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[2011] FCA 568
Federal Court of Australia
2011-05-30
Gray J
Original judgment source is linked above.
The application of the test for apprehended bias 74 As I have said at [5] above, counsel for the Chief of Defence suggested that the submissions of counsel for Dr Atkin gave rise to two possible ways in which the central issue in this proceeding could be approached. The divergence between the two ways is as to the amount of knowledge possessed by the hypothetical reasonable observer. In particular, it was suggested that the question could be looked at on the basis that the reasonable observer knew nothing about the content of the telephone conference, or on the basis that the observer knew the detail of what had passed between the participants in that conference. In the application of the reasonable observer test, it is usually said that the reasonable observer must be "informed". This is generally taken to mean that the observer must have at least a basic understanding of the way in which the legal system functions so that the conclusion that there is apprehended bias is not reached too readily on the basis of factors that would suggest bias only to someone unfamiliar with the way in which the system functions. The question of how much factual detail the reasonable observer is said to know has not been the subject of a great deal of authority. 75 The reasonable observer, acquainted with the nature of the Commission of Inquiry and the reason for Dr Atkin's participation in it, becoming aware of Dr Blakley's draft report, the impact of the changes made to that draft in the signed version of the report, and the fact that those changes had resulted from a telephone conference between Dr Blakley, the President and Colonel Griffin, would undoubtedly come to the conclusion that there was a reasonable apprehension of bias on the part of the President. The reasonable observer would understand that there was no necessity for the President to speak to Dr Blakley privately. Such an observer would understand that the effect of the alterations to the report was to provide stronger evidence for the Commission of Inquiry to make findings adverse to Dr Atkin. He or she would take the view that the President might not bring an impartial mind to the making of findings about Dr Atkin, because that strengthening of the evidence had taken place following the private communication. The observer would apprehend that the President may have prejudged the case against Dr Atkin, and may have persuaded Dr Blakley to provide evidence that would assist him in arriving at the predetermined conclusion. The subsequent disclosure that occurred, and the subsequent statements of the President would do nothing to dissuade the reasonable observer from that point of view. Dr Atkin's case is made out on the basis of the partially informed reasonable observer. 76 Full information as to the content of the telephone conference would strengthen the reasonable observer's view as to the apprehension of bias, rather than weaken it. Armed with the evidence that is before the Court about the content of the telephone conference, the observer would know that it was the President himself who was pressing Dr Blakley as to the matters that were the subject of her changes to paras 18, 24 and 26 of her report, the effect of which was to provide the President with a firmer basis for making findings adverse to Dr Atkin. Thus, the observer informed as fully as this Court is would reach the conclusion with even more certainty that there was an apprehension of bias. 77 On either approach, the Court must find that there was a reasonable apprehension that the President would not approach the question of Dr Atkin's conduct impartially.
The appropriate order 78 As I have said, Dr Atkin has sought in the alternative orders having the effect of preventing the President from making findings adverse to Dr Atkin, or orders having the effect of disqualifying the President from continuing with the Commission of Inquiry at all. Counsel for the Chief of Defence has made it clear that, if orders are to be made, they should be restricted to orders of the former kind, so that as much advantage as possible can be taken from the expenditure of considerable funds on the establishment and conduct of the Commission of Inquiry. 79 There appears to be no reason why the President should be restrained from delivering any report at all in relation to the Commission of Inquiry. At [17] of his reasons dated 17 November 2010, the President expressed the tentative view that he should not, or could not, complete his task without making findings in respect of all of the persons to whom notice had been given that they might be affected by the inquiry. I do not share that view. Any findings that might have been made with respect to Dr Atkin can be separated very clearly from those that might have been made in respect of other persons. Indeed, if the President were disposed to accept the written submission of Colonel Griffin as counsel assisting that a timely medical review may not have removed Private Smith from the vehicle he was commanding at the time of his death, the President will have to confront the question whether he can make any findings at all about medical issues. As I have said at [71] above, if the causal link between medical issues and the presence of Private Smith in the vehicle is not established, there is a real question whether the Commission of Inquiry has been appointed to make findings and recommendations about medical issues at all. If the President takes the view that he should make findings about Dr Atkin's conduct, and that he cannot complete his task without making those findings, it will be a matter for him to inform the Chief of Defence that he has disqualified himself from completing the inquiry altogether, and not merely to the extent to which the Court restrains him from doing so. 80 In the application, the relief sought includes declarations, injunctions and writs of prohibition. In my view, in the exercise of the jurisdiction conferred on this Court by s 39B(1) of the Judiciary Act 1903 (Cth), a writ of prohibition is the most appropriate remedy. Such a writ should prohibit no more than is necessary, namely the making and publication in any report of any finding concerning the conduct of Dr Atkin in his dealings with Private Smith. 81 No reason was advanced, and none appears from the circumstances of the case, why the usual principle, that costs follow the event, should not be applied. It is appropriate to order that the Chief of Defence pay Dr Atkin's costs of the proceeding. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.
Atkin
Willee
) 121 FCR 402 discussed Hot Holdings Pty Ltd v Creasy [2002] HCA 51 (2002) 193 ALR 90 considered Mahon v Air New Zealand Ltd [1984] 1 AC 808 applied Monroe Australia Pty Ltd v Burian (unreported, Full Court of the Supreme Court of South Australia, 20 March 1998) discussed R v Carter; Ex parte Gray (1991) 14 Tas R 247 considered R v Doogan; Ex parte Lucas-Smith [2005] ACTSC 74 (2005) 158 ACTR 1 considered R v Maurice; Ex parte Attorney-General (NT) (1987) 73 ALR 123 discussed Re JRL; Ex parte CJL (1986) 161 CLR 342 discussed
The test for apprehended bias 45 Counsel on both sides referred to the statement of the test for apprehended bias in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror)…the governing principle is that, subject to qualifications relating to waiver…or necessity…a judge is disqualified if a fair-minded lay 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 which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. 46 Earlier, at [4], their Honours made it clear that the principle extends beyond the judicial system to other kinds of decision making but, in such cases, "must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making." Their Honours then referred to the principle of necessity, under which the statutory requirement that a Tribunal perform the functions assigned to it may displace the ordinary rules of procedural fairness. Their Honours also pointed out that few administrative decision-makers enjoy the degree of independence and security of tenure that judges have. At [5], their Honours said "These differences, however, must not obscure the fundamental principle." 47 Examples of the application of the apprehension of bias principle to decision-makers outside the judicial system can be found easily. Even though an administrative inquiry might not involve the resolution of any dispute between parties, the principle still entitles those who are participating in such an inquiry to restrain the conduct of it if there is a reasonable apprehension of bias on the part of the person conducting it. R v Doogan; Ex parte Lucas-Smith [2005] ACTSC 74 (2005) 158 ACTR 1 was a case in which the Full Court of the Supreme Court of the Australian Capital Territory heard a number of challenges to the continued conduct of a coronial inquiry into widespread fires, including challenges based on the apprehension of bias principle. The principle extends to a Royal Commission: R v Carter; Ex parte Gray (1991) 14 Tas R 247. It extends to a statutory commission of inquiry: Carruthers v Connolly [1998] 1 Qd R 339 and Ferguson v Cole [2002] FCA 1411 (2002) 121 FCR 402. 48 One circumstance that might give rise to a reasonable apprehension of bias on the part of a decision-maker is private contact between the decision-maker and a person giving evidence relevant to the decision, in the course of conducting an inquiry intended to lead to the making of a decision. In Re JRL; Ex parte CJL (1986) 161 CLR 342, a private conversation between a judge of the Family Court and a counsellor attached to that court, about a particular case, was held to be sufficient to give rise to a reasonable apprehension that the judge would not bring an impartial mind to the resolution of that case. Similarly, in Monroe Australia Pty Ltd v Burian (unreported, Full Court of the Supreme Court of South Australia, 20 March 1998) the decision of a review officer, conducting a review on behalf of the South Australian Workers Compensation Appeal Tribunal, was set aside as a result of a private conversation between the review officer and a medical practitioner giving evidence in relation to the review. A contrary conclusion was reached by the Full Court of the Supreme Court of Tasmania in Carter, concerning two solicitors who were assisting the Royal Commission in writing its report, and who had sworn affidavits that were part of the evidence before the Royal Commission, as to their communications with a witness who had denied statements attributed to him. 49 The question whether the fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to his or her task is essentially a question of fact, to be decided in accordance with the circumstances of the particular case.
Subsequent statements by the President 69 In determining whether the hypothetical reasonable observer would apprehend that a decision-maker might not approach the task of making the decision impartially, it is permissible, and perhaps necessary, to have regard to any statement by the decision-maker, made after the events said to give rise to the apprehension, that might explain or qualify those events. See British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 at [70] per Gummow J and [136]-[138] per Heydon, Kiefel and Bell JJ. In the present case, there are two such statements. The first is the exchange that occurred in the course of cross-examination of Dr Blakley by counsel for Dr Atkin on 30 September, set out at [35] above. The second is the President's reasons published on 17 November 2010. 70 At one point in the discussion with counsel for Dr Atkin on 30 September 2010, the President said, "This is not about me making findings about blame." He went on to say that the issue was whether or not there was a systemic problem with the policy directives. Counsel for Dr Atkin pointed out the terms of the notice. The President then said that he had already "told the commission repeatedly that there is no legal basis in which [sic] I could find that he was a causative [sic] of the death of PTE Smith." Counsel for Dr Atkin then asked why Dr Atkin was a person potentially affected and why he had been served with a notice that he was at risk of certain findings. The President responded that Dr Blakley's evidence led to a suggestion that "what was done may not have accorded with policy" and that that might be something reflecting adversely on Dr Atkin. Counsel for Dr Atkin sought clarification, especially about whether there was alleged to be a contribution by Dr Atkin's conduct to the death of Private Smith. The President's response was: I am saying that I have not formed a view about whether process might have in fact contributed to PTE Smith's death and whether that process needs to be addressed to make it plainer so that it doesn't happen in the future, whether there is a systemic problem. But I am not in a position to suggest, or likely to be in a position to suggest that he has directly causative [sic] of that death. 71 To the extent to which the President might have been seeking to give any assurance to Dr Atkin, this discussion is problematic. The instrument of appointment instructed the President that he was "inquiring into the circumstances surrounding the death of" Private Smith, as specified in that instrument and in the terms of reference to be issued subsequently. Each of the matters specified in the terms of reference, into which the President was to inquire is qualified by phrases such as "materially contributing", "surrounding", "materially relevant to", "proximately associated with" and "have materially contributed to" the death of Private Smith. The Commission of Inquiry was not charged with investigating the adequacy or otherwise of the way in which Private Smith was treated with respect to his PTSD symptoms, unless that treatment, or lack thereof, could be connected in some way to the death. The causal connection that had been postulated, so as to give rise to the need to send notice to Dr Atkin that adverse findings might be made against him, was concerned with the possibility that Private Smith might have been relieved of the duty he was performing when he died, if other steps had been taken in relation to that treatment. Absent that connection, it is difficult to see how the Commission of Inquiry could have been concerning itself with anything to do with the interaction between Private Smith and Dr Atkin. If the President was intending to assure Dr Atkin, through his counsel, on 30 September 2010 that he was satisfied that the causal connection did not exist, it is hard to see why he had not by that stage, or did not soon after, inform Dr Atkin that he was no longer at risk of adverse findings. The statements that the President was not concerned with making findings about blame, that he could not find that Dr Atkin was a cause of the death, and that he was not in a position to suggest that Dr Atkin directly caused the death tend to suggest that the President had resolved the issue of a causal connection favourably to Dr Atkin. The fact that the President did not inform Dr Atkin that he was no longer at risk, coupled with the proposition that the President had not formed a view about whether process might have contributed to Private Smith's death, suggest to the contrary. As a result, Dr Atkin could not have taken any assurance from the exchange between his counsel and the President on 30 September 2010. In the circumstances, nothing that was said in the course of that exchange ameliorated the harm done by the private communication with Dr Blakley and the subsequent changes to her report. 72 Nor could the reasonable observer derive any comfort from the reasons given by the President on 17 November 2010. Although he referred to authorities concerning the test for apprehended bias, which involved stating the test correctly, the President proceeded to deal with the matter as if it were a question whether any actual impropriety on his part occurred ([35]-[36]) and whether it was necessary to show that he or Colonel Griffin or both of them had overborne Dr Blakley's will so that she felt compelled to alter her opinion or give an opinion contrary to her true opinion ([38]). Nothing said in the President's reasons would be likely to detract from the apprehension in the mind of the reasonable observer as to what had occurred. 73 There is no doubt that disclosure can overcome what would otherwise be an apprehension of bias in some circumstances. On 30 September 2010, there was disclosure. No doubt due to an oversight, the manner in which the events of 16 September 2010 came to be disclosed were disadvantageous to Dr Atkin and his counsel. The draft report was made available too late to facilitate an appreciation of the changes that had been made in the report from the draft to the final version. When Dr Blakley was recalled to give evidence on 30 September 2010, Colonel Griffin asked her some questions. This was the first time at which the telephone conference was disclosed to the parties represented in the Commission of Inquiry. The disclosure was in no sense complete. Only the alteration to para 15a. of the report was the subject of specific reference. Dr Blakley made brief reference to the clinical notes of Dr Atkins. The President said nothing about the telephone conference. There was nothing like the detail that appears in Colonel Griffin's affidavit, from his by then imperfect recollection. There was no detail given of the passages in the evidence relating to Dr Atkin's notes, evidence which counsel for Dr Atkin in this proceeding allege was relayed incompletely to Dr Blakley. Most importantly, there was no reference to the fact that the principle questioner of Dr Blakley during the telephone conference was the President himself, and that it was his questioning that was largely responsible for the changes that were made in the report. It cannot be said that there was a concerted effort to conceal the content of the telephone conference, but it was left to counsel for Dr Atkin to do her best to draw out from Dr Blakley what had occurred in the conference.
[2005] ACTSC 74
(2000) 205 CLR 337
(2002) 121 FCR 402
(2002) 193 ALR 90
(1991) 14 Tas R 247
(1987) 73 ALR 123
(1986) 161 CLR 342