¹ Damaska writes: “In the Anglo-American legal culture the discussion of the two manners proof taking [adversary and non-adversary] can easily be traced at least as far as Jeren Bentham. It is rather difficult however to find proponents of the continental style of taki1 evidence among English and American writers”: M Damaska, “Presentation of Evidence and Fact Finding Precision” 123 Uni Pennsylvania L Rev 1083, 1083. Three notable exception: which I have found of great assistance are Sir Richard Eggleston, “What is Wrong with the Adversary System” (1975) 49 ALJ 428; G Osborne, “Inquisitorial Procedure in ti Administrative Appeals Tribunal - A Comparative Perspective” (1982) 13 FL Rev 150; and H Langbein “The German Advantage in Civil Procedure” (1985) 52 Uni Chicago L Rev 823.

² (Court of Appeal of New South Wales, 19 February 1992, unreported).

³ Ibid 16.

⁴ Ibid 17-18.

⁵ Mr Justice Moynihan, 'Towards a More Efficient Trial Process”, (a paper delivered at, Australian Institute of Judicial Administration Tenth Annual Conference, September 1991, forthcoming in Australian Institute of Judicial Administration, Papers Presented at the Tenth Annual AIJA Conference (1992)).

⁶ Eggleston,supra n 1, 431.

⁷ (1984) 1 FCR 354.

⁸ Ibid 358 per Woodward J.

⁹ Re Mouratidis and Secretary, Department of Social Security (AAT, 11 October 199 unreported).

¹⁰ H Whitmore, “Comment” (1981) 12 FL Rev 117, 117.

¹¹ Veterans' Entitlements Act 1986 (Cth) s 17.

¹² Ibid ss 17, 18.

¹³ (1989) 91 ALR 39.

¹⁴ Ibid 50.

¹⁵ (1982) 4 ALN N 106. Similar comments were made in McDonald v Director-General of Social Security (1984) 1 FCR 354, 366 per Norhrop J. See also Re Lockley and Commonwealth (1986) 11 ALN N 139, 141; Re Ermo/aeff and Commonwealth (1989) 17 ALD 686; and Re Cinkovic and Repatriation Commission (1990) 20 ALD 131, 137-138. In other matters & Tribunal has commented favourably on the approach adopted by department, representatives; (Re White and Secretary, Department of Social Security (AAT, 1 October 1991, unreported). The role of the government representative has been likened to that of amicus curiae: S Skehill, “The Departmental Advocate's View”, in J Goldring (ed), Th Workings of the Administrative Appeals Tribunal (1980) 43.

¹⁶ (AAT, 14 December 1983, unreported; summary only at (1983) S ALN N 368). This passage has been since applied by the Tribunal; see Re Wertheim and Department of Health (1984) ALD 121 and Re Ousley and Comcare (1990) 19 ALD770, 770-771. The Tribunal in R Ousley also referred to the extensive consideration of s 37(1) of the AAT Act by the Tribun, presided over by Fisher J, in Re Palmer and Minister for the Capital Territory (1978) 1 AL 183, 192-194 and Re Palmer and Minister for the Capital Territory (No 2) (1979) 2 ALD 20'

¹⁷ “The Intruding Judge”, Bar News, The Journal of the NSW Bar Association, Winter 1991.

¹⁸ J H Langbein, supra n l, 843.

¹⁹ M Allars,Introduction to Australian Administrative law (1990),334.

²⁰ See Bayne, P, ″The New Practice Direction of the Commonwealth Administrative Appeals Tribunal(AA1)″(1991)65 ALJ 546, 549Google Scholar,and more generally,″Tribunal sand the Cheshire Cat″,(a paper delivered at Australian Institute of Judicial Administration Tenth Annual Conference, September 1991, forth comingin Australian Institute of Judicial Administration, Papers Presented at the Tenth Annual AIJA Conference (1992)).

²¹ (1978) 1 ALD 383

²² Ibid 386.

²³ (1981) 35 ALR 186.

²⁴ Ibid 199-200. Whitmore has observed that: “… I believe that the Tribunal should be us largely inquisitorial procedures and should whenever possible abandon adversarial techniqal together-bearing in mind that there is a good deal of misunderstanding about winquisitorial procedures are all about. In many inquisitorial procedures they do use some of familiar techniques of the common law such as cross-examination, when facts are in iss and soon. It is not simply a question of a judge seeking information on his own … One of Greatst failures of public law has been reliance on party-party conflict to produce the right evidence. As a result, in many areas the proper evidence about the wider public interest never produced at all”: H Whitmore, supra

²⁵ PO'Neil,″ Do Review Bodies Lead to Better Decision Making? -II″(1991)Canberra Bullet in of Pub Admin No 66, 124-125. See too the remarks of MsCoghlan, National Convenor of the Social Security Appeals Tribunal, in A Coghlan, ″Can Review Bodies Lead to Better Decision-Making?-III″, (1991) Canberra Bullet in of Pub Admin No 66, 128.

²⁶ Electoral and Administrative Review Commission, Appeals From Administrative Decisions Issues Paper No 14 (1991),50.

²⁷ Sir Mason, Anthony, “Administrative Review - The Experience of the First Twelve Years” (1989)18 FL Rev 122, 133Google Scholar.

²⁸ (1985) 7 ALN 113, 116-117.

²⁹ Re White and Secretary, Department of Social Security (AAT, 1 October 1991,unreported) is an example of another matter where an infonnal and flexible approach by the Tribunal was required.

³⁰ Eggleston, supra n 1, 431.

³¹ Ibid 437.

³² There is a very valuable discussion of use of hear say evidence by tribunals in Brennan Jreasons for decision in Re Pochi and Minister for Immigration and Ethnic Affairs (l979)2 ALD 33, 42-43. See also J H Langbe in supra n 1, 829

³³ I was interested to see that in Galea v Galea (1990) 19 NSWLR 263, 275, the passage set out from Powell J's questioning of Dr Galea shows His Honour to have indulged in the same habits. The NSW Court of Appeal held that in the particular circumstances of the case, bearing in mind that the judge was sitting alone, that it was along case and that Dr Galea was a difficult witness,the judge's interventions did not deprive the appellant of a fair trial.It is interest in though that in the passage quoted any criticism of His Honour's conduct of the trial should not be on the basis that it was too inquisitorial but rather that it was too adversarial.

³⁴ As Mahoney JA said in Glasscock's case: “The reasons why it was felt unjust to take the matter out of the hands of the advocates is essentially. I think, the expectations of the parties”:supra n 4.

³⁵ G Osborne, supra n 1.

³⁶ Langbein, J H, supra n 1Google Scholar.

³⁷ Ibid.

³⁸ Supra n 8.

³⁹ (1986) 9 ALN N 218.

⁴⁰ Ibid 22l.

⁴¹ (1983) 5 ALD 277.

⁴² Ibid 285.

⁴³ Langbein, J H, supran 1, 837Google Scholar.

⁴⁴ I commend Langbein's article to anybody concerned with the unsatisfactory features of the use of expert witnesses in the Australian legal system today. As he says, “[t]he more measured and impartial an expert is, the less likely he is to be used by either side”: Langbein, J H, supra n 1, 835Google Scholar.

⁴⁵ (1989) 87 ALR 633.

⁴⁶ Ibid 634.

⁴⁷ Ibid 645.

⁴⁸ There is insufficient space here to set out Langbein's detailed explanation of the safeguard parties' interests in the German civil procedure in regard to the use of experts. I agree him that: “[a]ccordingly, the proper question is not whether to have lawyers, but how to them; not whether to have an adversarial component to civil procedure, but how to prev adversarial excesses. If we were to incorporate the essential lesson of the German sys our own procedure, we would still have a strongly adversarial civil procedure. We would however, have coached witnesses and litigation-biased experts”: Langbein, J H, supran 1Google Scholar.

⁴⁹ Electoral and Administrative Review Commission,supra n26,53.

⁵⁰ (1978) 1 ALD 383.

⁵¹ Ibid 402-3.

⁵² Ibid 406-407.

⁵³ Supra n 22. In Commonwealth of Australia v Scott (1978) 1 CCO 119 FisherJ referred Sullivan and said that he preferred the reasons for decision of Deane J to those of Smithers J

⁵⁴ (1979) 2 ALO 60, 77-78. In Kuswardana v Minister for Immigration and Ethnic Affairs (198 35 ALR 186 the Federal Court held that it was an error of law for the Tribunal to fail consider and decide the issue of migrant status even where the parties did not raise the issu see text supra n 24.

⁵⁵ (1988) 22 ALD 596.

⁵⁶ (1981) 35 ALR 186.

⁵⁷ (1986) 10 ALD 124.

⁵⁸ (1977) 17 ALR 219.

⁵⁹ I consider that the comments in Ex parte Mithen apply equally to this Tribunal. Some suggestion that they may not was made by the Tribunal in Re Lombardo and Commonwealth (1985) 8 ALO 334. However even there the Tribunal repeated that it is not bound to access concessions made by the parties. It referred in its reasons to Re Martin and Commonweal (1983) 5 ALO 277 and Kuswardana v Minister for Immigration and Ethnic Affairs (1981): ALR 186.

⁶⁰ (1985) 7 ALN N 203.

⁶¹ lbid N 201.

⁶² In Doolette v The Repatriation Commission (1990) 21 ALD 489, O'Loughlin J said: “It is well to start this exercise by reminding oneself that proceedings of this nature are inquisitorial - they do not belong to the adversary system. So much is clear from the provisions of s 120(6). Nevertheless, it remains necessary for the Tribunal to give consideration to the whole of the material before it and, within the parameters laid down by s 120, to come to a conclusion which is governed by the use of the words 'detennine' and 'satisfied'.” His Honour did not seem to think the inquisitorial nature of the Tribunal proceeding required that the Tribunal itself seek any material beyond that put before it by the widow of the veteran.

⁶³ (1982) 5 ALN N 60.

⁶⁴ (1989) 10 AAR 296, 298.

⁶⁵ In Defence Force Retirement and Death Benefits Authority v O'Fee (Federal Court, 6 June 1985, unreported) McGregor J criticised the approach the Tribunal had adopted in a case where the hearing was in Adelaide,counsel came from NewSouth Wales,a doctor which evidence was essential had not been available at the original hearing, and legal aid wouldcover a further hearing in Adelaide. In this difficult position the Tribunal decided to have addresses in Adelaide and after wards to hear the doctor'sevidence in a three State telephonehook-up. At the telephone hearing the doctor's voice was indistinct and the Tribunal was that further relevant information had come to light since the hearing concluded. In circumstances McGregor J concluded that the whole proceeding was unsatisfactory and whole matter was remitted to the Tribunal to be heard and decided again.

⁶⁶ See text supra n 60.

⁶⁷ Eggleston, supra n 1, 437.

⁶⁸ See text supra n 4.

⁶⁹ Re Willey and Repatriation Commission (1989) 17 ALD 314.

⁷⁰ (1988) 22 ALD 596.

⁷¹ Another example of this sort of problem arising is Re Stewart and Department of Employment Education and Training (AAT, 14 August 1990, unreported).

⁷² (1985) 9 ALN 49.

⁷³ (1988) 16 ALD 787.

⁷⁴ Ibid para 18 (not reported in (1988) 16 ALD 787).

⁷⁵ Ibid 787.

⁷⁶ Re Trott v Commonwealth (1985) 9 ALN 131 (but not noted on this point), and Re Oalcley and Commonwealth (AAT, 23 December 1985, unreported).

⁷⁷ Re Oalcley and Commonwealth (AAT, 23 December 1985, unreported). These cases have apparently not been noticed by M Allars. lntroduction to Australian Administrative Law (1990) 333, who writes that the Tribunal would not use its powers to call expert witnesses and pointed out (as I did not know) that the Administrative Review Council has recommended against the use by the Tribunal of the powers in ss 33(1)(c) and 40(l)(A) of the AAT Act to call non-party expert witnesses.

⁷⁸ (1989) 17 ALD 314.

⁷⁹ See eg Re Stanisavljevic and Secretary, Department of Social Security (1990) 21 ALD 312.

⁸⁰ (1989) 19 ALD 124.

⁸¹ On 4 December 1989, after the witness gave evidence, but before the Tribunal delivere reasons for decision, the Prime Minister announced that as from that day Nazi restitution payments made by the Austrian Government would not affect entitlement to social secure payments.

⁸² (1990) 21 ALD 293 (not reported on this point).

⁸³ (1991) 23 ALD 249.

⁸⁴ Re Beadle and Director-General of Social Security (1984) 6 ALO 1, 3.

⁸⁵ Another Tribunal took a similar approach to the same provision of the Social Security Act in Re Kirwan and Secretary to the Department of Social Security (AAT. 19 December 1990, unreported).

⁸⁶ (1978) 1 CCD 119, 126.

⁸⁷ Re Kiazim and Commonwealth of Australia (1986) 9 ALN 218; Re Martin and Commonwealth of Australia (1983) 5 ALO 277; and Re Mourtitzikoglou and Secretary Department of Social Security (1991) 23 ALD 249.

⁸⁸ Yuill v Yuill (1945) 1 All ER 193, 198

⁸⁹ See Langbein, J H, supra n 1, 860Google Scholar.

⁹⁰ Electoral and Administrative Review Commission, Supra n 26, 53-54.

⁹¹ Although sometimes the Tribunal has been critical of decision makers in this regard; see Mann Supra n 16, and Re Wertheim and Department of Health (1984) 7 ALD 121, 154. I such cases are now the exception.

⁹² See text at Supra n 5.

⁹³ Mahon v Air New Zealand [1984] AC 808.