Over 200 delegates registered for the COAT NSW Conference on 20 November 2020 held as a half-day online webinar. The webinar, titled ‘Tribunals: effective dispute resolution in a time of change’, featured sessions on dispute resolution through reality testing, practical tips on handling privileges arising in Tribunal proceedings, and a panel session examining the future of tribunals following the coronavirus pandemic. It also featured live polling and Q&A facilities and the opportunity for delegates to interact with each other via virtual networking.

Feedback from conference attendees was very positive and the conference organising committee did a great job in developing the program, including moving the conference to an online mode of delivery in light of restrictions on in-person gatherings.

The theme for the 2021 COAT National Conference is Responsive, resilient, reskilled – Tribunals in times of change.

The Conference will be held across two mornings on 10 and 11 June between 9:30am and 1:30pm AEST each day.

Among the range of impressive speakers are:

• New Zealand based international writing expert Helen Sword, who will be giving a Decision writing master class
• Retired South Australian Supreme Court justice, the Hon Robyn Layton AO QC, who will be discussing Leading tribunals, training leaders
• Queensland based behavioural psychologist and consultant to both the Australian Institute of Sport and the Australian Defence Force, Dr Jemma King, offering advice on Life Hacks for not getting stressed
• Harvard Business School A/Prof Ashley Whillans speaking about her research work on Being time smart
• Experienced NSW Tribunal member Linda Pearson and UNSW Senior Law lecturer Dr Janina Boughey will be analysing The Rules of evidence do not apply – what does this mean?

Early bird registration closes on the 23 April 2021 Book now at https://www.coatconference.com.au/

The following three judgment summaries highlight different issues around:

• Legal professional privilege in the context of answering questions put by a Tribunal
• Procedural fairness and a de-registered health practitioner’s right to a hearing at NCAT, and
• Contempt for refusing to answer questions put by a Commission.

The summaries were prepared by Michelle Yu, Frederick Jordan Chambers.

BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181
Federal Court of Australia, Rangiah, SC Derrington and Abraham JJ, 29 October 2020

This was an appeal from a decision of the Federal Circuit Court (the FCC), dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm the refusal of a Protection visa application.

The Appellant had been represented by a lawyer (who was also a migration agent) in preparing his visa application, which was the subject of the review conducted by the Tribunal. At a hearing conducted by the Tribunal, the Appellant was asked questions about matters including what he had been told by his lawyer about the Protection visa application process and whether he had given details of all of his claims to fear harm, to his lawyer.

In dismissing the application at first instance, the primary judge relevantly found that the Tribunal’s questions were procedural and did not invite the disclosure of legal advice and that the Appellant’s conduct was inconsistent with the maintenance of legal professional privilege and any privilege was waived by implication. Further, the primary judge found that any failure on the part of the Tribunal to warn the Appellant that he could claim legal professional privilege did not deprive him of a favourable outcome and so was immaterial and did not demonstrate jurisdictional error.

On appeal, the Appellant contended that first, the primary judge should have found that the Tribunal’s decision was affected by jurisdictional error in that it failed to warn the Appellant that he was entitled to assert legal professional privilege. Second, that the Tribunal was acting in excess of power by asking certain questions that called for the disclosure of confidential communications between the Appellant and his lawyer that had been made for the dominant purpose of giving or obtaining legal advice. Third, that the appellant had not waived his privilege. Fourth, that the primary judge erred in finding that any failure to warn did not deprive the Appellant of a favourable outcome as it was not material to the outcome.

Held: appeal dismissed.
(1) There was no jurisdictional error on the part of the Tribunal. The primary judge was correct to conclude that the failure by the Tribunal to advise the Appellant that he could claim legal professional privilege did not deprive him of a favourable outcome and so was not material. [138]
(2) The Tribunal’s questioning did invite the disclosure of information that might or would be the subject of legal professional privilege. The questioning went to the very substance of the scope of the instructions that the Appellant gave to his legal adviser for the dominant purpose of obtaining legal advice in relation to his application for a Protection Visa. [97]-[98]
(3) The primary judge ought to have found that the Tribunal should have warned the Appellant that he was entitled to refuse to answer questions on the ground of legal professional privilege. [108]-[109]

Ghosh v Health Care Complaints Commission [2020] NSWCA 353
New South Wales Court of Appeal, Bell P, Payne JA and Stevenson J, 22 December 2020

This was an appeal from three decisions of the NSW Civil and Administrative Tribunal arising from an application brought by the Health Care Complaints Commission (the Commission) to cancel the Appellant’s registration as a health practitioner, pursuant to s.149C of the Health Practitioner Regulation National Law 2009 (NSW) (the National Law).

Sections 165I of the National Law provided that the Tribunal must not give less than 14 days’ notice of an inquiry or appeal under the National Law to persons including the subject of the inquiry, being the Appellant. Section 165J conferred a right on the Appellant to attend and to be legally represented at the inquiry.

In its first decision, the Tribunal had made an order under s.50 of the NSW Civil and Administrative Tribunal Act (NSW) (the NCAT Act) that the hearing should be dispensed with and that the matter would be determined on the papers. This order was made at a directions hearing at which the Appellant did not appear.

In its second decision, the Tribunal decided that among other things, that the Appellant should be disqualified from being registered as a medical practitioner for 18 months; and that those orders should be stayed to allow the Appellant to make an application to show cause why the orders should not be made. In its second decision, the Tribunal also held that the Appellant had “behaved in a dishonest, vindictive and retaliatory manner to colleagues who had made professional complaints about her or provided expert evidence in matters considered by the Applicant, the Medical Council of New South Wales or the Tribunal.” This was not alleged in any of the complaints made by the Commission in its application.

The Appellant relevantly filed an application with the Tribunal seeking a stay of the order to disqualify her from being registered as a health practitioner. In its third decision, the Tribunal published its reasons for terminating the stay of its original orders such that the orders made in conjunction with its second decision “operated instanter”.

The issues to be determined by the court on appeal included whether the Tribunal erred in the procedure adopted in determining the complaints against the Appellant.

Held:  Tribunal’s decisions set aside; matter to be remitted to the Tribunal to be re-heard by a differently constituted panel.
(1) The Appellant was denied the right to attend the inquiry into her alleged conduct in public and to be legally represented at that inquiry. Sections 165I and 165J of the National Law prevail over the Tribunal’s power under s.50 of the NCAT Act to dispense with the hearing altogether. [104], [109], [112]
(2) The Tribunal had no power to proceed with the inquiry because of non-compliance with ss.165I and 165J of the National Law. That consequence, and the lack of procedural fairness of the Tribunal proceeding as it did, could not be cured by the “show cause” procedure in which the Tribunal invited the Appellant to participate. [122]-[123]
(3) The provision of procedural fairness to the Appellant required that she be given an opportunity to answer a complaint not made by the Commission. [164]
(4) No Court or Tribunal should ever conclude that a person has “behaved in a dishonest, vindictive and retaliatory manner” without such matters being clearly alleged and closely particularised, and without fully exposing the Court or Tribunal’s reasoning process. [173]

Lusty v CRA20 [2020] FCA 1737
Federal Court of Australia, Abraham J, 3 December 2020

The Applicant sought among other things, a declaration that the Respondent was guilty of contempt of the Australian Criminal Intelligence Commission (ACIC) contrary to s.34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) (ACC Act) by refusing to answer 14 questions asked of him during a compulsory examination, and orders for punishment of that contempt.

The ACIC’s functions included the collection, correlation, analysis and dissemination of criminal information and intelligence, and undertaking “special operations” relating to “federally relevant criminal activity”: s.7C(1)(c) ACC Act. Section 34A(a)(ii) of the ACC Act provided that a person is guilty of contempt of the ACC if they refuse to answer a question that they are required to answer by the examiner.

The Respondent attended an examination under compulsion of a summons issued by the Applicant requiring him to attend to give evidence pursuant to s.28 of the ACC Act. The Respondent was legally represented at the examination. The summons stated that he was required to give evidence in relation to matters relating to criminal activity, drug offences, as well as activities that may be connected to such offences including money laundering and other related unlawful activities. The Respondent took an affirmation and answered a number of questions asked by counsel assisting. After the examination had been in session for 24 minutes it was adjourned to provide the Respondent with an opportunity to speak with his lawyer. After the examination resumed the Respondent informed the Applicant that he did not wish to answer any questions. In the context of declining to give any reason for the refusal to answer the questions, when asked by the Applicant if he had any fears or concerns, the Respondent said “Just for my safety, that’s it”. But when invited to elaborate, the Respondent declined to do so. The Respondent pleaded guilty to the offence of contempt.

Held: the Respondent was found guilty of the charge of contempt and sentenced to a term of 8 months imprisonment.
(1) The Respondent’s contempt was deliberate. The Respondent was repeatedly informed of the consequences of his refusal to answer the questions and given every opportunity to speak to his counsel to obtain legal advice and to consider that legal advice. [40]
(2) The Respondent’s refusal to answer questions undercut the effectiveness of the scheme which authorised these compulsory examinations. [41]
(3) The Respondent has been given many opportunities to purge his contempt and declined to do so in a context where he was well aware of the consequences of his failure to do so. [43], [50]