Dezfouli v Justice Health

[2009] NSWADT 80

CITATION:	Dezfouli v Justice Health [2009] NSWADT 80
DIVISION:	General Division
PARTIES:	APPLICANT Saeed Dezfouli RESPONDENT Justice Health
FILE NUMBER:	083188, 083043
HEARING DATES:	10 February 2009
SUBMISSIONS CLOSED:	10 February 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:	Administrative Decisions Tribunal v Director General Department of Commerce [2008] NSWCA 140 Attorney-General (NSW) v Klewer [2003] NSWCA 295 Dezfouli v Department of Corrective Services [2007] NSWADT25 Dezfouli v Justice Health [2006] NSWADT 274 Dezfouli v Justice Health [2007] NSWADT 262 Dezfouli v Justice Health [2008] NSWADT 175 Dezfouli v Justice Health [2008] NSWADTAP 72 Ebner v Official Trustee in Bankruptcy [2000] HCA 63 Re JRL; ex parte CJL (1986) 161 CLR 34 Johnson v Johnson [2000] HCA 48 Macquarie University v Howell [2008] NSWADTAP 46 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
REPRESENTATION:	APPLICANT In person RESPONDENT G Singh (083043) A Baril (083188)
ORDERS:	1. Application to disqualify refused 2. Both matters are to be listed for a planning meeting on Tuesday 12 May at 11.45am.

Background

1 In these two matters Mr Saeed Dezfouli (“the applicant”) has applied for review of determinations made by Justice Health (“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 matter 083043, the applicant by application dated 18 October 2007 requested access to “entire medical records from 1/1/06 to 10/7/06 and 1/1/07 to present”. In matter 083188 the applicant by application dated 8 April 2008 requested access to “every document in my medical files from the beginning to 30/6/02, and from 1/10/07 to present”. The applicant argues that not all documents that should be on his files have been located and considered as part of his requests for access, and that the determinations of the respondent to refuse access to documents and to provide access to some documents with deletions on the basis that parts or the whole are exempt under one or more of the exemptions contained in Schedule 1 to the FOI Act are incorrect.

2 I have 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. I have also 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 currently have before me three applications made by the applicant for review of determinations of the Department of Corrective Services in response to requests for access under the FOI Act, matters 073242, 083008 and 083202.

3 Matter 083043 raises issues similar to those raised in Dezfouli v Justice Health [2006] NSWADT 274, Dezfouli v Justice Health [2008] NSWADT 175, and Dezfouli v Department of Corrective Services [2007] NSWADT 25, 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. In this matter the applicant also raised the issue of whether the respondent had identified all the documents that should have been on his files. During the course of discussions in planning meetings, the Court of Appeal delivered its decision on the Tribunal’s jurisdiction to review where an applicant contends that an agency has not undertaken a sufficient search for documents: Administrative Decisions Tribunal v Director General, Department of Commerce [2008] NSWCA 140. The Tribunal staff forwarded a copy of this decision to the applicant. The matter was adjourned for a planning meeting on 16 September 2008. The applicant was not available for the planning meeting scheduled for 16 September 2008, and the matter was adjourned for a planning meeting on 17 December 2008.

4 On 20 June 2008 the applicant appealed the decision in Dezfouli v Justice Health [2008] NSWADT 175 to the Appeal Panel. 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: Dezfouli v Justice Health [2008] NSWADTAP 72.

5 Matter 083188 has proceeded on a different basis. While the applicant’s initial request for access was similar to those in previous applications, the respondent’s case is based on the argument that it has instituted a practice of allowing the applicant to attend a meeting each month, and have access to his files, and that s25(1)(b1) of the FOI Act applies. Subsection 25(1)(b1) provides:

25 Refusal of access

(1) An agency may refuse access to a document:

...

(b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency’s policies and practices, or

...

6 The applicant has several objections to the arrangement relied upon by the respondent, including how he was treated at the meeting held in June 2007, the respondent’s requirement that he pay 20cents a page for photocopying, and that documents are missing from his files. At a planning meeting on 5 August 2008 I made directions for the filing and serving of written submissions and witness statements, and the matter was adjourned for a further planning meeting on 28 October 2008. The respondent’s submissions filed on 4 September 208 include submissions on s25(1)(b1), including discussion of the interpretation of this provision by the Tribunal and in other jurisdictions. The respondent provided witness statements by two of its officers, providing a copy to the applicant in which identifying information was deleted. In his written submissions in response to the respondent’s submissions, the applicant stated that he wished to have witness “A” who had provided a witness statement available for cross examination. The applicant stated that “A” has provided “false, fabricated and misleading information” to the Tribunal, and requested a copy of the confidential witness statement lodged with the Tribunal. The applicant provided submissions in support of his argument that the monthly meeting is required in accordance with the NSW Health Privacy Manual and was directed by the NSW Ombudsman. The applicant also outlined his objections to the way in which the meetings were conducted in May and June 2007 and why he has refused to attend meetings since. The applicant also noted that he had not received a copy of the witness statement provided by witness “B”.

7 The applicant could not be contacted at the planning meeting scheduled for 28 October 2008. The respondent’s representative attended and stated that she had forwarded a copy of the witness statement by “B” to the applicant. In order to progress the matter, I made the following directions:

1.Applicant to provide by 28 November 2008 any written submissions in response to the witness statement of “B”, and submissions in support of his request to have either witness available for cross examination on the issue of whether the respondent’s monthly meetings fall within s25(1)(b1) of the FOI Act;

2.Justice Health is to provide written submissions in reply by 12 December 2008;

3.If appropriate in accordance with s76, the issue of whether s25(1)(b1) applies is to be determined on the papers; otherwise a further planning meeting will be scheduled.

8 On 8 November 2008 the applicant wrote a letter to the Registrar requesting that I disqualify myself from further conduct of this matter “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 20 January 2009 to enable the applicant to make oral submissions in support of his application.

9 The applicant was not available on 20 January 2009 and the hearing was adjourned to 10 February 2009. The applicant made oral submissions in support of his application that I disqualify myself from further conduct of matters 083188 and 083043. The respondent was represented by Mr Singh in matter 083043 and by Mr Baril in matter 083188. Both made submissions in reply, and the applicant responded.

Applicant’s submissions

10 The applicant's submissions related to his dissatisfaction as to the way in which I had handled his matters involving Justice Health and the Department of Corrective Services, to specific concerns with my decision in Dezfouli v Justice Health [2008] NSWADT 175, and to the directions made on 28 October 2008.

11 The applicant stated that his dissatisfaction with my performance was triggered by the decision in matters 073150 and 07363 (Dezfouli v Justice Health [2008] NSWADT 175). The applicant submitted that paragraph [7] indicated a lack of awareness of the Ombudsman Act, in particular sections 13AA, 13, 26, 27 and 28, because the Ombudsman did not have the legislative power to come up with conclusions, recommendations or arrangements. Under section 15 of the Privacy and Personal Information Protection Act 1998 an agency is required to allow amendments and deletions to documents. The arrangements made by the Ombudsman put him in an awkward and difficult position as the Ombudsman has a duty to investigate but no power to dictate agency procedure. The reference to this arrangement in paragraph [7] was unlawful and inappropriate. The applicant also relied on the provisions of the Health Records and Information Privacy Act 2000 and the Privacy Act in support of his argument that the conduct of the Ombudsman was unlawful. The applicant submitted that paragraph [13] of that decision, referring to the parties’ agreement that the matter be determined on the papers, and stated that it is difficult for him to prepare written submissions because he does not have access to a typewriter and he is challenging the experienced lawyers of Justice Health. He has no legal background and does not have access to a legal library. The applicant objected to copies of documents, including open and confidential submissions, being provided to the tribunal on a confidential basis. The applicant stated that the witness statement of “AB” had to have been prepared with the assistance of a lawyer. The applicant referred to paragraph [26], stating that he has a legal right of access to documents under section 5 of the FOI Act, and this is supported by sections 8-21 of the Privacy and Personal Information Protection Act and the Health Privacy Principles 1-11. The applicant submitted that the discussion of the term “medical records” in paragraph [28] did not have regard to the requirements of the Privacy and Personal Information Act and the Health Records and Privacy Act. In relation to paragraph [50], the statement concerning document D is incorrect as the Department of Corrective Services gave the document illegally to Justice Health. The reference in paragraph [53] to the definition of the objects of the FOI in section 5 indicated a lack of awareness of the provisions in eh Privacy and personal Information Act and the Health records Act. The applicant submitted that the other determinations and findings made had accepted the confidential statements made by staff of Justice Health which were inaccurate, out of date, false, misleading and fabricated. It had been too late to cross examine “AB”.

12 The applicant concluded that the making of directions at a planning meeting on 28 October 2008 in his absence indicated that I was not qualified to be a judicial member of the Tribunal.

13 In submissions in reply to those made by Mr Singh, the applicant submitted that the submissions of Justice Health were in breach of s5 of the FOI Act. The Privacy and Personal Information Act and the Health Records Act could have been used, and require government agencies to be transparent and lawful. In reply to the submissions made by Mr Baril, the applicant stated that he needed more time to establish his points. He believes that after his application for disqualification he would not feel comfortable and the interests of justice would not be served by my continuing to handle his matters. The majority of Justice Health staff are behaving unlawfully in violation of the Privacy and Personal Information Act, the Health Records Act and the NSW Health Services Act. He wants to be able to convince a judicial member that what is going on is serious misconduct, so he can take it to the Independent Commission against Corruption and the Ombudsman.

Respondent's submissions

14 Mr Baril represented the respondent in matter 083188. In his written submissions filed on 22 December 2008 he outlined the principles for disqualification on the basis of a reasonable apprehension of bias as provided in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, Re JRL; ex parte CJL (1986) 161 CLR 34, and Attorney General for NSW v Klewer [2003] NSWCA 295. Mr Baril submitted that the decision in Klewer requires an applicant to firmly establish his case and demonstrate on “strong grounds” that there is a high probability that the decision maker will not approach the hearing fairly, and that this has not been established. To the extent that the planning meeting proceeded in the absence of the applicant when he was not reachable by telephone, that was a proper engagement in active case management.

15 In oral submissions Mr Baril relied on the High Court decision in Ebner for the test for reasonable apprehension of bias. There needs to be a high probability on strong grounds that the decision maker will not approach the matter fairly. It is a high test because decision makers should not recuse themselves too readily as this leaves open the possibility of “forum shopping”. The directions made on 28 October 2008 were ordinary and allowed the applicant to make submissions. This did not amount to bias but was active case management to enable the mater to proceed as quickly as possible. Even if there had been some procedural unfairness the applicant was not denied the opportunity to present his case.

16 Mr Singh represented the respondent in matter 083043, and relied on the written submissions filed in matter 083188. In oral submissions Mr Singh submitted that the allegation of bias in the determination of matters 073150 and 073263 had already been challenged in the Appeal Panel, and the Appeal Panel had dismissed that ground and refused leave to extend the appeal to the merits. The issues raised by the applicant from the Privacy and Personal Information Act and Health Records Act were not relevant to these proceedings which have at all times been under the FOI Act.

Consideration

17 The principles for establishing actual or apprehended bias are clear. Actual bias is established where it is shown that a decision-maker’s state of mind “is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 532. The test for apprehended bias is that a fair-minded observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63.

18 The High Court has held that a decision maker should not be too ready to agree to a request by a party that he or she disqualify themselves. In Re JRL; ex parte CJL (1986) 161 CLR 342 Mason J said:

The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues ( Reg. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, at pp 258-263; Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294). This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. 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 and 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 out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established" (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). 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.

19 The applicant has pointed to his dissatisfaction with a number of findings, statements and determination in previous matters involving him, in particular Dezfouli v Justice Health [2008] NSWADT 175. As submitted by Mr Singh, the applicant availed himself of his right to challenge those findings and determinations in the Appeal Panel. The Appeal Panel did not find any of the grounds of appeal established, and in particular concluded (at [31]) that there was no evidence to support a claim of actual bias or apprehended bias in the statement of reasons. In Macquarie University v Howell (GD) [2008] NSWADTAP 46 the Appeal Panel noted that it is not unusual in the Tribunal for there to be a series of FOI applications relating to essentially the one broad set of administrative circumstances, and commented (at [127]):

In our view it is desirable that benches that are familiar with what may be complex sets of circumstances are retained as the hearing bench.

20 This general proposition is always subject to the requirement, noted by the Appeal Panel in Dezfouli v Justice Health [2008] NSWADTAP 72 at [30], that the Tribunal member 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 Justice Health [2006] NSWADT 274, Dezfouli v Justice Health [2008] NSWADT 175, and Dezfouli v Department of Corrective Services [2007] NSWADT 25, 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.

21 As noted above, matter 083188 raises a different issue, and here the applicant’s concern is both with my general performance of the duties of a Judicial member of the Tribunal, and with the conduct of a planning meeting and directions made on 28 October 2008. The respondent referred to what was described as “active case management”, referring to statements made by the High Court in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13]:

“Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. … At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.”

22 The need for active case management is even more relevant in this Tribunal, where s73 of the Administrative Decisions Tribunal Act 1997 provides the following directions to the Tribunal as to how it is to conduct proceedings:

(5) The Tribunal:

(a) is to act as quickly as is practicable, and

(b) 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, and

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

(e) may require a document to be served outside the State, and

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

(g) may dismiss at any stage any proceedings before it in any of the following circumstances:

(i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate,

(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings,

(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and

(h) may reinstate proceedings that have been dismissed because of an applicant’s failure to appear if the Tribunal considers that there is a reasonable explanation for that failure.

23 Progress of the applicant’s several matters before me has not always proceeded as expeditiously as anticipated or desirable. At different times in each of the matters it has not been possible to proceed with scheduled planning meetings because the applicant was not available by telephone as requested. That was also the case with the first date set for hearing of this application for disqualification. The proceedings in Dezfouli v Department of Corrective Services [2007] NSWADT 25 were delayed by the need to arrange a video conference facility for the hearing. Directions requiring the filing and serving of written submissions by the applicant have taken account of routine delays in his receiving correspondence and the time needed for him to prepare his written submissions. The decision to proceed on 28 October 2008 to make directions to further progress the consideration of the issues raised in matter 083188 was made in the context of the need to meet the requirements of s73(5)(a), (b) and (c). I am not persuaded that this decision establishes that I am actually biased or that a fair minded observer would reasonably apprehend that I would not bring an open and impartial mind and decide the application for review fairly and impartially.

24 The applicant submitted that the fact of his having made this application for disqualification meant that it would not be in the interests of justice for me to continue to handle these matters. As the High Court noted in Re JRL; ex parte CJL, there are dangers for the administration of justice if decision-makers disqualify themselves too readily, and decision-makers are expected to be robust in continuing to perform their duties. I am not persuaded that the appropriate course is for me to disqualify myself.

Order

1. Application refused.

2. Both matters are to be listed for a planning meeting on Tuesday 12 May at 11.45am.