Wiegand and Comcare

[2007] AATA 1391

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1391

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200700042

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOACHIM WIEGAND

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date30 May 2007

PlaceAdelaide

Decision For the reasons given orally, I disqualify myself from constituting the Tribunal on the remitted rehearing of the applicant's application in this matter.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE - remittal of matter to tribunal for rehearing – constitution of tribunal on rehearing of application.

Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376

Comcare v Canute (2005) 148 FCR 232

Comcare v Sahu-Khan (2007) 156 FCR 536

Hart v Comcare (2005) 145 FCR 29

Industry Research and Development Board v IMT Ltd [2001] FCA 85

Johnson v Johnson (2000) 201 CLR 488

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 83 ALD 545

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 93 ALD 300

Wiegand v Comcare Australia (2002) 72 ALD 795

Wiegand v Comcare Australia (No. 2) (2007) 94 ALD 154

REASONS FOR ORAL DECISION

30 May 2007   Deputy President D G Jarvis

1.      By orders made on 16 February 2007, Finn J allowed an appeal by Mr Wiegand from my decision of 12 August 2005 affirming the reviewable decision made by the respondent, and remitted this matter to the tribunal for rehearing (see Wiegand v Comcare Australia (No. 2) (2007) 94 ALD 154).

2.      At a directions hearing on 4 May 2007, Mr Wiegand expressed quite strong concern when I intimated that I would constitute the tribunal on the rehearing of this matter.  He asked me, in considering his concern, to read certain submissions that he had prepared in support of his appeal to the Federal Court.

3.      After that directions hearing Mr Wiegand sent to the tribunal a letter dated 9 May 2007 in which he sought to “clarify the matter”.  I have carefully considered that letter and Mr Wiegand’s submissions to the Federal Court.

4.      When I determined Mr Wiegand’s application to review Comcare’s decision to reject his claim for compensation, I applied the test which had previously been approved by the Federal Court as to the relationship to employment that must exist for a disease suffered by an employee to be compensable under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”). However, after I delivered my decision, a majority of the members of the Full Federal Court in Comcare v Canute (2005) 148 FCR 232 suggested that there should be a more stringent test of compensability for disease suffered by Commonwealth employees. In his judgment when he determined Mr Wiegand’s appeal, Finn J applied that more stringent test, and it was on that basis that his Honour allowed the appeal. It will accordingly be necessary on the rehearing of this matter for the tribunal to consider the relevance of the more stringent test to the various employment related events on which Mr Wiegand’s claim for compensation is based, as well as the possible relevance of this more stringent test to certain events which the respondent contends constitute exceptions to the definition of “injury” in s 4 of the SRC Act.

5.      The rehearing will therefore entail evaluating the relevant evidence by reference to the more stringent test, which Finn J also explained in another case decided shortly before Wiegand (No. 2 ), namely Comcare v Sahu-Khan (2007) 156 FCR 536. In my reasons for my decision to affirm the decision under review I evaluated the relevant evidence by reference to the different test that had been approved in two Federal Court judgments before Canute, and I made no adverse findings as to Mr Wiegand’s credibility.  In those circumstances, and in accordance with the principles referred to in Industry Research and Development Board v IMT Ltd [2001] FCA 85 and other authorities referred to in that case dealing with the constitution of tribunals where a matter is remitted for rehearing, I had previously seen no difficulty in my constituting the tribunal following the remittal of the matter for rehearing. I make it clear that I am not biased against Mr Wiegand, and I could not see any basis on which it could have been contended that there could be any reasonable apprehension of bias on my part.

6.      However, after reading Mr Wiegand’s submissions to the Federal Court, I realised that Mr Wiegand is concerned that I had not afforded him procedural fairness, in that I had not indicated that I “had in mind” certain events relevant to the exceptions to the definition of “injury”, namely the two events which (I subsequently decided) had, in combination with a number of other more causally significant events, resulted in his depressive condition, thus leading me to reject his claim in accordance with the judgment of the Full Federal Court in Hart v Comcare (2005) 145 FCR 29. This judgment was delivered part-way through the hearing of Mr Wiegand’s case. In his written submissions to the Federal Court in relation to procedural fairness, Mr Wiegand relied on the decision of the High Court of Australia in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 83 ALD 545. The point made by Mr Wiegand is perhaps more strongly illustrated in a later decision of the High Court, namely SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 93 ALD 300, where the Court referred to the obligation of a tribunal to ask a party to expand upon specific aspects of his or her evidence which it considers may be important to its decision, and to explain why the party’s evidence should be accepted.

7.      In fact, after the last day of the hearing of Mr Wiegand’s application before me, my associate, at my request, had asked Mr Wiegand to provide written submissions on those aspects of Comcare’s contentions that related to Hart v Comcare where counsel for Comcare, in his outline of submissions, had referred to five asserted events that were said to constitute excepted events for the purposes of the definition of “injury”.  However, Mr Wiegand’s submissions to the Federal Court indicate that he had understood that the focus of counsel’s submissions in relation to Hart v Comcare was on one only of the excepted events, namely Mr Wiegand’s failure to receive a promotion in 1997.  As events transpired, I found in Mr Wiegand’s favour as to that issue.

8.      Finn J did not comment in his judgment on Mr Wiegand’s written submissions to the Federal Court as to procedural fairness, and did not need to do so, because his Honour decided the appeal on different grounds.

9.      In retrospect, and in the light of Mr Wiegand’s written submissions to the Federal Court in support of his appeal, it appears that Mr Wiegand did not appreciate that I was concerned not only about the 1997 failure to obtain a promotion, but also about the remaining four asserted excepted events.

10.     In those circumstances, and whilst I do not agree that I denied Mr Wiegand procedural fairness, I consider that, in accordance with the principles laid down by the High Court of Australia in such cases as Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376 and Johnson v Johnson (2000) 201 CLR 488 at [11], I should disqualify myself from constituting the tribunal on the remitted rehearing, and that the tribunal should be constituted by another member or members of the tribunal.

11.     In reaching my above conclusion, I am also mindful that Mr Wiegand is self-represented, and that there was another earlier hearing in this tribunal before a Senior Member of this tribunal which was also set aside by the Federal Court following an appeal by Mr Wiegand (see Wiegand v Comcare Australia (2002) 72 ALD 795). The further remitted rehearing will therefore be the third hearing before this tribunal to review Comcare’s decision to reject Mr Wiegand’s claim. In view of this history, it is most important that there should be no doubt as to the impartiality of the member or members of the tribunal who will conduct the further rehearing.

Decision

12.     For the above reasons, I disqualify myself from constituting the Tribunal on the remitted rehearing of the applicant's application in this matter.

I certify that the 12 preceding paragraphs are
a true copy of the reasons for the decision
herein of Deputy President D G Jarvis

Signed:         .....................................................................................
           L. Wunderer  Associate

Date/s of Hearing  30 May 2007
Date of Decision  30 May 2007
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Advocate for the Respondent   Ms R Evans
Solicitor for the Respondent     Sparke Helmore