Re Mellor and Australian Postal Corporation
[2010] AATA 288
•19 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 288
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2902
GENERAL DIVISION ) No 2007/2390
Re THOMAS MELLOR
Applicant
AndAUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
TribunalJustice Downes, President and Dr Ion Alexander, Member
Date of written reasons 22 April 2010
PlaceSydney
DecisionThe Tribunal will be constituted by Dr Ion Alexander for the hearing to take place pursuant to the remittal by the Federal Court.
..................[sgd..............................
Garry Downes
President
CATCHWORDS
ADMINISTRATIVE LAW – Remittal from Federal Court of Australia for error of law – constitution of tribunal on remittal – apprehended bias claim – apprehended bias outside s 21A of Administrative Appeals Tribunal Act 1975 (Cth) – general principles apply – relevance of limited nature of appeal – no apprehended bias.
RELEVANT ACT/S:
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 14, 21A, 33
CITATIONS
Cohn v Hatcher (2005) 146 FCR 275
Johnson v Johnson (2000) 201 CLR 488
Oreb v Willcock (2005) 146 FCR 237
REASONS FOR DECISION
22 April 2010
Justice Downes, President
1. This application raises the question of whether circumstances may arise in which it is appropriate for a member of the tribunal to recuse himself or herself from re‑hearing a matter remitted to the tribunal by the Federal Court of Australia where the matter has been remitted because the tribunal made a technical error of law. The question is whether, in those circumstances, there may be an apprehension of bias which should lead to the tribunal member recusing himself.
2. This matter was heard in the tribunal by one its members, Dr Ion Alexander. Dr Alexander affirmed a number of decisions which were under review. Part of Dr Alexander’s decision was appealed by the applicant, Mr Mellor, to the Federal Court of Australia, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Section 44 confers a right of appeal on an unsuccessful applicant in the tribunal “on a question of law”.
3. There are many decisions of the Federal Court of Australia commenting on the limited nature of the appeal under s 44. It is, of course, quite different from and narrower than, an appeal within the judicial context from a judge to a Full Court or a Court of Appeal, where there is a full re-hearing, even though the appellate court may defer to findings made by the trial judge which depend upon the trial judge’s closer knowledge of the facts of the case and the advantage of having seen witnesses.
4. The error of law found in the Federal Court by Bennett J in the present case can fairly be described as a finding of an error of law on a narrow question. Bennett J described the error as an error “in law in applying [a] test of materiality” at [47]. In particular, she said that the tribunal confused “the requirement that the employment [of the applicant] be a material cause of the aggravation [of an underlying condition] with a requirement that the effect of the aggravation be material” (original emphasis) at [36].
5. Bennett J arrived at the conclusion that there was an error of law only after a careful analysis of contrary submissions put on behalf of the Australian Postal Corporation. It cannot be said that there was something obvious about the error. Indeed, it has been suggested before me that the error appears in the text of one of the decisions that were handed up to Dr Alexander during the course of the hearing. However, this does not seem to me, ultimately, to affect the matters with which we are concerned today.
6. Bennett J remitted the matter to the tribunal without any direction as to how the tribunal should be constituted. She only remitted the tribunal’s decision to affirm two of the reviewable decisions. There was no appeal from the other decisions of the tribunal.
7. When a matter is remitted by the Federal Court of Australia for rehearing in the tribunal, a decision needs to be taken as to how the tribunal will be constituted for the rehearing. It is my general practice to determine myself the constitution of the tribunal, when matters are remitted in this way. In the present case I determined that the matter should be heard by the tribunal constituted again by Dr Alexander.
8. The matter came on for re-hearing before Dr Alexander on 19 January 2010. At that time, application was made on behalf of Mr Mellor for Dr Alexander to recuse himself. The application was made under s 21A of the Act. The basis for the application was apprehended bias.
9. The background to the claim of apprehended bias is some of the findings made by Dr Alexander in his reasons for decision. Dr Alexander referred, for example, to Mr Mellor’s “unconvincing evidence” at [259] Nevertheless, in the very sentence in which he said this, he made a finding in favour of Mr Mellor. The basis of the application, then, is findings as to the applicant’s credit, and also, I think, findings on the weight of medical evidence.
10. The application was made under s 21A of the Act. That section was inserted in the Act in 1977, relatively shortly after the tribunal was established. Prior to that time a presidential member was required to preside at a hearing of the tribunal. The amendments in 1977 permitted the tribunal to be constituted in a number of ways and a number of these without a presidential member presiding.
11. Section 21A operates on matters where the hearing has commenced. It permits a party to “apply to the tribunal as constituted … requesting that the tribunal be reconstituted …”. The tribunal hears the application and then, pursuant to section 21A(2), notifies “the President of the making of the application and give[s] him or her particulars of [the] submissions.” Section 21A(3) confers a discretion on the president “after taking the submissions into account” to reconstitute the tribunal “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.”
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.
14. Although the subject matter of the issues that were before Dr Alexander and Bennett J were not easy, and raised issues on which there could be differing views, they are the sorts of issues which arise with frequency in the tribunal, particularly in compensation cases such as the present case. In addition, as was submitted by Ms Henderson, counsel for the Australian Post Office, the matter of law that arose has now been determined. There is no appeal from Bennett J’s decision and so that issue must now be determined by the tribunal in accordance with her reasons. This is a further basis upon which I think it must be concluded that there was no sufficient question of public importance to justify the making of an order under s 21A.
15. So it is not appropriate to reconstitute the tribunal under s 21A. That is not, however, an end of the matter. The tribunal is plainly bound by the rules of natural justice. This is tacitly recognised by s 14 of the Act relating to the interests of members and by other sections. However, it does not depend upon recognition in the Act and many judicial decisions establish the proposition that the tribunal is bound by the rules of natural justice. One of those rules is, of course, the rule relating to apprehended bias.
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 s 21A application, came before me.
18. All powers relating to the constitution of the tribunal and the reconstitution of the tribunal in terms of the statutory basis therefore are conferred by the Act on the president. The president has significant powers relating to the constitution and reconstitution of the tribunal. These powers extend well past the ground in s 21A. There is, for example, a specific power conferred on the president to deal with an application that a member not constitute the tribunal for a hearing because of an interest (s 14). That, of course, is an example of the rules of natural justice applying.
19. In these circumstances, and because the matter came before me, it seemed to me that the sensible course for the tribunal to adopt – and this course has been adopted in at least one previous matter – was for the tribunal, constituted by myself and Dr Alexander, to deal generally with the issue of the application made on behalf of Mr Mellor. I, accordingly, reconstituted the tribunal, simply for the purpose of this application, by Dr Alexander and myself. I do not propose, however, that I will preside at the substantive hearing which will occur.
20. The rules relating to apprehended bias are well established. There are a number of recent decisions of the High Court and other appellate courts relating to them. A convenient summary of the principle, identified for me by Mr Shoebridge for the applicant, is in the decision of the High Court of Australia in Johnson v Johnson (2000) 201 CLR 488 at page 492, where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne 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.
Ultimately, the present question is whether that provision has been satisfied, but it needs to be considered in its context.
21. This is not a case in which a tribunal member, who has made observations about the credit of a party, is called upon to hear a subsequent, but entirely different, case, in which the same party is the applicant. This is a case in which a member properly constituted the tribunal for a hearing. No suggestion of apprehended bias was made at the time of the hearing, nor was there any basis on which such an apprehension could be based. What has happened is that there has been an appeal from the findings of the member, but only on a narrow question of law. There was no appeal from any of his findings relating to credit, or any finding other than the narrow question of law. In these circumstances it seems to me that an issue arises as to whether merely because a tribunal member has properly made observations relating to the finding of facts generally, and in association with that, to the credibility of witnesses, this should be a relevant matter in determining whether the member should recuse himself or herself from further hearing the matter.
22. I specifically asked counsel for both parties whether they could provide authority on the proposition. The only authorities that have been referred to are Cohn v Hatcher (2005) 146 FCR 275 and Oreb v Willcock (2005) 146 FCR 237. However, as I think counsel recognise, these decisions do not directly address the matter.
23. When an appeal under s 44 of the Administrative Appeals Tribunal Act is successful, the Federal Court has a number of powers provided for in the section. Section 44(4) gives the court power to “make such order as it thinks appropriate by reason of its decision”. Section 44(5) gives it a discretion to determine whether the remitted matter is to be determined “with or without the hearing of further evidence.”
24. Section 44(6) contemplates that the tribunal, after remittal, might be differently constituted from the original tribunal, but in doing so it must also contemplate that the tribunal might be similarly constituted. The subsection also goes on to provide that the tribunal, whether or not it is reconstituted, can have regard to any record of the proceedings before the tribunal prior to the appeal.
25. All of this needs to be seen in the context that section 33(1)(b) of the Act requires proceedings to be conducted “with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit.” In addition to that requirement, s 2A of the Act, which was inserted in 2005, requires the tribunal to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”
26. These provisions are not, to my mind, insignificant in dealing with the question of how the tribunal should be constituted and, in particular, whether the tribunal should be constituted by a different member or members after remittal on an appeal. I note, however, that this factor does not affect the circumstances which would apply if, notwithstanding their significance, there remained a reasonable apprehension of bias.
27. It seems to me that although the matter is before the tribunal by remittal, afresh, for potentially a full rehearing, it would be ignoring reality to put aside the fact that a member of the tribunal, without bias or apprehended bias, has determined factual issues in the case, where those findings have in no way been displaced by the appeal to the Federal Court. There is even a possible view of an application for reconstitution of the tribunal in those circumstances, that the applicant is seeking to take advantage of a technical error of law to give the applicant an opportunity to have a re-hearing of aspects of a matter where the finding was not in error in any respect. Such an applicant would have the distinct advantage of being able to seek artificially to avoid the findings of the first tribunal. That is not an opportunity which other applicants in the tribunal have and it does not seem desirable to my mind that a mere technical error of law alone should present an opportunity of revisiting a factual matter on which the applicant was unsuccessful the first time around.
28. It accordingly seems to me that just because a member makes an observation relating to credit, a fair-minded lay observer would not apprehend that the member might not bring an impartial and unprejudiced mind to the resolution of the matter. That is not to say that the member may not come to the same conclusion as the member came to the first time, but that is far from not bringing an impartial and unprejudiced mind to the resolution of the question. It is important to note that the fact alone of coming to the same conclusion a second time, or the prospect of that, is not the test. The test relates to the mind of the member and not whether the decision might or might not be the same.
29. In all these circumstances it seems to me that the appropriate decision relating to the constitution of the tribunal is that it be reconstituted as it was for the original hearing. That will assist in achieving the objects of s 2A and s 33 of the Act. As Gleeson CJ recognised in the Minister for Immigration v Wang (2003) 215 CLR 518 at 520-521, there dealing with the migration tribunals, an important discretion is conferred on a person such as the President of the Administrative Appeals Tribunal to take into account a number of facts in deciding how a tribunal should be constituted.
30. To my mind, all those factors lead to the tribunal being constituted for this case by Dr Alexander. It is not really for me, in a sense, if this matter had been dealt with in the way I have suggested it perhaps should have been dealt with, to offer a view about the question of apprehended bias. However, as the matter has been raised before me, I do wish to make the observation that there is nothing to my mind in the decision of Dr Alexander, accepting all of the paragraphs that are relied upon as potentially giving rise to an apprehension of bias, which would cause the lay observer postulated in Johnson v Johnson to draw a negative conclusion.
31. Indeed, I think that that lay observer would consider that Dr Alexander, taking into account the way in which his finding on the question of law has been corrected, would be the ideal person to hear the case. I have no doubt that Dr Alexander will come to the hearing, and a lay observer would consider that he would come to the hearing, with an entirely open mind about whether the findings that he made should be the same as the findings he made originally. He may come to the same conclusion. He may not. But I have no doubt that a lay observer would not conclude, within the test, that he might be biased. I accordingly propose that the tribunal be constituted for the hearing of the appeal by Dr Alexander.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President
Signed: ....................[sgd]........................................................
Alison Connor, Associate
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2902
GENERAL DIVISION ) No 2007/2390
Re THOMAS MELLOR
Applicant
AndAUSTRALIAN POSTAL CORPORATION
Respondent
REASONS FOR DECISION
22 April 2010
Dr Ion Alexander
1. Thank you. I would just like to say that I agree with the opinions expressed by President Downes and I don’t have anything to add other than to say that I believe that I am able to reconsider this matter following further submissions by both parties with an open mind, and that I will be able to make a decision which is impartial and unprejudiced according to law. It follows that I do not accept the application made on behalf of Mr Mellor that I should recuse myself on the basis of the perception of apprehended bias.
I certify that the 1 preceding paragraph is a true copy of the reasons for the decision herein of Dr Ion Alexander
Signed: ............................[sgd]...............................................
Alison Connor, AssociateDate/s of Hearing: 19 April 2010
Date of Oral Decision: 19 April 2010
Date of Written Reasons: 22 April 2010
Solicitor for the Applicant: Ms E. Hitchen
Counsel for the Applicant: Mr Shoebridge
Solicitor for the Respondent: Mr G. Jones
Counsel for the Respondent: Ms R. Henderson
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