WL v Randwick City Council [2008] NSWADT 87

CITATION: WL v Randwick City Council [2008] NSWADT 87

DIVISION: General Division

APPLICANT In person PARTIES: RESPONDENT A Seton, solicitor

FILE NUMBER: 073294

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 18 February 2008

DATE OF DECISION: 18 March 2008

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Bias

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998

Ebner v Official Trustee and Bankruptcy [2000] HCA 63 Jae Kyung LEE v Bob Chae-Sang CHA & ORS [2008] NSWCA 13 Johnson v Johnson [2000] HCA 48 CASES CITED: Re JRL; Ex parte CJL [1986] HCA 39 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 WL v Randwick City Council (GD) [2007] NSWADTAP 58 WL v Randwick City Council [2007] NSWADT 12 Z v Director General, Department of Transport (No.2) (GD) [2001] NSW ADTAP 18

APPLICANT In person REPRESENTATION: RESPONDENT A Seton, solicitor

ORDERS: 1. WL's application for an order disqualifying myself from the further hearing of these proceedings is dismissed 2. The matter is set down for further directions at 2.00 pm. on Tuesday 22 April 2008.

REASONS FOR DECISION 1 In these reasons the names of all private individuals have been anonymised so as to preserve the privacy of their personal affairs. In these reasons the Applicant is referred to as WL. 2 The substantive matter is an application pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 ("the Privacy Act") for a review of the conduct of the Randwick City Council in relation to its dealing with alleged personal information of WL. The matter previously came before me for a preliminary issue of jurisdiction and I dismissed the application for want of jurisdiction. My reasons for determination on that issue are recorded in WL v Randwick City Council [2007] NSWADT 12 ("the earlier decision"). WL successfully appealed that determination. The Appeal Panel's determination is recorded as WL v Randwick City Council (GD) [2007] NSWADTAP 58 ("the Appeal Panel's decision"). The Appeal Panel made the following orders: 1. The decision of the Tribunal is set aside; 2. Leave to extend to the merits refused; 3. The application is remitted to the Tribunal for re-determination having regard to these reasons. 3 The matter came back before me in October 2007. At that time the parties agreed to attempt to mediate the issues in dispute. The mediation was unsuccessful and the matter has now come before me for re-determination. 4 WL has brought an application for me to disqualify myself from continuing to hear the proceedings on the basis of bias and prejudice. The Respondent does not object to me continuing to hear the matter. 5 WL requested that he be permitted to file written submissions in support of his application and I agreed to that request. Each party has filed submissions and WL has filed submissions in reply. 6 WL's submissions are extremely detailed, cover a range of issues and make many allegations. Much of this is unrelated to the application for me to disqualify myself from continuing to hear the proceedings. I do not propose to deal with those additional issues here. 7 WL's application for me to disqualify myself arises from the fact that I made the earlier decision and his view that he could not receive a fair hearing if I were to continue to preside. Background 8 The Appeal Panel's decision made no order in regard to how the Tribunal was to be constituted for the rehearing of the matter. The approaches that may be taken to the constitution of the Tribunal when a matter is to be reheard are discussed generally in Z v Director General, Department of Transport (No.2) (GD) [2001] NSWADTAP 18. At paragraph [10] of the decision in Z the Appeal Panel stated: "10 As to the question of whether an application should go back to the same Tribunal or one differently constituted, there are competing considerations. On the one hand by remitting it to the same member, it will not be necessary for that member to refamiliarise him or herself with the factual background. He or she can move on to deal with any new material. On the other hand there may be a perception on the part of the successful party on appeal that the member who had ruled against that party may be affected by their previous view. It may be suspected that a member might seek in the next decision to justify their earlier decision." 9 This latter view reflects that asserted by WL. 10 At paragraphs [16] and [17] of Z the Appeal panel said: "16 Our conclusion is that the Federal practice and the New South Wales practice is that normally no express direction as to constitution is given as part of the order for remittal. But there may be a difference between them in relation to how orders silent as to this matter operate in practice. According to [ Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39] the usual Federal practice on remitter is for the President of the Tribunal to assign the matter to a member other than the original member. It is not clear whether a listing convention of this kind is followed in New South Wales. In both jurisdictions the making of an express direction that a Tribunal (or lower court) be differently constituted is not routine. The New South Wales approach would appear to be only to give an express direction where there are 'special circumstances'. What the 'special circumstances' may be was not spelt out by Kirby P. 17 In this instance we are satisfied that there should be an express direction. Our conclusion is the same as that reached by Nicholson J in the Industry Research and Development Board case but having regard to somewhat different factors." 11 In Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Mason P said at paragraphs [12] to [14]: 12 The power to direct a hearing by other than the original judicial officer is used sparingly and only when it appears to the appellate court that it is appropriate in the interests of justice (see Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518 at 538[62], 556[123] and authorities there cited). Something more than error, to which all are prone, must be demonstrated. Where the proceedings below have been conducted in such a manner as to give rise to a reasonable apprehension of bias this will usually ground such an order. But the power is not limited to such a situation. 13 There can be cases where a complicated process of fact-finding has miscarried through a combination of factors. The interests of justice, including its appearance, may require that the new trial take place before a differently constituted court or tribunal. This is particularly so where, as in the present case, the first trial resulted in a judgment turning upon credibility-based findings. To remit the matter for a new trial before a similarly constituted tribunal of fact would almost inevitably trigger an application that the judge recuse in light of the principles in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411. Instances where this Court has given a direction designed to avoid this possibility include Curnuck v Nitschke [2001] NSWCA 176 and Mkari v Meza [2005] NSWCA 136. 14 This is not to imply that the former decision-maker might start the new trial with the disposition in favour of the party originally successful. Indeed, there may be risks of compensatory bias or its appearance (cf my paper on "Unconscious Judicial Prejudice" published in (2001) 75 ALJ 676) that may properly be taken into account. This Court's concern lies with avoiding the appearance of pre-judgment. 12 In Seltsam Pty Limited v Ghaleb Ipp JA said at paragraph [142]: 142 ... It is not an extraordinary occurrence for this Court to order that the case be heard afresh by a different judge. Mason P has referred to examples of cases where this has occurred. Where a judge has made credibility findings and has indicated a preference for a particular witness or witnesses or has failed to accord a party procedural fairness, the proper administration of justice may require the making of such an order. The need to do so will then arise not because of any established or presumed bias on the part of the judge but simply because of the public interest in providing the appearance of impartial justice. Often, the Court will make such an order of its own motion without hearing the parties. This practice recognises that the identity of the judicial officer who is to hear a particular case should not be regarded as a matter that could benefit or prejudice a particular party. It is not a requirement of procedural fairness that the parties be informed that the remitted trial be heard before a new judge. Moreover, it would often be invidious for a party to seek such an order. 13 In the absence of any indication by the Appeal Panel on the question of whether these proceedings should be remitted to be heard before a different Tribunal Member, the constitution of the Tribunal is at the discretion of the President pursuant to Section 22(2) of the Administrative Decisions Tribunal Act 1997 exercised in accordance with the principles set out above. Principles relating to apprehended bias 14 The relevant principles relating to disqualification on the grounds of bias and prejudice were considered in Ebner -v- Official Trustee and Bankruptcy [2000] HCA 63 and most recently by the NSW Court of Appeal in Jae Kyung LEE v Bob Chae-Sang CHA & ORS [2008] NSWCA 13 ("Jae Kyung LEE"). 15 The joint judgment of Gleeson J, McHugh, Gummow and Haine JJ in Ebner stated at paragraphs [6]-[8]: "6 Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a 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 (which may be relevant to the second appeal), 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[13]. That principle gives effect to the requirement that justice should both be done and be seen to be done [14], 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 it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle, which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one, which requires no conclusion, about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. 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 of what it is said might lead a judge (or juror) 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 (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." 16 In Jae Kyung LEE Basten JA stated at paragraphs [39] to [44]: 39 There are various categories of case in which disqualification by reason of an appearance of bias may arise: see Webb v The Queen (1994) 181 CLR 41 at 74 (Deane J). ... As explained in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6], the governing principle is that "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". 40 That test will require an evaluative judgment in particular circumstances as to what the "fair minded lay observer" can be taken to know. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated: "Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. … At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx." 41 A distinction should be drawn between circumstances in which the judge is involved in "active case management" and circumstances in which the judge is expressing tentative views on issues arising in the case, as will frequently happen in the course of oral submissions. There may, of course, be circumstances where the two categories are not readily distinguishable, as, for example, where the trial judge might, in seeking to ascertain how long a particular phase of the trial might take, expressly indicate a view that certain issues are live and, impliedly, that others lack substance. In relation to the expression of tentative views, Kirby and Crennan JJ stated in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at [112] (Gummow ACJ agreeing at [4]): "Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias." … 44 The key part of the test is that the observer is understood to be a layperson and not a lawyer. As expressed by Callinan J in Concrete Pty Ltd, at [177]: "It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried." 17 The "fair-minded lay observer" is assumed to have some general understanding of the Tribunal's powers and processes, and the nature of the issues in dispute: Johnson v Johnson [2000] HCA 48 per Kirby J at paragraph [53]. He or she should be assumed to have knowledge of most of what went on at the trial, or at least such knowledge as would allow the person to place the comments of the trial judge in their proper context: Jae Kyung LEE per Basten JA at paragraph [44]. 18 In the High Court decision of Re JRL; Ex parte CJL [1986] HCA 39 Mason J stated at paragraph [5] of his judgement: "5. It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey 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 of 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" ..." 19 Accordingly, decision makers should not be too quick to disqualify themselves and to warrant the disqualification the apprehension of bias should be 'firmly established'. Consideration 20 In order to determine WL's application I therefore must consider whether the possibility of a perception of bias is a real one, not a remote one, and 'firmly established'. 21 In this matter, WL's concerns did not arise from some step or circumstance existing prior to and beyond the confines of the litigation (see Jae Kyung LEE at [32]). They have arisen from the determination that I made in the earlier decision and from my role as case manager in relation to the conduct of the parties to the proceedings. 22 In the earlier decision I dealt with the preliminary issue of jurisdiction. I have not made credibility findings or indicated a preference for a particular witness or witnesses. There has been no hearing to determine any factual matters that are in dispute nor has there been any hearing in relation to the question of whether there has been a breach of any of the information protection principles in the Privacy and Personal Information Protection Act 1998 or the determination of any factual matters relating to that question. 23 Obviously, it is difficult for me to put myself in the shoes of a fair-minded lay observer when I am the one who has been hearing this case. Nevertheless, in these circumstances I do not consider that a fair-minded lay observer fully informed of the objective facts might reasonably apprehend as 'firmly established' that I would not bring an impartial and unprejudiced mind to the resolution of the questions I am called on to decide. For this reason I decline WL's request that I disqualify myself. Order 1. WL's application for an order disqualifying myself from the further hearing of these proceedings is dismissed 2. The matter is set down for further directions at 2.00 pm on Tuesday 22 April 2008.