MONROE AUSTRALIA PTY LTD v BURIAN No. SCGRG-97-964 Judgment No. S6578 [1998] SASC 6578

The respondent ("the worker") suffered a compensable disability for the purposes of the Act, when he injured his back in 1991. The appellant, the respondent's employer ("the employer"), was an exempt employer under the Act. In due course the employer made decisions under section 36(1) of the Act to discontinue weekly payments of compensation being paid to the worker. The worker challenged those decisions. At issue was whether the worker had ceased to be incapacitated for work by reason of the back injury.

There was a hearing before a Review Officer, an appeal to the Tribunal and then, as a result of a remitter from the Tribunal, a further review of one of the employer's decision by the Review Officer in question. In the meantime, the employer had made yet another decision to discontinue weekly payments. That decision was made on the basis of further medical evidence. A review was sought of that decision as well. It followed that the Review Officer had before him two decisions by the employer. One was the decision remitted by the Tribunal, the other was a more recent decision which was being reviewed for the first time.

It appears that the matter was hotly contested. In all, ten medical practitioners were called as witnesses. There was other evidence. The employer also relied upon film taken of the worker's activities. The credit of the worker was in issue. The review began on 18 October 1995. The incident that gave rise to the present case occurred on the sixth hearing day. That was 6 December 1995. Subsequently, there were three more hearing days - 19 December 1995, 27 June 1996 and 27 July 1996. The Review Officer published his reasons on 30 December 1996.

I realise that Review Officers worked (the system has now been changed) under a system that did not make it easy to provide a run of consecutive hearing days. I can only say that it is regrettable that a matter occupying nine hearing days took some fourteen months to conclude.

We were told that proceedings by Review Officers are conducted with an element of informality. There is nothing wrong with that. Review Officers are not required to conduct their proceedings with the formality of a court, nor are they required to confine themselves to the part that would be played by a judge hearing a civil action in this Court. It is not necessary here to review the functions performed by a Review Officer under the Act, and the manner in which a review is conducted. Those matters have been thoroughly considered in previous decisions of this Court: Santos Limited v Saunders (1988) 49 SASR 556; Simpson Limited v Arcipreste [1989] SASC 1951; (1989) 53 SASR 9; Spiel v Workers Rehabilitation and Compensation Corporation (1992) 58 SASR 45 and Cristea v Workers Rehabilitation and Compensation Corporation [1993] SASC 4356; (1993) 61 SASR 487.

We were told in particular that it is not uncommon for a Review Officer, when a witness is to be called, to leave the hearing room and to bring the witness from a nearby waiting area to the hearing room. We were also told that it was not uncommon for a Review Officer to escort a witness, whose evidence is complete, from the hearing room back to the waiting area. I understand that these practices result from the layout of the premises in which reviews are conducted, and from the lack of staff to act in the role of a tipstaff or usher.

On 6 December a general medical practitioner was giving evidence. He had been called by the employer. At the conclusion of his evidence, one of the counsel wanted the doctor's notes photocopied. The photocopying machine was on the same floor as the hearing room, and in the public area. The transcript records that the hearing was adjourned at 12.47 pm to enable the notes to be copied.

We were told that the Review Officer walked with the doctor to the photocopying machine, to copy the notes. There is no reason to doubt that both counsel were aware of this, and made no objection to it. Counsel remained in the hearing room.

The transcript records that the hearing resumed six minutes later, at 12.53 pm. The Review Officer then said:-

"What's happened, in the course of waiting for the tapes Dr Przybylko has called me aside and said to me that when coming in Mr Burian ["the worker"] approached him and made certain threats to him about his evidence and said something to the effect that if he didn't do the right thing he would be fixed up. Now, I'm deeply disturbed by this as you might expect. I propose hearing from you as to the course and conduct of that aspect of the evidence which I propose - I would have thought we have to lead from the doctor, so I've conducted this portion of the hearing in the absence of Mr Burian and the doctor, because obviously Mr Burian is at this point in time not aware that this issue has arisen.

I have proofed the doctor very briefly as to what his understanding of that meant and he said he felt threatened. He took it to be a threat and it was given to him in Polish. I don't believe it has affected his evidence, but that is a matter for further examination. His explanation to me was, 'Well, it wasn't going to affect my evidence because I give my evidence under oath,' et cetera."

The doctor then resumed his evidence, and briefly related what had happened between him and the worker that morning, when he arrived at the building to give evidence. After a further brief discussion, the transcript records that the hearing was adjourned at 1.13 pm. Apparently the hearing continued in the afternoon, dealing with other evidence.

On 19 December, the next hearing day, counsel for the worker asked the Review Officer to disqualify himself, because of what had happened. The Review Officer declined to do so. He gave brief reasons at the time. The essence of them is contained in the following passage (AB87):-

"I propose to continue hearing the matter. I'm of the view that I should not disqualify myself on the grounds of perceived bias. The man on the Clapham Omnibus in my view would not reasonably take the view that I cannot bring an unfair [sic] or impartial mind to these proceedings."

The Review Officer referred to the matter when he published his reasons for upholding the exempt employer's decision to discontinue the making of weekly payments. He referred to the exchange between the worker and the doctor. He then said (AB142):-

"Dr Przybylko's evidence aforementioned was a result of information he volunteered to me. He had said, 'Review Officer, there is something I wish to raise with you.' He said, 'I was approached by Mr Burian prior to giving evidence.' I invited him to tell me no more, and ushered him back into the hearing room whereupon he gave his evidence."

He went on to say that a "reasonable man would not apprehend any possible bias from those events." He also said that he declined to make any finding of fact about these events. In other words, he drew no conclusion, one way or the other, about them. He was able to decide the case without doing so.

The Tribunal sought and received a report from the Review Officer. The report was dated 12 May 1997, about eighteen months after the events in question. The report indicates that the Review Officer did not have the transcript of the hearing when preparing the report for the Tribunal. The report is quite short. The first paragraph is as follows (AB181):-

"1. Dr. Pryzbilko (sic) had completed his evidence and a copy of his clinical notes was sought by the parties. I walked with Dr. Pryzbilko (sic) from the hearing room down the passage into the public waiting area on the sixth floor of Currie Street. His remarks are recorded at 17.3 of my determination. I have a clear and unhesitating recollection that I invited Dr. Pryzbilko (sic) to tell me no more as I was instantly aware of the serious implications of his remarks. I returned immediately to the hearing room where he gave evidence about what was said. There was no other discussion between myself and Dr. Pryzbilko (sic)."

It is convenient here to mention two points that were made by counsel for the worker. First, the Review Officer's statement immediately after the incident in question indicates that, contrary to the report, more was said by the doctor to the Review Officer than is indicated by the reasons for decision. The Review Officer's remarks indicate that he was told that a threat had been made, and that he was given some indication of the nature of the threat. Secondly, although the Review Officer may have told the doctor to tell him no more, he must have done so after that additional information was imparted. These discrepancies between the transcript and the report were referred to by the Tribunal. In that context, it should be noted, as counsel for the employer pointed out, that in his report the Review Officer said no more than that he could not recall anything being said by the doctor beyond what was contained in the determination.

It is convenient to record here that the doctor was never asked to give evidence about what he said to the Review Officer.

In the course of his reasons the Deputy President considered the relevant authorities. Having referred to a number of cases he said:-

"However, my concern is that the judicial norms and purposes underlying those norms should emanate from the judicial officer and not be dictated by circumstances. In other words, in the given circumstances, the Review Officer should have avoided being left alone with one of the critical witnesses whose evidence he had to decide upon and, moreover if the witness chose to raise matters concerning the case, to immediately state that was not allowed and any matter of that nature if he wished to have it brought to the Court's attention to be brought via his counsel (in this case Mr. Krupka). Furthermore the policy underlying those norms remained as valid in lower tribunals as in superior courts and those standards should be observed as closely in the Review Authority as in the Supreme Court."

He then referred to a submission that any difficulty had been effectively cured by the prompt disclosure made by the Review Officer. The Deputy President then said:-

"As indicated this matter relies very much on its individual circumstances. However awkward the result is, in my conclusion the conduct did reach the level of bias at law and as such the proceedings were tainted. It is not a particular aspect, whether the going to the photocopies with Dr. Pryzbylko or what was the conversation between them, (although the latter to me is much more significant) but the whole circumstances has made me form the view I have. (See also R v Magistrates Court of Lilydale: exparte Ciccone [1973] VicRp 10; (1973) VR 122 at 127 per McIntyre J). ..."

The Tribunal therefore allowed the appeal to it, and presumably, subject to this appeal, there will be a rehearing of the review.

On appeal, it was argued that the Tribunal had made an error of law. The first submission was that it erred in the application of the legal standard established by the relevant High Court cases to the facts. Alternatively, it was argued that there was an apparent failure by the Tribunal to take account of relevant matters - in particular, the practices of Review Officers in conducting witnesses to and from the hearing room, the tacit consent by counsel to the Review Officer accompanying the witness, and to the significance of the immediate disclosure by the Review Officer. This was said to be an error of law.

It is common ground that the relevant legal principles are to be found in recent High Court cases dealing with challenges, on the ground of bias, to a judicial officer sitting on a case.

I take as a convenient statement of the relevant principle, what Mason CJ and McHugh J said in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 47. They said:-

"When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has pre-judged or might pre-judge the case."

What they said is consistent with the approach taken by the other members of the Court: see Brennan J at 57, Deane J at 67-68, Toohey J at 87. What they said is consistent also with what was said by all members of the Court in Re J.R.L. ex parte C.J.L. [1986] HCA 39; (1986) 161 CLR 342.

The present case deals with a particular aspect of the principles that regulate the practice of the court. These are principles intended to ensure that a trial is conducted fairly, and that the potential for an apprehension of bias does not arise. The relevant principle was succinctly stated by Dawson J in Re J.R.L. (supra). His judgment was a dissenting one, but not on any issue of principle. He said (at 371):-

"It is fundamental in judicial proceedings of the ordinary kind that during the conduct of a case a judge should not communicate privately with a party or a witness. If it can ever be justified, it certainly cannot without the prior knowledge and consent of all parties. The basic principles of natural justice establish the right of each party to put his case and to be heard by an impartial judge. To hear one party or a witness in his cause behind the back of the other party is to deny to the latter the right to be heard because he cannot know what has been said and so cannot be certain of the case which he has to meet. It may also undermine confidence in the impartiality of the judge and afford a reasonable basis for the apprehension of bias ... "

The cases make it clear that the breach of such a safeguard can give rise to reasonable apprehension of the sort referred to by Mason CJ and McHugh J in Webb (supra).

In applying these principles the concern of the court is with public confidence in the administration of justice. That is why the test used by the court reflects the reaction of an ordinary, reasonable member of the public to the irregularity in question: Webb at 51, Mason CJ and McHugh J. As their Honours went on to say (at 52):-

"It is the court's view of the public view, [of the irregularity] not the court's own view, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored."

The important point is that what is at issue is the reasonable apprehension of a fair-minded member of the public. The breach of one of the safeguards of a fair trial, the rule against a private communication between a judge and a witness, may give rise to the relevant reasonable apprehension, and then the judge will not be able to sit. But it is only in that event that the judge cannot sit.

In some of the reported cases, the circumstances of the breach were such that there was no need to inquire beyond the fact of the breach. Examples of such cases are provided by R v Justices of Bodmin; ex parte McEwen [1947] KB 321 at 325 and by Garrihy v Wyatt (1975) 10 SASR 476, both referred to by Gibbs CJ in Re J.R.L. at 350. But, in my opinion, it will usually be necessary to consider those surrounding circumstances which constitute facts of which the fair-minded and informed observer would be aware. That is how it was expressed by Deane J in Webb (supra) at 73.

Those facts will usually include the conduct of the judicial officer in question, and may include any explanation, given by the judicial officer of what transpired. In my opinion, it is significant that in Re J.R.L. (supra) all members of the Court gave careful consideration to the circumstances surrounding a private communication by a court counsellor to a judge of the Family Court, during a lunch time adjournment. The approach of the Court was not that the bare fact of a private communication relating to the case sufficed to disqualify the judge. As to that, see for example Mason J at 351 and 355, Wilson J at 361, Brennan J at 370, Dawson J at 371-372. Similarly, in Webb (supra) Mason CJ and McHugh J (at 53) took into account the likely effect of the judge's directions after the incident in question. (The Court was considering a communication between a juror and a relative of the victim of the crime.)

I mention these matters because in Re J.R.L. (supra) Gibbs CJ said (at 349):-

"In the present case it was wrong of the counsellor to attempt to influence the judge and ill-advised for the judge to speak to the counsellor in private. Counsel for the prosecutor referred us to authorities which establish that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question involved in it: see Livesey v N.S.W. Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp293-294. I rather think that the present case is governed by an analogous principle, that justice must not only be done but must manifestly be seen to be done; when a judge has received in private representations concerning a case, the court will not inquire whether the representations in fact worked to the prejudice of the party against whose interest they were made - it is enough that they might do so ... "

But, as I read the judgments, the other members of the Court did not take the view that a judge is disqualified as a result of receiving a prohibited communication, regardless of the circumstances. Nor was that strict view taken by the Court in Webb (supra).

It is true, as Gibbs CJ said, that the Court does not inquire whether the relevant communication in fact has worked to the prejudice of the party. The question is, how would things appear to a reasonable member of the public? But that question is answered by considering all of the circumstances. The terms in which the judge in question discloses the communication, and what the judge says about the effect of the communication, may, but will not necessarily, dispose of a reasonable apprehension that might otherwise might have arisen: see Re J.R.L. (supra) at 355 Mason J:-

"But the critical question is whether in all the circumstances the parties of the public would reasonably apprehend that the judge would not bring an impartial and unprejudiced mind to a hearing and determination of the custody proceedings between the parents of the child. Or to put it another way, the question is whether the principle that justice must be seen to be done requires that the judge be disqualified."

I therefore proceed on the basis that the court must look beyond the bare fact of the communication between the doctor and the Review Officer, and consider all of the reasonable circumstances as disclosed.

I proceed on the basis that the rule against a private communication between a judge and a witness applies to a Review Officer conducting a review. I consider that that is clearly the case.

In the present case the informed observer is to be taken to be aware of the practices of Review Officers. Those practices include the practice of conducting witnesses to and from the hearing room. In a court, the judge should not allow himself or herself to be alone with a witness. The way in which a court conducts hearings, and the resources provided to a court, mean that usually there is no occasion for a judge to conduct a witness into or out of court. However, the strict rule that applies to judges cannot, in my opinion, be applied to a Review Officer. It follows that the mere fact that the Review Officer was, for a short time, alone with the witness is not something that could be regarded as giving rise to a reasonable apprehension of bias. The problem lies in the fact and nature of the communication between the doctor and the Review Officer.

I should add that despite the practices of the Review Officers, and the tacit acquiescence of counsel in this case to the Review Officer accompanying the doctor to the photocopier, in my opinion it was unwise of the Review Officer to do that. It is one thing to usher a witness into or out of a hearing room. It is another thing to do what the Review Officer did in this case. The handling of the notes, and the use of the photocopier, might well give rise to some conversation between the doctor and the Review Officer. That is something carefully to be avoided. In my opinion, the Review Officer should have invited counsel to accompany him to the photocopier, or at the very least should have told the witness before leaving the hearing room that there should be no communication with the Review Officer relating to the case. Furthermore, as soon as the witness began to speak, the Review Officer should have stopped him. What the Review Officer disclosed to counsel indicates that the Review Officer did not do that.

In my opinion, the issue for the Tribunal was whether, in the light of the disclosure made by the Review Officer on his return to the hearing room, a fair-minded person might reasonably apprehend that the Review Officer had been influenced adversely against the worker by the disclosure by the doctor to the Review Officer of a possible threat by the worker to the doctor.

The disclosure bore in a significant way on the credit of the worker. It would be a very significant thing if the worker had made a threat to a witness. The fact that ultimately the Review Officer did not find it necessary to make a finding on this matter is immaterial. The question of bias is to be judged as things stood on 6 December. I consider that it is to be judged in the light of what the Review Officer himself said and did.

The fact that the Review Officer immediately returned to the hearing room and disclosed what had happened, does tend to dispel any reasonable apprehension of bias. The Review Officer did all that he could to ensure that counsel were aware of the incident immediately, and to disclose everything that had transpired. In many cases that would suffice. For example, assume that immediately after the lunch adjournment a judge reported to counsel that a witness had approached the judge in the street and blurted out some fact relevant to the case the judge was hearing, despite the judge trying to stop the witness from doing so. Ordinarily, in my opinion, the judge's disclosure of that event would mean that no question of bias could arise. Counsel, and the informed observer, would be aware of what had happened, that the judge had not invited the disclosure in any way, and I assume for present purposes that nothing that the judge said or did gave any reason to think that the judge had been influenced by the disclosure.

In the present case, the fact that the Review Officer apparently did not invite the disclosure is also relevant. It is also relevant that counsel were given the opportunity to question the doctor immediately, and again on a later day. Neither counsel sought to question the doctor about what passed between the doctor and the Review Officer. I proceed on the basis that counsel accepted the explanation given by the Review Officer, and set out by me above.

On the other hand, what the Review Officer said is capable of leading to the conclusion that the Review Officer had explored the issue briefly with the doctor. The Review Officer said that he had "proofed the doctor very briefly", and his own remarks suggest that he did explore the matter briefly with the doctor. The Review Officer said that he was "deeply disturbed". In context, this appears to me to be a reference not to the fact that the doctor had spoken to him, when he should not have done so, but a reference to the substance of what the doctor had disclosed. The Review Officer's remarks are capable of leading to the conclusion that the Review Officer had formed a tentative view that the doctor had been threatened. The Review Officer went on, in a passage that I have not set out above, to raise the issue of the doctor's safety. Just after doing that, he said (AB52):-

"Now, me it seems improbable that the doctor would come out with this ... "

He was then, apparently, interrupted by counsel. These words also suggest that he was intending to say that it was unlikely that the doctor would invent what he said. All of those matters are capable of suggesting that the Review Officer had formed a tentative view that a threat had been uttered to the doctor.

The precise basis of the Tribunal's decision is not clear. In the second of the passages set out above, the Tribunal refers to "the whole circumstances". I do not consider that the Tribunal decided the matter simply on the basis of the fact of a discussion between the Review Officer and the doctor. I think it clear that the Tribunal took into account the subject matter of the communication and the Review Officer's own reaction to the communication.

I can find no error of legal principle in the approach of the Tribunal. The Tribunal referred to, and clearly intended to apply, the principles that I have outlined above.

Putting aside, for the moment, the issue of whether the application of the above principles to the facts gives rise to a question of law, I now turn to the conclusion reached by the Tribunal.

After careful thought, and not without some hesitation, I have reached the same conclusion as the Tribunal reached.

In asking myself how the matter would appear, viewed reasonably by a party or by the public, I am influenced by the following matters. Once the incident had occurred, it was probable that the Review Officer would have to evaluate the reliability of the doctor's evidence about the conversation with the worker. It was probable that the Review Officer would have to decide whether the conversation had affected the doctor's evidence. The spontaneous nature of the disclosure by the doctor, and his manner at the time, could be regarded as significant factors, at least in relation to the first of those questions. As well, the Review Officer said things to counsel, when describing the incident, that could suggest that he had formed a tentative view in favour of the doctor's reliability. In all the circumstances, a reasonable observer might apprehend that the Review Officer might not be able to put out of his mind the effect of the circumstances of the disclosure, if the Review Officer had to make a decision about what the doctor had told him. In addition, and this is important, the subject matter of the communication was potentially very damaging to the worker's credit, and the case was one in which the worker's credit was in issue.

It is not to the point that ultimately the Review Officer decided the case without making a decision about the alleged threat. The decision to be made, on the application to the Review Officer that he should disqualify himself, was to be made on the basis of things as they stood when the disclosure occurred.

Nor is it to the point for this Court to say that it is confident that the Review Officer could determine impartially the issues before him. The issue is how things would appear to the reasonable observer.

Nor is it appropriate to take into account the manifest inconvenience of the result. It is most unfortunate that such an incident, occurring six days into a hearing, should mean that the hearing must start afresh. Despite the manifest inconvenience, the worker is entitled to a fair hearing.

It is on that basis that I came to the conclusion that there was a firm basis for a reasonable apprehension that the Review Officer would not be able to bring an impartial mind to bear on the question of whether the worker had threatened the doctor. I have also taken account of the importance of the principle that justice be seen to be done.

The unfortunate outcome is a reminder of the importance of observing the procedures intended to prevent such issues arising. In fairness to the Review Officer, I add that one can hardly be critical of him. Once the problem arose, he did everything that he could have done to deal with the problem. Accompanying the witness was unwise, as I have already said, but in view of the procedures followed before Review Officers, it is easy to understand how the incident came about.

Because I agree with the Tribunal, I do not have to decide whether the case gives rise to a question of law. As to that, I would add just this.

The distinction between a question of law and one of fact is a vexed distinction. As the High Court said in Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389 at 394:-

"The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated."

In Rohrlach v Christianos (1980) 26 SASR 161 at 162, in relation to a provision in the Workers Compensation Act, 1971 similar to section 100(3) of the Act, King CJ applied the principle that the proper legal effect of a proved fact was essentially a question of law, but the question whether the fact had been proved was a question of fact. On that approach it could be said that determining what transpired is a question of fact, but that the application of the test enunciated by the High Court to the proved facts is a question of law, because one is then determining the legal effect of those facts. Remarks to a like effect can be found in other cases. However, the approach taken by King CJ in Rohrlach v Christianos (supra) was not taken by the other two members of the Court. White J decided the case on another basis. Cox J questioned whether a question of law arose, but did not have to decide the point.

Because of its importance, the question should be decided only after a careful review of the authorities.

I have had the advantage of reading the reasons for judgment of the Chief Justice.

The fair-minded and informed member of the public to whom the law refers these questions is expected to be reasonable and to use his common sense. I do not think that in this case he would have been troubled by the fact that the Review Officer did not show such presence of mind as to stop the unexpected exchange with the medical witness at the earliest possible point, and I would not interpret the Review Officer's statement to counsel, that he was "deeply disturbed by this", as expressing an acceptance of the witness's accusation rather than a concern that such a serious accusation had been made which plainly had to be investigated. What would have impressed the hypothetical observer was the Review Officer's immediate reporting of the incident to counsel so that the best way of dealing with it could be considered. It is true that the transcript included the following passage -

"REVIEW OFFICER: Well, that's one consideration - the doctor's safety. I can speak to him about that, whether he's happy to give his evidence. The other point is Mr Burian should be present if it's to be tested if he denies it. So there's another competing consideration. I must observe Mr Burian. Now, me it seems improbable that the doctor would come out with this ---

REVIEW OFFICER: --- and it must be tested, so I'm not sure of the proper process and I might indeed want to consider it, but I've held doctor over. ..."

If that may be said to indicate a tentative acceptance of the doctor's statement - or, more correctly, the probabilities of the matter - it does not necessarily follow that the Review Officer would not have brought an impartial mind to bear on the question whether the worker had threatened the doctor, or that a reasonable observer would have apprehended as much. I am not satisfied that the Review Officer acted incorrectly in declining to abort the hearing. However, I acknowledge that there is room for more than one view about that, in light of the passage I have just set out. The learned Deputy President applied the proper legal test and (assuming but not deciding that the power is there) I should not be disposed to interfere with his decision. The appeal should be dismissed.

I have read in draft the reasons of the Chief Justice and of Cox J. I agree that the Tribunal applied the correct legal test as to apprehended bias. I would not interfere with the Tribunal's decision.

The Tribunal proceeded upon a view of the facts which was open upon the evidence. However, I should not be taken to have endorsed the findings of fact which are implicit in the Tribunal's decision.