Australia: Bad Credit

Last Updated: 21 November 2008
Article by Jennifer Fisher

The success of applications for review in the Administrative Appeals Tribunal often revolves around the credit of an applicant. Representing Comcare, the Canberra office of DLA Phillips Fox won an appeal against a Tribunal decision. The Federal Court decision sheds some light on the way summonses and documents can be used to challenge credit in the Tribunal.


Mr Maganga sustained an injury to his knee on 29 November 2004 when he fell over whilst walking from his residence to his workplace (the Department of Health and Ageing). Comcare denied liability as it was not satisfied that Mr Maganga sustained his injury on his way to work as alleged.

Substantial reliance was placed on a file note taken by Mr Maganga's work colleague. The colleague reported that she received a telephone call from Mr Maganga's wife on the morning that he claimed to have injured himself. She noted that he 'had another fall getting ready for work this morning and won't be in today'. This evidence was sufficient for Comcare to determine that the injury occurred at home rather than on the way to work. The determination was affirmed by reviewable decision.

There were no witnesses to the injury and the outcome of the application for review depended solely on Mr Maganga's credit and whether his account of events could be believed.


One of the issues that Comcare sought to explore during Mr Maganga's cross-examination was his claim that he had sustained similar injuries in 1997 and 2003 also, allegedly, in compensable circumstances.

To assist with this cross-examination, Comcare sought leave to inspect documents produced under summons by Mr Maganga's former solicitors and the NSW Victims Compensation Tribunal. The Tribunal refused leave to Comcare to inspect the summonsed material or to tender a number of documents into evidence on the basis that it would be 'unfair' for the material to be admitted into evidence. It suggested that 'procedural fairness required that Comcare not be allowed to contradict Mr Maganga's answers to questions which went only to his credit'.

The Tribunal found that it was 'inappropriate for Comcare to be permitted to go on a fishing expedition to ascertain what the file[s] contained, particularly when the documents sought (if they existed) were sought only to impugn the credit of a witness'.

The Tribunal ultimately concluded that Mr Maganga had given his 'evidence honestly and to the best of his recollection'. It accepted that Mr Maganga 'was injured at the time and in the manner he described'.

The Tribunal set aside Comcare's decision and remitted the matter to Comcare for reconsideration with a direction that 'on 29 November 2004 Mr Maganga suffered an injury to his left knee whilst travelling between his place of residence and his place of work as an employee of the Department of Health and Ageing'.

Comcare's challenge to the Tribunal's decision was brought (for technical reasons) under both section 44 of the Administrative Appeals Tribunal Act 1975 and section 39B of the Judiciary Act 1903.


The essence of Comcare's Federal Court challenge was that the Tribunal had denied it procedural fairness in refusing to grant leave to inspect the summonsed material.

Comcare submitted that there was evidence before the Tribunal which cast doubt on the reliability and honesty of Mr Maganga's claim that he had sustained two separate knee injuries on 14 and 15 February 1997 (one being the subject of a Comcare claim and the other the subject of a victims compensation claim). Accordingly, it was 'on the cards' that the summonsed documents might show that Mr Maganga had previously attempted to pass off a non work-related injury to his left knee as having been suffered on a 'journey'.

This was the very issue in the Tribunal proceedings. Comcare argued that if the summonsed documents showed there was only one left knee injury in 1997, this, together with cross-examination on the summonsed documents, would have reflected on Mr Maganga's reliability and credit in the Tribunal proceedings and demonstrated that he had lied to Comcare and to the Tribunal.

The Federal Court upheld Comcare's appeals. It set aside the decision of the Tribunal and remitted the matter back to the Tribunal for reconsideration according to law.

Justice Bennett cited, with approval, the observations of Justice Wilcox in Australian Postal Corporation v Hayes (1989) 23 FCR 326:

although the AAT Act grants the Tribunal a wide discretion as to the procedure to be adopted in reviewing a decision, the Tribunal is bound to accord the parties natural justice (at 326). At the heart of the requirements of natural justice is the principle that a party must be given a reasonable opportunity to present the case. The opportunity of presenting a case includes the opportunity to adduce one's own evidence and the opportunity to test the opponent's evidence.

It was observed that Justice Wilcox also held in Hayes that the right to cross-examine means the right effectively to cross-examine and that if directions given by a court or tribunal have the effect of fettering cross-examination such that a witness' evidence cannot be tested, procedural fairness had been denied.

In relation to the Tribunal's finding that documents relevant only to Mr Maganga's credit were inadmissible, Her Honour stated that:

In Fried, Justice Weinberg 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]).

Unlike Fried, Mr Maganga's credit constituted the main issue in this proceeding. As Justice Weinberg noted in Fried, 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.

In relation to the Tribunal's suggestion that Comcare's request to inspect the summonsed material amounted to a 'fishing expedition' Her Honour stated that:

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 Justice Graham; Alister at 451 per Justice Brennan). 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 an issue in the proceedings. Further, it is not fishing to seek documents going to the credit of a crucial witness (Fried at [24]).

In relation to the Tribunal's observations that it would be 'unfair' to Mr Maganga for the summonsed material to be admitted into evidence, it was held that the test for sufficient relevance was not whether the material would show that Mr Maganga had made an inconsistent statement in giving evidence to the Tribunal.

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 Justice Beaumont; Telstra Corporation at [47], [52] per Justice Graham). 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]).

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) 18 ACLC 609 per Justice Bryson 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 Chief Justice King, Justices Bollen and Mullighan agreeing; R v Spizzirri [2001] 2 Qd R 686 at [24] per Justice Pincus, Justice White agreeing).


Her Honour rejected the narrow approach adopted by the Tribunal in relation to the inspection and admissibility of summonsed material relating to Mr Maganga's credit. It was held that where credit is the main issue in a case, documents relevant only to the credit of a witness are admissible. It was also held that seeking documents only relevant to the credit of a witness was not an impermissible fishing expedition and that a party seeking to inspect documents need not establish, prior to inspection, that the documents will establish anything.

The crucial point is that the Tribunal denied Comcare procedural fairness by not allowing it access to the summonsed documents. That is a question of law for the purposes of section 44 of the AAT Act (Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 at [3] - [8] per Justice Gray and Justice North). It is also a ground of judicial review (section 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 was 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 to effectively cross-examine.

The findings of Justice Bennett in Maganga v Comcare [2008] FCA 285 provide good guidance for determining authorities dealing with an applicant whose credibility is questionable and in relation to whom there may be some damning documents that it would like to place before the Tribunal. Justice Bennett found that documents relating only to credit may be summonsed, inspected and used in cross-examination where credit is the main issue in a case. In fact, Justice Bennett held that denying a party use of documents in this way could be a denial of procedural fairness.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.