Case: Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568
Outcome: applied
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] HCA 44 ; (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). 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. 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) [1986] HCA 39 ; 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 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. 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: On 10 September 1970 the Applicant commenced his Vietnam service, being posted to 2 nd 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. 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.) 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. 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.) 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. 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. 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. 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. 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. 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 I will consider first the bias appeal and then will refer briefly to procedural fairness. 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. I am in consequence not satisfied that the right to object was waived. I consider the Federal Magistrate erred in so concluding. 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.