Secretary to Department of Justice and Regulation v CZQ (No 2)

[2018] VSC 761

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2018 02376

Secretary to the Department of Justice and Regulation	Applicant
v
CZQ (a Pseudonym)[1]	First Respondent
and
Victorian Civil and Administrative Tribunal	Second Respondent

[1]To ensure there is no possibility of identification of the First Respondent’s family members, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the First Respondent.

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JUDGE:	Priest JA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2018
DATE OF JUDGMENT:	7 December 2018
CASE MAY BE CITED AS:	Secretary to Department of Justice and Regulation v CZQ (No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 761

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ADMINISTRATIVE LAW— Application for recusal — Private unsolicited email from respondent to judge’s chambers — Apprehended bias — Fair-minded observer — Application refused — Johnson v Johnson (2000) 201 CLR 488.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Hanks QC with Mr P Panayi	Working with Children Check Unit, Department of Justice and Regulation
For the First Respondent	No appearance

HIS HONOUR:

Introduction

1. By a Notice dated 21 June 2018, the Secretary to the Department of Justice and Regulation (‘the Secretary’) sought leave pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 to appeal against orders of the Victorian Civil and Administrative Tribunal made 24 May 2018, the effect of which was to direct the Secretary to provide CZQ with an assessment notice under s 26C of the Working with Children Act 2005 (‘the Act’), permitting him to perform child-related work (‘the proceeding’).

2. When the proceeding came on for hearing before me on 29 November 2018, I drew the attention of counsel for the Secretary to an unsolicited email which had apparently been sent to my chambers by CZQ that morning at 10.10 am.  CZQ did not appear at the hearing personally or through counsel, and gave no explanation for his non-attendance.  Attempts by the Court’s Registry staff to contact him proved futile (the information conveyed to the Court being that the telephone number that CZQ had provided to the Registry was not connected).

3. After taking instructions, counsel for the Secretary made an application that I disqualify myself from hearing the case on the basis of apprehended bias.  I refused the application and said that I would later provide reasons.  These are those reasons.

   The application for recusal

4. At 10.10 am on Thursday, 29 November 2018, and email ostensibly sent by CZQ to my chambers’ email address, was received.  The Subject was, ‘-URGENT- “Private And Confidential” ATTN: Honourable Justice Priest. S CI 2018 02376’.

5. The email was in the following terms:[2]

   [2]Spelling, grammar and syntax as in original.

   THIS EMAIL IS MARKED “PRiVAYTE & CONFIDENTIAL” & is only to read by Honourable Justice Priest” & High Court Registrar

   Dear Honourable Justice Priest,

   This email is about case number S CI 2018 02376.

   I am one of the defendants in this matter (CZQ).

   I write you this email to point out a few issues I have with the hearing of the above mentioned case number.

   I want to point out some issues in dispute before any hearing can take place:

   You will notice that this appeal is an appeal against a “decision of VCAT”. You will also notice that there has been an attempt to have VCAT withdrawn from the proceeding (strange Hey!, but I know why, its because the Secretary’s appeal is not lodged against VCAT and is nothing but an attempt to seek costs against me)

   You will notice that there was an attempt (by me) to lodge 2 subpoena’s which were rejected from the filing department as they awaited a Deputy Registrars decision, then that registrar indicated that they were not granted by the files department. It appears that the Supreme Court has something to hide by not allowing my subpoena’s to be issued. The proceeding cannot continue unless these two subpoenas are to be issued and served accordingly, amongst other things. What does the court system have to hide by not allowing these subpoenas?

   You will also notice that the notice of appeal has pen changes to it that where not initialised to confirm that change, but more on that later when my appeal is lodged to the High Court.

   Also, if an appeal book was issued that appeal book was not consented to by me.

   If you make any orders of conclusion today I expect to receive the written notice of “decision & reasons” within 28 days.

   I trust you will make the right decision & adjourn this proceeding until all the above issues (& others) are fixed.

   Regards,

   CZQ

   This email has been blind copied to a registrar of the High Court of Australia.

6. Plainly, the sending of the email was improper.  No litigant in a case such as the present should ever seek to have a private communication with the judge (or his or her staff), let alone one that carries the implied threat that an appeal will be lodged unless the judge decides the case in the litigant’s favour. 

7. Moreover, the email contains scandalous matter, capable of being interpreted as follows:

   ·    first, the Secretary has attempted to have the Tribunal excluded as a party, so that the Secretary might (improperly) seek costs against CZQ;[3]

   ·    secondly, a Registrar of the Court improperly refused CZQ’s request for the issue of two subpoenas, because the Supreme Court (or ‘court system’) has ‘something to hide’;

   ·    thirdly, the Notice of Appeal has improperly been changed in ‘pen’,[4] a matter that will be ventilated when his ‘appeal is lodged to the High Court’;

   ·    fourthly, the form of the appeal book was not one to which he consented.[5]

   [3]In reality, although it was named as the second respondent to the proceeding, the Tribunal adopted the usual course of submitting to such order as the Court might make (save as to costs).  See R v Australian Broadcasting Tribunal; ex parte Hardiman and Ors (1980) 144 CLR 13, 35.

   [4]There is nothing at all sinister, unusual or controversial about the ‘pen’ on the Notice of Appeal. On its face, the Notice was filed on 21 June 2018, it bearing a stamped date on the seventh page. Each page of the Notice bears the Prothonotary’s stamp, also bearing the date ’21 June 2018’. (See r 28.04(1)(f) of the Supreme Court (General Civil Procedure) Rules 2015.)  As is conventional, on its seventh page, the Notice bears Prothonotary’s stamp affixed over an indecipherable penned signature.  On its front page, the Notice bears apparent (and indecipherable) initials and the time ‘2:25’ written in pen, over both of which the Prothonotary’s stamp has been affixed.  The front page also bears the proceeding number ‘S CI 2018 2376’, which also has been hand-written in pen.

   [5]Counsel for the Secretary informed the Court as follows:

   My instructions are quite clear, that over a period of many weeks my instructor’s attempted to obtain the respondent’s agreement to the draft index of the court book and the respondent refused to give that consent on the basis, as we understood it, that he was seeking to add to it with additional material, which would be produced in response to his subpoena which hasn’t been issued, and that eventually we, that is my instructors, concluded that it was pointless persisting and prepared this court book.  And Your Honour can see that its contents appear to be orthodox.

8. As I have indicated, after the email was brought to the attention of the Secretary through his counsel in open court, senior counsel sought instructions and then made an application that I disqualify myself for apprehended bias.  The submissions advanced in support of the application were as follows:

   … I’m going to ask Your Honour to disqualify yourself on the following basis. 

   There’s a possibility, if this matter proceeds, and we are successful on one of the grounds that we’ve advanced, so that our application for leave to appeal is granted, and the appeal is allowed, [CZQ], the respondent, could claim that there emerged a reasonable apprehension of bias on the part of Your Honour, on the basis that having received his letter, which does contain, we submit, allegations against the propriety of this court, in general, the court, that is, Your Honour, might react against those allegations so as not to bring an unprejudiced mind to the disposition of our application.

   Now, I’m bound to raise some points which would be known by the well-informed observer, and which might go against such an apprehension.  Any apprehension would arise exclusively out of the respondent’s conduct, we say, in making an unsolicited communication to Your Honour’s chambers. 

   And the well-informed observer would also know that Your Honour disclosed that communication in open court.  A final item in the knowledge of the well-informed observer would be that the principal matter which seems to be the subject of his complaint, the refusal to issue subpoenas, was the subject of a hearing in open court before Judicial Registrar Irving. 

   And the Judicial Registrar explained — I’m informed or instructed that all of this is on transcript, Your Honour — explained the reason why the subpoenas should not be issued.  In short, that he, Judicial Registrar Irving, could not, if asked, offer any explanation to a trial judge who was to hear the matter, as to the relevance of the material sought to be subpoenaed.

   There’s one tangential matter, I think, is maybe relevant, Your Honour.  If Your Honour were to disqualify yourself, perhaps a well-informed — this is something a well-informed observer would understand, as well — there’s no guarantee that this conduct will not be repeated.  Nevertheless, we’ve made the application — and Your Honour would understand that we have one opportunity to do that.
   …

   If we don’t do it, it’s gone.  And, of course, the respondent is in a different position, as he’s not here, his opportunity will persist.

9. There were, of course, no submissions advanced opposing the Secretary’s application that I recuse myself, it being apparent that CZQ had deliberately decided not to participate in the proceeding in person.

   Discussion

1. The guiding principle that governs an application that a judge disqualify himself or herself on the basis of apprehended bias was formulated in Johnson v Johnson[6] as follows: 

[T]he test to be applied in Australia in determining whether a judge is disqualified by reasons of the appearance of bias … is whether 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.

[6](2000) 201 CLR 488, 492 [11] (‘Johnson’).

1. In Ebner, it was made clear that the word ‘might’ in the formulation above refers to  ‘possibility (real and not remote), not probability’.[7]  The relevant apprehension is that the judge will not decide the case impartially, not merely that he or she ‘will decide the case adversely to one party’.[8]

   [7]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345, [7] per Gleeson CJ, McHugh, Gummow and Hayne JJ (‘Ebner’).

   [8]Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J) (‘JRL’).

1. In its application, the test has two steps: first, ‘the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits’; and, secondly, the ‘articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits’.[9]

   [9]Ebner, 345 [8].

1. The fair-minded observer is taken to be reasonable.[10]  He or she does not make snap judgments;[11] and he or she is neither complacent nor unduly sensitive or suspicious.[12]  An attribute of the hypothetical  fair-minded observer is that he or she is informed, and has knowledge of all the circumstances of the case.[13]  He or she will be taken to be aware that a judge’s training, tradition and oath (or affirmation) equip the judge with the ability to discard the irrelevant, immaterial and prejudicial.[14]  Hence, the fair-minded observer will expect judges to be equipped by their training, experience and oath (or affirmation) of office, to decide factual contests solely on the evidence (and material which is notorious or common knowledge).  The fair-minded observer would be aware that, in the same way jurors are expected to be able to put aside their prejudices, judges are also expected to be capable of so doing (albeit that, due to their years of training an experience, judges might be considered to have an advantage).[15]

   [10]Johnson, 493 [12].

   [11]Ibid 494 [14].

   [12]Ibid 509 [53] (Kirby J).

   [13]Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; JRL, 355, 359, 368, 371–2; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 87-8, 95.

   [14]Johnson, 493 [12]; Vakauta v Kelly (1989) 167 CLR 568, 584-5.

   [15]Helow v Secretary of State for the Home Department [2008] 1 WLR 2416, 2422 [23].

1. As I have mentioned, counsel for the Secretary in effect submitted that, should I decide the case in a particular way, CZQ ‘could claim that there emerged a reasonable apprehension of bias’ on the basis of having reacted in a negative way to his email.

2. What CZQ subjectively might think or feel, however, is not to the point (unless his views happened to coincide with those of the reasonable, fully-informed, fair-minded lay observer).

1. In my view, there is no prospect that the fair-minded lay observer might reasonably have apprehended that, at the time that the application was made for me to recuse myself, this Court might not have been able to bring an impartial and unprejudiced mind to the resolution of the case.  The hypothetical fair-minded observer would well have appreciated that, by reason of experience and training, a judge in the position in which I found myself, would not be influenced by the tone or content of an email improperly sent to the Court by an unrepresented litigant.

1. For these reasons, I refused the Secretary’s application that I recuse myself.

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