mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136
Outcome: cited
Nonetheless, one of the Tribunal's reasons for considering that it would be unfair to admit the summonsed documents was its view that sufficient relevance could only be established if the material would show that Mr Maganga had made an inconsistent statement in giving evidence to the Tribunal. This is not the correct test. A party seeking to inspect documents does not need to establish, on the basis of probabilities, that the documents will establish anything ( Trade Practices Commission v Arnotts (No 2) (1989) 21 FCR 306 per Beaumont J; Telstra Corporation at [47], [52] per Graham J). Rather, the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings ( Waind per Moffitt P at 384; Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136 at [26] ). 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.
Case: Carter v Hayes SM (1994) 61 SASR 451
Outcome: cited
Further, the test of relevance for the purpose of inspection is not confined to whether the documents in question will or may establish an inconsistent statement by a witness giving evidence in the proceedings or whether the documents themselves will prove a fact in issue. The Court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation ( Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 138 ; (2000) 18 ACLC 609 per Bryson J at [20]) or if they might be used for a legitimate forensic purpose in cross-examination ( Maronis at [18], [20]; Carter v Hayes SM (1994) 61 SASR 451 at 453, 456-457 per King CJ, Bollen and Mullighan JJ agreeing; R v Spizzirri [2001] 2 QdR 686 at [24] per Pincus JA, White J agreeing). The summonsed documents, prima facie, were relevant to the claimed fourth injury which claim depended, in turn, on Mr Maganga's credit.
Case: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28
Outcome: cited
The Tribunal denied Comcare procedural fairness in not allowing it access to the summonsed documents. That is a question of law for the purposes of s 44 of the AAT Act ( Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 at [3] - [8] per Gray ACJ and North J). It is also a ground of judicial review (s 5(1)(f) of the ADJR Act). As a result, Comcare was unable to cross-examine Mr Maganga effectively on an issue that was of direct relevance in and central to the proceedings. It is no answer to submit that Comcare's cross-examination of Mr Maganga was insufficient or that Comcare chose not to cross-examine Mr Maganga on certain issues going to credit in a situation where it was denied the opportunity effectively to cross-examine. 41 The appeal is allowed. The matter is remitted to the Tribunal for reconsideration according to law. 42 Comcare does not seek an order that Mr Maganga pay its costs. Accordingly, each party is to pay his or its own costs of the proceedings. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 7 March 2008 Counsel for the Applicant: T Howe QC Solicitor for the Applicant: DLA Phillips Fox Counsel for Mr Maganga: S H Pilkinton Solicitor for Mr Maganga: Pamela Coward &amp; Associates Date of Hearing: 3 October 2007 Date of Judgment: 11 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/285.html
Case: Dolan v Australian and Overseas Telecommunications Corporation [1993] FCA 202 ; (1993) 42 FCR 206
Outcome: cited
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.
Case: Haberfield v Department of Veterans Affairs [2002] FCA 1579 ; (2002) 121 FCR 233
Outcome: cited
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.
Case: Lawrance v Centrelink (2005) 88 ALD 664
Outcome: cited
Comcare challenges the Tribunal's decision to refuse leave to inspect the summonsed documents. The alleged deficiencies in the cross-examination of Mr Maganga are not relevant to these grounds. Further, the asserted obligation on the part of Comcare to put these matters to Mr Maganga is misplaced. In Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 ; (2002) 201 ALR 437 , Gummow and Heydon JJ (with whom Gleeson CJ agreed) referred (at [55]) to the rule in Browne v Dunne and noted at [56] that ' ...the rule has no application to proceedings in the tribunal ... administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures '. Their Honours went on to note that the rule in Browne v Dunne had no application to proceedings in the Refugee Review Tribunal (at [57]), see also Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26] ). In Lawrance v Centrelink (2005) 88 ALD 664 Hely J referred to S154/2002 and found that the rule in Browne v Dunne has no application to proceedings in the Tribunal (at [31]). Regardless, it is evident from the cross-examination that did take place, that credit was strongly in issue and that Mr Maganga's version of events in relation to the 1997 injuries was challenged.
Case: Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 138 ; (2000) 18 ACLC 609
Outcome: cited
Further, the test of relevance for the purpose of inspection is not confined to whether the documents in question will or may establish an inconsistent statement by a witness giving evidence in the proceedings or whether the documents themselves will prove a fact in issue. The Court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation ( Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 138 ; (2000) 18 ACLC 609 per Bryson J at [20]) or if they might be used for a legitimate forensic purpose in cross-examination ( Maronis at [18], [20]; Carter v Hayes SM (1994) 61 SASR 451 at 453, 456-457 per King CJ, Bollen and Mullighan JJ agreeing; R v Spizzirri [2001] 2 QdR 686 at [24] per Pincus JA, White J agreeing). The summonsed documents, prima facie, were relevant to the claimed fourth injury which claim depended, in turn, on Mr Maganga's credit.
Case: National Employers' Mutual General Association Ltd v Waind (1978) 1 NSWLR 372
Outcome: cited
The test for permissible inspection is not whether the documents ought to be admitted into evidence ( National Employers' Mutual General Association Ltd v Waind (1978) 1 NSWLR 372 at 385-386 per Glass JA; Albert Hadid v Lenfest Communications Inc [1998] FCA 470 per Lehane J). Mr Maganga no longer seeks to uphold this aspect of the Tribunal's reasons where it held that inspection of the summonsed documents should not occur in circumstances where they may not ultimately be admissible. 37 Nonetheless, one of the Tribunal's reasons for considering that it would be unfair to admit the summonsed documents was its view that sufficient relevance could only be established if the material would show that Mr Maganga had made an inconsistent statement in giving evidence to the Tribunal. This is not the correct test. A party seeking to inspect documents does not need to establish, on the basis of probabilities, that the documents will establish anything ( Trade Practices Commission v Arnotts (No 2) (1989) 21 FCR 306 per Beaumont J; Telstra Corporation at [47], [52] per Graham J). Rather, the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings ( Waind per Moffitt P at 384; Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136 at [26] ).
Case: Piddington v Bennett &amp; Wood Proprietary Limited [1940] HCA 2 ; (1940) 63 CLR 533
Outcome: cited
The Tribunal noted that the rules of evidence did not apply in the Tribunal (s 33(1)(c) of the AAT Act) but accepted that they had ' a role to play '. The Tribunal cited Piddington v Bennett &amp; Wood Proprietary Limited [1940] HCA 2 ; (1940) 63 CLR 533 at 545 where Latham CJ stated: Any witness may be cross-examined for the purpose of discrediting him. But if questions affect only the credit of a witness and are not relevant to the matters actually in issue in the case, the witness's answers cannot be contradicted by other evidence except in certain exceptional cases. Exceptions to the rule at common law are that after cross-examination of his opponent's witnesses a party may give evidence to show that they are notorious liars, or have given their testimony from a corrupt or other wrong motive, or that they have previously made statements inconsistent with their evidence . The Tribunal stated that counsel for Comcare had "expressly disavowed" any claim that the documents were sought to be tendered in support of an argument that Mr Maganga was a "notorious liar". 21 Ultimately, the Tribunal was satisfied that Mr Maganga '... was a witness who gave his evidence honestly '. The Tribunal also noted that at all times the issue before it was whether the injury to Mr Maganga's knee occurred on his way to work but that '... nevertheless contrary allegations (such as that the injury occurred at home) were not put to him and consequently did not have the opportunity to assess Mr Maganga's veracity when his truthfulness was under direct challenge '. The Tribunal set aside Comcare's decision to deny compensation for the fourth injury.
Case: R v Spizzirri [2001] 2 QdR 686
Outcome: cited
Further, the test of relevance for the purpose of inspection is not confined to whether the documents in question will or may establish an inconsistent statement by a witness giving evidence in the proceedings or whether the documents themselves will prove a fact in issue. The Court may allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation ( Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 138 ; (2000) 18 ACLC 609 per Bryson J at [20]) or if they might be used for a legitimate forensic purpose in cross-examination ( Maronis at [18], [20]; Carter v Hayes SM (1994) 61 SASR 451 at 453, 456-457 per King CJ, Bollen and Mullighan JJ agreeing; R v Spizzirri [2001] 2 QdR 686 at [24] per Pincus JA, White J agreeing). The summonsed documents, prima facie, were relevant to the claimed fourth injury which claim depended, in turn, on Mr Maganga's credit.
Case: Repatriation Commission v Farley-Smith (2007) 96 ALD 348
Outcome: cited
Section 40(1D) of the AAT Act provides that the Tribunal may give a party leave to inspect a document produced under summons. The relevant procedure is generally within the discretion of the Tribunal (s 33(1)(a) of the AAT Act). The Tribunal is required to give proper consideration to matters before it (s 33(1)(b)) and to ensure that every party to a proceeding is given a reasonable opportunity to present his or her case (s 39(1)). A "reasonable opportunity to present his or her case" requires the Tribunal to apply notions of procedural fairness ( Repatriation Commission v Farley-Smith (2007) 96 ALD 348 at [54] per Middleton J; Australian Postal Corporation v Hayes [1989] FCA 176 ; (1989) 23 FCR 320 at 326 per Wilcox J).
Case: Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 ; (2002) 201 ALR 437
Outcome: cited
Comcare challenges the Tribunal's decision to refuse leave to inspect the summonsed documents. The alleged deficiencies in the cross-examination of Mr Maganga are not relevant to these grounds. Further, the asserted obligation on the part of Comcare to put these matters to Mr Maganga is misplaced. In Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 ; (2002) 201 ALR 437 , Gummow and Heydon JJ (with whom Gleeson CJ agreed) referred (at [55]) to the rule in Browne v Dunne and noted at [56] that ' ...the rule has no application to proceedings in the tribunal ... administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures '. Their Honours went on to note that the rule in Browne v Dunne had no application to proceedings in the Refugee Review Tribunal (at [57]), see also Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26] ). In Lawrance v Centrelink (2005) 88 ALD 664 Hely J referred to S154/2002 and found that the rule in Browne v Dunne has no application to proceedings in the Tribunal (at [31]). Regardless, it is evident from the cross-examination that did take place, that credit was strongly in issue and that Mr Maganga's version of events in relation to the 1997 injuries was challenged.
Case: Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82
Outcome: cited
It is also misplaced to argue that Comcare's cross-examination of Mr Maganga was not affected by the Tribunal's decision to deny access to the summonsed documents. If a denial of procedural fairness can be shown, a court should not refuse relief unless it is confident that the breach could not have affected the outcome ( Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at [104] per McHugh J, citing Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145). In this case, it cannot be shown that the Tribunal's decision not to allow Comcare access to the summonsed documents did not ultimately affect the outcome of the decision. Comcare submits that cross-examination is "at its most effective" when the evidence of a witness is able to be confronted by documents ( Hayes at 326-327). This argument has force in circumstances where credit is, as here, the issue in consideration. The Tribunal's refusal of access to the summonsed documents potentially denied Comcare the opportunity to cross-examine Mr Maganga effectively. In these circumstances it cannot be said that Comcare's cross-examination was insufficient or that Comcare chose not to cross-examine Mr Maganga on certain issues going to credit.
Case: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141
Outcome: cited
It is also misplaced to argue that Comcare's cross-examination of Mr Maganga was not affected by the Tribunal's decision to deny access to the summonsed documents. If a denial of procedural fairness can be shown, a court should not refuse relief unless it is confident that the breach could not have affected the outcome ( Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at [104] per McHugh J, citing Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145). In this case, it cannot be shown that the Tribunal's decision not to allow Comcare access to the summonsed documents did not ultimately affect the outcome of the decision. Comcare submits that cross-examination is "at its most effective" when the evidence of a witness is able to be confronted by documents ( Hayes at 326-327). This argument has force in circumstances where credit is, as here, the issue in consideration. The Tribunal's refusal of access to the summonsed documents potentially denied Comcare the opportunity to cross-examine Mr Maganga effectively. In these circumstances it cannot be said that Comcare's cross-examination was insufficient or that Comcare chose not to cross-examine Mr Maganga on certain issues going to credit.
Case: Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts [2007] FCA 1398
Outcome: cited
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]). 37 Nonetheless, one of the Tribunal's reasons for considering that it would be unfair to admit the summonsed documents was its view that sufficient relevance could only be established if the material would show that Mr Maganga had made an inconsistent statement in giving evidence to the Tribunal. This is not the correct test. A party seeking to inspect documents does not need to establish, on the basis of probabilities, that the documents will establish anything ( Trade Practices Commission v Arnotts (No 2) (1989) 21 FCR 306 per Beaumont J; Telstra Corporation at [47], [52] per Graham J). Rather, the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings ( Waind per Moffitt P at 384; Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136 at [26] ).
Case: Trade Practices Commission v Arnotts (No 2) (1989) 21 FCR 306
Outcome: cited
Nonetheless, one of the Tribunal's reasons for considering that it would be unfair to admit the summonsed documents was its view that sufficient relevance could only be established if the material would show that Mr Maganga had made an inconsistent statement in giving evidence to the Tribunal. This is not the correct test. A party seeking to inspect documents does not need to establish, on the basis of probabilities, that the documents will establish anything ( Trade Practices Commission v Arnotts (No 2) (1989) 21 FCR 306 per Beaumont J; Telstra Corporation at [47], [52] per Graham J). Rather, the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings ( Waind per Moffitt P at 384; Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136 at [26] ).
Case: Cheesman v Waters (1997) 77 FCR 221
Outcome: distinguished
The proposition that an intervener becomes a party to the proceedings, the Second Respondent pointed out, also was accepted in Cheesman v Waters (1997) 77 FCR 221 at 227, another decision of the Full Court. Moreover, in United States Tobacco the Court referred with approval to the following passage from the judgment of Hutley JA, with whom Reynolds and Glass JJA agreed, in Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391, 396: "A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. Thus he can appeal, tender evidence and participate fully in all aspects of the argument. His position is quite different from that of an amicus curiae. Interveners have been allowed to appeal. Thus the Attorney-General of the Commonwealth appealed to the Privy Council in the Boilermakers' case ..., though he was only an intervener in the High Court..." 14 The other case postdating the new intervention rules, cited by counsel for the Commonwealth, Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 , does not illuminate the present question. In that case the Full Court said, obiter , at [75]: "The Attorney-General certainly was entitled to intervene if he wished: s 78A Judiciary Act . If the Attorney had elected to intervene he would thereby have become a party to the proceeding: Cheesman v Waters (1997) 77 FCR 221."
Case: Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391
Outcome: distinguished
The proposition that an intervener becomes a party to the proceedings, the Second Respondent pointed out, also was accepted in Cheesman v Waters (1997) 77 FCR 221 at 227, another decision of the Full Court. Moreover, in United States Tobacco the Court referred with approval to the following passage from the judgment of Hutley JA, with whom Reynolds and Glass JJA agreed, in Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391, 396: "A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. Thus he can appeal, tender evidence and participate fully in all aspects of the argument. His position is quite different from that of an amicus curiae. Interveners have been allowed to appeal. Thus the Attorney-General of the Commonwealth appealed to the Privy Council in the Boilermakers' case ..., though he was only an intervener in the High Court..."
Case: Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45
Outcome: distinguished
The other case postdating the new intervention rules, cited by counsel for the Commonwealth, Peacock v Human Rights and Equal Opportunity Commission [2005] FCAFC 45 , does not illuminate the present question. In that case the Full Court said, obiter , at [75]: "The Attorney-General certainly was entitled to intervene if he wished: s 78A Judiciary Act . If the Attorney had elected to intervene he would thereby have become a party to the proceeding: Cheesman v Waters (1997) 77 FCR 221."