X (a pseudonym) v Secretary, Department of Education [2022] NSWIRComm 1041 | Case summary

Parties' submissions and evidence in the notice of motion

The respondent seeks to recall SLSO C about matters that arose in the proceedings subsequent to her oral evidence in the hearing and cross-examination by the respondent. The respondent states that the purpose of the request for further cross-examination is to provide SLSO C with the opportunity to respond to these matters as a matter of fairness.
The notice of motion is supported by an affidavit of Peter Willink, a Solicitor acting for the respondent, sworn and filed on 26 April 2022 and an outline of submissions, also filed on 26 April 2022 (RS). In his affidavit, Mr Willink deposes to the procedural matters leading up to the hearing. Mr Willink attaches to his affidavit, correspondence between the parties relating to the order in which witnesses will be called. Mr Willink states at [8]-[12]: "At 4:33 pm on 8 February 2022, I received an email from Madeleine McVie. In her email, Ms McVie attached a document entitled 'proposed order of witnesses'. Relevantly, the proposed order of witnesses included that [SLSO C] would give evidence on either Monday or Tuesday with an estimated length of two hours. … At 2:56 pm on 9 February 2022, I replied to Ms McVie's email from the day prior and attached an amended proposed order of witnesses. In that email, we proposed that [SLSO C] would be the fourth witness for the Respondent and the last witness for the Appellant. In other words, [SLSO C] would be required to give evidence on two separate days. … At 6:39 pm on 9 February 2022, Ms McVie respondent to the email I had sent her earlier that day and attached a further amended proposed order of witnesses. In the body of her email, Ms McVie wrote, 'We note we would prefer [SLSO C] evidence to be cross examined on the same day.' … At 4:20pm, on 10 February 2022, I responded to Ms McVie's email. In the body of my email, I wrote: 'We note the preference for [SLSO C's] evidence to be cross examined on the same day. The Respondent is agreeable to [SLSO C] being cross examined on Tuesday by both the Appellant's representative and the Respondent's representative provided the Respondent is granted to leave to re-call [SLSO C] for further cross-examination if it considers it appropriate to do so. … I do not recall receiving a response to my email of 10 February 2022 nor have I been able to locate a response in my email inbox in preparing this affidavit.'"
Mr Willink also attached correspondence, commencing 1 March 2022 between the parties with respect to the respondent's intention to recall SLSO C. This included a response from the appellant's representative on 2 March 2022 where it was stated: "We acknowledge there was an agreement between the parties that [SLSO C] may be recalled if there was new evidence from the Appellant in regard to evidence given by [SLSO C], that [SLSO C] did not have the opportunity to respond to."
Mr Willink affidavit states that no such qualification was given to the agreement that the respondent could recall SLSO C for further cross-examination.
Although the factual circumstances relating to the parties agreement is not in contest, the parties disagree about the effect of the agreement.
The respondent submits that there are three key reason the notice of motion should succeed. Firstly, because it was agreed between the parties that SLSO C could be recalled for further cross-examination by the respondent. Secondly, because the respondent wishes to ask questions of SLSO C, given the following matters [RS at 3b]: i. evidence emerged after SLSO C gave evidence that appears to be inconsistent with evidence SLSO C gave; ii. much of the evidence given by the appellant was new and SLSO C has not been given an opportunity to respond to it; iii. the Commission may make findings of credit that are against SLSO C in light of the inconsistencies; iv. the appellant said SLSO C's evidence was "untruthful' though the proposition was never put to SLSO C; v. the respondent wishes to put a number of propositions to SLSO C in light of the evidence of the appellant and other witnesses as a matter of fairness in support of its submissions in light of the new evidence; vi. SLSO C provided a statement for both parties. Under s 100G(2) of the Act, as SLSO C also gave evidence on behalf of the appellant in response to the respondent's case, SLSO C would have been given an opportunity to respond to the matters if the usual course were followed but the respondent lost that opportunity at the appellant's request.
Thirdly, the respondent submits that neither party will suffer any prejudice if the leave is granted to recall SLSO C.
During the hearing of the notice of motion, the respondent submitted that the three areas they wished to cross-examine SLSO C relate to the following topics (Tcpt, 24 May 2022, pp 46 (35) - 48 (24)): a. The chair was only utilised by SLSO B in 2011 and/or 2012. b. The chair was removed from storage by the appellant in 2016 for the use of two specific students who were at the "pre-kindy" stage of their schooling; and c. In light of the discrepancies in her evidence when compared to that of other witnesses, her evidence should not be believed and/or shouldn't be accepted.
The appellant filed submissions with respect to the notice of motion on 17 May 2022 (appellant's submissions or AS).
With respect to the agreement regarding when SLSO C would be called, the appellant submitted (at [6] of AS): "The appellant proposed that [SLSO C] give evidence on one day. The respondent agreed but with capacity to recall [SLSO C] if required. The appellant agreed. It was entirely appropriate for both parties to reserve their positions in regard to recalling [SLSO C] as both parties did not know what [Student AB's] evidence was. If there was any new evidence arising from [Student AB] that caused any unfairness to either party, SLSO C would be recalled during the hearing."
The appellant argues that the respondent's submission that SLSO C was unable to respond to the appellant's evidence prior to or during the hearing because of the new evidence emerging during her course of cross-examination, should be rejected: AS at [31].
The appellant submits that there is no prejudice to the respondent if their notice of motion is dismissed and indeed, none is asserted by them in their submissions. On the other hand, the appellant argued that she would be prejudiced by SLSO C being recalled, including in respect of the expense involved in further hearing time.
Further, the appellant submitted that the reasoning relied upon by the respondent to seek to recall SLSO C could equally apply to other witnesses and the only reason for the agreement was in respect of the potential unfairness associated with "fresh evidence" arising from the witness evidence of Student AB (who was called after SLSO C).
The appellant concluded that (AS at [36]): "The tribunal would not permit a party to re-open its case simply because its witness did not have an opportunity to respond to the evidence of another witness, otherwise proceedings would become inefficient and infinite. The unfairness resulting to the appellant because of such an approach is real and significant."
For these reasons, the appellant submits the notice of motion should be dismissed.

Consideration

The Commission has the power to allow the respondent to recall SLSO C for further cross-examination: see ss 162 and 163 of the IR Act. Relevant to this notice of motion, s 162 of the Act provides: "162 Procedure generally (1) The Commission may, subject to this Act, determine its own procedure. (2) The Commission - (a) is to act as quickly as is practicable, and … (c) may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (d) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and ….
Section 163 of the Act provides: 163 Rules of evidence and legal formality (1) The Commission - (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) (Repealed)
Although the Commission is not bound by the rules of evidence, the Evidence Act 1995 (NSW) and related jurisprudence is often instructive in deciding the most appropriate and fair approach to questions relating to evidence.
Section 46 of the Evidence Act provides: 46 Leave to recall witnesses (1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and - (a) it contradicts evidence about the matter given by the witness in examination in chief, or (b) the witness could have given evidence about the matter in examination in chief. (2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.
Section 192 of the Evidence Act provides: 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account - (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
The general rule with respect to the question of whether the Commission should grant leave is whether or not it aligns with the interests of justice: see Workcover Authority of New South Wales (Inspector McMartin) v Transfield Pty Ltd t/as Transfield Maintenance [2000] NSWIRComm 190 (7 September 2000) per Hungerford J at [11]; see also Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 in the context of whether leave should be granted to reopen a case after it has concluded. Although there is no closed list of matters that might be relevant in considering if it is in the interests of justice to allow a witness to be recalled after they have concluded giving evidence, in my view, the criteria contained in ss 46 and 192(2) of the Evidence Act are instructive.
The respondent argued that the Commission should grant leave to recall SLSO C for further cross-examination because the parties had agreed to this course in the context of discussing when and how SLSO C would give her evidence prior to the hearing of the matter. Specifically, the respondent argued that the parties had agreed that the appellant would not oppose the respondent seeking to recall SLSO C if it decided this was necessary. The final correspondence in that chain of communication is from the respondent to the appellant on 10 February 2022: see [12] above. The respondent clearly places a caveat upon their agreement that SLSO C being called only once, that they be able to recall her for further cross-examination if it considers it appropriate to do so: see PW-5.
The appellant's submissions suggested that the agreement, though made, was only for the purpose of averting unfairness that may arise as a consequence of Student AB not providing a witness statement, but instead being called to give viva voce evidence after SLSO C. There is no evidence to support this contention and it is not possible or appropriate for the Commission to read this into the agreement. In retrospect, it would have been prudent for the correspondence to be "closed off", with either a confirmation and/or clarification of the terms placed upon the agreement by the respondent and/or appellant. I find that there was an agreement that the appellant would not object to the respondent recalling SLSO C for further cross-examination, subject to the leave of the Commission being granted. There was no evidence of any caveat being placed upon the agreement.
The respondent has submitted that the recalling of the witness will take approximately 1 hour. While this is a short period of time by any measure, it is foreseeable that the additional evidence of the witness may precipitate one or more applications from the appellant to recall other witnesses to adduce further evidence arising from that cross-examination. There is also a very real prospect that there will be argument about the content of the cross-examination and whether it arises directly from the new matters raised after SLSO C gave her evidence. Although it is not possible to predict how long the further cross-examination will take, I accept that it is unlikely to significantly delay the proceedings.
It is relevant that the application to recall the witness for further cross-examination is made late. The parties had concluded their evidentiary cases on 18 February 2022, after 5 days of hearing. During the hearing of the notice of motion, the respondent confirmed that it subsequently met with SLSO C on 24 February 2022 and discussed matters arising out of the evidence in the proceedings. The respondent then raised the proposal to recall SLSO C with the appellant on 1 March 2022 for further cross-examination, with the request then made to the Commission on 3 March 2022, some two weeks after the hearing, when consent could not be reached.
The application should have been made sooner, prior to the parties closing their evidentiary cases, probably before the witness was conferenced by the respondent, and certainly not more than two weeks after the last day of the hearing. All the facts and circumstances relied upon by the respondent in bringing the notice of motion were available as at the conclusion of the last day of the hearing of the matter.
There is a public interest in the finality of matters. The proceedings before the Commission were lengthy and involved the admission of a significant amount of evidence. The respondent was afforded every opportunity to cross-examine SLSO C during the hearing and ought to have been equipped to make an application to recall the witness prior to the conclusion of the matter on 18 February and the Commission making directions for the filing and serving of final submissions.
Despite this, the respondent argued that the application must be considered within the context of the unfairness that will be visited upon them and SLSO C in the event the notice of motion is dismissed. The respondent says that it may be unfair to the witness if adverse findings are made with respect to her credibility or the reliability of her evidence if she is not given an opportunity to respond to those aspects of the evidence inconsistent with her own. In this regard, the respondent notes that the following evidence was adduced after the appellant was cross-examined, which was 'new' (at [24]-[25] of RS): "In cross examination, (and for the first time), the Appellant says she removed Exhibit R5 from her classroom's storeroom in late 2016 to use it for [Student C] and [Student D], who were in pre-kindy. The Appellant emphasised she removed it in 2016 and had not used it before that time. She said [Student C] and [Student D] would sit in Exhibit R5 at an elevated table to work with [SLSO B]. The timing of when the Appellant says she used the chair was contrary to her evidence in her amended affidavit where she said: "22. When [SLSO B] was working as an SLSO in my class during 2016 to 2017 2014 to 2016, she continued to use the highchair with the students in the classroom." The Appellant says [Student A] used the chair throughout 2017 to sit at an elevated table with [Student E], who was wheelchair bound. She used it on one occasion in 2016 to control [Student A's] behaviour, but not before."
In their written submissions, the respondent also summarised the evidence of other witnesses in the proceeding, concluding that "[plainly], there are significant inconsistencies that have emerged as to the use of the chair, including in respect to which students sat in it, when they sat in it and why they sat in it."
Although the witnesses gave additional evidence when cross-examined and after SLSO C gave her evidence, the respondent was on notice, broadly, that the evidence of each of the witnesses was not consistent or different with regards to the matters relevant to the allegations against the appellant.
In Shelley Jackson v Commissioner of Police [2019] NSWIRComm 1033, Commissioner Sloan considered the applicability of the rule in Browne v Dunn (1984) 6 R(HL) 67 in the context of proceedings before the Commission. In that matter, involving an appeal from a decision to reduce the rank of a Police Officer pursuant to s 173 of the Police Act 1990 (NSW), it was submitted by the appellant that the respondent counsel's failure to cross-examine her on particular matters should be taken into account in coming to a conclusion with respect to findings of fact: see [105]. In reviewing the relevant decisions regarding the applicability of the rule in Browne v Dunn, Commission Sloan stated (at [105]-[113]): "The rule in Browne v Dunn in the context of proceedings before the Commission was considered by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 2) (1990) 35 IR 60. In an interlocutory judgment which examined the case law regarding Browne v Dunn, his Honour stated as follows at p 61: 'In other words, Mr Walton supported his objection by relying on the so-called rule in Browne v Dunn (1894) 6 R(HL) 67, which, shortly stated, is to the effect that it ought to be put to a witness in cross-examination the nature of the case which is proposed to be made against his evidence, unless notice has already clearly been given that his evidence is not accepted.' (Emphasis added) He later stated at p 67: 'In my view, Tribunals operating under the [Industrial Arbitration Act 1940 (NSW)] should be astute to ensure procedural fairness generally to the parties and not so as to permit a case to turn on the overly strict application of a rule of professional legal practice. The instant case, it seems apparent to me, is a good illustration of this point in that whilst Mr Newall conceded he was 'crystal clear' on the rule in Browne v Dunn, it is clear to me, but only after considering the many authorities concerned, that it would be unfair to visit on the respondent any adverse application of the rule. To me, that is no more than an appropriate application of s 83 of the Act requiring the Commission to be governed in its procedure by 'equity and good conscience'.' And further at pp 68-69: 'I respectfully agree that it is appropriate in proceedings before industrial tribunals under the Act to apply the rule in Browne v Dunn, but being careful not to apply it in any absolute or inflexible way, and having very much in mind its true nature according to the authorities. Also, it seems to me necessary to qualify any application of the rule by reason of the statutory requirements of s 83 of the Act…' Pastrycooks was cited with approval by the Full Bench in Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409 at [24]. Section 83 of the Industrial Arbitration Act 1940 (NSW), to which Hungerford J referred, was a predecessor to s 163 of the Industrial Relations Act. His Honour's comments apply equally to s 163: Van Huisstede and the Commissioner of Police [2000] NSWIRComm 97. … I have also had regard to the decision of the Australian Industrial Relations Commission in Xiu Zhen Huang v Rheem Australia Pty Ltd [2005] AIRC 108. In that decision, which, with respect, contains a useful analysis of relevant case law on the issue, the Full Bench stated as follows: '[22] We interpose to observe that the speeches in Browne v Dunn recognised a key issue will be whether the witness had notice of what was to be alleged against them. The archetypal circumstance of unfairness is where adverse matters are (later) alleged without them being put to the witness in cross-examination and where the witness had no notice that those allegations would be made. We also note that Lord Morris suggested that a witness' evidence may be so 'incredible and romancing' that it can properly be attacked in submissions without there having been any cross examination. Gleeson CJ [in R v Birks (1990) 19 NSWLR 677] continued: 48 It is plain that their Lordships, whilst recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non-observance, including the remedies that are available to deal with a problem so created. 49 ... 50 The consequences of a failure to observe the rule in Browne v Dunn will vary depending upon the circumstances of the case, but they will usually be related to the central object of the rule, which is to secure fairness. … 51 … [24] In White Industries (Qld) Pty Ltd v Flower & Hart Goldberg J analysed the requirement that a party or witness be put on notice of a proposed challenge to a witness' evidence, where that challenge is not otherwise apparent to the witness. His Honour noted: It is apparent, from the judgment of Lord Herschell that notice of the relevant attack need not necessarily occur in cross-examination so long as it is otherwise clear that it will be made. This proposition was picked up by Hunt J in his extensive analysis of the rule and the cases which had considered it in Allied Pastoral Holdings Pty Ltd v FCT where he said at 623: It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn [1894] 6 R 67. But as Hunt J pointed out (at 630): … The rule does not apply, in the sense that it is not transgressed, where the witness is on notice that his version is challenged or that an inference may be drawn against him and such notice may be found in the pleadings, in an opening or in the manner in which a case is conducted: Seymour v Australian Broadcasting Commission [1977] 19 NSWLR 219 at 224-5, 236; Jagelman v FCT (1995) 31 ATR 467 at 472 -3; Raben Footwear Pty Ltd v Polygram Records Inc ([1997] FCA 370; 1997) 145 ALR 1 at 15. [25] An appeal against his Honour's decision was dismissed although the Full Court of the Federal Court held that it was unnecessary for his Honour to make findings about the purpose of a particular witness. The Full Court held that those findings had no bearing on the result but proceeded to make some comment on the submission that to make such findings involved a procedure that was basically unfair to the witness and involved a breach of the rule in Browne v. Dunn. That submission was rejected. The Full Court noted: 'As a general rule, before an adverse finding is made against a witness in contradiction of sworn testimony given by that witness, a matter in issue, the subject of that finding, must be put to the witness in cross-examination to enable him or her to give an explanation. However, there can be no need to put such an issue to a witness who has notice that there is other material in the proceedings that will be relied upon to contradict the evidence of the witness: see Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 16; 44 ALR 607; R Cross, Cross on Evidence, 4th Aust ed, Butterworths, Sydney, 1991, para 17445.' [26] A particular consequence of this summary of principle by the Full Court is that there may often be little scope for the operation of the rule in Browne v. Dunn in relation to matters clearly placed in issue in statements or affidavits filed and served before a hearing. Whether there is any scope for the application of the rule in such circumstances will depend upon the particular circumstances and the dictates of fairness in the particular case.' (Footnotes omitted, emphasis in original) … Through the statements on which the respondent relied, and the submissions filed and served on his behalf, Sgt Jackson had clearly been given notice that her evidence in various respects was not accepted. I do not consider that a failure by Mr Darams to cross-examine Sgt Jackson on the many factual contests arising from the evidence in any way denied Sgt Jackson procedural fairness. Rather, to use the language of Hungerford J, it would be unfair to visit on the Commissioner any adverse application of the rule in Browne v Dunn."
SLSO C is an important witness in these proceedings. She worked beside the appellant in the classroom at relevant times. SLSO C gave evidence that she recalled the chair in the classroom, that it was used in respect of Student A no more than twice, and that this occurred in 2014. She gave evidence that she has no recollection of the chair being used by the appellant in 2016. SLSO C gave evidence that she recalled SLSO B using the highchair in 2016 from time to time and that it was used at an elevated table, and she assisted in strapping the students in the chair for SLSO B.
SLSO C was subject to cross-examination by both parties for a significant time over two days. The cross-examination of SLSO C by the respondent traversed a range of topics including, specifically, when, how frequently and the circumstances under which Student AB was placed in the chair by the appellant. SLSO C was also asked questions about SLSO B's use of the chair and whether other students were placed in it. SLSO C had a fair chance to give her evidence and address the inconsistencies in it with other witnesses. Not every detail of how SLSO C's evidence was inconsistent or different to other witnesses needs to be put to her to avoid unfairness to her or the parties. This is so, even though the Commission may make adverse finding as to the reliability of her evidence and/or her credibility as a witness. It follows that the respondent and SLSO C will not be prejudiced because of the rule in Browne v Dunn.
I am also not persuaded that the respondent was prejudiced by SLSO C being called prior to the appellant's witnesses. The respondent is required to call their witnesses first in public sector disciplinary proceedings: s 100G(2) of the Act. The respondent filed SLSO C's first witness statement and she was required for cross-examination by the appellant. What was unusual was that the appellant agreed to allowing the witness to be cross-examined by the respondent.
Balancing these matters, I have decided that it is not in the interests of justice to allow the respondent to recall SLSO C for further cross-examination.
For these reasons, I have decided to dismiss the notice of motion.

X (a pseudonym) v Secretary, Department of Education

At a glance

Court

Decision date

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (10)