Mary Meaney and Comcare - [2013] AATA 299

[2013] AATA 299

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/5151

Re

Mary Meaney

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
President D Kerr

Date 16 May 2013

Place Sydney
Decision Summary
The remitted proceeding be heard by the Tribunal constituted by Senior Member Professor R Creyke.
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Catchwords
PRACTICE AND PROCEDURE – Remittal by consent from Federal Court of Australia – Function of Guidelines for Constituting the Tribunal – Case remitted to Tribunal as previously constituted
Legislation
Administrative Appeals Tribunal Act 1975 ss 20B, 23B
Cases
FZTK v Minister for Immigration and Citizenship [2013] FCAFC 44
Secondary Materials
Guidelines for Constituting the Tribunal, 14 November 2011
REASONS FOR DECISION
16 May 2013

I have been provided with detailed written submissions from the parties as to how I might most appropriately constitute the Tribunal to review the decision made by Comcare in a matter, Meaney and Comcare.
The submissions were made to me after Buchanan J of the Federal Court of Australia made orders on 6 February 2013 remitting the review to the Tribunal for reconsideration according to law.
The remittal orders were made by consent without formal hearing. The matters his Honour agreed warranted the making of the orders were that:
1The Tribunal failed to provide reasons for its decision as required by section 43(2B) of the Administrative Appeals Tribunal Act 1975. It did so by failing to disclose its reasons for finding that the Respondent’s employment contributed, to a significant degree, to her claimed psychological ailment. In particular, the Tribunal failed to provide reasons as to why (if at all) it rejected the evidence adduced by Comcare at hearing which indicated that the Respondent’s claimed illness was secondary to an illness suffered by her mother rather than employment.
2 The Tribunal failed to provide reasons disclosing how (if at all) it reached the finding that the Respondent’s claimed psychological ailment was not sustained as a result of reasonable administrative action for the purposes of section 5A of the Safety, Rehabilitation and Compensation Act 1988. In particular the Tribunal failed to adequately explain in its reasons the inconsistent findings of fact that action on 2 and 3 February 2009 (reasonable administrative action) was both causal and not causal of the Respondent’s claimed psychological ailment.
Buchanan J’s orders stated the constitution of the Tribunal on remittal was to be determined by the President.
The legal representatives of both Comcare and Ms Meaney have taken opposing positions with respect to how the Tribunal should be constituted to deal with the remittal.
Comcare’s counsel urges that I constitute the Tribunal otherwise than by the member who made original decision set aside by the Federal Court. Comcare submits that a differently constituted Tribunal is necessary in order to maintain public confidence in the review process.
Its submission argues, inter-alia, that an apprehension of bias must necessarily arise when the Tribunal has expressed itself ‘fully and firmly’ on critical factual matters relevant to the decision.
Ms Meaney’s counsel opposes that course and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mary Meaney and Comcare

Details

AGLC: Mary Meaney and Comcare [2013] AATA 299
Case: [2013] AATA 299
Decision Date

CaseChat Overview and Summary

Mary Meaney and Comcare involved a dispute over the appropriate constitution of the Administrative Appeals Tribunal (AAT) for the purposes of a remittal following the setting aside of a decision by the Federal Court. The central issue was whether the case should be heard and decided again by the original AAT or by a differently constituted tribunal. The Federal Court had ordered the case to be remitted to the AAT, and the matter before the court was to determine how the AAT should be constituted on remittal. The primary concern was whether the nature of the errors of law, which related to a failure in reasoning, warranted a change in the tribunal’s composition. The court examined the Guidelines for constituting the Tribunal, focusing on the factors that might indicate the necessity for a differently constituted tribunal.

The legal issues centred on interpreting the Administrative Appeals Tribunal Act and the Guidelines, particularly in relation to the circumstances under which a differently constituted tribunal should be convened for remittal. Key considerations included whether the errors of law suggested actual or apprehended bias, the desirability of maintaining consistency in tribunal composition for efficiency, and the specific criteria outlined in the Guidelines. The court had to balance the need for impartiality and the practical considerations of re-hearing a case with the same tribunal versus the potential benefits of a fresh perspective with a new tribunal.

The court reasoned that the errors of law identified did not inherently suggest bias or impropriety on the part of the original tribunal members. The errors related to a failure in reasoning to connect certain facts with the conclusions reached, which did not typically imply bias. Given that there was no indication of improper fact-finding or procedural errors that would undermine the integrity of the original decision-making process, the court concluded that there was no compelling reason to constitute the tribunal differently on remittal. The court followed the Guidelines, which emphasised remitting the case to the original tribunal unless specific circumstances indicated otherwise. Accordingly, the court determined that the tribunal should be constituted in the same way as before, to ensure efficiency and consistency.

The final orders confirmed that the case would be remitted to the AAT as it was originally constituted, with no changes to the membership of the tribunal. This decision was based on the absence of any factors indicating that a different constitution was necessary, in line with the relevant Guidelines and the nature of the errors identified.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Addressing this aspect of the Guidelines obliges me to state in broad terms my views as to whether a real question of actual or apprehended bias arises, but I am not required to and I should not purport to arbitrate upon a hypothetical actual recusal application which, if it were to be made may be advanced on quite different grounds to those advanced by the parties in their submissions to me in respect of my responsibility to decide the constitution of the Tribunal.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. The errors of law identified by the agreement of the parties, and accepted by Buchanan J to be errors of law, relate to two instances where the parties agreed there had been a want of reasoning to connect particular sets of facts and circumstances found by the Tribunal to exist with the conclusions the Tribunal reached. There is, I interpolate, at least some reason to doubt that a failure of that kind provides an independent ground of review. This may be instanced by a recent decision of the Full Court of the Federal Court in FZTK v Minister for Immigration and Citizenship [2013] FCAFC 44 (in which I which I was in dissent from the majority, Gray and Dodds‑Streeton JJ) which may be thought to have come to a different conclusion. However, in this instance it has been accepted to be such and I must deal with the matter on that basis. Some errors of law made by a decision-maker may self-evidently suggest that the case should be heard and decided again by a differently constituted Tribunal. Such may be obvious: for example if a member has made adverse findings of credit following errors of failing to provide a party natural justice—for example denying a party the right to lead evidence or relying on evidence not disclosed to them. There an impartial observer may well conclude that the nature of the findings of the Federal Court would be in tension with the original decision maker resuming the hearing of the matter. I do not mean to limit the circumstances to such extreme examples. It is impossible to provide a prescriptive list. What is critical for this factor to weigh against remittal to the Tribunal as originally constituted is that there is something in the nature of the error of law which affected the decision to suggest it would not be appropriate to take the usual course. In my opinion, where a decision is set aside for failing to set out a chain of reasoning that error does not, in the usual course, go to the propriety of the member’s conduct or suggest their want of impartiality. Nor, in the usual course, would it be a reason not to remit the decision to the Tribunal as originally constituted. Those were the limited grounds of error that were accepted by the Federal Court as reasons for remittal. There was no suggestion in the reasons accepted by Buchanan J that the Tribunal had erred in its primary fact finding processes. Applying the Guideline criteria to those grounds in the light of the benefit I have derived from reading the original decision and taking into account the parties’ submissions, it does not appear to me that 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.

Ratio Decidendi

Legal Principle Established

The relevant guidelines provide:(iii) Relevant considerations in constituting the TribunalMatters to be taken into account generally19. In accordance with section 23B of the AAT Act, the President or Executive Deputy President must have regard to the following matters in deciding who will constitute the Tribunal for the purposes of a particular proceeding: (a) the degree of public importance or complexity of the matters to which that proceeding relates; and(b) the status of the position or office held by the person who made the decision that is to be reviewed by the Tribunal; and(c) the degree to which the matters to which that proceeding relates concern the security, defence or international relations of Australia; and(d) the degree of financial importance of the matters to which the proceeding relates; and(e) if that proceeding relates to the review of a decision made in the exercise of powers conferred by a particular enactment – the purpose or object underlying the enactment (whether or not that purpose or object is expressly stated); and(f) the degree to which it is desirable for any or all of the persons who are to constitute the Tribunal to have knowledge, expertise or experience in relation to the matters to which that proceeding relates; and(g) any notice given by the parties under subsection 21(2) of the AAT Act that the Tribunal should be constituted by a presidential member alone; and(h) such other matters (if any) as the President or Executive Deputy President considers relevant.…(v) How will the Tribunal be constituted on remittal from a court?34. Where a court orders that a case be remitted to the Tribunal, the President will determine whether the case is to be heard and decided again by the Tribunal as previously constituted or by a differently constituted Tribunal unless the court has ordered that the Tribunal be differently constituted.35. 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. 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.36. 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 will generally have regard include:- 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;- whether the member or members who previously constituted the Tribunal consider that it is appropriate to hear and decide the case again;- whether a real question of actual or apprehended bias may arise if the case were heard and decided again by the previously constituted Tribunal;- 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;- any recommendation made by the court as to how the Tribunal should be constituted when it hears and decides the case again.37. If the President determines that the case should be heard by a differently constituted Tribunal, the President will:- decide who is to constitute the Tribunal; or- refer the case to the relevant Executive Deputy President to decide who is to constitute the Tribunal.38. In deciding who will constitute the Tribunal, the President or Executive Deputy President must have regard to the matters specified in paragraph 19…

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/5151
Re	Mary Meaney
APPLICANT
And	Comcare
RESPONDENT

Tribunal	President D Kerr
Date	16 May 2013
Place	Sydney