FMQR and Chief Executive and Principal Registrar, High Court of Australia

[2021] AATA 5254

FMQR and Chief Executive and Principal Registrar, High Court of Australia [2021] AATA 5254 (22 December 2021)

Division:FREEDOM OF INFORMATION DIVISION

File Number(s):      2020/3887

Re:FMQR

APPLICANT

AndChief Executive and Principal Registrar, High Court of Australia

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:22 December 2021

Place:Sydney

I have determined that the correct and preferable decision is that I do not disqualify myself from this matter. As such, the application for recusal is refused.

...........................[sgd].............................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

APPLICATION FOR RECUSAL – on the basis that the decision-maker may have had previous contact with the Respondent – whether the doctrine of waiver applies – whether there is significant prejudice to the parties – application is refused.  

LEGISLATION

Freedom of Information Act 1985 (Cth)

CASES

Ebner v Official Trustee in Bankruptcy [2000] HCA 63

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

22 December 2021

INTRODUCTION

1. This matter was heard on 29 October 2021. At the time of the hearing, the issue of whether I should recuse myself was raised, along with the fact that the Respondent had written to the Applicant saying that they had no objection to me hearing the matter.

2. A subsequent interlocutory hearing on 24 November 2021 was held, primarily to determine whether the Applicant was able to narrow the range of documents to which [redacted] sought access under the Freedom of Information Act 1985 (Cth) (‘the Act’) and also to explore the issues more generally, [redacted].

3. At that time, the Applicant was also given an opportunity to canvas the issue of recusal, but did not make any request for me to do so. Subsequent to the interlocutory hearing, the Applicant wrote to the Tribunal requesting I recuse  myself, on the following broad grounds:

   (a)[redacted];

   (b)[redacted]; and

   (c)the concerns I had expressed at the previous interlocutory hearing as to the Act being used to interrogate another matter.

4. The Respondent made written submissions opposing the Applicant’s request on a number of bases; including that the Applicant had waived [redacted] right to such application at the previous interlocutory hearing, that there was prejudice to the Respondent if I were to recuse myself at this stage, and thirdly that none of the matters raised by the Applicant would meet the test for apprehended bias as set out by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at paragraph [6].

5. All of the above matters were canvassed by the Applicant and the Respondent at the second interlocutory hearing on 15 December 2021.

   DISCUSSION

6. [redacted].

7. [redacted].

8. [redacted].

9. With the respect to the Applicant, I do not accept the proposition that any decision-maker who has been a judge, or in particular a member of the Council of Chief Justices, would be unable to bring an impartial mind to the issue to be determined in this matter.

10. I also do not accept that any fair-minded lay observer, having respect for the fact that judicial members may come into contact with each other as a consequence of their profession, would necessarily gain a sense of apprehended bias from this. Consideration must also be given to the nature of that association.

11. The Respondent raised again the issue of the doctrine of waiver; however, I do not accept that the Applicant had waived [redacted] rights to the issue of recusal. In particular, I give weight to the fact that the Applicant is self-represented [redacted].

12. Recusal is not a matter to be taken lightly. In particular, the proper and efficient administration of justice depends on decision-makers disqualifying themselves only when there is clearly good reason to do so; in particular, when the fundamental principle as expounded in Ebner is met, in that a decision-maker is to be disqualified “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.” In this case, with the respect to the argument of the Applicant, I do not believe that test has been met. At the most recent interlocutory hearing, the Applicant [redacted] seemed to accept many of the points made by the Respondent with regards to the recusal application. That does not mean [redacted] concerns were not completely genuine, and I have always found the Applicant to be sincere and honest in [redacted] dealings with the Tribunal.

13. There is clearly prejudice to the parties if I were to recuse myself, given that the substantive matter has already been heard and that any witnesses would need to be available for and subjected to cross examination for a second time. There would be at least, for the Applicant, additional stress, and potential further costs and untimely delays for both parties. The Respondent has also noted that it is preferable for such recusal applications to be made at the earliest opportunity, and I am inclined to agree – however, I do give consideration to the fact that the Applicant is self-represented and that such a decision may have required further consideration on [redacted] part than for a legal practitioner.

    DECISION

14. For the reasons given above, I have determined that the correct and preferable decision is that I do not disqualify myself from this matter. As such, the application for recusal is refused.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.

............................[sgd]............................................

Associate

Dated: 22 December 2021

Date(s) of hearing:	29 October, 24 November, and 15 December 2021
Applicant:	Self-represented
Counsel for the Respondent:	Ms J. Davidson
Solicitors for the Respondent:	Australian Government Solicitors