Brooks v Easther (No 3) - [2017] TASSC 54

[2017] TASSC 54

COURT: SUPREME COURT OF TASMANIA

CITATION: Brooks v Easther (No 3) [2017] TASSC 54

PARTIES:  BROOKS, Peter Francis Thomas
  v
  EASTHER, Barry Maxwell

MASON, Norma Lynn
GROOM, The Hon Matthew
as Acting Attorney-General for the State of Tasmania

FILE NO:  1656/2017
DELIVERED ON:  11 September 2017
DELIVERED AT:  Hobart
HEARING DATE:  21 August 2017
JUDGMENT OF:  Blow CJ

EDITED VERSION OF JUDGMENT FOR GENERAL PUBLICATION

CATCHWORDS:

Administrative Law – Prerogative writs and orders – Prohibition – Generally – Statutory Board of Inquiry – Natural justice obligations – Whether bias or apprehended bias – Whether denial of procedural fairness.

Local Government Act 1993 (Tas), s 218(1)(c).
Aust Dig Administrative Law [1228]

REPRESENTATION:

Counsel:
             Applicant:  S B McElwaine SC
             Third Respondent:  M E O'Farrell SC, J Rudolf
Solicitors:
             Applicant:  Shaun McElwaine + Associates
             Third Respondent:  Solicitor-General

Judgment Number: [2017] TASSC 54
Number of paragraphs: 50

Serial No 54/2017
File No 1656/2017

PETER FRANCIS THOMAS BROOKS v BARRY MAXWELL EASTHER,
NORMA LYN MASON and The Hon MATTHEW GROOM
as Acting Attorney-General for the State of Tasmania

REASONS FOR JUDGMENT BLOW CJ

11 September 2017

The applicant is the general manager of the Glenorchy City Council. The first and second respondents are the members of a Board of Inquiry appointed by the Minister for Planning and Local Government under the Local Government Act 1993 ("the Act") to inquire into the governance arrangements and practices of that council.
On 15 June 2017 the applicant applied for a general order requiring the two members of the Board of Inquiry to show cause why relief should not be granted to restrain them from continuing to act in their capacity as a Board of Inquiry under s 215 of the Act. Both filed notices of submission, indicating that they would take no part in the proceedings. The Acting Attorney-General intervened, and has been added as the third respondent to the proceedings. On 8 August 2017 I ordered that the members of the Board of Inquiry show cause why relief should not be granted as sought.
The applicant contends that the members of the Board of Inquiry have denied him procedural fairness, and that they have prejudged issues that are relevant to his reputation. He has sought orders restraining the Board members from continuing with their inquiry for the purpose of protecting his reputation and his status.
The Board of Inquiry was established as long ago as October 2015. In 2016 a member of the Glenorchy City Council sought relief in the nature of a writ of prohibition, prohibiting the Board from continuing its inquiry and from submitting a report of its findings and recommendations to the Minister. I decided that it was not appropriate to grant the relief sought, but made an order in the nature of a writ of prohibition quousque, restraining the members of the Board from submitting their report until they had taken certain steps for the purpose of affording procedural fairness to the applicant in those proceedings: Branch-Allen v Easther [2016] TASSC 29.

The legislative scheme

The Board was established by the Minister pursuant to s 215(1)(b) of the Act. The Act contains provisions relating to Boards of Inquiry to the following effect:
· Section 215(1)(b) empowers the Minister to "establish a Board of Inquiry to investigate a council" if the Minister "is satisfied that a matter justifies its establishment".
· Under s 215(3), a Board of Inquiry consists of one or more persons appointed by the Minister.
·     Section 216(1) provides that the functions of a Board of Inquiry are "to conduct an inquiry into any matter referred to it by the Minister", and "to make recommendations to the Minister as a result of its inquiry".
·     Section 224(1) requires the Board of Inquiry to submit a report of its findings and recommendations to the Minister.
·     Under s 224(2), the Minister may direct a Board of Inquiry to reconsider its report if, in the opinion of the Minister, its findings or recommendations "were made as a result of an inquiry conducted contrary to law"; or "are unjust, oppressive, discriminatory or unreasonable"; or "are based, wholly or partly, on a mistake of fact".
·     Section 225(1) requires the Minister, after considering the report, to advise the council and councillors in writing of the recommendations of the Board of Inquiry, and to invite further submissions.
·     It is implicit in s 225 that the Minister must consider any such submissions.
·     After considering any such submissions, there are a number of courses that the Minister may take. He may direct the council to "rectify or mitigate the effects of its action", or to "discontinue its action", or to "give reasons for its action", or to "take such other steps as the Minister thinks necessary": s 225(2). He may give a direction to a council to notify him, within a specified period, as to the steps it has taken or proposes to take, or the reasons why it has not taken or is not proposing to take any steps: s 225(3). He may recommend that the Governor dismiss the councillors: s 226.
There is no express power for the Minister to recommend the termination of the employment of a council's general manager. However the power conferred by s 225(2) to direct a council to "take such other steps as the Minister thinks necessary" would appear to empower the Minister, if he thinks it necessary, to direct a council to terminate its general manager's employment.
Once the Minister has received the report of the Board, he is free to make public as much or as little of its contents as he chooses. There is no requirement for the report to be tabled in Parliament. The only requirement as to disclosure is that imposed by s 225(1), which only requires the Minister to advise the council and councillors in writing of the Board's recommendations. There is no obligation to disclose the Board's findings or the evidence that it relied upon. There is no obligation to disclose anything to the general manager. However there is no prohibition or restriction on the disclosure by the Minister of anything contained in the report.
The Act also contains provisions as to the procedure and powers of a Board of Inquiry. The relevant provisions can be summarised as follows:
·     A Board of Inquiry "may do anything necessary or convenient to carry out its functions": s 216(2).
·     The Board "is to conduct an inquiry with as little formality and technicality as a proper consideration of the matter before it permits": s 218(1)(a).
·     The Board "is not bound by the rules of evidence and may inform itself on any matter in any way it considers appropriate": s 218(1)(b).
· The Board "must observe the rules of natural justice": s 218(1)(c). That is to say, it must afford procedural fairness to any person whose interests are likely to be affected as a result of its report to the Minister.
· Subject to the provisions I have mentioned, a Board of Inquiry may regulate its own procedure: s 218(2).
·     A Board of Inquiry has the power to summon witnesses to give evidence and/or produce documents, to require persons appearing before it to produce documents or give evidence, and to require persons appearing before it to answer questions: s 217(1). Failing, without reasonable excuse, to comply with such a summons or such a requirement amounts to an offence punishable by a fine: s 217(2).
·     A Board of Inquiry must provide "adequate opportunity" for a council or councillor "to make submissions relating to the subject-matter of the inquiry": s 219. However there is no express requirement to provide a council's general manager with an opportunity to make submissions.
·     A person summoned to attend before a Board of Inquiry "may, with the approval of the Board of Inquiry, be represented by a legal practitioner": s 220(1).
·     A legal practitioner who represents a person may examine witnesses and address the Board of Inquiry on behalf of the person: s 220(2).
·     A Board of Inquiry may require the production of or access to documents and records, inspect and take copies of or extracts from documents or records, or "require any person to give such assistance as may be required": s 222(1).

The Board of Inquiry and its investigation

The terms of reference of the Board of Inquiry are as follows:
"The Board is to inquire into and make findings and recommendations with regard to:
The governance arrangements and practices of the Glenorchy City Council since the October 2014 local government elections, in relation to:
·Section 28 of the Act – compliance by elected members of Council with their functions under the act;
·Section 27 of the Act – compliance by the Mayor with her functions under the Act;
·Sections 62 and 63 of the Act – compliance by the General Manager with his functions and powers under the Act; and
·Compliance with any other sections of the Act relevant to governance arrangements and practices within the Council.
The Board of Inquiry is to further examine the governance structures and processes adopted by the Council during that period.
The Board is also to inquire into any claims of non-compliance or breaches of the Local Government Act 1993 and associated regulations, or any other legislation, since October 2014, brought to its attention during its deliberations and is relevant to the Terms of Reference.
The Board is to allow for public submissions to be made to the Inquiry.
The Board is to provide a report with findings and recommendations, including governance protocols, which the Board may advise to be instigated by the Council, to me [the Minister] …".
The two members of the Board of Inquiry both have substantial experience in local government. They have been provided with administrative assistance by officers of the Department of Premier and Cabinet.
So far as the applicant is concerned, the steps that the Board of Inquiry has taken in the course of its investigation have included the following:
·     It invited and received written submissions from the mayor, councillors and others.
·     After receiving a submission from the applicant, the Board requested him to appear before it for an "interview" to answer questions relating to some of the material contained in his submission. He attended on 3 February 2016 and answered their questions.
·     The Board disclosed extracts from various submissions to the applicant under cover of a letter dated 4 July 2016, and invited a written response. The material that he received with that letter comprised about 500 pages of documents including letters, emails, internal council documents, and correspondence.
·     The Board issued a summons requiring the applicant to attend a second "interview" on 6 September 2016.
·     On that date the applicant was questioned before the Board. He was accompanied by counsel. He was asked about some, but not all, of the allegations made against him in the material that had been sent to him. He indicated that he would be able to provide documents to refute the allegations, but was not asked to produce those documents, either then or later.
·     On 17 February 2017 the Board sent the applicant a draft of its report to the Minister, including draft findings and recommendations and supporting documentation. The Board offered him an opportunity to make a submission either "in writing, personally or by a solicitor or agent".
·     On 9 March 2017 the Board advised the applicant that it would be sending him a second draft of its report.
·     On 12 April 2017 the Board sent the applicant that second draft. Again it invited a response "in writing, personally or by a solicitor or agent".
·     On 13 May 2017 the Board sent the applicant a USB stick containing documents and audio recordings that included all of the material on which its second draft report was based.

The draft report of April 2017

The draft report of April 2017 has superseded the earlier draft report. There is no need for me to consider the contents of the earlier draft. Henceforth I will refer to the April 2017 document as "the draft report".
The draft report contains dozens of findings that reflect adversely on the applicant's reputation. It accuses him of … If the final report goes to the Minister without a radical revision of the findings and other material relating to the applicant, and becomes public, it is fair to infer that his reputation will be seriously damaged, and that his career in local government might not continue for long thereafter.

The grounds relied on by the applicant

The grounds upon which the applicant seeks relief, as set out in the general order to show cause, after an amendment made at the beginning of the hearing, now read as follows:
"(aa)The first and second respondents, contrary to section 218(1)(c) of the Local Government act [sic] 1993, and/or contrary to the general obligation which obliges them to afford procedural fairness, have in the conduct of their inquiry failed to afford to the applicant procedural fairness in the following respects:
(i)they failed to put, logically and coherently, evidence allegations or other material gathered in the course of their inquiry to the applicant for explanation, response or rebuttal being material relevant to compliance by the applicant as General Manger [sic] with his functions and powers under the Local Government Act 1993;
(ii)They failed to afford to the applicant a reasonable opportunity to respond, at interview, to evidence, allegations or other material gathered in the course of their inquiry and relevant to the applicant.
(iii)they failed, before formulating each draft finding adverse to the applicant, as contained in their draft reports of February and April 2017, to provide him with the evidence or other material said to support such findings and/ or to allow him a reasonable opportunity to consider such material in order to provide his explanation, response or rebuttal thereto;
(iv)they have formulated draft findings adverse to the character and personal and professional reputation of the applicant, based on materials, evidence or allegations which has not been fairly put to the applicant for explanation, response or rebuttal;
(a)The Respondents have failed to afford natural justice to the Applicant by failing to allow the Applicant to test significantly adverse evidence at an oral hearing, being evidence of the type identified by Blow CJ in Branch-Allen v Easther [2016] TASSC 29 at [116] to [118] before formulating, in draft, their report to the Minister;
(b)The Respondents have failed to afford natural justice to the Applicant by reason of their failure to notify the Applicant of the information or evidence considered by them to support every contemplated finding or recommendation which, if made, would be likely to prejudicially affect the Applicant's status as General Manager of the Glenorchy City Council and/or his reputation;
(c)[Deleted]
(d)[Deleted]
(e)Alternatively, there is a reasonable apprehension that the Respondents are biased against the Applicant in that the Draft Report, as provided by the Respondents to the Applicant on or about 12 April 2017, predetermines the outcome of the Inquiry in circumstances where the Respondents have failed to afford natural justice to the Applicant as contended at sub paragraphs (aa) (a) (b) and/or (c)."
The references to the "Respondents" in these grounds are to the Board members, but not the Acting Attorney-General.

The Board's natural justice obligations

As I have said, the Board is required by s 218(1)(c) to "observe the rules of natural justice". A person's reputation is "an interest attracting the protection of the rules of natural justice": Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 per Mason CJ, Dawson, Toohey and Gaudron JJ at 578. It follows that the Board has an obligation to afford procedural fairness to the applicant if his reputation or status may be prejudiced by a finding or recommendation that the Board is thinking of making. It is abundantly clear that the applicant's reputation, and possibly also his status, are likely to be prejudiced by findings that the Board is thinking of making, but the same cannot be said of the Board's draft recommendations.
The requirements of natural justice "depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth": Russell v Duke of Norfolk [1949] 1 All ER 109 at 118. Requirements as to procedural fairness or natural justice convey "the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case": Kioa v West (1985) 159 CLR 550 per Mason J (as he then was) at 584.
The Board has had to make choices about how to discharge its natural justice obligations. The circumstances relevant to those choices include the following:
·     The Board's inquiry is an investigative proceeding, not an adversarial one.
·     Whilst the conduct of the applicant has been a focus of the Board's attention in relation to several issues, its primary concern is not the performance of the applicant as a general manager, but the governance arrangements of the council generally.
·     The Board's terms of reference are so broad that it needs to be selective as to the matters that it investigates. A full investigation of every disputed allegation and every asserted error of judgment would simply not be possible.
·     It is not necessary for the Board to make findings as to all significant matters of dispute. A report to the Minister as to competing views or contentions, and the strength of the evidence to support them, might be all that could reasonably be expected of the Board as to some matters. Such an inconclusive report as to a particular matter might of course reveal a lot about disharmony between key individuals.
·     The applicant is not the only individual whose reputation and status may be at risk. The same could be said of the mayor, all the other councillors, and some council staff.
The duty to observe the rules of natural justice requires the Board members not to undertake their task if they are biased, or if there is a basis for a reasonable apprehension that they may be biased. A statutory power must not be exercised by an individual if a fair-minded lay observer might reasonably apprehend that that individual might not bring an impartial mind to the resolution of the question that he or she is required to decide: Ebner v Official Trustee [2000] HCA 63, 205 CLR 337 at [6]. In this case, the Board has to decide what findings and recommendations to make. It must not exercise that power if its members are no longer bringing impartial minds to the making of that decision, or if a fair-minded lay observer might reasonably apprehend that that is the situation.

A duty to conduct an oral hearing?

Ground (a), which is set out above, involves a contention that the Board was obliged to conduct an oral hearing relating to allegations against the applicant, at which witnesses would give evidence and be available for cross-examination.
There is no express provision in the Act that requires a Board of Inquiry to conduct an oral hearing. There is no general right to an oral hearing in administrative proceedings: Local Government Board v Arlidge [1915] AC 120 at 134, 141; Nahf v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140, 128 FCR 359 at 365.
In Branch-Allen v Easther (above), it was argued that the Board's duty to observe the rules of natural justice could not be discharged without a hearing at which the evidence of witnesses could be tested by cross-examination. In this case, the applicant relies on comments that I made in my judgment in Branch-Allen at [116]-[118]. Those paragraphs read as follows:
"116   There are some situations in which a duty of procedural fairness requires the conducting of a hearing at which the evidence of witnesses can be tested by cross-examination. The applicant contends that in this case the Board's duty of procedural fairness cannot be discharged without a hearing at which the evidence of witnesses can be tested by cross-examination.
117    When a statutory authority has a discretion to hold an oral hearing, there are a number of factors that should be taken into account in determining whether there is a duty to conduct such a hearing in a particular case. In Aronson and Groves, Judicial Review of Administrative Action, 5^th ed, Law Book Co, 2013 at [8.370] the learned authors say:
'In each case, the matter must be viewed through a prism of fairness and context. Any decision about cross-examination must take account of the wider circumstances in which it is sought. The question is not simply whether cross-examination should be allowed but whether it is required for a fair hearing. In determining that issue, the courts usually give particular weight to the significance of the issue to be tested, the extent to which the ultimate issue turns on conflicting evidence, the need to assess credibility or character of witnesses, and whether there are other ways for a party to controvert evidence. The common thread of each matter is that cross-examination is important to the proper or full presentation of a party's case.'
118    The evidence before me includes only a fraction of the material that has been provided to the Board of Inquiry. As far as I am aware, no allegation of criminal conduct or gross impropriety has been made against anybody in the course of the inquiry. Obviously an oral hearing could be essential in a case involving conflicting assertions as to, for example, corruption in the tendering process leading to the making of a substantial contract. Equally obviously, a full-scale oral hearing would not be appropriate in relation to an allegation that a particular alderman was unwilling to sit in a particular seat at a council meeting. None of the evidence before me suggests that, in the course of the Board's investigation, a factual issue has emerged that is of such significance that it would be unfair if the conflicting assertions were not tested at a hearing where witnesses gave evidence and were cross-examined. I am therefore not satisfied that the Board's duty of procedural fairness requires the conducting of an oral hearing."

The Board's terms of reference are extremely wide. It has the enormous task of assessing practically every aspect of the governance arrangements and practices of the council since elections held nearly three years ago. And it has a duty to bring its work to a conclusion.
Much of the material referred to in the draft report as supporting the draft findings relating to the applicant is documentary. To the extent that the draft findings about the applicant are based on oral evidence received by the Board, observing the rules of natural justice can be done without permitting cross-examination. In T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995, Lord Denning MR, speaking of the admission of hearsay evidence before a tribunal, said:
"No doubt in admitting it, the tribunal must observe the rules of natural justice, but this does not mean that it must be tested by cross-examination. It only means that the tribunal must give the other side a fair opportunity of commenting on it and of contradicting it: see Board of Education v Rice [1911] AC 179 at 182, R v Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 QB 456."
As I have said, there are various people apart from the applicant whose reputations and status might be affected by the Board's final report. Affording all of them an opportunity to cross-examine witnesses would be likely to result in long, costly and cumbersome proceedings.
Although the Board's power to make recommendations is unrestricted, the draft report does not contain any recommendation as to the future of the applicant's employment as the council's general manager. ...
…
The Board's natural justice obligations require it to act fairly in giving the applicant an opportunity to refute, explain or comment on allegations, draft findings or draft recommendations where damage to his reputation or status might otherwise result. However, because there are no draft findings of criminality, dishonesty or deception, and because of the nature and size of the subject-matter that the Board is required to address, this is not a situation where the giving and testing of evidence at an oral hearing is essential to the discharge of the Board's natural justice obligations to the applicant. Ground (a) must therefore fail.

Natural justice obligations before completion of the draft report

Grounds (aa) and (b) raise questions as to the extent of the Board's natural justice obligations prior to it submitting a draft report to the applicant and inviting a response from him. Some of the information in the draft report that could damage the applicant's reputation was made known to him during 2016, but much was not. He was provided with opportunities to comment on some of the damaging allegations and information made known to him during 2016, but by no means all such allegations and information.
As I have said, s 218(2) of the Act empowers a Board of Inquiry to regulate its own procedure. The Board was therefore free to decide how and when it would go about discharging its obligations in relation to natural justice. It was therefore free to interview individuals about some subjects but not others. It was free to introduce a policy of conducting interviews, and later to decide to stop conducting interviews and to proceed in other ways. Although it initially provided the applicant with written material containing allegations against him, and afforded him some opportunity to discuss those allegations in an interview, it had no obligation to use those mechanisms in relation to all information adverse to him. Nor was it obliged to continue to provide written material and conduct interviews with him in the same way for the duration of its inquiry. It was free to choose other means to afford him procedural fairness, and free to determine at what stage or stages of the inquiry process it would take steps to do so. The members of the Board had considerable flexibility as to how they would discharge their natural justice obligations. The only essential requirements were that they were somehow to afford procedural fairness before submitting that report to the Minister, and were not to prejudge, or appear to prejudge, any issue relevant to their proposed findings and recommendations.
The Board has no statutory obligation to prepare a draft report and invite a response to it. After a limited amount of interaction with the applicant in February and September 2016, it chose not to contact him for over five months, but then to seek his comments on a draft report – one that was superseded before he actually commented. Once the members of the Board decided that they would proceed by way of preparing a draft report and inviting comments, they had no obligation to participate in a continuing dialogue, inviting more and more responses in relation to particular topics or allegations. The preparation of a draft report, containing all the findings adverse to the applicant that the Board was thinking of making, detailing evidence thought to support such findings, and inviting comment from the applicant, was a very efficient way to proceed. There was nothing inherently unfair about proceeding in that way, provided the Board did not prejudge any relevant issue or give an appearance of such prejudgment.

Prejudgment?

The applicant contends that the members of the Board have prejudged him. He contends that that can be inferred from the contents of the draft report, and from the events leading up to him being provided with it. In order to succeed in these proceedings, he does not need to establish actual bias on the part of the Board members or either of them. It will be sufficient if he establishes that a fair-minded lay observer might reasonably apprehend that the Board members might not bring impartial minds to the resolution of any question that they are required to decide: Ebner v Official Trustee (above); Johnson v Johnson [2000] HCA 48, 201 CLR 488. He needs to establish that there is a "possibility (real and not remote), not probability" that the Board will not bring impartial and unprejudiced minds to their task: Ebner (above), at [7].
The wording of the draft report, in the dozens of passages relevant to the applicant's reputation, is that of a document whose authors have made up their minds about every aspect of his conduct and performance as general manager that they have considered. There is nothing tentative about the way in which the draft findings relevant to the applicant are expressed in that document. But the document is a draft report, not a final one.
Expressions of views by judges in the course of court proceedings have often given rise to allegations and findings of prejudgment. However it is often desirable for a judge to express tentative or preliminary views so that the parties to a case are able to address the judge on such matters: Vakauta v Kelly (1989) 167 CLR 568 at 571; Antoun v The Queen [2006] HCA 2, 224 ALR 51, per Kirby J at [31]. In Antoun at [29], Kirby J said:
"A line is drawn between forthright and robust indications of a trial judge's tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings."
However the Board members are not judges, and the comments in their draft report are not comments delivered during the hearing of a court case. The document in question does not purport to be the document that they will submit to the Minister. It is a draft. Its front cover bears the words "Draft Report". It begins with a "Draft Executive Summary". Every page has the words "Strictly Confidential Draft" printed diagonally across it in very large letters. The covering letter to the applicant dated 12 April 2017 states in the first line that it is "the draft report of the Board of Inquiry". In that letter the Board members offered the applicant an opportunity to make submissions in response to the report and its findings and recommendations. The Board members went on to say that they would "give due consideration to all submissions … before submitting a final report … to the Minister for Planning and Local Government."
Questions relating to prejudgment and the contents of a draft report were considered by the Full Court of the Federal Court in Reece v Webber [2011] FCAFC 33, 192 FCR 254. The appellant in that case was a medical practitioner. A committee was set up to consider whether he had engaged in inappropriate practice. The applicable legislation required the committee to hold a hearing, prepare a draft report setting forth its preliminary findings and reasons, consider the practitioner's written submissions suggesting changes to the draft report, and prepare a final report setting forth its findings. After the completion of the final report, the appellant contended that the draft report and the final report were so similar that there were grounds for a reasonable apprehension of bias. That argument failed. At [53]-[54], the court (Jacobson, Flick and Reeves JJ) said:
"53 The purposes served by the preparation of a draft and final report must also be borne in mind. One purpose served by a draft report is to properly put to a medical practitioner whose conduct is in question the basis upon which a Committee may be proceeding so that he can thereafter make a 'submission'. Whether the very professional background that qualified a Committee member for appointment to the panel from which Committee members are drawn influences the 'provisional findings' that have been reached will be thereby disclosed for comment. One purpose served by the final report is to properly inform the 'Determining Authority' of the views of the Committee as to whether a medical practitioner has engaged in 'inappropriate practice'.
54 When forming a view as to whether a reasonable bystander would have a reasonable apprehension of bias, any such reasonable bystander would be possessed of knowledge as to the purposes served by a draft and final report and the statutory context in which each is prepared."
After reviewing the law relating to the hypothetical reasonable bystander, their Honours continued at [57]-[58] as follows:
"57 In the present appeal, however, it is not considered that there is any merit in the submission that a reasonable apprehension of bias emerges from what was described as the 'damning overview' of the practice of the Appellant. That 'damning overview' was said to be evidenced by the manner in which the 'Overview' was expressed, including the reference to the 'examples of recurrent issues'. That 'Overview', however, remains nothing more than that – namely, an overview of the concerns of the Committee.
58 It is further considered that such statements as thereafter appear in the Draft Report merely set forth the provisional views of the Committee’s findings in respect to which submissions were to be received and considered. Where a Committee has tentatively concluded that a medical practitioner has engaged in 'inappropriate practice', it should set forth its views unequivocally. Indeed, a failure to do so may prejudice the ability of the medical practitioner to properly respond. An equivocal statement of tentative or provisional conclusions may lead a medical practitioner to believe that the Committee is of the view that his practices are less serious than is truly the case, and may be instrumental in inducing the practitioner to advance perhaps less fulsome submissions than may properly advance his own case and assist the Committee in forming its final conclusions."
Although the draft report in that case was prepared because of a statutory obligation, and no such statutory obligation exists in the present case, there is no reason to distinguish that case. The expression of damning comments in unequivocal language in a draft report does not, without more, suggest a reasonable possibility of bias or prejudgment. Draft findings by the Board expressed in vague, subtle or equivocal language might well have unfair consequences, in that they might induce a person to respond less robustly and to offer the Board less assistance in formulating its final report.
Counsel for the applicant relied on a passage in Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6^th ed, Lawbook Co, Sydney, 2017, at [9.290], where the learned authors say:
"Every so often, the interim report of an inquiry or commission runs afoul of the bias rule for the simple reason that its findings are expressed in sufficiently strong or clear terms that the hypothetical observer might conclude that those conducting the inquiry have made up their minds. Such cases do not generally provide a clear principle by which to determine whether some form of prejudgment has occurred but we suggest the problem is no so much that findings are made or conclusions drawn, but they are not expressed in sufficiently tentative terms."
However the learned authors made it clear in that paragraph that those comments relate to the situation in which a decision-maker is required to make findings in a final report, and to submit an interim report before making concluded findings. Obviously only tentative findings may be expressed in an interim report in that situation, and tentative language would have to be used. Otherwise a reasonable apprehension of bias might arise.
The Privy Council held that a commission of inquiry had run afoul of the bias rule in Mitchell v Georges [2014] UKPC 43. The appellant in that case was the Prime Minister and Minister of Finance of Saint Vincent and the Grenadines. A commission of inquiry was appointed to inquire into the failure of a project for the construction of a marina and a shipyard. Its terms of reference required it to provide the Governor General with three types of reports: an immediate report if the evidence suggested, amongst other things, that a criminal act may have been committed; an interim report within six months; and a final report within 12 months. It was asserted that the commissioner's interim report gave rise to a reasonable apprehension of bias. It was described as being "replete … with strong and colourful language". It was said that the commissioner had "used the decisive language of a concluded finding". However that case concerned an interim report, not a draft report. It was inappropriate for the author of that interim report to have expressed himself in terms that suggested that he had made up his mind. In this case, there was nothing inappropriate about the Board using the language of a final report and making it clear that it was genuinely a draft, prepared only for the purposes of inviting a response or responses.
The Board has offered the applicant an opportunity to make further submissions to it, orally or in writing, either personally or by a solicitor or agent. He has the opportunity to contradict findings and assertions contained in the draft report. He has the opportunity to offer explanations and exculpatory comments. He has the opportunity to present documentary evidence.
In my view there is no evidence of bias on the part of the Board or either of its members. Whilst some of the contents of the draft report may have unpleasantly surprised the applicant, there is no reason to conclude that a fair-minded lay observer might reasonably apprehend that the Board might not bring impartial minds to the completion of their task.

Too little or too much information

The applicant contends that, in relation to many of the Board's relevant draft findings, the information contained in the draft report, and in material previously sent to him, has not adequately disclosed to him what material the Board has relied upon as the basis of its draft findings, and what circumstances and factors it has taken into account. In essence he contends that he was provided with too little information to enable him to respond adequately to the draft report, and that procedural unfairness has resulted.
In one respect, the situation changed in May 2017 when the applicant received the USB stick that contained the documents and audio recordings assembled by the Board. However the applicant contends that the USB stick contains an insurmountable quantity of material, each piece of which would need to be scrutinised to determine which items relate to each of the relevant issues, and which relate to no relevant issues. He contends that the provision of the USB stick did not bring the asserted procedural unfairness to an end.
In its draft report, the Board has summarised the facts and reasoning on which its draft findings are based. Those passages in the draft report must at least go a long way towards informing the applicant of the material and reasoning on which the draft findings are based. I accept that he may still consider that, to some extent, the basis for the Board's draft findings remains something of a mystery to him.
However I have no reason to think that the Board has acted otherwise than in good faith. If the applicant is to some extent unfairly disadvantaged at the moment, any such unfairness is by no means irremediable. The Board has invited him to make a submission to it "in writing, personally or by a solicitor or agent". If he thinks the Board has a duty to tell him more about the basis for any or all of the draft findings, the Board can be told that. There is no reason why the applicant should not ask for further information. Of course it might be difficult for the Board to decide, in relation to particular draft findings, whether there is anything more that needs to be explained for the purpose of affording the applicant procedural fairness.
The time for the discharge of the Board's natural justice obligations has not expired. If those obligations require it to provide the applicant with further information, there is still time to do that. The Board's invitation to him to provide a response to the draft report was a very wide invitation. He has now had about five months to consider how to respond to it if he is unsuccessful in these proceedings. I have no reason to think that the Board will fail in its duty to afford him natural justice if its inquiry continues.

Conclusion

For these reasons, I am not persuaded that the applicant has made out a case for relief in the nature of prohibition or for any other form of relief. His originating application must therefore be dismissed.
Because some passages in these reasons contain information which, if made public, could be injurious to the applicant's reputation, the full version of these reasons will be published only to the parties. An edited version will be made available to the public.