Council of the New South Wales Bar Association v Archer (No 4)

[2004] NSWADT 235

CITATION:	Council of the New South Wales Bar Association -v- Archer (No 4) [2004] NSWADT 235 revised - 20/10/2004
DIVISION:	Legal Services Division
PARTIES:	APPLICANT The Council of the New South Wales Bar Association RESPONDENT Stephen John Archer
FILE NUMBER:	032019
HEARING DATES:	06/08/2004
SUBMISSIONS CLOSED:	08/06/2004
DATE OF DECISION:	10/18/2004
BEFORE:	Chesterman M - ADCJ (Deputy President); Norton S SC - Judicial Member; Bennett C - Non Judicial Member
APPLICATION:	Bias
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:	Dickason v Edwards (1910) 10 CLR 243 R v Watson, ex parte Armstrong (1976) 136 CLR 248 Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 Re JRL, ex parte CJL (1986) 161 CLR 342 New South Wales Bar Association v Archer [2004] NSWADT 38 Council of the New South Wales Bar Association v Archer(No 2) [2004] NSWADT 78 Walsh v Law Society of New South Wales (1999) 198 CLR 73 Vakauta v Kelly (1989) 167 CLR 568 Livesey v New South Wales Bar Association (1983) 151 CLR 288 S & M Motor Repairs Pty Ltd v Caltex Oil Australia Pty Ltd (1988) 12 NSWLR 358 Re JRL, ex parte CJL (1986) 161 CLR 342 Re S (a Barrister) [1981] QB 683 Carver v The Law Society of New South Wales (1998) 43 NSWLR 71 Dovade Pty Ltd and Ors v Westpac Banking Group and Anor [1999] NSWCA 113
REPRESENTATION:	APPLICANT M MCCulloch, barrister RESPONDENT In Person
ORDERS:	ORDERS MADE 6 AUGUST 2004: 1. Applications dismissed; 2. Decision concerning costs, on both interlocutory applications, reserved.

1 THE PANEL: We will now give judgments on two applications that have been made by the Respondent in these proceedings. The first of them concerns the further participation in these proceedings of all three members of this Panel. The second concerns the further participation of one member, Ms Norton SC.

2 The first application is for an order that we, as the three Members constituting the Tribunal in these proceedings, should disqualify ourselves from further participation in the proceedings on the grounds of actual bias and/or apprehended bias.

3 The bias claimed is in favour of the Bar Association of New South Wales, the Applicant in these proceedings, and against the Respondent, against whom the Applicant has brought the proceedings alleging professional misconduct.

4 Written and oral submissions were put to us by the Respondent, appearing in person, and by Mr McCulloch, counsel for the Applicant.

5 Our conclusion is that the application should be dismissed. We will now give our reasons.

6 There are three grounds on which the Respondent claimed actual bias:

1. That we have arrived at a pre-determination against him in this case.

2. That three decisions that we have made so far in these proceedings display “enmity” against him.

3. That one of us, Ms Norton, is a member of the Applicant association.

7 In putting forward pre-determination as a ground for finding actual bias, the Respondent relied on the following statement by Isaacs J in Dickason v Edwards (1910) 10 CLR 243 at 260:

So that the principle seems to me to be this – that, if the person whose presence can fairly be said to be biased, either by reason of his necessary interest or by reason of some pre-determination he has arrived at in the course of the case, then he ought not to act unless there is something to relieve him of these disqualifications.
This statement was cited with approval by the High Court in R v Watson, ex parte Armstrong (1976) 136 CLR 248 at 258.

8 In summary, the chief ground of the Respondent’s claim of apprehended bias was that a fair-minded lay observer, who had attended the proceedings to date and read the three decisions to which we have referred, would conclude:

1. that no reasonable tribunal, acting without bias in favour of the Applicant, could arrive at these decisions in the manner in which we arrived at them; and

2. that the Tribunal, as presently constituted, might therefore not bring an impartial mind to the resolution of the questions still to be determined in the proceedings.

9 As the Respondent submitted, there was no disagreement between the parties as to the principles governing apprehended bias. The Respondent cited the following short statement of principle by Gleeson CJ and McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337, at para 6:

[A] judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
We will quote further from para 7, which Mr McCulloch cited, and from para 8:
7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. 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…

10 As the Respondent indicated, it is not relevant for us to consider whether we, the Tribunal Members concerned, feel in ourselves that we can bring an impartial mind to the questions involved. What matters is what a “fair-minded lay observer” would reasonably apprehend.

11 Finally, we note dicta to the effect that in cases of this nature the reasonable apprehension of bias must be “firmly established”: see for example Re JRL, ex parte CJL (1986) 161 CLR 342 at 352, per Mason J.

12 There was some discussion during the hearing of this application as to what level of understanding should, according to the authorities, be attributed to the hypothetical “fair-minded lay observer”. We will return to this question shortly.

13 The three decisions by us that form the principal basis of the Respondent’s claim of actual and apprehended bias were usefully labelled by him “the summons decision”, “the extension decision” and “the strike-out decision”. We will use these labels.

14 The summons decision was given on 25 February 2004 and reported as New South Wales Bar Association v Archer [2004] NSWADT 38. We ruled, in a reserved decision containing 61 paragraphs, that an application by the Respondent to strike out 16 summonses to produce documents should be rejected, except as to two categories in a summons to produce that was addressed to himself. The principal grounds of the application were that the summonses were an abuse of process, because they were oppressive, and that they required the production of numerous documents which would be irrelevant to the issues raised in the proceedings. We held that neither of these grounds had been made out.

15 At the conclusion of the detailed critique of this judgment, in his written submission, the Respondent, in para 4.7, summed up his arguments in relation to it as follows:

Upon this very important application, the Tribunal failed to deal with most of the arguments put on behalf of the Respondent; it failed to deal satisfactorily, that is, with proper reasonable explanation, with such of the arguments that it, in fact, chose to address; it accepted arguments advanced on behalf of the Informant that were misconceived or just plainly wrong; and gave no coherent or logical explanation for the decision it reached to allow 15 Summonses, most of which differed in significant ways from the others. It is not possible to explain such a Decision as the product of mere error, nor, given the membership of the Tribunal, could an answer be found in inexperience or lack of competence. The only remaining explanation is that the Tribunal was so infected by bias – conscious or unconscious - in favour of the Informant and against the Respondent, that it permitted its prejudice to replace the obligation to act impartially.

16 It will be observed that this summary, like the passages immediately preceding it dealing specifically with the summons decision, did not refer expressly to the criteria governing apprehended bias. Elsewhere in the Respondent's written submissions, however (for example, at para 7.2) and in oral argument, he made it clear that in his submission, the defects in the summons decision were of such an order that no fair-minded lay observer could reasonably conclude otherwise than that there was bias on our part in delivering it.

17 In oral submissions, the Respondent drew attention to some specific points made in his written critique of the summons decision, but did not make any substantially new argument in that context.

18 The extension decision was given ex tempore by us on 25 March 2004. We granted an application by the Applicant for leave to file its application some six weeks outside the time permitted by the Administrative Decisions Tribunal Act 1997 and the Rules thereunder, on the ground that under s 44(1) of the Act, the Applicant had advanced a "reasonable explanation" for the delay.

19 In the course of a similar detailed critique of our reasons, the Respondent, in para 5.4 of his written submission, argued as follows:

This analysis makes plain that the Tribunal adopted in this case precisely the same approach as it did with the Summons Decision: it set out the arguments from each side; it said that it preferred the arguments advanced on behalf of the Informant without explaining why; and it failed to address most, if any, of the arguments advanced on behalf of the Respondent. Again, this amounted to a ‘decision’ without reasons or explanation. Why, the Respondent asks, would the Tribunal adopt this procedure for the second time, unless it was predisposed to the Informant's success in the proceedings?

20 The Respondent's written submission in relation to the extension decision concluded as follows, in para 5.7:

It is submitted that this method of ‘reasoning’ …
the Respondent is referring there to the reasoning adopted by us in the decision
is so flawed that it can only be the product of a firm desire on the part of the Tribunal to enable proceedings against the Respondent to go ahead unimpeded irrespective of the merits of his position or the justice of the case. That desire can only be a result of inalienable bias on the part of the Tribunal as presently constituted.

21 Again, para 7.2 of the written submission makes it clear that these arguments were directed to the ground of apprehended bias as well as actual bias. Also, there was again no substantial addition to the critique of this decision in the oral argument made by the Respondent.

22 The strike-out decision was given by us on 21 April 2004 and is reported as Council of the New South Wales Bar Association v Archer (No 2) [2004] NSWADT 78. It related to an application by the Respondent that the proceedings against him should be struck out on the ground that the matters alleged and particularised against him were incapable in law of constituting professional misconduct under s 127 of the Legal Profession Act 1987. In a reserved decision containing 102 paragraphs, we dismissed this application.

23 Before the strike-out application was heard, the Applicant had objected to our making a preliminary determination of this nature. In an ex tempore judgment delivered on 26 March 2004, we disallowed this objection, ruling that the Tribunal had power to make such a determination and that in the circumstances that procedure was appropriate.

24 The Respondent's written submission on the present application contained a lengthy and detailed critique of the strike-out decision similar to the two critiques that we have already described. At para 6.3, it indicated that the Respondent had appealed to the Court of Appeal against this decision and set out 11 grounds of appeal that would be relied on. The last of these is that our decision was vitiated by actual or apprehended bias.

25 Para 6.3 of the Respondent's written submission concluded as follows:

It is submitted here and will be submitted to the Court of Appeal that the Tribunal made each one of these errors -
that is the errors listed in the 11 foreshadowed grounds of appeal -
and that individually and collectively, they are explicable only by the failure of the Tribunal to decide the relevant Application impartially and without bias in favour of the Informant and against the Respondent.

26 In para 6.4, the written submission went on as follows:

In addition to all of the above, there is one absolutely critical feature in the decision that, almost by itself, shows that the Tribunal failed to bring an impartial mind to the relevant Application. At the heart of the Respondent's application was the submission that he was entitled to know the case alleged against him and that the Informant had to prove the case it alleged against him The Tribunal did not trouble itself with these niceties, which might be thought to be at the heart of natural justice or procedural fairness. The Tribunal, notwithstanding what the High Court had said without a reservation or qualification in Walsh -
the Respondent here is referring to Walsh v Law Society of New South Wales (1999) 198 CLR 73 -
held it sufficient for the case to be articulated by 'implicit allegations'. This is such a departure from the ordinary principles of fairness that Walsh requires that the only available conclusion is that the Tribunal sacrificed fairness and justice upon the altar of expedience so as to ensure that the Informant's case could proceed unimpeded by any consideration of justice, fairness or impartiality.

27 The Respondent's written submission in relation to this application concluded by maintaining that when the "totality" of the three decisions was taken into account, findings of actual and apprehended bias were inescapable. We will quote from the relevant passage, which constitutes most of para 7.1 and part of para 7.2:

One decision, without means or reason or explanation, might have been almost enough to demonstrate actual, or reasonably apprehended, bias. Two decisions of the same quality and characteristics were certainly enough.

28 Passing over the next sentence:

The third decision, flawed in the way set out above, entirely ignoring the principles enunciated by the High Court, and exhibiting the great pains to which the Tribunal went to tease out from various judgments of the Court of Appeal, any vestige of support for the Informant's case, however tenuous or irrelevant, puts beyond all contrary argument that the Tribunal as presently constituted has not brought an impartial mind to bear upon these proceedings to date.

29 Then in para 7.2:

No fair-minded lay observer, knowing of the matters set out in sections 4, 5 and 6 above, could reasonably fail to apprehend that the Tribunal as presently constituted might not bring an impartial mind to the resolution of the questions the Tribunal is required to decide in these proceedings. Rather, the fair-minded lay observer could not fail to think that the Informant receives from the Tribunal so constituted whatever it asks for, regardless of the merits of the particular point. Put another way, no fair-minded observer could believe that the playing field on which these proceedings have been fought is level.

30 In oral submissions, the Respondent placed particular emphasis on the argument arising from the High Court's decision in Walsh. He also asserted that the conclusion that a fair-minded lay observer would draw about our decisions was not dependent on any legal knowledge or expertise.

31 A further matter that he mentioned, which, as we understand it, was relevant to his application both on actual and apprehended bias, was that there was, at some point or points in the hearing of the three applications to which the relevant decisions referred, a degree of “iciness” towards him on the part of one of us. This provided further support, as we understood it, for his claims of actual and/or apprehended bias.

32 In relatively brief written submissions on behalf of the Applicant, Mr McCulloch argued that the Respondent's submission of actual bias was not supported by anything in our decisions and was "wholly inappropriate".

33 In relation the ground of apprehended bias, Mr McCulloch made two specific points. The first was that we had made no credit findings, either regarding the Respondent or regarding any other actual or potential witness in the proceedings. The second was that the Respondent had exercised his rights of appeal against our decisions to the extent that he wished to do so and that it was inappropriate for the Tribunal to be asked to re-visit its decisions.

34 During the hearing of the application, we sought help from representatives on both sides on two aspects of the relevant law.

35 The first was whether in any decided case on actual or apprehended bias, an application had been granted, or indeed had been made, solely or substantially on the ground of alleged inadequacies in decisions already made in the proceedings. Neither the Respondent nor Mr McCulloch could cite any such case to us.

36 Secondly, we sought guidance as to the extent of legal knowledge, or indeed of analytical skill, that should be attributed to the "fair-minded lay person" that the High Court describes in Ebner v Official Trustee. Mr McCulloch drew our attention to two authorities.

37 The first was the judgment of Toohey J, with which Brennan, Deane and Gaudron JJ expressed general agreement, in Vakauta v Kelly (1989) 167 CLR 568. At 584-585, Toohey J stated as follows:

I accept the observation of McHugh JA in the instant case that “in the case of a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial, a conclusion that there is a reasonable apprehension that he is biased should not be drawn lightly”. In effect that is what this Court said in Livesey –
that is a reference to Livesey v New South Wales Bar Association (1983) 151 CLR 288 -
and it is true, as Clarke JA pointed out that it is a "reasonable apprehension" with which the Court is concerned, and if it adds anything, it is such an apprehension in a "a fair-minded observer.

38 Livesey is referred to again then -

But in this regard the public perception of the judiciary is not advanced by attributing to the reasonable or fair-minded observer a knowledge of the law and an awareness to the judicial process that ordinary experience suggests not to be the case.

39 The second authority cited by Mr McCulloch on this point was the judgment of Kirby P in S & M Motor Repairs Pty Ltd v Caltex Oil Australia Pty Ltd (1988) 12 NSWLR 358 at 375-376. The gist of what the learned President said in that passage was that in this context, one should not attribute to the fair-minded lay observer a "sophistication and knowledge about the law and its ways which I believe to be quite atypical of the general community". A metaphor that he proposed as appropriate was a "robust discussion between ordinary reasonable citizens on the Emu Plains omnibus".

40 In that case, Kirby P was in dissent. But Toohey J’s judgment in Vakauta v Kelly includes the following observation at 585:

As to the level of sophistication that should be attributed to the reasonable or fair-minded observer, see Kirby P in S & M Motor Repairs v Caltex Oil .

41 Against this background, we will now indicate our reasons for dismissing this application.

42 The claim of actual bias is based, as we said at the outset, on an allegation of pre-determination evident in the three decisions; an allegation of “enmity” towards the Respondent displayed in these decisions; and the fact that Ms Norton is a member of the Bar Association.

43 In our roles as the authors of these decisions we, of course, acknowledge that they may contain defects. But after being pressed with a contention that, at some stage, we must have arrived at a pre-determination against the Respondent, we cannot make the finding that such defects as exist in the decisions necessarily require this conclusion to be drawn. Some remarks that we will make about the decisions in dealing with the claim based on apprehended bias are also relevant to what we have just said.

44 As to the allegation of “enmity”, we adopt the same reasoning. Having been pressed with this contention, we cannot, in all fairness, make a finding that the decisions disclose enmity as alleged. Insofar as this allegation may be dependent upon the assertion by the Respondent to which we have already referred - that there was "iciness" on the part of one of us during one or more of the hearings of the relevant applications - we cannot make a finding, as no particulars of this claim were put to us and there was no basis on which we could infer for ourselves what precisely was being referred to.

45 As to Ms Norton's membership of the Bar Association, it is clear that no claim of actual bias on the part of all of us could arise from that alone. In a separate judgment, which she will shortly deliver, Ms Norton will rule on the Respondent's accompanying application for her to disqualify herself on this ground.

46 We turn now to the ground of apprehended bias. Mr McCulloch's submission appeared to go so far as to say that we should not re-visit our three decisions and therefore should not deal with the issue of whether a fair-minded lay observer who heard the proceedings and read the decisions would reasonably apprehend bias. We do not accept a submission in those broad terms.

47 For reasons which must be evident, we find it very difficult, however, to put ourselves in the position of such a hypothetical person in order to make the necessary finding. It involves us seeking to distance ourselves from the decisions in a way that is far from straightforward. Doing the best that we can, our conclusion, however, is that the Respondent has failed to "firmly establish" apprehended bias. This conclusion is based particularly on the following considerations.

48 First, the fair-minded lay observer, appropriately familiar with the course of the proceedings and with our decisions, would not, we think, reasonably infer bias solely from the fact that in the three decisions, we found against the Respondent. We add here, without attributing undue weight to the matter, that in a fourth decision that we made, whether or not to hear the strike-out application at all, we found against the Applicant.

49 Secondly, each of the three decisions was reached after we had considered detailed arguments of significant length from both sides and, in two of them, had reserved our judgment.

50 Thirdly, the text of the judgments, notably the two reserved judgments, was of significant length and included summaries of the arguments on both sides.

51 The principal arguments raised here by the Respondent were, in essence, that first, we erred in deciding against him, both in the result and in our rulings on most of the arguments put, and secondly, that we provided no or no sufficient reasons for preferring the arguments of the Applicant. But the objective fact remains that the judgments purported to provide reasons for our conclusions arising from the arguments that were addressed to us and sought to state and apply the relevant law as correctly as we were capable of doing to the facts and arguments put before us.

52 Fourthly, we made no adverse finding as to the Respondent's credit or indeed, as to the credit of any person, since such issues did not arise in the applications.

53 Fifthly, having regard to these factors, the reasonable reaction of a fair-minded lay observer, having such capacities as Kirby P and Toohey J indicated in their respective judgments, would be, in our judgment, that our rulings might be correct and supported by sufficient reasons, or might be defective on either or both of these counts, but they could not really tell in a conclusive fashion. In such circumstances, it would not be fair-minded or reasonable for such a person to apprehend bias on our part.

54 Sixthly, no other defect in our decisions or indeed in the conduct of the proceedings bias has been alleged that might give rise to a reasonable apprehension of bias. As we have already mentioned, we cannot make a finding in relation to the alleged "iciness" by one of us when no specific allegation in this regard was made.

55 Mr McCulloch submitted to us that the availability of rights of appeal to the Respondent constituted a reason why we should dismiss this application. We would not put the matter in these terms. At most, the availability of these rights constitutes one of a number of policy reasons underlying the proposition, articulated from time to time in the cases on bias, that judges should not be too quick to disqualify themselves and that bias should be “firmly established”.

56 An example appears in the following passage in the judgment of Mason J in Re JRL, ex parte CJL (1986) 161 CLR 342 at 352:

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact or law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind disqualification is only made up by showing that there is a reasonable apprehension of bias by reason of pre-judgment and this must be “firmly established”.

57 To return to the point that we are making, the fact that rights of appeal are available and may indeed be exercised should not, as we see it, provide a ground for rejecting a claim of alleged or apprehended bias if that claim is properly made out. The availability of rights of appeal is relevant only in the more general sense that we have attempted to articulate.

58 It remains only to consider a claim made by the Respondent, in his oral submissions to us, that in directions made during November 2003 he was required to file evidence at a time when some or all of the summonses that were dealt with in the summons decision had been issued and for that reason there was no equivalent direction to the Applicant. As we understood his submission on this matter, the Respondent has alleged this constituted unfair treatment of him.

59 The short answer to this part of the Respondent's case in this application is that it is not relevant to an application to the three members of this Panel to disqualify themselves, for the simple reason that none of those members were engaged in the directions hearing. Directions were given by another Member of the Tribunal.

60 The Respondent, in fact, linked this part of his oral submission with a broad allegation that appears in his written submissions (for example at para 3.3), to the effect that the Tribunal as a whole, not merely this Panel, has exhibited bias against him.

61 For the reasons that we have set out, as indicated earlier, the Respondent's application for an order disqualifying members of this Panel from further participation in these proceedings is dismissed.

62 We will now ask Ms Norton to read her judgment on the application specifically relating to her participation.

63 JUDICIAL MEMBER NORTON: The Respondent in these proceedings filed an application on 6 May 2004 for all three members of this Tribunal to disqualify themselves on the basis of bias, both actual and apprehended.

64 The Respondent filed an outline of written submissions dated 19 July 2004 in support of that application. At para 2.2 of those submissions under the heading Actual bias the Respondent stated that he did not allege any member of the Tribunal had a pecuniary interest in the outcome of the proceedings but that actual bias was, relevantly to me, "evidenced by the relationship between Ms Norton and the Informant".

65 The submissions then go on to deal with the reasonable apprehension of bias until at point 8 on p 31 there is a heading "The Norton Point". Two complaints are made in this submission, the first being that a fair-minded member of the public may have a reasonable apprehension that I could not bring an impartial mind to the resolution of these proceedings because the Bar Association, of which I am a member, is by its council the Informant.

66 The second is that the fact that I did not disclose I was a member of the Association at the commencement of the hearing may lead a fair-minded member of the public to have a reasonable apprehension of bias on my part in favour of the Informant.

67 The objective facts as relevant to the application are that I am and was at the commencement of these proceedings a member of the Bar Association. I am not, nor have I ever been a member of the Bar Council nor have I ever been a member of any professional conduct committee much less one that had any dealings with the Respondent in this matter.

68 With respect to the allegation of actual bias my membership of the Bar Association does not incline me to be biased in favour of the Informant in this matter, and has not influenced my judgment in the past in any matters on which I have sat in this Tribunal.

69 On the issue of apprehended bias some guidance is given by the judgment in the matter of Re S (a Barrister) [1981] QB 683 at 690 C. A reference is made to the work of Professor D Smith and then the judgment continues:

Nor is there anything in any decided case which supports the proposition that professional men -
and I interpose professional women -
who are members of the governing body of their profession are incapable of hearing impartially a complaint of professional misconduct against a member of their own profession. Indeed it has always been accepted that professional men are particularly well fitted from their knowledge of the reasons which lead to the acceptance by the profession of a code of conduct and from their experience of the difficulties which may confront the practitioner in observing and the profession in enforcing proper standards of conduct to determine whether or not there has been a breach of the code of conduct governing the profession, and in judging the gravity of it if it is proven.

70 Although this is an English decision the case was referred to by the New South Wales Court of Appeal in Carver v The Law Society of New South Wales (1998) 43 NSWLR 71. In that case Powell J observed at p 99:

While I accept that the mere fact that a judge or a person in the position of a judge is a member of a body which is a party to a proceeding may not necessarily give rise to a reasonable apprehension of bias, example Leeson v General Council of the Medical Education and Registration (1889) 43 ChD 366 and Re S (a Barrister) quoted above, nonetheless it seems to me that any person who was at a relevant time a member of the governing body or of a relevant committee of the body which initiated the proceeding in question is to be regarded as being disqualified by interest or association or both from sitting on or as a member of any Tribunal called upon to determine the proceeding in question and it matters not that they may not be shown that the person took any relevant part in the decision.

71 Thus it is clear that a distinction is drawn between being a member of a professional body and being a member of the council of that body which lays an information or a professional conduct committee which has already considered the conduct of a practitioner.

72 As stated above, I have never been a member of the Bar Council and I have never sat on any professional conduct committee.

73 The second complaint is that I did not disclose I was a member of the Association at the commencement of the hearing. It is clear that if I had any prior involvement with complaints concerning Mr Archer or if I was a member of the Council at the relevant time or a relevant professional conduct committee those matters should have been disclosed. In fact, I would simply have declined to sit.

74 It is true I did not disclose I was a member of the Bar Association. I have been a member of the Association for some years and I have also sat on this Tribunal for some years. I have never been asked to disclose whether or not I was a member of the Bar Association and indeed, no such request was made at the commencement of this case. The rationale behind the requirement to make disclosure in certain circumstances is no more than commonsense to require disclosure of facts which are not readily available to a party and which may be seen as relevant to a question of apprehended bias, see Dovade Pty Ltd and Ors v Westpac Banking Group and Anor [1999] NSWCA 113.

75 Guided by the principles set out above and noting that my membership of the Association could not have come as a surprise to the Respondent, I do not believe there was any need to disclose my membership of the Bar Association at the commencement of the proceedings and thus, my failure to make such a disclosure would not lead any fair-minded member of the public to have a reasonable apprehension that I might not bring an unbiased mind to the questions at issue in this case. Those are my reasons.

Orders

1. Applications dismissed.

2. Decision concerning costs, on both the interlocutory applications, reserved.