Atkin v Willee
[2011] FCA 568
•30 May 2011
FEDERAL COURT OF AUSTRALIA
Atkin v Willee [2011] FCA 568
Citation: Atkin v Willee [2011] FCA 568 Parties: DR WILLIAM MARK ATKIN v MR PAUL ANDREW WILLEE RFD QC PRESIDENT OF A COMMISSION OF INQUIRY APPOINTED UNDER PART 8 OF THE DEFENCE (INQUIRY) REGULATIONS 1985 (CTH) and AIR CHIEF MARSHALL ALLAN GRANT HOUSTON, AO, AFC CHIEF OF THE DEFENCE FORCE File number: VID 1008 of 2010 Judge: GRAY J Date of judgment: 30 May 2011 Catchwords: DEFENCE AND WAR – Commission of Inquiry – investigation of death of serviceman – notice to psychiatrist who had seen deceased twice that he was at risk of adverse findings – evidence from expert in military medical administration – private telephone conversation between President of Commission of Inquiry, counsel assisting and expert – subsequent alterations made to expert’s report – alterations prejudicial to psychiatrist – whether reasonable apprehension of bias – whether subsequent disclosure and statements of President removed apprehension
ADMINISTRATIVE LAW – military Commission of Inquiry – investigation of death of serviceman – notice to psychiatrist who had seen deceased twice that he was at risk of adverse findings – evidence from expert in military medical administration – private telephone conversation between President of Commission of Inquiry, counsel assisting and expert – subsequent alterations made to expert’s report – alterations prejudicial to psychiatrist – whether reasonable apprehension of bias – whether subsequent disclosure and statements of President removed apprehension – appropriate remedy – whether Commission of Inquiry should be restrained altogether or only in relation to any finding concerning psychiatrist
Legislation: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c)
Air Force Act 1923 (Cth)
Defence Act 1903 (Cth)
Fair Work Act 2009 (Cth) s 590(1)
Judiciary Act 1903 (Cth) s 39B(1)
Naval Defence Act 1910 (Cth)Defence (Inquiry) Regulations 1985 (Cth) regs 109, 109(1)(a), 109(3), 111(1), 111(3), 112, 112(1), 112(2), 115, 116, 117(2)(a), 121, 121(1), 121(3)
Cases cited: Basic Wage and Standard Hours Inquiry 1952-53 (1953) 77 CAR 477 considered
British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 applied
Carruthers v Connolly [1998] 1 Qd R 339 discussed
Ebner v Official Trustee in Bankruptcy [2000] HCA 63 (2000) 205 CLR 337 applied
Ferguson v Cole [2002] FCA 1411 (2002) 121 FCR 402 discussed
Hot Holdings Pty Ltd v Creasy [2002] HCA 51 (2002) 193 ALR 90 considered
Mahon v Air New Zealand Ltd [1984] 1 AC 808 applied
Monroe Australia Pty Ltd v Burian (unreported, Full Court of the Supreme Court of South Australia, 20 March 1998) discussed
R v Carter; Ex parte Gray (1991) 14 Tas R 247 considered
R v Doogan; Ex parte Lucas-Smith [2005] ACTSC 74 (2005) 158 ACTR 1 considered
R v Maurice; Ex parte Attorney-General (NT) (1987) 73 ALR 123 discussed
Re JRL; Ex parte CJL (1986) 161 CLR 342 discussedDate of hearing: 28 January 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 81 Counsel for the applicant: Mr J Rush QC and Dr S Keeling Solicitor for the applicant: Sparke Helmore The first respondent submitted to any order the Court may make, save as to costs Counsel for the second respondent: Mr P Hanks QC and Ms R Sharpe Solicitor for the respondents: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1008 of 2010
BETWEEN: DR WILLIAM MARK ATKIN
ApplicantAND: MR PAUL ANDREW WILLEE RFD QC PRESIDENT OF A COMMISSION OF INQUIRY APPOINTED UNDER PART 8 OF THE DEFENCE (INQUIRY) REGULATIONS 1985 (CTH)
First RespondentAIR CHIEF MARSHALL ALLAN GRANT HOUSTON, AO, AFC CHIEF OF THE DEFENCE FORCE
Second Respondent
JUDGE:
GRAY J
DATE OF ORDER:
30 MAY 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.A writ of prohibition issue, directed to the first respondent, Paul Andrew Willee RFD QC, President of a Commission of Inquiry appointed under Pt 8 of the Defence (Inquiry) Regulations 1985 (Cth) into the death of Private David Jon Smith, prohibiting the first respondent from making or expressing in any report of the Commission of Inquiry any finding concerning the conduct of the applicant, Dr William Mark Atkin, in relation to Dr Atkin’s dealings with Private Smith.
2.The second respondent pay the applicant’s costs of the proceeding.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1008 of 2010
BETWEEN: DR WILLIAM MARK ATKIN
ApplicantAND: MR PAUL ANDREW WILLEE RFD QC PRESIDENT OF A COMMISSION OF INQUIRY APPOINTED UNDER PART 8 OF THE DEFENCE (INQUIRY) REGULATIONS 1985 (CTH)
First RespondentAIR CHIEF MARSHALL ALLAN GRANT HOUSTON, AO, AFC CHIEF OF THE DEFENCE FORCE
Second Respondent
JUDGE:
GRAY J
DATE:
30 MAY 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The nature and history of the proceeding
As a result of the death of Private David Jon Smith, the Chief of the Defence Force (the second respondent to this proceeding) appointed the first respondent as President, and the only person constituting, a Commission of Inquiry, pursuant to reg 109 of the Defence (Inquiry) Regulations 1985 (Cth) (“the Regulations”). The Regulations were made pursuant to the Defence Act 1903 (Cth), the Naval Defence Act 1910 (Cth) and the Air Force Act1923 (Cth). Several people, including the applicant, Dr Atkin, who is a practising psychiatrist, received notices to the effect that their conduct might be the subject of findings by the Commission of Inquiry, and were granted leave to appear before, and be represented at its hearing.
In the course of the hearing, the President invited an expert witness, who is a medical practitioner, to prepare a report about two specific issues. On receipt of a draft of that report, the President and counsel assisting the Commission of Inquiry conducted a telephone conference with the witness, following which the witness made changes to her report. The telephone conference was conducted without notice to any of the persons represented in the Commission of Inquiry, and without them or their representatives being given any opportunity to participate. It was not recorded or transcribed. Dr Atkin complains that the alterations made to the witness’s report provide material that could be used by the Commission of Inquiry to make findings adverse to him, which was not present in the report before the alterations were made, and which appears to be there because of comments or suggestions made by the President. Dr Atkin contends that these circumstances give rise to an apprehension that the President is biased against him. Counsel for Dr Atkin subsequently made an application inviting the President to disqualify himself from continuing with the Commission of Inquiry, at least in relation to making any findings concerning the conduct of Dr Atkin. The President declined to disqualify himself. The hearing phase of the Commission of Inquiry has now been completed, and the President has agreed to delay his report pending the outcome of this proceeding.
In his application to the Court, Dr Atkin sought orders having the effect of preventing the President from making any findings about Dr Atkin’s conduct, or from continuing the Commission of Inquiry at all. The President has acted properly in entering a submitting appearance in the proceeding. The role of contradictor has been undertaken by the Chief of the Defence Force. His counsel has made it clear that, if orders are to be made, the preference of the Chief of the Defence Force is for orders preventing the Commission of Inquiry from making findings concerning the conduct of Dr Atkin, but allowing it to complete its task in other respects.
There were pleadings filed, but they were not particularly useful in establishing what are the issues between the parties. Nor did they prevent the filing of affidavit evidence that dealt fully with facts that were admitted, as well as with issues in dispute. Neither party cross-examined the deponents of the other party’s affidavits, so that any conflicts of evidence have not been resolved.
The submissions of counsel for the parties reveal that there are two possible approaches to the resolution of the case. One is to determine whether the fact that the President had a private conversation with a witness is sufficient to give rise to an apprehension of bias, without regard to the content of the conversation, or the circumstances in which it occurred. The other approach is to examine in detail the circumstances surrounding the conversation and, to the extent to which it can be known, the content of the conversation, to determine whether the events as a whole give rise to a reasonable apprehension of bias.
Ordinarily, the fear to which private communication between the decision-maker and a witness gives rise is a fear that the witness may have said something in the course of the private communication that is likely to influence the mind of the decision-maker. The case put on behalf of Dr Atkin in the present proceeding is not based on that kind of fear. Rather, the apprehension of bias on the part of the President is said to have arisen because the witness made changes to her report following the private communication, which appeared to have been suggested by the President, thereby indicating that he had developed a pre-disposition to reach a particular conclusion, and was procuring evidence that would assist him in doing so.
The circumstances of the death
Private Smith died as a result of an incident on 26 June 2009, in which an armoured personnel carrier of which he was the commander, but not the driver, overturned during a training exercise at the Puckapunyal army base. Prior to that incident, Private Smith had demonstrated symptoms that may have indicated that he was suffering from post-traumatic stress disorder. A clinical psychologist by the name of Johnson had referred Private Smith to Dr Atkin, who performed some sessional work as a psychiatrist at the Puckapunyal Health Centre. Although there was a general practitioner, Dr Jenkins, also available at Puckapunyal, the referral did not involve any general practitioner. Dr Atkin saw Private Smith twice, on 22 April and 6 May 2009.
The connection suggested between Private Smith’s condition and his death is that, if his superior officers had been aware of his suspected condition, he might not have been performing the duty that he was performing when the incident occurred.
The appointment of the Commission of Inquiry
By reg 109(1)(a) of the Regulations, the Chief of the Defence Force is required, by instrument in writing, to appoint a Commission of Inquiry to inquire into the death of a member of the Defence Force that appears to have arisen out of, or in the course of, the member’s service. Regulation 109(3) empowers the Chief of the Defence Force, by instrument in writing, to add a matter to the matters into which the Commission of Inquiry may inquire, or to vary those matters. Regulation 115 also gives him the power to direct a Commission of Inquiry as to its procedure. By reg 111(1), a Commission of Inquiry may be constituted by one or more persons. Regulation 111(3) provides that, if the Commission of Inquiry is constituted by one person, that person must be eligible to be appointed as President under reg 112. Regulation 112(1) requires that one of the members of a Commission of Inquiry be appointed to be the President. Regulation 112(2) contains the qualifications required of the President, which are not material to the present case.
By instrument in writing dated 17 January 2010, the Chief of the Defence Force appointed:
a Commission of Inquiry constituted by Mr Paul Andrew Willee, RFD, QC, for the purpose of inquiring into the circumstances surrounding the death of Private David Jon Smith (the Commission), as specified in this instrument (and the further guidance in the form of terms of reference which is to be subsequently issued as an annexure to this instrument of appointment)
The instrument also nominated the first respondent to be the President. The instrument continued:
Pursuant to Regulation 115 of those Regulations:
(i)I direct the Commission to adopt practices and procedures consistent with those Regulations and which promote the expeditious and efficient collection of evidence in the circumstances of the Commission’s inquiries;
(ii)I authorise the President to issue Practice Notes in respect of practices and procedures proposed to be adopted in respect of the Commission’s inquiries;
(iii)I direct the Commission to submit such reports as specified in the terms of reference; and
(iv)I direct that Commission records may not be publicly released outside of the Commission’s hearings other than in accordance with Regulation 63 of the Regulations;
Pursuant to Regulation 119 of those Regulations, I direct that all oral evidence to be given before the Commission shall be on oath or affirmation; and
Pursuant to Regulation 51 of those Regulations, I appoint legal practitioners, Colonel Michael Albert Griffin, a legal practitioner, as Counsel Assisting the Commission.
The Chief of the Defence Force also issued a document entitled “TERMS OF REFERENCE”, dated 27 June 2010, purporting to be “ANNEX A TO INSTRUMENT OF APPOINTMENT DATED 17 JAN 10”. Apart from the extent to which this document added or varied matters into which the Commission of Inquiry was empowered to inquire, or gave directions as to the procedure of the Commission of Inquiry, the source of any power to specify terms of reference is not apparent in the regulations. Nonetheless, it is clear that the President regarded himself as bound by the terms of reference. The document is too lengthy to quote in its entirety, so I set out extracts from it:
Introduction
...
2. The Commission members, legal practitioners assisting and representing and all personnel tasked to provide support to the Commission (the Administrative Support Team) are to refrain from conduct and interaction that raises reasonable doubts as to the impartiality or fairness of the inquiry process.
…
Inquiry Task
4. The essential purpose of the Commission is to obtain information to inform military decision-making—principally in a safety context. To this end, the Commission’s focus should be on any Defence-related factors materially contributing to PTE Smith’s death and any actions that might reasonably be taken by Defence to reduce the chance of a similar recurrence.
5. Subject to paragraph 4 above, the Commission is to obtain evidence and to provide me with a report detailing, with reasons, its findings as to:
a. the circumstances surrounding the death of PTE Smith.
b.the sufficiency of any actions and decisions taken by Defence personnel which are materially relevant to PTE Smith’s death, both prior and immediately subsequent thereto.
c.any substantial weaknesses or deficiencies (isolated or systemic) in Defence systems, policies, equipment, practices, procedures and training proximately associated with PTE Smith’s death.
Recommendations
6. Without limiting the scope provided for by regulation 110 of the Regulations, I am particularly interested in considering recommendations regarding actions that the Commission believes should be taken by Defence with respect to any substantial weaknesses or deficiencies (isolated or systemic) in Defence systems, practices, policies, procedures and training which are found to have materially contributed to the death of PTE Smith —with a view to reducing the chance of similar recurrence.
7. Recommendations should be clear, reasoned, succinct, measurable and achievable. The Commission is authorised and encouraged to consult widely regarding recommendations that it proposes to make in its report.
8. Pursuant to regulation 110 of the Regulations, recommendations should be explicitly linked to findings made in the Commission’s report. For clarity and convenience, recommendations should be published in a table format containing the following detail for each recommendation:
a. the finding(s) to which it relates; and
b.the relevant paragraph(s)/page(s) reference within the report where the related finding(s) is contained.
…
Representation of potentially affected persons
12. Where the President of the Commission determines that a person may be affected by the inquiry pursuant to regulation 121 of the Regulations, arrangements for the representation of that person by a particular ADF Legal Officer will be made by the Director of Defence Counsel Services (DDCS). Accordingly, the President is to notify DDCS of any person that may be affected.
…
No findings of criminal/disciplinary offences
14. The Commission is not to conclude or find that a disciplinary or criminal offence has been committed by any person. Nor is it to use the language of the criminal law when describing particular conduct or behaviour. If during the course of the inquiry the view is formed by the President that a person is likely to have committed a serious criminal or serious disciplinary offence, such offences are to be reported to the Provost Marshal of the Australian Defence Force, and also notified to me, as soon as it is practicable to do so. Care needs to be taken to ensure that continuing with the Inquiry does not unduly prejudice any criminal or disciplinary investigation.
Public Inquiry
15. Further to regulation 117 of the Regulations, I direct that the Commission shall conduct its inquiry in public in respect of the taking of evidence and the making of submissions, subject to the following qualifications
The qualifications concerned security classified information or information the subject of legal professional privilege.
The first notice to Dr Atkin
By reg 121(1), if the President considers that a person may be affected by the inquiry, that person is authorised to appear before the Commission. By reg 121(3), that person may appoint another person, who may be a legal practitioner, to represent him or her for the purposes of the inquiry, and that other person is authorised to appear before the Commission. On 12 July 2010, letters were sent to various persons advising them that the President had decided that they may be affected by the Commission of Inquiry and that they were therefore entitled to be represented before it. On 23 July 2010, the President decided that similar letters should be forwarded to Dr Atkin and Dr Jenkins. As a result, the President sent a letter to Dr Atkin, dated 27 July 2010, advising him of the Commission of Inquiry, and saying:
The principal purpose of this letter is to inform you of a decision I have made regarding rights of appearance before the Inquiry. Pursuant to sub-regulation 121(1) of the Defence (Inquiry) Regulations 1985, I consider that you may be affected by the Inquiry, and are accordingly authorised to appear before the Inquiry.
The letter went on to advise Dr Atkin that he was entitled to have a legal practitioner appear on his behalf. Dr Atkin took up this invitation, and a barrister, Dr Keeling, appeared for him throughout much of the hearing conducted by the Commission of Inquiry. Subsequently, senior counsel, Mr John Rush QC, was also briefed to appear, principally in relation to the application that the President should disqualify himself.
On 17 August 2010, the President decided that further letters should be sent to other parties and they were so sent.
The variation to the Terms of Reference
By instrument in writing, dated 21 August 2010, the Chief of Defence Force varied the terms of reference by rescinding para 5 and substituting the following:
Subject to paragraph 4 above, the Commission is to obtain evidence and to provide me with a report detailing, with reasons, its findings as to:
a. the circumstances surrounding the death of Private Smith;
b.the sufficiency of any actions and decisions taken by Defence personnel or a Defence Contractor which are materially relevant to Private Smith’s death, both prior and immediately subsequent thereto; and
c.any substantial weaknesses or deficiencies (isolated or systemic) in Defence systems, policies, equipment, practices, procedures and training proximately associated with Private Smith’s death.
The effect of this substitution appears to be the broadening of the inquiry to embrace defence contractors as well as defence personnel. In the statement of claim in this proceeding, Dr Atkin alleged that he was a defence contractor. The allegation was not admitted in the defence, but at the hearing, counsel for the second respondent conceded that Dr Atkin was a defence contractor.
The involvement of Dr Blakley
In June 2010, the President and Colonel Griffin asked the Department of Defence to nominate an expert to assist the Commission of Inquiry. According to Colonel Griffin’s affidavit, this assistance was sought “on medical administration matters.” The department made available Dr Roslyn Blakley, a medical practitioner with substantial military experience. Colonel Griffin made contact with Dr Blakley by telephone on 27 July 2010. According to his affidavit, Colonel Griffin asked Dr Blakley to review certain documents and provide information “about Defence policy on medical administration matters, its application in the present circumstances and the appropriateness of the policy in situations such as the present case.”
After Dr Blakley had been provided with some documents, on 4 August 2010, Colonel Griffin conducted an interview with her. The interview was recorded and transcribed. The transcript was subsequently circulated to all those appearing in the Commission of Inquiry and tendered as an exhibit. In the course of the interview, Dr Blakley pointed to the absence of involvement in Private Smith’s case of the senior medical officer, or of a local general practitioner “who would normally have the case management role at the initiation of management.” She also spoke of issues of risk assessments and the possibility of placing restrictions on the duties of members of the armed forces diagnosed as suffering from mental illness, including restrictions designed to keep them away from firearms and large vehicles.
Dr Blakley gave oral evidence in the Commission of Inquiry on the afternoon of 13 August 2010, the morning of 18 August 2010 and the afternoon of 8 September 2010.
During her evidence on 8 September 2010, Dr Blakley was asked whether, on the material she had seen and what had been put to her in her evidence, she was “able to form a view as to who the clinical case manager was for PTE Smith in April, May and June of 2009?” She replied that she did not believe that she had seen enough of the medical record to be able to make an assessment on that. The President then said:
Let me ask that more generally, Doctor. What we were canvassing yesterday was the difficulty of assigning that role to any particular medical officer, where a patient is likely to see a number of medical officers, for different ailments or even for the same ailment. How does the interpretation of the regulations resolve that fact? Is anybody considered to be the case manager, by virtue of some protocol or…?
In response, Dr Blakley referred to documents that had been brought into existence since Private Smith’s death concerning case management of patients with mental health care related matters. She said that the army was trying to implement a formal process of the appointment of a doctor as the case manager for a patient. In answer to a further question from the President, she confirmed that the processes for mental health care were not in place at the time of Private Smith’s death. She said:
the rehabilitation program was, but there are very defined triggers that you need to meet to be [sic] mandatory referrals to the rehabilitation program. So, it did exist, but whether PTE Smith met those triggers I’m not sure; I haven’t done an analysis of that specifically.
The President then said “It would be useful to me if you could carry out such an analysis in terms of what was in place at the time”, to which Dr Blakley replied “Okay.” The President then said “And then turn your mind to whether those triggers were, or ought to have been, understood by the personnel involved.” Dr Blakley agreed that she could do this, and said, “The triggers are certainly very clearly defined and the application of those can be applied retrospectively, yes.”
Counsel appearing for the family of Private Smith then raised the question of identification of who was Private Smith’s case manager at the time, “if there was one, or more”. The President then said:
Insofar as it is possible for you to give an opinion as to who, in accordance with those triggers, was the case manager between 1 May and 26 June, or if there were a number of them?
Dr Blakley said she was more than happy to do that. The President then said “I intend to put that material before counsel, when we receive it, and you may address it in any way you see fit.”
Dr Blakley’s draft report
On 16 September 2010, at 11.54 am, Sergeant Jodi Ross, who was one of the staff attached to the Commission of Inquiry, sent an email to the President and to Colonel Griffin in the following terms:
Gentlemen, please see attached draft copy from Dr Blakeley [sic], she sends her apologies for it being late, once you are happy with it she will enter the document registration details & sign.
The attached document was an 11 page report, addressed to the President. In para 1, Dr Blakley said:
You have requested that I provide a written opinion involving the application of relevant Australian Defence Force (ADF) policy that might assist the Commission in assigning case management responsibilities to a particular medical practitioner involved in the care of … PTE … SMITH.
In para 2, Dr Blakley identified “three distinct matters of deliberation”:
a. the applicability of the Australian Defence Force Rehabilitation Program (ADFRP) guidelines to PTE Smith’s circumstances (specifically for the period 01 May 09 − 26 Jun 09) and determination if this assisted in identification of a case management responsibility for an identifiable medical practitioner;
b. the applicability of any other relevant ADF policy guidelines relating to case management (particularly those relating to mental health care) that were extant in the period 01 May 09 − 26 Jun 09 that may assist in the identification of the medical case manager; and
c. any relevant policy amendments introduced since PTE Smith’s death that may assist in clarifying case management responsibilities and identification of the medical case manager.
Paragraphs 14 and 15 of the draft report read as follows:
14. Given the above policy analysis and the UMR evidence, it can be concluded that PTE Smith should have been referred for a Rehabilitation Assessment (and potential case management IAW the ADFRP) on the basis of the possible psychiatric diagnosis reasonably understood to have been offered by Dr W . Atkin on the unsigned, undated PM528 Specialist Referral (referenced by Mr R. Johnson dated 21 Apr 09). Responsibility for this referral rested with the ‘treating Medical Officer’.
15. Two matters arise from this requirement for an ADFRP referral:
a.Responsibility assigned to Mr Ross Johnson, Psychologist. IAW paragraph 9 above, Mr Johnson had a responsibility to be familiar with the triggers outlined in DI (G) PERS 16-22 and ‘to raise this with the member’s MO’. No written evidence in support of enactment of this policy requirement by Mr Johnson is contained within PTE Smith’s UMR.
b.PTE Smith’s ‘treating MO’ was responsible for raising a referral for a Rehabilitation Assessment. It remains open to the Commission to give due consideration as to who was PTE Smith’s treating MO for the purposes of his mental health condition. Evidence within PTE Smith’s UMR reveals that Dr Atkin was the only medical practitioner directly involved in the assessment of PTE Smith for his mental health condition in the time frame in question. Noting the broad reference to MO in the policy, it is open for consideration that Dr Aitkin [sic] was performing the role of ‘treating MO’ for this purpose and hence was responsible for the medical case management of PTE Smith within the ADFRP framework. Alternatively, it could be considered that the failure to involve a GP within the referral process meant that those responsibilities usually, but not exclusively, assigned to the GP were not complied with as a direct consequence of this exclusion.
The abbreviation “UMR” should be understood to mean “Unit Medical Record”, the abbreviation “IAW” should be understood to mean “in accordance with” and the abbreviation “MO” should be understood to mean “Medical Officer”.
Paragraph 18 of the report was as follows:
Whilst the reference to ‘primary caregiver’ points responsibility to a GP performing this role, the policy does not limit broader consideration of any medical practitioner, irrespective of specialty, having this responsibility if can [sic] be demonstrated that the medical practitioner has engaged themselves in such a role. Noting this, it is open for consideration that Dr Atkin was performing the role of ‘the member’s Medical Officer’ for this purpose and hence was responsible for the medical case management of PTE Smith within the mental health care framework. Alternatively, it could be considered that the failure to involve a GP within the referral process meant that those responsibilities usually, but not exclusively, assigned to the GP were not complied with as a direct consequence of this exclusion.
Paragraph 24 of the report was as follows:
In giving consideration to PTE Smith’s circumstances, the absence of a referral from Mr Johnson to a GP makes the interpretation of the policy’s application somewhat more complex. Mr Johnson’s initial assessment (as recorded on PM528 Specialist Report dated 21 Apr 09) of “PTSD like symptoms, anger and mood swings” reasonably placed PTE Smith’s mental health issues into the category of a ‘Mental Health Disorder’ for the purposes of application of HD 289 (paragraph 3a: Mental Health Disorders are diagnosable mental health conditions that result in distress and/or impaired functioning. They are characterised by alterations in mood, thought, and behaviour’). Consequent to this categorisation, a responsibility was placed upon Mr Johnson to refer PTE Smith to an ‘MO for assessment’ (paragraph 11). As the intent of the policy is that this referral would be made to a GP, it could be reasonably argued that Mr Johnson failed to fulfil this obligation under policy, despite actioning a referral to Dr Atkin (as evidenced by PM528 Specialist Report dated 21 Apr 09).
It is also necessary to set out para 26 of the report as it then stood:
In the absence of any other medical practitioners [sic] involvement in the management of PTE Smith’s mental health condition during the period 01 May − 26 Jun 09, it remains open to the Commission to consider that Dr Atkin accepted the responsibility of Clinical Case Manager (IAW the intent of HD 289) through his acceptance of a direct referral from a mental health professional other than an MO. Alternatively, it could be considered that the failure to involve a GP within the referral process meant that those responsibilities expected to be assigned to the GP were not complied with as a direct consequence of this exclusion.
The telephone conference
On receipt of Dr Blakley’s draft report, Colonel Griffin read it. At 12.36 pm on 16 September 2010, he sent an email to the President in the following terms:
A number of issues arise from this:
Johnson as a PAP
The effect of Jenkins endorsing with a tick the Johson [sic] referral to Atkin on 27 March 2009
Who was the case manager, Atkin or Jenkins.
Do we just distribute this
Do we reconvene to allow XXN on this
Do we include the case manager role in the issues component of the notices to Atkin and Jenkin [sic]
Do we amend notice to Jenkin [sic] describe him as case manager or SMO or MO or treating medical officerMy thoughts are:
Johnson’s referral was seen and endorsed by SMO and was an accepted in-house practice – he not [sic] a PAP
The case manager role is a live issue for both Atkin and Jenkins
The notices to include that issue
Jenkins be referred to in the notice as the SMO which includes his supervisory function
We distribute Blakleys [sic] opinion as it is and include it in the evidence section of the notices without reconvening until we see reactionThe abbreviation “PAP” should be understood to mean “potentially affected person”, ie a person in respect of whom the Commission of Inquiry might make adverse findings. The abbreviation “XXN” should be understood to mean “cross-examination”, and the abbreviation “SMO” should be understood to mean “senior medical officer”.
Approximately one hour later, the President telephoned Colonel Griffin to discuss Dr Blakley’s draft report. During the conversation, the President said words to the effect that he and Colonel Griffin should have a conference with Dr Blakley immediately. According to Colonel Griffin’s affidavit, there was no discussion of the matters to be discussed with Dr Blakley. The teleconference was arranged for that afternoon. It began at approximately 3.50 pm and lasted for approximately half an hour. No notice to any of the parties represented before the Commission of Inquiry was given.
Colonel Griffin did not take any notes during the teleconference and could not recall any of the discussion verbatim. He set out his general recollection of the discussion in his affidavit. According to this evidence, the President began by thanking Dr Blakley for her report and complementing her on its clarity and structure. He then said there were a couple of matters that he would like her to clarify. He took Dr Blakley through the report from the beginning. Colonel Griffin did not recall anything of significance being raised until para 14 was reached. Colonel Griffin then began a discussion with Dr Blakley about paras 14, 15 and 24 of the report. His evidence about that discussion is as follows:
I said to Dr Blakley words to the following effect: “What is the effect of the written evidence. That is, you’ve just said there’s no written evidence: what is the effect of the referral in paragraph 14 on that last sentence in paragraph 15a? Because paragraph 15a says: ‘no written evidence in support of enactment of this policy requirement by Mr Johnson is contained within Private Smith’s UMR’, but in the paragraph immediately preceding that, 14, you’ve referred to the written evidence that’s in the medical record about the referral by Mr Johnson of Private Smith to Dr Atkin. How does that sit with 15 a. and the last sentence?”
Dr Blakley said words to the following effect: “Well, there are a number of ways, of looking at the policy, and on one view of it, Mr Johnson has complied with the policy because on the 21st of April document he has referred Private Smith to a medical practitioner, Dr Atkin.”
Either the [President] or I (I can’t recall who) asked what Dr Blakley meant by that.
Dr Blakley said that the policy wasn’t definitive, but she said that Mr Johnson had in fact referred Private Smith to a medical practitioner because he referred Private Smith to Dr Atkin. She went on to say that the issue was whether Dr Atkin was the medical officer under the interpretation of the MEC (the medical employment classification) policy.
The [President] said to Dr Blakley: “Is that your view?”
Dr Blakley said words to the following effect: “Well, that could be the position on one view.”
The [President] raised the issue of the detail that Dr Atkin had put in his clinical notes and how that affected the case management role; and who the case manager was from a clinical view point. He said words to the effect: “Who was the case manager here?”
Dr Blakley started discussing the position of the various medical practitioners, namely Dr Jenkins and Dr Atkin. She said words to the effect that the notes or documents were not clear about who the case manager was.
The [President] then referred to the exchange that he had with Dr Atkin in the course of Dr Atkin’s evidence to the Commission of Inquiry (recorded at pages 1423 to 1426 of the transcript for 2 September 2010, which in turn referred to evidence recorded at lines 43 to 45 of page 1218 of the transcript for 30 August 2010: see annexures MAG-10 and MAG-11) about the amount of detail in Dr Atkin’s notes. In particular, the [President] told Dr Blakley that Dr Atkin had said that there were time constraints with him (Dr Atkin) dealing with patients, and that there was a relationship between the amount of detail in the notes and the limited amount of time that Dr Atkin had.
I remember the [President] asking her: “What do you draw from the notes about who had the case management responsibility?”
Dr Blakley said again that there were a couple of ways of looking at it and that, on one view, Dr Jenkins was the case manager and that, on another view, Dr Atkin was the case manager and retained the clinical management role. Dr Blakley said that, on one view, it could be Dr Jenkins as he was the senior medical officer, that he was like the GP but, on another view, it could be Dr Atkin because Dr Atkin hadn’t assigned or delegated any responsibilities, there was no clarity from his notes on that point.
Dr Blakley referred to the development of the policy and recent changes that had been made to it and her involvement in that policy process over time. The [President] then asked Dr Blakley to expand on her opinion about the case management responsibilities.
I have a clear recollection of the [President] saying to Dr Blakley: “I want your opinion and only your opinion.”
The [President] asked if she could expand on the issues that had been discussed, if she was able to do that.
Dr Blakley said that she was able to expand on the issues that had been discussed.
Subsequently, in circumstances that are detailed below, Dr Blakley gave oral evidence about the content of the teleconference. She agreed that she had only changed her report on request from Colonel Griffin and the President together. She said that she had prepared the report initially from documents that she had, but that the President had raised with her oral evidence given to the Commission of Inquiry. She referred specifically to evidence about Dr Atkin’s notes and their adequacy and clarity. She said that she did not have a recollection of being told what Dr Atkin’s evidence was about the content of his notes.
Dr Atkin had given evidence in the Commission of Inquiry’s hearing about his notes. The issues of adequacy and clarity of those notes had been raised with him by the President, and he had given answers to the President’s questions. This evidence was all recorded in the transcript of evidence, which was not made available to Dr Blakley. One of the complaints made on behalf of Dr Atkin about the telephone conversation is that the President may not have conveyed to Dr Blakley the full import of what Dr Atkin said about his notes, as distinct from the President’s views about them.
The changes to Dr Blakley’s report
On 17 September 2010, Dr Blakley delivered her signed report to the Commission of Inquiry. The following additions and alterations were made to her draft report.
In para 15.a., in the last sentence, the word “specific” was added between the first word “No” and the second word “written”. A further sentence was added at the end of the paragraph:
Mr Johnson did, however, refer PTE Smith to a medical practitioner for further assessment and it could be argued that this referral set in place a means by which the intent of DI (G) PERS 16-22 could be satisfied.
The abbreviation “DI (G) PERS 16-22” refers to a document called Defence Instructions (General) Personnel 16-22 Australian Defence Force Rehabilitation Program dated 20 June 2006.
In para 18, a further sentence was added prior to the last sentence of the paragraph:
This responsibility arises from his acting as a primary MO referral source for Mental Health Professionals other than an MO.
In para 24 of the report, the last sentence was deleted and the following two sentences were substituted:
Mr Johnson referred PTE Smith to an ‘MO for assessment’, namely Dr Atkin (as evidenced by PM528 Specialist Report dated 21 Apr 09). Whilst the intent of the policy is that this referral would be made to a GP, it could reasonably be argued that Mr Johnson’s actions satisfied the policy’s broadest intent with respect to the provision of clinical care.
The final alteration was a sentence added to para 26 immediately before the last sentence of that para:
As Dr Atkin’s report does not contain any specific delegation of responsibilities for enactment of his proposed management plan to another medical practitioner, it could reasonably be argued that these responsibilities remained with Dr Atkin.
Further notice to Dr Atkin
By a notice, headed “NOTICE TO A POTENTIALLY AFFECTED PERSON”, dated 17 September 2010, Colonel Griffin advised Dr Atkin:
The issues contained in Enclosure 1 are within the contemplation of the Commission of Inquiry and it is possible that an adverse finding affecting you may be made. You are invited to put any submissions with respect to matters contained in Enclosure 1 to the Commission however; [sic] you are not obliged to do so.
The enclosure to the notice listed the following issues:
1. Whether Dr Atkin as treating psychiatrist to PTE Smith:
a.Took a history of the patient such as was sufficient to adequately inform a risk assessment of PTE Smith’s then current and possible employment.
b.Made adequate notes of traumatic exposures and other relevant clinical matters
c.Obtained and recorded informed consent for disclosure of information of PTE Smith’s mental health condition.
d.Conducted an adequate risk assessment of PTE Smith’s employment.
e.Properly and sufficiently informed the case manager about PTE Smith’s condition.
f.Adequately monitored the process requiring PTE Smith to return for further psychiatric treatment.
(‘the conduct’).
2.Whether, the conduct in respect of the treatment and monitoring of PTE Smith’s medical condition allowed PTE Smith to continue in his employment as an APC crew commander.
3.Whether the conduct contributed to PTE Smith engaging in the deliberate sliding of his APC through a sharp right hand turn and at a dangerously high speed causing the APC to roll over, fatally crushing PTE Smith
4.Whether the conduct was relevant to the death of PTE Smith.
The reconvened hearing
The signed report of Dr Blakley was forwarded to the representatives of parties participating in the Commission of Inquiry on 17 September 2010. By email dated 21 September 2010, Sergeant Ross referred to the possibility of reconvening the hearing. Dr Atkin’s representatives requested a reconvening, and advised the Commission of Inquiry in writing as to the matters they proposed to cross-examine Dr Blakley about. The hearing was reconvened on 30 September 2010.
Shortly before the resumption of the hearing, the President asked Colonel Griffin whether he had distributed Dr Blakley’s draft report. Colonel Griffin replied that he had not. The President then asked him to provide a copy of the draft report to each of the parties. Colonel Griffin did so, approximately 10 minutes prior to the time that the reconvened hearing commenced. When Dr Blakley was recalled, Colonel Griffin as counsel assisting the Commission of Inquiry asked her to identify her report dated 17 September 2010, and to give evidence as to its correctness. He then tendered the document. Colonel Griffin then asked Dr Blakley about the draft report and the changes that were made in it. This questioning included evidence of the telephone conference between Dr Blakley, the President and Colonel Griffin.
Counsel for Dr Atkin then proceeded with her cross-examination of Dr Blakley. The cross-examination included questions outside those previously notified in writing, because counsel for Dr Atkin had only learned on that morning of the draft report and the changes that were made to it following the telephone conference on 16 September 2010. It was during this cross-examination that Dr Blakley gave her evidence about the content of the telephone conference, to which I have referred in [25] above.
In the course of cross-examination of Dr Blakley by counsel for Dr Atkin, concerning whether Dr Atkin could be characterised as Private Smith’s medical officer, counsel for Dr Jenkins objected to a question on the basis that it did not reflect accurately the evidence that had already been placed before the Commission of Inquiry. This led to a discussion between counsel for Dr Atkin and the President, with counsel for Dr Jenkins pursuing his objection. Counsel for Dr Jenkins objected to a question to Dr Blakley about what might have been in the mind of Dr Atkin, on the basis that Dr Atkin had not been asked what was in his mind about the particular issue. This led to the President suggesting to counsel for Dr Atkin that she ought not to pursue the question. The President said:
You’re being extremely sensitive about an issue which is blinding you to what, in fact, is the real issue and what will really assist this Commission and what the expert, in fact, is here to do. This is not about me making findings about blame. It is about me seeing if there’s a way through the morass in terms of whether or not there is a systemic problem with these directives. I can’t make it any plainer than that, Dr Keeling.
Counsel for Dr Atkin pointed out that Dr Atkin was in receipt of a notice from the Commission of Inquiry suggesting that he contributed to the death of Private Smith by his conduct in relation to his follow-up role. The following exchange then took place:
PRESIDENT: He can answer that, can’t he?
DR KEELING: He can, sir.
PRESIDENT: And the notice can be answered by way of submission based on the evidence. So far, as I understand it, the contribution to the death of PTE Smith in relation to his activities is not something that was put in those terms in the notice, and I have already told the commission repeatedly that there is no legal basis in which I could find that he was a causative [sic] of the death of PTE Smith.
DR KEELING: If that is the case, sir, why is Dr Atkin a person potentially affected and why has he been served with the notice that he is at risk of these findings?
PRESIDENT: Because the finding of the expert, or the opinion of the expert, leads to a suggestion that what was done may not have accorded with policy, and I haven’t formed a view about this yet, but certainly that may be something which reflects adversely on Dr Atkin, and that is all you need to concern yourself with.
DR KEELING: Sir, could you clarify that for me. I am confused about what you say my client is at risk of.
PRESIDENT: Confused about what I say – what?
DR KEELING: At the adverse finding that my client is at risk of, sir. The notice is not – it’s couched in terms of whether or not – are you saying that there is no contribution of Dr Atkin’s conduct to the death of PTE Smith, or are you saying that - - -
PRESIDENT: I am saying that I have not formed a view about whether process might have in fact contributed to PTE Smith’s death and whether that process needs to be addressed to make it plainer so that it doesn’t happen in the future, whether there is a systemic problem. But I am not in a position to suggest, or likely to be in a position to suggest that he has directly causative [sic] of that death.
DR KEELING: Sir, if it’s a process question regarding the health directives or the defence instruction in general, first of all, then that is not a matter for my client. My understanding and, sir, you will correct me if I am wrong, is that Dr Atkin is at risk of being held to have contributed to PTE Smith’s death, because on the evidence of Dr Blakley he has failed to interpret the health directive in the way that Dr Blakley does and that he accepted - - -
PRESIDENT: You proceed on that understanding, Doctor. I can’t make the situation any plainer. I don’t propose to get into a discussion about this at this stage. It’s not the commission’s job to tell you what your client faces beyond the notice that has been given to you or to explain to you what the situation is. You must go ahead on what you perceive the situation will be.
DR KEELING: Thank you, sir. Just for clarify [sic], my perception of the situation is that Dr Atkin has been served with a notice which asks him effectively to show cause why he shouldn’t be found to have contributed to the death of PTE Smith by way of his conduct and that subsequent to that notice the report of Dr Blakley has been provided and has subsequently been accepted into evidence by the commission. The report of Dr Blakley clearly gives support to the contention that Dr Atkin ought to have perceived himself as the medical officer or the case manager and properly proceed to challenge Dr Blakley on that conclusion.
The recusal application
By letter dated 20 October 2010, addressed to the President, the solicitors for Dr Atkin forwarded written submissions on his behalf and foreshadowed that an application would be made that the President disqualify himself from hearing any aspect of the evidence as it concerned Dr Atkin. The first seven pages of the written submissions were in support of the application that the President disqualify himself. In para 7, the submissions identified three actions of the President that were relied on as circumstances that should lead to his disqualification:
(a)discussing evidence with a witness (Dr Blakely [sic]) in a non-recorded conversation;
(b)directing the witness to certain evidence and describing and interpreting that evidence to the witness (or being a party to such description) the description being contrary to the interests of Dr Atkin;
(c)discussing the evidence so that the witness would change her opinion, such change being contrary to the interests of Dr Atkin
By letter dated 21 October 2010, the solicitors for Dr Atkin formally requested that the hearing of the Commission of Inquiry be reconvened to hear an application on behalf of Dr Atkin that the President recuse himself on the basis of apprehended bias. The application was that the President recuse himself “from deciding the matters in issue before this Commission of Inquiry.”
After further correspondence, on 8 November 2010, Dr Atkin’s solicitors forwarded further written submissions in support of the recusal application. These submissions sought, in the alternative, that the President disqualify himself “from considering any matters or circumstances arising from the evidence in the Inquiry that may affect the interests of Dr Atkin” or, if the President should determine that he was required to recuse himself from the Commission of Inquiry as a whole, then he should do so.
On 17 November 2010, the President delivered a written ruling, with reasons, in which he declined to disqualify himself.
In para 3 of that ruling, the President said that Dr Blakley’s opinion:
was sought by me in the course of the hearing on 8 October [sic] 2010 for the purposes of resolving the difficulty of assigning the role of case manager to any particular medical officer in the case of a patient likely to see a number of medical officers, for different ailments or even for the same ailment. Further, for the purpose of resolving the application of the regulations to that situation and explaining the triggers in those regulations in the case of PTE Smith, as well as whether those triggers were or ought to be understood by the personnel involved.
At para 8, referring to Dr Blakley’s draft report, the President said:
When exhibit 68 was delivered to the Commission’s secretary I reviewed it, and formed the view that portions of it were not sufficiently clear or definitive in the context of the evidence. Accordingly, after discussing the matter with Counsel Assisting (CA) a teleconference with the Commission’s expert was arranged by the Commission’s secretary, which took place on 16 September 2010 between myself, CA and the expert witness. When it became clear to me precisely what Dr. Blakley meant in her opinion she was asked by me if consistently with her opinion she could express it more clearly. Dr. Blakley agreed that she could and did so in exhibit 67 signed the following day.
In para 10, in the course of a summary of the submissions made on behalf of Dr Atkin as to apprehended bias, the President made certain criticisms of the terms in which those submissions were expressed. He described certain paragraphs of those submissions as:
constantly commenced or concluded (and sometimes both) with references to the Conversation in one form or another as ‘initiating The Change’; or The Change occurring as a consequence of the Conversation. Those terms referred to: ‘A telephone hook up’, ‘the conversation’, it then became a ‘private telephone conversation’, then a ‘private discussion’ and finally a ‘non recorded telephone conversation’ which developed a plurality ‘as private unrecorded conversations’. The Commission’s highly qualified and respected expert witness was twice referred to in what might be taken as derogatory terms as ‘the supposedly independent witness’. The continual repetition of a proposition in these terms does nothing to substantiate it.
At para 17, the President discussed the possibility of disqualifying himself with respect to one party but proceeding with respect to others, and concluded “that quandary cannot be resolved without carrying out the task with which I am charged in reviewing the evidence and making findings in respect of each affected person.”
After referring to authorities and to the terms of the instrument of his appointment, the President continued:
26. I have already referred to some of the evidentiary deficiencies in the bias submissions which markedly suffer from their apparent failure to grapple with the significance of the substantial difference between a Commission of Inquiry (and other inquiries referred to in the AIM) but more importantly a Court in respect of which the principles of disqualification for apprehended bias or actual bias have been developed. However, to complete my reasons for this ruling I should add what follows.
27. As I have repeatedly said, during proceedings the Commission is not adversarial it is inquisitorial. Moreover, I am required by regulation 123 to be satisfied ‘that all information that is relevant to the inquiry that is practicable to obtain has been obtained’ before I make findings or recommendations to be the report of the Commission.
28. There is no mandatory requirement for any discourse between, association with, or questioning of witnesses carried out by a Commission President to be in public in the hearing room given the inquisitorial nature of a Commission of Inquiry proceedings [sic] and the need to comply so far as possible with the requirements set out in the Instrument of Appointment and Terms of Reference.
29. I consider it appropriate for the President and CA to consult with an expert witness called or to be called by that Commission for the purpose of assessing and weighing the evidence of other witnesses to the COI which evidence is within that expert’s area of expertise. By such a process a President or CA may inform themselves as widely and as fully as possible on matters required to be addressed in the report following the Commission’s proceedings.
30. In this context two matters arising from the DIR regulations require particular mention. The first is the direction in my IOA (to which I have already referred) to “adopt practices and procedures consistent with those Regulations and which promote the expeditious and efficient collection of evidence” in the circumstances of the Commission’s inquiries made pursuant to regulation 115.
31. The second and more significant regulatory power is conferred by Regulation 116 of the (DIR) permitting that “The President may inform himself or herself on any matter relevant to an inquiry in such manner as the President thinks fit”. That power and concomitant responsibility granted to a President of a Commission by regulation 116 is not granted to a member or president of any other type of Defence Inquiry.
32. These provisions are consistent with the aim of a Commission of Inquiry which unlike adversarial proceedings involves an attempt to ascertain a factual matrix as required in the IOA without being constrained by the rules of evidence; as well as the right and requirement to make what inquiries and investigations the President considers relevant to his task.
33. I considered it appropriate in this instance to assess, examine and weigh items of evidence and policy within the province of the opinion of an expert witness and her expertise. I regarded the proper performance of my duties as President charged with the requirement of making the fullest proper inquiry into the matters the subject of my IOA both entitled and obliged me to make the inquiries that I did.
34. A President of a Commission of Inquiry examining or consulting with a witness for the purpose of understanding the evidence that such a witness may be able to, or can in fact give, or has reduced to a report or opinion is common enough. To carry out those functions satisfactorily in this case required me to make sure that Dr. Blakley who was engaged by the Commission specifically as the Commission’s expert witness, had carried out the instructions given to her in open hearing in the way that had been requested (both by me and Counsel Representing the relatives of PTE Smith) with sufficient clarity for the purposes of the Commission, including imparting a clear understanding of what it was that the witness was actually saying in her report. It would be inefficient and uneconomic of Commission resources to do otherwise.
35. As the transcript reflects (p 1779) that was what occurred during the conversation. This was a perfectly legitimate and appropriate process. It would hardly be surprising if such a process elicited greater clarity, elaboration or even the complete change of an opinion if appropriate bases for such change were considered by the witness or the discussion prompted the witness to review refine or clarify such opinion. The conversation was not private it was conducted with CA and Dr. Blakley by telephone.
36. The fact and nature of the telephone conversation was disclosed in open hearing and its circumstances exposed to cross-examination of the witness. While the changes occurred after, or as a consequence of the Conversation in a temporal sense it is a non sequitur to suggest that this is evidence per se of any impropriety on my part. There was no attempt made by junior counsel for Dr. Atkin in her cross-examination of the expert witness to suggest, ascertain or elicit any of the matters on which she now (with senior counsel) seeks to rely as a basis for the bias application.
37. The mere fact that an expert witness changes the way in which he or she expresses their opinion or the opinion itself when such a process has occurred without more is not evidence of the Conduct being inappropriate; or conducive to the development of an apprehension of bias, and in my view would not be so regarded by a hypothetical reasonable and informed observer (that is an observer who understands the processes in a Commission of Inquiry) as the authorities require.
38. Specifically, no alleged improper action by CA or me was put to the witness by counsel. Counsel did not even put to the witness that the matters raised were not founded in evidence before the Commission, or that I had wrongly interpreted such evidence, or conducted the discussion of it in a way ‘so that she would change her opinion’. Despite the appellation ‘so called independent’ witness, Dr. Blakely [sic] was not even asked if I or CA or both of us had in any way overborne her will to any extent or so that she felt compelled to alter her opinion, execute the Change, or give an opinion which was in any way contrary to her true opinion as expressed in exhibit 67.
39. Within such a framework the proper performance of my duties as President of the Commission cannot in my view be equated to evidence of bias or ostensible bias on my part and accordingly I regard the submissions that I should disqualify myself on that account as unsustainable
Colonel Griffin’s final submissions
Colonel Griffin made final submissions to the Commission of Inquiry, in his capacity as counsel assisting, dated 20 October 2010. For the purposes of this case, three of those submissions should be mentioned. Referring to Dr Blakley’s report and to the transcript of her evidence on 30 September 2010, Colonel Griffin submitted that “The actual responsibility for case managing PTE Smith’s condition remains a moot point”. The second significant submission is:
In my submission, both Dr Atkin and Dr Jenkins had a duty to ensure that PTE Smith’s mental health condition was treated and managed in a timely manner. They both failed in that duty. Mr Wightwick and Aspen Medical had a duty to ensure that the appointments system operated effectively. They both failed in that duty.
Finally, Colonel Griffin submitted that “In the event, a timely medical review may not have removed PTE Smith from the vehicle on that day.” The submission proceeded to point out that both Dr Atkin and Dr Jenkins were of the opinion that Private Smith was functioning well and it was unlikely he would have been restricted from employment commanding the vehicle that rolled over.
The test for apprehended bias
Counsel on both sides referred to the statement of the test for apprehended bias in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror)…the governing principle is that, subject to qualifications relating to waiver…or necessity…a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
Earlier, at [4], their Honours made it clear that the principle extends beyond the judicial system to other kinds of decision making but, in such cases, “must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making.” Their Honours then referred to the principle of necessity, under which the statutory requirement that a Tribunal perform the functions assigned to it may displace the ordinary rules of procedural fairness. Their Honours also pointed out that few administrative decision-makers enjoy the degree of independence and security of tenure that judges have. At [5], their Honours said “These differences, however, must not obscure the fundamental principle.”
Examples of the application of the apprehension of bias principle to decision-makers outside the judicial system can be found easily. Even though an administrative inquiry might not involve the resolution of any dispute between parties, the principle still entitles those who are participating in such an inquiry to restrain the conduct of it if there is a reasonable apprehension of bias on the part of the person conducting it. R v Doogan; Ex parte Lucas-Smith [2005] ACTSC 74 (2005) 158 ACTR 1 was a case in which the Full Court of the Supreme Court of the Australian Capital Territory heard a number of challenges to the continued conduct of a coronial inquiry into widespread fires, including challenges based on the apprehension of bias principle. The principle extends to a Royal Commission: R v Carter; Ex parte Gray (1991) 14 Tas R 247. It extends to a statutory commission of inquiry: Carruthers v Connolly [1998] 1 Qd R 339 and Ferguson v Cole [2002] FCA 1411 (2002) 121 FCR 402.
One circumstance that might give rise to a reasonable apprehension of bias on the part of a decision-maker is private contact between the decision-maker and a person giving evidence relevant to the decision, in the course of conducting an inquiry intended to lead to the making of a decision. In Re JRL; Ex parte CJL (1986) 161 CLR 342, a private conversation between a judge of the Family Court and a counsellor attached to that court, about a particular case, was held to be sufficient to give rise to a reasonable apprehension that the judge would not bring an impartial mind to the resolution of that case. Similarly, in Monroe Australia Pty Ltd v Burian (unreported, Full Court of the Supreme Court of South Australia, 20 March 1998) the decision of a review officer, conducting a review on behalf of the South Australian Workers Compensation Appeal Tribunal, was set aside as a result of a private conversation between the review officer and a medical practitioner giving evidence in relation to the review. A contrary conclusion was reached by the Full Court of the Supreme Court of Tasmania in Carter, concerning two solicitors who were assisting the Royal Commission in writing its report, and who had sworn affidavits that were part of the evidence before the Royal Commission, as to their communications with a witness who had denied statements attributed to him.
The question whether the fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to his or her task is essentially a question of fact, to be decided in accordance with the circumstances of the particular case.
The nature of the Commission of Inquiry
There can be no doubt that the Commission of Inquiry is inquisitorial. Its purpose is in no way to determine the rights of any person, or to resolve any dispute between parties in respect of rights. When applying the test of reasonable apprehension of bias, the nature of the Commission of Inquiry is the starting point. As was pointed out in Ebner at [4], the application of that test to decision-makers outside the judicial system must accommodate differences between court proceedings and other kinds of decision-making.
That is not to say that the constraints implied in any conferral of statutory powers to make decisions affecting the rights and interests of people can be ignored altogether. It is clear that a person who will be adversely affected by a finding made as a result of an inquisitorial process has a right to expect that the principles of natural justice will govern that process. So much was made clear by the Privy Council in Mahon v Air New Zealand Ltd [1984] 1 AC 808 at 820-821. Implicit in the conferral on any decision-maker of statutory powers to conduct an inquiry are the notions that every person whose interests may be affected adversely by findings made in the exercise of those powers has a right to a hearing, involving notice of allegations against him or her and a proper opportunity to answer those allegations, and to a decision on those allegations by an impartial tribunal. As was said in Ebner at [7], even the appearance of departure from impartiality is sufficient to vitiate the exercise of the statutory power to inquire.
In Hot Holdings Pty Ltd v Creasy [2002] HCA 51 (2002) 193 ALR 90, the High Court applied the normal rule about apprehension of bias to the exercise by the Western Australian Minister for Mines of the power to grant or refuse a mining exploration licence. In R v Maurice; Ex parte Attorney-General (NT) (1987) 73 ALR 123, the Full Court of this Court prohibited the Aboriginal Land Commissioner from proceeding with an inquiry into a land claim pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), on the ground of apprehended bias. The Court considered that a reasonable observer would apprehend, as a result of statements made by the Commissioner, that he had prejudged the outcome of the inquiry.
As the President pointed out at [31] of his reasons for refusing to recuse himself, reg 116 of the Regulations confers on him as President the power to inform himself on any matter relevant to the inquiry in such manner as he thinks fit. Such a provision is a common feature of administrative decision-making. See, for instance, s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), and s 590(1) of the Fair Work Act 2009 (Cth). The latter provision has a long history. Even almost half a century ago, prior to the acceleration of the development of the principles of procedural fairness (as the principles of natural justice are now called) that has taken place in that time, it was recognised that such a power could not be construed so as to exclude those principles. See Basic Wage and Standard Hours Inquiry 1952-53 (1953) 77 CAR 477 at 506-507 per Kelly CJ, Kirby, Dunphy and Morgan JJ. The conferral of a power of this nature is better understood as a means of allowing a decision-maker to dispense with the rules of evidence, so that material that would not be admissible in a court can be considered. Such a power should not be regarded as authorising a decision-maker to act in a way that would otherwise give rise to an apprehension of bias.
A similar conclusion can be reached about the President’s reference at [30] of his reasons of 17 November 2010 to the direction to adopt practices and procedures promoting the expeditious and efficient collection of evidence. Expedition and efficiency are laudable aims, but are not intended to oust the fundamental requirement, implicit in all grants of power to make decisions, that the grantees of those powers act impartially. In any event, the terms of reference of the Commission of Inquiry also contained a direction that the Commission “refrain from conduct and interaction that raises reasonable doubts as to the impartiality or fairness of the inquiry process” (para 2) and a direction pursuant to reg 117(2)(a) of the Regulations that the Commission “shall conduct its inquiry in public in respect of the taking of evidence and the making of submissions” (para 15). It could not be said that expedition and efficiency were to be pursued at the expense of perceived impartiality and fairness, or at the expense of conducting a public inquiry.
In written submissions in this proceeding, counsel for the Chief of Defence attempted to justify the telephone conference between Dr Blakley, the President and Colonel Griffin on the basis that the President had also communicated with other experts and witnesses on a private basis. The submissions seemed to involve the assumption that such other communications had been unexceptionable, and that therefore the same view should be taken of the communication with Dr Blakley. The assumption is unsustainable. In the first place, private communications gave rise to the risk that the President would be receiving evidence or submissions otherwise than in accordance with the direction in para 15 of the terms of reference for the Commission of Inquiry, which required the taking of evidence and the making of submissions in public. Perhaps even more importantly, in having private communications with witnesses or experts, the President was at risk of allegations that he had received information that prejudiced the interests of parties potentially subject to adverse findings by the Commission of Inquiry, without providing those parties with a proper opportunity to be aware of the communications and to rebut or comment on them. The fact of private communications other than with Dr Blakley can in no sense be regarded as justifying a private communication with Dr Blakley.
There can be no doubt that the President was required to conduct the Commission of Inquiry impartially with respect to the interests of every party to whom notice had been given that those interests may be affected by the making of adverse findings. This obligation required the President to do nothing that would give rise to a reasonable apprehension that he had been other than impartial. Even without the direction given in para 2 of the Commission of Inquiry’s terms of reference, the President was required by law to conduct himself in a manner that would avoid providing opportunities for allegations of partiality or unfairness.
The position of Dr Atkin
Regulation 121 of the Regulations had the effect of giving a person who “may be affected by the inquiry” the right to appear and to be represented before the Commission of Inquiry. The notice dated 27 July 2010, signed by the President, informed Dr Atkin that the President considered that he may be affected by the inquiry. At that stage, before the Commission of Inquiry had begun hearing evidence, the nature of any findings that might be made in respect of Dr Atkin’s conduct was not clear. According to Colonel Griffin’s affidavit, the connection between Private Smith’s death and any act or omission of Dr Atkin at that time was perceived to be the possibility that Private Smith might have been relieved of the duty he was performing when he died, if his superior officers had been aware that he might have been suffering from PTSD. The original notice to Dr Atkin bore the same date as the date of Colonel Griffin’s first contact with Dr Blakley, although Colonel Griffin had asked for a referral to someone who could provide expertise in medical administration some time earlier.
It is significant that, on the same day as Dr Blakley submitted the signed version of her report, Colonel Griffin forwarded a second notice to Dr Atkin, warning him explicitly that an adverse finding affecting him may be made about the issues referred to in that notice. The notice, the terms of which are quoted in [31] above, informed Dr Atkin explicitly that findings might be made as to his dealings with Private Smith, and that the conduct so found to have occurred might have allowed Private Smith to continue his duties, might have contributed to the manner in which the vehicle was driven, and might have been relevant to his death. It is true that this notice was signed by Colonel Griffin, and not by the President. In Colonel Griffin’s affidavit, however, he says that, after the conclusion of the evidence on 8 September 2010, “the First Respondent issued Notices to certain of the persons who were represented before the Commission of Inquiry.” The affidavit then proceeds to identify the notice dated 17 September 2010 to Dr Atkin, and to speak of notices in similar terms enclosing individual lists of issues that were also served on other parties. There is no indication in the affidavit that the notice dated 17 September 2010 to Dr Atkin was given otherwise than with the authority of the President.
In consequence of the notices to him, there can be no doubt that Dr Atkin was at risk that serious findings, adverse to him, might be made by the Commission of Inquiry about a number of aspects of his dealings with Private Smith. Nor could there be any doubt that he was at risk that those findings would include findings that Dr Atkin’s conduct was a contributory cause of Private Smith’s death.
The telephone conversation with Dr Blakley
The most important feature of the telephone conference between the President, Colonel Griffin and Dr Blakley is that it was entirely unnecessary. If it be assumed, as the President said at [34]-[35] of his reasons of 17 November 2010, that he took the view that Dr Blakley’s draft report was insufficiently clear, its lack of clarity could have been dealt with in any number of ways. The President could have instructed Colonel Griffin as counsel assisting the Commission of Inquiry to contact Dr Blakley and invite her to clarify aspects of the report. Such contact could have been made by letter, copied to all parties represented in the Commission of Inquiry. The hearing could have been reopened, Dr Blakley could have been invited to return to give further evidence, and the President could have asked her in public, in the presence of the parties and their representatives, to clarify any aspects of her report that he thought were unclear. Each of these courses, coupled with the prior distribution of Dr Blakley’s draft report, would have been standard practice for any inquiry. Each would have avoided any possibility that the President could have been seen to be persuading Dr Blakley to alter her evidence in a way that made it more unfavourable to a party against whom adverse findings could be the result of the Commission of Inquiry. Other courses achieving this object may have been possible. The objective of having Dr Blakley provide greater clarity of her evidence did not require direct and private communication between the President and Dr Blakley.
Further, if it had been thought necessary to draw Dr Blakley’s attention to the issue of Dr Atkin’s notes, and whether they were adequate and sufficiently clear, this could, and should, have been done otherwise than by attempting to summarise orally evidence that had been given about them. This was not an issue that emerged in the course of the hearing on 8 September 2010 as one of the matters about which Dr Blakley was to prepare a report. If the President thought she should include in her report some comment about the notes, or use some information about them in forming the opinions she had been invited to express in a report, a request to this effect could have been made in writing, copied to all parties. Dr Blakley could have been provided with all of the evidence received by the Commission of Inquiry to that point, including the transcript of Dr Atkin’s evidence about the issue. As it was, there was a substantial risk that the President would influence Dr Blakley’s opinion about the notes, by presenting an inadequate summary of the evidence, as Dr Atkin alleges occurred.
The changes to Dr Blakley’s report
It is clear that the changes made to Dr Blakley’s report, following the telephone conference between her, the President and Colonel Griffin, had the effect of making the report more prejudicial to the interests of Dr Atkin than it would have been otherwise. All of the changes made concerned Dr Atkin’s position and conduct.
In para 15 of the report, as it was expressed originally, Dr Blakley raised two issues that she said arose from the requirement for a referral that might have resulted in Private Smith being placed on a rehabilitation program. The first issue, in subpara a., related entirely to Mr Johnson. Dr Blakley was critical of Mr Johnson’s failure to raise the triggers found in the relevant policy with the relevant medical officer. Subparagraph b. dealt with the responsibility of Private Smith’s treating medical officer, and with the question of who was filling that role (whether Dr Atkin or nobody). The effect of the alteration to subpara a. was to remove the criticism of Mr Johnson. As a result of the additions made to that subparagraph, the report expressed the view that Mr Johnson’s responsibility to raise the question of triggers with a medical officer had been satisfied simply by a referral to a medical practitioner for further assessment. The medical practitioner was, of course, Dr Atkin. The effect of the additions was to transfer the focus of subpara a. from Mr Johnson to Dr Atkin, so that he became more likely to be the person who should have recognised the presence of the triggers and to have acted accordingly.
In para 18 of the draft report, Dr Blakley had expressed the tentative view that either Dr Atkin was performing the role of Private Smith’s medical officer, and therefore responsible for his case management, or the absence of a GP from the referral process meant that those responsibilities were not complied with. The sentence added to para 18 had the effect of strengthening the case for the adoption of the former of those alternatives.
The alteration made to para 24 of Dr Blakley’s report involved substituting for criticism of Mr Johnson an exoneration of him and a focus again on Dr Atkin. The original sentence, which was omitted from the final version, included the proposition that “it could be reasonably argued that Mr Johnson failed to fulfil this obligation under policy, despite actioning a referral to Dr Atkin”. The two sentences that replace that sentence reported blandly that Mr Johnson had referred Private Smith to Dr Atkin and then provided an exoneration of Mr Johnson, in place of the condemnation.
Similarly, the addition of a sentence to para 26 of the report sharpened the criticism of Dr Atkin. The paragraph no longer offered as a simple alternative the proposition that Dr Atkin accepted the responsibility of clinical case manager. It referred to the absence from Dr Atkin’s report of specific delegation of responsibilities for enactment of his proposed management plan and offered the suggestion that “it could reasonably be argued that these responsibilities remained with Dr Atkin.”
According to Colonel Griffin’s affidavit, the discussion about para 15a. was initiated by Colonel Griffin himself in the telephone conference. Colonel Griffin’s recollection was not clear as to whether he continued to question Dr Blakley about para 15a., or whether the President took over. It was clear, however, by the end of the discussion that the President had taken over the questioning. He was asking Dr Blakley whether her view was that Dr Atkin was the medical officer and she was responding in a neutral way. The President then pressed Dr Blakley for a view as to who the relevant medical officer was. He prompted her with some references to Dr Atkin’s notes. At the end, he asked Dr Blakley to expand her opinion about the case management responsibilities. Dr Blakley would have come away from the telephone conference with the clear view that the President wanted her to be more specific about the role of Dr Atkin as medical officer, or case manager, than she had been in her draft report. The fact that the President told Dr Blakley that he wanted only her opinion would not have detracted from the clear message that he had been giving her.
It is highly probable that Dr Blakley took the view that she should defer to the President in the preparation of her report. The fact that she provided the report as a draft, with a message (conveyed by Sergeant Ross in the email referred to in [20] above) to the President and Colonel Griffin that “once you are happy with it” she would formalise it, suggests that she saw her role as being to provide what the Commission of Inquiry wanted. This is confirmed by the alterations to the report, which departed from the tentative expression of Dr Blakley’s views present in the draft report, and became more definite in implicating Dr Atkin. It is not to the point, as the President said at [38] of his reasons for refusing to recuse himself, that Dr Blakley was not asked whether he or Colonel Griffin “or both of us had in any way overborne her will to any extent or so that she felt compelled to alter her opinion”. The crucial fact is the risk that Dr Blakley was prepared to be compliant with, or obliging in relation to, what she understood the President wanted.
Subsequent statements by the President
In determining whether the hypothetical reasonable observer would apprehend that a decision-maker might not approach the task of making the decision impartially, it is permissible, and perhaps necessary, to have regard to any statement by the decision-maker, made after the events said to give rise to the apprehension, that might explain or qualify those events. See British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 at [70] per Gummow J and [136]-[138] per Heydon, Kiefel and Bell JJ. In the present case, there are two such statements. The first is the exchange that occurred in the course of cross-examination of Dr Blakley by counsel for Dr Atkin on 30 September, set out at [35] above. The second is the President’s reasons published on 17 November 2010.
At one point in the discussion with counsel for Dr Atkin on 30 September 2010, the President said, “This is not about me making findings about blame.” He went on to say that the issue was whether or not there was a systemic problem with the policy directives. Counsel for Dr Atkin pointed out the terms of the notice. The President then said that he had already “told the commission repeatedly that there is no legal basis in which [sic] I could find that he was a causative [sic] of the death of PTE Smith.” Counsel for Dr Atkin then asked why Dr Atkin was a person potentially affected and why he had been served with a notice that he was at risk of certain findings. The President responded that Dr Blakley’s evidence led to a suggestion that “what was done may not have accorded with policy” and that that might be something reflecting adversely on Dr Atkin. Counsel for Dr Atkin sought clarification, especially about whether there was alleged to be a contribution by Dr Atkin’s conduct to the death of Private Smith. The President’s response was:
I am saying that I have not formed a view about whether process might have in fact contributed to PTE Smith’s death and whether that process needs to be addressed to make it plainer so that it doesn’t happen in the future, whether there is a systemic problem. But I am not in a position to suggest, or likely to be in a position to suggest that he has directly causative [sic] of that death.
To the extent to which the President might have been seeking to give any assurance to Dr Atkin, this discussion is problematic. The instrument of appointment instructed the President that he was “inquiring into the circumstances surrounding the death of” Private Smith, as specified in that instrument and in the terms of reference to be issued subsequently. Each of the matters specified in the terms of reference, into which the President was to inquire is qualified by phrases such as “materially contributing”, “surrounding”, “materially relevant to”, “proximately associated with” and “have materially contributed to” the death of Private Smith. The Commission of Inquiry was not charged with investigating the adequacy or otherwise of the way in which Private Smith was treated with respect to his PTSD symptoms, unless that treatment, or lack thereof, could be connected in some way to the death. The causal connection that had been postulated, so as to give rise to the need to send notice to Dr Atkin that adverse findings might be made against him, was concerned with the possibility that Private Smith might have been relieved of the duty he was performing when he died, if other steps had been taken in relation to that treatment. Absent that connection, it is difficult to see how the Commission of Inquiry could have been concerning itself with anything to do with the interaction between Private Smith and Dr Atkin. If the President was intending to assure Dr Atkin, through his counsel, on 30 September 2010 that he was satisfied that the causal connection did not exist, it is hard to see why he had not by that stage, or did not soon after, inform Dr Atkin that he was no longer at risk of adverse findings. The statements that the President was not concerned with making findings about blame, that he could not find that Dr Atkin was a cause of the death, and that he was not in a position to suggest that Dr Atkin directly caused the death tend to suggest that the President had resolved the issue of a causal connection favourably to Dr Atkin. The fact that the President did not inform Dr Atkin that he was no longer at risk, coupled with the proposition that the President had not formed a view about whether process might have contributed to Private Smith’s death, suggest to the contrary. As a result, Dr Atkin could not have taken any assurance from the exchange between his counsel and the President on 30 September 2010. In the circumstances, nothing that was said in the course of that exchange ameliorated the harm done by the private communication with Dr Blakley and the subsequent changes to her report.
Nor could the reasonable observer derive any comfort from the reasons given by the President on 17 November 2010. Although he referred to authorities concerning the test for apprehended bias, which involved stating the test correctly, the President proceeded to deal with the matter as if it were a question whether any actual impropriety on his part occurred ([35]-[36]) and whether it was necessary to show that he or Colonel Griffin or both of them had overborne Dr Blakley’s will so that she felt compelled to alter her opinion or give an opinion contrary to her true opinion ([38]). Nothing said in the President’s reasons would be likely to detract from the apprehension in the mind of the reasonable observer as to what had occurred.
There is no doubt that disclosure can overcome what would otherwise be an apprehension of bias in some circumstances. On 30 September 2010, there was disclosure. No doubt due to an oversight, the manner in which the events of 16 September 2010 came to be disclosed were disadvantageous to Dr Atkin and his counsel. The draft report was made available too late to facilitate an appreciation of the changes that had been made in the report from the draft to the final version. When Dr Blakley was recalled to give evidence on 30 September 2010, Colonel Griffin asked her some questions. This was the first time at which the telephone conference was disclosed to the parties represented in the Commission of Inquiry. The disclosure was in no sense complete. Only the alteration to para 15a. of the report was the subject of specific reference. Dr Blakley made brief reference to the clinical notes of Dr Atkins. The President said nothing about the telephone conference. There was nothing like the detail that appears in Colonel Griffin’s affidavit, from his by then imperfect recollection. There was no detail given of the passages in the evidence relating to Dr Atkin’s notes, evidence which counsel for Dr Atkin in this proceeding allege was relayed incompletely to Dr Blakley. Most importantly, there was no reference to the fact that the principle questioner of Dr Blakley during the telephone conference was the President himself, and that it was his questioning that was largely responsible for the changes that were made in the report. It cannot be said that there was a concerted effort to conceal the content of the telephone conference, but it was left to counsel for Dr Atkin to do her best to draw out from Dr Blakley what had occurred in the conference.
The application of the test for apprehended bias
As I have said at [5] above, counsel for the Chief of Defence suggested that the submissions of counsel for Dr Atkin gave rise to two possible ways in which the central issue in this proceeding could be approached. The divergence between the two ways is as to the amount of knowledge possessed by the hypothetical reasonable observer. In particular, it was suggested that the question could be looked at on the basis that the reasonable observer knew nothing about the content of the telephone conference, or on the basis that the observer knew the detail of what had passed between the participants in that conference. In the application of the reasonable observer test, it is usually said that the reasonable observer must be “informed”. This is generally taken to mean that the observer must have at least a basic understanding of the way in which the legal system functions so that the conclusion that there is apprehended bias is not reached too readily on the basis of factors that would suggest bias only to someone unfamiliar with the way in which the system functions. The question of how much factual detail the reasonable observer is said to know has not been the subject of a great deal of authority.
The reasonable observer, acquainted with the nature of the Commission of Inquiry and the reason for Dr Atkin’s participation in it, becoming aware of Dr Blakley’s draft report, the impact of the changes made to that draft in the signed version of the report, and the fact that those changes had resulted from a telephone conference between Dr Blakley, the President and Colonel Griffin, would undoubtedly come to the conclusion that there was a reasonable apprehension of bias on the part of the President. The reasonable observer would understand that there was no necessity for the President to speak to Dr Blakley privately. Such an observer would understand that the effect of the alterations to the report was to provide stronger evidence for the Commission of Inquiry to make findings adverse to Dr Atkin. He or she would take the view that the President might not bring an impartial mind to the making of findings about Dr Atkin, because that strengthening of the evidence had taken place following the private communication. The observer would apprehend that the President may have prejudged the case against Dr Atkin, and may have persuaded Dr Blakley to provide evidence that would assist him in arriving at the predetermined conclusion. The subsequent disclosure that occurred, and the subsequent statements of the President would do nothing to dissuade the reasonable observer from that point of view. Dr Atkin’s case is made out on the basis of the partially informed reasonable observer.
Full information as to the content of the telephone conference would strengthen the reasonable observer’s view as to the apprehension of bias, rather than weaken it. Armed with the evidence that is before the Court about the content of the telephone conference, the observer would know that it was the President himself who was pressing Dr Blakley as to the matters that were the subject of her changes to paras 18, 24 and 26 of her report, the effect of which was to provide the President with a firmer basis for making findings adverse to Dr Atkin. Thus, the observer informed as fully as this Court is would reach the conclusion with even more certainty that there was an apprehension of bias.
On either approach, the Court must find that there was a reasonable apprehension that the President would not approach the question of Dr Atkin’s conduct impartially.
The appropriate order
As I have said, Dr Atkin has sought in the alternative orders having the effect of preventing the President from making findings adverse to Dr Atkin, or orders having the effect of disqualifying the President from continuing with the Commission of Inquiry at all. Counsel for the Chief of Defence has made it clear that, if orders are to be made, they should be restricted to orders of the former kind, so that as much advantage as possible can be taken from the expenditure of considerable funds on the establishment and conduct of the Commission of Inquiry.
There appears to be no reason why the President should be restrained from delivering any report at all in relation to the Commission of Inquiry. At [17] of his reasons dated 17 November 2010, the President expressed the tentative view that he should not, or could not, complete his task without making findings in respect of all of the persons to whom notice had been given that they might be affected by the inquiry. I do not share that view. Any findings that might have been made with respect to Dr Atkin can be separated very clearly from those that might have been made in respect of other persons. Indeed, if the President were disposed to accept the written submission of Colonel Griffin as counsel assisting that a timely medical review may not have removed Private Smith from the vehicle he was commanding at the time of his death, the President will have to confront the question whether he can make any findings at all about medical issues. As I have said at [71] above, if the causal link between medical issues and the presence of Private Smith in the vehicle is not established, there is a real question whether the Commission of Inquiry has been appointed to make findings and recommendations about medical issues at all. If the President takes the view that he should make findings about Dr Atkin’s conduct, and that he cannot complete his task without making those findings, it will be a matter for him to inform the Chief of Defence that he has disqualified himself from completing the inquiry altogether, and not merely to the extent to which the Court restrains him from doing so.
In the application, the relief sought includes declarations, injunctions and writs of prohibition. In my view, in the exercise of the jurisdiction conferred on this Court by s 39B(1) of the Judiciary Act 1903 (Cth), a writ of prohibition is the most appropriate remedy. Such a writ should prohibit no more than is necessary, namely the making and publication in any report of any finding concerning the conduct of Dr Atkin in his dealings with Private Smith.
No reason was advanced, and none appears from the circumstances of the case, why the usual principle, that costs follow the event, should not be applied. It is appropriate to order that the Chief of Defence pay Dr Atkin’s costs of the proceeding.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. Associate:
Dated: 30 May 2011
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