Witnesses in QCAT

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This factsheet provides information for people who intend, or are required to, give evidence or produce a document for proceedings before the Queensland Civil and Administrative Tribunal (QCAT). It sets out a witness's rights and obligations under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

An enabling Act may have provisions that supersede the rules stated below. An enabling Act is another Act which gives the Tribunal jurisdiction to hear a particular matter. For example, if the matter relates to guardianship and administration, then the enabling act is the Guardianship and Administration Act 2000 (Qld) (GAA Act).

Notice to attend a hearing

The Tribunal may, of its own initiative or upon application of a party, issue a written notice requiring a person to attend at a stated hearing of a proceeding to give evidence (s 97(1)(a) QCAT Act).

Notice or order to produce documents or things

The Tribunal may, of its own initiative or upon application of a party, issue a written notice requiring a person to produce a stated document or other thing to the Tribunal (s 97(1)(b) QCAT Act).

The Tribunal may also make an order requiring a person to produce a document or thing to the Tribunal or to a party to the proceedings (s 63(1) QCAT Act).

The document or thing stated in the notice or order may be inspected, photographed, photocopied or otherwise recorded by a party to the proceedings unless the Tribunal orders otherwise (Rule 80(3) QCAT Rules).

A person the subject of the order or notice is not required to attend the hearing unless the Tribunal orders otherwise or the person has been given notice under s 97(1)(a) to attend the hearing (Rule 80(2) QCAT Rules).

Witness entitlements

A person who attends a hearing or produces a document in accordance with the written notice issued by the Tribunal under s 97 is entitled to be paid the fees and allowances prescribed by regulation (s 97(3) QCAT Act). See regulations 11 to 16 of the Queensland Civil and Administration Tribunal Regulation 2009 (Qld) for more information.

These fees and allowances are to be paid:

  • if the written notice was issued upon application by a party - by the party who made the application; or
  • if the written notice was made by the Tribunal on its own initiative - by all of the parties in the proportions decided by the Tribunal (s 97(4) QCAT Act).

Giving evidence

At a hearing, evidence of a witness may be given orally or in writing, and, if the Tribunal directs, on oath or by affidavit (s 95(4) and 98(1)(b) QCAT Act). The Tribunal may also permit a witness to give evidence by tendering a written statement, verified, if the Tribunal directs, by oath (s 57(3) QCAT Act).

However, a child cannot be compelled to take an oath (s 94(6) QCAT Act).

Cross examination

The object of cross-examination is to qualify, weaken or destroy the opponent's case and, potentially, establish your own case.

Each party must be given a reasonable opportunity to examine, cross-examine and re-examine each witness (s 95(1) QCAT Act).

However, the Tribunal may refuse or limit cross-examination if the Tribunal considers there is already sufficient evidence before the Tribunal about the matter and the evidence has been sufficiently tested by cross-examination (s 95(2)(b) QCAT Act).

In expedited hearings, cross-examination and re-examination of witnesses is at the discretion of the Tribunal, subject to the QCAT Rules (ss 95(2)(c) and 94 QCAT Act).

The Tribunal also has the power to place time limits on the giving of evidence and on the examination, cross-examination and re-examination of witnesses (s 95 (3) QCAT Act).

Tribunal powers in relation to witnesses

The Tribunal can call any person to give evidence on the Tribunal's own initiative (s 98(1) QCAT Act).

The Tribunal may also:

  • examine a witness on oath, or require a witness to give evidence by affidavit.
  • examine or cross-examine a witness to the extent the Tribunal considers it appropriate to obtain information relevant to performing its functions in the proceedings,
  • compel a witness to answer questions the Tribunal considers relevant to the proceeding (s 98(1) QCAT Act).

However, the Tribunal may not compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question, for example, where the answer might incriminate the person (s 98(2) and (3) QCAT Act).

Proceedings where witnesses are not needed

The Tribunal may decide to conduct part or all of the proceeding by solely relying on the documents the parties have lodged with the Tribunal. In those circumstances, witnesses need not appear at the hearing. The parties and their representatives are also excused (s 32 QCAT Act).

Treatment of vulnerable witnesses

Tribunal obligations to conduct proceedings sensitively

The Tribunal has an obligation to take reasonable steps to understand the actions, views and assertions of a witness in the proceeding, having regard to the witness's age, any disability, and cultural, religious and socioeconomic background (s 29(1)(b) QCAT Act).

The Tribunal must also take all reasonable steps to ensure that each party to a proceeding understands the nature of assertions made in the proceeding and the legal implications of the assertions (s 29(1)(a) QCAT Act). This would include ensuring that each party understands the material evidence being presented by each witness.

The Tribunal is also required to ensure that the conduct of proceedings is responsive to:

  • cultural diversity and the needs of a witness who is from another culture, or linguistic background or is an Aboriginal person or Torres Strait Islander;
  • the needs of a witness who is a child or a person with impaired capacity or a physical disability (s 29(1)(c) QCAT Act).

See for example, Smith v Condie t/a Listonia Landscaping [2010] QCAT 256.

Interpreters and support people

Unless the Tribunal directs otherwise, a witness to a proceeding may be helped by an interpreter or other person to help the witness to understand the proceeding (s 44 QCAT Act). For example, the witness may be helped by someone with appropriate cultural or social knowledge and experience.

At a private hearing, the Tribunal is required to ask each witness if that witness needs a support person for giving evidence. If the witness confirms that they do need a support person, the Tribunal must allow the support person to attend the hearing with the witness. However, the support person must not represent the party and must not be a party to the proceeding (s 91 QCAT Act).

If the support person is also to be a witness at the hearing, they may be directed to only attend the hearing at certain times (s 91(4) QCAT Act).

Special witnesses

There exist a number of different types of orders that the Tribunal may make where a special witness is giving evidence at a hearing: see s 99 QCAT Act. Section 99 does not apply to guardianship and administration matters: see s 101 GAA Act.

A special witness is a witness who is a child or another person who the Tribunal considers likely, if the person is required to give evidence, to:

  1. be disadvantaged as a witness because of the person's mental, intellectual or physical impairment or a relevant matter, such as the person's age, education, level of understanding, cultural background, relationship with a party to the proceeding or the subject matter of the evidence; or
  2. suffer severe emotional trauma; or
  3. be so intimidated as to be disadvantaged as a witness (s 99(4) QCAT Act).

The various orders that the Tribunal may make in relation to a special witness include:

  1. that only particular people may be present when the special witness gives evidence;
  2. that only particular people may ask questions of the special witness;
  3. that the questioning of the special witness must be restricted to a stated time limit;
  4. that a particular person must be obscured from the view of the special witness while the special witness is giving evidence;
  5. that a particular person must be excluded from the place where the hearing is held while the special witness is giving evidence;
  6. that the special witness must give evidence in a place other than where the hearing is held and in the presence of only stated people or with stated people being excluded from the room;
  7. that a person, including, for example, a support person (see below), must be present while the special witness is giving evidence to give emotional support to the special witness;
  8. that an audiovisual record of the evidence given by the special witness be made and that the record be viewed and heard at the hearing instead of the special witness giving direct testimony at the hearing (s 99(2) QCAT Act).

A person can apply for one of these orders or they can be made on the Tribunal's own initiative (s 99(3) QCAT Act).

Non publication orders

Generally speaking, the QCAT file and hearings are a matter of public record.

A non-publication order prohibits the publication of the contents of a document, evidence given at the Tribunal or information which identifies a person who has appeared or is affected by the proceeding. It may be made on the application of a party or upon the Tribunal's own initiative (s 66(1) QCAT Act).

The Tribunal may only grant a non-publication order if it considers the order is necessary:

  • to avoid interference with the proper administration of justice;
  • to avoid endangering the physical or mental health or safety of a person;
  • to avoid offending public decency or morality; or
  • to avoid the publication of confidential information or other information which would be contrary to the public interest; or
  • for any other reason in the interests of justice (s 66(2) QCAT Act).

See for example, Medical Board of Queensland v Mallon [2010 QCAT 311, where the Tribunal granted a non publication order to protect names of patients, but not the medical pracitioner who was the subject of disciplinary proceedings.

Offences and enforcement

Failure to appear

It is an offence for a witness not to attend a Tribunal hearing if they have been issued a notice by the Tribunal under s 97 of the QCAT Act without reasonable excuse (s 214(1) QCAT Act).

If a witness does not attend, then the Tribunal has the power to issue a warrant directing a police officer to bring the person at the time and to the place stated in the warrant to give evidence. The proceedings may be adjourned until then (s 215 QCAT Act). The warrant should be carried out by the police officer in accordance with the requirements under the Police Powers and Responsibilities Act 2000 (Qld), in particular sections 21 (General power to enter to arrest or detain someone or enforce warrant) and 615 (Power to use force against individuals).

A person who fails to appear at a hearing may be the subject of contempt proceedings.

Failure to follow directions

A person appearing as a witness at a hearing of a proceeding must not:

  1. fail to take an oath when required by the Tribunal; or
  2. fail, without reasonable excuse, to answer a question the person is required to answer by the Tribunal; or
  3. fail, without reasonable excuse, to produce a document or other thing the person is required to produce by a notice under section 97 (s 214(2) QCAT Act).

It is a reasonable excuse not to answer a question or produce a document where that information would tend to incriminate the person (s 214(3) QCAT Act). This right is further preserved in section 237(9) of the QCAT Act.

Failure to follow directions is an offence and may result in contempt proceedings.

False and misleading information

Any person, including witnesses, must not say anything or give any document containing information that the person knows to be false or misleading to a Tribunal official. A Tribunal official includes registry staff but does not include a mediator (s 216 QCAT Act).

However, a person will not have committed an offence if the person when giving a document tells the official how it is false and misleading and, if the person has or can reasonably obtain the correct information, gives the correct information.

Giving false or misleading information may result in contempt proceedings.

Influencing a witness

It is an offence to improperly influence, or attempt to improperly influence, a witness (s 217 QCAT Act).

Contravention of this provision may result in contempt proceedings.

Contempt of the Tribunal

In addition to the above, a person is in contempt of the Tribunal if they:

  • insult a tribunal member, adjudicator, registrar or registry staff member;
  • obstruct or assault a person attending a proceeding;
  • obstruct or hinder a person from complying with a decision of the tribunal;
  • unreasonably interrupt a proceeding or otherwise misbehaves;
  • create or continue a disturbance in or near a place where the Tribunal is sitting;
  • contravene an undertaking they have given to the Tribunal (s 218(1) QCAT Act).

Children are not in contempt if their actions relate to proceedings which are reviewing a decision about the child (s 218(2) QCAT Act).

The Tribunal has the ability to invoke all the protection, powers, jurisdiction and authority the Supreme Court has in relation to contempt (s 219 QCAT Act). This includes fines, exclusion from the hearing and imprisonment.

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