Wade v Comcare [2002] FCAFC 289 (16 September 2002)

Last Updated: 17 September 2002

FEDERAL COURT OF AUSTRALIA

Wade v Comcare [2002] FCAFC 289

ADMINISTRATIVE LAW - review of decision of tribunal -whether primary judge erred in finding the fact that no causal link existed between injuries claimed and accident - natural justice - whether appellant was denied natural justice where witnesses not called - whether tribunal prevented party from calling witness - within reasonable limits it is for the parties not the tribunal to determine whether a witness is called - not a denial of natural justice where witness is unlikely to assist the tribunal - "Wednesbury Unreasonableness" - whether it was open to the tribunal to prefer expert evidence to lay evidence - bias - apprehension of bias - whether a fair minded observer would have apprehended the possibility of bias - whether circumstances arose such that a fair-minded bystander would form an apprehension of bias against a party

SOCIAL SECURITY - claim for workers' compensation - whether medical condition suffered attributable to employment

Commonwealth Employees' Compensation Act 1930 (Cth)

Webb v The Queen [1994] HCA 30; (1993-1994) 181 CLR 41 applied

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 considered

Vakauta v Kelly (1988) 13 NSWLR 502 considered

Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 considered

JEFFREY KENNETH WADE v COMCARE

Q 45 OF 2002

DRUMMOND, SACKVILLE & DOWSETT JJ

16 SEPTEMBER 2002

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 45 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JEFFREY KENNETH WADE APPELLANT
AND:	COMCARE RESPONDENT
JUDGES:	DRUMMOND, SACKVILLE & DOWSETT JJ
DATE OF ORDER:	16 SEPTEMBER 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 45 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JEFFREY KENNETH WADE APPELLANT
AND:	COMCARE RESPONDENT

JUDGES:	DRUMMOND, SACKVILLE & DOWSETT JJ
DATE:	16 SEPTEMBER 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

DRUMMOND & DOWSETT JJ:

1 This appeal is from a decision of Spender J, dismissing an appeal from a decision of the Administrative Appeals Tribunal (the "tribunal"). That decision affirmed the respondent's rejection of a claim by the appellant under the Commonwealth Employees' Compensation Act 1930 (Cth) (the "Act"). It seems that such claim had alleged that the appellant was suffering from four work-related medical conditions, namely:

® an orthopaedic spinal condition;

® a neurological condition;

® a vascular condition; and

® post-traumatic stress disorder.

2 On 10 September 1961, the appellant was serving in HMAS Melbourne when it encountered rough weather in the Tasman Sea. He fell from his bunk and sustained a head injury (the "1961 incident"). As to his vascular condition, the tribunal held:

"Considering, firstly, the claimed vascular conditions of chronic leg ulcers, pulmonary embolism and deep vein thrombosis, there was not sufficient medical evidence presented to the Tribunal to allow it to make any link, on the balance of probabilities, between the fall from the bunk and these vascular conditions. As such, it is the Tribunal's finding that these conditions have not been established as arising from the applicant's employment."

3 As to the neurological condition (which appears to have involved severe headaches), the tribunal held:

"Mr Wade says that he has experienced headaches since 1961 and that shortly after the fall from the bunk he experienced a number of blackouts. ... Mr Wade's medical records refer to an incident in December 1961 where he hit his head on a car hoist at a garage station which resulted in a blackout and hospitalisation for four days. Dr Atkinson, a Neurosurgeon, ... stated that in his opinion the fall in 1961 was definitely not the principal cause of the headaches. He considered that the headaches were probably the result of underlying personality factors and were associated with anxiety and hypertension. Clinical notes of a Dr I A Brodziak ... made in January 1962 note the headaches but provide an opinion that the cause was not organic. As such, it is the Tribunal's view that on the balance of probabilities, the neurological condition is not related to the incident in 1961 and so not related to the applicant's employment."

4 As to the back condition, the tribunal summarized the evidence of Dr Graham Anderson, Dr Tze-Ki Ho and Dr G Nutting, orthopaedic surgeons and Dr Bruce McPhee, a spinal surgeon. None of this evidence supported the appellant's claim that his back trouble was attributable to the 1961 incident. The tribunal found that the condition was not so attributable. As to the allegation of post traumatic stress disorder, some of the medical evidence suggested that the appellant was suffering from an anxiety condition, but it did not support his assertion that he was suffering from post traumatic stress disorder. The tribunal noted that the appellant's lay witnesses gave evidence that his personality was altered after the 1961 incident but, accepting the medical evidence, refused to find that the appellant had suffered any post traumatic stress disorder. It is clear enough that it also found that his anxiety condition was not attributable to the 1961 incident. In addition, it concluded that the appellant was "not a credible witness".

5 As the appeal focuses on the anxiety condition, it is necessary to consider the evidence relating to that aspect of the case. Dr Jenkins stated in his report of 13 March 2000:

"Mr Wade is describing symptoms of a Generalized Anxiety Disorder but in view of his memory lapse it is difficult to offer any definite opinion about the cause of this. He did provide me with two letters, which go towards confirming that he did develop anxiety following on the back injury.

There is also a history of his being investigated for blackouts and a medical report from Dr McGeorge indicates an opinion that he felt these were organic rather than functional and at that time Mr Wade was taking Dilantin."

6 In his oral evidence, the following passage is of some significance:

The appellant:

`The problems I had - would that be the - the injury and that - would that be the most probable cause (of the anxiety state)?'

Dr Jenkins:

`Well, it was a frightening experience for you undoubtedly, and it therefore could well be seen as a cause. But my problem, as I tried to indicate and has had to indicate, was that because you were telling me that you only had - and I quote - `snippets of memory' until 1963, then there's a - therein lays my difficulty in saying, `Yes, it definitely was the cause of your anxiety state'.

The appellant:

`Yes. Yes, well, when I say I had snippets of memory, well I was referring to that I couldn't remember exactly everything, but also I only had times of memory - sometimes it would only be for a short duration, wasn't it, that I was referring to. Like perhaps five minutes at one time ---?'

Dr Jenkins:

`Well, when I enquired about the period of amnesia, Mr Wade, you said that it began from showering that morning ... and then continued afterwards.'

The appellant:

`Yes. That is correct, Doctor. Well, in your opinion, then, really, it could have had - the cause - like, therefore the accident - it was caused - was probably the cause or not the cause of my condition, like having this anxiety. Would you say it would have been the accident?'

Dr Jenkins:

`To put it in terms of probability, then going on your account of yourself and the fact that you have been suffering from, you know, symptoms of generalized anxiety disorder since then, right?

... And that your memory prior to the accident was clear and you certainly weren't telling me that you had symptoms of anxiety prior to the accident, and I also take into account the corroborative statements which you supplied to me from ...'

The appellant:

`Various witnesses?'

Dr Jenkins:

`Yes, various people. So I would think, on the balance of probabilities, it is reasonable to say that your generalized anxiety disorder dates back to the frightening experience of the vessel being hit by a freak wave and knocking you out of your bunk.'

7 In cross-examination he was asked:

"The deputy president of the tribunal asked you initially, right, in respect of that second last paragraph, `Mr Wade is describing symptoms of a generalized anxiety disorder, but in view of his memory lapse it is difficult to offer any definite opinion about the cause of this?'."

8 Dr Jenkins replied:

"Yes, I think it still has to say that, yes."

9 Dr Chalk, another psychiatrist, saw the appellant on 18 February 1999. According to his report the appellant claimed to be "anxious at times" but did not describe any "current anxiety symptoms". Dr Chalk concluded that:

"...(he) does not suffer from any Axis 1 psychiatric disorder related to the fall from his bunk in 1961. I do not think that he currently suffers from an axis 1 psychiatric disorder but rather he has had long-standing interpersonal difficulties and has a mixed disorder on Axis 2.

I do not think he has a compensable injury related to his service."

10 The respective meanings of the expressions "Axis 1" and "Axis 2" are not clear from the evidence. In cross-examination Dr Chalk appears to have agreed with Dr Jenkins that there were some symptoms of anxiety. It seems likely that "Axis 2" involved such symptoms. Clearly, Dr Chalk did not attribute any of his findings to the 1961 incident.

11 The tribunal concluded at [10]:

"Dr Jenkins in his oral evidence agreed that Mr Wade did suffer from anxiety and that it may have dated back to the incident on the ship. Also, he thought that it was reasonable for there to have been some memory loss for up to two years after the injury to the head. However, this did not alter his opinion in his report that `Mr Wade is describing symptoms of a generalised anxiety disorder, but in view of his memory lapse it is difficult to offer any definite opinion about the cause of this'. (Emphasis inserted by tribunal)."

12 The tribunal then referred to Dr Chalk's evidence, but primarily with regard to post-traumatic stress disorder. Although its discussion of Dr Jenkins' evidence might arguably be construed to be a mere observation about that evidence rather than a finding of fact, the better view is that the tribunal intended to reject the appellant's claim as to his anxiety condition. The transcript of proceedings in the tribunal and the written submissions made to it demonstrate that this was a significant aspect of the appellant's case and that the tribunal was aware of it. It is most unlikely that it would have overlooked the matter. There was simply no evidence attributing that condition to the 1961 incident other than Dr Jenkins' equivocal answer in examination-in-chief. The tribunal's discussion of the matter at [10] indicates its preferred view of Dr Jenkins' evidence and offers an adequate basis for dismissing that aspect of the claim.

13 The appellant's grounds of appeal at first instance were as follows:

"(a) The tribunal erred in law. Alternative claim of general anxiety disorder was made.

(b) The applicant was denied natural justice. The tribunal limited the evidence of the applicant.

(c) The tribunal erred in law by bias as to the applicant's witness's evidence being considered before being heard."

14 Spender J held that it was open to the tribunal to conclude that the evidence did not support the appellant's claim. His Honour also concluded that the alleged denial of natural justice was not established as the appellant had been given an opportunity to present his case. Spender J did not expressly deal with the question of bias.

15 The appellant's notice of appeal from the decision of Spender J contained the following grounds:

"(a) The judgement is wrong in law as to the finding of fact to the general anxiety disorder in para 18 of the judgement, which by para 10 of the judgement showed different terms in meaning or explanation para 18 is an error made by the previous tribunal and should have been corrected by the Judge with reference to para 10 by evidence given by Dr. Jenkins at the previous tribunal.

(b) The Judge erred by not finding that a clear claim of general anxiety disorder had been established by the evidence placed before the previous tribunal.

(c) The Judge erred as to upholding the tribunal's finding as to `no casual (sic) link' in para 5 of his judgement when evidence produced by the applicant and of his witnesses along with medical records confirm otherwise to the contentions raised by Comcare."

16 Ground (c) appears to be a reference to par 5 of the judgment in which his Honour summarized the submission made on behalf of Comcare "that there was no causal link between Mr Wade's present condition and the fall from the bunk ...". There can be no error in this statement. Grounds (a) and (b) relate to the alleged anxiety condition. The appellant is clearly concerned that the tribunal did not consider this matter. Counsel for the respondent correctly conceded before us that the tribunal would have made an appealable error if it failed to consider whether the appellant's anxiety condition resulted from the 1961 incident. Clearly, the tribunal made no such error.

17 In the course of his written submissions before us, the appellant raised a number of other issues, many of which were either argumentative assertions of fact or arguments concerning matters raised in the notice of appeal and already dealt with above. The only additional matter is contained in par 6 of the written submissions which raises an apprehension of bias or perhaps, actual bias. In oral argument, the appellant sought to ventilate numerous other matters including:

® That he had been prevented from calling a witness;

® That the tribunal's decision was bad for "Wednesbury unreasonableness";

® That the tribunal gave undue weight to medical evidence as opposed to lay evidence; and

® That his claims were supported by various aspects of the evidence.

18 There is no reason to believe that the tribunal overlooked any of the evidence. All questions of weight were for the tribunal. In particular, it concluded that the better view of Dr Jenkins' evidence was that the anxiety condition could not be attributed to the 1961 incident, notwithstanding the statement in his evidence-in-chief upon which the appellant relied. Before us, the appellant made numerous assertions as to the content of the evidence which were shown, on examination, to be incorrect. It is not necessary to deal in detail with those matters. We are satisfied that neither the tribunal nor Spender J erred as to any matter of evidence. As to "Wednesbury unreasonableness", it is clear that all findings were open on the evidence. Indeed, the preponderance of the expert evidence was against the appellant. The thrust of his case was that the tribunal should have acted on the lay evidence as to his condition rather than expert evidence. Clearly, there was a need for expert evidence as to causation, particularly given the length of time which had elapsed since the 1961 incident. Favourable medical evidence, accepted by the tribunal, was virtually essential if the appellant were to be successful. The absence of such evidence could not be easily remedied by lay evidence. The decision itself was undoubtedly a bona fide exercise of the tribunal's power and within jurisdiction. The point is without substance.

19 As to the claim that the appellant was prevented from calling a witness, this relates to the witness Pridmore. Two statements from that witness were in evidence. They appear at AB B88-89 and AB B234-237. Mr Pridmore served with the appellant in HMAS Melbourne and perhaps elsewhere in the navy. He gave evidence of his personality prior to the 1961 incident, and thereafter. That evidence discloses ongoing back pain and an apparent change in the appellant's patterns of behaviour after the 1961 incident which might be thought to offer some support for the existence of an anxiety condition. The appellant expected to call Mr Pridmore at the hearing. The evidence was taken on two consecutive days. Late on the afternoon of the first day, following the evidence of Dr Jenkins, the deputy president enquired as to the remaining lay witnesses to be called. The appellant indicated that one of them was Mr Pridmore. He indicated that both Mr Pridmore and Mr Mooney, another lay witness, were probably waiting by their telephones. The deputy president enquired as to whether they would be available on the following day. The appellant replied:

"I don't know about Mr Pridmore, because he rang last night to confirm his change of telephone number for today. He said he'd be waiting at the phone all day."

20 The deputy president then enquired of counsel for the respondent whether he had any questions of Mr Pridmore. Counsel indicated that he did not. The deputy president then said:

"I'm inclined just to go on his statement. Do you want him to amplify any statement?"

21 The appellant replied:

"Well, he could probably enlarge upon what the other witnesses said about how I was at the time of the accident, like before and after the accident, and also when he saw me at a later time as well."

22 The deputy president replied:

"I really think we've got enough on that topic."

23 The deputy president then went on to indicate that he thought Mr Mooney would be a worthwhile witness. He was called in due course. At TS 45 the deputy president also said:

"Tell Mr Pridmore that his statement is more than sufficient to inform us as to his contribution to this case."

24 The appellant replied:

"Yes."

25 It is easy to underestimate the difficulties associated with a case conducted by a litigant in person. The tribunal, whether it be a court or otherwise, must conduct the proceedings efficiently, ensure that the unrepresented party is not unfairly disadvantaged and resolve the matter in a way which is both impartial and apparently so. Difficulties frequently arise when an unrepresented party seeks to call a witness whose evidence, although strictly relevant, really takes the case no further. The evidence may simply reinforce evidence from another witness which has not been challenged or could not sensibly be challenged, or its relevance may be, at best, marginal. The appellant hoped that Mr Pridmore would, in oral evidence, go beyond his statements, but there is nothing to suggest that he had any justification for such hope. There was no statement disclosing what Mr Pridmore might have said, had he been called. In those circumstances, it is difficult to be critical of the deputy president's view that no real point would have been served by his being called. Indeed, in the absence of any reason to believe that Mr Pridmore had anything else to say, the appellant may not have been entitled to call him, given that he was not to be cross-examined. However it must be kept in mind that provided reasonable limits are not exceeded, it is for the parties, and not the tribunal to decide which witnesses should be called. It is unsatisfactory in the administration of justice that a litigant should feel that he or she has been prevented from calling a witness who may have been of assistance. There is a clear line between, on the one hand, persuading a self-represented party as to the appropriateness of a suggested course and on the other, overriding his or her right to decide.

26 In the present case, the deputy president appears to have asserted that there would be no point in calling Mr Pridmore, and then assumed that the appellant had accepted that position. He certainly did not protest when the deputy president indicated that he would proceed upon the basis that Mr Pridmore was not to be called. In any event, there appears to have been no dispute that the appellant had, from time to time, complained of back trouble, and there was evidence of anxiety as early as 19 December 1961. See the note contained in exhibit 1 in the proceedings before Spender J. By that time, the appellant had suffered a further head injury when he hit his head on a car hoist. Mr Pridmore had said that he noticed changes in the appellant's behaviour "over the next couple of months" after the 1961 incident. It is possible that Mr Pridmore may have re-inforced the fact that his perception of this change pre-dated the incident involving the car hoist, but there is no basis for believing that he would have done so. In any event, it was never suggested that the appellant's anxiety was attributable to this second injury rather than to the 1961 incident. Dr Chalk was aware of the second injury. It was referred to in the "case summary" which was supplied to him. See AB B117-118. Dr Jenkins was made aware of it in his oral evidence. Neither appears to have treated it as material. In any event, rejection of the complaint of post-traumatic stress disorder was based upon the appellant's having little or no recollection of the incident and his claim of amnesia for two years after the 1961 incident. In light of those matters, which appear to have been accepted for the purposes of the proceedings, Mr Pridmore's evidence added virtually nothing to the case.

27 The appellant's failure to object to the course suggested by the deputy president probably reflected his acceptance of the view that Mr Pridmore was unlikely to be of any assistance. This would have been an entirely rational conclusion. We are, in any event, unpersuaded that Mr Pridmore could have further assisted the appellant's case. In those circumstances, there was no denial of natural justice evidenced by the fact that Mr Pridmore did not give oral evidence.

28 As to bias or apparent bias, the complaint appears to arise out of an exchange which occurred between the appellant and the deputy president after lunch on the first day of the hearing. The deputy president asked the appellant about two medical witnesses, Dr O'Malley and Dr Jenkins, who were to give their evidence by telephone. He then asked counsel for the respondent whether he required Dr Jenkins, presumably for cross-examination. Counsel indicated that he did not consider that either witness advanced the appellant's case. The appellant pointed out that Dr O'Malley had treated him shortly after the 1961 incident and that he wished to call him in the hope that he might correct certain aspects of the clinical notes which had been prepared at that time. As to Dr Jenkins, the deputy president said:

"Well what about Dr Jenkins? If we don't need him, we won't get him. We will tell him that he is not needed and let the poor man get on with his practice."

29 The appellant responded:

"Well, with Dr Jenkins with all due respect he has given a report. The thing is that on my initial claim that was made in December 1998 I put in for post traumatic stress disorder and, not being a medical person, but Dr Jenkins has clarified that as being generalized anxiety disorder, and I was hoping that Dr Jenkins would perhaps (illuminate) the tribunal on the difference or the closeness to them at any rate and how one can affect more so than the other."

30 The deputy president assured the appellant that the tribunal was familiar with the distinction between the two conditions, which assurance the appellant appears to have accepted. It may have been a little unfortunate that the deputy president took this course. It was at least desirable that there be appropriate evidence as to the distinction in question. If the appellant felt that the state of the evidence was inadequate, then it was appropriate for him to seek to clarify it. In any event, counsel for the respondent then referred the tribunal to Dr Jenkins' opinion that it was "difficult to offer any definite opinion about the cause of" the anxiety state. In light of that opinion, the deputy president informed the appellant that there was no evidence as to causation of his anxiety condition, that the claim had to be established "on the balance of probabilities and that Dr Jenkins' statement is completely neutral." The appellant indicated that he hoped to extract a more favourable conclusion from Dr Jenkins. On that basis the deputy president abandoned any attempt to dissuade him from calling either witness. As is pointed out above, in his evidence-in-chief, Dr Jenkins adopted a somewhat equivocal position which may have been more favourable to the appellant than was his report, but under cross-examination, he re-affirmed his report. The deputy president's comments should be understood in light of the contents of Dr Jenkins' report as it stood prior to his oral evidence. In its reasons at [10], the tribunal referred to the relevant passage from Dr Jenkins' evidence-in-chief but pointed out that the witness had not altered the opinion recorded in his report.

31 The appellant's complaint of bias or an apprehension of bias depends upon this exchange and two other matters. After Dr Jenkins' evidence in chief, counsel for the respondent, in cross-examination, immediately took him to his report, which he re-affirmed. The appellant asserts that the fact that counsel raised the same point as had been ventilated by the deputy president led him to believe that it did not matter "what supportive evidence (he) presented to the Tribunal would get him nowhere as it was apparent that Deputy President Breen was prepared to give the Respondents Counsel every assistance ...". This view appears to have been reinforced by the second matter, a disclosure by the deputy president that he had been previously associated professionally with counsel for the respondent.

32 The deputy president, in discussing Dr Jenkins' evidence with the appellant was, to some extent, ventilating matters raised with him by counsel for the respondent. Counsel had indicated that the evidence of both Dr O'Malley and Dr Jenkins was of no assistance in the case and had drawn the tribunal's attention to aspects of Dr Jenkins' report. In so doing he was clearly seeking to assist the tribunal by identifying the true issues between the parties. The deputy president saw the strength of the points made by counsel and put them to the appellant for his comment. It was quite proper to take that course. Not surprisingly, counsel for the respondent, in commencing his cross-examination of Dr Jenkins, immediately went to the relevant passage in his report. That has had the effect of creating or re-inforcing the appellant's concern that the deputy president had demonstrated his acceptance of that position even before he had heard Dr Jenkins' evidence-in-chief.

33 A litigant in person will often feel at a disadvantage. Any such feeling of disadvantage may be re-inforced by the perception that opposing counsel and the tribunal are making common cause against him or her. Obviously, it is most undesirable that a party should form such a view, even if it is unreasonable. Normally, the court or tribunal will exercise special care to avoid providing any basis for even an unreasonable apprehension of bias. Members of the profession representing other parties should also be aware of the risk of creating such a perception. However it will often be difficult for counsel to perform his or her traditional function of assisting the court or tribunal without creating circumstances such as those which have led to the appellant's perception in this case. It would be unfortunate if the fear of creating, possibly unreasonable, suspicion in an unrepresented litigant were to deprive courts and tribunals of counsel's assistance.

34 In the present case, the position was aggravated by the appellant's concern that the deputy president had disclosed some previous association with counsel for the respondent. That arose in the following way. At the end of the hearing the deputy president discussed with the appellant and counsel for the respondent, the timetable for providing written submissions. Counsel had indicated that he was committed in the Supreme Court for the rest of the week. The deputy president suggested that he could have until the end of the following week to prepare his submissions. The appellant expressed some dissatisfaction with this arrangement and after an extended exchange, the deputy president said:

"Well, Mr Wade, we seem to be misunderstanding each other. If Mr Clarke reasonably needs - and Mr Clarke is a reasonable person, I have known him for many, many years. He has been a colleague of mine for many, many years. When he was a solicitor at the Public Defence Office he used to brief me and I know exactly how he works. If he tells me he needs until the end of next week then I accept that. Now, if you tell me that you need a week or two weeks after you've got Mr Clarke's, then equally I will accept that."

35 The disclosure was designed to demonstrate to the appellant that the deputy president had no reason to doubt counsel when he indicated the length of time which he would require to prepare submissions, given his other commitments. He indicated that he would similarly accept any estimate as to the appellant's own needs. Prior professional association between a judge and counsel is by no means unusual. No doubt members of the legal profession who act as members of tribunals will often also have had prior association with counsel appearing before them. It has, as far as we are aware, never been suggested that a judge should disclose a prior professional association with counsel, which association is unrelated to the case in question. Indeed, even relatively close social contact is not usually disclosed. This is partly because of the distinction which should be rigorously drawn between counsel and the party for whom he or she appears. Further, where all parties are represented by counsel, it is no doubt tacitly accepted that such matters need not be disclosed. In any event, there would be no point in making such a disclosure unless the judge or tribunal member were willing to contemplate withdrawing from the proceedings because of such association, should a relevant party request that such course be adopted. Given the relatively narrow pool of qualified persons from which judges are generally appointed, regular disqualification because of prior professional or social contact with counsel would pose serious problems in the administration of justice.

36 There can be no question of actual bias in this case. Whatever the appellant may believe, the deputy president's conduct was clearly designed to facilitate the proceedings and in no sense demonstrated bias against the appellant or his witnesses. As to the apprehension of bias, in Webb v The Queen [1994] HCA 30; (1993-1994) 181 CLR 41 at p 53 Mason CJ and McHugh J formulated the relevant test in the case of a jury trial as follows:

"... the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury, is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."

37 At p 57, Brennan J said:

"It is a valid ground of objection to the continued sitting of a Judge or juror in a criminal trial that a fair-minded and informed member of the public would entertain a reasonable apprehension that the judge or juror will not discharge his or her duty impartially."

38 At p 67, Deane J said that the test is:

"... whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts `might entertain a reasonable apprehension that (the judge) might not bring an impartial and unprejudiced mind to the resolution of the question' in issue."

39 At p 76, his Honour said:

"While the test of reasonable apprehension on the part of a fair-minded informed lay observer is to be applied in this country in cases involving a judge, a juror or a statutory office holder required to observe procedural fairness, the standard which such an observer would require of each will vary according to the function being discharged and the particular circumstances.

See also at pp 87-88, per Toohey J.

40 In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, the High Court considered a situation which was, in some respects, similar to the present position. In that case a Family Court Judge, on a number of occasions in the course of a trial, remarked that having regard to the nature of the issues, he would "be looking, in so far as it is possible, to independent evidence" or comments to that effect. At a relatively late stage in proceedings he said:

"Well, (let) me go back to what I said at the very beginning ... is that I will rely, principally, on witnesses other than the parties in this matter - and documents - to determine where the truth lies; and any other documents that are available to assist me in that regard, I'll be grateful to receive."

41 It was submitted that the Judge should have disqualified himself for apprehension of bias. The High Court applied the test in Webb. The majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) observed at [12], that it had to be remembered that 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". This was an extract from the judgment of McHugh JA in Vakauta v Kelly (1988) 13 NSWLR 502 at 527, adopted by Toohey J in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584 - 585. Their Honours then referred to the discussion in Vakauta by Brennan, Deane and Gaudron JJ of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case". In applying these considerations to the present case it is necessary to keep in mind that one of the parties was un-represented and that the deputy president was not a judge.

42 It is possible that the appellant, given his particular interest in the proceedings, has become honestly concerned that there may have been some inappropriate dealing as between the deputy president and counsel for the respondent. However we do not accept that a fair-minded observer would have so concluded, having regard to the matters to which we have referred above. The events at the hearing should be understood in the light of the deputy president's duty to conduct proceedings efficiently and counsel's duty to assist him in so doing. As to the prior association between the deputy president and counsel, we do not consider that it would have led the fair-minded observer to apprehend the possibility of bias. Such an apprehension would necessarily have overlooked the professional status of those involved and the relatively large number of cases with which each would deal in the course of his professional life. It would also have assumed the absence of professional standards or individual honesty. Taking all matters together, we are unable to conclude that the fair-minded bystander would have formed an apprehension of bias.

43 The appeal should be dismissed with costs.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Drummond and Dowsett.

Associate:

Dated: 16 September 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 45 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	JEFFREY KENNETH WADE APPELLANT
AND:	COMCARE RESPONDENT

JUDGES:	DRUMMOND, SACKVILLE & DOWSETT JJ
DATE:	16 SEPTEMBER 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

SACKVILLE J:

44 I have had the advantage of reading in draft the judgment of Dowsett J. I agree with his Honour's reasons and the orders he proposes. I wish only to add some brief observations on one issue.

45 The appellant's principal argument was that the Administrative Appeals Tribunal ("AAT") had erred in law by failing to address his claim that he had an anxiety condition which was causally related to the injury he sustained in 1961 on HMAS Melbourne ("Melbourne"). The appellant submitted that the primary Judge was himself in error in holding that the AAT had addressed the claim in pars 9-12 of its reasons for decision.

46 Mr Clark, who appeared for the respondent, conceded that what I shall describe as the appellant's anxiety claim had been raised before the AAT. He also conceded that if the AAT had failed to address the claim, it would have committed an error of law. These were proper concessions. The issue, then, is whether the AAT did address the issue.

47 The AAT's reasons expressly identify four issues, each corresponding to a particular condition said by the appellant to be causally linked to the 1961 injury. The AAT said (at par 9) that

"[t]he second condition requiring consideration is the applicant's claim to be suffering post traumatic stress disorder".

Under that heading, the AAT referred (at par 10) to the evidence of Dr Jenkins:

"Dr Jenkins in his oral evidence agreed that Mr Wade did suffer from anxiety and that it may have dated back to the incident on the ship. Also, he thought that it was reasonable for there to have been some memory loss for up to two years after the injury to the head. However, this did not alter his opinion in his report that `Mr Wade is describing symptoms of a generalised anxiety disorder, but in view of his memory lapse it is difficult to offer any definite opinion about the cause of this'."

48 The AAT then referred (at par 11) to the evidence of Dr Chalk, noting that he had clearly stated that a person could not suffer from post traumatic stress disorder in relation to an event he or she does not remember. The AAT observed (at par 12) that the appellant was very clear in his evidence that he did not actually remember falling from his bunk on the Melbourne. The AAT concluded as follows (at par 12):

"As such, although the [appellant] may suffer from some anxiety, the medical evidence is clear that there can be no finding of post traumatic stress disorder arising out of his service with the Navy."

49 In the course of argument, I had some doubts as to whether the AAT had addressed the appellant's anxiety claim. My concerns were twofold. First, the AAT did not expressly identify the appellant's anxiety claim as an issue requiring consideration separately from his claim to have suffered post traumatic stress syndrome in consequence of the injury sustained in 1961. The AAT took this course notwithstanding that the Deputy President had reassured the appellant during the hearing that there was

"no requirement on a claimant to get the diagnostic label right in a claim.... [I]f the evidence does not support...the suffering of a condition as identified by the claimant, but does support the suffering of some other condition, then the claim is regarded as being in respect of that other condition".

Secondly, the AAT did not expressly refer to any evidence on the anxiety issue other than that of Dr Jenkins.

50 On reflection, I think that the AAT did intend to address the appellant's anxiety claim in par 10 of its reasons. The AAT was plainly aware that the appellant had claimed to suffer from anxiety and that his condition was causally related to the 1961 injury. Dr Jenkins' evidence, to which the AAT referred, made that clear. In par 10 of its reasons, the AAT was doing more than simply recounting Dr Jenkins' evidence. It was indicating, albeit somewhat obliquely, that it accepted Dr Jenkins' evidence that he could not offer any definite opinion about the cause of the appellant's generalised anxiety disorder. It is true that Dr Jenkins had said something different in examination in chief (on the expressed assumption that the appellant's account was accurate), but the AAT was entitled to accept his answers in cross-examination as accurately reflecting Dr Jenkins' final position. The AAT was also entitled to deal with the anxiety claim in the context of its consideration of the appellant's post traumatic stress syndrome claim.

51 The AAT did not specifically refer to the evidence of Dr Chalk bearing on the appellant's anxiety claim, other than to note Dr Chalk's view that the appellant did not suffer from "an Axis 1 psychiatric disorder" but had "a mixed disorder or Axis II" (a statement the meaning of which counsel was unable to elucidate). It seems clear enough, however, that the reason the AAT did not consider it necessary to refer specifically to Dr Chalk's evidence in relation to the anxiety claim was that he stated clearly in his report that he did not think the appellant had a compensable injury related to his service. Dr Chalk's evidence was plainly inconsistent with the appellant's anxiety claim.

52 The appellant submitted that the AAT had overlooked non-medical evidence supporting his anxiety claim and that this omission suggested that the AAT had failed to deal with the claim. An examination of that evidence, however, reveals nothing of significant probative value suggesting a causal link between any anxiety condition suffered by the appellant and the injury on the Melbourne. The hospital record of 19 December 1961, to which reference was made in argument falls into the same category. The record contains the notation "a lot of anxiety here". But the appellant's hospitalisation at that time was the result of a head injury suffered in December 1961, when he hit his head on a car hoist in consequence of which he suffered blackouts. The notation does not indicate a causal link between any anxiety then experienced by the appellant and the injury sustained on the Melbourne. Moreover, Dr Jenkins was aware of the notation, and was questioned about it. He reaffirmed his inability to offer an opinion as to whether there was a link between the appellant's anxiety symptoms and the injury on the Melbourne.

53 In par 18 of its reasons the AAT expressly found that the non-medical evidence adduced by the appellant "did little to advance his claim". It also found that the appellant was not a credible witness. There is no reason to think that these findings were not intended by the AAT to relate to the appellant's anxiety claim, as well as to his other claims.

54 Doubtless, it would have been better had the AAT explained more clearly why it rejected the appellant's anxiety claim. Nonetheless, reading the AAT's reasons as a whole and giving them a beneficial construction, I think that it did address that claim, giving two reasons for rejecting it. First, it regarded the evidence of Dr Jenkins, the only expert whose testimony might have been thought to have supported the claim, as not in truth advancing the appellant's case. Secondly, the AAT considered that the non-medical evidence, including the appellant's own evidence, did not assist him. In short, the AAT concluded that the appellant had not shown on the balance of probabilities that any anxiety disorder was causally related to the incident on the Melbourne in 1961.

55 In these circumstances, I do not think that the appellant's principal complaint is made out.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.

Associate:

Dated: 16 September 2002

The Appellant appeared In Person.
Counsel for the Respondent:	Mr C Clarke
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 August 2002
Date of Judgment:	16 September 2002