Singh v Legal Aid Commission

[2014] NSWCATAD 28

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Singh v Legal Aid Commission [2014] NSWCATAD 28

Hearing dates:

12 December 2013

Decision date:

17 March 2014

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Mr S Montgomery, Senior Member

Decision:

1. The Applicant's application that I disqualify myself is refused.

2. The matters are to be relisted for a planning meeting on a date to be determined

Catchwords:

Bias - application for disqualification

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009

Cases Cited:

Attorney General for NSW v Klewer [2003] NSWCA 295.
Aussie Airlines Pty Ltd v Australian Airline Pty Ltd [1996] FCA 1308; (1996) 135 ALR 753
AWG Group v Morrison [2006] 1 WLR 1163
Barakat v Goritsas (No 2) [2012] NSWCA 36
British American Tobacco v Laurie [2011] HCA 2
Clenae Pty Ltd v ANZ Banking Group [2000] HCA 63; (2000) 205 CLR 337
Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Ors [2004] NSWCA 291
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344
Gwandalan Summer Point Action Group v Minister for Planning (2009) 168 LGERA 269.
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Huang v University NSW (No 3) [2006] FCA 626
Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Khera v Law Society of New South Wales (LSD) [2005] NSWADTAP 29
LB v Hunter New England Area Health Service [2009] NSWADT 101
Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125
Livesey v NSW Bar Association (1983) 151 CLR 288
Locabail (UK) Ltd v Bayfield Properties Ltd [2000] EWCA Civ 3004
McGovern v Ku-ring-gai Council [2008] NSWCA 209
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 86 ALJR 14
Minister for Immigration v Jia Legeng [2001] HCA 17
Muir v Commissioner of Inland Revenue [2007] NZCA 334.
President v South African Rugby Football Union 1999 (7) BCLR (CC) 725
R v Sussex Justices; Ex p McCarthy [1924] 1 KB 256
Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272
Re Finance Sector Union of Australia; ex parte Illaton Pty Ltd [1992] HCA 30; (1992) 66 ALJR 583
Re Keely; Ex p Ansett Transport Industries (Operations) Pty Ltd (1998) 64 ALJR 495 and Barbosa v Di Meglio [1999] NSWCA 307.
Re Lusink; Ex parte Shaw (1980) 55 ADR 12
Re Polites; ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78
Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 75 ALJR 982
Reg v London County Council; Ex parte Empire Theatre (1894) 71 LT 638
Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
Reg. v Watson; Ex parte Armstrong (1976) 136 CLR 248
Smiths v Roach (2006) 228 ALR 262
The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
Watson (1976) 136 CLR at p 262
Webb v R [1994] HCA 30; (1994) 181 CLR 41

Category:

Interlocutory applications

Parties:

Andrew Singh (Applicant)
Legal Aid Commission (Respondent)

Representation:

A Singh, (Applicant in person)
Crown Solicitor's Office (Respondent)

File Number(s):

133096, 133101

reasons for decision

1. These matters were commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the now repealed Administrative Decisions Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. But because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule).

1. The substantive proceedings are applications for review of determinations by Respondent in regard to a request for information under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The GIPA Act applications were listed for Planning Meetings at which time the progress the matters were discussed and direction made in regard to the filing of documents.

1. Planning Meetings were held on 10 September 2013 and 8 October 2013.

1. By way of letter dated 9 October 2013, the Applicant made an application for me to recuse myself from hearing these matters. He submitted that my further participation is likely to prejudice his case. He contends that this would be so because of the following:

"1. That at a preliminary conference on 8 October 2013 the member made comments which in my view were inappropriate and unfair. It related to a letter written to me on 19/9/13 by the respondent's solicitor which was marked "without prejudice". I had attached a copy of this letter as Attachment 1 in my submissions dated 30/9/13 in the matter 133096. At the conference the crown solicitor informed the member that she objected to the letter being tendered as evidence. The member agreed with the crown solicitor. I disputed, informing the member that I did not invite or encourage the respondent or its solicitor to make any "without prejudice" offers to me regarding both the proceedings. The member persistently questioned me about the relevance of the letter being attached to my submissions and at a point, made an intemperate remark that if I was not happy with the action of the crown solicitor, then I should complaint to the Law Society. The tenor of the member's remark demonstrated a degree of hostility towards me.

2. When the member was being provided with copies of various documents (both confidential and non-confidential) by the crown solicitor, the member remarked to me that these were the documents I was after, apparently implying that I was seeking all the documents that the crown solicitor handed to the member. In my view, the member's remarks were uncalled for or unfair since he was aware I was not after all the documents, but only those which were in dispute and mentioned in my submissions.

3. That at a preliminary hearing on 10 September the member granted further extensions to the respondent to respond to my submissions in reply to the respondent's earlier submissions, despite my objections raised in my letter dated 28 August to the Tribunal. When I renewed my objection during the conference that the respondent should not be allowed to keep on filing documents in response to my reply to its submissions, the member replied words to the effect that since the onus was on the respondent to satisfy the Tribunal its decision should be upheld, it was the member's practice to allow the respondent to file submissions/evidence. I am not aware of any Practice Note of the Tribunal which supports the member's proposition on this point.

1. The application for me to recuse myself from hearing these matters was listed on 12 December 2013. Each of the parties relied on written submissions. The Applicant and Ms Johnson also both made oral submissions. Those oral submissions did not add to the written submissions to any significant extent. I reserved my decision at that time and these reasons are now provided in relation to the application.

The Applicant's submissions

1. I have set out the Applicant's reasons for has application above. He elaborated on these reasons and his understanding of the relevant case law in his written submissions as follows:

Basis of recusal application

5. My application is based principally on s74 (4) (b) of the ADT Act and the common law.

Legal principles - apprehension of bias

6. The basic test for apprehension of bias is whether a fair-minded lay observer with the knowledge of the material facts might reasonably apprehend that the administrative or judicial decision-maker might not bring an impartial and unprejudiced mind to adjudication of the case, that is a mind open to persuasion by evidence and the submissions of the party asserting bias - Webb v R (1994) 181 CLR 41, 67; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344; Commissioner of Corrective Services v GREA Tribunal [2004] NSWCA 291 at [22]; McGovern v Ku-ring-gai Council [2008] NSWCA 209 at [9]; and Gwandalan Summer Point Action Group v Minister for Planning (2009) 168 LGERA 269.

7. The application of the test requires two steps:

7.1 Identification of the matter(s) which underpins the apprehension that a decision maker might decide the case other than on its legal and factual merits;

7.2 Articulation of the logical connection between the matter(s) and the apprehended deviation from the course of deciding the case on its merits - Ebner at 345 [7].

8. The legal principles are universal - see, for example, President v South African Rugby Football Union 1999 (7) BCLR (CC) 725; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] EWCA Civ 3004; and Muir v Commissioner of Inland Revenue [2007] NZCA 334.

9. The rule applies to both courts and administrative tribunals, adjudicating in adversarial litigation (although the content may vary) - see Kirby J in Minister for Immigration v Jia Legeng [2001] HCA 17 at [136] "the rule is one that applies to decisions of every public office holder". See also His Honour's similar comments in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [115] and that of McHugh J at [70] the same case. These views are repeated by Spigelman CJ in McGovern at [2].

10. The rationale for the rule is very clear - fundamental and deep rooted considerations of judicial/tribunal independence and the need to maintain and promote public confidence in the independence and impartiality of these institutions. The principle of impartiality (or fairness) requires that the parties be treated in an even-handed manner, an important aspect of which is that each party be allowed to participate in the decision making process in a manner that does not give an unfair advantage to the other or the decision maker having a predisposed view about a party's case/conduct. The rule gives effect to the requirement that "justice should both be done and seen to be done" - see Ebner at [6], Locabail at [2], Muir at [62].

11. The authorities also provide other important principles underpinning apprehended bias. These include firstly, the applicant does not have to demonstrate strong grounds for his case - "A party would be foolish needlessly to assume a heavier obligation when proof of bias from the perceptions of reasonable observers would suffice to obtain relief per Kirby J in Jia at [111]. This is consistent with the "two mights" test that comprises the basic principle. It is also consistent with the majority decision in British American Tobacco v Laurie [2011] HCA 2 at [139]-[140]:

"It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned. ... It is recognition of human nature."

12. It follows that the party claiming apprehension of bias needs to show that there is a possibility and not a probability that the tribunal might not bring an impartial mind to his case - see Ebner at [7] where the High Court stated that the apprehension of bias principle "admits of the possibility of human frailty" and "its application is as diverse as human frailty".

13. Secondly, the fictional observer, by reference to whom the test is formulated, is not assumed to be a lawyer or have a detailed knowledge of the law - see majority in Johnson v Johnson [2000] HCA 48 at [13].

14. Thirdly, apprehended bias may arise from interest, conduct, association, extraneous information or from some other circumstances - Ebner at [24]. The Applicant's case rests with the first, second and third categories.

Application of the principles to the present case

15. The Applicant contends the tone of the member's comments, the trenchancy with which they were expressed, and the readiness with which the member accepted the crown solicitor's submissions to refuse her "Without Prejudice" letter which the Applicant had tendered in evidence in the proceedings, without allowing him proper opportunity to make submissions on the issue, is evidence of apprehended bias on part of the member.

16. Such conduct might lead a fair minded lay observer to reasonably apprehend that the member might not bring an impartial mind to the resolution of the instant case. The member's preconceived views which he firmly held and conveyed to the Applicant indicates that it may not be possible for him to decide the case with an open mind.

17. The member's comment to the Applicant that "lawyers write without prejudice letters all the time" is a further indication that he might not bring an impartial mind to the resolution of the issue to be decided. As already stated, a lay observer in the shoes of the Applicant does not have to be a lawyer or have detailed knowledge of the law.

18. Similarly, the member's comment that the Applicant could make a complaint to the law society about the conduct of the crown solicitor further indicates his predisposition about the Applicant's case. The gist of the member's comment was that Applicant was being unreasonable in opposing the crown solicitor's request because the respondent had agreed to release the document over which it had previously claimed legal professional privilege. This is challenged by the Applicant in his submissions.

19. No fair-minded observer, recognising the position of the Applicant, would see this as fair and even-handed treatment. The "without prejudice" letter had already been the subject of the parties' submissions which was supposed to be ultimately decided on the papers. By allowing the crown solicitor to raise the matter at the planning meeting, readily accepting her request, and depriving the Applicant opportunity to make further submissions again gives rise to a reasonable apprehension of bias.

20. The same applies to the member's conduct when he allowed the crown solicitor to make oral submissions regarding the Applicant's use of evidence for both the proceedings (at the 8/10/13 planning meeting). Again, this matter was canvassed in the parties written submissions. By pressing the Applicant to seek an Order (at the behest of the crown solicitor) at the planning meeting again raises questions about the impartiality of the member. A reasonable bystander would have a vague sense of unease - he might form the view that there was little if anything that the Applicant had submitted would be taken seriously by the member.

21. Throughout the planning meetings the member's conduct has caused the Applicant concern about the member's association with the crown solicitor. At the first planning meeting on 14/5/13 where the respondent was represented by Mr McDonnell, the member made comments to the effect that he (the member) was apologetic for the delays in a case in which Mr McDonnell appeared. In subsequent meetings where the respondent was represented by Ms Johnson, the member always allowed Ms Johnson to present her client's case first, and then spoke casually about others cases she was appearing.

22. Such conduct/association of the member might shake the public confidence in the administration of justice. It might cause a fair-minded lay observer to question the neutrality of the member to deal with his case in an even handed manner.

23. The same applies to the member's conduct regarding his comments "are these the documents you are after". It is not the comment itself that the Applicant says gives rise to an apprehension of bias. Rather, it is again the manner in which the member's comments were couched - in a heavy handed sarcasm, as evidenced by his gestures, mannerisms and his tenor. The Applicant perceived this as the member's sheer disapproval that the Applicant wanted more than what he was legally entitled.

24. As was stated by the majority in [British American Tobacco v Laurie [2011] HCA 2, at issue is not the remarks or expressions of the member but the impression reasonably conveyed to the fair-minded lay observer who knows about the member's conduct.

25. Finally, the granting of extensions by the member to the crown solicitor (at the 10/9/13 planning meeting) so she could respond to the Applicant's submissions in reply, despite his objections, again demonstrates the member's apprehended bias arising from his conduct and/or his continuing association. It again gives the impression to the public in the form of the reasonable informed observer that the member has allowed the respondent "an unfair advantage" at the detriment of the Applicant.

26. The Applicant was already at a serious disadvantage - without legal representation. These were adversarial proceedings where the respondent was ably represented by the crown solicitors, having all the resources to mount a vigorous defence on behalf of its client. Hence, there was no justification for the member to accord the respondent/crown solicitor such indulgence based on his claimed practice that the respondent had an onus of proof. There is no Practice Notes or Rules of the ADT on this issue. Clearly, the member acted on his own idiosyncratic and personal assessment. This is clear apprehension of bias in light of the authorities. It cannot be part of "active case management" as argued by the crown solicitor in her submissions of 6/11/13. As Justice Kirby stated in Smiths v Roach (2006) 228 ALR 262 at [97] such idiosyncratic and personal assessments are impermissible.

27. The Applicant also relies on the judgment of Rares J in Huang v University NSW (No 3) [2006] FCA 626 where His Honour ruled that the conduct of the federal magistrate in introducing affidavit evidence on his own motion was a clear apprehension of bias, especially when His Honour had regard to the fact that the Appellant was unrepresented and was not accorded proper opportunity to challenge the magistrate's action.

28. As a result of the member's indulgence, the crown solicitor filed substantial written arguments, quoting extensively from decisions of the member (and in some cases, quoting selectively to advance her point) which is mostly adverse to the Applicant's case. Whilst the member gave the Applicant an opportunity to respond to these additional submissions, the damage has already been done - the inequality of arms principle was already at work.

29. On this basis alone the member should be disqualified. His conduct might give a lay person the impression that he has an interest in the outcome of an issue which he is to resolve, "he is improperly acting in his own case and that such proceeding might undermine public confidence in the integrity of justice"- [Locabail (UK) Ltd v Bayfield Properties Ltd [2000] EWCA Civ 3004] at [7].

30. The Applicant's view is reinforced by s74 (4) of the ADT Act which states that the member's further participation is not mandatory, but discretionary. This is a sufficient statutory warrant for the ADT to have the member disqualified. This will promote the objects of the legislation - to ensure the ADT is independent, its decisions are fair and inspire public confidence.

The Respondent's submissions

1. In her written submissions on behalf of the Respondent Ms Johnson submitted:

3 The bias rule requires a decision maker to disqualify himself from hearing a matter if 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: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] and [8].

4 In practice, the application of this test involves the following steps:

(a) the party seeking disqualification must identify what it is that might lead the judicial officer to decide the case other than on its legal and factual merits: Ebner v Official Trustee in Bankruptcy at 345;

(b) the party seeking disqualification must then articulate the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy at 345.

5 Judicial officers must not recuse too readily. The principle to be applied was enunciated by Mason J in Re J.R.L; Ex parte C.J.L (1986) 161 CLR 342 at 351:

"The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues: Reg. v Watson; Ex parte Armstrong (1976) 136 CLR 248, at pp 258-263; Livesey v NSW Bar Association (1983) 151 CLR 288, at pp 293-294. This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. 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. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson (1976) 136 CLR at p 262; Re Lusink; Ex parte Shaw (1980) 55 ADR 12 at p 14; ... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."

6 In Attorney General for NSW v Klewer [2003] NSWCA 295, the Court of Appeal (Davies AJA with whom Mason P and Meagher AJA agreed) noted the comments of Mason J cited above and went on to observe at [13]:

"The point made by Mason J that a judicial officer should not recuse without adequate cause was exemplified in Re Polites; Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78 where Brennan, Gaudron and McHugh JJ ordered that a member of the Australian Industrial Relations Commission hear and determine a particular industrial dispute. The member had disqualified himself from sitting as a member of the Full Bench as he had tendered advice to one of the parties whilst he was in practice as a solicitor. Their Honours considered that, as the advice given was not connected with the dispute before the Full Bench of the Commission, the member ought not to have disqualified himself. Their Honours referred to The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 where Dixon CJ, Williams, Webb and Fullagar JJ said, at p 116:-

'But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that 'preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded', per Charles J, Reg v London County Council; Ex parte Empire Theatre (1894) 71 LT 638, at p 639.'"

7 Davies AJA described the application by Ms Klewer as being founded upon a complaint directed generally to the judicial officers and staff of the Local Court at Coffs Harbour and to the New South Wales Police Service at Coffs Harbour and alleged a climate of hostility and bias. Further, Ms Klewer had complained about the conduct of the Coffs Harbour Local Court system to the Independent Commission Against Corruption. Davies AJA held at [15]:

"Unsubstantiated allegations of this type made by disappointed litigants provide no basis upon which a judicial officer, who has been allocated to a particular matter, should recuse."

8 Applying the decision of the Court of Appeal in Klewer to the Applicant's application in this case requires the Applicant to "firmly establish" his case, demonstrating on "strong grounds" that there is a high probability that the decision maker will not approach the hearing fairly.

9 The Respondent objected to the Applicant filing the letter marked "Without Prejudice" from the Respondent's solicitor to the Applicant on the basis that it was a privileged communication concerning a genuine attempt to settle the matter. Montgomery JM heard from both parties about the letter at the planning meeting on 8 October 2013 and decided not to admit it. The Respondent submits that Montgomery JM was engaged in genuine debate with the parties about whether to admit the letter, which does not give rise to an apprehension of bias: Re Keely; Ex p Ansett Transport Industries (Operations) Pty Ltd (1998) 64 ALJR 495 and Barbosa v Di Meglio [1999] NSWCA 307. It was appropriate for Montgomery JM to advise the Applicant that if he wished to complain about the Respondent's solicitor's conduct, he should lodge a complaint with the Law Society.

10 Even if Montgomery JM's conduct in deciding not to admit the letter could give rise to an apprehension of bias, which the Respondent submits it does not, there is no logical connection between Montgomery JM's questioning of the Applicant about the letter and any feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee, above.

11 The Applicant also submits that when questioning him about the documents in dispute, Montgomery JM implied that the Applicant was seeking all the documents which the Respondent's solicitor had handed to the member during the planning meeting on 8 October 2013. The Respondent provided both confidential and non-confidential documents to Montgomery JM on that date. The Respondent's impression is that Montgomery JM was simply seeking clarification from the Applicant about whether he continued to press for access to all of the documents which the Respondent has refused access in its decisions. The Respondent had made a total of three decisions in relation to two separate applications under the GIPA Act, and in the time that the matter had been before the Tribunal, the Respondent had decided to release additional documents to the Applicant. In such circumstances, it was entirely appropriate for Montgomery JM to ask the Applicant to confirm whether he continued to press access to all of the documents withheld by the Respondent. It was a legitimate question in order to manage the matter and Montgomery JM did not express any view about the Applicant's decision to press certain documents. This falls considerably short of the standard of conduct which could give rise to a reasonable apprehension of bias.

12 To the extent that Montgomery JM allowed the Respondent further time to respond to the Applicant's reply submissions, it is submitted that Montgomery JM was properly engaged in active case management: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13]; Jae Kyung Lee vBob Chae-Sang Cha [2008] NSWCA 13 at [40].

13 There is nothing in the matters raised by the Applicant in his correspondence with this Tribunal that warrant Montgomery JM disqualifying himself. It is for the Applicant to firmly establish his case and he has not done so.

The Applicant's submissions in reply

1. In his written submissions in reply the Applicant wrote as follows:

3. In response to its submission [5] that judicial officers must not recuse too readily, relying on Re JRL ex parte CJL this is disputed. This case is some 30 years old which has lost any precedential value in light of contemporary line of cases cited in my submissions. In any event, this case also stands for the proposition that parties cannot choose their judge at 352.

4. In response to the selective quotes at [6] - [8] of its submission citing Klewer, I submit the Respondent's claim that a person should show "strong grounds" is misplaced. That is not the test for reasonable apprehension of bias. Assuming it were in 2003, then Klewer has clearly been overruled by recent authorities like McGovern and Gwandalan. I refer to my submissions at [11].

5. Further, the Respondent's contention that "bias must be real" is again misleading. As stated in my submissions the test is reasonable apprehension of bias. The Applicant does not have to show "that there is a high probability that the decision maker will not approach the hearing fairly" as claimed by the crown solicitor. Rather, the test is what I have stated at [12] of my submissions - that there is a possibility and not a probability. See also comments of Basten JA in McGovern at [74] where His Honour states the level of satisfaction is "below that of a probability.

6. The Respondent's argument is discredited by the holding of McGovern where the NSW Chief Justice said at [14] that the Australian test for apprehension of bias, as expressed in terms of two "mights", sets a low threshold. This is consistent with my submissions at [11].

7. Basten JA in McGovern at [73] endorses the Chief Justice where His Honour says that the test for actual bias is stringent but not reasonable apprehension of bias "because the test for apparent bias is set at a lower level".

8. In response to its submission [9] I reject the Respondent's contentions. Its claim that the "without prejudice" letter was a privileged communication concerning a genuine attempt to settle the matter is misleading. The fact is that the Respondent had already lost (waived) privilege over the document in light of the McAtee statement. The "without prejudice" letter was nothing more than a face saving exercise by the Respondent to keep it out the public domain (that is, not referred to in the member's final decision). There was nothing to settle.

9. I also challenge the Respondent's assertion that the member "heard from both parties and decided not to admit it". The member did not even see the "without prejudice" letter as it was not on the file at the time, hence the Respondent's claim that the member "was engaged in a genuine debate" strains credibility.

10. As to the Respondent's support of the member regarding the law society complaint comment, this is disputed. I refer to and stand by my submissions at [18]. The Respondent's support for the member is misplaced because the authorities make it clear that it is the public's impression (of which the Applicant is a member) which is important, not the crown solicitor's or its client. The comments of Basten JA in McGovern at [83] makes this clear:

"Ultimately it is the affected party whose confidence in the system may be seen to be most nearly affected."

11. As stated in my submissions at [15] - [19] I was denied any real opportunity to make submissions on the admissibility because the member had already predetermined the issue. There is authority for the proposition that the "without prejudice" rule has exemptions, and can be set aside on the basis of misrepresentation, fraud or undue influence - see Underwood v Cox (1912) 4 DLR 66. The member acted on the basis that I had no ground to challenge the crown solicitor argument because the letter was impressed with words "without prejudice".

12. In response to [10] of the Respondent's submissions, this is disputed. There is clear connection between the member's conduct and his inability to decide my applications with an open mind. I again refer to my submissions on the issue at [20] - [22] and the authorities in support. It is not simply the member's "questioning" which is at issue. Rather, it is the manner in which he did it and the impression I formed about his appearance of bias. Again, the comments of Basten JA cited above are instructive.

13. In response to [11] of the Respondent's submission, I reject the crown solicitor's assertion that the member was simply "seeking clarification" when he questioned me about the documents. I refer to my submissions on the issue at [23] - [24]. Contrary to the Respondent's submission it was not a legitimate question since all issues were already canvassed in the parties submissions.

14. In response to [12] of the Respondent's submissions, this vigorously challenged as per my submissions at [25] - [30]. The crown solicitor's claim that the member was properly engaged in "active case management" is not only self-serving, but seriously flawed. Once again the crown solicitor is improperly using case law to manipulate the outcome.

15. The Johnson case has no application since the comments made by the High Court were made in reference to the courts, not tribunals which are creatures of statute, having different trappings.

16. Second, the crown solicitor's argument is discredited by the decision of Spigelman in McGovern who says that the statute must be the starting point, not the case law at [6]:

"The case law on judicial decision making is not a starting point when determining the application of the apprehended bias test in a specific context. The statute must be the part of the assessment from the outset and not treated as some kind of qualification of a prima facie approach."

17. As stated in my submissions at [30] there is nothing in the ADT legislation which supports crown solicitor's argument. To the contrary, the legislation suggests that the member's further involvement with the case is totally untenable. There is no necessity that the member should decide the two applications.

18. Third, the Respondent's argument is not supported by the Huang decision cited in my submissions at [27]. That case clearly demonstrates that "active case management" cannot override the principles of natural justice.

19. Fourth, case law from other jurisdictions further discredit the crown solicitor's active case management defence. For example, in Muir the NZCA refers to the English Court of Appeal case AWG Group v Morrison [2006] 1 WLR 1163 and states that the decision maker must be disqualified in a case of apparent bias at [51]:

"This disqualification is not a discretionary case management decision reached by weighing various relevant factors (such as inconvenience, costs, and delay) since there was either a real possibility of bias or there was not (at [6])".

20. The NZCA goes on to explain why the crown's case management argument must be further rejected (citing AWG case at [9]):

"Where the hearing has not yet begun, there is scope for the sensible application of the precautionary principle [P]rudence naturally leans on the side of being safe rather than sorry".

21. In response to [13] of the Respondent's ultimate claim that the member should not disqualify himself, it must be rejected. My submissions and the supporting authorities clearly demonstrate that a reasonable lay observer might apprehend that the member might not bring an impartial mind to decide my two review applications in light of his conduct and association. Such standard has been consistently enforced by the courts.

22. As the NZCA eloquently stated in Muir at [62]:

"This standard emphasises to the challenged judge that a belief in her own purity will not do; she must consider how others would view her conduct."

23. It is therefore submitted that in the interests of justice the member should disqualify himself.

Discussion

1. While it is by no means clear, the Applicant appears to argue that the Planning Meeting referred to were preliminary conference under section 74 of the ADT Act, and objects to my determining the matter under section 74(5). That section provides:

(1) The Tribunal may, before formally commencing to determine an application, confer informally with, or arrange for a member or assessor to confer informally with, the parties to the proceedings in a preliminary conference and make any determination with respect to the proceedings that is agreed to by the parties.

(2) If proceedings are referred under this section to a member or an assessor and the parties agree to the determination of the member or assessor, the determination has effect as a decision of the Tribunal.

(3) (Repealed)

(4) If the proceedings are not determined under this section and proceed for a formal determination by the Tribunal:

(a) evidence is not to be given, and statements are not to be made, concerning any words spoken or acts done at a conference held in accordance with this section unless the parties otherwise agree, and

(b) any member or assessor who presided over a preliminary conference in respect of the proceedings may participate as a member of the Tribunal determining the proceedings, or as an assessor in those proceedings, unless:

(i) a party to the preliminary conference objects to the member or assessor further participating in the proceedings, and

(ii) the party demonstrates in that objection that the further participation of the member or assessor is likely to prejudice the party's case.

(5) For the purposes of subsection (4) (b), a party objects to a member or assessor further participating in proceedings only if:

(a) the objection is lodged with the Registrar within 14 days after the conclusion of the preliminary conference (or within such other period as may be prescribed by the rules of the Tribunal), and

(b) the objection is in such form as may be prescribed by (or approved under) the rules of the Tribunal.

(6) The President may direct that a preliminary conference is to be held under this section in the case of any applications made to the Tribunal of a kind specified in the direction.

1. The Planning meeting conducted on 10 September 2013 and 8 October 2013 were not listed as or conducted as preliminary conferences under section 74. I made no determination of the issues during that hearing. I made directions for the filing of further material and submissions and decided to determine the issue on the papers.

1. In the circumstances, section 74 of the ADT has no role to play.

1. The law in relation to the issue of bias is settled. In the present matter I understand that the Applicant is alleging Apprehended Bias and not actual bias.

1. Apprehended bias exists when 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. In Ebner, a majority of the High Court explained that application of this principle requires two steps:

First, it requires the identification of what it is said might lead a judge ... 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.

1. In LB v Hunter New England Area Health Service [2009] NSWADT 101, Deputy President Handley considered the types of bias. At paragraph 9 of his decision he referred to an explanation of the bias rule in a publication of the Commonwealth Administrative Review Council, Decision Making: Natural Justice (Best Practice Guide 2, August 2007), at pp 3 - 4:

'Actual bias' means that the decision maker has a predisposition to decide the matter otherwise than with an impartial and unprejudiced mind. 'Apparent bias' means that in the circumstances a fair-minded observer might reasonably suspect that the decision maker is not impartial. In most cases, apparent bias is enough to disqualify a person from making a decision.

Whether a decision maker is disqualified or not is a legal question. A decision maker is not disqualified simply because a person whose interests are affected by the decision alleges bias or asks for a different decision maker. It is not about whether an affected person thinks the decision maker is biased; it is about whether a fair-minded observer would reasonably suspect bias.

An apprehension or suspicion of bias can arise from things the decision maker says or does not say that suggest he or she is either partial or hostile to one side or has formed prejudgments and is not open to persuasion. A closed mind might be demonstrated by ignoring evidence or dismissing it for insufficient reason. Actual or apprehended bias can arise if a decision maker plays conflicting roles, such as making allegations and fact finding."

1. The Appeal Panel discussed the subject in Khera v Law Society of New South Wales (LSD) [2005] NSWADTAP 29:

Bias

6 A fundamental requirement of procedural fairness is that any proceedings must be conducted by a court or tribunal without bias. Justice 'should manifestly and undoubtedly be seen to be done': R v Sussex Justices; Ex p McCarthy [1924] 1 KB 256 at 259. Bias can be actual or ostensible.

Actual Bias

7 Drummond J in Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 summarised the principles relating to actual bias at 133-134 (citations omitted):

'(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. Though relevant to proof of actual bias, displays of irritation or impatience and the use of sarcasm by the decision-maker during the hearing are not, without more, generally sufficient to establish such bias, proof of which requires a finding on a question of fact, having regard to all the circumstances of the case.'

8 Present Case. The appellant represented himself at hearing, as he has done before the Appeal Panel. He points to the fact that many of his numerous applications and objections were rejected. He claims that similar submissions from the Law Society were treated inconsistently with the rulings he received. The fact that numerous applications or objections are made and most are rejected may indicate no more than that the applications or objections were of little or no merit.

9 We have reviewed the transcript. It reflects no more than the kind of cut and thrust between the parties and with the bench that might be expected in a vigorously contested proceeding where the appellant's career is at stake. Some indication that the Tribunal was not actually biased against the appellant is provided by the fact that it did not find proven the allegations of misconduct made against the appellant in respect of three of the six matters it examined. ...

Apprehended Bias

10 On the other hand, an allegation that a court or tribunal appears to be biased, and therefore its decision should be set aside, is less difficult to establish.

'[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': Ebner v The Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group [2000] HCA 63; (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] (footnotes omitted).

11 Their Honours continued:

'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.'

12 The 'reasonable apprehension' test is less stringent than the approach preferred in the United Kingdom (at least in the case of criminal adjudications: de Smith, Wolff & Jowell, Judicial Review of Administrative Action (5th ed 1995) [12-011]) - the 'real danger' test: see generally the discussion in Webb v R [1994] HCA 30; (1994) 181 CLR 41 at 50 ff per Mason CJ, McHugh J; and at 71 per Deane J. In the High Court cases prior to Ebner, the fair minded lay observer was usually also described as a 'fair minded and informed' observer, and we have approached the question raised by this case on that basis. The following observations of Deane J in Webb v R at 73 are, we consider, of direct relevance to this case (citations omitted):

'If the test of a reasonable apprehension on the part of a fair-minded observer with knowledge of the material objective facts fell to be applied by reference only to those facts that were apparent at the time, there would be much to be said for the view that the real likelihood or real danger test should be retained to be applied in cases where some of the damaging material facts - whether prior, contemporaneous or subsequent - as ascertained by the appellate court were not known at the time of the proceedings. In my view, however, the material objective facts are not so confined for the purposes of the test. The fair-minded observer is a hypothetical figure. While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court, as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court.'

13 Recently the Court of Appeal referred to the special considerations that can affect the application of the principle to specialist tribunals. In Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Ors [2004] NSWCA 291, Giles JA (with whom Sheller and Ipp JJA agreed) said:

'22 In determining whether a decision-maker is disqualified by reason of an appearance of bias the question is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-4; Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 at [6]; Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 75 ALJR 982 at [27].

23 The nature of the tribunal and the proceedings must, however, be taken into account. In Re Finance Sector Union of Australia; ex parte Illaton Pty Ltd [1992] HCA 30; (1992) 66 ALJR 583 at 583 it was said that "the precise practical requirements of [the Livesey] principle vary from case to case. They will be influenced by the nature, function and composition of the particular tribunal ". Speaking of the Australian Industrial Relations Commission, it was said at 583-4 -

"The nature of industrial relations in this country makes it inevitable, that in a particular industry, the leading employer and employee organisations, and their officers, will be frequently involved in dispute with one another. Obviously the functioning of the Commission requires that its members participate in the determination of matters in circumstances where they have a familiarity with the industry in which the particular dispute arises, with the context of that dispute and, inevitably, with facts relevant to the dispute and with one or more of the parties to the dispute. In that regard, it has long been recognised that, in most cases, that familiarity is an advantage rather than a disqualifying factor."

24 Again, in Re Polites; ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78 it was said at 86-7 that -

" ... the test in Livesey cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal's power's exercised. Qualification for membership cannot disqualify a member from sitting."

25 And again, the system of judicial appointment from senior practitioners means that there will often have been past professional association between a judge and counsel or solicitors appearing in proceedings, or even a party. Mere past association will generally not be held to give rise to a reasonable apprehension of bias, although it is a question of degree: see Re Polites; ex parte Hoyts Corporation Pty Ltd at 91 and other cases collected in Aussie Airlines Pty Ltd v Australian Airline Pty Ltd [1996] FCA 1308; (1996) 135 ALR 753 at 759-61. In Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272 at 276 it was said that public knowledge and acceptance of such past professional association was "built into the legal system".'

1. While the Applicant has referred to a number of authorities not mentioned by the Respondent, the position remains that the test as to whether there is a reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power being exercised. As noted, the test requires two steps: Ebner v Official Trustee in Bankruptcy.

1. As was noted by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson at paragraph [11] (citations omitted):

That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".

1. As Ms Johnson has submitted, the High Court has held that a decision maker should not be too ready to agree to a request by a party that he or she disqualify themselves.

1. In McGovern v Ku-ring-gai Council [2008] NSWCA 209 Spigelman CJ (with whom Campbell JA agreed) said:

"14 Although the Australian test for apprehended bias, as expressed in terms of two "mights", sets a low threshold, with respect to a pre-judgment case the identification of what constitutes a lack of 'impartiality' or of 'prejudice' in the mind of the decision-maker involves an issue of some specificity.

15 The test for pre-judgment in Australian law is, in my opinion, to the same effect as that identified by the Supreme Court of Canada in Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170 where, in the terminology of the majority judgment: the decision-maker must be "capable of being persuaded" (at 1197c); pre-judgment is of such an "extent" that contrary representations "would be futile" (at 1197d-e); statements said to constitute pre-judgment must be an "expression of final opinion ... which cannot be dislodged" (at 1197f); the position of the person must be "incapable of change" (at 1197g). The "incapable of persuasion" test was applied again in Save Richmond Farmland Society v Richmond [1990] 3 SCR 1213 at 1224g.

16 A similar approach has been adopted in Australia on pre-judgment issues in Jia Legeng where, in the joint judgment of Gleeson CJ and Gummow J, their Honours referred to a test of whether the decision-maker "is open to persuasion" (at [71] and [105]), or whether the "conclusion already formed [is] incapable of alteration, whatever evidence or arguments may be presented" (at [72]).

17 To similar effect are the observations of Hayne J, namely, that a decision-maker will apply his or her opinion "without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case" (at [185]). His Honour went on to refer to the test terms of whether "the evidence will be disregarded" (at [186])."

1. The planning meetings were not recorded and therefore it is not possible to refer to a transcript of what transpired, however, my recollection accords with that of Ms Johnson.

1. I do not accept that the matters to which the Applicant has referred establish that I am actually biased.

1. Nor do I consider that an informed, fair-minded lay observer, with knowledge of the issues raised by the Applicant, might reasonably apprehend that there is the possibility I might not bring an impartial and unprejudiced mind to the determination of these matters.

1. I note the view expressed by Basten JA in Barakat v Goritsas (No 2) [2012] NSWCA 36 at paragraphs [10] - [14] in regard to the question of whether findings or comments made in the course of interlocutory proceedings were likely to offend the rule against apprehended bias if they are not directly related to a disputed issue:

10. In Ebner, there were two cases before the Court in each of which it was said that the trial judge was disqualified by reason of a shareholding in, either a party to the proceedings or, in the case of Mrs Ebner, a person with an interest in the outcome of the proceedings. A similar principle applies in circumstances where the conduct of the trial judge is said to give rise to an apprehension of bias, because "the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making": Michael Wilson & Partners [Ltd v Nicholls [2011] HCA 48; 86 ALJR 14] at [63].

11. These comments illustrate the risk which can arise if the term "prejudgment" is used imprecisely. Properly used, it must refer to the apparent formation of a view on the part of the trial judge in respect of an issue which will (or may) need to be determined at the trial. Adapting the "central and determinative question" identified by the plurality in Michael Wilson & Partners, at [68], it is necessary to ask, "might what was done in connection with [the interlocutory] applications reasonably cause a fair-minded lay observer to apprehend that the judge might not bring an impartial mind to the resolution of a question for decision at the trial?"

12. It is, accordingly, incumbent upon the party seeking recusal to identify the issues which will need to be determined, the conduct which gives rise to the apprehension and the logical connection between the conduct and the issues. There was a tendency in the applicants' submissions to gesture rather too sweepingly towards statements made by the judge expressing frustration with the applicants or, more usually, their counsel, without seeking to articulate the relevant reasoning by which the fair-minded lay observer would attribute a level of prejudgment warranting recusal.

13. For example, significant reliance was placed upon language used by the judge in the course of exchanges with senior counsel for the applicants which were said to reflect scepticism and later disdain for the applicants' case. Those submissions, however, did not squarely engage with the critical issue. The fair-minded lay observer must be taken to have heard the whole of the exchanges between counsel and the bench on the relevant days, with some understanding of what was appropriate conduct for both counsel and the court and what was not. The fair-minded lay observer is unlikely to apprehend bias against one party merely because the trial judge describes the behaviour of counsel for that party as disgraceful or tendentious, unless the observer would consider such epithets inapt to the extent of being unreasonable and indicative of an inability to bring an impartial mind to bear on the issues in dispute. For example, to describe as "tendentious" a submission which did not come to grips with the issues which has been identified, or needed to be identified might be seen as reasonable, particularly if counsel had been given more than one opportunity to address the issue. To describe the labelling of a submission by counsel as "tendentious" as "a very serious accusation" might itself fall into the characterisation it sought to dismiss: applicants' written submissions at par 80. That is because the complaint failed to identify in what way the "accusation" was not reasonable, given the context in which it was used.

14. It is necessary, rather, to commence by identifying the subject matter of the contempt proceeding, which his Honour listed for hearing before himself, and any conduct which might demonstrate a prejudgment of the issues to be determined in that proceeding.

1. In the present matters it is incumbent upon the Applicant to "identify the issues which will need to be determined, the conduct which gives rise to the apprehension and the logical connection between the conduct and the issues". In my view he has not done so.

1. I consider that the Applicant's complaint is really one that he did not like and disagrees with the directions I made. As a result, he claims that he will not get natural justice. I do not agree

1. In my view, the issues raised by the Applicant do not provide a ground for disqualification. As a result I refuse the Applicant's application that I disqualify myself.

1. These matters should be relisted for a planning meeting to determine the further conduct of the proceedings no less than 28 days from the date of this decision.

Decision

1. The Applicant's application that I disqualify myself is refused.

2. The matters are to be relisted for a planning meeting on a date to be determined

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 17 March 2014