FEDERAL COURT OF AUSTRALIA
Shingles v Defence Force Retirement and Death Benefits Authority
[2009] FCA 1211
ADMINISTRATIVE LAW – denial of procedural fairness – issue critical to the decision not put to applicant by Tribunal
Defence Forces Retirement Benefits Act 1948 (Cth) ss 51, 53(1A), s 53(1B), s 53(4)
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 applied
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited
Vakauta v Kelly (1989) 167 CLR 568 applied
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 applied
Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 20 ALR 663 cited
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 cited
GRAHAM JAMES SHINGLES v DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
No VID 296 of 2008
FINN J
30 OCTOBER 2009
ADELAIDE (HEARD IN CANBERRA)
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
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GENERAL DIVISION |
VID 296 of 2008 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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GRAHAM JAMES SHINGLES Appellant
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AND: |
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY Respondent
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JUDGE: |
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DATE OF ORDER: |
30 OCTOBER 2009 |
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WHERE MADE: |
adelaide (heard in CANBERRA) |
THE COURT ORDERS THAT:
1. the appeal be allowed;
2. the decision of the Federal Magistrate be set aside;
3. the appeal to the Federal Magistrate be allowed;
4. the decision of the Tribunal be allowed;
5. the matter be remitted to a differently constituted Tribunal to be heard and determined according to law; and
6. the respondent pay the appellant’s costs of the appeal and of the proceedings in the Federal Magistrates Court.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
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GENERAL DIVISION |
VID 296 of 2008 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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BETWEEN: |
GRAHAM JAMES SHINGLES Appellant
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AND: |
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY Respondent
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JUDGE: |
FINN J |
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DATE: |
30 OCTOBER 2009 |
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PLACE: |
adelaide (heard in CANBERRA) |
REASONS FOR JUDGMENT
1 In this matter it has been conceded by the respondent authority that during the hearing of this matter before the Administrative Appeals Tribunal a member of the Tribunal so conducted himself as to give rise to a reasonable apprehension of bias. While counsel for the appellant, Graham Shingles, took issue with comments made by the Tribunal Member during oral submissions, the two principal questions which arise in this appeal are, first, whether counsel nonetheless waived his right to object after the determination of the appeal to the Tribunal and, secondly, whether the Tribunal’s decision itself bespeaks grounds for a reasonable apprehension of bias in the making of the decision. I need only deal with the latter matter in any detail, though I am satisfied that there was no election made to waive bias in any event. As I will note below, two claims of denial of procedural unfairness hang off the matters founding the bias allegations.
Factual Setting
2 The procedural history of this matter is a somewhat protracted one. The appellant was discharged from the Army on 26 October 1971. It is for this reason that the law governing his application for invalidity benefits is the Defence Forces Retirement Benefits Act 1948 (Cth). Part 5 of that Act provided invalidity benefits for members of the scheme established by the Act who had been retired on the ground of invalidity or physical or mental incapacity to perform their duties. Section 51(6) provided for the Authority to treat members as if they had been retired on the grounds of incapacity.
3 The initial classification of a member is made pursuant to s 51 of the Act. That section provides that the Authority should determine the member’s percentage of incapacity in relation to civil employment and should classify the person according to the percentage of incapacity as follows:
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60% or more: |
Class A |
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30% or more but less than 60%: |
Class B |
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Less than 30%: |
Class C |
4 Section 52 provided for the rate of pension payable to a member classified in each class. A member classified Class C is not entitled to the payment of an ongoing pension. Section 53 of the Act gives the authority power to review from time to time a member’s classification according to matters set out in s 53(1A) and s 53(1B). A member initially classified Class C is not entitled to be reclassified at any later date: s 53(4).
5 On 26 February 2002, the Tribunal ordered by consent that, pursuant to s 51(6) of the 1948 Act, the appellant should be treated as if he had been retired from the Defence Force, on the ground of invalidity or physical or mental incapacity to perform his duties.
6 On 30 April 2002 the appellant provided an “Application for invalidity benefits & Superannuation Productivity”. On 18 June 2002 the appellant was classified as Class C with effect from 27 October 1971.
7 On 6 December 2002, following reconsideration, the Authority confirmed the decision and the appellant applied to the Tribunal for review of that decision.
8 On 17 May 2004 the Tribunal affirmed the decision under review. That decision was set aside on appeal by the Federal Magistrates Court and the matter remitted to the Tribunal.
9 On 2 March 2007, following a further hearing, the Tribunal again affirmed the decision, finding that the appellant had an incapacity of 25%. An appeal to the Federal Magistrates Court was dismissed and it is from that decision that the appellant now appeals.
10 The appellant, at the time of his discharge, suffered relevantly from os calcis exostosis (heel spurs) and from alcohol dependence either as a sequelae of Post Traumatic Stress Disorder or as a separate condition.
11 The appellant gave an account of his service in Vietnam and of his work history on his return to Australia. He gave evidence about the effect his alcohol dependency had on his ability to obtain and more importantly retain employment.
12 The effects of alcohol dependence (which existed at the time of discharge) on the appellant’s capacity for civil employment was a critical issue before the Tribunal.
13 The Tribunal addressed the appellant’s psychiatric impairment, which comprehended his alcohol dependence, at paras [60] to [68]. Although the Tribunal appears to have accepted that the appellant had many jobs and could only retain them for a short period, it apparently did not accept that the alcohol dependence was the cause or was significant. Rather, the Tribunal concluded that the appellant had exaggerated the effects of his alcohol dependence.
14 The Tribunal’s reasons and decision were heavily influenced by its view of the appellant’s credibility.
The Federal Magistrate’s Decision
15 An appeal from the Tribunal’s decision was made to the Federal Magistrates Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Relevantly for present purposes, the Federal Magistrate found that the judgment of the Presiding Senior Member was affected by bias in that he was, from an early stage, inherently sceptical of Mr Shingle’s evidence about his experiences both in Vietnam and as to his capacity to work in Australia.
16 In the Tribunal’s reasons, para 47, his Honour considered the Senior Member’s bias about that evidence was based “upon his own experiences in Vietnam”. His Honour went on to observe that the Senior Member’s experience overbore his better judgment and objectivity. Nonetheless, his Honour concluded that notwithstanding the Senior Member’s comments to which I will later refer were such as to cause reasonable apprehension on the part of the lay observer that his judgment would be affected by bias, the appellant waived the right subsequently to object. Further, the bias was not “repeated” in the Tribunal’s decision itself.
17 The claim that Mr Shingles was denied procedural fairness because he was not given the opportunity to be heard on the question whether he exaggerated his capacity to retain employment was rejected by the Federal Magistrate. His Honour was of the view that the Tribunal’s conclusions were ones it was entitled to reach following consideration of the material and that it was not necessary for the Tribunal to put each and every proposition to a witness as the evidence proceeds, not least because the Tribunal may only arrive at its conclusions once the evidence is concluded.
The Appeal
18 The principal grounds of appeal in this matter were that the learned Federal Magistrate erred in both his bias and procedural fairness conclusions. In order to illuminate the basis upon which the appeal is being prosecuted, it will be necessary to refer in a little detail to particularly the transcript of the evidence before the Tribunal. It is only by reference to what was said there that the underpinning of the bias claim is manifest.
19 The denial of procedural fairness appeal has three bases: (1) the Tribunal decided the matter on the basis of the appellant’s credit when this was not attacked by the respondent but rather was expressly disavowed; (2) the Tribunal found the appellant’s account of his service in Vietnam was exaggerated and that he exaggerated the facts of his disabilities on his capacity to obtain and retain employment when this was not part of the respondent’s case and was not put to the appellant in cross-examination; and (3) the Tribunal relied on its own knowledge and experience about Vietnam which was not in evidence and was not put to the appellant.
Applicable Principles
(a) Reasonable Apprehension of Bias
20 There is no controversy between the parties as to the principles to be applied. The inquiry is whether a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question it is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]. The development and application of the test of reasonable apprehension of bias avoids the need for a court:
“to attempt some analysis of the likely or actual thought processes of the decision-maker. It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [184].
21 What is in issue for present purposes is what are the principles to be applied where, from comments made during the course of a hearing, such a reasonable apprehension may be thought to arise. It is accepted that they are as stated in the joint judgment of Brennan, Deane and Gaudron JJ and in that of Toohey J in Vakauta v Kelly (1989) 167 CLR 568. In the joint judgment the following principles were stated (at 572):
Where … comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her (at 572).
22 The qualification placed upon this was stated to be (at 573):
The statements which the learned trial judge had made about his preconceived views of Dr Lawson [an expert witness] were, however, effectively revived by what his Honour said in his reserved judgment. The appellant’s failure to object to the comments made in the course of the trial cannot, in our view, properly be seen as a waiver of any right to complain if comments made about Dr Lawson in the judgment itself would, in the context of those earlier comments, have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer. … the line between comments which would be likely to have that effect and comments which would not is necessarily an imprecise one.
23 The judgment of Toohey J was to like effect. Because of their present relevance I would note in particular at the following observations made by his Honour (at 587):
There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the judge to withdraw from the case. It may be enough that counsel make clear that objection is taken to what the judge has said, by reason of the way in which the remarks will be viewed. It will then be for the judge to determine what course to adopt, in particular whether to stand down from the case. For counsel to invite the judge to withdraw from the case may be quite premature, particularly if the judge acknowledges the apparent bias in what has been said and thereafter takes steps to dispel that apprehension. But, as Dawson J noted in Re J.R.L.; Ex parte C.J.L. [(1986) 161 CLR 342 at 372], suspicion of bias based on preconceptions existing independently of the case “may well be ineradicable”. In that situation there will be no option but to ask the judge to disqualify himself. In any event objection must be taken: see Re McCrory; Ex parte Rivett [(1995) 21 VLR 3 at 6].
(Emphasis added.)
(b) Denial of Procedural Fairness
24 I should emphasise at the outset that what is complained of here is not that, when confronted with inconsistencies in the appellant’s evidence, the Tribunal made choices unfavourable to him. Rather it is that the Tribunal made it a critical issue in the matter that the appellant “[had] attempted to exaggerate the facts of his disabilities in his obtaining and retaining employment” and that this was not put to him.
25 Both parties accept that, for present purposes, the law is sufficiently stated in the reasons of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [29]-[32]:
No submission was made on behalf of either the appellant or the minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather, the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in [Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576]. The Full Court (Northrop, Miles and French JJ) said:
Where the exercise of a statutory power attracts the requirements for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. [emphasis added]
Particular attention was directed in argument in this court, as it had been in the courts below, to the tribunal’s conclusion that the three identified elements of the appellant’s story were not “plausible”. Was that a conclusion “which would not obviously be open on the known material”? Or was it no more than a part of the “mental processes” by which the tribunal arrived at its decision?
Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged.
In Alphaone the Full Court rightly said (at 590-591]:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. [emphasis added]
THE TRANSCRIPT OF THE HEARING AND THE TRIBUNAL’S REASONS
26 By way of background I should emphasise that the issue before the Tribunal was “the percentage of total incapacity of [Mr Shingles] in relation to civil employment”: s 51(2): see Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 20 ALR 663 at 666-667. Mr Shingles gave a deal of evidence of his history of obtaining and retaining employment and of the difficulties his alcohol abuse posed in both of those respects. His evidence was that he had 28 jobs in 18 years and that many of these were in the early years after discharge.
27 I should note that the Tribunal was constituted by two members – a Senior Member who had had service experience in Vietnam, and a Member who was a medical practitioner. As the bias claim relates to comments made by the Senior Member, I will for ease in exposition refer only to that member.
(a) The Transcript
28 On the first page of the transcript at the first day of hearing the following exchange is recorded between the Senior Member and Mr Shingles’ counsel:
Mr White: If the Tribunal would be assisted by the applicant traversing all of the matters then I will take him through.
Senior Member: Well, having read what he has said about his Vietnam service, we’re rather hoping that Mr Dillon [the Authority’s counsel] might explore that in some detail.
Mr White: Yes.
Senior Member: If he doesn’t, we will.
Mr White: Yes. Is there anything in particular the senior Member has in mind, otherwise - - -
Senior Member: I’ve got lots of things in mind but I will save that.
29 Mr Dillon’s exploration of Mr Shingle’s Vietnam service was quite brief. He concluded by asking the Tribunal member if he had any further questions, to which the member replied (Tr 35):
Well, I will, after you have finished.
At Transcript 39, the Tribunal took up the subject of Vietnam service. I would note the following:
Now, I want to go back to, your stay in Vietnam. So, I’m looking at your statement, paragraph 17, you’re saying, “Many patrols went out each night and many soldiers were brought in injured as a result of booby traps and clashes with Vietnamese”?---Yes, sir.
And this was happening at Vung Tau, was it?---A couple of times, sir, yes.
A couple of times?---Yes, sir.
Really, and were they causalities in your unit?---No, sir.
Did you see the causalities?---At times I did, sir, yes.
I see, and where did you see these casualties?---At 1 Field Hospital at the chopper pad, sir.
Well, if they occurred at [V]ung Tau, there was hardly a need to bring them in by chopper, was there?---That’s where they were, sir.
And you say that they were due to incidents which occurred on the perimeter at [V]ung Tau?---Yes, sir.
Right?---I think that was mainly D and E Platoon involved there, sir.
How many soldiers did you see shoot themselves in the leg or the foot?---The actual one I was involved with, sir, was Michael Keating.
Yes, but did you see it?---No, sir.
No, and you say three, what about the others?---No, I never seen them, sir.
Right?---If you mean, like, I didn’t see it, sir, I seen it, but not when it happened, I was there a couple of minutes after it happened. I actually helped carry him to the hospital.
30 At the very end of his final submissions, Mr Shingle’s counsel indicated that he would conclude “unless the Tribunal would be assisted by me addressing any other matter”. Then ensued the following exchange (Tr 73-75):
Senior Member: No, I’ll just mention it to you, cautionary; it seems to me that the question of the credit of the applicant hasn’t been drawn into issue in these proceedings, has it?
Mr White: It doesn’t seem to have been drawn into issue.
Senior Member: I mean were it to be so one would have to approach the evidence, etcetera with that in mind. Let me honest. You look at some of the early psychiatric matters; either they were very poor history-takers or else he was completely confused as to what he was doing.
Mr White: Not necessarily. Mr Dinnen said this morning that it was not uncommon that people wouldn’t say things unless on direct question.
Senior Member: Well, you can take some of Dr Duncan’s early reports, he had him as a driver in Vietnam. He had him with 7 and 8RAR.
Mr White: There are all sorts of things like that scattered throughout these notes, Senior Member. He had him as a menswear shop assistant. I mean these are little anomalies. Whether or not they ultimately go to credit is a different question. In my submission they don’t.
Senior Member: I mean look at his own statement, paragraph 17:
Many patrols went out each night and many soldiers were brought in injured as a result of booby traps and clashes with the Vietnamese.
Now, if he’s talking about [V]ung Tau he’s lying through his teeth. The only danger to any Australian soldier in Vung Tau was booze and bar girls.
Mr White: None of that has ever been put to the applicant.
Senior Member: No, it hasn’t been and that’s my caveat, it never has.
Mr White: No.
Senior Member: But going through the reports it’s clear that you know it’s a very confused history.
Mr White: First of all it hasn’t been challenged. Secondly, the Tribunal is prohibited from relying on its own knowledge.
Senior Member: Lucky for your client.
Mr White: Well, it would place us in an incredibly difficult position even though the Tribunal has now at the end of the case said what his view is about [V]ung Tau.
Senior Member: Well, let me say this much. I’m certainly very conscious of the laws of evidence and that Tribunals particularly should not place their own opinions or experience in the place of evidence and as you’ve pointed out there has been no challenge. What I am saying is though that I have certain views as to over-emphasis in the affidavit and what we term or have termed are very confusing histories taken by various medical practitioners, so that it would not – and I want to hear you on this – I can certainly for myself take into account that some of the histories are of themselves inconsistent and any evidence must be taken into account that the applicant for many reasons, PTSD plus his alcoholism, etcetera he’s a poor historian.
Mr White: Well, it may be an additional factor as well if the Tribunal please and that is the questions asked might also play a part in differences – I don’t say inconsistencies – between one report and another. So in my submission it’s not just the applicant being a poor historian for whatever reason but what was asked I think has changed over the years as well. It’s clear from Dr Dinnen once the PTSD was acknowledged as - - -
Senior Member: What he’s asked is one thing but a history is another thing.
Mr White: Suffice to say that if there were challenges to that then no doubt the applicant would have given evidence about things like that but it [wasn’t] done.
(Emphasis added.)
31 During the final submissions of the Authority’s counsel the Tribunal observed (Tr 78):
I mean this is one of those cases where it would have been very helpful, Mr Dillon, if we could have got somebody from the unit at the time. I mean what were all the surrounding circumstances? Apparently he threatened the CSM, but we don’t have his service documents. Apparently he was never charged with any military offence.
Mr Dillon: No, there is a record, I think it’s T4, of his service record and there is no recorded offence. Yes, I certainly take your point.
Later the member commented in relation to Mr Shingles’ involvement in engagements with the enemy in Vietnam (Tr 79):
It would be interesting to have the unit war diary on that.
32 The Authority, acknowledged and made submissions on inconsistencies in the history but went on (Tr 79):
We did not challenge Mr Shingles’ credibility as such but we have recognised that the histories given to the doctors have been very flawed and inconsistent in many ways and in significant ways that cause us to submit that some of the assessments shouldn’t be accepted by the Tribunal.
(b) The Tribunal’s Reasons
33 The appellant relies upon some number of passages in the Tribunal’s reasons which, when considered in the context of the Senior Member’s comments during the hearing, are said to “have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer”: Vakauta at 573. I set these out in order:
17. On 10 September 1970 the Applicant commenced his Vietnam service, being posted to 2nd Australian Ordnance Depot at Vung Tau. Although the Applicant has given accounts of his service in South Vietnam, we regard that account as exaggerated. It is unfortunate that the Respondent did not investigate the Applicant’s claims more thoroughly. Had the services of a research organisation such as “Writeway” been engaged, their report would have been of material assistance to the Tribunal.
25. Following discharge from the Army the Applicant returned to live at Woodonga with his wife. For a period of months he did not work but contented himself with going to the hotel each day and drinking until he had run out of money. Asked about his source of income at this time, he told this Tribunal that his wife was working, whereas he had told the previous Tribunal his wife was not working. (Emphasis added.)
29. Whereas the Applicant claims that a supervisor informed him he was to be “sacked” because of his frequent absences, there is no evidence that he received any warnings from his employers that his attendance record or work was unsatisfactory. We find it difficult to believe that the Applicant would have been peremptorily dismissed from employment with a Commonwealth Authority without first being subjected to a formal warning.
30. Apparently after voluntarily terminating his employment with the Department of Army the Applicant and his wife moved to Sydney. They lived on the Northern Beaches, and we know from the Applicant’s Record of Service that at a time he was in the Army, his mother was living at Fairlight which is a suburb of the Northern Beaches. Upon arriving in Sydney the Applicant did not initially seek employment but contented himself with attending hotels. After about one month, because he needed money, he obtained a paid job as a lube operator, lasting for some three months. The Applicant then purchased an orange juice run. This franchised business failed because the Applicant did not devote enough time and attention to it. He places the failure to properly attend to the business upon his frequenting hotels. (Emphasis added.)
34. Despite the Applicant maintaining that he was unable to retain employment because of his alcoholism and the effects of his PTSD, document T97, p220, is a reference dated 4 July 1977 which concludes “I will be sorry to loose him but he goes with my best wishes for the future”. Whereas document T97, p221, is a reference from the Secretary Manager of the Cowra Services Club Ltd which reads inter alia, “Graham carried out his duties in a satisfactory and competent manner and I would have no hesitation in recommending him for a similar position”. We are not persuaded to take those expressions as to his worth at other than face value.
35. In cross-examination the Applicant conceded that when he obtained the job at Bandiana he was able to perform the tasks required of him, and that at any time he needed to get a job he was able to get one. We are therefore satisfied that the Applicant has attempted to exaggerate the effects of his disabilities in his obtaining and retaining employment.
63. Post discharge the Applicant did not immediately seek work but on his account was drinking heavily. However, he did ultimately obtain a job and although he says he left before he could be sacked, there is no evidence of any official warning that his behaviour was placing his job in jeopardy. He and his then wife moved to Sydney and again he was able to obtain employment when he felt of the need.
64. The Applicant claimed that his real problem was the inability to retain employment due to his alcohol abuse. This statement does not fit with the very positive references the Applicant obtained from the Cowra Services Club and the Galloping Grape Restaurant.
68. Whereas it is not now disputed that the Applicant does have PTSD and alcohol dependence, the evidence is that the symptoms of PTSD, if they affected the Applicant at all at time of discharge, were mild in the extreme. Likewise, his alcohol dependence was present but given the references referred to above and his ability to obtain employment whenever he needed to, we find that he has exaggerated it effects upon him at time of discharge and thereafter until probably about 1979 – the time of his first conviction for an alcohol-related offence.
34 As to the Tribunal’s final comment, I would note in passing that, in his affidavit that was before the Tribunal, Mr Shingles noted that:
On or about 13/12/73 I lost my driving licence for three years as a result of drink driving.
Consideration
35 I will consider first the bias appeal and then will refer briefly to procedural fairness.
36 Though the Federal Magistrate appears to have made a finding of actual bias because of the Senior Member’s comments at the hearing, my own view is that the proper characterisation of the matter at that point in the Tribunal’s review was that the circumstances would have founded a reasonable apprehension of bias in the Senior Member. The parties to the appeal have accepted the appropriateness of this characterisation of the position.
37 Where the parties part company is on the question whether the appellant waived its right to object. The respondent contends that the appellant had reasonable time after the hearing within which to raise the bias issue but did not do so. He was legally represented. He merely waited until the decision was made and, finding it to be adverse, objected. It was too late. The right, it is said, had been waived.
38 The appellant’s case in contrast is that, notwithstanding the Tribunal’s comments at the hearing, counsel did challenge the senior Member who then appeared in the comments he made (at Tr 74) to have retreated. It was in these circumstances not unreasonable not to object to the Senior Member continuing to sit.
39 While it is not strictly necessary for me to express a final conclusion on this difference, my own view accords with the appellant’s submission. The appellant, having raised the issues of Mr Shingles’ credit not having been challenged and of the impropriety of the Senior Member relying on his own knowledge, the response made by the Senior Member was sufficient to make it unnecessary to object to his continuing to sit: cf Vakauta at 587 per Toohey J. The Senior Member’s comments could reasonably be taken to signal a retreat to the confines of what was permissible to an administrative decision-maker.
40 I am in consequence not satisfied that the right to object was waived. I consider the Federal Magistrate erred in so concluding.
41 The fundamental issue raised in Mr Shingles’ bias appeal is whether the Tribunal’s decision, considered in the context of the comments made at the hearing, has the effect of conveying “the appearance of impermissible bias in the actual decision”. I consider that it does. The reasonable and intelligent lay observer might reasonably apprehend, in light of the Senior Member’s comments, commentary and attitudes revealed at the hearing relating to Mr Shingles’ war service, that Mr Shingles’ claim might have been prejudged and that the evidence of this in the decision itself was afforded both in how the Tribunal characterised (disparagingly) Mr Shingles’ own evidence on his obtaining and retaining employment and in the tone of some of the language used to describe his evidence (eg “For a period of months he did not work but contented himself with going to the hotel”). I am satisfied that the decision arrived at might reasonably be said to have been contrived by a preconceived view taken of Mr Shingles with the consequence that the case he advanced might not have been fairly addressed on its merits.
42 I am not concerned to analyse the Tribunal’s actual thought processes or to identify what was done by the Tribunal in reaching its decision: Jia, at [185]. Nonetheless, against the background of the Tribunal’s conceded apparent bias at the hearing stage, I am satisfied the reasonable observer might well conclude that the attitudes and predisposition to Mr Shingles there manifest, were not curbed as the Senior Member’s retreat might have suggested. Rather, they were reflected in the Reasons for Decision and particularly was this so in the manner in which the Tribunal used the evidence to reach the finding that (at Reasons [35]):
… the Applicant has attempted to exaggerate the effects of his disabilities in obtaining and retaining employment.
In this the lay observer might properly have said the Tribunal made an issue of a matter that was not manifest as an issue to be addressed in the case with which the Tribunal had to deal.
43 This leads to the second basis of the Appellant’s case before me.
(b) Denial of Procedural Fairness
44 In reaching its “exaggeration” conclusion in relation to the effects of Mr Shingles’ disabilities, the Tribunal was not simply expressing a conclusion which followed from perceived inconsistencies in the evidence. Rather, the Tribunal was calling into question Mr Shingles’ credibility directly: he was attempting to create a misleading picture of his disabilities.
45 That was not an issue that was ever raised with him. The Authority, while relying upon conclusions to be drawn from inconsistencies, disclaimed any attack on Mr Shingles’ credibility. Yet the Tribunal, without warning, made it “an issue critical to the decision”: Alphaone, at 591-592.
46 In the course of final submissions counsel for the Authority accepted that the Tribunal did not bring home to the appellant that this was a critical issue in the matter. In this Mr Shingles clearly was denied procedural fairness.
CONCLUSION
47 In addition to the grounds specified in the Notice of Appeal, the appellant has sought leave to raise a further ground of appeal involving an alleged error of law in its construction of s 51 of the 1948 Act.
48 Given the conclusions at which I have already arrived, I do not consider it appropriate to grant the leave sought. I would, though, venture the view that where the Parliament amends a provision of an Act (here s 53) but does not expressly amend another which deals with a precursor, but like, provision to that amended (ie s 51) so that the two are no longer harmonious, a Court is likely to be slow to assume in the absence of clear contextual justification that there was a legislative intent manifest to impliedly amend that provision or to so change the purpose of the Act through the amendment as to change via contemporary principles of statutory construction the meaning of the unamended provision.
49 I am satisfied the Federal Magistrate erred in concluding both that the appellant waived its right to allege bias and that bias was not revived in the decision itself.
50 I equally am satisfied that his Honour erred in finding that there had been no denial of procedural fairness.
51 I will order that:
(i) the appeal be allowed;
(ii) the decision of the Federal Magistrate be set aside;
(iii) the appeal to the Federal Magistrate be allowed;
(iv) the decision of the Tribunal be allowed;
(v) the matter be remitted to a differently constituted Tribunal to be heard and determined according to law; and
(vi) the respondent pay the appellant’s costs of the appeal and of the proceedings in the Federal Magistrates Court.
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I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. |
Associate:
Dated: 30 October 2009
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Counsel for the Appellant: |
Mr R M Niall |
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Solicitor for the Appellant: |
KCL Lawyers |
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Counsel for the Respondent: |
Mr A Dillon |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
15 October 2009 |
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Date of Judgment: |
30 October 2009 |
