Wharton v Conrad International Hotel Corporation

[2000] QSC 370

SUPREME COURT OF QUEENSLAND

CITATION:

Wharton v Conrad International Hotel Corporation [2000] QSC 370

PARTIES:

PATRICIA WHARTON
(first appellant)
JANELLE MURPHY
(second appellant)
LINDA WHARTON
(third appellant)
ROSLYN WHARTON
(fourth appellant)
ANNE WHARTON
(fifth appellant)
ROBERT WAITES
(sixth appellant)
v
CONRAD INTERNATIONAL HOTEL CORPORATION
(respondent)

FILE NO:

11106 of 1999

DIVISION:

Trial Division

DELIVERED ON:

23 October 2000

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2000

JUDGE:

Mullins J

ORDER:

1.  The appeal be allowed.
2.  The decision of Mr Greg Sowden, Member of the Anti-Discrimination Tribunal Queensland, made on 19 November 1999 be quashed.
3.  The matter be remitted to the Anti-Discrimination Tribunal Queensland, consisting of Member Mr Greg Sowden, for further hearing. 

CATCHWORDS:

COURTS AND JUDGES – BIAS – Tribunal Members – reasonable apprehension of bias – fair minded lay observer – whether sufficient basis for disqualification.

Anti-Discrimination Act 1991

Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411
Re JRL; ex parte CJL (1986) 161 CLR 342
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78
Vakauta v Kelly (1989) 167 CLR 568
The Queen v Watson; ex parte Armstrong (1976) 136 CLR 248
Webb v The Queen (1994) 181 CLR 41

COUNSEL:

A Vasta QC and DP O'Gorman for the appellants
LF Kelly for the respondent

SOLICITORS:

Queensland Aboriginal and Torres Strait Islanders Legal Services Secretariat Limited for the appellants

Allen Allen & Hemsley for the respondent

1. MULLINS J: This is an appeal pursuant to section 217 of the Anti-Discrimination Act 1991 ("Act") against the decision of Member Sowden ("the Member") of the Anti-Discrimination Tribunal ("the Tribunal") given on 19 November 1999 in which the Member disqualified himself from further dealing with and deciding the complaint of racial discrimination made by the appellants against the respondent.

1. The complaints arose out of incidents which the appellants alleged occurred in the early hours of 22 February 1997 when they attended a nightclub known as Fortunes Night Club operated by the respondent.  On 15 May 1997 the Anti-Discrimination Commission received complaints from the appellants alleging that they had been the victims of unlawful racial discrimination in respect of those incidents.  The appellants are of Aboriginal descent.

1. On 3 March 1998 the Anti-Discrimination Commissioner referred the complaints of the appellants to the Tribunal pursuant to section 166(1) of the Act.

1. The hearing was conducted in the Tribunal before the Member on 13 to 16 October 1998.  The first to fifth appellants were represented by Mr Vasta QC and Mr O'Gorman of Counsel represented the sixth appellant.  The respondent was  represented by Mr Horneman-Wren of Counsel at the hearing.

1. A short hearing was conducted before the Member on 19 January 1999 in respect of an application by the first to fifth appellants to reopen their case.  That application was refused.

1. Written submissions were filed by the respondent on 5 March 1999.  Written submissions were filed by the first to fifth appellants and by the sixth appellant on 17 March 1999.  The respondent filed a written submission in reply on 26 March 1999.      

1. From these written submissions the first aspect of discrimination based on their Aboriginality claimed by the first to fifth appellants was that they were refused drink service, because the bartender had made a decision to refuse to serve an Aboriginal man (who was neither the sixth appellant nor part of their group).  The second aspect of discrimination based on their Aboriginality claimed by the first to fifth appellants was the humiliation and embarrassment caused to them when, as they were leaving the nightclub, they were encircled by at least eight security officers employed by the respondent.  The first to fifth appellants argued that all other patrons on the respondent's premises who observed the security officers encircling them would conclude that they were being singled out for special attention.  They also argued that the encircling of the group was used as a method of encouraging them to leave.

1. The sixth appellant claimed that he was ordered to leave the nightclub.  It appears that a female patron of the nightclub complained to an employee of the respondent about an indecent assault and identified the sixth appellant as the perpetrator.  He claimed that he was ordered to leave because he was of Aboriginal descent and because he was in the company of, and associating with, other persons of Aboriginal descent, namely the first to fifth appellants.

1. Another complaint made by the first appellant was that after the sixth appellant had left the nightclub, she was approached by a security officer whom she states told her the sixth appellant had been ejected and that she should go downstairs to see him.  After the first appellant had done so, she claims that when she indicated to the security officers that she wanted to return to the rest of her group to ask them to leave with her, she was precluded from doing so because of her Aboriginality. 

1. The respondent defended the claims of the sixth appellant on the basis that it was acting in accordance with normal procedure in acting on the complaint of a female patron and that the sixth appellant was treated no less favourably than the respondent would have treated a non-Aboriginal person.  The respondent claimed that when the complaint was put to the sixth appellant, his behaviour was then unacceptable and it was for that behaviour (and not the complaint) that he was asked to leave.  The respondent defended the complaints of the first to fifth appellants about being refused drinks on the basis that the bartender had formed an opinion about the level of intoxication of some members of the group which justified that refusal and that it had nothing to do with their Aboriginality.  The respondent denied that the first to fifth complainants were encircled by security officers. 

1. On 22 July 1999 the Member convened a further hearing via a telephone hook up with Counsel for the parties in order to disclose that when looking through some of his precedents he came across a plaint which he had drafted in 1990 for a plaintiff ("plaintiff") suing for civil assault which he described as "a most serious civil assault" against Conrad International and three of its security officers.  The assault was alleged to have occurred on 14 September 1988 at the respondent's premises.  The particulars were kicking of the plaintiff by the second, third and fourth defendants who were the security officers.  The plaint alleged that the plaintiff suffered an acute right extradural haematoma, fracture of the right temporal bone, multiple bruises of the body and that he lost 1.5 litres of blood from his head.  Damages of $50,000 were sought in the plaint.  In the course of this hearing, the Member stated:

"Now, it's amazing how things come back to you over a day or two, and I can recall other things, that there were more security people involved but the police were involved in the matter, they took a lot of photographs of him at hospital, they showed a lot of bruising, etcetera.  The police interviewed the security people.  The names on the plaint, the three names there I don't think – I've had a look and they're not witnesses in this particular case, but having said that there were a lot more – on our case back then – security people involved, quite a number who seem not to see anything except the allegation that my client was running away from them, apparently, and he slipped over in the wet.  And that was the defence, it would seem."               

1. The Member also stated that "all of the security officers seemed to not take any blame for anything and didn't see any kicking or assault".  The Member described the bruises of the plaintiff as "so horrendous that I can remember trying to see how someone could get that number of bruises from a fall".  The Member could recall that the plaint was defended and that he drafted particulars of the plaint.  He could also recall speaking on a number of occasions with the solicitors who instructed him in relation to the plaint, but thought there may have been a change of solicitors, because he had no involvement in other formal steps in the action after the particulars. 

1. The Member therefore raised with Counsel whether he should continue in the matter because of a perception of bias.  He stated:

"Now, can I say that like all judicial officers, and members of Tribunals, we all try to do the right thing, and I would not be, in my own conscious mind, swayed, but one has to consider whether there is some subconscious element to it that when someone comes to write a judgment, and finish deliberating, that in some way I could be swayed."

He also stated:

"There's just one thing and that is that there were other security officers involved.  I just want to mention – I think I did – and I don't know whether they're the same or different or what.  I've just got no idea.  But, anyway, how do you see the matter?"

1. The parties filed written submissions in relation to possible bias.  The appellants submitted that the Member should proceed to deal with the matter, as a fair minded lay observer would not entertain a reasonable apprehension of bias on his part.  The respondent submitted that the Member should disqualify himself from deciding the case on the basis of bias. 

1. The Member delivered a written decision on 19 November 1999.  The Member stated:

"However, I am persuaded by the respondent's submission that determining this complaint involves questions of credit in relation to the respondent's security staff.  I am of the view that a lay observer and the respondent in all the circumstances may reasonably apprehend that I may be influenced by a view that I may have previously reached about the credit of the respondent's security staff in the earlier matter, and therefore might not bring an impartial and unprejudiced mind to the resolution of the question involved in this case." 

The Member therefore disqualified himself from further dealing with and deciding the complaint of the appellants.

1. The appellants appeal to this Court on the ground that the decision of the Member was wrong in law in that there was insufficient basis for the Member to disqualify himself.  The respondent has filed a notice of contention which seeks to support the decision of the Member on grounds other than those relied on by the Member.

1. The basic principle is that a judge should not sit to hear a case if in all the circumstances a fair minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the question involved in it:  The Queen v Watson; ex parte Armstrong (1976) 136 CLR 248, 258-263; Livesey v New South Wales Bar Association (1983) 151 CLR 288, 293-294; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 87. The principle is equally applicable to a quasi-judicial decision maker such as the Member: Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, 86-87.

1. Many of the authorities in which the question of apprehension of bias on the part of the decision maker has been considered also warn of the need for caution when applications for disqualification are made, in order to ensure that there is no abdication of the judicial function.  It was stated in Livesey v New South Wales Bar Association at 294:

"On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court."

It was stated by Mason J in Re JRL; ex parte CJL (1986) 161 CLR 342 at 352:

"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."

1. The test of apprehension for bias is from the viewpoint of the fair minded lay observer, rather than the perception of an experienced lawyer.  In Vakauta v Kelly (1989) 167 CLR 568 that distinction is drawn in the joint judgment of Brennan, Deane and Gaudron JJ at 573-574 as follows:

"An experienced lawyer would appreciate the ability of a trial judge to ensure that preconceived views do not cause the actual decision to be tainted by prejudgment or bias.  The likelihood that the lay observer would not lies at the heart of the requirement of the appearance as well as the reality of impartial justice.  To borrow and adapt words used by Mahoney J.A. in his dissenting judgment of the Court of Appeal, the comments in the judgment were such as to cause 'reasonable apprehension' on the part of a lay observer that the judgment itself was, 'in the end', affected by bias."  

In Webb v The Queen (1994) 181 CLR 41 Mason CJ and McHugh J in dealing with the authorities on disqualification for bias stated at 52:

"They indicate that it is the court's view of the public's view, not the court's own view, which is determinative."

1. It is apparent from how the test was expressed in The Queen v Watson; ex parte Armstrong and Livesey v New South Wales Bar Association that the test is concerned with the apprehension of the possibility rather than the probability of bias.  This was the view of the majority in Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411, 419, 439-440, 448.

1. In this matter the credit of the security officers who gave evidence was clearly an issue for the Member.  It was submitted on behalf of the respondent that the role played by the security officers employed by the respondent on 22 February 1997 would need to be considered by the Member in relation to:

(a)         the allegation by the first to fifth appellants that the security officers encircled them, singling them out for apparent special attention;

(b)         the contention of the sixth appellant that he had been identified as the perpetrator of an alleged sexual assault against a female patron, because of his Aboriginality;

(c)         the contention on behalf of all the appellants that the number of security officers that attended on them when they were leaving was excessive;

(d)        the evidence of the sixth appellant in cross-examination that he believed that the complaint about the alleged sexual assault was invented by the respondent's staff (although that was not the subject of complaint by him in the proceedings, nor the subject of the written submissions filed on his behalf);

(e)         the evidence given by one security officer Mr Staiti that he had received the complaint of that alleged sexual assault.

1. The respondent also sought to rely on a submission made on behalf of the first to fifth appellants in the written submissions filed on the Tribunal on 17 March 1999 as follows:

"Of course, if the Tribunal finds that in view of the whole of the evidence no genuine complaint was made and that the complaint was fabricated for the purposes of using it as an excuse to remove the large group of Native Australians then this is a particularly serious form of race discrimination.  Because it does not directly affect our five clients we make no submissions in that regard since, irrespective of the truth or otherwise of the complaint, the discrimination against the first five complainants stands as a separate and distinct series of events which cannot be justified on any basis and certainly does not depend on the truth or otherwise of the complaint made against the sixth complainant."

The effect of the entire submission was therefore that there was no submission on behalf of the first to fifth appellants that there was no complaint of alleged sexual assault made against the sixth appellant. 

1. I was informed during the course of hearing this appeal that seven security officers gave evidence before the Member and there were concessions made by some security officers that encircling of the first to fifth appellants did occur and there were denials by other security officers that it had occurred. 

1. The objective facts in respect of the matters which gave rise to the conclusion by the Member that he should disqualify himself for apprehended bias were:

(a)         in or about 1990 the Member as a practising barrister was briefed to draw a District Court plaint and particulars of the allegations in that plaint, considered the defence and consulted on a number of occasions with the solicitors who briefed him in respect of the plaintiff's allegation that he was assaulted by three security officers employed by the respondent on 14 September 1988;

(b)         that apart from the three security officers who were named as defendants in that District Court action, there were other security officers who were interviewed by the police in relation to that alleged assault who alleged that they did not see any kicking or assault;

(c)         at the time the Member was briefed in relation to the matter he formed the view that the bruising sustained by the plaintiff as a result of the alleged assault was "horrendous";

(d)        from what the Member disclosed about his recollection of his involvement in the matter for which he drew the District Court plaint in 1990, it was likely that he had formed an adverse view of the conduct or truthfulness of the security officers of the respondent which included both the defendants in that action and the other security officers who were interviewed by the police in relation to the alleged assault; 

(e)         the proceedings in the Tribunal which involved allegations against and evidence from security officers employed by the respondent did not remind the Member during the four days of evidence of his involvement in 1990 with that District Court action;

(f)         it was not until after the Member had reserved his decision and was looking at some of his precedents that he saw the District Court plaint which he had drawn in 1990 and the memory of his involvement in that District Court action was recalled;

(g)         he then recalled the matter distinctly;      

(h)         none of the three security officers who were defendants in the District Court action were witnesses in the proceedings in the Tribunal;

(i)          it was unknown whether any of the unidentified security officers who may have been involved in the incident the subject of the District Court action had given evidence in the proceedings in the Tribunal.              

(j)         when the Member raised the issue of apprehension for bias with Counsel, he expressly stated that "I would not be, in my own conscious mind, swayed, but one has to consider whether there is some subconscious element to it that when someone comes to write a judgment, and finished deliberating, that in some way I could be swayed".

1. What would strike any fair minded lay observer considering these objective facts is the dissimilarity between the role of the security officers in the 1988 incident, and the role of the security officers in the incidents involving the appellants and that was emphasised by the failure of the proceedings in the Tribunal to remind the Member of his involvement in 1990 with the plaintiff's allegations arising from the 1988 incident. 

1. It would also occur to the fair minded lay observer that the period of 9 years separating the incident, the subject of the District Court action, and the incidents which were the subject of the hearing in the Tribunal would reduce the likelihood that any of the security officers who were involved in the 1988 incident were also involved in the incidents on 22 February 1997 and gave evidence before the Member.  The fair minded lay observer would concede that the possibility of some coincidence in identity in the security officers involved in both incidents in 1988 and 1997 could exist. 

1. Although the Member looked at this possibility from the point of view that it was not known whether any of the unidentified security officers from the 1988 incident gave evidence in the proceedings in the Tribunal, it was also the fact that it was not known that any of the seven security officers who gave evidence before the Member was involved in the 1988 incident. 

1. Although the Member acted with prudence in drawing attention to the parties that he could not rule out the possibility of subconscious influence on his decision making process, the question of apprehension of bias is not determined from the Member's viewpoint.  It is for the fair minded lay observer to judge whether risk of that subconscious influence was such as to affect whether the Member might bring an impartial and unprejudiced mind to resolving the issue of credit of the security officers who gave evidence before him.

1. Proceeding on the basis that the Member had formed an adverse view of the credit of the security officers involved in the 1988 incident, a fair minded lay observer would conclude that the risk of that adverse view affecting the Member's acting in an impartial and unprejudiced way in resolving the credit of the security officers in the proceedings before him would be fanciful.  This is because of the lapse of time between the incidents and the differences in the allegations made arising from the 1988 incident and the 1997 incidents.  In the circumstances the fact that there was an issue of credit in relation to the security officers involved in both incidents and that it could not be excluded that one or more of the seven security officers who gave evidence before the Member may have been involved in the 1988 incident are not sufficient links between the proceedings for a fair minded lay observer to entertain a reasonable apprehension of the possibility of bias on the part of the Member. 

1. The Member was therefore over cautious in disqualifying himself from further dealing with and deciding the appellants' complaints.

1. I therefore order that:

1.          The appeal be allowed.

2.          The decision of Mr Greg Sowden, Member of the Anti-Discrimination Tribunal Queensland, made on 19 November 1999 be quashed.

3.          The matter be remitted to the Anti-Discrimination Tribunal Queensland, consisting of Member Mr Greg Sowden, for further hearing. 

1. I will hear submissions from the parties on costs.