Cju v SafeWork NSW

[2018] NSWCATAD 171

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CJU v SafeWork NSW [2018] NSWCATAD 171
Hearing dates:	30 May 2018
Date of orders:	06 August 2018
Decision date:	06 August 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P Durack SC, Senior Member
Decision:	(1) Application for recusal dismissed.
Catchwords:	Privacy - bias
Legislation Cited:	Administrative Decision Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 Privacy and Personal Information Protection Act 1998 Work Health & Safety Act 2011
Cases Cited:	Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Re May [2011] 126 ALD 600 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Category:	Procedural and other rulings
Parties:	CJU (Applicant) SafeWork NSW (Respondent)
Representation:	In Person (Applicant)   Solicitors: NSW Crown Solicitors Office (Respondent)
File Number(s):	2017/00138493
Publication restriction:	Publication of the name of the Applicant is prohibited.

reasons for decision

Overview

1. The applicant applies for an order that I recuse myself from further hearing of her application for administrative review of a decision by the respondent concerning her complaint of a breach of privacy.

2. The application was made by email to the Tribunal sent on 25 April 2018. It is based upon contentions of bias arising out of aspects of the hearing of her application on 14 March 2018. On that occasion the hearing of her application was adjourned part heard to 4 May 2018.

3. In the course of discussion about a date for the resumed hearing the applicant said that she would be away in June 2018. I have had regard to that indication of availability in respect of the timing of this decision.

4. For the reasons set out below, I do not agree that I should accede to her application.

Summary of Applicant’s submissions

5. I take it from the applicant’s submissions that she contends for either actual bias or a reasonable apprehension of bias. As to the former, whilst the applicant does not expressly submit that I have demonstrated actual bias, it seems implicit in some of her submissions that I have done so. On the other hand, I interpret the main thrust of her submissions to be that by my conduct at the hearing on 14 March 2018 she apprehended that it would be difficult for me to bring an impartial mind to the resolution of the issue as to what, if any, remedy should be imposed for the admitted breach of her privacy.

6. In summary, the applicant submits that aspects of the hearing on 14 March 2018 demonstrate that I was acting to protect and advance the position of the respondent in its attempt to resist an award of damages in her favour, as well as in respect of possible referral action for conduct that she contends was carried out in bad faith. She bases her submission upon a number of events at the hearing of 14 March 2018. As a consequence, it is necessary for me to refer to these in some detail below. As to this, the parties and the Tribunal have the benefit of a sound recording of that hearing, but not a transcript.

Background

7. The applicant has applied for administrative review of the conduct of the respondent concerning her privacy pursuant to s 55 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act). Under subs (2) of that section, on reviewing the conduct, the Tribunal may decide not to take any action on the matter or it may decide to make one or more of the orders set out in that subsection, including an order that the public sector agency pay the applicant damages not exceeding $40,000 by way of compensation.

8. Under subs 55(5) of the PPIP Act if, in the course of the review, the Tribunal is of the opinion that an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed upon the employee by or under the PPIP Act the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency.

9. In conducting the review of the conduct in issue the Tribunal’s role is to decide what is the correct and preferable decision having regard to the material then before it: ss 7 and 63(1) of the Administrative Decision Review Act 1997 (NSW).

10. The application to the Tribunal follows the outcome of an internal review of conduct by the respondent the subject of a letter to the applicant dated 13 April 2017 which included a decision that there had been a “technical” breach by the respondent of the privacy legislation and made recommendations in relation to remedy.

11. The applicant’s complaint is that Mr Covi of the respondent had breached her privacy and confidentiality without her consent in October 2016 by the release of information to the NSW Crown Solicitor’s Office (CSO) in response to an enquiry in connection with a related dispute about a breach of the applicant’s privacy with the NSW Health Service (NSW Health). Both of these privacy disputes are connected with a request for prosecutions made by the applicant under s 231 of the Work Health & Safety Act 2011.

12. Following an unsuccessful mediation, directions were made by the Tribunal on 12 December 2017 for each party to provide their evidence in relation to the issue of remedies. As was noted at the time, the limitation to the issue of remedies was because the respondent conceded that it was liable for the breach of the PPIP Act the subject of the application and that the only issue to be determined by the Tribunal was whether the Tribunal should take any action as a result of the contravention, and if so, what that action should be.

13. The applicant was directed to provide submissions and evidence, including statements and expert evidence supporting any claim for a remedy on or before 31 January 2018. The respondent was ordered to provide its evidence and submissions by 21 February 2018. The application was listed for hearing on 14 March 2018. The date for the respondent’s material was extended to 28 February 2018 by orders made by the Tribunal on 14 February 2018.

14. The material provided by the applicant under the above orders included a document titled “Evidences and Submission”. In that document various contentions were made by the applicant, including that:

1. The breach incident was not just an accidental, innocent breach by the respondent, but rather was a malicious, well organised and orchestrated breach and one of many which were the product of collusions between various Government agencies.

2. Mr Covi’s breach was pre-determined and done intentionally to harm the applicant.

15. Amongst the material set out in Attachment B to this document from the applicant was the content of an email from the applicant to Mr Covi and others dated 10 March 2016. Included in the email was the following:

Do you think it was not clear when you rang me and wanted to tell NSW HEALTH. It was very obvious you wanted to kill it and you did …

16. The document provided by the applicant did not take the form of a statement of evidence by a witness as to what was said, heard, written or received.

17. On 28 February 2018, the respondent lodged its submissions on remedies with the Tribunal. In the final paragraph of those submissions reference was made to an intention of the respondent to file brief evidence regarding privacy training of officers.

18. On 7 March 2018, the respondent lodged with the Tribunal a signed statement from Ms Stewart dated 6 March 2018. It was a three page statement concerning privacy training said to have been carried out within the respondent, including as a consequence of the privacy breach in this matter.

19. A hearing of the application took place on 14 March 2018. It was adjourned part heard in the circumstances referred to below.

20. On 28 March 2018 the respondent lodged with the Tribunal a signed statement from Mr Covi from the respondent. This statement puts in issue the content of what Mr Covi says was the only telephone conversation he had with the applicant being a conversation on 18 February 2016.

21. On 25 April 2018 the respondent sent an email to the Tribunal applying for my “removal or disqualification” from hearing the matter on 4 May 2018. In the email she also asked for removal of the order preventing publication of the documents filed.

22. On 30 April 2018 I made directions that the applicant file and serve submissions in support of her application by 4pm on Wednesday 2 May 2018 and for the respondent to file and serve their submissions by 4pm on 3 May 2018. Later that day, the applicant sent an email to the Tribunal applying for an adjournment of the hearing on 4 May 2018, principally, on the basis that she was being too rushed to deal with the removal/disqualification application as well as the resumed hearing. She sought an adjournment until the removal/ disqualification application was fully dealt with (as well as the damages she said had been caused by the conduct of the Tribunal and the opportunity given to the respondent to file untruthful and misleading evidence). By email sent on 1 May 2018 the respondent opposed the adjournment application.

23. On 2 May 2018 I directed that the hearing on 4 May 2018 would only be concerned with the making of directions for the conduct of the recusal application and fixed a new date for the hearing of that application. This was the subject of a letter to the parties sent by email on 2 May 2018. One of the matters referred to in that letter was that I considered that it may be necessary for the Tribunal and parties to have access to, at least, an audio recording of the hearing on 14 March 2018 in connection with the determination of the application.

24. On 4 May 2018 the hearing of the recusal application was fixed to be heard on 30 May 2018. Following that hearing on 4 May 2018, I made a request for copies of the audio recording of the hearing on 14 March 2018 to be obtained and supplied to the parties before the hearing. This was done.

The applicant’s submissions in more detail

25. The applicant relied upon what she had said in two emails to the Tribunal sent on 25 April 2018 and 1 May 2018. She also relied upon a written submission lodged with the Tribunal on 29 May 2018 marked AS1. In addition, she made oral submissions at the hearing.

26. In summary, her points were as follows (omitting various contentions of wrongdoing by the respondent, which do not seem to me to be relevant on this application) :

1. In circumstances where both she and the respondent were content with an anonymisation order, she felt that the steps taken at the commencement of the proceedings in relation to non-publication were taken to protect the government.

2. The Tribunal pressured and directed the respondent to submit a statement from Mr Covi and to cross-examine her about a conversation with Mr Covi. This was in circumstances in which the respondent had chosen not to put forward any statement from Mr Covi because they knew it would be untruthful for Mr Covi to deny the applicant’s version of the conversation. The Tribunal was trying to get the respondent to get a statement from Mr Covi denying the applicant’s version. It was not the job of the Tribunal to tell the respondent how to present its case.

3. It was very clear to her while she was sitting in the hearing that the Tribunal was encouraging the respondent to produce a statement from Mr Covi that denied the applicant’s version of the conversation in order to reduce the gravity of the breach and to claim that the breach was not in bad faith. The respondent had its opportunities but a lifeline was thrown to them by the Tribunal.

4. Whilst it seemed that the Tribunal was telling the respondent what they needed to do to defend the case or undermine her evidence, no one was giving her such assistance.

5. There was an imbalance of power between the Senior Member and herself.

6. In view of what had occurred, she now has no chance of having a fair hearing and she has suffered irreversible damage. She did not have a fair chance whether I or anyone else sat as the Tribunal.

7. It would be very difficult for me as the Tribunal to make findings of a breach of s 71 of the NCAT Act (giving misleading evidence to the Tribunal) or a breach of s 55(5) of the PPIP Act (employee acting in breach of good faith in performing function) in circumstances where the Tribunal had asked for the statement from Mr Covi.

8. A further example of bias was allowing the respondent to rely upon Ms Stewart’s statement even though it was late.

9. Another example of bias at the hearing was denying her a direction for a date to respond to the respondent’s evidence about the Mr Covi conversation and instead saying that she could ask for a case conference.

10. It will be more difficult for me to be impartial now that the applicant is seeking that I disqualify myself and has made a complaint against me.

11. She understood that I was a part-time member and had my own practice in administrative law. As a consequence, she believed I had a conflict of interest.

Respondent’s submissions

27. The respondent’s solicitor made oral submissions.

28. She submitted that I had an obligation to hear and determine the matter and to not too readily accede to a recusal application unless there was a proper basis to do so. As to actual bias, she submitted that there needed to be cogent evidence establishing such bias and that assertions and suspicions were not enough.

29. As to apprehended bias, she referred to the test as outlined in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. She also relied upon the decision in Re May [2011] 126 ALD 600 concerning the making of procedural directions.

30. As to what occurred at the hearing on 14 March 2018, the respondent’s submissions included that:

1. It was apparent from the recording that the Tribunal had explained to the applicant that the non-publication order was for the purpose of protecting her privacy interest.

2. The exchanges which were concerned with cross-examination about the conversation with Mr Covi were part of careful attempts to ensure that procedural fairness was afforded to the agency in circumstances where the specificity of the evidence given of the conversation was not reflected in the written material, which had been a concern the respondent had raised at the outset before the evidence was given.

3. All that happened on the 14 March 2018 was that oral evidence was given in specific terms and directions were made for what was potentially further evidence about that conversation and cross-examination in circumstances where it was made clear that the respondent would have to get instructions and that it might be that Mr Covi would not contest the version of the conversation given by the applicant.

4. Arguably, a failure to make the directions the Tribunal did make would have been unfair to the respondent and to Mr Covi and would amount to appealable error.

5. The steps taken by the Tribunal were taken as part of its role to manage the proceedings in accordance with the requirements of procedural fairness.

6. The applicant may perceive that she has been placed at a disadvantage but she can challenge Mr Covi’s evidence by cross-examination and submissions.

7. Nothing has occurred to suggest the Tribunal is unable to bring an impartial and fair mind to the resolution of the matter.

The hearing on 14 March 2018

31. Relevant aspects of the hearing on 14 March 2018 were as follows:

1. Near the commencement of the hearing, the Tribunal indicated that it was aware of the nature of the application and that there was an existing order concerning anonymisation of the applicant’s name. The Tribunal noted that there were other people in the Tribunal apart from those appearing and made an enquiry of the respondent’s solicitor about that. This elicited that it seemed there were some students present. The Tribunal indicated that it was likely that an issue would arise concerning preserving the confidentiality of some material that came before the Tribunal and remarked that because things can happen accidentally it was inclined to think that the safest course would be to ask for those who were not representatives of the parties not to be present. At that point those present who were thought to be students left the hearing room before any further debate about possible orders were made.

2. The Tribunal then raised the question whether there should be an order about the publication of specific evidence or evidence globally. The respondent’s solicitor remarked that she thought that the order for anonymisation would usually be sufficient. The Tribunal indicated to the applicant that it was exploring this question in her interests because of a concern that in pursuing her privacy complaint the applicant did not lose her privacy or make the breach worse by exposure of the material she had been concerned about. The Tribunal indicated that it was inclined to make an order that the publication of evidence given to the Tribunal be prohibited without further order of the Tribunal. The Tribunal asked the applicant whether she had anything to say about the making of such an order. The applicant indicated that she did not. The Tribunal made the same enquiry of the respondent’s solicitor who also indicated she had nothing to say about making such an order. The Tribunal then proceeded to make a non-publication order pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act ).

3. The Tribunal then turned to the material to be relied upon by the parties and indicated that it had familiarised itself with the nature of the case but this was not to say that it had read all the material. It then began identifying the written material to be relied upon by the parties commencing with that relied upon by the applicant.

4. In doing this, in addition to the document referred to above titled “Evidences and Submission”, the applicant presented some further documents to be relied upon. One of these was a diagram which was received as a submission and marked Exhibit AS1. When addressing this document the applicant said that the incident in issue was not an accident, it was done in bad faith and that she was asking the Tribunal to use its power under s 55(5) of the PPIP Act to bring the matter to the attention of the responsible Minister for the public agency. In this connection, the applicant said that she had spoken to Mr Covi and told him he had no consent to contact NSW Health.

5. When dealing with the written evidence from the respondent, the applicant outlined an objection to the Tribunal’s receipt of Ms Stewart’s statement dated 6 March 2018. This was a three page statement with two annexures in which Ms Stewart said she had overseen the internal review decision and coordinated the response to the breach, including a letter of apology. Her evidence was directed at what she said was mandatory privacy training provided to the agency’s staff in 2017 and to policy, procedures and training steps she said had been taken or were planned as a direct result of the breach the subject of this application. The applicant objected to the admission of the evidence on the grounds that it was late, she had no real time to go through it, it was fabricated and she objected to the suggestion from the respondent that Ms Stewart could be cross-examined that day by telephone. The respondent’s solicitor said it was late because she came to suggest the evidence be obtained when she came to prepare submissions. Following debate with each of the parties about this, the Tribunal indicated that it would allow the evidence but it would give the applicant the opportunity to cross-examine Ms Stewart at an adjourned hearing time when Ms Stewart was present at the hearing for that purpose. Ms Stewart’s statement was received and marked as Exhibit R2.

6. Having dealt with the written evidence to be relied upon by the parties, the Tribunal provided the applicant with an opportunity to provide any additional oral evidence she wished to rely upon. In this connection, the respondent’s solicitor raised a concern that any such evidence should be reflected in the written evidence the applicant relied upon.

1. In responding to this opportunity, the applicant again made reference to the breach not being accidental. She referred to Mr Covi having contacted her earlier and that she had made it clear to him that he had no consent to release the information. When asked by the Tribunal whether that earlier contact was something referred to in the material she had already supplied to the Tribunal, the applicant came to refer to the email to Mr Covi (and Mr Bromley) dated 10 March 2016 set out in attachment B to her main written evidence, referred to above.

2. Thereafter, the Tribunal referred the applicant to the passage quoted above in the email of 10 March 2016 and asked about what occurred in that conversation. The applicant then gave the Tribunal a specific account of the conversation which included that she told Mr Covi that he did not have her consent to contact a friend of his in the NSW Health Service, a suggestion she said had been made by Mr Covi in the conversation. The applicant indicated that she relied upon this conversation in support of her contention that the disclosure the Tribunal was now dealing with was not in good faith and was deliberate.

3. After some further exchanges between the Tribunal and the applicant, in the context whether there was any further oral evidence the applicant wished to give, the Tribunal asked the respondent’s solicitor whether any issue arose from what had transpired, including whether she wanted an opportunity to cross-examine the applicant. The respondent’s solicitor responded that she didn’t think there would be any assistance to the Tribunal by cross-examination and that she thought that anything she needed to say about the additional material could be dealt with by way of submission. The Tribunal then said it wanted to draw to the attention of the respondent’s solicitor that she had heard of quite a specific conversation that the applicant said she had with Mr Covi which the Tribunal could see might be of some relevance. The Tribunal said it was drawing it to her attention so that she could have the opportunity of considering whether she wanted to cross-examine. The respondent’s solicitor then said that it was very difficult hearing that particular account of the conversation for the first time a few minutes ago. The Tribunal responded that it understood that and that she may want to take an opportunity to take a moment or two to consider what she wanted to say but the applicant had given quite specific evidence and in the absence of any challenge to it there may be findings that flow from that.

4. There followed an exchange between the Tribunal and the solicitor for the respondent in which the solicitor referred to making submissions about the weight to be given to the evidence given about the conversation, but this was a case where breach was conceded, that it was accepted that by the time of the conduct in issue it would have been known to Mr Covi that the applicant had a particular sensitivity about her personal information being disclosed, and the Tribunal indicated that it was going to have to make some assessment of the gravity of the breach, that the conversation potentially went to that issue, that the solicitor needed to make a decision about what course she wished to follow and the Tribunal would give her a few minutes to consider her position if she wanted it. The respondent’s solicitor indicated she wanted that time and the hearing was adjourned for five minutes for this to occur.

5. When the hearing resumed, the respondent’s solicitor indicated that they would perhaps like the opportunity to take instructions and potentially reserve the right to cross-examine the applicant on the next occasion, given that the hearing was going to have to be part heard in any event. She said she simply did not know and had not had the opportunity to speak with Mr Covi and that it might be that he confirmed the applicant’s account of the conversation. She pointed out that it did become quite a serious issue in circumstances where the applicant had raised for the first time that day the fact that she sought a referral under s 55(5) of the PPIP Act, apparently, on the basis of a lack of good faith on the part of Mr Covi, which was something they would need to give due consideration to.

6. The Tribunal then indicated that it would give the respondent the opportunity to take the instructions that it was asking for. There followed discussion with the respondent’s solicitor about her indication that the Tribunal should still proceed to hear submissions on remedies. In that context the respondent’s solicitor indicated that she would be content to proceed on the basis that the conversation with Mr Covi occurred as recounted by the applicant but with an opportunity to challenge that fact on the next occasion.

7. The Tribunal then outlined to the applicant how it was approaching the stage that the evidence had reached, namely that the evidence was complete subject to any cross-examination of Ms Stewart by the applicant, any cross-examination of the applicant by the respondent as a result of her evidence that morning about the conversation with Mr Covi, any further evidence the respondent may wish to present in light of that conversation and any cross-examination the applicant may wish to conduct as a result of any such further evidence.

8. In this context, the applicant raised with the Tribunal whether she would have an opportunity to bring evidence in response to any further evidence that the respondent put forward. Following some discussion with the applicant about this, in which the Tribunal indicated that the only evidence it was contemplating from the respondent at the moment was a reply from Mr Covi to her version of the conversation, the Tribunal indicated that it was inclined to ask the applicant to proceed to present her argument in support of the application, albeit there might be a need for further argument later.

9. The applicant commenced to do so, but first indicated that she would prefer to have everything that the respondent was going to present before making her argument. She then made reference to offences concerning disclosure of personal information in s 62 and s 63 of the PIPA Act to which the Tribunal responded that it was not part of its task to deal with such potential offences. Continuing with her argument, the applicant became upset. The Tribunal asked her whether it had understood her correctly to say earlier that she would prefer to make her argument in the light of all the material that was before the Tribunal and she confirmed that she would.

10. The Tribunal then said to the respondent’s solicitor that it thought the applicant’s preference was a legitimate one and that it would be better to adjourn the hearing and deal with the parties oral submissions after the conclusion of the evidence on the next occasion. The respondent’s solicitor said she accepted that there were some obvious challenges in continuing to proceed that day.

11. As a consequence, the Tribunal decided to adjourn the hearing. Before doing so, and after adjourning for a short time to obtain available dates from the Tribunal Registry, it made directions concerning the future conduct of the matter, including the fixing of a date for the resumed hearing.

12. Before making those directions, the Tribunal asked the respondent’s solicitor whether it needed to make provision for any other potential evidence apart from potential evidence from Mr Covi. The solicitor indicated that she could not imagine what other additional evidence they might be putting on and the Tribunal indicated that they should be aware of what problem any additional evidence might create. The Tribunal then stated the directions it proposed to make, subject to any points the applicant wished to raise. The applicant raised an issue that it depended upon what the respondent filed by way of further evidence and that because it was unknown to her she may seek to cross-examine or put in a response. The Tribunal indicated that the way to deal with that was if she thought she may wish to file evidence in response, having seen what the respondent had filed, she needed to contact the Tribunal and ask for a direction about that. In further discussion with the applicant about this, in which the applicant asked why she did not get a date for reply evidence, the Tribunal indicated that it was not contemplating at the moment that she would need to give any reply evidence because the only evidence the Tribunal was envisaging was evidence from one person who replied to her version of the conversation given to the Tribunal that morning.

13. Having noted the state that the presentation of evidence had reached, the Tribunal made the following directions:

1. The proceeding was adjourned for further hearing on 4 May 2018 commencing at 10.00am.

2. The respondent was to lodge with the Tribunal and provide to the applicant by 28 March 2018 any evidence that it may wish to adduce in response to the applicant’s evidence of the conversation with Mr Covi referred to above [a reference to a note recorded before the making of the directions referring to the oral evidence that the applicant had given that day as to the conversation with Mr Covi referred to in the email dated 10 March 2016].

3. The applicant was to notify the respondent by 11 April 2018 whether she required Ms Stewart to attend the hearing on 4 May 2018 for cross-examination and whether she required any witness the subject of the order referred to in (b) to attend that hearing for cross-examination.

Consideration

32. It is worth beginning with relevant aspects of the NCAT Act as follows:

36   Guiding principle to be applied to practice and procedure

(1)  The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)  The Tribunal must seek to give effect to the guiding principle when it:

(a)  exercises any power given to it by this Act or the procedural rules,

\

38   Procedure of Tribunal generally

(1)  The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2)  The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.…[my emphasis]

(4)  The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(5)  The Tribunal is to take such measures as are reasonably practicable:

…

(c)  to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

…

(6)  The Tribunal:

(a)  is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings…

49   Hearings to be open to public

(1)  A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.

(2)  The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

51   Adjournment of proceedings

The Tribunal may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement).

64   Tribunal may restrict disclosures concerning proceedings

(1)  If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a)  an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b)  an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c)  an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

....

33. It is, of course, a basic requirement of natural justice that proceedings be determined by an independent and impartial decision maker.

34. I am also mindful that it is my duty to determine matters which come before me as a member of this Tribunal and that I should not withdraw unless there are good reasons which require me to do so: by analogy with Ebner at [19].

35. So far as actual bias is concerned, I regard the inquiry to be a subjective one as to the actual state of mind of the decision maker and that for such bias to be established it:

"must be a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made."; per French J (as he then was) in Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 104.

36. The above test was said be Gleeson CJ and Gummow J to be orthodox: [2001] HCA 17 at [73]; (2001) 205 CLR 507 at 520. They also said that the state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: at [73].

37. I also have regard to the following, included amongst the summary of principles set out by the New South Wales Court of Appeal in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98:

[68] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited….

[71] In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.

[72] His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded.

38. I do not regard any of the aspects of the hearing on 14 March 2018 as indicating any opinion by me, preliminary or otherwise, on any issue arising in the determination of what, if any, remedy is to be awarded to the applicant, let alone as disclosing a commitment to an opinion that was incapable of alteration.

39. As to apprehended bias, the test is an objective one and is whether a fair-minded lay person, with knowledge of the relevant conduct, might reasonably consider that I might not carry out my functions with an impartial and unprejudiced mind: Ebner at [6]; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31].

40. The application of the apprehension of bias principle involves two steps. The first is to identify what it is said might lead the decision maker to decide a case other than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified in that matter and the apprehension that the case might not be decided on its merits: Ebner at [8].

41. It seems to me that the applicant has drawn a number of conclusions concerning what occurred at the hearing that are not supported by the events as outlined above. From those events I do not accept that:

1. I indicated or signalled to the respondent’s lawyers that they should obtain a statement from Mr Covi.

2. I indicated or signalled to the respondent’s lawyers what the contents of such a statement should be.

3. I indicated or signalled to the respondent’s lawyers that the applicant should be cross-examined about the evidence she had given of her conversation with Mr Covi.

4. I indicated or signalled to the respondent’s lawyers that I was keen to receive a statement from Mr Covi that addressed the gravity of the breach or which denied the privacy breach.

5. I displayed a keenness or desire to protect the government in making the non-publication of evidence order.

42. In my opinion, what the events reveal is that I was concerned to ensure that the respondent was given a proper opportunity to consider the evidentiary course that it might wish to take in the light of what seemed to me to be new evidence given at the hearing which bore upon the gravity of the breach and which bore upon a new issue raised by the applicant at the hearing as to conduct of an employee that was said not to have been in good faith within the meaning of s 55(5) of the PIPA Act.

43. In taking the course that I did, I did not at any stage expressly or impliedly indicate any views as to the merits of any aspect of the applicant’s claim for remedies, including as to the seriousness of the privacy breach or as to the truthfulness of the applicant’s evidence as to her conversation with Mr Covi. These are issues that remain to be determined in her application. In this regard, the outcome of any cross-examination of Mr Covi, as well as any possible questions asked of him by the Tribunal, remains to be seen.

44. As to the ruling to allow the evidence from Ms Stewart to be received by the Tribunal, I had in mind that it was relevant evidence, that it had been foreshadowed in the respondent’s submissions and served a week before the hearing and that on one view the applicant had sufficient time to prepare to deal with it, but that the applicant had a legitimate point that Ms Stewart should be personally available for cross-examination. In the circumstances, it seemed to me to be fair to both parties to allow the evidence to be given, albeit at the cost of an adjournment. What the outcome is of any cross-examination of Ms Stewart, as well as any possible questions asked by the Tribunal, remains to be seen. I do not see how this indicates anything about how I might decide any relevant facts of the case.

45. As to the refusal at the hearing on 14 March 2018 to make provision, at that time, for reply evidence from the applicant, again I do not see how this indicates anything about how I might decide the case or suggest I might do so other than on the merits. At the time I was concerned to limit the scope of any new evidence from either party, in circumstances where the parties had already been given the opportunity to present their evidence in writing. It remains open to the applicant to seek to persuade the Tribunal that she should have an opportunity to present some reply evidence now that she has seen the further evidence of limited scope that the respondent’s have presented, including by identifying the nature of the evidence that she would now seek to present and by showing that it is relevant and does arise from the new evidence from Mr Covi.

42. As to the non-publication order, which the Tribunal indicated it was making in the interests of the applicant, it remains open to the applicant to apply for such order to be lifted. If that was to occur, there has been nothing said by the respondent to suggest that it would oppose the lifting of such order.

43. The applicant submits that an apprehension of bias arises from the fact that she has made a complaint about my conduct. I am not aware of the terms of the complaint but, in any event, I do not accept that such a matter should lead to my disqualification. I do not regard myself as having any difficulty in treating a complaint as irrelevant to my task of deciding the case on the merits. Accordingly, I do not accept that this matter can give rise to a logical connection to an apprehension that I might decide the case otherwise than on its merits. Further, it seems to me that I should regard such a reason as insufficient to justify recusal because otherwise there is a risk that recusals will be too easily obtained.

44. The applicant points also to the fact of this application itself as leading to a relevant apprehension of bias. Plainly, that cannot be accepted.

45. Finally, the applicant raises a point of interest in the outcome or, potentially, association with the respondent, or perhaps, the Crown Solicitor’s office, because of the part-time nature of my appointment to the Tribunal whilst I continue my practice as a barrister, including in the field of administrative law. Whilst not really spelt out, I take the suggestion to be that I have a personal interest in an outcome in favour of the respondent which conflicts with my duty to decide the case on the merits. I do not accept this argument. By extension such an argument could apply to disqualify me from sitting on a wide range of matters where a party involved (whether in the private or public sector) might become a potential client. I should also point out that I have no past, present or known prospective association with either the respondent or the Crown Solicitor’s office and that most of my practice at the Bar is in the field of commercial law.

46. In these circumstances, and for the above reasons, I decline to recuse myself from further hearing the applicant’s claim.

Orders

51. Accordingly, I order that the application that I recuse myself be dismissed.

52. I will arrange for the matter to be fixed for a directions hearing before me in the near future in order to fix a new date for the completion of the hearing of the application and for the consideration of any directions that the parties may wish to seek in connection with the future conduct of the matter.

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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: 06 August 2018