Hutchinson v Roads and Traffic Authority

[2000] NSWCA 332

CITATION:	Hutchinson v Roads and Traffic Authority & Anor [2000] NSWCA 332
FILE NUMBER(S):	CA 41005/98
HEARING DATE(S):	25 May 2000
JUDGMENT DATE:	24 November 2000
PARTIES :	Rowan Hutchinson - Appellant Roads and Traffic Authority - Respondent
JUDGMENT OF:	Meagher JA at 1; Powell JA at 2; Giles JA at 7

LOWER COURT JURISDICTION :	Government and Related Employees Appeal Tribunal
LOWER COURT FILE NUMBER(S) :	259/98
LOWER COURT JUDICIAL OFFICER :	J Lynn, P Collins, G Forster

COUNSEL:	S Rothman SC & C Howell - Apellant J J Fernon - Respondent
SOLICITORS:	Lawrence N Dunn, Collaroy - Appellant Henry Davis York, Respondent
CATCHWORDS:	DISQUALIFICATION FOR APPREHENDED BIAS - Tribunal dismisses appeal - e-mail sent by President of Tribunal with observation about appellant - another appeal by appellant - reasonable observer might think would not bring impartial mind to appeal - President should have disqualified himself. WAIVER - Appellant continuing with appeal after disqualification application failed did not constitute waiver. PROCEDURAL FAIRNESS - hearing by President was denial of procedural fairness - was error of law - prerogative relief available. DECISION ON QUESTION OF LAW - refusal to disqualify was not a decision on a question of law within s 54 of the GREAT Act.
CASES CITED:	DISQUALIFICATION FOR APPREHENDED BIAS - Livesey v The New South Wales Bar Association (1983) 151 CLR 288, applied; Australian National Industries Ltd v Spedley Securities Ltd (in liquidation) (1992) 26 NSWLR 411; Gainsford v Hunt (1996) 71 FCR 187, referred to. WAIVER - Vakauta v Kelly (1989) 167 CLR 568; Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281, referred to. PROCEDURAL FAIRNESS - Najjar v Haines (1991) 25 NSWLR 224; Escobar v Spindaleri (1986) 7 NSWLR 51; Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354; Craig v The State of South Australia (1995) 184 CLR 163; R v Lord President of the Privy Council; ex parte Page (1993) AC 682; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374, referred to. DECISION ON QUESTION OF LAW - Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720; Clisdell v Commissioner of Police (1993) 31 NSWLR 555; Maritime Services Board v Murray (1993) 52 IR 455; Commissioner of Police v Donlan (CA, 8 August 1995, unreported); Wijesuriya v The Director General of Conservation and Land Management (1994) 54 IR 384, referred to.
DECISION:	(1) In the appeal, the appeal be dismissed. (2) In the summons - (a) that the record of the Government and Related Employees Appeal Tribunal ("the Tribunal") in appeal 310 of 1998 be brought into this Court; (b) that the order of the Tribunal disallowing the appeal and confirming the decision of dismissal under review be quashed; (c) that the proceedings be returned to the Tribunal for determinaiton according to law. (3) That the respondent in the appeal/first opponent in the summons pay the costs of the appellant in the appeal/claimant in the summons, and have a certificate under the Suitors Fund Act if otherwise qualified and entitled thereto.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41005/98 & 40350/99
GREAT 310/98

MEAGHER JA

POWELL JA
GILES JA

Friday 24 November 2000

HUTCHINSON v ROADS AND TRAFFIC AUTHORITY
HUTCHINSON v ROADS AND TRAFFIC AUTHORITY & ANOR
JUDGMENT

1    MEAGHER JA: I agree with Powell JA. I also agree with Giles JA.

2    POWELL JA: I have read, in draft, the Judgment in this matter which as been prepared by Giles JA.

3    Although, as his Honour has recorded, the grounds of appeal taken in the Notice of Appeal were many and various, I agree with his conclusion that, in order that this appeal and the more recently filed application for prerogative relief might be disposed of, it is sufficient to limit one's consideration to the question raised by grounds 1 and 2 in the Notice of Appeal.

4    It has been established by a series of decisions of the High Court - most recently Johnson v. Johnson [2000] HC 48; 174 ALR 655 - that the principle to be applied in determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judicial officer is required to decide.

5    I have little doubt that, in the light of what Mr. Fishburn had said in his e-mail, and of what Mr. Lynn said when giving his reasons for refusing the application that he disqualify himself, a fair-minded lay observer might reasonably so conclude; and the application having been made, and rejected, the fact that Mr. Hutchinson's counsel continued to appear on his behalf at the hearing could not, in my view, constitute a waiver of the objection to Mr. Lynn continuing as a member of the Tribunal (see, for example, Carver v. Law Society of New South Wales (1998) 43 NSWLR 71 ).

6    I agree with the Orders proposed by Giles JA.

7    GILES JA: Mr Rowan Hutchinson was employed by the Roads and Traffic Authority (“the RTA”). Following an incident at work on 19 December 1997, on 12 January 1998 he was suspended from duty. After a disciplinary process involving inquiry into his conduct on that occasion and on the occasions of two previous incidents, on 28 April 1998 he was dismissed from his employment.

8 On 8 May 1998 Mr Hutchinson appealed against his dismissal to the Government and Related Employees Appeal Tribunal (“the Tribunal”) pursuant to s 24(1) of the Government and Related Employees Appeal Tribunal Act 1980 (“the Act”). On 25 and 26 June 1998 the Tribunal received evidence and heard argument on whether the RTA’s decision to dismiss him was unlawful because he had been denied procedural fairness in the disciplinary process (see Smith v Allan (1993) 31 NSWLR 52). On 14 July 1998 it published reasons in which it determined that he had not been denied procedural fairness. On 28 to 30 September and 10 November 1998 the Tribunal received evidence and heard argument on the balance of the appeal. The hearing began with an application that Mr J L Lynn, the Chairman of the Tribunal constituted for the appeal, disqualify himself. For reasons given on that day, Mr Lynn declined to disqualify himself. On 23 November 1998 the Tribunal published reasons in which it found that Mr Hutchinson had been guilty of misconduct on the occasions of the three incidents. After submissions as to an appropriate disciplinary sanction, on 23 December 1998 the Tribunal published reasons in which it confirmed Mr Hutchinson’s dismissal and disallowed the appeal.

9 By a notice of appeal without appointment filed on 14 December 1998 Mr Hutchinson appealed to the Supreme Court against the Tribunal’s “decision” of 23 November 1998 to the Supreme Court pursuant to s 54 of the Act. By that provision an appeal lay only against “any decision of the Tribunal on a question of law”. The appeal to the Supreme Court pre-dated the disallowance on 23 December 1998 of the appeal to the Tribunal. A notice of appeal with appointment filed on 12 March 1999, while still expressed to appeal from a decision of 23 November 1998, described it as the decision disallowing the appeal to the Tribunal. Mr Hutchinson claimed an order that the decision of the Tribunal of 23 November 1998 be set aside and orders that the decision of the RTA to dismiss him be set aside or alternatively that the matter be remitted to the Tribunal for a fresh hearing according to law. Fourteen grounds of appeal were stated.

10    By a summons filed on 14 May 1999 Mr Hutchinson claimed a declaration that the Tribunal’s decision of 23 November 1998 was void and of no effect, an order in the nature of certiorari removing to this Court and quashing that decision, an order in the nature of prohibition prohibiting the RTA from giving effect to it, and an order in the nature of mandamus requiring the Tribunal to hear and determine according to law his appeal from the RTA’s decision. The summons alleged that the decision of 23 November 1998 was “vitiated by error of law and/or error of jurisdiction”, particularised in fourteen paragraphs in the same terms, with formal changes, as the fourteen grounds of appeal.

11 Both the appeal from the Tribunal and (at least so far as it claimed relief in the nature of prerogative relief, see s 69 of the Supreme Court Act 1970) the summons were assigned to the Court of Appeal by s 48 of the Supreme Court Act . They were heard together. The Tribunal was not named as a respondent to the appeal, but was named as an opponent in the summons. It entered a submitting appearance, and did not participate in the hearing: the protagonists were Mr Hutchinson and the RTA.

12    The RTA filed notices of motion in each of the appeal and the summons, It applied in the appeal for orders striking out the appeal because not against a decision on a question of law or alternatively because an abuse of process. It applied in the summons for orders striking out the summons as an abuse of process or alternatively as not disclosing an error of jurisdiction. The applications were subsumed within the combined hearing.

13    The fourteen grounds of appeal, repeated with formal changes as vitiating errors of law or of jurisdiction, were -

“1. The Tribunal erred in holding that the senior chairperson should not disqualify himself on grounds of apprehended bias from hearing the appeal;

2. The decision of the Tribunal was affected by the apprehended bias of the chairperson thereof and denied the appellant natural justice;

3. The Tribunal erred in finding that sufficient particulars of matters alleged against the appellant had been provided to the appellant for the purpose of the employer’s disciplinary inquiry;

4. The Tribunal erred in law in not taking into account in the appeal the lack of proper particulars provided to the appellant by the employer for the purpose of its disciplinary inquiry;

5. The Tribunal erred in finding that the employer had taken into account irrelevant considerations in finding that the appellant was guilty of a disciplinary offence;

6. The Tribunal erred in finding that the appellant was given adequate opportunity by the employer to make submissions as to penalty;

7. The Tribunal erred in finding that sufficient particulars of matters alleged against him had been provided to the appellant for the purpose of proceedings before the Tribunal;

8. The Tribunal erred in admitting evidence which was irrelevant and/or prejudicial to the applicant;

9. The Tribunal erred in taking into account irrelevant considerations, namely matters relating to the conduct of the appellant which were not particularised to him for the purpose of the employer’s disciplinary inquiry nor for the purpose of the Tribunal hearing;

10. The Tribunal erred in finding, in the absence of any or sufficient evidence and/or contrary to the evidence, that the appellant failed to provide his version of the conversation of 19 December 1997 prior to the hearing of his appeal before the Tribunal;

11. The Tribunal erred in finding, in the absence of any or sufficient evidence and/or contrary to the evidence, that the appellant did not put forward his explanation that his remarks of 19 December 1997 were “merely a joke” prior to the proceedings before the Tribunal;

12. The Tribunal erred in finding, in the absence of any or sufficient evidence and/or contrary to the evidence, that the appellant was well aware of the impact his remarks had on Mr Doolan on 19 December 1997;

13. The Tribunal erred in giving weight or giving excessive weight to the evidence of Mr Doolan;

14. The Tribunal erred in failing to take into account relevant considerations, namely the fact that there was good reason for the appellant to provide no further explanation of his conduct than that given in that the appellant received legal advice not to co-operate in any inquiry process until further particulars of the charges against him had been provided.”



14    Grounds 1 and 2 were concerned with Mr Lynn’s ruling in which he declined to disqualify himself. Grounds 3 to 7 were concerned with the Tribunal’s determination of 14 July 1998. The remaining grounds were concerned with the Tribunal’s finding in the reasons of 23 November 1998. All grounds, of course, impacted on the dispositive determination to confirm Mr Hutchinson’s dismissal and disallow his appeal to the Tribunal.

15    For the reasons which follow, in my opinion it is sufficient in the present proceedings to address grounds 1 and 2, and the Tribunal’s dispositive determination should be quashed and Mr Hutchinson’s appeal to the Tribunal should be re-heard by a differently constituted Tribunal.

16    The framing of the notice of appeal and its grounds 1 and 2 may have been deficient, but the substance was that the dispositive determination of the Tribunal could not stand because in all the circumstances the parties or the public might entertain a reasonable apprehension that Mr Lynn might not have brought an impartial and unprejudiced mind to the resolution of the questions involved in the appeal: see Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 293.

17    The Tribunal was constituted for the appeal by Mr Lynn as Chairman and Messrs P Collins and G Forster as Members.

18    Mr Lynn had been the Chairman of a Tribunal which on 3 September 1997 heard and determined a promotion appeal by Mr Hutchinson against a decision to appoint a Mr C Leong to a position within the RTA. The appeal was disallowed. Mr B Fishburn was a Member of that Tribunal.

19    Following the determination of the appeal Mr Fishburn sent an e-mail to another person reading -
“As requested in your memo dated 21 August 1997 I formed part of the GREAT appeal number 370. You will be separately informed by the Tribunal about the results of this appeal by Mr R Hutchinson against a decision to appoint Mr C Leong to the position of project manager engineer grade 3 at Major Projects Goulburn.
Mr John Glynn was the convenor of the Tribunal. In discussions after the hearing Mr Glynn remarked about the unsatisfactory nature of this appeal. Mr Hutchinson gave no reasons for taking this action. He subsequently made allegations of bias in the process. During the proceedings he made allegations that there were dishonest statements in the documents submitted by the RTA. The nature of all of these allegations were shown to be either unfounded or untrue. Mr Glynn suggested that I raise the matter with the RTA to see whether counselling might be appropriate. He mentioned that he would not be surprised to see some disciplinary action being taken in due course. This is the third time that I have sat on the Tribunal in a case involving Mr Hutchinson, although on one occasion he failed to appear without explanation. In my view, action must be taken to ensure that the Tribunal’s time is not wasted in the manner that has occurred to date. I also should rule myself out of any further hearings involving Mr Hutchinson to ensure that allegations of bias are not levelled against the authority.”


20    At the commencement of the hearing on 28 September 1998 counsel for Mr Hutchinson tendered the e-mail and the Tribunal’s reasons for its decision in the 1997 appeal, and made the application that Mr Lynn disqualify himself. It was accepted that Mr Lynn was the person referred to as Mr John Glynn.

21    Submissions were made in support of the application. Counsel for the RTA made submissions which, although at one point proffered as neutral assistance, favoured refusal of the application. After an adjournment for Mr Lynn to consider the matter, later that day he refused the application and gave his reasons.

22    Mr Lynn referred to the 1997 appeal and set out the e-mail. He recorded the submission on behalf of Mr Hutchinson that the e-mail could lead the reasonable observer to apprehend that he had reached conclusions about Mr Hutchinson’s credit, in that there was an inference that Mr Hutchinson had made unfounded or untrue allegations in a previous appeal hearing and that he had formed the view that conduct of that kind by Mr Hutchinson could provide a basis for disciplinary action against Mr Hutchinson. He referred to Livesey v New South Wales Bar Association , on which counsel for Mr Hutchinson relied, and set out passages from that case. It is evident that he applied the principle from Livesey v New South Wales Bar Association stated earlier in these reasons, whilst reminding himself that he should not too readily abdicate his function. He referred to The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100 and Re JRL; Ex parte CJL (1986) 161 CLR 342, to which counsel for the RTA had referred, without going into either case.

23    Mr Lynn then said -
“I must firstly admit that I do not have anything other than a vague recollection of a conversation to which Mr Fishburn refers in his e-mail. There was a conversation, I remember that. It will be apparent from the brevity in terms of the Tribunal’s decision in promotion appeal number 370/97 that the Tribunal considered that appeal had little merit and I have no doubt that I expressed to my colleagues that it would be better if the appellant did not pursue appeals which had no realistic chance of success.
I consider it important for the purposes of determining this application that it be borne in mind that appeal number 370/07 was a promotional appeal conducted at an informal sitting of the Tribunal where the appellant was afforded a full opportunity to present his claims for appointment to a more senior position in the authority. He was not giving any evidence under oath in those proceedings.
The hypothetical reasonable observer with whom we are concerned is deemed to understand the legal environment and the relevant objective facts and circumstances which might form the basis of an opinion that a person should not sit to hear and determine a case.
If the content of Mr Fishburn’s e-mail be accepted as accurate and I am unable to precisely say that it is because I do not have a clear recollection of it, it appears that I express some concern about two things. First the appellant’s apparent unfounded claims of dishonesty on the part of the other officers of the RTA when preparing documents for the Tribunal and second the matter to which I earlier referred, the bringing of appeals here when there was no realistic prospect of success.
In connection with the first matter it appears I suggested some counselling of the appellant. To be careful about making unfounded allegations against people with an indication to him at the same time that such conduct could expose him to some disciplinary action. That was what was done by me in that case and I make no apology for it. I think it was a reasonable thing to do, in the interest of the appellant and in the interest of the authority.
The point I wish to make forcibly is this, that case has nothing to do with the principal issue for determination in this case which is an appeal against dismissal arising out of events which took place after the hearing of the promotion appeal and which are unrelated to any allegations by the appellant in any context, let alone a promotional context. I do not consider that the reasonable observer understanding the facts and circumstances which give rise to the e-mail would apprehend that I might not or would not bring a fair and unprejudiced mind to the evidence in this entirely different case.
The application is refused for those reasons.”

24    As I read the e-mail, the words from “Mr Hutchinson gave no reason … “ to “ … either unfounded or untrue” were part of Mr Lynn’s remarks, not an interpolation by Mr Fishburn. No-one suggested otherwise in this appeal, nor did Mr Lynn in his reasons. Mr Lynn considered that Mr Hutchinson had “made allegations” which were shown to be either unfounded or untrue. While the “allegations” may have been at an informal sitting of the Tribunal and not by way of evidence on oath, they must have involved assertions of fact by Mr Hutchinson, and Mr Lynn considered that some of the allegations were shown to be not just unfounded (which could connote innocent error) but untrue (which by contrast could connote deliberate falsity). Mr Lynn was sufficiently struck by these matters to raise the possibility of counselling and to envisage disciplinary action.

25    In my view, the reasonable person with knowledge of Mr Lynn’s views not only might think, but would be likely to think, that Mr Lynn held an adverse opinion of Mr Hutchinson’s reliability and credibility, and that Mr Lynn might not bring an impartial mind to an appeal such as the disciplinary appeal with which the Tribunal was concerned: cf Australian National Industries Ltd v Spedley Securities Ltd (in liquidation) (1992) 26 NSWLR 411 esp at 420, 442-3, 448-9; Gainsford v Hunt (1996) 71 FCR 187 at 202. There were significant questions of credit in that appeal. With respect to Mr Lynn, I do not see in the informal nature of the 1997 sitting of the Tribunal, assuming the hypothetical observer is taken to be aware of it, the importance which Mr Lynn attributed to it: a person considered to be unreliable and not to be believed on the serious occasion of even an informal sitting of the Tribunal would not, in the eyes of the observer, be thought of differently in a formal hearing. Nor, with respect, do I think that the timing of the material events and their non-relationship to the events material to the 1997 appeal make any difference. (I am unsure what Mr Lynn meant by events “unrelated to any allegations by the appellant in any context”: perhaps he meant that Mr Hutchinson was not alleging but was responding to the current appeal, but even so Mr Hutchinson’s reliability and credibility were vitally in issue.)

26    The RTA did not dispute the reasonable apprehension test as found in Livesey v New South Wales Bar Association , and accepted that Mr Lynn had correctly directed himself in law. I consider that Mr Lynn erred in declining to disqualify himself.

27    The RTA submitted that by proceeding with the hearing following Mr Lynn’s refusal of the application, as he did, Mr Hutchinson had waived his objection to the constitution of the Tribunal and could not now assert a reasonable perception that Mr Lynn might not bring an impartial mind to the hearing of the appeal.

28    As Vakauta v Kelly (1989) 167 CLR 568 at 577-8, 586-8 indicates, there may be knowing waiver of an objection to a judge or other tribunal, but nothing which could amount to waiver occurred in the present case. Through his counsel, Mr Hutchinson objected to Mr Lynn’s participation in the hearing. He did so only on 28 September 1998, but there was nothing to suggest that he was aware of the e-mail in June 1998 or at such a time that his application should have been made prior to 28 September 1998. Mr Lynn ruled against him, and it was incumbent on him then to proceed with the hearing of the appeal. Perhaps he could have applied for an adjournment and sought to overturn the ruling or otherwise bring about a situation in which Mr Lynn did not sit on the Tribunal hearing his appeal, but he was not required to do so on pain of imputed waiver: see the explanation by Finkelstein J in Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 at 294, with which I respectfully agree. In the circumstances of the present case, proceeding with the hearing was not a waiver such that Mr Hutchinson can not in the appeal, or the summons, raise the reasonable apprehension.

29    What are the consequences? The hearing of the appeal to the Tribunal by a Tribunal of which Mr Lynn was Chairman was a denial of procedural fairness, for what occurred prior to 28 September 1998 just as much as for what occurred on and after that day. Mr Hutchinson was entitled to a Tribunal free of the cloud, even a cloud later found to have existed, of the reasonable apprehension: cf Najjarv Haines (1991) 25 NSWLR 224. The parties accepted that failure to afford procedural fairness involves an error of law, see Escobar v Spindaleri (1986) 7 NSWLR 51 at 59; Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354 at 359. Moreover -
“Where a tribunal, in the course of making a purported decision, fails to afford natural justice or procedural fairness to a party this constitutes jurisdictional error. It will authorise the provision by this Court of relief in the nature of the prerogative writs. This will be so notwithstanding a purported privative provision of the kind contained in s 48(3) [of the Act]. See Kopuz v District Court of New South Wales (1992) 28 NSWLR 232 at 245; Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171, 195.” ( Totalisator Agency Board of New South Wales v Casey at 359 per Kirby P; see also his Honour’s judgment in Macksville and District Hospital v Mayze (1987) 10 NSWLR 708 at 713.)


30    Categorisation as jurisdictional error as distinct from error within jurisdiction involves a line which in some cases “may be particularly difficult to discern”, see Craig v The State of South Australia (1995) 184 CLR 163 at 178, and in the discussion of the scope of certiorari in that case (at 175-6) jurisdictional error and failure to observe applicable requirements of procedural fairness were separately stated as grounds for the relief. As Lord Browne-Wilkinson explained in R v Lord President of the Privy Council; ex parte Page (1993) AC 682 at 701, curial intervention is because the decision-maker’s powers are taken to have been conferred “on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair procedures …”, so that if the decision-maker exercises his powers outside the jurisdiction conferred or in a manner which is procedurally irregular he is acting outside his powers and therefore unlawfully. If it is preferred to avoid the language of jurisdictional error when there has been failure to afford procedural fairness, the result is the same. The failure will found prerogative relief, see in addition to the cases just mentioned Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 and Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374, both cited in Craig v The State of South Australia at 175-6.

31    Mr Hutchinson submitted that there was jurisdictional error, and that relief in the nature of prerogative relief should be given. Appropriate and sufficient relief would be relief in the nature of certiorari quashing the Tribunal’s dispositive determination, the ground for the relief being such that Mr Hutchinson’s appeal to the Tribunal would have to be re-heard in full and by a differently constituted Tribunal

32    The RTA conceded that ordinarily relief in the nature of prerogative relief would flow from a determination by a decision-maker “who is biased in a relevant sense”. But it submitted that it should not be so in the present case, and that neither appellate relief nor relief in the nature of prerogative relief could be given. The argument ran -


(a) there was a decision when Mr Lynn declined to disqualify himself;

(b) it was a decision on a question of law within s 54 of the Act, and an appeal lay to the Supreme Court against it;

(c) because Mr Hutchinson had a right of appeal, relief in the nature of prerogative relief would not be given;

(d) by s 55 of the Act the appeal on a question of law had to be made within 21 days after the decision on the question of law, which did not happen, so appellate relief could not be given.


33 Section 54 of the Act enables an appeal against any decision, whether final or interlocutory, which is a decision on a question of law, and is not limited to a final determination ( Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720; Clisdell v Commissioner of Police (1993) 31 NSWLR 555; Maritime Services Board v Murray (1993) 52 IR 455). The word “decision” is important. It includes an opinion of the Tribunal on a question of law upon which its determination is based ( Clisdell v Commissioner of Police at 559; Commissioner of Police v Donlan (CA, 8 August 1995, unreported)), but it is not enough that an error of law has occurred in the course of a hearing before the Tribunal ( Totalisator Agency Board of New South Wales v Casey at 359; Wijesuriya v The Director-General of Conservation and Land Management (1994) 54 IR 384 at 385). In Totalisator Agency Board of New South Wales v Casey Kirby P held that when the Tribunal denied procedural fairness by relying on matters not the subject of evidence or argument, it had made an error of law but had not made an error in deciding a question of law (see at 360: the other members of the Court did not think there had been a denial of procedural fairness).

34    If it be material, Mr Lynn correctly directed himself as to the law, but I do not think that there was a decision on a question of law when he declined to disqualify himself. Denial of procedural fairness, indeed, may not involve any decision at all on the part of the judge or other tribunal, for example when the grounds for a reasonable apprehension of want of impartiality are discovered after the final determination as in Najjar v Haines . The vice when there is denial of procedural fairness is vitiation of the process, not error in the result. I do not think that the RTA’s submission should be accepted.

35    The RTA submitted that relief in the nature of prerogative relief should be refused on discretionary grounds because of delay. Relief by way of certiorari is usually discretionary, although maybe not in the case of patent absence of jurisdiction. It is unnecessary to consider this, because assuming a discretion I do not think it should be exercised against Mr Hutchinson. The so-called delay on which the RTA relied was failure to appeal within 21 days of 28 September 1998, but there was not a decision on a question of law against which he could appeal.

36    The RTA drew attention to the fact that the summons referred to a decision of 23 November 1998 rather than the dispositive determination of 23 December 1998. I do not think that, if it was intended to take the point, it has any merit - clearly the dispositive determination was under attack. In passing, Mr Hutchinson did not purport to appeal against a decision of 28 September 1998.

37    I have set out the other grounds of appeal, taken up also in the summons. When the appeal to the Tribunal must be re-heard in full, it is not appropriate to enter upon the submissions made as to those grounds. The reconstituted Tribunal will make its findings and decide Mr Hutchinson’s appeal on the evidence and submissions properly before it, and even as to grounds 3 to 6 anything now said would be only advisory.

38    The RTA’s notices of motion are in part explained by its argument earlier outlined. In the end the RTA’s position in relation to grounds 1 and 2 was that there was a decision on a question of law open for an appeal. Where that is not so, its submission that the summons was an abuse of process because there was a time barred right of appeal (for which it cited Meagher v Stephenson (1993) 30 NSWLR 736 at 738-9 and Hill v King (1993) 31 NSWLR 654 at 656, 658-9), so far as material to grounds 1 and 2, lacks a foundation. There is no occasion to consider whether in relation to other grounds either the appeal or the summons might be an abuse of process, or whether there were decisions on questions of law or errors of jurisdiction.

39    The orders to be made should be made in the summons, and the appeal should be dismissed but on the basis that there is no appellate determination as to grounds 3 to 14. The notices of motion need not be separately disposed of. I see no reason to make distinct orders for the costs of the appeal and of the summons, or for the different grounds. On a realistic approach, Mr Hutchinson sought to displace his loss in the Tribunal, and succeeded over the RTA’s opposition, so the RTA should pay all costs.

40    I propose the following orders:


(1) In the appeal, that the appeal be dismissed.

(2) In the summons -

(a) that the record of the Government and Related Employees Appeal Tribunal (“the Tribunal”) in Appeal 310 of 1998 be brought into this Court;

(b) that the order of the Tribunal disallowing the appeal and confirming the decision of dismissal under review be quashed;

(c) that the proceedings be returned to the Tribunal for determination according to law.

(3) That the respondent in the appeal/first opponent in the summons pay the costs of the appellant in the appeal/claimant in the summons, and have a certificate under the Suitors Fund Act if otherwise qualified and entitled thereto.

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