Health Care Complaints Commission v Wallach

[2004] NSWSC 927

CITATION:	Health Care Complaints Commission v Wallach and Ors [2004] NSWSC 927 revised - 19/10/2004
HEARING DATE(S):	23 September 2004
JUDGMENT DATE:	8 October 2004
JUDGMENT OF:	Barr J at 1
DECISION:	Summons dismissed.
CATCHWORDS:	Apprehended bias - first defendant a barrister and member of a professional tribunal - tribunal so constituted to hear and determine a case prosecuted by plaintiff - first defendant instructed as barrister for another defendant in another professional tribunal - plaintiff the prosecutor in both cases - whether reasonable apprehension of bias of first defendant.
PARTIES :	Health Care Complaints Commission v Irving Wallach in his capacity as Chairperson of the Nurses and Midwives Tribunal and Ors
FILE NUMBER(S):	SC 30074/04
COUNSEL:	Plaintiff:Dr J G Renwick P Singleton as amicus curiae
SOLICITORS:	Plaintiff: D Swain

- 17 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

GRAHAM BARR J

8 October 2004

30074/04 Health Care Complaints Commission v Irving
Wallach in his capacity as Chairperson of the
Nurses and Midwives Tribunal and Ors

JUDGMENT

The Statutory Framework

1 His Honour: There is a series of acts, including the Nurses and Midwives Act 1991(“The Nurses Act”) and the Psychologists Act 2001, whose objects include the protection of the health and safety of the public by providing means of ensuring that professional persons within their purview are fit to practise. The Acts provide for complaints against such persons to be received and considered and for disciplinary action to be taken where appropriate. By s8 Nurses Act there is a Nurses and Midwives Board. By s44 complaints may be made to the Board. By s45 the Board must refer any complaint to any one of a number of bodies set up under the act, including the Nurses and Midwives Tribunal (“the Tribunal”). Section 59 creates the Tribunal, which comprises a Chairperson or Deputy Chairperson, two nurses or midwives and one lay person. By s60 the Chairperson and a Deputy Chairperson must be a judge of the District Court or a legal practitioner of at least seven years’ standing. Section 61 requires the Tribunal to conduct an enquiry into any complaint referred to it. Unless the Tribunal otherwise directs, the hearing of the complaint is to be open to the public. The Tribunal is not bound by the rules of evidence and may inform itself as it thinks fit. It has power to summon witnesses to give evidence and produce documents. It must hear and determine matters before it as soon as practicable. By s62 the nurse or midwife concerned and the complainant are entitled to attend the hearing and be represented by a solicitor or barrister or other adviser. When a complaint is found proved, s64 empowers the Tribunal to take any of a number of measures, ranging from a caution to directing the removal of the person’s name from the Register or Roll of persons entitled to practise. By s66 the decision of the Chairperson on any question of law or procedure arising during an inquiry is the decision of the Tribunal for the purposes of the inquiry. In other respects a decision of at least three members of the Tribunal is the decision of the tribunal, but if two members support the decision and two oppose it the decision of the Chairperson is the decision of the Tribunal.

2 Under the Health Care Complaints Act 1993 the plaintiff, the Health Care Complaints Commission, is obliged to investigate and prosecute complaints against persons under a number of Acts, including the Nurses Act and the Psychologists Act.

3 When I began hearing the summons I ordered in accordance with the first prayer that the third defendant be known in these proceedings as “Mr GM” and that his name be not published. He was convicted of having committed one act of indecent assault of a female and two acts of attempting to have carnal knowledge of a female, contrary to ss72 and 76 Crimes Act. He is a nurse, subject to the provisions of the Nurses Act. A complaint has been made against him and the plaintiff is to prosecute it in the Nurses Tribunal. The complaint asserts that his conviction of the offences renders him unfit to practise and that he is not of good character. The first defendant is a barrister and Chairperson of the Nurses Tribunal. The second defendants are the other members of the Tribunal as it is constituted to hear and determine the complaint against the third defendant.

4 The Psychologists Act has provisions similar to those that I have summarised in the Nurses Act. It sets up the Psychologists Tribunal, which has obligations and powers like those of the Nurses Tribunal.

The Summons

5 On 19 July 2004 the plaintiff lodged with the Psychologists Registration Board complaints against Mr Alexander Mueller a psychologist provisionally registered under the Psychologists Act. He had previously been convicted of three counts of aggravated indecent assault of a certain female person under his authority. The plaintiff asserted that the conviction rendered him unfit to practise as a psychologist and that for the same reason he was not of good character. The plaintiff will prosecute that complaint in the Psychologists Tribunal. Mr Mueller engaged the first defendant to advise him and to appear for him to defend the case in the Psychologists Tribunal.

6 The officers of the plaintiff considered that the complaints against the third defendant and Mr Mueller were apt to raise like issues for determination and thought that if the first defendant was to put a case against the plaintiff’s assertions that Mr Mueller was unfit to practise and not of good character he might not judge impartially the same questions in the third defendant’s case. Accordingly, a solicitor acting for the plaintiff wrote a letter to the first defendant on 10 September 2004. At that stage the complaint against the third defendant was listed for hearing on Monday 13 September 2004. The letter was a follows, omitting formal parts –

We refer to the hearing of the above matter on Monday 13 September 2004 (“the Proceedings”).
It has recently come to our attention that you are briefed to appear as counsel for the respondent in separate proceedings brought by our client as prosecutor before the Psychologists Tribunal which are due to run concurrently with the proceedings. This is the matter of Mr A F Mueller.
In our view these circumstances give rise to a reasonable apprehension of bias on your part.
As you would be aware, in determining whether a decision maker is qualified by reason of an appearance of bias the question is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring am impartial and unprejudiced mind to the resolution of the question he or she is required to decide: Livesy v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; Ebner v Official Trustee (2000) 205 CLR 337 at [6]; Re Refugee Review Tribunal; ex Parte H(2001) 75 ALJR 982 at [27] - ]29]. The test is one of objective possibility, rather than probability, rather than probability, as to what will be done or what might have been done: Ex parte H at [28]-[29].
Your participation as an advocate against our client in separate, concurrent proceedings would in our view plainly fall within this test.
Should we be mistaken in our understanding of the facts, please let us know urgently and we will immediately withdraw this letter.

However, assuming our understanding is correct, we propose that the proper course is for the Tribunal to be reconstituted when it sits next Monday.
In the event this does not occur, we will be forced to make the appropriate application at the commencement of the Proceedings.
This letter has been copied to the legal representatives of the respondent.

7 The solicitor was unable to deliver the letter to the first defendant until 8am on 13 September. Later in the morning the complaint against the third defendant was called on for hearing. An application was made on behalf of the plaintiff that the first defendant disqualify himself on the ground of apprehended bias. Written and oral submissions were made. The third defendant neither supported or opposed the application. The first defendant declined to disqualify himself and the hearing was adjourned to the following day.

8 On 14 September further submissions were made on the behalf of the plaintiff but the position did not materially change. The hearing of the complaint against the third defendant was adjourned again.

9 By its summons filed on 14 September 2004 the plaintiff sought the following orders –

1 An order that Third Defendant be known in these proceedings as ‘Mr GM’, and that his name not be published.
2 A declaration that, in the events that have happened, there is a reasonable apprehension that the First Defendant is biased against the Plaintiff.
3 An order that the hearing between the Plaintiff an the Third Defendant before the Nurses and Midwives Tribunal not proceed whilesoever the First Defendant is both a member of the Tribunal in those proceedings and also holds a brief to advise concerning, and to appear against, the Plaintiff in the Psychologists Tribunal in the matter of Health Care Complaints Commission v Mueller.
4 An order prohibiting the First Defendant from hearing or determining any matter in the Nurses and Midwives Tribunal in which the Plaintiff is a party whilesoever he continues to hold a brief to advise concerning, and to appear against, the Plaintiff in the Psychologists Tribunal in the matter of Health Care Complaints Commission v Mueller.
5 Such further or other orders as the Court considers appropriate.
6 Costs

10 The first order has been made and the plaintiff no longer asks for any of orders 2, 5 and 6.

11 The first, second and third defendants have filed consenting appearances. The State of New South Wales was made fourth defendant in the summons as filed but has been let out. The Court acknowledges the assistance as amicus curiae of Mr Singleton of counsel, representing the Attorney General.

12 The first question that arises is whether the rule against bias applies. The rule arises as part of the requirement to afford natural justice or procedural fairness. Re Refugee Review Tribunal and Anor; Ex Parte H and Anor (2001) 179 ALR 425. It appears, I think, that the Tribunal is required by the terms of the Nurses Act to afford natural justice to the parties before it, including the plaintiff. I note that the Tribunal is in much the same position as a Court. It receives and considers complaints and has the power to make orders affecting the practice of nurses and midwives. Barristers and solicitors may appear before it. There are differences between it and a Court, for example in that the rules of evidence do not apply and that proceedings are not invariably open to the public, but I think that the differences are insignificant. For present purposes the Tribunal is indistinguishable from a Court. The rule against bias applies.

13 It is not asserted that the first defendant is actually biased.

Ostensible Bias

14 The test for ostensible bias was summarised by Mason, Murphy, Brennan, Deane and Dawson JJ in Livesey v New South Wales Bar Association (1983)151 CLR 288 at 293 – 294 in these terms -

The principle is that a Judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it…
If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party to do so on the ground of a possible appearance of pre-judgment or bias…

15 It is the parties or the public whose apprehension is relevant. An assessment has to be made of how the public or the parties would assess the circumstances. In Re Shaw; Ex parte Shaw (1980) 55 ALJR 12 Aikin J said at 14 -

The critical question…is not whether a judge believes whether he or she has prejudged a question, but whether that is what a party or the public might reasonably suspect had occurred .

16 What the public or the parties must entertain is a reasonable apprehension which is something less than a reasonable belief. The apprehension must not be fanciful or fantastic; Gascor v Elliot [1977] 1 VR 332 at 342. It must therefore be the apprehension of the notional reasonable person. The reasonable person is presumed to be willing to make at least some rudimentary enquiry into the facts and circumstances and is thus presumed to have a broad knowledge of the material objective facts. Raybos Australia Pty Limited v Tectran Corporation Pty Limited (No.9), Court of Appeal, New South Wales 27 November 1990 per Kirby P at 20; Webb v The Queen (1994) 181 CLR 41 per Deane J at 73.

17 It is sufficient that the public or the parties might reasonably apprehend that the judge might be biased. Thus the test twice speaks of possibility rather than likelihood. The question is not one of probability. Gascor v Elliot at 342; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345.

18 The apprehension must be of a prejudiced decision, not merely an adverse one. Re JRL; ex parte CJL (1986) 161 CLR 342 per Mason J at 352; Gascor v Elliot at 342. The apprehension may involve a fear that the official has already made up his or her own mind on the issues to be tried and is therefore not independent.

19 In order to establish bias it must be established not merely that the judge has formed views before the end of the case but also that those views are so strongly held that the Judge cannot be dissuaded from them whatever the evidence or submissions advanced. The Queen v CommonwealthConciliation andArbitration Commission; ex Parte Angliss Group (1969) 122 CLR 456; Singh v Minister for Immigration, Lockhart J, Federal Court of Australia, 18 October 1996; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 per Gaudron and McHugh JJ.

20 In Webb v The Queen at 74 Deane J listed four categories of cases where bias might appear. His Honour said this. I have omitted the footnotes -

The area covered by the doctrine of disqualification by reason the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap…the first and consists off cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third…and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.

21 Although his Honour’s analysis is not necessarily comprehensive, it is a convenient frame of reference: Ebner v Official Trustee in Bankruptcy at 349.

22 The civil standard applies to allegations of bias. The principle expounded in Briginshaw v Briginshaw (1938) 60 CLR 336 also applies. The Court must be actually or comfortably satisfied of the fact alleged and the more serious the allegation the more the evidence that will be required to give comfort. An allegation of bias must be “firmly established”: The Queen v Commonwealth Conciliation and Arbitration Commission; ex Parte AnglissGroup at 553.

23 In Ebner v Official Trustee in Bankruptcy the Justices of the High Court of Australia explained that the task of judging an application for the disqualification of an official on the ground of apprehended violence involves two steps -

First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest to a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from the impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed .

What is it that might lead the first defendant to decide the case between the plaintiff and the third defendant other than on its merits?

24 The circumstances relied on by the plaintiff are these -

1 The plaintiff is the statutory investigator and prosecutor of the third defendant in the Nurses Tribunal and of Mr Mueller in the Psychologists Tribunal.
2 In the case between the plaintiff and the third defendant, the first defendant will be the sole judge of the law and a judge of the facts. Questions of law or of mixed fact and law or of fact will arise for determination.
3 The first defendant is briefed to advise and appear as counsel for Mr Mueller against the plaintiff in the Psychologists Tribunal. He must there advance the interests of Mr Mueller diligently and bravely against those of the plaintiff.
4 The cases against the third defendant and Mr Mueller will raise the same issues for determination, namely whether the respondent in each case is unfit to practise and whether he is not of good character.
5 The conduct of the respondent relied on by the plaintiff is the same in each case, namely the commission of serious sexual offences leading to conviction.
6 The cases against the third defendant and Mr Mueller are to proceed concurrently.

25 It thus appears that the plaintiff asserts that bias arises from association, the third category in Webb v The Queen.

What is the connection between these circumstances and the feared deviation?

26 It was submitted on behalf of the plaintiff that, knowing that the plaintiff was the investigating and prosecuting authority before the Tribunals in the matters of the third defendant and Mr Mueller, that the first defendant was the judge of the law and the judge of the facts in the Nurses Tribunal and that significant questions would arise for determination and that the first defendant was obliged to advance Mr Mueller’s interests against the plaintiff’s, the fair-minded lay observer might reasonably apprehend that the first defendant might not bring an impartial mind to the matters he had to decide in judging the case between the plaintiff and the third defendant. The case was made stronger, it was submitted, because, even though the facts in the two cases might not be identical, they were similar, and the terms of the charge in each case were the same. It was submitted that whilever the first defendant simultaneously held the brief for Mr Mueller and sought to determine a case in which the plaintiff was a party there would be an apprehension of bias.

27 It was submitted that the apprehension of bias was self-evident. Reliance was placed on a statement of Lord Denning MR in Metropolitan Properties Company (FGC) Limited v Lannon and Ors [1969] 1 QB 577 at 600. In that case the Chairman of a Rent Committee was a solicitor who had acted against one of the parties before the Committee. The party was a landlord who owned the property whose fair rent the Committee was to decide as well as the property in which the Chairman and his father resided. His father was the tenant. The Chairman’s father was in dispute with the landlord about the rent and the Chairman had been advising him in that matter. The determination of the rent for the subject premises was likely to affect the rent for the Chairman’s father’s flat. The decision reached by the Committee was considered “startling” because it fixed a rent lower even than the tenants had been claiming. Lord Denning said this at 599 -

Ought (the Chairman) to have sat? I think not. If he was himself a tenant in difference with his landlord about the rent of his flat, he clearly ought not to sit on a case against the selfsame landlord, also about the rent of a flat, albeit another flat. In this case he was not a tenant, but a son of a tenant. But that makes no difference. No reasonable man would draw any distinction between him and his father, seeing as he was living with him and assisting him with his case.

28 That would have been sufficient to dispose of the case, but Lord Denning added these remarks obiter -

No man can be an advocate for or against a party in one proceeding, and at the same time sit as a judge of that party in another proceeding. Everyone would agree that a judge, or a barrister or solicitor (when he sits ad hoc as a member of a tribunal) should not sit on a case to which a near relative or a close friend is a party. So also a barrister or solicitor should not sit on a case to which one of his clients is a party. Nor on a case where he is already acting against one of the parties. Inevitably people would think he would be biased.

29 Although the remaining members of the Court were agreed on the result of the appeal, they did not concur with the latter remarks of his Lordship, and the difficulty is to know whether such a statement, which is not binding on this Court, ought to have effect in this case.

30 Two more cases were dealt with in detail in the hearing before me. In R v Cavit; ex Parte Rosenfield (1985) 33 NTR 29 the question was whether a Crown Prosecutor who was on leave from that position could act as a Magistrate to hear a criminal prosecution. The facts of the case illustrate well the necessary explanation of the connection between the circumstances and the apprehension of bias. Nader J said at 34 – 35 -

The question is what is the nature of [the acting magistrate’s] association with his old position, which can shortly and quite accurately be described as that of a Crown prosecutor. Whether regularly or irregularly he will be on leave from that office till 31 December 1985. Thereafter he can be expected to return from leave to being a Crown prosecutor. He can look forward to returning to a position in which he can legitimately hope for preferment: a position that is a transition stage on a career path. Not only is the [acting magistrate] in a situation where he has to concern himself with the duties of magisterial office but, as a prudent man, he ought also to concern himself with any effect his performance of those duties might have upon his career. After all, those magisterial duties are for him a mere brief interlude in a career of prosecuting extending back several years, due to be resumed at the end of December 1985 and to continue into the indefinite future…

The fact that the first respondent has been a Crown prosecutor does not affect his suitability to hear the case against the prosecutor. The suspicion of bias stems from the fact that his connection with that role has not been severed. It is because of his continued attachment to his office as Crown prosecutor that reasonable fair persons will suspect bias; and rightly so…at the risk of over simplifying, it is not the acting Magistrate’s past associations, as such, that give rise to the suspicion of lack of impartiality, but his perceived present and future associations and their possible influence on him…it would be making an altogether too fine distinction to see significance in the fact that prosecutors from the Magistrates Courts are police, while prosecutions in the Supreme Court proceed in the name of the Crown. They are difference legal entities, and, in some respects, the differences are material. However, for present purposes there are sufficient commonality between the activities of police prosecutors and Crown prosecutors to warrant their being regarded as a single broad entity. Indictable prosecutions commenced by the police are taken over by the crown. The police witnesses become Crown witnesses. The Crown is dependent upon successful police investigation and prosecution for its own prosecutions…in short, a desire not to displease those who might determine the course of the first respondent’s career would extend to not displeasing those in general, whose task it is to prosecute crime in the Northern Territory courts.

31 The third case referred to was Lawal v Northern Spirit Limited [2004] 1 All ER 187. The question was whether an Employment Appeal Tribunal was in breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The Tribunal was constituted by any one of a panel of barristers, who presided, and two lay persons, known as Wing Members. Although the case concerned the Convention, it was dealt with according to the rule against bias. The unfairness alleged was that one of the Counsel who appeared before the Tribunal was a part-time Judge who sat in the Tribunal and who had sat with one of the two Wing Members before whom he now appeared. Having had notice of the objection, however, the Tribunal reconstituted itself so that the barrister was no longer appearing before the Tribunal constituted by any Wing Member with whom he had sat. Even so, the reconstituted Tribunal expressed an opinion about the matter and that went on appeal to the Court of Appeal and to the House of Lords. The opinions of those Courts are really therefore to be seen as advisory.

32 The apprehension of bias asserted by the plaintiff in the present case seems to me to be far from self-evident. No authority cited establishes that there are grounds of automatic disqualification from hearing a case. It is always necessary to go back to the two-step process required by Ebner v Official Trustee in Bankruptcy. To that extent, at least, the broad statement of Lord Denning must give way.

33 There are several reasons why I think that no reasonable apprehension of bias arises in the present case. The first is that no inference is to be drawn from the mere acceptance by the first defendant of the brief to advise and appear for Mr Mueller. Barristers who practise in a field and are available, and subject to conditions that do not apply here, are obliged to accept briefs to advise and act in that field: see Rule 85 of the New South Wales Barristers’ Rules. So there can be no reasonable apprehension of predisposition to a particular view or result merely because a barrister accepts a brief. A barrister is obliged to do the best that can be done for the client. The barrister must not mislead the Court, of course, but may call any available evidence capable of bearing upon the issues to be determined and may put any submission which may properly be put. The views incorporated in a barrister's submissions do not have to be the views of the barrister. Barristers commonly espouse views on behalf of their clients which are not their own. Fair-minded lay observers are taken to know this. The position is different in an announcement by a Tribunal member about a statement of law or a finding of fact. That is more than an argument espousing a view not held by the speaker. It is a statement of a position arrived at after hearing evidence and arguments both ways.

34 It follows that even if the first defendant were to take a position in Mr Mueller’s case on a particular fact or series of facts, there would be no reasonable apprehension that he would take the same position on the same facts in adjudicating the case between the plaintiff and the third defendant.

35 It is important to observe, I think, that the party common to both cases, the plaintiff, is the prosecutor and not a defendant or respondent. In the ordinary course of events the plaintiff risks no adverse comment or submission from the first defendant in the case against Mr Mueller. The submissions are likely to be about the sufficiency of the evidence to establish the matters contended for by the plaintiff. In the same way, the enquiry in the case against the third defendant will not be about the plaintiff itself but about the sufficiency of its case. The plaintiff runs no risk of adverse comment or finding in that case either.

36 It would be different if the common party were the person against whom disciplinary proceedings were being brought. One might then more readily apply the principle stated by Lord Denning in Metropolitan Properties (FCG) v Lannon and Ors.

37 Cases based upon former associations between judges and parties, for example Re Polites and Anor; ex Parte and Hoyts Corporations Limited and Ors (1991) 173 CLR 78; S & M Motor Repairs Pty Limited v Caltex Oil (Aust) Pty Limited (1988) 12 NSWLR 358, show that when former obligations and connections are severed, no reasonable apprehension of bias arises. Where there is a continuing association or a continuing expectation of a future association, as in R v Cavit; ex Parte Rosenfield, there may be a reasonable apprehension of bias, but this is not a case like R v Cavit; ex Parte Rosenfield, where the acting Magistrate had a settled expectation of future benefit from one of the parties in the case before him.

38 As I have made clear, I do not take the view that a submission by the first defendant in the Mueller case to a particular effect based upon a particular fact gives rise to a reasonable apprehension that he would make an identical finding on the same fact in the case against the third defendant, but it is worth considering whether the two cases are at all alike. The issues for determination are the same in each case – fitness and good character – but although there is superficial similarity between the facts underlying the cases, there are significant differences.

39 The third defendant was convicted of assaulting the complainant and committing upon her an act of indecency when she was under sixteen years of age, and of two counts of attempting to have carnal knowledge of her when she was above the age of ten years and under the age of sixteen years. All the offences took place between 12 August 1972 and 13 October 1975, between twenty-nine and thirty-two years ago. The age of the third defendant during that period of time ranged from eighteen to twenty-two years. He is now almost fifty-one years old. No other misbehaviour will be put before the Tribunal relevant to his character.

40 The complaint against Mr Mueller depends on convictions for three counts of indecent assault which took place on 25 April 2001, when the complainant, a mildly autistic and schizophrenic young woman, was twenty-two years old and the offender was just short of his fiftieth birthday. The complainant resided in supported accommodation managed by an organisation that employed Mr Mueller. He was responsible for her care. He himself had been diagnosed as suffering from severe anxiety and obsessive-compulsive disorder. No other misbehaviour will be relied on by the plaintiff on the question of character or fitness.

41 The only other thing it is necessary to say about that case is that Mr Mueller has appealed to the Court of Criminal Appeal against the convictions. The appeal is due to be heard on 1 February 2005. The Psychologists Tribunal will hear the plaintiff’s case against him only if he is, and to the extent that he is, unsuccessful in the Court of Criminal Appeal.

42 It is to be expected that the third defendant, and if the case against him is heard, Mr Mueller, will adduce evidence to establish good character and fitness notwithstanding their convictions. The respective cases will obviously differ, and that by a possibly substantial degree. But even as things stand they are remarkably different. A consideration of the character and fitness of a person in his fifties who committed offences in non-professional circumstances thirty years ago is very different from that of a person of about the same age who committed offences three and a half years ago on a person for whose welfare he was professionally responsible. So the submission of a barrister in one case is no indicator of the possible view of the same person as Chairperson in the other.

43 The plaintiff has failed to demonstrate the existence of a logical connection between the association on which it relies and the bias it fears. I am not satisfied that any fair-minded member of the public might reasonably apprehend that the first defendant might not judge on their merits the issues arising between the plaintiff and the third defendant. The plaintiff, of course, has such an apprehension, but I am not satisfied that it is reasonable. It is therefore inappropriate to make the third order in the summons.

44 For the reasons which I have explained, no reasonable apprehension of bias arises merely because the first defendant concurrently holds a brief for a party opposed to the plaintiff, whether in the Nurses Tribunal or elsewhere. The plaintiff has failed to make out its case for the fourth order.

45 The summons is dismissed.

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Last Modified: 10/20/2004