Lever and Comcare
[2017] AATA 891
•19 May 2017
Lever and Comcare [2017] AATA 891 (19 May 2017)
Division:GENERAL DIVISION
File Number(s): 2015/5746
Re:Ron Lever
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:19 May 2017
Date of written reasons: 13 June 2017
Place:Sydney
The application for recusal is refused.
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The Hon. Dennis Cowdroy OAM QC, Deputy President
Catchwords
PRACTICE AND PROCEDURE – application for recusal on grounds of apprehended bias – application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 25(4A), 33(1), 39(1)
Archives Act 1983 (Cth)
Freedom of Information Act 1982 (Cth)Safety, Rehabilitation and Compensation Act 1988 (Cth) s 71
Cases
Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43
Barbosa v Di Meglio [1999] NSWCA 307
Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [1999] 2 VR 573
Coutts v Close [2014] FCA 19
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Livesey v The New South Wales Bar Association (1983) 151 CLR 288
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Re JRL; Ex parte CJL (1986) 161 CLR 432
Re Lusink; Ex parte Shaw (1980) 32 ALR 47
Re Refugee Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109
SZSQZ v Minister for Immigration and Border Protection [2014] FCA 49
Vakauta v Kelly (1989) 167 CLR 568Webb v R (1994) 181 CLR 41
WRITTEN REASONS FOR ORAL DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
13 JUNE 2017
BACKGROUND FACTS
Before the Tribunal is an application to recuse the Tribunal as currently constituted.
Such application was brought during proceedings under the Freedom of Information Act 1982 (Cth) (FOI Act), brought by Ronald Lever against Comcare (the principal application). In the principal application, Mr Lever seeks wide-ranging access to documents of Comcare and of another Commonwealth agency.
To understand the background of the recusal application, it is necessary to refer to the circumstances relating to the principal application.
In the principal application, Mr Lever has issued summons to four persons, and an institution, requiring them to produce documents, or to attend so that he might have the opportunity of questioning them. One such party is the Australian Atomic Energy Commission (now known as the Australian Nuclear Science and Technology Organisation, ANSTO), the former Commonwealth agency, which was the employer of Mr Lever. Mr Lever’s employment was terminated, it appears, in about 2005. The principal application has been heard by the Tribunal over several days, during which evidence has been taken from various persons, including a representative from ANSTO and of Comcare. Mr Lever is self-represented. Comcare is represented by Dr Stephen Thompson, solicitor of Sparke Helmore lawyers.
The hearing has proceeded in an inquisitorial manner, involving submissions from both parties, interspersed with witnesses as they have become available. There has also been discussion between the Tribunal, Mr Lever and with Dr Thompson concerning the scope of the application and the objectives of Mr Lever.
Comcare
The critical issue concerns the question whether documents obtained by Comcare from Mr Lever’s former employer, ANSTO, pursuant to section 71 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) remain in Comcare’s possession or control. The documents were obtained by Comcare following a claim by Mr Lever for wrongful dismissal. It appears there have been other applications made, either to courts or to this Tribunal.
It is not disputed by Comcare that it has obtained various records relating to Mr Lever from ANSTO for use in litigation instituted by Mr Lever. However, it is apparent that the documents were passed to the Australian Government Solicitor (AGS) for use in the litigation. Accordingly, Comcare relies upon the fact that it has no documents to produce from the AGS, as they are not in the possession or control of Comcare. Comcare has already produced documents in its possession to Mr Lever.
The AGS was summonsed by Mr Lever to produce documents. It has claimed legal professional privilege over those documents. Mr Lever accepted that claim, but his recently filed submission suggests that he now does not agree with the ruling. Mr Lever submits that it still lies in the power of Comcare to produce documents, which Comcare provided to AGS. Comcare has claimed that the cost of production of the documents, as required by AGS, is approximately $11,000. Subject to payment of such costs, Comcare raises no objection to their production, other than those documents which are the subject of legal professional privilege.
The claim by Comcare represents the cost of the extraction of documents held by AGS which concern Mr Lever, in respect of the litigation in which Mr Lever was involved with ANSTO, and the separation of those documents from documents protected by legal professional privilege. Mr Lever opposes the making of any order for the cost of production of such records.
ANSTO
The second matter for determination concerns documents held by ANSTO. The Tribunal has heard evidence that searches have been made for records relating to Mr Lever, which relate to the period up to his termination in 2005 and beyond, for the purposes of litigation. Evidence has been heard by the Tribunal from a current officer of ANSTO, that extensive searches have been made and that all hard-copy documents held by ANSTO have been made available already to Mr Lever. There remains the possibility that some documents may have been captured on archived tapes. Such tapes contain records of emails, but not necessarily documents. However, it is conceded that documents may be included as attachments to such emails. To examine the tapes, a cost of approximately $4,000 is estimated. Mr Lever has indicated that he is not prepared to pay such costs.
Mr Lever’s principal application has been brought, essentially, to establish that a particular document exists, which was provided to a psychiatrist. The psychiatrist provided evidence for Comcare at the hearing of the wrongful dismissal proceedings brought by Mr Lever. Mr Lever asserts that the document was fraudulent, with the result that the psychiatrist was provided material which was false, and that she gave her expert medical opinion based upon false material.
The Tribunal is not aware of the nature of, nor the extent of, the previous applications brought before the Tribunal. However, it is apparent that Mr Lever made an application to the Tribunal under the FOI Act in 2010.
Mr Lever, in the course of the discussion and debate concerning his application, stated that he wished to cross-examine various individuals who were employees of ANSTO at the relevant time, namely the time of his dismissal in 2005, and other Commonwealth officers. When questioned why such persons were relevant to the FOI application, Mr Lever stated that he wished to examine them for the purpose of demonstrating that they provided fraudulent evidence in respect of his dismissal. It was explained to Mr Lever that the Tribunal had no power to make findings of fraud, and that if he had such a claim, it should be heard in a court.
APPLICATION FOR APPREHENDED BIAS
There have been several hearings in these proceedings since August 2016. On 9 December 2016, Mr Lever made an application that the Tribunal, as presently constituted, should be recused, on the grounds of apprehended bias. Accordingly, the proceedings were adjourned to enable Mr Lever to formulate the basis upon which he seeks the Tribunal recuse itself, as currently constituted. Directions were made for the filing of submissions. The time limits fixed by those directions were found by Mr Lever to be inadequate. The time limits were extended in January 2017, as Mr Lever again claimed that he did not have sufficient time to consider the tapes of the hearing. A third occasion, the time limit for the submissions was extended to allow Mr Lever time to consider the tapes of the hearing. When this application came on for hearing on 27 February 2017, Mr Lever sought a further adjournment, and this was granted. Mr Lever has filed written submissions. They are voluminous. The first submission filed extended over 39 pages of closely-spaced typing, and the second, comprising 33 pages, together with annexures, was filed on 8 May 2017. Mr Lever has indicated that he only relies on the second submissions.
The submissions contain a mixture of allegation concerning the conduct of Comcare and ANSTO. Intermingled with those submissions are assertions made against the Tribunal. However, the submissions which he originally made, which involved allegations of wrongful conduct on the part of the Tribunal and against Dr Thompson, do not appear in the second submissions. The second submissions are almost entirely related to the merit of the proceedings, which is not the subject of the principal application. Nevertheless, the Tribunal will consider both submissions, in case Mr Lever has overlooked the matters which the Tribunal understood he was relying upon as the basis of the recusal application.
Comcare rejects Mr Lever’s allegations, and submits that there is no evidence of apprehended bias, nor is there any other basis upon which the Tribunal, as currently constituted, should recuse itself.
Allegations against the Tribunal
Mr Lever asserts:
(a)that he has a right to be heard on “the prima facie evidence of fraud and corruption” which he believes has occurred between Comcare and ANSTO. He states that he would “not be here today if Comcare and ANSTO, had, in the first instance, done the right thing. Comcare are now frustrating the process of retrieving the documentary evidence of what they had done…”;
(b)that the Tribunal has sought “guidance from Dr Thompson, [the Tribunal] consider[s] Dr Thompson to be a fair and reasonable person…”;
(c)that the Tribunal has “been giving Dr Thompson’s oral evidence preference over [his] evidence throughout these proceedings, and [Mr Lever says the Tribunal has] been giving this preference without a just basis contrary to the actual evidence”;
(d)that “[Mr Lever believes he has] not received any and/or sufficient consideration in this regard to date”;
(e)that he has “been denied an opportunity to cross examine Comcare witnesses that were involved in the production of documents”;
(f)that “there has not been a full disclosure”;
(g)that he has “been denied a right to be heard”;
(h)various rulings are challenged, and it is alleged that the Tribunal has “followed blindly Comcare’s lead”;
(i)that he has been denied an opportunity of being present when the documents, the subject of a claim for legal professional privilege, were examined;
(j)that the Tribunal is “[j]ust rubber stamping Comcare’s submissions”; and
(k)that the Tribunal allowed Dr Thompson to mislead it, and that the Tribunal does not understand the issues before it.
Allegations against Dr Thompson
Mr Lever claims:
(a)that Dr Thompson is involved in collusion with ANSTO;
(b)that Dr Thompson and Comcare have misrepresented various documents;
(c)that Dr Thompson made false representations concerning a Practice Direction; and
(d)that Dr Thompson has made false statements to the Tribunal.
Comcare contends that there is no evidence of apprehended bias, nor is there any other basis upon which the Tribunal, as currently constituted, should recuse itself. Comcare has summarised the perceived grounds for the application as follows:
(a)the presiding member has made observations at various directions hearings, and interlocutory hearings, which demonstrated bias;
(b)the presiding member’s decision on 14 October 2016, upholding Comcare’s claim for legal professional privilege is, itself, tainted by apprehended bias; and
(c)the presiding member conducted the hearing on 14 October 2016 in such a way that demonstrated apprehended bias.
LEGAL PRINCIPLES
An allegation of bias against a decision maker is a serious matter, which is required to be clearly articulated and strictly proved. See Re Refugee Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100.
The test for disqualification is referred to in Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 293-294; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
As was observed by Mason P in Barbosa v Di Meglio [1999] NSWCA 307 at [9]:
The litigant’s right is to have a tribunal that is free of prejudgement. The litigant is not entitled to a tribunal that is predisposed to accept or reject any particular proposition. An open mind is not an empty one.
In Ebner at 344, Gleeson CJ, McHugh, Gummow and Hayne JJ said:
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. (Footnotes omitted)
At 345, their Honours explain the application of the principle of apprehended bias as follows:
Its application requires two steps. First, it requires the identification of what 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.
Similar principles have been expounded by the High Court. See, for example, R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 32 ALR 47; Re JRL; Ex parte CJL (1986) 161 CLR 432; Vakauta v Kelly (1989) 167 CLR 568; Webb v R (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488. Other authorities are conveniently referred to in the decision of the New South Wales Court of Appeal in Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 at [12] to [22].
Turning to the numerous assertions made against the Tribunal, none are supported by particulars of the specific conduct relied upon. Further, the whole of the proceedings have been recorded. The transcript of the proceedings show that Mr Lever has been given great latitude in the conduct of his application, probably more so than a person who was legally represented. Contrary to his assertions, Mr Lever has never been denied the opportunity of being heard on matters of relevance to his application. Mr Lever has exercised his right to examine fully, witnesses called in answer to his summons to produce documents.
The allegations that Dr Thompson, in some way, directed the Tribunal and whispered to the Tribunal member, is simply unsustained. Mr Lever has not suggested that the transcript records any basis for such assertions.
The allegation that Dr Thompson has conducted himself improperly, and has engaged in fraudulent conduct, is without any basis. Dr Thompson has, throughout these proceedings, been asked questioned by the Tribunal and by Mr Lever, and provided his responses by way of answers to direct questions and submissions. The Tribunal is satisfied that the conduct of Dr Thompson has been entirely professional, as is borne out by the audio recordings of the proceedings.
It is a well-established principle that judicial officers must discharge their duty. In JRL, Mason J (as he then was) observed at 352:
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.
In Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [1999] 2 VR 573, Calloway JA said at [89]:
As a general rule, it is the duty of a judicial officer to hear and determine the cases allocated to him or her by his or her head of jurisdiction. Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded disqualification application.
Further, in Coutts v Close [2014] FCA 19, Griffiths J identified the procedure on such an application as follows:
(a)what is the basis of the application. That is, what is the precise material relied on; and
(b)where is it said that such material leads to the conclusion of bias.
OBSERVATIONS
Practice of the Tribunal
The practices of the Tribunal are contained in the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Certain Practice Directions have been adopted by the Tribunal to assist in the conduct of matters before it. As examples of the conduct of the proceedings, section 39(1) of the AAT Act requires the Tribunal to ensure that, “Every party to a proceeding is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision… and to make submissions in relation to those documents”.
This is the general statement which relates to the principle that a party has a right to be heard. However, there are exceptions. For example, where a claim for legal professional privilege arises.
Before this Tribunal, adversarial practices are not followed. For example, in the application before it, there are no pleadings, no witness statements and no affidavits. The application is one brought under the provisions of the FOI Act. Further, pursuant to section 25(4A) of the AAT Act, the Tribunal is entitled to determine the scope of the review of the matter before it and the issues that it considers relevant.
Significantly, section 33 of the AAT Act gives power to the Tribunal to determine this procedure. Section 33(1) provides that in a proceeding before the Tribunal:
(a)the procedure of the Tribunal is subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition as the requirement to this Act, and of every other relevant enactment, and a proper consideration of the matters before the Tribunal, permit; and
(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter, in such a manner as it thinks appropriate.
Because the nature of the proceedings before the Tribunal, there has been discussion between the Tribunal, Mr Lever and Dr Thompson which has involved clarification of certain facts and of record-keeping. To a degree, it has also involved the Tribunal trying to obtain an understanding of Mr Lever’s prior litigation, arising out of the same subject matter as these proceedings, namely his dismissal from ANSTO. There is nothing untoward in the Tribunal’s practices to question the party to indicate that matters sought to be argued are irrelevant to the application before it, and to attempt to direct the party to focus on the matters relating to the essential issues. Mr Lever has misinterpreted the Tribunal’s actions in doing so as a prejudgement, when no prejudgement has been suggested on the final issues.
The Tribunal is entitled to reject arguments and contentions in the course of debate, if it considers that they will not assist. In this respect, the procedure is no different to a court hearing, although the informality of a tribunal does not require adherence to any strict procedure, as exists in the court. For example, the Federal Court has even determined recently, that the ‘tone’ of a Tribunal member, of which an applicant complained, could not be equated to give rise to an application for bias. See SZSQZ v Minister for Immigration and Border Protection [2014] FCA 49. In SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109 at [82] the full Federal Court observed that bias was not demonstrated by a series of highly specific and potentially difficult questions posed by the Tribunal. In the present application, the discussions and questioning of Mr Lever and of Dr Thompson were but part of the inquisitorial process.
But there is a further consideration which looms large in this application, namely the hearing which occurred on 9 December 2016. Mr Lever’s submissions make no mention of this hearing which impacts greatly in the Tribunal’s consideration.
Hearing on 9 December 2016
At the hearing of these proceedings on 9 December 2016, submissions were heard from each party from the commencement at 10.08 am. Mr Lever made no objection or suggested any apprehension of bias, nor untoward conduct by Dr Thompson. The transcript for the opening of the hearing contains the following:
DEPUTY PRESIDENT: Mr Lever, as far as I can see, there are two remaining issues to be determined on this application. One is whether or not ANSTO has any further documentation, and that was the issue which was left in mid-air on the last occasion. But I understand Ms Larkins is here on behalf of ANSTO to provide some material or evidence on that issue. So, if you wish to – we’ll find out what Ms Larkins has to say.
The second issue is the question of whether Comcare are required to produce the documents to you which they have passed on and which have become intermingled with the Attorney General’s Department’s documents. Now, those are the issues as I see it. Is that correct?
MR LEVER: Yes. I think that’s correct.
Mr Lever did not suggest that there were any other issues which he required to be determined, nor which he required to be debated.
Evidence was then taken from Ms Gemma Larkins who appeared as an officer of ANSTO to answer a summons issued at the request of Mr Lever for that organisation to produce documents. Ms Larkins is a solicitor engaged in the legal department. Ms Larkins gave evidence of the extensive searches made at Mr Lever’s request for documents. Her evidence can be summarised by stating that there are no documents relating to Mr Lever held by ANSTO, that all documents relevant to Mr Lever’s employment of ANSTO were provided to Comcare in response to a notice issued, pursuant to section 71 of the SRC Act; that if any records exist, they would remain on archived tapes which may or may not contain a reference to Mr Lever; that such records relate to emails, but the emails may have documents attached.
After examination by the Tribunal, Mr Lever, at 10.22 am, commenced his examination of the witness, which continued until the witness withdrew at 11.10 am. The transcript does not record that Mr Lever had any remaining questions of the witness. The transcript reads as follows:
DEPUTY PRESIDENT: Well, Mr Lever. That seems to terminate, does it not, the issue of documents held by ANSTO.
MR LEVER: Subject to the archive tapes, yes.
Thereafter, the Tribunal raised the issue with Mr Lever of the costs which ANSTO would incur to retrieve the archive tapes, namely $4,000. At this point, Mr Lever indicated his objection to making such a payment and referred to the provisions of the Archives Act1983 (Cth) (Archives Act). The question of the applicability of the Archives Act were not mentioned when the issues were discussed at the outset of the hearing on 9 December 2016, and the Tribunal did not understand that Mr Lever intended to agitate any issue concerning the operation of the Archives Act. Certainly, at this stage, Mr Lever made no complaint concerning the conduct of the proceedings, either by the Tribunal or by Dr Thompson.
The Tribunal then turned to the second issue, namely the issue of Comcare records. The Tribunal heard submissions from Dr Thompson and from Mr Lever on this issue. The Tribunal then adjourned to consider the decision in relation to the ANSTO records and the Comcare records.
Oral application for disqualification
When the Tribunal reconvened, Mr Lever foreshadowed that he wished to make his application for recusal for apprehended bias. When asked for the basis of the application, Mr Lever stated the Tribunal had not taken into account the “fraud exception” and had not heard his submissions on the application of the Archives Act. When questioned as to the meaning of the fraud exception, Mr Lever responded:
I want him (Mr Cartwright) to admit that it was a false document, and that Comcare acted on a false Commonwealth document, and in fact, stated things that went well beyond the protection incident report, where they had briefed the medical expert.
Mr Lever also referred to the fact that he wanted other persons who are employees or former employees of ANSTO, namely Ms Brionie Earls, Ms Jenny Schultz, Mr Stephen Passfield and Federal Officer Cartwright to be summonsed to the hearing. The purpose of their attendance was stated by Mr Lever to be for cross-examination to show fraud by them in relation to his dismissal in 2005 from ANSTO. He said he wished to use the evidence of fraud to constitute the exception to the rule in respect of legal professional privilege, with the consequence that legal professional privilege, in respect of Comcare’s documents, could not be sustained.
The Tribunal pointed out to Mr Lever that the application before it is one brought under the FOI Act, and that the Tribunal would not engage in a trial of whether there was actual fraud. Mr Lever responded:
And i’ve always understood that [the Tribunal is] never going to make a decision, and i’m not going to ask [the Tribunal] to make a decision, in regards to the fraud. All i’ve ever asked was an opportunity to provide the prima facie evidence of a fraud so that it can be taken into consideration when dealing with the legal professional privilege documents.
When the hearing commenced at 10.08 am on 9 December 2016, the Tribunal did not understand, having placed the issues squarely before Mr Lever that he wished to make any further submissions, except in the relation to the retrieval of the archive tapes held by ANSTO.
Mr Lever, when making his oral application for recusal, claimed that the Tribunal was not affording him an opportunity to make submissions on the operation of the Archives Act, nor was it allowing him the opportunity to call evidence concerning fraud. In a subsequent hearing on 27 February 2017, which was adjourned at Mr Lever’s request, Mr Lever stated that these were the real grounds for his application for recusal.
Based on Mr Lever’s response to the questions asked of him on 9 December 2016, as to whether he agreed that the remaining issues were as stated by the Tribunal to him and his concession, the Tribunal did not understand from his responses that he wished to make any such further examination, or pursue any further action alleging fraud.
The Tribunal is prepared to accept that this was a misunderstanding, and for these reasons, it will permit Mr Lever to make submissions on the operation of the Archives Act. Further, it will permit Mr Lever to summons the witnesses he seeks to call. The relevance of the witnesses and their testimony remains a matter for consideration and submissions.
The Tribunal is satisfied that there is no basis for the claim for apprehended bias and that the numerous allegations he makes in support of his claim for recusal would not give rise, in the mind of a reasonable fair-minded observer, any suggestion of a predetermination of the issues in the nature of a prejudgement.
Further, there is no basis for the claim of any procedural unfairness. Such allegations are wholly contrary to the sound recordings and to the history of these proceedings, wherein Mr Lever has been given great latitude in the questions he has been allowed to ask and the matters he has sought to raise. Mr Lever has not pointed to any specific occasion when he was denied the opportunity of asking questions of the witnesses called. Indeed, he has already exercised that right.
Accordingly, the application is refused.
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President
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Associate
Dated: 13 June 2017
Date(s) of interlocutory hearing: 27 February, 8 & 19 May 2017 Applicant: In person Solicitors for the Respondent: Sparke Helmore
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