Australia: Giving evidence before the WA State Administrative Tribunal

Last Updated: 22 March 2019
Article by Anne Wood

Giving evidence before SAT can be daunting, this article gives a quick guide to the process involved in giving evidence before the State Administrative Tribunal. 

Giving evidence before SAT has many similarities with (but some important differences from) giving evidence in a Court. This is because a Court aims to apply the law to a particular scenario and reach a judgement without working out what is the fair outcome (other than in making sure the process of the trial is fair and in sentencing or costs orders).

The Court must take the law as it is and apply it every single time, without discretion. SAT however is a Tribunal not a Court.

Whilst it is also bound by the law, its purpose is make sure that the fair and preferable decision is made. It is also designed to review decisions that a non judicial body has made, such as Local Governments or Government Departments.

These decisions were not made solely on the basis of legality but also on the basis of what is fair and the best for the community. As discretion was involved in the original decision, and SAT is putting itself in the original decision makers shoes, SAT must also have discretion to determine the review.

Similarities between SAT and a Court when giving evidence

Some of the similarities are that you –

  • Bow to the Magistrate or SAT Member at the door of the Courtroom or SAT hearing room;
  • Must tell the truth;
  • Either swear to tell the truth (that is swearing to tell the truth by almighty God or another deity) or you “affirm” or solemnly promise to tell the truth;
  • Prepare witness statements;
  • Have a special duty if you are an expert;
  • Get examined, cross examined and re examined; and
  • Spend a lot of time in the corridors, bored, waiting to be called in to give evidence.

Differences between SAT and a Court when giving evidence

Some of the differences are –

  • Most of the time everyone in a SAT hearing sits down;
  • SAT can take any evidence not just evidence that meets the rules of evidence;
  • Both sides of a SAT matter have to provide witness statements;
  • In a Criminal Magistrates Court matter only the Prosecution is required to provide full disclosure. The Defence is only required to provide any –
    • alibi evidence 14 days before trial; and
    • expert evidence 14 days before trial.
  • SAT Members tend to be more interactive than Magistrates;
  • When giving expert evidence in SAT the experts are usually “hot tubbed” or give concurrent evidence.

Special Duties of Experts when giving evidence in SAT

The Tribunal’s rules state that an expert who attends a mediation, a compulsory conference or a conferral of experts directed by the Tribunal or who gives evidence at a hearing has the following obligations to the Tribunal –

(a) an overriding duty to assist the Tribunal impartially on matters relevant to their area of expertise;
(b) a paramount duty to the Tribunal and not to the party who engaged them; and
(c) a responsibility to convey their expert opinion to the Tribunal and not to act as an advocate for the party who engaged them.

(SAT Info Sheet 11 Guide for experts giving evidence.)

In their witness statement, the expert must:

“(a) acknowledge that he or she has read this pamphlet and the Tribunal’s orders relating to expert evidence and agrees to be bound by the expert’s obligations to the Tribunal stated in the pamphlet and orders; and
(b) specify:

(i) his or her qualifications, training and experience in the field of expertise;
(ii) the facts, matters and assumptions on which the opinions in the statement of evidence are based (a letter of instructions may be annexed);
(iii) reasons for each opinion expressed;
(iv) if applicable, that a particular question or issue falls outside his or her field of expertise;
(v) any literature or other materials utilised in support of the opinions; and
(vi) any examinations, tests or other investigations on which he or she has relied and identify and give details of the qualifications, training and experience of the person who carried them out.

If the expert believes that the statement may be incomplete or inaccurate without some qualification (for example that his or her opinion is not a concluded opinion because of insufficient research or insufficient data), then that qualification must be stated.”

(SAT Info Sheet 11 Guide for experts giving evidence.)

Key points to note

  • SAT is not bound by the rules of evidence, this means that the disclosure requirements are wider. Make sure you include anything relevant to the making of the decision under review.
  • Your witness statement is YOUR evidence and may be used as the entirety of your evidence (this happens about 50% of the time) so make sure it is right.
  • Make sure any expert evidence complies with the Information Sheet 11 – Guide for experts giving evidence. This is very important.
  • If you are an expert you will probably have to prepare a joint statement and/or give concurrent evidence. This is normal and not a reflection on your status as an expert.
  • Bring a book or something to occupy you as you are likely to be waiting outside the hearing room a long time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Anne Wood
 
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