No lawyers and a deluge of documents

1. No lawyers and a deluge of documents The challenge of the hearing rule Jim Simpson

2. Common themes across tribunals • Parties not seeing some documents before the hearing • Members likewise • Voluminous documents • Varying relevance • High volume jurisdictions • Mandate for informality, minimal legalism, inform as see fit

3. Guardianship Tribunal context • Inquisitorial but also adversarial rights • Substitute decisions for a person with disability. • Parties –person, applicant, carer etc • Lawyers by leave and uncommon • GT investigation officer assists preparation • Documents from a range of sources • Parties often in conflict • Documents often inflammatory • Seek to conciliate • Guiding principles- paramountcy, family relationships

4. A vital circle of relationships

5. The hearing rule Kioa v West • A person is entitled to know the case against him or her and a reasonable opportunity to respond. • What is required depends on all the circumstances • Covers material that is adverse, credible, relevant and significant to the decision. And this is not a question of how the tribunal ultimately sees the evidence (Veal)

6. It can be sufficient to give notice of the substance (Veal). • But not with some very significant documents (Moore) • Must be a real opportunity to respond. Party may need time to consider and seek other evidence. (Courtney v Peters) • What is required is qualified by informal, inquisitorial operation of some tribunals. (State of Queensland v Mahommed)

7. Qualifications • Urgency or special hazard (Commissioner of Police v Tanos) eg risk of violence. • Consent • Preserving confidentiality of information or source – a balance (Veal) • Where notice would frustrate the purpose of the proceedings (Kioa v West) and so-

8. Paramountcy • Paramountcy may qualify procedural fairness and allow eg a welfare report being withheld from a parent (J v Lieschke) or a parent not being given notice of care proceedings (Re Andrew) • How far can this be taken?

9. What the GT does • Parties are sent applications, and sometimes other key documents • Just pre hearing, parties read investigation officer’s report • In the hearing, members: • Identify contested/unresolved issues • Put to parties evidence they need to answer • Give parties an opportunity add evidence, question. • Seek to develop common ground • May put a tentative view

10. Tricky issues • Procedural fairness for the person • The party who turns up with a box of documents • Inflammatory material – How much detail to put, reframing in less inflammatory terms • Naming sources • Confidentiality requests • Preservation of relationships • When is an adjournment required? • To what degree to deal with procedural fairness decisions in our reasons

11. References Commissioner of Police v Tanos (1958) 98 CLR 383 Courtney v Peters (1990) 98 ALR 645 J v Lieschke (1986) 162 CLR 477 Kioa v West (1985) 159 CLR 550 Moore v Guardianship and Administration Board [1990] VR 902 Re Andrew [2004] NSWSC 842 State of Queensland v Mahommed [2007] QSC 018 Veal v Minister for Immigration and Ethnic Affairs [2005] HCA 72 jcsimpson@optusnet.com.au