Bonser and Australian Postal Corporation

[2004] AATA 1196

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1196

ADMINISTRATIVE APPEALS TRIBUNAL      )              Nos. N1999/691;766;785;1692

)  

GENERAL ADMINISTRATIVE DIVISION )

Re DOMINIC BONSER

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date4 November 2004

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL      )          Nos.   N1999/691;766;785;1692

)  

GENERAL ADMINISTRATIVE DIVISION )            

Re DOMINIC BONSER

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DIRECTION

Tribunal              Senior Member M D Allen

Date  4 November 2004

Place                   Sydney

DecisionUpon hearing Mr Hanlon of Counsel for the Applicant and the solicitor for the Respondent, I DIRECT THAT this matter proceed to hearing before me on 23 and 24 November 2004.

(Sgd) M.D. ALLEN
  ..................................................
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE: application for the disqualification of presiding member due to apprehended bias to the Applicant – application refused.

Vakauta v Kelly (1989) 167 CLR 568

Grassby v R (1989) 87 ALR 618.

REASONS FOR DECISION

1. At the conclusion of the directions hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Signed:         (E.Pope)
          ..................................................................................……………………………….

Associate

Date of Directions Hearing         4 November 2004

Date of Decision  4 November 2004

Counsel for Applicant                  Mr Hanlon

Solicitor for Applicant                  Etheringtons Solicitors

Solicitor for Respondent            Forners Solicitors

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
By SENIOR MEMBER ALLEN
Matter Nos N1999/691;766;785;1692
BONSER AND AUSTRALIAN POSTAL CORPORATION
SYDNEY, THURSDAY, 4 NOVEMBER 2004

MR ALLEN:   In this matter I do not intend to disqualify myself.  I have taken into account everything that has been said by Mr Hanlon for the Applicant, in particular the references to Vakauta v Kelly (1989) 167 CLR 568, especially the judgment of Dawson J commencing at page 637. But I also refer to the case of Grassby v R (1989) 87 ALR 618 especially at 631.

The comments of which the Applicant's solicitors complain are first of all, “a fit of the vapours”, I concede that it was probably an unfortunate comment at the time, however, I do not consider it standing by itself or with anything else as indicative of the view I would ultimately take as to the matter.  So far as the comments on the 3 June 2004 are concerned these were made in an effort to progress the matter. 

I do not resile from the fact that I found some difficulties with the report from St John of God Hospital, indeed, I have added to those comments today and I consider, that in my experience sitting in this Tribunal, that the qualifications and experience of some of the practitioners at St John of God Hospital are not to the extent as other psychiatrists who have an established forensic practice. That as it may be, obviously such reports have to be taken into account as being those of a treating medical practitioner.  Adding, of course, that sometimes a treating medical practitioner is not the best judge of what is actually the condition from which any Applicant suffers.

That having been said however, my comments were made in an effort to progress the matter.  Another comment was that of saying to the solicitor for the Applicant, “you may be better off without him”. Those comments were made having regard to the cross‑examination that had taken place of the Applicant.  If he is not present he cannot be cross‑examined because as far as I was concerned, given the cross‑examination I had heard to that date, he had not fared well in cross-examination.  The matter must now proceed on the reports. It would seem that the Applicant is at least capable of giving instructions but not capable of appearing to be cross-examined. 

In those situations if he can give instructions then the matter should proceed because when one looks at when this matter originally commenced a considerable amount of time has elapsed, it is unfair, particularly to the respondent, that a matter should be part heard for such a lengthy period of time and given the medical reports there is no reason, as I see it, why it cannot proceed on the basis of such medical reports as the parties wish to put before me.  The only reference I would make to Vakauta v Kelly, (supra), is as was said by Brennan, Deane and Gaudron JJ at page 636 of the Australian Law Reports version where they added:

While, as we have indicated, the line between comments which would be likely to

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have that effect, comments which would not, is necessarily an imprecise one.  We have come to the conclusion that when they are read in the context of what was said in the course of the trial His Honour's comments in his judgment fall on the wrong side of that line.

In other words they based their decision, as I can see it, by having regard to comments in the judgment which were also somewhat scathing of the particular medical specialists involved.  At this stage my comments were made in interlocutory proceedings, they are not my final concluded comments.  I have indicated, as I said, I have certain difficulties and I do not regard that as going too far but will not disqualify myself for bias and the matter should proceed on the date set.

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©Auscript Australasia Pty Ltd 2004