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.
THE CREDIT IN QUESTION
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.
THE TRIBUNAL'S DENIAL
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 FEDERAL COURT APPEAL
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 ).
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  FCA 1398 at ,  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 ).
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 ,  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  FCA 60; (2001) 105 FCR 136 at ).
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 ) or if they might be used for a legitimate forensic purpose in cross-examination (Maronis at , ; Carter v Hayes SM (1994) 61 SASR 451 at 453, 456-457 per Chief Justice King, Justices Bollen and Mullighan agreeing; R v Spizzirri  2 Qd R 686 at  per Justice Pincus, Justice White agreeing).
THE BIG PICTURE
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  FCAFC 143; (2003) 131 FCR 28 at  -  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  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.
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