Lever and Comcare (Freedom of information) - [2018] AATA 1090

Lever and Comcare (Freedom of information) [2018] AATA 1090 (26 April 2018)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2015/5746
Re:Ronald Lever
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:26 April 2018
Place:Sydney

The Tribunal dismisses the applicant’s second disqualification application dated 21 February 2018.
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The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – application for recusal on grounds of actual or apprehended bias – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 25(4A), 33
Freedom of Information Act 1982 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 71
CASES
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Lever v Comcare [2017] AATA 891
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re JRL; Ex parte CJL (1986) 171 CLR 342
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
26 April 2018
FACTS

Following the reservation of the decision in this matter on 16 February 2018, the applicant filed an Application for Recusal/Disqualification on 21 February 2018 (“the application”) seeking orders that the Tribunal disqualify itself. The application extends to 20 pages, and includes the Applicant’s Outline of Submissions set out in 19 main grounds.
This is the second application made by the applicant for disqualification. The first application was made on 9 December 2016. By its Decision and Reasons for Decision delivered on 13 June 2017 (“the recusal decision”), the application was dismissed: see Lever v Comcare [2017] AATA 891.
The Tribunal is informed by the applicant that the claims now made relate to events occurring, subsequent to the 13th of June 2017, being the date of delivery of the decision in respect of the first recusal application.
The long history of this matter appears in the recusal decision. Further, the legal principles applicable to such an application are also contained in the recusal decision under the heading of “Legal Principles”. It is unnecessary to restate all of the relevant principles. However, that decision related to an application predicated upon apprehended bias. It appears that the current application also relies upon actual bias. This issue will be considered hereunder.
SUMMARY OF LEGAL PRINCIPLES
A claim of actual bias must be “distinctly made and clearly proved”: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [61] – [63] and [99] per Gleeson CJ and Gummow J. It is a stricter test than the test for apprehended bias. For the latter, there must be a reasonable apprehension: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Accordingly, as was discussed in Ebner, the consideration involves two stages namely identifying what is claimed to be the material upon which it is said the decision-maker may decide a case other than on its legal and factual merits; secondly establishing the logical connection between such matter and the feared deviation from such course of deciding the case on its merits: see Ebner at [8].
The application of the principles above were referred to by the Federal Court of Australia in Coutts v Close, Assistant Commissioner of Australian Federal Police [2014] FCA 19 which may be summarised as follows:
(a)what is the basis of the application? That is, what is the precise material relied upon; and
(b)where is it said that such material leads to the conclusion of bias?
LEGISLATIVE FRAMEWORK
The Tribunal is invested with powers which are different to those existing in a court. For example, s 25(4A) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) provides: –
“The Tribunal may determine the scope of the reviewable decision by limiting the questions of fact, the evidence and the issues that it considers.”
Further, section 33 (1) of the AAT Act provides: –
“33. Procedure of Tribunal
(1) 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 such expedition, as the requirements of 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 manner as it thinks appropriate”.
GROUNDS RELIED UPON BY APPLICANT
At the outset of the second recusal application, and following the refusal of the adjournment application, the applicant asserted that he was unable to proceed. The applicant’s attention was drawn to the 20 page outline of submissions which he had provided to the Tribunal. At first, the applicant indicated that he did not rely upon those submissions. Subsequently, the applicant indicated that he relied upon part of them, but did not specify what portion was to be relied upon. The applicant was an informed that the Tribunal would allow him one hour of oral submissions to address any issues which he wished to raise in support of his application. The applicant then addressed the Tribunal orally.
Oral submissions of Applicant
The applicant asserted that Comcare had been afforded preferential treatment, because it was permitted to place an invoice before the Tribunal relating to the expenses which Comcare had paid to the Australian Government Solicitor to recover records sought by the applicant. The applicant asserted that in contrast, his statement of “unlawful conduct” was not accepted.
The statement referred to by the applicant is dated 12 February 2018. Such statement was filed after directions had been made by the Tribunal for the filing of final submissions. Each party was directed to provide submissions in writing, limited to 20 pages. Without leave, the applicant filed the statement dated 12 February 2018.
At the hearing of the final submissions which commenced on 15 February 2018, the respondent objected to the statement, and accordingly the Tribunal informed the applicant that the statement would not be admitted. However, following the withdrawal of the objection by the respondent, the Tribunal informed the applicant that the statement would be read overnight.
On the second and final day of the hearing on submissions namely 16th of February 2018, the applicant was informed that the Tribunal had read the statement overnight, and that its contents would be taken into consideration. The applicant thanked the Tribunal.
Against this factual background, there is no basis for any claim of preferential treatment.
The applicant claimed that Comcare had failed to explain what harm it would suffer if the documents which were held to be the subject of legal professional privilege were disclosed. The applicant also claimed that there had been “serious breaches of the code of conduct”; that there had been an “altered the brief provided to Dr Donsworth”; that he had endeavoured to resolve these proceedings by way of alternate dispute resolution procedures, but was unsuccessful; that his claim had never been “a fraud claim”; that he had been “blocked on every time by, Comcare”; that the treatment provided to him by the Tribunal was improper; that had he been provided with the transcript, he could identify matters to verify such issues.
The Tribunal is unable to discern any basis for either actual or apprehended bias in respect of the complaints raised orally by the applicant. His complaints relate to issues unconnected with a predisposition of the ultimate findings.
Written submissions of applicant
In his outline of submissions, the applicant states his ground as follows:
Whether a fair minded observer might reasonably apprehend a lack of impartiality because the Tribunal did not direct Comcare to release documents in its constructive possession. The applicant claims that 13,000 documents exist held by the Australian Government Solicitor (AGS) relating to his claim against Comcare. The applicant submits that such documents are “not in evidence’, except documents which are contained in a lever arch folder annexed to an affidavit sworn by a lawyer for the AGS, Mr Hutchins.
The applicant submits that the Tribunal has failed to direct Comcare to obtain documents from AGS, since those documents are in the constructive possession of Comcare.
The Tribunal is yet to make its decision in the substantive application. The applicant’s submissions show that the applicant misconceives the practice of the Tribunal. Because the Tribunal is yet to reach a decision on the applicant’s substantive application, no directions or orders have been made to Comcare to produce records in its constructive possession, or indeed in its possession. Directions of such kind are usually not given until the proceedings have been completed. At this stage, the final decision is held in abeyance pending determination of the applicant’s claim of recusal.
The same observations can be made in respect of many of the assertions made by the applicant in which he alleges a breach of the Freedom of Information Guidelines. However, the context in which his application has been brought must be borne in mind: the application made before the Information Commissioner related to documents which were the subject of a notice issued pursuant to s 71 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), issued to ANSTO by Comcare. Since the institution of these proceedings, the applicant has sought to gain access to numerous other documents which are not comprised in the documents produced under the s 71 notice. Whether the applicant is entitled to any documents beyond those the subject of the s 71 notice must abide the decision of the Tribunal.
The applicant asserts that he has not been given an opportunity to adduce evidence from Comcare’s witnesses prior to the Tribunal’s upholding Comcare’s claim for legal professional privilege (“LPP”). In answer to this assertion, the applicant did not seek to call any such witnesses prior to the Tribunal making its assessment of the documents over which LPP was claimed Further, when these proceedings completed at the hearing on 16 February 2018, the applicant made it plain that he raised no further issues. Accordingly this claim is without merit.
The applicant asserts that Comcare have not been required to demonstrate “real harm” that Comcare would suffer as a result of releasing their documents in full. Further, the applicant asserts that there is a mystery why such documents “suddenly appear” in the hearing after the applicant claims he has been searching for them for six years.
Next, the applicant claims that Comcare have not prepared a schedule of documents justifying its claim for LPP. The applicant raises issues concerning the validity of Comcare’s claim for LPP; that he was not present when the documents in respect of which such privilege claimed were inspected; that documents produced by ANSTO were out of order.
Comcare compiled a schedule of all documents in respect of which LPP was claimed. This schedule was used in the proceedings. The schedule is entitled “Amended Index to LPP Documents”. The schedule identifies each document by number, provides a description and date. The schedule identifies the author and addressee of the emails and facsimile transmissions. A copy of the schedule was provided to the applicant.
There is no aspect of the claim for LPP which is relevant to actual bias, nor to apprehended bias. The applicant appears to express grievance because he was not able to read such documents. However, this is merely a consequence of a successful claim to LPP. None of the above matters gives rise to any basis for apprehended bias.
Next the applicant asserts that a discussion took place between the Tribunal and the legal representative of Comcare discussing issues of fact and law. The applicant questions the subject matter and states that he was “excluded” and “side-lined” whilst “a private conversation” took place in front of him. This complaint arises from an interchange between the Tribunal with the legal representative concerning certain sections of the AAT Act. The fact that the applicant did not understand the discussion does not give rise to bias nor to apprehended bias.
The applicant has been present throughout the hearing, as is verified by the transcript. It is normal, in inquisitorial proceedings, for debate to take place between the Tribunal and parties. The applicant’s complaint arises from his lack of legal knowledge in being unable to follow the debate which took place from time to time with the legal representative of Comcare. However, the applicant made no complaint at the time and the mere fact he failed to understand it, is not a ground to found bias, nor an apprehension of bias.
Next, the applicant submits that he was unduly limited in the present preparation of his evidence. The applicant complied with the directions issued by the Tribunal for submissions. The applicant appears to complain that on 11 August 2017 he was required to limit his submissions in length and he did so, by providing submission of 18 pages with approximately 400 pages of annexures. Further directions were issued, for example, on 4 September 2017 the applicant was directed to serve his written submissions, limited to 10 pages. The applicant did so, providing 10 pages with 600 pages of annexures. The applicant’s final statement together with 673 pages of annexures has also been taken into consideration.
No objection was made by the applicant when such directions were made, and complied with by the applicant. Further, the Tribunal has a statutory duty to provide its objective of providing a review that is “fair, just, economical, informal and quick”: see s 2A of the AAT Act. The Tribunal is entitled to determine its own procedures. In Mark Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, the Full Court (Flick, Perry JJ) at [82] to [97] referred to the Tribunal’s powers and with particular reference to s 33(1), the Full Federal Court relevantly said at [88]:
“Of these provisions, special reference should be made to section 33 (1). The charter given by this provision to the Tribunal to be the master of its own procedure, together with the emphasis placed upon informality and the freedom not to be bound by the common law rules of evidence, were hallmarks of the Tribunal being espoused even before the Administrative Appeals Tribunal Act was enacted in 1975.”
Next, the applicant asserts that there are various deficiencies with the documents in respect of which LPP is claimed. They include the fact that a debate took place between the legal representative of Comcare and the Tribunal in the applicant’s presence; the inclusion of four additional documents and other documents. The applicant claims he was “excluded” from such debate.
The transcript records at all times the applicant has been present when debate has issued. Further, the Tribunal is entitled to proceed in its review in an inquisitorial manner: see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594. The transcript records that there has been debate both with the applicant and with the respondent’s legal representative throughout the hearing.
In relation to documents for which legal professional privilege was claimed, the Tribunal adjourned to consider whether such documents qualified for the privilege. The Tribunal was satisfied that such documents did so qualify. The applicant seems to suggest that he should be able to read the documents. Such a proposition is to be rejected.
Next, the applicant asserts that a document described as his final “Analysis” dated 4 October 2017 establishes “beyond doubt” that false information was included in the brief to Dr Donsworth. Again, no decision has been made in respect of this issue, and accordingly his complaint is entirely premature.
Next, the applicant states that he requested that the Tribunal direct Comcare to prepare a schedule in a template provided by the applicant. However, there is no obligation under the Freedom of Information Act 1982 (Cth) (“FOI Act”) which requires a party to go to the expense of preparing such a schedule: a party seeking access to documents is entitled to access to documents if the Tribunal so directs: see s 20 of the FOI Act. The Tribunal has no power to require a party to formulate its records in any template required by an applicant.
Next, the applicant states that the Tribunal has actively interfered during the hearing in an attempt to “block my evidence and to distract me”. Further, the applicant complains that the Tribunal referred to previous litigation in which the applicant was involved, and made a “defamatory statement” concerning Ms Juric’s apprehension when the Tribunal read the Australian Federal Police Report.
In answer to such submissions, the Tribunal has acted in accordance with its statutory obligation, contained in s 2A of the AAT Act, and in accordance with the Tribunal’s power to conduct the hearing as it thinks fit as specified in s 33(1). The applicant has had every opportunity to present his case. The transcript shows that no issues of relevance have been excluded. Section 39 of the AAT Act requires that a party be given a reasonable opportunity “to present his or her case”. The record contained in the transcript will record that every opportunity has been provided to the applicant to make submissions and to present his case. The two final days of the hearing were allocated to the making of submissions. In this period, the applicant exhausted all the submissions he wished to make, as recorded by the transcript, and was afforded the right of reply. The applicant may have been prevented from pursuing matters which were irrelevant to the issues, but this restraint does not constitute grounds for recusal.
On the final days of the hearing, namely on 15 and 16 February 2018, as referred to previously, the applicant produced a 39 page statement together with 673 annexed pages. There was no leave for such material to be provided. In fact, the Tribunal had directed that each party provide written submissions for the final two hearing days which were set aside for the purpose of hearing submissions. In view of the objection of the respondent to such material, the Tribunal determined that it would not accept such material. However, the respondent later withdrew its objection and the Tribunal, on 16 February 2018, informed the applicant that his material would be taken into consideration.
Further, the Tribunal notes that on the final day of the hearing, the Tribunal specifically requested the applicant to state if he had any complaint concerning the proceedings. The applicant responded that he was not making any complaint. The Tribunal considers that such response is entirely inconsistent with the application which is now being made for disqualification on the ground of actual or apprehended bias.
As was stated by Mason J (as he then was) in Re JRL; Ex parte CJL (1986) 171 CLR 342 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”.
The Tribunal rejects the applicant submissions that he has not been afforded a fair opportunity to present his claims.

The Tribunal has read the several other issues and submissions raised by the applicant. They have not been overlooked. However, the Tribunal finds it unnecessary to deal with the minutiae of matters raised, because they relate to issues concerning past history of the applicant’s employment and its termination and argumentative allegations related to the hearing. None are sufficient, nor relevant, to the issue of actual bias or apprehended bias. The Tribunal has acted in accordance with its statutory obligation, and the complaints of the applicant can be readily dismissed, as being without foundation.
ORDERS
The Tribunal dismisses the applicant’s second disqualification application dated 21 February 2018.

I certify that the preceding 43 (forty -three) 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: 26 April 2018

Date of hearing: 27 March 2018

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Department of Human Services

Date of hearing:	27 March 2018
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services