ADVOCACY AND EVIDENCE BEFORE MERITS REVIEW TRIBUNALS: MCLD Session ACT Government Solicitor 7 November 2013 (Marcus Hassall, Henry Parkes Chambers.)

Introduction: Re Davsa Forty Ninth Pty Ltd and Commissioner of Taxation (2012) 128 ALD 619 per Senior Member O’Loughlin at [8]: “While the tribunal is not bound by the rules of evidence and can inform itself as it sees appropriate in the circumstances, the tribunal regularly applies the rules of evidence. There is good reason for doing so. The rules of evidence are rules that have been developed over a long period with a view to regulating litigious processes and providing a sound and reliable foundation for conclusions necessary to resolve disputes between parties.”

Statutory framework AAT (AAT Act 1975 (Cth)): Procedure is within the discretion of the Tribunal; To be conducted “with as little formality and technicality, and with as much expedition, as … a proper consideration of the matters before the Tribunal permit”; (my emphasis) Not bound by the rules of evidence and may inform itself in such manner as it thinks fit; (section 33(1)) Decision-maker must assist Tribunal to make its decision in relation to the proceeding (section 33(1A); Parties may be legally represented (section 32); Parties are to be given an opportunity to make submissions concerning evidence (section 39).

Statutory framework (cont’d) ACAT (ACT ACAT Act 2008 (ACT)): The Tribunal may decides its own procedure (to be “as simple, quick, inexpensive and informal as is consistent with achieving justice”) (section 23); (my emphasis) The Tribunal may inform itself in any way it considers appropriate (e.g. ask for expert advice, rely on previous experience), but must observe natural justice and procedural fairness (section 26); (my emphasis) Parties may be legally represented (section 30).

Statutory framework (cont’d) The critical role of “evidence”: decisions in contested matters are always made by reference to evidence – oral, documentary, expert opinion (sometimes coming from within the Tribunal), matters subject to judicial notice. Thus merits review tribunals have: Power to summons a person to give evidence and/or produce documents; Power to take oral evidence including requiring a person to take, and administering, an oath or affirmation. (section 40, AAT Act; section 41, ACAT Act) Increasing use of witness statements.

Evidence in merits review proceedings Merits review tribunals are “not bound by the rules of evidence”: what does this mean in practice? Many of the rules of evidence are based on considerations of natural justice, procedural fairness, human intuition > they are often applied in Tribunals expressly or by default.

Evidence in merits review proceedings - relevance “Relevance”: The most fundamental rule of evidence. It is applied mostly in an informal/intuitive manner in merits review proceedings. Also has a legislative basis at least in AAT: e.g. Tribunal can require a person to answer a question only if it is “relevant to the hearing” (section 41(4)(b), AAT Act). McCutcheon & Anor v Federal Commissioner of Taxation [2008] FCA 318 per Greenwood J at 39: “Although of course the Tribunal by s 33 of the AAT Act is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate, the Tribunal might usefully be guided by the foundation rule in relation to the relevance of evidence contained in s55(1) of the Evidence Act 1995 (Cth) in these terms: ‘The evidence that is relevant in a proceeding is evidence that if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.” Entitled to object to questions/evidence/submissions/subpoenas on the grounds of lack of relevance (the Tribunal may be grateful!) See also Re Dunstan and Comcare (2009) 113 ALD 176.

Evidence in merits review proceedings - hearsay Hearsay: Evidence given by a person without direct knowledge of the matter stated. Often permitted in merits review proceedings, but there are (and should be) limits, particularly in respect of oral evidence. See e.g. Re Davsa Forty Ninth Pty Ltd and Commissioner of Taxation (2012) 128 ALD 619. Wherever possible, witnesses should give/be required to give evidence of relevant conversations in direct speech.

Evidence in merits review proceedings – opinion evidence Opinion evidence (including expert evidence): Tribunals are often asked to adjudicate on legal and/or factual disputes requiring specialised knowledge – they rely on opinion evidence. Note the AAT “Guidelines for Persons Giving Expert and Opinion Evidence” and the ACAT “Expert Witness Code of Conduct”: Merits review tribunals now expressly require “expert witnesses” to be independent. They owe (and must acknowledge that they owe) their primary duty to the Tribunal; Experts must establish their expertise, and have relevant expertise. Experts (and others giving opinion evidence) must articulate any factual or other assumptions on which their opinions are based. See e.g. Munro v Repatriation Commission [2010] AATA 942 at “The courts have developed a number of principles over the years regarding expert evidence. Expert evidence is now the subject of the Evidence Act 1995 (Evidence Act) although the principles remain valid. This Tribunal is not subject to the rules of evidence but the principles are equally applicable for they are relevant in determining whether expert evidence is probative and, if so, the weight that it should be given.”

Evidence in merits review proceedings – other issues Leading questions which go to important issues should be objected to. See e.g. Re Bessey and Australian Postal Corporation (2000) 60 ALD 529 at [31]-[32]. Unfair questions – see e.g. Re Gorrie and Repatriation Commission [2008] AATA 793 per Deputy President Hack SC and Senior Member McCabe at [34]: “It has been the case for a considerable time that it is impermissible to cross-examine a witness upon the statements or documents of another witness in the proceedings. … Whilst the Tribunal is not bound by the rules of evidence the reason for the rule makes it all the more important that witnesses in the Tribunal, who will often be disadvantaged, not be cross-examined in this way. It is simply unfair to do so. Moreover, it will generally be unhelpful to do so. It is no answer to say that cross- examination is being undertaken in this way in order to give the witness the opportunity to comment upon the matters contained in the document. That can be done without putting the documents of another in the hands of the witness.” So also offensive or insulting questions. Witnesses should not coach each other (or be coached by their lawyers), and the opportunity for witnesses to “adapt” their evidence should be monitored.

Evidence in merits review proceedings – burden and standard of proof Burden and standard of proof: Burden of proof: There is no presumption that the decision under review is correct – the Tribunal must consider the matter afresh and reach the correct and preferable decision (i.e. no burden/onus on either party); The Tribunal may draw Jones v Dunkel inferences. Standard of proof: The balance of probabilities/reasonable satisfaction; The Tribunal must reach a level of “actual persuasion” in relation to the legislative preconditions for the making of the relevant decision; The Briginshaw principle may not be applicable in merits review proceedings (protective jurisdiction): “… in merits review, the seriousness or importance of the issue cannot be permitted to change the standard of proof unless the change is provided for in the relevant legislation” (at [264]). (See Phillips v Inspector-General in Bankruptcy [2012] AATA 788 at [224]-[264].)

Evidence in merits review proceedings (cont’d) Some particular situations where the rules of evidence do not apply: T-documents and similar documents – submissions can still be made. “Views” – incorporate into oral evidence. Taking objections based on the rules of evidence.

Advocacy in merits review proceedings The role of lawyers/advocates: AAT Act: Parties may be legally represented (section 32); Parties are to be given an opportunity to make submissions concerning evidence (section 39). ACAT Act: Parties may be legally represented (section 30). Tribunals are required to observe natural justice. As in all cases, first duty is to the Tribunal, and should aim to assist the Tribunal (particularly as model litigants): Disinterestedness. Frankness before the Tribunal (including advising the Tribunal of relevant authorities which are against the client’s case). Efficient administration of justice. Integrity of evidence. (See further Legal Profession (Barristers) Rules 2008 (ACT)).

Advocacy in merits review proceedings (cont’d) Addressing the Tribunal: Member/Senior Member/President/Presidential Member OR title and surname (see further ACAT website: About ACAT/What to expect at ACAT). Multi-member Tribunals; Addressing the Tribunal whilst seated/remaining professional. Practical aspects of preparation: Be in a position to provide realistic time estimates; Be in a position to advise the Tribunal of the real issues in dispute; If possible, find out the Tribunal members and their areas of interest/expertise. Be prepared to engage in a dialogue with Tribunal members: Have a case theory; Know what the strengths and weaknesses of your case and the opponent’s case are, and be prepared to address them; Have sufficient copies of critical documents to be referred to in evidence/submissions (one for each party and Tribunal member).

Advocacy in merits review proceedings (cont’d) Dealing with witnesses: Proof and prepare witnesses; Don’t ask leading questions in chief; The importance of cross-examination: Look for opportunities for concessions. Identifying and putting critical questions. Final submissions: Providing a clear outline of what you will address and how will assist the Tribunal and your case; Identify the legal criteria/prerequisites the Tribunal must consider; Identify what is the correct and preferable decision, and explain why; Oral and/or written submissions which are cross-referenced to the evidence; Address issues raised by the Tribunal; Keep rhetoric to a minimum.

QUESTIONS?