McGuirk v The University of NSW
[2010] NSWADTAP 66
•6 October 2010
Appeal Panel - Internal
CITATION: McGuirk v The University of NSW [2010] NSWADTAP 66 PARTIES: APPELLANT
RESPONDENT
Gerard Michael McGuirk
The University of New South WalesFILE NUMBER: 089076 HEARING DATES: 9 November 2009, 1 February 2010, 3 May 2010, 11 June 2010 SUBMISSIONS CLOSED: 11 June 2010
DATE OF DECISION:
6 October 2010BEFORE: Callaghan P, SC, Deputy President; Molloy G - Judicial Member; Bolt M - Non-Judicial Member CATCHWORDS: Application for recusal - Bias – Perceived and actual bias – Systemic or cultural bias - Procedural Fairness DECISION UNDER APPEAL: McGuirk v. University of New South Wales, [2008] NSWADT302 FILE NUMBER UNDER APPEAL: 073277, 083002, 083009 & 083019 DATE OF DECISION UNDER APPEAL: 10/05/2010 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: ASIC v. Segalla [2001] NSWSC 570
Bakarich v. Commonwealth Bank of Australia [2010] NSWCA 43
British Tobacco Austral Services Services Ltd v Laurie [2009] NSWCA 414
Ebner v. Official Trustee in Bankruptcy [2000] HCA63; 205CLR 377; 176ALR 644; 75ALJR 277
Enron Australia Finance Pty Ltd v. Integral Energy Australia [2002] NSWSC 753
Law Society of NSW v. Doherty [2010] NSWCA 173
Lee v. Cha [2008] NSWCA13
Livesey v. NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288
McGuirk v. University of New South Wales [2008] NSWADT 302
McGuirk v. University of NSW [2009] NSWSC 1058
Refugee Review Tribunal; Ex parte H [2001] HCA28; (2001) 179ALR 425; (2001) 75ALJR 982
Re: Renaud; ex parte CJL (1986) 60ALJR 528, 161 CLR 342
Torchia v. Swanton [2010] NSWADT 142
University of NSW v. McGuirk [2006] NSWSC 1362REPRESENTATION: APPELLANT
RESPONDENT
In person
P Singleton of Counsel instructed by C. Kirby, University’s SolicitorORDERS: 1. Leave to appeal is granted
2.The appeal is dismissed
3.The stay granted by Needham DP on 18 March 2009 is discharged
4.No order for costs; save that should either party file and serve an Application for costs coupled with supporting submissions within 21 days, then the other party is to file and serve its reply and supporting submissions within a further 21 days, and the Appeal Panel will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act 1975, s.76, unless persuaded that there should be oral submissions.
Application for Recusal
1 On 25 September 2008 matters Nos 073277, 083002, 083009 and 083019 came before Judicial Member Higgins . The first matter was listed for the hearing of an interlocutory application by the Respondent and the other three were listed for directions. These were all matters in which the Appellant was the Applicant and the Respondent University the Respondent. They were all applications made under the Freedom of Information Act 1989 (the “FOI Act”). At the commencement of the hearing on 25 September 2008, the Appellant made “a formal application that (the Judicial Member) recuse (herself) for bias or in the alternative apprehended bias”. There was no such written or formal Application before the Judicial Member; rather, the application was announced orally, and for the first time, at the commencement of the hearing. The Appellant submitted that if the Judicial Member did not recuse herself then any directions that she would make would be “null and void”.
2 The word “recusal” or “to recuse” is a word that does not appear often in common parlance. The Oxford English Dictionary defines “recusal” as “the disqualification of a judge or jury by reason of prejudice or conflict of interest; a Judge can be recused by objections of either party or judges can disqualify themselves”. The Appellant’s application was the Judicial Member disqualify herself because of both actual and apprehended bias. As submissions proceeded, the application was enlarged to include an assertion that the Judicial Member was somehow tainted with cultural and/or systematic bias in relation to Freedom of Information Applications.
Legal Background
3 It is convenient to note shortly at the outset some basic principles in relation to applications for recusal for bias, by quoting from (with references omitted) a few paragraphs from Forbes, Justice in Tribunals 3rd edition 2010:
[15.4] “Bias may be actual or apparent (‘apprehended’). A person may be affected by bias without being aware of it, and without any intention to be unfair. At the other extreme there are cases of deliberate spite or ill-will, where a decision-maker makes no real effort to find the facts, but is ‘just out to get him’.”
[15.7] “A charge of actual bias is tantamount to a plea of fraud, and accordingly cogent evidence is required. In court proceedings such an allegation must be clearly pleaded and particularised, and fairly put to any witness for the tribunal. Omission to do so ‘must cast a real doubt over the genuineness of the claim’.”
[15.9] “A finding of apprehended bias is enough to invalidate the decision of a statutory tribunal … Even so, a finding of apprehended bias is a serious matter, and in deciding whether it has been established, the Briginshaw criteria must be kept in mind.”
4 With regard to apprehended bias the test is stated thus “… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Ebner v. Official Trustee in Bankruptcy (2000) 205 CLR 337, at [6]. We add that British Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414 conveniently presents relevant principles and authorities: Allsop P at [3] and Tobias JA at [78]-[103] especially at [81]-[85].
5 There are authorities to the effect that refusal by a judge to accede to an application for disqualification does not give rise to a judgment or order of a court from which an appeal would lie, although such a matter can be relied upon as a ground of appeal in relation to the substantive judgment in the proceedings. A recent example of the application of such a principle is Lee v Cha [2008] NSWCA 13 where a challenge failed to a District Court judge’s refusal of a disqualification application made during a civil trial. However, the Administrative Decisions Tribunal Act 1997 (the “ADT Act”), in s.112(1) defines an “appealable decision” as (relevantly) “a decision of the Tribunal … made in proceedings for:
a) (not relevant).
b) a review of a reviewable decision.”
FOI Act s.53(1) gives the Appellant a right to apply to the Tribunal for a review of the determination of the Respondent University because the Appellant was the Applicant seeking various documents from the University and was “a person who is aggrieved” by the determination of the University.
In these circumstances, noting in particular that the Respondent was referred by the Appeal Panel to, and declined to take any point referable to, Lee v. Cha, it would seem that we have jurisdiction on the basis that the decision of the Judicial Member was a decision “made in proceedings for … a review of a reviewable decision”. This is so even though her decision was on an interlocutory application that she recuse herself – it is, after all, a “decision”, such that it falls, in our opinion, within the terms of ADT Act s.112 (being “a decision of the Tribunal … made in proceedings for … a review of a reviewable decision”) and also falls within the words “the decision” in s.114 and also s.115. The fact that it is not “a decision” finally dealing with the reviewable decision does not alter the fact that it is in fact an interlocutory decision and thus appealable. As an interlocutory decision, however, leave is by this Appeal Panel is a condition of appeal (s.113 (2A) of the ADT Act)). As we have noted, no argument was advanced by the Respondent to the effect that the Appeal Panel did not have jurisdiction; but it is important to have identified the jurisdiction that this Tribunal has in its Appeal Panel having regard to what appears to be a different regime that applies to some courts.
6 We also note at the outset the concluding part of an often quoted paragraph in the judgment of Mason J in re Renaud; exparte CJL (1986) 161 CLR 342, at 352
“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”
We will deal further with legal considerations later in this decision.
Historical Background
7 During this Appeal the Appellant agreed that the judgment of James J. in McGuirk v. University of NSW [2009] NSWSC 1058 at [25-63] gives a useful summary of the background to the whole of the Appellant’s situation, and we repeat those paragraphs here:
“25 Mr McGuirk’s evidence, as I have already indicated, was voluminous and, even after allowing for its frequent repetitiveness, dealt with a multitude of subjects. I do not propose to attempt to deal with all of the matters referred to in Mr McGuirk’s evidence. However, it is necessary to advert to a fairly large number of matters for a proper understanding of the statements of charge in the University’s notices of motion and of the submissions made by the parties, and particularly Mr McGuirk, on the various notices of motion.
26 Mr McGuirk was formerly employed by the University as the Acting Director of the Master of Business and Technology post-graduate program at the University. Mr McGuirk ceased to be employed by the University in circumstances which are contentious, Mr McGuirk contending that his employment was wrongly terminated. Mr McGuirk physically left the University at about the end of February 2002 and his employment by the University formally ended on 31 March 2002.
27 Mr McGuirk asserts that while he was still employed by the University and in the years since his employment was terminated, he has campaigned to expose what he believes to have been instances of corruption and mismanagement within the University and to expose how the University has treated “whistle-blowers”, that is he himself and other persons who have exposed corruption or mismanagement within the University and who, Mr McGuirk asserts, have been victimised by the University in contravention of the Protected Disclosures Act 1994 .
28 Mr McGuirk referred in his evidence to a number of “scandals” at the University and a number of whistle-blowers, including:-
1. The first Educational Testing Centre scandal. A Ms Margaret Love had made reports of maladministration and corruption in the Educational Testing Centre at the University.
2. The Professor Hall affair in which a number of allegations of misconduct were made against a professor at the University, Professor Bruce Hall, the whistle-blowers being Dr He and Dr Chen.
3. The second Educational Testing Centre scandal in which the whistle-blower was Mr Peter Curtin.
29 In 2003 Mr McGuirk successfully used the Freedom of Information Act to obtain a copy of a report made by an external consultant of an investigation of allegations which Mr McGuirk had made while he was still employed by the University.
30 Since then Mr McGuirk has often used the Freedom of Information Act in an endeavour to obtain access to documents held by agencies and especially the University. In cases where there has been a determination by an agency to refuse access to a document, Mr McGuirk has often applied to the Administrative Decisions Tribunal for a review of the determination refusing access.
31 Exhibit J at the hearing before me listed the published decisions of the Administrative Decisions Tribunal to which Mr McGuirk had been a party, as at 23 July 2009. There were 70 decisions in the list. I accept that many of these decisions were not substantive decisions on applications for access made by Mr McGuirk but concerned ancillary matters such as applications for advance deposits, whether complying with Mr McGuirk’s applications would involve substantial and unreasonable diversion of an agency’s resources and applications for costs orders.
32 I will now summarise briefly some of the other proceedings in which Mr McGuirk has been a party.
1. University of New South Wales v McGuirk
33 Mr McGuirk made an application pursuant to the Freedom of Information Act for access to what were described in the evidence before me as the “unredacted” Hall reports. Reports of investigations into the allegations against Professor Hall had been released by the University but subject to the deletion of certain parts of the reports. The University made a determination to refuse Mr McGuirk access to the unredacted Hall reports. Mr McGuirk then made an application to the Administrative Decisions Tribunal for a review of the determination refusing access. Mr McGuirk was successful before the Tribunal and also on an appeal by the University to an appeal panel of the Tribunal.34 However, the University brought proceedings in the Supreme Court, which were heard by Nicholas J. Nicholas J held ([2006] NSWSC 1362) that the University had been denied procedural fairness in the Administrative Decisions Tribunal and set aside the determination by the appeal panel. Although it was not necessary in order to dispose of the proceedings before him, Nicholas J held that the Administrative Decisions Tribunal had power to grant access to a document, notwithstanding that it was an “exempt” document within Sch 1 to the Freedom of Information Act.
35 No appeal was brought from Nicholas J’s decision. However, in other proceedings between Mr McGuirk and the University which recently came before the Court of Appeal, the University submitted that, contrary to what Nicholas J had decided, the Tribunal has no power to grant access to an exempt document. In a reserved judgment delivered on 7 October 2009, after I had reserved in this matter, the Court of Appeal held that the Tribunal has no power pursuant to s 63(2) of the Administrative Decisions Tribunal Act to grant access to a document which is an exempt document by virtue of cl 10 of Sch 1 to the Freedom of Information Act.2. Independent Commission Against Corruption (“ICAC”) v McGuirk
36 I have already briefly referred to the ICAC proceedings. These proceedings are of particular importance because they came before Simpson J.37 On 10 December 2004 Mr McGuirk wrote a letter to ICAC marked for the personal attention of the newly appointed Commissioner Mr Jerrold Cripps. In the letter Mr McGuirk complained of serious and systemic corruption, mismanagement and a failure of governance at the University, extending over a period of eight years, and requested Mr Cripps to give high priority to a comprehensive investigation of his allegations. Mr McGuirk said that the evidence he had in support of his allegations comprised several thousand pages of documentary evidence, together with video and audio evidence.
38 Mr McGuirk in his evidence before me said that he had not previously complained to ICAC, because he knew that the Commissioner before Mr Cripps (Mrs Irene Moss) was a close friend of the University’s then Vice-Chancellor Professor Niland.
39 On 1 February 2005 a deputy ICAC Commissioner Mr John Pritchard sent an email to Mr McGuirk in which he said that ICAC did not intend to investigate Mr McGuirk’s allegations. However, Mr Pritchard added that, as with all complaints of corrupt conduct, the matter would be referred to the Operations Review Committee.
40 On 26 May 2005 Ms Linda Madgwick, an assessment officer of ICAC, wrote a letter to Mr McGuirk in which she referred to the email of 1 February 2005 and to further material which had been provided by Mr McGuirk and informed Mr McGuirk that a report had been sent by ICAC to the Operations Review Committee and the Committee had accepted a recommendation by ICAC that Mr McGuirk’s allegations not be investigated.
41 Mr McGuirk made an application to ICAC under the Freedom of Information Act for access to the report to the Operations Review Committee made by Ms Madgwick. Access was refused and Mr McGuirk made an application to the Administrative Decisions Tribunal for a review of the determination to refuse access.
42 Mr McGuirk was successful in the Tribunal, both at first instance and before an appeal panel. However, ICAC appealed from the decision of the appeal panel on the grounds that ICAC was exempted from the operation of the Act by virtue of s 9 and Sch 2 to the Act.
43 The appeal came on for hearing before Simpson J on 19 February 2007. Mr McGuirk was late in arriving at the court, because, he said, he had been “kidnapped” by police that morning and had been held for some time before he was released. Simpson J proceeded to hear the appeal and reserved her judgment.
44 On 2 March 2007 Simpson J delivered a reserved judgment in which she allowed the appeal and set aside the decision of the appeal panel of the Tribunal. Her Honour indicated that she was disposed to make an order that Mr McGuirk pay ICAC’s costs of the proceedings. Mr McGuirk opposed the making of such an order and himself sought an order that ICAC pay his costs. The question of costs was stood over.
45 On 26 March 2007 Mr McGuirk made the affidavit, a copy of which occupies the first 177 pages of exhibit MM1. Mr McGuirk made the affidavit for the purpose of opposing ICAC’s application for costs and supporting his application for costs.
46 Within the 177 pages of the affidavit there are four references to Ms Judy Brookman of the University’s media office or unit. In each place the words “Contact Details: Judy Brookman” and her position as media manager or as being in the University’s media or communications unit or office and particulars of her telephone numbers appear at the end of a media release by the University in which a statement or announcement by the University’s Vice-Chancellor or the University’s Chancellor is summarised or quoted.
47 The outstanding question of the costs of the ICAC proceedings came before Simpson J on 15 November 2007. Mr McGuirk was again late in arriving at court and did not arrive until Simpson J was part of the way through delivering an ex tempore judgment in favour of ICAC.
48 After Mr McGuirk had arrived at the court he was permitted by Simpson J to make submissions on costs. He handed up a document containing 25 pages of written submissions and made oral submissions to her Honour. He did not read his affidavit of 26 March 2007.
49 Simpson J delivered an ex tempore judgment in which she concluded that she should make an order that Mr McGuirk pay ICAC’s costs of the proceedings. Her Honour gave consideration to a submission made by Mr McGuirk that there are occasions when a party who was acting in the public interest, as Mr McGuirk claimed to have been doing in the ICAC proceeding, will not, even if the party was unsuccessful, be ordered to pay the costs of proceedings. However, her Honour concluded:-
“It is the usual practice that a successful litigant will be awarded costs but I accept that there are occasions when departure will be made from that usual practice and that is, for example, when it is in the interests of justice to do so. However, nothing has been demonstrated in the present case which persuades me that it is remotely in the interests of justice that I depart from usual practice. The matter was fully litigated. The defendant was unsuccessful. The plaintiff is entitled to an award of costs and I so order.”50 Mr McGuirk submitted before me that the issue in the ICAC proceedings had been whether the Administrative Decisions Tribunal had erred and Simpson J should not have made a costs order against him.
3. Mr McGuirk and the New South Wales Police
51 There was another appearance by Mr McGuirk before Simpson J in the year 2007.52 Mr McGuirk alleges that between February 2007 and mid-April 2007 he was subjected to a sustained campaign of intimidation and harassment by officers of the Burwood Local Area Command of the police force. Mr McGuirk alleges that his kidnapping on 19 February 2007 was part of that campaign.
53 On 28 March 2007 Mr McGuirk filed a summons in this court seeking an injunction against the New South Wales Police Commissioner. The application for an injunction was listed on 5 April 2007, when the common law duty judge happened to be Simpson J and Mr McGuirk’s application came before her Honour.
54 Mr McGuirk gave evidence before Simpson J and was cross-examined by a barrister appearing for the Commissioner of Police. Simpson J declined to grant an injunction and made an order against Mr McGuirk that he pay the costs of the proceedings.
55 Mr McGuirk gave evidence before me that the campaign of harassment by the police abated in mid-April 2007, when the hearing in the Local Court of criminal charges against Mr McGuirk, to which I will later refer, resumed.
4. Mr McGuirk and the Ombudsman
56 Mr McGuirk made a number of complaints against the University of New South Wales to the New South Wales Ombudsman but the Ombudsman declined to investigate Mr McGuirk’s complaints. However, the Ombudsman did investigate other complaints against the University brought by the Hall whistle-blowers, Mr Peter Curtin and a former member of the Council of the University. This investigation continued for about four years.57 In about the middle of 2006 Professor John Ingleson, who was the Deputy Vice-Chancellor and Protected Disclosures Co-ordinator and who had been the subject of some of the complaints, began court proceedings seeking to prevent the release of a report by the Ombudsman, on the grounds that he had been denied procedural fairness. According to Mr McGuirk, the Ombudsman agreed to discontinue his investigation.
58 Mr McGuirk brought court proceedings against the Ombudsman seeking a review of the conduct of the Ombudsman. Rothman J of this court, before whom the proceedings came, held that Mr McGuirk had no standing to bring the proceedings and an appeal from Rothman J’s decision was dismissed by the Court of Appeal.
5. Criminal proceedings by Mr McGuirk
59 In late 2003 Mr McGuirk instituted a private criminal prosecution against five defendants, being the Vice-Chancellor of the University, Professor Ingleson, two other professors and Mr Neil Morris, the Executive Director University Services with responsibility for inter alia Human Resources, Media and Communications and Legal and Compliance, for alleged contraventions of s 20 of the Protected Disclosures Act , which provides that a person who takes detrimental action against another person that is substantially in reprisal for the other person making a disclosure which is a protected disclosure under the Act, is guilty of an offence punishable summarily. A prosecution brief of evidence containing more than two and a half thousand pages was served on the defendants.60 The prosecution came on for hearing in the Local Court on 9 February 2005. Mr McGuirk was represented by counsel.
61 On the second day of the hearing Mr McGuirk was advised by his counsel that, in counsel’s opinion, the strategy of the defendants was to draw out the proceedings and that, if the proceedings continued, Mr McGuirk would face the risk of bankruptcy. Mr McGuirk accepted his counsel’s advice to discontinue the proceedings on the basis of each side paying their own costs and by consent the proceedings were terminated on that basis.
63 The proceedings dragged on for a couple of years. Ultimately, on 6 February 2009 a magistrate stayed the prosecution. The Director of Public Prosecutions considered an appeal against the magistrate’s order staying the prosecution but eventually decided not to appeal.”6. Criminal proceedings against Mr McGuirk
62 Criminal proceedings were brought against Mr McGuirk for an alleged contravention of the Enclosed Lands Act and for hindering police. These proceedings had no connection with the University. Mr McGuirk represented himself in these proceedings.
Development of Application for Recusal
8 In order to set the scene it is important at the outset to identify, in general terms, the oral application that was made by the Appellant to Higgins JM and then, later in this decision, to review in detail precisely what happened before her, and the arguments that were put before us. In adopting this approach there may be some degree of repetition but that cannot be helped if one is to understand the arguments advanced by the Appellant.
9 Doing the best that we can from the transcript, (and we note that in our decision references to the various transcripts will not always be quoted precisely as transcribed - the transcripts not having been corrected - but minor alterations have been made, not to alter the meaning but rather to present the real sense of what was evidently said), the Appellant appears to have based his oral application on a number of points, as follows:
- 1. That the Judicial Member had demonstrated an “apprehension of bias – or actual bias … either or both in the alternative” (T.1 and.23).
- 2. The acceptance of an oral application (it seems, in proceedings 073277) by the Respondent “without having any formal follow up when you consistently denied (an) oral application from me demonstrates bias. The University can make an oral application, fine, (but) I can’t, is that bias (?), yes”. This related to an oral application made by the Respondent 23 January 2009 in or to the effect that the Appellant’s “application be struck out as an abuse of process” (T.23-24). The essence, the Appellant said was, that the Judicial Member “treated me unequally, that’s the essence”. (T.24).
- 3. The Appellant submitted (T.25) that ADT Act, s 73, evidently sub-section (5)(b), was “the most overlooked section in the ADT Act, the one that no Tribunal member wants to know” and that the Judicial Member had “consistently failed to ensure that all relevant materials (were) disclosed to the Tribunal so as to enable it to determine all of the relevant facts in the proceedings … (and that the Judicial Member had) breached your statutory obligations; that is misfeasance in public office … (and the Appellant described that as) an absolute disgrace”.
- 4. The Appellant handed to the Judicial Member “a copy of the letter by him dated 12 March 2006, to the Freedom of Information officer, Community Relations Division, Attorney Generals Department” and submitted that this was another example of the bias of the Judicial Member (T.26).
- 5. The Judicial Member had struck out an application of the Appellant “because it was vexatious, misconceived, lacking in substance … without giving proper reasons”, so he lodged the application again and (apparently) ten documents were revealed (T.26). The Appellant asserted that in all the circumstances the actions of the Judicial Member were incompetent, that she was really not doing her job, that she could not do that “and retain your position here as a member of the Tribunal – that’s incompetence, (arguably) corrupt”) (T.26-27).
- 6. The Appellant submitted (T.28) that from his researches the Judicial Member has “never made a report pursuant to Section 58 (of the FOI Act) of the conduct of any officer or any agency or in particular never in respect of the University of New South Wales and Ms Fleming (the then University solicitor) and Mr Singleton (counsel appearing for the University)”. He submitted that s.58 “must be used in a proper case. It’s not a discretion at large, when the circumstances arising, which clearly demonstrate that the University has not complied with its obligation; it is not open to any Tribunal Member not to fulfil his or her obligations and to make a proper report. In fact, the failure to do so is like corruption, has proliferated and (is) proliferating and continues to proliferate in this State as the Labor Party implodes … (and the Judicial Member has) failed to fulfil (her) obligations”.
- 7. The Appellant then (T.28) asked the Judicial Member: “How many costs orders have you made under section 88 of the ADT Act?” and then asserted that she had “selectively used powers to shut down applicants while condoning the improper conduct so that people such as Mr Singleton and Ms Fleming and the University generally”. He asserted that the Judicial Member had “never, ever used the Section 58 power. (She) used (the) Section 75(5)(h) power purportedly, an abuse of that power in a decision” (made in 2007 in matter063263) and that “was corruption”.
- 8. When asked (at T.29) to point to examples were applicants had been shut down the Appellant sought to read from a report prepared by “(an) administrative law student who sat at the back of this Tribunal” and the Appellant asserted that “as the hearing progressed her neutral stance shifted towards somewhat bias ..”. At that point the Judicial Member adjourned the hearing and directed the recording equipment be switched off. There was then a short adjournment and the Applicant (at T.30) then asserted that the Judicial Member was “not willing to accept evidence”; and also asserted that the failure of the Judicial Member to either permit the University student’s report to be read on to the record, alternatively, have it admitted into evidence, constituted bias.
- 9. The proceedings then went on with further discussions and (at T.32) the Judicial Member said that she would give to the Appellant “15 minutes” to complete his submissions. The Appellant asserted (at T.32) that “in respect of my application about bias you want to shut me down, that’s ok, fine I mean, it’s quite normal” and that he and the University “must be accorded equal treatment, it’s as simple as that; it is called the rule of law”.
10 We shall return later in this Decision to what transpired on 25 September 2008 but suffice it to say that the Judicial Member reserved her decision and subsequently delivered that decision on 11 November 2008, reported [2008] NSWADT 302. Again, we shall refer to this in more detail later in this decision; suffice it to say that was that the Appellant’s application that the Judicial Member “excuse (herself) from hearing and determining these matters, is dismissed.” [at 24]
Appeal Papers
11 The Appellant filed a Notice of Appeal 18 November 2008. This Notice indicates that the appeal is “on a question of law only” and the Appellant set out his reasons for appeal as follows:
“The Tribunal erred at law by denying Mr McGuirk procedural fairness in respect of the proceedings which are before the Tribunal under file numbers ADT 073277, 083008, 083009 and 083019 on the basis of the bias and/or apprehended bias of the Judicial Member (Judicial Member Higgins) who has been appointed by the President of the Tribunal, Judge Kevin O’Connor, to hear and determine these matters.
In the alternative, the Tribunal erred at law in its decision in McGuirk v. University of New South Wales [2008] NSWADT 302 by failing to find that Judicial Member Higgins is either biased against Mr McGuirk (and biased in favour of the UNSW), or, is “subject to apprehended bias”.
The Tribunal erred at law in its application of the legal tests for bias and/or appended bias.
The Tribunal erred at law by improperly rejecting evidence which clearly established that Judicial Member Higgins was “subject to apprehended bias” in favour of the UNSW (and in favour of Mr Peter Singleton in particular) and against Mr McGuirk”.
12 Those were the grounds of appeal. The Application for Leave to Appeal was in the same terms but added the following words:
“The decision of Higgins JM is clearly wrong on its face. The law student who reported on the conduct of proceedings by Mrs Higgins and adjudged her biased in favour of the UNSW is not a fellow student of mine”.
13 The material filed by the Appellant in support of the appeal was 161 pages in length.
14 The Reply filed by the Respondent University generally supported the approach taken by Higgins JM. The grant of leave was not opposed but the University submitted that the appeal should be dismissed. The substance of the reply, and its supporting submissions, focused on the issues of “actual bias” and “ostensible or apprehended bias” by the Judicial Member. It would be not unfair to say that the University, not unreasonably having regard to the grounds of appeal, approached the matter principally from the point of view of apprehended bias by the Judicial Member.
Developed Grounds of Appeal
15 As the arguments developed before the Appeal Panel it became clear that the Appellant was developing grounds of appeal that related, not so much to the learned Judicial Member, but rather to the “culture” of the Tribunal, the “culture” of some Members of the NSW State Parliament, of certain members of the Executive and of senior Government Officers; allegations of “criminal conspiracy to pervert the course of justice” against the University’s solicitor (T.11/06/10 at 36); that a Judge or Judicial Member “should not sit if I, as a party, Michael McGuirk, entertain a reasonable suspicion that … (Higgins JM) might not bring an impartial mind, impartial unprejudiced mind, (to) the resolution … on the question before it” (T. 11/06/10 at 46); that the “motive” of Higgins JM was “the motive … given by the culture and environment within (which) she operates …” [T.11/06/10 at 49]; that the Tribunal has an obligation under FOI Act s.73(5) “to ensure that the University puts the relevant material before it so that the Tribunal can come to the correct and preferable decision … (and that) the Tribunal has consistently failed to do that, across the board, in the FOI Division” [T.11/06/10 at 50]; that there is a culture at executive level of government, that the Honourable The Attorney General is “one of the leading lights of the right wing faction of the Labor Party … the corrupt faction … the (State) Government is profoundly corrupt … (and the Attorney) is a member of the executive government” (to whom senior government officers report who can be sacked at the whim of the Attorney) and … “that a fish rots from the head … (that the culture smells) … that rotting smell pervades its further down …” into the Tribunal because the Tribunal Members do not have security of tenure and are beholden to the Executive and the State Government … and is thus a “structural issue, a systemic issue” … particularly in relation to FOI applications because FOI applications/documents have the capacity to expose corruption [T.11/06/10, 24-29] and it is “against the interests of the Executive Government for FOI laws to work” [T.11/06/10, 28]; and finally, that certain Members of the Tribunal in its General Division do not have “legal competence” and suffer from “lack of impartiality (otherwise expressed as “systemic pro-agency bias” which “lie at the heart of the failure by the Tribunal to fulfil its statutory mandate in regard to freedom of information in New South Wales” [letter from Appellant to the Tribunal 05/11/09, p6].
16 In the above recitation we have attempted to identify reasonably specific assertions argued by the Appellant on the appeal, outside , or in addition to, the arguments raised in the Grounds of Appeal. The gravamen, or substance, of the appeal as propounded revolves substantially on the appellant’s assertion that there is a culture within the Tribunal that militates against transparency in government and government instrumentalities, such that Members of the Tribunal act in a way that is antithetic to the FOI legislation; that alternatively that some part of a systemic culture has impregnated itself into the thinking processes of Judicial Members surreptitiously such that they were unknowingly influenced to favour the Government and Government instrumentalities, and not favour the applicants.
17 This argument, as advanced by the Appellant, is extreme and unusual and would depend for its success on there being available evidence to the Judicial Member if not to the Appeal Panel that would support it. Although not essential for our decision, we think that such evidence would need to satisfy at least the Briginshaw standard as the allegations are serious, grave and weighty. The mere making of the allegations or assertions is clearly not sufficient; clear evidence would be required. The Appellant has not, in our opinion, offered evidence of the allegations or assertions which even meets the ordinary civil standard.
18 The submission that there is a cultural, or systematic bias, does not initially conveniently fall within the accepted categories of bias, namely actual bias or apprehended bias. However, it appears that the concept of a culture of bias or systematic bias would fall within the accepted definition of apprehended bias, namely “whether a fair-minded lay observer might reasonably apprehend that the judge (or tribunal member) might not bring an impartial and unprejudiced mind to the resolution of the question the judge (or tribunal member) is required to decide”:Ebner at p.344.
19 This Appeal Panel proposes to review the material put before us by the Appellant and, in the course of so doing, deal with the various aspects raised on the appeal, which will include the actual conduct of Higgins JM at the hearing on 25 September 2008; the reasoning and result of her determination on 11 November 2008; and the over-arching submission relating to a culture of systemic bias in favour of the Government, government instrumentalities and others caught by the FOI legislation. The Panel also proposes to address the issue raised by the Appellant relating to the duties of the Tribunal under ADT Act s.73 .
Qualifications of Appellant
20 Normally reference would not be made to the qualifications and experience of an Appellant. Normally it would be irrelevant. But, because of the way in which the appeal was conducted and the allegations/assertions that were made by the Appellant, in writing and orally, we think it important to make the point, as the Appellant made to us on more than one occasion, that he is (effectively) an experienced litigator. He is not a novice; he is a person experienced in litigation, he has often been before this Tribunal appearing personally; and often appears personally in the Supreme Court and Court of Appeal. Consequently, and in reviewing the material put before us, we have borne all this in mind.
21 First, the Appellant urged upon us that we should take into account the fact that since 2005 the Appellant has been involved in more than 74 Applications before the Tribunal (Exhibit 3). Secondly, he stated [T.3/05/10 at 2-3]: “I have been studying full time at the College of Law and I finished my final assessments on last Friday and I am sure the bench will be pleased that of the five subjects currently marked I have high distinctions in three of the five. I’m not a slouch. I have two university medals … since 1 January 2010, (I have) been attending the College of Law on a full time basis …” and that his “focus during the past few months has been on completing the requirements for my graduate diploma of legal practice and on stabilising my mental health. The (first) two psychiatric reports … in fact three reports have been provided to the University”. At [T.11/06/10, at 31] the Appellant told us “…I’ve got 15 decisions at the Supreme Court level or above; I was in the Court of Appeal this morning. So 15 decisions in the Supreme Court or above, and some, I think, 84 decisions in the ADT. So, I think one can reasonably say that I have a little bit of experience about how the judicial system works and (you will) look forward to … reading my book …”; at [T.01/02/10 at 16] the Appellant told us that he had “four university degrees and two university medals”; and finally the Appellant actually tendered as part of his appeal (Exhibit 5) his University results with respect to his law studies: these demonstrate, relevantly, that in Civil Litigation Practice his Result was high distinction and his Grade 85, in Professional Responsibility: credit and 71; Professional Skills: satisfactory and 100; and in Administrative Law Practice: high distinction and 100. The Appellant clearly wishes to be admitted as a legal practitioner in the State of New South Wales [T.01/02/10 at 1] and indicated that he wished to lecture in Administrative Law [T.01/02/10 at 86].
22 Thus, although the Appellant is not admitted a lawyer, he has represented himself on the appeal, he is highly qualified and is well experienced in the law and litigation. It is against this background of qualification and experience that the Appellant needs to be judged in the presentation of his appeal, in the assertions that he has made from the Bar table, and in writing; and to which allegations/assertions this Appeal Panel needs to give proper consideration in order to determine the appeal. It would be wrong, in our opinion, to gloss over the allegations/assertions, simply because they form the basis of the Appellant’s submission pertaining to the culture of systemic bias within the Tribunal.
Proceedings Before Higgins JM 25 September 2008
23 The proceedings listed before the learned Judicial Member were a hearing of an interlocutory application by the Respondent in proceedings 073277 and directions hearings in relation to three other applications instituted by the Appellant against the Respondent, being numbered 083002, 083009 and 083019. There is no requirement for us to review any of those Applications in detail – neither party saw the need to refer us to any of these files. The Appellant appeared on that occasion in person. Mr Singleton of counsel appeared for the Respondent University.
24 The Judicial Member indicated that “first and foremost” she wished to deal with those matters that were listed for directions.
25 At [T.25/09/08 at 1] the Appellant stated: “I have been very reluctant to do this but I think it’s now (at) the stage where I need to make a formal (application) that you recuse yourself for bias, or in the alternative, apprehended bias … you should recuse yourself from the directions”. [At p.1] the Appellant stated: “I think the persistent pattern of pro-agency bias that you’ve shown over the last two years is really at the stage where I just find it intolerable and we have here, you know, a collapse in executive government in this State, corruption rampant, and I think this Tribunal has a major role to play in that”.
26 This recusal application was made orally. No formal application was made, and no specific material was filed in support of the application. Apparently the application was made without notice to the Respondent. The Judicial Member noted, at p.2, that she had no material before her and the Appellant’s response was, “No, well, it’ll come out during the process of the hearing”. The Judicial Member made it plain that she was “going to deal with the directions now because I do not have any material” and the Applicant responded: “Certainly, although if you recuse yourself then those directions are null and void” and that “as long as you understand it, they may well be null and void, we may be wasting your time”.
27 The Judicial Member then went on to consider file 083002 (which was filed on 3 January 2008); and then (because the Appellant’s submission had been mislaid) the Judicial Member stood down application 083002. Then [at p.4] picked up 083009. Eventually, various directions were made and the proceedings were set down for a half day hearing on 18 November 2008.
28 Nextly, [at p. 8] the Judicial Member dealt with Application 083019. The Appellant raised an estoppel issue and “appalling abuse of process” and [at p.9] asserted that “this Tribunal is afraid to take proper conduct, proper action, against the conduct of Mr Singleton and Ms Fleming (then solicitor for the University) and the University of New South Wales generally; it’s afraid of these people … it is and that is bias”. Pausing here, the relevance of all this to a directions hearing is not immediately apparent. There followed a considerable amount of discussion; and [at p.11] the Judicial Member stated: “Mr McGuirk what I am trying to do is … accommodate your needs. I am asking you which date is suitable. I am attempting to accommodate your needs now …”. There followed yet another assertion by the Appellant at [p.11-12] where he stated that he wanted the University “to comply with the [FOI] Act … they sort of thumb their nose at the Tribunal, the Act, and (the) Parliament and everybody”. Eventually, the hearing was set down for 19 December 2008 [p.12].
29 Then [at p.13] the Applicant stated to the Judicial Member: “You have just signed cheques for Mr Singleton for about $6,000.00 so that is being paid by the students of this state, the University of New South Wales. I don’t know if that is a proper use of those resources; in fact, I am sure it’s an improper use of those resources”.
30 At p.13 there followed some discussion relating to two files. It is worthwhile setting out the transcript in some detail:
“Singleton: There are two other files on the bench.
Higgins: Yes. What are they?
Singleton: They are the two files referred to in my submissions in the hearing matter today. Mr McGuirk is seeking the same documents in today’s matter as he sought in those two other files.
Higgins: Okay
Applicant: Mrs Higgins, could I ask you then in that matter to obtain from the Registry the file of 053333, because that’s another matter in which I sought the same documents. I think the evidentiary records should be complete. I’ll get them if you like.
Higgins: No, Mr McGuirk.
Applicant: No, this is finished, all right.
Higgins: Mr McGuirk would you please sit down.
Applicant left the hearing room.”
31 Pausing at that point, if we may, the Appellant as Applicant was denied permission to attend the Registry to collect various Tribunal files. Quite properly so, it seems to us. The Appellant although not a legal practitioner and, although being a party to the various proceedings, was not entitled, as a matter of ordinary court/tribunal practice, to leave a hearing room without permission and go to the Registry and seek to uplift himself Tribunal files. He demonstrated a lack of understanding of his position and his entitlements and, indeed, rudeness to the Judicial Member in disobeying her denial of permission to him to uplift the files and in simply leaving the hearing room without permission.
32 As it turns out, the file in question was not then in the Registry. It is again worthwhile quoting from what follows at p.13:
“Singleton: Perhaps the record should note that Mr McGuirk has left the room.
Higgins: Mr McGuirk has just left – for the record I should indicate that Mr McGuirk has left the Tribunal hearing room. I should indicate … that file is actually not at the Registry; it’s in my chambers. For the record, when Mr McGuirk has the courtesy to return, I (will) be able to explain that to him”.
33 Then followed some discussion between the Judicial Member and Mr Singleton and [at p.14, line 42] the Transcript shows: “Applicant returns to hearing room”. Then followed an interesting educative exchange (at p.14ff):
“Higgins: Just a moment, Mr McGuirk.
Applicant: That file should be here. Apparently your decision in that matter was reserved in April so the file is actually with you. So you’re intimately aware of the conduct of the University.
Higgins: I was about - well, if you had done me the courtesy to listen rather than walk out of the hearing room, Mr McGuirk …
Applicant: Well, I presumed that you were seeking to exclude evidence.
Higgins: Can I – I was not going to do that.
Applicant: Well, that was the evidence in front of me.
Higgins: Mr McGuirk, Mr McGuirk.
Applicant: Yes?
Higgins: My recollection …
Applicant: Mrs Higgins, you – you were the subject of my application to recuse yourself …
Higgins: Mr McGuirk, Mr McGuirk …
Applicant: … because I think the bias here is profound.
Higgins: Mr McGuirk, Mr McGurik.
Applicant: Sorry.
Higgins: I was about to explain to you where that file was.
Applicant: Yes, thank you.
Higgins: And you did not even extend me the courtesy of listening to me …
Applicant: You could have said: I have the file, I know where the file is. You didn’t say that.
Higgins: … I was – Mr McGuirk.
Applicant: Why not?
Higgins: Because you walked out the door.
Applicant: I stood up and waited and you just said sit down; you could have told me: I have the file.
Higgins: Mr McGuirk, we’re not going to argue about this …
Applicant: Well I do expect a bit of respect from this Tribunal. I am getting a bit fed up with what is happening, very fed up.
Higgins: Mr McGuirk respect goes two ways.”
34 The missing file was apparently 053333.
35 The directions hearing went on to find out what material had been filed in 073277 and ultimately [at p.41] the hearing was adjourned to 19 December 2008.
36 At p.21 the Judicial Member reverted to the issue that has resulted in this appeal. She stated: “You have made an application that I disqualify myself”. When asked to put before the Tribunal “the evidence and the grounds on which you rely” the Appellant stated [at p.22]: “In order for the evidence to come out we need to really hear this application because it will happen during the hearing of this application as well as others”. At lines 14ff this exchange took place:
“Higgins: No, Mr McGuirk. I am asking you to make – to put before me why you say I should disqualify myself.
Applicant: Mrs Higgins, asking the wrong question doesn’t really help; as we go through I will indicate to you through this process where …
Higgins: Mr McGuirk.
Applicant: Yes?
Higgins: You either withdraw the application or we deal with it now.
Applicant: No, I am not withdrawing it, I’m not withdrawing it.
Higgins: All right. Well, we are dealing with it now. I’m hearing you”.
Pausing at this point it is plain to us that the question asked by the Judicial Member at lines 14 and 15 was the correct question and the response of the Appellant/Applicant was incorrect.
37 At [p.22-23] the Appellant made it plain that he relied upon actual bias and/or apprehension of bias “either or both in the alternative, I think”. The Judicial Member pointed out that the Appellant “must point to some evidence … which demonstrates that I have … acted biasly or there is an apprehension of me acting biasly”.
38 The Appellant then went on to identify the first ground of his application [at p.23] that the Judicial Member had accepted oral applications from the University without any formal follow up and had “consistently denied oral applications from me” and that “demonstrates bias”. “The University can make an oral application, fine, I can’t. Is that bias? Yes”. Pausing, again, the fact is that on 25 September 2008 the Judicial Member did in fact accept an oral application from the Appellant to recuse herself.
39 The Appellant proceeded to identify, by way of oral particulars, that on 23 January 2008 the Judicial Member accepted from the bar table without prior warning “an oral application that my application be struck out as an abuse of process” and that the Judicial Member (at p.24) should not have accepted that oral application and should have said: “Please, if you want to make that application, put it in writing (and) give it some support …” and that in so doing “you treated me unequally; that’s the essence”.
40 The next ground in support of the recusal application is articulated [at p.25] when the Applicant asserted that the Judicial Member had “consistently failed to ensure that all relevant materials (are) disclosed to the Tribunal so as to enable it to determine all of the relevant facts in the proceedings … (and thus the Judicial Member had) breached your statutory obligations; that is misfeasance in public office”. The Appellant was referring to ADT Act s.73(5)(b) [to which we make more detailed reference below]. The Appellant then handed to the Judicial Member a decision in McGuirk v. Attorney General’s Department [2007] NSWADT 138, stating that the decision was “an absolute disgrace”.
41 Then [at p.26] the Appellant handed to the Judicial Member a copy of a letter 12 March 2006 from him to the Freedom of Information Officer, Community Relations Division, Attorney General’s Department, which he submitted was another example of bias – “profound bias”.
42 Later, on the same page, the Appellant referred to an FOI application by various other persons which was apparently written up in the Sydney Morning Herald newspaper (the relevance of this appears to have been a mystery to the Judicial Member, as it is to us) and stated that “four days after my application was struck out I put in an application for the same documents. You struck out my application because it was vexatious, misconceived, lacking in substance; so I put it in again … having struck out my application on the basis that it was vexatious, misconceived, lacking in substance (and) without giving proper reasons, all of a sudden 10 documents front up”. The Appellant handed to the Judicial Member a letter dated to the Freedom of Information Officer, Community Relations Division, Attorney General’s Department 29 June 2007 and a further letter addressed to the Acting Director General 5 September 2007. The Appellant went on [at p.27] to assert that persons the subject of the FOI Act “are to clarify, get it right, if there is some difficulty in understanding what is meant by the Applicant because the guidelines say that very often the Applicant is not quite sure. The obligation is fully and squarely on the Respondent … (who) … sought to have me struck out as being vexatious and whatever, and I put it to them and, in fact, you had this evidence, Mrs Higgins, you had this evidence in front of you when you made that decision … despite the fact that you knew personally, in your knowledge, that there was material held by the Attorney General’s Department which fell within the scope of my request, you struck it out. Now, that’s incompetence. It’s really not doing your job. You can’t do that, Mrs Higgins, and retain your position here as a Member of the Tribunal. That’s incompetence, (arguably) corrupt”. There then followed some discussion with reference again to s.75(5)(b) and [at p.28] the Appellant said to the Judicial Member: “You thought: I’ll get rid of this guy. Mrs Higgins, it is not open for you to do that. That is not fulfilling your obligations. If you take the money you do the job. If you don’t want to take the money you don’t do the job. Mrs Higgins, you have been aware of that for some time. I’ve drawn it to your attention before and I said it needs to be re-opened. What have you done? Nothing. So, I have now applied to the Tribunal to have it re-opened and struck out”.
43 The next bias point raised by the Appellant appears [at p.28] where this exchange took place:
Higgins: Keep going Mr McGuirk.
Applicant: Mrs Higgins, how many section 58 references have you made? I note for the record, and this a Jones v. Dunkel point. Well, it is, isn’t it?
Higgins: Keep going Mr McGuirk.
Applicant: In my researches Mrs Higgins has never made a report pursuant to section 58 (of the FOI Act) of the conduct of any officer of any agency and in particular never in respect of the University of New South Wales and Ms Fleming and Mr Singleton. Notwithstanding the clear power conferred on the Tribunal under section 58 of the FOI Act, which must be used in a proper case. It is not a discretion at large. When the circumstances arise, which clearly demonstrate that the University has not complied with its obligations, it is not open to any Tribunal Member not to fulfil his or her obligations or to make a proper report. In fact, the failure to do so is like corruption; has proliferated and (is) proliferating and continues to proliferate in this state (as) the Labor Party implodes. Mrs Higgins, you have failed to fulfil your obligations.”
44 It is not clear to us that the learned Judicial Member should ever have made a report pursuant to FOI Act s.58. There was no evidence before the Judicial Member, nor was there any evidence before us, that the Judicial Member should have made such a report.
45 Then followed some discussion about costs under the ADT Act, s.88. Somehow from that discussion, the Appellant stated [at p.28], as his next ground for alleging bias: “My point is that you have selectively used powers to shut down applicants while condoning the improper conduct (of) people such as Mr Singleton and Ms Fleming and the University generally”. When asked [at p.29] to “point to an example where (Higgins JM has) selectively shut down an Applicant” the Appellant stated that the Judicial Member had never used the s.58 power and had abused her powers under s.73(5). At lines 37ff at p.29 the following important exchange took place:
“Higgins: What I want you to do is point me to examples where I have shut down applicants.
Applicant: I read from a report prepared by (an) administrative law student who sat in the back of this Tribunal …
Higgins: Mr McGuirk, Mr McGuirk, for the record …
Applicant: This is …
Higgins: Mr McGuirk, Mr McGuirk …
Applicant: … (when) Mrs Higgins presided over the McGuirk hearing the member appropriately dispensed ..
Higgins: … Mr McGuirk, Mr McGuirk, I’m going to …
Applicant: … as the hearing progressed her neutral stance shifted towards somewhat bias …
Higgins: … the Tribunal – this hearing – is now adjourned. Will you turn it off, please?
Recording equipment turned off at Judicial Member’s request.
Applicant: … time being an obvious constraint it seems she had made up her mind.
Short adjournment.
Applicant: Can I have it read on the record …
Higgins: No, Mr McGuirk you will hear me first. I am presiding over these proceedings.
Applicant: Well, (it’s) your conduct (that) has been impugned, not mine, Mrs Higgins.
Higgins: I understand that, and I am listening to the submissions that you are making. I propose …
Applicant: But you’re … afraid – you’re not willing to accept evidence.
Higgins: I propose – I propose if these proceedings cannot continue in an more orderly fashion with you, Mr McGuirk, dealing with material appropriately rather than you just reading out things arbitrarily, I will …
Applicant: Mrs Higgins, I will provide …
Higgins: … adjourn these …
Applicant: … would you mind getting a copy of this?
Higgins: … I will adjourn these proceedings. I will make orders for material - for submissions to be filed and I will make a decision on the papers. Mr McGuirk …
Applicant: Mrs Higgins I – I …
Higgins: … Mr McGuirk, I haven’t finished yet.
Applicant: Yes, well I don’t intend to put (in) any further written submissions … you’ve got all the evidence in front of you; if you are not prepared to deal with the evidence, if you’re not prepared to also really look at your records Mrs Higgins …
Mrs Higgins: Mr McGuirk I am not …
Applicant: … I can’t help you.
Higgins: Mr McGuirk, you are fully aware of what is required in order to support an application for bias.
Applicant: Mrs Higgins, I have the material in front of me. I can read it. There are two paragraphs.
Higgins: Mr McGuirk, Mr McGuirk …
Applicant: … and you are refusing. See, this is a bias issue. You could deal with this …
Higgins: Mr McGuirk, Mr McGuirk …
Applicant: … you could deal with this in 30 seconds.
Higgins: Mr McGuirk, I am all too familiar with the material you’re seeking to rely on. That material with respect …
Applicant: … evidence of her dismissive attitude towards the Applicant.
Higgins: Mr McGuirk, Mr McGuirk this is not …
Applicant: This is an independent observer.
Higgins: … this is not a dismissive attitude, Mr McGuirk …
Applicant: No – it’s evidence; its written down – this is an independent observer talking about your conduct
And later: [at pp 31-32]:
Applicant: Bias was evidenced in her dismissive attitude towards the Applicant in some respects. That’s you, Mrs Higgins. I didn’t invite this. I didn’t invite it to be written. This is a University Student.
Higgins: Mr McGuirk, Mr McGuirk, I understand what it is. It is not material that, with respect, is relevant or admissible in these proceedings. This is a matter for me to determine. It is not a matter for your students or your fellow students to determine”.
Applicant: No. No. It’s not a matter for you to determine.
46 There are a number of points to be made about the above exchange. First, it appears plain that the Applicant was talking over the Judicial Member on an almost continuous basis. Those interruptions reached in our opinion an improper, if not offensive, level. Secondly, there followed a situation where the Judicial Member extended to the Appellant 15 minutes to finish his submissions orally, he having said he did not wish to put in any written submissions. There followed an almost continuous address from the Appellant covering 3 or so pages of transcript which we will detail later in this Decision. Thirdly, it is now appropriate to address the issue of the student’s “report” in more detail.
Student’s Report
47 As is evident from the above exerpts from the transcript the Appellant sought to read on to the record a portion of a report prepared by a student at the University of NSW, as evidence of the asserted bias of the Judicial Member. The Appellant, on this appeal, placed considerable reliance upon the student’s observations and asserted that those observations were sufficient to establish bias.
48 In his oral submissions to the Appeal Panel 11 June 2010 he stated [T.40] that, on that particular day before Higgins JM, he stated: “Well, in fact, I remember I walked up … behind the recorder [ie the person who was recording the proceedings], who was on the left-hand side, up to Mrs Higgins and gave it to her, or tried to give it to her, and she passed it back to the recorder”. So, and doing the best that we can, and even accepting that as being the fact, it would appear that the Appellant, after the recording equipment had been turned off, approached the Judicial Member and attempted to hand to her the student’s report. She declined to accept it and handed it to the recorder. We pause to observe that in this Tribunal there is no formal court/tribunal officer, such that if a party seeks to tender a document they either approach the Bench (by leave) or the recorder/monitor graciously assists by taking the document sought to be tendered and handing it to the Judicial Member. So, it is quite likely that the Appellant (if one accepts the statement made by him) handed the document to the recorder/monitor, he/she would have handed it to Higgins JM and she, in turn, would have returned it to the recorder/monitor who would have then returned it to the Appellant.
49 In his oral submissions 11 June 2010 the Appellant submitted, in relance upon Ebner at [6] that he was a party, that the student was a member of the public, that he entertained a reasonable apprehension, and the student entertained a reasonable apprehension, that Higgins JM might not bring and impartial and unprejudiced mind to the resolution of the question before her. The passage relied on was in the following terms:
“The principle that a judge should not hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial or unprejudiced mind to the resolution of the question involved in it …”.
He seized upon the statement by Mr Singleton of counsel for the Respondent (Submissions p.4) that it “is the parties or the public whose apprehension (or non-apprehension) is relevant, not that of the court or the appellate court … what is required is an assessment of how the public or parties would assess the circumstances” and that (at p.5) “what the public or parties must entertain is a ’reasonable apprehension’.”
50 We understand the Appellant to submit that by those various paragraph the University conceded the appeal. At [T.11/06/10 at 46] the Appellant made this submission: “The next sentence is the critical one. It says “the parties or the public”. I’ll stop there for one minute. Let me just repeat that phrase: “the parties or the public … I happen to be a party. I happen to be a party and it says: “The parties or the public might entertain a reasonable suspicion that (the Judge) … might not bring an impartial or unprejudiced mind to the resolution of the question involved”. So let me just re-state, to put it in my … terms: a Judge should not sit if I, as a party, Michael McGuirk, entertain a reasonable suspicion that Mrs Higgins might not bring an impartial mind, impartial, unprejudiced mind (to) the resolution … on the question before (her). Now, Mr Singleton, in his submission, said Mr McGuirk might have a reasonable suspicion that Mrs Higgins might not bring an impartial mind. He’s conceded my case”.
51 And, (at p.47) the Appellant stated: “Is my apprehension reasonable? Am I a party? I think my apprehension is reasonable”. And then went on to say that because it was “sufficient that the public or parties might reasonably apprehend” bias then that was a concession of his appeal.
52 The Appellant adopted the view that because he had a personal view about Higgins JM, a view which was supported by the student, then the Judicial Member should step aside. At [T.11/06/10 at p.42], the Appellant said: “… really the nature of this matter is more of the nature of a review than an appeal in the strict sense. It is effectively a review of the conduct of Judicial Member Higgins and whether it is proper to infer that Judicial Member Higgins, based on that conduct, should really step aside and hand over the matters to another person. That’s the remedy I’m seeking. Nothing more, nothing less. I’m just staying: Mrs Higgins thank you very much … nice to know you but please can we hand the matters over to somebody in whom I can have a bit more confidence”.
53 Because the Appellant put great store in his personal view and in the views expressed by the student, we have thought it appropriate, and proper, to deal with the student’s “report” in more detail. This document was placed into evidence before us by the Appellant as Exhibit 4. It comprised not only the “report” itself but also a number of other documents. In dealing with these documents we have anonymised the name of the student who prepared the document, and the name of the other matter to which the student refers in her material. This is because first, there is no evidence at all that the author of the document consented to its use in open proceedings in this Tribunal; and, secondly, the other matter to which reference is made is really not relevant to the matters now debated before this Appeal Panel.
54 The student’s document was provided to the Tribunal under cover an e-mail 21 August 2009. Relevantly, the Appellant stated:
“… I attach to this e-mail copies of correspondence between myself and a certain Ms (X) from late March/early April 2007.
As the Tribunal knows this correspondence (which includes the report prepared by Ms (X) goes to the heart of the appeal under ADT file no ADTAP 089076.”
55 The Appellant submitted that the report was unsolicited. The first document in the documentation presented to the Tribunal as Exhibit 4 is an e-mail from the student to the Appellant at his e-mail address, 21 March 2007. How it was that the student knew the e-mail address of the Appellant was not explained. In this e-mail to the Appellant the student identified herself, stated that she was from the University of NSW, and stated:
“I sat in the hearing today at the ADT. If it’s no trouble could you please clarify a few points for me regarding the case.
I understand it is to do with the FOI act, but was the main issue, on the 21/3/07, in regards to the advance deposit? Because there was mention of jurisdictional issues??
From my interpretation, your main argument was that the UNSW said you had to pay a deposit before you could access certain documents, you refused and sought internal review and claimed that UNSW refused to deal with your application. UNSW claims they did not refuse … from then on it was all about the advance deposit. The main issues were both of fact (evidence) and of law (FOI Act)?
As I mentioned I have to write a report, but the report is not supposed to describe the facts in detail, just briefly … it’s more to do with the ADT in general.
Thank you in advance and good luck with the case!”
56 The appellant replied by e-mail on the same day, relevantly as follows:
“About the matters before the Tribunal today.
These are both complex matters, with long histories. However, as I know only too well (as a former Associate Professor of UNSW) what you need to do for your report is to “distill out the essence”. This is as follows:
1.The University has submitted in both ADT 063197 and 063262 that the Tribunal has no jurisdiction to hear these matters, on the basis that the internal review determinations made by the University were ‘purported determinations’ and therefore not reviewable by the Tribunal. This submission by the University goes to the heart of the administrative law,. I am sure you will see the error of law made by the University in asserting this. (If not, let me know.)
2.The second issue is relates to the University’s request for ‘advance deposits’, and their subsequent refusal to ‘continue to deal with’ my FOI applications on the basis that I declined to pay those deposits. The key issue here is how the power conferred by the FOI Act under sections 21 and 22 is to be exercised. How discretion is to be exercised – or otherwise put, what the obligations are on an administrator in the exercise of a discretion conferred under statute – is also a fundamental issue (perhaps the most fundamental issue) in Admin Law.
I have attached relevant submissions and decisions of the ADT.
As I said to you in the Tribunal today, I am more than happy to provide you with this information, on one condition – that you provide me with a copy of your report. If you are not prepared to do so, please delete this email.
I am also happy for you to provide copies of this information to your colleagues at UNSW who are also studying Admin Law on the same basis.
Best of luck. Let me know if you need more info.”
57 The student replied by e-mail of the same date relevantly as follows:-
“Thank you very much for the information provided!
I will be more than happy to send to you my final report which is due in a couple of weeks”.
58 The Appellant responded by e-mail 22 March 2007, as follows:
“The attached should also be of assistance. It is the transcript of a hearing into this matter from 20 June 2006.
The University solicitor may be able to tell you why he decided not to put this transcript, which is clearly key to understanding the history of the matter under 063197 before the Tribunal.
Interesting also that Mrs Higgins, who is normally very good, forgot that this hearing had taken place at all.
Hence my ‘protests’ at the end that the University had misrepresented the history of the matter and my conduct.
Note also that the decision of the Appeal Panel of the Tribunal –[2007] NSWADTAP 4, a copy which is attached – related to the matter under 069018, which, as you will see, features prominently in the transcript.”
59 The student responded by e-mail 28 March 2007, as follows:
“I just wanted to ask a quick question … Is Miss Higgins legally trained? The reason I am asking is that is because some members of the ADT (as I was told) do not have a legal background …
If you are wondering what relevance this has in regard to my report, it is because we are asked to consider how appropriate the role of the tribunal is, so I will be giving a critical analysis of my own observations …”
There was no evidence of any reply to this enquiry.
60 The student supplied her report to the Appellant under cover of her e-mail 3 April 2007, as follows:
“Here is my Tribunal report. What I had to do is “consider any questions that arose as to the appropriate role of the tribunal” based on my observations ….. the word limit was 700 so it wasn’t a big report …”
The report was attached.
61 As appears that on 25/09/08, at [T31] the Appellant sought to read out into the transcript some paragraphs of the student’s report. We have set out above at [45] the transcript of the hearing before Higgins JM commencing at p.29 where the Judicial Member asks: “What I want you to do is point me to examples where I have shut down applicants”, up to where the Appellant says: “No, no, it’s not a matter for you to determine.
62 The student in her report sought to compare an appeal panel hearing before a Full Bench of the Tribunal with a directions hearing before a single Judicial Member. The three paragraphs which the Appellant attempted to read on to the transcript were as follows:
“Miss Higgins presided over the McQuirk hearing. The member appropriately dispensed her role relatively well in some areas, such as clearing up issues and reviewing evidence. She also took on a didactic role by suggesting possible alternatives to resolving the dispute via quicker means and advising the client on how to avoid further conflicts.
As the hearing progressed, her neutral stance shifted towards being somewhat bias. Time, being an obvious constraint, could have been a factor for this shift in attitude, as the member seemed to rush the process. It seems as though she had made up her mind, leaning towards the respondent. Bias was evidence in her dismissive attitude towards the applicant in some respects. At one stage, the applicant pointed out the resource imbalance between himself and the respondents. The member, quite frustrated, seemed to dismiss such issues and did not acknowledge it. The Applicant responded, and rightly so, by saying he has a right to be heard and wanted to get to the truth. In contrast, in (the other matter), the members were quite patient with the applicant, possibly empathising with his lack of knowledge of the law.
We hence see the prominence given to the issue of efficiency which transcends into actions, attitudes and decisions of members. Due process should not be sacrificed for efficiency. There must be a balance between these two objectives”.
63 A comparison with the transcript set out above at [45] with the three paragraphs quoted above makes it plain that the Appellant sought to read on to the transcript those portions of the student’s report.
64 The Appellant also told us (see above at [48]) that at one point during the hearing before Higgins JM he attempted to hand the student’s report to the recorder/monitor (ie the person in charge of the transcript recording). There is no note in the transcript to that effect; but why the Appellant would seek to hand a copy of the report to the monitor is not immediately apparent to us. We have commented about this above. The Tribunal does not have a court officer and it is often the case that the recorder/monitor kindly offers his/her services as a conduit when parties seek to tender a document. However, that is only the case where leave or permission has been granted by the Presiding Judicial Member to the party seeking to tender the document. No such leave was granted in this case; no such leave was sought. In short, what the Appellant sought to do was, in the absence of leave, read the three paragraphs on to the transcript, thereby apparently asserting (incorrectly) that the content of the report was evidence. It was at that point of time the Judicial Member requested the recording equipment be switched off (T.25/09/08, p.30). It is plain that the Appellant thought the report was evidence (see line 29, p.30). It clearly was not received in evidence; yet the Appellant sought to continue on with his reading on to the record the observations of the student ( p.31) and at p.32 this exchange took place:
Higgins: Mr McGuirk, Mr McGuirk, I understand what it is. It is not material that, with respect, is relevant or admissible in these proceedings. This is a matter for me to determine. It is not a matter for your students to determine or your fellow students to determine.
Applicant: No, no. It’s not a matter for you to determine”.
65 Clearly, in our view, the learned Judicial Member was correct. The report of the student was no more and no less than a report provided by her as part of her university assignments; it was a personal report of her personal observations; and was not appropriate to be regarded as evidence of bias or evidence that the Judicial Member had “shut down applicants”. (p.29).
Continuation of 25 September 2008 Hearing
66 At (p.32) Higgins JM observed that is was then 3-30pm and this exchange took place:
“Applicant: No. I said I wasn’t going to put in any written submissions … because, Mrs Higgins, it just takes too long. I have got a life to get on with …
Higgins: Now, Mr McGuirk, it is now 3.30 …
Applicant: I’ve got a life to get on with, I’ve got a life to get on with.
Higgins: It’s 3-30; can you finish your submissions in the next 15 minutes?
Applicant: I’ll just summarise where we’re at.
Higgins: Can you finish your submissions in the next 15 minutes?
Applicant: I’m not sure.
Higgins: I beg your pardon?
Applicant: I’m not sure.
Higgins: I’ll give you 15 minutes.
Applicant: Don’t – in respect of my application about bias you want to shut me down. That’s ok. Fine I mean. It’s quite normal.
Higgins: Keep going, Mr McGuirk, you have 15 minutes to keep going”.
67 The Appellant relied on this as an attempt to shut him down, thus yet another ground for the Judicial Member to recuse herself. Quite frankly, and looking at the whole of this directions hearing, the transcript is then at p.32, the recusal application could easily have been dealt with by the Appellant in far less time than he took, if he had simply stuck to the presentation of material that might explain or support the application.
68 The transcript from p.32ff then deals with lengthy oral submissions made by the Appellant. He submitted that the University and himself “must be accorded equal treatment. It’s as simple as that. It’s called the rule of law”. He referred to the fact that is first FOI application was in 2003, that he put in a couple in 2004; that he had “a right to expect and I demand … to be accorded equal treatment. It is not a question of this Tribunal’s discretion, (or) anybody’s discretion to give better treatment to Mr Singleton because he wears a fancy tie or because he is at the bar …’; (at p.33) that Mr Singleton and the University “are under common law obligations, breach of which can (sound in) damages, to comply or to obey or be model litigants … I come here, I expect to be treated with respect, I expect to be given equal treatment … if you look at the history of decision making of this Tribunal, any notion that judicial members are independent, impartial, with perhaps the exception of two people who I have encountered in this Tribunal, two and two alone … it’s nonsense and I happen to know a lot about the President and what the President’s been saying about me …”. He then asserted that the Judicial Member was “an officer of the Attorney General’s Department. If you go up the line you report to Kevin O’Connor (the President of this Tribunal) and you report, subsequently to Laurie Glanfield” (head of the Attorney General’s Department) … (and he alleged that Mr Glanfield, and Mr Knight (the NSW Crown Solicitor) had “both acted highly inappropriately; I also know they have been trying to shut me down in a ferocious manner …; (at p.34) the Appellant made personal allegations against Mr Singleton of counsel to the effect that he’s been seeking costs … and asserted that the obligation of the Judicial Member was that where there’s a whiff of corruption is to open (the) lid and “not to find excuses for covering up corruption” … “but what this Tribunal said – it is necessary to cover up corruption for the proper administration of this Government (by the way the Judicial Member) fundamentally misconstrued the clear words of the (FOI) Act … and you have consistently taken a pro-agency stance notwithstanding the clear words of the statute … (and) you have consistently failed in your duty; as a result corruption has proliferated; you’ve been paid for it but I ask that you either pack up stumps or you do your job and treat me with respect and I will treat you with respect … but … it’s a two way street, and if and when you do not bring the University to heel for its misconduct I will (be) increasing ferocious because Mr Singleton sits here in his fancy suit earning $2,000.00 a day and into corruption this State. I find that really disgusting; I can use no other words for it, disgusting. …”. At p.35 he adverted to his sacking from the Respondent University “for reporting misconduct and the Crown Solicitor defended that because one of the people was a friend of Bob Carr, that is the truth. You are obliged to establish that proof. Mr Singleton, under cross-examination can give us a lot of information he knows what (a nominated person) did – he knows what (the nominated person) did serious criminal conduct and Mr Singleton has been supporting that. That is corruption. I don’t care what Mr Singleton does with the words and fancy stuff, he cannot support corruption…”. He went on p.36 “ … Mr Singleton’s fraud vitiates his role to sit at the bar; Ms Fleming’s cover-up of corruption vitiates her role to be – (her) right to be a solicitor of the Supreme Court of New South Wales. If, Mrs Higgins, if what I am saying is untrue, then the documents will show that it is untrue. If, what I am saying is true then let’s get the stench out into the public air; let’s get a bit of disinfectant into it. But, what you have been doing, rather than doing your job and exposing corruption, you’ve been playing with words, hiding behind the veils of clauses and sections and misinterpreting them … (by trying) to shut me down; not actually doing your job … if hiding the truth is necessary for the proper administration of the Government of this state then we should migrate to Iraq, maybe North Korea … Mrs Higgins, if you are prepared, and you don’t have to say it out loud, if you are prepared to comply with your obligations at law, fulfil your statutory obligations to stop this in public office, then we can get on. But I have been disgusted at this Tribunal over the last four years, absolutely disgusted. The lack of courage, decency and honesty really leaves me cold …”. He concluded this submission “but certainly in regard to the FOI Division of this Tribunal it’s the cover-up of corruption division as far as I am concerned and it has been since its inception. I ask you to recuse yourself”.
133 It was submitted that Higgins JM has never made any direction, or taken any “measure”, under s.58. The Appellant did not point to any incident of “improper conduct”, nor any incident of “failure to exercise in good faith”, that would have encouraged the Tribunal, or the particular Judicial Member, to have taken a discretionary “measure” to bring the particular incident to the attention of the responsible Minister. It is important to recognise that s.58 creates a discretion. Thus, whatever incident or activity may be asserted to have constituted a “failure to exercise in good faith a function”, it would also be necessary to demonstrate that in the exercise of its discretion the Tribunal should have brought the matter to the attention of the responsible Minister. And, in any event, even if there was such an incident or activity, we are unable to see how a failure to make a reference under s.58 would itself constitute actual, apprehended or cultural/systemic bias. The argument relating to s.58 in respect of bias must fail.
ADT Act s.73(5)(b)
134 The Appellant asserted (Submissions [102]) that the “use by a Tribunal Member of powers in a manner which favours the agency over the Applicant, and/or the failure of a Tribunal member to comply with his or her statutory or common law obligations such that the position of the agency is favoured, constitutes bias”; and he relied in particular on what he asserted was the failure of Higgins JM to comply with s.73(5)(b). In his Submissions, at [117], the Appellant referred to FOI Act s.5(3) as specifying the Objects of that Act. Objects, however, are not set out first in sub-section (3), but rather in the whole of the s.5. This section is in the following terms:
“[5] Objects
(1) The objects of this Act are to extend, as far as possible, the rights of the public:
a) to obtain access to information held by the Government, and
b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.
(2) The means by which it is intended that these objects are to be achieved are:
a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the government in its dealings with members of the public) is made available to the public; and
b) by conferring on each member of the public a clearly enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the government; and
c) by enabling each member of the public to apply for the amendment of such of the government records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.
3. It is the intention of Parliament:
a) that this Act shall be interpreted and applied so as to further the objects of this Act; and
b) that the discretions conferred by this Act shall be exercised, as far as possible to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.
(4) Nothing in this Act is intended to prevent or discourage the publication of information, giving of access to the documents or the amendment of records as permitted or acquired by or under any other Act or law.”
135 So, it is not sufficient to simply call in aid s.5 (3) and assert that the Judicial Member consistently failed “to give effect to these objects in managing the matters to which I have been a party” (Submissions at [118]) ; rather there is a need to look at the relevant following sections of the FOI Act to determine whether the Judicial Member in fact applied to the FOI law as specified in the relevant subsequent sections, consistently with the objects and otherwise properly.
136 We repeat that it is not the job of this Appeal Panel to review the decisions of Higgins JM to determine whether or not they may or may not have been correct – those decisions are not under appeal and it would be quite improper for us unilaterally and privately to attempt some kind of analysis which Appellant himself has not sought specifically to demonstrate either by way of appeal against these decisions or analysis in his submissions to us.
137 The ADT Act s.73 deals with the “procedure of the Tribunal”. It is important to recognise that the provisions of this section specify only the procedural basis on which the Tribunal goes about applying relevant law, in this case, the FOI Act.
138 The sub –section on which the Appellant seeks to focus is s.73(5)(b) which enjoins the Tribunal:
“to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings …”.
139 In his submissions the Appellant does not really expand upon this argument, but he did so in detail by way of oral submissions, particularly on 1 February 2010.
140 The provisions of FOI Act s.5 have been referred to on numerous occasions in this Tribunal with various matter not involving the Appellant and, in various matters involving the Appellant, and in the Supreme Court in University of NSW v. McGuirk [2006] NSWSC 1362 Nicholas J observed (omitting references) at [87]:
“In construing … legislation a construction promoting its purpose or object is to be preferred to a construction that would not promote that purpose or object .. this is the approach required by the Interpretation Act 1987, s.33. Context is an important consideration. Ultimately, in each case, statutory construction is text-based activity”.
His Honour, like Members of the Tribunal, approached both Acts within the spirit of the Objects of the FOI Act. However, it is plain from His Honour’s Judgment that the determination of issues before the Tribunal and the courts does not depend solely on the Objects or the intention of the Parliament, but rather on the various sections of the relevant Acts tempered with a generosity of spirit bearing in mind their particular objects. So, in the case before His Honour he expressed the opinion at [102] that ADT Act s.63 “provides the Tribunal with the discretion to order access to be given documents which are exempt documents under the FOI Act if it decided that to do so is the correct and preferable decision with regard to the material then before it”. There is no need for us to further analyse this decision, or, indeed any other decision, simply because each Section of each Act calls for interpretation on its own terms in the context of the legislation.
141 The Appellant appeared to seize upon the words “is to ensure” as imposing upon the Tribunal a statutory obligation that is mandatory, the breach of which would demonstrate bias. The Appellant made some general submissions at (01/02/10 at T52-[53) stating that it was his “major beef with the Tribunal … that s.73(5)(b) has been consistently ignored by the Tribunal over the last 10 years”. He mentioned it again at p.57 (but without expanding upon it) and then again at p.70 where he sought to “remind the Tribunal of its obligations under s.73(5)(b)” in relation to his complaint about the observations of Higgins JM at paragraph [22] of her Judgment; then again at p.71 to the effect that the section “applies to this Appeal Panel”; similarly at p.76; and later at p.81, but without reference to the sub-section, asserted that it was “actually an obligation on the members of the Tribunal to get the law right”; at p.82 he relied on s.73(5)(b) as applying to the Appeal Panel; and then expanded upon all this at p.84ff where he submitted that “this Tribunal is under an obligation to actually make sure the facts are put before it” and that there was a “fundamental difference” between a court and the Tribunal because the extent of a function of the Tribunal was “limited inquisitorial” such that it was “up to the Tribunal to give proper directions to the parties .. (so that) if the University has information which is material to the decision being made by the Tribunal the University is under an obligation to put it before the Tribunal”, and that in one case where there was apparently an assertion by the University that a particular document was a draft report the Tribunal had an obligation to check to see whether it was in fact a draft report and that “had the Tribunal actually compared the two reports as to what had happened – basically fraud – the Tribunal has an obligation to make sure (that it gives) proper directions to the party resisting the application to make sure it can (come to) the correct and preferable decision”. He seemed to be of the view (at p.88) that Higgins JM was in fact conducting an “investigation” rather than a “hearing”, speaking of “…the way she conducted that investigation or conducted the hearing in relation to it …”.
142 On the final day of the appeal, 11 June 2010 the Appellant made further lengthy submissions at T25-54. Relating to s.73(5)(b) at p.37ff, he asserted that “the Tribunal has a limited inquisitorial role … but it is not the role of the Tribunal to get out there and start shuffling through files and to do this and to do that; not at all … my position is the role of the Tribunal is to give directions that the parties put before it the relevant material, and if they fail to do that then … they should be reported to the Supreme Court for contempt. That’s contempt … the effect of s.73(5)(b) is to place an obligation, a statutory duty, on the Tribunal to say … these are the matters in dispute … what are the relevant materials?” He submitted that what should happen at the various FOI planning meetings is that there should be some “negotiation, (some) discussion (of) what we are really on about … and the effect of s.73(5)(b) is not that you get out there and raid filing cabinets and issue subpoenas and search warrants. You say to the University … please put the stuff before us … and if there is any reluctance or hesitance then, in fact, contempt applies (and) you can then report (it) to the Supreme Court”.
143 All that having been said, however, it is not the job of this Appeal Panel to make a determination on the interpretation of s.73(5)(b). That is not the issue before us. It seems to us that any bias argument relating to s.73(5)(b) is first, unsupported and secondly, would require a detailed analysis of the transcripts of the various hearings before Higgins JM (and perhaps other Judicial Members as well) bearing in mind the cultural/systemic bias submission. and then, somehow, a determination on whether the Judicial Member(s) should have acted in a different fashion in compliance with s.73(5)(b). That the Appellant has not sought to do and it is not appropriate for this Panel unilaterally and privately to attempt some such exercise.
144 For completeness, we again refer to the transcript of the hearing before Higgins JM on 25 September 2008, at p.25 where the Appellant submitted to Higgins JM that she had “consistently failed to ensure that all relevant materials (are) disclosed to the Tribunal so as to enable it to determine all the relevant facts in proceedings”. He asserted that she had “breached” (her) statutory obligations; that is misfeasance in public office” and, at p.28 the Appellant noted that he had asked for a decision to be re-opened because it was “manifestly incorrect” and that Higgins JM “did not under s.73(5)(b) fulfil your statutory responsibility”. We observe that there is nothing in that exchange, or elsewhere at the hearing 25 September 2008, which would demonstrate bias or other inappropriate behaviour in relation to the application of s.73(5)(b).
Law Relating to Bias
145 There is really no need for this Appeal Panel to review or comment about the law relating to bias at any length. The leading cases include Ebner; Livesey v. NSW Bar Association (1983) 151CLR 258; Re: Refugee Tribunal; ex parte H [2001] HCA28, at [27]-[29].
146 The Appellant’s Appeal asserts actual bias and/or apprehended bias. As we have pointed out above, as his arguments developed it appeared that his primary argument asserted some form of cultural/systemic bias. He did not initially put this forward as yet another type of bias but at [T.11/06/10 at 33] submitted “that the current laws and principles on bias do not cope with systemic bias”. He also made it clear in his oral submissions that he was not asserting “conscious conduct on behalf of Ms Higgins” (T3, 1 February 2010).
includes the proposition:
“[18] …(it is) impossible to lay down an inflexible rule; each case must be determined by reference to its particular circumstances … a fair-minded observer might entertain a reasonable apprehension of bias by reason of pre-judgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case, or about the credit of a witness whose evidence is of significance on such a question of fact …”.
148 Reference was also, and importantly, made to the High Court decision in Ebner. The issue of bias arose because the Judge who heard and determined the proceedings at first instance held a shareholding in a listed public company, directly or as a beneficiary in a trust. The details are not directly relevant to the matter now before us but again, it is important to note that the High Court dealt their decision on relevant and probative evidence establishing the material facts.
149 Their Honours in the plurality judgment made, among others, the following important observations:
“[3] Fundamental to the common law system of adversary trial is that it is conducted by an independent and impartial Tribunal … it is fundamental to the Australian judicial system.
[4] The principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision making and decision maker. Most often it now finds its reflection and application in the body of learning that has developed about procedural fairness. 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 … (the Court made it plain that the principle applied to) “administrative decision makers” who do not “enjoy the degree of independence and security of tenure which judges have.”
[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of the 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 …, 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.
[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 is prohibited less the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. In deciding whether a judicial officer … might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge … will in fact approach the matter. The question is one of possibility (real and not remote), not probability.
[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 for what it is said might lead a judge … 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 a judge … has an “interest” in litigation, or an interest in a party to it, will be of no assistance unless the nature of the interest, and the asserted connection with the possibility of departure of impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
150 The judgment went on to examine the particular facts and observed, having regard to submissions that were made to it relating to certain dictum about pecuniary interest:
“[41] It is not sufficient for the appellants to demonstrate the existence of such a rule. It is necessary to show that it covers the facts of the present cases. One of the difficulties about the rule is that, in its possible application to relatively common situations, its meaning is unclear. What looks like a bright-line rule draws a line which is far from bright … “
Clearly, what the Court is saying is that it is not sufficient merely to point to a principle in such a case and what is required are the clear facts that are said to be prohibited by the principle. One of the problems with his Appeal is that the Appellant before us has failed to prove clearly facts that would support his assertions.
151 Another case relied upon by the Appellant was Refugee Review Tribunal; Ex parte H [2001] HCA28; (2001) 179ALR 425; (2001) 75ALJR 982. This arose out of a decision of that Tribunal confirming a decision of the delegate not to grant protection visas to a husband and wife who were citizens of Sri Lanka. Again, it is important to observe that the Court specifically sought to identify ( at [6]) “the precise issues upon which the Tribunal’s decision ultimately turned …” and said that to do that it was “necessary to outline the basis upon which the prosecutors sought protection visas”. In other words, the decision depended upon its particular facts and application to them of principles. The High Court set out, the transcript of, the exchanges between the Tribunal and the prosecutors, and then made the following observations:
“[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the Tribunal, proceedings are held in private.
[28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
[29] Though the test in administrative proceedings, as in curial proceedings is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the later are inquisitorial in nature and the parties are not represented.
152 We have earlier cited part of the often quoted observations of Mason J. in Re: Renaud; ex parte CJL (1986) 60ALJR 528 at 531-2, 161 CLR 342 at 352 where his Honour observed:
“It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as R v. Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258-263 and Livesey v. New South Wales Bar Association (1983) 151 CLR 288 at 293-294 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground for disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias, by reason of prejudgment and this must be ‘firmly established’ … Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”
See also Bakarich v. Commonwealth Bank of Australia [2010] NSWCA 43 at, in particular, [12-23].
153 There are numerous other cases on the principle of apprehended bias. However, there is no need for this Appeal Panel to refer to those cases, because the principles are adequately set out in the three above quotations. Those were the principles that Higgins JM applied in her decision; and those are the principles that the Appeal Panel is applying in this decision.
154 We have however, earlier in these reasons, given to a reference to British Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414. There are two other decisions which conveniently deal with the law, namely a decision of Barrett J in ASIC v. Segalla [2001] NSWSC 570 (to which the Appellant made reference) and the Court of Appeal in Law Society of NSW v. Doherty [2010] NSWCA 173. In ASIC v. Segalla Barrett J applied Ebner and Livesey and disqualified himself because he had made observations about the conduct of one of the parties to those proceedings, finding that the defendant had “demonstrated distain for the orders of the court and a serious lack of probity” and had “obviously preferred deliberate defiance of the (court) orders” and had “previously acted in a way that shows that the probity (of the defendant) is not to be relied on”. He concluded, consistent with Livesey, that “[the] principle is that a Judge should not sit to hear a case in all the circumstances the parties or the public might entertain a reasonable apprehension that the Judge might not bring an impartial mind to the resolution of the question involved in it” applied to him on the factual circumstances, and observed that in Ebner the High Court observed that “the question is one of possibility (real and not remote), not probability”… that the parties or the public might perceive that I may have prejudged (the defendant’s) credit.”
155 Barrett J adopted the views of Olsson J in Southern Equity Corporation Limited v. Bond [2000] SASC 450 at [46]-[50] where Olsson J observed that there was “an inherent problem” where it was necessary “to investigate and arrive at positive conclusions concerning the past and likely future conduct of the party against whom relief is sought … (and that) such an exercise may well involve issues of credibility. It almost inevitably requires the making of specific findings of fact on the evidence available … and that may, quite reasonably and naturally, ingender an apprehension of pre-judgment …”.
156 There is no suggestion before us, at least supported by any probative evidence, that Higgins JM had pre-judged any issue to e agitated by the Appellant, neither is there any suggestion that Higgins JM had found against the Appellant on an issue of his credibility.
is a recent example of the application of the law on applications for recusal. Tobias JA was asked to excuse himself from further involvement in the appeal because of certain expressions of opinion/conclusions that he had allegedly made during the course of argument and “not tentatively expressed”. Again, His Honour referred to Ebner and Livesey and a number of other decisions, noted that there was a fair amount of discussion between the Bar and the Bench during the course of an appeal, and made these observations:
“[26] However, the relevant test is not one that involves any judgment of mine as to whether I could or would not bring an impartial mind to the resolution of the issues on the appeal. Rather, it is whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to that resolution.
[27] Such an observer, in my view, would be taken to have some knowledge and understanding of the way the Court of Appeal works and, in particular, of the fact that the members constituting the relevant Bench would have read and absorbed not only the judgment under appeal but also the written submissions of the parties with respect to it. That lay member would also appreciate that in carrying out that exercise, the relevant judge or judges may well have formed a tentative and, sometimes, not so tentative but never final, views, as to the correctness of otherwise of the judgment under appeal and/or the submissions made by the parties seeking to uphold or challenge it.
[28] The lay observer of an appellant court’s processes would also appreciate the purpose of the Socratic dialogue between the Bench and the Bar which is so essential to exposing the real issues for determination and therefore enabling the parties to deal with those particular aspects of the judgment under appeal and/or the written submissions which might be troubling one or more of the judges comprising that court. That is what happened in the present case.
[29] In the foregoing circumstances, I do not consider that the fair minded lay observer might reasonably apprehended that I might not bring an impartial mind to the resolution of the issues on the present appeal. It is for the foregoing reasons that I have declined to recuse myself from the further hearing of the appeal”.
158 Applying all of those principles to the issues and material now before us, we are unable to see any situation of actual bias or any evidence of apprehended bias in particular, any situation of some cultural of or systemic bias within the Tribunal, that would operate against the Appellant.
159 Finally, we have gone to some trouble, perhaps more than is usual, to canvass, as best we can, all the various matters relied on by the Appellant, and in perhaps too much detail, but having regard to the detailed and lengthy submissions of the Appellant, in our opinion it was appropriate to do so. Notwithstanding the lengths to which we have gone to, we are of the opinion that the recusal application before Higgins JM had no merit, that her decision 11 November 2008 was correct and not tainted with any wrong appreciation of relevant facts or law. The appeal from her decision is of no merit.
160 Leave to appeal was not opposed and is granted. The Appeal should be dismissed.
161 Most of the issues the Appellant has agitated should more properly have been ventilated through the proper and usual appeal processes in relation to previous decisions. Opinions that he has expressed relating to various individuals and, in particular, counsel for the Respondent and his instructing solicitor, are not supported by the evidence; indeed, they are improperly made on such evidence as has been placed before us. Issues that he has sought to agitate relating to a number of other matters are more appropriate to be put before the government and/or politicians.
162 The University has made an application that the Appellant pay its costs in the event the appeal is dismissed. The Appellant consistently argued that such applications for costs by the University against him are part of the conspiracy to shut him out from rooting out corruption. Orders for costs are made in this Tribunal consistently with the ADT Act s.88. Any order for costs would require, we feel, further submissions.
163 We will set out a timetable for any costs application in the under-mentioned orders. The attention of the parties is respectfully directed to Torchia v. Swanton [2010] NSWADT 142, especially at [48-54], and Practice Note 22.
Orders
1. Leavel to appeal is granted.
2. The appeal is dismissed.
3. The stay granted by Needham DP on 18 March 2009 is discharged.
4. No order for costs; save that should either party file and serve an Application for costs coupled with supporting submissions within 21 days, then the other party is to file and serve its reply and supporting submissions within a further 21 days, and the Appeal Panel will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act 1975, s.76, unless persuaded that there should be oral submissions.
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