Dezfouli v Department of Corrective Services

[2009] NSWADT 81

CITATION:	Dezfouli v Department of Corrective Services [2009] NSWADT 81
DIVISION:	General Division
PARTIES:	APPLICANT Saeed Dezfouli RESPONDENT Department of Corrective Services
FILE NUMBER:	073242; 083008; 083202
HEARING DATES:	15 January 2009
SUBMISSIONS CLOSED:	15 January 2009
DATE OF DECISION:	16 April 2009
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	Bias – application for disqualification
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Dezfouli v Department of Corrective Services [2007] NSWADT 25 Dezfouli v Justice Health [2006] NSWADT 247 Dezfouli v Justice Health [2007] NSWADT 262 Dezfouli v Justice Health [2008] NSWADT 175 Dezfouli v Justice Health [2008] NSWADTAP 72 Dezfouli v Justice Health [2009] NSWADT 80 Ebner v Official Trustee in Bankruptcy [200] HCA 63 Re JRL; ex parte CJL (1986) 161 CLR 34 Macquarie University v Howell (GD) [2008] NSWADT 46 McGuirk v Attorney General of New South Wales [2008] NSWADTAP 39
REPRESENTATION:	APPLICANT In person RESPONDENT P Grech, solicitor
ORDERS:	1.Application refused 2.Matter 083202 is to be listed for a planning meeting on Tuesday 12 May 2009 at 12:30pm.

Background

1 In these three matters Mr Saeed Dezfouli (the applicant) has applied for review of determinations made by the Department of Corrective Services (the respondent) in response to his requests under the Freedom of Information Act 1989 (the FOI Act) for access to documents held by the respondent. In each of these matters the request was for access to documents held in the applicant’s case management, offender, and warrant files, each covering a different period of time. In each of the matters the respondent provided access to some documents in full, made deletions to others, and refused access to some documents. The basis on which access was refused was that the documents contained material exempt under one or more of clauses 4, 6, 7 and 16 of Schedule 1 to the FOI Act. The applicant contends in both matters that documents that should be on his files are missing, and documents located in response to his request relate to earlier periods; the applicant submits that he needs, and is entitled to, a copy of all the documents that have been partially or totally exempted. In matter 083008 the applicant is also aggrieved by how the respondent has handled his request for documents on a red file.

2 In matters 073242 and 083008 the respondent has filed and served written submissions and affidavits sworn by officers of the respondent Department, and copies of the documents in dispute have been provided to the Tribunal on a confidential basis. The applicant has filed and served written submissions in reply. At a planning meeting held on 1 May 2008 the parties agreed that both matters could be determined on the papers. In matter 083202 the first planning meeting was held on 11 November 2008.

3 I have previously made a decision in another matter in which the applicant has sought review of determinations of the Department of Corrective Services in response to his requests for access under the FOI Act to documents held by that agency: Dezfouli v Department of Corrective Services [2007] NSWADT 25. I have also previously made decisions in other applications for review involving the applicant and the respondent Justice Health: Dezfouli v Justice Health [2006 NSWADT 274; Dezfouli v Justice Health [2007] NSWADT 262, and Dezfouli v Justice Health [2008] NSWADT 175.

4 These three matters raise issues similar to those raised in Dezfouli v Department of Corrective Services [2007] NSWADT 25, Dezfouli v Justice Health [2006] NSWADT 274 and Dezfouli v Justice Health [2008] NSWADT 175, in particular whether part or the whole of any of the documents identified as falling within the scope of the applicant’s request for access are exempt by virtue of clause 4, clause 6 or clause 16 of Schedule 1 to the FOI Act. On 20 June 2008 the applicant appealed the decision in Dezfouli v Justice Health [2008] NSWADT 175 to the Appeal Panel. At the planning meeting on 11 November 2008 the parties agreed that it would be preferable to await the outcome of that appeal before setting a timetable for further progress of the matter. The decisions in matters 073242 and 083008 remained reserved pending the outcome of the appeal in Dezfouli v Justice Health [2008] NSWADT 175.

5 The Appeal Panel delivered its decision on 20 November 2008. The applicant’s appeal relied on the following grounds: (1) that the decision was contrary to the provisions of the Evidence Act 1995, (2) that there was no evidence to support certain findings of fact, (3) that there was actual bias by (a) not affording the applicant a proper opportunity to present his case and (b) making reference to the previous decision involving the same parties, Dezfouli v Justice Health [2006] NSWADT 274. The Appeal Panel concluded that these grounds of appeal failed, and that leave to extend the appeal to the merits should not be granted.

6 On 8 November 2008, in the circumstances outlined in the decision in Dezfouli v Justice Health [2009] NSWADT 80, the applicant wrote to the Registrar of the Tribunal requesting that I disqualify myself from further conduct of matter 083188 in which Justice Health is the respondent, “and the rest of my applications and cases at ADT”. In this letter the applicant stated, among other things, that he prefers to make submissions orally rather than in writing as he does not have access to a computer, and that he does not have access to a law library. The matter was listed for a planning meeting on 17 December 2008 at which the respondent indicated that it opposed the application for disqualification. I made directions that the respondent file and serve written submissions addressing the legal and other issues raised. The matter was listed for hearing on 15 January 2009 to enable the applicant to make oral submissions in support of his application.

Applicant’s submissions

7 The applicant submitted that I have made partial, biased, inappropriate, unprofessional, irresponsible and ignorant decisions in determining his matters at the Tribunal, and that this has encouraged the respondent to continue its conduct in dealing with his FOI applications. The Department had created a red folder in breach of its own case management policy; a number of documents were missing and tampered with; when the Department responded to the direction that they search for the documents they claimed they did not exist. His intention at the time was to take his complaint about systemic corrupt conduct to the Independent Commission Against Corruption and the Ombudsman, and my decisions in his matters have been detrimental to this. Because of my decisions he has received responses to other FOI requests that continue the unlawful and corrupt conduct.

Respondent's submissions

8 In written submissions the respondent submitted that the matters raised in the applicant’s letter of 8 November 2008 do not disclose any bias, actual or apprehended, and that the applicant is merely dissatisfied with views that are contrary to his expressed in previous decisions.

9 In oral submissions the respondent relied on previous decisions of the Tribunal, namely Macquarie University v Howell (GD) [2008] NSWADT 46; McGuirk v Attorney General of New South Wales [2008] NSWADTAP 39; and the High Court decision in Ebner v Official Trustee in Bankruptcy [2000] HCA 63. The respondent submitted that a decision maker should not disqualify themself too readily, and that prejudgement must be firmly established, relying on Re JRL; ex parte CJL (1986) 161 CLR 342. The test for actual bias is that the decision-maker’s mind is made up and not open to persuasion, and this is concerns a state of mind and not the decision-making process. The respondent submitted that it is not sufficient for a decision-maker to express adverse views. The directions made on 28 October 2008 were part of active case management; the applicant’s preference for oral submissions does not go to the conduct of the matters. The applicant disagrees with previous decisions, and that is not the test for disqualifying bias.

Applicant’s submissions in reply

10 The applicant opposed my taking into consideration the respondent’s submissions based on previous authorities of the High Court and the Tribunal, on the basis that he does not have access to a law library and is in a difficult position if he wants to do research on legal matters. The applicant submitted that having raised the application for disqualification it would be unfair for me to continue in the proceedings.

Consideration

11 The general principles applicable to consideration of whether actual or apprehended bias are established are considered in the decision in Dezfouli v Justice Health [2009] NSWADT 80, and the Appeal Panel decision in Dezfouli v Justice Health [2008] NSWADTAP 72, at [29]. Actual bias is established where a decision-maker is shown to have been committed to a particular conclusion and has a closed mind to the issues raised. Apprehended bias is established where a fair minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issues to be determined. The applicant’s dissatisfaction with my previous decisions is not sufficient to establish either that I am unable to bring an open mind to the determination of the issues raised in these matters, or that a fair minded observer would reasonably apprehend that I might not do so. As noted in noted by the Appeal Panel in Dezfouli v Justice Health [2008] NSWADTAP 72 at [30], a Tribunal member must approach each matter before him or her with an impartial and open mind and make a determination on the evidence having given the parties a proper opportunity to present their case including providing relevant evidence and making submissions. While matter 083043 raises issues similar to those previously considered in Dezfouli v Department of Corrective Services [2007] NSWADT 25, Dezfouli v Justice Health [2006] NSWADT 274 and Dezfouli v Justice Health [2008] NSWADT 175, I do not consider that there is anything in my conduct of the proceedings in this matter so far that establishes actual bias or that a fair-minded person would reasonably apprehend that I would not bring an impartial and open mind to the issues to be determined.

12 The application that I disqualify myself from these matters is refused. In matters 073242 and 083008 the decisions are reserved, and now that the Appeal Panel has delivered its decision in Dezfouli v Justice Health [2008] NSWADTAP 175, should be finalised. Matter 083202 has not progressed further than an initial planning meeting, and should be listed for a planning meeting to discuss further progress.

Orders

1. Application to disqualify refused.

2. Matter 083202 is to be listed for a planning meeting on Tuesday 12 May 2009 at 12.30pm.