Turner v Commissioner, Corrective Services NSW

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Turner v Commissioner, Corrective Services NSW [2016] NSWCATAD 15
Hearing dates:	On papers after 8 January 2016
Date of orders:	20 January 2016
Decision date:	20 January 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	The applicant’s application for Magistrate Hennessy to disqualify herself from hearing this matter is refused.
Catchwords:	PROCEDURAL FAIRNESS – apprehended or actual bias
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW)
Cases Cited:	Attorney General of NSW v Lucy Klewer [2003] NSWCA 295 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Livesey v NSW Bar Association (1983) 151 CLR 288 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Turner v Commissioner of police, NSW police force [2014] NSWCATAP 4 Wentworth v Graham [2003] NSWCA 240
Category:	Procedural and other rulings
Parties:	Donovan Turner Commissioner, Corrective Services NSW
Representation:	Appellant (self-represented) Crown Solicitor (Respondent)
File Number(s):	123014
Publication restriction:	Nil

reasons for decision

Introduction

1. The applicant in these proceedings, Mr Turner, has applied for me to disqualify myself from hearing this matter. The respondent, the Commissioner of Corrective Services, does not press a particular position in relation to the application but provided written submissions.

2. These proceedings concern written allegations of contempt under s 73 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). Mr Turner has made those allegations against the Commissioner in relation to the conduct of the Commissioner’s officers and the solicitors in these proceedings. The substantive proceedings are for a review of a determination made by the Commissioner under the Government Information (Public Access) Act 2009 (NSW).

3. The relevant conduct or circumstances relied on by Mr Turner as a basis for the application for me to disqualify myself can be summarised as follows:

1. my involvement in hearing and determining an internal appeal to which Mr Turner was a party: Turner v Commissioner of police, NSW police force [2014] NSWCATAP 4;

2. the fact that in 2013, Mr Turner lodged “a number of complaints” regarding my “unlawful actions and unreasonable decisions”; and

3. remarks I allegedly made in these and other proceedings in which Mr Turner is a party.

The rule against bias

4. The rule against bias is a principle of procedural fairness preventing decision makers from making decisions if they are actually or ostensibly biased. 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 a Tribunal be independent and impartial.

5. Mr Turner uses words and phrases in his submission such as “conflict of interest” and “bias” but does not state whether or not he is asserting actual or apprehended bias. In the absence of any alleged conduct which would amount to actual bias, I have assumed…