Walker and Military Rehabilitation and Compensation Commission (Compensation)
[2016] AATA 179
•24 March 2016
Walker and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 179 (24 March 2016)
Division
VETERANS' APPEALS DIVISION
File Number(s)
2015/0456
Re
Kell Walker
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard McCabe
Date 24 March 2016 Place Brisbane The application for recusal is declined.
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Senior Member Bernard McCabe
Catchwords
RECUSAL APPLICATION – whether involvement in previous case prejudiced decision maker – whether refusal to issue summons is indicative of bias – whether fair-minded lay observer might apprehend bias – no logical connection between involvement in previous case and current proceedings – mere disagreement with interlocutory rulings is not enough to establish apprehended bias – application to recuse is declinedCases
Walker and Australian Federal Police and Anor [2010] AATA 965
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Ebner and Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
REASONS FOR DECISION
Senior Member Bernard McCabe
24 March 2016
Captain Kell Walker made a claim against the Military Rehabilitation and Compensation Commission (the Commission) in respect of injuries he says he sustained whilst undergoing training as a junior naval recruit in 1964. Captain Walker says he was assaulted for 3 days in a row whilst in the lock-up at HMAS Cerberus.
Captain Walker is representing himself in these proceedings. In the course of preparing for the hearing, he has asked the Tribunal to summons a number of documents and records. In particular, he has sought information contained in official records about another junior recruit who was said to be in the base hospital at the time. Captain Walker explained the relevance of the information in his letter of 1 December 2015 as follows:
You would no doubt appreciate the fact that [the recruit in question] has made serious allegations against me and it is for this purpose I require all important information as I believe he was on leave at the particular time he mentions.
I refused to issue the summons on 10 December 2015 because it was unclear to me how the material would assist. In the circumstances, I was not satisfied any forensic advantage that might accrue would justify the invasion of privacy of the other recruit who was not being called or alerted to the fact his records were being discussed. I thought the more obvious place to start with enquiries about Captain Walker’s leave arrangements were his personnel records. Captain Walker also asked for records of complaints made against officers and personnel in the Navy over a particular period. The summons struck me as being overbroad and it was unclear how it would assist me to decide the case. I declined to issue the summons but directed the Commission’s solicitor who appeared at the directions hearing to investigate whether the Department of Defence held any reports that might shed light on Captain Walker’s claims: see direction dated 12 November 2015.
This is not the first time Captain Walker has been before me. I also dealt with his application for review of decisions made by the Australian Federal Police and Customs under the Freedom of Information Act 1982 (Cth). My decision and reasons are set out in Walker and Australian Federal Police and Anor [2010] AATA 965 (“the FOI case”). In the course of deciding the FOI case, I had to review open and confidential affidavits provided by officers of the respondents, and I took evidence from a number of witnesses, including Captain Walker. I also had to review the many, many documents which were the subject of claims for exemption. I do not, at this distance, have any recollection of the contents of the documents, the affidavits, nor the evidence of the witnesses. I did not make any findings of credit in relation to Captain Walker or anyone else. My only recollection of the case is that it took ages to finalise because of the sheer volume of documents and the intricacy of the claims for exemption. As is often the way with decisions of that kind, Captain Walker was successful in relation to some claims for exemption and unsuccessful in relation to others.
Captain Walker has now asked that I recuse myself from further involvement in these proceedings on the basis of apprehended bias. He does so on two grounds, although I assume the two grounds are, to some extent, related:
a)The possibility I might be prejudiced against him as a consequence of hearing evidence and reading documents relating to him in the FOI case; and,
b)My failure to summons documents in these proceedings in accordance with his requests.
The test to be applied in such cases is reasonably well known. It was explained by the High Court in Ebner and Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337. In that case, Gleeson CJ and McHugh, Gummow and Hayne JJ explained (at [6]):
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.
Their Honours went on to say the test required two steps (at [8]):
First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
I will deal with each of the grounds Captain Walker has identified in his application.
The impact of exposure to material in the FOI case
Captain Walker says I had to read and hear evidence in the course of the FOI case that may have the effect of prejudicing me against him in the current proceedings. In his written submissions dated 22 December 2015, he referred to one document in particular in the FOI case that was “scandalous, malicious, false and derogatory”. He said he put it before me at the hearing in the FOI case but added: “Clearly you took no notice of the said document.” (One could interpolate here that if I did not take any notice of the document as Mr Walker claims, I could hardly be prejudiced by the content.) He said he wanted – and was denied - an opportunity to rebut what he understood to be the allegations made against him. But that is not the purpose of proceedings in the Tribunal in a Freedom of Information case.
Captain Walker’s claim in the FOI case was brought against law enforcement agencies that held documents they collected or generated in the course of investigations into allegations against him. While I have no recollection of the documents in question, it would be surprising if they did not contain material that reflected on his character. That did not stop me making a decision in that case: it is inevitable in such a case that the reviewer may be exposed to material that does not cast the applicant in a flattering light. It would be perverse if an applicant were able to complain about the impact of documents on a reviewer when the statute contemplates the reviewer making a decision in relation to those very documents. As Mason CJ and Brennan J explained in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 (at 89):
the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice.
Even if it were accepted that exposure to those documents in other proceedings might raise a question of bias in subsequent proceedings, it is impossible to see how that exposure would actually have the effect of causing me to decide this case otherwise than on the merits in circumstances where I cannot remember the content of any of the documents in question. Any fair-minded observer would realise a Tribunal member decides dozens and dozens of cases every year. Such a member is unlikely to remember the details of documents provided to him in a case occurring six or seven years earlier. I mean no disrespect when I say the details of Mr Walker’s FOI case were just not that memorable. There is no logical connection between seeing the documents and making decisions in these proceedings.
The refusal to summons documents
Captain Walker says the fact I have declined to issue summonses at his request is indicative of bias. He is wrong. The mere fact I have not acceded to his requests in an interlocutory process would not give the fair-minded observer any basis for suspecting I would not decide the case on the merits, even if the observer in question knew I had previously been exposed to other documents. Captain Walker has not pointed to anything improper that has been said or done which would indicate the case is not going to be decided on the merits; he just disagrees with the rulings I have made so far. That is not enough to establish apprehended bias, and it does nothing to confirm his claim that I am prejudiced against him after reading documents years ago that are no longer remembered.
Conclusion
I declined to recuse myself from these proceedings.
14. I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
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Associate
Dated 24 March 2016
Date of hearing 13 January 2016 Applicant By telephone Solicitor for the Respondent Mr M Hawker, Sparke Helmore Lawyers
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