RULES OF EVIDENCE IN PROCEEDINGS BEFORE INDUSTRIAL

TRIBUNALS *

A. Statutory framework of the Western Australian Industrial Relations Commission –

an administrative tribunal that is also a court

[1] Introduction

The Western Australian Industrial Relations Commission (the Commission) is created by

statute as a court of record and has a judicial seal.1 It is a court within the meaning of s 471B

of the Corporations Law (Cth).2 It has also been found to be a court within the meaning of

s 78B of the Judiciary Act 1903 (Cth).3

The Commission is unlike federal tribunals such as the Fair Work Commission or the

Australian Administrative Tribunal which for constitutional reasons are unable to exercise

judicial power.

The principal jurisdiction of the Commission is provided for in s 23(1) of the Industrial

Relations Act 1979 (WA) (the IR Act) which provides that subject to this Act, the

Commission has cognizance of and authority to enquire into and deal with any industrial

matter. The principal industrial matters the Commission deals with in its general jurisdiction

are:

(a) industrial matters referred by employers and industrial organisations under

s 29(1)(a) of the IR Act which range in matters in dispute between employers

and employees including disputes referred to the Commission to make awards

which requires a determination of future rights of employees;

(b) industrial matters referred under s 29(1)(b)(i) of the IR Act, by an employee that

he or she has been harshly, oppressively or unfairly dismissed from his or her

employment;

(c) industrial matters which constitute a claim by an employee under s 29(1)(b)(ii)

of the IR Act that he or she has not been allowed by his employer a benefit, not

being a benefit under an award or order, to which he or she is entitled under his

or her contract of employment;

(d) applications for a declaration made under s 46 of the IR Act of the true

interpretation of an award (including a general order and an industrial

agreement).

The Commission exercises judicial power in industrial matters such as claims for contractual

benefits pursuant to s 29(1)(b)(ii) of the IR Act and it exercises arbitral power (that is the

creation of future rights and conditions) in other matters that cannot be classified as 'judicial'

* Jennifer Smith, Acting President, Western Australian Industrial Relations Commission, 20 October 2015 1 Section 12 of the Industrial Relations Act 1979 (WA). 2 Helm v Hansley Holdings Pty Ltd (In Liq) [1999] WASCA 71; (1999) 118 IR 126; (1999) 79 WAIG 1860.

3 Rogers v J-Corp Pty Ltd [2015] WAIRC 00862; (2015) 95 WAIG 1513.

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matters, such as the making of awards. It also exercises administrative functions such as the

registration of industrial agreements under s 41 of the IR Act and the registration of unions

and employer organisations under s 58 of the IR Act and changes to their rules under s 62 of

the IR Act. Insofar as it exercises judicial power it can be described as a 'court substitute'

tribunal as it performs its powers in a procedural manner that is usually vested in the ordinary

hierarchy of a traditional court.4

[2] Is the determination of matters by the Commission inquisitorial or adversarial?

By providing in s 23(1) of the IR Act that the Commission is empowered to enquire into and

deal with any industrial matter, it could be said that the statutory command is to create the

Commission as an inquisitorial or investigative body as opposed to adversarial body. In an

inquisitorial process, the decision-maker can embark upon a complete inquiry and is able to

seek out and test the evidence.5

The following provisions enable the Commission to undertake an inquisitorial role:

(a) s 27(1)(i) empowers the Commission to refer any matter to an expert and accept

the expert's report as evidence; and

(b) s 27(1)(p), s 27(1)(q) and s 27(1)(r) empower a Commissioner to enter premises,

inspect work, material machinery, books, records and question any person.

The inquisitorial powers of the Commission are sometimes utilised by members of the

Commission when exercising arbitral power.6 However, it would be unusual if not in most

matters inappropriate to invoke the powers in s 27(1)(i), s 27(1)(p), s 27(1)(q) and s 27(1)(r)

in matters requiring the determination of a contractual benefit or a claim of unfair dismissal

where the burden and onus of proof lies on the parties to prove particular matters.

When considering a claim for contractual benefits made under s 29(1)(b)(ii) of the IR Act,

whilst the jurisdiction of the Commission is pursuant to s 23(1) of the IR Act to enquire into

and deal with that matter, the Commission must in determining such a claim apply common

law principles of the law of contract.7 If a claim is made out the Commission is to award

compensation in the nature of damages for the failure to provide the contractual benefit or

benefits.

In any event, through its statutory powers and duties under the IR Act, the Commission

adopts the practices and procedures of the adversarial processes of a conventional court. This

is reflected in s 27(1)(b) and reg 40 - reg 44 of the Industrial Relations Commission

Regulations 2005 (WA) whereby, in all proceedings before the Commission, orders can be

4 See the discussion by Professor Neil Rees, 'Procedure and evidence in "court substitute" tribunals', (2006) 28 Australian Bar Review 41. 5 See the discussion by Narelle Bedford and Robin Creyke, 'Inquisitorial Processes in Australian Tribunals', (2006) AIJA 1, 2 - 10. 6 The effect of the inquisitorial powers of the Commission and the statutory command to provide procedural fairness was recently discussed in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00562; (2014) 94 WAIG 775. 7 Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114; (2004) 136 IR 156; (2004) 84 WAIG 2152 [24]

(Steytler J).

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obtained for examination of a witness and depositions obtained, applications can be made to

set aside a summons, directions can be made to require witnesses to give their oral evidence

in chief in writing and applications can be made for evidence to be taken by telephone or

video.

The procedures for hearing matters are set out in reg 33 of the Industrial Relations

Commission Regulations which provides:

(1) Subject to subregulation (2), the procedure before the Commission, except before the President, on an appeal to be heard by the Full Bench or the Commission in Court

Session, is as follows —

(a) the applicant may make a brief statement outlining the applicant's case and

describing the evidence the applicant will bring;

(b) the applicant may then call the applicant's witnesses;

(c) unless the Commission otherwise permits, the examination in chief may be

conducted by not more than one person on behalf of the applicant, and the cross-examination may be conducted by not more than one person on behalf of

each respondent;

(d) the applicant will be allowed to re-examine but the re-examination must be confined to matters arising out of the cross-examination;

(e) the case for the applicant must then close;

(f) the respondent may then state the respondent's case and call the respondent's

witnesses and paragraphs (c) and (d) apply with such modifications as are necessary;

(g) if the respondent has produced evidence in support of any counter-proposal the

applicant may call witnesses in respect of the counter-proposal;

(h) the respondent may then make closing submissions as to the evidence and the

law;

(i) the applicant may then make closing submissions as to the evidence and the law;

(j) the respondent then has a right of reply limited to any questions of law raised that

could not reasonably have been anticipated.

(2) The procedure in subregulation (1) may be modified or varied by the Commission

where the Commission considers it just or expedient so to do.

(3) The procedure to be followed with respect to any intervener is to be as directed by the

Commission in a particular case.

Whilst reg 33(2) contemplates that the procedure may be modified or varied by the

Commission, it would be very unusual to do so in a matter where the factual issues going to

the credibility or reliability of a witness or witnesses are in dispute. When a factual matter is

squarely an issue in dispute between the parties it usually can only be determined by the

exchange of all relevant documents prior to the hearing and adducing oral or written evidence

through the calling of witnesses who are examined and, if required by the opposing party,

cross-examined.

It is also important to be mindful of s 33(3), s 33(4) and s 33(5) of the IR Act. These

provisions prohibit trade secrets or financial position of a witness or party being disclosed

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except to the Commission without the consent of the person entitled to the trade secret or

non-disclosure.

Regulation 45 of the Industrial Relations Commission Regulations provides for applications

to be made for orders requiring parties to serve on each other experts' reports 21 days prior to

the date of a hearing.

Thus, although the Commission is empowered to exercise inquisitorial powers the procedural

model adopted by the Commission for the majority of its hearings it follows adversarial

practices adopted in conventional courts.

B. The rules of evidence

[1] Do the rules of evidence apply in proceedings before the Commission and if so to

what extent?

Justice David Byrne QC, former judge of the Victorian Supreme Court and a former editor of

the Australian edition of Cross on Evidence, in Evidence for Arbitrators8 wisely said that:

Evidence is essentially the means of proving a fact before a tribunal. Seen as such, it represents the bricks from which a case is constructed. The mortar in this image represents

the argument.

To this, I would add, that the argument is not only the mortar but is in adversarial

proceedings also part of the wrecking ball that is to be utilised to demolish your opponent's

case.

The grant of power to the Commission to receive evidential and other material upon which it

can determine all matters (whether proceedings involve an exercise of arbitral, judicial or

administrative power) is set out in s 26 of the IR Act. Section 26(1), s 26(2) and s 26(3)

provide:

(1) In the exercise of its jurisdiction under this Act the Commission —

(a) shall act according to equity, good conscience, and the substantial merits of the

case without regard to technicalities or legal forms; and

(b) shall not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and

(c) shall have regard for the interests of the persons immediately concerned whether

directly affected or not and, where appropriate, for the interests of the community as a whole; and

(d) shall take into consideration to the extent that it is relevant —

(i) the state of the national economy;

(ii) the state of the economy of Western Australia;

(iii) the capacity of employers as a whole or of an individual employer to pay

wages, salaries, allowances or other remuneration and to bear the cost of

improved or additional conditions of employment;

8 The Arbitrator and Mediator July 2001.

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(iv) the likely effects of its decision on the economies referred to in

subparagraphs (i) and (ii) and, in particular, on the level of employment and on inflation;

(v) any changes in productivity that have occurred or are likely to occur;

(vi) the need to facilitate the efficient organisation and performance of work

according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises;

(vii) the need to encourage employers, employees and organisations to reach

agreements appropriate to the needs of enterprises and the employees in those enterprises.

(2) In granting relief or redress under this Act the Commission is not restricted to the

specific claim made or to the subject matter of the claim.

(3) Where the Commission, in deciding any matter before it proposes or intends to take

into account any matter or information that was not raised before it on the hearing of

the matter, the Commission shall, before deciding the matter, notify the parties

concerned and afford them the opportunity of being heard in relation to that matter or information.

Section 26 of the IR Act applies to all proceedings in the Commission. Section 26(1)(a) and

s 26(1)(b) provide for a flexible approach to the receipt of evidence and other material in

proceedings. However, by operation of s 26(1)(b) the Commission has a discretion whether

to accept material upon which it may rely upon in reaching a decision.

The power to act according to equity and good conscience in s 26(1)(a) of the IR Act does not

confer jurisdiction to decide a matter by what is fair and right.9 Nor does it excuse the

Commission from applying the general law.10

Such a provision provides flexibility in matters

of procedure only. Also, s 26(1)(a) must be construed to require the application of the rules

of procedural fairness.11

Section 26(3) expressly by legislative command requires the Commission to apply the rules

of procedural fairness.12

The procedural provisions in s 26 of the IR Act are supported by

procedural powers in s 27 of the IR Act [see attachment].

Section 26(1)(b) does not empower the Commission to ignore all of the rules of evidence or

to act on any submission or material put before it. Some rules of evidence such as the

application of the doctrine of public interest immunity and legal professional privilege can,

where the circumstances of the matter raise the application of these rules, be invoked in all

proceedings.

In Pochi v Minister for Immigration and Ethnic Affairs the President of the Administrative

Appeals Tribunal, Brennan J, made it plain that where a tribunal is not bound by the rules of 9 Nais v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 223 ALR 171; (2005) 228 CLR 470 [34] - [35] (Gummow J). 10 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26, 29 (Gleeson CJ and Handley JA); applied in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 162 ALR 577; (1999) 197 CLR 611. 11 Sue v Hill [1999] HCA 30; (1999) 163 ALR 648; (1999) 199 CLR 462 [42] (Gleeson CJ, Gummow and Hayne JJ); applied in K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 252 ALR 471; (2009) 237 CLR 501 [125] (Gummow, Hayne, Heydon, Crennan and Kiefel JJ). 12

Whether the duty raised by the operation of s 26(3) is different to the rules of procedural fairness that apply by operation of the common law is not dealt with in this paper.

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evidence that did not mean they could have regard to any material. His Honour observed it

was well established that in such circumstances the tribunal should only act on material that

is reliable and logically probative. His Honour said:13

The Tribunal and the Minister are equally free to disregard formal rules of evidence in

receiving material on which facts are to be found, but each must bear in mind that 'this

assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force', as Hughes C.J. said in - Consolidated Edison Co.

v. National Labour Relations Board [1938] USSC 176; (305 U.S. 197 at p.229). To depart

from the rules of evidence is to put aside a system which is calculated to produce a body of

proof which has rational probative force, as Evatt J. pointed out, though in a dissenting judgment, in The King v. War Pensions Entitlement Appeals Tribunal; ex parte Bott

[1933] HCA 30; (1933) 50 CLR 228 at p.256:

'Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, "bound by any rules of evidence." Neither it

is. But this does not mean that all rules of evidence may be ignored as of no account.

After all, they represent the attempt made, through many generations, to evolve a

method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry

which necessarily advantage one party and necessarily disadvantage the opposing

party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice."'

That does not mean, of course, that the rules of evidence which have been excluded expressly

by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock L.J. in Reg. v. Deputy

Industrial Injuries Commissioner, Ex parte Moore [1965] 1 Q.B. 456 at p.488 said:

'These technical rules of evidence, however, form no part of the rules of natural justice.

The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends

logically to show the existence or non-existence of facts relevant to the issue to be

determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin

or consult an astrologer, but he may take into account any material which, as a matter

of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to

whom Parliament has entrusted the responsibility of deciding the issue.'

Lord Denning M.R. in T.A. Miller Ltd. v. Minister of Housing and Local Government

[1968] 1 WLR 992 at p.995 said much the same:

'Tribunals are entitled to act on any material which is logically probative, even though

it is not evidence in a court of law.'

and he repeated that observation in Kavanagh v. Chief Constable of Devon and Cornwall

[1974] 1 Q.B. 624 at p.633. In the United States where considerable judicial attention has

been given to fact finding by administrative tribunals (see Schwartz Administrative Law,

Boston, 1976 paras. 115 et seq), substantially the same principle has been expressed. It was

thought, at one time, that the Consolidated Edison judgment required that some legal proof had to be adduced, and that hearsay evidence alone could not support an adverse finding (see

Schwartz, op.cit., para. 118). But in Richardson v. Perales, [1884] USSC 274; 402 US 389 at

p.407 the Consolidated Edison case was construed in this way:

13

[1979] AATA 64; (1979) 26 ALR 247, 256 - 257.

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'The contrast the Chief Justice was drawing ... was not with material that would be

deemed formally inadmissible in judicial proceedings but with material "without a basis in evidence having rational probative force." This was not a blanket rejection by the

Court of administrative reliance on hearsay irrespective of reliability and probative

value. The opposite was the case.'

Thus, the Commission must not only act on material that is logically probative, but on

material that is relevant to the issues raised in the proceedings.

Further, in receiving relevant and probative material it must do so in a manner that is fair; that

is, must comply with the rules of procedural fairness.14

[2] How do the rules in Browne v Dunn and Jones v Dunkel impact upon a fair

hearing?

The rule in Browne v Dunn15

requires a cross-examiner of a witness in adversarial litigation

to put to the witness the nature of the case on which the cross-examiner's client proposes to

rely in contradiction of that witness.16

It is a rule founded in basic common sense and

fairness.17

The rule, however, has no application to proceedings that are inquisitorial.18

The Full Bench of the Commission has held that the rule in Browne v Dunn is fundamental

to the proper conduct of a hearing of applications made under s 29(1) of the IR Act (claims of

unfair dismissal and contractual benefits).19

In Singh v Dhaliwalz Pty Ltd I and Beech CC found that where contested claims proceed in

the Commission by the giving of witness evidence and cross-examination, the rule in Browne

v Dunn should be explained to self-represented parties prior to the commencement of

hearing.20

In Singh v Dhaliwalz Pty Ltd both parties were unrepresented and no directions

were given to either party by the Commissioner hearing the matter as to how each party

should conduct their case. One of the central issues in dispute was a claim for overtime.

After the applicant gave evidence about his record of the hours he said he worked, the

respondent called a witness and tendered into evidence timesheets which purported was a

record of hours worked by the applicant and which the employer relied upon in its defence

against the claim of overtime. When the timesheets were tendered, the applicant told the

Commission that he had never seen the documents before. He did not, however, seek to

cross-examine the witness about these documents. The Commissioner at first instance relied

upon the timesheets in making her decision to dismiss the claim for overtime. I and

Beech CC held the Commissioner erred in doing so. We found:21

14 The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00562; (2014) 94 WAIG 775. 15 (1894) 6 R 67 (HL). 16 Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437; (2003) 77 ALJR 1909 [55] (Gummow and Heydon JJ). 17 VN Railway Pty Ltd v Commissioner of Taxation [2013] FCA 265; (2013) 211 FCR 188 [49] (Tracey J). 18 Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437; (2003) 77 ALJR 1909 [57] (Gummow and Heydon JJ). 19 Singh v Dhaliwalz Pty Ltd [2013] WAIRC 00133; (2013) 93 WAIG 197 [31] (Smith AP and Beech CC). 20

[38]. 21

[27] - [35].

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The timesheets were tendered into evidence during the examination in chief of Mr Zia and

after the appellant had given his evidence. Whilst the timesheets were tendered into evidence without objection by the appellant and the contents were not challenged by him in cross-

examination of Mr Zia or Mr Salwant Singh, the tender of these documents was, in our

opinion, unfair to the appellant. When the Commissioner asked the appellant whether he had

seen the timesheets and he said, 'No', the Commissioner had a duty to assist the appellant as a self-represented litigant by advising him that he could, if he wished, object to the tender of the

documents into evidence, or if the documents were to be accepted he could return to the

witness box and give evidence about his knowledge of the matters stated in the timesheets. She did neither of these things.

As Bell J in Tomasevic v Travaglini [2007] VSC 337 recently observed, it is the function of a

judicial decision-maker to find facts on the basis of the evidence and in doing so is to ensure trial fairness and to elicit relevant evidence [127] - [128]. At [139] - [141] he explained:

139 Every judge in every trial, both criminal and civil, has an overriding duty to

ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct.

The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the

ICCPR [International Covenant on Civil and Political Rights]. The proper

performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.

140 Most self-represented persons lack two qualities that competent lawyers possess

- legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all

kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-

represented litigants due assistance. Doing so helps to ensure the litigant is

treated equally before the law and has equal access to justice.

141 The matters regarding which the judge must assist a self-represented litigant are

not limited, for the judge must give such assistance as is necessary to ensure a

fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The

assistance may extend to issues concerning substantive legal rights as well as to

issues concerning the procedure that will be followed. The Family Court of

Australia has enunciated useful guidelines on the performance of the duty.

These principles are also applicable to matters heard in this Commission.

In light of the statement from the appellant that he had not seen the timesheets, the

Commissioner should have asked Mr Zia who prepared the timesheets and how the entries in the timesheets were made. It was necessary for these questions to be asked to test whether the

information contained in the timesheets could be relied upon as an accurate record of hours

worked by the appellant. Without such an inquiry, and in light of the appellant's evidence that he kept his own record of the hours he worked, it was not open for the Commissioner to have

relied upon the timesheets as evidence of the actual hours worked by the appellant. In any

event, if questions were asked about who was the author of the entries in the timesheets and

how were they prepared, it would have emerged that a third party kept records of times worked by the appellant and Mr Zia made the entries in the timesheets: appeal ts 10.

If a party has not been given a proper opportunity to deal with evidence that is given without

warning by the opposing party, the situation can in some matters be remedied by the recall of the first party: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation

(1983) 44 ALR 607 (630). When the timesheets were accepted into evidence, if the contents

were to be regarded by either party as directly relevant to the matters in issue, the appellant should have been afforded an opportunity of being recalled to the witness box to give

evidence about his knowledge of the fact of the existence of the timesheets and whether the

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record of hours in those timesheets was accurate. The failure to afford the appellant such an

opportunity was a breach by the Commissioner of the rules of procedural fairness and entitled the appellant to call in aid the rule in Browne v Dunn (1894) 6 R 67. The observance of the

rule in Browne v Dunn is a rule that is fundamental to the proper conduct of a hearing of any

application made under s 29(1) of the Act.

In Allied Pastoral Holdings Pty Ltd Hunt J said about the rule in Browne v Dunn (623):

It has in my experience always been a rule of professional practice that, unless notice

has already clearly been given of the cross-examiner's intention to rely upon such

matters, it is necessary to put an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly

where that case relies upon inferences to be drawn from other evidence in the

proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and

to allow the other party the opportunity to call evidence either to corroborate that

explanation or to contradict the inference sought to be drawn. That rule of practice

follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the

decision of the House of Lords in Browne v Dunn (1894) 6 R 67.

This rule of practice, as Wells J in Reid v Kerr [1974] 9 SASR 367 said, is derived from (373 - 374):

[T]wo basic precepts designed to ensure a fair trial according to law. The first is one of

common justice: no witness should be attacked – and it is of prime importance that no party and no witness should think that it has happened – behind his back; he should

have a fair opportunity of meeting whatever challenge is offered to his evidence and the

substance of any testimony that is to be adduced to contradict it. The second precept is

based on the practical needs of a trial under the adversary system: a judge (or jury) is entitled to have presented to him (or them) issues of fact that are well and truly joined

on the evidence; there is nothing more frustrating to a tribunal of fact than to be

presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v. Dunn ((1894) 6 R 67 (HL)) has not been

observed, have not been brought into direct opposition, and serenely pass one another

by like two trains in the night.

It is notable that when the Magistrates Court Act 2004 (WA) was enacted, the rule in Browne

v Dunn was expressly incorporated into procedures prescribed for Magistrates Courts.

Section 30 of the Magistrates Court Act provides:

In a case where a party is self-represented, the Court must inform the party of —

(a) the need, when cross-examining a witness called by another party, to ask the

witness about any evidence of which the witness or the other party has not

previously had notice that the self-represented party —

(i) intends to adduce; and

(ii) intends to allege will contradict the witness’s evidence;

and

(b) the consequences of not doing so.

The reason why this provision was enacted is that in recent times there has been a decline of

professional representation in civil matters in Magistrates Courts. This provision was enacted

to reflect the common law obligation on courts and tribunals to explain court procedures to self-represented parties: Civil Procedure WA Magistrates Court, Legislative Developments,

Bulletin No 14, May 2004. Magistrates who preside over Magistrates Courts are, unlike

members of the Commission, strictly bound to apply the rules of evidence. Thus one might

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say that the Commission is not obliged to apply the rule in Browne v Dunn. Yet, in hearings

where evidence is given and tested by cross-examination, the application of the rule becomes fundamental to a fair hearing.

We then found in Singh v Dhaliwalz Pty Ltd that the effect of accepting the timesheets into

evidence without the reliability of those documents being tested resulted in the case for the

applicant and the employer as Wells J in Reid v Kerr22

said like to two trains passing in the

night23

.

In a matter where one party raises an issue going to the reliability of a document, it is usually

impossible in the absence of any other evidence or material that supports the reliability of the

document to rely upon it without the veracity of that document being tested when making a

decision as to whether an applicant has proved their case.

However, where there has been a breach of the rule whether the Commission should draw the

inference and exclude the evidence of the witness or documentary evidence that the opposing

party has not had an opportunity to test, is discretionary. In RCR Tomlinson Ltd v Russell

the Full Court said:24

The proper response to a failure to observe the rule in Browne v Dunn will vary according to the circumstances of the case, but will usually be related to the central object of the rule,

which is to secure fairness (R v Birks (1990) 19 NSWLR 677, 689 (Gleeson CJ, McInerney J

agreeing); The Bell Group Limited (In Liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1 [1036] (Owen J)). Like Owen J in Bell Group v

Westpac ([1037] (Owen J)), we would adopt what Hunt J said in Allied Pastoral Holdings

Pty Ltd v The Federal Commissioner of Taxation ([1983] 1 NSWLR 1, 26). There his Honour said that non-compliance with the rule in Browne v Dunn does not mean that the

court is obliged to accept the evidence of the witness in question (See also Poricanin v

Australian Consolidated Industries Ltd [1979] 2 NSWLR 419, 426 (Hope & Glass JJA);

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 586 - 588 (Samuels JA, Meagher JA agreeing); Hamod v State of New South Wales [2011] NSWCA 375 [337] -

[340]). Among the situations where the court might not accept evidence notwithstanding the

absence of cross-examination are where the evidence is inherently illogical or unreliable, or where the opposing party calls evidence of a substantial nature directly contradicting the

evidence on which there was no cross-examination (Hamod v State of New South Wales

[338] - [340]). However, in many cases it would be wrong, unreasonable or even perverse to

reject evidence upon which there has been no relevant cross-examination (Allied Pastoral

Holdings (26) (Hunt J); Bell Group v Westpac [1037] (Owen J).

The rule in Jones v Dunkel25

has many parts. Part of the rule is that an adverse inference can

be drawn against a party who fails to call a key witness, when it is in that party's power to call

that witness and the failure to do is unexplained. The inference that can be drawn is that the

evidence of that person would not have assisted the party's case.

Justice of Appeal Glass in Payne v Parker26

said of this aspect of the rule:

[I]s also described as existing where it would be natural for one party to produce the witness: Wigmore, par. 286, or the witness would be expected to be available to one party rather than

22

[1974] 9 SASR 367. 23 [2013] WAIRC 00133; (2013) 93 WAIG 197 [38]. 24 [2015] WASCA 154 [70]. 25

[1959] HCA 8; (1959) 101 CLR 298. 26

[1976] 1 NSWLR 191, 201 - 202.

11

the other: O'Donnell v. Reichard ([1975] V.R. 916, at p. 921),, or where the circumstances

excuse one party from calling the witness, but require the other party to call him: ibid. ([1975] V.R. 916, at p. 920),, or where he might be regarded as in the camp of one party, so as

to make it unrealistic for the other party to call him: ibid. ([1975] V.R. 916, at p. 920),, Regina

v. Burdett ((1820) 4 Barn. & Ald. 95; 106 E.R. 873),, or where the witness' knowledge may be

regarded as the knowledge of one party rather than the other: Earle v. Castlemaine District Community Hospital ([1974] V.R. 722, at p. 733),, or where his absence should be regarded as

adverse to the case of one party rather than the other: ibid. ([1974] V.R. 722, at p. 734),. It has

been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than

to his adversary: ibid. ([1974] V.R. 722, at p. 728),.

This rule is not often invoked. In any event, it should not be invoked unless the rules of

procedural fairness have been observed. Thus, prior to the rule being invoked the

Commissioner hearing the matter should inform the party against whom the inference could

be drawn of the substance of the rule in Jones v Dunkel and advise the party that it might be

drawn unless the evidence is provided, or its absence is explained.27

[3] Hearsay – Should a tribunal act on matters of hearsay?

As a tribunal that is not bound to apply the rules of evidence, the Commission is able to rely

on hearsay in determining a matter. Thus, the Commission may rely upon oral and

documentary material when the makers of those statements are not called to give evidence.

However, the weight the hearsay should be given will depend upon an assessment of the

reliability and probative force of the hearsay to the facts in issue.

In Pochi Brennan J observed that hearsay:28

'[H]as a wide scale of reliability' (1978 LRC 29 p 35), and there is no reason why logically

probative hearsay should not be give credence. However, the logical weaknesses of hearsay

evidence may make it too insubstantial, in some cases, to persuade the Tribunal of the truth of serious allegations.

In Cesare Violanti and Somsri Violanti v Porter after having regard to observations made by

Brennan J in Pochi, I (with whom Beech CC and Scott ASC agreed) observed:29

In Secretary to the Department of Human Services v Sanding [2011] VSC 42, Bell J

recently pointed out [133]:

The material which may properly support a decision of a court or tribunal can legitimately come from a variety of sources, might occupy different points along a

spectrum of probative force and reliability and, depending on the issues and

circumstances, might require different treatment. Hearsay evidence is admissible if it is fairly reliable, although the weight to be given to it will need to be considered (TA

Miller v Minister of Housing and Local Government [1968] 1 WLR 992, 995. This

approach was applied by Barnett J in Re Frances and Benny [2005] NSWSC 1207, [7]

in a case concerning the statutory powers of the Children's Court of New South Wales). Evidence which is not the best evidence may be admitted, but if it is challenged and the

issue is important it is the best evidence which may be required (Re Barbaro and

Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1, 5 per Davies J.). The court or tribunal may act on written submissions containing assertions of fact, and

27 See the discussion by Professor Neil Rees, 'Procedure and evidence in "court substitute" tribunals', p 81. 28

(257). 29

[2014] WAIRC 01246; (2014) 94 WAIG 1840 [44], [45] and [48].

12

statements made from the bar table by the parties or their legal representatives, but if

the asserted facts are in serious dispute and concern important issues, it may be necessary to insist on much more (Wajnberg v Raynor and Metropolitan Board of

Works [1971] VicRp 82; [1971] VR 665, 678-679; R v Commonwealth Conciliation

and Arbitration Commission; ex parte Melbourne and Metropolitan Tramways Board

[1965] HCA 50; (1965) 113 CLR 228, 244).

In Barbaro v Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1, 5; [1980]

AATA 76 Davies J relevantly observed:

In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary

expense and may admit into evidence evidentiary material of a logically probative

nature notwithstanding that that material is not the best evidence of the matter which it tends to prove. But the Tribunal does not lightly receive into evidence challenged

evidentiary material concerning a matter of importance of which there is or should be

better evidence. And the requirement of a hearing and the provision of a right to appear

and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing

prejudicial evidentiary material tendered against him. It is generally appropriate that a

party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to

test the evidence tendered against him provided that the testing of the evidence seems

appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much

expedition as the matter before the Tribunal permits.

As the learned author Forbes J R S in Justice of Tribunals (4th ed, 2014) points out in respect

of relevance (207):

The principle of relevance binds everyone who determines rights according to public or

private law. If a tribunal disregards relevant information, or acts on irrelevant

information, its decision is apt to be set aside (See paragraphs [6.29] ff, above; Merivale Hotel Investments Pty Ltd v Brisbane Exposition Authority [1988] 2 Qd R

562; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39-40;

Citibank Ltd v FCT (1988) 88 ATC 4714. But this rule is not infringed merely because

a court may take a different view on a question of weight: Minister for Aboriginal Affairs v Peko-Wallsend Ltd, above at 41; Holmes v DCT (1988) 88 ATC 4328 at 4339-

4341; Wajnberg v Raynor [1971] VR 665 at 678. Where a power is expressed in very

general terms it is usually left to the decision-maker to decide what is relevant and what is not: Tomkins v Civil Aviation Safety Authority (2006) 91 ALD 645; [2006] FCA

1253). A rule allowing a tribunal to 'take such evidence and hear such argument as it

thinks proper' does not justify arbitrary neglect of relevant evidence or capricious reliance on irrelevant material (Brettingham-Moore Municipality of St Leonards (1969)

121 CLR 509 at 524; Rose v Boxing NSW Inc [2007] NSWSC 20 at [72]).

As these passages reveal, the central issue upon which admission of hearsay and weight given

by a tribunal not bound by the rules of evidence is governed in an adversarial matter by:

(a) reliability, that is, the source of the hearsay identified;

(b) probative force, is the material relevant to the issues in dispute;

(c) is the material challenged; and

(d) fairness in the sense the material is not unfairly prejudicial to an opposing party

and procedural fairness, in that the Commission is obliged to afford the

13

opposing party an opportunity to consider and challenge the material in

question.

Tribunals, including the Commission, should, however, exercise caution in admitting

hearsay. As Professor Rees points out:30

[A] tribunal which is not bound by the rules of evidence, but which is required to comply with

the rules of natural justice, may face considerable difficulties when confronted with hearsay

evidence which contains assertions of fact that go to the heart of disputed questions of fact in

the proceedings. In extreme cases the unfairness generated by admitting and acting upon such evidence may cause a tribunal to refuse to accept hearsay evidence, (In Chan v Kostakis

[2003] VCAT 951, the tribunal, while acknowledging that it had the power to accept hearsay

evidence, refused to accept a letter which was tendered in support of an application to summarily dismiss a claim because it would have been unfair to have accepted the letter as

proof of a fact in issue in the absence of an opportunity to cross-examine its author) or, if it is

admitted, a supervising court may set aside the tribunal's decision on natural justice grounds

(In A & B v Director of Family Services (1996) 132 FLR 172; 20 Fam LR 549, Higgins J set aside orders made by a magistrate not bound by the rules of evidence in child welfare

proceedings on a number of grounds one of which was the magistrate's decisions to admit and

act upon hearsay evidence. The admissibility of hearsay evidence in tribunal proceedings was examined at some length by the Administrative Appeals Tribunal in Ileris v Comcare (1999)

56 ALD 301). If the hearsay evidence was the only evidence in support of a fact in issue there

may also be concerns, in exceptional cases, about the sufficiency of the evidence before the tribunal (See discussion in text accompanying nn 85 to 99 above).

Even in administrative matters, the Commission should and generally does exercise caution

in the admission of hearsay where the material is contested, or in matters where the

Commission is bound by the IR Act to be satisfied of particular matters before an application

can be granted.

For example, in Principals' Federation of Western Australia v The State School Teachers'

Union of W.A. (Inc),31

the Principals' Federation of Western Australia (PFWA) sought to

become registered as a union. The State School Teachers' Union of W.A. (Inc) (SSTU)

objected on grounds that its membership rules enable it to enrol principals as members and

there was no good reason consistent with the objects of the IR Act, to permit registration

under s 55(5) of the IR Act. In particular, the SSTU and the other objectors relied upon

object s 6(e) of the IR Act, which provides that it is a principal object to encourage the

formation of representative organisations of employers and employees and to discourage, so

far as practicable, overlapping of eligibility for membership of organisations.

One of the issues raised by the parties was the degree to which principals in public schools

wish to be represented by a union that only represent the interests of principals. At the time

of the hearing of the application approximately 1,800 principals were employed in public

schools in Western Australia. Of those, 392 were members of the PFWA and 787 were

members of the SSTU and 53 were members of both. Twenty-one principals who were

members of the SSTU gave evidence on behalf of the SSTU. They all gave evidence that

30 'Procedure and evidence in "court substitute" tribunals', p 76; see also the observations in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00562; (2014) 94 WAIG 775. 31

[2014] WAIRC 01360; (2015) 95 WAIG 42.

14

irrespective of the success of the application by the PFWA they intended to remain members

of the SSTU. Several principals gave evidence on behalf of the PFWA that they had resigned

their membership of the SSTU and did not wish their interests to be represented by the SSTU

in the future. A substantial amount of written and oral testimony was given about the

effectiveness of the SSTU and the PFWA and its predecessors in representing the interests of

principals. Much of this evidence was hearsay going to personal opinion and the opinions of

other principals. Both the PFWA and the SSTU sought to press objections to the evidence of

the other on grounds of hearsay.

I found that some of the hearsay statements could be relied upon on grounds that certain

action was taken or opinions were formed based upon perception about whether the SSTU

and/or the PFWA was best placed to represent the industrial interests of principals in public

schools. My findings were as follows:32

Where evidence of a statement made to a witness by a person, who is not called as a witness,

is received into evidence not to establish the truth of the statement but to establish the fact that

the statement was made, is not hearsay and is admissible: Subramaniam v Public Prosecutor

[1956] 1 WLR 965, 969 (PC); R v Murphy (1985) 4 NSWLR 42 [6] (CCA). Similarly, the fact that a witness in this matter has formed a particular opinion can be admissible if the

opinion admitted on grounds of the fact that the witness has a particular opinion, rather than

the truth of the existence of a fact upon which the opinion is based. In this matter, a central tenant of the case for the PFWA is that members of the PFWA wish to be represented by a

separate union, on grounds that the SSTU is not an organisation that can adequately represent

the interests of principals. Witnesses called on behalf of the SSTU have clearly expressed a contrary opinion. The fact that the witnesses hold these opinions is a relevant fact for the Full

Bench to consider when it determines whether there is good reason, consistent with the

objects of the Act, to permit registration of the PFWA.

Although the Commission is not bound by the rules of evidence, some support for this approach is found in the Federal Court decision of Australian Competition and Consumer

Commission v Real Estate Institute of Western Australia Inc [1999] FCA 675, where the

Australian Competition and Consumer Commission (ACCC) alleged contraventions of Part IV of the Trade Practices Act 1974 (Cth), by operation of particular rules of the Real

Estate Institute of Western Australia Inc. Evidence was proposed to be given by witnesses

about general observations and the competitive processes in the franchise markets. The

ACCC put forward the evidence as relevant even if based on hearsay or opinion, not because it established the truth of the facts perceived, but because it was the perception of experienced

market participants whose competitive decisions were driven by such perceptions.

Justice French refused an application to strike out the statements and found that to the extent that the statements reflect a perception on the part of the franchisee's behaviour in the market,

the statements were admissible, but it may be in the context of all the evidence that the

general statements will carry little weight in the ultimate determination of the case [8].

Insofar as statements made by each of the witnesses rely upon hearsay, sourced or unsourced,

no weight has been given to those statements in respect of ascertaining whether these

assertions are true (unless corroborated by other evidence that is not sourced in hearsay, for

example, in records of enterprise bargaining outcomes). However, regard has been had to statements which would otherwise be regarded as hearsay and which is unsupported by other

evidence where a witness, after having received information from another person or other

persons, took particular action or where that information caused the witness to form an opinion about particular matters. Also, regard has been had to the fact that witnesses hold

particular opinions, but not whether these opinions should be accepted as soundly based.

32

[488] - [490].

15

These observations are obiter as the other members of the Full Bench did not directly deal

with the objections other than to say that limitations of weight apply to hearsay evidence.33

[4] How hearsay should be dealt with in witness statements and affidavits

Although the Commission is not a court of pleadings, practitioners need to identify the issues

of fact and law to be determined by regard to the matters stated in the application, the notice

of answer, the provisions of the IR Act, any other relevant legislation and any other

documents or material. Once all relevant issues are identified, prepare witness statements by

having regard to these issues.

If direct evidence of a material fact is available then that evidence should be set out in the

statement or if the direct evidence is in documentary form the document should be annexed to

the statement. A simple example to illustrate this point is that if a witness states in his or her

statement that they were paid $2,000 a week and this amount may be contested, attach a copy

of a payslip or bank statement that provides documentary proof of that fact.

If direct evidence is not readily available, state the source of the hearsay and set out and/or

annex any material that supports the hearsay. Ask yourself before attaching the material,

does the material make the suggested inference or conclusion more probable.

33

[623] (Scott ASC), [642] (Kenner C).

16

ATTACHMENT

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any

matter before it —

(a) at any stage of the proceedings dismiss the matter or any part thereof or

refrain from further hearing or determining the matter or part if it is

satisfied —

(i) that the matter or part thereof is trivial; or

(ii) that further proceedings are not necessary or desirable in the public

interest; or

(iii) that the person who referred the matter to the Commission does not

have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the

hearing thereof discontinued, as the case may be;

and

(b) take evidence on oath or affirmation; and

(c) order any party to the matter to pay to any other party such costs and

expenses including expenses of witnesses as are specified in the order, but so

that no costs shall be allowed for the services of any legal practitioner, or

agent; and

(d) proceed to hear and determine the matter or any part thereof in the absence

of any party thereto who has been duly summoned to appear or duly served

with notice of the proceedings; and

(e) sit at any time and place; and

(f) adjourn to any time and place; and

[(g) deleted]

(h) direct any person, whether a witness or intending witness or not, to leave the

place wherein the proceedings are being conducted; and

(ha) determine the periods that are reasonably necessary for the fair and adequate

presentation of the respective cases of the parties to the proceedings and

require that the cases be presented within the respective periods; and

(hb) require evidence or argument to be presented in writing, and decide the

matters on which it will hear oral evidence or argument; and

(i) refer any matter to an expert and accept his report as evidence; and

(j) direct parties to be struck out or persons to be joined; and

(k) permit the intervention, on such terms as it thinks fit, of any person who, in

the opinion of the Commission has a sufficient interest in the matter; and

(l) allow the amendment of any proceedings on such terms as it thinks fit; and

(m) correct, amend, or waive any error, defect, or irregularity whether in

substance or in form; and

(n) extend any prescribed time or any time fixed by an order of the Commission;

and

17

(o) make such orders as may be just with respect to any interlocutory

proceedings to be taken before the hearing of any matter, the costs of those

proceedings, the issues to be submitted to the Commission, the persons to be

served with notice of proceedings, delivery of particulars of the claims of all

parties, admissions, discovery, inspection, or production of documents,

inspection or production of property, examination of witnesses, and the

place and mode of hearing; and

(p) enter upon any manufactory, building, workshop, factory, mine,

mine-working, ship or vessel, shed, place, or premises of any kind

whatsoever, wherein or in respect of which any industry is or is reputed to be

carried on, or any work is being or has been done or commenced, or any

matter or thing is taking or has taken place, which is the subject of a matter

before the Commission or is related thereto; and

(q) inspect and view any work, material machinery, appliance, article, book,

record, document, matter, or thing whatsoever being in any manufactory,

building, workshop, factory, mine, mine-working, ship or vessel, shed, place

or premises of a kind referred to in paragraph (p); and

(r) question any person who may be in or upon any such manufactory, building,

workshop, factory, mine, mine-working, ship or vessel, shed, place or

premises in respect or in relation to any such matter or thing; and

(s) consolidate or divide proceedings relating to the same industry and all or any

matters before the Commission; and

(t) with the consent of the Chief Commissioner refer the matter or any part

thereof to the Commission in Court Session for hearing and determination

by the Commission in Court Session; and

(u) with the consent of the President refer to the Full Bench for hearing and

determination by the Full Bench any question of law, including any question

of interpretation of the rules of an organisation, arising in the matter; and

(v) generally give all such directions and do all such things as are necessary or

expedient for the expeditious and just hearing and determination of the

matter.

(1a) Except as otherwise provided in this Act, the Commission shall, in relation to any

matter before it, conduct its proceedings in public unless the Commission, at any

stage of the proceedings, is of the opinion that the objects of the Act will be better

served by conducting the proceedings in private.

(2) The powers contained in subsection (1)(p), (q) and (r) may, if the Commission so

directs in any case, be exercised by an officer of the Commission or by an expert to

whom any matter has been referred by the Commission.

[Section 27 amended by No. 121 of 1982 s. 10; No. 94 of 1984 s. 18 and 66; No. 20

of 2002 s. 122.]