Background
Background to the litigation
The applicant’s matters before the Tribunal have had a long and complex history, and I therefore set out some background to place the present application in some context.Background to this application The applicant 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 (Application 2012/0675). The focus of steps taken in the latter half of 2015 in this application was on the production of relevant documents. It was in connection with those steps that the application for recusal was made. The following represents a chronology of what occurred as it pertains to the application for recusal. Other steps, relating to the substantive application for review or otherwise not relevant to the issue of recusal, have been omitted: (a)In 2013 the applicant sought production of all communication between the High Court and the Australian Government Solicitor (AGS), the High Court’s legal adviser in these proceedings, for the period 20 July 2007 to 9 February 2009. Citing legal professional privilege, the High Court objected to the production of those documents.(b)On 7 January 2014 the Tribunal (Cowdroy J) upheld the claim of privilege over all but one of the documents, a legal advice dated 19 June 2008. It found that privilege in that document had been waived because its substance had been included in a memorandum that was produced to the applicant by Comcare. The applicant appealed the Tribunal’s decision regarding access to the documents to the Full Federal Court.(c)In the course of that appeal the applicant sought an order that she be granted access to legal advices dated 10 January and 14 February 2008 respectively, prepared by AGS for the High Court (the 2008 advices). She argued that privilege had been waived in the 2008 advices. On 22 August 2014 the Full Federal Court refused to make that order on the basis that the applicant should have sought that access at the Tribunal but had not done so.(d)On 23 September 2015, at the request of the applicant, the Tribunal issued a summons pursuant to s 40A of the Act to Comcare for production of documents relating to Investigation No 3833 conducted under the Occupational Health & Safety Act 1991 (Cth) into allegations of bullying and harassment against senior management at the High Court of Australia.(e)On 14 October 2015, following a directions hearing at which I heard both the applicant and Comcare as to the desirability of so doing, the Tribunal issued a summons pursuant to s 40A to the High Court for production of All minutes of the High Court of Australia Justices Meetings from 13 October 2006… up until and including the first Justices Meeting after 10 July 2008… A further summons, also addressed to the High Court, was issued on the same day seeking production of certain other documents relating to the applicant’s employment at the court.(f)Pursuant to the summons of 23 September 2015, documents were produced by Comcare on 6 November 2015. However, a claim for legal professional privilege was made at the same time over nine documents which were subject to the summons.(g)Also on 6 November 2015, AGS, on behalf of the High Court, produced documents pursuant to both of the summonses of 14 October 2015. However, the minutes of the Justices Meetings were produced in heavily redacted form. On the same day I gave instructions for a directions hearing to be set down to consider whether the production of documents in redacted form constituted compliance with the summons.(h)On 9 November 2015 I made access orders pursuant to s 40B(1) of the Act, granting both parties leave to inspect the documents produced by Comcare on 6 November except documents claimed under LPP. On the same day, the Canberra Registry received an email from Comcare’s legal representative in which it was suggested that further documents, which fell within the terms of the summons, might yet be found and requesting an extension of time until 23 November to provide such documents. Despite this request, no extension of time appears to have been granted – most probably due to oversight rather than a refusal to do so.(i)Also on 9 November 2015, the Tribunal issued the parties with notice of a return of summons hearing for 17 November 2015 at which two matters were to be discussed:oDocuments produced under summons from the High Court of Australia – redactedoDocuments produced under summons from Comcare – Legal Professional Privilege ClaimThe applicant was advised in writing that day that The parties can object to the granting of the LPP claim and must do so in writing. (j)On 11 November 2015 I heard the applicant’s application for access to the 2008 advices (see para (c) above). I found that legal professional privilege in the advices had not been waived, and I made an order under s 35(4) of the Act that disclosure of those advices to the parties be prohibited. In the course of that hearing some discussion ensued as to the availability of counsel for the hearing the following week (17 November 2015).(k)In the course of the following few days the applicant’s husband indicated to the Registry that the applicant would prefer not to deal with Comcare’s claim of legal professional privilege over the documents produced on 6 November at the hearing on 17 November. This was on the basis that the applicant intended to issue a further summons to Comcare and would therefore prefer to hold over consideration of any privilege claim until all documents that might ultimately be subject to such a claim had been produced. The Registry file note records: However she [the applicant] cannot deal with Comcare’s LPP claim at this stage as they [the applicant and her husband] are going to issue another summons to Comcare (found evidence of another investigation in documents) and they expect there will be further LPP claims and have requested this matter be adjourned to a latter [sic] date.(l)Taking this request of the applicant into account, it was determined that the hearing on 17 November would proceed but would deal only with the issue of the redacted documents produced by the High Court, and not Comcare’s claim of privilege over the documents it had already produced. A request from the High Court’s representative that this hearing date be vacated on account of the unavailability of counsel was refused.(m)On 13 November the applicant’s husband attended the Registry. A Tribunal file note of that date records He advised the A will request another summons be issued and will drop that off on Tuesday 17.(n)On 17 November 2015 the return of summons hearing was conducted to deal with the redacted documents produced by the High Court. At the hearing I expressed concern that the production of redacted documents might not be consistent with the obligation placed on summonsed persons under s 40A. At this point counsel for the High Court volunteered to produce to the Tribunal an unredacted version of the Justices Meetings minutes. I accepted this offer, and an unredacted version of the minutes was produced to the Tribunal later the same day. (o)In the course of the hearing, and notwithstanding that the Tribunal had already advised the parties that the question of privilege over Comcare’s documents would not be considered that day, the applicant raised concerns about the lack of specificity in Comcare’s claim for legal professional privilege in the documents it had produced under summons, and also raised the contention that some documents which ought to have been produced according to the summons had not been produced. I indicated that these matters could be addressed at the future directions hearing where the claim for privilege would be determined.(p)On the same day, 17 November 2015, a further summons was issued against Comcare for documents relating to Comcare Review Investigation No 3237 of the High Court of Australia conducted in December 2007…(q)On 25 November 2015 I made two directions, one putatively for confidentiality under s 35(4) over the unredacted version of the High Court minutes and the other putatively for access by the parties to the redacted version of the minutes. (However, as I reviewed the Tribunal file in the course of preparing this decision on the applicant’s application regarding bias, it became evident that the direction of 25 November was defective, and accordingly it was varied and fresh directions made on 6 April 2016.)(r)On 30 November 2015 Comcare’s legal adviser informed the Tribunal by email that Comcare was attempting to locate a document that the applicant had referred to at the hearing on 17 November, a document which was to have been produced under summons but which appeared to be missing. The adviser indicated that a search was underway for that document, and that Comcare would endeavour to produce all summonsed documents by 21 December 2015, the return date for the most recent summons issued on 17 November 2015. According to a note on the Tribunal file, this email from Comcare’s legal representative was drawn to the attention of the applicant’s husband on 2 December 2015 and he did not have any issues with Comcare having until 21/12/15 to provide the docs.(s)On 2 December 2015 Comcare produced to the Tribunal nine documents in answer to the summons of 23 September 2015. At that time it claimed legal professional privilege over all nine documents. On examination at the Tribunal, it became apparent that the nine documents produced on 2 December 2015 were almost identical with the nine documents produced by Comcare on 6 November 2015 (see paragraph (f) above)[1], with the exception that:[1] The later bundle of documents, though identical in content to the earlier bundle, appears to have been printed from a different source. Apparently this is because the later bundle was sourced from archival material.(i)on 6 November 2015 a claim of legal professional privilege was made over an email exchange between Mr Ian Carter and Mr Christopher Mee, dated 27 and 29 October 2008 (the Carter-Mee document), but this document was omitted from the bundle over which privilege was sought on 2 December 2015, and(ii)on 2 December 2015 a claim of legal professional privilege was made over a file note dated 7 May 2008 of a conversation between Mr David Morters and Mr Christopher Mee, a document which was not included in the bundle produced on 6 November 2015.(t)On 14 December 2015 I made a direction under s 35(4) prohibiting disclosure to the applicant of 10 documents: that is, the eight documents which were common to the bundles produced on 6 November and 2 December 2015, as well as the single document which was unique to each of those bundles. A copy of this direction was transmitted or otherwise made available to the parties within a day or so of it being made.(u)On 24 December 2015 the applicant wrote to the Tribunal in relation to the direction of 14 December 2015. In that letter she said, inter alia:It was agreed at the directions hearing on 17 November 2015 that given Comcare’s 9 November 2015 request for an extension of time in which to comply with the summons re Comcare Investigation No 3833, once all documents pursuant to that summons issued on 23 September 2015 had been received, the Tribunal would list a directions hearing to deal with my objection to Comcare’s claim for legal professional privilege and any outstanding issues of non-compliance.I am therefore at a loss to understand how it is that on 14 December 2015 Deputy President Humphries proceeded to determine a claim made by Comcare for legal professional privilege over 10 communications in circumstances where the Tribunal had not notified me, by way of text message or correspondence sent to my home address, of:(a) …(b) …(c) Deputy President Humphries’ intention to make a determination on Comcare’s final claim for legal professional privilege on 14 December 2015.She went on to request that the direction of 14 December 2015 be vacated.(v)On 1 February 2016 a notice was issued to the parties advising of a directions hearing listed for 9 February 2016. The notice issued to the applicant indicated that the issues to be discussed would be Return of summons material, progression of matter. On the same day, my associate spoke by telephone with the applicant’s husband. My associate’s file note records Mr O’Neill [the applicant’s husband] asked whether the Direction referred to in A’s letter of 24/12 had been vacated. I said that the TDH would address this.(w)On 3 February 2016 the applicant wrote a further letter to the Tribunal. In the letter she complained that I have not received a response to my correspondence stated 24 December 2015… She went on to say:I have not been advised whether or not Deputy President Humphries’ direction dated 14 December 2015 has been vacated. A text message has been received from the Tribunal advising that there is a directions hearing listed for next Tuesday, 9 February 2016, which I understand is for the purpose of setting a timetable for progressing the proceeding to substantive hearing.She proceeded to again seek a written response to her letter of 24 December 2015.(x)On 4 February 2016 the applicant’s husband attended the Registry, where he again spoke with my associate. The latter made the following file note:I advised that the Directions Hearings next week would address the confidentiality order of 14.12.15, and reminded Mr O’Neill that the order could be revoked.(y)On 8 February 2016 the applicant wrote a further letter to the Tribunal. In the letter she traverses some of the history of the matter, and contends that the Tribunal has provided no written response to my correspondence dated 24 December 2015 and 3 February 2015… there is conclusive evidence that I have been the victim of obvious deficiencies in the Tribunal’s administrative processes.(z)The applicant wrote a further letter on 9 February 2016 in which she said that she was only supplied with a copy of Comcare’s new claim for legal professional privilege on 4 February 2016, two months after it had been produced to the Tribunal.(aa)On 9 February 2016 a directions hearing was held in the Tribunal to consider whether the confidentiality order of 14 December 2015 should be revoked. At the outset of that hearing I indicated that there had been some confusion within the Canberra Registry relating to the various matters being pursued by the applicant before the Tribunal. In particular, I indicated that the Tribunal had overlooked setting down in December a return of summons hearing to deal with the determination of Comcare’s claim for legal professional privilege. I referred to this as an oversight, and made clear that the opportunity to be heard on the question of privilege would still be afforded to both parties. The applicant and her husband restated her concern that the confidentiality order of 14 December 2015 had been made without her being given the opportunity to present arguments against such an order (I’ve been denied natural justice), and appeared reluctant to accept the advice from the Tribunal that this opportunity still lay ahead of her. The following exchange is illustrative:Deputy President: Mr O’Neill, I think I’ve made clear…Mr O’Neill:…that you’re not going to revoke or vacate your …Deputy President: No, no, that wasn’t what I said. Today’s hearing is designed to provide you with an opportunity, if you want to take it up today, to deal with the question of whether that order should be vacated… It was always going to be the case that when the documents arrived and privilege was claimed over them that an order would be made under section 35 to protect those documents until such time as the claim could be heard. Now that period under which the documents were subject to that claim is longer than it ought to have been – I readily concede that – but today is the chance… for us to deal with that issue.(bb)In relation to the letters the applicant wrote to the Tribunal on 24 December 2015 and 3, 8 and 9 February 2016, I made these comments:Generally speaking, tribunals – and courts for that matter – don’t engage in correspondence per se with litigants, because the judicial authority of those bodies is exercised through orders and directions made in the course of either hearings or chambers directions… correspondence, particularly ones that appeared not to have been circulated to the other parties in the proceedings, would not normally be responded to by tribunals… It was always my intention that, having raised that issue, it should be dealt with by way of a directions hearing or interlocutory proceeding in an open Tribunal hearing… (cc)Towards the end of the hearing, the applicant indicated that she was not then in a position to deal with the question of whether the 14 December order should be vacated. I asked her how long she would need to prepare her arguments; she asked for three weeks. I advised the parties that the return of summons hearing would be held not less than three weeks from that date.(dd)Also at the hearing on 9 February, Comcare’s representative made it clear that Comcare was abandoning its claim to privilege over the Carter-Mee document. I made an order later that day, varying the order of 14 December 2015 to remove the Carter-Mee document from its ambit.(ee)On 2 March 2016 the resumed directions hearing was held in the Tribunal. In opening the hearing, I reminded the parties that, at the previous hearing on 9 February, it had been agreed that this day would be set aside to address the question of whether legal professional privilege would apply to the... nine documents over which privilege is claimed… I described this issue as the dominant purpose of today’s hearing. The applicant sought to deal with her contention that there remained documents which were subject to the summons to Comcare of 23 September 2015 and which had not been produced. I indicated that the Tribunal would consider this issue in due course, but that the primary purpose of the hearing that day was to consider whether the confidentiality order of 14 December 2015 should be varied or revoked. The applicant then made her application for me to recuse myself on the basis of apprehended bias. She presented a written submission in support of her application, and made an oral submission in similar terms. She postulated the test of apprehended bias to be whether a fair-minded and informed observer might reasonably apprehend that a decision maker did not bring an impartial and unprejudiced mind to the question he or she was required to decide. She contended[2] that the Carter-Mee document – part of the bundle of documents over which Comcare claimed privilege on 6 November 2015 – did not attract legal professional privilege as it had evidently not been created for the dominant purpose of obtaining or giving legal advice. She further contended that, by not including the Carter-Mee document in the bundle of documents over which privilege was claimed on 2 December 2015, Comcare had abandoned its claim for privilege over the document. She concluded that, by granting privilege over a document which patently did not warrant such protection, and where the privilege-claimant had itself abandoned the claim, a fair-minded and informed observer might conclude that I was showing bias towards Comcare’s position in these proceedings. The applicant told the Tribunal:On the 14th of December you were satisfied that you should proceed to decision to determine to finality the claims for privilege, and you did so and you made the decision you made, but for my taking issue we are in the situation that we are now.[2] In fact submissions were made from the bar table both by the applicant and by her husband.The applicable law
