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

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

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

A vital circle of relationships Family Service providers The person

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)

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)

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-

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?

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

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

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