The Public Service Appeal Board (Board) has granted an application for examination of a witness before the hearing of an appeal, considering that this be in the interests of justice.

Background

The respondent sought an order for the examination of a witness prior to the commencement of an appeal hearing. The listing dates for the appeal hearing had been vacated on two prior occasions. At an undetermined point in time, the witness requiring examination had booked a holiday and had leave approved for dates that included the new listing dates. The respondent was the employer of the witness, and the leave sought by the witness was approved.

Contentions

The respondent contended that the witness would be overseas on the hearing dates. The respondent’s application was supported by affidavits confirming that the witness was available for the earlier listing date but that the witness would be overseas on the new listing date.

The appellant contended that the witness and respondent were aware of the hearing dates before leave was approved and flights were booked; that the application inadequately explained events surrounding this; and that it was open to conclude the application was made to accommodate the witness’s desire not to be inconvenienced. Further, the appellant contended that the order would inconvenience the Board and the parties’ respective legal teams, could deprive them of preparation time, and result in the matter having to be part-heard. The appellant contended that the travel arrangements were made without securing permission to be absent from duty.

Findings

The Board noted s 80L and s 27(1)(o) of the Industrial Relations Act 1979 (WA) empowers the Board to make an order for the examination of a witness, and that the purpose of the discretion do so is to enable the just and expeditious hearing and determination of an appeal. The Board noted it was not required to investigate whether more could be done by the respondent to secure attendance of the witness or the choices the witness made about their involvement in proceedings, and reiterated that the exercise of its discretion was not for the purpose of punishing parties or witnesses for their conduct in the proceedings.

The Board noted that the primary question is whether the interests of justice will be served by granting the order sought. The Board considered the legal authorities and principles relating to the discretion to examine witnesses to show it is conventional and uncontroversial to use where witnesses are going ‘abroad’ and extends to all cases necessary for the purposes of justice. The Board further considered s 120 and 121 of the Evidence Act 1906 (WA) and weighed giving evidence by audio-video link against considerations such as a satisfactory connection and whether evidence ought to be given in person.

The Board noted that ordinarily it was enough for a party to show to the satisfaction of the tribunal that a witness is out of the jurisdiction; that their evidence is material; and that the party cannot procure it for the order to be made. The Board was satisfied this was the case and that the interests of justice would be served by granting the order. The application was upheld, and orders issued for the early examination to occur and for video and audio recording to take place.

The decision can be read here.