Amery & Ors -v- State of New South Wales [1999] NSWADT 70

CITATION: Amery & Ors -v- State of New South Wales [1999] NSWADT 70

DIVISION: Equal Opportunity

APPLICANT: Joyce Amery, Lyn Bovard, Margaret Douglas, Jenny Drury, Linda Freeman, Leonie Hancott, Jacki Irvine, Denise McHugh, Karen Mors, Cheryl O'Loan, Marian Platt, Megan Pursche, Marcia Skelton, Mary Strong

RESPONDENT: State of New South Wales

FILE NUMBER: 74 - 87 of 1997

HEARING DATES: 08/19/1999

SUBMISSIONS CLOSED: 08/19/1999

DATE OF DECISION: 19 August 1999

P King - Judicial Member BEFORE:

PRIMARY LEGISLATION: Anti-Discrimination Act 1977

APPLICATION: Sex Discrimination - Employment -

MATTER FOR DECISION: Application for disqualification of a member of the Tribunal

Applicant: D r C Birch, instructed by Ms L Dwyer REPRESENTATION: Respondent: Mr P Menzies QC with Ms T J Anderson instructed by the Crown Solicitor

ORDERS: 1. Application is dismissed

Delivered Ex-Tempore 1 In this matter I am sitting with two lay members to constitute the Administrative Decisions Tribunal of New South Wales, Equal Opportunity Division, in relation to an inquiry concerning some thirteen complaints of alleged indirect discrimination of the complainants who are all female casual teachers normally employed in New South Wales schools operated by the respondent department. 2 Following the luncheon adjournment on the third day of hearing, Mr Menzies, Senior Counsel for the respondent, made application for the disqualification of Mr McDonald, one of the lay members of the Tribunal, based upon an assertion, and I do not articulate any test at this stage, that an event had occurred which might give rise to a reasonable apprehension of bias in Mr McDonald such that the appearance and forms of justice had been breached and therefore that Mr Owen McDonald should be disqualified. It is agreed that I must decide that question. In determining the question I have received evidence from the witness, Mr Croft, who is the person involved in the occurrence about which Mr Menzies complains. 3 The facts are that at the end of the morning's evidence, after Mr Croft had given evidence in statement form and orally, both in examination and cross-examination, the Tribunal adjourned. At that point his evidence had not concluded. Mr Croft left the Tribunal hearing room to proceed to the only lift to exit the building and have his lunch. There were other people some involved in this matter milling around in the corridors outside the Tribunal hearing room waiting for lifts. This accords with normal expectations in regard to the exit arrangements from the building in which the Tribunal normally sits. Standing there was Mr McDonald, and, as Mr Croft approached Mr McDonald to get into a lift, Mr McDonald made a comment to him to the effect that a relation of his a long time ago had taught at Singleton, which was a place at which Mr Croft had taught before his present appointment to Muswellbrook. To Mr Croft's perception, which I accept as being a fair summary of the event, it was a polite social comment only and nothing was said regarding the facts of the present matter or anything to do with the evidence. He said he had never met Mr McDonald before, and had no ties of kinship, friendship, or property to him. 4 In those circumstances, Mr Menzies makes his application. He argues that the content of the conversation, social or otherwise, is a matter of irrelevance in the determination of the application which he makes, pointing out that perceptions are critical in an issue of this type, which depends on form rather than substance. 5 Were the matter to depend solely on form, as was acknowledged by Mr Menzies quite fairly in his argument on the application, the likelihood is, in an area where the two conversants were not alone, that this was an inconsequential conversation between the witness and the Tribunal member as they were getting into the lift. Looking at the matter from the point of view of the fair-minded and informed observer, I do not believe that the incident gives rise to a conclusion of reasonable apprehension of a lack of impartiality on the part of Mr McDonald. However, in addition to the perception to which Mr Menzies referred we have the evidence of Mr Croft. I am satisfied that taking that evidence into account, the true position is, as indeed Mr Menzies very properly acknowledged, that what occurred was no more than a social comment not indicating friendship or any other connection. This is not a matter unless the law so requires which should require Mr McDonald to be disqualified. In my view it does not. 6 A Tribunal such as this has a duty to sit, hear and determine the complaints according to law. The present inquiry is a matter of some general significance to the teaching profession in New South Wales and the employer, although that is not a reason why the Tribunal should necessarily take a view one way or the other about an issue of this type. However, the High Court has made observations to the effect that Courts and Tribunals have a duty to determine cases and the mere fact that a Tribunal member might feel uncomfortable or may have acted without regard to all the proper forms of judicial practice does not of itself mean that the decision should be set aside or that the Tribunal member should disqualify himself or herself. Indeed, as the Court pointed out in Re Polites, ex parte The Hoyts Corporation Pty Limited (1991) 173 CLR 78, it would be a dereliction of duty on the part of the Tribunal not to proceed to hear the case and give a decision in such circumstances. Also see Livesey v. Bar Association (1983) 151 CLR 288. Further, not inconsiderable resources of the State have been expended in conducting this inquiry to date which may be wasted if the hearing is unnecessarily terminated. 7 I take into account in reaching my conclusion the consideration that Mr McDonald is sitting as a lay member of the Tribunal. He has been appointed as a non-Judicial Member representing the broader community with some special knowledge or skills in relation to a class of matter in respect of which the Tribunal has jurisdiction. It does not appear that he has any particular special knowledge or skill in relation to the education system, but his appointment no doubt was made having regard to the fact that he was seen to be a member of the community at large and not just a lawyer with specialist legal qualifications. 8 Mr Menzies has referred me to the matter of Davis v The Investigating Committee, an unreported decision of Justice Lusher of 22 June 1984, in which two members of the Medical Tribunal, who were colleagues, both professionally and in the same work place as the witness, were seen liaising in earnest with a very important witness in the proceedings. That learned judge held that in those circumstances the two Medical Tribunal members should disqualify themselves. I take into account the observations of Lusher J in that matter, but in my view the circumstances of this case are quite different and do not give rise to that reasonable apprehension of a lack of impartiality on the part of Mr McDonald that the facts of that case gave rise to, in the mind of the learned judge. 9 In the recent decision of Peter Carver v The Administrative Decisions Tribunal, a decision of Justice Bell of 22 June 1999, her Honour gave consideration to an application of a not dissimilar nature to the present and formed the view that whilst all the forms of justice had not been observed any undue prejudice to the party before the Tribunal inquiring into that complaint could be resolved by appropriate warning from the Chairperson of the Tribunal, a legally qualified person, directing the Tribunal members to put out of their minds any matter of prejudice concerning the plaintiff. This conclusion it seems to me is consistent with the views of the High Court in Webb v. The Queen (1984) 181 CLR 43. I propose to follow that course in the present matter when I reconstitute with my present members. 10 I consider that in the particular circumstances of this case, applying the tests referred to by Chief Justice Sir Anthony Mason and Justice McHugh in Webb v The Queen (1984) 181 CLR 423, especially at 47, that if I give an appropriate public warning, the circumstances of the incident complained of would not give rise in a fair-minded and informed observer to a reasonable apprehension of a lack of impartiality, and in those circumstances I dismiss the application.