Magazzu v Business Licensing Authority
[2001] VSC 5
•31 January 2001
| SUPREME COURT OF VICTORIA AT MELBOURNE |
| COMMON LAW DIVISION |
No. 6324 of 2000
| MICHAEL MAGAZZU | Plaintiff |
| V | |
| BUSINESS LICENSING AUTHORITY | Defendant |
---
JUDGE: | Eames J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 December 2000 | |
DATE OF JUDGMENT: | 31 January 2001 | |
CASE MAY BE CITED AS: | Magazzu v Business Licensing Authority | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 5 | |
---
Administrative Law – Victorian Civil and Administrative Tribunal – Natural justice – Bias – Application for Tribunal of three members to disqualify itself after incident concerning one member - Member of Tribunal announces intention to retire from the Tribunal – Whether all members obliged to disqualify selves – Whether Tribunal as presently constituted could sit to consider application to reconstitute Tribunal with a new member – Statutory requirement that present members of Tribunal hear the application – Victorian Civil and Administrative Tribunal Act 1998, s.108.
---
APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr P. Tehan QC | Issac Brott |
| For the Defendant | Mr T. Ginnane | Victorian Government Solicitor |
HIS HONOUR:
On 13 September 1995 the plaintiff applied for a Prostitution Service Provider Licence to conduct a brothel at 554 Swanston Street, Carlton with the business name of Manhattan Terrace, and also an escort agency with the business name Manhattan Terrace Escorts. The plaintiff claimed that he was entitled to make such an application as he was a deemed licensee pursuant to s. 69 of the Prostitution Control Act 1994, which provided that an individual who immediately before 13 June 1995 carried on a brothel and/or escort agency business with a planning permit to use the land for that purpose was deemed to have held a licence, provided that an application for a licence under the Act was lodged before 14 September 1995. An application for such a licence must be considered by the Business Licensing Authority (hereinafter called “the Authority”). On 16 May 1999 the defendant refused the application on various bases, concluding that the plaintiff was not a suitable person to carry on business as a Prostitution Service Provider. The defendant also concluded that the plaintiff was not a deemed licensee as defined by s. 69 of the Prostitution Control Act.
The plaintiff sought to challenge that decision of the Business Licensing Authority by making an application for review before the Victorian Civil and Administrative Tribunal (“VCAT”) and a hearing commenced before a Tribunal established from members assigned to the Occupational Business and Regulation List of VCAT. On 3 August 2000, after a hearing over three days, and after receiving written final submissions, the Tribunal (save for some minor variations) upheld the order of the Authority. The plaintiff commenced appeal proceedings by way of originating motion seeking leave to appeal so as to quash the decision of the Tribunal, on the basis that the conduct of the hearing constituted a denial of natural justice.
Leave to appeal from the decision of the Tribunal was required by virtue of s.148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act) , and leave was granted by Master Wheeler.
The Conduct of the review by the Tribunal
Order 5.06(4) of the Victorian Civil and Administrative Tribunal Rules 1998 (“the Rules”) required that the Tribunal be constituted by at least three members. Rule 5.06(4) reads as follows:
(4)Any matter arising under a provision of the Prostitution Control Act 1994 that is allocated to the occupational and business regulation list must be determined by the Tribunal constituted by at least 3 members including –
(a)a member being a person who has been admitted to legal practice for not less than 5 years; and
(b)a member who shall be either –
(i)a barrister and solicitor of the Supreme Court or of the High Court of Australia with knowledge, experience and expertise in criminal law, company law or another area of law relevant to the functions of the Tribunal under the Prostitution Control Act 1994; or
(ii)a member of the police force of or above the rank of inspector; and
(c)a member who has knowledge of the prostitution industry in Victoria or of health, occupational health and safety, enforcement or general community issues relevant to the functions of the Tribunal under the Prostitution Control Act 1994.”
On 7 February 2000 a Tribunal comprising Mr Levine, a Deputy President of VCAT and Chairperson of the Tribunal, together with Ms Snow and Mr Reid, as Members, commenced hearing the review of the decision by the Authority. Ms Snow was a Member appointed pursuant to R. 5.06(4)(c) and Mr Reid was an Inspector of Police appointed pursuant to R. 5.06(4)(b)(ii). I was told by counsel for the parties that Ms Snow’s knowledge of the prostitution industry derived, in part at least, from the fact that she was a former brothel proprietor.
On 7 February 2000 the plaintiff gave evidence-in-chief and was then extensively cross-examined by counsel for the Authority. At the end of the day, the plaintiff’s evidence having not been completed, the Tribunal adjourned for the day and on recommencing at 10 o’clock on Tuesday, 8 February, Mr McNab, who then appeared as counsel for the plaintiff, made application “that the Tribunal disqualify itself from proceeding with the hearing on the grounds of apparent bias”. Mr McNab said his client had observed Inspector Reid the previous evening, shortly after the case had adjourned, apparently talking to Detective Amor on the street near the hearing place.
Mr McNab said that Amor was likely to be called as a witness. He referred the Tribunal to relevant authorities and submitted that a fair minded member of the public would entertain a reasonable apprehension of bias against the Tribunal. Mr Levine, the chairman of the Tribunal, said that he wanted to hear evidence from the plaintiff and when Mr McNab said he would call evidence if that was required Mr Levine said, “Yes, I think so because I need to know. I am not going to ask Inspector Reid in front of (indistinct) and I want to hear from your client and hear what he says, and then I’ll deal with the issue.”
The plaintiff was then called to give evidence and he said, “I saw two gentlemen on the corner of Flinders Lane. I didn’t recognise them at first but when I came up close I realised it was Wayne Amor and Mr Reid on the corner and I thought they looked like they were talking.” He said he walked up and said, “Hello Wayne.” He then kept walking. At the conclusion of the evidence of the plaintiff Mr Levine asked whether Mr Lacava, who then appeared for the Authority, wanted to call Mr Amor. Mr Lacava said he was happy to do so and added, “In my submission we should hear from him, but apart from that I don’t know whether I can usefully assist the Tribunal until all the evidence is in.” To that comment Mr Levine replied, “The difficulty I have without all the evidence being in is I have someone here who can also give evidence in relation to this matter (indistinct).” That was, plainly, a reference to Mr Reid. There was some discussion between Mr Lacava and Mr Levine and then Mr Lacava said, “I can see that you may wish to discuss the matter with Inspector Reid privately, but before you do that could I suggest that we hear from Mr Amor.” Mr McNab observed that the application made on behalf of his client meant that he was asking the court to sit in judgment of itself to some extent, to which Mr Levine said that that was always the case in a bias application.
Mr Levine was seemingly uncertain as to what should occur with respect to the panel member about whom the complaint was made. The somewhat inadequate transcript records that he said, “I am just not sure of the (indistinct) of having, no disrespect to my fellow panel members, but a non-judicial member sitting from the bench to say what they did. I am not sure – it’s a bit different from a judge sitting on the bench and saying ….”
Mr McNab said there was no allegation of actual bias and Mr Levine replied, “I understand that. It’s just a question that I have to decide. I think I would like to speak to my fellow members before we take any further evidence.” The Tribunal then adjourned and upon resuming it appears that a statement was made by the Chairman. Unfortunately, the tape recorder malfunctioned at this point and only commenced recording at some time after Mr Levine had commenced making his statement on behalf of the Tribunal. The inadequacies of the transcript pose some problems in determining precisely what occurred at this point.
By directions made by Master Wheeler on 7 September 2000 the defendant to the current proceedings was required to file any affidavit on which it wished to rely on or before 21 September 2000 and the plaintiff was required to file any affidavits on which he relied by the same date. Affidavits were filed on behalf of the parties, but that material reflected uncertainty, and some disagreement between the parties as to what had transpired.
The defendant to the proceedings before me was the Business Licensing Authority, not the Tribunal, but in any event, and by reference to the principles enunciated by the High Court in R v Australian Broadcasting Tribunal (Ex parte) Hardiman and Ors[1], which would have applied had the Tribunal been a party, the Registrar of VCAT advised that the Tribunal would not itself take any active role in the proceeding. However, the chairman of the Tribunal which conducted the review in the Victorian Civil and Administrative Tribunal, Mr Michael Levine, swore and filed an affidavit in these proceedings, on 17 October 2000. Some of the matters referred to in that affidavit proved to be contentious, initially at least. Although the affidavit of Mr Levine was in fact relied on in the hearing before me it was not filed by or on behalf of the Business Licensing Authority. It was not, however, submitted by either counsel that I should not read that affidavit, and I have had regard to it. Given the fact that that my recourse to the affidavit was not challenged it is unnecessary for me to consider further whether it was appropriate that such an affidavit should have been filed before me.
[1](1980) 144 CLR 13, at 35
In his affidavit Mr Levine, as Presiding Member of the Tribunal deposed as follows:
“3.On 8 February 2000, Mr McNab, counsel for the applicant made application that the Tribunal disqualify itself from further hearing the proceeding on the grounds of apparent bias. Mr McNab stated that his client, Mr Maguzzu saw Senior Sergeant Amor, an intended witness for the respondent, talking to Inspector Reid at the conclusion of the first day of the hearing. After further submissions and evidence from Mr Magazzu, the proceeding was stood down for a short time so that I could confer about the matter with the other members.
4.I discussed the application made by Mr McNab with Inspector Reid in the presence of Ms Snow. He told me that he had seen Senior Sergeant Wayne Amor on the corner of Flinders Lane and King Street and because it was such a hot day he offered Senior Sergeant Amor a lift back to the police station which invitation was accepted. No further discussion took place between myself and Inspector Reid nor I believe between Inspector Reid and Ms Snow on this issue. Having regard to what Inspector Reid had told me I decided that Inspector Reid should disqualify himself from further sitting in the proceeding and he agreed.
5.When the hearing re-commenced, I informed the parties that Inspector Reid would disqualify himself from sitting further in the proceeding and requested the parties to make submissions as to the further conduct of the proceedings. Counsel for the respondent submitted that a third member should be appointed but that otherwise the Tribunal should proceed as presently constituted. There was no objection by Mr McNab to this application.
6.As a result an order was made for the Tribunal to be re-constituted with Mrs Lambrick replacing Inspector Reid. I am informed that the new member Mrs Lambrick listened to the tape recording of the evidence of the previous day’s hearing and the exhibits tendered were made available to her prior to the matter continuing at the next day of sitting.”
On behalf of the plaintiffs, it was submitted that the affidavit of Mr Levine should not be accepted as wholly accurate. It was submitted that - notwithstanding what appears in paragraph 5 of the affidavit - no request was made to the parties to make submissions, as was required by s. 108(3)(a) of the VCAT Act. Insofar as the affidavit of Mr Levine suggests in paragraph 5 that counsel for the plaintiff, Mr McNab, did not object to the suggestion that the Tribunal be reconstituted, that too is inaccurate, Mr Tehan, senior counsel for the plaintiff submitted.
Grounds of Appeal
Master Wheeler granted leave to appeal on 7 September 2000, having accepted that the appeal raised questions of law. The questions of law which were identified and the four grounds of appeal which were referred to the court were set out as follows in the notice of appeal:
“Questions of Law
1.The Tribunal having acceded to an application that one of its members disqualify himself on the grounds that he may have exhibited the appearance of bias, in what circumstances should the Tribunal be fully reconstituted or only partly reconstituted for the purposes of s. 108 of the Victorian Civil and Administrative Tribunal Act 1998?
2.Having retired from further hearing of the application could Inspector Reid continue to sit as a member of the Tribunal for the purposes of s. 108(3)(a) of the Victorian Civil and Administrative Tribunal Act 1998?
Grounds of Appeal
1.The Tribunal erred in law in that it refused the application of the applicant made on 8 February 2000 by his legal practitioner that the Tribunal then constituted by Michael Levine, Deputy President; and Jocelyn Snow, Member, and Inspector David Reid, Member, disqualify itself being each of the members from proceeding with the hearing on the grounds of apparent bias.
2.The Tribunal erred in law in deciding of its own motion in the circumstances that then were known to it on 8 February 2000, that it would under s. 108 of the Victorian Civil and Administrative Tribunal Act 1998 reconstitute the Tribunal by retaining the members then constituting the Tribunal other than Inspector David Reid, Member, and substituting for Inspector David Reid, Member, Heather Lee Lambrick, Member.
3.The Tribunal erred in law in that after it announced that Inspector David Reid Member, had decided to withdraw, following an application by the appellant that the tribunal disqualify itself on the ground of apparent bias, and without allowing the parties to make submissions, it then decided as constituted by Michael Levine, Deputy President; and Jocelyn Snow, Member and Inspector David Reid, Member, that it should be reconstituted under s. 108(3)(a) of the Victorian Civil and Administration Tribunal Act 1998.
4.The Tribunal erred in law in that in the events which had happened including that it had already announced that Inspector David Reid Member had decided to withdraw, it failed to find that it should not be reconstituted under s. 108(3)(a) of the Victorian Civil and Administrative Tribunal Act 1998.”
Waiver
Mr Ginnane, who appeared as counsel before me for the defendant Authority, submitted that the plaintiff, through his counsel, had waived the application which he had made for the Tribunal to disqualify itself. He submitted that although that application had initially been made it was not pursued by counsel for the plaintiff once counsel for the defendant had advanced an alternative proposal, namely, that the Tribunal merely reconstitute itself, so that upon the resignation of Mr Reid a replacement member would be appointed pursuant to s. 108(3). Mr Ginnane submitted that the affidavit of Mr Levine confirmed that counsel for the plaintiff had consented, or at least had not objected, to the proposal that the Tribunal reconstitute itself with one replacement member, and had thereby waived the original submission that the Tribunal should be entirely reconstituted. The plaintiff, so it was submitted had stood by until he learned what the outcome was of his review proceeding[2]. That submission was largely based on some fragmentary passages of transcript of the proceedings, and also on the affidavit of Mr Levine, which, in paragraph 5, might give the impression that Mr McNab, who was then counsel for the plaintiff, did not object to the proposal to reconstitute the Tribunal.
[2]See Vakuata v Kelly [1989] 167 CLR 568, at 572, per Brennan, Deane and Gaudron JJ; at 577-8, per Dawson J.
The transcript of the relevant exchanges between those appearing for the parties and Mr Levine is incomplete, and upon a resumption of the hearing the transcript notes that there was a tape malfunction. The transcript then proceeds as follow:
“Mr Levine: … with the information that’s already available to the two members of the Tribunal in the transcript and the evidence received so far – it’s understood by both of you and consented to?
Mr McNab: Yes
Mr Levine: On that basis we’ll be proceeding tomorrow and if necessary Thursday with a reconstituted Tribunal.”
In my opinion, a careful reading of the transcript, including passages which follow those quoted above, demonstrates that probably what was there being addressed was a discussion which had arisen as to whether the new member of the Tribunal, once it was reconstituted, could acquaint himself or herself with the evidence which had been given while Mr Reid had been a member by merely having regard to the transcript and tape recording of the proceedings, thus obviating the necessity to recall witnesses. I am satisfied that it was only that proposal to which there was no objection, and that Mr McNab did not abandon the application which had been made for the Tribunal to disqualify itself. As confirmed in paragraph 5 of Mr Levine’s affidavit, immediately upon the resumption Mr Levine informed the parties that Mr Reid would disqualify himself from sitting further in the proceedings, and I consider that in the light of that announcement Mr McNab did not abandon his application for all members to disqualify themselves but simply accepted that it had not found favour with the Tribunal.
Mr Levine deposed that he then made a request to the parties to make submissions as to the further conduct of the proceedings. The announcement made the Tribunal indicated that, at that stage, it had rejected the application that it should disqualify itself. I do not, however, consider that the issue had been finally resolved, but what then occurred was that the discussion moved on to the question of reconstitution, and, more specifically, to the question of the manner in which a new member would inform himself or herself. Insofar as the affidavit of Mr Levine, in paragraph 5, might support the suggestion that the application for all members of the Tribunal to disqualify themselves had been abandoned, I reject that contention. As I will discuss, it was open to counsel for the plaintiff, in addressing the question of reconstitution, to have pursued that submission, but his failure to do so, in the circumstances, was understandable, and did not constitute a waiver of the submission.
I turn, then, to the grounds of appeal, and will deal first with issues raised by grounds 2 and 3.
Grounds 2 and 3: Tribunal acting on its own motion and Failing to allow submissions as to reconstitution.
Ground 2 complains that the Tribunal determined to reconstitute the Tribunal of its own motion, and one complaint made within ground 3 is that the Tribunal had failed to allow the parties to make submissions as to whether the court should be reconstituted. Those question may conveniently be considered together.
There has been no answering affidavit filed in response to that of Mr Levine who asserts that he requested the parties to make submissions and that counsel for the Authority then submitted that the Tribunal should reconstitute itself and otherwise proceed. The assertion of Mr Levine that it was he who first invited submissions as to the question of reconstitution of the Tribunal is at odds with the affidavit of Ms Shelly Freeman, solicitor for the Authority, who deposed that it was Mr Lacava who first raised the question whether the Tribunal should be reconstituted pursuant to s.108. But whoever addressed the issue first, the fact that an opportunity to be heard on the question was granted by the Tribunal is supported by the plaintiff himself.
In his affidavit Mr Magazzu deposed that the Tribunal announced that Inspector Reid “had decided to withdraw” and he added that “there was then some discussion of the delay that this would cause due to difficulty in finding hearing times to suit the convenience of the three members”. It was at that point that Mr Lacava, according to the plaintiff, made submissions as to the effect of s.108.
Section 108 provides as follows:
“108. Reconstitution of Tribunal
(1)At any time during the hearing of a proceeding a party may apply to the Tribunal requesting that it be reconstituted for the purposes of the proceeding.
(2)At any time during the hearing of a proceeding, the President or a member of the Tribunal may give notice to the parties that the President or member seeks the reconstitution of the Tribunal for the purposes of the proceeding.
(3)On application under sub-section (1), or after notice is given under sub-section (2) –
(a)the Tribunal, as presently constituted, after allowing the parties to make submissions, may decide that it should be reconstituted;
and
(b)if so, the President must reconstitute the Tribunal.
(4)If the Tribunal rejects an application under sub-section (1) for reconstitution, a party may require the matter to be referred to the President.
(5)If a matter is referred to the President under sub-section (4), the President, after allowing the parties to make submissions, may reconstitute the Tribunal.
(6)If the Tribunal is reconstituted for the purposes of a proceeding, the reconstituted Tribunal may have regard to any record of the proceeding in the Tribunal as previously constituted, including a record of any evidence taken in the proceeding.”
Although the plaintiff deposed that “I do not recall that the Tribunal specifically gave notice to the parties that the President of the Tribunal or Members or any of them sought the reconstitution of the Tribunal for the purposes of the proceeding”, it is plain that either the matter was raised by the Tribunal itself or else it was raised by Mr Lacava. Either way, and notwithstanding that the Chairman had indicated his intention to reconstitute the Tribunal, Mr McNab had the opportunity to make submissions as to that proposed course, before it was finally decided that the Tribunal should be reconstituted.
I conclude, on the material before me, that counsel for the plaintiff knew at the time that he had an opportunity to make submissions, even if, not unreasonably, he probably considered that his prospects of persuading the Tribunal not to proceed with reconstitution were remote, given the Tribunal’s announced disposition to do so. Instead, he turned attention to the practical questions which would accompany the reconstitution. The plaintiff deposed that his counsel, Mr McNab, did not consent to the reconstitution but then added, “Mr McNab said that the issue of how the new member should become aware of the evidence that had been given so far, should be decided”. He then adds, “I recall Mr Levine, Deputy President, said in substance that the new member would inform herself of the information that was then already available to the two members of the Tribunal in the transcript and the evidence given in the hearing to date by referring to the transcript. Mr McNab consented to that course”.
The decision to reconstitute the Tribunal was actually made by the President of VCAT, Kellam, J. His Honour’s order was made on 8 February 2000, and was expressed to have been made ex parte. The order reads:
“The Applicant having requested a disqualification of a member of the Tribunal on the grounds of perceived bias and as a consequence a member of the Tribunal having disqualified himself from taking any further part in these proceedings and the respondent having requested a reconstitution of the Tribunal pursuant to s.108 of the Victorian Civil and Administrative Tribunal Act 1998 and the Tribunal having determined that it should be reconstituted I reconstitute the tribunal with the following members . . .“
His Honour then set out the names of the members of the newly reconstituted Tribunal. Mr Tehan submitted that there had been no request made by the Authority for such reconstitution, but as I have discussed, I accept that such a request had, in effect, been made, even if it was only made by Mr Lacava in support of an announced disposition by the Tribunal to adopt that course. However, even if it was at the motion of the Tribunal that it adopted that course it was specifically empowered to do so. The scheme of s.108 is that either a party may apply for reconstitution or else the Tribunal as a whole, or one of its members, may give notice that the Tribunal, or a member, seeks reconstitution. In either case, sub-section (3) requires that the parties be allowed the opportunity to make submissions on the question, and, after hearing such submissions, if any, if the Tribunal itself decides that it should be reconstituted the actual decision to reconstitute is made by the President.
For the reasons which I have discussed, the submissions made by counsel for the Authority amounted to a request that the Tribunal reconstitute itself, or else, amounted to support for Tribunal’s intimation that it proposed to do so. Even if the submissions of counsel did not constitute such an application, the Tribunal was entitled of its own volition, through one of its members, to raise the question of its reconstitution, provided that notice was given to the parties of its consideration of the issue and the parties were permitted to make submissions. Thus, even if the question was raised at the instigation of the Tribunal then because it gave the parties the opportunity to be heard, before it finally resolved to adopt that course, s.108 was complied with. Although the terms of the order made by Kellam J are incorrect insofar as they state that the plaintiff had applied only for the disqualification of “a member” of the Tribunal, rather than all members, nothing turns of that error, because once the Tribunal, in compliance with s.108, had determined that it should be reconstituted, it was then mandatory, pursuant to s.108(3)(b), for the President to reconstitute the Tribunal, as was done. In any event, the affidavit of Mr Levine makes it clear that the Tribunal was well aware that the application which had been made was for the disqualification of all members, not just Mr Reid, but it rejected that application.
I am satisfied that the identified complaints made in grounds 2 and 3, as discussed above, have no substance.
Ground 3: Permitting Mr Reid to further participate in the hearing.
A second complaint raised in ground 3 is that the Tribunal, having already decided that Mr Reid was tainted by apprehended bias, and that he should not sit on the Tribunal, nonetheless sat with him as a member for the purpose of deciding the question whether it should be reconstituted in consequence of Mr Reid’s withdrawal. Mt Tehan submitted that once it was announced that, on account of apprehended bias, Mr Reid would withdraw from the Tribunal it was entirely inappropriate that he continue to sit for the purpose of considering whether s.108 should be applied.
The terms of s.108(3)(a) expressly stipulate that an application to reconstitute must be considered by the Tribunal “as presently constituted”. Thus, if Mr Reid withdrew from the Tribunal the remaining two members could not consider and decide whether it was appropriate that he be replaced. Mr Tehan submitted that the clear terms of that subsection could not be applied where the reason for reconstitution related to a question of apprehended bias of a member, because once the announcement was made that Mr Reid was standing down from the Tribunal, that decision took effect immediately, so that the Tribunal, as constituted by three members, no longer existed. Even if that was not so, it was contrary to principles of natural justice that the Tribunal as previously constituted should further deal with any matter concerning the case, so Mr Tehan submitted.
In my opinion, the announcement that Mr Reid was withdrawing from the Tribunal did not operate immediately so that he thereupon ceased to be a member of the Tribunal. He remained a member until the Tribunal ceased to sit with him as a member or until it was reconstituted. In my view, it is fanciful to suggest that the continued presence of Mr Reid for the purpose of enabling consideration as to reconstitution tainted the Tribunal with apprehended bias, even if Mr Reid participated in the deliberations of the Tribunal as to whether it should be reconstituted. But were I wrong as to that, then the obligation imposed by s.108(3) collided with what Mr Tehan submitted was the requirement of natural justice, namely, that the Tribunal immediately cease to function, at all, once it was announced that Mr Reid would retire. In other words, even if it was open to the Tribunal to reject the application that all of its members be disqualified from sitting, Mr Tehan’s submission was that the practical effect would be the same because once the announcement was made that Reid, alone, would retire the Tribunal ceased to have three members and could not consider whether it might be reconstituted.
The contention raised by Mr Tehan requires consideration of the doctrine of necessity which has an important and well recognised application in some circumstances where there has been an apparent denial of natural justice before a tribunal.
In Ebner v Official Trustee in Bankruptcy[3], the High Court, discussed the application of principles of natural justice, in particular as to allegations of apprehended bias, as they affected non judicial tribunals. In the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ their Honours held, at par [4], that: “The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making”. To illustrate that point their Honours cited with approval a passage from the judgment of Mason CJ and Brennan J in Laws v Australian Broadcasting Tribunal[4] as follows:
“The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. Those rules may be excluded by statute: Twist v Randwick Municipal Council[5]; Salemi v Mackellar [No 2][6]; FAI Insurances Ltd v Winneke.”.[7]
[3][2000] HCA 63.
[4](1990) 170 CLR 70,at 89.
[5](1976) 136 CLR 106, at 109-110, 118-119.
[6](1977) 137 CLR 396, at 401, 442.
[7](1982) 151 CLR 342, at 348-349, 362-363.
In discussing the rule of necessity in Laws Deane J was in general agreement with Mason CJ and Brennan J. Deane J held:
“That rule operates to qualify the effect of what would otherwise be actual or ostensible disqualifying bias so as to enable the discharge of public functions in circumstances where, but for its operation, the discharge of those functions would be frustrated with consequent public or private detriment. There are, however, two prima facie qualifications of the rule. First, the rule will not apply in circumstances where its application would involve positive and substantial injustice since it cannot be presumed that the policy of either the legislature or the law is that the rule of necessity should represent an instrument of injustice. Second, when the rule does apply, it applies only to the extent that necessity justifies[8].”
[8]Laws v Australian Broadcasting Tribunal, supra, at 96.
In my opinion, the rule of necessity discussed in the passages above appropriately may be applied to the requirement of s.108 that the Tribunal “as presently constituted” consider the question of reconstitution. The exceptions discussed by Deane J do not apply. In considering the question of reconstitution pursuant to the terms of sub section (3) the Tribunal, having rejected the contention that all members must be disqualified, was acting in compliance with the legislative provision which compelled all present members to address the question of reconstitution. Even assuming that, having regard to the principles which I will later discuss, the continued presence of Reid on the Tribunal for the limited purpose of considering reconstitution would justify a complaint of apprehended bias against the Tribunal, (which I doubt to be the case) it was an instance of a breach of principles of natural justice of such inconsequence, in the circumstances, that the actions of the Tribunal would be excused by reference to the rule of necessity. The presence of Reid (who took no part in the discussion after the Tribunal returned to announce that Reid would withdraw) during the short period when the question of reconstitution was being discussed, could not, in my view, constitute “positive and substantial injustice” to the plaintiff.
Grounds 1 and 4: Should all members have disqualified themselves?
The primary ground argued by Mr Tehan, which arises under both Grounds 1 and 4, was the contention that the Tribunal should have acceded to the application that it disqualify itself, and that rather than be content that one member, only, retired, the Tribunal was bound to have concluded that a reasonable apprehension of bias applied to and disqualified all members of the Tribunal.
The principles of natural justice do not differ significantly as between what might be expected of judges of a court and persons hearing appeals before a quasi judicial tribunal[9], and the test as to whether conduct amounts to actual or apprehended bias, is the same for tribunals as for courts of law[10]. However, what justice requires in a given case may vary according to the circumstances of each case, including the nature of the inquiry which is being conducted by the tribunal, the nature and functions of the tribunal and the relationship between the tribunal and the person to whom procedural fairness must be accorded [11].
[9]City of St Kilda v Evindon Pty Ltd [1990] V.R. 771, at 775.
[10]Webb v The Queen (1994) 181 CLR 41, at 47, per Mason CJ and McHugh J.
[11]Stollery v Greyhound Racing Control Board, (1972) 128 CLR 509, at 519, per Barwick CJ.; see too Laws v Australian Broadcasting Corporation, supra, at 90, per Deane J, and National Companies and Securities Commission v News Corporation Ltd (1984) 156 C.L.R. 296, at 311-312, per Gibbs C.J.
As to the functions of the Tribunal, s.97 of the VCAT Act requires that it act fairly and according to the substantial merits of the case, and by s.98(1)(a) it is bound by the rules of natural justice. At the same time, the Tribunal may inform itself as it sees fit (s.98(1)(c)) and must conduct the proceeding with as little formality and technicality and must determine each proceeding “with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit”[12]. The Tribunal is given power to conduct proceedings, where it deems it appropriate, by informal evidence gathering processes, such as by telephone or video links (s.100(1)) and may, with the consent of the parties, conduct proceedings entirely on the basis of documents (s.100(2)). The Tribunal may refuse to accept additional evidence from a party when it considers that sufficient evidence has already been received (s.102(2)) and whilst evidence may be taken on oath or by affirmation it need not be taken in that manner (s.102(3)). As noted earlier, the Tribunal members were not all required to hold legal qualifications.
[12]S.98(1)(d)
As these provisions demonstrate, the Tribunal system created by the VCAT Act places an emphasis on prompt, efficient and inexpensive disposition of proceedings, and its proceedings are of a more informal nature that those of a court.
In Ebner v Official Trustee in Bankruptcy[13] the High Court most recently considered the question of bias and reasonable apprehension of bias and in their joint judgment Gleeson CJ, McHugh, Gummow and Hayne JJ held as follows, in par [6] (omitting citations):
“6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
[13][2000] HCA 63
As their Honours made clear[14], subject to the need to accommodate differences between court proceedings and proceedings before other kinds of tribunals, that test would be as applicable to this tribunal as to a court. The test is concerned with the question whether the tribunal might not decide the case impartially, not whether the tribunal will decide the case adversely to the person complaining of bias[15]. In determining whether there were grounds for a reasonable apprehension of bias I am not bound to place weight on any opinion expressed by the impugned tribunal[16]. In this case no actual statement was made by the Tribunal with respect to the proposition that the two remaining members may have themselves been tainted by apprehended bias, but it must follow from the fact that the Tribunal refused to disqualify all of its members that the members rejected any such suggestion.
[14][2000] HCA 63, at par [4].
[15]Re J.R.L; Ex parte C.J.L (1986) 161 C.L.R 342, at 352, per Mason J; adopted in Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 C.L.R. 78, at 86.
[16]Re Polites, supra, at 89, per Brennan, Gaudron and McHugh JJ.
The position of Amor was significant in that not only was he to be later called as a witness before the reconstituted Tribunal, he acted, in effect, before the Tribunal, in the role and with the relationship to counsel for the Authority, in its opposition to the plaintiff’s application, as would the informant in a police prosecution. Furthermore, Amor had written reports to the Authority in the course of the investigation of the plaintiff’s application for a licence which were adverse to the interest of the plaintiff. Amor’s position in the conduct of the case was similar to that of Smith, the manager of greyhound races and member of the Greyhound Racing Control Board in Stollery v Greyhound Racing Control Board[17]. In that case, however, Smith, having acted as informant against Stollery, and having given evidence to the Board, remained in its presence (and in the absence of Stollery) while the Board deliberated as to its findings on a complaint of misconduct against Stollery. Barwick CJ noted that Smith stood in a special relationship to Stollery and to the Board in that he was under a duty to report to the Board and was personally involved in the incident under investigation. Barwick CJ held that he was in the position of “Accuser”.
[17](1972) 128 C.L.R. 509
The Chief Justice adopted the approach of Lord Hewitt L.C.J in R v Sussex Justices; Ex parte McCarthy, who held[18] that in such cases the issue is not to determine what actually was done by the person whose presence at the relevant tribunal is said to create an apprehension of bias, but to determine what might appear to be done. Lord Hewitt held that: “Nothing is to be done which creates even a suspicion that there has been improper interference with the course of justice”. Applying that test, Barwick CJ concluded that Smith’s presence during the Board deliberations would produce the result that “a reasonable man could very properly suspect that the clear opportunity which Mr Smith had for influencing the decision of the Board might very well have been used”[19]. In the present case it was accepted before the Tribunal, no doubt having regard to the timing in which it occurred, among the other circumstances, that the contact between Reid and Amor necessitated Reid’s withdrawal. But was Reid’s presence on the Tribunal both before and after his contact with Amor such as to create in the mind of a reasonable observer the suspicion of improper interference with the decision-making of other members of the Tribunal[20]?
[18]R v Sussex Justices; Ex Parte McCarthy [1924] 1 KB 256, at 258-259.
[19]Stollery, supra, at 519.
[20]The hearing of evidence resumed on 9 February 2000 - the day following the withdrawal of Reid - and the plaintiff completed his evidence before the newly constituted Tribunal. Amor also gave evidence. Written submissions were filed by counsel for the parties in about June 2000, and the decision was announced on 3 August 2000.
Whilst the position of Amor vis a vis the Authority was similar, during the conduct of its own inquiry into the licence application, to that of Smith during the disciplinary hearing before the Greyhound Racing Board in Stollery, he had no similar relationship to the Tribunal. Whilst Amor continued to play a role akin to informant in his relationship to counsel for the Authority in its opposition to the plaintiff’s review proceedings under the VCAT Act, Amor had no relationship to the Tribunal itself, apart from being a witness before it.
It should be noted that bias was neither alleged nor proved against Reid. What was submitted was that there was a reasonable apprehension of bias. It was specifically stated by counsel for the plaintiff, in submissions before the Tribunal, that actual bias was not being alleged, even as against Reid. The critical question is whether in all the circumstances of the case the remaining two members of the Tribunal were placed in such a position by virtue of the conduct of Reid, which led to the withdrawal of Reid, that the fair minded bystander might have entertained a reasonable apprehension of bias as against the remaining members of the Tribunal.
In the joint judgment in Ebner, their Honours held, at par [7]:
“7.The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
In the present case there was no attempt made to go behind the oral or written reasons for decision which were articulated by the Tribunal, so as to evaluate what might have been any unstated factors which influenced the decision. In his affidavit, nothing is said by Mr Levine as to whether Reid, before his departure from the Tribunal, had made any comment to the other members which might have tainted them with any bias which he might have held in favour of the witness Amor and/or against the plaintiff.
The joint judgement in Ebner continued, in par [8]:
“8.The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. 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. The bare assertion that the judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed”.
Mr Tehan acknowledged that in the present case it was difficult to articulate the logical connection between the departure from proper conduct in this case – namely, the fact that Reid had spoken to Amor and having offered, then gave him a lift back to the police station - and the feared deviation from impartial decision-making by a tribunal which was to be no longer constituted with Mr Reid as one of its members. Mr Tehan submitted that a reasonable observer might conclude that the conduct of Reid would have tended to enhance the standing of Amor in the eyes of the other members. Furthermore, he submitted, the observer might suspect that Reid may have also made comments to the other members, in private, which reflected a favourable attitude towards Amor and, thus, undermined the credibility of the plaintiff.
Mr Tehan submitted that among the factors which applied and which made the connection between the admitted conduct of Reid and the feared departure from fairness in decision-making of the other members more real, here, was the fact that whilst he had been present (and before Reid had made inappropriate contact with Amor) Reid had firmly questioned the plaintiff, in a manner amounting to cross examination and which strongly suggested that he disbelieved the evidence of the plaintiff.
There are, indeed, a number of passages in the transcript of the plaintiff’s evidence before the Tribunal where Reid’s incredulity at the answers being given seems apparent. It must be noted, however, that Reid was not alone in his apparent incredulity. The two other members also questioned the applicant in a similar way, and with a similar indication that they disbelieved the plaintiff’s evidence. It was unnecessary in the appeal before me to consider whether the answers of the plaintiff might reasonably have attracted such disbelief, but it was not argued that the Tribunal members’ responses to the evidence, and the eventual adverse finding of the Tribunal, were so unreasonable as to manifest, of themselves, apparent bias by the Tribunal members.
As Mr Tehan pointed out, the credibility of the plaintiff was very important if he was to succeed in his application. In the decision which was made on 3 August 2000, the Tribunal, as reconstituted, noted that the Authority had contended that it had been a false assertion by the plaintiff that he had carried on the business prior to 13 June 1995. If he had not done so then he was ineligible to be granted a licence under s.69 of the Prostitution Control Act. It was contended, in effect, that he was merely a front person for a man named Harvey, a person who had been convicted for the offence of child prostitution and was thus ineligible for a licence. The Authority contended that Harvey (among others), had himself run this and other brothels at the relevant time (and continued to do so or to be the beneficial owner), and had adopted that subterfuge in order to overcome the licence requirements imposed by the new legislation.
At various points in the reasons for decision of the reconstituted Tribunal its members said of the plaintiff’s evidence that it was “unpersuasive” and was “confusing and variable”, and the Tribunal said that, “We believe that the Applicant obfuscated and deliberately gave vague and contradictory evidence”. The Tribunal held that the plaintiff was not a person of good repute, having regard to character, honesty and integrity, as required by s.38(1)(a) of the Prostitution Control Act.
As noted above, for the application for disqualification of all members of the Tribunal to have succeeded, it must first have been established what the conduct was that might have led the fair minded observer to conclude that the Tribunal as a whole, and not merely Reid, might not reach a conclusion based on the legal and factual merits of the case before it. Put another way, the question was, and remains, whether a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question which it was required to decide[21]. Secondly, it must be shown that there was a connection between the conduct of Reid - in speaking to Amor and giving him a lift - and the feared result that the Tribunal, even if reconstituted, might not decide the case on its legal and factual merits, with the consequence that a fair minded observer might reasonably have an apprehension of bias in the decision-making process.
[21]Johnson v Johnson (2000) 74 ALJR 1380, at 1382, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
Mr Tehan submitted that the fact that the credibility of his client was so important to the outcome of his review before the Tribunal meant that very little would be required to be done by Reid to raise the suspicion that the decision-making process of the other members of the Tribunal had been tainted by his conduct. The mere fact that he had demonstrated a friendship with Amor was sufficient to suggest to the other members that that fact should be taken into account when determining the credibility of the plaintiff, rather than their decisions being based, solely, on the evidence before them.
One issue which arose in the proceedings concerned the contention of the plaintiff that although there were two adjoining brothel premises using the same reception area they were not run by the same person. Insofar as the layout of the premises suggested otherwise, the plaintiff contended that his solicitor had written to the Licensing, Gaming and Vice Squad seeking any advice as to how the adjoining businesses should be structured, and had received no reply. The two businesses had been conducted, in such manner, for a considerable time, to the knowledge of the police, the plaintiff said, and no criticism had ever been ventured as to the appearance which might have been given that they were conducted by the same person. Had that suggestion been made, then, so the plaintiff contended to the Tribunal, steps would have been taken to make the position clear. The Tribunal said in its reasons that the plaintiff, by his evidence, inferred that “if there was any confusion (or even any breaches of the Act) the blame lay at the feet of the (Authority) or Victoria Police for not giving timely responses to requests for advice”.
Mr Tehan submitted that having regard to the fact that the evidence of the plaintiff amounted to an attack, as he described it, on the conduct of the police, and having regard to the fact that the credibility and character of the plaintiff was very much in issue the association and apparent friendship between a member of the Tribunal (who was himself a senior police officer) and a police officer who was in effect responsible for the conduct of the case in opposition to the plaintiff’s application - and who was to be a witness in the case - was a very serious instance of apprehended bias, and the apprehension of bias must, in those circumstances taint all members of the Tribunal, not just Mr Reid. Having regard, too, to the fact that all members of the Tribunal adopted such a critical manner of questioning, the fair minded bystander would be concerned that such hostility may have been a product of bias of Reid, Mr Tehan submitted. Furthermore, the fact that Reid did not announce at the outset of the hearing, or at any time, that he was a “friend” of Amor, and the fact that he sat silent while the application was made, and did not volunteer, publicly, any explanation for his conduct, nor volunteer that he had not merely offered a lift to Amor (as the Chairman had announced) but that Amor had actually accepted the lift, were factors which highlighted the seriousness of this instance of apprehended bias, Mr Tehan submitted.
As I have noted, it was submitted in the case before me that Mr Reid had failed to disclose a friendship with the witness, Mr Amor. There is, in fact, no evidence that there was a friendship, other than merely that the two knew each other through membership of the police force. That could hardly be a matter of surprise. Mr Reid was appointed to the Tribunal specifically because he held the rank of Inspector of Police. The Act provided for a person of such description to be a member of the Tribunal. In those circumstances it could not be a matter of surprise to any party that Mr Reid may have known police officers who might be called as witnesses in such an application.
Mr Reid disqualified himself from the Tribunal, but the mere fact that he knew Amor, and did not disclose that fact, would not, in my opinion, have justified a suspicion of bias being held with respect to him by a fair minded observer, let alone with respect to the remaining two members of the Tribunal. In Ebner, at par 73 in the joint judgment, the High Court dealt with the question whether the trial judge in that case should have disclosed to the parties, prior to delivery of judgment, that after the evidence had been completed and while the case was reserved for judgment he had, as beneficiary under a will, acquired shares in the bank which was one of the parties. The court held that his failure to make such disclosure was of no legal consequence and that he had a clear duty to deliver his judgment. The court added: “His failure to make disclosure did not deprive the appellants of an opportunity to advance any argument or inform him of any facts which would have given rise to a contrary conclusion. His silence could not reasonably support an inference of want of impartiality”. In the present case, Reid’s failure to disclose that he knew Amor, likewise, did not deprive the plaintiff of the opportunity to advance any argument in support of his case, nor could it reasonably support an inference of bias.
Mr Tehan placed emphasis on the decision in R v Lilydale Magistrates’ Court: Ex Parte Ciccone[22], an instance where a magistrate travelled to a view, when accompanied by counsel for one side only, in a vehicle was driven by a witness in the case. McInerney J held that such conduct clearly breached the canons of conduct for judges and legal practitioners which required that the judicial officer not act in such a way as to create a suspicion of there having been private communications with one of the parties. His Honour considered that the same principle applied to quasi judicial tribunals[23]. The primary difference between the circumstances of that case and the present relates to the statutory qualification for membership of the Tribunal in contrast to the position of the magistrate in conducting judicial proceedings. Whilst the principles stated by McInerney J are applicable in the present case, especially with respect to the position of Reid, they need to be balanced against the considerations discussed by Brennan, Gaudron and McHugh JJ in Polites[24] where their Honours, having considered the test for bias which had been applied in Livesey v New South Wales Bar Association[25], observed:
“Again, the test in Livesey cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal’s powers exercised. Qualification for membership cannot disqualify a member from sitting[26].”
[22][1973] V.R. 122.
[23]At 127-128.
[24]Re Polites; Ex Parte Hoyts Corp Pty Ltd, supra, at 87
[25]Livesey v NSW Bar Association (1983) 151 CLR 288, at 293-294.
[26]Polites, at 86-87.
In Re Finance Sector Union of Australia Ex Parte Illation Pty Ltd[27] Deane, Toohey and Gaudron JJ considered the position of a Deputy President of the Industrial Relations Commission and noted as to principles of law concerning bias “the precise practical requirements of that principle vary from case to case. They will be influenced by the nature, function and composition of the particular tribunal”. Their Honours observed that the High Court had repeatedly stressed the need for caution before concluding that a member of a statutory tribunal should be prevented from discharging his or her duties by reason of a claimed apprehended bias. Their Honours emphasised that a basis for such disqualification must be established, over and above the mere fact that the tribunal member by virtue of his or her experience had some knowledge of the facts, or of the parties involved in a dispute. In rejecting the allegation of apprehended bias, their Honours observed that the members of the Industrial Relations Commission were required to have familiarity with the industry in which the particular dispute arose, and that meant that the members would have familiarity with facts relevant to any dispute, and with one or more of the parties. In Re Polites: Ex Parte Hoyts Corporation Pty Ltd[28], Brennan, Gaudron and McHugh said of a Deputy President of the Commission, that such a person is appointed on account of his or her background in the industry and is not disqualifed because he or she has a measure of knowledge or is likely to have a particular attitude to the manner in which the Commission should exercise its powers. Their Honours adopted the words of the Privy Council in Labour Relations Board of Saskatchewan v John East Iron Works Ltd[29], to the effect that the fact that such members held knowledge and information acquired extra judicially profoundly distinguished such a body from a court, and did not mean that they were precluded by reason of apprehended bias from performing their statutory functions. In my view, similar considerations apply here. Both Reid and Ms Snow were appointed because of their experience and past association with the industry. It may well have been that Ms Snow also knew Amor, or knew of him. Indeed, she may also have had some awareness of the plaintiff and those said to be associated with him. It would not be surprising if that were so; but the intention of the Parliament, as reflected by the legislation, was that such awareness of people in the industry would be a qualification, not a disqualification (subject, always, to instances where past awareness involved bias as to witnesses or applications, or prejudgment of the particular issue for determination[30]).
[27] [1992] 66 ALJR 583, at 584.
[28](1991) 173 CLR 78, at 87.
[29][1949] A.C. 134, at 151.
[30]See Laws v Australian Broadcasting Tribunal, at 91, per Deane J.
In Laws, the Broadcasting Tribunal was proposing to hold an inquiry into allegations that a radio station, and its presenter, had breached the conditions of its licence. Three members drawn from the Tribunal had earlier conducted a preliminary inquiry and reported to the Tribunal adversely to the appellant, who had then issued defamation proceedings which were being defended with a defence of truth. In Laws[31] Deane J, dissenting, on the facts, but in a passage not at odds with the principles of law adopted by the majority, observed that acquaintanceship with or preconceived views about a party which would disqualify a judge might not disqualify a member of a tribunal which was entrusted with functions requiring a continuing relationship with persons engaged in an industry, so that in performing its functions it was unavoidable that the tribunal and its members will have an ongoing relationship with licensees under the Act and will also have recurrent contact and dealings with at least some of the individuals in the industry. Indeed, his Honour held, even if the members of the tribunal held general views about members of the industry or individuals, as opposed to prejudged opinions as to the very issue involved in the hearing, that would not necessarily constitute disqualifying bias, given “the need to adjust the content of the requirements of procedural fairness to what is appropriate to the circumstances of the particular case[32].”
[31]Laws, at 90-91.
[32]Ibid, at 91.
The critical question in Laws, as in the present case, however, was not whether some members of the tribunal were tainted by apprehended bias, but whether all members of the tribunal were disqualified by virtue of the taint attached to that minority of members. Deane J concluded that in the circumstances of the case the decision of the earlier panel, although comprised of only three members of the Broadcasting Tribunal would lead to an apprehension of bias against all members because, among other matters, the earlier panel had reported its findings to the Tribunal as a whole (which had adopted them). The majority in Laws held that so long as the members of the earlier panel were excluded from subsequent panels sitting on the issue, different panels could be allocated to the further inquiry. The general discussion of Deane J as to the nature of the relationship between a statutory tribunal and the members of the industry with which it is concerned are apposite in the present case, and merit quoting at length. His Honour held [33]:
“In most cases where a statutory tribunal can be validly constituted by some only of its members, the actuality or the appearance of disqualifying bias on the part of a particular member or particular members will affect those members only and will not taint the tribunal as a whole. If, for example, the actuality or appearance of bias on the part of a particular member or particular members results from a relationship or activities unconnected with membership of the relevant tribunal, there is not, without more, any reason in fairness, principle or common sense why the other members of that tribunal or the tribunal itself should be affected or disqualified. Even where the actuality or the appearance of bias on the part of a particular member or particular members has resulted from the discharge of the relevant tribunal’s functions, it will ordinarily be possible to say that neither the parties nor a fair minded, informed lay observer would entertain a reasonable apprehension that the tribunal as a whole was affected by the disqualifying bias of the particular member or members. The circumstances of a particular case may, however, be such as to give rise to a reasonable apprehension that the relevant tribunal as an institution is affected by disqualifying bias. One possible example of such a case is where the identity of the members of a tribunal who are involved in prejudgment of issues is effectively shielded by the institutional facade. Another possible example is where the circumstances are such as to give rise to a reasonable apprehension that all members of the tribunal are affected. Ultimately, the central question in the present appeal is whether the Tribunal, as an entity, is itself affected by the actuality or appearance of disqualifying bias in the conduct of the proposed inquiry.”
[33] Ibid, at 92.
In my opinion, it was not reasonably open to a fair minded and informed observer to apprehend or suspect that by virtue of the actions of Reid in offering, and then giving, a lift to Amor from the vicinity of the VCAT hearing to the police station that the other members of the Tribunal might not bring an impartial mind to the resolution of the question which the Tribunal had to decide. Nothing in what Reid did, might reasonably lead a fair minded observer to conclude that Reid may have prejudiced the other members of the Tribunal against the plaintiff’s cause. Insofar as Reid’s questioning of the plaintiff may have had a bearing on the assessment of the plaintiff’s credibility in the eyes of the other members, that fact could not taint the other members with apprehended bias. The questioning occurred before the inappropriate contact with Amor was made by Reid, and even if the conduct of Reid might have led an observer to conclude that his questioning was motivated by bias (which was not, in fact, alleged in this case) the public questioning of itself could not give rise to an apprehension of bias as against other members, even if they were influenced by the questioning conducted by Reid.
As to the suggestion that the apprehension of bias was enhanced by virtue of the fact that Reid and the other members displayed incredulilty at the evidence of the plaintiff, the fact that members of a tribunal form tentative views which are adverse to a party, even if those views are formed strongly and quickly, does not demonstrate, of itself, that the tribunal is biased. As was observed in the joint judgment in Johnson v Johnson, when considering comments or questions made at an early stage of a trial by a judge, “The hypothetical observer is no more entitled to make snap judgments than the person under observation”[34]. The reasonable bystander is neither complacent nor unduly sensitive or suspicious[35]. It must be stressed that the principles of natural justice ensure that a party to proceedings is entitled to a hearing free from the suspicion of bias, not to a hearing free from expressions of disbelief or adverse findings by the tribunal as to his or her evidence.
[34]Johnson v Johnson, at 1382.
[35]Johnson v Johnson, at 1391, per Kirby J.
There is no evidence, at all, that Reid sought to improperly influence the other members of the Tribunal in any private conversation, let alone that any such attempt might have led the Tribunal members to decide the case otherwise than on its merits. In my view, it would not be reasonably open for a fair minded observer to be suspicious that such conduct may have occurred by virtue of the fact that Reid offered, and gave, a lift to Amor. The fair minded and informed observer would not, in my view, be a person who had no regard, at all, for the integrity and sense of fairness of members of such a tribunal. It is to be borne in mind that the Chairman swore an affidavit as to the events, and did not suggest that any such conduct had occurred. The observer would have regard to the fact that the rejection of the application that all members should withdraw, of itself suggested that neither remaining member of the Tribunal considered that their decision-making had been in any way tainted by conduct of Reid.
In my opinion, the Tribunal was entitled to conclude that it was unnecessary that all members disqualify themselves from the further hearing of the Review, and the complaints raised by grounds 1 and 4 of the appeal are not made out.
I conclude, therefore, that the appeal should be dismissed. I will hear counsel for the parties as to costs
---
4
8
0