McGuirk v University of New South Wales

[2008] NSWADT 302

CITATION:	McGuirk v University of New South Wales [2008] NSWADT 302
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT University of New South Wales
FILE NUMBER:	083002; 083009; 083019; 073277
HEARING DATES:	25 September 2008
SUBMISSIONS CLOSED:	25 September 2008
DATE OF DECISION:	11 November 2008
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Bias
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 McGuirk v Attorney General’s Department [2007] NSWADT 138 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Re JRL; ex parte CJL (1986) 161 CLR 342
REPRESENTATION:	APPLICANT In person RESPONDENT Mr Singleton, barrister
ORDERS:	Mr McGuirk’s application that I excuse myself from hearing and determining these matters is dismissed.

1 On 25 September 2008, when application file No 073277 was listed for hearing and application file Nos 083002, 083009 and 083019 were listed for directions, Mr McGuirk made an oral application that I excuse myself on the grounds of actual and apprehended bias.

2 Each application listed that day was an application by Mr McGuirk seeking review of a decision of the respondent University of New South Wales (‘the University’) pursuant to the Freedom of Information Act 1989 (‘the FOI Act’). These decisions were determinations of the University in regard to FOI requests that Mr McGuirk had made under the FOI Act.

3 Notwithstanding Mr McGuirk’s insistence that his oral application applied equally to the applications listed for directions, I first dealt with these applications. Orders were made in regard to the further progress of these applications. These orders were made by consent and each application was set down for hearing on 19 December 2008.

4 I then heard Mr McGuirk in regard to his application that I excuse myself. Mr McGuirk made lengthy oral submissions and also handed up several documents, most of which were decisions I had made in regard to other applications he had made seeking review of other FOI decisions of the University and the Attorney General’s Department.

5 Mr McGuirk’s submissions went well beyond that which was relevant to the application he had made. They were in the main a repetition of Mr McGuirk’s wider allegations and grievances over which the Tribunal has no jurisdiction and of which Mr McGuirk has been informed on many occasions.

6 To the extent the submissions were relevant, Mr McGuirk pointed to the following as being grounds which demonstrated that I was biased:

(a) my refusal, on 8 May 2008, in application file No 073277 to accept Mr McGuirk’s oral application to have the oral application of the University, made on 23 January 2008 ‘struck out for an abuse of process’: T24-1. The University’s oral application was an application for an order that Mr McGuirk’s application for review be dismissed as it was an abuse of process;

(b) my consistent failure to insure that all relevant materials are disclosed to the Tribunal pursuant to section 73(5)(b) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’): T25-35;

(c) my failure to report conduct under section 58 of the FOI Act;

(d) my ‘selective’ use of the discretion under section 88 of the ADT Act to ‘shut down applicants while condoning the improper conduct that people such as Mr Singleton and Ms Fleming’: T28-49;

(e) my failure to accord him equal treatment to that given to counsel representing the University, Mr P Singleton: T32-43.

7 Mr Singleton, counsel for the University, also made brief oral submission in regard to Mr McGuirk’s application that I excuse myself. He submitted that Mr McGuirk had failed to establish any basis for me to disqualify myself.

The relevant legal principles

8 It is well established that judicial officers are at all times bound by the rules of procedural fairness, which comprise the hearing rule and the bias rule. Judicial officers, includes judicial members of the Tribunal: see section 73(2) of the ADT Act.

9 Under the bias rule, a decision maker, is required to disqualify him or herself from hearing a matter if he or she is actually biased or a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] and [8]. At the same time, it is also accepted that judicial officers must not disqualify themselves too readily. Any pre-judgement on the part of the decision maker must be ‘firmly established’ and it is not enough for a fair minded observer to reasonably apprehend that the decision maker will make a decision adversely to one party: see Re JRL; ex parte CJL (1986) 161 CLR 342 per Mason J and Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507, at [127].

10 In Re JRL at page 351 Mason J said:

‘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.’

11 In Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 at 133, Drummond J said that:

(a) Actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.

(b) The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation.

(c) Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias. Such bias may be subconscious, provided it is real.

(d) It is not sufficient proof of actual bias to show that the decision-maker has expressed views adverse to the party's position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings. …

12 In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ at [7] said that in deciding whether a judicial officer might not bring an impartial mind to the resolution of the issues before him/her does not require a prediction about how the judicial officer will in fact approach the issues. It is an objective test ‘which admits the possibility of human frailty’ and at [8] their Honours held that in determining whether the apprehension of bias principle applied this required a two step approach as follows:

‘… [First] it requires the identification of what it is said might lead a judge or juror to decide a case other than on its legal but 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.’

Consideration

13 In my opinion Mr McGuirk has not pointed to any evidence that shows I have prejudged the issues arising in and from his application that is file No 073277 or any of his other applications that are pending before me. Nor has he been able to point to any evidence which shows that I have acted with such ‘partisanship or hostility’ which demonstrates that my mind is made up.

14 Nor has Mr McGuirk pointed to any evidence that, in my opinion, shows that ‘a fair-minded lay observer might reasonably apprehend’ that I might not bring an impartial mind to the matters that are in issue in the applications he has filed in the Tribunal and which are currently listed before me for directions or determination.

15 My refusal to accept Mr McGuirk’s oral application to have the University’s oral application ‘struck out’ (see paragraph 6(a) above) was a matter of procedure. It was not a matter of substance. The oral application of the University was an application in which the University sought an order that Mr McGuirk’s application that is file No 073277 be dismissed on grounds that it was an abuse of process. This was an interlocutory application and orders were made for the filing and serving of evidence and submissions in regard to that application. When, on 8 May 2008, I refused Mr McGuirk’s oral application for the dismissal of the University’s interlocutory application, this was not a refusal or denial of giving Mr McGuirk an opportunity to be heard on the matters he wished to raise. The matters he sought to raise were in my opinion appropriately addressed in response to the University’s interlocutory application. Further directions were made in regard to the filing and serving of material for the purpose of hearing and determining the interlocutory application. In this regard Mr McGuirk filed and served his written submissions on 5 June and 21 September 2008. These I note address the matters of substance Mr McGuirk had raised when making his oral application for a ‘strike out.’

16 On 25 September 2008, by consent, interlocutory application of the University was set down for hearing on 19 December 2008.

17 Section 73 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) deals with the procedure of the Tribunal generally. Paragraph (5)(b) of that section provides that ‘the Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all the relevant facts in issue in any proceeding.’ Mr McGuirk asserted that in his review application that was file No 063263 (see McGuirk v Attorney General’s Department [2007] NSWADT 138) I had failed to ensure that the agency had placed before me the documents he had requested under the FOI Act. To support this assertion he relied on a subsequent FOI request he had made to the Attorney General’s Department in which he sought access to the same documents. On this occasion, the agency made a determination that resulted in him being granted access to documents, when the agency had previously asserted it had no documents.

18 Once again Mr McGurik’s assertions are of a broad brush nature and also misconceived. A careful examination of the Attorney General’s Department response to his subsequent FOI request shows that this was not strictly speaking a response to a request for the same documents he had requested earlier (see letter dated 5 September 2007 from the Attorney General’s Department to Mr McGuirk). In any event, an alleged failure by a judicial officer to properly exercise a statutory function may give rise to a ground of appeal, but of itself it does not evidence actual or apprehended bias.

19 Section 58 of the Freedom of Information Act 1989 (‘the FOI Act’) enables the Tribunal, when reviewing a decision of an agency pursuant to section 53 of the FOI Act, to bring to the attention of the Minister responsible for the agency specified conduct of an officer of the agency. The specified conduct is where the Tribunal forms the opinion that as a result of the review application, an officer of the agency has failed to exercise in good faith a function conferred or imposed on the officer under the FOI Act.

20 In his review applications Mr McGuirk has often raised this issue, yet he has not pointed to any decision or other evidence which shows that my findings in regard to this issue establishes that I am biased or that there is an apprehension of bias. As mentioned above, the fact that I have not agreed with his assertions in the past does not mean that I have prejudged or will not bring an impartial mind to this issue when and if he raise it in the future.

21 Mr McGuirk was unable to point to any evidence of my alleged ‘selective’ use of my discretion under section 88 of the ADT Act to ‘shut down applicants’. Once again this is a sweeping generalisation of Mr McGuirk.

22 Mr McGuirk has also failed to point to any evidence of my failure to accord him equal treatment to that given to counsel representing the University. In this regard he sought to hand up a document that he has previously described as being a document prepared by his fellow students who had attended, at his invitation, a hearing of an earlier review application he had made. This document Mr McGuirk asserted established that I gave him less time to make his submissions than I had given Mr Singleton, on behalf of the University. I refused to accept this document as it could only be described as a self-serving document of subjective views. In making this comment I do not intend any disrespect to the students who attended the hearing, which was open to all members of the public.

23 As Mr McGuirk well knows, the onus was on him to establish the asserted actual and/or apprehended bias through probative evidence that could be assessed objectively. This he failed to do.

24 Accordingly, for the reasons set out above, Mr McGuirk’s application that I excuse myself from hearing and determining these matters is dismissed.