Clarke v Health Care Complaints Commission (Recusal Application)

[2024] NSWCA 16

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Clarke v Health Care Complaints Commission (Recusal Application) [2024] NSWCA 16

Hearing dates:

23 November 2023

Decision date:

07 February 2024

Before:

White JA at [1];
Mitchelmore and Kirk JJA at [35]

Decision:

Application dismissed

Catchwords:

COURTS AND JUDICIAL SYSTEM – Judges – Recusal – Bias – Where member of intermediate appellate bench had previously made findings adverse to applicant in previous cases – Where full bench should determine recusal application for single member – Whether previous adverse decisions can ground reasonable apprehension of bias – Recusal application refused as no reasonable apprehension of bias or actual bias established by previous judgments

Legislation Cited:

Health Care Complaints Act 1993 (NSW), s 4

Health Practitioner Regulation National Law (NSW), s 149C(1)(a)

Uniform Civil Procedure Rules 2005 (NSW), r 7.36(2A)

Cases Cited:

Berg v Director of Public Prosecutions (Qld) [2016] 2 Qd R 248; [2015] QCA 196

Chu Sing Wun v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314

Clark v Attorney General of New South Wales (Recusal Application No 2) [2023] NSWCA 209

Clarke v Herrick [2021] NSWCA 102

Clarke v South East Sydney Local Health District [2020] NSWCA 8

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

Health Care Complaints Commission v Clarke [2022] NSWCATOD 146

Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20

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

Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; [1983] HCA 17

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

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Sharmain Daisy Clarke v South East Sydney Local Health District (No 2) [2018] NSWCA 226

Sharmain Daisy Clarke v South Eastern Sydney Local Health District [2018] NSWCA 202

Category:

Procedural rulings

Parties:

Sharmain Daisy Clarke (Applicant)
Health Care Complaints Commission (Respondent)

Representation:

Counsel:
Applicant unrepresented
A Petrie with E Lambert (Respondent)

Solicitors:
Applicant unrepresented
Health Care Complaints Commission (Respondent)

File Number(s):

2022/356036; 2023/40617

 Decision under appeal 

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

[2022] NSWCATOD 146

Date of Decision:

17 November 2022

Before:

The Hon D A Cowdroy AO KC, Principal Member
S Daly, Senior Member
J O’Baugh, Senior Member
C Berglund, General Member

File Number(s):

2021/298698

JUDGMENT

1. WHITE JA: On 6 September 2023, these proceedings were listed for hearing on 23 November 2023. In proceeding 2023/40167, Ms Clarke seeks leave to appeal from orders of the New South Wales Civil and Administrative Tribunal that her registration as a nurse be cancelled pursuant to s 149C(1)(a) of the Health Practitioner Regulation National Law (NSW) with a non-review period of three years, and that she be prohibited from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for the same period as the non-review period imposed. Ms Clarke was ordered to pay the respondent’s costs of proceedings in the Tribunal (Health Care Complaints Commission v Clarke [2022] NSWCATOD 146).

2. In proceeding 2022/356036, Ms Clarke appeals from those orders.

3. On 22 November 2023, after publication of the identity of the members of the Bench listed to hear her appeal and application for leave to appeal, Ms Clarke sent an email to the Registry asking that I recuse myself from the hearing of the proceedings. In that email, Ms Clarke said:

“The applicant was denied access to justice after paying for a Notice of Motion filing in 2018 for the purposes of receiving directions under UCPR 7.36 after winning the Appeals application against the South Eastern Sydney Local Health District.

The applicant fulfilled the requirements under the merits test commenced August 2016 to have received legal assistance, none of which is and was forthcoming to date in relation to my return to work in my usual occupation in full capacity.

The applicant will not attend a Hearing if Justice White is to be present in determining these matters, the applicant foreshadows an urgent adjournment otherwise.

Justice White may has a conflict of interest in these matters and or otherwise is very well briefed on the subject matter from Third Parties that repeatedly attempts to protect the interests of the State organisations and medical officers in question.”

4. In the evening of 22 November 2023, the Court of Appeal Registrar advised Ms Clarke that her application that I disqualify myself would be heard by the Court at 10.15am on 23 November 2023 in courtroom 12A.

5. On the morning of 23 November 2023, Ms Clarke sent an email to the Registrar in which she stated, amongst other things, the following:

“I am the appellant/applicant in the subject matter noted above.

The applicant’s appearance will not be made and entered in this morning’ s (23.11.23) Hearing in relation to her summons seeking leave to Appeal and Notice of Appeal leave application for the following reasons:

1.   His Honour Justice White is one of the Judges sitting on the Panel who will be hearing the applications this morning;

2.   The applicant wrote to the courts, 22.11.23 as to her position in relation to His Honour Justice White’s previous responses and refusal to recuse himself from the hearings in 2018.

3.   The applicant faces serious prejudice from HH Justice White’s actions, more specifically to deny the applicant any access to justice when there was no objection response to have received legal advice/representation in 2018.

4.   An explicit breach of access to justice caused the applicant to face the present predicament she finds herself in.

5.   The applicant is a self litigant, cannot make an application in this morning’s hearing, to request the recusal of HH Justice White’s attendance, on grounds, HH Justice White previously refused to recuse himself, then made an order and judgements interpreting a different view as to the position the applicant held in relation to the recusal application made on the day.

6.   The applicant is aggrieved further from the poor case management, irregularities are rife and speedily setting a date for a Hearing prior to appeal books being filed; Noting, the applicant made a reply on 22.11.23 to submissions filed and served by the respondent on the applicant on 21.11.23.

7.   Court books filed by the respondent is irregular and rejected completely by the applicant, appears the entire case management is in the midst of a rushed Hearing date, with no regard given to the prolonged suspension of caseload which appeared to have been legitimately delayed, in attempt to obtain the transcripts for the compilation of the Black Appeal court book.

8.   Regrettably, the applications are requested to be adjourned at short notice, the applicant will be seeking independent legal advice as to the circumstances surrounding the proceedings and will respond in due course to the courts and the respondent/s in question, this may take up to 6-8 weeks or even longer, depending on the circumstances surrounding the conduct of the proceedings in the Courts of NSW.

9.   In all fairness the applicant should not be requested to attend the courts to make an application on grounds, the applicant is a self litigant, has two applications on foot this morning that was to be heard, and to request the applicant make a further application in the absence of legal advice, denies the applicant her right to access of justice for the purposes of the recusal application.

10.   The applicant respectfully requests an independent panel of three judges to hear her arguments on her applications in due course, intends for these matters only to be instructed by a lawyer, due to resource issues from an unjustified perspective experienced.”

6. To some extent, this email explained the grounds on which Ms Clarke contended I should recuse myself, and additionally requested an adjournment.

7. As Ms Clarke foreshadowed, she did not appear when the matter was called.

8. These reasons address only Ms Clarke’s recusal application. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419, a majority of the High Court held that an application that a member of an intermediate appellate bench should disqualify himself or herself should not be solely determined by that member if he or she declined to do so. Consistently with the reasons of Gordon J (at [94]-[105]), Edelman J (at [131]-[133]) and Steward J (at [193]) and conformably with the views of Jagot J in dissent, I give my own reasons for declining to recuse myself.

9. After the matter was called and Ms Clarke did not appear, I indicated that I did not consider that I ought to recuse myself. Mitchelmore and Kirk JJA were of the same opinion. The Court dismissed Ms Clarke’s recusal application with reasons to follow. Had Ms Clarke appeared I would have sought clarification from her in relation to some of the matters asserted in her email of 22 November 2023 referred to above. Subject to any oral submissions she may have made, I would have hoped to provide reasons immediately in respect of her recusal application. As she was not present, reasons were reserved; the delivery of reasons orally would have served no purpose.

10. Ms Clarke’s application arises from my prior involvement in two earlier proceedings.

11. On 3 September 2018, I dismissed with costs an application Ms Clarke made for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance in connection with a then pending application for leave to appeal from orders made by Adamson J striking out a statement of claim in other proceedings and dismissing that claim (Sharmain Daisy Clarke v South Eastern Sydney Local Health District [2018] NSWCA 202).

12. I held (at [9]) that because Ms Clarke had been given pro bono assistance within the previous three years in relation to proceedings in the District Court, she needed to demonstrate that there were special reasons justifying a further referral (Uniform Civil Procedure Rules 2005 (NSW), r 7.36(2A)). I was not satisfied that there was a special reason justifying a further referral of Ms Clarke for pro bono assistance. In reaching that conclusion I considered that her application for leave to appeal from the orders of Adamson J lacked merit. I stated that Ms Clarke had not advanced any specific reason to demonstrate that the reasons of Adamson J were incorrect (at [8]).

13. As Ms Clarke states, the respondent to that proceeding did not oppose her application. It neither consented to it nor opposed it. As appears from pars [5] and [6] of my reasons I had regard to the authorities that have held that regard should be had to the limited resources of the Pro Bono Panel, that the practitioners who offer their services on that Panel do so voluntarily and that the apparent merit of the applicant’s claim is a relevant consideration.

14. Ms Clarke observes, rightly, that, although self-represented, she succeeded on her application for leave to appeal (Sharmain Daisy Clarke v South East Sydney Local Health District (No 2) [2018] NSWCA 226). She succeeded in obtaining leave on one ground. That ground was not based on any error in Adamson J’s reasons (Clarke v South East Sydney Local Health District [2020] NSWCA 8 at [3]).

15. Whether I was right or wrong in refusing Ms Clarke’s application for pro bono assistance says nothing as to whether a reasonable bystander might apprehend that I might not bring an impartial and unprejudiced mind to the present proceedings. Neither the fact the application failed, nor that it was unopposed, could reasonably be thought to indicate that I had any animus against her or had prejudged her present proceedings. As is apparent from par [12] of my reasons, costs were awarded against her because the then respondent was entitled to be present to deal with a claim for relief which was ultimately not pressed.

16. My second prior involvement with Ms Clarke was in my participation with Macfarlan JA on her application for leave to appeal from a judgment given against her by a judge of the District Court (Clarke v Herrick [2021] NSWCA 102).

17. Ms Clarke had sought damages from co-workers at the Royal Hospital for Women for alleged assault and battery. The District Court had dismissed the claim. Macfarlan JA and I refused leave to appeal.

18. In that matter Ms Clarke submitted that I should disqualify myself from hearing her application because of my earlier decision in 2018. I declined to do so. My reasons for not doing so are contained in pars [10]-[23] of the Court’s decision in Clarke v Herrick. Those reasons have equal application to Ms Clarke’s present application.

19. Ms Clarke’s challenge to the decision of the Tribunal raises different questions from those I have previously considered. The principal questions in the present proceedings are whether the Tribunal erred in concluding that Ms Clarke suffered any impairment of her mental health such that her registration as a registered nurse should be cancelled, that she should not be permitted to review that order for three years, and whether during that period she should be prohibited from carrying out any health service (as defined) including teaching.

20. I have not previously had to consider any issue concerning Ms Clarke’s mental health or her fitness to provide health services.

21. Ms Clarke’s correspondence does not clearly identify whether her contention is that I have actual bias towards her, or whether it is based upon an apprehension of bias.

22. An allegation of actual bias is a serious allegation that should not be made unless there are proper grounds for it (Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[74]). No such ground is identified and I reject that allegation if it is made.

23. The test for whether I should recuse myself for apprehended bias is whether a fair minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues arising on the appeal and the application for leave to appeal (Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; [1983] HCA 17; Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[13]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31] (and numerous other cases to the same effect)).

24. In Ebner v Official Trustee in Bankruptcy, the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at [8] that the application of the “apprehension of bias principle” requires two steps. The first is the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. The second was an articulation of the “logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.

25. In the context of administrative decision making, Gageler J said in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59]:

“… the test for the appearance of disqualifying bias in an administrative context is to be understood to mirror the test for apprehended bias in the curial context in two important respects. The first is that it is an "objective test of possibility, as distinct from probability". The second is that its application necessarily involves three analytical steps. Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.”

26. Ms Clarke does not identify what it is that might lead the hypothetical reasonable bystander to apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues in these proceedings. Doing the best I can I have attempted to identify from her email correspondence what she relies upon. The fact that I have previously made two decisions that were adverse to her interests is not a sufficient basis for such an apprehension. Those decisions have no bearing on the issues arising in the present proceedings. The mere fact that a judge has made an adverse decision or decisions against a party is not a sufficient reason for the judge to disqualify himself or herself from dealing with subsequent applications concerning the same party: Clark v Attorney General of New South Wales (Recusal Application No 2) [2023] NSWCA 209 at [9]; Berg v Director of Public Prosecutions (Qld) [2016] 2 Qd R 248; [2015] QCA 196 at [67]-[71]. As Carr and Sundberg JJ observed in Chu Sing Wun v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314 at 340, the test for apprehended bias is concerned with prejudice and partiality, not an individual litigant’s expectations or predictions as to the outcome of his or her case.

27. In Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39, Mason J said at 352:

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

28. In Ebner v Official Trustee in Bankruptcy, Gleeson CJ, McHugh, Gummow and Hayne JJ said (at [20]) that:

“…if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.”

29. My previous involvement in matters in which Ms Clarke was engaged is not a sufficient reason for recusing myself from hearing these proceedings.

30. The position would be different if there were any substance to Ms Clarke’s contention in the last paragraph quoted at [3] above, where she states that I have or may have a conflict of interest and that I am “…very well briefed on the subject matter from Third Parties that repeatedly attempt[s] to protect the interests of the State organisations and medical officers in question”.

31. Because Ms Clarke did not appear, I did not have the opportunity to ascertain what it was to which she there referred.

32. I have no conflict of interest in participating in the hearing and determination of the present proceedings. My only interest is in determining whether the Tribunal did or did not err. I have no interest in whether the outcome is favourable to Ms Clarke or to the Health Care Complaints Commission.

33. I do not know or understand what Ms Clarke means by saying that I am very well briefed by third parties. The only “briefing” I have received is from the appeal books, the application book, and the parties’ submissions. I do not know who are the “third parties” to whom Ms Clarke refers. I do not know whether she contends that it is those third parties or whether it is I myself who have repeatedly attempted to protect the interests of the State organisations and medical officers in question. I do not know what Ms Clarke means unless she is referring to my refusal in 2018 of her application for pro bono assistance or my joining with Macfarlan JA in refusing leave to appeal in Clarke v Herrick. As is apparent, or should be apparent, from my reasons in Sharmain Daisy Clarke v South Eastern Sydney Local Health District (No 2) and Macfarlan JA’s and my reasons in Clarke v Herrick, her applications were dismissed on their merits.

29. It is for these reasons that I concluded that I had a duty not to recuse myself and declined to do so.

30. MITCHELMORE and KIRK JJA: The judgment of White JA demonstrates that the test for apprehended bias was not made out. If actual bias was meant to be alleged, no basis for the allegation was identified. For those reasons we agreed that the disqualification application relating to his Honour should be dismissed.

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Amendments

07 February 2024 - Case name amended

Decision last updated: 07 February 2024