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No lawyers and a deluge of documents The challenge of the hearing rule Jim Simpson.

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Presentation on theme: "No lawyers and a deluge of documents The challenge of the hearing rule Jim Simpson."— Presentation transcript:

1 No lawyers and a deluge of documents The challenge of the hearing rule Jim Simpson

2 Common themes across tribunals Parties not seeing some documents before the hearing Members likewise Voluminous documents Varying relevance High volume jurisdictions Mandate for informality, minimal legalism, inform as see fit

3 Guardianship Tribunal context Inquisitorial but also adversarial rights Substitute decisions for a person with disability. Parties –person, applicant, carer etc Lawyers by leave and uncommon GT investigation officer assists preparation Documents from a range of sources Parties often in conflict Documents often inflammatory Seek to conciliate Guiding principles- paramountcy, family relationships

4 A vital circle of relationships Family Service providers The person

5 The hearing rule Kioa v West A person is entitled to know the case against him or her and a reasonable opportunity to respond. What is required depends on all the circumstances Covers material that is adverse, credible, relevant and significant to the decision. And this is not a question of how the tribunal ultimately sees the evidence (Veal)

6 It can be sufficient to give notice of the substance (Veal). But not with some very significant documents (Moore) Must be a real opportunity to respond. Party may need time to consider and seek other evidence. (Courtney v Peters) What is required is qualified by informal, inquisitorial operation of some tribunals. (State of Queensland v Mahommed)

7 Qualifications Urgency or special hazard (Commissioner of Police v Tanos) eg risk of violence. Consent Preserving confidentiality of information or source – a balance (Veal) Where notice would frustrate the purpose of the proceedings (Kioa v West) and so-

8 Paramountcy Paramountcy may qualify procedural fairness and allow eg a welfare report being withheld from a parent (J v Lieschke) or a parent not being given notice of care proceedings (Re Andrew) How far can this be taken?

9 What the GT does Parties are sent applications, and sometimes other key documents Just pre hearing, parties read investigation officer’s report In the hearing, members: – Identify contested/unresolved issues – Put to parties evidence they need to answer – Give parties an opportunity add evidence, question. – Seek to develop common ground – May put a tentative view

10 Tricky issues Procedural fairness for the person The party who turns up with a box of documents Inflammatory material – How much detail to put, reframing in less inflammatory terms Naming sources – Confidentiality requests – Preservation of relationships When is an adjournment required? To what degree to deal with procedural fairness decisions in our reasons

11 References Commissioner of Police v Tanos (1958) 98 CLR 383 Courtney v Peters (1990) 98 ALR 645 J v Lieschke (1986) 162 CLR 477 Kioa v West (1985) 159 CLR 550 Moore v Guardianship and Administration Board [1990] VR 902 Re Andrew [2004] NSWSC 842 State of Queensland v Mahommed [2007] QSC 018 Veal v Minister for Immigration and Ethnic Affairs [2005] HCA 72

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