FFP v Cumberland City Council - [2022] NSWCATAD 136

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:
Civil and Administrative Tribunal Act 2013
Privacy and Personal Information Protection Act 1998

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

The Applicant has made application that I disqualify myself from further dealing with this proceeding (the Application).

Background

The substantive proceedings were set down for final hearing on 23 February 2022.
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.
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.
The hearing remains part-heard and was adjourned following the Applicant’s failure to appear after the luncheon adjournment.
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.

The Respondent consented to this course and available dates where taken.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWCATAD 136
Decision Date: 28 April 2022

CaseChat Overview and Summary

The case of FFP v Cumberland City Council involves the applicant, FFP, seeking the recusal of the judge on the basis of alleged bias. The dispute also includes claims related to procedural fairness and an application for costs. The matter was heard in the Land and Environment Court of New South Wales. The applicant argued that the judge had shown bias in a previous hearing, which necessitated the judge's recusal from further involvement in the case. Additionally, the applicant raised issues of procedural fairness and sought an order for costs.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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:	Civil and Administrative Tribunal Act 2013 Privacy and Personal Information Protection Act 1998
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”