Hickey and Australian Postal Corporation (Compensation)
[2020] AATA 2646
•24 July 2020
Hickey and Australian Postal Corporation (Compensation) [2020] AATA 2646 (24 July 2020)
Division:GENERAL DIVISION
File Number(s): 2015/3786
Re:Kim Francis Hickey
APPLICANT
AndAustralian Postal Corporation
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:24 July 2020
Place:Perth
The matter is remitted to Member L M Gallagher for reconsideration.
.....................................[SGD]................................
Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – remittal following appeal – constitution to tribunal as previously constituted – President’s Direction – no reasonable apprehension of bias – appropriate test – factors in favour of constituting matter to tribunal as previously constituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 34J, 34J(b)
CASES
Comcare v Broadhurst (2011) 192 FCR 497
Comcare v Drinkwater [2018] FCAFC 62
Dimitropoulos and Australian Securities and Investments Commission [2019] AATA 1350
Dye v Commonwealth Securities Ltd (No 4) [2010] FCA 910
Hickey and Australian Postal Corporation [2018] AATA 3930
Lock and Comcare [2018] AATA 2386
Meaney and Comcare [2013] AATA 299Webb v R (1994) 122 ALR 41
SECONDARY MATERIALS
President’s Direction dated 14 July 2015 – Part 6
REASONS FOR DECISION
Deputy President Boyle
24 July 2020
BACKGROUND
The substantive application in this matter was heard by Member L M Gallagher on 20, 21 and 22 June 2017 and 12, 13 and 14 December 2017. It was heard at the same time as matter 2015/0729. Written closing submissions were provided by the parties in February and March 2018. Further submissions were made by the parties in June 2018 addressing the Full Court judgment in Comcare v Drinkwater[1] (Drinkwater) which was delivered in April 2018.
[1] [2018] FCAFC 62.
By decision dated 18 October 2018 (Hickey and Australian Postal Corporation[2] (Hickey)) Member Gallagher:
(a)in relation to Application 2015/0729; affirmed the decision under review; and
(b)in relation to Application 2015/3786; found that she did not have jurisdiction to review the decision.
[2] [2018] AATA 3930.
In coming to the conclusion that she had no jurisdiction to review the decision the subject of matter 2015/3786, Member Gallagher had applied the reasoning applied by the Tribunal in Lock and Comcare[3] (Lock). The decision in Lock was handed down on 23 July 2018. The basis of Member Gallagher’s reasoning is set out at [77] of the decision in Hickey as follows:
77.However, what concerns the Tribunal in Application 2015/3786 is that the decision under review was made in the absence of:
(a) any specific claim for entitlement to compensation under sections 16 or 19 of the SRC Act to which the relevant determination has responded (refer in particular to paragraphs 11 to 15 above); or
(b) any entitlement to compensation under sections 16 or 19 of the SRC Act that was being paid at the time of the relevant determination, that had been the subject of a previous claim and determination in Mr Hickey’s favour (on which, in the present case, there is no evidence and no suggestion by either party that this was ever the case).
[3] [2018] AATA 2386.
Member Gallagher then referred to [77]-[87] of the decision in Lock and concluded (at [78]) that, as in Lock, because no relevant claim for compensation had been made by the applicant, there was no reviewable decision for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) and therefore no jurisdiction on the part of the Tribunal.
On 13 November 2018 the applicant filed a notice of appeal from the Tribunal’s decision in AAT Application 2015/3786. The applicant did not appeal from the Tribunal’s decision in AAT Application 2015/0729.
On 2 December 2019, with the consent of the parties, the Federal Court (Stewart J) made orders to the following effect.
(i)The appeal from the Tribunal's decision in Application 2015/3786 is allowed.
(ii)That decision of the Tribunal is set aside.
(iii)The matter in Application 2015/3786 is remitted to the Tribunal for reconsideration according to law in light of the parties’ agreed notes (see [7] below).
(iv)The cross-appeal is dismissed.
(v)The respondent is to pay the applicant's reasonable costs as between party and party of the appeal and cross-appeal, to be agreed or taxed.
The agreed notes included in the orders made on 2 December 2019 were as follows:
The parties agree that a question of law arises from the Tribunal's decision in Application 2015/3786. The parties further agree that the Tribunal erred in law, and that such error vitiated its decision in Application 2015/3786. A succinct statement of the parties’ agreement as to the matters justifying the making of the proposed
consent orders follows:
1.In Application 2015/3786, the Tribunal decided that it did not have jurisdiction to review the respondent's decision dated 30 June 2015.
2.The Tribunal made that decision because it was "not satisfied" that it had jurisdiction to review the respondent's decision dated 30 June 2015.
In that respect, the Tribunal found that:
a) the applicant had not claimed any present entitlement to compensation under ss 16 or 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) as at the date of a determination dated 15 January 2015, being the determination which was "affirmed" by the respondent's decision dated 30 June 2015 (reasons at [79]); and
b) there was no evidence before, nor submission made to, the Tribunal that the respondent had previously made a determination of the applicant's entitlements under ss 16 or 19 of the Act (reasons at [79]).
3.However, the Tribunal made those findings in circumstances where:
a) neither party had raised the above jurisdiction point nor had been given notice of it by the Tribunal;
b) the above jurisdiction point was amenable both to further submissions and to further evidence, which reasonably could have led the Tribunal to make a different decision.
4. The Tribunal denied the applicant procedural fairness in the circumstances.
5. Accordingly, the decision of the Tribunal must be set aside and the matter remitted to it for reconsideration according to law.
On 12 February 2020, I made orders that the parties file submissions and evidence regarding the Tribunal’s jurisdiction to review the decision in matter 2015/3786 (the matter). Submissions were filed by the parties. Both contended that the Tribunal did have jurisdiction to review the decision in the matter, and on 1 April 2020 I found that the Tribunal did have jurisdiction. In advising of that finding I sought from the parties submissions as to the constitution of the Tribunal to determine the matter. Submissions have been filed by both parties.
The applicant’s submissions
The applicant’s submissions, dated 20 April 2020, are to the following effect:
(a)The Tribunal should be constituted by a member other than Member Gallagher.
(b)The applications dealt with by Member Gallagher were for:
(i)a back injury sustained in 1993. Liability had been accepted, however, in June 2015 the respondent determined that there was no present liability (2016/3786);
(ii)a psychiatric injury sustained as a result of the accumulation of stressors (20215/0729).
(c)
Both applications were heard over six days in June and November 2017.
Closing submissions were filed by the parties in February and March 2018.
By agreement of the parties, the decision was delayed so that the Tribunal could consider the Full Court decision in Drinkwater which was relevant to the applicant’s psychiatric claim. Further submissions on that case were filed by the parties in June 2018.
(d)On 23 July 2018 the decision in Lock and Comcare (Lock) was handed down and in October 2018 the decision in Weston and Cleanaway Operations Pty Ltd [2018] AATA 3740 (Weston) was handed down.
(e)Member Gallagher handed down her decision in Hickey on 18 October 2018 (see [2] above).
(f)At no stage (during or after the hearing) was it ever raised that the Tribunal did not have jurisdiction to determine the application in respect of the applicant’s back-injury claim, nor was it suggested that the applicant had not made a valid claim for compensation as a result of his back injury.
(g)The basis of the applicant’s appeal to the Federal Court was that he had been denied a reasonable opportunity to present his case and that it is a fundamental rule of the fair hearing doctrine that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided.
(h)The appeal was resolved by consent. The respondent agreed that the Tribunal had denied the applicant procedural fairness.
(i)The applicant refers to paragraphs 4 and 6 of the President’s Direction relating to constituting the Tribunal and submits that there is a broad range of discretionary factors for the Tribunal to consider.
(j)The applicant submits that the Tribunal should be differently constituted because:
(i)A real question of apprehended bias may arise if the case were heard and decided again by the previously constituted Tribunal; and
(ii)The nature of the error of law which affected the original decision indicates that the case should be heard and decided again by a differently constituted Tribunal.
Apprehended bias
(k)The applicant “holds an apprehension of bias, in that he believes that a rehearing will be worthless if his application is reheard by the previously constituted Tribunal” and that the question is “whether [the applicant’s] apprehension of bias is reasonable, such that the Tribunal should be differently constituted”.
(l)The applicant says that the test of reasonable apprehension of bias is “whether, in all the circumstances, a fair minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question in issue: Webb v R (1994) 122 ALR 41 at 59-60”.
(m)The above test applies in the Tribunal, citing Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal & Anor (1990) 26 FCR 39 at 43 (Northern NSW FM).
(n)The decision of Blackman v Commissioner of Taxation (1993) 43 FCR 449 at 459 confirmed that the usual case is that matters remitted to the Tribunal are heard and decided by a Tribunal differently constituted. That approach was further confirmed in Industry Research and Development Board v IMT Ltd [2001] FCA 85 at [40].
(o)
The applicant says that his apprehension of bias is reasonable because
Member Gallagher did not simply fall into a legal error or mistake of fact, she denied the applicant a fair hearing. On this basis alone it is “reasonable to conclude that a fair minded [sic] lay observer might entertain a reasonable apprehension that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question in issue, a second time around”.
(p)The denial of procedural fairness in this matter was “more than apparent, and multiple opportunities to remedy the denial of procedural fairness were overlooked”.
(q)“Noting that the denial of procedural fairness was more than apparent, and that several opportunities to remedy the denial of procedural fairness were overlooked, it is reasonable to conclude that a fair minded lay observer might entertain a reasonable apprehension that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question in issue, a second time around.” The “opportunities to remedy the denial” identified are:
a. at the hearing
b. in the context of the closing submissions
c. after the decision in Lock
d. after the decision in Weston (a decision of the Tribunal in which Lock is discussed and clarified)
e. prior to handing down the decision.
(r)Member Gallagher made comments in her decision that were unnecessary or unfair which would cause a reasonable observer to “entertain a reasonable apprehension”. The only comment identified by the applicant is the statement in the decision that “it ‘remained unclear’ as to what the parties considered the issues for determination were (Reasons [75])”.
(s)Member Gallagher went on the observe that if she was wrong on the question of jurisdiction, then she would have affirmed the decision under review because she did not consider that the applicant had made a claim.
Convenience and expense
(t)The matter can be determined by the Tribunal differently constituted, "on the papers", having regard to the evidence filed in the proceedings, the transcript of the hearing and consideration of the parties' written submissions.
(u)The applicant concedes that reconstitution of the Tribunal will cause the Tribunal some inconvenience, but says that that inconvenience will be minimal, given that the rehearing can occur "on the papers" and the Tribunal need only review the material relating to the applicant's back injury claim.
(v)The benefit of the Tribunal as previously constituted having had the opportunity to hear the evidence in person and evaluate the demeanour of the various witnesses is, given the effluxion of time, greatly diminished. The Tribunal as previously constituted could not be expected to have a fresh recollection of the evidence in the hearing in 2017.
The respondent’s submissions
The respondent’s submissions dated 26 June 2020 are to the following effect:
(a)The respondent’s position is that the Tribunal ought properly to be constituted by Member Gallagher.
(b)A fair reading of the applicant’s submissions is that the apprehension of bias is only his personal perception, and a belated one at that. No “reasonable” apprehension of bias is established.
(c)The respondent disagrees with the manner in which the “background” and “the appeal” are cast in the applicant’s submissions. The applicant’s assertion that “at no stage did the Member or [the respondent] suggest that the AAT did not have jurisdiction to review the [respondent’s] decision in respect of Mr Hickey’s back claim” incorrectly characterises or overstates the relevant factual history because:
(i)The respondent could not have raised the question of the Tribunal’s jurisdiction based on Lock as an issue during the hearing or in its closing submissions for the simple reason that Lock had not been decided at the relevant point in time.
(ii)To the extent to which the applicant asserts that the respondent could have raised the decision in Lock as a matter for consideration after it was published, the applicant could have sought a further opportunity to be heard on Lock as a matter which could have affected the outcome of his case.
(iii)Accordingly, no apprehension of “bias” on the part of the Tribunal can be said to emerge from the respondent not raising Lock as a matter for consideration.
Grounds of appeal to the Federal Court
(d)The grounds of the applicant’s appeal raised the following broad issues:
(i)an alleged denial of procedural fairness or natural justice, on the basis that neither party raised the jurisdictional issues arising from Lock, nor had they been given notice of that contingency by the Tribunal; and
(ii)
an alleged misapplication of the decision in Lock on the basis that the
T-documents and supplementary T-documents demonstrated claims for benefits under the SRC Act.(e)Critically, however, the applicant did not raise any allegation in his notice of appeal as to whether a “reasonable apprehension of bias” might have existed in the circumstances:
(i)
In what was a principally a “procedural fairness” or “natural justice” appeal, the question of whether it might reasonably have been apprehended that the Tribunal was biased in handling the applicant’s matter was a matter which ought to have been raised in his notice of appeal filed pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) citing Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [8] (Gray ACJ and North J); Kara v Comcare [2011] FCA 951 at [27] (Lander J);
s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)
(ii)The fact that the applicant did not raise the question of whether it might reasonably have been apprehended that the Tribunal was biased tells strongly against any conclusion that such a question was, or ever could have been, a “real issue” in dispute between the parties (Cf ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth)).
(iii)In any event, the applicant’s allegations as to a “reasonable apprehension of bias” may only properly be characterised as belated ones.
President’s Direction dated 14 July 2015
(f)The respondent cites Part 6 of the President’s direction dated 14 July 2015 (the President’s Direction) which relevantly provides:
6.1 Where a court orders that a case be remitted to the Tribunal, unless the court has ordered that the Tribunal be differently constituted, the President or the relevant Division Head will determine whether the case is to be heard and decided again by the Tribunal as previously constituted or by a differently constituted Tribunal.
6.2 In general, the President or the Division Head will direct that a case be remitted to the Tribunal as previously constituted unless the circumstances indicate that it would be preferable for the Tribunal to be differently constituted. Remitting a case to the Tribunal as previously constituted will usually cause it to be finalised more expeditiously, less expensively and more efficiently than before a differently constituted Tribunal.
6.3 In deciding whether a case should be remitted to the Tribunal as previously constituted or to a differently constituted Tribunal, matters to which the President or the Division Head will have regard include:
(a) whether the member or members who previously constituted the Tribunal is or are available to hear and decide the case again within a reasonable period of time;
(b) whether a real question of actual or apprehended bias may arise if the case were heard and decided again by the previously constituted Tribunal;
(c) whether the nature of the error of law which affected the original decision indicates that the case should be heard and decided again by a differently constituted Tribunal;
(d) any recommendation made by the court as to how the Tribunal should be constituted when it hears and decides the case again.
(g)The President’s Direction establishes the norm or a general position. The approach finds support in, not only the rationale provided in the President’s Direction at [6.2], but also in the Tribunal’s objective and procedures as provided by ss 2A and 33(1)(b) of the AAT Act.
(h)Reliance cannot be placed, as the applicant does, on the comments made by Davies J in Northern NSW FM because those comments applied to the Australian Broadcasting Corporation, not the Tribunal, and were made at a time prior to the insertion of s 2A into the AAT Act and the making of the President’s Direction dated 14 July 2015. Further, Davies J’s comments are inconsistent with the subsequent authorities and case law cited by the respondent which support the approach described in Part 6 of the President’s Direction.
(i)The respondent refers to Allan and Repatriation Commission [2003] AATA 994 in which the Tribunal distinguished Northern NSW FM. In Allan President (Downes J) said:
15. … Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42 is often cited in support of a claim that a matter remitted by the Federal Court for rehearing in the Tribunal should be heard by a tribunal differently constituted. However, Northern NSW FM was not an appeal from the Administrative Appeals Tribunal but an appeal from the Australian Broadcasting Tribunal. Further, the Court recognised that there are occasions when it would be appropriate for the Australian Broadcasting Tribunal to rehear a matter constituted as it was for the first hearing. I note that in a number of cases in the Federal Court, both before and since Northern NSW FM, observations have been made that a matter remitted to the Tribunal should or could be heard by the tribunal constituted as it was for the first hearing or that it was more appropriate for the President of the Tribunal to make the determination…
16. The rehearing of a matter remitted after appeal by the Tribunal constituted as it was for the first hearing will usually result in the matter being finally disposed of more expeditiously, less expensively and more efficiently than before a differently constituted Tribunal. This would seem to accord with the legislative direction to the Tribunal given in par 33(1)(b) of the Act…
(j)The respondent refers to Comcare v Broadhurst (2011) 192 FCR 497 (Broadhurst) and submits that in that case the Full Court of the Federal Court of Australia rejected the proposition that, for justice to be seen to be done, the usual case is that matters remitted to the Tribunal should heard and decided by a differently constituted Tribunal. The Court effectively confined Northern NSW FM to its particular circumstances citing the comments of Downes J that:
30. The rehearing of matters remitted to the Tribunal is to be distinguished from the rehearing of matters remitted by an appellate court to a trial court. In the former case an appeal can be allowed only on a question of law. Most appeals in the latter category will be re-hearings where all issues are open, including findings of fact. Reversal on a question of law will rarely justify a rehearing by a Tribunal differently constituted.
31. A rehearing before a Tribunal differently constituted will inevitably be more expensive, both to the parties and to the Commonwealth. Except in a clear case the interests of justice and the statutory requirements will generally best be served by a hearing before the Tribunal constituted as it was originally.
32. Practical matters such as the workload of the Tribunal and its members, as well as other similar matters, will also be relevant to how the Tribunal should be constituted for a matter remitted for further hearing.
(k)The respondent then refers the comments of Tracey and Flick JJ at [89]-[91] of Broadhurst and says that, to the extent to which the Full Court’s judgment might be said to support the applicant’s position (which is denied), it should be noted that Broadhurst was decided before the President’s Direction was issued.
(l)An error of law does not, in and of itself, give rise to a question of actual or apprehended bias. The respondent cites the decision of President Kerr (as he then was) in Meaney and Comcare [2013] AATA 299 (Meaney) wherein, commenting on the then Guidelines for Constituting the Tribunal dated 14 November 2011, which relevantly are of similar wording to the current President’s Direction, the then President said:
16. If the Guidelines established by Justice Downes are understood as giving rise to a real question of actual or apprehended bias whenever a previously constituted Tribunal has made findings of fact but has erred in law such that the matter has been remitted by the Federal Court to be ‘determined according to law’ it would entirely undermine the public policy reasons favouring expedition, reduction of expense and efficiency underlying those principles. In my opinion, it is a fallacy to elide proposition (a) that a member of the Tribunal has made an error of law or reasoning that has been identified by the Federal Court requiring the decision be remitted with proposition (b) that the member is to be automatically to be suspected of bias if the same member rehears the matter.
Whether a real question of actual or apprehended bias arises
(m)The applicant did not identify apprehended bias as basis for his appeal to the Federal Court, nor did the parties identify apprehended bias as a matter justifying the making of the consent orders dated 2 December 2019 (see [7] above).
(n)The applicant’s submissions on the constitution of the Tribunal assert that “this is a case of reasonable apprehended bias” on the basis that he was denied procedural fairness. This misunderstands the relevant legal principles and, in so doing, ultimately concedes the point which he seeks to make because:
(i)a denial of procedural fairness gives rise to an “error of law” capable of correction pursuant to s 44(1) of the AAT Act: Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [8] (Gray ACJ and North J).
(ii)Without having relied on or established a “reasonable apprehension of bias” in his appeal to the Federal Court, the applicant cannot now say that this is “not a matter where the Tribunal … simply fell into error by way of error of law”. That was purely a technical error to which neither actual nor apprehended bias may be attributed in the circumstances.
(iii)It is unreasonable for the applicant to assert that the Tribunal or the parties could have raised the Lock issues of jurisdiction at the hearing when Lock was not handed down at that point in time. Further, were it not for his provision of further evidence in his appeal and again before the Tribunal on remittal, the applicant would not have been able to establish an actionable denial of procedural fairness.
(o)There are no aspects of Member Gallagher’s reasons for decision which could give rise to a reasonable apprehension of bias. As set out above, the error made by the Tribunal was purely procedural or technical. Such an error, without more, does not give rise to a conclusion that the Member would be incapable of bringing an unprejudiced or impartial mind to determining the matter on remittal. On the contrary, the error was one which was made before the Member was required to consider the merits (if any) of the case.
(p)There is nothing in Member Gallagher’s reasons which could be said to take the matter outside the ordinary “error of law” case.
(q)The error of law identified essentially relate to a classic or simple denial of procedural fairness. The fact that the applicant was not expressly invited by the Tribunal to be heard, or provide further evidence, in relation to Lock does not suggest a want of impartiality.
(r)The applicant could have (similar to the respondent in respect of Drinkwater) approached the Tribunal upon publication of its decision in Lock on 23 July 2018, and requested leave to reopen and make further submissions, noting that Member Gallagher did not publish her reasons for decision until 18 October 2018. At that level, the applicant was himself partly responsible for the error made by the Tribunal.
Convenience and expense
(s)This is not a case which lends itself to determination “on the papers”. For such an approach to be taken, the parties would both need to consent under s 34J(b) of the AAT Act. The respondent does not consent to such a course, and it is not obliged to give reasons for doing so.
(t)There has been a large volume of medical records/reports submitted, which Member Gallagher would have already considered in advance of and during the previous hearing and Member Gallagher also had the benefit of observing the oral evidence of the relevant witnesses at the hearing, and has already had an opportunity to review the transcript and her own contemporaneous notes of the hearing. She did so in publishing the earlier decision.
(u)A differently constituted Tribunal would need to again consider the numerous medical reports/records and lengthy transcript. The Tribunal may then need to hear the matter, given the limitations in s 34J of the AAT Act and otherwise. That is likely to cause inconvenience and expense, particularly to the Commonwealth and the parties.
(v)Member Gallagher would be in the best position to simply proceed to make a decision. That would not technically be “on the papers”, as the Member has already heard the matter. But it would be as near as possible to so proceeding, given only Member Gallagher would be able to proceed without any further evidence or hearing any further submissions from the parties: cf s 34J of the AAT Act.
(w)
Further, there are likely to have been observations made by Member Gallagher during the course of the hearing which would not be apparent from the transcript. For example, an expert relied on by the respondent used a model to explain the pathophysiology of the spine as relevant to the applicant’s lower back claim.
That live experience would not translate fully through the written transcript of proceedings and would put any other member hearing the matter at a comparative disadvantage. Any recollection (scant or otherwise) of that evidence by
Member Gallagher would put her at a comparative advantage to a new member considering the matter purely “on the papers” or entirely afresh.
CONSIDERATION
The core of the applicant’s argument is set out at [9(j)] above (from paragraph 23 of the applicant’s submissions). It is that:
(a)A real question of apprehended bias may arise if the case were heard and decided again by the previously constituted Tribunal; and
(b)The nature of the error of law which affected the original decision indicates that the case should be heard and decided again by a differently constituted Tribunal.
Before I look at whether the applicant has made out the core of his argument as identified above, I think that it is important to address the assertion by the applicant (paragraph 30 of his submissions – see [9(n)] above) that “the usual case is that matters remitted to the Tribunal are heard and decided by a Tribunal differently constituted”. The problem with that statement is that, firstly, it is simply not the case, and, secondly, it is clearly contrary to paragraph 6.2 of the President’s Direction, which the applicant himself cites. That direction says that “In general, the President …will direct that a case be remitted to the Tribunal as previously constituted unless the circumstances indicate that it would be preferable for the Tribunal to be differently constituted”. The applicant provides no proper justification for his assertion that the “usual case” is to constitute the remitted matter to a differently constituted Tribunal notwithstanding the President’s Direction saying the opposite.
As the respondent notes, the cases to which the applicant refers in this regard are cases that either pre-date the President’s Direction, or simply fail to address it. The correct position is as stated by Downs J in Broadhurst (see [10(j)] above) and President Kerr in Meaney (see [10(l)] above). The norm, or general position, is that, unless there are reasons why it should not be so constituted, a matter on remittal will be constituted to the same member who heard the matter originally.
The applicant argues that the Tribunal should be differently constituted for the reasons set out in [11] above. The second point, the nature of the error, presumably goes to substantiate the first point, that there is a reasonable apprehension of bias.
The applicant’s argument is unconvincing. He argues, in effect, that the appeal being remitted, by consent, on an error of law, in this case being that the applicant had been denied procedural fairness, gives rise to an apprehension of bias. As the respondent points out, however, the fact that there has been a technical denial of procedural fairness because of a procedural error, does not of itself, give rise to any reasonable apprehension of bias. A technical error of that type, without more, does not give rise to a conclusion that the member would be incapable of bringing an unprejudiced or impartial mind to determining the matter on remittal.
The applicant seems to argue (paragraph 35 and 36 of his submissions) that the apprehension of bias arises because, according to the applicant, there were multiple opportunities to remedy the denial of procedural fairness (see [9(q)] above). He argues that Member Gallagher could have/should have raised the issue with the applicant on one or more of five identified occasions. As the applicant himself notes, Member Gallagher’s decision in relation to jurisdiction was based on the decision in Lock which was handed down on 23 July 2018. Two of the five occasions when, according to the applicant,
Member Gallagher should have sought submissions from the applicant on the issue of jurisdiction, were before the decision in Lock was handed down. Clearly Member Gallagher could not have sought submissions from the applicant on the jurisdictional issue raised by the decision in Lock before the decision in that matter was handed down.
In any event, the procedural error that the parties agreed had been committed by
Member Gallagher was a failure to allow the applicant to make submissions as to jurisdiction prior to her making her decision, in effect the fifth opportunity identified by the applicant. Identifying particular times or events in the period prior to her making her decision
(only three of which occurred after the decision in Lock was handed down and one of which encompasses the other four) as being times when Member Gallagher could have/should have afforded the applicant the opportunity to make submissions on jurisdiction, is non sequitur. Member Gallagher did not fail to do something on three, or even five, separate occasions, she simply failed to afford the opportunity to the applicant to make submissions on jurisdiction prior to making her decision. To point to events during the period leading up to her making her decision does not change the nature or consequences of the failure to allow the applicant the opportunity to make submissions on jurisdiction prior to making her decision. It was a single failure. It certainly does not, as the applicant seems to suggest, elevate the failure to somehow evidence of bias or giving rise to a reasonable apprehension of bias.
Is there a reasonable apprehension of bias?
The applicant’s submissions start with the proposition that the applicant himself “holds an apprehension of bias” (paragraph 24) and then posits that his apprehension of bias is reasonable (paragraph 25).
The test, however, as the applicant identifies at paragraph 26 of his submissions,
is whether, in all the circumstances, a fair minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question in issue, citing Webb v R[4] at 95-60. It is irrelevant whether the applicant himself holds an apprehension of bias. A very thorough and helpful analysis of the law relating to apprehended bias is set out at [30] to [50] of the decision of Senior Member P W Taylor SC in Dimitropoulos and Australian Securities and Investments Commission[5] (Dimitropoulos). The law is summarised in the following passages from that decision;
[4] (1994) 122 ALR 41.
[5] [2019] AATA 1350.
30.Even in the absence of direct personal interest, the desideratum of impartial determination precludes a decision maker’s participation in proceedings where a fair minded lay observer might reasonably apprehend the decision maker might not bring an impartial mind to the resolution of the proceedings:- R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 265; [1976] HCA 39; 9 ALR 551; Livesey v New South Wales Bar Assn [1983] HCA 17; (1983) 151 CLR 288; 47 ALR 45; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; 87 ALR 633.
31.A finding of apprehended bias can only properly be made where a fair-minded lay observer might reasonably apprehend (as a matter of real, rather than remote possibility) that the decision maker might not bring an impartial mind to the consideration of the issues, evidence and arguments in the proceedings.
That apprehension, whilst expressed as a matter of possibility, must nevertheless be “firmly established”: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352, 360, 371; [1986] HCA 39; 66 ALR 239. The plurality judgment in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [86]; [2000] HCA 63; 205 CLR 337 at 344; [2000] HCA 63; 176 ALR 644…
…
34.In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 Mason J remarked upon the amplitude of the “reasonable apprehension of bias ” principle as it had been expressed in Watson and Livesey. In a passage that at least implicitly acknowledges the tension to which I alluded in paragraph 32 above, His Honour had this to say:-
It seems that the acceptance by this court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. 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.
35.As Mason J’s comments show, the criterion of "reasonable apprehension" of bias ought not be reduced to a lesser enquiry as to whether it would be "better" for another decision maker to hear the case. Applying such an impressionistic criterion could encourage a belief that a party can, by making disqualification applications, obtain a hearing before a decision maker more likely to be favourable to the party’s interests: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; [1986] HCA 39; 66 ALR 239; 10 Fam LR 917. Courts and statutory tribunals have a basic duty to determine proceedings and should not accede too readily to suggestions of apprehended bias: Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272. The issue in each case is whether there is a reasonable apprehension that the appointed decision maker might not bring an impartial and unprejudiced mind to the resolution of the proceedings:- Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 65 FCR 215 at 230; [1996] FCA 1308; 135 ALR 753.
36.… In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 the High Court remarked upon that possibility. Speaking primarily in the context of judicial adjudication, but in terms that have a direct application to the Tribunal (in the light of the Tribunal’s statutory objective and obligations: see Administrative Appeals Tribunal Act 1975 ss 2A and 33) the principal reasons in Ebner said:
[19] Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
…
40.There is authority to the effect that interlocutory rulings ought not be regarded as giving rise to a reasonable apprehension of bias :- Australian Securities and Investments Commission v Rich [2004] NSWSC 970 (a case that concerned evidentiary rulings involving disallowance of cross-examination). But that generality is subject to the qualification that the nature of the ruling, and the findings on which it was based, do not indicate a significant level of pre-judgment in relation to matters relevant to the final resolution of the proceedings: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100; [1990] HCA 31; 93 ALR 435; 64 ALJR 412; R v Masters (1992) 26 NSWLR 450 at 471; 59 A Crim R 445. The same general approach, and qualification, apply to rulings and expressions of opinion made during the course of the proceedings: Johnson v Johnson (Johnson v Johnson (No 3)) (2000) 201 CLR 488; 174 ALR 655; [2000] HCA 48. In that case the judge had made a statement to the effect that they were unlikely to accept the uncorroborated evidence of either party. That was held not to justify an apprehension of bias in the hypothetical observer.
…
43.The kind of reasonable apprehension that must be established is the possibility that the judicial officer will not alter a preliminary inclination “irrespective of the evidence or arguments presented":- Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [72]; [2001] HCA 17; (2001) 205 CLR 507; 178 ALR 421….
Senior Member Taylor SC then reviewed a number of authorities dealing with the “degree of knowledge and objectivity [that] is to be attributed to the hypothetical observer” who is to form the reasonable apprehension of bias, including Webb v The Queen[6] cited by the applicant, and observed:
50.A more specific statement about the hypothetical observer’s knowledge can be made where the complaint of prejudgment involves findings made in a previous decision or judgment. Referring to such a situation, Katzmann J said the following in Dye v Commonwealth Securities Ltd (No 4) [2010] FCA 910 at [94]:
The hypothetical observer would be expected, at least, to have read the whole of the judgment. A reasonable fair-minded observer would not cherry-pick statements and consider them in isolation; rather, s/he would have regard to the context in which they were made and the issues to which they related, for to do otherwise would be neither fair nor reasonable. As the majority observed in Johnson at [14], “the hypothetical observer is no more entitled to make snap judgments than the person under observation”.
[6] [1994] HCA 30; (1993-1994) 181 CLR 41.
The approach proscribed in the above-cited passage from Dye v Commonwealth Securities Ltd (No 4)[7] is, in effect, the approach taken by the applicant. The applicant has cherry-picked an aspect of the consent remittal, namely that there was a technical “denial of procedural fairness in the circumstances” (note 4 included in the orders made on 2 December 2019; see [7] above) and transmogrified that into an independent, informed hypothetical observer having a reasonable apprehension of bias.
[7] [2010] FCA 910.
The respondent submitted that, even the applicant did not identify apprehended bias as basis for his appeal to the Federal Court, nor did the parties identify apprehended bias as a matter justifying the making of the consent orders dated 2 December 2019. I do not place any weight on this fact because it would not have been relevant or added to the applicant’s argument on the appeal. The applicant needed to do no more than establish an error of law, in this case a denial of procedural fairness, to succeed in his appeal. Going the next step, characterising the particular legal error as evidencing bias, would not have been relevant to the appeal. All that the applicant was required to do was establish legal error.
The procedural error made by Member Gallagher, while technically being categorised as a denial of procedural fairness so as to constitute an error of law for the purposes of the appeal, was not, in my view, of a nature “where a fair-minded lay observer might reasonably apprehend (as a matter of real, rather than remote possibility) that the decision maker might not bring an impartial mind to the consideration of the issues, evidence and arguments in the proceedings” (Dimitropoulos [31]; see [19] above). It was simply an error of law.
The other matter which, according the applicant, gives rise to a reasonable apprehension of bias, is Member Gallagher’s statements in her decision that “it ‘remained unclear’ as to what the parties considered the issues for determination were (Reasons [75])” (see [9(r)] above). The applicant asserts that that statement “is difficult to understand in circumstances where the [respondent] had issued a reviewable decision ceasing the Applicant’s compensation benefits, the Applicant had sought to challenge that decision, the parties had exchanged and filed Statements of Facts, Issues, and Contentions, a 6 day trail had been undertaken where multiple medical witnesses gave evidence, and both parties had filed lengthy closing submissions” (paragraph 38). That submission has no merit.
Far from being “difficult to understand”, Member Gallagher’s comment in [75] of her decision follows the verbatim recitation of four different versions (two from the applicant and two from the respondent) of what the parties said the issues for determination were (Hickey [71] to [74]). Her comment at [75] is totally understandable and cannot, in the context of the preceding paragraphs of her decision, or for that matter in any context, be indicative of any bias against the applicant, or the respondent. Even if the assertion that Member Gallagher’s statement was “difficult to understand” were correct, which it is not, the applicant fails to explain why the making of a statement that is “difficult to understand” equates to bias or could give rise to a reasonable apprehension of bias. It could not, in my view, give rise to any reasonable apprehension of bias in a fair-minded, independent observer.
I find that there is no reasonable apprehension of bias.
Convenience
Further, it is clear that the considerations of convenience and expense and the statutory objective of the Tribunal to carry out its functions economically, quickly and in a way proportionate to the importance and complexity of the matter (s 2A of AAT Act), weigh heavily in favour of the matter being constituted to the same member. The hearing in the matter went over six days and involved detailed medical evidence from five medical specialists (four surgeons and one psychiatrist) and eight lay witnesses as well as extensive written submissions. The transcript is 402 pages long. Member Gallagher heard that evidence and has had the opportunity assess it. Given these facts, it would be impractical, inappropriate and an unjustifiable waste of the Tribunal’s resources (and the respondent’s) for a differently constituted Tribunal to rehear the matter or to determine the matter “on the papers” as suggested by the applicant.
The respondent submits that determining the matter of the papers would not be open in the absence of the respondent agreeing citing s 34J(b) of the AAT Act. I do not read that section of the AAT Act to have the effect as submitted by the respondent. Section 34J of the AAT Act allows, in the identified circumstances which include the agreement of the parties, to review a decision “without holding a hearing”. There has been a hearing in the matter so the section has no application.
Findings
For the reasons set out above, I find that:
(a)there would be no reasonable apprehension of bias if the matter were constituted to Member Gallagher;
(b)considerations of cost, convenience and the efficient use of the Tribunal’s resources and fulfilment of its statutory objective weigh heavily in favour of the matter being constituted to Member Gallagher; and
(c)there is no reason shown by the applicant why the general practice identified in the President’s Direction 6.2 to remit the matter to the Tribunal as previously constituted should not be followed in the present case.
DECISION
The matter will, accordingly, be remitted to Member Gallagher for reconsideration.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
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Associate
Dated: 24 July 2020
Counsel for the Applicant: D Hill Solicitors for the Applicant: W.G. McNally Jones Staff Lawyers Counsel for the Respondent: R Waldron-Hartfield Solicitors for the Respondent: Moray & Agnew
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