ALZ v SafeWork NSW (No 3)

[2016] NSWCATAD 156

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	ALZ v SafeWork NSW (No 3) [2016] NSWCATAD 156
Hearing dates:	On the papers
Date of orders:	15 July 2016
Decision date:	15 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	(1) The Applicant's application that I disqualify myself from further dealing with her applications is refused. (2) The matters are relisted for further directions at 9.30 am on 29 August 2016.
Catchwords:	PROCEDURAL FAIRNESS – application for disqualification - actual bias - apprehended bias -
Legislation Cited:	Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
Cases Cited:	ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121 ALZ v WorkCover NSW [2015] NSWCATAD 241 ALZ v WorkCover NSW [2015] NSWCATAP 138 Attorney General of NSW v Lucy Klewer [2003] NSWCA 295 Barakat v Goritsas (No 2) [2012] NSWCA 36 Ebner v The Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group [2000] HCA 63; (2000) 205 CLR 337 Khera v Law Society of New South Wales (LSD) [2005] NSWADTAP 29 McGovern v Ku-ring-gai Council [2008] NSWCA 209 Singh v Legal Aid Commission [2014] NSWCATAD 28 Turner v Commissioner, Corrective Services NSW [2016] NSWCATAD 15
Category:	Procedural and other rulings
Parties:	ALZ (Applicant) SafeWork NSW (Respondent)
Representation:	ALZ (Applicant in person) Crown Solicitor's Office (Respondent)
File Number(s):	123291, 133003, 133158

REASONS FOR DECISION

1. The Applicant brought this application requesting that I disqualify myself from further dealing with three of her applications. The Respondent in each of these matters is SafeWork NSW. I am not aware of whether or not the Respondent has been advised of this request but in any event it is not necessary for the Respondent to oppose or agree with an application of this nature.

2. The Applicant’s application that I recuse myself arises from my recent decision in matter number 133158. The Applicant wrote:

“I apprehend, after reading the reasons for your decision in ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121, that you did not bring an impartial and unprejudiced mind to the resolution of the issues and I consider that a fair-minded lay observer would agree.”

3. Her application is said to be based on unattributed or wrongly attributed submissions and a failure to refer to her submissions.

4. In ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121 (“ALZ v SafeWork (No 2)”) the Applicant alleged that the Respondent's conduct contravened several of the Health Privacy Principles ("HPPs") of the Health Records and Information Privacy Act 2002 ("HRIP Act") and also several of the Information Protection Principles ("IPPs") of the Privacy and Personal Information Protection Act 1998 ("PPIP Act"). The conduct which was the subject of her complaint concerns a medical report prepared in relation to a workers compensation claim that she had brought against her employer. The Respondent obtained a copy of the medical report from the Applicant’s employer. She alleged breaches of HPPs and IPPs by one of the Respondent's Inspectors in relation to the medical report.

5. The Respondent conceded breaches of several IPPs and HPPs. It accepted that its conduct breached the following provisions of the HRIP Act and the PPIP Act:

• HRIP Act HPP 1 and the PPIP Act section 8(1)(b) (collection of health/personal information);

• HRIP Act HPP 3 and the PPIP Act section 9 (collection of health/personal information other than from the person concerned);

• HRIP Act HPP 4 (notification).

• HRIP Act HPP 5 and the PPIP Act section 12 (retention and security of information).

6. I was not satisfied that the Respondent's conduct breached the following provisions of the HRIP Act and the PPIP Act:

• HPP 9 and section 16.

• HPP 10 and section 17

• HPP 11 and sections 18 - 19

7. It remains to be determined what, if any, consequential orders should be made pursuant to section 55(2) of the PPIP Act following on from those findings.

8. In matters 123291 and 133003 I have made a number of findings in regard to alleged breaches of the HRIP Act and the PPIP Act. I found that the Respondent has contravened:

• HPP 3.

• HPP 4.

• HPP 5.

9. The Applicant appealed my decision to the Appeal Panel. In ALZ v WorkCover NSW [2015] NSWCATAP 138 the Appeal Panel upheld my decision in regard to the contraventions that I had found but also found that the Respondent had contravened HPP 6 by its failure to have an adequate and intelligible privacy plan. The Applicant did not appeal against the Appeal Panel decision however she unsuccessfully sought a referral to the Supreme Court on a question of law in regard to related issues in matter 133158: ALZ v WorkCover NSW [2015] NSWCATAD 241.

10. Deputy President Hennessy, LCM, noted that in her request for referral, the Applicant:

“questions the legality of the Appeal Panel’s rulings and says they are unjust and not in accordance with the purpose and objects of the Health Records and Information Privacy Act. According to ALZ, if the Tribunal follows the Appeal Panel’s rulings when determining the present proceedings, an injustice will occur because her personal information will not be protected.

ALZ maintains that some issues on which she appealed were not addressed by the Appeal Panel and that others were decided in a way with which she disagrees.”

11. As with matter 133158, matters 123291 and 133003 are also before the Tribunal for consideration of what, if any, consequential orders should be made pursuant to section 55(2) of the PPIP Act.

12. It is clear from the decisions that I have referred to above that, to a large extent, the Applicant has been successful in her applications. The Appeal Panel decision supported the findings of the Respondent’s breaches and those finding stand. The issue raised by the Applicant’s present application is whether in these circumstances a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that I might not bring an impartial mind to the resolution of the matters that remain to be determined: Ebner v The Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group [2000] HCA 63; (2000) 205 CLR 337 (“Ebner”).

13. In the present matter I understand that the Applicant is alleging both actual bias and apprehended bias. The law in relation to the issue of bias is settled. Ebner is the leading case in regard to this issue. I discussed the relevant case law in some detail in in my decision in Singh v Legal Aid Commission [2014] NSWCATAD 28. More recently Deputy President Hennessy discussed the issue in Turner v Commissioner, Corrective Services NSW [2016] NSWCATAD 15.

14. The Appeal Panel discussed the subject of bias in Khera v Law Society of New South Wales (LSD) [2005] NSWADTAP 29:

Bias

6 A fundamental requirement of procedural fairness is that any proceedings must be conducted by a court or tribunal without bias. Justice ‘should manifestly and undoubtedly be seen to be done’: R v Sussex Justices; Ex p McCarthy [1924] 1 KB 256 at 259. Bias can be actual or ostensible.

Actual Bias

7 Drummond J in Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 summarised the principles relating to actual bias at 133-134 (citations omitted):

‘(a) Actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.

(b) The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation.

(c) Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias. Such bias may be subconscious, provided it is real.

(d) It is not sufficient proof of actual bias to show that the decision-maker has expressed views adverse to the party's position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings. Though relevant to proof of actual bias, displays of irritation or impatience and the use of sarcasm by the decision-maker during the hearing are not, without more, generally sufficient to establish such bias, proof of which requires a finding on a question of fact, having regard to all the circumstances of the case.’

8 Present Case. The appellant represented himself at hearing, as he has done before the Appeal Panel. He points to the fact that many of his numerous applications and objections were rejected. He claims that similar submissions from the Law Society were treated inconsistently with the rulings he received. The fact that numerous applications or objections are made and most are rejected may indicate no more than that the applications or objections were of little or no merit.

9 We have reviewed the transcript. It reflects no more than the kind of cut and thrust between the parties and with the bench that might be expected in a vigorously contested proceeding where the appellant’s career is at stake. Some indication that the Tribunal was not actually biased against the appellant is provided by the fact that it did not find proven the allegations of misconduct made against the appellant in respect of three of the six matters it examined. ...

Apprehended Bias

10 On the other hand, an allegation that a court or tribunal appears to be biased, and therefore its decision should be set aside, is less difficult to establish.

‘[A] judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’: Ebner v The Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group [2000] HCA 63; (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] (footnotes omitted).

11 Their Honours continued:

‘That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.’

12 The ‘reasonable apprehension’ test is less stringent than the approach preferred in the United Kingdom (at least in the case of criminal adjudications: de Smith, Wolff & Jowell, Judicial Review of Administrative Action (5th ed 1995) [12-011]) – the ‘real danger’ test: see generally the discussion in Webb v R [1994] HCA 30; (1994) 181 CLR 41 at 50 ff per Mason CJ, McHugh J; and at 71 per Deane J. In the High Court cases prior to Ebner, the fair minded lay observer was usually also described as a ‘fair minded and informed’ observer, and we have approached the question raised by this case on that basis. The following observations of Deane J in Webb v R at 73 are, we consider, of direct relevance to this case (citations omitted):

‘If the test of a reasonable apprehension on the part of a fair-minded observer with knowledge of the material objective facts fell to be applied by reference only to those facts that were apparent at the time, there would be much to be said for the view that the real likelihood or real danger test should be retained to be applied in cases where some of the damaging material facts – whether prior, contemporaneous or subsequent – as ascertained by the appellate court were not known at the time of the proceedings. In my view, however, the material objective facts are not so confined for the purposes of the test. The fair-minded observer is a hypothetical figure. While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court, as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court.’

15. In McGovern v Ku-ring-gai Council [2008] NSWCA 209 Spigelman CJ said (Campbell JA agreeing):

What Constitutes Pre-judgment

14 Although the Australian test for apprehended bias, as expressed in terms of two “mights”, sets a low threshold, with respect to a pre-judgment case the identification of what constitutes a lack of ‘impartiality’ or of ‘prejudice’ in the mind of the decision-maker involves an issue of some specificity.

15 The test for pre-judgment in Australian law is, in my opinion, to the same effect as that identified by the Supreme Court of Canada in Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170 where, in the terminology of the majority judgment: the decision-maker must be “capable of being persuaded” (at 1197c); pre-judgment is of such an “extent” that contrary representations “would be futile” (at 1197d-e); statements said to constitute pre-judgment must be an “expression of final opinion ... which cannot be dislodged” (at 1197f); the position of the person must be “incapable of change” (at 1197g). The “incapable of persuasion” test was applied again in Save Richmond Farmland Society v Richmond [1990] 3 SCR 1213 at 1224g.

16 A similar approach has been adopted in Australia on pre-judgment issues in Jia Legeng where, in the joint judgment of Gleeson CJ and Gummow J, their Honours referred to a test of whether the decision-maker “is open to persuasion” (at [71] and [105]), or whether the “conclusion already formed [is] incapable of alteration, whatever evidence or arguments may be presented” (at [72]).

17 To similar effect are the observations of Hayne J, namely, that a decision-maker will apply his or her opinion “without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case” (at [185]). His Honour went on to refer to the test terms of whether “the evidence will be disregarded” (at [186]).

18 Also to similar effect are the observations of Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100 that the decision-maker “will not alter that conclusion irrespective of the evidence or arguments presented”. In that case, members of the Tribunal had filed a defence which encompassed a pleading asserting the fact into which the Tribunal was to inquire. Their Honours concluded that that act was based on the evidence known to them at the time of the pleading. It was not appropriate to conclude that “the members of the Tribunal will not decide the case impartially when they hear the evidence and arguments ... at the ... inquiry” (at 101).

...

22 Furthermore, as the joint judgment of the High Court said in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554, a “fair and unprejudiced” mind:

“... is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.”

23 The “open to persuasion” test is an appropriate formulation for bias by pre-judgment, to which the dual “might” test of apprehended bias must be applied; that is, that an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion.

16. As the Appeal Panel noted in Khera v Law Society of New South Wales, some indication that the Tribunal was not actually biased against a party is provided by the fact that findings are made upholding the party’s position. In the present matter, to a large extent, the Applicant has been successful in her applications. The fact that she was not successful in the remainder of her applications indicates no more than that her arguments were not accepted.

17. In my view, the issues raised by the Applicant do not support a view that I actually biased against her. They do not provide a ground for disqualification.

18. In regard to the question of whether findings or comments made in the course of interlocutory proceedings were likely to offend the rule against apprehended bias Basten JA stated in Barakat v Goritsas (No 2) [2012] NSWCA 36 at paragraphs [10] - [14]:

10. In Ebner, there were two cases before the Court in each of which it was said that the trial judge was disqualified by reason of a shareholding in, either a party to the proceedings or, in the case of Mrs Ebner, a person with an interest in the outcome of the proceedings. A similar principle applies in circumstances where the conduct of the trial judge is said to give rise to an apprehension of bias, because "the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making": Michael Wilson & Partners [Ltd v Nicholls [2011] HCA 48; 86 ALJR 14] at [63].

11. These comments illustrate the risk which can arise if the term "prejudgment" is used imprecisely. Properly used, it must refer to the apparent formation of a view on the part of the trial judge in respect of an issue which will (or may) need to be determined at the trial. Adapting the "central and determinative question" identified by the plurality in Michael Wilson & Partners, at [68], it is necessary to ask, "might what was done in connection with [the interlocutory] applications reasonably cause a fair-minded lay observer to apprehend that the judge might not bring an impartial mind to the resolution of a question for decision at the trial?"

12. It is, accordingly, incumbent upon the party seeking recusal to identify the issues which will need to be determined, the conduct which gives rise to the apprehension and the logical connection between the conduct and the issues. There was a tendency in the applicants' submissions to gesture rather too sweepingly towards statements made by the judge expressing frustration with the applicants or, more usually, their counsel, without seeking to articulate the relevant reasoning by which the fair-minded lay observer would attribute a level of prejudgment warranting recusal.

13. For example, significant reliance was placed upon language used by the judge in the course of exchanges with senior counsel for the applicants which were said to reflect scepticism and later disdain for the applicants' case. Those submissions, however, did not squarely engage with the critical issue. The fair-minded lay observer must be taken to have heard the whole of the exchanges between counsel and the bench on the relevant days, with some understanding of what was appropriate conduct for both counsel and the court and what was not. The fair-minded lay observer is unlikely to apprehend bias against one party merely because the trial judge describes the behaviour of counsel for that party as disgraceful or tendentious, unless the observer would consider such epithets inapt to the extent of being unreasonable and indicative of an inability to bring an impartial mind to bear on the issues in dispute. For example, to describe as "tendentious" a submission which did not come to grips with the issues which has been identified, or needed to be identified might be seen as reasonable, particularly if counsel had been given more than one opportunity to address the issue. To describe the labelling of a submission by counsel as "tendentious" as "a very serious accusation" might itself fall into the characterisation it sought to dismiss: applicants' written submissions at par 80. That is because the complaint failed to identify in what way the "accusation" was not reasonable, given the context in which it was used.

14. It is necessary, rather, to commence by identifying the subject matter of the contempt proceeding, which his Honour listed for hearing before himself, and any conduct which might demonstrate a prejudgment of the issues to be determined in that proceeding.

19. Further, as Davies AJA noted in Attorney General of NSW v Lucy Klewer [2003] NSWCA 295 at paragraph [20]:

… A judicial officer should disqualify himself only if there are facts which raise a reasonable apprehension of bias on his or her part.

20. With respect to the question of an apprehension or suspicion of bias, it is therefore incumbent upon the Applicant to "identify the issues which will need to be determined, the conduct which is said to give rise to the apprehension and the logical connection between the conduct and the issues". She must show that an independent observer might reasonably apprehend that I might not be open to persuasion. In my view she has not done so.

21. As noted, her application is said to be based on unattributed or wrongly attributed submissions and a failure to refer to her submissions in my decision in ALZ v SafeWork NSW (No 2). The remaining issue for determination in each of these matters concerns consequential orders following on from the findings of breaches that were made in the earlier decisions. The Applicant has not identified any logical connection between the conduct which she contends gives rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making and the issues that remain to be determined in the proceedings. Further, she has not identified any basis on which an independent observer might reasonably apprehend that I might not be open to persuasion.

22. The fact that a decision maker makes a decision adverse to a party is not sufficient to show that the decision maker is biased or in some other way prejudicial towards that party, is abusing the decision maker’s power or that the decision maker could not fairly and impartially determine the matter. I fail to see how the decisions that I have made in these matters in any way indicate an abuse of my power or that a reasonably fair minded lay observer with a knowledge of the material and facts in the proceedings, would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the adjudication of the Applicant’s case. That is, that the person would believe that I might not be open to persuasion.

23. This process should not be used as a means of forum shopping. The fact that I have heard other cases brought by the Applicant and have made findings that the Respondent’s conduct was not in breach of the legislation does not demonstrate that I am unable to bring an impartial and independent mind to the determination of her present claims or that I might not be open to persuasion.

24. In my view, the issues raised by the Applicant do not provide a ground for disqualification. For the reasons I have given I decline to disqualify myself. In my opinion, there is no proper basis for disqualification and given the amount of time and resources that have already gone into attempting to resolve these matters it would be contrary to the public interest to do so. I intend to proceed to hear and determine the applications.

25. However, these matters should be adjourned to allow the Applicant time to consider her position and whether or not she wishes to pursue this issue elsewhere, allowing no less than 28 days from the date of this decision.

26. I adjourn the matters to 9.30 am on 29 August 2016 for directions only. The purpose of those directions is to determine the further conduct of the proceedings.

DECISION

1. The Applicant's application that I disqualify myself from further dealing with her applications is refused.

2. The matters are relisted for further directions at 9.30 am on 29 August 2016.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 July 2016