May and Military Rehabilitation and Compensation Commission

[2011] AATA 697

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 697

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2351;

VETERANS’ APPEALS DIVISION		)         2010/4032
Re		Benjamin May

Applicant

And Military Rehabilitation and Compensation Commission

Respondent

DECISION

Tribunal Senior Member A K Britton

Date7 October 2011

PlaceSydney

Decision Application refused.

........................[sgd]......................

Senior Member A K Britton

CATCHWORDS

PRACTICE AND PROCEDURE – interlocutory applications – in interests of fairness not appropriate to set aside prior direction – apprehended bias not made out – applications refused

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 67

Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 23, 23B

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 33; [2000] HCA 63

Re PMMC/WJPJ and Australian Prudential Regulation Authority (2009) 112 ALD 210; [2009] AATA 801

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

REASONS FOR DECISION

7 October 2011  Senior Member A K Britton

1.Mr Benjamin May has applied to the Administrative Appeals Tribunal for review of the decision made by the Respondent, the Military Rehabilitation and Compensation Commission, not to accept liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of “low immunity, fatigue, dizziness-immune system/whole body”, a condition he claims resulted from his employment with the Commission.

2.These reasons do not address the merits of the Commission’s decision but a preliminary application made by Mr May in the following terms:  

1. That Senior Member Britton immediately withdraw from hearing this matter – as she has shown a significant propensity for favouring the respondent

2. For an order that the AAT immediately annul the 23 August 11 direction.

3.Both parties were invited to make submissions about Mr May’s preliminary  application. Mr May provided lengthy written submissions.  The Commission did not make any submissions.

Background

4.In August 2010 Mr May lodged an application with the AAT for review of the Commission’s decision to refuse liability for his claimed condition (the substantive application). That application has been the subject of numerous conferences, directions hearings and a neutral evaluation conference. 

5.Throughout these proceedings Mr May has represented himself; the Commission has been legally represented.

6.At a directions hearing held on 26 July 2011, by consent, I directed both parties to file with the Tribunal and provide to each other any additional material on which they intended to rely. On the last day for compliance with that direction, 19 August 2011, the Commission applied in writing for a two-week extension. The stated reason for that application was that the Commission had not received a supplementary report requested from one of its experts. Mr May objected to that extension. I granted the Commission’s request over the objection of Mr May and directed that both parties be allowed an additional two weeks to provide their material.

Direction to extend time for filing additional material

7.Mr May provided detailed submissions in support of his preliminary application. They canvass a range of issues, including the merits of his substantive application, its history within the Tribunal, the difficulties he faces as a self-represented applicant and the conduct of the Commission and its legal representatives. To address every one of those issues would take a great deal of time and I have decided to confine these reasons to those issues directly relevant to Mr May’s preliminary applications. I also note that many of the issues raised in those submissions have been addressed by the Tribunal at directions hearings and in correspondence.

8.As I understand it, Mr May contends that the grant of a two-week extension tipped the scales in the Commission’s favour in these proceedings. He points out that the Tribunal had refused an earlier request made by him the day after the July directions hearing that the Commission file its material in advance of him. Specifically, he contends that the grant of an extension of time had the following effects:

·[It] permitted [the Commission’s solicitor] to conceal his evidence;

·permitted [the Commission’s solicitor] access to the last of my evidence;

·permitted [the Commission’s solicitor] to conceal his arguments;

·permitted [the Commission’s solicitor] access to the last of my arguments;

·permitted [the Commission’s solicitor] not to answer questions he committed to answering;

·permitted [the Commission’s solicitor] extra time to gather more evidence and arguments in response to my evidence and arguments;

·permitted [the Commission’s solicitor] to get away Scott-free with non-compliance with directions.

9.Mr May also submits that by seeking an extension of time, the Commission was in breach of its obligations to act as a model litigant.  

10.By the time the directions hearing on 26 July 2011 was conducted, my first involvement with the application, Mr May’s substantive application had been on foot within the AAT for over 12 months and the subject of nine listing events. Both parties had filed a large amount of material. At that directions hearing, the solicitor representing the Commission advised that a supplementary report, yet to be requested from Dr Robert Loblay, was the only outstanding material the Commission intended to rely upon. The Commission had filed an earlier report prepared by Dr Loblay in October 2010. The Commission’s solicitor foreshadowed that it might not be possible to obtain the supplementary report within the time-frame proposed by the Tribunal as she was unaware of Dr Loblay’s availability and commitments. Mr May indicated that the only additional material he intended to provide was a document in the form of a submission that he was in the process of finalising and three medical reports he had recently obtained from ComSuper.  At his request, I directed the Commission to provide a brief written outline of its position in relation on the so-called “Bradford Hill Criteria”, an issue Mr May believes to be of some significance to the question of causation in this case.

11.As Mr May correctly points out, a procedural direction made by the Tribunal is binding on the parties. Compliance is not optional. It cannot be disregarded at whim. Non-compliance may be relevant to a decision to award costs under s 67 of the SRC Act.

12.Nonetheless, consistent with the broad power conferred by s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which enables the Tribunal to determine its own procedures, the Tribunal, of its own motion or on the application of a party, may vary a procedural direction. In deciding whether it is appropriate to do so the Tribunal must have regard to the statutory direction that in carrying out its review functions it must do so in a manner that is “fair, just, economical, informal and quick”: s 2A of the AAT Act.

13.In deciding whether to grant the requested extension of time, I took into account, among other things: the fact that the Commission had foreshadowed that it might not be able to the meet the timetable set by the directions; that an extension of two weeks would not unreasonably delay proceedings; that Mr May would not suffer any apparent prejudice should the extension be granted; and that in these proceedings the Commission did not have a history of default in terms of compliance with directions.

14.The gravamen of Mr May’s objection, as I understand it, is that the Tribunal granted the Commission an indulgence and refused his earlier application that he be permitted to provide his outstanding material after he had received all of the Commission’s material. As Mr May sees it, this added to the disadvantage he already suffers as a self-represented applicant.  In refusing Mr May’s application, I had regard to both the fact that by that time, both parties had filed a significant amount of material and that the Commission had filed its statement of facts and contentions some months earlier and had advised that the only outstanding material it would be filing was the supplementary report of Dr Loblay.

15.In making a procedural direction, it is sometimes the case that the objectives of fairness, justice, economy, informality and speed are in conflict. This was recognised by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, now the leading case on the exercise of the judicial discretion in relation to issues of case management.

16.In that case, Chief Justice French (at 192) stated:

It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.

17.In the joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ, the question of finding the balance was further discussed.  Their Honours said (at 213):

Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

18.In this case, a reasonable explanation for the extension of time sought was proffered by the Commission.  I concluded that, despite the consequent delay, it was in the interests of fairness and justice as between the parties that the order granting the Commission (and Mr May) an additional two weeks within which to provide their respective outstanding material should not be set aside.  In my view, the additional two weeks granted did not result in any significant waste of public resources or impose unfair strain or uncertainty on the parties. To the contrary, I take the view that the additional time allowed has contributed to the ability of both parties to present their cases efficiently and fully and to enable the real issues to be resolved. No one has been ambushed and any additional costs involved are likely to be borne almost exclusively by the Commission.

Withdrawal from the matter

19.Mr May’s second application is that I disqualify myself from hearing his substantive application on the ground of apprehended bias. As was explained when he made that application, a decision has not been made about the person or persons who will constitute the Tribunal for the purpose of determining his substantive application. My involvement in directions hearings did not mandate that I would be assigned the substantive hearing. The constitution of the Tribunal in relation that hearing is subject to the direction of the President of the Tribunal having regard to the matters listed in s 23B of the AAT Act.

20.In the event that I am assigned to hear his substantive application, it will be open to Mr May to apply under s 23 of the AAT Act for the Tribunal to be reconstituted.

21.For present purposes, I will assume that Mr May’s application includes a request that I withdraw from any further conferences, directions hearings or the like that may be held in this matter. 

22.The test of apprehended bias was set out by the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, (at 344):

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that ... 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

23.Their Honours went on to say (at 345) that “The question is one of possibility (real and not remote), not probability.”

24.Thus, the test is whether a fair-minded lay observer, having knowledge of the material objective facts, might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the determining of the application before it: Re PMMC/WJPJ and Australian Prudential Regulation Authority (2009) 112 ALD 210 at 213.

25.As I understand it, Mr May believes that the procedural directions to which he objects indicate that I am prejudiced towards him and will be unable to bring an “impartial mind” to his application.  In determining whether to recuse myself, the test is not whether Mr May believes that I might not bring an impartial and unprejudiced mind to his application but whether a fair-minded lay observer, having the relevant knowledge might hold that view.

26.Mr May contends, in effect, that the Tribunal has, by making the orders he objects to, given an unfair forensic advantage to the Commission and that an inference may therefore be drawn that the Tribunal lacks impartiality.  The objective fact is otherwise.  All that has happened is that the Commission foreshadowed a need to put on a discrete piece of extra evidence and warned the Tribunal that it may not be able to comply with a tight timetable proposed at a directions hearing. Courts and tribunals know that timetables cannot always be complied with and have a discretion to vary them.  I imposed that timetable despite the Commission warning that it may not be able to comply within the time allowed. No reasonable and objective observer could construe that order as biased towards the Commission. If anything, such an order might be construed as favourable to Mr May.

27.A reasonable and objective observer would also recognise that the subsequent orders kept the proceedings on track and did not substantially disadvantage Mr May.  In fact, by being served with the supplementary report ahead of the hearing, Mr May is aided in his ability to meet fully the Commission’s case. 

28.Finally, Mr May’s contention that the Commission has been given a forensic advantage by seeing his evidence before all theirs is on is misconceived.  There is no trial by ambush in this Tribunal.  The Commission’s case and all of its material except the supplementary report had been filed before the extension of time was granted.

29.I accept that Mr May feels aggrieved by the direction made to extend the time for providing Dr Loblay’s report. However in my opinion a reasonable and objective observer, versed in the relevant principles, and knowing the relevant facts, would not take the view that the Tribunal had unfairly prejudiced Mr May in the way he asserts.  Nor in my opinion would that observer reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determining of Mr May’s substantive application. 

30.Accordingly, I have decided not to grant Mr May’s application. 

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

Signed:         ............................................[sgd]...................................
  Associate to Senior Member A K Britton

Date of Decision:  7 October 2011
Applicant:  Self-represented 
Solicitor for the Respondent:     Mr B O’Brien, DLA Piper