Hojbota and Secretary, Department of Social Services (Social services second review)
[2018] AATA 3657
•28 September 2018
Hojbota and Secretary, Department of Social Services (Social services second review) [2018] AATA 3657 (28 September 2018)
Division:GENERAL DIVISION
File Number: 2018/0950
Re:Lenuta-Elvira Hojbota
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
File Number: 2018/0954
Re:Sababu Kaitilla
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:28 September 2018
Place:Brisbane
The Applicants’ application for recusal is refused.
..........................[sgd]..............................................
Senior Member Theodore Tavoularis
CATCHWORDS
PRACTICE AND PROCEDURE – recusal – where Applicants alleged actual or apprehended bias against the Member – who should determine whether the Member should be dismissed – the Member should determine whether they should recuse themselves – actual or apprehended bias – whether any ground of actual or apprehended bias can be made out against the Member – effect of previous statements of the law – conduct of telephone directions hearing – directions made – no actual or apprehended bias exists – the application for the Member to be recused is refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 21A (repealed)
Social Security Act 1991 (Cth), ss 1213, 1217, 1218AAA, 1218C
Tribunals Amalgamation Act 2015 (Cth), sch 1 s 27CASES
ALA15 v Minister for Immigration and Border Protection
[2016] FCAFC 30
Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 213 FCR 345, 121 ALD 242, 54 AAR 273, [2011] FCA 299
Barton v Walker [1979] 2 NSWLR 740
Callychurn and Australian Securities and Investments Commission(2015) 68 AAR 180, [2015] AATA 726
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Helljay Investments Pty Ltd v Deputy Commissioner of Taxation(1999) 166 ALR 302
Livesey v New South Wales Bar Association(1983) 151 CLR 288, 47 ALR 45
Mellor and Australian Postal Corporation(2010) 51 AAR 498, [2010] AATA 288
Minister for Immigration and Citizenship v SZQHI[2012] FCAFC 160
Minister for Immigration and Multicultural Affairs; Ex parte Jia(2001) 205 CLR 507
Noakes and Secretary, Department of Social Services[2018] AATA 1457
R v T, WA(2014) 118 SASR 382
Rogers v Wentworth[1998] NSWSC 1044
Sun v Minister for Immigration and Ethnic Affairs(1997) 151 ALR 505
SZRBA v Minister for Immigration and Border Protection[2014] FCAFC 81
Thomas and Secretary, Department of Defence[2018] AATA 604
Vietnam Veterans’ Association of Australia v Gallagher(1994) 52 FCR 34
Webb v The Queen(1994) 181 CLR 41
SECONDARY MATERIALS
Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co)
Matthew Groves, “The rule against bias” [2009] Monash University Law Research Series 10REASONS FOR DECISION
Senior Member Theodore Tavoularis
28 September 2018
INTRODUCTION: PROCEDURAL BACKGROUND
Dr Sababu Kaitilla and his wife, Ms Lenuta-Elvira Hojbota (“the Applicants”), have applications before the Tribunal regarding the portability of their Carer Payment and Disability Support Pension (“DSP”), respectively.
On 9 July 2018, the Applicants made the following statement:
·…reference to Noakes and SDSS ([2018] AATA 1457 at [37]-[39]) and with due respect to the member who reviewed it, is in this regard a poor reference for lack of relevant facts and applying the relevant rules or principles and citation.
·This is improper and at the worst can be perceived as “conflict of interest” on behalf of the Secretary to quote something reviewed by a member who is reviewing our application either the Secretary has prior knowledge knowing which member would be reviewing or has had input into rostering this member to review this case.
At the request of the Respondent, the Tribunal then held an urgent telephone directions hearing to discuss these allegations. At this telephone directions hearing, held on 11 July 2018, two classes of allegations were identified. First, the allegations explicitly stated in the second bullet point above and expanded orally at the telephone directions hearing, to the effect that the Respondent has acted with some impropriety in its interactions with the Applicants and the Tribunal, including by selecting the Member who would hear these matters. Secondly, allegations implied from the above statement to the effect that there is some actual or apprehended bias on the part of the Tribunal. The Tribunal made Directions that the Applicants should either withdraw each class of allegations or a further interlocutory hearing would be listed to discuss them in a more fulsome manner. After receiving submissions from the Applicants and the Respondent, the Tribunal also made Directions for the lodging of materials and the timetabling of these matters to hearing.
On 20 July 2018, the Applicants wrote to the Tribunal in compliance with the abovementioned Directions. They unreservedly withdrew the first class of allegations against the Respondent. However, they maintained and expanded upon the second class of allegations against the Tribunal. Accordingly, the Tribunal listed an interlocutory hearing for 14 August 2018 to discuss and determine whether or not I should recuse myself from hearing these matters.
These reasons explain why I have reached the conclusion that it would be inappropriate for me to recuse myself in these matters. I will expand on them below.
As a preliminary matter, I note that the Applicants raised similar allegations of bias against the Member of the Social Security and Child Support Division of this Tribunal who heard their matters at first instance. That Member also found it would be inappropriate to recuse himself. While I give no weight to the Applicants’ having made similar allegations against other Tribunal Members as they have made against myself, I consider their propensity for lodging these kinds of applications as something worthy of mention.
ISSUES
Although the overarching question before the Tribunal is whether I should be recused from hearing these matters, there are a number of elements to this which must be addressed. These are:
(a)Whether I should be the one who determines whether or not I should be recused;
(b)Whether I have any actual bias in these proceedings; and
(c)Whether there is any reasonable apprehension of bias against me in these proceedings.
I will address each of these issues below.
Before I do, however, I must stress the gravity of the decision the Applicants are asking me to make. The way in which decision-makers must treat allegations of actual or apprehended bias were discussed by the High Court in Ebner v Official Trustee in Bankruptcy (“Ebner”),[1] where Gleeson CJ, McHugh, Gummow and Hayne JJ said:
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects about a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
…In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.[2]
[emphasis added]
[1] (2000) 205 CLR 337.
[2] Ibid, 348.
That is not the first time the High Court made such a warning. In Livesey v New South Wales Bar Association,[3] a unanimous High Court wrote:
…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 so to do… Once it is accepted that a judge should not automatically stand aside whenever he is requested so to do, it is inevitable that appellate courts, removed from the pressure of a possible need for immediate decision and enjoying the advantages both of hindsight and, conceivably, further material and information, will on occasion conclude that a decision of a judge at first instance that he could sit was mistaken and has resulted in a situation where one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or pre-judgment. Such a conclusion does not involve any personal criticism of the judge at first instance or any assessment of his qualities or of his ability to have dealt with the case before him fairly and without pre-judgment or bias. It is simply an instance of the ordinary working of the appellate process in which the views of the judges who constitute the appellate court prevail over the views of the judge or judges who constituted the court from which the appeal is brought.[4]
[emphasis added]
[3] (1983) 151 CLR 288, 47 ALR 45.
[4] Ibid, 294.
Thus, much is at stake for this question to be determined properly: it would be to allow a procedural abuse for a judge (or, here, a Tribunal Member) to step aside and disqualify themselves too readily and where the allegations raised do not make out a claim of actual or apprehended bias. Rather, an “…objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case”.[5] I must bear this in mind as I determine this question of recusal.
[5] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 348.
WHO SHOULD DETERMINE THE RECUSAL APPLICATION?
The Applicants have on several occasions written to the District Registrar, asking for me to be disqualified by the District Registrar from hearing these matters. While questions of recusal are necessarily taken very seriously, an application to the District Registrar, as opposed to me as the Member constituting the Tribunal, to remove me from these matters is at best misplaced and at worst highly improper.
The District Registrar has no power in the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to make such a decision. Rather, her statutory role relates to the management of the administrative affairs of the Tribunal. It does not extend to determining whether Members who have been constituted to a matter should be removed from hearing that matter.
The next question is thus who does have the power to determine whether I should be recused from hearing this matter? In Barton v Walker,[6] Samuels JA of the New South Wales Court of Appeal considered at some length whether an avenue for the removal of a judge who had been assigned to a case other than that judge recusing themselves existed in New South Wales. His Honour, with whom Reynolds JA and Glass JA agreed, definitively stated that no such alternate avenue existed, and preferred the “informal practice which requires the individual judge to determine his own disqualification”.[7]
[6] [1979] 2 NSWLR 740, endorsed in Rogers v Wentworth [1998] NSWSC 1044 and cited in Thomas and Secretary, Department of Defence [2018] AATA 604 at [37].
[7] Ibid, 749.
While of course there are significant differences between the New South Wales Court of Appeal and the Tribunal, the ultimate findings of Samuels JA still apply: individual members against whom allegations of bias are made should be the ones to determine their own recusal or disqualification. This position has been endorsed several times in the context of the Tribunal,[8] including by its then-President, Downes J.[9]
[8] See, e.g. Callychurn and Australian Securities and Investments Commission (2015) 68 AAR 180, [2015] AATA 726, [16]-[17] (DP Deutsch); Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 213 FCR 345, 121 ALD 242, 54 AAR 273, [2011] FCA 299, [30] (Jagot J); Mellor and Australian Postal Corporation (2010) 51 AAR 498, [2010] AATA 288, [16] (Downes J).
[9] Kowalski and Repatriation Commission [2009] AATA 807, [7].
Of particular note is Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[10] where Jagot J described the position in the Tribunal for applications for recusal thus:
[Section] 21A (a specific statutory regime for reconstitution of the tribunal in circumstances where the President considers that the matters to which the proceeding relates are of such public importance to justify the giving of a direction for the tribunal to be reconstituted) operates against the background of the common law principles of natural justice by which the tribunal is bound. As Downes J said, one of the key elements of natural justice is the rule against bias. Ordinarily, an application that a decision-maker disqualify himself or herself on the ground of bias (apprehended or actual) must be made in the first instance by the decision-maker in question. Section 21A is not a substitute for the ordinary common law position. The section has a limited operation. The touchstone of it operation is that the matters to which the proceeding relates be matters which the President might consider of such public importance as to justify the giving of a direction for reconstitution of the tribunal. Accordingly, if a party requests reconstitution of the tribunal merely on the ground of bias (actual or apprehended) then, in the ordinary course, the tribunal would be entitled to treat that application as one based on the common law principles by which the tribunal is bound and not as an application under s 21A of the AAT Act. Nothing in such an application, in the ordinary course, would engage the provisions of s 21A.[11]
[emphasis added]
[10] (2011) 213 FCR 345, 121 ALD 242, 54 AAR 273, [2011] FCA 299.
[11] Ibid, [30].
Jagot J referred to s 21A of the AAT Act which at that time relevantly stated:
1At any time during the hearing of a proceeding before the Tribunal (other than a proceeding in which the Tribunal is constituted by a presidential member who is a Judge and 2 other members), a party to the proceeding may apply to the Tribunal as constituted for the purposes of the proceeding requesting that the Tribunal be reconstituted for the purposes of the proceeding.
…
3The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction that the Tribunal as constituted for the purposes of the proceeding be reconstituted…
Importantly, s 21A of the AAT Act was repealed, effective 1 July 2015, by the Tribunals Amalgamation Act 2015 (Cth).[12] The AAT Act as amended contains no parallel provision allowing for applications to be made to the Tribunal for certain Members to be recused or disqualified.
[12] Tribunals Amalgamation Act 2015 (Cth), sch 1 s 27.
Even if s 21A had not been repealed, the import of Jagot J’s decision is that in most cases, a Tribunal Member first had to decide whether or not they should recuse themselves before an application to the President would be allowed. Now, as no such applications to the President are allowed, the process is simplified – one must revert to the common law position that a decision-maker against whom an allegation of bias or apprehended bias is made must be the one to determine whether they should be recused or disqualified because of it.
I therefore find that I must be the one that determines whether or not I should be recused.
IS THERE ANY BIAS?
As I have found that I should determine whether I should be recused or disqualified from hearing this case, I must now turn to the question of whether I have any actual bias in the present case.
Actual bias is assessed “by reference to conclusions that may be reasonably drawn from evidence about the actual views and behaviour of the decision-maker” in the case at hand to determine whether that evidence supports the notion that the decision-maker would approach the issues with a closed mind or some prejudice in the matter.[13]
[13] Matthew Groves, “The rule against bias” [2009] Monash University Law Research Series 10.
Apprehended bias is a slightly different beast. It is “assessed objectively, by reference to conclusions that may be reasonably drawn about what an observer might conclude about the possible views and behaviour of the decision-maker”.[14] A two-step process should be taken in ascertaining whether a person should be disqualified for apprehended bias. First, one must determine what it is said might lead to the person concerned deciding the case other than on its legal and factual merits. Secondly, 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”.[15] Essentially, one should identify the imputation raised against the decision-maker, and then assess whether an objective observer would consider that the imputed state of affairs would create a real possibility that the decision-maker’s mind would be closed or prejudiced against a party, whether or not the mind is closed or prejudiced in fact.
[14] Ibid.
[15] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345; Thomas and Secretary, Department of Defence [2018] AATA 604, [45].
In Ebner,[16] the High Court discussed at some length the categories and nature of apprehended bias. The Court identified four main categories of apprehended bias:[17]
(a)Interest, which relates to the idea that no person should be the judge in their own cause;
(b)Conduct, which relates to the previous conduct of a decision-maker, including published statements made by them. It does not have to relate to conduct in the course of the proceedings at hand;[18]
(c)Association, which relates to the association between the decision-maker and a party, litigant or someone else concerned with the case; and
(d)Extraneous information, which “consists of cases where knowledge of some prejudicial but inadmissible fact or circumstances gives rise to the apprehension of bias”.[19]
[16] (2000) 205 CLR 337.
[17] Ibid, 348-349.
[18] Webb v The Queen (1994) 181 CLR 41, 74 (Deane J).
[19] Ibid.
The Applicants have not divided their arguments into grounds of alleged actual bias and grounds of alleged apprehended bias. Rather, their arguments regarding actual or apprehended bias seem to bleed into one another. Accordingly, I will address each of their claimed grounds of bias in each of my considerations of whether there is any actual bias and whether there is any apprehended bias.
My Decision in Noakes
The Applicants drew my attention to my decision in Noakes, where I observed with reference to an application for unlimited portability of the Disability Support Pension (“DSP”) that:
There is little or no doubt that any decision or determination about indefinite portability must be made prior to the recipient’s departure from Australia. Support for this view can be found in both binding authority and in the scheme of the legislation.[20]
[20] Noakes and Secretary, Department of Social Services [2018] AATA 1457, [37].
Their submissions dated 20 July 2018, the Applicants referred to this statement and argued:
This reference is critically important. The statements by the S/Member “binding authority” in a “scheme of legislation” first are not supported by any reference to relevant legislation and second it sounds as if the two are cemented in concrete. The implication of such statements is that the decision-maker:
(i) has an opinion on a relevant aspect of the matter in issue in the particular case.
(ii) will apply that opinion to the matter in issue and
(iii) will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.
Unfortunately, the expressions in Noakes reflect the values S/Member Theodore Tavoularis NOW holds in relation to unlimited portability… I shudder, and my knees buckle under me with the idea that I may have to stand before S/Member in the Tribunal to present counter arguments against the values and views he adheres to and holds close to his heart.
[emphasis in the original]
With all due respect to the Applicants, they misinterpreted my statement in Noakes. Had they read the full decision, it would have been readily apparent to the Applicants that my statement in paragraph 37, quoted above, summarised the legal position I elucidated earlier in my decision in that matter. In paragraphs 26-30 of the reasons for my decision, I referred to the general legislative scheme which governs the unlimited portability of DSP payments, including ss 1213, 1217, 1218AAA and 1218C of the Social Security Act 1991 (Cth). I do not resile from my statement in Noakes; the legislative scheme governing the granting of unlimited portability, as was sought in that case, is binding on the Tribunal. It is also unequivocal in its requirements.
The fact that I have previously made statements as to what the law relevant to a matter is does not mean a claim of either real or apprehended bias can be made out. As noted by Hayne J in Helljay Investments Pty Ltd v Deputy Commissioner of Taxation:[21]
The principles about apprehension of bias must be understood in the context of a judicial system founded in precedent and directed to establishing, and maintaining, consistency of judicial decision so that like cases are treated alike and principles of law are applied uniformly. The bare fact that a judicial officer has earlier expressed an opinion on questions of law will therefore seldom, if ever, warrant a conclusion of appearance of bias, no matter how important that matter may have been to the disposition of the past case or how important it may be to the outcome of the instant case. Fidelity to precedent and consistency may make it very likely that the same opinion about a question of law will be expressed in both cases. But that stops short of saying that the judicial officer will not listen to and properly consider arguments against the earlier holding.[22]
[emphasis added]
[21] (1999) 166 ALR 302.
[22] Ibid, [12] (Hayne J).
Indeed, a “decision-maker is not biased simply because they are likely, on past performance, to decide an issue against one of the parties, or a type of party.”[23] As stated by Gleeson CJ and Gummow J, “natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion”.[24] Rather, it requires that the merits of a case are not pre-judged.
[23] Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co) 698, citing Vietnam Veterans’ Association of Australia v Gallagher (1994) 52 FCR 34 and ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30.
[24] Minister for Immigration and Multicultural Affairs; Ex parte Jia (2001) 205 CLR 507, 531.
At its highest, this argument of the Applicants is that my decision in Noakes was not grounded in the law and has disclosed some values that are inherent in my decision-making which mean my mind may be considered closed as to the outcome in this case. However, as I explained above, a fulsome reading of my decision in Noakes shows that I went to some lengths to describe the legislative scheme within which the applicant’s case had to be viewed. Although I formed a view of the law in that case, that does not mean that I have pre-judged the merits of these cases – or indeed that I have formed a view of the law as it has applied or is to be applied to them.
In view of the above, I find that no actual or apprehended bias can be grounded in the fact I have previously made statements about the law regarding the portability of the DSP in Noakes. It simply does not follow logically from that fact that I will have pre-judged the merits of these cases. Thus, I am satisfied that the second limb of the test in Ebner is not satisfied.
Conduct of the Telephone Directions Hearing
The Applicants’ second asserted ground of bias is my conduct during the telephone directions hearing on 11 July 2018. In particular, they claim “[t]he S/Member threatened us if we did not withdrawal [sic] the statement in relation to the Secretary he was going to deal with it as a separate matter”.
With all due respect, this misconstrues what occurred during the telephone directions hearing. I did tell the Applicants that if they did not withdraw their allegations of impropriety and bias against the Respondent and myself, I would arrange for there to be an interlocutory hearing, separate from the hearing process, in which these allegations could be agitated in a more fulsome manner. This was not a threat against the Applicants. It was the Tribunal giving them – and the Respondent – the opportunity to prepare and present formal submissions on the Applicants’ allegations.
I do not consider that this constitutes bias on my part against the Applicants. Further, I do not consider that it would lead to the conclusion that a hypothetical and fair-minded person might conclude that I might not approach the issues with an open mind, or indeed that such a person would have construed my statements regarding holding an additional interlocutory hearing as threats. There is no logical link or nexus between what must be construed as a procedural decision and a conclusion that my mind is closed to the hearing of the merits in this case.
Perhaps the point on this ground is that the Applicants perceived some form of hostility during this telephone directions hearing. However, to prove actual or apprehended bias, “it is not enough that the decision-maker displayed irritation or impatience or even used sarcasm”.[25] Rather, one must look to whether “the judicial scales remained sufficiently balanced.”[26] Although the discussion in the telephone directions hearing was at times heated, the telephone directions hearing was nevertheless successful as it led to a set of directions being made, as agreed by the parties. I am of the view that a fair-minded lay observer would not glean from the interactions in the telephone directions hearing that I may have any actual or apprehended bias which may close my mind to the hearing of the merits of these cases. This is particularly the case in circumstances where no such allegations of perceived hostility have been raised regarding the conduct in interlocutory or telephone directions hearings before or after the one on 11 July 2018. Accordingly, this ground of the Applicants’ assertions, too, must be rejected.
[25] Sun v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, 551.
[26] R v T, WA (2014) 118 SASR 382, 403.
My Decisions in Other DSP Cases
The Applicants provided subsequent written submissions to the Tribunal on 14 August 2018. These submissions were addressed to the District Registrar. In these submissions, the Applicants raised the fact that I use some standard paragraphs when discussing the law in DSP cases as evidence that my mind is not reasonably open to persuasion. The standard paragraph in question is thus:
It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (“Bobera”) at [34]…
With respect, I do not consider that a reasonable apprehension of bias could be made out on this ground, either. This is for two reasons. First, as I understand them, the issue to which those standard paragraphs go is not in issue in either of the Applicants’ cases. The present cases relate to the portability of the DSP and Carer Payments. The fact I have formed a sufficiently firm view of the law relating to the relevant period for assessing eligibility for the DSP to include a standard paragraph in my decisions is not logically connected to whether or not my mind is open to arguments as to the law in portability cases.
Secondly, and in any event, the use of standard paragraphs in decisions does not necessarily lead to the conclusion that a decision-maker’s mind is closed. Indeed, the Full Court of the Federal Court has explicitly rejected the argument that the use by an administrative decision-maker of standard paragraphs in their decisions leads to the conclusion that the decision-maker is biased.[27] Of course, one must still be cautious to independently consider the merits of each case.[28] However, what is important for present purposes is that cherry-picking similar paragraphs from decisions on the same topic does not lead to a conclusion of actual or apprehended bias.
[27] Minister for Immigration and Citizenship v SZQHI [2012] FCAFC 160.
[28] See SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81.
Consequently, I find that this is not a ground of actual or apprehended bias that can be made out.
The Directions Made at the Telephone Directions Hearing
Most recently, on 14 September 2018, the Applicants have raised a final ground of alleged actual or apprehended bias. This ground is that, in the Directions made at the telephone directions hearing on 11 July 2018, the Applicants “have not been accorded equal time to prepare responses/submissions to Secretary’s supplementary Statement of Fact, Issues and Contention.”
The Directions in issue were as follows:
3On or before Wednesday, 5 September 2018, the Respondent must give to the Applicants and to the Tribunal an amended Statement of Facts, Issues and Contentions.
4On or before Wednesday, 3 October 2018, the Applicants must give to the Respondent and to the Tribunal any further submissions which they seek to make.
The Applicants’ argument is that these Directions gave the Respondent eight weeks to prepare its amended Statement of Facts, Issues and Contentions (“SFIC”), but the Applicants only got four weeks after that to prepare any further submissions they may have had. In the Applicants’ view, this shows that I have an actual or apprehended bias.
I consider that, in the broader factual context, a fair-minded lay person would not consider this a ground or actual or apprehended bias. This is for several reasons.
First, these Directions were made at the telephone directions hearing. The Applicants and the Respondent were each given the opportunity to comment on the time table orally on 11 July 2018, but no objection to these timeframes was raised.
Secondly, the reason for these Directions lies in the raising of additional arguments by the Applicants. The Respondents have already provided a SFIC, on 13 June 2018. It was only when additional grounds of submission were made by the Applicants in their SFIC dated 9 July 2018 – a mere eight days before the hearing which had been listed – that the Respondent requested for more time to amend its submissions.
Thirdly, should the Applicants need more time to prepare their responses to the Respondent’s amended SFIC, they have the opportunity to request for an extension of time. No such request has been forthcoming. Indeed, the Applicants have been appraised by the Respondent of the possibility of an extension of time should they need one. However, they responded that “the issue here is not for us to request the Tribunal for variation of direction. The issue here is why we were not given the same number of days/weeks” as the Respondent was.
In this context, I cannot find that a fair-minded lay observer would consider that any actual or apprehended bias is shown by these Directions. The Applicants have been afforded every opportunity to request more time for themselves. While one must recognise that there is a factual difference between the eight weeks available to the Respondent and four to the Applicants, that simply cannot be considered a reason for my mind being closed to one side’s submissions. This is particularly the case where the Applicants only objected to the difference in times more than two months after the directions were made, when they had the opportunity to object to them when the Directions were made. Had the Applicants requested more time, in light of the eight weeks available to the Respondent, that request would likely have been granted. They did not do so. They cannot lay the blame for that at the feet of any alleged bias on the part of the Tribunal. Once again, when one is fully appraised of the facts, one cannot reach the conclusion that these Directions are logically connected to my mind being closed to the Applicants’ cases in this matter.
I therefore find that the Applicants are unsuccessful on this ground, too.
CONCLUSION
In consideration of the above, it is first clear that I am the appropriate person to determine whether I have exhibited any actual or apprehended bias in these cases. Of the four grounds raised by the Applicants, I am not satisfied that any can ground establishes a successful claim of actual or apprehended bias. Consequently, I determine that the Applicants’ request for me to be disqualified or recused from hearing these matters should be refused.
The hearing of these applications will proceed as listed on 5 November 2018.
I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
..........................[sgd]..............................................
Associate
Dated: 28 September 2018
Date of hearing: 14 August 2018 Date final submissions received: 14 September 2018 Applicants: In person Advocate for the Respondent: Christopher Bishop Solicitors for the Respondent: Mills Oakley Lawyers
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