Khadem v Barbour

[1995] FCA 673

CATCHWORDS

ADMINISTRATIVE LAW - Disqualification for bias - whether Tribunal's comments made during the hearing constituted ostensible bias - whether test is one of possibility or probability of appearance of bias

Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577; referred to.
R v Watson; Ex parte Armstrong (1976) 136 CLR 248; applied.
Livesey v The New South Wales Bar Association (1983) 151 CLR 288; applied.
Vakauta v Kelly  (1989) 167 568; applied, discussed.
Galea v Galea (1990) 19 NSWLR 263; discussed.
Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310; followed.
Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78; referred to.
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; discussed.
Australian National Industries Pty Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411; discussed.

HASSAM KHADEM v BA BARBOUR, SENIOR MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL (CTH) and COMMISSIONER OF TAXATION

No NG 250 of 1995

CORAM:  HILL J
PLACE:  SYDNEY
DATED:  30 AUGUST 1995

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 250 of 1995
  )
GENERAL DIVISION                  )

BETWEEN:HASSAM KHADEM

Applicant

AND:BA BARBOUR, SENIOR MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL (CTH)

First Respondent

COMMISSIONER OF TAXATION

Second Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    30 AUGUST 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

(1)Mr Barbour cease hearing the review.

(2)The matter be remitted to the Administrative Appeals Tribunal to be heard by a Tribunal differently constituted.

(3)The second respondent pay the applicant's costs.

Note:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 250 of 1995
  )
GENERAL DIVISION                  )

BETWEEN:HASSAM KHADEM

Applicant

AND:BA BARBOUR, SENIOR MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL (CTH)

First Respondent

COMMISSIONER OF TAXATION

Second Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    30 AUGUST 1995

REASONS FOR JUDGMENT

Mr Khadem, the applicant, applied to the Administrative Appeals Tribunal for review of objection decisions by the Commissioner of Taxation in respect of four years of income being respectively the years of income ended 30 June 1985, 1986, 1987 and 1989.  That review commenced on 9 March 1995 and continued for slightly less than two days before Mr Barbour, a Senior Member of the Tribunal.  Mr Khadem now seeks an order from this Court in the nature of prohibition, restraining Mr Barbour from proceeding further with the review.  Mr Barbour has submitted to any order which the Court may make, other than an order as to costs, and has not participated in the proceedings in this Court.

The basis of the order sought is that Mr Barbour has displayed what is often referred to as "ostensible bias" in the hearing of the review.  To understand the arguments it is necessary to say something about the course of the proceedings before Mr Barbour.

The proceedings in the Tribunal arose out of four amended assessments made by the Commissioner.  These assessments proceeded on the basis that Mr Khadem had omitted from returns of income filed in respect of the years in question, certain amounts of income.  At issue were what was said to be unexplained deposits to bank accounts, cash payments, undisclosed wages, unexplained credits in a loan account with a private company and undisclosed interest.  It was the Commissioner's view that there had been deliberate evasion on the part of Mr Khadem and the assessments reflected penalties on this basis.

The undisclosed interest, a small amount on an overseas bank account, was not in dispute.  It was the taxpayer's case that cash deposits and expenditure could be traced to moneys received by him from his uncle on the sale of certain real estate in Lebanon.  He denied receiving any wages from the private company and denied any involvement in that company.  He said that certain of his children were associated with it.  In essence, it was his case that he was living on social security benefits during the times he was in Australia, that his living expenses were met by his children pooling their income and that he had no undisclosed sources of income.  He denied knowledge of the bank accounts into which deposits were made but said that information about these accounts was available from his son, Jamil.

A statement had been given to the Commissioner by Mr Khadem's advisers of evidence proposed to be given by Jamil in anticipation of his being called as a witness.  A statement was also tendered from Mr Khadem.  It was indicated that the uncle, who lived in Lebanon, would not be giving evidence.  The explanation suggested from the bar table was that facilities for video transmission from Lebanon did not exist.

Apart from the formal "T documents" before the Tribunal, it appears that nothing in the way of documentary materials was given by the Commissioner to Mr Khadem's advisers prior to the hearing.  Nor was any statement of any witness provided.

When the matter commenced before the Tribunal Mr Barbour immediately inquired whether any discussions or negotiations had taken place between the parties after receipt of the witness statements by the Commissioner from Mr Khadem and his son.  The Tribunal was told that no such discussions had taken place.  Counsel for the Commissioner also indicated that he would call at least two witnesses, although no witness statements had been provided to Mr Khadem.  Counsel for Mr Khadem indicated that the taxpayer's wife would also give evidence to corroborate what Mr Khadem would say.

There was a short adjournment in order that Mr Khadem's counsel could be apprised of the evidence which the Commissioner proposed to call and presumably to permit any settlement discussion to take place.  The review then commenced.

After evidence in chief had been led from Mr Khadem, he was vigorously cross-examined by counsel for the Commissioner.  One aspect of that cross-examination concerned an incident in which Mr Khadem had been a passenger in a motor vehicle alleged to have been used to bring cigarettes from Queensland to New South Wales.  The vehicle had a strong box between the passenger seat in which it was said there was $184,000.  The vehicle was hijacked, driven off the main road; Mr Khadem and the driver locked in the boot while the strong box was opened with oxyacetylene equipment and the money stolen.  There had been a statement given to the police by Mr Khadem at the time, which apparently formed the basis of some of the cross-examination on this incident.  Other areas of cross-examination included Mr Khadem's knowledge of certain bank accounts and what were said to be discrepancies involved in the account he gave of the Lebanon real estate transaction and cash payments to him.
         At the outset, counsel for Mr Khadem indicated that Mr Khadem needed an interpreter.  Through his interpreter, Mr Khadem indicated that he was unable to read.  It is fair to say that this was in the context of reading English.  When asked by counsel for the Commissioner whether he understood English he replied, through the interpreter, that he did not know.  He certainly gave the impression that he did not understand.

On four occasions, however, the first on the first day and on three occasions on the second day, Mr Khadem answered directly questions which counsel for the Commissioner had asked in English.  It must be said that the questions were relatively simple and the context of surrounding questions and understanding of one or two words could well have enabled a person whose English was very poor to have answered, as Mr Khadem did.  By way of example, on the second day Mr Khadem was asked, through an interpreter, to look at a particular document.  In English Mr Khadem asked "Where?".

In response to a series of questions put through the interpreter as to the timing of trips to Lebanon, counsel for the Commissioner said, "Some time this year was it?"  To this Mr Khadem answered in English, "Yes, maybe."

It was at this point that counsel for the Commissioner put to Mr Khadem that he did not need the interpreter because he had answered in English.  Through the interpreter Mr Khadem said: "Did I say something in English, what did I say?"  Counsel then indicated that Mr Khadem had understood the question and answered it in English.  To this Mr Khadem replied through the interpreter, somewhat peculiarly, "Yes, well prove it that I said something to you in English".

On the fourth occasion the cross-examination was concerned with bank statements.  Mr Khadem denied knowledge of or interest in the information in those statements.  He reiterated that his son knew everything and that Mr Khadem in any event could not communicate with the bank.

The transcript then continues:

Mr McGovern:

"But when it comes to bank statements for bank accounts in your name do not you ask your son Jamil to tell you how much is in your account from time to time?

The Interpreter:

He looks - if I look I wouldn't understand.

Mr McGovern:

But he tells you?

The Witness:

Sometimes."

At this point Mr Barbour intervened and made the following comment:

"Mr Khadem, you just answered that question in English once again and it happens often.  Can I ask you to be very honest with me?  It appears as though your level of understanding of English is far greater than what you are saying to this Tribunal.  You just answered a question `sometimes' in English and you understood the question and your answer was perfectly appropriate.  Now Mr Interpreter would you translate that and Mr Khadem, would you please answer because I am very concerned about whether or not you are being honest to this Tribunal."

After this had been interpreted Mr Khadem said, in English:

"Excuse me, please help me with this.  Every time I ask for sometimes, please, excuse me, help, what you say, bread, milk, tea, understands this."

I think the purport of what Mr Khadem was saying was that he was able to use simple expressions.  Through the interpreter he reiterated that he was unable to read or write (presumably English) and that he carried his own address on a piece of paper.

Counsel for the Commissioner then suggested that questions be put without an interpreter, but the Tribunal indicated that it preferred the use of an interpreter for all questions.

The cross-examination continued to deal with an amount said to have been deposited to an account of Mr Khadem.  Mr Khadem insisted that he was not the person who made the deposit.  It was put to him that he was aware of the deposits and Mr Khadem replied that he did not make the deposits and that Jamil should be asked.

At this point Mr Barbour again intervened.  The transcript contains the following:

Mr Barbour:

"Mr Khadem, the question you are being asked, you are not answering.  You have been asked it now a number of times in different ways and you are still not answering the question.

The Interpreter:

What does he want?

Mr Barbour:

What you are being asked is whether or not you agree that you were being paid into your account $350 each week? [It may be interpolated that this was not the question which was asked.]

The Interpreter:

I didn't know about it.

Mr Barbour:

I am not asking whether you knew about it, I am asking you whether you agree that the document you have in front of you shows that you were having money deposited into your account to the sum of $350 on a weekly basis?

The Interpreter:

I didn't know about it.

Mr Barbour then asked counsel for the Commissioner to proceed.

In due course the cross-examination turned to the incident involving the hijacking of the motor vehicle.  Mr Khadem was shown a document said to be a statement he gave to the police at the time and it was put to him that he was involved in a massive organised business of purchasing cigarettes in Queensland and trucking them into New South Wales during the years in question.  Mr Khadem denied this, but said that it involved his son, Ali.  He said he had no connection at all with that matter.  The transcript proceeds as follows:

Mr Barbour:

"Mr McGovern, can I just ask, have there been any proceedings in relation to these matters or any matters associated with them that you are aware of?  I am just wondering whether now might be a convenient time to adjourn.  I am just concerned with the nature of where we are going and I think Mr Carnovale might want to give his client some advice in relation to any evidence he might give that might incriminate himself in any way and if he will not I certainly will.  It might be an appropriate time to adjourn on that basis.  Mr Carnovale, a number of these matters that have been raised may well have taken you by surprise.  It certainly is not the area we started out in.

Can I indicate to you that I think it is fair at this stage for me to advise you and also the applicant that I have concerns, particularly in relation to the applicant's evidence today, as to the veracity of that evidence and the honesty of that evidence.  It seems to me that the
applicant is evading answering questions and when he does answer questions that they are often answered in a way which is dishonest.  I have concerns about the level of his grasp of English and I believe that he in fact understands and speaks a lot more English than what he is indicating that he is able to do.  In those circumstances it might be prudent for you to have discussions with your client during the luncheon adjournment.

I am concerned that we have yet to hear evidence from the applicant's son and I would imagine that much of this similar material will be involved in that as well.  It may well be that you would like to consult with your client about an appropriate course at this time and subject to what happens we will resume at 2 o'clock."

After lunch Mr Barbour asked Mr Khadem's counsel whether he had spoken with Mr Khadem during the adjournment.  The transcript then proceeded:

Mr Carnovale:

"Yes, I did discuss with him through the interpreter the things that you mentioned.

Mr Barbour:

And your client wishes to proceed at this stage?

Mr Carnovale:

I should say I have not had a chance really to talk to Mr McGovern.  We seem to have been in different places and now Mr Serrof is not here, my solicitor, so when I did see Mr McGovern unfortunately Mr Serrof was not around and I have not really had a chance to ...

Mr Barbour:

Well, do you need time?  My trouble is this, I am going to be put to making findings in relation to all of those matters and it seems to me that that may
not necessarily be in your client's interest.

Mr Carnovale:

Yes.I understood what you said before lunch.

Mr Barbour:

Do you need a little bit extra time to talk to Mr McGovern or not?

Mr Carnovale:

Well, yes.I say that - Mr Serrof is now here so I can.  The way I conduct discussions with my client is through Mr Serrof who speaks Arabic.  The only exception has been to communicate to him what you said before lunch, in which case I used the interpreter.

Mr Barbour:

All right.Can I suggest that it might be appropriate to adjourn for 15 minutes to give you an opportunity to have discussions with your client through Mr Serrof."

After a further short adjournment, Mr Barbour asked Mr Carnovale what the position was.  Mr Carnovale indicated that the parties had been unable to resolve the matter.  Mr Barbour then indicated that he was somewhat concerned about proceeding, given the nature of his earlier comments.  He again asked whether Mr Carnovale had advised his client about that.  Mr Carnovale indicated that he had done so two or three times; once through his instructing solicitor who could speak Arabic, once through the interpreter and once through the son, Jamil.  The transcript then continues:

Mr Barbour:

"Mr Khadem, you have had the opportunity of speaking with your barrister through your solicitor, through the interpreter and through your son and despite those discussions and what I mentioned before we adjourned, it is your wish and intention to proceed with these proceedings at this stage?

The Interpreter:

Can I ask you a question?

Mr Barbour:

I may not answer it.  Look, you can ask me a question Mr ...

The Interpreter:

I have explained to this Tribunal the matter regarding the house in Lebanon but the other matters regarding the banks and other things I'm not able to explain clearly.

Mr Carnovale:

Mr Senior Member, I have no objection if you wish to ask him whether he has been advised as to possibilities of settlement.  He may not understand you otherwise.

Mr Barbour:

All right.

Mr Khadem, the reason I am reluctant to continue with these proceedings is because in my view you have not been honest with this Tribunal and there is the likelihood that very serious matters are going to be raised which will affect you and your family.  Now, this is not a court of law, this is an administrative review tribunal and that means that we proceed on a different basis to what a normal court would proceed.  But nevertheless, to determine your application to this tribunal I will need to make findings about the matters that are being raised in evidence before me.  And accordingly, I want to make sure that you understand very clearly that if you proceed that is what I will need to do.  That is why I gave you the time to talk with your barrister and solicitor and, I understand, your son.

The Interpreter:

I spoke to them.

Mr Barbour:

So that you could decide whether you wanted to continue with these proceedings or whether you wanted to try and settle them.

The Interpreter:

I told him to try to settle it.

Mr Barbour:

And that has not been possible?

Mr Carnovale:

No objection if you ask him that question directly.  No it has not.

Mr Barbour:

And that has not been possible though?

The Interpreter:

What do you mean wasn't possible?

Mr Carnovale:

Well, could I indicate that perhaps it would not - without any disrespect - it would not be appropriate to go into any detail.

Mr Barbour:

No, I do not intend to go into any detail and I am sort of getting to the point now where I am feeling more and more uncomfortable about going much further.

I want to be satisfied, Mr Khadem, that you understand what you are doing by continuing in these proceedings.

The Interpreter:

How would I know what's going to happen?  I'm not able to explain to this Tribunal the issue of the manager, the issue of the bank and I've been saying that my children are dealing with cigarettes and I have no relation to that.

Mr Barbour:

Mr Khadem, I do not accept your evidence in relation to much of what you have said.  I cannot make myself any clearer.  I do not accept that you are giving honest
evidence.  Now, all I am saying to you is this, I want to be sure that you understand what you are doing in proceeding and that you have made that decision in understanding what are the consequences of that."

Mr Carnovale then asked for a short adjournment to get instructions.  When the matter resumed Mr Carnovale asked Mr Barbour to disqualify himself, indicating that the comments he had made were open to the interpretation that Mr Barbour had decided to disbelieve Mr Khadem in advance of hearing evidence from Mr Khadem's son and Mr Khadem's wife which would, it was said, corroborate Mr Khadem.  To this Mr Barbour replied that it was his understanding that it was incumbent upon him as a decision-maker to advise Mr Khadem if the evidence being given was not being accepted as completely honest or candid.  He suggested that he would have been guilty of not providing natural justice or procedural fairness to Mr Khadem had he not done so.

The matter was debated before the Tribunal with submissions being put by both counsel and ultimately Mr Barbour refused to disqualify himself and set a date for the further hearing of the matter.  Ultimately the matter was adjourned until 21 August, but subsequently a further adjournment has been agreed until December, pending the outcome of the proceedings before me.

It should be clearly stated that at no time has it been suggested, nor could it be, that Mr Barbour was personally biased against Mr Khadem.  The issue is whether the comments made by Mr Barbour, in the context in which they were made, were such as to give rise to an appearance of bias.

Until the decision of Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 there existed a controversy as to the test that should be applied when bias was suggested. One view was that it was necessary to show a real likelihood that the decision-maker would have a bias in favour of one of the parties. The other view was that it was sufficient that a judge could reasonably be suspected of being biased. The two views and the resolution of them in the United Kingdom in Metropolitan Properties, were considered by the High Court in R v Watson; Ex parte Armstrong (1976) 136 CLR 248. In that case the Court formulated for Australia the principle that a judge should not sit to hear a case if it might reasonably be considered that he or she could not bring "a fair and unprejudiced mind to the decision" (at 263).  There was no suggestion that any different rule applied in a Tribunal than that applicable to a superior court.  If anything, the contrary is implicit in what was said by the High Court at 263.

The test in Armstrong's case was affirmed by the High Court in Livesey v The New South Wales Bar Association (1983) 151 CLR 288 where the Full Court, comprising Mason, Murphy, Brennan, Deane and Dawson JJ, stated the principle in the following terms (at 293-4):

"That 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."

The Court pointed out that the application of the principle was often difficult because matters of degree were involved and because the circumstances might strike different minds in different ways.  The Court warned (at 294) that:

"... 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 on the grounds of a possible appearance of pre-judgment or bias ...".

The cases involving ostensible bias generally deal with circumstances where it is suggested that a judge or Tribunal member has a preconceived view such that he or she should be disqualified from hearing the case.  Few concern the issue whether comments made during the trial might bring about a disqualification.  Three cases, however, where the question has arisen are Vakauta v Kelly (1989) 167 CLR 568 in the High Court, Galea v Galea (1990) 19 NSWLR 263 in the New South
Wales Court of Appeal and Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 in this Court.

The paucity of authority may well stem from an evolution over time in the role of the trial judge sitting without a jury.  As Brennan, Deane and Gaudron JJ observed in Vakauta v Kelly (at 571):

"... a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated."

The degree to which judges or tribunal members will, in practice, intervene in proceedings will vary with the personality of the judge or member.  Galea v Galea provides a striking example of what may be described as forceful judicial intervention in cross-examination, although the Court of Appeal was ultimately of the view that no miscarriage of justice had occurred.

Galea makes clear, however, that there is a distinction between an intervention which is reasonably to be taken as indicating that an opinion has been finally reached which could not be altered by further evidence or argument and
one which merely suggests a provisional view: see at 281 per Kirby ACJ, with whose reasons Meagher JA agreed.

With characteristic felicity of language, Meagher JA (at 283) lamented a tendency for appellants to allege mis-trial on the basis of bias.  His Honour said:

"Where, as in the present case, a judge is confronted by a witness who is both deceitful and evasive, there is no principle that he is not at liberty to express his measured displeasure at being trifled with.  There is no principle that he must endure the ordeal with ladylike serenity. ... a timely intervention serves the interest of the party leading such evidence, as it provides him with a chance to mend the damage already inflicted."

In Vakauta v Kelly the judicial comments complained of and ultimately held by a majority of the Court to have constituted ostensible bias, were made during the course of the trial of a personal injury case.  The comments concerned remarks about certain doctors, before they had in fact given evidence, suggesting that their views were slanted in favour of the Government Insurance Office.  There was criticism also of the efficiency of the insurance office.  These views were repeated in the judgment.  The comments suggested that the trial judge had preconceived views as to the objectivity of the doctors.  The case was not one where the suggestion was made that his Honour had, during the trial, formed a final view about evidence before the evidence was concluded.  Much of the discussion in the case is concerned with the question whether there could be waiver of bias.  That is not an issue with which I am here confronted.

Toohey J, with whose judgment Brennan, Deane and Gaudron JJ generally agreed, accepted what had been said by McHugh JA in the New South Wales Court of Appeal, to the effect that a conclusion that there is a reasonable apprehension of bias should not be drawn lightly.  In the result, his Honour held that a fair minded observer was likely to conclude from the remarks made by the trial judge that his Honour would approach the assessment of damages with a strongly held opinion that the evidence of the appellant's medical witnesses would be worthy of little credence.  The separate judgment of Brennan, Deane and Gaudron JJ mentioned (at 571):

"... there is an ill defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice".

The case was ultimately found to be one where the comments made by his Honour in the judgment fell on the wrong side of the line.  Any question of bias in the comments made during the trial had been waived.

Vaukata v Kelly was subsequently discussed by a Full Court of this Court in Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310. In that case it was held that remarks made by the Chairperson of the Australian Broadcasting Tribunal concerning Mr Skase at the opening of an inquiry were not such as to create in the mind of a fair minded observer a reasonable apprehension of bias. Five matters raised in the joint judgment of Lockhart, Pincus and Gummow JJ warrant comment. First (and of importance to the present case), a distinction is to be drawn between an expression of provisional views, on the one hand, and final views, on the other. There can be little doubt that a tribunal is entitled to form provisional views and that the formation of such views may well be helpful in making it clear to a party how submissions should be addressed to the Tribunal. Thus their Honours said (at 317):

"... if at the end of the evidence, but before addresses, a judge expresses strong suspicion about a witness' veracity, one would hardly expect a claim of ostensible bias to be made." [emphasis added]

Secondly, it is necessary if bias is to be made out that the circumstances raise "quite a substantial case".  In support of this proposition, their Honours cite a passage from the joint judgment of Dixon CJ, Williams, Webb and Fullager JJ in R v Australian Stevedoring Industry Board; Ex parte
Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116, (cited by Dawson J in Vakauta v Kelly):

"But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties.  Bias must be `real'.  The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that substantial distrust of the result must exist in the minds of reasonable persons.  It has been said that `preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence would be disregarded' ...".

Thirdly, their Honours suggest that in Vakauta v Kelly the High Court had been of the opinion that the remarks made by the trial judge during the trial were not such as to disqualify him, notwithstanding the forceful and colourful terms in which they were expressed.

Fourthly, their Honours were of the view that the opening remarks of the Chairperson concerning Mr Skase were not as suggestive of a preconceived view, difficult to eradicate, as those which had survived challenge in Vakauta v Kelly.  Rather, she was giving voice to thoughts prompted by material which the Tribunal had accumulated since the inquiry began.

Finally, their Honours mentioned that there may be a different approach to be taken in the case of administrative tribunals, at least those which have policy functions (at 319).

With respect to their Honours, there must be some doubt as to whether it is correct to say in Vakauta v Kelly that the High Court was of the opinion that the remarks made during the course of the trial standing alone would not have sufficed to disqualify the trial judge. Ultimately it was unnecessary to decide that question, it having been held that the appellant had waived any right to complain about these comments. Toohey J agreed that what had been said did not constitute actual bias. However, there are passages in his Honour's judgment (particularly at 585) which suggest that his Honour might well, had the issue of waiver not decided the matter, have taken the view that a reasonable or fair minded observer would have been likely to conclude that the trial judge would approach the assessment of damages with a strongly held opinion that the evidence of the appellant's medical witnesses was worthy of little credence. The judgment of Brennan, Deane and Gaudron JJ reaches no conclusion on the matter. It is only Dawson J (at 576) who suggests that the
remarks made during the trial would not, without more, raise an apprehension of bias.

There is another matter arising out of Kaycliff which causes me some concern.  It will be recalled that the Full Court cited, with approval, the passage which I have set out above from the joint judgment of Dixon CJ, Williams, Webb and Fullager JJ, in the Melbourne Stevedoring Co case.  That passage speaks of the necessity of showing a "high probability" of bias.  The more recent High Court authorities, such as Livesey, speak in the language of possibilities, using the word "might" rather than some expression such as "would".

The most recent High Court authority Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78 while expressing the relevant test as being that in Livesey, referred with approval to the test in the Melbourne Stevedoring Co case as well: see the judgment of Brennan, Gaudron and McHugh JJ at 86.  Their Honours did not appear to see any real difference between the two tests.

Kirby P, in Australian National Industries Pty Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411 at 419, expressed the view that the New South Wales Court of Appeal was bound by the "possibility test" as expressed in Livesey. The same view was taken by Mahoney JA (at 439), although his Honour (at 440) pointed out that not too much should be made of the
distinction.  The remaining member of the majority, Meagher JA, founded his judgment on the very distinction.  His Honour was of the view that no reasonable man would, in the circumstances of that case, apprehend any probable bias.  His Honour observed that applying the Melbourne Stevedoring Co test, the appeal would need to be dismissed.  However, applying the test in Livesey, the appeal would have to be allowed.

Samuels JA, with whose judgment Gleeson CJ agreed (their Honours were in the minority) placed emphasis upon what was said by Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352, as suggesting that the Court had moved away from the Livesey test to adopt a test of "will" rather than "might".  However, his Honour ultimately (at 429) reached a conclusion based upon the test of possibility rather than probability.

To the extent that the Full Court in Kaycliff was adopting a test of probability of bias rather than possibility of bias, it would seem that there is a conflict between the views of the Full Court of this Court and the views of the New South Wales Court of Appeal.  That is to say, if there is, in truth, a real difference between the two tests.  As a single judge I am, of course, bound by the Full Court of this Court.  Fortunately, on the facts of the present case, I do not think any different result would follow by the application of either test.
         At the heart of the present controversy lies the question whether Mr Barbour was merely expressing a tentative view which he had formed of Mr Khadem's credit as, for example, had been held to be the case in Kaycliff, or whether his comments went further than that and were such to raise in the mind of a reasonable and fair minded observer the view that he had in reality formed a final view so that irrespective of such evidence as was thereafter to come, including evidence from Mr Khadem's wife and son, Mr Khadem's case was bound to fail.

The problem in the present case is made more acute, as counsel for Mr Khadem submitted, by the fact that the comments were made in the context of what appears to be pressure being put upon Mr Khadem to settle, having regard to what are said to be the consequences which the Tribunal's findings might have upon him and his son.  It is a little difficult to understand what those consequences were, although it seems the remarks were made in the context of what may possibly be illegal cigarette trafficking from Queensland to New South Wales and the possibility of Mr Khadem incriminating himself.

The question must, of course, be seen within the context of the issue before the Tribunal, namely, whether the assessment made by the Commissioner was excessive.  Where in a case involving a default assessment, a question arises as to whether there are sources of income other than those disclosed by the taxpayer and omission of income is denied by the taxpayer, the question will ultimately found on the credit of the taxpayer who must show not merely that the assessment is incorrect but also the extent to which it is incorrect.

It seems to me that a reasonable and fair minded observer would, on hearing the remarks of Mr Barbour in the context in which they were made, form the view that he had made his mind up.  Not only that, but that he expressed this concluded view in the context of applying some pressure upon Mr Khadem to discontinue the proceedings.  The suggestion that counsel should confer with Mr Khadem was made not just once but three times in succession, despite counsel indicating that he had discussed the matter with his client.  The case hardly seemed one, having regard to the course the evidence had at that time taken, where any settlement, short of discontinuance, would be likely.

I do not think that any different result should follow merely because Mr Barbour was acting as an administrative tribunal rather than exercising judicial power.  Although, as indicated earlier, it may be the case that a different test should be applied to an administrative tribunal having a policy function, the Administrative Appeals Tribunal does not have any policy function.  Its task, within the context of the objection of the taxpayer, is to review the decision of the Commissioner to disallow the objection.  In doing this it must act impartially and be seen to have acted impartially.  Although it may be said that judges and members of tribunals are able to put out of their minds preconceived ideas or views formed after they have heard other evidence (and there is no empirical evidence that this is necessarily so), I think that an objective observer would find it difficult in the present case to accept, after the comments which Mr Barbour made, that he would or could change his mind after hearing further evidence from Mr Khadem or his family.

For these reasons I would order that Mr Barbour cease hearing the review and that the matter be heard again by a tribunal differently constituted.  The Commissioner should pay the applicant's costs of these proceedings.

I certify that this and the
preceding twenty-six (26) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date:  30 August 1995

Counsel and Solicitors      FP Carnovale instructed by

for Applicant:              John Sarroff & Co

Counsel and Solicitors      DB McGovern instructed by the

for Respondents:            Australian Government Solicitor

Date of Hearing:            11 August 1995

Date Judgment Delivered:         30 August 1995