Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: FFP v Cumberland City Council [2022] NSWCATAD 136 Hearing dates: On the papers Date of orders: 28 April 2022 Decision date: 28 April 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: J D Little, Senior Member Decision: 1. The Applicant's application that I disqualify myself from further dealing with his application is refused.
2. In respect of the part-heard final hearing of the substantive proceedings, within 28 days of this decision, the parties to file and serve any additional written submissions upon which that party wishes to rely.
Catchwords: BIAS – recusal – procedural fairness - costs
Legislation Cited: Cases Cited: Bienstein v Bienstein (2003) 195 ALR 225
CEU v University of Technology Sydney [2017] NSWCATAD 280
Charisteas v Charisteas [2021] HCA 29
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488
KT v Sydney Local Health Network [2011] NSWADT 171
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v CQZ15 [2021] FCAFC 24
Category: Procedural rulings Parties: FFP (Applicant)
Cumberland Council (Respondent)Representation: Self-represented (Applicant)
Storey & Gough Lawyers (Respondent)
File Number(s): 2021/289766 Publication restriction: The publication or broadcast of the name of the applicant is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013. The applicant is to be known by the pseudonym “FFP”
REASONS FOR DECISION
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The Applicant has made application that I disqualify myself from further dealing with this proceeding (the Application).
Background
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The substantive proceedings were set down for final hearing on 23 February 2022.
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The proceedings relate to the Applicant’s application to the Tribunal pursuant to the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) for an administrative review of certain conduct of the Respondent which had been the subject of an Applicant’s request for an internal review by the Respondent.
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On 23 February 2022, I heard the parties opening oral submissions, dealt with the tender of documentary evidence, and heard part of the Applicant’s cross-examination of the Respondent’s only witness.
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The hearing remains part-heard and was adjourned following the Applicant’s failure to appear after the luncheon adjournment.
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Given the non-appearance of the Applicant, I indicated to the Respondent that I proposed to adjourn the proceedings and provide the Applicant with two options being:
that the parties have an opportunity to file and serve any further written submissions and the application be decided based on the written evidence and submissions as well as the oral evidence and submissions made at the part-heard hearing; or
that the matter be set down for a further day.
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The Respondent consented to this course and available dates where taken.
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By way of correspondence, the Tribunal gave the Applicant the two alternatives described above. By way of subsequent correspondence, the Applicant indicated that he was available for a telephone hearing on…
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- Case
- [2022] NSWCATAD 136
- Decision Date
CaseChat Overview and Summary
The court considered whether there were grounds to disqualify the judge due to perceived bias. This involved an assessment of the judge's conduct and statements during earlier proceedings to determine if they demonstrated an irrefragable bias. The court also examined the applicant's claims of procedural unfairness and evaluated whether these claims warranted any remedial action. The court's decision on costs hinged on the merits of the applicant's arguments regarding bias and procedural fairness, and whether these warranted an order for costs against the respondent.
The court found that there was no basis for the judge's recusal, as the conduct and statements of the judge did not reflect an irrefragable bias. The court held that the applicant's concerns about bias were not substantiated and that the judge could fairly continue to preside over the case. Regarding procedural fairness, the court determined that there were no procedural defects that necessitated any special remedy. As for the application for costs, the court ruled that the applicant's claims were not sufficiently compelling to warrant an order for costs against the respondent. Consequently, the court refused the application for recusal and did not make any order for costs.
Orders
Orders of the court
1. The Applicant's application that I disqualify myself from further dealing with his application is refused.
2. In respect of the part-heard final hearing of the substantive proceedings, within 28 days of this decision, the parties to file and serve any additional written submissions upon which that party wishes to rely.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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