Gibbons v Commonwealth of Australia

The Application before this Court 3 On 16 March 2010, Mr Gibbons filed an application for leave to file and serve a notice of appeal out of time. Also filed on that day was an affidavit sworn by him attesting to why it was that he was unable to file a notice of appeal within time, and also detailing proposed grounds of appeal. 4 Order 52 r 15 of the Federal Court Rules provides, materially: (1) The notice of appeal shall be filed and served: (a) within 21 days after; (i) the date when the judgment appealed from was pronounced; (ii) …; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. Mr Gibbons applied within 21 days of the pronouncement of the judgment of the Federal Magistrates Court for further time within which to file and serve a notice of appeal. 5 The question today is whether or not that further time ought to be granted. I put the matter that way because it seems to me that this case is one which falls under O 52 r 15(1)(b), rather than O 52 r 15(2). In other words, Mr Gibbons does not need, in my opinion, to establish "special reasons." Because of this, the consideration given to special reasons in that rule by the Full Court in Jess v Scott (1986) 12 FCR 187 is not directly relevant. 6 That said, it is nonetheless relevant, in my opinion, to take into account, in deciding whether or not to grant further time: (a) the length of the delay involved; (b) whether there is an acceptable explanation for why it is a notice of appeal could not be filed within the prima facie 21-day period; (c) whether the respondent will suffer prejudice by reason of the delay; and (d) the nature of the injustice to Mr Gibbons if time is not extended. The latter, in my opinion, particularly requires at least some assessment of whether proposed grounds of appeal have any reasonable prospect of success.

Prejudice to the Respondents 7 As to prejudice to the respondents, it was put that if time were extended, they would suffer the expense of having to respond to an appeal. If the proposed grounds of appeal had reasonable prospects of success, that is an expense to which, necessarily, they should be put. It may be, if it transpired on the hearing of an appeal, that the grounds were not regarded as sufficiently meritorious to allow the appeal that the respondents would secure an order for costs in their favour. However, I would not regard the prospect of a respondent being put to expense in respect of an appeal admittedly instituted out of time but which enjoyed, at least on prima facie scrutiny, reasonable prospects to be a basis for refusing the extension of time. 8 Further, it is quite apparent that Mr Gibbons did his best to alert the respondents within the appeal period to the fact that he wished to challenge the judgment of the Federal Magistrates Court. In this sense, there was no material delay. 9 Mr Gibbons' affidavit discloses that the reason why he felt unable to lodge a notice of appeal within time was that, by virtue of his reduced economic circumstances, he was unable to afford the cost of a transcript of the hearing. He apprehended that a transcript was necessary in order precisely to formulate grounds of appeal. Inability to afford a transcript is a factor which is relevant in this case, although such errors as are said to lie in the reasons for judgment of the learned federal magistrate are in the main apparent enough on the face of the published reasons for judgment. Were the proposed grounds of appeal to have any reasonable prospect or to be reasonably arguable in any way, I would regard the explanation given by Mr Gibbons as sufficient to warrant an extension.

Prospects of success on appeal 10 The real question in this case, as I see it, is whether the proposed grounds of appeal can in any way be regarded as reasonably arguable. The proposed grounds of appeal have undergone some refinement by Mr Gibbons since 16 March 2010. That is a reflection of his ability, granted by interlocutory order, to peruse and take notes in respect of the transcript of the proceeding in the court below by reference to the copy of the transcript on the court file. Arrangements were made whereby Mr Gibbons was able to attend at the registry and view there the transcript for the purpose of making notes in respect of the application heard today. As a result, Mr Gibbons has come to file on 4 May 2010 a draft notice of appeal. It contains five grounds. 11 Also on 4 May 2010, Mr Gibbons filed what he termed a "supplementary outline." That supplementary outline does not just contain submissions but also what are described as "supplementary grounds", a sixth and a seventh ground of appeal. 12 The draft notice of appeal of 4 May 2010 is a hybrid document, hybrid in the sense that it contains, apart from the text of the proposed grounds of appeal, related submissions in respect of each ground. 13 Reading the draft notice of appeal, and the supplementary outline together, the seven proposed grounds of appeal are as follows: 1 The learned trial magistrate failed to give ample consideration to disqualify himself; given the actual and reasonable apprehension of bias and conflict of interest, concerning His Honours perceived person and/or professional relationships with Group Captain (GPCAPT) Leonard Lambeth RAAFR, the Royal Australian Air Force and the Australian Defence Force, in His Honours capacity as a Group Captain with the RAAFR. 2 The learned trial magistrate made a finding of fact - no supported by evidence in determining that 'Dr Lambeth saw the applicant … while in the process of re-locating his registration from [NSW] to the ACT and denied the applicant procedural fairness in tendering contrary evidence. [sic] 3 The learned trial magistrate erred in law when he considered that Mr Leonard Lambeth could, while unregistered in a health profession, legally conduct a regulated health service of the applicant, on Commonwealth premises, within the Australian Capital Territory. 4 The learned trial magistrate denied the applicant procedural fairness in preventing the introduction of evidence that witnesses for the respondent: Dr Claus Czoban (ACT Reg. No.: MSP1984) and Mr Anthony Cotton (ACT Reg. No.: PSY563) as ACT registered health professionals, engaged and falsely represented Mr Lambeth as a registered health professional. 5 The learned trial magistrate erred in law when he failed to consider section 5 of the Disability Discrimination Act 1992 and section 31 of the AFP's Certified Agreement 1999-2002 with regard to the respondent having the applicant unlawfully assessed by Mr Leonard Lambeth. 6 The learned trial magistrate failed to consider section 138 of the Evidence Act 1995 (Cth), pertaining to evidence obtained in contravention and in consequence of a contravention of an Australian Law, pertaining to the illegally and improperly obtained health service, contrary to the Section 71 of the Health Professionals Act 2004 (ACT), conducted by Mr Leonard Lambeth upon the applicant; sanctioned by and with the full knowledge of the respondent. 7 The learned trial magistrate failed to consider the respondents refusal to meet employment obligations owed to the applicant as set down within the Australian Federal Police Certified Agreement 2003 and 2006 and in contravention of the Workplace Relations Act 1996 (Cth), with regard to the withheld terms and conditions of dismissal, notice period and payment in lieu. 14 I propose to consider the merits of each of those proposed grounds of appeal separately.

The First Ground 15 The first is, in essence, a complaint that the learned federal magistrate ought to have disqualified himself on the basis of apprehended bias. In Johnson v Johnson (2000) 201 CLR 488 at [11] and [12], Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ, in their joint judgment at p 492 to p 493, observed: It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision". The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial". 16 The foundation for the apprehension of bias is expressed in the text of the first ground of appeal. That, in turn, reflects propositions that were put to the learned federal magistrate by Mr Gibbons in respect of an exhibit, (exhibit 42) to an affidavit sworn by him and filed in the Federal Magistrates Court. He exhibited a report of a medical practitioner, Dr Leonard Lambeth, prepared in June 2006. Dr Lambeth describes himself in that report as a consultant psychiatrist. It was common ground before the Federal Magistrates Court that Dr Lambeth also held a commission in the Royal Australian Air Force Specialist Reserve as a medical officer. In that capacity, he held the rank of Group Captain. Also common ground in the court belowwas that the learned federal magistrate also separately held an appointment in the Royal Australian Air Force Specialist Reserve as a legal officer. In that capacity, he, too, held the rank of Group Captain. 17 As will be seen in respect of the consideration of the other grounds proposed, part of the applicant's case involved the proposition that he had been referred for medical assessment by the Australian Federal Police to Dr Lambeth in circumstances where Dr Lambeth was not, at the time, a registered medical practitioner in the Australian Capital Territory. That, Mr Gibbons alleged, was not just contrary to the law of the ACT but also contrary to industrial instruments and policies governing his employment as a member of the Australian Federal Police. 18 The coincidence, then, of the holding by Dr Lambeth and the learned federal magistrate of commissions as officers in the RAAF Reserve, coupled with a requirement (as Mr Gibbons saw it) to make a pronouncement in respect of the transgression of ACT registration laws and, in turn, highlighting that a fellow commissioned officer was not at the time registered in the ACT, thus embarrassing the Australian Defence Force, was said to give rise to circumstances whereby the test as described in the quote from Johnson v Johnson for apprehended bias was met. To regard that coincidence or connection as giving rise to a basis upon which it might be regarded as reasonably arguable that this test was met is to subscribe to a conspiracy theory which does not withstand objective scrutiny. 19 The learned federal magistrate was not in error in declining to disqualify himself in the face of a submission drawing these matters to his attention. This ground has no reasonable prospect of success and does not warrant the granting of an extension of time.

Other Grounds - Dr Lambeth's report 20 I turn, then, to the other grounds that are proposed. These, in one way or another, turn around the reception into evidence of Dr Lambeth's report. 21 As I have already observed, Dr Lambeth's report formed an exhibit to an affidavit of Mr Gibbons which he read in his case. The respondents did not object to the reception by the court of Dr Lambeth's report. It was not part of the respondent's case to call evidence from Dr Lambeth. However, as the learned federal magistrate observed in the course of proceedings, the opinion expressed in the report was relevant. 22 The use which Mr Gibbons proposed in respect of Dr Lambeth's report was to highlight that the process leading up to his termination, which included a referral to Dr Lambeth, had been tainted by alleged illegality. Tainted further in a way which exposed that he had been treated differently to others within the Australian Federal Police who were not disabled. The other use proposed to be made was that it would go to the credit of such superiors or others involved in his rehabilitation program who were called to give evidence in the Federal Magistrates Court. 23 It must be said that this particular aspect of the process leading to his dismissal (ie, referral to Dr Lambeth) was not in terms pleaded in the amended statement of claim filed on 13 June 2008 in the Federal Magistrates Court in respect of the alleged case of either direct or indirect discrimination. Be this as it may, in the course of the proceeding, Mr Gibbons sought to cross-examine another medical practitioner, Dr Czoban, by reference to Dr Lambeth's report and its alleged illegality. The learned federal magistrate himself asked Dr Czoban whether he was at the time aware of whether Dr Lambeth was registered to practise in the Australian Capital Territory. Dr Czoban's answer was that he was not aware of any absence of registration. 24 It should further be said that part of the background facts in respect of the management by the Australian Federal Police of Mr Gibbons' return to work was its acquiescence to a proposal, which he made after having been assessed by other medical practitioners earlier, that he ought to be assessed by a practitioner who was a defence force medical officer. It was that particular request on his part that the responsible officers within the Australian Federal Police thought they met by the referral to Dr Lambeth. The approach of the learned federal magistrate was to regard the report as relevant evidence upon which he should regard as admissible. 25 It is evident from the learned federal magistrate's reasons for judgment that findings of fact and conclusions which were reached in respect of Mr Gibbons were based upon Dr Lambeth's opinion. It is also evident from the transcript that Mr Gibbons put forward dates upon which Dr Lambeth had been registered in the Australian Capital Territory and on which he had seemingly ceased registration in New South Wales. 26 Assuming for the moment that Dr Lambeth was not, at the time when he saw Mr Gibbons in the Australian Capital Territory, registered, at its highest, that meant that the report was the result of conducting medical practice in the Territory without registration. I make no finding one way or the other in that regard, but rather assume in Mr Gibbon's favour that that quality attended the consultation and subsequent furnishing of report. That would mean, on that assumption, that the evidence had been obtained if not improperly or in contravention of an Australian law, at least in consequence of an impropriety or a contravention of an Australian law in terms of s 138 of the Evidence Act 1995 (Cth) (Evidence Act). That section further provides that evidence obtained in such circumstances is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. There was no error in the admission of the evidence. Mr Gibbons wanted the report in for particular forensic purposes. The Commonwealth did not object to the tender of the report. It might, for example, have sought to resist the tender without Dr Lambeth being called for cross examination by its representative at the hearing. It did not do this. 27 The learned federal magistrate rightly, in my opinion, apprehended that the report was relevant to the question of whether Mr Gibbons suffered a disability. It was also relevant to the chain of events that lead up to Mr Gibbons' dismissal. Indeed, in his own case, it was a necessary part of that chain of events in the sense that it highlighted a particular body of opinion upon which the Federal Police chose to act. 28 This was a case where the factors telling in favour of desirability overwhelmed anything which might go to highlight what may or may not have been a transgression of ACT registration laws. I put it "may or may not have been" because it is not necessary for the purpose of resolving this application to reach any view about that, but rather to assume in favour of Mr Gibbons that there was such a transgression. 29 That is also the case if one regards as falling within the rubric of impropriety for s 138 of the Evidence Act purposes any transgression of any industrial instrument or Australian Federal Police policy relating to those medical practitioners to whom Federal Police officers can be referred for assessment. The learned federal magistrate, in my opinion, rightly concluded that it was an opinion of a person who was qualified in the sense of possessing the requisite training to express the opinions, and it was the opinions, not the circumstances attending registration, which were, in the particular case before his Honour, relevant. Further, the report contained within it an opinion which was favourable to Mr Gibbons in the sense that Dr Lambeth allowed that, while he did not regard Mr Gibbons as suffering from any diagnosable psychiatric disorder, swelling of the frontal lobes as a result of the head injuries sustained by him could not be ruled out as a contributing factor to some of Mr Gibbons' behaviour. Dr Lambeth opined "Any frontal lobe swelling could serve to exacerbate pre-existing personality traits".

The Second Ground 30 It is said in respect of the second ground of appeal that there was an error on the part of the learned federal magistrate in finding, in respect of Dr Lambeth, that he had been seen while in the process of relocating his registration from New South Wales to the Australian Capital Territory. That observation on the part of the learned federal magistrate seems to be a reflection of statements made to him by Mr Gibbons in the course of submissions in respect of the question as to whether he should be allowed to withdraw the tender of Dr Lambeth's report. The observation seems to be one in passing and made on the strength of statements made by Mr Gibbons. That it was made on that basis is hardly denial of procedural fairness.

The Third and Fourth Grounds 31 The third ground of appeal is directed to what the learned federal magistrate rightly regarded as a side wind in relation to Dr Lambeth's report, which is whether there was some question of absence of registration at the time. The learned federal magistrate made a value judgment concerning the admission. It bears repeating, also, that Mr Gibbons himself chose to put forward Dr Lambeth's report. In so doing, he could not limit the use to be made of that document. The fourth ground really adds nothing to the third in the sense that, at its highest, all it could do would be to highlight that which was already put forward in the case which was absence of registration. If Dr Czoban was unaware of it, then no amount of evidence about whether Dr Lambeth was or was not registered could alter the fact that Dr Czoban was unaware of it. The same applies in respect of Mr Cotton.

The Fifth Ground 32 The fifth ground of appeal seeks to find discrimination in the phenomenon of referral for assessment by a practitioner who was not registered. If it were established that this was done only to the disabled and that those who had some other reason for medical assessment were sent to registered practitioners there might perhaps be a basis for apprehending a discrimination case and a want of attention to that case by the court below. That, though, was never put forward. If there were any transgression by the Australian Federal Police in the referral, that transgression seems to have been quite unrelated to Mr Gibbons' disability or to constitute discrimination on the basis of disability, and nothing more than ignorance of whether the practitioner concerned was registered. Further, and as I have already observed, the Australian Federal Police in this referral was deliberately seeking to arrange assessment by a practitioner who had a background which Mr Gibbons himself thought would be useful. That background was defence medical experience. It was nothing to the point, in that regard, so far as the experience was concerned, as to whether, at that very moment, Dr Lambeth was or was not then registered.

The Sixth and Seventh Grounds 33 The sixth ground proposed adds nothing to those already the subject of comment. Neither does the seventh ground. 34 As to the seventh ground, though, it should be stated that the nature of the proceeding before the Federal Magistrates Court was not an unfair dismissal proceeding but rather one in respect of alleged discrimination. There can be an overlap between the two but in this case Mr Gibbons focussed only upon what he apprehended was a cause of action under the Disability Discrimination Act. He did not seek to challenge the dismissal on what one might term other industrial relations grounds such as whether or not the process leading up to his dismissal involved a transgression of industrial instruments or policies relevant to this employment such that the dismissal should be regarded as an unfair dismissal or an unlawful dismissal.

Conclusion 35 When one examines the judgment of the learned federal magistrate, one finds a careful and methodical scrutiny of the elements relevant to the establishment of a case of unlawful discrimination. His Honour was satisfied that Mr Gibbons' underlying behavioural characteristics were exacerbated because of the injuries which he had suffered in the motor vehicle incident. That was a finding reasonably open to his Honour and reasonably open on the strength of, materially, Dr Lambeth's opinion. That was a finding which was a necessary finding along the way in the case which Mr Gibbons sought to make. As it happened, the learned federal magistrate went on to find, though, that Mr Gibbons had not suffered either direct or indirect discrimination. He was further satisfied that Mr Gibbons had not demonstrated any discrimination by the Australian Federal Police in his employment, particularly when regard was had to his past training, qualifications, and experience. 36 These were findings that were reasonably open to the learned federal magistrate. So too was the finding that the requirement for returning to work in the position in the ACT with the police was reasonable in the circumstances of the case.

37 However one approaches the grounds proposed for the appeal, they do not, in my opinion, have any reasonable prospects of success, or put another way, I do not regard them as, in any way, reasonably arguable. To grant an extension of time in these circumstances would be futile. For these reasons, I dismiss the application for the extension of time. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.