KT v Sydney South West Area Health Service

[2010] NSWADT 131

CITATION:	KT v Sydney South West Area Health Service [2010] NSWADT 131
DIVISION:	General Division
PARTIES:	APPLICANT KT RESPONDENT Sydney South West Area Health Service
FILE NUMBER:	103029, 103075, 093255
HEARING DATES:	20 April 2010
SUBMISSIONS CLOSED:	20 April 2010
EXTEMPORE DECISION DATE:	20 April 2010
BEFORE:	Molony P - Judicial Member
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 KT v Sydney South West Area Health Service [2010] NSWADT 94 Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Murlan Consulting v Ku-ring-gai Municipal Council [2009] NSWCA 300 Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342
REPRESENTATION:	APPLICANT In person RESPONDENT B Woolley, solicitor
ORDERS:	I refuse KT’s application that I disqualify myself.

REASONS FOR DECISION

Introduction

1 KT has asked that I disqualify myself from hearing and determining all applications made by him which have been allocated to me. He initially made that application in writing on 3 March 2010.

2 I considered the issue at a planning meetings in respect of a number of those matters held on 20 April 2010. I considered the issues best ventilated in that forum, and not appropriate for determination following an exchange of letters. Immediately before the planning meeting KT again wrote requesting that I disqualify myself. I asked him to address the matters he relied on in that meeting, and sought the Sydney South West Area Health Service’s (SSWAHS) submission in response.

3 Having heard those submissions I declined to disqualify myself. KT has since sought reasons for that decision in writing. These are those reasons.

4 I again raised the issue in another planning meeting later that day involving a different Respondent, the NSW Self-Insurance Corporation. This was the first time that matter had been before me. I indicated to the solicitor appearing for the corporation that KT had earlier asked me to disqualify myself in all his matters and that I had refused to do so in matters involving the SSWAHS as Respondent. I asked KT whether he wished to again make the submission in respect to the application involving the Self-Insurance Corporation or whether he accepted my earlier ruling. KT did not seek to make the submission again.

5 KT pointed to the decisions I have made in the past, both final and procedural, as requiring me to disqualify myself from any further involvement in his applications. While he did not clearly articulate this, it is implicit in his submission that I have a fixed view in relation to him and am not amenable to persuasion in respect of all the arguments and contentions he advances. In that sense, his objection to my hearing matters involving him is global, rather than restricted to specific issues that he claims I have a fixed mind on.

6 The test as to whether there is a reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power being exercised: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342. The test requires two steps: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [8];

“First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.”

See also Murlan Consulting v Ku-ring-gai Municipal Council [2009] NSWCA 300 at [43].

7 In McGovern v Ku-ring-gai Council [2008] NSWCA 209 Spigelman CJ (with whom Campbell JA agreed) said:

“14 Although the Australian test for apprehended bias, as expressed in terms of two “mights”, sets a low threshold, with respect to a pre-judgment case the identification of what constitutes a lack of ‘impartiality’ or of ‘prejudice’ in the mind of the decision-maker involves an issue of some specificity.
15 The test for pre-judgment in Australian law is, in my opinion, to the same effect as that identified by the Supreme Court of Canada in Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170 where, in the terminology of the majority judgment: the decision-maker must be “capable of being persuaded” (at 1197c); pre-judgment is of such an “extent” that contrary representations “would be futile” (at 1197d-e); statements said to constitute pre-judgment must be an “expression of final opinion ... which cannot be dislodged” (at 1197f); the position of the person must be “incapable of change” (at 1197g). The “incapable of persuasion” test was applied again in Save Richmond Farmland Society v Richmond [1990] 3 SCR 1213 at 1224g.
16 A similar approach has been adopted in Australia on pre-judgment issues in Jia Legeng where, in the joint judgment of Gleeson CJ and Gummow J, their Honours referred to a test of whether the decision-maker “is open to persuasion” (at [71] and [105]), or whether the “conclusion already formed [is] incapable of alteration, whatever evidence or arguments may be presented” (at [72]).
17 To similar effect are the observations of Hayne J, namely, that a decision-maker will apply his or her opinion “without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case” (at [185]). His Honour went on to refer to the test terms of whether “the evidence will be disregarded” (at [186]).”

Discussion

8 In the light of those principles it is necessary to consider whether a fair-minded lay observer might reasonably apprehend that the I might not bring an impartial mind to the determination of KT’ cases, in the light of the factors relied on by KT.

9 The first of these relate to decisions I made in file no 093255. In this matter KT points to my refusal to allow him to issue a summons directed to the Local Court seeking production of an investigation report tendered in proceedings before the Court; and my decision to determine that application on the papers under s 76 of the Administrative Decisions Tribunal Act 1997.

10 This application was originally listed before Higgins JM for a number of planning meetings, before she recused herself. There have been two planning meetings before me. The parties had filed evidence and submissions before the last planning meeting in February 2010.

11 At that planning meeting the issues requiring determination were reviewed and discussed, in the sense that I asked the parties to identify the issues as they saw them and to briefly refer me to the evidence they relied on to support their positions. A general understanding of the issues and the evidence was necessary to enable me to determine whether the matter was now ready to be determined, whether such determination required a hearing, or could be made on the papers in the absence of the parties, and whether further evidence was required. In the course of that discussion it was incumbent on me to draw the legal implications of assertions made by both parties to their attention: see s 73(a) and (c) of the Administrative Decisions Tribunal Act 1997. This I did, seeking to ensure that KT, who is not legally represented, understood the consequences of the Respondent’s assertions.

12 I then determined that the issues, as I understood them, could be adequately determined in the absence of the parties, on the papers under s 76 of the Administrative Decisions Tribunal Act 1997. KT objected to this course, saying that he wished to file further evidence in response to that filed by the Respondent, and to extract concessions from the Respondent’s witnesses at a hearing. On my understanding of the issues and evidence, at that time, I did not consider that any real benefit would flow from a formal hearing and that the issues could be adequately determined on the papers. I considered a formal hearing unnecessary, and that issues could be expeditiously, fairly and efficiently determined on the papers in accordance with the objects in s 3 of the Administrative Decisions Tribunal Act 1997.

13 I did give KT the opportunity to file further material and submissions in response by 4 April 2010. I understand that he has done so. Given his request that I disqualify myself, I have not taken any further action towards progressing that application. If the material he has filed points to the matter no longer being capable of adequate determination on the papers the parties will be notified accordingly.

14 KT told me that he considered that the decision to determine the issues on the paper showed that I would not give him natural justice. When I asked him to explain what he meant he said, “Giving me the full opportunity to provide and helping me to provide any substantial evidence either documentary or orally.”

15 I do not consider that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the determination of KT’ cases, as a result of my decision to determine that application on the papers.

16 KT misapprehends the role of a Tribunal in hearing and determining applications. The Tribunal is required by its objects (see s 3), among other things, to provide an efficient, effective and fair decision making process and is to ensure that proceedings are determined in a fair and expeditions manner. In aid of those objects s 73 provides for the Tribunal’s procedures to be flexible and informal, for it not bound by the rules of evidence, and for its decisions to be made in accordance with equity, good conscience and according o the substantial merits of the case, without regard to technicalities or legal forms. Importantly, s 73(4) instructs the Tribunal to take reasonably practicable measures:

“(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and
(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and
(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

17 In order to ensure that a parties receive a procedurally fair hearing it is not incumbent on the Tribunal to provide them with an oral hearing, where the Tribunal considers that the issues can be adequately determined in the absence of the parties”: s 76. Section 70, however, instructs:

The Tribunal must ensure that every party to proceedings before the Tribunal is given a reasonable opportunity:
(a) to present the party’s case (whether at a hearing or otherwise), and
(b) to make submissions in relation to the issues in the proceedings.

18 While I have an obligation to ensure that parties are able to present their cases and am aware of the difficulties faced by unrepresented litigants, that obligation does not extend “helping” them in the sense used by KT. The Tribunal is required to provide a party with an opportunity to adduce relevant and probative evidence: that obligation does not extend to helping them to do so.

19 KT relied on my refusal of his request to issue a summons to obtain documentary evidence from the Local Court, which he says is relevant to the issues to be determined. This request was made after the time for the filing of evidence by KT had closed on 4 April 2010. He had not requested that the summons issue in either of the planning meetings I conducted, and there is no record of him having asked Higgins JM to issue such a summons when the matter was before her.

20 I refused the request on the basis that the time for KT to file evidence had passed, and that the application was now before the Tribunal for decision. KT said of this decision: “it means you have intention to cutting my wings.” When I pointed out to KT that the time for the filing of evidence and the making of submissions had closed in that matter, he responded that I had a discretion to allow the summons to issue and should have exercised it in his favour.

21 I do not consider that an informed, fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the determination of KT’ cases, as a result of my decision to refuse to issue a summons in those circumstances.

22 KT also argues that the planning meeting was a preliminary conference under s 74 of the Administrative Decisions Tribunal Act 1997, and objects to my determining the matter under s 74(5). That section provides:

(1) The Tribunal may, before formally commencing to determine an application, confer informally with, or arrange for a member or assessor to confer informally with, the parties to the proceedings in a preliminary conference and make any determination with respect to the proceedings that is agreed to by the parties.
(2) If proceedings are referred under this section to a member or an assessor and the parties agree to the determination of the member or assessor, the determination has effect as a decision of the Tribunal.
(3) (Repealed)
(4) If the proceedings are not determined under this section and proceed for a formal determination by the Tribunal:
(a) evidence is not to be given, and statements are not to be made, concerning any words spoken or acts done at a conference held in accordance with this section unless the parties otherwise agree, and
(b) any member or assessor who presided over a preliminary conference in respect of the proceedings may participate as a member of the Tribunal determining the proceedings, or as an assessor in those proceedings, unless:
(i) a party to the preliminary conference objects to the member or assessor further participating in the proceedings, and
(ii) the party demonstrates in that objection that the further participation of the member or assessor is likely to prejudice the party’s case.
(5) For the purposes of subsection (4) (b), a party objects to a member or assessor further participating in proceedings only if:
(a) the objection is lodged with the Registrar within 14 days after the conclusion of the preliminary conference (or within such other period as may be prescribed by the rules of the Tribunal), and
(b) the objection is in such form as may be prescribed by (or approved under) the rules of the Tribunal.
(6) The President may direct that a preliminary conference is to be held under this section in the case of any applications made to the Tribunal of a kind specified in the direction.

23 The Planning meeting conducted on 23 February 2010 was not listed as or conducted as a preliminary conference under s 74. I made no determination of the issues during that hearing. I made directions for the filing of further material and submissions by KT and decided to determine the issue on the papers.

24 KT also points to decisions I have made in two matters I have previously determined to which he was a party, in both of which he was unsuccessful. He says that these gave rise to a reasonable apprehension of bias on my part: they are an ex tempore decision I delivered on 12 February 2010 in file number 083367, KT v Sydney South West Area Health Service and my written decision in KT v Sydney South West Area Health Service [2010] NSWADT 94.

25 I understand that KT has lodged an appeal with respect to 083367.

26 In 083367 I effectively dismissed applications for the review of conduct by KT under the Health Records and Information Privacy Act 2002 and Privacy and Personal Information Protection Act 1998, deciding that there was no substance to his claims. I asked KT to identify what it was about that hearing or decision that gave rise to an apprehension of bias.

27 He replied that during that hearing he had been denied natural justice because his cross-examination had been interrupted by Counsel for the SSWAHS “and you supporting him didn’t allow my cross-examination.” He claimed that interruptions from Counsel for the SSWAHS and the Tribunal had denied him natural justice.

28 KT is correct that his presentation of his case and his cross-examination in that matter was frequently interrupted. Those interruptions were in the form of proper objections from Counsel for SSWAHS, on the basis of relevance, most of which were upheld. As the hearing progressed I also intervened on a number of occasions to require KT to address matters within the scope of the review, rather than matters which I had ruled outside the scope of the review. In giving my oral decision I addressed those difficulties as follows:

“At the commencement of the hearing I sought to make it clear to [KT] that the Tribunal’s function was to review the conduct that was the subject of the internal review only, and that I would not allow the hearing to extend to matters that I am not required to determine.
This proved to be a considerable challenge during the hearing in which [KT] repeatedly sought to raise issues which were not related to the conduct considered by the internal review. Three examples of this are; first, [KT]’s wish to agitate what he saw as a breach of his daughter’s privacy by Dr Nossar writing a letter referring to her. The letter was written before the period considered by the internal review and therefore was not considered by the internal review.
Secondly, [KT]’s attempts to agitate what he saw as breaches with respect to his wife’s privacy. [KT] did not provide the internal review with any authority to make a complaint or act on his wife’s behalf and as a result conduct relating to her was not considered on the internal review and is outside the scope of the review by this Tribunal. Additionally, I note that his wife has her own proceedings before Tribunal.
Thirdly, [KT] repeatedly wished to agitate what he believes were delays in acknowledging receipt of his application for internal review and in considering it. Irrespective of the merits or otherwise of [KT]’s view about this, as I was at pains to point out on a number of occasions during the hearing, I was not conducting a judicial review of that decision and did not allow my consideration of the conduct the subject of the review to be diverted by those matters. ”

29 I do not consider that an informed, fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the determination of KT’ cases, as a result of the matter complained of by KT with respect to the hearing of file number 083367.

30 With respect to my decision in KT v Sydney South West Area Health Services [2010] NSWADT 94 complained that I had adopted the whole of the Respondent’s case “without any substantial evidence.” As a result of that decision he said he had no confidence that he would receive natural justice in matters determined by me.

31 Whether or not there was evidence upon which I could reasonably reach the conclusions I did in that case is a matter properly considered by others on appeal.

32 I consider that KT’s complaint is really one that he did not like and disagrees with the decision I reached. As a result, he claims that he will not get natural justice. Aside from the decision itself, he does not point to any specific conduct or finding which he claims give rise to an apprehension of bias. I do not consider that an informed, fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the determination of KT’ cases, as a result of my decision in that case.

33 Finally, I note that in his letters to registrar seeking my disqualification KT raised the following other matters which he did not address when making his oral submissions. These are that I:

A - made unspecified “adverse observations” against him “without proper justification;”
B - expressed unspecified “strong opinions for elements of the case … without waiting for me to submitting (sic) my comments on the respondent (sic) submission;”
C - “allowed the respondent to cause delay in the processing, which caused me not to afford the delay.”
D – had not determined another matter involving the parties as quickly as practicable.

34 Item A is so unspecific that I do not understand what is being complained of. In the course of the addressing me on these issues KT did not provide any further specification, despite being given every opportunity to outline his reasons for seeking that I disqualify myself.

35 Item B is again unspecific. I understand KT to be referring to comments I made at the February planning meeting matters concerning the Respondent’s assertions, which I was obliged, by s 73(a) and (c), to ensure he understand the consequences of. I have already dealt with that issue in some detail. Additionally, KT was given an opportunity to make further submissions concerning those assertions.

36 Items C and D do not provide a ground for disqualification.

Conclusion

37 As a result I refused KT’s application that I disqualify myself.