Michael Quach v ACT Civil and Administrative Tribunal (Discrimination)
[2019] ACAT 98
•12 November 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MICHAEL QUACH v ACT CIVIL AND ADMINISTRATIVE TRIBUNAL (Discrimination) [2019] ACAT 98
DT 10/2019
Catchwords: DISCRIMINATION – complaint against tribunal – application for removal to Supreme Court – whether the tribunal is duty bound to hear the complaint – whether either party bears an onus in establishing a case for the transfer or removal of proceedings – where the underlying proceeding is brought in circumstances where the complainant overtly asserts, and reserves, his rights to appeal against the exercise of that judicial power – apprehension of bias – whether it is impermissible for the tribunal to adjudicate upon the conduct of the tribunal – whether it is appropriate and in the interests of justice for the matter to be removed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 5, 7, 8, 83
Australian Capital Territory (Self Government) Act 1988 s 48A
Discrimination Act 1991 s 20
Human Rights Commission Act 2005 ss 53A, 53E, Div 4.2A
Jurisdiction of Courts (Cross-vesting) Act1987 (NSW) s 5
Supreme Court Act 1933 s 20
Victorian Civil and Administrative Tribunal Act 1998 s 77
Subordinate
Legislation cited: Court Procedure Rules 2006 rr 1440, 1441
Cases cited: Annetts and Another v McCann and Others (1990) 97 ALR 177
Bankinvest AG v Seabrook and Others (1988) 14 NSWLR 711
BHP Billiton Ltd v Schultz (2004) 211 ALR 523
Commonwealth Bank of Australia v Slaveska [2008] VCAT 2072
Coutts v Walls [2019] ACAT 66
Ebner v Official Trustee in Bankruptcy (2001) 176 ALR 644
Kotsis v Kotsis (1970) 122 CLR 69
Livesey v New South Wales Bar Association (1983) 47 ALR 45
Minister of Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421
Raline Industries PL v MJPE Investments PL [2006] VCAT 1607
Re Jarman; Ex parte Cook (No 1) (1997) 143 ALR 129
Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924
Valceski v Valceski [2007] NSWSC 440
Webb v R (1994) 122 ALR 41
List of Texts cited: Robin Creyke, Matthew Groves, John McMillan and Mark Smythe, Control of Government Action (5th ed, LexisNexis Butterworths, 2019)
Mark Aronsen and Matthew Groves, Judicial Review of Administrative Action (5th ed, Lawbook Co, 2013)
Tribunal: Presidential Member E Symons
Date of Orders: 12 November 2019
Date of Reasons for Decision: 12 November 2019AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 10/2019
BETWEEN:
MICHAEL QUACH
Applicant
AND:
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL
Respondent
TRIBUNAL: Presidential Member E Symons
DATE: 12 November 2019
ORDER
The Tribunal orders that:
1. The application from the respondent to remove these proceedings to the Supreme Court is granted.
2. Pursuant to section 83 of the ACT Civil and Administrative Tribunal Act 2008 the discrimination complaint the subject of these proceedings is removed to the ACT Supreme Court.
………………………………..
Presidential Member E Symons
REASONS FOR DECISION
1. In these reasons a reference to the ‘tribunal’ or ‘ACAT’ refers to the ACT Civil and Administrative Tribunal generally and ‘Tribunal’ refers to the member hearing this matter.
Background
2. Michael Quach (applicant or Dr Quach) brings an application in discrimination (discrimination application) against the ACT Civil and Administrative Tribunal (tribunal or respondent). The applicant complained under the Human Rights Commission Act 2005 (HRC Act) that the tribunal engaged in unlawful discrimination contrary to the Discrimination Act 1991 in the hearing and determination on 27 March 2019 of a civil dispute application brought by the applicant in the tribunal, namely Bennelong Medical Pty Ltd v Commonwealth Insurance Ltd (XD 1025 of 2018) (Bennelong).
3. The civil dispute application related to a motor vehicle accident involving the applicant, on behalf of Bennelong Medical Pty Ltd, and an insurer in respect of that accident, Commonwealth Insurance Limited.
4. The tribunal made certain findings of fact in relation to the motor vehicle accident and in relation to the operation and effect on those facts of the Insurance Contracts Act 1984 (Cth) and Fair Trading (Australian Consumer Law) Act 1992.
5. The tribunal gave judgment against the applicant in favour of Commonwealth Insurance Limited and provided short oral reasons in support of that judgment.
6. On 28 March 2019 the applicant filed the discrimination complaint (complaint) with the Human Rights Commission (HRC) in which he identified his protected attribute as “race” or “ethnic origin”; the area of public life in which the alleged conduct occurred as “provision of goods, services or facilities”; the unfavourable treatment to be the tribunal’s decision to permit a party and witness to appear by telephone (a procedural decision) and the tribunal’s findings of fact, identification of the law and the application of the law to the facts (the substantive decision).
7. The relief sought by the applicant in the complaint was identified as “full investigation by the ACT Human Rights Commission” and for the tribunal to “conduct a re-hearing into this matter”.
8. On 3 June 2019 the HRC determined that “proceedings of the ACAT do not fall within any area of public life that is covered by the Discrimination Act 1991 including the area of ‘provision of goods, services or facilities” and closed the complaint.
9. At the applicant’s request the HRC referred the complaint to ACAT on 28 June 2019.
10. On 25 September 2019 the respondent applied to ACAT for the discrimination application to be removed (removal application) to the Supreme Court under section 83(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
11. On 15 October 2019 the Tribunal heard the removal application. Mr Hancock, solicitor from the ACT Government Solicitor, appeared for the respondent and Dr Quach represented himself. At the conclusion of the hearing the Tribunal reserved the decision. This is the Tribunal’s decision.
Summary of Tribunal decision
12. The reasons below explain why the Tribunal has granted the respondent’s application.
13. In summary, the Tribunal found, where the tribunal is the respondent named in the discrimination complaint, if the tribunal was to adjudicate the complaint this could involve an apprehension of bias and the tribunal should act to preclude such an apprehension; there are a number of complex and important questions raised by the complaint which should be appropriately and finally dealt with by the Supreme Court; it is undesirable and unnecessary for the tribunal to adjudicate this particular complaint where there is power in section 83 of the ACAT Act to remove the proceedings to the Supreme Court and in all of the circumstances it is in the interests of justice and appropriate for the matter to be removed.
Power to remove
14. Section 83(2) of the ACAT Act provides:
83. Removal of applications from tribunal to Supreme Court
(1) …
(2) If a party to a matter applies to have the matter removed to the Supreme Court, the tribunal may, if it considers it appropriate, order that the matter be removed to the Supreme Court.
15. Rules 1440 and 1441 of the Court Procedures Rules 2006 (Court Procedure Rules) facilitate this.
16. In the recent tribunal decision of Coutts v Walls (Coutts) Senior Member Orr QC referred to the decision of Justice Bryson of the NSW Supreme Court of Sanderson Motors Pty Ltd v Kirby and the decision of Judge Harbison of VCAT in Commonwealth Bank of Australia v Slaveska and said (citations omitted):
Justice Bryson in Sanderson Motors Pty Ltd v Kirby referred to the need for a sound or good reason why an order for removal ought to be made. Judge Harbison of VCAT has referred to the high level of satisfaction required before a removal order will be made in that jurisdiction, with the onus of proof on the party who applies for it. There is no indication in section 83(2) as to the factors to be considered in relation to such a referral. Factors considered in other tribunal hearings have included:
(a) the nature of the substantive application;
(b) whether there is a matter of public importance, legal or factual complexity involved; and
(c) the formal processes available in the Supreme Court and the costs protection available there.
17. Mr Hancock raised some of these factors, as well as others, in his written submissions in support of the removal application.
The removal application
18. The grounds for removal set out in the application are:
(a) The underlying proceeding is an application for the exercise of power by the tribunal to adjudicate upon, and to sanction, the exercise of judicial power by the tribunal.
(b) The underlying proceeding is brought in circumstances where the complainant overtly asserts, and reserves, his rights to appeal against the exercise of that judicial power.
(c) It is impermissible for the tribunal to adjudicate upon the conduct of the tribunal.
(d) It is improper for the tribunal to so adjudicate as it would involve apprehended bias.
(e) It is undesirable and unnecessary for the tribunal to so adjudicate in circumstances where there is a power to remove the underlying proceeding to the Supreme Court.
(f) The proper disposition of the matter will involve complex questions of law which are appropriately dealt with, and may in fact finally be dealt with by the Supreme Court.
(g) In the circumstances, it is in the interests of justice for the matter to be removed.
19. Dr Quach opposed the removal application. He stated in his written submissions:
1. In response to the Respondent’s Application to remove the matter into the ACT Supreme Court, in my respectful submission, there is no application for the application to remove into the ACT Supreme Court.
2. Pursuant to Section 20(2) of the Supreme Court Act 1933 (ACT)
20 Jurisdiction and powers of Supreme Court
(2) Unless it is required to do so by or under a Commonwealth Act or a law of the Territory, the court is not bound to exercise its powers if it has concurrent jurisdiction with another court or tribunal [ACAT].
The ACT Supreme Court does not hear matters with concurrent jurisdiction with ACAT.
3. Pursuant to the High Court ruling in Annette [sic] v McCann [1990] Mason J at [2], the ACT Civil and Administrative Tribunal Act 2008 (ACT) does not “exclude(d) by plain words of necessary intendment” from hearing matters that involve members of the Tribunal.
Annette [sic] v McCann [1990] Mason J at [2]
“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words or necessary intendment …”
4. In my respectful submission, the common law of Mason J in Annette [sic] v McCann [1990] does not allow the Tribunal to remove any matter on the basis that it involves a Tribunal member.
20. In his written submissions Dr Quach did not address or respond to the respondent’s written submissions in support of the removal application. The Tribunal will refer to his oral submissions later in this decision.
Consideration
21. At the outset, the Tribunal will address the first of Dr Quach’s written submissions (in [19] 1. above). The Tribunal finds that there is no merit in this submission. The respondent filed its application to remove the proceedings to the Supreme Court pursuant to section 83 of the ACAT Act on 27 September 2019. This is the application which was heard by the Tribunal on 15 October 2019.
22. In considering the application to remove, the Tribunal observes that, as stated in the text ‘Judicial Review of Administrative Action’:
Impartiality and the confidence it engenders, are regarded as essential to the successful and proper operations of the public service, the tribunal system and the judiciary.
23. The Tribunal now turns to consider the application to remove.
24. The complaint, which the respondent seeks to have removed to the ACT Supreme Court, raised three issues, (i) a question of law – whether, or to what extent, the Australian Consumer Law applied to the dispute; (ii) the allowance by the tribunal for a witness to give evidence by telephone and which the applicant asserts he was not able to participate in; and (iii) the alleged false testimony of two witness and the tribunal’s acceptance of that alleged false testimony.
25. The Tribunal noted in [7] above that the resolution Dr Quach seeks in his complaint is a full investigation by the HRC into the tribunal’s conduct and that the tribunal conduct a rehearing. The Tribunal will return to this resolution later in the decision.
26. The respondent accepted, as a general principle, that every applicant should be able to pursue their rights in the forum that has jurisdiction and the like principle that a tribunal which has jurisdiction, should exercise that jurisdiction if it has been engaged. The respondent also accepted that the resolution of complaints such as the discrimination complaint, ought to be quick, cheap and efficient and ought to be done according to law.
27. The ACAT Act is the tribunal’s empowering law and it includes section 83 which provides the discretionary power to order the removal of applications from the tribunal to the Supreme Court by consent or if the tribunal considers it appropriate. While discretionary, this power must be exercised so as to serve the interests of justice. In other words, the discretionary power is to be exercised judicially, having regard to legal principle and not at the whim of the decision maker.
28. Mr Hancock submitted that the power to remove is part of an integrated court system for the administration of justice in the Territory with the Supreme Court at the apex having all of the jurisdiction necessary to administer justice in the ACT. The Magistrates Court sits in the mid-tier and the tribunal, exercising its civil dispute jurisdiction, sits on the bottom tier and exercises the residue of the civil claims judicial powers within the integrated court system. Section 83 forms part of the integrated system for the administration of justice and, where appropriate or necessary, a matter can be removed to the Supreme Court. He also submitted that the discrimination jurisdiction, though it is set up such that it is ordinarily dealt with wholly within the tribunal, is something that can pass into the Supreme Court by section 83.
29. Dr Quach, in his oral submissions, variously submitted that:
there’s no substance to it [the respondent’s removal application]. The arguments are simply unfounded based on the principle of law … that being can the tribunal establish jurisdictional fact to determine this matter?
He opined that, once a matter has been lodged in the tribunal the tribunal has a duty to determine it. He submitted that section 20(2) of the Supreme Court Act 1933 (see [19] above) made it very clear that unless that court was bound by some higher legislative power to hear a matter it does not have to and the tribunal should not remove it.
30. The Tribunal will consider the various criteria or factors which the respondent relies on and the respondent’s and the applicant’s submissions in considering the question of removal.
Tribunal jurisdiction
31. Dr Quach exercised his right to have the HRC refer his complaint to the tribunal pursuant to section 53A of the HRC Act. He has, therefore, chosen to commence these proceedings in the tribunal.
32. Coutts also involved an application for removal of the proceedings from the tribunal to the ACT Supreme Court. Senior Member Orr QC found that a factor where a party had chosen to commence proceedings in a tribunal supported the proceedings remaining with the tribunal.
33. However, the Tribunal notes that in Coutts the applicant had sought a monetary outcome and had framed his claim so that it was within the $25,000 limit of the tribunal. The applicant, in the present discrimination matter, is not seeking a monetary outcome; the monetary jurisdiction of the tribunal appears to have played no role in his commencing proceedings in the tribunal. Coutts is not binding on the Tribunal; rather as a single member decision of the tribunal it is an authority for the Tribunal to consider. Further, the Tribunal is satisfied that the circumstances in Coutts are quite dissimilar to the present matter such that the Tribunal should not be bound by that decision.
34. Relevantly, the Tribunal notes that Justice Brereton, of the NSW Supreme Court Equity Division, in Valceski v Valceski (Valceski) rejected the submission that an applicant for transfer has to show good reason for disturbing the plaintiff’s initial choice of venue or court. (see [38] below).
35. The Tribunal also notes in the High Court decision of BHP Billiton Limited v Schulz (Schulz), Justice Gummow said that the determination as to the more appropriate or natural forum for the proceedings should be made “without any specific emphasis in favour of the choice of forum made by the plaintiff”.
36. For the reasons set out above and in [38] below the Tribunal is not satisfied that it should follow Coutts.
37. While the proceedings were commenced in the tribunal because of the statutory provision in section 53A of the HRC Act, the proceedings are subject to the ACAT Act which includes section 83. The Tribunal is not satisfied that any particular significance or weight should be placed on Dr Quach’s complaint being referred to the tribunal.
Onus of Proof
38. Mr Hancock submitted that neither party bears an onus in establishing a case for the transfer or removal of proceedings and referred the Tribunal to the decision in Valceskiwhere Justice Brereton said (omitting citations):
70 I reject the submission, advanced on behalf of Bobby, that the applicant for a transfer bears some onus or has to show some good reason for disturbing the plaintiffs’ initial choice of venue, or that the plaintiff’s choice of court is to be given weight; despite earlier suggestions to that effect [Global Technology Australasia Limited v Bank of Queensland; Bourke v State Bank of New South Wales; Kenda v Johnson,; Re Chapman & Jansen,; Bankinvest AG v Seabrook, it is now established that an applicant for a transfer bears no burden of persuasion or onus of proof BHP v Schultz; Bankinvest AG v Seabrook, and no particular significance attends the plaintiff’s original choice of forum [BHP v Schultz, British American Tobacco v Gordon,] It is only if both courts are equally appropriate that the initial choice will have significance; if one is more appropriate than the other, however so slightly, a transfer to the more appropriate court is mandatory.
39. Valceski has not been overruled. While in Coutts Senior Member Orr QC relied on a decision of Judge Harbison of the Victorian Civil and Administrative Tribunal (VCAT) in Commonwealth Bank of Australia v Slaveska where that tribunal said, in considering the application of section 77 of the Victorian Civil Administrative Tribunal Act 1998 (VCAT Act), that “the onus of proof of the appropriateness of such an order is on the party who applies for it”, the Tribunal has already found above, that it is not bound by the decision in Coutts.
40. In Schultz the High Court considered an application pursuant to the Jurisdiction of Courts (Cross-vesting) Act1987 (NSW) (Cross-vesting Act) seeking the transfer of proceedings from the Dust Diseases Tribunal of New South Wales to the Supreme Court of New South Wales and then to the Supreme Court of South Australia. The criterion for transfer was that it is in the interests of justice that the proceedings be determined in the Supreme Court of South Australia.
40. In the New South Wales Court of Appeal decision of Bankinvest AG v Seabrook, Street CJ said in relation to ‘the interests of justice’ – it calls for what I might describe as a ‘nuts and bolts’ management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.
41. In Schultz, Gummow J referred to section 5(7) of the Cross-vesting Act, noted that an order for transfer may be made not only on application by a party to the proceeding, but by the court, either on its own motion or on the application of the Attorney General of the Commonwealth or a State, and said:
Section 5(7) indicates that it is inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof.
42. For these reasons, the Tribunal is not satisfied that the applicant for the removal to the Supreme Court has to meet an onus of proof in this application.
Is the Tribunal a specialist Tribunal?
43. Mr Hancock submitted that it would ordinarily be inappropriate to remove special matters from a specialist tribunal. He added that while the tribunal wears many special hats it is not a discrimination tribunal such that that speciality should stand in the way of removing this matter to the Supreme Court. He said it was in the interests of justice to remove the entirety of the application to the Supreme Court.
44. The Tribunal agrees with Mr Hancock. It is true that the tribunal wears many special hats, one of which is the discrimination jurisdiction. However, the Tribunal is not satisfied that the tribunal is a discrimination tribunal. The fact that the tribunal exercises this jurisdiction, as well as many other jurisdictions, should not stand in the way of removing this matter to the Supreme Court. The test is whether it is appropriate and in the interest of justice to do so.
Is the tribunal duty bound to hear the complaint?
45. Dr Quach urged the Tribunal to find that the HRC Act clearly provided for discrimination complaints to be referred to the tribunal in Division 4.2A and that the tribunal was duty bound to hear the complaint. He emphasised that:
It [the tribunal] also has the duty to hear it and not impose this on the Supreme Court. … it would be an express shortcoming of the tribunal if it chooses to remove the matter to the Supreme Court.
46. Dr Quach also submitted to the Tribunal that the Supreme Court is not bound to exercise the jurisdiction where there is another forum, in this matter the tribunal. In support of this submission he, firstly, relied on section 20 of the Supreme Court Act. Mr Hancock submitted that the fact that the Supreme Court is not bound to exercise its jurisdiction is not to the point. He correctly stated that that is a matter for the Supreme Court, not for the tribunal.
47. The legislature has given the tribunal the power in section 83 of the ACAT Act to remove a matter from the tribunal to the Supreme Court. The Tribunal finds that section 20 of the Supreme Court Act does not speak in opposition to section 83 of the ACAT Act.
48. Secondly, although it was difficult to follow, it appeared that Dr Quach reiterated his submission in [45] above, that the tribunal retains the power to adjudicate on the discrimination complaint, as that power has not been excluded.
49. Notwithstanding the express removal power in section 83 of the ACAT Act, Dr Quach submitted that the ACT Supreme Court does not hear matters with concurrent jurisdiction with ACAT. He then referred the Tribunal to the High Court decision in Annetts and Another v McCann and Others(Annetts v McCann) and, in particular, what the plurality said in the second paragraph:
It can now be taken as settled that, when a statute confers power on a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.
50. In Annetts v McCann the question was whether the coroner, who was conducting an inquiry into the death of James Arthur Annetts (the deceased), misconceived or exceeded his jurisdiction in refusing to hear submissions from counsel representing the parents of the deceased. The Tribunal was troubled by Dr Quach’s reliance on this case and, in particular, the excerpt from the decision in the preceding paragraph. It was not clear how that decision or the quoted passage offered any assistance to the Tribunal in considering the removal application.
51. Dr Quach’s further submission in his written submissions that:
the common law of Mason J [one of the plurality referred to in [49] above] … does not allow the Tribunal to remove any matter on the basis that it involves a Tribunal member.
provided little further assistance.
52. The Tribunal accepts that the rules of natural justice or procedural fairness are rules about a range of things related to hearings and the procedural rights of a person. Mr Hancock submitted that the rules are primarily engaged where a decision of an administrative character will confer, alter or impair a right or obligation unless those rules are excluded.
53. The question of whether the present matter should be removed to the Supreme Court does not involve the Tribunal destroying, defeating or prejudicing any rights, interests or legitimate expectations. The Tribunal is not conferring, altering or impairing any right, obligation or interest which is the trigger in the quotation (in [49] above) for the rules of natural justice to regulate that power. There is nothing done in the exercise of section 83 of the ACAT Act which would confer, alter or impair any right or obligation. In this hearing Dr Quach was heard. He had the opportunity to make oral and written submissions and the proceedings were recorded. He was afforded procedural fairness.
54. In his oral submissions Dr Quach explained that what he is submitting is that if the Tribunal wants to remove the matter to the Supreme Court because it is dealing with one of its own members’ decisions, then the ACAT Act would say so. The corollary being if the ACAT Act does not ‘say so’ then the Tribunal has no power to remove the matter to the Supreme Court. Dr Quach summarised his position as “there is no statutory basis to remove the matter to the Supreme Court”.
55. The Tribunal finds that section 83 of the ACAT Act is an express statement of the legislature. While the HRC Act provides that complaints can be referred to the tribunal, section 83 of the ACAT Act gives the tribunal the power to remove matters either by consent or where it is appropriate, in matters such as the present matter, that the discrimination jurisdiction is exercised elsewhere. The Tribunal finds, for these reasons, that it is not duty bound to hear this complaint.
The Tribunal should not review its own conduct
56. In this particular matter, the original application required the tribunal to find facts, apply the law to those facts and deliver a decision which is binding on the parties. In doing that and disposing of the civil application, the tribunal was exercising judicial power. The member of the tribunal exercising the judicial power is exercising the power of the tribunal for all of the tribunal. When the tribunal is called upon to hear and determine a discrimination complaint against one of its members, it is wearing the same hat.
57. Mr Hancock posed the question – how can the tribunal, on one day, declare what the law is, find what the law is and then on the next day adjudicate it to a different result. He submitted that this would create an embarrassing situation for the tribunal member deciding the discrimination complaint and ought not be embarked upon.
58. Mr Hancock submitted that:
The primary objection to a court having power to review the conduct of its own members is that when a judicial officer exercises judicial power, they do so not as an individual but a member of the court exercising the power of the court. A secondary objection is that the exercise of the power by a member would “embarrass” them vis-à-vis another member.
In a different context, it was held that for a superior court to review the decision of a judge would involve a court being called upon to show cause to itself as to why it should stand and would involve judges setting aside something they themselves had determined.
59. In Re Jarman; Ex parte Cook (Jarman) Dawson J referred to the observations of Windeyer J in Kotsis v Kotsis (Kotsis) where he said that the meaning of the word ‘court’ has come to us through a long history and observed:
According to the tradition of the common law, a superior court of record is a court sitting in banc for the administration of justice. In the course of time it became settled that, for some purposes, the jurisdiction of a superior court of common law could be exercised by a single judge.
Dawson J then stated:
But the jurisdiction of a superior court of record exercised by a single judge is still the jurisdiction of the court; there are not two courts, one comprising the single judge and one comprising all the judges. Nor does the provision of an appeal from a single judge to a full court alter the situation for an order made on appeal is made in the exercise of a jurisdiction which is different from that of the judge at first instance.
60. The Tribunal agrees with Mr Hancock that if the complaint was considered and dealt with in the tribunal this would create an embarrassing situation for the tribunal deciding the complaint. In his oral and written submissions Dr Quach did not directly respond to this submission. The Tribunal finds, for these reasons, that where the tribunal is named as a respondent, the tribunal should not review its own conduct.
The Tribunal should act to preclude an apprehension of bias
61. This was the strongest argument for the respondent.
62. Mr Hancock submits, and the Tribunal agrees, that it is almost inevitable that at some point, if anything goes against Dr Quach in his complaint against the tribunal and the tribunal has heard the complaint, that the question could arise as to whether the tribunal has done something to protect itself such that it might be seen to not bring an impartial mind to the matter the decision maker is required to decide. In other words, could there be a reasonable apprehension of bias if the tribunal decided the complaint?
63. Kirby J observed in the High Court decision of Minister of Immigration and Multicultural Affairs v Jia (Jia) that a claim of imputed bias, as opposed to a claim of actual bias, included “imputed”, “apparent”, “apprehended”, “suspected”, “notional” or “deemed” bias and said:
Although the two kinds of bias obviously overlap, imputed bias does not require the complainant to establish anything about the subjective motives, attitudes, predilections or purposes of the decision-maker.
It is enough to show that “in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it”.
64. In Ebner v Official Trustee in Bankruptcy (Ebner) the High Court considered the apprehended bias principle in two appeals which were decided in this case. The issue arose due to direct or indirect shareholdings by a judge in a corporation which was a party to litigation or financially interested in its outcome. Gleeson CJ, McHugh, Gummow and Hayne JJ said (omitting citations):
6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
…
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
65. Mr Hancock submitted that the separation between these two steps is elusive but important. A fact or circumstance can be identified which might point to bias, but there must be a logical connection which elevates the risk from a mere probability to an actual probability, sufficient to satisfy the test.
66. In Livesey v New South Wales Bar Association (Livesey) two of the judges hearing the application for a declaration that Mr Livesey was not a fit and proper barrister and should be struck off the barristers’ roll, had in a previous hearing expressed unfavourable comments about a witness who was to give evidence for Mr Livesey. The High Court held that the two judges should have disqualified themselves from hearing the case against Mr Livesey.
67. Robin Creyke, Matthew Groves, John McMillan and Mark Smythe refer to Livesey, in their text, Control of Government Action, and state:
… Sometimes the circumstances create a ‘bad look’ where adjudicators must heed and step aside. …
The High Court did not suggest the earlier comments made about the witness [in Livesey] were wrong or that the judges were in fact biased. While judges might think that their training and experience makes them able to put aside earlier adverse findings or comments they have made, the High Court essentially held that the hypothetical observer would take a different view.
68. Mr Hancock referred the Tribunal to the High Court decision in Webb v R where Justice Deane referred to the four categories of circumstances of disqualification for bias in his written submissions, namely:
(a) by interest, where some direct or indirect interest in the proceedings gives rise to a reasonable apprehension of prejudice, partiality or pre-judgment;
(b) by conduct, whether that occurs in or outside the proceedings;
(c) by association, where some direct or indirect relationship, experience or contact exists or has existed with a person or a person’s interest in the proceeding;
(d) by extraneous information, where knowledge of some prejudicial but inadmissible fact or circumstance exists which would be significant to the proceeding.
Mr Hancock submitted, in the present case, there must be a real question as to bias by association.
69. Dr Quach expressed his confidence in the impartiality of this Tribunal, and wished to have the complaint dealt with in this Tribunal. At the hearing he said:
[The tribunal] has inherent jurisdiction in the Discrimination Act.
…
It also has the duty to hear it and not impose this on the Supreme Court. Without being disrespectful, it would be an express shortcoming of the tribunal if it chooses to remove the matter to the Supreme Court.
…
… should the tribunal say, well I’m inherently biased, or that I have apprehended bias and therefore I will remove the matter to the Supreme Court, that is an express public statement, which would be a shortcoming of this tribunal and not be acceptable. The tribunal must exercise impartiality …
70. The Tribunal then asked Dr Quach:
Tribunal: …Would they [the lay observer] say, well the fact that the tribunal is one of the parties to the application that is before the tribunal, would that lay person consider that there could potentially be apprehension of bias?
Dr Quach: Well that really doesn’t come into play because the tribunal, as I said, in my respectful submission, it has the duty to exercise its administrative role impartially and objectively. So therefore, an objective observer, a person in the public would expect the tribunal to hear this matter objectively… And impartially.
71. The Tribunal finds that Dr Quach appears to have misstated or misunderstood the important role of the fair-minded lay observer in applying the test for apprehended bias. A fair minded and reasonably well-informed observer might conclude, although not necessarily a tribunal or court, that the decision maker might not approach the issue with an open mind. The test is whether such an observer might apprehend or perceive that bias may exist, rather than having a belief that it actually does.
72. Mr Hancock has identified the fact that the tribunal is the respondent in the complaint and the logical connection between that fact and the filing of the complaint in the tribunal for determination may cause the fair-minded, reasonably well informed lay observer to apprehend that the decision maker may not approach the task at hand with the appropriate level of impartiality or to deviate deciding the complaint on its merits. This would create a bad look in the mind of a fair-minded lay observer.
73. The bias rule seeks to foster fairness and public confidence in the legal process, For these reasons, the Tribunal is satisfied that the fair-minded, reasonably well-informed lay observer might have an apprehension of bias and that for this reason the complaint should be removed to the ACT Supreme Court pursuant to section 83 of the ACAT Act.
The complaint involves complex and important questions
74. In Coutts, Senior Member Orr QC, observed that, while the respondent in that matter had raised complexity as one of the reasons for the removal to the Supreme Court, he had not formally raised the complex issues by the time of the removal hearing and the applicant was of the view that the proceedings were simple. The Senior Member said:
20 … many of the claims made in this tribunal are not only complex but of fundamental importance to the people affected. …
21 Therefore, I do not think that complexity of itself, and in this case, only possible complexity, is a reason to transfer the proceedings.
75. Senior Member Orr QC referred to the position taken by VCAT in Raline Industries PL v MJPE Investments PL (Raline) where the Vice President of VCAT, Judge Bowman, said:
35 As I have indicated in a considerable number of previous decisions, I am reluctant to accede to applications brought pursuant to s.77 where what is alleged is that this Tribunal lacks sufficient expertise, adequate powers in relation to the discovery of documents, sufficiently structured “pleadings”, or appropriate case management procedures to enable it to deal with complex or sizeable cases. Whilst each application must be dealt with on its merits, to date I have not been easily persuaded that such matters outweigh the other factors to be considered, particularly in relation to claims brought pursuant to statutory provisions where the first port of call would appear to be this Tribunal. The arguments of Mr Nixon in this regard were somewhat tentative, and I reject them. I continue to have confidence in the expertise of members of this Tribunal to deal with large or complex matters brought pursuant to Acts of Parliament which confer jurisdiction upon VCAT. However, as stated, each application must be dealt with on its merits. Arguments as to complexity and the like in relation to the present application do not impress me.
76. Mr Hancock submitted that the discrimination complaint does involve a number of complex legal questions made all the more complex by the fact that the tribunal is being asked to adjudicate on its own adjudication.
77. For example, the first question is whether the adjudication of the civil dispute involves the provision of goods, services or facilities, being the area of public life in section 20 of the Discrimination Act 1991, relied on by the applicant in the complaint. This would inevitably require the tribunal to determine whether tribunal members have immunity under statute or at common law or whether they are compellable witnesses. If they are not compellable witnesses and inferences are being made from the transcript, one imagines evidence would need to be given, which would provide another complex issue for determination.
78. Another complex question is whether the adjudication of a civil dispute could ever lead to ‘unfavourable treatment’ to a party. Mr Hancock submitted that these complex questions are almost impossible for a tribunal to address for itself.
79. A further issue is that, in the complaint, Dr Quach seeks orders which are not included section 53E of the HRC Act. Section 53E(2) sets out the orders which the Tribunal must make in discrimination applications, namely:
The ACAT must make 1 or more of the following orders:
(a) that the person complained about not repeat or continue the unlawful act;
(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c) unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
80. Dr Quach seeks a full investigation by the HRC, which has occurred, and that there be an appeal. Dr Quach had the opportunity to appeal, without seeking an extension of time, during the 28 days following the date of the decision, 27 March 2019. Instead he lodged his discrimination complaint with the HRC the following day, on 28 March 2019. The Tribunal noted that on the day of the hearing, 15 October 2019, Dr Quach did file an application for an extension of time in which to appeal. It appears to the Tribunal that it could not grant the relief sought by Dr Quach in his complaint as he does not seek one or more of the orders set out in section 53E of the HRC Act. To the extent that this is a live issue, then the Tribunal is satisfied that it is also a complex issue.
81. The further question, which Mr Hancock has raised, is appropriately described by him as a complex question. Where Dr Quach has known that he has had an appeal right and has now engaged that right by filing the application for an extension of time within which to file his appeal, the question which arises is whether his discrimination complaint is an abuse of process. This would be a difficult question for the tribunal to decide. Its complexity would be heightened by the fact that the tribunal would be required to decide on its own actions.
82. While the Tribunal agrees with Senior Member Orr and Judge Bowen of VCAT, that complexity in and of itself is not a reason to remove proceedings from the tribunal to the Supreme Court, the significant concern for the Tribunal is that the complexity in the present matter is heightened by the fact that the tribunal is the respondent in these proceedings.
Costs
83. While Dr Quach did not raise the issue of costs, if the complaint is removed to the Supreme Court the Tribunal noted that the respondent stated:
If called upon by the Tribunal, the respondent will make an undertaking that if the matter is removed, the Respondent will agree to an order that each party bear their own costs in respect at least of the resolution of the questions identified in [44] of its submissions in the Supreme Court.
84. In the light of this undertaking offer, it is not necessary for the Tribunal to consider, in determining the application for removal, that such a removal would ordinarily expose the applicant to an order for costs in favour of the respondent in the event that the applicant fails, in whole or in part, in the Supreme Court.
Public interest
85. The Tribunal was established to enable easy access to justice. However, in considering an application to remove an application to the ACT Supreme Court, pursuant to section 83 of the ACAT Act, if the Tribunal finds that there is a sound or good reason for a removal to be made, and it is in the interest of justice and appropriate, a removal order should be made.
86. The Tribunal refers to the statement by the plurality in Ebner in [64] above:
the requirement that justice should both be done and be seen to be done, [is] a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.
87. For the reasons set out above, it is my view that it is more appropriate and in the interests of justice for the relief sought to be litigated in the ACT Supreme Court.
Conclusion
88. The Tribunal has determined that the circumstances of the complaint are such that the natural and appropriate forum is the Supreme Court of ACT.
89. The Tribunal finds that if the Tribunal was to adjudicate the complaint this could involve an apprehension of bias. It is undesirable and unnecessary for the Tribunal to so adjudicate where there is power in section 83 of the ACAT Act to remove the proceedings to the Supreme Court. The Tribunal has identified, above, a number of complex and important questions which for the proper disposition of the matter would be appropriately dealt with, and in some instances, finally dealt with, by the Supreme Court. In all of the circumstances it is in the interests of justice and appropriate for the matter to be removed.
90. The Tribunal is conscious that this is not the outcome that Dr Quach sought. Dr Quach did not address a number of the respondent’s submissions. Doing the best it could with Dr Quach’s submissions, the Tribunal was unable to find merit in them.
91. The Tribunal will order that Dr Quach’s complaint be removed to the ACT Supreme Court pursuant to section 83(2) of the ACAT Act.
………………………………..
Presidential Member E Symons
HEARING DETAILS
FILE NUMBER:
DT 10/2019
PARTIES, APPLICANT:
Michael Quach
PARTIES, RESPONDENT:
ACT Civil and Administrative Tribunal
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Presidential Member E Symons
DATES OF HEARING:
15 October 2019
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