Wood v Chief Executive, Department of Employment, Economic Development and Innovation

[2011] QCATA 116

CITATION: Wood v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCATA 116

PARTIES:	Gregory Mark Wood (Applicant)
v
Chief Executive, Department of Employment, Economic Development and Innovation (Respondent)

APPLICATION NUMBER:            APL029-11               

MATTER TYPE: Appeals

HEARING DATE:   17 May 2011

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President
Michelle Howard, Member

DELIVERED ON:   25 May 2011

DELIVERED AT:   Brisbane

ORDERS MADE:      The appeal is dismissed.

CATCHWORDS : 

APPEAL – NATURAL JUSTICE – where a three-Member QCAT Tribunal affirmed earlier decisions of the Chief Executive, Department of Employment, Economic Development and Innovation to remove the N1 fishery symbols from Mr Wood’s fishing boat licences – where Mr Wood seeks to appeal that decision on the grounds that one of the Tribunal Members was biased – where there was no objection made at the hearing on Mr Wood’s behalf through legal representatives – where Mr Wood makes a mere assertion of bias – whether the appeal should be allowed

Queensland Civil and Administrative Tribunal Act 2009, ss 28, 142, 143, 146

British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429, cited
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, cited

Elsafty Enterprises Pty Ltd v Gold Coast City Council [2011] QCA 84, cited
Greenwood v Winsor [2008] QCA 415, cited

Kioa v West (1985) 159 CLR 550, cited
Laws v Australian Broadcasting Tribunal (1990) CLR 70, cited

Mbuzi v University of Queensland [2010] QCA 336, cited
Parkinson v Holden [2101] QSC 90, cited
Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 107 ALR 581, cited
Stephens v Stephens (2010) 43 Fam LR 106, cited
Stephens v Stephens (Disqualification) [2010] FAMCAFC 206, cited

Vakauta v Kelly (1989) 167 CLR 568, cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Wood, representing himself
RESPONDENT:	Ms Suzannah Payne, Legal Officer, representing the Chief Executive, Department of Employment, Economic Development and Innovation

REASONS FOR DECISION

PRESIDENT:

1. I have had the benefit of reading the reasons of Ms Howard, in draft.  I agree with her reasons, her conclusions and the order she proposes.

MEMBER MICHELLE HOWARD:

1. Mr Wood appeals the decision of a three-Member QCAT Tribunal which affirmed earlier decisions of the Chief Executive, Department of Employment, Economic Development and Innovation (DEEDI).  The decisions removed the N1 fishery symbols from Mr Wood’s fishing boat licences, QFV10092G, FHVF, and QFV12183E, FYQT.

Grounds of Appeal

1. The appeal is brought, primarily, on the grounds of the alleged bias of a QCAT Member, Dr Cullen-Mandikos, who was one of the three Members constituting the Tribunal at the final hearing.  

1. Mr Wood says that some months prior to the final hearing and in the course of a directions hearing, Dr Cullen-Mandikos made orders refusing to issue some notices to attend and/or produce documents which had been requested by him; and varied the basis on which several other notices were to issue.  Mr Wood asserts that, on that occasion, Dr Cullen-Mandikos was negative towards him and more positive towards the DEEDI representatives.  He says, in this appeal, that he considered she was biased.

1. The decision made at the directions hearing was not appealed, although Mr Wood asserts he was unaware that he could have sought to appeal.  Mr Wood now says that he considers that his case at the final hearing was compromised as a result of that earlier decision.

1. DEEDI contends that the notices to attend or produce which Dr Cullen-Mandikos refused to issue, or which she varied, did not disadvantage Mr Wood.  It says that some of them were unnecessary because DEEDI agreed to provide its records; others were unnecessary because DEEDI advised the Tribunal that it did not contest some factual matters to which the notices were said to relate; and that, in one instance, the evidence sought to be adduced was irrelevant to the issues before the Tribunal.

1. It is appropriate to observe that these submissions are persuasive.  The observation is academic, in the sense that Mr Wood never sought to appeal Dr Cullen-Mandikos’ orders about the notices; but the submissions from DEEDI illustrate that, even if Mr Wood had got only the orders he wished, the outcome of the QCAT proceeding would not have been different – and, that the Member’s decision was fair and reasonable in the circumstances confronting her.

1. Subsequently, Dr Cullen-Mandikos was a Member of the Tribunal which decided the proceeding.  Mr Wood was represented by his lawyer at the hearing, but no objection was taken to her involvement.

1. DEEDI submits, in essence, that merely sitting on a panel which makes an adverse finding cannot constitute bias.

The Law

1. The grounds of appeal raise a question of law: Mr Wood argues, in essence, that he has been denied natural justice.  It is incontestable that, in conducting a proceeding, QCAT is required to observe natural justice.[1]

   [1]        Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 28(3).

1. The rules of natural justice are flexible, and depend upon the statutory framework governing the Tribunal in question.[2]  One component of natural justice is the rule against bias, which requires that a decision-maker[3] not have an interest in the subject matter to be decided, nor bring a prejudiced mind to the matter.[4]  Bias may be actual, or apprehended.[5]

   [2]        Kioa v West (1985) 159 CLR 550 at 584-585.

   [3]The principle applies not only to judges, but also to many other types decision-makers, including Tribunal Members: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 107 ALR 581.

   [4]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Laws v Australian Broadcasting Tribunal (1990) CLR 70.

   [5]        Vakauta v Kelly (1989) 167 CLR 568; Stephens v Stephens (2010) 43 Fam LR 106.

1. A decision-maker who may reasonably be thought to be biased will be disqualified from determining a proceeding.  In some circumstances, a provision of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) provides for automatic disqualification of a Member, but the section is not applicable in the circumstances of this proceeding.[6]

   [6] QCAT Act, s 169.

1. A reasonable apprehension of bias exists if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.[7]

   [7]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; Laws v Australian Broadcasting Tribunal (1990) CLR 70; Greenwood v Winsor [2008] QCA 415; Elsafty Enterprises Pty Ltd v Gold Coast City Council [2011] QCA 84.

1. There are two steps in the application of the test: identification of what is alleged that might lead the decision-maker to decide the case other than on its merits, and secondly, the logical connection between the matters identified and the feared digression.[8]

   [8]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Stephens v Stephens (Disqualification) [2010] FAMCAFC 206.

1. Mere reference to a decision-maker’s past decisions is insufficient to ground disqualification: there must be grounds upon which it might be thought that the particular decision-maker will not decide the case impartially.[9]  An adverse ruling against a litigant does not establish apprehended bias.[10]  If bias is not objected to at the time it is apprehended, the right to object may be waived.[11]

   [9]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 107 ALR 581.

   [10]        Mbuzi v University of Queensland [2010] QCA 336.

   [11]        Vakauta v Kelly (1989) 167 CLR 568; Stephens v Stephens (2010) 43 Fam LR 106.

1. As the appeal is on a question of law, the Appeal Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter to the Tribunal who made the decision for reconsideration; or make other orders it considers appropriate.[12]

Discussion and decision

[12] QCAT Act, s 146.

1. Mr Wood does not allege that Dr Cullen-Mandikos said anything, at the directions hearing or the final hearing, which led him to the view that she was biased against him.  He merely says, in effect, that he considered she was more negative towards him and more positive towards DEEDI at the directions hearing, in that she did not make all of the directions he sought and he disagreed with some of her orders.  A mere assertion of an earlier adverse decision is insufficient to establish apprehended bias.

1. At the Appeal hearing he acknowledged that Dr Cullen-Mandikos, who was not the presiding Member, did not speak during the hearing of the proceeding.  He raises his complaint of bias for the first time on appeal, having received a decision which was adverse to his application.  He does not point to anything in the decision itself which suggests bias.

1. In my view, Mr Wood probably waived any right he had to object to the involvement of Dr Cullen-Mandikos at the final hearing, because he failed to raise it through his legal representatives at the hearing.  However, even if this was not so, he cannot succeed on his appeal, since he does not identify any basis for his belief which would lead a reasonable member of the public to conclude that Dr Cullen-Mandikos might not have brought an impartial mind to the determination of the proceeding.

1. I would dismiss the appeal.