Case: Fried v National Australia Bank [2000] FCA 911 ; (2000) 175 ALR 194
Outcome: distinguished
The reasons for the Tribunal's refusal to give Comcare access to the summonsed documents were: &#8226; that it would have been ' unfair ' to admit the material; &#8226; that '... it was inappropriate for Comcare to be permitted to go on a fishing expedition to ascertain what the file contained, particularly when the documents sought (if they existed) were sought only to impugn the credit of a witness ...' citing Fried v National Australia Bank [2000] FCA 911 ; (2000) 175 ALR 194 at 200; and &#8226; that there ' was no suggestion that the file may contain material relevant to the determination of the factual issue before [the Tribunal]'. 19 Similarly, the Tribunal rejected the tender of other documents by Comcare which included 1997 medical reports. These reports were drafted after the first and second injuries and referred to one fall but not to two and to an injury occasioned on 15 February 1997, the second injury that resulted in the victim claim. There was also a description of the incident as an assault occurring outside a house where Mr Maganga had been sitting. Comcare submitted that the documents would show that Mr Maganga had made inconsistent statements regarding an injury or injuries suffered in 1997. Further, Comcare submitted to the Tribunal that the summonsed documents may well demonstrate that Mr Maganga had knowingly or recklessly given false evidence to the Tribunal. However, the Tribunal rejected the documents as not relevant to the issue in dispute and also on the ground that ' procedural fairness required that Comcare not be allowed to contradict Mr Maganga's answers to questions which went only to his credit '. 30 Mr Maganga also submits that the Tribunal is not bound by the rules of evidence in s 33 of the AAT Act, although he accepts that they cannot be ignored ( Dolan v Australian and Overseas Telecommunications Corporation [1993] FCA 202 ; (1993) 42 FCR 206 at 207 per Spender J; Haberfield v Department of Veterans Affairs [2002] FCA 1579 ; (2002) 121 FCR 233 at [58] per Sackville J). Mr Maganga points to s 102 of the Evidence Act 1995 (Cth) where ' evidence that is relevant only to a witness's credibility is not admissible '. Mr Maganga also refers to Fried where Weinberg J set aside a subpoena where it was agreed that the only purpose for which the documents were sought was to attack the credit of a witness (at [21] [30]). In Fried (at [29]) Weinberg J held that it was not appropriate for a court to permit a subpoena to stand which ' does little more than trawl for documents which may be used to impugn the credit of a particular witness '. Mr Maganga submits that the reasoning of Weinberg J is apposite and should be followed. 31 In Fried Weinberg J accepted that there is authority for the proposition that it may be legitimate to issue a subpoena directed to a third party in order to obtain documents which are to be used solely to impeach the credit of a witness (at [24]). Regardless, the subpoena in Fried was issued to capture documents which might have shown that two non party companies had lodged income tax returns without fully declaring interest earned. The substantive proceedings between the parties in Fried did not concern alleged under-reporting of income tax. Accordingly, the documents in question related only to a credit issue, an issue unrelated to the issues in the proceedings. This was recognised by Weinberg J at [26] where his Honour noted that the documents sought were wholly unconnected with those issues. 32 Unlike Fried, Mr Maganga's credit constituted the main issue in this proceeding. As Weinberg J noted in Fried at [29], there should be a legitimate forensic purpose in seeking the relevant documents which ' must be identifiable, and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness '. The summonsed documents fulfilled those criteria. The Tribunal erred in finding that the documents sought were going only to a question of credit and hence that they were inadmissible. 33 In the context of credit, the Tribunal noted that it was inappropriate for Comcare to go on a "fishing expedition" to ascertain what the file contained. 34 A party seeking to inspect documents does not need to demonstrate that relevant documents exist ( Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts [2007] FCA 1398 at [47] , [52] per Graham J; Alister at 451 per Brennan J). In any event, in this case there was no doubt that the summonsed documents did exist as they were produced to the Tribunal. It was also apparent that they were likely to be relevant to a issue in the proceedings. Further, it is not fishing to seek documents going to the credit of a crucial witness ( Fried at [24]). 39 Although the Tribunal has a discretion under s 33(1)(a) of the AAT Act as to the relevant procedure for access to summonsed documents, this discretion is subject to the overarching obligation on the Tribunal to ensure that each party is given a reasonable opportunity to present their case. Specifically, the Tribunal must accord the parties procedural fairness. The requirement to accord procedural fairness includes a requirement to allow a party to test the evidence of a witness. While cross-examination to test the credit of a witness where that credit is not in issue may be excluded ( Fried ), credit was the main issue in these proceedings. The summonsed documents were, prima facie, relevant to the proceedings. There was a reasonable possibility that they could have assisted in the resolution of issues in the proceedings. Further, it was clear that the summonsed documents existed and counsel for Comcare was not merely "fishing" in order to seek documents going to the credit of a crucial witness ( Fried at [24]; Bailey at [26]). The Tribunal erred in law in refusing Comcare leave to inspect the summonsed documents.