Hutchinson v Roads and Traffic Authority

The appellant, Hutchinson, appealed to the Court of Appeal of New South Wales against a decision of the Government and Related Employees Appeal Tribunal (the Tribunal) which had dismissed his appeal against a decision to dismiss him from his employment. The Tribunal's President had sent an email containing observations about Hutchinson to another party involved in a separate appeal by Hutchinson. Hutchinson sought to have the President disqualified from hearing his appeal on the grounds of apprehended bias. The Tribunal refused this application, and Hutchinson's appeal was subsequently dismissed. Hutchinson then sought prerogative relief from the Court of Appeal.

The primary legal issue before the Court of Appeal was whether the President of the Tribunal ought to have disqualified himself from hearing Hutchinson's appeal due to apprehended bias. This involved considering whether a reasonable observer, aware of the President's email, might apprehend that the President would not bring an impartial mind to the determination of Hutchinson's appeal. A further issue was whether Hutchinson's continuation with the appeal after the disqualification application failed constituted a waiver of his right to object to the President's impartiality. The Court also considered whether the refusal to disqualify was a decision on a question of law for the purposes of the *Government and Related Employees Appeal Tribunal Act 1980* (NSW).

The Court of Appeal held that a reasonable observer would apprehend bias, and therefore the President should have disqualified himself. The Court reasoned that the President's email, sent in the context of another appeal involving Hutchinson, created a perception that the President had formed an unfavourable view of Hutchinson, which could lead to an apprehension that he would not approach the current appeal with an impartial mind. The Court found that Hutchinson's continuation with the appeal did not amount to a waiver of his right to object to the President's impartiality, as he had raised the issue of bias at the earliest opportunity. The Court determined that the refusal to disqualify was not a decision on a question of law within the meaning of s 54 of the *GREAT Act*, but rather an error of law in that the hearing by the President constituted a denial of procedural fairness.

Consequently, the Court of Appeal ordered that Hutchinson's appeal be dismissed, but in the summons, it quashed the Tribunal's order dismissing Hutchinson's appeal and confirming his dismissal from employment. The proceedings were remitted to the Tribunal for determination according to law. The respondent was ordered to pay Hutchinson's costs.