COAT (NSW CHAPTER) FIFTH ANNUAL CONFERENCE –
23 MAY 2008
The Appropriate Management of Difficult Situations in Tribunal Hearings
It is a pleasure to have been invited to address the New South Wales Chapter of the Council of Australian Tribunals.
I congratulate those involved in the establishment of the COAT in 2002. It was, it seems to me, a positive step towards the establishment of standards of best practice for Australian tribunals as well as improved opportunities for training and collegiate support for Tribunal members. My understanding is that the COAT, in a sense,was inspired by the annual AIJA Tribunal’s Conference. That conference was an initiative implemented by the AIJA whilst I was an AIJA council member. It is gratifying to see such a productive organisation now serving the needs of Australian Tribunals and their members – but not, I trust, in a way which limits your interest in the work of the AIJA generally.
As residents of Australia, and also of NSW, we have much to be proud of in our Federal and State administrative law systems. In a sense they are each a product of the Kerr Committee which in 1971 drew attention to the steady development of a vast range of administrative discretions that could be exercised in a way that detrimentally affected the life, liberty, property, livelihood or other interests of a person[1]. The major theme underlying the report of the Kerr Committee was the need to develop a comprehensive and integrated system of administrative review the major plank of which was an expanded framework for the review of decisions on their merits[2]. While recommending the creation of a general tribunal the Committee accepted that there could be a need for some specialist tribunals where a general tribunal might lack the appropriate expertise. This is, of course what we now have both at the Commonwealth and the NSW level.
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In June 2002, in marking the 25th anniversary of the Administrative Review Council, Mr RJEllicottQC, who was Attorney-General of Australia in the critical years of 1976-1977, described the Commonwealth administrative law reforms of those years as giving Australia “probably the most advanced system of administrative law in the world”[3]. The systems in which you serve continue to deserve high praise – as do your efforts, as reflected by the subject matter of today’s conference, to ensure that in addition to good systems, the Australian public also has access to tribunals whose processes are fair and appropriate in the circumstances of particular cases.
I note that amongst the objects of the COAT are the establishment of a national consultative and discussion network for members and the provision of a forum for the exchange of information and opinion on aspects of Tribunal practice and procedure[4]. It is with these objects particularly in mind that I have approached the preparation of this address. The appropriate management of difficult situations in Tribunal hearings is an especially appropriate topic for members of courts and members of tribunals to share their respective experiences and views. None of us knows the answers but there is probably much that we can learn if we share our experiences.
I have been invited to draw on my own experiences in addressing you today. I shall certainly do so – although I will also make some observations of a more theoretical nature. I have also concluded from the invitation to draw on my own experiences that it would be appropriate to leave time for questions and comments.
The sorts of difficult situations that I have understood this conference to be principally concerned with are people-based situations rather than situations arising from the inherent complexity or intellectual difficulty of the subject matter of hearings. Difficult people-based situations, in my experience, usually arise from the need to deal with individuals who have either a limited or a distorted understanding of what the tribunal in questioncan do for them; of the issues for its determination or the procedures that it will adopt in determining those issues – or perhaps all three. I will often use the term “tribunal” as I do here to include both an administrative and a judicial tribunal. My experience is that few, if any, individuals come before tribunals with the deliberate intention of being difficult. Of course, the factors that I have mentioned may render it virtually inevitable that difficult situations will arise.
Those who we have come to call “querulous litigants” may be seen to fall into all of the three categories that I have mentioned but particularly the first. However, having seen from the program that DrGrant Lester, a leading authority on querulous litigants, is to speak to you this afternoon, I will touch only briefly on this class of difficult individuals.
The thesis that I wish to develop this morning is that in dealing with difficult peoplebased situations that arise during hearings we should be acutely conscious of fair process – even where, at least at first blush, everything seems to suggest that only one outcome is reasonably open.
In summary, I propound this view for the following reasons. First, there is not always a clear dichotomy between the fairness or justness of a determination and the fairness and justness of the process that led to that determination. Secondly, it is important for reasons which are well-known to us all that tribunals maintain the confidence of the communities that they serve. Studies suggest that people value good process for its own sake irrespective of its effect on outcomes. Thirdly, it is not easy for any of us to deal with a difficult, or even unexpected, situation. When faced with such a situation during the course of a hearing falling back on traditional processes includingthe accepted common law rules of procedural fairness can guide us as to an appropriate way forwardand also give us some measure of protection against falling into error – including by missing a critical issue which a party might unwittingly fail to bring to our attention or disguise by his or her concentration on other things. Let me enlarge on these reasons.
Why do I suggest that the accepted dichotomy between the merits of a determination and the fairness of the process by which it was reached is sometimes, possibly often, unclear?
The first reason is somewhat theoretical but, in my view, no less important for that. It is, to use the language of Professor DJGalligan, that the principle that people should be treated with concern and respect is one of the “foundations of the citizen-state relationship”[5]. For this reason what Professor Galligan describes as “non-outcome values” (ie values about how people should be treated) are an import aspect of any assessment of whether a legal determination, which is backed by the authority of the state,is meritorious. While to have one’s rights upheld according to law is a critical element of an acceptable legal determination, an acceptable legal determination involves more than just that. Processes in a tribunal hearing occur in a context of values about how people should be treated by the state, particularly in a liberal democracy, that do not relate only to final outcomes. Those values include the human right of all people to have their dignity as well as their legal rights respected.
The second reason for challenging the dichotomy between the merits of a determination and the fairness of the process by which it was reached is that in some cases the distinction is entirely elusive. It is unlikely to be elusive where the determination is the outcome of the application, or purported application, of a strict criterion (ie that the applicant is over the age of 60 years or that he or she had a taxable income in a given financial year of more than $100,000 a year). It could be, of course, if reliance is placed, for example, on a birth certificate or a taxation assessment that is forged or erroneously issued and no opportunity is provided to challenge it. However, where a decision-maker is required to make a judgment on which reasonable minds might differ (ie should a discretion not to require an overpayment of pension entitlement be exercised in all of the circumstances of a particular case) there may be little distinction that the parties (or, indeed, anyone)can identify between outcome and process. How can parties judge the outcome other than by reference to the way in which they were treated, including whether they were given a fair chance to put their case, whether the tribunal member or members appeared biased and whether the reasons for decision appear to be logically based on probative evidence?
In summary, process may be of diminished significance (but not without significance) where there is apparently little doubt about a party’s entitlement, or lack of entitlement, but it is likely to be of overwhelming importance where normative expectations as to outcomes are uncertain.
The third reason for challenging the dichotomy between the merits of a determination and the fairness of the process by which it was reached is that, as it seems to me, an aspect of the merits of a determination is the extent to which the parties accept its legitimacy. Research appears to show that litigants’ satisfaction with determinations is influenced by their judgments about the fairness of the process giving rise to the determination[6]. Anecdotal evidence also supports this view. Most of us, I expect, have during our lives as decision-makers experienced parties telling us something to this effect. I remember clearly an incident that occurred early in my judicial career when I was hearing a bankruptcy petition. It has influenced my conduct in a number of later cases involving unrepresented and apparently difficult litigants.
The debtor was an unrepresented invalid pensioner who had failed to pay the taxed costs of solicitors who had acted for him when he had been a party to a civil dispute in a Magistrates court. The Bankruptcy Act[7] required me to consider whether I was satisfied by the debtor that there was sufficient cause for a sequestration order not to be made. I therefore asked him whether there was anything that he wished to say on the question of whether, notwithstanding that he had not, and could not, pay the solicitors’ taxed costs, there was a reason why he shouldn’t be made bankrupt. After clarifying that I was seriously asking him to speak, he then spoke calmly and sensibly for some minutes. It is not necessary to detail what he said. The point of the story was that at the end of his address he asked if he could say something more on a different topic. I agreed that, provided he was brief, he could. He then stated that he had not been allowed to address the Magistrates Court on his original hearing (I interpolate, presumably, because he was legally represented there), nor when he applied without legal representation to have his case re-opened (I interpolate, presumably because his papers did not disclose any error affecting the original hearing). Nor he said, was he allowed to address the taxing officer when he sought to challenge his solicitors’ bill of costs on the basis that, as he claimed, they had acted in disregard of his instructions (I interpolate presumably because this claim should have been advanced in another forum). He concluded by saying that all he had really wanted was that someone in authority should listen to him and that if, having done so, I thought that he should be made bankrupt that would be OK by him! I have no doubt that had he not had the opportunity to say what he wanted before me he would almost as a matter of course have instituted an appeal to the Full Court from any sequestration order made by me.
Returning to the research linking litigants’ satisfaction with determinations with their judgments about the fairness of the process giving rise to the determination, Tom R Tyler in a US study published in 1988 reported that the judgment of citizens concerning procedural justice is complex and multifaceted[8]. He found that individuals paid attention to seven distinct aspects of process: the apparent motivation, honesty and ethicality of the decisionmaker; the opportunities for representation (by which he meant opportunity to present their case and influence the determination); the quality of the decisions; the opportunities for error correction (ie review or appeal) and the decisionmakers’ bias[9]. In the Tyler study judgments about “how hard” the decisionmaker tried to be fair emerged as the key overall factor in assessing procedural justice. The author also referred to an earlier publication which argued that one of the most significant aspects of procedural justice to citizens was that the procedures used supported their sense of self-respect[10]. As he observed, being treated politely and seeing one’s rights respected may be expected to strongly re-enforce self-respect.
Interestingly, Tyler also reported that people think about procedural justice in a similar way even if they differ from each other on background characteristics[11]. It is not possible to be sure whether his study included individuals from significantly different cultural backgrounds but, there is reason to think that it may not have done so in significant numbers[12]. My own experience of dealing with individuals from a starkly different cultural background from that of the average Australian has been in the exercise of the Federal Court’s judicial review jurisdiction under the Migration Act. That experience suggests that even those, perhaps especially those, seeking to avoid life under totalitarian regimes have a good basic understanding of western notions of procedural fairness – in part at least, perhaps, because that understanding formed part of their motivation for wishing to settle here.
Whyin practical terms does a concentration on fair process help us manage difficult situations? In considering this question I recognise that there is an ascending scale of difficult people-based situations that can arise in the course of a hearing. At the bottom end are the common difficulties that arise from nervousness and unfamiliarity with the environment. Because these arise so commonly they may in truth be the most important for us to be aware of and have strategies in place to deal with. At the other end of the scale is the truly querulous, and especially the potentially violent, truly querulous. As I have already mentioned, I think it best to defer to Dr Lester on the topic of querulous litigants, subject to three observations.
First, in my experience it is easy to jump too readily to the conclusion that a person is querulous. Apparently difficult, abrasive and uncooperative behaviour can on occasions be the product of nervousness or uncertainty as to how to proceed or a sense of having been treated with disrespect. Such people if spoken to calmly, respectfully and in terms which they can understand about how the hearing will proceed may, in my experience, revert to perfectly acceptable behaviour.
Secondly, in my experience the querulous tend to like rules and do not deal well with ambiguity. For this reason it tends to be helpful to give them a set of rules within which to work, rather than to encourage unfocussed discussion or forms of ADR in an endeavour to resolve their disputes. By way of example, if a querulous applicant were to claim relief of $100 million against the Prime Minister personally I would be unlikely to try to reason with the applicant or to suggest that he or she go away to give further consideration to the merit of the claim. Rather, I would be inclined, if necessary, to prompt the lawyers representing the Prime Minister to move promptly, if so instructed, to make an application under Order20 of the Federal Court Rules which is concerned with summary disposal and stay of proceeding. If, having received the application and the affidavit evidence in support of it, the applicant nonetheless persisted with the claim, I would fix a tight but not too tight timetable for the filing of affidavit evidence by the applicant and possibly written submissions by both parties. I would explain my power to move immediately to dismiss the claim if the applicant failed to comply with the timetable. I would hear the application as promptly as possible and in a formal way; that is, I would ask both sides to identify the evidence upon which they relied, ask each party in turn if he or she wished to add to the filed written submissions, give any appropriate right of reply and then bring down an immediate ruling. Formality of process of this kind, in my experience, usually limits rather than increases the costs of the other side and tends to lead to outcomes that the querulous understand and accept. That doesn’t mean that they won’t appeal but, if a ruling follows a formal process during which they are heard, they normally accept that the ruling is authoritative subject to appeal.
The third observation I wish to make about querulous litigants is of lesser significance but wider application. It is that in my experience the agitated find it more difficult to act in an overbearing way when seated than when standing. For that reason I often look for a reason to invite an unrepresented litigant who appears over-excited to sit down – and should the invitation not be taken up to insist that he or she do so. It can have a curiously calming effect.
I return then to difficult situations that don’t involve the querulous. A good number of such situations arise in my experience because an unrepresented party is unfamiliar with the tribunal’s processes and therefore excessively anxious. Almost certainly all of us underestimate the number of people who come before us who are unfamiliar with our tribunal’s processes and the extent of their unfamiliarity. Once something becomes familiar it is, in my experience, almost impossible to recall precisely how mystifying it once seemed. Conscious attention to fair process will remind us of the need for those who bring their disputes to us for resolution to be able to participate meaningfully in the process. It is fortuitous that by ensuring as best we can that they can do so we also help ourselves by minimising the risks of difficult situations arising.