The High Court ruled that the Minister for Health and Children could cross-examine D.S. in an appeal from the Hepatitis C Compensation Tribunal. The decision addressed the Minister’s procedural right in the appeal; it did not decide whether D.S. was entitled to compensation for losses incurred as a carer.
D.S. had sought compensation from the Tribunal for loss of consortium and for losses incurred as a carer under section 4(1)(d) of the Hepatitis C Compensation Act 1997. The Tribunal awarded compensation for loss of consortium but refused the carer-compensation claim. D.S. appealed to the High Court.
At the start of the appeal hearing, the Minister raised whether the Minister could cross-examine the applicant. The court held a separate hearing on that issue on 16 December 2004. The parties presented competing submissions on the meaning of the Act and the appeal rules, and on whether the Minister’s claimed right was protected by the Constitution.
The judgment said the Act prohibited cross-examination of a claimant at a Tribunal hearing. It left open the scope of that prohibition for certain parties who may assist the Tribunal. But the issue before the court was whether the same prohibition applied in a High Court appeal.
The judge found that the Act and the applicable rules did not address cross-examination in an appeal. The court rejected the argument that allowing cross-examination would give it greater jurisdiction than the Tribunal, distinguishing jurisdiction from procedure. It also observed that the prospect of cross-examination could deter people with hepatitis C or HIV from appealing, given the stigma many faced.
The court nevertheless concluded that the absence of a statutory provision could not be read as eliminating or substantially curtailing the Minister’s general constitutional right to cross-examine in defence of the Minister’s interests. It ruled that the Minister had a right to cross-examine D.S. in this appeal. The judgment records no decision on the underlying carer-compensation appeal.