Pierpoint v Zanetti

[2011] QCAT 371

CITATION: Pierpoint v Zanetti and Ors [2011] QCAT 371

PARTIES:	Mr Adrian Pierpoint (Applicant/Respondent)
v
Mr and Mrs Paul and Michelle Zanetti (First Respondents/Applicants) Adpoint Developments Pty Ltd (Second Respondent/Respondent)

APPLICATION NUMBER:   B141-04

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Alexander Crawford, Member

DELIVERED ON: 19 July 2011

DELIVERED AT: Brisbane

ORDERS MADE:     Application for disqualification be dismissed.

CATCHWORDS: 

Bias – apprehended bias – whether knowledge of a compromise would disqualify the Member who is part heard in the proceeding – where terms of compromise are public knowledge

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Forge v Australian Securities and Investment Commission [2006] HCA 44

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. An application for miscellaneous matters was filed on 19 May 2011 in the Tribunal by the first respondent[1] that I be disqualified from further hearing this proceeding. 

   [1]        Mr and Mrs Zanetti.

1. I have read the application and also the respondent’s outline of submissions dated 15 June 2011.

1. I have also read the submissions of the applicant[2] and the second respondents dated 9 June 2011.

   [2]        Mr Pierpoint and Adpoint Developments Pty Ltd.

1. I agree with the submission set out in paragraph 6 of the respondent’s outline of submissions that I should decide whether or not I should be disqualified from further hearing this proceeding rather than some other Tribunal member.

1. The first respondent does not contend that there is actual bias but submit that they are only concerned with apprehended bias[3].

   [3]        Respondent’s submissions Para 13.

1. I accept that the test for apprehended bias is as restated by the High Court in Bender v Official Trustee in Bankruptcy[4]:

“8.The apprehension of bias principle admits of the possibility of human frailty.  Its application is as diverse as human frailty.  Its application requires two steps.  First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits.  The second step is no less important.  There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.  The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.  Only then can the reasonableness of the asserted apprehension of bias be assessed.”

[4] (2000) 205 CLR 337.

1. I further accept that in Forge v Australian Securities and Investment Commission[5], said at:

“67.in applying the apprehension of bias principle to a particular case, the question that must be asked is whether a judicial officer might not bring an impartial mind to the resolution of a question in that case.  And that requires no prediction about how the judge will in fact approach the matter.  Similarly, if the question is considered in hindsight, the test is one which requires no conclusion about what factors actually influenced the outcome which was reached in the case.  No attempt need be made to inquire into the actual thought processes of the judge; the question is whether the judge might not (as a real and not remote possibility rather than as a probability) bring an impartial mind to the resolution of the relevant question.”

[5] [2006] HCA 44 per Gummow, Hayne and Crennan JJ.

1. The respondents in their submissions make two points[6].  The first point is my knowledge of the terms of the settlement and release agreement and the consequences that are said to follow possibly from that knowledge.  The difficulty with this submission is that any other member of the Tribunal who replaced me would also, either have knowledge of the settlement from reading the file or be informed of it during the course of the resumed hearing.  The fact that a settlement was reached and the terms of that settlement are now public knowledge.  That is because the circumstances giving rise to the settlement are discussed in detail in the decision of this Tribunal which made a determination as to whether or not the settlement was enforceable.  That decision of 3 November 2010 decided that the settlement and release agreement is not binding on the parties.  Therefore I am not in any different position from any other Tribunal member who might hear the matter.  In fact I am at an advantage, having heard most of the evidence and attended a site inspection, to conclude the matter.  Any initial reservations I held about my knowledge of the settlement have been overtaken by events, namely the determination as to its enforceability.

   [6]        Respondent’s submissions paras 16 and 17.

1. The second point made by the respondent is that the Tribunal had communicated to the parties that both the Tribunal and Member Crawford considered that I was compromised.  I have read the transcript of the Directions Hearing on the 11 November 2010.  Those general observations were not conclusive as to whether I should or should not proceed with the matter.  I agree that reservations were expressed by the Tribunal however the purpose of the directions hearing was to progress the matter to a compulsory conference and the question of my disqualification would be left to another day.

[10]  Having now considered whether I should disqualify myself I have come to the view that I am not compromised and can conclude the hearing of the application with the objectivity necessary to ensure both parties are given a fair hearing.  I do not regard the terms of settlement as an admission of liability but merely a decision made by the parties for their own reasons to which I am not privy.  I have come to this conclusion not only having regard to the submissions of the parties as mentioned above but also on the basis that any other member who replaced me would be armed with the same knowledge of the settlement and release agreement that I presently have.

[11]  Further, I consider that in the interests of justice it is appropriate that I continue to hear this matter.  I accept the applicant’s submissions[7] that it would suffer considerable prejudice if there had to be a rehearing with another member presiding.  Substantial costs may be thrown away and further costs incurred in a jurisdiction where costs do not necessarily follow the event.  There has been no suggestion by the respondents they are prepared to meet any of the applicant’s costs that might be thrown away.  In addition there is inconvenience to witnesses who have already been called and cross-examined.

[7]        Applicant’s submission para 23.

[12]  In the result I consider I am not compromised from continuing to hear this matter and I propose to dismiss the application.