Robinson, Mark --- "Editorial: Forearmed is forewarned!" [2019] PrecedentAULA 1; (2019) 150 Precedent 2

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FOREARMED IS FOREWARNED!

By Mark Robinson SC

This edition of Precedent aims to provide guidance based on solid experience and sound legal knowledge to practitioners appearing before all the many and varied tribunals and commissions in Australia.

Professor Robin Creyke’s article concerns procedural fairness in tribunals and commissions of inquiry. A former long-standing member of the AAT who has published widely on administrative law matters, her article succinctly summarises the principles of the hearing rule and the bias rule as they specifically apply (differently) to tribunals and commissions.

Professor Hugh Dillon discusses the conduct of medical inquests in NSW, which investigate medical fatalities. Given his extensive background as a jurist and as a coroner, Professor Dillon’s acute and insightful analysis of whether we should be investigating these issues and how we should go about it highlights (graphically) the failings of the NSW system (still structurally the same as it was in 1901 when it was established). He concludes that the coroner’s ability to combine judicial, investigative, medical, socially and legally therapeutic and public policy elements makes the coronial system potentially valuable to society.

Dr Chris Maylea explains the systemic tensions afflicting the (Australia-wide) work of the mental health tribunals and proposes reform to address these tensions.

Ian Harvey writes about the rules of evidence in administrative (tribunal) proceedings. His article’s simple title belies a complex web of legal issues and pitfalls, which he expertly unravels. He discusses relevance and the role of experts; sets out the Briginshaw debate and the standard of proof applicable in most tribunals; and concludes correctly that the onus is on practitioners appearing before tribunals to have an eye to the evidence rules and supporting principles that may assist their client’s case. Practitioners must be ready to draw upon judicial opinion and case-law, interpreting and applying those rules to exclude evidence with no rational probative force.

David Kelsey-Sugg describes the structure and remit of the new Australian Financial Complaints Authority (AFCA) which replaced the Superannuation Complaints Tribunal in November 2018. He explains in detail how the new scheme is an ombudsman scheme, rather than a statutory tribunal, but also how many of AFCA’s duties and most important functions are similar or the same as the former tribunal.

Naomi Riggs writes on Comcare matters in the AAT and workers’ compensation for psychiatric injuries. Specifically, she tackles the tricky issue of statutory exclusions in the legislation that deny such compensation when there has been reasonable administrative action (such as disciplinary action in relation to the worker). She describes and discusses the important cases of Comcare v Martin [2016] HCA 43; (2016) 258 CLR 467 and Lim v Comcare [2017] FCAFC 64; (2017) 250 FCR 298 in this context.

Aneita Browning and Ryan North discuss the difficult issues involved in securing the production of documents in the Commonwealth Administrative Appeals Tribunal (AAT) in workers’ compensation matters (Comcare, again). Their practical, step-by-step guidance on handling subpoenas and the like is relevant to practitioners across Australia.

Susan Anderson surveys the Queensland Industrial Relations Commission, which has a significant workers’ compensation jurisdiction, and encourages practitioners to consider this remedy for their clients.

Dr Adolfo Gentile, interpreter and former member of the AAT, writes about the important role of interpreters in tribunals and inquiries. He sets out the certification requirements and how to test them quickly. Importantly, he discussed the important issue of interpreter competence. Correct interpretation is crucial in tribunal matters – see, for example, Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 (Kenny J).

Anthony Britt outlines the work involved in hearing complaints against medical professionals in the NSW Civil and Administrative Tribunal (NCAT). He emphasises procedural fairness, a difficult administrative law concept at times.

Jnana Gumbert identifies in some detail how to deal with motor accident personal injury matters in NSW – in the non-curial form of a hearing before the Claims Assessment and Resolution Service (CARS) of the State Insurance Regulatory Authority (SIRA). She sets out invaluable practical guidance, essential for anyone attempting to act for a client in this area.

Sharon Drew describes the stages involved in Comcare (workers’ compensation) proceedings in the AAT and the vexed question of costs. She sets out the issues in a clear manner that is useful for any practitioner setting foot in the AAT.

Designed to instil confidence in those appearing before tribunals and commissions, I commend this edition of Precedent to its readers.

Mark Robinson SC practises from Maurice Byers Chambers, Sydney. PHONE [phone] EMAIL [e-mail].