BVV v Commissioner of Police

[2021] NSWCATAD 244

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BVV v Commissioner of Police [2021] NSWCATAD 244

Hearing dates:

23 April 2021

Date of orders:

23 April 2021

Decision date:

23 April 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

The Applicant’s application for the Tribunal member’s disqualification and consequent adjournment of the proceedings was refused.

Catchwords:

PROCEDURAL FAIRNESS – application for disqualification – professional association – no logical connection

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Privacy and Personal Information Protection Act 1998

Cases Cited:

Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411

Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

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

Lym International Pty Limited v Westpac Banking Corporation [2011] NSWSC 927

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427

Rasmussen v State of NSW, NSW Police Force [2013] NSWADT 277

Re Polites; Ex p Hoyts Corporation Pty Ltd (1991) 173 CLR 78

Stephen Bell v Commissioner of Police [2015] NSWIC 11

Tysoe v Commissioner of Police [2017] NSWIRComm 1002.

Wentworth v Graham [2003] NSWCA 240

Category:

Procedural rulings

Parties:

BVV (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2020/00020455

Publication restriction:

Nil

reasons for decision

1. The substantive hearing for this matter commenced on 1 April 2021 and was adjourned part heard to 23 April 2021.

2. At the resumption of the hearing on 23 April 2021, the Applicant made an application for my disqualification from hearing and determining the matter, and sought an adjournment of the hearing on that basis. After hearing submissions from both parties and considering the application, I refused to disqualify myself and consequently refused to adjourn the proceedings, bearing in mind the objects of the Civil and Administrative Tribunal Act 2013. I informed the parties that reasons for my decision to not disqualify myself would be included in the reasons for the principal decision in the substantive proceedings, which had not yet been concluded or the decision reserved at that time. The substantive hearing continued and the Tribunal reserved its decision following receipt of final written submissions from the Respondent on 30 April 2021.

3. On 14 July 2021 the Tribunal received a further request from the Applicant for me to disqualify myself, on the basis that written reasons had not been provided for the request made on 23 April 2021 within 28 days. This is despite the parties being informed on 23 April 2021 that reasons would be provided with the substantive decision, and the decision being reserved.

Disqualification application made 23 April 2021

4. The Applicant’s application on 23 April 2021 for me to disqualify myself from these proceedings was expressed to be founded on my past professional association with the Respondent. Specifically, my appearance as counsel for the Commissioner of Police and NSW Police Force in the matters of Rasmussen v State of NSW, NSW Police Force [2013] NSWADT 277, Stephen Bell v Commissioner of Police [2015] NSWIC 11 and Tysoe v Commissioner of Police [2017] NSWIRComm 1002.

5. The Applicant submitted that because I had represented the Respondent as counsel on three occasions between 2013 and 2016, I was not independent, was biased towards the Respondent, and should recuse myself from hearing this matter. The Applicant submitted that my representation of the Respondent after my appointment to NCAT in 2016 was further proof of my partiality towards the Respondent.

6. During oral submissions the Applicant added that my involvement as counsel in the matter reported as Lym International Pty Limited v Westpac Banking Corporation [2011] NSWSC 927 was a further basis for my disqualification, because I had appeared for Westpac in circumstances where they were instructed by Henry Davis York, and a witness in these proceedings had previously been employed by Henry Davis York.

7. The general test for apprehended bias is whether 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: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11]. The two step process involved was explained by the High Court in Ebner v Official Trustee in Bankruptcy in the following way at [8]:

First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

8. An application for disqualification should be determined by the decision-maker whose disqualification is sought, and should not involve a contest on the facts: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436; Wentworth v Graham [2003] NSWCA 240.

9. These proceedings involve an assessment of whether the Respondent has breached certain provisions of the Privacy and Personal Information Protection Act 1998 with respect to the Applicant’s personal information. The Applicant did not make any submissions logically or reasonably articulating how my previous appearances as counsel for the Respondent would or could impact my decision making in relation to the specific issues in these proceedings involving privacy legislation. The reasons for his application were articulated more broadly to encompass my alleged bias towards the Respondent generally, irrespective of the subject matter of these proceedings. The Applicant also did not make any logical or reasonable submissions articulating how the extremely tenuous link between a witness’ past employment by Henry Davis York and my appearance for Westpac on one occasion in 2011 could possibly impact my consideration of evidence in these proceedings.

10. My involvement as counsel for the Respondent in the matters reported as Rasmussen v State of NSW, NSW Police Force [2013] NSWADT 277, Stephen Bell v Commissioner of Police [2015] NSWIC 11 and Tysoe v Commissioner of Police [2017] NSWIRComm 1002 is a matter of public record, as is my appointment to NCAT as a part-time senior member in July 2016. My inclusion as second junior counsel in the matter reported as Lym International Pty Limited v Westpac Banking Corporation [2011] NSWSC 927 is also a matter of public record. There were no factual disputes arising.

11. In considering the Applicant’s application for my recusal, I noted that the size and breadth of the Respondent as an agency involved in legal proceedings in New South Wales was considerable, as is their use of counsel. Relevant also was the fact that considerable time had passed since I was last briefed by the Respondent, and that none of the matters I had been briefed in involved consideration of the privacy legislation or privacy issues. There was no factual basis to support the submission made by the Applicant that I had any form of continuous or ongoing engagement or involvement with the Respondent beyond my role as counsel briefed in those three specific matters.

12. Acting in a professional capacity in another matter or matters for a party will not normally be a ground for disqualification: Re Polites; Ex p Hoyts Corporation Pty Ltd (1991) 173 CLR 78 and Australian National Industries v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411. For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker must not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67] Gummow ACJ, Hayne, Crennan and Bell JJ. On the basis of the facts and circumstances articulated by the Applicant, there was no such objective connection identifiable in these proceedings.

13. On an objective assessment of the facts and circumstances presented, I found no basis upon which a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the substantive issues involving alleged breaches of the Applicant’s privacy in these proceedings.

14. Accordingly, I refused the Applicant's application that I disqualify myself. There being no reasonable apprehension of bias established, I was obligated to hear and determine the matter: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [19]; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [35]- [36].

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: 17 August 2021