Abley and Comcare (Compensation)
[2023] AATA 989
•1 May 2023
Abley and Comcare (Compensation) [2023] AATA 989 (1 May 2023)
Division:GENERAL DIVISION
File Number: 2020/4381
Re:Lynette Abley
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:1 May 2023
Place:Perth
I refuse the Applicant’s request that I recuse myself from the hearing of this application.
.............[Sgd]...........................................................
L M Gallagher, Member
CATCHWORDS
PRACTICE AND PROCEDURE – recusal application – apprehended bias – application by Applicant for recusal of Member constituted to hear substantive application – test for apprehended bias in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – whether a fair-minded lay observer would reasonably apprehend that the Member might not bring an impartial mind to the resolution of the issues to be decided – Applicant alleged bias due to alleged conduct by Member – recusal grounds alleged by Applicant included alleged interruptions by the Member – Applicant’s previous Counsel alleged inappropriate facial expressions were made by the Member – missing portion of the transcript – non-disclosure of the Member’s qualifications/experience – asserted relationship between Member and Respondent’s Counsel – Applicant’s claims of apprehended bias not firmly established – no logical connection between alleged conduct and ability to determine the issues on their merits – application for recusal refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 33(1)(a), 33(1)(b), 42A(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5B, 14
CASES
ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
Charisteas v Charisteas (2021) 393 ALR 389
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530
Isbester v Knox City Council (2015) 255 CLR 135
Johnson v Johnson (2000) 201 CLR 488
Jones (as President of the Victorian Farmers Federation Chicken Meat Group) v Australian Competition and Consumer Commission and Another (2002) 76 ALD 424
JRL; Ex Parte CJL (1986) 161 CLR 342
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122
Rana v Department of Defence [2018] FCA 1642
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA19
Vakauta v Kelly (1989) 167 CLR 568
Vietnam Veterans’ Association of Australia (New South Wales Branch Inc) v Gallagher (1994) 52 FCR 34
SECONDARY MATERIALS
Legal Services Directions 2017 - Appendix D, paras [3]-[4]
REASONS FOR DECISION
L M Gallagher, Member
1 May 2023
INTRODUCTION
On 5 May 2020, the Respondent issued a determination which denied liability to pay compensation to the Applicant pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of “chronic fatigue/fibromyalgia” that the Applicant claims to have sustained in January 2016.
On 31 May 2020, the Applicant requested a reconsideration of the above determination.
On 30 June 2020, the Respondent issued a reviewable decision affirming the determination made on 5 May 2020 (the Reviewable Decision).
On 21 July 2020, the Applicant filed an application for review of the Reviewable Decision with the Administrative Appeals Tribunal (the Tribunal).
APPLICATION FOR RECUSAL
On 24 February 2022, the Applicant’s representative made an application that I recuse myself from this matter on the ground of apprehended bias.[1]
[1]A1.
In support of the Applicant’s recusal application, she has provided two affidavits which are further discussed below.[2]
[2]Being A2 and A6.
The Respondent opposes the Applicant’s application for the recusal.[3]
[3]R2.
RELEVANT BACKGROUND
The Applicant had two applications before the Tribunal, applications 2020/4381 and 2020/5242.
The substantive hearing of the above two matters was heard over two days on 26 October 2021 and 27 October 2021.[4]
[4]No assertions of bias were made at the hearing.
On 26 October 2021, application 2020/5242 was dismissed by consent pursuant to s 42A(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
A Direction made 16 November 2021, directed the following:
(a)The parties are to exchange a copy of the transcript of the hearing held on 26 and 27 October 2021;
(b)On or before 7 December 2021 the Applicant is to file with the Tribunal written closing submissions and serve a copy on the Respondent;
(c)On or before 4 January 2022 the Respondent is to file with the Tribunal written closing submissions and serve a copy on the Applicant; and
(d)On or before 18 January 2022 the Applicant has leave to file with the Tribunal and serve a copy on the Respondent any written submissions in reply, or written notice that she does not intend to do so.
On 22 November 2021, the Applicant’s representative received a copy of the transcript of the hearing on 26 and 27 October 2021.[5]
[5]A2, document 1, para [33].
On 30 November 2021, by request of the Applicant, an extension of time to file submissions was granted, as there was a delay in receiving the transcript.
On 7 January 2022, the Applicant’s representative filed the Applicant’s closing submissions.
On 17 January 2022, the Applicant’s representative notified the Tribunal that a section of the transcript was noted to have been omitted in the parties’ copy.[6]
[6]A2, document 1, para [36].
Enquiries were made with the relevant transcript provider about the omission from the transcript.
On 25 January 2022, the parties were provided with a corrected transcript including the omitted eight minutes of the transcript.
On 31 January 2022, the Respondent filed its closing submissions.
On 8 February 2022, the Applicant made a Freedom of Information (FOI) application requesting all documents relating to the transcription of the hearing on 26 and 27 October 2021 and also requested the audio files by way of email.[7]
[7]A2, document 1, para [45].
On 14 February 2022, the Applicant filed amended closing submissions, having requested an extension of time in order to address additional evidence referred to in the corrected transcript.[8]
[8]A2, document 23.
The application for recusal was made on 24 February 2022, as outlined at para [5] above.[9]
[9]The Applicant was self-represented from April 2022 to December 2022, including the periods during which the matters at paras [24] and [25] below occurred, namely the Applicant’s FOI applications, several requests for extensions of time and submissions in support of her application were made.
The Applicant’s representatives, Soul Legal, made the application for recusal on the Applicant’s behalf.
On 3 April 2022, Soul Legal confirmed that the Applicant was self-represented for her recusal application and that it continued to represent her in relation to her substantive application. The Applicant said Soul Legal continued to assist her “where required” (A6, document 1, para [3]) including filing Dr John Henstridge’s report (A3), the preparation of the FOI Chronology (A6, document 3 “B”) and her reply submissions dated 14 November 2022 (A4): A6, para [4].
On 1 December 2022, the Applicant said she was informed that “Soul Legal managed to secure alternate Counsel (Mr Graham Droppert SC)” to help with her recusal application, and that Soul Legal were “prepared to get on the record to represent [her]” before the Tribunal (A6 [9]).
On 2 December 2022, Soul Legal advised that it had been instructed 1) to act for the Applicant in relation to her application for recusal and that 2) Mr Graham Droppert had been instructed as Counsel for the hearing of the recusal application.
On 30 January 2023, the Applicant, through her representatives, wrote to the Acting President of the Tribunal requesting that “an independent senior member of the Tribunal be administratively allocated to handle the [recusal application]” noting the “voluminous evidence in support of the appearance of bias” and the announcement of “the intended dissolution of the Tribunal, recognising the issue with the independence of members appointed to the Tribunal.”
On 13 February 2023, the President of the AAT refused the Applicant’s request on the basis that it was not in the interests of justice or the expeditious and efficient conduct of the proceeding.
On the same day, directions were issued to the parties requiring:
(a)The Applicant to file and serve submissions by 10 March 2022;
(b)The Respondent to file and serve submissions in reply by 24 March 2022;
(c)The Applicant to file and serve any further submissions by 3 April 2022; and
(d)Foreshadowing an interlocutory hearing in April 2022.
On 25 March 2022, the Applicant filed her initial affidavit in support of her application for recusal.[10]
[10]A2.
The Applicant made several requests for extensions of time for filing submissions in support of her recusal application, which were granted by the Tribunal on 27 April 2022, 16 June 2022, 26 July 2022, 14 September 2022 and 27 October 2022.
On 14 November 2022, the Applicant filed submissions in support of her application for recusal.[11] The Applicant’s supplementary affidavit and further evidence followed on 31 January 2023.[12] The Respondent’s amended submissions in response were filed on 16 February 2023.[13]
[11]A4. The Applicant’s related evidence followed (A5, A6 and A7).
[12]A5 and A6.
[13]R2. The Respondent’s original submissions in response to the Applicant’s recusal application were filed on 3 October 2022 in accordance with the Tribunal’s direction dated 14 September 2022. The directions dated 27 October 2022 vacated the Tribunal’s earlier direction that the Applicant’s submissions be filed on 19 October 2022 and extended the date until 15 November 2022.
GROUNDS OF RECUSAL
The Applicant’s affidavit sworn 24 March 2022 sets out the contended “[a]ppearance[s] of bias” by me during the hearing of the Applicant’s substantive matter.[14]
[14]A2, document 1, para [14]-[23].
In this affidavit, the Applicant made the following contentions:
(a)I said the words “Oh my goodness” during Mr Nugawela’s submissions on the first day of the hearing and made a “zipping of mouth” motion on both days of the hearing;[15]
(b)I previously worked at Sparke Helmore Lawyers prior to my appointment, have represented the Respondent and may have known Mr Ashley Burgess or worked together with him in London[16]; and
(c)Mr Burgess had “won” all of his cases that have appeared before me.[17]
[15]A2, document 1, para [17].
[16]A2, document 1, paras [19]-[20].
[17]A2, document 1 para [22].
The Applicant’s further affidavit sworn 30 January 2023 sets out an additional, related matter, being recent news articles and other publicly available information regarding the current Tribunal being abolished and the reasons for this. The Applicant stated this confirms her belief that the outcome of her substantive application decided by myself “would be biased.”[18]
[18]The Applicant did not pursue this matter at the hearing of her recusal application (transcript (recusal hearing), p 8 at [35]).
At the interlocutory hearing regarding the Applicant’s recusal application, the Applicant’s Counsel addressed his closing submissions by outlining the grounds that the Applicant claims demonstrate apprehended bias on my behalf. They are the following[19]:
[19]The additional ground in the Applicant’s second affidavit that the Tribunal’s independence as a whole has been undermined by appointments to the Tribunal made by the Coalition Government, as stated by the Commonwealth Attorney General (A6, document 1, paras [10]-[12]), was not pressed at hearing.
(a)My behaviour and conduct at the substantive hearing, in particular:
(i)Interruptions during Mr Brian Nugawela’s[20] submissions at the hearing on 26 October 2021;
[20]Mr Brian Nugawela was the Applicant’s Counsel at the hearing of the substantive matter.
(ii)Alleged inappropriate facial expressions made by myself throughout the hearing, including frowning and approximately two instances of a “zipping of the mouth” motion;
(b)Issues in respect of the transcript of the substantive hearing, namely:
(i)The omitted portion or pages of the transcript; and
(ii)The obstacles the Applicant faced in gaining access to the documented transcript and later the audio recording of the transcript; including
(iii)The Tribunal registry’s handling of the Applicant’s related FOI application.
(c)The asserted relationship between myself and Mr Ashley Burgess[21]; including
(i)My purported non-disclosure of qualifications and experience prior to my appointment at the Tribunal; coupled with
(ii)Mr Burgess’ success rate when appearing before the Tribunal and particularly myself; and, more generally, the statistical analysis of the outcome of compensation decisions made by me; and
(iii)The unusual practice of solicitors acting for this Respondent briefing someone from a different firm of solicitors to appear on Comcare matters and me being allocated to hearing the application.
[21]Mr Ashley Burgess was the Respondent’s Counsel at the hearing of the substantive matter.
The Respondent’s Counsel addressed his closing submissions in the above manner, addressing each of the above grounds.
RELEVANT LEGAL PRINCIPLES
In Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[22] Senior Member A. Nikolic AM CSC, provided the following summary of relevant legal authorities with respect to a recusal application for apprehended bias.[23] The Senior Member stated:
[22][2021] AATA 19.
[23]The Senior Member referenced the following legal authorities: Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80; Rana v Department of Defence [2018] FCA 1642; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner); and JRL; Ex Parte CJL (1986) 161 CLR 342 (JRL). The Tribunal considers the references to a Judge in the various authorities cited in this decision are equally applicable to a Tribunal Member in the present context.
Decision on recusal application
42.In Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427, the High Court explained at [67] that allegations of apprehended bias required:
...an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the [decision maker] might not bring an impartial mind to bear upon the issues that are to be decided.
43.In SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, at [2], Allsop CJ said:
The question whether or not an administrative tribunal has conducted itself in a way that displays apprehended bias is assessed by reference to the hypothetical construct of the informed fair-minded observer. ...The words “fair-minded”, however, should be recognized for the central part they play in the assessment. Apprehended bias, if found, is an aspect of a lack of procedural fairness. The rules to assess whether apprehended bias was present form part of the body of principles, rooted in fairness, and directed to the necessity for executive power to be exercised fairly and to appear to be exercised fairly, in support of the maintenance of confidence in the administrative process, and judicial review of it. The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process (the process being part of the exercise of power, integral to the legitimacy of the outcome).
44.In Rana v Department of Defence [2018] FCA 1642, Charlesworth J referred at [112]-[114] to the High Court’s two-step test in Ebner v Official Trustee in Bankruptcy … when considering claims of apprehended bias:
112.The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the issue he or she is to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [12] (Kiefel, Bell, Keane and Nettle JJ). See also ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] — [36] (Allsop CJ, Kenny and Griffiths JJ).
113.As the majority said in Ebner (at [8]), the application of the test involves two steps:
... First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
114.What must be shown is that the reasonable observer might apprehend that the Court, as presently constituted, might approach the determination of the legal and factual issues in the proceeding with a foreclosed mind. It is not sufficient to demonstrate that the observer may have “a vague sense of unease or disquiet”: Jones (as President of the Victorian Farmers Federation Chicken Meat Group) v Australian Competition and Consumer Commission and Another [2002] FCA 1054; (2002) 76 ALD 424 at [100] (Weinberg J).
45.Once a Tribunal Member is constituted to hear a matter, their duty is to sit and only recuse themselves if a claim of bias is ‘firmly established.’[JRL; Ex Parte CJL (1986) 161 CLR 342 (Mason J), 364 (Wilson J), 371 (Dawson J)]. To do otherwise might encourage recusal requests for an inappropriate purpose, such as trying to find someone else considered more likely to determine an application in a particular way.
(Emphasis added.)
In Johnson v Johnson,[24] the High Court made a number of comments in the context of its consideration of whether a statement by a trial judge gave rise to reasonable apprehension of bias, including:[25]
[In applying the test for whether a decision-maker should be disqualified for apprehended bias,] two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.… In Vakauta v Kelly [(1989) 167 CLR 568], Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(Emphasis added.)
(Citations omitted.)
[24](2000) 201 CLR 488 (Johnson).
[25]Johnson at [13]-[14].
In the High Court decision of Charisteas v Charisteas[26] the High Court considered whether there was apprehended bias on the basis of an undisclosed social relationship between the trial judge and counsel. Unanimously, the Court stated that:[27]
As five judges of this Court said in Johnson v Johnson, while the fair-minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.
Ordinary judicial practice, or what might be described in this context as the most basic of judicial practice, was relevantly and clearly stated by Gibbs CJ and Mason J in Re JRL; Ex parte CJL in 1986 by adopting what was said by McInerney J in R v Magistrates’ Court at Lilydale; Ex parte Ciccone in 1972:
“The sound instinct of the legal profession — judges and practitioners alike — has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined.”
…
It may be accepted that many judges and lawyers, barristers in particular, may have continuing professional and personal connections. The means by which their contact may be resumed is by a judge making orders and publishing reasons, thereby bringing the litigation to an end. It is obviously in everyone’s interests, the litigants in particular, that this is done in a timely way.
(Citations omitted.)
[26][2021] HCA 29; (2021) 393 ALR 389 (Charisteas).
[27]Charisteas at [12]-[13] and [22].
In JRL[28], Mason J observed:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”… Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
(Emphasis added.)
(Citations omitted.)
[28](1986) 161 CLR 342 at 352.
EVIDENCE
The recusal application was heard by way of an interlocutory hearing on 22 February 2023 in person at the Perth Registry. Mr Graham Droppert, SC, represented the Applicant as Counsel, instructed by Mr Kevin Wong of Soul Legal. Mr Ashley Burgess represented the Respondent as Counsel, instructed by Ms Claire Tota of HBA Legal.
The Applicant was present at the interlocutory hearing; however she was not called by Mr Droppert to give evidence nor was she required for cross-examination. Mr Nugawela was also present at the hearing and gave oral evidence in answer to questions from myself.
The Applicant’s and Mr Nugawela’s evidence is addressed under the Tribunal’s consideration of the Applicant’s grounds of recusal, where relevant.
The Tribunal admitted the following documents into evidence at the interlocutory hearing:
(a)Applicant's request to make a recusal application, dated 24 February 2022 (Exhibit A1);
(b)Affidavit of Lynette Rosalie Abley In Support of Application for Member Gallagher to Recuse Herself, sworn 24 March 2022 (Exhibit A2);
(c)Report of Dr John Henstridge, Chief Consultant Statistician - Abley/1 - Analysis of Hearing Outcomes, dated 17 October 2022 (Exhibit A3);
(d)Applicant's Further Submissions In Reply pursuant to Directions of 27 October 2022 by Member Gallagher, dated 14 November 2022 (Exhibit A4);
(e)Statement of Brian Nugawela in relation to the Recusal Application scheduled for 22 February 2023 at 10AM, dated 30 January 2023 (Exhibit A5);
(f)Supplementary Affidavit of Lynette Rosalie Abley In Support of Application for Member Gallagher to Recuse Herself, sworn 30 January 2023 (Exhibit A6);
(g)The Applicant's Letter to the Hon Justice Susan Kenny AM, Acting President of the AAT, dated 30 January 2023 (Exhibit A7);
(h)Respondent's Submissions in Response to Applicant's Recusal Application, undated, filed 3 October 2022 (Exhibit R1); and
(i)Respondent's Amended Submissions in Response to Applicant's Recusal Application, dated 16 February 2023 (Exhibit R2).
The Tribunal has also taken into account the transcripts for both days of the substantive hearing on 26 and 27 October 2021, and the audio files for these two days.
CONSIDERATION
As the test for apprehended bias set out in Ebner is whether a fair-minded lay observer might “reasonably apprehend”[29] that a decision-maker might not bring an impartial mind “to the resolution of the issue he or she is to decide”, the issue for review in the Reviewable Decision necessarily warrants mention to inform the context of the present application.
[29]That is, the test for whether a decision-maker should be disqualified for apprehended bias is an objective test, which does not require any demonstration that he or she is in fact biased.
The sole remaining issue for the Tribunal’s consideration in the Applicant’s substantive application is whether the Applicant’s fibromyalgia condition was contributed to, to a significant degree, by the Applicant’s employment by the Commonwealth.[30]
[30]In accordance with s 5B of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
Member behaviour and conduct at substantive hearing
The Applicant’s first claim in support of her application for recusal[31] appears to be made on the basis that such conduct suggests prejudgment of the nature and scope of the issues for review in the substantive application and/or (or indeed, in turn) prejudgment of its outcome.
[31]See alleged conduct outlined at paras [27(a)] and [29(a)] above.
Mr Nugawela’s statement includes his address of these matters, as follows:[32]
[32]A5.
6. I make the following statements purely from my recollection and without consulting the transcript, audio materials, or any other materials.[33]
7. I recall that [on the first day of the hearing] early in the course of developing a legal submission…[Member Gallagher]…kept interrupting my oral submission before I could get to the compound conclusion I was trying to make. It got to the point where I recall I had to say words to the effect “If I can just finish…”[34] [Member Gallagher] then immediately reacted to this in an emphatic, punctuated and loud way, explaining “Oh. My. Goodness.”[35] She then made a motion with her hand as if zipping her mouth[36] and gestured for me to continue making my submissions. I wondered at the time whether I had offended [Member Gallagher] in such a way as to prejudice my client’s interests, but resolved to continue.
8. Later on the first day, [Member Gallagher] spoke over me a few times as I was trying to complete sentences, which led me to say [sic] “you first.”[37]
9. On another particular occasion, I think still on the first day, she asked (in what I felt was a sarcastic tone) if she was “permitted” to ask a question,[38] to which I responded with words to the effect that I very much value the decision-maker’s very important questioning,[39] to which she responded in the same emphatic [sic] punctuated and declaratory way “I. Would. Have Thought. So.”[40]
10. At the end of the hearing on the first day, I discussed with the Applicant what I thought were worrying signs that I had upset [Member Gallagher] who seemed not to be able to get over the upset. It was decided, on balance, to carry on the next day with my continued representation.
11. On the second day, I recall the pattern repeating with [Member Gallagher] talking over me and then repeating the motion of zipping her mouth, locking it, and throwing away the key.[41] My client did not attend the second day of the hearing.
12. Altogether, I recall her doing this mouth zipping motion at least twice, if not three times.[42] On one of the occasions, I recall saying to [Member Gallagher] “Ma’am does not need to be like that.”[43]
…..
(Emphasis added.)
[33]At hearing, Mr Nugawela confirmed that he did not consult the transcript of hearing in preparing his affidavit even though it was available to him at that time.
[34]These words do not appear in the transcript.
[35]These words do not appear in the transcript. My words “Goodness me” appear in the transcript (transcript, p 64 at [40]. As for the words being emphatic, punctuated and loud as claimed, these comments were made in reference to words that were not stated and in any event, the audio recording demonstrates that the words that were stated (“Goodness me”) follow the general course of the dialogue between myself and Mr Nugawela that precedes them (transcript audio at 2:48:00). The exchange between myself and Mr Nugawela following my having said “Goodness me” demonstrates Mr Nugawela then went on for a substantial period to explain the Applicant’s position without interruption and the questions that followed were directed to better understand the argument put. The Respondent was then given an opportunity to address the same issues.
[36]This did not occur and is not recorded in the transcript as having had occurred. In any event, Mr Nugawela’s statement alleges this motion (which did not occur) was directed to myself and followed by my gesture for Mr Nugawela to continue (A5, para [7]).
[37]Mr Nugawela’s words “No, you first, ma’am” appear at transcript, p 67 at [25].
[38]My words were “If I’m permitted to ask the question, how so?” (transcript, p 65 at [40]). These words follow the general course of the dialogue between myself and Mr Nugawela that precedes them (transcript audio at 2:52:00).
[39]These words, or words to this effect, do not appear in the transcript at this point of the substantive hearing.
[40]These words do not appear in the transcript. My words “I had thought it was” appear in an unrelated context at transcript, p 67 at [30]. As for the words being emphatic, punctuated and declaratory as claimed, these comments were made in reference to words that were not stated.
[41]Again, this did not occur and is not recorded in the transcript as having had occurred.
[42]Again, this did not occur and is not recorded in the transcript as having had occurred.
[43]These words appear at transcript p 65 at [40]. However, these words were stated directly following my own words “If I’m permitted to ask the question, how so?” and not in response to any purported zipping of the mouth by me (which, in any event, did not occur).
At hearing, Mr Droppert further emphasised the number of occasions where, at the substantive hearing, Mr Nugawela had been delivering his submission and was interrupted by myself, including identifying the number of lines of text in the transcript (“[H]e gets nine words out,” “about six lines in” and “he gets four lines into”)[44] before I interrupted. Mr Droppert also made the point that at times, Mr Burgess made his own submissions without interruption and at others, “[Mr Nugawela] then gets 15 lines without interruption…Mr Burgess [then gets] 25 lines without interruption.”
[44]Transcript (recusal hearing), pp 15 to 16.
Mr Droppert gave examples of:
(a)Interruptions seeking clarification (for example, a page number), which of themselves the Applicant took no issue; and
(b)Interruptions which, in the Applicant’s view, were of an argumentative nature,
in making his overall submission that there was a pattern of interruptions by myself preventing Mr Nugawela from making his argument.
Mr Droppert then referred to me, over the course of the morning of the first day of the substantive hearing:
(a)Having said “goodness me;”[45]
(b)Having “zipped” my mouth;[46]
(c)Having raised my voice;[47] and
(d)Having submitted that I was “clearly annoyed”[48] that Mr Nugawela had taken the point that he did not want to be interrupted.
[45]Mr Droppert did not seek to clarify or acknowledge that Mr Nugawela’s reference, from his own recollection, of having said “Oh. My. Goodness” was in fact incorrect. See para 43 and related fn 35 above.
[46]As noted above at fn 41 and 42, this did not occur and is not recorded in the transcript as having had occurred.
[47]This did not occur. The audio of the transcript confirms this.
[48]This is not the case. The audio of the transcript confirms this.
Mr Droppert noted that the transcript had failed to transcribe the word “Oh” prior to me having said “If I’m permitted to ask the question, how so?”, the consequence of this omission being that the full impact of the way in which the question was posed or the interruption to Mr Nugawela’s argument was not conveyed.[49] Mr Droppert suggested to me a number of times that, essentially, if I had let Mr Nugawela speak without interruption, he would have provided answers to the questions I had posed in any event.
[49]The audio of the transcript records my words “oh um” just prior to “If I’m permitted to ask….” at the exact same moment as Mr Nugawela states “look” (which was also not transcribed) in that “oh um” and “look” were audible simultaneously (transcript of audio 2:52:00).
Following this, in relation to the Applicant’s assertion of my “repeated interruptions” and having “pull[ed] faces,” Mr Droppert submitted:[50]
[50]Transcript (recusal hearing), pp 21-22.
So you say that - you actually did want to interrupt him but then you stop yourself, and why is the reason you stop yourself? Because otherwise he’ll start making comments similar to. Now, you don’t get to say what it is, but clearly you’re saying similar comments to the ones he’d made before about not being interrupted. That’s the subject matter of that. Mr Nugawela, I thought somewhat graciously, given the repeated interruptions, appears then to be trying to defer to the importance of the tribunal’s views, i.e. yours, ma’am, and your comment in relation to that was:
I had thought it was.
So you thought your views were more important than his at that point, and that might be right, but it’s also a way of asserting that you’re perfectly entitled to interrupt him whenever you feel like it, and if he takes an issue you’re going to make some comment about that, and so on.
So he does then get to make some submissions and at around line 32 you explain you understood what Mr Burgess was saying, and you’re saying you’re prejudiced and you say you can’t see that that’s necessarily so, and Mr Nugawela then, and clearly that’s some form of invitation for him to respond to what you see the issue as, at that time, and Mr Nugawela says:
Ma’am, I think the only reasonable inference from that paragraph and the questions that were put to her is that her opinion is based on the 8 April blood test results.
And then he says:
Ma’am is frowning.
Mr Nugawela, in his statement, has said that there were various facial expressions from time to time that made it clear that you weren’t happy with what he was saying, if I can put it at a gentle level. But in any event when he says that the answer in the transcript at line 43 is:
MEMBER: I’m waiting for you to finish. I’m very careful of waiting for you to finish.
Well, that’d hardly be an accurate statement given what had transpired over the previous 28 minutes first of all, but in any event it would hardly be an explanation for pulling faces.
(Emphasis added.)
It is well-established that decision makers:[51]
…are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
[51]Johnson at [13].
The question is not whether a decision-maker's mind is blank, it is whether it is open to persuasion. The fact that, it may be easier to persuade one decision-maker of a proposition than it is to persuade another does not mean that either of them is affected by bias.[52] Also, the fact that interruptions or interventions occur and that questioning and testing of submissions may legitimately be robust is part of the judicial (and in this context, the Tribunal’s) function.[53]
[52]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [71]-[72]. The reference to bias here is in the context of the state of mind described as “bias in the form of prejudgment,” where one is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
[53]This must, however, be balanced with the requirements of procedural fairness, including that each party be given a reasonable opportunity to present their case. See Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530 at [26].
The Applicant has taken issue of not only the number of interruptions that I made during Mr Nugawela’s submissions in the early part of the substantive hearing, but also claims that:
(a)These interruptions prevented Mr Nugawela from making his argument;
(b)If I had let Mr Nugawela speak freely without interruption he would have answered my questions in any event;
(c)My apparent thought that my views were “more important” than Mr Nugawela served to assert my “perfect entitlement” to interrupt him “whenever [I felt] like it”; and
(d)The apparent tone, volume and punctuated nature of my speech at various times[54] was in accordance with the various adjectives adopted in Mr Droppert’s submissions and Mr Nugawela’s statement.
[54]Including matters addressed on the first day of the substantive hearing following the Applicant’s evidence (see pages 64 to 66 of the transcript). See, for example, relevant footnotes to para 43 above.
The Applicant has referred to these matters in the context of discussions between myself and Counsel for both parties that largely took place on the first day of the substantive hearing, prior to any evidence being led. Indeed, no evidence could have been led unless and until the preliminary procedural matters were addressed, being:
(a)The appropriate identification and confinement of the issues for review; and
(b)The necessary clarification of the legal test to be applied.
Notably, the Applicant has not asserted, submitted or otherwise provided evidence that my conduct:
(a)Interfered with the giving of evidence by any of the witnesses who gave oral evidence at the substantive hearing;
(b)Revealed that I might not bring an impartial mind to deciding the issue for review,
or that:
(c)I was not open to persuasion;
(d)Mr Nugawela was not afforded the opportunity to make submissions;
(e)I otherwise acted in a manner that resulted in the Applicant not being afforded procedural fairness; or
(f)My conduct was in any way logically connected to the feared deviation from the course of “deciding the case on its merits”.[55] For example, the Applicant has not sought (and in any event, has failed) to establish why the making of the zipping of the mouth motion (which, in any event, did not occur) would cause a fair-minded observer to reasonably apprehend that I would not bring an open mind to deciding the Applicant’s substantive application, either of itself or considering my conduct in its entirety.
[55]As articulated in Ebner (see para [31] above).
Further, the parties’ preliminary discussion that form part of the Applicant’s claim in the present context resulted in:
(a)One of the two applications being dismissed by consent; and
(b)The applicable legal test in the remaining application being clarified,[56]
following the Applicant having received legal advice from her instructing solicitor and from Counsel and it having been open to her, having received that advice, to maintain her position on one or both matters.[57]
[56]The fact that the Applicant’s Counsel ultimately accepted that the correct legal test to be applied to the remaining application aligned with the Respondent’s iteration of the test and consequently that I was correct in holding that view also demonstrates that my discussion of the operation of the legislation does not reveal any bias or prejudgment.
[57]The transcript indicates the Applicant’s Counsel was afforded approximately 50 minutes adjournment following the discussion that is the subject of the Applicant’s claims in the present context, to confer with the Applicant and the Applicant’s instructing solicitor as to how the Applicant wished to proceed with the hearing of the substantive matters.
Indeed, just prior to the Tribunal adjourning the substantive matter so that Mr Nugawela could obtain the Applicant’s instructions regarding the number of claims before the Tribunal. Mr Nugawela said:[58]
MR NUGAWELA: And I apologise, ma'am, but I think that has been very useful for our point of view because maybe I didn't make it crystal clear in my opening and I should have, and the criticism lies with me because the blunt phrase "the preponderance of evidence supports a finding of fibromyalgia" is not the same as saying - - -
MEMBER: The entirety, yes.
MR NUGAWELA: And I apologise.
[58]Transcript, p 69 at [40]-[45].
This outcome, and my questioning of the Applicant’s Counsel in my attempts to address and clarify these matters were:
(a)Raised as outstanding matters in an earlier directions hearing regarding the nature and scope of the Applicant’s claim, therefore relevantly pressed at the commencement of the substantive hearing;
(b)Motivated by the necessity to avoid the time and expense of witnesses being called unnecessarily;[59] and
(c)Do not reveal any prejudgment by me of the issue for review.
[59]Consistent with s 2A and ss 33(1)(a) and 33(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
The Applicant was afforded a reasonable opportunity to present her case at the substantive hearing, including the portion of the hearing that is the subject of the present ground of recusal. A fair-minded lay observer would not regard my attempts to clarify and confirm the scope of the Applicant’s claim and the related applicable legal test to be applied as matters that would give rise to a reasonable perception of bias. That is, a reasonable lay person would not perceive any logical connection between these matters and an inability of my part to decide the Applicant’s substantive application on its merits. Therefore, this ground fails.
Issues in respect of the transcript of substantive hearing
The Applicant’s second claim in support of her application for recusal[60] relates to the obstacles she claims she faced in gaining access to the transcript of hearing and its contents (more accurately, its omissions) once she obtained it. The specific omission referred to here is from the original version of the transcript of the substantive hearing:
“(Section from 3:13:20 pm to 3:21:24 pm omitted from transcript.)”[61]
[60]See para [29(b)] above.
[61]Transcript, p 145 at [25].
In her earlier affidavit, the Applicant outlines the error made by Epiq (the transcript provider) in having omitted eight minutes of transcript from the initial version that was provided to the parties, the details of her request for the transcript audio and the documents she sought and obtained under FOI in this context. [62]
[62]A2, document 1, paras [24]-[57]. The Applicant has since filed and served the documents she received under FOI (annexed to A2 and A6).
In her later submissions, the Applicant said:[63]
When I discovered that important evidence in my favour was removed from the transcript, it was all too much. That sealed the perception I had of the Member being biased. The partly redacted and incomplete FOI documentation clearly showed that the Member was involved in, or at least was aware of the problems with the redacted expert evidence.
After hearing the recording and seeing the communication of the tribunal [sic], with the Member being involved in the initial decision to refuse the production of the audio recording, I reasonably perceived that the Member was biased.
(Emphasis added.)
[63]A4, paras [9] and [10].
At hearing, Mr Droppert referred to this ground as “the strange case of the missing transcript.”[64] Mr Droppert submitted that:
(a)On discovering the omission, the Applicant sought to find out what was missing (by requesting the audio to hear what had been omitted), and how it came to be so.
(b)It looks like my Associate directed Epiq to remove it.
(c)In the email chain between the Tribunal registry and Epiq (which contained a number of typographical errors regarding dates), the Tribunal registry noted a section of the hearing was recorded in error and requested that this section be removed from the transcript before it was provided to the parties. In response to the Tribunal registry’s request, the deletions were made.
(d)A protracted period of “who’s to pay and how” followed and on 15 November 2021 the parties were told to order the amended transcript directly from Epiq, which the parties ultimately received on 25 January 2022. The amended version includes a transcript of the missing audio from the original version of the transcript, which the Tribunal registry requested be included the day prior.
(e)On 8 February 2022, the Applicant’s solicitors requested a copy of the audio for the second time, to which the Tribunal registry responded would only be provided in extraordinary circumstances; and
(f)As the Applicant had already filed her submissions, her additional submissions regarding the missing pages of the transcript were addressed in her responsive submissions following the Respondent’s submissions, which resulted in “Comcare having the final say” and Mr Droppert contends that this is not “the normal course of events.”
[64]Transcript (recusal hearing), p 23 at [10].
As to how this relates to the Applicant’s recusal application, Mr Droppert submitted:[65]
So the role of the tribunal in directing that there should be no transcription of what was significant cross‑examination of the respondent’s only medical witness, really only comes to light after a protracted FOI procedure, and all of that, in my submission, gives rise reasonably to apprehend the bias.
[65]Transcript (recusal hearing), p 26 at [5].
The transcript issue is borne out by the documents the Applicant obtained under FOI:[66]
(a)On 26 October 2021, an Acting Senior Tribunal Officer noted in an email[67] that the hearing recording was not paused during a short adjournment in the hearing that day (being the first day of the hearing), that the hearing attendants had been spoken to, that there needed to be a request for the affected sections of audio and transcript to be removed and that consideration needed to be given to whether the parties and myself needed to be notified.[68]
(b)On 28 October 2021, a Tribunal Officer inadvertently requested the audio and transcript between 3.13pm and 3.21pm from the second day of the hearing be omitted, stating it was recorded in error and should not appear on the transcript.[69] The email from the Tribunal officer erroneously refers to the hearing date as ”26 and 27 November 2021” (instead of 26 and 27 October 2021) and the erroneous section having been recorded on “27 November 2021” (instead of 26 October 2021).
(c)On 8 November 2021, a Tribunal Officer again indicated the matters at para [63(a)] above, namely the recording having inadvertently continued when I had left the hearing room on the first day of hearing from 3:13:20 pm to 3:21:24 pm and the hearing attendant’s request that this not be included in the transcript, which appeared to have been done.[70]
[66]A6, document 3, pp 23-25.
[67]The email recipient details are redacted. From the context of the email, it appears to have been an email to Epiq.
[68]The transcript audio of this period of approximately four minutes records Mr Burgess speaking about the matter with his instructing solicitor during the adjournment. The recording would usually have been muted during this time.
[69]See email dated 28 October 2021 to Epiq (A6, document 3, p 24).
[70]Referring to an email from Epiq dated 5 November 2021 confirming the section from 3:13:20 pm to 3:21:24 pm had been omitted from the transcript (A6, document 3, p 25).
These documents make clear that the Tribunal registry staff, in error, requested the audio and transcript from 3:13:20 pm to 3:21:24 pm on the second day of the hearing be removed (at a time when evidence was being given) as opposed to the first day of the hearing (when the audio had not been paused during an adjournment and had recorded conversations between Mr Burgess and his instructing solicitor). This error was brought to the Tribunal registry staff’s attention by the Applicant’s solicitors, who noted the part missing from the second day of the hearing when they reviewed the transcript.
The mistake by the Tribunal registry staff was unfortunate, however it was also inadvertent and I had no involvement either in its occurrence or in its correction. For example, there is no reference in those documents to myself having had any involvement in the matter whatsoever (other than the email dated 26 October 2021 entertaining that consideration ought to be given as to notifying myself and the parties of what had transpired).
A fair-minded lay observer bearing the knowledge of what had transpired as set out in the evidence above would not draw any adverse inferences from what occurred, a matter entirely between Tribunal registry staff and Epiq, to say there was apprehended bias. The Applicant has not (nor did she attempt to) articulate any logical connection between the omission in the transcript and the feared deviation from myself deciding the Applicant’s case on the merits.
Similarly, the Applicant’s claimed delays and difficulties in obtaining documents from the Tribunal under FOI[71] did not demonstrate (or seek to detail) any logical connection between the outcome of her FOI application and the feared deviation from myself deciding the Applicant’s case on the merits.
[71]See A2, document 1, paras [40]-[52] and related annexures [documents 19-23].
Therefore, this ground does not give rise to a reasonable apprehension of bias and must fail.
Asserted relationship between Member and Respondent’s Counsel
The Applicant’s third claim in support of her application for recusal[72] is based on what she states is my “hidden relationship”[73] or “undisclosed prior relationship”[74] with Mr Burgess and matters relating to Mr Burgess’s success rate when appearing before me, his having been briefed as Counsel on the substantive matter and my having been constituted to it.
[72]See paras [27(b)], [27(c)] and [29(c)] above.
[73]Transcript (recusal hearing), p 8 at [40]
[74]Transcript (recusal hearing), p 28 at [15].
In her earlier affidavit, the Applicant states that:[75]
(a)She learned from her lawyers and Counsel that Mr Burgess was from Sparke Helmore Lawyers, not from HBA Legal (instructing solicitors for the Respondent) or from the bar.
(b)She learned that I had been employed by Sparke Helmore Lawyers prior to my appointment to the Tribunal and had represented the same clients Mr Burgess was representing.
(c)She suspects from her Google searches that Mr Burgess and I may even have known each other or worked together in Australia or London; and
(d)She was told that of the 15 or so cases her lawyers had found where Mr Burgess had appeared before me, “he appeared to have won all.”
[75]A2, document 1, paras [18]-[22].
The Applicant also submitted:[76]
The expert report of Dr Henstridge also confirms [that I am biased].
It appears that 100% of all compensation cases are thrown out by [me]. Before being promoted to the AAT, my affidavit shows that [I] was a senior associate [sic] at Sparke Helmore “in the Commonwealth compensation team.” The respondent’s [sic] counsel [sic] is also from Sparke Helmore…There was no clarifying disclosure made about any of this at the start of the hearing – or at any stage since. This is not publicly available information…
It is also strange that whilst Comcare has instructed HBA Legal as their solicitors, HBA has “briefed” Mr Burgess…to be “independent counsel” [sic] when he is not at the Bar. I believe that Mr Burgess and [I] are, or would be known to each other – a fact not disclosed during my hearing. From google [sic] information, it appears that they also coincidentally both worked in London during similar times. On its own, this familiarity (to put it neutrally) is not a problem to me – especially if it had been disclosed at the beginning. But its non-disclosure, and its combination with the behaviour of [myself] throughout the hearing, and all the matters referred to above [including the remarkable 100% success [my] most recent former client (Comcare) has before [me] in the AAT], gives rise to a reasonable fear that [I] might not be bringing a fair mind to the decision-making table – leaving aside the transcript irregularities, and [my] knowledge or approval through [my] assistants (Associates) as disclosed in the partially-redacted and clearly incomplete FOI documents.
(Emphasis added.)
[76]A4, paras [11]-[13].
At hearing, Mr Droppert added:[77]
…[A]ll of that occurs of course against the background of the Member having an association with counsel appearing for the respondent, an association which would not be known from the notes provided by the Member upon her appointment which refers to her practice at Moray & Agnew, but silence as to Sparke Helmore; what’s not disclosed further is that at Sparke Helmore the Member acted for Comcare, then from the report - a report emerges from exhibit A3, the report of Mr Henstridge that said government departments and instrumentality is at 100 per cent success rate on the matters reviewed over a fairly lengthy period of time, and the expert opinion is that the chances of this occurring is a matter of random statistical chance is remote.
So what we say about all of that is that on the authorities identified by the respondent in its submissions, those authorities by and large deal with isolated points. So, for example, a decision, for example, that a decision‑maker in the past has practised in the same firm as a lawyer appearing before them of itself would not be a basis for recusal on the grounds of apprehended bias…
…
Of itself the fact that you practised in a firm, ma’am, in Perth sometime in the past and dealt with certain, you know, subject matters, but everybody as a lawyer practises either in one field or many fields or a number of different fields, and indeed on one view having a lawyer who has practical experience in relation to an aspect of the jurisdiction of the tribunal is probably a good thing. But for it to be hidden and for it not to be disclosed in circumstances then when, and [the Applicant] makes the complaint, that it all looks very strange that a lawyer who used to be in the same firm with you, ma’am, who is not a member of the firm conducting the matter on behalf of Comcare gets briefed, and appears to get briefed when matters are before you. That’s a matter that, in our submission, a fair‑minded person might consider against a background of a hundred per cent success rate for government departments, including Comcare, is a matter that raises a concern that you might be - you might not bring a fair and independent mind.
Even if, and obviously you don’t give evidence in these matters, but even if you did and said, “Well, I can assure you I study every case with an independent mind and I have no views about these things until I’ve heard all of the evidence”, it’s just that in the cases where the government runs an argument just coincidentally means that otherwise had the better argument. That wouldn’t answer the question of an apprehension of bias and in relation to the use of my learned friend Mr Burgess’s counsel, there’s no explanation from HBA Legal in relation to that; there may be an innocent explanation, there may not be, who knows. Now is note [sic] the time for any proposition to be advanced from the bar table.
And what is said on behalf of the applicant about that is that on the face of it, it looks very unusual, and the connections seem very concerning. What we say is that all [sic] is required is whether the elements that the applicant points to, and I’ll stop and say her personal opinion actually isn’t the test either, and we acknowledge that. Whether she apprehends bias isn’t - she might be totally unreasonable; so the test is whether a fair‑minded independent lay observer would reach the view.
(Emphasis added.)
[77]Transcript (recusal hearing), pp 26-27.
The Applicant asserts that I previously worked at Sparke Helmore Lawyers, which is correct. Mr Burgess is employed at this firm and I understand that during the time that I worked there, he was based in a different office of that firm. The hearing of the Applicant’s substantive application was conducted almost six years after the conclusion of my employment at the firm. The Applicant does not, as I understand it, assert that there was any ongoing relationship or that there was any inappropriate communication. The Applicant has not articulated (or sought to articulate):
(a)The logical connection between my prior employment and prior professional association with Mr Burgess from over six years ago and the feared deviation from the course of deciding the Applicant’s substantive application on its merits; or
(b)Any grounds on which my prior employment and prior professional association with Mr Burgess from over six years ago might give rise to a reasonable apprehension to a fair-minded lay observer that I may not decide the Applicant’s substantive application on its merits.
With respect, the portion of Dr Henstridge’s evidence emphasised by Mr Droppert above,[78] being that the report demonstrates that government departments have a 100% success rate in appearing before me, is an inaccurate interpretation of the evidence.
[78]See para [72].
Dr Henstridge’s report is based on data limited to 12 compensation cases.[79] Dr Henstridge’s report does not address any other types of cases involving government agencies and does not analyse or otherwise take into account the facts or reasoning of any of the cases included in the data sets. Therefore, it cannot be said that the cases were considered in a fully informed manner and the statistics carry little relevant information that could be reliably adopted by a hypothetical observer.
[79]Dr Henstridge attempted to compare the outcomes of these 12 cases with 392 other compensation cases heard by other Tribunal Members during the same period of time.
As to the analysis of cases run by Mr Burgess, the Applicant stated:[80]
…that of the 15 or so cases [her] lawyers had found where Mr Burgess was before [me], he appeared to have won all. Annexed and marked (LRA-4) is a table of 170 relevant cases where Mr Burgess was counsel…
[She] was given the option to request that [I] recuse [myself] from determining [the Applicant’s] case, but given the possible delays and costs that were to be incurred, [the Applicant] decided to progress the hearing. This decision was made before the transcript irregularities which [the Applicant] describe[s] below.
(Emphasis added.)
[80]A2, document 1, paras [22] and [23].
This statistic, along with the statistic regarding myself[81] and any other statistic relating to decision maker’s prior decisions, does not assist a hypothetical observer to make an informed decision as to whether myself (or any other decision maker) might not bring an impartial and unprejudiced mind to those proceedings:[82]
…[W[e accept the Minister’s submission that the mere fact that a particular judge has decided a number of cases, the facts and circumstances of which are unknown, one way rather than another, does not go any way to assisting the hypothetical observer making an informed assessment as to whether that judge might not bring an impartial and unprejudiced mind to the resolution of the question in a particular proceeding before that judge. As Heerey J observed at [26] and [33] in Vietnam Veterans’ Association of Australia (New South Wales Branch Inc) v Gallagher [1994] FCA 489 ; (1994) 52 FCR 34 (Vietnam Veterans’ case) (in rejecting as irrelevant statistical evidence which purported to show that a particular decision-maker was more likely to decide against applicants than other decision-makers):
All such evidence could show is that, because a decision-maker has decided a particular kind of case in a particular way in the past, he or she is likely to decide a case of the same nature in the same way in the future. Even if that be accepted as a conclusion of fact, it does not make out a case of apparent bias. The law is not so ignorant or disdainful of human nature as to assume that judges or quasi-judicial decision-makers are automatons. It may well be that, for example, it can be predicted from past experience that judge A is more likely to impose a prison term for a particular crime than judge B, or that judge C will award greater damages for the same sort of injury than judge D. It is for this very reason that the listing of cases is a jealously guarded element of any system of justice …
…
For the foregoing reasons I do not think the statistical evidence proffered has any probative effect as to the correctness or otherwise of decisions of panels over which Mr Marsh presided. But there is the further fundamental obstacle that, even if incorrectness be proved in respect of such decisions, and shown to exist at a higher level compared with the decisions of panels without Mr Marsh, that does not establish a circumstance which might give rise to a reasonable apprehension of bias. All court systems and many administrative decision-making systems provide for appeals. As part of such appeal processes, decisions are routinely set aside for errors of fact or law. But in the vast majority of such cases there is no suggestion of apparent bias.
(Emphasis added.)
[81]At para [74] above.
[82]ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [41]. This matter considered Judge Street’s conduct where in “252 out of the 254 immigration judgments, or 99.21%, Judge Street found in favour of the respondent Minister for Immigration and Border Protection” at [11(d)].
Finally, as to Mr Droppert’s submission that it is “unusual” for the Respondent’s instructing solicitor to brief a solicitor to advocate in the Tribunal,[83] it is quite usual and is expressly provided for in Appendix D of the Legal Services Directions 2017:[84]
The policy applies to the engagement of counsel by Commonwealth agencies themselves or by private lawyers who are acting for the Commonwealth or Commonwealth agencies. The policy also applies to lawyers who, although not from the bar, are briefed as counsel in lieu of a private barrister to conduct or advise on litigation for the Commonwealth or Commonwealth agencies.
The policy applies to briefs to advise and briefs to appear before courts, tribunals and inquiries. It also applies to the use of counsel to represent the Commonwealth or Commonwealth agencies in arbitration and other alternative dispute resolution processes. Briefs should ordinarily be marked with an hourly rate up to a maximum daily rate inclusive of conferences, consultations, preparation and other necessary work. A fee on brief (inclusive of preparation time) is only to be marked if it is considered more economical than agreeing to pay a fee based on the appropriate hourly or daily rate for the counsel.
(Emphasis added.)
[83]It appeared that the Applicant was attempting to infer that there was a specific reason for doing so, presumably due to the claimed undisclosed relationship between Mr Burgess and myself, which has already been addressed.
[84]Legal Services Directions 2017, Appendix D at [3]-[4].
Again, there is no logical connection between this matter, or any of the matters in this ground taken together, and the feared deviation from the course of deciding the Applicant’s substantive application on its merits. Accordingly, this ground fails.
CONCLUSION
The recusal grounds put forward by the Applicant are largely based on her perceptions of me at the first day of the hearing of her substantive application, the impressions she has formed, the conclusions she reached regarding how the Tribunal registry dealt with the transcription error and with her FOI application, and the assumptions she has made regarding my having previously been employed by Sparke Helmore Lawyers, the law firm to which Mr Burgess has been employed throughout the duration of the Applicant’s matters.
Several of the grounds are grounded in presumption (for example, the asserted relationship) or otherwise do not have a logical or factually correct basis (for example, the transcript error, Mr Burgess having been engaged as Counsel, or how Dr Henstridge’s evidence ought to be interpreted and what it serves to demonstrate).
The Applicant stated that she did not pursue a recusal application at the time of the substantive hearing due to the possible delays and costs that were to be incurred.[85] Ultimately, the Applicant’s recusal application was heard almost one year from the date the Applicant lodged her application for recusal following five extensions of time granted by the Tribunal at the Applicant’s request. It is unfortunate that the outcome of the Applicant’s substantive claim, which was heard in October 2021, has become further delayed.
[85]See para [76] above.
The grounds asserted by the Applicant do not pass the test for apprehended bias in Ebner. A fair-minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the resolution of the issue for review in the substantive application. There is no logical connection (or attempted articulation of a logical connection, for that matter) between any of the recusal grounds asserted and my ability to decide the issues in the Applicant’s substantive application on the merits.
Having been constituted to the Applicant’s substantive application, which has already been heard, my duty is to only recuse myself if a claim of bias is “firmly established.”[86] The Applicant’s claim for recusal does not meet this threshold.
[86]See JRL at [31] above.
DECISION
I refuse the Applicant’s request that I recuse myself from the hearing of this application.
I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher
..............[Sgd]..........................................................
Associate
Dated: 1 May 2023
Date of hearing: 22 February 2023 Counsel for the Applicant: Mr G Droppert, SC (instructed by Mr K Wong of Soul Legal)
Counsel for the Respondent: Mr A Burgess (instructed by Ms C Tota of HBA Legal
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