Meaney and Comcare [2013] AATA 299 (16 May 2013)

Last Updated: 17 May 2013

[2013] AATA 299

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/5151
Re	Mary Meaney
	APPLICANT
And	Comcare
	RESPONDENT

DECISION

Tribunal	President D Kerr
Date	16 May 2013
Place	Sydney

Decision Summary

The remitted proceeding be heard by the Tribunal constituted by Senior Member Professor R Creyke.

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

Catchwords
PRACTICE AND PROCEDURE – Remittal by consent from Federal Court of Australia – Function of Guidelines for Constituting the Tribunal – Case remitted to Tribunal as previously constituted

Legislation
Administrative Appeals Tribunal Act 1975 ss 20B, 23B

Cases
FZTK v Minister for Immigration and Citizenship [2013] FCAFC 44

Secondary Materials

Guidelines for Constituting the Tribunal, 14 November 2011

REASONS FOR DECISION

16 May 2013

1. I have been provided with detailed written submissions from the parties as to how I might most appropriately constitute the Tribunal to review the decision made by Comcare in a matter, Meaney and Comcare.
2. The submissions were made to me after Buchanan J of the Federal Court of Australia made orders on 6 February 2013 remitting the review to the Tribunal for reconsideration according to law.
3. The remittal orders were made by consent without formal hearing. The matters his Honour agreed warranted the making of the orders were that:
   1. The Tribunal failed to provide reasons for its decision as required by section 43(2B) of the Administrative Appeals Tribunal Act 1975. It did so by failing to disclose its reasons for finding that the Respondent’s employment contributed, to a significant degree, to her claimed psychological ailment. In particular, the Tribunal failed to provide reasons as to why (if at all) it rejected the evidence adduced by Comcare at hearing which indicated that the Respondent’s claimed illness was secondary to an illness suffered by her mother rather than employment.
   2. The Tribunal failed to provide reasons disclosing how (if at all) it reached the finding that the Respondent’s claimed psychological ailment was not sustained as a result of reasonable administrative action for the purposes of section 5A of the Safety, Rehabilitation and Compensation Act 1988. In particular the Tribunal failed to adequately explain in its reasons the inconsistent findings of fact that action on 2 and 3 February 2009 (reasonable administrative action) was both causal and not causal of the Respondent’s claimed psychological ailment.
4. Buchanan J’s orders stated the constitution of the Tribunal on remittal was to be determined by the President.
5. The legal representatives of both Comcare and Ms Meaney have taken opposing positions with respect to how the Tribunal should be constituted to deal with the remittal.
6. Comcare’s counsel urges that I constitute the Tribunal otherwise than by the member who made original decision set aside by the Federal Court. Comcare submits that a differently constituted Tribunal is necessary in order to maintain public confidence in the review process.
7. Its submission argues, inter-alia, that an apprehension of bias must necessarily arise when the Tribunal has expressed itself ‘fully and firmly’ on critical factual matters relevant to the decision.
8. Ms Meaney’s counsel opposes that course and submits that nothing has been identified by Comcare to suggest that the Tribunal as previously constituted will not properly perform the statutory functions entrusted to it.
9. Both have referred me to the Guidelines issued by the then President of the Tribunal Justice Downes on 14 November 2011. Those Guidelines identified the considerations the President announced he would take into account in determining how the Tribunal would be constituted whenever the Federal Court remitted a case to the Tribunal for reconsideration. The Guidelines remain operative.
10. While the Guidelines do not constrain my decision in the sense of determining an outcome without regard to the individual circumstances of this case, they usefully set out a principled basis for approaching the present question.
11. The relevant guidelines provide:

(iii) Relevant considerations in constituting the Tribunal
Matters to be taken into account generally
19. In accordance with section 23B of the AAT Act, the President or Executive Deputy President must have regard to the following matters in deciding who will constitute the Tribunal for the purposes of a particular proceeding:
(a) the degree of public importance or complexity of the matters to which that proceeding relates; and
(b) the status of the position or office held by the person who made the decision that is to be reviewed by the Tribunal; and
(c) the degree to which the matters to which that proceeding relates concern the security, defence or international relations of Australia; and
(d) the degree of financial importance of the matters to which the proceeding relates; and
(e) if that proceeding relates to the review of a decision made in the exercise of powers conferred by a particular enactment – the purpose or object underlying the enactment (whether or not that purpose or object is expressly stated); and
(f) the degree to which it is desirable for any or all of the persons who are to constitute the Tribunal to have knowledge, expertise or experience in relation to the matters to which that proceeding relates; and
(g) any notice given by the parties under subsection 21(2) of the AAT Act that the Tribunal should be constituted by a presidential member alone; and
(h) such other matters (if any) as the President or Executive Deputy President considers relevant.
...
(v) How will the Tribunal be constituted on remittal from a court?
34. Where a court orders that a case be remitted to the Tribunal, the President will determine whether the case is to be heard and decided again by the Tribunal as previously constituted or by a differently constituted Tribunal unless the court has ordered that the Tribunal be differently constituted.
35. In general, the President will direct that a case be remitted to the Tribunal as previously constituted unless the circumstances indicate that it would be preferable for the Tribunal to be differently constituted. Remitting a case to the Tribunal as previously constituted will usually cause it to be finalised more expeditiously, less expensively and more efficiently than before a differently constituted Tribunal.
36. In deciding whether a case should be remitted to the Tribunal as previously constituted or to a differently constituted Tribunal, matters to which the President will generally have regard include:
- whether the member or members who previously constituted the Tribunal is or are available to hear and decide the case again within a reasonable period of time;
- whether the member or members who previously constituted the Tribunal consider that it is appropriate to hear and decide the case again;
- whether a real question of actual or apprehended bias may arise if the case were heard and decided again by the previously constituted Tribunal;
- whether the nature of the error of law which affected the original decision indicates that the case should be heard and decided again by a differently constituted Tribunal;
- any recommendation made by the court as to how the Tribunal should be constituted when it hears and decides the case again.
37. If the President determines that the case should be heard by a differently constituted Tribunal, the President will:
- decide who is to constitute the Tribunal; or
- refer the case to the relevant Executive Deputy President to decide who is to constitute the Tribunal.
38. In deciding who will constitute the Tribunal, the President or Executive Deputy President must have regard to the matters specified in paragraph 19...

12. It will be observed that the Guidelines indicate at [35] that I should direct the case be remitted to the Tribunal as originally constituted unless circumstances indicate that it would be otherwise preferable. That presumption appears to me to be based on sound public policy grounds. I share former President Downes’ statement as articulated in the Guidelines that ‘[r]emitting a case to the Tribunal as previously constituted will usually cause it to be finalised more expeditiously, less expensively and more efficiently than before a differently constituted Tribunal.’
13. I turn to the issues which the Guidelines identify as relevant to whether constituting the Tribunal differently ‘would be otherwise preferable’.

Whether the member or members who previously constituted the Tribunal is or are available:

14. The matter was heard by Senior Member Professor Robin Creyke. She remains available to constitute the Tribunal

Whether the member or members who previously constituted the Tribunal consider it appropriate to hear and decide the case again

15. The member has indicated that she believes it is appropriate for her to hear and decide the case again. She has advised me that she is open to be persuaded of contrary conclusions to those expressed in the decision set aside on the basis of the evidence and submission if she is persuaded that the arguments presented have merit.

Whether a real question of actual or apprehended bias may arise if the case were heard and determined by the previously constituted Tribunal

16. If the Guidelines established by Justice Downes are understood as giving rise to a real question of actual or apprehended bias whenever a previously constituted Tribunal has made findings of fact but has erred in law such that the matter has been remitted by the Federal Court to be ‘determined according to law’ it would entirely undermine the public policy reasons favouring expedition, reduction of expense and efficiency underlying those principles. In my opinion, it is a fallacy to elide proposition (a) that a member of the Tribunal has made an error of law or reasoning that has been identified by the Federal Court requiring the decision be remitted with proposition (b) that the member is to be automatically to be suspected of bias if the same member rehears the matter.
17. However, whatever the virtues of the public policy that underlies the Guidelines, utilitarian considerations cannot, and should not, prevail against a circumstance in which either party can demonstrate that there would be a real question of actual or apprehended bias. If such is shown the President ought not to place a party in the position of having to make an application for the member’s recusal.
18. Having read the submissions of both parties and carefully considered the reasons of the Tribunal before remittal I have reached the conclusion that there is no real question of actual or apprehended bias that should stand in the way of remitting this case to the same Tribunal.
19. There is nothing that I have identified in those reasons that takes the matter outside of the ordinary case where a member’s responsibilities have been to make findings of fact and apply their understanding of the law to those facts. There appears to me to be nothing that would point to the member being unable to continue to fairly address the issues of legal error identified in the statement of her reasons and to consider any further evidence adduced or submissions made by the parties. There is nothing expressed in terms suggestive of fixed conclusions or a closed mind. There is nothing intemperately expressed or in the nature of a finding on credit with respect to any witness that appeared before the member that would suggest that she had any want of capacity to address fairly any further evidence sought to be adduced by the parties.
20. Addressing this aspect of the Guidelines obliges me to state in broad terms my views as to whether a real question of actual or apprehended bias arises, but I am not required to and I should not purport to arbitrate upon a hypothetical actual recusal application which, if it were to be made may be advanced on quite different grounds to those advanced by the parties in their submissions to me in respect of my responsibility to decide the constitution of the Tribunal.

Whether the nature of the error of law which affected the original decision indicates that the case should be heard and decided again by a differently constituted tribunal.

21. The errors of law identified by the agreement of the parties, and accepted by Buchanan J to be errors of law, relate to two instances where the parties agreed there had been a want of reasoning to connect particular sets of facts and circumstances found by the Tribunal to exist with the conclusions the Tribunal reached.
22. There is, I interpolate, at least some reason to doubt that a failure of that kind provides an independent ground of review. This may be instanced by a recent decision of the Full Court of the Federal Court in FZTK v Minister for Immigration and Citizenship [2013] FCAFC 44 (in which I which I was in dissent from the majority, Gray and DoddsStreeton JJ) which may be thought to have come to a different conclusion. However, in this instance it has been accepted to be such and I must deal with the matter on that basis.
23. Some errors of law made by a decision-maker may self-evidently suggest that the case should be heard and decided again by a differently constituted Tribunal. Such may be obvious: for example if a member has made adverse findings of credit following errors of failing to provide a party natural justice—for example denying a party the right to lead evidence or relying on evidence not disclosed to them. There an impartial observer may well conclude that the nature of the findings of the Federal Court would be in tension with the original decision maker resuming the hearing of the matter. I do not mean to limit the circumstances to such extreme examples. It is impossible to provide a prescriptive list. What is critical for this factor to weigh against remittal to the Tribunal as originally constituted is that there is something in the nature of the error of law which affected the decision to suggest it would not be appropriate to take the usual course.
24. In my opinion, where a decision is set aside for failing to set out a chain of reasoning that error does not, in the usual course, go to the propriety of the member’s conduct or suggest their want of impartiality. Nor, in the usual course, would it be a reason not to remit the decision to the Tribunal as originally constituted.
25. Those were the limited grounds of error that were accepted by the Federal Court as reasons for remittal. There was no suggestion in the reasons accepted by Buchanan J that the Tribunal had erred in its primary fact finding processes. Applying the Guideline criteria to those grounds in the light of the benefit I have derived from reading the original decision and taking into account the parties’ submissions, it does not appear to me that the nature of the error of law which affected the original decision indicates that the case should be heard and decided again by a differently constituted tribunal.
26. I should however address one matter raised by counsel for Ms Meaney in his submission to me that appears to misunderstand the function of the Tribunal on remittal. In paragraph 3.7 it is submitted:

Comcare’s submission seems directed to an enlarged re-hearing (paragraphs 4.15 – 4.16) rather than a reconsideration of the matter. It is not intended that the reconsideration of this matter will require further evidence to be adduced; rather, it is only necessary for the Tribunal as previously constituted to provide reasons limited to the matters justifying the remitter order made in the Federal Court. This can be achieved by reliance on the T-documents, exhibits and transcript; and supplemented by further oral submissions.

27. It would be open to the parties to agree to proceed in that restricted manner but when a matter is remitted from the Federal Court to the Tribunal to ‘determine according to law’ it is remitted for all purposes. Subject to the power of the Tribunal to control its proceedings and avoid technicality and repetition it remains open to Comcare to apply to adduce further evidence and to make further submissions as to all matters relevant to the decision. On the materials before me I have no reason to doubt that the Tribunal will fulfil those responsibilities fairly and justly as between the parties.

Any recommendation made by the court as to how the Tribunal should be constituted when it hears and decides the case again

28. Buchanan J ordered that I determine the constitution of the Tribunal on remittal. That order neither supports or stands counter to any particular determination I might make. I simply read that as a direction to the President to make the determination thought correct and preferable.

Conclusion

29. I do not think there is any reason identified by the submissions of either party which requires me to make a decision other than in accordance with the Guidelines. I am not persuaded I should do so.
30. I determine that Meaney and Comcare is to be remitted to the Tribunal as previously constituted.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for the decision herein of Justice D Kerr, President

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

Associate

Dated 16 May 2013