Kowalski and Repatriation Commission
[2011] AATA 212
•30 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 212
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2009/4000 & 2010/2439
VETERANS' APPEALS DIVISION ) Re KAZIMIR KOWALSKI Applicant
And
REPATRIATION COMMISSION
Respondent
INTERLOCUTORY DECISION
Tribunal Senior Member K Bean
Professor D Ben-Tovim (Member)Date 8 March 2011
PlaceAdelaide
Decision WHEREAS:
A. The applicant has applied, pursuant to s 21A of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for the Tribunal to be reconstituted.
The TRIBUNAL DECIDES that:
1. The applicant’s purported application pursuant to s 21A of the Administrative Appeals Tribunal Act 1975 is rejected and will not be forwarded to the President of the Tribunal, pursuant to s 21A(2) of the AAT Act. Rather the Tribunal has decided to treat that application as an application that Professor Ben-Tovim disqualify himself from further hearing this matter on the grounds of bias or apprehended bias.
2. In relation to what we have decided to treat as the applicant’s application based on apprehended bias, the Tribunal has decided that the matters referred to by the applicant do not give rise to a reasonable apprehension of bias on the part of Member Ben-Tovim and therefore Member Ben-Tovim should not disqualify himself from hearing the matter on that basis.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE – Application for reconstitution of Tribunal pursuant to s 21A of AAT Act – Circumstances in which such an application to be forwarded to the President – In substance the application is one for disqualification on the grounds of actual or apprehended bias – Application pursuant to s 21A rejected – No apprehended bias – The Tribunal as constituted will continue to hear matter.
Administrative Appeals Tribunal Act 1975 s 21A
Re Mellor and Australian Postal Corporation [2010] AATA 288
Johnson v Johnson (2000) 201 CLR 488
REASONS FOR DECISION
30 March 2011 Senior Member K Bean
Professor D Ben-Tovim (Member)1. This decision relates to an issue that arose during the hearing of this matter on 14 January 2011, as a result of which the applicant, Mr Kowalski, applied for the Tribunal to be reconstituted. We handed down our decision in relation to that application on 8 March 2011 and had initially intended to provide our reasons for the decision at the conclusion of the matter. On further consideration however, we have decided that it is appropriate for us the provide our reasons prior to that and prior to the resumed hearing currently scheduled for 6 April 2011.
2. The precise nature of the application made by Mr Kowalski has been the subject of some dispute and the respondent initially contended that on 14 January 2011, Mr Kowalski had not in fact applied for the Tribunal to be reconstituted pursuant to s 21A of the Administrative Appeals Tribunal Act 1975 (the AAT Act), but had rather applied for Member Ben-Tovim to disqualify himself on the grounds of bias or apprehended bias.
3. In any event, in light of later correspondence the respondent later accepted that Mr Kowalski had made an application pursuant to s 21A of the AAT Act for the Tribunal to be reconstituted. We also consider that Mr Kowalski has made such an application, either at the hearing on 14 January 2011 or in the course of his further correspondence and submissions.
4. We propose to deal first with that application.
mr kowalski’s application under s 21A of the aat act
5. Section 21A relevantly provides as follows:
“21A Reconstitution of Tribunal at the request of a party
…
Party may request reconstitution of Tribunal
(1)At any time during the hearing of a proceeding before the Tribunal (other than a proceeding in which the Tribunal is constituted by a presidential member who is a Judge and 2 other members), a party to the proceeding may apply to the Tribunal as constituted for the purposes of the proceeding requesting that the Tribunal be reconstituted for the purposes of the proceeding.
(2)Upon the making of an application under subsection (1), the Tribunal as constituted for the purposes of the proceeding shall, after receiving the submissions made in support of the application and any submissions made in opposition to the application, notify the President of the making of the application and give him or her particulars of those submissions.
(3)The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction that the Tribunal as constituted for the purposes of the proceeding be reconstituted by:
(a) adding one or more members; or
(b) removing one or more members; or
(c) substituting one or more other members;
(or any combination of these).
…”
6. As we understand it, the basis for Mr Kowalski’s application under s 21A was that Member Ben-Tovim had demonstrated bias in the course of the hearing on 14 January 2011 in that he had questioned a witness and also commented on particular evidence in a way which suggested that he had already reached conclusions adverse to Mr Kowalski and which Mr Kowalski contends were incorrect. In correspondence and submissions forwarded after the hearing, Mr Kowalski has alleged that Member Ben-Tovim attempted to “pervert the course of justice”. However as we understand it the basis of his complaint remains that, in his perception, Member Ben-Tovim has formed certain views about the evidence before the Tribunal[1].
[1] We refer here to Mr Kowalski’s letters dated 15 January 2011, 21 January 2011, 3 February 20117. We acknowledge that on one reading of the provision, s 21A does not appear to contain any qualifications on the circumstances in which an application for reconstitution pursuant to that provision may be made. It also appears to require that once an application is made, it is to be forwarded to the President for determination pursuant to s 21A(2).
8. However, in ReMellor and Australian Postal Corporation [2010] AATA 288, the President of the Tribunal, Justice Downes, had cause to consider the meaning and proper operation of s 21A of the AAT Act. He commented on the meaning of s 21A as follows:
“12 The plain meaning of these words is that the president can only reconstitute the tribunal, under this subsection, in the circumstance that I have just quoted. There is nothing which suggests that the president can reconstitute the tribunal for any other reason. It is true that this limitation on the power is not introduced until the section refers to the powers of the president, but that limitation must be read back into the earlier subsections and must there qualify the circumstances in which the application can be made. I do not think it is necessary to look outside the Act to come to this conclusion. However, the conclusion is confirmed from the second reading speech of Mr Ellicott QC, the then Attorney-General, on introducing the relevant bill in the Parliament on 28 April 1977.
13. It follows that the tribunal can only reconstitute the panel for the hearing of this matter under s 21A where it is determined that the proceeding relates to matters of such public importance as justify that course. In my opinion, there are no circumstances of sufficient public importance to justify me in reconstituting the tribunal.”
9. He went on to observe as follows:
“16. It is usually appropriate for the tribunal, as constituted for a hearing, to determine itself an application to the tribunal that one or more of the members comprising the tribunal for a hearing should be recused on the basis of apprehended bias. It is not, for reasons I have given, appropriate for such an application to be made under s 21A, but an application based on the rules of natural justice can simply be made directly to the tribunal as constituted to hear the matter.
17. It follows that the ordinary and appropriate course, in my view, would have been for the application under s 21A to have been rejected, but for Dr Alexander to have entertained an application on the broad grounds of the rules of natural justice. However, that did not happen and the matter, through the application, came before me.”
10. In the second reading speech referred to by the President in Re Mellor, the then Attorney-General Mr Ellicott QC relevantly stated as follows:
“The President when constituting a tribunal is to have regard to the degree of public importance or complexity of the matters to which the proceeding relates and to the status of the decision-maker whose decision is to be reviewed. What is intended is that decisions made at ministerial or very senior departmental level would ordinarily be reviewed by the Tribunal constituted by or including a presidential member. So too would a decision in the nature of a test case made at a lower level of government. Of course, an appeal that begins as a straightforward matter may turn out to be a complex one or one of much public interest, or to involve difficult questions or statutory interpretation. The Bill therefore makes provisions whereby such a case, if it has been set down before a non-presidential bench of the Tribunal, may be transferred to a presidential bench. …
The amendments to be made to section 20 of the Act would empower the President to change the composition of a tribunal where it has not commenced to hear a matter. Again this discretion will be exercisable by reference only to criteria of complexity and public importance of the matter and the status of the decision-maker. Where the Tribunal has commenced a hearing the matter can be brought before a ‘higher level’ of the Tribunal under the proposed new section 21A which is inserted by clause 13. In such a case the change can be made only where a party makes an application for this purpose and the President concludes that the public importance of the matter warrants the application being granted. Now section 21A also provides for the case where only part of a matter requires to be dealt with at a ‘higher level’ of the Tribunal. For example, where it is necessary to resolve a question of law, proceedings commenced before a non-presidential bench can be brought before a presidential bench for the purpose, and then remitted back to the non-presidential bench.”
11. In light of the contents of the second reading speech and the observations of the President in Re Mellor, we have concluded that before forwarding an application to the President under s 21A of the AAT Act, we are obliged to first consider whether that provision is properly invoked in the sense that it relates to a matter of such public importance as to potentially warrant reconstitution. If it does not, then pursuant to the approach set out in Re Mellor, we should reject the application and treat it as an application for disqualification on the grounds of actual or apprehended bias.
12. In his submissions provided subsequent to the hearing on 14 January 2011, Mr Kowalski asserted that his application:
“raises an issue of public importance because if President Downes refuses my application to reconstitute the Tribunal and if he allows Member Professor Ben-Tovim to continue to hear the above application, then he shall bring the AAT into utter disrepute because he shall condone the fact that a member of the AAT has deliberately and consciously attempted to pervert the course of justice, therefore he has committed a criminal offence which is subject to a term of imprisonment” (see R v Enfield [2009] NSWFC 119 (20 March 2009) par 183).”
13. In essence however, as we have indicated above, we consider that Mr Kowalski’s complaint and the reason he has sought reconstitution of the Tribunal is that he has formed the view that Member Ben-Tovim has already reached certain conclusions in relation to the evidence. This amounts in substance to a complaint of bias and in our view it does not raise an issue of “public importance” in the sense in which that term is used in s 21A.
14. For this reason, we have reached the conclusion that the circumstances in which an application purportedly made pursuant to s 21A should be treated as such and forwarded to the President are not established. In other words, the nature of Mr Kowalski’s application is not one which could potentially allow the President, acting under s 21A of the AAT Act, to reconstitute the Tribunal. It follows that this matter is one of those in which, pursuant to the approach suggested by the President in Re Mellor, “the ordinary and appropriate course” is for the application to be rejected and for the application to be entertained on the “broad grounds of the rules of natural justice”.
15. For that reason, we have decided not to forward Mr Kowalski’s s 21A application to the President, but rather to treat the application as an application that Member Ben-Tovim disqualify himself on the grounds of actual or apprehended bias.
mr kowalski’s application based on apprehended bias
16. A convenient summary of the principle of apprehended bias appears in the High Court decision in Johnson v Johnson (2000) 201 CLR 488, at page 492 where Gleeson CJ, Gaudron, McHugh, Gummow and Hain JJ described the question as:
“Whether a fair minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide.”
17. In its written submissions, the respondent contended, we consider correctly, that Mr Kowalski’s application for Member Ben-Tovim to disqualify himself appeared to rely primarily upon two statements made by Member Ben-Tovim during Dr Reid’s evidence.
18. The first statement related to a record obtained under summons from the Flinders Medical centre and was transcribed as follows:
“Maybe I can assist the Tribunal here. Dr Skinner is a pathologist at the Flinders Medical Centre, and what the typewritten notes refer to is, I would assume, the examination that a pathologist made of specimens that were provided to the pathologist for examination. So the handwritten notes refer to the information Dr Williams provides to a pathologist. The pathologist examines the specimens and writes those conclusions on his examination of the slides involved, I think. Would that be a reasonable ‑ ‑ ‑?‑‑‑That is correct.”
19. The second statement was a statement about Dr Reid’s evidence regarding the clinical onset of gastro oesophageal reflux disease (GORD) which was transcribed as follows:
“Mr Kowalski, let’s just get the wording absolutely clear and then we can move on. My understanding of the doctor’s evidence is that he said that Derwin Williams’ report was suggestive of GORD, but did not itself definitively diagnose the presence of that condition.”
20. In relation to the first statement however, Mr Kowalski later conceded that the relevant record was written by Dr Williams (a general practitioner) and Dr Skinner (a pathologist) as suggested by Member Ben-Tovim (and confirmed by Dr Reid) rather than being written by Dr Skinner alone[2].
[2] See pp 73.36-74.4 and 77.36-78.1 of Transcript dated 14 January 2011.
21. In relation to the second statement, the respondent submitted that the Member had fairly summarised the effect of Dr Reid’s evidence up to the time when that statement was made[3]. The respondent also pointed to the fact that the following exchange took place between Member Ben-Tovim and Dr Reid immediately after the second statement was made:
“Can I put it to you that that was the evidence that you gave earlier?‑‑‑Yes, that is correct.”[4]
[3] See pp 33.3-5, 44.18-35 and 45.18-32 of Transcript dated 14 January 2011.
[4] See p 47.1-2 of Transcript dated 14 January 2011.
22. In relation to the first statement, given that Mr Kowalski later conceded that the Member had correctly attributed the authorship of the relevant record to Dr Williams, we see no basis upon which this statement would cause a fair-minded lay observer to reasonably conclude that Member Ben-Tovim did not bring an impartial mind to the proceedings.
23. In relation to the second statement, having reviewed the evidence, we agree with the respondent’s contention that this was a fair summary of Dr Reid’s evidence up to the point when the statement was made. In any event, we do not consider that in making that statement Member Ben-Tovim could fairly be considered to have expressed any concluded view about the issues in the proceedings. He was simply putting to Mr Kowalski his understanding of the evidence up to that point. We consider that the way in which he summarised the evidence did accurately represent that evidence, however even if it had not, we do not consider that this would cause a fair-minded lay observer to conclude that he did not approach the proceedings with an impartial and unprejudiced mind.
24. For completeness, we should also acknowledge that together with his letter of 21 January 2011, Mr Kowalski forwarded a copy of the transcript of the hearing on 14 January 2011 with various passages underlined. In his covering letter he stated that these parts of the transcript “proved” that during the hearing “Professor Ben-Tovim was attempting to pervert the course of justice”. Having reviewed these parts of the transcript referred to by Mr Kowalski however, we remain satisfied that nothing said during the hearing of 14 January 2011 would cause a fair-minded lay observer to conclude that Member Ben-Tovim did not approach the proceedings with an open mind.
25. For these reasons, we have concluded that the matters relied upon by Mr Kowalski in support of his application that Member Ben-Tovim disqualify himself do not give rise to a reasonable apprehension of bias and therefore Member Ben-Tovim should not and will not disqualify himself.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
And Professor D Ben-Tovim (Member)Signed: ...........J Coulthard..........................................
AssociateDates of Hearing 13-14 January 2011
Date of Decision 30 March 2011
Advocate for the Applicant Self-represented
Counsel for the Respondent Mr J Wallace
Solicitor for the Respondent AGS
and 16 February 2011.
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