Dudzinski and Secretary, Department of Employment and Workplace Relations and Anor
[2006] AATA 523
•16 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 523
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/650
GENERAL ADMINISTRATIVE DIVISION ) Re ANNA DUDZINSKI Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
1st Respondent
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
2nd Respondent
DECISION
Tribunal Ms M J Carstairs, Member
Dr M L Denovan, MemberDate16 June 2006
PlaceBrisbane
Decision The objection to the constitution of this Tribunal is refused.
[Sgd] MJ Carstairs
Member
Re Seven Network Limited v Another (2004) 182 FLR
Expectation Pty Ltd v PRD Reality Pty Ltd (No.2) – [2006] FCA 392
Re JRL Ex Parte CJL (1986) 161 CLR 342
Ebner v Official Trustee in Bankruptcy (2000) CLR 337
Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416
Johnson v Johnson (2000) 201 CLR 488
Re Refugee Tribunal; ex parte H (2002) 179 ALR 425SCAA v Minister for Immigration and Indigenous Affairs [2002] FCA 668
REASONS REFUSING TO DISQUALIFY
16 June 2006 Ms M J Carstairs, Member
Dr M L Denovan, Member
1. When this matter came on for hearing on the 19 April 2006, Mr W Dudzinski, who represents his wife in this application to the Tribunal, made two objections to the constitution of the Tribunal.
2. The first objection - to Member Denovan - was based on what Mr Dudzinski identified as the unacceptable appearance of bias as well as possible actual bias. There were three matters to which he referred:
(a)her concurrent part-time appointments to both the Social Security Appeal Tribunal (SSAT) and the Administrative Appeals Tribunal (AAT);
(b)she was a member of the medical profession; and
(c)she was a graduate of Griffith University in Queensland.
3. With regard to the first, Mr Dudzinski submitted that Member Denovan held concurrent part-time appointments to the SSAT and the AAT. Mr Dudzinski submitted that the decision of the SSAT in September 2005 was infected by bias, and although Member Denovan did not sit on Mrs Dudzinski’s application, the effects extended to all members of the Social Security Appeals Tribunal.
4. Mr Dudzinski did not elaborate upon the grounds for objecting to Member Denovan being a member of the medical profession. The ground for objecting in relation to her being a Griffith University graduate was that Mr Dudzinski was currently involved in litigation with Griffith University.
5. Member Denovan gave oral reasons for not disqualifying herself. Mr Dudzinski has now asked for written reasons. These written reasons are based upon the transcript of the hearing. No changes of substance are made to the reasons as stated.
6. Mr Dudzinski also objected to Member Carstairs. Mr Dudzinski submitted that her conduct, including her earlier refusal to issue summonses constituted the appearance of unacceptable and ostensible bias. He said that it could be inferred that she was biased and had already formed her conclusions.
7. In regard to the objections, the Tribunal was referred to a number of authorities including where an application such as this is made before a multi-person Tribunal. Those authorities included Re Seven Network Limited v Another (2004) 182 FLR at 169 Goldberg J, Expectation Pty Ltd v PRD Reality Pty Ltd (No.2) – [2006] FCA 392, Re JRL Ex Parte CJL (1986) 161 CLR 342, Ebner v Official Trustee in Bankruptcy (2000) CLR 337, Antoun v The Queen [2006] HCA 2 and Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416.
8. The Member of a multi-member panel against whom an allegation of bias is made must decide whether they should disqualify themselves from participating in the hearing. For that reason Member Denovan and Member Carstairs gave separate reasons for refusing to disqualify themselves. Those reasons were as now follows.
REASONS OF MEMBER DENOVAN
9. In regard to the objection to my presence on the Tribunal, I do not in fact hold concurrent part-time appointments to the Social Security Appeals Tribunal and Administrative Appeals Tribunal. During the course of this morning’s hearing it was explained to Mr Dudzinski that while the Press Release by the Commonwealth Attorney General at the time of my appointment to this Tribunal last year referred to my membership of the Social Security Appeals Tribunal, that information while true at the time, is not correct now. On being appointed to the Tribunal I resigned my position on the Social Security Appeals Tribunal and have had no association with the Social Security Appeals Tribunal since that time. During the term of my appointment to the Social Security Appeals Tribunal I was never involved with or heard any matter involving the current applicant, Mrs Dudzinski.
10. In response the second and third issues raised I refer to the principles applied in Johnson v Johnson (2000) 201 CLR 488 at 492 where the majority of the High Court said:
It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
11. I was appointed to the Tribunal on the basis of a number of qualifications, not only my medical qualifications. I am appointed to sit in a number of the Tribunal’s divisions, not limited to issues where medical expertise is required. I conclude that there can be no reasonable apprehension of bias amongst fair minded lay observers that my being medically qualified raises any issues of bias.
12. My association with Griffith University is limited to completing an undergraduate science degree there in the early 1980s. I have had no other association with Griffith University since that time. I certainly have had no involvement with any litigation that Mr Dudzinski has with Griffith University and I have had no connection with any other party who may be involved in that matter.
13. For these reasons I refuse Mr Dudzinski’s request.
REASONS OF MEMBER CARSTAIRS
14. In regard to the objection to my presence on the Tribunal, these were less clearly articulated but Mr Dudzinski did refer to my actions in refusing to issue certain summonses sought by Mr Dudzinski on behalf of Mrs Dudzinski. By letter dated 8 March 2006, Mr Dudzinski requested my reasons for refusing the summons. I supplied my written reasons on 16 March 2006.
15. I accept Mr McLeod’s submission, on behalf of the respondents that my refusal to issue summonses does not constitute grounds of bias either on the basis of a reasonable apprehension of bias, nor of actual bias. Mr Dudzinski, on behalf of Mrs Dudzinski, stated that he does not believe that I will apply the rule of law, and he does not believe that I would be impartial. I note that Mr Dudzinski, having been provided with my written reasons for refusing summonses, has taken that matter no further.
16. I am mindful that, as lay people, Mr and Mrs Dudzinski will sometimes apprehend that a view has been taken against them because a particular outcome has not gone their way, but this is not the test for bias. The test for reasonable apprehension of bias was recently reaffirmed by the High Court in Re Refugee Tribunal; ex parte H (2002) 179 ALR 425 at [27]. The test for apprehended bias in relation to proceedings is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of question to be decided. In Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352, Mason J said:
Although it is important that justice must be seen to be done, it's 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 the judge, that they will have their case tried by someone thought to be more likely to decide the case in their favour.
17. In Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416 at [9] the Court cited from the case of Johnson:
The High Court has stressed that the reasonableness of any complaint of apprehended bias is “to be considered in the context of judicial practice”
Thus, events occurring within the ordinary course of litigation will not give rise to an apprehension of bias. As the High Court has explained, 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 judgment, as inscrutable as a sphinx
As the case progresses, a judge may make rulings as need be, on adjournment applications, the admissibility of evidence, the amendment of pleadings, and the like. But the fact that the ruling may suit the immediate interests of one side rather than the other does not mean that the judge has formed any concluded view about the ultimate merits of the case.
18. My decisions about whether or not to issue summonses made earlier this year fall directly into this interlocutory category and Mr Dudzinski has not identified anything other than what are, for the most part, rulings that are commonplace in many proceedings.
19. The Federal Court in Spalla went on to say at [14];
The mere fact that a litigant does not gain rulings in his or her favour in the course of a trial does not reasonably create an apprehension of bias on the part of a fair-minded observer.
And at [17]:
That the judge has a duty to both the respondent and the applicant to ensure that the trial is conducted fairly and in as timely fashion as possible.
20. I also refer the Federal Court decision in SCAA v Minister for Immigration and Indigenous Affairs [2002] FCA 668 at [36];
Actual bias arises from pre-judgment and involves a state of mind by the decision-maker, while exercising decision-making power, that is so committed to a conclusion already formed, to be incapable of alteration whatever evidence or argument may be presented
21. I do not believe that I have formed any conclusions about any of the issues that fall to be resolved in the proceedings and although I am familiar with the documents I have no concluded views and wait the hearing of evidence.
22. In summary, Mr Dudzinski, has taken objection to a ruling against him along the way to this matter coming on for hearing, but it is necessary, for the proper conduct of matters, that issues be dealt with in the course of preparing for a hearing and, in this case, largely those interlocutory matters have fallen to me to decide. Bearing in mind the above cases and authorities, I do not consider that a fair-minded lay observer might reasonably apprehend, on the basis of what I have done so far, that I would not bring an impartial mind to the resolution of questions to be decided in these proceedings by reason of any of the matters that have been put to me by Mr Dudzinski on behalf of his wife Mrs Dudzinski. The objection to the constitution of this Tribunal is therefore refused.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, and Dr M L Denovan, Members
Signed: .....................................................................................
B. Hitchcock, Administrative AssistantDate/s of Hearing 19 April 2006
Date of Decision 16 June 2006
For the Applicant Mr W Dudsinski
Counsel for the Respondent Mr S McLeod
Solicitor for the Respondent Australian Government Solicitor
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