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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wiegand and Comcare

Details

AGLC: Wiegand and Comcare [2007] AATA 1391
Case: [2007] AATA 1391
Decision Date: 30 May 2007

CaseChat Overview and Summary

The parties to the case were Wiegand and Comcare, which was heard in the Federal Court of Australia. The dispute between the parties involved a claim by the applicant, Wiegand, who sought compensation for an injury sustained during his employment with the Commonwealth. The applicant's case was remitted for rehearing, and the court was required to decide whether the judge should disqualify themselves from constituting the Tribunal on the remitted rehearing of the applicant's application.

The legal issues that the court needed to address involved the principles of judicial impartiality and the perception of bias in judicial proceedings. The court needed to determine whether there were any circumstances that might lead a reasonable observer to suspect that the judge was biased in favor of or against the applicant or Comcare.

The court's reasoning and outcome were based on the principles of judicial impartiality and the perception of bias in judicial proceedings. The court found that there were no circumstances that might lead a reasonable observer to suspect that the judge was biased in favor of or against the applicant or Comcare. However, the court disqualified themselves from constituting the Tribunal on the remitted rehearing of the applicant's application due to a perceived risk of bias. The court found that the risk of bias was not significant enough to warrant a finding of actual bias, but it was sufficient to justify the disqualification of the judge from the case. The court found that the disqualification was necessary to maintain public confidence in the administration of justice and to ensure that the applicant received a fair hearing.

The final orders of the court were that the judge disqualified themselves from constituting the Tribunal on the remitted rehearing of the applicant's application in this matter. This decision was made to maintain public confidence in the administration of justice and to ensure that the applicant received a fair hearing. The case was remitted for rehearing before a different judge.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		JOACHIM WIEGAND