Suburban solicitor tenders video of himself asking employee for sex 78 times in his own sexual harrassment case

A solicitor somewhere in Melbourne’s suburbs failed in his defence of sexual harrassment claims and was ordered by VCAT’s President, Justice Garde, to pay his victim compensation of $100,000: GLS v PLP [2013] VCAT 221.  The solicitor described the complainant as a fantasist when she said that he asked her for sex in a most unwelcome manner, except to the extent that her allegations were corroborated by a video he himself had surreptitiously made during which he asked her most vulgarly for sex 78 times in about an hour and which he tendered to prove that she was coming onto him. Weird. But that was all just to grab your attention.

Now for the saucy bit: the President rehearsed the authorities on the Briginshaw application of the civil standard of proof, reproduced in this post.  But it is also interesting in that the President expressly invoked the VCAT Act power to apply rules of evidence, and did so because serious allegations were being made.  In a case about a solicitor, and for the protection of the solicitor.  I don’t think I have seen that power expressly invoked in a VCAT decision before, except occasionally to reject the tender of particularly unreliable hearsay. Here’s hoping that it might be the start of the development of VCAT’s own de facto law of evidence, because a forum without any law of evidence is a strange beast, and a forum which has an unspoken de facto evidence regime undermines equality of access to it, creating an advantage in favour of those in the know, who will tend to be experienced users and lawyers.

For a jurisdiction which is supposed to be fast and fair, it seems bizarre to me that the two Acts designed to make modern litigation in Victoria fast and fair — the Civil Procedure Act 2010 and the Evidence Act 2008 — do not apply to it. When the law of evidence was an embarrassment to civilised society, as it was until recently, there was not much to complain about.  But after enormous effort, legislators have put together what they think to be a thoroughly modern evidence statute with interior coherence and which is capable of being looked up and analysed once you have the hang of it (so I’m told…) in a way that you simply could not with the previous mess.

The apparent theory of ‘the rules of evidence do not apply’ is that everything relevant goes in and it all gets weighed up as ‘a matter of weight’.  In my experience, even in cases in which serious allegations of professional impropriety are made in VCAT, there is no discussion at the commencement of them of the extent to which the Tribunal will adopt the rules of evidence, so any application of them is a guessing game.

Substantial quantities of documentation are often put into evidence in VCAT hearings, especially those which follow an antecedent phase of bureaucratic investigation.  Most of it will be hearsay and so inadmissible at common law for the truth of its contents (subject to exceptions, such as for business records), but it is waved through on the basis that to the extent it is unreliable, little probative value will be ascribed to it.  But uncontradicted evidence of low probative value (or ‘weight’ as this concept is generally described in the waving through process) must often prove itself, unless it is inherently incredible.  Theoretically at least, the non-application of the rules of evidence greatly expand the matters which must be rebutted, because every assertion of fact in every document tendered becomes evidence, and ought increase the length of a hearing involving a number of documents, and the costs of preparing for it, and make more complex the task of decision making. This is a particular problem with Legal Services Commissioner prosecutions in which the practice is to annex twenty or so documents from the investigation to the Application itself. Theoretically at least, the oral tradition of common law trials is seriously undermined by the allowing in of documentary hearsay.  Whereas at common law it was a witness’s sworn oral evidence at trial which constituted the evidence together with any hearsay which was only exceptionally admitted, and previous written statements were at best prior inconsistent statements which could be cross-examined upon, in VCAT they might both be said to be evidence such that the decision maker may choose to believe whichever he or she considers the more compelling.

So the rules of evidence apply in a Magistrates’ Court crash and bash case worth $11,000, but do not apply in a quasi disciplinary prosecution in which a professional stands to be fined $50,000 per act of misconduct and have his or her entitlement to practice suspended for many years.  Consider the case of Psychology Board of Australia v Milosevic [2013] VCAT 12There, VCAT was asked to cancel a psychologist’s registration on the basis it had been obtained fraudulently, by falsely claiming he had a Bachelor of Defectology. (Marvellous stuff).  He had been convicted in a criminal trial of an offence one of the elements of which was that he had obtained his registration fraudulently.  Somewhat counter-intuitively, the Psychology Board, prosecuting, very properly submitted that the finding of fraud should not be rested on the findings of fact in the criminal court’s decision because of s. 91 of the Evidence Act 2010.  That is a modification of the common law rules of evidence about the admissibility in civil proceedings of convictions as proof of their subject matter.  Of its own volition, and against the urging of the party who stood to benefit from the non-application of s. 91, VCAT rested its findings on the criminal Court’s findings, thereby acting inconsistently with the common law’s rule in Hollington v Hewthorn and inconsistently with the modernised law in s. 91 which is less favourable to convicted criminals than the common law.  VCAT disregarded the rules of evidence, as it was entitled to do, because it considered it an efficient use of resources to do so, despite the fact that the respondent wished to convince it that he was wrongly convicted.  There is much to be said for efficiency; summary imprisonment is deliriously efficient when it’s pretty obvious the cops have got the right bloke.  But the parliament decided very recently to what extent demands of efficiency warranted watering down of the rule in Hollington v Hewthorn, and another arm of government has effectively disregarded that public policy analysis.

Of course Milocevic is a poor vehicle for illustrating the proposition that a tribunal not governed by any law of evidence is a troubling beast, because the rule in Hollington v Hewthorn and its attenuated statutory counterpart are examples of rules which seem to most people inherently silly and so one naturally has sympathy for a tribunal which rolls its sleeves up and does what the man in the street would think appropriate. But consider this: without prejudice or negotiation privilege is just a rule of evidence, not really a privilege at all.  In practice, the application of this rule is almost never questioned in VCAT, but in theory, what is to stop parties to VCAT proceedings adducing evidence of informal without prejudice discussions?  Similarly the rules in Browne v Dunn and Jones v Dunkel which again are routinely referred to.  It might be argued that these rules have settled in VCAT’s statutory duty to provide a fair hearing.  But in some sense, most rules of evidence are specifically designed to ensure a fair hearing and it is unlikely that the fair hearing rule would be read so as to negate the terms of the not bound by the rules of evidence rule.  Negotiation privilege is in fact antithetical to a fair hearing; a fair hearing would be one in which admissions made by a party could be brought to the attention of the Tribunal; negotiation privilege may have its justification, but it is not that it promotes fair hearings and the determination of disputes according to their substantial merits.

Which brings us back to Justice Garde’s sexual harrassment judgment.  Whereas s. 98 has generally been used to justify departures from the rules of evidence, the President used it to invoke the principles in the Evidence Act 2008‘s s. 141. It is of interest to me that VCAT’s new President has seen fit to invoke the Evidence Act and to do so for the protection of a party against whom serious allegations are made, even if it was in a case where the hurdle he set up for himself was vaulted over by virtue of what was regarded as the cogency of the proof against the solicitor.  If the circumstances in which VCAT will apply rules of evidence were to develop a bit more jurisprudence under the guidance of its latest President, that would in my opinion be a good thing.

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