Elton and Repatriation Commission
[2016] AATA 260
•22 April 2016
Elton and Repatriation Commission [2016] AATA 260 (22 April 2016)
Division
VETERANS' APPEALS DIVISION
File Number
2015/2851
Re
Peter Elton
APPLICANT
And
Repatriation Commission
RESPONDENT
INTERLOCUTORY DECISION
Tribunal Miss E A Shanahan, Member
Date 22 April 2016 Place Melbourne The Tribunal refuses to disqualify itself from determining the matter as there is no reasonable apprehension of bias.
........[sgd]....................................
Miss E A Shanahan, Member
APPREHENSION OF BIAS – respondent’s request that expert medical witness be called to refute applicant’s dispersions on his professional conduct – impact on the tribunal member’s approach to the decision and the facts – comments relating only to credit – no substantive or factual basis – rules against bias – no actual bias alleged
Cases
Webb & Hay v R (1994) 181 CLR 41
Johnson v Johnson (2000) 201 CLR 488
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
LA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
Re Walker and Military Rehabilitation and Compensation Commission [2016] AATA 179
JRL, Re; Ex parte CJL; sub nom Renaud, Re; Ex parte CJL (ALJR) (1986) 161 CLR 342
REASONS FOR DECISION
Miss E A Shanahan, Member
22 April 2016
At the completion of the evidence in this matter on 24 March 2016 the parties informed the Tribunal that the applicant’s instructing solicitors had found a copy of an email from the applicant, Mr Elton, to his solicitors’ dated 6 June 2013 (Exhibit A5). He had seen Dr Nigel Strauss for a medico-legal opinion on that day at the request of the respondent.
Mr Elton impugned Dr Strauss’s professional conduct stating he had been rude, aggressive and antagonistic. The transcript records at page 87, on 23 March 2016 the following:
[Mr Purcell] ... - because you talked to Dr Strauss as well didn’t you? — [Mr Elton] ..... Not really.
MEMBER: What do you mean? — [Mr Elton] I had a bit of a problem because – with him and he was very aggressive towards me and very antagonistic from the moment he brought me into his room and he was screaming and yelling at me and so
MEMBER: —Screaming and yelling. Dr Strauss? — [Mr Elton] Nigel Strauss, yes.
MR PURCELL: It’s not the Dr Strauss we know? [Mr Elton] — Yes, and I complained
MEMBER: We’ve never heard him scream and yell? — [Mr Elton] And I must say – I must say that I had friends who have seen him and said he was a fine fellow and I said I don’t understand it but that’s the case. He was yelling and screaming about – he’d say to me, “So what you’re telling me is this?” and I’d say, “No, I’m telling you” – and he’d screamed at me and say, “So what are you telling me” – so I really didn’t want to talk to him very much at all and I complained to my wife straight away. I left there in a complete mess. I wrote to my lawyer making a complaint but there’s no point saying anything about it.
At page 89 of the transcript Mr Elton explained Dr Strauss’s attitude in this manner:
— My comment to my friends was he must have caught someone in bed with wife of the morning because - - -
... — so I’m not castigating his professional integrity with other people. I’m just saying that when it came to my situation with him he was very unpleasant.
The Tribunal was provided with the documentation in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents Exhibit R1). As Mr Elton had not required Dr Strauss for the purposes of cross-examination, the Repatriation Commission (the Commission) had relied on Dr Strauss’s reports of 7 June 2013 and 17 September 2013 contained in the T-documents at T18 and T24 respectively. At the time of his evidence Mr Elton had stated that he had sent an email to his instructing solicitors’ immediately after his consultation with Dr Strauss but to his knowledge a copy of this was not available. The email was presented to the Tribunal on 24 March, and the debate again was again activated.
Ms Ryan, counsel for the Applicant, argued that the issue regarding Dr Strauss and Mr Elton’s statements regarding the consultation only went to the matter of credit, and only to the credit of Mr Elton’s perceptions. She argued that rebutting evidence is not permissible on a matter going only to credit as it routinely occurs in cases where a plaintiff or an injured worker will say in the witness box, well I did not tell the doctor this because I didn’t much like him. She concluded that it was unnecessary to call Dr Strauss to respond only to comments going to his credit and that she would not make any submissions on that issue. She also argued that Dr Strauss’s opinion shouldn’t be accorded less weight as a result of Mr Elton’s perceptions. Ms Ryan confirmed Mr Elton’s complaint involved no attack on Dr Strauss and had no bearing on the Tribunal’s findings regarding Dr Strauss’s opinion.
In response Mr Purcell, counsel for the Commission, argued that when an applicant made unprovoked comments from the witness box attacking an expert this might give the appearance of having some impact on the decision of the Tribunal and therefore raises the test of a reasonable apprehension of bias. While Mr Purcell stated he was reluctant to call Dr Strauss, he identified another element to the issue; the Tribunal’s duty to protect those who came to give evidence in proceedings, such comments impacting on their professional status to the level that bodies such as the Repatriation Commission might cease to use their services. Mr Purcell favoured the option of supplying Dr Strauss with the transcript of the hearing and then calling him before the Tribunal to address Mr Elton’s perceptions, or in the alternative for the Tribunal to make a categorical statement that it is not affected by this material.
The Tribunal determined to consider both parties contentions over the luncheon break and to make a decision as to whether to adjourn or proceed.
On resumption of the hearing the Tribunal informed the parties that it had determined to proceed and not adjourn the hearing, and would consider the question of apprehension of bias as a preliminary to the decision in the matter.
Ms Ryan proceeded to make her submissions, following which Mr Purcell made a formal application for the Tribunal to disqualify itself of the grounds of reasonable apprehension and [sic] bias (Transcript page 176). Mr Purcell restated his reasons for the application as threefold. First, that the Commission had been disadvantaged by not having called Dr Strauss to give evidence. Secondly, that Dr Strauss’s opinion was important as to the question of diagnosis, particularly as he had found no evidence of a psychiatric disorder. This, Mr Purcell argued, put the Tribunal in an invidious (this is the term used by Mr Purcell and thus should be restored) position of having to evaluate the weight to be given to Dr Strauss’s reports in the face of personal criticisms affecting his professional capacity and his impartiality. The third element, as described above in paragraph 4, is the Tribunal’s duty to witnesses to provide some form of protection against personal criticism or attacks of the extent delivered by Mr Elton in this matter.
In Dr Strauss’s case the only way he could deal with these aspersions relating to his professional performance is for him to be given the opportunity, having read the transcript, to respond.
Mr Purcell offered no criticism to the Tribunal that, as he said, was caught in the position because of the way the witness behaved (Transcript page 177). Mr Purcell referred the Tribunal to decisions of the High Court on the question of apprehension of bias but did not make any particular citations.
ESTABLISHED PRINCIPLES RELATING TO THE APPREHENSION OF BIAS
In Webb & Hay v R (1994) 181 CLR 41 Deane J outlined for distinct but overlapping categories stating at 74:
The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at 344:
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), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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.
Their Honours went on to explain the two steps to be taken in the application of this principle. They said:
First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
In Johnson v Johnson (2000) 201 CLR 488, Kirby J at 508 in relation to the concept of the fair minded lay observer said:
Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.
In Johnson’s case the majority went on to state:
... Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
Kirby J at 508 further commented on the fictitious bystander saying:
... Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
In JRL, Re; Ex parte CJL; sub nom Renaud, Re; Ex parte CJL (ALJR) (1986) 161 CLR 342, Mason J (as he then was), cautioned as follows:
... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
TRIBUNAL’S CONSIDERATIONS
The first step identified by the High Court in Ebner is the:
... identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits.
And secondly, what is said to be:
... the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
Mr Purcell has submitted that Mr Elton’s evidence and comments with regard to his consultation with Dr Strauss on 6 June 2013 (as reported on 7 June 2013), and his assertion that Dr Strauss’s conduct was unprofessional, necessitated Dr Strauss being called to address these assertions and in failing to do so the Tribunal raises the apprehension of bias.
The Tribunal does not consider Mr Purcell’s arguments in relation to disadvantage to the Commission or the Tribunal’s duty to protect witnesses go to the question raised by step one of Ebner, that is, to decide the matters on other than its legal and factual merits. It may relate to an argument regarding procedural fairness, but this argument was not raised except in passing.
As the transcript shows, the Tribunal expressed its surprise concerning Mr Elton’s description of Dr Strauss screaming and yelling at him (Transcript page 87, lines 35 and 40). In the Tribunal’s experience Dr Strauss has never been accused of screaming and yelling. Dr Strauss has given psychiatric evidence in matters before this Tribunal for nearly 20 years, both as an independent medical expert and as a treating psychiatrist. His assessments of applicants has to this Tribunal’s knowledge always been based purely on the medical history and evidence, devoid of any influence arising from the source of his instruction be it the respondent or the applicant. Dr Strauss’s reputation within the psychiatric speciality is sound and he (in concert with Doctor Epstein and Associate Professor Mendelson) has authored several psychiatric impairment guides used in Victorian and South Australian Tribunals and Courts.
The Tribunal had given serious consideration to adjourning the hearing and calling Dr Strauss to address the aspersions on his professional conduct raised by Mr Elton, but given the two and a half year lapse of time since Dr Strauss saw Mr Elton, the demand on Dr Strauss’s time and his reputation within the profession and with this Tribunal has led to my decision not to do so.
Mr Elton had made negative comments about the content of the reports of Dr Velakoulis, Dr Horsley and that of his treating psychiatrist Dr Collier in relation to entries in their reports that were contrary to what he claimed to have told them (Transcript page 85). Mr Elton described these conflicting reports as being due to errors on the part of the various doctors.
Mr Elton challenged the attitude of Mr Purcell, the Veterans’ Review Board and that of Colonel Regan (Transcript page 25, September 25, 2012). Mr Elton described Mr Purcell’s questions as being unreliable (Transcript page 105) and later as being untruthful and not toward justice or reality (Transcript page 106, lines 1 & 2).
Applying the fair-minded lay observer test the Tribunal finds that an appropriately informed lay observer would not reasonably apprehend that the Court (here Tribunal) might not bring a fair, impartial and independent mind to the determination on its merits. (LA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 (10 March 2016)).
The Tribunal declines the application to recuse itself.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member..........[sgd]...........................................
Associate
Dated 22 April 2016
Date(s) of hearing 24/03/2016 Counsel for the Applicant Fiona Ryan Solicitors for the Applicant Peter Elton Counsel for the Respondent Gerald Purcell
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