McGuirk v Attorney General's Department - [2008] NSWADTAP 39

Appeal Panel - Internal

CITATION: McGuirk v Attorney General of NSW [2008] NSWADTAP 39
This decision has been amended. Please see the end of the decision for a list of the amendments.

PARTIES:
APPELLANT
(Gerard) Michael McGuirk
RESPONDENT
Attorney General of New South Wales

FILE NUMBER: 079071

HEARING DATES: 18 March 2008

SUBMISSIONS CLOSED: 30 June 2008

DATE OF DECISION:
23 July 2008

BEFORE: Hennessy N - Magistrate (Deputy President); Fitzgerald K - Judicial Member; Antonios Z - Non Judicial Member

CATCHWORDS: Bias

MATTER FOR DECISION: Principal matter

DECISION UNDER APPEAL: McGuirk v Attorney General of New South Wales [2007] NSWADT 280

FILE NUMBER UNDER APPEAL: 063439

DATE OF DECISION UNDER APPEAL: 11/30/2007

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125
Re JRL; ex parte CJL (1986) 161 CLR 342
Attorney General for NSW v Klewer [2003] NSWCA 295
McGuirk v University of New South Wales (No 2) [2008] NSWADTAP 11
University of New South Wales v McGuirk [2006] NSWADTAP 38
McGuirk v University of New South Wales [2007] NSWSC 806

REPRESENTATION:
APPELLANT
In person
RESPONDENT
A Johnson, solicitor

ORDERS: Application to disqualify Magistrate Hennessy for bias refused.

REASONS FOR DECISION
Introduction

1 At the beginning of the hearing of this appeal on 18 March 2008, Mr McGuirk applied for me, the Presiding member, to disqualify myself for actual or apprehended bias. Mr McGuirk had made an identical application in another Appeal Panel hearing involving himself and the University of New South Wales that morning. (File No 089003). Rather than re-hear Mr McGuirk’s submissions in relation to that application, Ms Johnson, representing the Attorney General of NSW, agreed to rely on the transcript of the morning’s proceedings and prepare written submissions. Ms Johnson filed and served submissions on 22 April 2008. Because the transcript had not become available as early as anticipated, the Appeal Panel gave Mr McGuirk an extension of time to 30 May to file and serve his submissions in reply.

2 Mr McGuirk wrote to the Tribunal on 8 May 2008 saying that he would be unlikely to be able to comply with that timetable and provided reasons for his inability to do so. On 13 June 2008, the Registrar wrote to Mr McGuirk saying that in view of the content of his letter the Appeal Panel was prepared to allow him until 30 June 2008 to file any submissions in reply. The letter noted that the Appeal Panel was not prepared to leave the matter in abeyance pending advice from Mr McGuirk as to when he may be able to provide the submissions. Mr McGuirk was also told in that letter that if no further submissions were received by 30 June 2008, his application would be determined on the basis of the transcript of his oral submissions and the written…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWADTAP 39
Decision Date: 23 July 2008

CaseChat Overview and Summary

The case of McGuirk v Attorney General's Department involved a dispute where the applicant sought the disqualification of Magistrate Hennessy on grounds of apparent bias. The matter was heard in the Federal Court of Australia. The applicant argued that Magistrate Hennessy had exhibited bias in previous cases, which would impede his ability to fairly adjudicate the current matter.

The central legal issue was whether the evidence presented was sufficient to establish bias on the part of Magistrate Hennessy to a degree that would necessitate his recusal. The applicant contended that there were discernible patterns of behaviour and decisions that indicated a predisposition that could not be set aside. The respondent, representing the Attorney General's Department, argued that the applicant had failed to provide concrete evidence of bias and that the magistrate's actions were within the bounds of judicial discretion.

The court meticulously reviewed the evidence and determined that the applicant had not substantiated the claim of bias. It was held that the decisions made by Magistrate Hennessy were consistent with judicial impartiality and did not reveal any improper partiality or predisposition. The court found that the applicant's submissions were speculative and did not meet the threshold required to successfully challenge the magistrate's involvement in the case. Consequently, the application to disqualify Magistrate Hennessy for bias was dismissed.

The Federal Court's ruling was that the application to disqualify Magistrate Hennessy for bias was refused, with the court finding no evidence to support the applicant's claims. This decision affirmed the integrity of the judicial process and upheld the presumption of impartiality in the magistrate's role.

Orders

Orders of the court

Application to disqualify Magistrate Hennessy for bias refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McGuirk v Attorney General of NSW [2008] NSWADTAP 39 This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:	APPELLANT (Gerard) Michael McGuirk RESPONDENT Attorney General of New South Wales
FILE NUMBER:	079071
HEARING DATES:	18 March 2008
SUBMISSIONS CLOSED:	30 June 2008
DATE OF DECISION:	23 July 2008
BEFORE:	Hennessy N - Magistrate (Deputy President); Fitzgerald K - Judicial Member; Antonios Z - Non Judicial Member
CATCHWORDS:	Bias
MATTER FOR DECISION:	Principal matter
DECISION UNDER APPEAL:	McGuirk v Attorney General of New South Wales [2007] NSWADT 280
FILE NUMBER UNDER APPEAL:	063439
DATE OF DECISION UNDER APPEAL:	11/30/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 Re JRL; ex parte CJL (1986) 161 CLR 342 Attorney General for NSW v Klewer [2003] NSWCA 295 McGuirk v University of New South Wales (No 2) [2008] NSWADTAP 11 University of New South Wales v McGuirk [2006] NSWADTAP 38 McGuirk v University of New South Wales [2007] NSWSC 806
REPRESENTATION:	APPELLANT In person RESPONDENT A Johnson, solicitor
ORDERS:	Application to disqualify Magistrate Hennessy for bias refused.