Von Stieglitz and Comcare (Compensation)

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Von Stieglitz and Comcare (Compensation) [2016] AATA 367 (1 June 2016)

Division

GENERAL DIVISION

File Number(s)

2012/0675

Re

Katherine von Stieglitz

APPLICANT

And

Comcare

RESPONDENT

INTERLOCUTORY DECISION

Tribunal

Deputy President Gary Humphries
Date 1 June 2016  
Place Canberra

1.    The application of 26 April 2016 to have Deputy President Humphries recuse himself is refused.

2.    The nine documents produced on 2 December 2015 by the respondent attract legal professional privilege, which has not been waived by the respondent’s conduct.

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

Deputy President Gary Humphries

Catchwords

PRACTICE AND PROCEDURE – application for recusal on grounds of apprehended bias – application refused.

PRACTICE AND PROCEDURE – summons to produce documents – legal professional privilege attaching to certain documents – whether legal professional privilege waived.

Cases

Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804

AWB Ltd v Cole (No 5) (2006) 155 FCR 30

Barnes v Commissioner of Taxation (2007) 242 ALR 601

Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101

Dingwall v Commonwealth of Australia (1992) 39 FCR 521

Waterford v Commonwealth (1987) 163 CLR 54

REASONS FOR DECISION

Deputy President Gary Humphries

1 June 2016

Recusal

  1. The applicant, Katherine von Stieglitz, was a Senior Court Reporter employed by the High Court of Australia until April 2008, when her employment was terminated. She subsequently brought two claims for workers compensation against Comcare in relation to her employment at the High Court. In relation to her second claim, initiated in 2012, the applicant applied to the Tribunal for review of a Comcare redetermination denying her compensation for an injury caused, she claimed, by the summary termination of her employment.

  2. The applicant made an application on 2 March 2016 that I recuse myself from hearing of her various applications before the Tribunal. On 6 April 2016 I refused this application, and provided written reasons for doing so. On 26 April 2016 the applicant again made an application that I recuse myself in the same matters. This application was made during a hearing on that day to determine whether an order granting legal professional privilege over nine documents lodged by Comcare on 2 December 2015 should be revoked.

  3. I declined to recuse myself on the further application. These are my reasons for doing so.

  4. Some background is usefully set down. On 14 December 2015 I made a direction, pursuant to s 35(4) of the Administrative Appeals Tribunal Act 1975 (the Act), over those nine documents produced under summons by Comcare, the respondent in these proceedings. I directed that disclosure of the documents to the applicant be prohibited. The direction was made on the basis of a claim by Comcare that the documents, or some of them, were subject to legal professional privilege. This direction of 14 December 2015 was made on an interim basis until a hearing could be arranged to hear the parties on whether privilege indeed attached to the documents.

  5. At an interlocutory hearing on 2 March 2016, set down to hear an…

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Details
Case
[2016] AATA 367
Decision Date

CaseChat Overview and Summary

In the matter of *Von Stieglitz and Comcare (Compensation)*, Deputy President Gary Humphries P of the Administrative Appeals Tribunal considered an application for recusal on the grounds of apprehended bias, and a related issue concerning legal professional privilege over certain documents. The applicant sought the Deputy President's recusal, alleging that the tone and substance of a previous recusal decision demonstrated personal animosity and a lack of impartiality. The applicant also contended that a fair-minded lay observer, upon reading her submissions and the Deputy President's reasons for refusing recusal, might reasonably apprehend bias.

The primary legal issues before the Tribunal were whether the Deputy President should recuse himself due to apprehended bias, and whether nine documents produced by Comcare attracted legal professional privilege, and if so, whether that privilege had been waived. The applicant argued that the Tribunal had unduly delayed addressing her concerns regarding Comcare's privilege claim, and that the Deputy President's remarks in a previous decision were a measured response to this argument. The applicant further submitted that the Deputy President's characterisation of her belief that she had been deprived of her day in court, as expressed in paragraph 21 of his earlier reasons, indicated a lack of impartiality.

The Deputy President reasoned that the applicant's current application for recusal was a restatement of arguments already fully considered and rejected in the original recusal decision. He found that the remarks in question were a proportionate response to the applicant's submission regarding delay and did not demonstrate personal animosity or a lack of impartiality. The Deputy President concluded that a fair-minded lay observer would not reasonably apprehend bias based on the material presented.

Consequently, the Tribunal refused the application for recusal. The Tribunal also determined that the nine documents produced by Comcare attracted legal professional privilege, and that this privilege had not been waived by Comcare's conduct.

Orders

Orders of the court

1. The application of 26 April 2016 to have Deputy President Humphries recuse himself is refused.

2. The nine documents produced on 2 December 2015 by the respondent attract legal professional privilege, which has not been waived by the respondent’s conduct.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The second response is to observe that, if the applicant believes the Tribunal has made an error in its recusal decision, the proper course open to her is to appeal that decision to the Federal Court, not to make a fresh application for recusal rehearsing the same arguments as were put to the Tribunal in the first application.The tone and substance of the recusal decision The applicant appears to believe that the terms of the recusal decision discredited her, and were in a form that exhibited personal animosity towards her. In doing so, she refers to two sentences in paragraph 20 of the decision:In truth it has taken an inordinate length of time to bring the question of Comcare’s privilege claim before the Tribunal for determination; indeed it has still not reached that stage. But the delay must be laid at the feet of the applicant herself. The Tribunal does not accept this characterisation of the decision. The applicant had argued that the Tribunal had delayed addressing her concerns about the granting of legal professional privilege over Comcare’s documents. The remarks referred to were a measured and proportionate response to that argument.The fair-minded lay observer might apprehend bias The applicant’s third contention is contained in the final sentence of her written submission:If the fair-minded lay observer were to read paragraph 12 of the Applicant’s written submissions which were read onto the Tribunal record at the hearing on 2 March 2016, or be accurately informed of its contents, namely:“The Applicant submits that, taking into account the relevant matters above and applying the relevant legal principles, a fair-minded lay observer might reasonably apprehend that Deputy President Humphries would not, on 2 March 2016, bring an impartial and unprejudiced mind to the resolution of the question of whether the 9 communications in Comcare’s 2 December 2015 claim for LPP are privileged communications” – and then read paragraph 21 of Deputy President Humphries’ 6 April 2016 reasons for his decision not to recuse himself, or be accurately informed of its contents, namely:“There seems to be little doubt that the applicant resolutely holds to the view that she has been deprived of her day in court, that is, her chance to demonstrate that she should be entitled to see the nine documents which Comcare claims attract legal professional privilege” – the Applicant submits that the fair-minded lay observer might reasonably apprehend that Deputy President Humphries is not an impartial and unprejudiced decision-maker when making decisions in the Applicant’s Tribunal proceeding. It seems to me that this contention is no more than a restatement of the argument that was put to the Tribunal on the original application for recusal. Its restatement in this way in the current application adds nothing to the arguments that were fully considered in the original recusal decision. Accordingly the application of 26 April 2016, that I recuse myself from hearing the applicant’s matter, is refused.Whether Comcare’s documents attract legal professional privilege

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.