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Farley - Smith v Repatriation Commission

[2012] FCA 80

COURT Federal Court, Melbourne
JUDGE Dodds-Streeton J
DECISION The appeal was allowed
ISSUES Whether Tribunal misapplied relevant principles, whether apprehended bias and whether denial of procedural fairness

Facts

The veteran served in the Australian Army and had operational service as a gunner in Darwin between 1943 and 1945. He died on 14 November 2001. On his death certificate the death was certified to be Myelofibrosis – 4 years and Oesophageal varices 2 years.

Mrs Farley-Smith lodged a claim with the Repatriation Commission (the Commission) for a war widow’s pension on 11 February 2002. On 7 March 2002 the Commission rejected Mrs Farley-Smith’s claim on the grounds that the cause of myelofibrosis was not known. Mrs Farley Smith then appealed to the VRB. On 5 May 2003 the VRB affirmed the Commission’s decision.          Mrs Farley –Smith then lodged an application with the Tribunal on 23 June 2003 seeking a review of the VRB decision. On 4 October 2005 the Tribunal set aside the Commission’s decision and instead decided that Mr Farley- Smith’s death was war caused. The Commission then lodged an appeal to the Federal Court. The Commission’s appeal was successful. The matter was remitted to the Tribunal. This is an appeal from the second decision of the Tribunal to the Federal court.

Grounds of appeal

  1. The Tribunal erred in law in that it rejected evidence before it in determining whether or not the material pointed to a hypothesis being raised between the claimed condition and the circumstances of the service by the veteran, namely in substance the relationship between benzene exposure and the medical condition myelofibrosis.
  2. The Tribunal erred in law in that it determined that it could not assume a connection to service in the circumstances, because it had made an assumption in relation to the existence or occurrence of a fact upholding the hypothesis.
  3. The Tribunal member who is a qualified medical practitioner should have decided it was proper to disqualify herself from hearing the case on the basis that she was a qualified medical practitioner and had previously determined that the connection between the hypothesis posed in this case was too remote and tenuous.
  4. the Tribunal erred in law in that without any evidentiary basis for so concluding it determined that it could not assume a connection to service because it had made an assumption in relation to the existence of a fact upholding the hypothesis.
  5. The tribunal erred in law in that the Tribunal refused the Applicant a right of reply contrary to the Applicant’s right on a proper construction of s33 of the Administrative Appeals Tribunals Act 1975 to have the tribunal afford procedural fairness to the Applicant.
  6. the Tribunal erred in law on any application in failing to disqualify itself on the ground that the Applicant had failed to articulate every particular event that occurred in the course of the hearing which might cause an independent lay observer to perceive that the Tribunal may be ostensibly biased.

The Court’s Consideration

The applicant’s fundamental complaint under ground 1 was the tribunal’s alleged mis application of the analytical process required by s120, as construed in Bushell where the High Court required the tribunal first to determine whether all the material raised a reasonable hypothesis connecting the veteran’s death with a particular incident, and only then to determine whether the factual foundation of the hypothesis was disproved beyond reasonable doubt.

The tribunal, at the stage of determining whether the material before it pointed to a reasonable hypothesis, made findings on the expertise or partiality of witnesses offering opinion evidence on the causal connection aspect of the hypothesis and treated the evidence accordingly.

In Bushell, the Court made clear that a hypothesis may be reasonable even if unproved, in the absence of any or any common association between the injury and the incidents of the veteran’s service. The Court made clear that s120(3) did not require the tribunal to choose between competing hypotheses or to determine whether one medical opinion is to be preferred. The High Court indicated that in some cases at the stage of determining whether the material raised facts which pointed to a reasonable hypothesis, the raised facts themselves may be assumed.

Pursuant to those authorities, the determination under s120(3) whether the material raises a reasonable hypothesis precedes the determination under s120(1) of whether the injury or disease was war caused because the factual foundation of the hypothesis was or was not disproved beyond reasonable doubt. The authorities do not impose an absolute prohibition on critical assessment and fact finding on any matter in the context of that inquiry. The tribunal must critically scrutinise the material before it. The Tribunal recognised that the question whether a reasonable hypothesis was raised must be determined on a consideration of the whole of the material before it.

In relation to grounds 2 and 4 the grounds were not made out.

In relation to ground 3 the applicant alleged the member’s dissenting judgment in an earlier case would appear to a fair minded lay observer to give rise to a reasonable apprehension that the member might not bring an impartial mind to the resolution of the question whether there was a reasonable hypothesis.

In my view nothing in those observations might cause a reasonable observer to apprehend that the member might have absolutely rejected the possibility that benzene might be a causative factor or otherwise held views on that question which might preclude her from bringing an impartial mind to the present case

The Court also noted that in any event the applicant’s legal representative waived any entitlement to object as he failed to either before or during the hearing to apply to the member to disqualify herself.

In relation to ground 5 the Court was of the opinion the applicant was not denied procedural fairness by the refusal of a right to reply.

“S33 of the Act provides the proceedings are to be conducted with as little formality as proper consideration of the matters permits. The above provisions neither expressly nor implicitly entitle an applicant to reply to a respondent’s closing submissions

In relation to ground 6 the Court found there was no evidence the tribunal refused to disqualify itself on the basis alleged.

Decision

Appeal dismissed.

Editorial Note

When deciding there was no apprehended bias on the part of the member, the Court referred to the recent High Court case of British American Tobacco Australia Aervices Ltd v Laurie[2011] HCA 2 and reaffirmed the principle set by the High Court earlier in the case of Ebner:

In 2000, the test in Australia was stated by this Court in Ebner v Official Trustee in Bankruptcy. It requires two steps. The first is "the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits." The second is an "articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits." In Ebner the constructed observer was the "fair-minded lay observer" concerned only with a reasonable apprehension of bias. The test is generally applicable to cases of asserted apprehended bias, including cases in which the judge is said to have a pecuniary interest in the outcome of the case which he or she is hearing. This Court rejected the proposition that automatic disqualification applies to such classes of case

The principle as set out in  Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group:

Where, in the absence of any suggestion of actual bias, a question arises as to theindependence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair minded 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement that reflects the fundamental importance of the principle that the tribunal must be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

Chapter 2 of the Guide to standards of conduct of tribunal members refers to the principles in relation to bias and the standard of conduct expected by tribunal members. In particular the guide notes:

  Bias

(i)  A tribunal member should act in an impartial manner in the performance of their tribunal decision-making responsibilities so that their actions do not give rise to an apprehension of bias, or actual bias.
(ii)  A tribunal member should be pro-active and comprehensive in disclosing to all interested parties interests that could conflict
(or appear to conflict) with the review of a decision.

(iii) A tribunal member should have regard to the potential impact of activities, interests and associations in private life on the impartial and efficient performance of their tribunal responsibilities.
(iv) A tribunal member should not accept gifts of any kind where this could reasonably be perceived to compromise the impartiality of
the member or the tribunal.

For further reading please refer to a complete list and commentary on principles.

All Practice Notes