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Harvey, Ian --- "Applying rules of evidence in administrative proceedings" [2019] PrecedentAULA 6; (2019) 150 Precedent 18


APPLYING RULES OF EVIDENCE IN ADMINISTRATIVE PROCEEDINGS

By Ian Harvey

Administrative tribunals not bound by the rules of evidence may be guided by those rules. However, it is largely up to practitioners appearing before those tribunals to do the guiding.

INTRODUCTION

In a wide range of administrative decision-making contexts, legislation provides that the relevant tribunal or decision-maker is ‘not bound to observe the rules of procedure and evidence that are applicable to proceedings before a court of law’ or words to that effect. In many such contexts, the empowering legislation, expressly or impliedly, exhorts the administrative decision-maker to act according to ‘substantial justice’, with little in the way of guidance as to what the legislature intended by this shorthand expression.

While it is well-established that legislative expressions are to be read in the context of the relevant statute viewed as a whole (and so as to give effect to ‘harmonious goals’)[1] the concept of ‘substantial justice’ has a common law underpinning that affects the way in which an administrative tribunal or decision-maker is to proceed. In construing s420 of the Migration Act 1958 (Cth), the High Court has noted that in acting ‘according to substantial justice and the merits of the case’, the (then) Refugee Review Tribunal (now absorbed within the Administrative Appeals Tribunal (AAT)) is ‘to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals’.[2]

State and federal administrative bodies that conduct independent merits review perform the function of ‘evaluating and substituting the correct or preferable decision standing in the place of a decision maker, as opposed to enforcing the law that constrains and limits the powers of the other branches of government’.[3]

Proceedings in the AAT must be conducted with as little ‘formality and technicality’ as the requirements of the applicable legislation and a ‘proper consideration’ of the matter under review permit. The procedure of the Tribunal is, subject to any applicable legislation, ‘within the discretion of the Tribunal’ which is ‘not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate’.[4]

Under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s38(2) provides that the Tribunal is not bound by the rules of evidence and ‘may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice’.[5]

These legislative provisions provide a convenient reminder to practitioners of the need to be fully conversant with the legislation governing any administrative tribunal in which they are required to appear in the course of providing legal services to a client. There are a great many administrative tribunals, both federal and state, where evidentiary material must be considered by an administrator and decisions made on the basis of contested issues of fact. It cannot be assumed that the rules of evidence will have no application in all proceedings of a purely administrative tribunal.[6]

PROCEDURAL FAIRNESS

The reference in s38(2) of the NCAT Act noted above to ‘the rules of natural justice’ reflects a fundamental principle of administrative decision-making. Modern tribunals are almost always obliged to observe the requirements of procedural fairness (or natural justice) subject to any clear statutory indication to the contrary.[7] While ‘(c)ommon law rules of evidence reflect notions of procedural fairness’,[8] it has also been said that ‘(t)he technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice’.[9] In R v War Pensions Entitlement Appeal Tribunal ex parte Bott,[10] where the Tribunal was not bound by any rules of evidence, Evatt J stressed that the statutory exclusion of the rules of evidence did not mean that ‘all rules of evidence may be ignored as of no account’. His Honour considered that the common law rules ‘represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth... In other words, although rules of evidence do not bind, every attempt must be made to administer “substantial justice”.’[11]

Citing the above passage in Pochi v Minister for Immigration and Ethnic Affairs,[12] Brennan J (in his role as President of the AAT) accepted that ‘(t)o 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’ but added that, in the context of administrative decision-making, ‘(f)acts can be fairly found without demanding adherence to the rules of evidence’.

The suggestion of a tension or conflict between the rules of evidence and the principles of natural justice has led one commentator to argue that legislative ‘alterations’ of the common law rules of evidence could be ‘destructive of litigants’ rights to procedural fairness’.[13] To some extent, this reflects a view that a significant purpose of the statutory rules of evidence is to guide the exclusion of probative evidence on various policy grounds in curial proceedings: ‘for example, the exclusion of evidence of communications made without prejudice, or of communications entitled to legal professional privilege or of public interest privilege... to keep those communications from the tribunal’.[14]

Various questions arise where an administrative tribunal or decision-maker is expressly not bound by the rules of evidence but has a legitimate discretion to have regard to those rules in order to administer ‘substantial justice’, including:

1. What is meant, in a statutory context, by the rules of evidence?

2. What rules of evidence might be borne in mind by an administrative tribunal and how should they be applied? In particular, is the tribunal required to observe a particular standard of proof for the admissibility of evidence or to establish material facts?

3. In what way does the purpose or object of an administrative process affect the ‘procedural flexibility’ that a decision-maker may exercise in dealing with particular evidentiary issues? How is the reliability and probative value of evidence to be evaluated by the tribunal?

THE RULES OF EVIDENCE

It has been said that there is no definitive statement ‘of high judicial authority, or general consensus amongst legal authors, concerning the meaning of the “rules of evidence” which govern the manner in which evidence may be used to determine questions of fact’.[15] Nor is there any clear indication of whether the source of such rules in the context of particular administrative decision-making processes extends beyond the common law.

For practitioners in those states that have adopted the ‘uniform evidence law’ it is tempting to say that, subject to any specific statutory qualification, the notion picked up in the legislative provisions that exclude the rules of evidence (such as the AAT Act) is intended to cover the statutory evidence law of the relevant jurisdiction. However, in Sullivan v Civil Aviation Safety Authority (Sullivan), the Full Federal Court of Australia consistently referred to the freedom of the AAT not to be bound by ‘the common law rules of evidence’.[16] Nonetheless, the common law rules have been described as now qualifying for ‘“heritage” protection’.[17]

In the context of most administrative tribunals, it is probably unnecessary to delve into the history and evolution of the uniform evidence law or the extent to which that law affects the operation of principles or rules of common law in relation to evidence.[18] Rather, it is likely to be of greater practical utility to view the rules of evidence as an aspect of procedural or ‘adjectival’ law affecting current practice and procedure. As observed by Brennan CJ in Nicholas v The Queen, this ‘accords with the view expressed in Wigmore on Evidence: “Rules of evidence are merely methods of ascertaining facts”’.[19] As such, the practical question is whether those ‘methods’ are of assistance in the context of merits review so as to enable the tribunal of fact to arrive at the ‘correct or preferable’ administrative decision.

It is neither sensible nor possible to attempt to catalogue all rules of evidence which may have a potential adaptation or application in administrative proceedings. Flexibility is plainly the essence of the task, depending on the nature and purpose of the proceedings.

RELEVANCE AND ADMISSIBILITY OF EVIDENCE

At a fundamental level the evidence of a fact is that which tends to prove it. As Giles J has observed: ‘At the stage of reception of evidence, the criterion is whether the evidence is relevant or probative – not, of course, whether it necessarily establishes or controverts the fact or facts in issue, but whether either alone or taken with other evidence it tends to do so’.[20] This formulation immediately raises two questions: what facts are ‘in issue’ in an administrative proceeding and how are those facts to be established by ‘relevant’ evidence? While the facts in issue in a civil action are largely defined by formal pleadings, the facts in issue in an administrative matter tend to emerge episodically from various sources.

In an AAT matter, the facts in issue may initially appear from the primary decision-maker’s statement of reasons and the lodgement of ‘T’ documents considered ‘relevant’ to the review initiated by the applicant. The Tribunal’s pre-hearing processes and requirements should provide a foundation for identifying the material facts in issue as well as providing notice to each of the ‘parties’ to a review of the nature and content of the factual bases for the contentions supporting the respective parties’ views as to the correct or preferable decision to be made. As former AAT President Kerr states: ‘a party is entitled to expect that a tribunal which is not bound by the rules of evidence that is undertaking merits review will not exclude from its consideration any material put before it that is relevant’.[21] This presupposes that the facts in issue have been sufficiently identified so that the tribunal receives only evidence that is relevant – or ‘logically probative’ – to the essential fact-finding task.

As Brennan J observed in Re Pochi v Minister for Immigration and Ethnic Affairs: ‘The majority judgments in Bott's case show that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not...’[22] Material that tends logically to prove the existence or non-existence of a material fact should be ‘admitted’ into evidence by the tribunal.

In Sullivan, Flick and Perry JJ expressed the proposition as follows: ‘The procedural flexibility afforded to an administrative tribunal freed from the rules of evidence does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide.’[23]

Although it has been suggested that the facts in issue may not readily be apparent until the tribunal has heard ‘all of the evidence and identified the substance of the claim’,[24] this does not mean that the tribunal can never be in a position to deal with disputes about the relevance of evidence until the conclusion of the substantive hearing. In this regard, the ‘guidance’ that the rules of evidence can provide may well include provisions relating to preliminary and advance rulings.

Section 189 of the Evidence Acts allows for the making of rulings on preliminary questions of fact and s192A permits advance rulings to be given on the admissibility of evidence. There may be many discretionary considerations that lead a court to make or decline to make a preliminary or advance ruling under the Evidence Acts.[25] In the determination of a preliminary question on a voir dire, s189 sets out certain matters that the court may take into account in deciding whether to make such a determination, including whether the evidence to be adduced in the course of the preliminary hearing is likely to be prejudicial to the defendant and whether evidence to be adduced in the course of the hearing to decide the preliminary question would be admitted if adduced at another stage of the hearing. Those prescribed matters seem readily adaptable to the proceedings of many administrative tribunals.

One consideration that may be taken into account for the purposes of s192A, where relevant, is ‘whether there is a risk that assumptions which are made about evidence to be given in a case prove ultimately not to be correct in light of the way in which a case is in fact presented’.[26] However, in a case in which a voluminous amount of lay witness evidence had been served by a plaintiff, the court made advance admissibility rulings to enable the parties to prepare their respective cases efficiently, including considering which witnesses should be called or required for cross-examination. This was, in turn ‘likely to influence the length of the trial’ and was consistent with s56 of the Civil Procedure Act 2005 (NSW) and ‘the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute’.[27]

Administrative tribunals, like the AAT, are not infrequently called upon to make significant decisions on various procedural or substantive questions before a matter is fixed for final hearing, including on applications for ‘summary’ determination of a matter[28] or summary dismissal of an application,[29] rulings on jurisdiction,[30] rulings on questions of privilege[31] and directions on a range of preparatory issues that are not unlike those made in curial proceedings. Most of these matters are likely to be resolved or determined by the tribunal without need to resort to case law reflecting judicial method. However, the rules of evidence may ‘guide’ an administrative tribunal by taking into account judicial views on the circumstances in which it is appropriate to make advance or pre-trial rulings concerning the use of evidence proposed to be adduced, or as to the operation of a law in relation to evidence that may be adduced.

Where judicial application of evidentiary rules is aimed at ensuring the efficient and just resolution of ‘real issues in dispute’ there should be no inconsistency between judicial method and administrative method.

The tension between methods may become more apparent when evaluating evidence.

Hearsay evidence

Some of the restrictions imposed on curial proceedings by the rules of evidence are clearly directed to ‘the medium of proof of facts, eg the rule against hearsay evidence will be found when analysed to prohibit a certain medium of proof of the existence of some fact or facts’.[32] Although the Evidence Acts have been said to largely abolish the common law hearsay rule (at least in respect of first-hand hearsay) subject to some procedural notice requirements and limited exceptions, the practical concern is that the relevant provisions (in Division 2 of Pt 3.2) ‘contain no requirement designed to ensure that the representations to which they apply are reliable; the only “guarantee” of reliability is that the hearsay must be first-hand’.[33] Nonetheless, the AAT has indicated that the ‘experience of the courts in the application of the first-hand exceptions in the Evidence Act will... be a source of guidance to the Tribunal. The Tribunal has on occasions refused to admit or to give any weight to hearsay evidence which is more remote than first-hand.’[34] The AAT has also treated hearsay statements consistently with the principles of the common law hearsay rule to admit evidence for a non-hearsay purpose.[35]

Expert evidence

One area in which early attention and a ruling on evidence may facilitate the efficiency of an administrative process is the use of expert evidence. In many areas of public administration, it is common for affected parties to seek to rely upon expert evidence – such as a medical report, engineering report or evidence from a range of qualified ‘experts’ in a given field. A decision-maker is not bound to accept this evidence, even if no other expert evidence is tendered.

Expert evidence usually consists of a factual component and opinion evidence – often consisting of ‘a generalisation of objective facts within the personal experience of the witness in a field outside ordinary lay experience’, coupled with an opinion expressed as ‘a conclusion, usually judgemental or debateable, reasoned from facts’.[36] The factual component can be evaluated by examining the adequacy of the expert’s research and the terms of the instructions given to the expert. The reasonableness of any inferences expressly or impliedly drawn from objective facts can be tested by other available evidence and, ultimately, through questioning of the expert. The opinion component can be evaluated by, for example, examining the factual bases for the opinion and the reasoning process that emerges from the evidence and, again, by questioning directed to assessing the expert’s claimed experience, impartiality and objectivity. However, even though the ultimate issue rule has been abolished by s80 of the Evidence Acts, the question may still arise in administrative proceedings whether an opinion on an ultimate issue that involves the application of a legal standard should be received (or ‘admitted’) in evidence. For example, whether a defendant’s conduct was ‘wrong’, ‘improper’, ‘unjustifiable’ or ‘unreasonable’ is a standard of judgement that may be entirely a matter for the tribunal of fact to determine. Opinions that ‘purport to apply either a legal standard or a legally irrelevant standard of judgement’ may well be ruled inadmissible in curial proceedings.[37] The early rejection of expert evidence, on the basis of relevance, may also be both appropriate and efficient in administrative proceedings.

STANDARD OF PROOF

It has frequently been asserted that generally, in administrative fact-finding ‘it is the civil standard that applies’.[38] Qualifying this assertion is a reference to the oft-cited passage from the judgment of Dixon J, as he then was, in Briginshaw v Briginshaw[39] that the degree of satisfaction required to meet the civil standard of proof may vary according to the gravity of the fact to be proved. The more significant the issue to be determined, the more serious an allegation or the more inherently unlikely an occurrence, the clearer and more persuasive the evidence must be for the tribunal of fact to be satisfied that it has been proven to the civil standard.[40] Where the civil standard applies in curial proceedings, it ‘is to be applied in the manner discussed by Dixon J in Briginshaw v Briginshaw.’[41] The High Court has acknowledged that notions of the standard of proof to be observed in curial proceedings and use of the terms ‘balance of probabilities’ and ‘evidence’ provide ‘little assistance’ in the ‘very different’ context of administrative decision-making.[42]

The so-called ‘Briginshaw standard’ is not an intermediate standard between the criminal and civil standards of proof. Briginshaw assumes the existence of a standard of proof. Indeed, it is not apt to characterise the principle articulated by Dixon J as a ‘standard’ in the administrative context. It is no more than a reasoning process or a sliding scale to be used within the civil standard itself. The more serious the issue, the more demanding is the process by which reasonable satisfaction is attained.

In ordinary civil litigation, the Briginshaw test is applied to determine whether a civil onus of proof has been discharged. To the extent that the test has an application, it may do so as an adjunct or complement to the application of statutory rules of evidence relating to fact-finding (Evidence Acts, ss140, 142).

The elements involved in the fact-finding task in administrative proceedings are essentially the same as in curial proceedings.[43]

In Sullivan, the Full Court considered the Briginshaw test not to be binding on the AAT but noted that ‘(c)ases may be found where the Tribunal has applied the decision in Briginshaw. But these cases are nothing more than the Tribunal proceeding, perhaps, in a manner which applies the common law rules of evidence. The provisions of (the AAT Act), it will be recalled, simply provided that the Tribunal is not “bound” to apply those rules; it is not a prohibition upon the Tribunal applying those rules if it sees fit.’[44]

Similarly, the Full Court in Sullivan held that the rule in Browne v Dunn does not bind the Tribunal but it is a rule ‘founded in basic common sense and fairness’ and as the Court has previously observed: ‘If a submission is to be advanced that a person’s account of events is not to be accepted, it is not “fair” for an opponent to allow that account to go unchallenged in cross-examination and to deny to the person concerned an opportunity to give an explanation of his account’.[45] In short, the rules of procedural fairness will come into play to test whether a person had a fair opportunity to deal with a harmful allegation without the Tribunal resorting to common law rules of the kind embodied in Browne v Dunn.

IMPLICATIONS OF PROCEDURAL FLEXIBILITY

In a talk for the Women Barristers Forum and NSW Bar Association[46] Ms Jan Redfern PSM, Deputy President, AAT reaffirmed the view that although the Tribunal is statutorily not bound by the rules of evidence, those rules provide ‘guidance’ to the Tribunal. The Deputy President provided no indication of the circumstances in which that ‘guidance’ may be sought and it is to be presumed that, currently, the AAT adopts the approach suggested by former President, Justice Kerr, expressed as follows:

‘The task of a merits review tribunal is to give such weight to whatever relevant evidential material is before it as it determines it ought to bear. Modern tribunals are almost always obliged to give reasons. If the weight placed upon particular evidence leads to the tribunal making (a) decision which is so unreasonable that no reasonable decision-maker could have arrived at it reviewable legal error will have occurred... Nor do I intend to suggest that the logic underlying the principles of common law and statutory rules of evidence, if such can be discerned, should be entirely disregarded in evaluating the “evidence” adduced in a merits review tribunal but those considerations should be related to the specific circumstances before the tribunal and apply to evaluation of weight rather than admissibility: Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33 at 40-42.’[47]

It is of course tempting to say that ‘the task’ of a tribunal such as the AAT is to ‘evaluate the evidence and other materials available to it and to then reach the “correct or preferable” decision on the merits’ with conclusions ‘based on logically probative material’.[48] Under the Evidence Acts, the ‘probative value’ of evidence is defined as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. In practice this seemingly uncomplicated definition disguises the fact that the process of determining the probative value or effect of evidence is derived in part from a notion of ‘logic’ but also from a complex mix of assumptions brought to bear by the decision-maker derived from experience, unconscious bias or personal philosophy. In the context of administrative proceedings, if a statutory provision or the rules of procedural fairness do not require a particular method to be adopted or applied in the evaluation of evidence and the fact-finding task, then the decision-maker has great scope to adopt ‘flexible procedures’ in undertaking that task. But to suggest that the evaluative task of a tribunal is largely directed to its determination of the ‘weight’ to be accorded to evidential material placed before it, leaves unclear and uncertain the factors at play in that process. In some circumstances, it will be prudent for a party to point to evidentiary rules or principles to assist the tribunal to evaluate the reliability and probative strength of the evidence placed before it.

CONCLUSION

It is clear that while an administrative tribunal like the AAT is not bound by the rules of evidence it is not prohibited from applying those rules where it sees fit, consistently with its overriding duty to observe the dictates of procedural fairness. However, the circumstances in which the rules of evidence may be deployed to assist the tribunal to arrive at the correct or preferable administrative decision are not prescriptive. Procedural ‘flexibility’ has seen a widening of the rules of procedural fairness as the main measure of control over the way in which administrative bodies arrive at their decisions in part as a ‘substitute for the control once worked by exclusionary rules of evidence’.[49]

However, this does not mean that the rules of evidence have no utility or scope for application in administrative proceedings. It does mean that the onus will be on practitioners appearing before tribunals to have an eye to those rules and supporting principles that may assist their client’s ‘case’. Practitioners must be ready to draw upon judicial opinion and caselaw interpreting and applying those rules to exclude evidence that can have no rational probative force and to promote a more efficient process to secure a satisfactory outcome.

Ian Harvey is a barrister practising from 3rd Floor, Wentworth Chambers, 180 Phillip Street, Sydney. In 2015 he was appointed an Adjunct Professor of Law at the University of Notre Dame, Australia (Sydney Campus) and has lectured in administrative law at UNDA and for the Law Extension Committee of the University of Sydney. EMAIL iharvey@wentworthchambers.com.au.


[1] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [70].

[2] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 635.

[3] D Kerr, ‘A freedom to be fair’, presentation to Excellence in Government Decision-Making: An AGS Symposium, Canberra, 21 June 2013, <http://www.aat.gov.au/about-the-aat/engagement/speeches-and-papers/the-honourable-justice-duncan-kerr-chev-lh-presid/a-freedom-to-be-fair> , accessed 6 November 2018.

[4] Administrative Appeals Tribunal Act 1975 (Cth), s33.

[5] This general proposition is qualified by s38(3)(b) and sch 5, cl 20 of that Act in that NCAT must observe the rules of evidence in exercising its enforcement jurisdiction or in proceedings to impose a civil penalty and in relation to professional discipline proceedings concerning legal practitioners or notaries. In NCAT proceedings, where a witness objects to giving particular evidence and invokes privilege in respect of self-incrimination, s128 of the Evidence Act 1995 (NSW) is ‘taken to apply’ (s38(3)(b)).

[6] This article is primarily concerned with procedure and evidence in tribunals such as the AAT which engage in ‘merits review’ of various administrative decisions rather than hybrid state tribunals that may, in some circumstances, exercise judicial power as ‘court substitute’ or ‘quasi-judicial’ tribunals: cf N Rees, ‘Procedure and evidence in “court substitute” Tribunals’, Australian Bar Review, Vol. 28, 2006, 41. References to the Evidence Acts are to the uniform evidence law in the seven Australian jurisdictions that have adopted it.

[7] M Groves, ‘Exclusion of the rules of natural justice’, Mon L R, Vol. 39, No. 2, 2013, 285.

[8] E Campbell, ‘Rules of evidence and the Constitution’, Mon L R, Vol. 26, No. 2, 2000, 312 at 320.

[9] Mahon v Air New Zealand Ltd [1984] 1 AC 808, 821 (PC).

[10] (1933) 50 CLR 228.

[11] Ibid, 256. Although in dissent, Evatt J’s observations were not rejected by the majority (Rich, Starke, Dixon and McTiernan JJ) who emphasised that the Tribunal, being ‘master of its own procedure’, was ‘under no obligation to follow wholly or in any special respects the procedure of a Court of law’; its duty was to observe any express statutory requirements applicable and not ‘violate any substantial requirement of justice’ (249). Evatt J’s view has been described by the ACT Supreme Court as a ‘classic exposition of the position’ in relation to the ACT Civil and Administrative Tribunal: Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275, [69] per Refshauge ACJ; semble Pires v Dibbs Barker Canberra Pty Limited [2014] ACTSC 283, [5]-[7]; CP v Director-General of Community Services Directorate and Ors [2017] ACTSC 394, [336]. See also A and B v Director of Family Services (1996) 132 FLR 172, 177 where Higgins J held that a provision of this kind did not render the rules of evidence irrelevant and ‘[t]hey should still be applied unless, for sound reason, their application is dispensed with’; cf De Domenico v Marshall [1999] ACTSC 1; (1999) 153 FLR 437, 442-3 [26]-[27] where Miles CJ considered that such an approach may not be appropriate for an administrative tribunal.

[12] [1979] AATA 64; (1979) 36 FLR 482.

[13] See Campbell, above note 8, 320. Such legislative ‘alterations’ could preclude ‘admission of evidence which is relevant and vital to proof of a claim or a defence, or which assigns burdens of proof which will be extremely difficult to discharge, or which establishes an evidentiary regime which tips the scales of justice in favour of one adversary...’ In Canada, administrative tribunals have been cautioned against excluding relevant evidence where it may have ‘an impact on the fairness of the proceedings, leading unavoidably to the conclusion that there has been a breach of natural justice’: Universite du Quebec a Trois-Rivereres v Larocque (1993) 101 D.L.R.(4th) 494, 508 per Lamer CJ.

[14] Justice R Giles, ‘Dispensing with the rules of evidence’ – a paper delivered to the NSW Bar Association, 8 October 1990, published in Bar News [1990] NSWBarAssocNews, 5, <http://classic.austlii.edu.au/au/journals/NSWBarAssocNews/1990/54.pdf> , accessed 5 November 2018.

[15] See Rees, above note 6, 69-70.

[16] (2014) 226 FCR 555. The High Court has expressed an intent not to alter ‘the common law of evidence in those states which to date have chosen not to adopt the uniform Evidence Act’: Baker v The Queen (2012) 245 CLR 632, [55].

[17] J Gans and A Palmer, Uniform Evidence, 2nd ed, Oxford University Press, 2014, 2.

[18] Statutorily recognised under s9 of the state and territory statutes that have adopted the uniform law.

[19] [1998] HCA 9; (1998) 193 CLR 173, 191.

[20] See Giles, above note 14, 8.

[21] See Kerr, above note 3.

[22] [1979] AATA 64; (1979) 36 FLR 482, 492-3.

[23] (2014) 226 FCR 555, [97].

[24] See Rees, above note 6, 75.

[25] See Australian Competition & Consumer Commission v Allphones Retail Pty Ltd (No. 3) [2009] FCA 1075; (2009) 259 ALR 541, [12]; Gondarra v Minister for Families, Housing, Community Services & Indigenous Affairs [2012] FCA 185, [23].

[26] Bailey v Director-General, Department of Natural Resources [2013] NSWSC 515, [56] per Garling J who declined to make an advance ruling on the admissibility of certain evidence.

[27] Chaina v Presbyterian Church (NSW) Property Trust (No 6) [2012] NSWSC 1476, [8]-[11].

[28] For example, Sullivan and Civil Aviation Safety Authority [2012] AATA 827 (Sullivan).

[29] Khan and National Australia Bank Limited (Compensation) [2018] AATA 4094.

[30] For example, Poignand and Comcare [2018] AATA 3864; Boateng and Comcare [2018] AATA 3198.

[31] Frugtniet and Migration Agents Registration Authority [2015] AATA 554.

[32] Wajnberg v Raynor & Melbourne and Metropolitan Board of Works [1971] VicRp 82; [1971] VR 665, 678.

[33] Gans and Palmer, above note 17, 114.

[34] Ileris and Comcare [1999] AATA 647; (1999) 56 ALD 301, [8]. Former AAT President Kerr and Deputy President McCabe have confirmed that the ‘rule against hearsay does not prevent the Tribunal from taking into account hearsay evidence but it is unlikely to lend that evidence much weight because it would be unfair and unsafe to do so’: ‘How to run a merits review application before the Administrative Appeals Tribunal’, a paper presented to the NSW Bar Association, 21 March 2017, <http://www.aat.gov.au/AAT/media/AAT/Files/Speeches%20and%20Papers/HowToRunMeritsReviewApplication-KerrJ-DPBMcCabe-NSWBarAssoc.pdf> , accessed 6 November 2018.

[35] See Rus v Comcare [2016] AATA 18, [50] and criticism of the ‘vagueness’ of the law of evidence as applicable to this case by N Cardaci, ‘Rus v Comcare: The rules of evidence in the AAT’, The University of Notre Dame Australia Law Review, Vol. 19, 2017, Article 7.

[36] R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1994) 34 NSWLR 129, 130 per Giles J.

[37] Ibid, 131.

[38] ‘Decision-making: Evidence, facts and findings’, Administrative Review Council Best Practice Guide, No. 3, 2007, <https://www.arc.ag.gov.au/Documents/ARC+Best+Practice+Guide+3+Evidence+Facts+and+Findings.pdf>, accessed 6 November 2018.

[39] [1938] HCA 34; (1938) 60 CLR 336, 361-2.

[40] See Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521. While recognising that the civil standard is flexible, it is wrong to equate the higher end of that standard with the criminal standard.

[41] Totani & anor v The State of South Australia [2009] SASC 301; (2009) 105 SASR 244, 252-3; [23] per Bleby and Kelly J; [261] per White J; endorsed in South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1, 101 [257] per Heydon J dissenting on the substantive issue but re-confirming the principle that where ‘legislation adopts a conventional standard of proof for civil proceedings – satisfaction (is) on the balance of probabilities’.

[42] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 282

[43] D H Hodgson, ‘The scales of justice: Probability and proof in legal fact-finding,’ The Australian Law Journal, Vol. 69, 1995, 731 at 732-3.

[44] (2014) 226 FCR 555, [121]. The Full Federal Court has also observed that although the Briginshaw principles have no direct application, ‘the Tribunal should test any suggestion of impropriety against the applicant very carefully’: Re Sea King Pty Ltd v Australian Trade Commission [1986] FCA 374, [27]. Moreover, it may be ‘implicit’ in the reasons of the Tribunal that findings were ‘arrived upon by application of the principles stated by Dixon J in Briginshaw v Briginshaw’: British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283, 325 [117] per Heydon, Kiefel and Bell JJ.

[45] VN Railway Pty Ltd v Federal Commissioner of Taxation [2013] FCA 265; (2013) 211 FCR 188, 198.

[46] On the topic ‘Appearing before Tribunals’ (31 October 2018).

[47] See Kerr, above note 3.

[48] Sullivan, [8] and [165].

[49] See Giles, above note 14, 11.


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