(e) Cross-examination concerning the extent of care actually required for Mrs Robinson's well being, and to identify, against her medical background, the precise reasons giving rise to each area of care claimed. This cross-examination would be essentially to examine the care provided in the past and the care claimed for the future.
45 Mr Stone, who appeared in the present proceedings with Ms Margaret Holz, for Mrs Robinson, provided the Court with both oral and written submissions. Mr Stone took issue with the proposition that Zurich had been denied procedural fairness. Essentially, counsel submitted that the DVD played no role in the decision and that Zurich had been able to present its case perfectly adequately without the presence of Mrs Robinson at the final hearing. Mr Stone, in his written submissions, argued that the Zurich summons had identified only one ground on which it claimed to have been denied procedural fairness, namely that the DVD was allowed into evidence. Mr Stone submitted that there was no allegation that Zurich had ever requested and were denied the opportunity to cross-examine Mrs Robinson. This is clearly the case in the sense that, after the DVD was admitted, Mr Mallos did not expressly demand to cross-examine Mrs Robinson. However, I consider that it would be unreasonable to restrict Zurich in this way. It seems to me that the allegation that the DVD should not have been admitted always carried with it the assertion that Zurich might be denied procedural fairness in that Mrs Robinson, as a practical matter, was not likely to have ever been available for cross-examination. The wording of the summons allows for the broader point to be made. Further, as Mr Mallos made clear in his evidence before me, it was made perfectly obvious to him throughout the assessment process that, because of Mrs Robinson's disabilities, she would not be required to attend in any event. There was no point in his making an application to have Mrs Robinson present once the Assessor decided to admit the DVD.
46 Mr Stone invited me to find that Mr Mallos, in truth, never intended to cross-examine Mrs Robinson. In this regard, counsel's submission was that I should not accept Mr Mallos' claim that it was his wish to cross-examine the claimant. In effect, I was invited to disbelieve Mr Mallos. Mr Stone made a number of submissions in support of this contention. I am satisfied, however, that at all times Mr Mallos did intend to cross-examine Mrs Robinson, if he were permitted to do so. The reality was, as he recognised, that it was extremely unlikely that the Assessor would allow cross-examination. In that context, Mr Stone is probably correct in saying that the submissions were probably more designed to lead to a rejection of the DVD and to allow the substitution, in its place, of a statement taken from the DVD. Counsel's main point was that the decision not to cross-examine the carers, and the reasons given by Mr Mallos, did not sit easily with the suggestion that Mr Mallos wanted to cross-examine the claimant. However, I see the decision not to test the carers, illogical though the reasons may seem, as no more than a forensic decision taken by Mr Mallos in the "heat of battle". I see no reason to disbelieve Mr Mallos on the point at issue.
47 I turn now to the merits of the competing submissions. In my view, Zurich has failed to establish that it was denied procedural fairness. In my opinion, Zurich was given an opportunity to present its case fairly and it is not now open to it to complain that it was denied procedural fairness. In the circumstances of the matter, there is no substance in Zurich's claim that it sustained practical injustice. I do not consider that, in the rather unusual circumstances of this matter, the rules of procedural fairness dictated or demanded that Zurich have the right or opportunity to cross-examine Mrs Robinson. I shall now state my reasons for this conclusion.
48 First, it is clear that Zurich was perfectly content to consent to the tender of the transcript of the DVD without further ado. Mr Mallos' comments at the time made it clear that, if the transcript were placed before the Assessor, there would be no need for Mrs Robinson to be cross-examined upon its contents. Mr Mallos' only complaint was to the fact that the DVD allowed "a visual presentation of the evidence". As Harrison J observed in his decision of the 4 December 2009 refusing the stay, Zurich had no fundamental trouble or concern with the substance of Mrs Robinson's evidence since Mr Mallos was perfectly content for the transcribed words of the DVD to be tendered. The spoken and written words (when transcribed) were always going to be precisely identical. If Mr Mallos "did not have a problem with the transcript of the evidence" it must be the case that he was perfectly content to abandon each and every one of the topics he later nominated as topics for cross-examination for Mrs Robinson. He must have been content to rely on the medical evidence, the surveillance and his own written and oral submissions.
49 Secondly, Mr Mallos took the decision at the hearing that he did not require either Mrs Robinson's daughter or son-in-law for the purposes of cross-examination. The evidence of Patricia Robinson, in particular, was replete with detailed descriptions of the way in which her mother had been affected by this accident. This went to the heart of the matters Mr Mallos said he wanted to test. In particular, her first statement (and indeed, her second) focused precisely on the way in which she and her husband were required to give care to her mother as a consequence of the disabilities sustained following the accident. According to Mr Mallos, this was a fundamental matter about which he would have cross-examined the claimant (although presumably he would not have done so, if the words of the DVD statement went in, as opposed to its visual content).
50 In Mr Mallos' affidavit at para 31 he endeavours to explain why it was he decided not to cross-examine these witnesses. He said: -
Ms Robinson's daughter and son-in-law were in attendance at the CARS Assessment Conference. I did not seek to cross-examine either of them. They have provided evidence of the care which they provide to Ms Robinson. Zurich's case was not that Ms Robinson had little or no care requirements. Zurich's case was that the need for such care was not substantially due to any injuries suffered by Ms Robinson in the accident giving rise to her claim but rather due to age and unrelated medical factors. I took the view that the evidence of Ms Robinson's daughter and son-in-law does not go to that issue and I can see no benefit in cross-examining either of them as to why they provide the services that they claim to have provided. In my opinion, those were matters for Ms Robinson to give evidence about."
51 These statements by Mr Mallos show that, inexplicably, he must have misconstrued the thrust of Patricia Robinson's statements. The first statement commences with an analysis of her mother's mode of living prior to the accident. It is headed "Prior to the Accident". It contains a detailed analysis showing that, prior to the accident, Mrs Robinson "had led an active, interesting and independent life". Considerable detail is provided in this regard. Patricia Robinson then describes the immediate consequences of the accident on her mother during the early recuperation period. It then goes on to deal with her disabilities and need for care after the accident. This section of the statement is headed "Post Accident". Once again it is very detailed and makes the point, time and again, that these changes to her mother's lifestyle only came into existence following the accident. For example, she says on page 2: -
"It is really difficult to explain to outsiders the amount of stress this accident has caused our family and the degree to which it has changed our relationships. The time and effort that has gone into my mother's rehabilitation to get her to a minimal state of being has been inordinate".
52 Patricia Robinson then asks:
"What has changed in her life as a result of the accident?"
53 The answer to this question is contained in the lengthy list of disabilities I have extracted earlier at page 10 of this decision. Patricia Robinson's second statement "updates" these matters. Mr Ian Hembrey's statement, although less detailed, makes the clear point that the significant changes in the condition of his mother-in-law, requiring extensive care, all occurred after the accident and were generally related to it.
54 In my opinion, Mr Mallos' decision not to cross-examine these witnesses meant that he was in truth content, as a matter of forensic choice, to deprive Zurich of the very opportunity they now claim they have lost in the assessment process. It is clear to me that a forensic decision was made by an experienced solicitor, probably on the basis that the Insurance Company might be worse off if any attack were made on the care witnesses to suggest that Mrs Robinson's disabilities were not related to the accident. But, whether this be so or not, Mr Mallos made, so it seems, vigorous submissions to the Assessor on all the matters he has mentioned in his affidavit. In my opinion, his client was not compromised in any way by the decision he made. A fair reading of the Assessor's reasons in their entirety shows that this was so.
55 In any event, as I have already said, Mr Mallos had decided that he would not need to cross-examine Mrs Robinson if the transcript of the DVD had been placed in evidence, as opposed to its oral contents.
56 Thirdly, there is, in my opinion, no substance in the claim that cross-examination of Mrs Robinson on the identified medical issues would have advanced Zurich's case at all. The "medical issues" to which I refer are those I have set out above, taken from Mr Mallos' affidavit. They include the "medical ailments" points, the "long term medications" point and the "medical warnings" point. None of these was particularly apt to be put to Mrs Robinson herself. Each of the points identified by Mr Mallos was essentially a medical question (accident related verus non accident related ailments and care needs). All the medical records were in evidence. There is no suggestion that Zurich was compromised or prejudiced in any way since it could make (and presumably did make) any points it wanted to make through the medical records. It is difficult to see that any questions put to Mrs Robinson would advance the medical questions at all. This was not a case in which Zurich was making any submission to the Assessor that there had been any dishonesty by Mrs Robinson in the presentation of her case, or that there had been any exaggeration by her or concealment of any relevant material. Despite the force of Mr Kunc SC's submissions, I do not accept that Mrs Robinson's credit was in issue at all in this assessment. Mr Mallos, in his comprehensive affidavit, did not suggest it was. The matters I have latterly pointed to were all essentially matters for medical assessment. Mr Mallos, however, did not suggest to the Assessor that Mrs Robinson's general practitioner was required to answer any questions in relation to her non-accident related medical conditions.
57 Fourthly, although Mr Mallos was plainly unhappy about the tender of the DVD, it seems that it did not affect in any way the content of his written submissions. There were some 11 pages of written submissions sent to the Assessor by Zurich after the DVD was served, but none make any reference to the contents of the DVD.
58 Fifthly, the guidelines I have set out earlier make it clear that the Assessor had a reasonably wide discretion as to whether he would or would not allow cross-examination. During argument, I put a hypothetical example to Mr Kunc SC. I asked him to assume that, in the present matter, Mrs Robinson had provided a written statement to the Assessor at the final assessment. I asked senior counsel to further assume that Mr Mallos had, contrary to the actual decision he took, insisted that Mrs Robinson attend for cross-examination for the very reasons he set out in his affidavit. On the further assumption that the Assessor determined that the claimant's age, disabilities, and fear of medical appointments etc made it inappropriate for her to attend for cross-examination, would that have amounted, in those circumstances, to a denial of procedural fairness? Although Mr Kunc was not prepared to make a conclusive statement on the point, he generally accepted that it would be unlikely that such a decision by the Assessor would have constituted a denial of procedural fairness. Mr Kunc's broad acceptance of the proposition I put to him was, in my view, fairly and properly made. That being the case, I urged upon counsel the further proposition that a decision to protect Mrs Robinson from cross-examination, upon tender of the DVD statement, was essentially in no different category. The Assessor had power to determine his own procedure and was entitled to enquire into the assessment in such manner as he thought fit. Moreover, he was entitled to determine the manner in which evidence was presented at the Assessment Conference. This included a power to limit, curtail or prohibit cross-examination. Of course, the obligation lay on the Assessor to ensure that each party was able to present its case fairly. In that regard, it is plainly the situation that the right to cross-examination is not, in every situation, an absolute. It may well be required in many litigious exercises where a refusal to allow cross-examination may constitute a denial of procedural fairness. But, as I say, it is not an absolute requirement. Much will depend upon the legislation, the nature of the litigation and the point at issue in the litigation. There are other ways of allowing a party to present its case fairly, absent cross-examination.
59 Mr Kunc relied on two decisions to advance the proposition that cross-examination was very important. I accept that it is important. Those cases were Australian Postal Commission v Hayes & Anor (1989) 23 FCR 320 and Ramsay v Australian Postal Corporation [2005] 147 FCR at 39. In the first case, Wilcox J held that, in proceedings before the Administrative Appeals Tribunal the Commission was denied procedural fairness by a decision which fettered the proposed cross-examination of a claimant to such an extent that her evidence could not properly be tested. The point at issue there was that the Tribunal had directed that a surveillance film be shown to the claimant at the commencement of her evidence-in-chief. Wilcox J said that the Commission was entitled to show the film to the claimant after the conclusion of her evidence-in-chief.
60 The second case involved a situation where the applicant was denied the opportunity to cross-examine a medical practitioner whose written reports were admitted into evidence. It was plainly the situation in that case that the relevant written reports were critical to the Tribunal's decision. Spender J held that the right to challenge by cross-examination a deponent whose evidence is adverse in important respects to the case a party wishes to present is an incident of the obligation to accord procedural fairness.
61 The outcome in each of these cases is generally to be accepted. Neither is authority, however, for the proposition that cross-examination is an absolute right.