The rule in Browne v Dunn in proceedings before an administrative review tribunal

In a recent judgment in Twentyman v Secretary, Department of Social Services, Griffiths J refused an application for leave to appeal out of time from an earlier judgment of Wigney J dismissing the applicant’s appeal on a question of law from a decision of the Administrative Appeals Tribunal. The judgment does not say anything new about the test for leave to appeal out of time. However, both the judgment of Griffith J and the judgment of Wigney J contain useful reviews of recent authorities dealing with the application (or non-application) of the rule in Browne v Dunn in proceedings before an administrative tribunal. For this reason, both judgments may be useful for lawyers who appear before merits review bodies like the AAT and the Victorian Civil and Administrative Tribunal.

The facts

In 2005, the respondent Secretary decided to cancel the applicant’s Disability Support Pension. Approximately 11 years later, the applicant sought review of the decision in the AAT. The AAT affirmed the Secretary’s decision, finding that the applicant had failed to comply with a number of notices given to him under s 68 of the Social Security Administration Act 1999 (Cth) and that it was appropriate to exercise the discretion under s 81 of that Act to cancel his pension. In reaching its conclusion, the AAT made a number of adverse findings about the applicant’s credibility as a witness. The applicant then appealed to the Federal Court on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), claiming (among other things) that the AAT had erred by making findings about matters going to his credibility that had not been not the subject of cross-examination by the Secretary’s legal representative. That is, he submitted that the Tribunal had erred in law by failing to apply the rule in Browne v Dunn.

What is the rule in Browne v Dunn?

Browne v Dunn is a case so important that it has its own website (because, as we all know, only important things have websites). In it, Lord Herschell LC famously said that it is ‘absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made’. The rule drawn from Browne v Dunn has been restated on numerous occasions. Thus the High Court has said that the rule is ‘essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit.’ Similarly, in its 2006 report on the Uniform Evidence Law, the Australian Law Reform Commission stated that:

The common law rule in Browne v Dunn states that where a party intends to lead evidence that will contradict or challenge the evidence of an opponent’s witness, it must put that evidence to the witness in cross-examination. It is essentially a rule of  fairness – that a witness must not be discredited without having had a chance to comment on or counter the discrediting information. It also gives the other party notice that its witness’ evidence will be contested and further corroboration may be required.

Broadly speaking then, Browne v Dunn sets out a rule of fairness that ensures that a party cannot, after the conclusion of its case, be confronted with a submission to the effect that the judge or jury should accept evidence that is adverse to its position and that it has had no opportunity to deal with.

The judgments in Twentyman

Both Wigney J and Griffiths J considered that the applicant’s submission was untenable. In particular, both of their Honours noted that at the conclusion of his evidence before the AAT, the applicant had stated that he had ‘had enough’ and had left the hearing room (making it impossible for him to be cross-examined), that both the applicant’s and the Secretary’s legal representatives had then made submissions addressing the credibility of the applicant’s recollection of events, and that the applicant’s legal representative had not made any attempt to have the applicant recalled for cross-examination. In these circumstances, it could not reasonably be argued that the applicant had not been given an opportunity to respond to the credibility issues raised by the Secretary. Nevertheless, both Griffiths J and Wigney J gave extensive consideration to to the authorities dealing with the application of the rule in Browne v Dunn in proceedings before an administrative tribunal. Both judgments – particular that of Wigney J – are worth reading on this point.

Wigney J’s detailed consideration of the relevant authorities can be summarised as follows:

  • In Re Ruddock; Ex parte Applicant S154/2002, Gummow and Heydon JJ (with whom Gleeson CJ agreed) stated that in the context of an essentially ‘inquisitorial’ proceeding before an administrative tribunal, the rule in Browne v Dunn has no application.
  • However, Hill J and Edmonds J  have stated that in more ‘adversarial’ administrative law proceedings  where the primary decision maker appears as an active contradictor, the rule may still apply.
  • In other cases, single judges of the Federal Court have questioned whether the rule in Browne v Dunn adds anything to the broader concept of procedural fairness. Thus French J (as his Honour then was) once observed that Browne v Dunn ‘may be seen as a particular application of procedural fairness closely related to, if not now entirely subsumed by, the familiar concept of the right to be heard.’ Similarly, Robertson J has stated that ‘it is apt to mislead and to give proceedings in the Tribunal an unwarranted curial gloss to refer to principles of procedural fairness as they operate in the Tribunal by reference to Browne v Dunn.’
  • More recently, the Full Court seems to have adopted the view of French J and Robertson J. Thus in Sullivan v Civil Aviation Safety Authority, Logan J stated that ‘the inherently flexible content of a procedural fairness obligation can, where that obligation attends the exercise of administrative power, entail a requirement which resembles that which would flow in a judicial proceeding from observance of the rule in Browne v Dunn.’ More forcefully, Flick and Perry JJ stated that ‘any submission that the [AAT] is universally – or even generally – required to apply the rule in Browne v Dunn in the conduct of its hearings is a submission doomed to failure.’

In Twentyman, Wigney J concluded that it was unnecessary to resolve any conflict in these authorities. However, his Honour seems clearly to have preferred to address the question of compliance with the rule in Browne v Dunn on the basis that it may form part of the requirements of procedural fairness, rather than on the basis that it is a freestanding rule with which administrative tribunals are generally required to comply. Thus his Honour stated that:

[T]he rule in Browne v Dunn is essentially a rule which is designed to secure procedural fairness in adversarial proceedings. There is no doubt that the Tribunal must afford the parties to the review procedural fairness. Even if the rule in Browne v Dunn may not strictly apply in proceedings in the Tribunal, there undoubtedly may be circumstances where it would be a denial of procedural fairness for the Tribunal to make a finding of fact contrary to the evidence of a witness in circumstances where that finding was not put to the witness … The preferable approach is to address any issue arising from the failure to cross-examine the witness by reference to the principles of procedural fairness, without recourse to the rule in Browne v Dunn.

On the applicant’s application for leave to appeal out of time, Griffiths J expressed no view as to which approach was preferable. Rather, his Honour concluded that whichever view was correct, the Secretary’s failure to cross-examine the applicant had resulted from the applicant’s own conduct and could not reasonably be supposed to have caused the applicant any practical injustice. The applicant therefore had no real prospect of successfully appealing from this aspect of  Wigney J’s judgment.

Discussion

In the context of proceedings before a non-judicial tribunal, the approach favoured by Wigney J in Twentyman – that of subsuming the rule in Browne v Dunn within the broader principle of procedural fairness – seems to me to be preferable to the approach of treating Browne v Dunn as supplying a separate, freestanding rule. This is so for a number of reasons. As a practical matter, in most proceedings before a review tribunal like the AAT or VCAT, there will be a primary decision accompanied by reasons that clearly identify the issues that are relevant to the decision. The written material on which that decision was based will have been provided to the party seeking review, and any further material that the decision maker proposes to rely on (if it intends to appear and advocate for the correctness of its decision) will have been exchanged by the time the matter proceeds to hearing. In these circumstances, it will be unusual for the party seeking review not to be fully aware of the areas in which its evidence is likely to be contradicted (although unforeseen issues may arise from the tribunal’s treatment of the evidence, in which case procedural fairness will usually require that those issues be drawn to the party’s attention).

More fundamentally, though, administrative review tribunals are not courts, and Australian legislatures creating such bodies have consistently stated in their establishing legislation that they should not be bound by the rules of evidence or by the formal procedures of courts. As Diplock LJ observed in R v Deputy Industrial Injuries Commissioner; Ex parte Moore, those rules and procedures have their origin in ‘the fear that juries who might be illiterate would be incapable of differentiating between the probative values of different methods of proof’ and can operate to ‘exclude much material which, as a matter of common sense, would assist a fact-finding tribunal to reach a correct conclusion.’ They are not always required to enable a literate, rationally-minded administrative decision maker to make a decision in a fair and reasonable way. Indeed, their application will often both frustrate that ultimate goal and lead to an increase in expense and inconvenience. For this reason, it is well established there is no absolute right to cross examine the author of a report placed before an administrative tribunal; indeed, there is no absolute right to cross-examine in administrative law proceedings at all, although failure to allow an effective opportunity to cross-examine may result in a denial of procedural fairness. Treating the rule in Browne v Dunn as part of the broader principles of procedural fairness and reasonableness – and applying it only when to fail to do so would be unfair to a party or would deny the tribunal access to probative information – is consistent with an approach to administrative law proceedings that treats the provision of a fair hearing and the making of a rational and legally reasonable decision as the ultimate goals and that eschews the time consuming and expensive aspects of court procedure, other than to the extent that adopting them promotes those goals. That is, it is an approach that is consistent with both the need for fairness and the need to ensure that administrative law proceedings are conducted in an efficient, cost-effective way; it ensures that ‘the rules of evidence which have been excluded expressly by the statute [do not] creep back through a domestic procedural rule‘, while also ensuring that decisions are fairly made and that ‘desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force.’

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