Appeal Panel - Internal CITATION: McGuirk v The University of NSW [2010] NSWADTAP 66 APPELLANT Gerard Michael McGuirk PARTIES: RESPONDENT The University of New South Wales FILE NUMBER: 089076 HEARING DATES: 9 November 2009, 1 February 2010, 3 May 2010, 11 June 2010 SUBMISSIONS CLOSED: 11 June 2010 DATE OF DECISION: 6 October 2010 BEFORE: Callaghan P, SC, Deputy President; Molloy G - Judicial Member; Bolt M - Non-Judicial Member CATCHWORDS: Application for recusal - Bias – Perceived and actual bias – Systemic or cultural bias - Procedural Fairness DECISION UNDER APPEAL: McGuirk v. University of New South Wales, [2008] NSWADT302 FILE NUMBER UNDER APPEAL: 073277, 083002, 083009 & 083019 DATE OF DECISION UNDER APPEAL: 10/05/2010 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 ASIC v. Segalla [2001] NSWSC 570 Bakarich v. Commonwealth Bank of Australia [2010] NSWCA 43 British Tobacco Austral Services Services Ltd v Laurie [2009] NSWCA 414 Ebner v. Official Trustee in Bankruptcy [2000] HCA63; 205CLR 377; 176ALR 644; 75ALJR 277 Enron Australia Finance Pty Ltd v. Integral Energy Australia [2002] NSWSC 753 Law Society of NSW v. Doherty [2010] NSWCA 173 CASES CITED: Lee v. Cha [2008] NSWCA13 Livesey v. NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 McGuirk v. University of New South Wales [2008] NSWADT 302 McGuirk v. University of NSW [2009] NSWSC 1058 Refugee Review Tribunal; Ex parte H [2001] HCA28; (2001) 179ALR 425; (2001) 75ALJR 982 Re: Renaud; ex parte CJL (1986) 60ALJR 528, 161 CLR 342 Torchia v. Swanton [2010] NSWADT 142 University of NSW v. McGuirk [2006] NSWSC 1362 APPELLANT In person REPRESENTATION: RESPONDENT P Singleton of Counsel instructed by C. Kirby, University's Solicitor 1. Leave to appeal is granted ORDERS: 2.The appeal is dismissed 3.The stay granted by Needham DP on 18 March 2009 is discharged 4.No order for costs; save that should either party file and serve an Application for costs coupled with supporting submissions within 21 days, then the other party is to file and serve its reply and supporting submissions within a further 21 days, and the Appeal Panel will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act 1975, s.76, unless persuaded that there should be oral submissions. Application for Recusal 1 On 25 September 2008 matters Nos 073277, 083002, 083009 and 083019 came before Judicial Member Higgins . The first matter was listed for the hearing of an interlocutory application by the Respondent and the other three were listed for directions. These were all matters in which the Appellant was the Applicant and the Respondent University the Respondent. They were all applications made under the Freedom of Information Act 1989 (the "FOI Act"). At the commencement of the hearing on 25 September 2008, the Appellant made "a formal application that (the Judicial Member) recuse (herself) for bias or in the alternative apprehended bias". There was no such written or formal Application before the Judicial Member; rather, the application was announced orally, and for the first time, at the commencement of the hearing. The Appellant submitted that if the Judicial Member did not recuse herself then any directions that she would make would be "null and void". 2 The word "recusal" or "to recuse" is a word that does not appear often in common parlance. The Oxford English Dictionary defines "recusal" as "the disqualification of a judge or jury by reason of prejudice or conflict of interest; a Judge can be recused by objections of either party or judges can disqualify themselves". The Appellant's application was the Judicial Member disqualify herself because of both actual and apprehended bias. As submissions proceeded, the application was enlarged to include an assertion that the Judicial Member was somehow tainted with cultural and/or systematic bias in relation to Freedom of Information Applications. Legal Background 3 It is convenient to note shortly at the outset some basic principles in relation to applications for recusal for bias, by quoting from (with references omitted) a few paragraphs from Forbes, Justice in Tribunals 3rd edition 2010: [15.4] "Bias may be actual or apparent ('apprehended'). A person may be affected by bias without being aware of it, and without any intention to be unfair. At the other extreme there are cases of deliberate spite or ill-will, where a decision-maker makes no real effort to find the facts, but is 'just out to get him'." [15.7] "A charge of actual bias is tantamount to a plea of fraud, and accordingly cogent evidence is required. In court proceedings such an allegation must be clearly pleaded and particularised, and fairly put to any witness for the tribunal. Omission to do so 'must cast a real doubt over the genuineness of the claim'." [15.9] "A finding of apprehended bias is enough to invalidate the decision of a statutory tribunal … Even so, a finding of apprehended bias is a serious matter, and in deciding whether it has been established, the Briginshaw criteria must be kept in mind." 4 With regard to apprehended bias the test is stated thus "… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Ebner v. Official Trustee in Bankruptcy (2000) 205 CLR 337, at [6]. We add that British Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414 conveniently presents relevant principles and authorities: Allsop P at [3] and Tobias JA at [78]-[103] especially at [81]-[85]. 5 There are authorities to the effect that refusal by a judge to accede to an application for disqualification does not give rise to a judgment or order of a court from which an appeal would lie, although such a matter can be relied upon as a ground of appeal in relation to the substantive judgment in the proceedings. A recent example of the application of such a principle is Lee v Cha [2008] NSWCA 13 where a challenge failed to a District Court judge's refusal of a disqualification application made during a civil trial. However, the Administrative Decisions Tribunal Act 1997 (the "ADT Act"), in s.112(1) defines an "appealable decision" as (relevantly) "a decision of the Tribunal … made in proceedings for: a) (not relevant). b) a review of a reviewable decision." FOI Act s.53(1) gives the Appellant a right to apply to the Tribunal for a review of the determination of the Respondent University because the Appellant was the Applicant seeking various documents from the University and was "a person who is aggrieved" by the determination of the University. In these circumstances, noting in particular that the Respondent was referred by the Appeal Panel to, and declined to take any point referable to, Lee v. Cha, it would seem that we have jurisdiction on the basis that the decision of the Judicial Member was a decision "made in proceedings for … a review of a reviewable decision". This is so even though her decision was on an interlocutory application that she recuse herself – it is, after all, a "decision", such that it falls, in our opinion, within the terms of ADT Act s.112 (being "a decision of the Tribunal … made in proceedings for … a review of a reviewable decision") and also falls within the words "the decision" in s.114 and also s.115. The fact that it is not "a decision" finally dealing with the reviewable decision does not alter the fact that it is in fact an interlocutory decision and thus appealable. As an interlocutory decision, however, leave is by this Appeal Panel is a condition of appeal (s.113 (2A) of the ADT Act)). As we have noted, no argument was advanced by the Respondent to the effect that the Appeal Panel did not have jurisdiction; but it is important to have identified the jurisdiction that this Tribunal has in its Appeal Panel having regard to what appears to be a different regime that applies to some courts. 6 We also note at the outset the concluding part of an often quoted paragraph in the judgment of Mason J in re Renaud; exparte 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." We will deal further with legal considerations later in this decision. Historical Background 7 During this Appeal the Appellant agreed that the judgment of James J. in McGuirk v. University of NSW [2009] NSWSC 1058 at [25-63] gives a useful summary of the background to the whole of the Appellant's situation, and we repeat those paragraphs here: "25 Mr McGuirk's evidence, as I have already indicated, was voluminous and, even after allowing for its frequent repetitiveness, dealt with a multitude of subjects. I do not propose to attempt to deal with all of the matters referred to in Mr McGuirk's evidence. However, it is necessary to advert to a fairly large number of matters for a proper understanding of the statements of charge in the University's notices of motion and of the submissions made by the parties, and particularly Mr McGuirk, on the various notices of motion. 26 Mr McGuirk was formerly employed by the University as the Acting Director of the Master of Business and Technology post-graduate program at the University. Mr McGuirk ceased to be employed by the University in circumstances which are contentious, Mr McGuirk contending that his employment was wrongly terminated. Mr McGuirk physically left the University at about the end of February 2002 and his employment by the University formally ended on 31 March 2002. 27 Mr McGuirk asserts that while he was still employed by the University and in the years since his employment was terminated, he has campaigned to expose what he believes to have been instances of corruption and mismanagement within the University and to expose how the University has treated "whistle-blowers", that is he himself and other persons who have exposed corruption or mismanagement within the University and who, Mr McGuirk asserts, have been victimised by the University in contravention of the Protected Disclosures Act 1994 . 28 Mr McGuirk referred in his evidence to a number of "scandals" at the University and a number of whistle-blowers, including:- 1. The first Educational Testing Centre scandal. A Ms Margaret Love had made reports of maladministration and corruption in the Educational Testing Centre at the University. 2. The Professor Hall affair in which a number of allegations of misconduct were made against a professor at the University, Professor Bruce Hall, the whistle-blowers being Dr He and Dr Chen. 3. The second Educational Testing Centre scandal in which the whistle-blower was Mr Peter Curtin. 29 In 2003 Mr McGuirk successfully used the Freedom of Information Act to obtain a copy of a report made by an external consultant of an investigation of allegations which Mr McGuirk had made while he was still employed by the University. 30 Since then Mr McGuirk has often used the Freedom of Information Act in an endeavour to obtain access to documents held by agencies and especially the University. In cases where there has been a determination by an agency to refuse access to a document, Mr McGuirk has often applied to the Administrative Decisions Tribunal for a review of the determination refusing access. 31 Exhibit J at the hearing before me listed the published decisions of the Administrative Decisions Tribunal to which Mr McGuirk had been a party, as at 23 July 2009. There were 70 decisions in the list. I accept that many of these decisions were not substantive decisions on applications for access made by Mr McGuirk but concerned ancillary matters such as applications for advance deposits, whether complying with Mr McGuirk's applications would involve substantial and unreasonable diversion of an agency's resources and applications for costs orders. 32 I will now summarise briefly some of the other proceedings in which Mr McGuirk has been a party. 1. University of New South Wales v McGuirk 33 Mr McGuirk made an application pursuant to the Freedom of Information Act for access to what were described in the evidence before me as the "unredacted" Hall reports. Reports of investigations into the allegations against Professor Hall had been released by the University but subject to the deletion of certain parts of the reports. The University made a determination to refuse Mr McGuirk access to the unredacted Hall reports. Mr McGuirk then made an application to the Administrative Decisions Tribunal for a review of the determination refusing access. Mr McGuirk was successful before the Tribunal and also on an appeal by the University to an appeal panel of the Tribunal. 34 However, the University brought proceedings in the Supreme Court, which were heard by Nicholas J. Nicholas J held ([2006] NSWSC 1362) that the University had been denied procedural fairness in the Administrative Decisions Tribunal and set aside the determination by the appeal panel. Although it was not necessary in order to dispose of the proceedings before him, Nicholas J held that the Administrative Decisions Tribunal had power to grant access to a document, notwithstanding that it was an "exempt" document within Sch 1 to the Freedom of Information Act. 35 No appeal was brought from Nicholas J's decision. However, in other proceedings between Mr McGuirk and the University which recently came before the Court of Appeal, the University submitted that, contrary to what Nicholas J had decided, the Tribunal has no power to grant access to an exempt document. In a reserved judgment delivered on 7 October 2009, after I had reserved in this matter, the Court of Appeal held that the Tribunal has no power pursuant to s 63(2) of the Administrative Decisions Tribunal Act to grant access to a document which is an exempt document by virtue of cl 10 of Sch 1 to the Freedom of Information Act. 2. Independent Commission Against Corruption ("ICAC") v McGuirk 36 I have already briefly referred to the ICAC proceedings. These proceedings are of particular importance because they came before Simpson J. 37 On 10 December 2004 Mr McGuirk wrote a letter to ICAC marked for the personal attention of the newly appointed Commissioner Mr Jerrold Cripps. In the letter Mr McGuirk complained of serious and systemic corruption, mismanagement and a failure of governance at the University, extending over a period of eight years, and requested Mr Cripps to give high priority to a comprehensive investigation of his allegations. Mr McGuirk said that the evidence he had in support of his allegations comprised several thousand pages of documentary evidence, together with video and audio evidence. 38 Mr McGuirk in his evidence before me said that he had not previously complained to ICAC, because he knew that the Commissioner before Mr Cripps (Mrs Irene Moss) was a close friend of the University's then Vice-Chancellor Professor Niland. 39 On 1 February 2005 a deputy ICAC Commissioner Mr John Pritchard sent an email to Mr McGuirk in which he said that ICAC did not intend to investigate Mr McGuirk's allegations. However, Mr Pritchard added that, as with all complaints of corrupt conduct, the matter would be referred to the Operations Review Committee. 40 On 26 May 2005 Ms Linda Madgwick, an assessment officer of ICAC, wrote a letter to Mr McGuirk in which she referred to the email of 1 February 2005 and to further material which had been provided by Mr McGuirk and informed Mr McGuirk that a report had been sent by ICAC to the Operations Review Committee and the Committee had accepted a recommendation by ICAC that Mr McGuirk's allegations not be investigated. 41 Mr McGuirk made an application to ICAC under the Freedom of Information Act for access to the report to the Operations Review Committee made by Ms Madgwick. Access was refused and Mr McGuirk made an application to the Administrative Decisions Tribunal for a review of the determination to refuse access. 42 Mr McGuirk was successful in the Tribunal, both at first instance and before an appeal panel. However, ICAC appealed from the decision of the appeal panel on the grounds that ICAC was exempted from the operation of the Act by virtue of s 9 and Sch 2 to the Act. 43 The appeal came on for hearing before Simpson J on 19 February 2007. Mr McGuirk was late in arriving at the court, because, he said, he had been "kidnapped" by police that morning and had been held for some time before he was released. Simpson J proceeded to hear the appeal and reserved her judgment. 44 On 2 March 2007 Simpson J delivered a reserved judgment in which she allowed the appeal and set aside the decision of the appeal panel of the Tribunal. Her Honour indicated that she was disposed to make an order that Mr McGuirk pay ICAC's costs of the proceedings. Mr McGuirk opposed the making of such an order and himself sought an order that ICAC pay his costs. The question of costs was stood over. 45 On 26 March 2007 Mr McGuirk made the affidavit, a copy of which occupies the first 177 pages of exhibit MM1. Mr McGuirk made the affidavit for the purpose of opposing ICAC's application for costs and supporting his application for costs. 46 Within the 177 pages of the affidavit there are four references to Ms Judy Brookman of the University's media office or unit. In each place the words "Contact Details: Judy Brookman" and her position as media manager or as being in the University's media or communications unit or office and particulars of her telephone numbers appear at the end of a media release by the University in which a statement or announcement by the University's Vice-Chancellor or the University's Chancellor is summarised or quoted. 47 The outstanding question of the costs of the ICAC proceedings came before Simpson J on 15 November 2007. Mr McGuirk was again late in arriving at court and did not arrive until Simpson J was part of the way through delivering an ex tempore judgment in favour of ICAC. 48 After Mr McGuirk had arrived at the court he was permitted by Simpson J to make submissions on costs. He handed up a document containing 25 pages of written submissions and made oral submissions to her Honour. He did not read his affidavit of 26 March 2007. 49 Simpson J delivered an ex tempore judgment in which she concluded that she should make an order that Mr McGuirk pay ICAC's costs of the proceedings. Her Honour gave consideration to a submission made by Mr McGuirk that there are occasions when a party who was acting in the public interest, as Mr McGuirk claimed to have been doing in the ICAC proceeding, will not, even if the party was unsuccessful, be ordered to pay the costs of proceedings. However, her Honour concluded:- "It is the usual practice that a successful litigant will be awarded costs but I accept that there are occasions when departure will be made from that usual practice and that is, for example, when it is in the interests of justice to do so. However, nothing has been demonstrated in the present case which persuades me that it is remotely in the interests of justice that I depart from usual practice. The matter was fully litigated. The defendant was unsuccessful. The plaintiff is entitled to an award of costs and I so order." 50 Mr McGuirk submitted before me that the issue in the ICAC proceedings had been whether the Administrative Decisions Tribunal had erred and Simpson J should not have made a costs order against him. 3. Mr McGuirk and the New South Wales Police 51 There was another appearance by Mr McGuirk before Simpson J in the year 2007. 52 Mr McGuirk alleges that between February 2007 and mid-April 2007 he was subjected to a sustained campaign of intimidation and harassment by officers of the Burwood Local Area Command of the police force. Mr McGuirk alleges that his kidnapping on 19 February 2007 was part of that campaign. 53 On 28 March 2007 Mr McGuirk filed a summons in this court seeking an injunction against the New South Wales Police Commissioner. The application for an injunction was listed on 5 April 2007, when the common law duty judge happened to be Simpson J and Mr McGuirk's application came before her Honour. 54 Mr McGuirk gave evidence before Simpson J and was cross-examined by a barrister appearing for the Commissioner of Police. Simpson J declined to grant an injunction and made an order against Mr McGuirk that he pay the costs of the proceedings. 55 Mr McGuirk gave evidence before me that the campaign of harassment by the police abated in mid-April 2007, when the hearing in the Local Court of criminal charges against Mr McGuirk, to which I will later refer, resumed. 4. Mr McGuirk and the Ombudsman 56 Mr McGuirk made a number of complaints against the University of New South Wales to the New South Wales Ombudsman but the Ombudsman declined to investigate Mr McGuirk's complaints. However, the Ombudsman did investigate other complaints against the University brought by the Hall whistle-blowers, Mr Peter Curtin and a former member of the Council of the University. This investigation continued for about four years. 57 In about the middle of 2006 Professor John Ingleson, who was the Deputy Vice-Chancellor and Protected Disclosures Co-ordinator and who had been the subject of some of the complaints, began court proceedings seeking to prevent the release of a report by the Ombudsman, on the grounds that he had been denied procedural fairness. According to Mr McGuirk, the Ombudsman agreed to discontinue his investigation. 58 Mr McGuirk brought court proceedings against the Ombudsman seeking a review of the conduct of the Ombudsman. Rothman J of this court, before whom the proceedings came, held that Mr McGuirk had no standing to bring the proceedings and an appeal from Rothman J's decision was dismissed by the Court of Appeal. 5. Criminal proceedings by Mr McGuirk 59 In late 2003 Mr McGuirk instituted a private criminal prosecution against five defendants, being the Vice-Chancellor of the University, Professor Ingleson, two other professors and Mr Neil Morris, the Executive Director University Services with responsibility for inter alia Human Resources, Media and Communications and Legal and Compliance, for alleged contraventions of s 20 of the Protected Disclosures Act , which provides that a person who takes detrimental action against another person that is substantially in reprisal for the other person making a disclosure which is a protected disclosure under the Act, is guilty of an offence punishable summarily. A prosecution brief of evidence containing more than two and a half thousand pages was served on the defendants. 60 The prosecution came on for hearing in the Local Court on 9 February 2005. Mr McGuirk was represented by counsel. 61 On the second day of the hearing Mr McGuirk was advised by his counsel that, in counsel's opinion, the strategy of the defendants was to draw out the proceedings and that, if the proceedings continued, Mr McGuirk would face the risk of bankruptcy. Mr McGuirk accepted his counsel's advice to discontinue the proceedings on the basis of each side paying their own costs and by consent the proceedings were terminated on that basis. 6. Criminal proceedings against Mr McGuirk 62 Criminal proceedings were brought against Mr McGuirk for an alleged contravention of the Enclosed Lands Act and for hindering police. These proceedings had no connection with the University. Mr McGuirk represented himself in these proceedings. 63 The proceedings dragged on for a couple of years. Ultimately, on 6 February 2009 a magistrate stayed the prosecution. The Director of Public Prosecutions considered an appeal against the magistrate's order staying the prosecution but eventually decided not to appeal." Development of Application for Recusal 8 In order to set the scene it is important at the outset to identify, in general terms, the oral application that was made by the Appellant to Higgins JM and then, later in this decision, to review in detail precisely what happened before her, and the arguments that were put before us. In adopting this approach there may be some degree of repetition but that cannot be helped if one is to understand the arguments advanced by the Appellant. 9 Doing the best that we can from the transcript, (and we note that in our decision references to the various transcripts will not always be quoted precisely as transcribed - the transcripts not having been corrected - but minor alterations have been made, not to alter the meaning but rather to present the real sense of what was evidently said), the Appellant appears to have based his oral application on a number of points, as follows: 1. That the Judicial Member had demonstrated an "apprehension of bias – or actual bias … either or both in the alternative" (T.1 and.23). 2. The acceptance of an oral application (it seems, in proceedings 073277) by the Respondent "without having any formal follow up when you consistently denied (an) oral application from me demonstrates bias. The University can make an oral application, fine, (but) I can't, is that bias (?), yes". This related to an oral application made by the Respondent 23 January 2009 in or to the effect that the Appellant's "application be struck out as an abuse of process" (T.23-24). The essence, the Appellant said was, that the Judicial Member "treated me unequally, that's the essence". (T.24). 3. The Appellant submitted (T.25) that ADT Act, s 73, evidently sub-section (5)(b), was "the most overlooked section in the ADT Act, the one that no Tribunal member wants to know" and that the Judicial Member had "consistently failed to ensure that all relevant materials (were) disclosed to the Tribunal so as to enable it to determine all of the relevant facts in the proceedings … (and that the Judicial Member had) breached your statutory obligations; that is misfeasance in public office … (and the Appellant described that as) an absolute disgrace". 4. The Appellant handed to the Judicial Member "a copy of the letter by him dated 12 March 2006, to the Freedom of Information officer, Community Relations Division, Attorney Generals Department" and submitted that this was another example of the bias of the Judicial Member (T.26). 5. The Judicial Member had struck out an application of the Appellant "because it was vexatious, misconceived, lacking in substance … without giving proper reasons", so he lodged the application again and (apparently) ten documents were revealed (T.26). The Appellant asserted that in all the circumstances the actions of the Judicial Member were incompetent, that she was really not doing her job, that she could not do that "and retain your position here as a member of the Tribunal – that's incompetence, (arguably) corrupt") (T.26-27). 6. The Appellant submitted (T.28) that from his researches the Judicial Member has "never made a report pursuant to Section 58 (of the FOI Act) of the conduct of any officer or any agency or in particular never in respect of the University of New South Wales and Ms Fleming (the then University solicitor) and Mr Singleton (counsel appearing for the University)". He submitted that s.58 "must be used in a proper case. It's not a discretion at large, when the circumstances arising, which clearly demonstrate that the University has not complied with its obligation; it is not open to any Tribunal Member not to fulfil his or her obligations and to make a proper report. In fact, the failure to do so is like corruption, has proliferated and (is) proliferating and continues to proliferate in this State as the Labor Party implodes … (and the Judicial Member has) failed to fulfil (her) obligations". 7. The Appellant then (T.28) asked the Judicial Member: "How many costs orders have you made under section 88 of the ADT Act?" and then asserted that she had "selectively used powers to shut down applicants while condoning the improper conduct so that people such as Mr Singleton and Ms Fleming and the University generally". He asserted that the Judicial Member had "never, ever used the Section 58 power. (She) used (the) Section 75(5)(h) power purportedly, an abuse of that power in a decision" (made in 2007 in matter063263) and that "was corruption". 8. When asked (at T.29) to point to examples were applicants had been shut down the Appellant sought to read from a report prepared by "(an) administrative law student who sat at the back of this Tribunal" and the Appellant asserted that "as the hearing progressed her neutral stance shifted towards somewhat bias ..". At that point the Judicial Member adjourned the hearing and directed the recording equipment be switched off. There was then a short adjournment and the Applicant (at T.30) then asserted that the Judicial Member was "not willing to accept evidence"; and also asserted that the failure of the Judicial Member to either permit the University student's report to be read on to the record, alternatively, have it admitted into evidence, constituted bias. 9. The proceedings then went on with further discussions and (at T.32) the Judicial Member said that she would give to the Appellant "15 minutes" to complete his submissions. The Appellant asserted (at T.32) that "in respect of my application about bias you want to shut me down, that's ok, fine I mean, it's quite normal" and that he and the University "must be accorded equal treatment, it's as simple as that; it is called the rule of law". 10 We shall return later in this Decision to what transpired on 25 September 2008 but suffice it to say that the Judicial Member reserved her decision and subsequently delivered that decision on 11 November 2008, reported [2008] NSWADT 302. Again, we shall refer to this in more detail later in this decision; suffice it to say that was that the Appellant's application that the Judicial Member "excuse (herself) from hearing and determining these matters, is dismissed." [at 24] Appeal Papers 11 The Appellant filed a Notice of Appeal 18 November 2008. This Notice indicates that the appeal is "on a question of law only" and the Appellant set out his reasons for appeal as follows: "The Tribunal erred at law by denying Mr McGuirk procedural fairness in respect of the proceedings which are before the Tribunal under file numbers ADT 073277, 083008, 083009 and 083019 on the basis of the bias and/or apprehended bias of the Judicial Member (Judicial Member Higgins) who has been appointed by the President of the Tribunal, Judge Kevin O'Connor, to hear and determine these matters. In the alternative, the Tribunal erred at law in its decision in McGuirk v. University of New South Wales [2008] NSWADT 302 by failing to find that Judicial Member Higgins is either biased against Mr McGuirk (and biased in favour of the UNSW), or, is "subject to apprehended bias". The Tribunal erred at law in its application of the legal tests for bias and/or appended bias. The Tribunal erred at law by improperly rejecting evidence which clearly established that Judicial Member Higgins was "subject to apprehended bias" in favour of the UNSW (and in favour of Mr Peter Singleton in particular) and against Mr McGuirk". 12 Those were the grounds of appeal. The Application for Leave to Appeal was in the same terms but added the following words: "The decision of Higgins JM is clearly wrong on its face. The law student who reported on the conduct of proceedings by Mrs Higgins and adjudged her biased in favour of the UNSW is not a fellow student of mine". 13 The material filed by the Appellant in support of the appeal was 161 pages in length. 14 The Reply filed by the Respondent University generally supported the approach taken by Higgins JM. The grant of leave was not opposed but the University submitted that the appeal should be dismissed. The substance of the reply, and its supporting submissions, focused on the issues of "actual bias" and "ostensible or apprehended bias" by the Judicial Member. It would be not unfair to say that the University, not unreasonably having regard to the grounds of appeal, approached the matter principally from the point of view of apprehended bias by the Judicial Member. Developed Grounds of Appeal 15 As the arguments developed before the Appeal Panel it became clear that the Appellant was developing grounds of appeal that related, not so much to the learned Judicial Member, but rather to the "culture" of the Tribunal, the "culture" of some Members of the NSW State Parliament, of certain members of the Executive and of senior Government Officers; allegations of "criminal conspiracy to pervert the course of justice" against the University's solicitor (T.11/06/10 at 36); that a Judge or Judicial Member "should not sit if I, as a party, Michael McGuirk, entertain a reasonable suspicion that … (Higgins JM) might not bring an impartial mind, impartial unprejudiced mind, (to) the resolution … on the question before it" (T. 11/06/10 at 46); that the "motive" of Higgins JM was "the motive … given by the culture and environment within (which) she operates …" [T.11/06/10 at 49]; that the Tribunal has an obligation under FOI Act s.73(5) "to ensure that the University puts the relevant material before it so that the Tribunal can come to the correct and preferable decision … (and that) the Tribunal has consistently failed to do that, across the board, in the FOI Division" [T.11/06/10 at 50]; that there is a culture at executive level of government, that the Honourable The Attorney General is "one of the leading lights of the right wing faction of the Labor Party … the corrupt faction … the (State) Government is profoundly corrupt … (and the Attorney) is a member of the executive government" (to whom senior government officers report who can be sacked at the whim of the Attorney) and … "that a fish rots from the head … (that the culture smells) … that rotting smell pervades its further down …" into the Tribunal because the Tribunal Members do not have security of tenure and are beholden to the Executive and the State Government … and is thus a "structural issue, a systemic issue" … particularly in relation to FOI applications because FOI applications/documents have the capacity to expose corruption [T.11/06/10, 24-29] and it is "against the interests of the Executive Government for FOI laws to work" [T.11/06/10, 28]; and finally, that certain Members of the Tribunal in its General Division do not have "legal competence" and suffer from "lack of impartiality (otherwise expressed as "systemic pro-agency bias" which "lie at the heart of the failure by the Tribunal to fulfil its statutory mandate in regard to freedom of information in New South Wales" [letter from Appellant to the Tribunal 05/11/09, p6]. 16 In the above recitation we have attempted to identify reasonably specific assertions argued by the Appellant on the appeal, outside , or in addition to, the arguments raised in the Grounds of Appeal. The gravamen, or substance, of the appeal as propounded revolves substantially on the appellant's assertion that there is a culture within the Tribunal that militates against transparency in government and government instrumentalities, such that Members of the Tribunal act in a way that is antithetic to the FOI legislation; that alternatively that some part of a systemic culture has impregnated itself into the thinking processes of Judicial Members surreptitiously such that they were unknowingly influenced to favour the Government and Government instrumentalities, and not favour the applicants. 17 This argument, as advanced by the Appellant, is extreme and unusual and would depend for its success on there being available evidence to the Judicial Member if not to the Appeal Panel that would support it. Although not essential for our decision, we think that such evidence would need to satisfy at least the Briginshaw standard as the allegations are serious, grave and weighty. The mere making of the allegations or assertions is clearly not sufficient; clear evidence would be required. The Appellant has not, in our opinion, offered evidence of the allegations or assertions which even meets the ordinary civil standard. 18 The submission that there is a cultural, or systematic bias, does not initially conveniently fall within the accepted categories of bias, namely actual bias or apprehended bias. However, it appears that the concept of a culture of bias or systematic bias would fall within the accepted definition of apprehended bias, namely "whether a fair-minded lay observer might reasonably apprehend that the judge (or tribunal member) might not bring an impartial and unprejudiced mind to the resolution of the question the judge (or tribunal member) is required to decide":Ebner at p.344. 19 This Appeal Panel proposes to review the material put before us by the Appellant and, in the course of so doing, deal with the various aspects raised on the appeal, which will include the actual conduct of Higgins JM at the hearing on 25 September 2008; the reasoning and result of her determination on 11 November 2008; and the over-arching submission relating to a culture of systemic bias in favour of the Government, government instrumentalities and others caught by the FOI legislation. The Panel also proposes to address the issue raised by the Appellant relating to the duties of the Tribunal under ADT Act s.73 . Qualifications of Appellant 20 Normally reference would not be made to the qualifications and experience of an Appellant. Normally it would be irrelevant. But, because of the way in which the appeal was conducted and the allegations/assertions that were made by the Appellant, in writing and orally, we think it important to make the point, as the Appellant made to us on more than one occasion, that he is (effectively) an experienced litigator. He is not a novice; he is a person experienced in litigation, he has often been before this Tribunal appearing personally; and often appears personally in the Supreme Court and Court of Appeal. Consequently, and in reviewing the material put before us, we have borne all this in mind. 21 First, the Appellant urged upon us that we should take into account the fact that since 2005 the Appellant has been involved in more than 74 Applications before the Tribunal (Exhibit 3). Secondly, he stated [T.3/05/10 at 2-3]: "I have been studying full time at the College of Law and I finished my final assessments on last Friday and I am sure the bench will be pleased that of the five subjects currently marked I have high distinctions in three of the five. I'm not a slouch. I have two university medals … since 1 January 2010, (I have) been attending the College of Law on a full time basis …" and that his "focus during the past few months has been on completing the requirements for my graduate diploma of legal practice and on stabilising my mental health. The (first) two psychiatric reports … in fact three reports have been provided to the University". At [T.11/06/10, at 31] the Appellant told us "…I've got 15 decisions at the Supreme Court level or above; I was in the Court of Appeal this morning. So 15 decisions in the Supreme Court or above, and some, I think, 84 decisions in the ADT. So, I think one can reasonably say that I have a little bit of experience about how the judicial system works and (you will) look forward to … reading my book …"; at [T.01/02/10 at 16] the Appellant told us that he had "four university degrees and two university medals"; and finally the Appellant actually tendered as part of his appeal (Exhibit 5) his University results with respect to his law studies: these demonstrate, relevantly, that in Civil Litigation Practice his Result was high distinction and his Grade 85, in Professional Responsibility: credit and 71; Professional Skills: satisfactory and 100; and in Administrative Law Practice: high distinction and 100. The Appellant clearly wishes to be admitted as a legal practitioner in the State of New South Wales [T.01/02/10 at 1] and indicated that he wished to lecture in Administrative Law [T.01/02/10 at 86]. 22 Thus, although the Appellant is not admitted a lawyer, he has represented himself on the appeal, he is highly qualified and is well experienced in the law and litigation. It is against this background of qualification and experience that the Appellant needs to be judged in the presentation of his appeal, in the assertions that he has made from the Bar table, and in writing; and to which allegations/assertions this Appeal Panel needs to give proper consideration in order to determine the appeal. It would be wrong, in our opinion, to gloss over the allegations/assertions, simply because they form the basis of the Appellant's submission pertaining to the culture of systemic bias within the Tribunal. Proceedings Before Higgins JM 25 September 2008 23 The proceedings listed before the learned Judicial Member were a hearing of an interlocutory application by the Respondent in proceedings 073277 and directions hearings in relation to three other applications instituted by the Appellant against the Respondent, being numbered 083002, 083009 and 083019. There is no requirement for us to review any of those Applications in detail – neither party saw the need to refer us to any of these files. The Appellant appeared on that occasion in person. Mr Singleton of counsel appeared for the Respondent University. 24 The Judicial Member indicated that "first and foremost" she wished to deal with those matters that were listed for directions. 25 At [T.25/09/08 at 1] the Appellant stated: "I have been very reluctant to do this but I think it's now (at) the stage where I need to make a formal (application) that you recuse yourself for bias, or in the alternative, apprehended bias … you should recuse yourself from the directions". [At p.1] the Appellant stated: "I think the persistent pattern of pro-agency bias that you've shown over the last two years is really at the stage where I just find it intolerable and we have here, you know, a collapse in executive government in this State, corruption rampant, and I think this Tribunal has a major role to play in that". 26 This recusal application was made orally. No formal application was made, and no specific material was filed in support of the application. Apparently the application was made without notice to the Respondent. The Judicial Member noted, at p.2, that she had no material before her and the Appellant's response was, "No, well, it'll come out during the process of the hearing". The Judicial Member made it plain that she was "going to deal with the directions now because I do not have any material" and the Applicant responded: "Certainly, although if you recuse yourself then those directions are null and void" and that "as long as you understand it, they may well be null and void, we may be wasting your time". 27 The Judicial Member then went on to consider file 083002 (which was filed on 3 January 2008); and then (because the Appellant's submission had been mislaid) the Judicial Member stood down application 083002. Then [at p.4] picked up 083009. Eventually, various directions were made and the proceedings were set down for a half day hearing on 18 November 2008. 28 Nextly, [at p. 8] the Judicial Member dealt with Application 083019. The Appellant raised an estoppel issue and "appalling abuse of process" and [at p.9] asserted that "this Tribunal is afraid to take proper conduct, proper action, against the conduct of Mr Singleton and Ms Fleming (then solicitor for the University) and the University of New South Wales generally; it's afraid of these people … it is and that is bias". Pausing here, the relevance of all this to a directions hearing is not immediately apparent. There followed a considerable amount of discussion; and [at p.11] the Judicial Member stated: "Mr McGuirk what I am trying to do is … accommodate your needs. I am asking you which date is suitable. I am attempting to accommodate your needs now …". There followed yet another assertion by the Appellant at [p.11-12] where he stated that he wanted the University "to comply with the [FOI] Act … they sort of thumb their nose at the Tribunal, the Act, and (the) Parliament and everybody". Eventually, the hearing was set down for 19 December 2008 [p.12]. 29 Then [at p.13] the Applicant stated to the Judicial Member: "You have just signed cheques for Mr Singleton for about $6,000.00 so that is being paid by the students of this state, the University of New South Wales. I don't know if that is a proper use of those resources; in fact, I am sure it's an improper use of those resources". 30 At p.13 there followed some discussion relating to two files. It is worthwhile setting out the transcript in some detail: "Singleton: There are two other files on the bench. Higgins: Yes. What are they? Singleton: They are the two files referred to in my submissions in the hearing matter today. Mr McGuirk is seeking the same documents in today's matter as he sought in those two other files. Higgins: Okay Applicant: Mrs Higgins, could I ask you then in that matter to obtain from the Registry the file of 053333, because that's another matter in which I sought the same documents. I think the evidentiary records should be complete. I'll get them if you like. Higgins: No, Mr McGuirk. Applicant: No, this is finished, all right. Higgins: Mr McGuirk would you please sit down. Applicant left the hearing room." 31 Pausing at that point, if we may, the Appellant as Applicant was denied permission to attend the Registry to collect various Tribunal files. Quite properly so, it seems to us. The Appellant although not a legal practitioner and, although being a party to the various proceedings, was not entitled, as a matter of ordinary court/tribunal practice, to leave a hearing room without permission and go to the Registry and seek to uplift himself Tribunal files. He demonstrated a lack of understanding of his position and his entitlements and, indeed, rudeness to the Judicial Member in disobeying her denial of permission to him to uplift the files and in simply leaving the hearing room without permission. 32 As it turns out, the file in question was not then in the Registry. It is again worthwhile quoting from what follows at p.13: "Singleton: Perhaps the record should note that Mr McGuirk has left the room. Higgins: Mr McGuirk has just left – for the record I should indicate that Mr McGuirk has left the Tribunal hearing room. I should indicate … that file is actually not at the Registry; it's in my chambers. For the record, when Mr McGuirk has the courtesy to return, I (will) be able to explain that to him". 33 Then followed some discussion between the Judicial Member and Mr Singleton and [at p.14, line 42] the Transcript shows: "Applicant returns to hearing room". Then followed an interesting educative exchange (at p.14ff): "Higgins: Just a moment, Mr McGuirk. Applicant: That file should be here. Apparently your decision in that matter was reserved in April so the file is actually with you. So you're intimately aware of the conduct of the University. Higgins: I was about - well, if you had done me the courtesy to listen rather than walk out of the hearing room, Mr McGuirk … Applicant: Well, I presumed that you were seeking to exclude evidence. Higgins: Can I – I was not going to do that. Applicant: Well, that was the evidence in front of me. Higgins: Mr McGuirk, Mr McGuirk. Applicant: Yes? Higgins: My recollection … Applicant: Mrs Higgins, you – you were the subject of my application to recuse yourself … Higgins: Mr McGuirk, Mr McGuirk … Applicant: … because I think the bias here is profound. Higgins: Mr McGuirk, Mr McGurik. Applicant: Sorry. Higgins: I was about to explain to you where that file was. Applicant: Yes, thank you. Higgins: And you did not even extend me the courtesy of listening to me … Applicant: You could have said: I have the file, I know where the file is. You didn't say that. Higgins: … I was – Mr McGuirk. Applicant: Why not? Higgins: Because you walked out the door. Applicant: I stood up and waited and you just said sit down; you could have told me: I have the file. Higgins: Mr McGuirk, we're not going to argue about this … Applicant: Well I do expect a bit of respect from this Tribunal. I am getting a bit fed up with what is happening, very fed up. Higgins: Mr McGuirk respect goes two ways." 34 The missing file was apparently 053333. 35 The directions hearing went on to find out what material had been filed in 073277 and ultimately [at p.41] the hearing was adjourned to 19 December 2008. 36 At p.21 the Judicial Member reverted to the issue that has resulted in this appeal. She stated: "You have made an application that I disqualify myself". When asked to put before the Tribunal "the evidence and the grounds on which you rely" the Appellant stated [at p.22]: "In order for the evidence to come out we need to really hear this application because it will happen during the hearing of this application as well as others". At lines 14ff this exchange took place: "Higgins: No, Mr McGuirk. I am asking you to make – to put before me why you say I should disqualify myself. Applicant: Mrs Higgins, asking the wrong question doesn't really help; as we go through I will indicate to you through this process where … Higgins: Mr McGuirk. Applicant: Yes? Higgins: You either withdraw the application or we deal with it now. Applicant: No, I am not withdrawing it, I'm not withdrawing it. Higgins: All right. Well, we are dealing with it now. I'm hearing you". Pausing at this point it is plain to us that the question asked by the Judicial Member at lines 14 and 15 was the correct question and the response of the Appellant/Applicant was incorrect. 37 At [p.22-23] the Appellant made it plain that he relied upon actual bias and/or apprehension of bias "either or both in the alternative, I think". The Judicial Member pointed out that the Appellant "must point to some evidence … which demonstrates that I have … acted biasly or there is an apprehension of me acting biasly". 38 The Appellant then went on to identify the first ground of his application [at p.23] that the Judicial Member had accepted oral applications from the University without any formal follow up and had "consistently denied oral applications from me" and that "demonstrates bias". "The University can make an oral application, fine, I can't. Is that bias? Yes". Pausing, again, the fact is that on 25 September 2008 the Judicial Member did in fact accept an oral application from the Appellant to recuse herself. 39 The Appellant proceeded to identify, by way of oral particulars, that on 23 January 2008 the Judicial Member accepted from the bar table without prior warning "an oral application that my application be struck out as an abuse of process" and that the Judicial Member (at p.24) should not have accepted that oral application and should have said: "Please, if you want to make that application, put it in writing (and) give it some support …" and that in so doing "you treated me unequally; that's the essence". 40 The next ground in support of the recusal application is articulated [at p.25] when the Applicant asserted that the Judicial Member had "consistently failed to ensure that all relevant materials (are) disclosed to the Tribunal so as to enable it to determine all of the relevant facts in the proceedings … (and thus the Judicial Member had) breached your statutory obligations; that is misfeasance in public office". The Appellant was referring to ADT Act s.73(5)(b) [to which we make more detailed reference below]. The Appellant then handed to the Judicial Member a decision in McGuirk v. Attorney General's Department [2007] NSWADT 138, stating that the decision was "an absolute disgrace". 41 Then [at p.26] the Appellant handed to the Judicial Member a copy of a letter 12 March 2006 from him to the Freedom of Information Officer, Community Relations Division, Attorney General's Department, which he submitted was another example of bias – "profound bias". 42 Later, on the same page, the Appellant referred to an FOI application by various other persons which was apparently written up in the Sydney Morning Herald newspaper (the relevance of this appears to have been a mystery to the Judicial Member, as it is to us) and stated that "four days after my application was struck out I put in an application for the same documents. You struck out my application because it was vexatious, misconceived, lacking in substance; so I put it in again … having struck out my application on the basis that it was vexatious, misconceived, lacking in substance (and) without giving proper reasons, all of a sudden 10 documents front up". The Appellant handed to the Judicial Member a letter dated to the Freedom of Information Officer, Community Relations Division, Attorney General's Department 29 June 2007 and a further letter addressed to the Acting Director General 5 September 2007. The Appellant went on [at p.27] to assert that persons the subject of the FOI Act "are to clarify, get it right, if there is some difficulty in understanding what is meant by the Applicant because the guidelines say that very often the Applicant is not quite sure. The obligation is fully and squarely on the Respondent … (who) … sought to have me struck out as being vexatious and whatever, and I put it to them and, in fact, you had this evidence, Mrs Higgins, you had this evidence in front of you when you made that decision … despite the fact that you knew personally, in your knowledge, that there was material held by the Attorney General's Department which fell within the scope of my request, you struck it out. Now, that's incompetence. It's really not doing your job. You can't do that, Mrs Higgins, and retain your position here as a Member of the Tribunal. That's incompetence, (arguably) corrupt". There then followed some discussion with reference again to s.75(5)(b) and [at p.28] the Appellant said to the Judicial Member: "You thought: I'll get rid of this guy. Mrs Higgins, it is not open for you to do that. That is not fulfilling your obligations. If you take the money you do the job. If you don't want to take the money you don't do the job. Mrs Higgins, you have been aware of that for some time. I've drawn it to your attention before and I said it needs to be re-opened. What have you done? Nothing. So, I have now applied to the Tribunal to have it re-opened and struck out". 43 The next bias point raised by the Appellant appears [at p.28] where this exchange took place: Higgins: Keep going Mr McGuirk. Applicant: Mrs Higgins, how many section 58 references have you made? I note for the record, and this a Jones v. Dunkel point. Well, it is, isn't it? Higgins: Keep going Mr McGuirk. Applicant: In my researches Mrs Higgins has never made a report pursuant to section 58 (of the FOI Act) of the conduct of any officer of any agency and in particular never in respect of the University of New South Wales and Ms Fleming and Mr Singleton. Notwithstanding the clear power conferred on the Tribunal under section 58 of the FOI Act, which must be used in a proper case. It is not a discretion at large. When the circumstances arise, which clearly demonstrate that the University has not complied with its obligations, it is not open to any Tribunal Member not to fulfil his or her obligations or to make a proper report. In fact, the failure to do so is like corruption; has proliferated and (is) proliferating and continues to proliferate in this state (as) the Labor Party implodes. Mrs Higgins, you have failed to fulfil your obligations." 44 It is not clear to us that the learned Judicial Member should ever have made a report pursuant to FOI Act s.58. There was no evidence before the Judicial Member, nor was there any evidence before us, that the Judicial Member should have made such a report. 45 Then followed some discussion about costs under the ADT Act, s.88. Somehow from that discussion, the Appellant stated [at p.28], as his next ground for alleging bias: "My point is that you have selectively used powers to shut down applicants while condoning the improper conduct (of) people such as Mr Singleton and Ms Fleming and the University generally". When asked [at p.29] to "point to an example where (Higgins JM has) selectively shut down an Applicant" the Appellant stated that the Judicial Member had never used the s.58 power and had abused her powers under s.73(5). At lines 37ff at p.29 the following important exchange took place: "Higgins: What I want you to do is point me to examples where I have shut down applicants. Applicant: I read from a report prepared by (an) administrative law student who sat in the back of this Tribunal … Higgins: Mr McGuirk, Mr McGuirk, for the record … Applicant: This is … Higgins: Mr McGuirk, Mr McGuirk … Applicant: … (when) Mrs Higgins presided over the McGuirk hearing the member appropriately dispensed .. Higgins: … Mr McGuirk, Mr McGuirk, I'm going to … Applicant: … as the hearing progressed her neutral stance shifted towards somewhat bias … Higgins: … the Tribunal – this hearing – is now adjourned. Will you turn it off, please? Recording equipment turned off at Judicial Member's request. Applicant: … time being an obvious constraint it seems she had made up her mind. Short adjournment. Applicant: Can I have it read on the record … Higgins: No, Mr McGuirk you will hear me first. I am presiding over these proceedings. Applicant: Well, (it's) your conduct (that) has been impugned, not mine, Mrs Higgins. Higgins: I understand that, and I am listening to the submissions that you are making. I propose … Applicant: But you're … afraid – you're not willing to accept evidence. Higgins: I propose – I propose if these proceedings cannot continue in an more orderly fashion with you, Mr McGuirk, dealing with material appropriately rather than you just reading out things arbitrarily, I will … Applicant: Mrs Higgins, I will provide … Higgins: … adjourn these … Applicant: … would you mind getting a copy of this? Higgins: … I will adjourn these proceedings. I will make orders for material - for submissions to be filed and I will make a decision on the papers. Mr McGuirk … Applicant: Mrs Higgins I – I … Higgins: … Mr McGuirk, I haven't finished yet. Applicant: Yes, well I don't intend to put (in) any further written submissions … you've got all the evidence in front of you; if you are not prepared to deal with the evidence, if you're not prepared to also really look at your records Mrs Higgins … Mrs Higgins: Mr McGuirk I am not … Applicant: … I can't help you. Higgins: Mr McGuirk, you are fully aware of what is required in order to support an application for bias. Applicant: Mrs Higgins, I have the material in front of me. I can read it. There are two paragraphs. Higgins: Mr McGuirk, Mr McGuirk … Applicant: … and you are refusing. See, this is a bias issue. You could deal with this … Higgins: Mr McGuirk, Mr McGuirk … Applicant: … you could deal with this in 30 seconds. Higgins: Mr McGuirk, I am all too familiar with the material you're seeking to rely on. That material with respect … Applicant: … evidence of her dismissive attitude towards the Applicant. Higgins: Mr McGuirk, Mr McGuirk this is not … Applicant: This is an independent observer. Higgins: … this is not a dismissive attitude, Mr McGuirk … Applicant: No – it's evidence; its written down – this is an independent observer talking about your conduct And later: [at pp 31-32]: Applicant: Bias was evidenced in her dismissive attitude towards the Applicant in some respects. That's you, Mrs Higgins. I didn't invite this. I didn't invite it to be written. This is a University Student. Higgins: Mr McGuirk, Mr McGuirk, I understand what it is. It is not material that, with respect, is relevant or admissible in these proceedings. This is a matter for me to determine. It is not a matter for your students or your fellow students to determine". Applicant: No. No. It's not a matter for you to determine. 46 There are a number of points to be made about the above exchange. First, it appears plain that the Applicant was talking over the Judicial Member on an almost continuous basis. Those interruptions reached in our opinion an improper, if not offensive, level. Secondly, there followed a situation where the Judicial Member extended to the Appellant 15 minutes to finish his submissions orally, he having said he did not wish to put in any written submissions. There followed an almost continuous address from the Appellant covering 3 or so pages of transcript which we will detail later in this Decision. Thirdly, it is now appropriate to address the issue of the student's "report" in more detail. Student's Report 47 As is evident from the above exerpts from the transcript the Appellant sought to read on to the record a portion of a report prepared by a student at the University of NSW, as evidence of the asserted bias of the Judicial Member. The Appellant, on this appeal, placed considerable reliance upon the student's observations and asserted that those observations were sufficient to establish bias. 48 In his oral submissions to the Appeal Panel 11 June 2010 he stated [T.40] that, on that particular day before Higgins JM, he stated: "Well, in fact, I remember I walked up … behind the recorder [ie the person who was recording the proceedings], who was on the left-hand side, up to Mrs Higgins and gave it to her, or tried to give it to her, and she passed it back to the recorder". So, and doing the best that we can, and even accepting that as being the fact, it would appear that the Appellant, after the recording equipment had been turned off, approached the Judicial Member and attempted to hand to her the student's report. She declined to accept it and handed it to the recorder. We pause to observe that in this Tribunal there is no formal court/tribunal officer, such that if a party seeks to tender a document they either approach the Bench (by leave) or the recorder/monitor graciously assists by taking the document sought to be tendered and handing it to the Judicial Member. So, it is quite likely that the Appellant (if one accepts the statement made by him) handed the document to the recorder/monitor, he/she would have handed it to Higgins JM and she, in turn, would have returned it to the recorder/monitor who would have then returned it to the Appellant. 49 In his oral submissions 11 June 2010 the Appellant submitted, in relance upon Ebner at [6] that he was a party, that the student was a member of the public, that he entertained a reasonable apprehension, and the student entertained a reasonable apprehension, that Higgins JM might not bring and impartial and unprejudiced mind to the resolution of the question before her. The passage relied on was in the following terms: "The principle that a judge should not hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial or unprejudiced mind to the resolution of the question involved in it …". He seized upon the statement by Mr Singleton of counsel for the Respondent (Submissions p.4) that it "is the parties or the public whose apprehension (or non-apprehension) is relevant, not that of the court or the appellate court … what is required is an assessment of how the public or parties would assess the circumstances" and that (at p.5) "what the public or parties must entertain is a 'reasonable apprehension'." 50 We understand the Appellant to submit that by those various paragraph the University conceded the appeal. At [T.11/06/10 at 46] the Appellant made this submission: "The next sentence is the critical one. It says "the parties or the public". I'll stop there for one minute. Let me just repeat that phrase: "the parties or the public … I happen to be a party. I happen to be a party and it says: "The parties or the public might entertain a reasonable suspicion that (the Judge) … might not bring an impartial or unprejudiced mind to the resolution of the question involved". So let me just re-state, to put it in my … terms: a Judge should not sit if I, as a party, Michael McGuirk, entertain a reasonable suspicion that Mrs Higgins might not bring an impartial mind, impartial, unprejudiced mind (to) the resolution … on the question before (her). Now, Mr Singleton, in his submission, said Mr McGuirk might have a reasonable suspicion that Mrs Higgins might not bring an impartial mind. He's conceded my case". 51 And, (at p.47) the Appellant stated: "Is my apprehension reasonable? Am I a party? I think my apprehension is reasonable". And then went on to say that because it was "sufficient that the public or parties might reasonably apprehend" bias then that was a concession of his appeal. 52 The Appellant adopted the view that because he had a personal view about Higgins JM, a view which was supported by the student, then the Judicial Member should step aside. At [T.11/06/10 at p.42], the Appellant said: "… really the nature of this matter is more of the nature of a review than an appeal in the strict sense. It is effectively a review of the conduct of Judicial Member Higgins and whether it is proper to infer that Judicial Member Higgins, based on that conduct, should really step aside and hand over the matters to another person. That's the remedy I'm seeking. Nothing more, nothing less. I'm just staying: Mrs Higgins thank you very much … nice to know you but please can we hand the matters over to somebody in whom I can have a bit more confidence". 53 Because the Appellant put great store in his personal view and in the views expressed by the student, we have thought it appropriate, and proper, to deal with the student's "report" in more detail. This document was placed into evidence before us by the Appellant as Exhibit 4. It comprised not only the "report" itself but also a number of other documents. In dealing with these documents we have anonymised the name of the student who prepared the document, and the name of the other matter to which the student refers in her material. This is because first, there is no evidence at all that the author of the document consented to its use in open proceedings in this Tribunal; and, secondly, the other matter to which reference is made is really not relevant to the matters now debated before this Appeal Panel. 54 The student's document was provided to the Tribunal under cover an e-mail 21 August 2009. Relevantly, the Appellant stated: "… I attach to this e-mail copies of correspondence between myself and a certain Ms (X) from late March/early April 2007. As the Tribunal knows this correspondence (which includes the report prepared by Ms (X) goes to the heart of the appeal under ADT file no ADTAP 089076." 55 The Appellant submitted that the report was unsolicited. The first document in the documentation presented to the Tribunal as Exhibit 4 is an e-mail from the student to the Appellant at his e-mail address, 21 March 2007. How it was that the student knew the e-mail address of the Appellant was not explained. In this e-mail to the Appellant the student identified herself, stated that she was from the University of NSW, and stated: "I sat in the hearing today at the ADT. If it's no trouble could you please clarify a few points for me regarding the case. I understand it is to do with the FOI act, but was the main issue, on the 21/3/07, in regards to the advance deposit? Because there was mention of jurisdictional issues?? From my interpretation, your main argument was that the UNSW said you had to pay a deposit before you could access certain documents, you refused and sought internal review and claimed that UNSW refused to deal with your application. UNSW claims they did not refuse … from then on it was all about the advance deposit. The main issues were both of fact (evidence) and of law (FOI Act)? As I mentioned I have to write a report, but the report is not supposed to describe the facts in detail, just briefly … it's more to do with the ADT in general. Thank you in advance and good luck with the case!" 56 The appellant replied by e-mail on the same day, relevantly as follows: "About the matters before the Tribunal today. These are both complex matters, with long histories. However, as I know only too well (as a former Associate Professor of UNSW) what you need to do for your report is to "distill out the essence". This is as follows: 1.The University has submitted in both ADT 063197 and 063262 that the Tribunal has no jurisdiction to hear these matters, on the basis that the internal review determinations made by the University were 'purported determinations' and therefore not reviewable by the Tribunal. This submission by the University goes to the heart of the administrative law,. I am sure you will see the error of law made by the University in asserting this. (If not, let me know.) 2.The second issue is relates to the University's request for 'advance deposits', and their subsequent refusal to 'continue to deal with' my FOI applications on the basis that I declined to pay those deposits. The key issue here is how the power conferred by the FOI Act under sections 21 and 22 is to be exercised. How discretion is to be exercised – or otherwise put, what the obligations are on an administrator in the exercise of a discretion conferred under statute – is also a fundamental issue (perhaps the most fundamental issue) in Admin Law. I have attached relevant submissions and decisions of the ADT. As I said to you in the Tribunal today, I am more than happy to provide you with this information, on one condition – that you provide me with a copy of your report. If you are not prepared to do so, please delete this email. I am also happy for you to provide copies of this information to your colleagues at UNSW who are also studying Admin Law on the same basis. Best of luck. Let me know if you need more info." 57 The student replied by e-mail of the same date relevantly as follows:- "Thank you very much for the information provided! I will be more than happy to send to you my final report which is due in a couple of weeks". 58 The Appellant responded by e-mail 22 March 2007, as follows: "The attached should also be of assistance. It is the transcript of a hearing into this matter from 20 June 2006. The University solicitor may be able to tell you why he decided not to put this transcript, which is clearly key to understanding the history of the matter under 063197 before the Tribunal. Interesting also that Mrs Higgins, who is normally very good, forgot that this hearing had taken place at all. Hence my 'protests' at the end that the University had misrepresented the history of the matter and my conduct. Note also that the decision of the Appeal Panel of the Tribunal –[2007] NSWADTAP 4, a copy which is attached – related to the matter under 069018, which, as you will see, features prominently in the transcript." 59 The student responded by e-mail 28 March 2007, as follows: "I just wanted to ask a quick question … Is Miss Higgins legally trained? The reason I am asking is that is because some members of the ADT (as I was told) do not have a legal background … If you are wondering what relevance this has in regard to my report, it is because we are asked to consider how appropriate the role of the tribunal is, so I will be giving a critical analysis of my own observations …" There was no evidence of any reply to this enquiry. 60 The student supplied her report to the Appellant under cover of her e-mail 3 April 2007, as follows: "Here is my Tribunal report. What I had to do is "consider any questions that arose as to the appropriate role of the tribunal" based on my observations ….. the word limit was 700 so it wasn't a big report …" The report was attached. 61 As appears that on 25/09/08, at [T31] the Appellant sought to read out into the transcript some paragraphs of the student's report. We have set out above at [45] the transcript of the hearing before Higgins JM commencing at p.29 where the Judicial Member asks: "What I want you to do is point me to examples where I have shut down applicants", up to where the Appellant says: "No, no, it's not a matter for you to determine. 62 The student in her report sought to compare an appeal panel hearing before a Full Bench of the Tribunal with a directions hearing before a single Judicial Member. The three paragraphs which the Appellant attempted to read on to the transcript were as follows: "Miss Higgins presided over the McQuirk hearing. The member appropriately dispensed her role relatively well in some areas, such as clearing up issues and reviewing evidence. She also took on a didactic role by suggesting possible alternatives to resolving the dispute via quicker means and advising the client on how to avoid further conflicts. As the hearing progressed, her neutral stance shifted towards being somewhat bias. Time, being an obvious constraint, could have been a factor for this shift in attitude, as the member seemed to rush the process. It seems as though she had made up her mind, leaning towards the respondent. Bias was evidence in her dismissive attitude towards the applicant in some respects. At one stage, the applicant pointed out the resource imbalance between himself and the respondents. The member, quite frustrated, seemed to dismiss such issues and did not acknowledge it. The Applicant responded, and rightly so, by saying he has a right to be heard and wanted to get to the truth. In contrast, in (the other matter), the members were quite patient with the applicant, possibly empathising with his lack of knowledge of the law. We hence see the prominence given to the issue of efficiency which transcends into actions, attitudes and decisions of members. Due process should not be sacrificed for efficiency. There must be a balance between these two objectives". 63 A comparison with the transcript set out above at [45] with the three paragraphs quoted above makes it plain that the Appellant sought to read on to the transcript those portions of the student's report. 64 The Appellant also told us (see above at [48]) that at one point during the hearing before Higgins JM he attempted to hand the student's report to the recorder/monitor (ie the person in charge of the transcript recording). There is no note in the transcript to that effect; but why the Appellant would seek to hand a copy of the report to the monitor is not immediately apparent to us. We have commented about this above. The Tribunal does not have a court officer and it is often the case that the recorder/monitor kindly offers his/her services as a conduit when parties seek to tender a document. However, that is only the case where leave or permission has been granted by the Presiding Judicial Member to the party seeking to tender the document. No such leave was granted in this case; no such leave was sought. In short, what the Appellant sought to do was, in the absence of leave, read the three paragraphs on to the transcript, thereby apparently asserting (incorrectly) that the content of the report was evidence. It was at that point of time the Judicial Member requested the recording equipment be switched off (T.25/09/08, p.30). It is plain that the Appellant thought the report was evidence (see line 29, p.30). It clearly was not received in evidence; yet the Appellant sought to continue on with his reading on to the record the observations of the student ( p.31) and at p.32 this exchange took place: Higgins: Mr McGuirk, Mr McGuirk, I understand what it is. It is not material that, with respect, is relevant or admissible in these proceedings. This is a matter for me to determine. It is not a matter for your students to determine or your fellow students to determine. Applicant: No, no. It's not a matter for you to determine". 65 Clearly, in our view, the learned Judicial Member was correct. The report of the student was no more and no less than a report provided by her as part of her university assignments; it was a personal report of her personal observations; and was not appropriate to be regarded as evidence of bias or evidence that the Judicial Member had "shut down applicants". (p.29). Continuation of 25 September 2008 Hearing 66 At (p.32) Higgins JM observed that is was then 3-30pm and this exchange took place: "Applicant: No. I said I wasn't going to put in any written submissions … because, Mrs Higgins, it just takes too long. I have got a life to get on with … Higgins: Now, Mr McGuirk, it is now 3.30 … Applicant: I've got a life to get on with, I've got a life to get on with. Higgins: It's 3-30; can you finish your submissions in the next 15 minutes? Applicant: I'll just summarise where we're at. Higgins: Can you finish your submissions in the next 15 minutes? Applicant: I'm not sure. Higgins: I beg your pardon? Applicant: I'm not sure. Higgins: I'll give you 15 minutes. Applicant: Don't – in respect of my application about bias you want to shut me down. That's ok. Fine I mean. It's quite normal. Higgins: Keep going, Mr McGuirk, you have 15 minutes to keep going". 67 The Appellant relied on this as an attempt to shut him down, thus yet another ground for the Judicial Member to recuse herself. Quite frankly, and looking at the whole of this directions hearing, the transcript is then at p.32, the recusal application could easily have been dealt with by the Appellant in far less time than he took, if he had simply stuck to the presentation of material that might explain or support the application. 68 The transcript from p.32ff then deals with lengthy oral submissions made by the Appellant. He submitted that the University and himself "must be accorded equal treatment. It's as simple as that. It's called the rule of law". He referred to the fact that is first FOI application was in 2003, that he put in a couple in 2004; that he had "a right to expect and I demand … to be accorded equal treatment. It is not a question of this Tribunal's discretion, (or) anybody's discretion to give better treatment to Mr Singleton because he wears a fancy tie or because he is at the bar …'; (at p.33) that Mr Singleton and the University "are under common law obligations, breach of which can (sound in) damages, to comply or to obey or be model litigants … I come here, I expect to be treated with respect, I expect to be given equal treatment … if you look at the history of decision making of this Tribunal, any notion that judicial members are independent, impartial, with perhaps the exception of two people who I have encountered in this Tribunal, two and two alone … it's nonsense and I happen to know a lot about the President and what the President's been saying about me …". He then asserted that the Judicial Member was "an officer of the Attorney General's Department. If you go up the line you report to Kevin O'Connor (the President of this Tribunal) and you report, subsequently to Laurie Glanfield" (head of the Attorney General's Department) … (and he alleged that Mr Glanfield, and Mr Knight (the NSW Crown Solicitor) had "both acted highly inappropriately; I also know they have been trying to shut me down in a ferocious manner …; (at p.34) the Appellant made personal allegations against Mr Singleton of counsel to the effect that he's been seeking costs … and asserted that the obligation of the Judicial Member was that where there's a whiff of corruption is to open (the) lid and "not to find excuses for covering up corruption" … "but what this Tribunal said – it is necessary to cover up corruption for the proper administration of this Government (by the way the Judicial Member) fundamentally misconstrued the clear words of the (FOI) Act … and you have consistently taken a pro-agency stance notwithstanding the clear words of the statute … (and) you have consistently failed in your duty; as a result corruption has proliferated; you've been paid for it but I ask that you either pack up stumps or you do your job and treat me with respect and I will treat you with respect … but … it's a two way street, and if and when you do not bring the University to heel for its misconduct I will (be) increasing ferocious because Mr Singleton sits here in his fancy suit earning $2,000.00 a day and into corruption this State. I find that really disgusting; I can use no other words for it, disgusting. …". At p.35 he adverted to his sacking from the Respondent University "for reporting misconduct and the Crown Solicitor defended that because one of the people was a friend of Bob Carr, that is the truth. You are obliged to establish that proof. Mr Singleton, under cross-examination can give us a lot of information he knows what (a nominated person) did – he knows what (the nominated person) did serious criminal conduct and Mr Singleton has been supporting that. That is corruption. I don't care what Mr Singleton does with the words and fancy stuff, he cannot support corruption…". He went on p.36 " … Mr Singleton's fraud vitiates his role to sit at the bar; Ms Fleming's cover-up of corruption vitiates her role to be – (her) right to be a solicitor of the Supreme Court of New South Wales. If, Mrs Higgins, if what I am saying is untrue, then the documents will show that it is untrue. If, what I am saying is true then let's get the stench out into the public air; let's get a bit of disinfectant into it. But, what you have been doing, rather than doing your job and exposing corruption, you've been playing with words, hiding behind the veils of clauses and sections and misinterpreting them … (by trying) to shut me down; not actually doing your job … if hiding the truth is necessary for the proper administration of the Government of this state then we should migrate to Iraq, maybe North Korea … Mrs Higgins, if you are prepared, and you don't have to say it out loud, if you are prepared to comply with your obligations at law, fulfil your statutory obligations to stop this in public office, then we can get on. But I have been disgusted at this Tribunal over the last four years, absolutely disgusted. The lack of courage, decency and honesty really leaves me cold …". He concluded this submission "but certainly in regard to the FOI Division of this Tribunal it's the cover-up of corruption division as far as I am concerned and it has been since its inception. I ask you to recuse yourself". 69 At (p.36) Mr Singleton of counsel for the Respondent was asked to respond. He said he was not on notice of the application for recusal. He was continually interrupted by the Appellant, who asserted that Mr Singleton was "under an obligation to tell the truth … (and that it was) improper for this Tribunal to sit here and to listen to garbage spouting from this person's mouth – he's under an obligation to actually tell the truth". At (p.37) this exchange took place: "Higgins: Mr McGuirk you have been extended the courtesy by not interrupting you, can you extend … Applicant: Please extend me the courtesy of not allowing this person to lie. Higgins: You can respond after he's spoken … Applicant: No, no. This Tribunal should not put up with this sort of conduct by a member of the Bar. They should say if you want to be a member of the Bar you must tell the truth and assist this Tribunal; otherwise get out of here. Higgins: Mr Singleton, this is just becoming impossible to deal with, I am afraid; unless you have anything particular I don't think I need to be addressed on the principles." Mr Singleton shortly addressed, observing (at p.38), that the point is "not bias (in) the way the matter has unfolded and no doubt under the pressures that include pressures that he (the Appellant) has put on the Tribunal. The fact that you have made decisions in the past does not prove anything about bias. He has not, in any way, demonstrated that any of the decision made in the past were wrong". 70 The next five pages (p.38-42) consist primarily of lengthy further submissions by the Appellant. There is really no need to recount those submissions in detailbut we note some major matters: 1. P.38: "the fundamental premise (under the FOI Act) is that only those documents will be withheld which (are) necessary to withhold for the proper administration of government. Now, the body responsible for the proper administration of this Act, the FOI Act, is the Administrative Decisions Tribunal. So, we have a robust Act, we have, without doubt, the most corrupt state in Australia. The corruption state … we should put on our number plates". 2. P.39: "So, we have an FOI Act, we have a Tribunal responsible for people such as yourself for making it work, and it's an absolute, bloody, dismal failure … this Tribunal has profoundly failed to ensure that the FOI Act works and I know the reason for that: (it) is because when the Tribunal was set up they were looking for somebody – the right wing of the Labour Party was looking for somebody who is a bit of a pasty and Kevin O'Connor was the man." The Judicial Member noted that "these submissions are really not appropriate to the application that is before me Mr McGuirk" but the Appellant went on to say: "But the situation is, you see, that in an environment where you, your future, your bread and butter, your income is dependent, as it is, on not getting offside with President O'Connor, Mr Knight and Mr Glanfield, it is manifestly impossible … for you to really act with independence .. the situation is that if you are in a situation where … you do the right job you'll get sacked then there is a very strong incentive … ". Then Higgins JM made this observation: "So, you are essentially saying that I must be biased because of the way the whole system is structured". This, in our view as an important observation because here Higgins JM endeavoured to distil the substance of the Appellant's complaint and what may be now regarded as the real ground of the appeal before us (that is not to say there were not other grounds of appeal). 3. At p.39 the Applicant continued with this theme. He submitted that there was "a structural problem with the Tribunal (in that) there isn't the necessary degree of independence for you to be impartial … you know that is manifestly the case … (he then referred to some decisions of Montgomery JM when he had) "done the right thing (and) actually complied with his statutory obligations" his decisions ended up in the Court of Appeal; such that there is "a major element of fear because the moment you start deciding in accordance with your statutory obligations your re-appointment is gone, simple as that". 4. At p.40: the appellant referred to "structural problems" and "code of conduct" and repeated his submissions (basically expressions of personal opinion) that there were "structural problems with the Tribunal, the reporting structure in particular, which do make it almost impossible for Tribunal members to act independently … (because they were not appointed for life and have no tenure). Higgins JM observed that "these submissions … are more appropriately put to Government rather than to me, quite frankly". 5. At p.41: "but the history of your decision making which I have not particularised according to Mr Singleton, which is a load of codswallop, Mrs Higgins, you have never made a section 58 report. That is a particular; you have never, ever, despite the egregious misconduct (of) Mr Singleton and other officers of the University …", and he later referred to section 73(5)(b) (as) "the most fundamental power of this Tribunal". At p.41-42 he again referred to the submissions of the University as "by and large a load of codswallop". 71 We have been to some trouble to identify, and to seek to explain, the course of conduct before Higgins JM on 25 September 2008 and the way in which the application for recusal was presented by the Appellant. We should add that, we consider that the behaviour and responses to what the Appellant was putting forward, of the Judicial Member, and Mr Singleton of counsel, and those instructing him, were beyond reproach. 72 The Judicial Member reserved her decision. Decision 11 November 2008 73 Higgins JM brought down her reserved decision on 11 November 2008: McGuirk v. University of New South Wales [2008] NSWADT 302. It is from that decision that this appeal is made. The Judicial Member observed at [5] that the Appellant's submissions "went well beyond that which was relevant to the application he had made. They were in the main repetition of Mr McGuirk's wider allegations and grievances over which the Tribunal has had no jurisdiction and of which Mr McGuirk has been informed on many occasions". 74 At [6] the Judicial Member identified the various points to which the Appellant based his argument and which allegedly demonstrated that she was biased: "(a) my refusal, on 8 May 2008, in application file No. 073277 to accept Mr McGuirk's oral application to have the oral application of the University, made on 23 January 2008, 'stuck out for an abuse of process': T.24-1. The University's oral application was an application for an order that Mr McGuirk's application for review be dismissed as it was an abuse of process; (b) my consistent failure to (ensure) that all relevant materials are disclosed to the Tribunal pursuant to section 73(5)(b) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'): T25-35; (c) my failure to report conduct under section 58 of the FOI Act; (d) my 'selective' use of the discretion under section 88 of the ADT Act to 'shut down applicants while condoning the improper conduct that people such as Mr Singleton and Ms Fleming': T28-49; (e) my failure to accord him equal treatment to that given to counsel representing the University, Mr P Singleton: T32-43." We assess the Judicial Member's identification of these issues as correct. These paragraphs seem to us to be a distillation of what could rationally be assessed as grounds propounded by the Appellant, although they may have understated the systemic or cultural bias point, having regard in particular to the way that was developed before us. 75 The Judicial Member observed at [8] that it "is well established that judicial officers are at all times bound by the rules of procedural fairness, which comprise the hearing rule and the bias rule. Judicial officers include Judicial Members of the Tribunal: see section 73(2) of the ADT Act". That observation is clearly correct. 76 At [9] Higgins JM identified the bias rule as requiring the decision maker "to disqualify him or herself from hearing a matter if he or she is actually biased or a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the decision to be decided" and she made detailed reference to Ebner. She also observed that "it is also accepted that judicial officers must not disqualify themselves too readily. Any pre-judgment on the part of the decision maker must be "firmly established" and it is not enough for a fair minded observer to reasonably apprehend that the decision maker will make a decision adversely to one party". She referred to a number of decided cases, quoted in detail from Re: JRL; ex parte CJL (1986) 161 CLR 342, at 351; and Minister for Immigration and Multicultural Affairs v. Jia (2001) 205 CLR 507. She also referred in detail to Li v. Minister for Immigration and Multicultural Affairs [2000] FCA19; (2000) 96 FCR 125 at 133. She also noted at [12] that in Ebner the High Court said that in determining whether the apprehension of bias principle applied this required a two step approach: "… [First] it requires the identification of what it is said might lead a Judge or Jury to decide a case other than on its legal or factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation of the course of deciding the case on its merits." 77 We respectfully agree with that assessment of relevant legal principles. For reasons that we shall set out later in this decision we are unable to see any misappreciation by Higgins JM of the principles that must be applied in determining whether a Judicial Officer is biased or is the subject of apprehended bias. 78 In consideration of the issues before her Higgins JM made these observations: "[13] In my opinion Mr McGuirk has not pointed to any evidence that shows I have prejudged the issues arising in and from his application, that is file No. 073277, or any of his other applications that are pending before me. Nor has he been able to point to any evidence which shows I have acted with such "partisanship or hostility" which demonstrates my mind is made up. [14] Nor has Mr McGuirk pointed to any evidence that, in my opinion, shows that "a fair-minded lay observer might reasonably apprehend" that I might not bring an impartial mind to the matters that are in issue in the applications he has filed in the Tribunal and which are currently listed before me for directions or determination. … [17] Section 73 of the Administrative Decisions Tribunal Act 1998 ('the ADT Act') deals with the procedure of the Tribunal generally. Paragraph (5)(b) of that section provides that 'the Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all the relevant facts in issue in any proceeding.' Mr McGuirk asserted that in his review application that was file No 063263 (see McGuirk v Attorney General's Department [2007] NSWADT 139) I had failed to ensure that the agency had placed before me the documents he had requested under the FOI Act. To support this assertion he relied on a subsequent FOI request that he made to the Attorney General's Department in which he sought access to the same documents. On this occasion, the agency made a determination that resulted in him being granted access to documents, when the agency had previously asserted it had no documents. [18] Once again Mr McGuirk's assertions are of a broad brush nature and also misconceived. A careful examination of the Attorney General's Department response to his subsequent FOI request shows that this was not strictly speaking a response to a request for the same documents he had requested earlier (see letter dated 5 September 2007 from the Attorney General's Department to Mr McGuirk). In any event, an alleged failure by a judicial officer to properly exercise a statutory function may give rise to a ground of appeal, but of itself it does not evidence actual or apprehended bias. [19] Section 58 of the Freedom of Information Act 1989 ('the FOI Act') enables the Tribunal, when reviewing a decision of an agency pursuant to section 53 of the FOI Act, to bring to the attention of the Minister responsible for the agency specified conduct of an officer of the agency. The specified conduct is where the Tribunal forms the opinion that as a result of the review application, an officer of the agency has failed to exercise in good faith a function conferred or imposed on the officer under the FOI Act. [20] In his review applications Mr McGuirk has often raised this issue, yet he has not pointed to any decision or other evidence which shows that my findings in regard to this issue establishes that I am biased or that there is an apprehension of bias. As mentioned above, the fact that I have not agreed with his assertions in the past does not mean that I have prejudged or will not bring an impartial mind to this issue when and if he raises it in the future. [21] Mr McGuirk was unable to point to any evidence of my alleged 'selective' use of my discretion under section 88 of the ADT Act to 'shut down applicants'. Once again this is a sweeping generalisation of Mr McGuirk. [22] Mr McGuirk has also failed to point to any evidence of my failure to accord him equal treatment to that given to counsel representing the University. In this regard he sought to hand up a document that he has previously described as being a document prepared by his fellow students who had attended, at his invitation, a hearing of an earlier review application he had made. This document Mr McGurik asserted established that I gave him less time to make his submissions that I had given Mr Singleton, on behalf of the University. I refused to accept this document as it could only be described as a self-serving document of subjective views. In making this comment I do not intend any disrespect to the student who attended the hearing, which was open to all members of the public. [23] As Mr McGuirk well knows, the onus was on him to establish the asserted actual and/or apprehended bias through probative evidence that could be assessed objectively. This he failed to do. [24] Accordingly, for the reasons set out above, Mr McGuirk's application that I excuse myself from hearing and determining these matters is dismissed." 79 We have set out above in detail the relevant excerpts from the transcript of the hearing before the Judicial Member and the relevant excerpts from her reserved decision. We are unable to find anything that would demonstrate that the decision of Higgins JM was wrong in any appellable point. 80 We add that the Appellant, on appeal, stated that the observations of Higgins JM at [22] were wrong because the particular student was not a fellow student and did not attend the hearing at the Appellant's invitation. The Appellant submitted that, in itself, was sufficient to vitiate the decision. We cannot agree. Whether or not the observations of Higgins JM are correct on this point is irrelevant – the observations are not of a substance that would go to the validity of the decision. Further, we agree with the observations of Higgins JM that the document can "only be described as an self-serving document (and more importantly) of subjective views". The real test is not the subjective view of a student but rather the reasonable view of "a fair minded lay observer"; and the assessment of that view is to be made on all the objective evidence and according to law, and not the subjective opinion of a particular lay person. Appeal - Preliminaries 81 We have referred above at [12-13] to the grounds of appeal as articulated by the Appellant in the Notice of Appeal; and we have also referred above [16ff] to the additional argument agitated by the Appellant that or to the effect that the Tribunal is so infected with a culture of systemic bias that it cannot fairly deal with FOI applications. The Appellant did, however, indicate that there were one or two Judicial Members with whom the Appellant felt comfortable. Why it was that they were not tainted with the asserted culture of systemic bias, they having the same tenure as any other Judicial Member, was not explained. In support of the Appeal the Appellant put before us the following documentation: 1. Statement of Gerald Michael McGuirk dated 8 June 2009. 2. Letter 5 November 2009 to the Tribunal. 3. Submissions for the Appellant dated 30 June 2009. [These three documents were filed as part of the Appeal papers]. 4. The transcript of the hearing before Higgins JM 25 September 2008 (to which we have made detailed reference above). (Exhibit 1). 5. Another copy of the letter 5 November 2009 to the Tribunal; but this time with various annexures (Exhibit 2). 6. List of decisions of the Tribunal to which the Appellant has been a party, up-dated to 16 January 2010 (Exhibit 3). 7. The Report form the University student and the various e-mail transmissions (to which we have made reference above) (Exhibit 4). 8. A copy of the "Year In Review" being a document published by the Tribunal's president as part of the Tribunal's Annual Report for Year ended 30 June 2007. This was marked as "MFI 1" but because the Appellant referred to it on a number of occasions and it is appropriate, in the interests of justice and the articulation of the Appellant's submissions, to refer to and quote from this document. 9. Letter from the Appellant to the Tribunal 24 May 2010 (Exhibit 5). 10. Letter from the Appellant to the Tribunal 17 June 2010. Appeal - Directions Hearing 82 The matter first came before Needham DP on 18 March 2009. According to the Tribunal records, the appearance by the Appellant was by telephone. Mr Singleton of counsel appeared for the Respondent. It was a directions hearing. Needham DP was informed that the Respondent was "not opposing a grant of leave (but was) not consenting to it either". It was suggested that there would be a lengthy hearing on the leave application where "the same kind of issues that are likely to be the subject of the appeal is leave is granted" would be agitated, and that it would be more appropriate to determine the application for leave at the same time as the hearing of the appeal. The Appellant indicated (T.18/03/09 at 2) that he did not "have a problem with that". 83 After considerable discussion eventually all four matters 073277, 083019, 083882 and 083009 were stayed "pending further order of the Appeal Panel". Appeal 84 The appeal was the subject of an adjournment on application by the Appellant on 9 November 2009 so that arrangements could be made for the Appellant to present his case in person instead of by telephone, and was also adjourned on 3 May 2010 to enable the Appellant to have better opportunity to consider the record of proceedings on 1 February 2010. The appeal itself was argued on 1 February, 3 May and 11 June 2010. The Appellant had filed a considerable body of material; and it was on that material, and his oral submissions, that he relied. 85 In deference to the submissions of both parties the Appeal Panel proposes to refer to the Appellant's material in some detail to emphasise the arguments raised by the Appellant such that they can be properly addressed. 86 At the outset it is, we think, appropriate, to isolate these arguments by reference to the Appellant's oral submissions, quoting relevant words the Appellant used before us to advance them. Hopefully the gravamen of the appeal can thus be presented. There are other related submissions ( with which we shall deal later in this decision) but, in doing the best that we can, the undermentioned passages from the transcript of 1 February 2010 identify the substance of the appeal: a) p3: "I want to put a framework around the appeal, although the essence of the appeal, as you know, is one of bias, either apprehended, or actual, or in fact both. I am asserting both, but I make it very clear … from the outset, that I'm not asserting, on behalf of Judicial Member Higgins, conscious bias … I'm not impugning conscious conduct of behalf of Ms Higgins. I think that somehow or other she has created, in her mind, a fantasy world which does not connect with the reality as seen by other people. In other words, her subjective perceptions are out of whack with the objective reality. That's the essence of the submission in regard to bias … and … that people to observe (her) in action or who read the transcripts and the proceedings, or even read her decisions would readily find that she is hardly demonstrating what you might call judicial independence". b) pp4-5: "the rules of procedural fairness include, of course, that the decision maker not be biased or essentially not be subject to apprehension of bias, and that's really the essence of my allegation, that I've been denied procedural fairness, in fact, over a long period of time …". c) p.16: that the "Tribunal has no role in covering up corruption … you're here to support the expose of corruption" d) p.32: "we are dealing with corruption at the highest levels of the Executive Government of New South Wales". e) pp.41-42: the tender of the 74 decisions of the Tribunal in various matters involving the Appellant (see [81.6] above) was "evidence of failure; a course of conduct, a profound failure on the part of several members of the Tribunal, but (the) impugning member in this particular case is Judicial Member Higgins; but if you track through those decisions … I'm not going to ask you to read them all but you will find … that the small majority of those decisions relate to substantive matters. Most of the … others are applications for advance deposits by the University, appeals against advance deposits, and costs applications, and lack of jurisdiction, and diversion of resources and … what that evidence is compelling (to) me is failure, including (failure) by Judicial Member Higgins. This is a course of conduct and bias which I am referring to. If that's not clear to you, I can't make it much clearer". And, at p42, it was submitted that Higgins JM dealt with an "overwhelming number (of) lack of jurisdiction questions, throwing things out because of a failure (of) jurisdiction …". f) pp.44-45: the asserted systemic bias in the Tribunal is "restricted … very specifically to the FOI decisions within the General Division … (and) I am saying very clearly … that the ADT in respect of FOI has failed to ensure that the Act is properly enforced and that (is) its job …". And, at p.45, the Appellant agreed that his case was that there "was systemic bias in relation to FOI", not in relation to the Tribunal generally. g) p.54: the Tribunal "is not a court. (It) is a member of the executive arm, or … is a body which forms part of the executive arm of the Executive Government of NSW reporting to the Attorney General Mr John Hatzistergos … (and the) members of this Tribunal are administrators and acting in an administrative capacity …". h) p.58: in answer to the question "Are you suggesting that everyone on this bench is tarred with the same brush, are you, or tainted accordingly?" the Appellant replied: "… what I am suggesting is that there are systemic problems with this Tribunal because the re-appointment of Members, and (they) are term appointments, depends on not getting, first of all, President O'Connor off side, and also certain other people (whom) I won't name …". Later in answer to the question: "Are you suggesting that every Judicial Member who sits on FOI applications is somehow tainted?", the Appellant relied: "No, I'm not, no. I'm talking about the system .." and at p.59, "this is about personal associations, cronyism, mates, fitting in within the FOI Division … I'm criticising very strong and robustly the FOI side", of the Tribunal. i) p.61-62: "there is overwhelming … circumstantial evidence set out by the pattern of conduct of Mrs Higgins and it is my submission that the conduct of Mrs Higgins can only be properly understood by reference … (to the environment) … What I'm suggesting is that because of the robust opposition of the Executive arm of the Government of NSW to transparency and accountability, because of the fact that Justice O'Connor works very closely with Mr Knight from the Crown Solicitor's Office who actively opposes FOI, that there is an environment within which people such as Mrs Higgins unfortunately have to decide matters … when one is looking for reappointment the notion that the fact (that) a decision (may) put somebody off side who has the power to appoint or not, the fact or the notion does not affect one's thinking, even subconsciously, is just absurd … (and that is the reason that the High Court has emphasised) the "necessity for life appointments to guarantee" (judicial independence) … it is not (possible) to understand Mrs Higgins … unless you understand the environment …". j) At p.74-75 the Appellant again referred to "the environment within which Mrs Higgins operates or has to operate … and that's why I'm careful to not make any personal attack on Mrs Higgins. This is an objective test. We are not judging the moral turpitude or the integrity of Mrs Higgins. We are looking at whether her conduct as evidenced over the past several years demonstrates, on the balance of probabilities, that she has been biased, or (that) a reasonable observer with knowledge of the proceedings might conclude that she might not (be so biased) (such that) … this environment provides a strong motive, whether consciously or subconsciously to fit in … the need to feel part of a team or to belong is profound …". The Appellant also admitted that the environment in which Higgins JM worked was "subject to very strong control by the Crown Solicitor and President O'Connor, (and) strong objection by the Executive Government against … FOI, although having to put on a public face saying … 'we support this sort of stuff'. But the reality is that the Crown Solicitor is the most robust opponent of FOI in this State and President O'Connor works closely with Mr Ian Knight. Mr Ian Knight advises President O'Connor on some of his decisions." k) At pp.86-87: "the key fact in issue in the current proceedings is whether the Judicial Member Higgins has been biased or may have been perceived to be biased in her handling of matters to which I am or have been a party and in the decisions which she has made in those proceedings … (thus one needs to look at) the environment in which she works which provides the rationale for bias, and particularly subconscious bias .. so the fact that President O'Connor has defamed me on a number of occasions is relevant because President O'Connor is part of the environment and influences Judicial Member Higgins …" (l) At p.88, "… what's unusual in this case is that the matter which is being handled is the bias application itself … here we have the very Judicial Member who has, in respect of whom it has been alleged, that there is apprehended bias or actual bias, and when you look at the way she conducted that investigation or conducted the hearing in relation to it, witnessed by the transcript, the transcript itself of that hearing is probably the most powerful evidence of her own bias … (so) the manner in which the Judicial Member Higgins handled the matter itself is evidence of bias". 87 The above assertions/submissions that were substantially repeated by the Appellant in his reply submissions on 11 June 2010. We do not think those repetitions need be quoted here but we do note that dominant assertions/submissions on that day are found in the Transcript 11 June 2010 at pp.25, 26, 27, 28 (where it was again asserted that (with the exception of the President and Deputy President Hennessy) "the members of the Tribunal do not have tenure"); and p.42: "the nature of this matter is more of a nature of a review than an appeal in the strict sense – it's effectively a review of the conduct of Judicial Member Higgins and whether it is proper to infer that Judicial Member Higgins, based on that conduct, should really step aside and hand over the matters to another person. That's the remedy I'm seeking; nothing more, nothing less. I'm just saying, Mrs Higgins thank you very much and (its) nice to know you; but please, can we hand the matters over to someone in whom I can have a bit more confidence?" 88 Then, at p.46, the Appellant made this statement: "So, let me restate it, to put it in my terms. So a judge should not sit if I, as a party, Michael McGuirk, entertains a reasonable suspicion that Mrs Higgins might not bring in an impartial mind, an impartial unprejudiced mind (to) the resolution … (of) the question before (her)". Appeal - Documents 89 The Appellant sought to put before the Appeal Panel a number of documents. Although we may have made reference to them above [81] it is important, in order to understand the appeal, to enumerate them again and address their status. 90 The first document is titled "Statement of Gerard Michael McGuirk" and bears date 8 June 2009. It is 110 pages long. It includes, as an addendum, letter from the appellant to the Tribunal 5 November 2009. The Statement was not given an Exhibit number, but rather was regarded by the Appeal Panel as "a convenient point of reference" (T.01/02/10, at 11); although the Appellant asserted that it was "an evidentiary document that fell, perhaps, within ADT Act Section 73(5)(b)" [as to which we shall make further comment below]. The Tribunal viewed the Statement "not as a evidentiary document … not as proof of matters asserted (in the statement) and not making matters asserted (in the statement) relevant facts for this appeal … (but rather) as a point of reference to matters of history and background (and) so forth … it is little more as a aide memoire at this stage, but it may well be a very convenient, in certain respects, aide memoire. It is not being received by this Panel as proof of matters of fact and as a evidentiary document (T.01/02/10, p.13). The Appellant continued to insist that his statement had "a similar standing before this Tribunal as an affidavit before the Supreme Court" (p.14). This argument was renewed at p.51ff, the Appellant submitting that he relied on Evidence Act s.55 and ADT Act s.73(5)(b) and that it was "not open to the Tribunal to reject material which is relevant; that's an error of law" (p.52). 91 The letter 5 November 2009 was admitted as Exhibit 2 (T.01/02/10, p.8), but only as "a matter of record" and not as evidence of any assertions in it. 92 The next document filed by the Appellant was his Submissions bearing date 30 June 2009. This was a document of some 50 pages and the Appellant spoke to it during the appeal. 93 The Appellant tendered a document styled "Published Decisions of the (ADT) to which Gerald Michael McGuirk has been a Party", updated to 16 January 2010, which set out some 74 decisions in relation to FOI Applications. This document was admitted as Exhibit 3 (p.50) and was "so marked as a matter of record and term of reference only; not as an acceptance of the relevance of particular decisions except to the extent that (is) dealt with specifically in submissions". 94 Nextly, there was the student's "report", with the various accompanying e-mail transmissions, to which we have made reference above – these were Exhibit 4 T.01/02/10, p.66), the University submitting that the e-mails and the correspondence with the Registrar "have no evidentiary value"; the Appellant submitting that it should be evidence because it was "relevant"; and at p.69 the Appeal Panel ruled that there was "no objection to the tender of the two pages of … the student's report, (but) the attached e-mail correspondence is there as a matter of record and reference only". Again, the Appellant sought to "remind the Tribunal of its obligations s.73(5)(b)" at p.70). We have dealt above (at [47ff]) with the submissions relating to this Exhibit. 95 The next document put before the Appeals Panel was the Report by the Tribunal's President His Honour Judge Kevin O'Connor titled "The Year in Review" for the Year ended 30 June 2007 which was marked as "MFI 1". 96 Lastly, there was a letter from the Appellant to the Tribunal 24 May 2010, admitted as Exhibit 5 (T11/06/10, p.54). List of Seventy Four Cases 97 It is convenient to deal with this Exhibit first. It was difficult to work out precisely what the Appellant wanted us to do with this list. There was a great deal of questioning during the course of the hearing 01/02/10; but ultimately and only after the luncheon adjournment, the Appellant addressed the "very interesting question" regarding what the Appeal Panel was to "do with the 74 decisions" (T01/02/10, p.51). He stated: "You are not going to trawl through them. I don't expect any member of this Appeal Panel to trawl through them. However, if you skim through them, just read the subject matter of those decisions, you will readily confirm what I have been saying that the University has used procedural objection after procedural objection to frustrate me in my attempts to access documents. What I am asking this Appeal Panel to do is to flick through these decisions and say, as they must, (Evidence Act 140 and Briginshaw): "something smells. This list is very, very smelly"". 98 We have reviewed the List, Exhibit 3, and also the decision of James J quoted at [7], above and we are unable to find anything in the list that would lead us to conclude that there was something "smelly" or untoward or improper or illegal in the operations of the Tribunal. The Appellant did not point to any single decision which demonstrated bias, or improper conduct, by any Member of the Tribunal. The fact that the Appellant may have been denied relief on one or more occasions does not, of itself, result in any adverse conclusion. Whether the decision(s) denying him the relief as he sought was right or wrong really does not take the matter further. If a Judicial Member holds against the Appellant that, in itself, does not mean the Judicial Member is wrong, particularly where there has been no successful appeal. And, even if the Judicial Member was wrong that, in itself does not demonstrate bias or improper conduct, even where there was a successful appeal. Appellant's Statement 99 The Appellant sought to have this document admitted in evidence. As we have noted, it was admitted on a limited basis (T. 01/02/10, p.13-14) as an aide memoire, not as proof of matters of fact or as an evidentiary document. The Statement is signed by the Appellant and asserts that it "accurately sets out the evidence that I would be prepared, if necessary, to give before the Tribunal as a witness, and is true to the best of my knowledge and belief" (p.1). 100 The Appellant's argument was that the Statement set out all the material upon which he would have relied had Higgins JM permitted him so to do. He asserted that his statement (T25/09/08, p.1): "Mrs Higgins I've been very reluctant to do this but I think's now (at) the stage that I need to make a formal application that you recuse yourself for bias, or in the alternative, apprehended bias. I am not expecting that you will determine that now" was in fact a form of adjournment application such that he was not expecting the oral application to be dealt with there and then but rather the Judicial Member would have adjourned the recusal application to a hearing date and, at that time, he would have put the material in support of the recusal application into proper form, effectively in the format of the Statement now put before this Appeal Panel. This, we think, is the gravamen of his submissions at T01/02/10 pp.26-27. He submitted that Higgins JM "should have adjourned and set the matter down and invited me to put material forward and the University to put material forward. In fact, the material which you (ie the Appeal Panel) have before you is in effect the material which I would have put forward to … Mrs Higgins had I'd been given a proper opportunity to do so". It was submitted that the Appellant had been "denied procedural fairness" and that if the Appeal Panel refused to put into evidence the Statement then that would be "to further deny me procedural fairness … (and that) I find that to be an extraordinary proposition and I think that any Judge would find it to be an extraordinary proposition as well. I don't think you deny or cure a … failure to give somebody procedural fairness by denial them procedural fairness a second time around". 101 So, on the Appellant's case, the Statement (and the other documents as well) constitute what would have been placed before Higgins JM had she adjourned the recusal application and listed it for hearing on another day. 102 In order to understand that submission it is necessary to look at the transcript of what happened on 25 September 2008. Much of it is referred to above; but on this particular point it is worthwhile making some further references. Firstly, there is the statement above "I'm not expecting that you will determine that now"; secondly, the statement (at p.1) that Higgins JM "should recuse yourself from the directions". 103 Then, at p.2, the Judicial Member noted that the Appellant had "made an application that I excuse myself … (and that she had) no material before me at this moment …" and the Appellant replied: "No. Well, it will come out during the process of the hearing". As we read those statements it is plain to us that the Appellant was quite happy to put the relevant material before the Judicial Member "during the process of the hearing". 104 Then followed various directions being made in relation to various files before the Tribunal and in which, on a number of occasions, the Appellant (as Applicant) was given time to put on material, all without his objection. (That is not to say that he did not submit that the directions would be "null and void" if in fact his recusal application was successful). 105 Then, at p.21 Higgins JM reverted to the applications that she disqualify herself. She asked the Appellant to "put to me what the evidence and the grounds on which you rely". There then followed a discussion and, at p.22 the Appellant said: " … I've made written submissions in regard to this matter and other matter(s) but I have not filed them yet. Do you want me to provide you with a copy of these submissions?" The Judicial Member responded: "No, Mr McGurik. I'm asking you to make … to put before me why you say I should disqualify myself?" The Appellant responded that the Judicial Member was "asking the wrong question" and later that he was not withdrawing the application. Then followed this exchange: "Higgins: Alright. Well, we're dealing with it now. I'm hearing you. Applicant: Okay. Well, let's go to Mr Singleton's submission … this is the hearing of the substantive matter so – because that's the way we need to do it) and that's what I said". Higgins: Mr McGuirk, Mr McGuirk … Applicant: If I look at Mr Singleton's submission – yes? Higgins: That's not how we will deal with it. You have made an application … Applicant: Mrs Higgins, please do not demonstrate your bias in the way you handle the bias application. Higgins: Mr McGuirk, Mr McGuirk you have made an application … Applicant: I have, correct. Higgins: … that I excuse myself from dealing with this application on the basis that there is … Applicant: A bias. Higgins: … apprehension of bias – or actual bias. Applicant: Correct Higgins: I'm not sure what you are saying. Applicant: Either or both in the alternative, I think … Higgins: In order for you to say that, you must point to some evidence … which demonstrates that I have … Applicant: Acted biasly; I know. Higgins: Acted biasely or there is a apprehension of my acting biasly." 106 Thereafter followed oral argument during which the Appellant agitated certain matters that he submitted constituted bias in the Judicial Member. Those we have set out above. It might be noted again that at T32 the Appellant said: "No, I said I wasn't going to put in any written submissions in because Mrs Higgins it just takes too long. I've got a life to get on with." 107 However, we are unable to find anything further in the transcript – from page 20 through to page 42 – in which the Appellant sought to argue that there should be an adjournment of his recusal application for the purposes of filing written material. Indeed, in answer to the question whether he made an application to Higgins JM for an adjournment the Appellant replied: "I don't think there was a formal application in those terms" (T.01/02/10 at 27]. 108 This issue was discussed at the hearing 1 February 2010, at pp.26ff. Other than the observation relating to the submission that Higgins JM should have done something to satisfy s.73(5)(b), the Appellant could not point to any other submission or statement made before Higgins JM on 25 September 2008. Actually, what happened on that date (as we have set out in some detail above) is that first, Higgins JM did in fact ask the right question (ie effectively: what material should be put before her as to why she should disqualify herself) (p.22); secondly, the Appellant orally made detailed submissions specifying the various grounds that he asserted supported his oral application that the Judicial Member recuse herself. Those various grounds that we endeavoured to identify above. And, importantly, those various grounds, embellished, were agitated by the Appellant before us. 109 So, it seems to us that whatever may have been the position the commencement of the hearing 25 September 2008 the plain fact is that the Appellant made detailed oral submissions in support of his application for recusal and, to all intents and purposes, those reasons were similar to the reasons he advanced before us. Thus, it seems to us, the Appellant was not in any event disadvantaged before Higgins JM by her not having the benefit of the Statement. 110 If, however, we are wrong in that appreciation then it seems to us that the Statement does not take the matter any further at all. If anything, it demonstrates, if all the material in it be fact factually correct, that in fact Higgins JM has behaved reasonably during the course of dealing with various matters that came before her as agitated by the Appellant. For example, at p.4 [24] the Appellant referred to a planning meeting on 8 May 2008 where Higgins JM stated that the conduct of the University was "just not acceptable". Then, on another matter, on 2 June 2008 when she held that the Tribunal "has no jurisdiction" and granted the Appellant "liberty to file an amendment to the application" the Appellant stated (p.5 [26]) that he "did not file an appeal … as I saw no utility in doing so". 111 At [27] the Appellant stated: "[27] The effect of the jurisdictional challenges made by the University in respect of File No. 073225, 073276 and 073279 had been an enormous waste of time and money. These challenges had cost the University, the Tribunal and myself a great deal of money. Two people benefited financially from these challenges: Mr Peter Singleton of counsel and Judicial Member Higgins". This sort of statement, written by the Appellant in considered form, is irrelevant and inappropriate. 112 There are many other paragraphs of this Statement which are not appropriate to be admitted (even with the relaxed standard under the ADT Act) and are irrelevant. Some of these paragraphs we summarise below. They may not be irrelevant in relation to an FOI Application simpliciter but are irrelevant in relation to the claims of bias, apprehended bias and/or cultural systemic bias against Higgins JM: 39-48; 55 (after the word "University" to "nonsense"); 65: Note 2 on p.15; 70-73; 74; (after the word "made" to the end of that paragraph); 80 (commencing "I found" to the end of that paragraph); 81; 85 (as to the words in parentheses); 91; 93; 94 (opinion); 95-98; 102; 108; 110; 116, 122; 124 (Opinion); 125-126; 129; 134-135; 140; 157-160; 162; 165-169; 172-173; 175 (from the words "I was .." to end of the paragraph including note 5); 176-191; 195-200; 209-215; 232-234; 242-243; 259 (from "The reason…" to end of the paragraph); 277-283; 286-290; 292-335; 355; 356; 364; 374; 381; 383; 392; 395; 400 (from "the effect .." to the end of the paragraph); 402 (as to the whole of the second sentence); 427-428; 429 (from "the single …" to "in this State"); 439 (unsupported by any evidence); 442; 445-448; 501-528. 113 Other parts of the statement comprise excerpts selected from judgments. In our opinion these portions of the Statement that would have been of little assistance had the Statement been proffered as evidence before Higgins JM. Letter 5 November 2009 114 This letter was marked before us as Exhibit 2. Its importance in the arguments advanced is problematic. It is a letter to the Tribunal, primarily pertaining to an Order issued by the President of the ADT on 17 December 2008 under the Court Security Act 2005 effectively banning the Appellant from entering the premises of the Tribunal and it was dealt with by the adjournment granted on 9 November 2009. The proceedings before the Appeal Panel were thereafter heard in a room of the Industrial Relations Commission. The letter challenged the authority of the President to make such an Order and challenged the validity of the Order as made but there has been no challenge by the Appellant, by way of any court proceedings, to that Order. The Order has been in existence now since 17 December 2008, without challenge. 115 The Appellant complained, understandably, that he would not be able to be present when the matter came before the Tribunal on 9 November 2009 when the legal representatives of the University would "be under no such disadvantage (and that) clearly represents a denial of procedural fairness". There is no need to detail this letter further – it makes all sorts of allegations, quotes excerpts from various decisions, and annexes quite a number of letters and e-mails, many of which assert the personal opinion of the Appellant. As we have noted, we took that letter into account in granting the Appellant an adjournment on 9 November 2009 and in our opinion it does not advance the arguments of the Appellant in this Appeal. Letter 24 May 2010 116 This letter was admitted as Exhibit 5. It makes unsupported allegations against members of the ADT Registry in relation to the availability of a record of the hearing before us on 1 February 2010. However, the letter does say (at p.2) (as the Appellant has said during the Appeal) that he has "not at any time asserted that Mrs Higgins is consciously biased against me more in favour of the (University)", in that the remedy that the Appellant is seeking is "not that the Appeal Panel overturn substantive decisions made by Mrs Higgins, but that the matters to which I am a party and to which Mrs Higgins currently has carriage be handed to another Judicial Member of the Tribunal". The letter was more in the nature of submissions and we have regarded it in that fashion. However he does append his University results, to which we have made more detailed reference above [21]. MFI 1 117 As part of his submissions the Appellant tendered a photocopy of part of the ADT Annual Report, Year ended 30 June 2007, titled "Year in Review" at page 4. This was a short article by the Tribunal's President relating, relevantly, to "Litigants running their own cases". The President referred to "the repeat litigant" as an "increasingly difficult management problem for tribunals", comparing tribunals to courts which, in the President's opinion, placed "constraints on their activity". 118 The President referred to querulent litigants, being litigants who have "an obsession in pursuing a perceived wrong, and who will try many avenues of complaint and hearing". That person "has a distorted sense of the significance of the matter, and of the role played by the various institutions and officials to whom the problem has been taken. The original wrong may well disappear entirely from view, as the person pursued procedural complaints against the officials and institutions with whom he or she has dealt along the way". The President reviewed the activities of "querulent litigants" and noted that their activities "can place major strain on the capacity of complaint handling institutions including tribunals". The President expressed the opinion that "it might be thought that an increased use of costs powers could deal with the problem"; but in his view that "would only be likely to have a marginal impact". He called for the development of "common standards and practices to deal with the activities of repeat litigants and those who engage in abusive and other unreasonable behaviour". 119 The Appellant called this document in aid of his submissions that, first, the President's remarks were directed at him personally and were "defamatory" of him; secondly that it was part of the culture of systemic bias against "whistleblowers", and against him personally. 120 The Panel eventually marked this document as "MFI 1". Ultimately, we do not see it as in any way advancing those submissions or any issue which the Appellant sought to canvass. In particular, we do not see it to be directed to him personally or to "whistleblowers", but to concern querulent litigants. Written Submissions for the Appellant 121 These were written Submissions prepared by the Appellant and bearing date 30 June 2009. They were, in length, 50 pages. The Appellant spoke to them during the course of the hearing before us. At [8] he submitted that Higgins JM had "shown a tendency or inclination to favour the relevant agency's position over my own – without a proper basis for doing so". At [13] he repeated that his application that she recuse herself was "on the grounds of bias and/or apprehended bias" and expressed the opinion [15] that Higgins JM "wasn't giving me a fair go, and was consistently favouring the agency position". He relied upon an observation of North J in Sun v. Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 563-564 where His Honour observed that "actual bias may exist even if the decision-maker did not intend or did not know of their prejudice, or even where the decision-maker believes and says, that they have not prejudged a case". At [19] he submitted that the real question was: "Did the decision maker treat the parties equally – or has she (consistently) acted and decided in a manner which has favoured the position of the University over (his) own". 122 It is interesting that at [21] he made this statement: "I wish to make it clear from the outset of these submissions that the remedy which I am seeking by way of this appeal is that Judicial Member Higgins be disqualified from any further participation in the matters under ADT file numbers 073277, 083002; 083009 and 083019. I am not seeking that Judicial Member Higgins be disqualified from participation in any matter which I may – unlikely though it is – wish to bring before the Tribunal in the future". (Our italics). These words in italics, prepared by the Appellant in his written Submissions in our opinion, may go to undermine the basis of the Appellant's contentions that there is a systemic culture of bias in the FOI division of this Tribunal. (There is no "FOI division" but rather there are Judicial Members who regularly deal with FOI applications within the Tribunal's General Division). It could be asked if there is such a culture, or systemic bias, why would it be that Higgins JM could somehow been seen to shrug off that culture in any future FOI applications made by the Appellant? 123 The Submissions went on to deal with various matters of law (to which we shall revert later in this decision), and asserted that there was a failure to comply with ADT Act s,73(5)(b). 124 At [51]-[54], and at [86], the Appellant submitted that we should access the various decisions of Higgins JM on the Tribunal's website as "matters of which the Tribunal is able to take judicial notice" and also access the various "files held by the Tribunal .. and treating the material contained (in) as being evidence in this appeal". That is, of course,inappropriate. It is the Appellant who needed to carry out that activity, if he so wished, to make out his case if in any of those matters which the Judicial Member may (on his argument) have demonstrated bias. Such an inquisitorial role by the Appeal Panel is not appropriate. 125 The Submissions also launch an attack upon "the FOI regime", asserting that the FOI Act is "surprisingly simple and straight forward" but has been (effectively) frustrated and undermined by the "failure of Members of the Tribunal to fulfil their statutory and common law obligations" (at [77]). 126 At [87]ff the Appellant dealt with the disqualification, or recusal, application. At [90] he stated that of the matters in which he has been a party six of those matters have been applications that Members "recuse themselves on the grounds of actual or apprehended bias". He then sets out the names of the various Members, criticises the various decisions in which his applications were refused, noting that there was a failure "to apply the correct legal test". He evidently failed to appeal from any of those decisions. At [99] he makes the observation that "notwithstanding an apparently large number of applications I have made for members of the Tribunal to recuse themselves, the actual number of substantive and separate applications is quite small when compared with the total number of decisions of the Tribunal to which I have been a party". It is irrelevant that applications have been made in the past for members to recuse themselves; and it is equally irrelevant that those applications have evidently all failed. 127 At [114] he asserted that there was "a long history within the Tribunal of a very selective use of the powers conferred on the Tribunal and a failure by Members of the Tribunal to comply with their statutory obligations", but he did not refer to any specific material in support of that submission. At [118] he asserted that "as the evidence clearly demonstrates … there has been a consistent failure by Judicial Member Higgins to give effect to (the Objects of the FOI Act specified in s.5) in managing the matters to which I have been a party. Such conduct constitutes bias". A difficulty with this submission is that it simply quotes from the Objects section of the FOI Act and he did not point to any section of the FOI Act (with the possible exception of s.58) or the ADT Act (with the possible exception of s.73) that he said had been so misinterpreted by the Tribunal as to constitute cultural/systemic bias. 128 The Submissions then criticised the decision of Higgins JM in [2008] NSWADT 302, being the decision under appeal. He was particularly critical of the observations of the Judicial Member at [22] of that decision. It is worth repeating this paragraph: "[22] Mr McGuirk has also failed to point to any evidence of my failure to accord him equal treatment to that given to counsel representing the University. In this regard he sought to hand up a document that he had previously described as being a document prepared by his fellow students who had attended, at his invitation, a hearing of an earlier review application he had made. This document Mr McGuirk asserted established that I gave him less time to make his submission than I had given Mr Singleton, on behalf of the University. I refused to accept this document as it could only be described as a self-serving document of subjective views. In making this comment I do not intend any disrespect to the students who attended the hearing, which was open to all members of the public". 129 The Appellant asserted (at [126]) that the document was not prepared by "fellow students", that they were "law students from the University" undertaking a different course; that they did not attend at his invitation but as part of their course in administrative law; that he had not previously met any of the students, nor did he have any contact with any of those students after the hearing apart from the e-mail correspondence set out above. So, it was asserted that the "findings of fact" made at [22] of the decision "are without any basis in fact whatsoever – they (are) entirely fanciful"; that the Judicial Member rejected that "relevant evidence" and that "not only demonstrates profound bias on (her) part … but was also highly improper and in breach of (her) obligations as a Judicial Member of the Tribunal". The Submissions (at [124]-[142]) expanded on this theme; but we repeat that we are of the opinion that the conduct of the Appellant in attempting to read the document into the transcript 25 September 2008, and his purported tender of the document, were inappropriate, and the document and its content were irrelevant to the issue of bias, whether actual, apprehended, or cultural/systemic. The test is objective, not subjective. Indeed, as we have sought to explain above, we understand the Appellant to advance the submission that if he expresses the opinion the Appellant personally is not comfortable with, or personally does not have confidence in, the Judicial Member hearing his case, then that alone would be enough to cause that Judicial Member to pass the file across to another with whom the Appellant may have more confidence; that is not the law. 130 The submissions from [143]ff then purported to address various decisions of Higgins JM delivered after 25 September 2008. At [149] he made the submission that the material that he was putting before her demonstrated that "I was aggrieved by the manner in which she had been conducting proceedings involving myself and with the decisions she had been making in matters to which I was a party". He then quotes from a number of the Judicial Member's subsequent decisions, in which his applications were refused, then made various allegations relating to certain police officers, including a statement that he, the Appellant, had made an application to the Local Court for a warrant to issue … for the arrest of the Commissioner of Police, Mr Andrew Scipione". He alleged (at [181]) that it is not within "the discretion" of the Tribunal to determine "that the "correct and preferable decision" is to cover up improper and/or corrupt conduct by agencies and or officers and/or agents of agencies as defined in the" FOI Act. That statement even with the additional material asserted by the Appellant, does not persuade this Panel to conclude that any bias is demonstrated. Rather, it shows, with all the "material" set out in the Statement, simply that there were decisions made from time to time with which the Appellant disagreed. FOI Act s.58 131 The Appellant complained that it demonstrated bias not to refer persons for prosecutions under the FOI Act, s.58. Pausing at this point it is appropriate to observe that the FOI Act has in fact been repealed and has been substituted by the Government Information (Public Access) Act 2009, which came into operation at 1 July 2010. 132 Section 58 FOI Act 1989 was in the following terms: "[58] Tribunal May Report Improper Conduct If, as a result of a review application, the Tribunal is of the opinion that an officer or an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency". 133 It was submitted that Higgins JM has never made any direction, or taken any "measure", under s.58. The Appellant did not point to any incident of "improper conduct", nor any incident of "failure to exercise in good faith", that would have encouraged the Tribunal, or the particular Judicial Member, to have taken a discretionary "measure" to bring the particular incident to the attention of the responsible Minister. It is important to recognise that s.58 creates a discretion. Thus, whatever incident or activity may be asserted to have constituted a "failure to exercise in good faith a function", it would also be necessary to demonstrate that in the exercise of its discretion the Tribunal should have brought the matter to the attention of the responsible Minister. And, in any event, even if there was such an incident or activity, we are unable to see how a failure to make a reference under s.58 would itself constitute actual, apprehended or cultural/systemic bias. The argument relating to s.58 in respect of bias must fail. ADT Act s.73(5)(b) 134 The Appellant asserted (Submissions [102]) that the "use by a Tribunal Member of powers in a manner which favours the agency over the Applicant, and/or the failure of a Tribunal member to comply with his or her statutory or common law obligations such that the position of the agency is favoured, constitutes bias"; and he relied in particular on what he asserted was the failure of Higgins JM to comply with s.73(5)(b). In his Submissions, at [117], the Appellant referred to FOI Act s.5(3) as specifying the Objects of that Act. Objects, however, are not set out first in sub-section (3), but rather in the whole of the s.5. This section is in the following terms: "[5] Objects (1) The objects of this Act are to extend, as far as possible, the rights of the public: a) to obtain access to information held by the Government, and b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading. (2) The means by which it is intended that these objects are to be achieved are: a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the government in its dealings with members of the public) is made available to the public; and b) by conferring on each member of the public a clearly enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the government; and c) by enabling each member of the public to apply for the amendment of such of the government records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading. 3. It is the intention of Parliament: a) that this Act shall be interpreted and applied so as to further the objects of this Act; and b) that the discretions conferred by this Act shall be exercised, as far as possible to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information. (4) Nothing in this Act is intended to prevent or discourage the publication of information, giving of access to the documents or the amendment of records as permitted or acquired by or under any other Act or law." 135 So, it is not sufficient to simply call in aid s.5 (3) and assert that the Judicial Member consistently failed "to give effect to these objects in managing the matters to which I have been a party" (Submissions at [118]) ; rather there is a need to look at the relevant following sections of the FOI Act to determine whether the Judicial Member in fact applied to the FOI law as specified in the relevant subsequent sections, consistently with the objects and otherwise properly. 136 We repeat that it is not the job of this Appeal Panel to review the decisions of Higgins JM to determine whether or not they may or may not have been correct – those decisions are not under appeal and it would be quite improper for us unilaterally and privately to attempt some kind of analysis which Appellant himself has not sought specifically to demonstrate either by way of appeal against these decisions or analysis in his submissions to us. 137 The ADT Act s.73 deals with the "procedure of the Tribunal". It is important to recognise that the provisions of this section specify only the procedural basis on which the Tribunal goes about applying relevant law, in this case, the FOI Act. 138 The sub –section on which the Appellant seeks to focus is s.73(5)(b) which enjoins the Tribunal: "to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings …". 139 In his submissions the Appellant does not really expand upon this argument, but he did so in detail by way of oral submissions, particularly on 1 February 2010. 140 The provisions of FOI Act s.5 have been referred to on numerous occasions in this Tribunal with various matter not involving the Appellant and, in various matters involving the Appellant, and in the Supreme Court in University of NSW v. McGuirk [2006] NSWSC 1362 Nicholas J observed (omitting references) at [87]: "In construing … legislation a construction promoting its purpose or object is to be preferred to a construction that would not promote that purpose or object .. this is the approach required by the Interpretation Act 1987, s.33. Context is an important consideration. Ultimately, in each case, statutory construction is text-based activity". His Honour, like Members of the Tribunal, approached both Acts within the spirit of the Objects of the FOI Act. However, it is plain from His Honour's Judgment that the determination of issues before the Tribunal and the courts does not depend solely on the Objects or the intention of the Parliament, but rather on the various sections of the relevant Acts tempered with a generosity of spirit bearing in mind their particular objects. So, in the case before His Honour he expressed the opinion at [102] that ADT Act s.63 "provides the Tribunal with the discretion to order access to be given documents which are exempt documents under the FOI Act if it decided that to do so is the correct and preferable decision with regard to the material then before it". There is no need for us to further analyse this decision, or, indeed any other decision, simply because each Section of each Act calls for interpretation on its own terms in the context of the legislation. 141 The Appellant appeared to seize upon the words "is to ensure" as imposing upon the Tribunal a statutory obligation that is mandatory, the breach of which would demonstrate bias. The Appellant made some general submissions at (01/02/10 at T52-[53) stating that it was his "major beef with the Tribunal … that s.73(5)(b) has been consistently ignored by the Tribunal over the last 10 years". He mentioned it again at p.57 (but without expanding upon it) and then again at p.70 where he sought to "remind the Tribunal of its obligations under s.73(5)(b)" in relation to his complaint about the observations of Higgins JM at paragraph [22] of her Judgment; then again at p.71 to the effect that the section "applies to this Appeal Panel"; similarly at p.76; and later at p.81, but without reference to the sub-section, asserted that it was "actually an obligation on the members of the Tribunal to get the law right"; at p.82 he relied on s.73(5)(b) as applying to the Appeal Panel; and then expanded upon all this at p.84ff where he submitted that "this Tribunal is under an obligation to actually make sure the facts are put before it" and that there was a "fundamental difference" between a court and the Tribunal because the extent of a function of the Tribunal was "limited inquisitorial" such that it was "up to the Tribunal to give proper directions to the parties .. (so that) if the University has information which is material to the decision being made by the Tribunal the University is under an obligation to put it before the Tribunal", and that in one case where there was apparently an assertion by the University that a particular document was a draft report the Tribunal had an obligation to check to see whether it was in fact a draft report and that "had the Tribunal actually compared the two reports as to what had happened – basically fraud – the Tribunal has an obligation to make sure (that it gives) proper directions to the party resisting the application to make sure it can (come to) the correct and preferable decision". He seemed to be of the view (at p.88) that Higgins JM was in fact conducting an "investigation" rather than a "hearing", speaking of "…the way she conducted that investigation or conducted the hearing in relation to it …". 142 On the final day of the appeal, 11 June 2010 the Appellant made further lengthy submissions at T25-54. Relating to s.73(5)(b) at p.37ff, he asserted that "the Tribunal has a limited inquisitorial role … but it is not the role of the Tribunal to get out there and start shuffling through files and to do this and to do that; not at all … my position is the role of the Tribunal is to give directions that the parties put before it the relevant material, and if they fail to do that then … they should be reported to the Supreme Court for contempt. That's contempt … the effect of s.73(5)(b) is to place an obligation, a statutory duty, on the Tribunal to say … these are the matters in dispute … what are the relevant materials?" He submitted that what should happen at the various FOI planning meetings is that there should be some "negotiation, (some) discussion (of) what we are really on about … and the effect of s.73(5)(b) is not that you get out there and raid filing cabinets and issue subpoenas and search warrants. You say to the University … please put the stuff before us … and if there is any reluctance or hesitance then, in fact, contempt applies (and) you can then report (it) to the Supreme Court". 143 All that having been said, however, it is not the job of this Appeal Panel to make a determination on the interpretation of s.73(5)(b). That is not the issue before us. It seems to us that any bias argument relating to s.73(5)(b) is first, unsupported and secondly, would require a detailed analysis of the transcripts of the various hearings before Higgins JM (and perhaps other Judicial Members as well) bearing in mind the cultural/systemic bias submission. and then, somehow, a determination on whether the Judicial Member(s) should have acted in a different fashion in compliance with s.73(5)(b). That the Appellant has not sought to do and it is not appropriate for this Panel unilaterally and privately to attempt some such exercise. 144 For completeness, we again refer to the transcript of the hearing before Higgins JM on 25 September 2008, at p.25 where the Appellant submitted to Higgins JM that she had "consistently failed to ensure that all relevant materials (are) disclosed to the Tribunal so as to enable it to determine all the relevant facts in proceedings". He asserted that she had "breached" (her) statutory obligations; that is misfeasance in public office" and, at p.28 the Appellant noted that he had asked for a decision to be re-opened because it was "manifestly incorrect" and that Higgins JM "did not under s.73(5)(b) fulfil your statutory responsibility". We observe that there is nothing in that exchange, or elsewhere at the hearing 25 September 2008, which would demonstrate bias or other inappropriate behaviour in relation to the application of s.73(5)(b). Law Relating to Bias 145 There is really no need for this Appeal Panel to review or comment about the law relating to bias at any length. The leading cases include Ebner; Livesey v. NSW Bar Association (1983) 151CLR 258; Re: Refugee Tribunal; ex parte H [2001] HCA28, at [27]-[29]. 146 The Appellant's Appeal asserts actual bias and/or apprehended bias. As we have pointed out above, as his arguments developed it appeared that his primary argument asserted some form of cultural/systemic bias. He did not initially put this forward as yet another type of bias but at [T.11/06/10 at 33] submitted "that the current laws and principles on bias do not cope with systemic bias". He also made it clear in his oral submissions that he was not asserting "conscious conduct on behalf of Ms Higgins" (T3, 1 February 2010). 147 Livesey includes the proposition: "[18] …(it is) impossible to lay down an inflexible rule; each case must be determined by reference to its particular circumstances … a fair-minded observer might entertain a reasonable apprehension of bias by reason of pre-judgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case, or about the credit of a witness whose evidence is of significance on such a question of fact …". 148 Reference was also, and importantly, made to the High Court decision in Ebner. The issue of bias arose because the Judge who heard and determined the proceedings at first instance held a shareholding in a listed public company, directly or as a beneficiary in a trust. The details are not directly relevant to the matter now before us but again, it is important to note that the High Court dealt their decision on relevant and probative evidence establishing the material facts. 149 Their Honours in the plurality judgment made, among others, the following important observations: "[3] Fundamental to the common law system of adversary trial is that it is conducted by an independent and impartial Tribunal … it is fundamental to the Australian judicial system. [4] The principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision making and decision maker. Most often it now finds its reflection and application in the body of learning that has developed about procedural fairness. The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making … (the Court made it plain that the principle applied to) "administrative decision makers" who do not "enjoy the degree of independence and security of tenure which judges have." [6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of the judge or other judicial officer or juror, as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity …, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. 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 the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. [7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from is prohibited less the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. In deciding whether a judicial officer … might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge … will in fact approach the matter. The question is one of possibility (real and not remote), not probability. [8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification for what it is said might lead a judge … to decide a case other than on its legal and factual merits. The second step is no less important: there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge … has an "interest" in litigation, or an interest in a party to it, will be of no assistance unless the nature of the interest, and the asserted connection with the possibility of departure of impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 150 The judgment went on to examine the particular facts and observed, having regard to submissions that were made to it relating to certain dictum about pecuniary interest: "[41] It is not sufficient for the appellants to demonstrate the existence of such a rule. It is necessary to show that it covers the facts of the present cases. One of the difficulties about the rule is that, in its possible application to relatively common situations, its meaning is unclear. What looks like a bright-line rule draws a line which is far from bright … " Clearly, what the Court is saying is that it is not sufficient merely to point to a principle in such a case and what is required are the clear facts that are said to be prohibited by the principle. One of the problems with his Appeal is that the Appellant before us has failed to prove clearly facts that would support his assertions. 151 Another case relied upon by the Appellant was Refugee Review Tribunal; Ex parte H [2001] HCA28; (2001) 179ALR 425; (2001) 75ALJR 982. This arose out of a decision of that Tribunal confirming a decision of the delegate not to grant protection visas to a husband and wife who were citizens of Sri Lanka. Again, it is important to observe that the Court specifically sought to identify ( at [6]) "the precise issues upon which the Tribunal's decision ultimately turned …" and said that to do that it was "necessary to outline the basis upon which the prosecutors sought protection visas". In other words, the decision depended upon its particular facts and application to them of principles. The High Court set out, the transcript of, the exchanges between the Tribunal and the prosecutors, and then made the following observations: "[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private. [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. [29] Though the test in administrative proceedings, as in curial proceedings is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the tribunal is that the former are adversarial and the parties are usually legally represented, whereas the later are inquisitorial in nature and the parties are not represented. 152 We have earlier cited part of the often quoted observations of Mason J. in Re: Renaud; ex parte CJL (1986) 60ALJR 528 at 531-2, 161 CLR 342 at 352 where his Honour observed: "It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as R v. Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258-263 and Livesey v. New South Wales Bar Association (1983) 151 CLR 288 at 293-294 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground for disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias, by reason of prejudgment and this must be 'firmly established' … 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." See also Bakarich v. Commonwealth Bank of Australia [2010] NSWCA 43 at, in particular, [12-23]. 153 There are numerous other cases on the principle of apprehended bias. However, there is no need for this Appeal Panel to refer to those cases, because the principles are adequately set out in the three above quotations. Those were the principles that Higgins JM applied in her decision; and those are the principles that the Appeal Panel is applying in this decision. 154 We have however, earlier in these reasons, given to a reference to British Tobacco Australia Services Ltd v Laurie [2009] NSWCA 414. There are two other decisions which conveniently deal with the law, namely a decision of Barrett J in ASIC v. Segalla [2001] NSWSC 570 (to which the Appellant made reference) and the Court of Appeal in Law Society of NSW v. Doherty [2010] NSWCA 173. In ASIC v. Segalla Barrett J applied Ebner and Livesey and disqualified himself because he had made observations about the conduct of one of the parties to those proceedings, finding that the defendant had "demonstrated distain for the orders of the court and a serious lack of probity" and had "obviously preferred deliberate defiance of the (court) orders" and had "previously acted in a way that shows that the probity (of the defendant) is not to be relied on". He concluded, consistent with Livesey, that "[the] principle is that a Judge should not sit to hear a case in all the circumstances the parties or the public might entertain a reasonable apprehension that the Judge might not bring an impartial mind to the resolution of the question involved in it" applied to him on the factual circumstances, and observed that in Ebner the High Court observed that "the question is one of possibility (real and not remote), not probability"… that the parties or the public might perceive that I may have prejudged (the defendant's) credit." 155 Barrett J adopted the views of Olsson J in Southern Equity Corporation Limited v. Bond [2000] SASC 450 at [46]-[50] where Olsson J observed that there was "an inherent problem" where it was necessary "to investigate and arrive at positive conclusions concerning the past and likely future conduct of the party against whom relief is sought … (and that) such an exercise may well involve issues of credibility. It almost inevitably requires the making of specific findings of fact on the evidence available … and that may, quite reasonably and naturally, ingender an apprehension of pre-judgment …". 156 There is no suggestion before us, at least supported by any probative evidence, that Higgins JM had pre-judged any issue to e agitated by the Appellant, neither is there any suggestion that Higgins JM had found against the Appellant on an issue of his credibility. 157 Law Society v. Doherty is a recent example of the application of the law on applications for recusal. Tobias JA was asked to excuse himself from further involvement in the appeal because of certain expressions of opinion/conclusions that he had allegedly made during the course of argument and "not tentatively expressed". Again, His Honour referred to Ebner and Livesey and a number of other decisions, noted that there was a fair amount of discussion between the Bar and the Bench during the course of an appeal, and made these observations: "[26] However, the relevant test is not one that involves any judgment of mine as to whether I could or would not bring an impartial mind to the resolution of the issues on the appeal. Rather, it is whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to that resolution. [27] Such an observer, in my view, would be taken to have some knowledge and understanding of the way the Court of Appeal works and, in particular, of the fact that the members constituting the relevant Bench would have read and absorbed not only the judgment under appeal but also the written submissions of the parties with respect to it. That lay member would also appreciate that in carrying out that exercise, the relevant judge or judges may well have formed a tentative and, sometimes, not so tentative but never final, views, as to the correctness of otherwise of the judgment under appeal and/or the submissions made by the parties seeking to uphold or challenge it. [28] The lay observer of an appellant court's processes would also appreciate the purpose of the Socratic dialogue between the Bench and the Bar which is so essential to exposing the real issues for determination and therefore enabling the parties to deal with those particular aspects of the judgment under appeal and/or the written submissions which might be troubling one or more of the judges comprising that court. That is what happened in the present case. [29] In the foregoing circumstances, I do not consider that the fair minded lay observer might reasonably apprehended that I might not bring an impartial mind to the resolution of the issues on the present appeal. It is for the foregoing reasons that I have declined to recuse myself from the further hearing of the appeal". 158 Applying all of those principles to the issues and material now before us, we are unable to see any situation of actual bias or any evidence of apprehended bias in particular, any situation of some cultural of or systemic bias within the Tribunal, that would operate against the Appellant. 159 Finally, we have gone to some trouble, perhaps more than is usual, to canvass, as best we can, all the various matters relied on by the Appellant, and in perhaps too much detail, but having regard to the detailed and lengthy submissions of the Appellant, in our opinion it was appropriate to do so. Notwithstanding the lengths to which we have gone to, we are of the opinion that the recusal application before Higgins JM had no merit, that her decision 11 November 2008 was correct and not tainted with any wrong appreciation of relevant facts or law. The appeal from her decision is of no merit. 160 Leave to appeal was not opposed and is granted. The Appeal should be dismissed. 161 Most of the issues the Appellant has agitated should more properly have been ventilated through the proper and usual appeal processes in relation to previous decisions. Opinions that he has expressed relating to various individuals and, in particular, counsel for the Respondent and his instructing solicitor, are not supported by the evidence; indeed, they are improperly made on such evidence as has been placed before us. Issues that he has sought to agitate relating to a number of other matters are more appropriate to be put before the government and/or politicians. 162 The University has made an application that the Appellant pay its costs in the event the appeal is dismissed. The Appellant consistently argued that such applications for costs by the University against him are part of the conspiracy to shut him out from rooting out corruption. Orders for costs are made in this Tribunal consistently with the ADT Act s.88. Any order for costs would require, we feel, further submissions. 163 We will set out a timetable for any costs application in the under-mentioned orders. The attention of the parties is respectfully directed to Torchia v. Swanton [2010] NSWADT 142, especially at [48-54], and Practice Note 22. Orders 1. Leavel to appeal is granted. 2. The appeal is dismissed. 3. The stay granted by Needham DP on 18 March 2009 is discharged. 4. No order for costs; save that should either party file and serve an Application for costs coupled with supporting submissions within 21 days, then the other party is to file and serve its reply and supporting submissions within a further 21 days, and the Appeal Panel will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act 1975, s.76, unless persuaded that there should be oral submissions. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.