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Evidence, cross examination

Quadi (aka Protonotariou) v The Reject Shop (Aust) PL [Allianz] [2008] NSW WCC PD 3. Roche DP. 09.01.08.

Injury finding appeal in WCC dismissed.

As put by Roche DP [41]: "It is argued that the failure to cross-examine on these issues has resulted in Ms Quadi being denied procedural fairness in that she was not given an opportunity to explain the alleged inconsistencies."

Noting reference to the Guidelines for the Practice of Conciliation and Arbitration, the deputy president said [48]: "There is no doubt that the Commission and its arbitrators are bound to comply with the rules of natural justice and procedural fairness: Inghams Enterprises Pty Ltd v Zarb [2003] NSWWCCPD 15," before considering procedural fairness incidents exposed in authorities, including Dr M Allars Introduction to Australian Administrative Review (1990) at 236; In Re Minister for Immigration & Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, "practical fairness"; Muin v Refugee Tribunal [2002] HCA 30 per McHugh J at [123] "opportunity to be heard"; Aluminium Louvres & Ceilings PL v Zheng [2006] NSWCA 34 at [20] "natural justice in context"; Gibbs CJ in NCSC v News Limited [1984] HCA 29; (1984) 156 CLR 296 at 312, "fairness in all circumstances"; Ucar v Nylex Industrial Products PL [2007] VSCA 181 per Redlich J at [22] "opportunity to all parties"; McHugh J in Re Refugee Tribunal; ex parte AALA [2000] HCA 57; (2000) 204 CLR 82, "adjudicator bound to warn of risk to interest, including credit".

Roche DP described the appellant as waging unexpressed but essentially a Browne v Dunne (1894) 6 R 67 point.

"In normal circumstances, a court will be inclined to disregard a submission on evidence that was not tested by cross-examination: per Glass JA in Seymour v ABC (1990) 19 NSWLR 219 at 225C", and noting other evidence authorities:

(ii) a rule to the weight or cogency of the evidence; SRA v Brown [2006] NSWCA 220 per Basten JA at [54].

"Neither 'rule' can be strictly applied in the Commission because all evidence must be filed with the application or the reply and there is no automatic right to cross-examine. Late evidence is only allowed by leave if it is in '˜the interests of justice': see Rule 10.3."

Further, at [75]: "It was open to Ms Quadi's legal representative to seek leave to call oral evidence to explain any inconsistencies in the evidence. He did not do so. Ms Quadi suffered no 'practical injustice': Lam (above) in the way the case was conducted.

"The risk of an adverse finding on injury was obvious on the face of the documents attached to both the second Application and the Reply. Ms Quadi had every opportunity to present her case and to deal with matters that were adverse to her interests: Muin (above)."

Appeal dismissed, no order to costs.

A: Teakle Ormsby George. R: Ellison Tillyard Callanan.

Ecowize North PL [CGU] v Ballard [2007] NSWWCCPD 179. Roche DP. 15.08.07.

Roche DP quoted Bryson JA in Aluminium Louvres &c v Zheng[2006] NSWCA 34: "There is no legal right to cross-examine an applicant or other witness in the WC Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration."

Forests NSW v Hancock No.2 [2007] NSWWCCPD 191. Snell ADP 06.09.07:

61. Cross-examination is not available as of right, but is discretionary; it may be disallowed completely, or limited in its extent (see Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34). The operation of the rule in Browne v Dunne, and the applicability of such rules of procedural fairness, in the Commission, are discussed by Roche DP in Prestige Property Pty Limited v Rafiq [2006] NSWWCCPD 355. Consistent with the passages quoted above, if an employer proposes asserting a worker's evidence is lacking in credit, based upon alleged specific inconsistencies with other evidence, it would be a reasonable expectation the employer would seek to cross-examine, at least to a limited extent, so the matters allegedly going to credit can be put to the worker. This is consistent with principles of fairness discussed in Davis and King. See also Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580. It also is likely to be of assistance to the arbitrator, in assessing the success (or otherwise) of the attack on the worker's credit. Obviously the availability of cross-examination, in each individual case, will be in the discretion of the arbitrator. These principles of fairness would need to be considered, along with other competing considerations, including the Guideline for the Practice of Conciliation/Arbitration Process.

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