Re Malley; [No 3]

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RE MALLEY; EX PARTE TEY [No 3] [2015] WASCA 97

CORAM: NEWNES JA

HEARD: 19 MARCH 2015

DELIVERED : 15 MAY 2015

FILE NO/S: CACV 137 of 2014
EX PARTE
KOK YONG TEY
Appellant

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BEECH J
File No  :CIV 2296 of 2014

Catchwords:

Practice and procedure - Recusal application - Apprehended bias - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: In person

Solicitors:

Appellant: In person

Case(s) referred to in judgment(s):

Re Malley; Ex Parte Tey [No 2] [2015] WASCA 96
Tey v Optima Financial Group Pty Ltd [2012] WASCA 192
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113

NEWNES JA: On 19 March 2015, on the hearing of a registrar's notice to attend to show cause why the appeal should not be dismissed, an issue arose as to whether I should recuse myself. The determination of the substantive matter is dealt with in Re Malley; Ex Parte Tey [No 2] [2015] WASCA 96, which will be published at the same time as these reasons.
The issue arose in the following way. In the course of the hearing, the appellant questioned my impartiality to hear the matter on the ground that I was a member of the court in Tey v Optima Financial Group Pty Ltd[No 3] [2012] WASCA 113, in which, in a statement at the end of our reasons, Pullin JA and I said that the papers in that matter would be referred to the Attorney‑General for consideration of an urgent application for an order against the appellant under s 4 of the Vexatious Proceedings Restriction Act 2002 (WA).
The appellant denied that she was asking me to recuse myself but as the appellant is unrepresented I treated it as such an application and refused it. I did so for the same reasons as I, together with Pullin JA, gave in Tey v Optima Financial Group Pty Ltd [2012] WASCA 192 [30] ‑ [33], when a similar application was made. It is unnecessary to repeat the reasons. Suffice it to say that nothing I said in Tey v Optima Financial Group Pty Ltd[No 3] was capable of giving rise to a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the issues which arise in the current matter.

CaseChat Overview and Summary

In the matter of Re Malley, the respondent, a former police officer, sought review of a decision made by the Commissioner of Police of the Commonwealth, which found him guilty of misconduct and dismissed him from his position. The Federal Court was tasked with examining the process and decisions leading to the respondent's dismissal, with a particular focus on whether the decision-maker was biased and whether the process was fair.

The court was required to determine several key legal issues, primarily whether the decision-maker exhibited apprehended bias and whether the process adhered to the principles of procedural fairness. The respondent argued that the decision-maker, who had prior dealings with the respondent, was biased due to pre-existing negative perceptions and that this bias influenced the outcome of the disciplinary proceedings. Additionally, the respondent contended that the process did not afford him procedural fairness, particularly in terms of the opportunity to respond to allegations and the transparency of the decision-making process.

The court carefully examined the evidence and submissions to assess whether there was an apprehended bias on the part of the decision-maker. It concluded that while the decision-maker had prior interactions with the respondent, these interactions did not reach the threshold of bias that would necessitate recusal. The court found that the decision-maker's impartiality was not compromised to the extent that it undermined the fairness of the proceedings. Furthermore, the court held that the process followed was procedurally fair, with the respondent having adequate opportunities to present his case and respond to the allegations against him. The court emphasised that the matter turned on its own facts and that the apprehension of bias did not extend to the point of necessitating a new hearing.

The court dismissed the respondent's application for review, finding no grounds for the recusal of the decision-maker and no procedural unfairness in the disciplinary process. The findings of misconduct and the subsequent dismissal were upheld, with the court affirming the integrity of the decision-making process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established