Zanetti v Pierpoint (No 2)
[2011] QCATA 334
•14 December 2011
| CITATION: | Zanetti & Anor v Pierpoint (No 2) [2011] QCATA 334 |
| PARTIES: | Paul Zanetti Michelle Zanetti (Applicants/Appellants) |
| v | |
| Adrian Pierpoint (Respondent) |
| APPLICATION NUMBER: | APL299-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 14 December 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Appeal is allowed; 2. The application to disqualify the learned Member from further hearing the matter is allowed; and, 3. The matter is to be listed for a directions hearing before Senior Member Kerrie O’Callaghan on a date to be advised by QCAT. |
| CATCHWORDS: | APPEAL – BIAS – APPREHENDED BIAS – Where applicant appeals against decision to dismiss application to disqualify the Member who has part heard proceedings – Where applicant appeals on grounds that the tribunal failed to properly consider what was said by the tribunal at a directions hearing – Where the decision under appeal fails to take due account of a clear and specific communication at another hearing as to the Member’s position – Whether a reasonable observer would suspect a lack of impartiality – Whether there was a reasonable suspicion of apprehended bias – Where it was found untenable for the learned Member to continue with the hearing – Where the appeal is allowed Queensland Civil and Administrative Act 2009, s 147(3)(a)(ii) House v The King (1936) 55 CLR 499 applied |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
This long running building case has an unfortunate history which will, regrettably, be exacerbated by this decision. The hearing of the matter began in March 2010 and ran for two days before a QCAT Member. Later, it was thought the matter might have been compromised, but that did not come to pass.
The learned Member who began the hearing was subsequently asked to disqualify himself, on the grounds of apprehended bias. He considered the matter and decided he was not compromised and that he would proceed with the hearing. Mr and Mrs Zanetti have sought leave to appeal that decision.
Leave is necessary because the decision is not this Tribunal’s final decision in the proceeding.[1] Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
[1] Queensland Civil and Administrative Act 2009, s 147(3)(a)(ii).
The learned Member’s decision[2] involved the exercise of a discretion on his part: in particular, he was required to consider whether or not he should accede to a request that he disqualify himself from continuing to hear the matter, in the face of a submission suggesting apprehended bias.
[2] Pierpoint v Zanetti & Ors [2011] QCATA 371.
The QCAT Appeal Tribunal can only interfere with that decision if it can be shown that the learned Member acted upon a wrong principle, or was influenced by irrelevant matters.[3] For the reasons which follow I have come to the respectful conclusion that the learned Member erred in the exercise of his discretion because he failed to fully consider, and give proper weight to, a relevant factor: namely, some statements made by a QCAT Senior Member at an earlier hearing which apparently reported the Member’s own expressed view, at the time of that hearing, that he did not believe he could or should continue to hear the matter.
[3] House v The King (1936) 55 CLR 499, 504.
It is an error of law to fail to consider a relevant factor in arriving at a decision[4]. In light of that error, leave should be granted.
[4] Kuswardana v Minister for Immigration (1981) 35 ALR 186.
History of the proceedings
In his reasons for refusing the application to disqualify himself, the learned Member referred to the prejudice that would be suffered if the hearing had to re-commence before another Member, and the costs that would be thrown away.[5] They were certainly material factors, because the matter has a regrettably long history.
[5] Pierpoint v Zanetti & Ors [2011] QCATA 371, [11].
The proceeding began when Mr Pierpont filed a domestic building dispute application in QCAT’s predecessor, the Commercial and Consumer Tribunal, in April 2004. Mr and Mrs Zanetti filed a counter-claim and many interlocutory steps followed. The matter was ultimately listed for hearing in QCAT and began on 24 March 2010. After two days it was adjourned, for the parties to pursue settlement discussions. Documents relating to a proposed compromise were prepared and signed by some parties and legal representatives but, later in 2010, Mr and Mrs Zanetti filed a further application seeking, in effect, a declaration that the proceeding had not actually been compromised.
That question was determined by another QCAT Member who, in a lengthy and closely reasoned decision[6] found that the matter had not been compromised, and set it down for a directions hearing.
[6] Pierpoint v Zanetti & Adpoint Development Pty Ltd [2010] QCAT 699.
That directions hearing took place on 11 November 2010 before a QCAT Senior Member. He referred it for a further compulsory conference. The QCAT Member who presided at the compulsory conference, on 21 February 2011, was not the Member who had presided at the two day hearing in March 2010. She made orders in the way of directions about the future conduct of the matter, including orders that Mr and Mrs Zanetti obtain, at their cost, a transcript of the adjourned hearing; that they pay certain costs; and, the proceeding be stayed until those things occurred.
Mr and Mrs Zanetti sought leave to appeal the decision made at the compulsory conference. Leave was granted, and the appeal was upheld, on the basis that the Member who presided at the compulsory conference had no power to make those directions – because of provisions of the QCAT Act which meant that only the Member who had presided at the hearing in March 2010 had that power.[7]
[7] Zanetti & Anor v Pierpoint [2011] QCATA 228.
Background to the application for the original QCAT Member to disqualify himself
After that successful appeal the Appeal Tribunal ordered that the proceeding be listed for a directions hearing before the QCAT Member who had originally presided at the hearing in March 2010. Mr and Mrs Zanetti then applied, to that Member, for an order that he disqualify himself from further hearing on the basis of apprehended bias.
Apprehended bias involves, in general terms, an allegation that circumstances relevant to the position of the decision maker give rise to a reasonable suspicion that he or she may not bring fair and unprejudiced views to the resolution of the question in the case. It does not involve, here, an argument that the learned QCAT Member is actually biased against one party. Rather, the argument is that the grounds for suspicion are sufficiently vivid to necessitate him disqualifying himself.
The primary cause for that concern arises from remarks made by the QCAT Senior Member who presided at the directions hearing on 11 November 2010. The parties were legally represented. The purpose of the hearing was to give directions for the future conduct of the matter, following on the decision that the matter had not been settled.
The transcript of the hearing shows that, shortly after it commenced, the learned Senior Member referred to the fact that the Member who had begun the hearing was fully aware of the terms of settlement and the agreement that ‘was reached’ between the parties. The Senior Member said: ‘… on face value that compromises him in continuing to hear the matter, because he is fully aware of the contents of the Deed of Settlement that was reached between the parties. So that creates a complication’.[8]
[8] Transcript of the directions hearing, 11 November 2010, 2.
A short time later, the learned Senior Member said: ‘… I would have thought, rather than, well, certainly in terms of it’s got to go before a new Member and start afresh, a compulsory conference is a far better outcome, and I don’t think I can force either party to go back before Mr Crawford[9] if one of the parties objects’.
[9] The QCAT Member who had already begun the hearing.
Argument ensued. The learned Senior Member made it clear that he thought the matter should undergo a further compulsory conference. Then, the hearing was adjourned for an unknown period of time. When it resumed, the learned Senior Member immediately said: ‘Before you say anything, I happened to bump into Mr Crawford outside, and I discussed with him, frankly, again, whether he considered he could conclude the hearing objectively, and he said, frankly, no. He said he would not, he would disqualify himself from undertaking the hearing because he does not believe that he could bring the degree of objectivity to the matter that would be required at this stage. Now, that being his position, even if we were to direct him to do that and that position was made clear, that’s ground 1 for any appeal from any decision made by him. I just don’t think it would be safe’ (Emphasis added).[10]
[10] Transcript of the directions hearing, 11 November 2010, 5-7.
The learned Senior Member then ordered that the matter go to another compulsory conference. Regrettably, that was the conference which occurred before another QCAT Member, not Mr Crawford, and her orders were set aside by the QCAT Appeal Tribunal in Zanetti & Anor v Pierpoint [2011] QCATA 228. To reiterate: that Appeal Tribunal then ordered that the matter be listed for a directions hearing before Mr Crawford, with the obvious intention that he continue with the matter. That was followed by Mr and Mrs Zanetti’s application to him, that he disqualify himself. He considered that matter on the basis of written submissions from the parties, and dismissed it, with reasons published in his decision Pierpoint v Zanetti and Ors [2011] QCAT 371.
In those reasons the learned Member, Mr Crawford, properly considered the tests for apprehended bias and addressed two submissions made on behalf of Mr and Mrs Zanetti.
First, they had raised the fact that he was aware of the terms of the failed compromise. As he pointed out, in the events which had occurred including, in particular, a decision by another QCAT Member on the question whether that compromise was actually binding on the parties, the fact of the failed settlement was in the public arena. I do not understand Mr and Mrs Zanetti to be pressing that matter in this appeal.
The second point concerns what happened before the Senior Member on 11 November 2010. In his reasons Mr Crawford said that he had read the transcript of that hearing, but concluded that: ‘Those general observations were not conclusive as to whether I should or should not proceed with the matter. I agree that reservations were expressed by the Tribunal however the purpose of the directions hearing was to progress the matter to a compulsory conference and the question of my disqualification would be left to another day.’[11]
[11] Pierpoint v Zanetti and Ors [2011] QCAT 371, [9].
He went on to say that he did not believe he was compromised by the failed attempt at settlement which were not, he said, ‘… an admission of liability but merely a decision made by the parties for their own reasons to which I am not privy.’[12] He also said that, in light of the prejudice that would be suffered if the matter had to recommence before another Member, it was desirable that he continue.
[12] Pierpoint v Zanetti and Ors [2011] QCAT 371, [10].
The learned Member did not say anything else about any conversation between him and the Senior Member on 11 November 2010. In particular, his reasons do not specifically address what the Senior Member reported that he said on that day – namely, that he did not consider that he could conclude the hearing objectively and did not ‘… believe that he could bring the degree of objectivity to the matter that would be required at this stage’.
Was there a reasonable suspicion of apprehended bias here?
As Dr Forbes has observed in third edition of his work Justice in Tribunals[13], the question to be asked is whether a reasonable observer, aware of the facts, could properly suspect a lack of impartiality, or feel a reasonable apprehension that the Tribunal might not bring fair and unprejudiced views to the resolution of the question[14]. These are, as Dr Forbes goes on to observe, variations upon the theme that justice should not only be done but should manifestly be seen to be done.
[13] Dr John R S Forbes, Justice in Tribunals ( The Federation Press, 2010) 282.
[14]R v Watson; Ex Parte Armstrong (1976) 136 CLR 248, 262; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509, 519.
The evidence relevant to the question may be drawn from any source, including a record of proceedings[15].
[15] R v Justices of Rankin River: Ex Parte Sydney; Ex Parte Pluto (1962) 3 FLR 215.
Here the relevant circumstances to be addressed in answering the question include, vividly, an occasion in which the Member is reported to have said in terms that can fairly be described as clear and unequivocal that he did not believe he could continue to hear the matter, because he could not bring the required degree of objectivity to it, and that he should disqualify himself; but, on a later occasion, reports himself as now holding a different view ([2011] QCATA 371).
The inconsistency between the two positions is, with respect, something which itself is highly likely to give rise in the mind of the reasonable observer to a reasonable concern. In any event, taken alone, the view that the learned Member is reported to have held on another occasion, as related to the parties by the Senior Member, cannot be described as anything other than something which goes a long way past the ‘reasonable suspicion’ test – because it was to exactly the contrary effect and, as reported, it was couched in terms that indicated that the learned Member had an opposite, and indeed strongly held, view of the matter on another occasion.
When these matters are appreciated it is plainly untenable that the learned Member should continue with the hearing. This conclusion does not, of course, reflect upon his independence, objectivity or fairness – or the exercise by which he considered his position when the application was made to him. The error, with respect, is in failing to objectively appreciate the effects of his earlier reported statement.
Orders
The appeal must be allowed. The application to disqualify the learned Member from further hearing the matter must also be allowed.
Steps are necessary to re-ready the matter for hearing. For that purpose it is appropriate that the matter be listed for directions hearing before QCAT Senior Member Kerrie O’Callaghan, on a date to be advised by QCAT.
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