Frost v TAFE NSW

Case •

[2020] NSWCATAD 3

•

06 January 2020

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Frost v TAFE NSW [2020] NSWCATAD 3
Hearing dates: 31 October, 2019, 1 November 2019
Date of orders: 01 November 2019
Decision date: 06 January 2020
Jurisdiction:Administrative and Equal Opportunity Division
Before: M. Tibbey, Senior Member
M. Murray, General Member
Decision:

Application for recusal is dismissed.

Catchwords: Practice and procedure – recusal.
Legislation Cited: Anti-Discrimination Act, 1977 (NSW), ss4, 20C, 108.
Cases Cited: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCAQ 17; (2001) 205 CLR 507
SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Texts Cited: Nil
Category:Procedural and other rulings
Parties: Julie Frost (Applicant)
TAFE NSW (Respondent)
Representation: Self-represented (Applicant)
M Lee (Counsel for Respondent)
Minter Ellison (Solicitors for Respondent)
File Number(s): 2018/0016129
Publication restriction: Nil

REASONS FOR DECISION

  1. The hearing of this matter took place at Newcastle on 31 October 2019 and 1 November 2019. The applicant presented her case and the respondent commenced its case. The applicant commenced cross-examining the witnesses of the respondent on the first day of the hearing.

  2. On the second day of the hearing, the applicant continued cross-examining the witnesses of the respondent. During the cross examination, she orally applied for the two Tribunal members hearing the matter to recuse themselves.

  3. The grounds upon which she relied (as summarised by the Members) appeared to be that the Members were either actually biased or there was a reasonable apprehension of bias and/or that the applicant was being harassed or bullied.

  4. The Members considered the application and announced their decision not to recuse themselves, but for the hearing to continue.

  5. The hearing continued, with the applicant stating that she did not wish to further cross- examine any of the witnesses of the respondent. Accordingly, Directions were made for the filing of written submissions.

  6. Reasons for the decision of the Members to dismiss the recusal application are set out below.

  7. The practice and procedure to be followed by the Tribunal is set out in the Civil and Administrative Tribunal Act, 2013 (NSW) (hereafter ‘the Act’). Section 36(1) of the Act sets out the “guiding principle” of the Tribunal to “facilitate the just, quick and cheap resolution of the real issues in the proceedings.” In doing so, the Tribunal may determine its own procedure in relation to any matter for which the Act or the procedural rules do not otherwise make provision.

  8. Section 38(5)(a) states that the Tribunal is to take such measures as are reasonably practicable to ensure that the parties to the proceedings understand the nature of the proceedings.

  9. Section 38(6) requires the Tribunal to “ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine the relevant facts in issue in any proceedings”.

  10. In this case, in cross examination, some of the questions of the applicant were compound questions, or used double negatives or may otherwise have been confusing to the witness being cross examined. In some cases the Tribunal invited the applicant to break her compound question into smaller “units,” to re-phrase the question without using a double negative or to otherwise make clear or clearer what the witness was being asked.

  11. In doing so, the Tribunal was required to ensure that the evidence provided would be relevant evidence that would assist the Tribunal to determine the matters in issue in the proceeding, as required by Section 38(6) of the Act.

  12. At no time during the hearing did the Tribunal Members indicate that we had closed our minds to argument in support of Ms Frost’s position. Had we done so, that would constitute actual bias that would require recusal (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCAQ 17; (2001) 205 CLR 507 at [71] – [72]; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15]). At all times we remained open to argument from both parties.

  13. Nor was there any evidence upon which a fair minded lay observer might reasonably apprehend that the Members might not bring an impartial and unprejudiced mind to the resolution of the question that they are required to decide. That is the test for apprehended bias set out by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]. It has not been met in this case.

  14. When the applicant made her application for recusal, she also complained that she was being bullied or harassed (to summarise her words). It was unclear whether the applicant advanced this as an argument for recusal, but the argument has been considered on the basis that it formed part of her application for recusal.

  15. The Members are not satisfied on the evidence that this claim of being bullied or harassed is well founded. It is not appropriate for the Tribunal Members to recuse themselves on this basis.

  16. As there is no basis for recusal, the determination of the issues in dispute should proceed. A timetable has been set for the filing of written submissions by both parties.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 06 January 2020

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