doing so it reached findings of fact which were open to it. There was, moreover, no "new evidence" now available which was not available to the Tribunal and not in fact placed before the Tribunal and considered by it. 25 No "question of law", accordingly, emerges from these further submissions. 26 A final matter which should (perhaps) be mentioned is whether Ms Tsiamis should be given an opportunity to question Mr O'Shea before this Court. His attendance could be secured by means of a subpoena. And, if compelled to attend, a certificate could then be given by this Court pursuant to s 128 of the Evidence Act. By that means Ms Tsiamis would be given the opportunity to question Mr O'Shea as to her presence at the scene of the accident and be given the opportunity she was denied before the Tribunal. There would, of course, be no point in seeking to adduce evidence from Mr O'Shea unless it was for the purpose of the Court itself making a finding of fact as to who was present on the roof of the lift at the time of the accident. 27 It is concluded that no such opportunity should be now extended to Ms Tsiamis because: there is no reason to question the findings of fact made by the Tribunal and no "question of law" has emerged. It is not open to the Court, so it has been said, to make findings of fact pursuant to s 44(7) of the Administrative Appeals Tribunal Act where no error of law has been exposed: Elbayeh v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 832 at [58] per Murphy J; or even if a "question of law" had emerged, the limited power conferred upon this Court by s 44(7)(a) is confined to those circumstances where the finding proposed to be made is "not inconsistent with findings of fact made by the Tribunal" - other than findings made as the result of an error of law: Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108 at [115], 168 FCR 272 at 299 per Greenwood J (Weinberg J agreeing). The finding of fact being urged upon the Court by Ms Tsiamis was that she was in fact present at the scene of the accident - that fact being contrary to the finding made by the Tribunal; or even if it were open to conclude that the Tribunal's state of satisfaction as to who was present at the time of the accident was in some way "infected" by some error or not "inconsistent" with the finding sought to be made by this Court, the power conferred by s 44(7) is discretionary and the discretion would not have been exercised in favour of making a finding of fact of such central importance to the decision-making process in the present case. Moreover, as submitted by Counsel on behalf of Comcare, the ultimate conclusion of the Tribunal was expressed as follows: CONCLUSION [91] For the reasons set out, we cannot be satisfied, on the evidence before us, that Ms Tsiamis was present on top of the lift at the time of the accident. Even if we were satisfied that she was, we are not satisfied that there was a causal connection between her employment and the serious illness that she developed many years later. [92] We affirm the decision under review. These conclusions supplement the conclusions previously expressed: [2013] AATA 319 at [29]. The entire focus on the part of Ms Tsiamis upon seeking to compel Mr O'Shea by one means or another to tell the Tribunal that she was present at the scene of the accident was thus largely misplaced - even had she been present, it was the conclusion of the Tribunal that there was no "causal connection between her employment and the serious illness that she developed many years later". But that further conclusion of the Tribunal does not completely address Ms Tsiamis' proposition that the medical evidence upon which the conclusion was founded was itself founded upon the medical practitioners not themselves having the benefit of Mr O'Shea's evidence as to who was in fact present. The further conclusion, however, goes some considerable way to placing a final obstacle in her pathway to success.

CONCLUSIONS 28 The appeal is to be dismissed. No reason has emerged to question the findings of fact and conclusions reached by the Tribunal. No "question of law" readily emerges from either the Notice of Appeal or the Amended Notice of Appeal and none has been discerned during the course of the oral submissions advanced this morning. 29 Costs should follow the event.

THE ORDERS OF THE COURT ARE:

1. The appeal is dismissed.
2. The Applicant is to pay the costs of the Respondent. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.