CITATION: The Council of the Law Society of NSW v Tsalidis [2010] NSWADT 296 DIVISION: Legal Services Division APPLICANT The Council of the Law Society of New South Wales PARTIES: RESPONDENT Charles Kiriakos Tsalidis FILE NUMBER: 092033 HEARING DATES: 25 June 2010 EXTEMPORE DECISION DATE: 25 June 2010 BEFORE: Currie J - Judicial Member; Fairlie D - Judicial Member CATCHWORDS: Recusal Motion - Apprehended Bias - Lay Member of the Tribunal Carver v The Law Society of New South Wales (1998) 43 NSWLR 71 Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 CASES CITED: Re Renaud; ex parte CJL (1986) 66O ALJR 528, at 531-2 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 at 275-6 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87 APPLICANT L Pierotti, solicitor REPRESENTATION: RESPONDENT P Kintominas, barrister ORDERS: The Recusal motion be dismissed REASONS FOR DECISION The recusal motion 1 Mr Kintominas, Counsel for the Respondent in these proceedings raised an objection to the Tribunal as presently constituted continuing to hear the matter. 2 The objection was not raised at the early procedural hearings but was raised by Mr Kintominas on the first occasion on which the Tribunal as constituted for the hearing sat together, on 11 June 2010. The nature of the objection 3 The Respondent's motion initially appeared to encompass an objection to each of the members of the Tribunal, although the Judicial Members, being Members Currie and Fairlie, were objected to initially on grounds which were not articulated. In any case the Respondent clarified, through his counsel at the hearing on 25 June 2010 that the objection to members Currie and Fairlie was not pressed. 4 The objection to Member Bubniuk, who is a non-judicial member of the Tribunal was pressed, and was further articulated in the written submissions made by Mr Kintominas dated 24 June 2010. In essence, the objection to Member Bubniuk hearing the matter was based on Member Bubniuk's association with the Legal Aid Commission and in particular on the fact that she was or at some stage had been an employee of the Legal Aid Commission. It was the Legal Aid Commission which is referred to in the relevant correspondence in evidence as having made the complaint to the Law Society. However, it must be said that the Legal Aid Commission in corresponding with the Law Society about the actions of the Respondent did so having itself received a complaint about the Respondent's behaviour from a member of the Bar. In that sense, then, the complaint had its origins in the complaint to the Legal Aid Commission from that member of the Bar. 5 Counsel for the Respondent submitted that Member Bubniuk accordingly should not hear the matter because there would be a reasonable apprehension of bias attributable to her in doing so. 6 The Law Society did not support the motion for recusal. Procedure for determination of the issue 7 Upon the recusal motion having been raised by counsel for the Respondent at the hearing on 11 June 2010, Member Currie as the Presiding Member of the Tribunal ordered that the parties file and serve by close of business on 23 June 2010 grounds of objection to any member of the Tribunal, and stood the matter over until 25 June 2010 for a ruling on this issue and, if the matter were to proceed, hearing. The Tribunal subsequently received Mr Kintominas' written submissions on the recusal motion dated 24 June 2010. 8 At the hearing on 25 June 2010, the Tribunal heard a statement from Member Bubniuk and submissions from counsel for the Respondent and from Mr Pierotti, solicitor for the Applicant. 9 The Tribunal ruled on that occasion that in the circumstances, particularly as Member Bubniuk was not legally qualified and was not a legal member of the Tribunal, the recusal motion should be determined by the two Judicial Members of the Tribunal as then constituted; i.e. by Members Currie and Fairlie. Member Bubniuk's statement 10 Member Bubniuk's statement to the Tribunal at the hearing on 25 June 2010 was recorded in the transcript as follows: "BUBNIUK: Id like to put on the record that my name is Leshia Bubniuk and I was appointed to this Tribunal in October 1997. My appointment to the Tribunal was by the Honorary Jeff Shaw QC who appointed me on the basis of my ethnicity and basically my background of being an active member of the Ukrainian community for over 30 odd years. It was in that role as basically a woman of non English speaking background and with a disability that my appointment and my active role in the Ukrainian community in women's issues, in youth issues, in older person's issues and in every aspect of Ukrainian life that I was appointed to this Tribunal. Ancillary to the fact was the fact that I also was employed by Legal Aid Commission but that was not the reason for my appointment. In respect of this matter I will put on the record which was my intent at all times. I was appointed to the Legal Aid Commission in 1987. My appointment and my roles at Legal Aid have always focused on social justice issues. They are access to justice issues. My roles have been either migrant community and education research officer, access and equity co-ordinator or policy. All of those focuses have been on access to justice issues predominantly focusing on our diverse communities over time. I have never been a board member of the Legal Aid Commissioner and I have never had access to the operational arm of the Legal Aid Commission. The Legal Aid Commission has three arms which are the Legal Services Division, which has everything to do with the legal practise areas. The corporate services area which basically looks at the human resources and other issues and the policy areas which includes the social policy aspects and my role has been in those areas of social justice. Secondly and importantly my role, at Legal Aid, is in the public domain, I wrote the chapter on interpreters for the Law Handbook and the annual reports contains my reports in terms of access to justice issues, reporting on none English speaking background and disability, women et cetera, other target groups. The third aspect is, for the period in question of Mr Tsalidis behaviour I was not at Legal Aid. From 12 December 2007 I was retired from Legal Aid. I came back on 19 August but that is a tenable situation. Fourthly, in respect of Mr Tsalidis, I have no knowledge of Mr Tsalidis personally. I do not know any person by the name of Tsalidis and fifthly I have been in similar situations where my link to the Ukrainian community has come up in this Tribunal and basically so I am aware of conflicts of interests and I have made those decisions on, I think, now about 3 or 4 occasions. So it is on that basis that I have made the decision to put on the record my involvement and it is my view that does not prelude me from hearing the matters made in this matter. Having read the documentation I verily confirm that I do not know any of the persons cited or mentioned in the matter. So it's on that basis that I put that before you, including the employees of Legal Aid." The authorities cited by Counsel for the Respondent 11 Having heard the statement made at the hearing on 25 June 2010 by Member Bubniuk, Mr Kintominas indicated that the Respondent maintained his objection to Member Bubniuk continuing to hear the matter. 12 In his written submissions dated 24 June 2010 Mr Kintominas helpfully set out many of the authorities which have guided courts in relation to recusal motions. In particular, reliance was placed on the decision in Carver v The Law Society of New South Wales (1998) 43 NSWLR 71, where the Court of Appeal of New South Wales held that a person who is a member of a professional governing body when it instituted the disciplinary proceedings to be dealt with by a Tribunal generally ought to be disqualified from sitting on that Tribunal on the grounds of apprehended bias. The Respondent, through Mr Kintominas contended in his written submissions that: "There is no material distinction in principle between being a member of the Law Society and being an employee of the complainant." 13 The Respondent's submissions further contended that the decision of Mr Justice Campbell of the New South Wales Court of Appeal in Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 should be adopted conservatively and with great caution in respect to the present case. The Tribunal understood Mr Kintominas to be saying that the facts in Bakarich should be distinguished from the current situation and that the "hypothetical reasonable observer at the back of the Tribunal" may well have reached a quite different decision based on the facts of Bakarich than he or she would reach on the present facts before the Tribunal. The Tribunal's decision on the recusal motion 14 Having heard Member Bubniuk's statement and having considered Mr Kintominas' written submissions and his further oral submissions at the hearing on 25 June 2010 on behalf of the Respondent, Members Currie and Fairlie indicated at that hearing their decision that this was not an appropriate matter for a recusal order and that Member Bubniuk properly constituted a member of the Tribunal and was entitled to hear the matter. 15 The hearing then proceeded. Reason for the Tribunal's decision 16 In the High Court matter of Re Renaud; ex parte CJL (1986) 66O ALJR 528, at 531-2, some central principles governing apprehended bias were stated by His Honour Mr Justice Mason. 17 These remarks by Mason J were cited and followed in the New South Wales Court of Appeal by His Honour Mr Justice Priestley (with whom Justices Hope and Glass agreed) in the case of Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 at 275-6. In Re Renaud, Mason J said: "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 appears 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." 18 Mason J also said, at pages 531-2 of the judgment in Re Renaud: "It needs to 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…" 19 In order for the Respondent's recusal motion to succeed in this case, therefore, it would have to be shown that Member Bubniuk would not decide the case impartially or without prejudice. Of course, the mere raising of Member Bubniuk's association with the Legal Aid Commission does not do this, but the matter merits further analysis. 20 In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ pointed out that the governing principle in such matters is that: "… subject to qualifications relating to waiver… 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." 21 Significantly, Their Honours further enunciated the manner in which that principle is to be applied as follows: "First, it requires the identification of what 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 assumption that a judge… 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." 22 The Respondent's difficulty in respect of the present recusal motion is a lack of articulation of the logical connection between matter and the feared deviation from a decision on the merits of the case. We do not suggest that Mr Kintominas has done anything other than put his client's position as squarely as possible. We do not say that the Respondent's position on this motion is one of "bare assertion". But the Tribunal has difficulty perceiving that the Respondent has successfully articulated the logical connection between the facts of the matter and the facts of Member Bubniuk's connection with the Legal Aid Commission, and the feared deviation from an independent and impartial course of decision making by Member Bubniuk. 23 In the most recent New South Wales Court of Appeal matter on this subject, Bakarich and others v Commonwealth Bank of Australia [2010] NSWCA 43, His Honour Mr Justice Campbell cited with approval the extracts from the judgments in Re Renaud, and Ebner v Official Trustee above. 24 Campbell JA noted that the application of the apprehended bias principle requires one to decide what amount of relevant knowledge is to be attributed to the "fair-minded lay observer". 25 His Honour noted that the "fair-minded observer" can have attributed to him or her "knowledge of the actual circumstances of the case", the authority for that proposition being the case of Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87 per Mason CJ and Brenan J (with whom Gaudron and McHugh JJ agreed). 26 So, in order for the Respondent's motion to succeed in the current case, he must establish not only that there is an apprehension of bias by Member Bubniuk, but also that the apprehension is a reasonable one, and that must mean a reasonable apprehension based on relevant knowledge including the relevant circumstances of the case, and that there must be a logical connection between the circumstances of the case and the feared deviation from the course of deciding this case on its merits, by Member Bubniuk. 27 The Tribunal, constituted by Members Currie and Fairlie, having given considerable consideration to all the matters put before the Tribunal on this point have taken the view that any apprehension that Member Bubniuk would not decide the case impartially or without prejudice could not be reasonably held. Put another way, it has not been established by the Respondent that the apprehension in this case proceeds reasonably from a logical connection between the facts and the feared deviation from the course of proper judicial conduct. 28 In reaching this decision, Members Currie and Fairlie have taken into account the fact that Member Bubniuk was not a legal employee of the Legal Aid Commission, that indeed she was not an employee or associated with the Commission at certain relevant times, including apparently the time of the origins of the original complaint to the Commission by the member of the Bar; the fact that in any case Member Bubniuk was not at any time employed in the relevant division of the Commission which made any form of decision as to legal matters; and the fact that the Commission was not the originating source of the complaint and in any case was not a party to these proceedings. 29 As to the Respondent's reliance upon the case of Carver v The Law Society of New South Wales, Members Currie and Fairlie believe that the distinction referred to in the written submissions of the Respondent's counsel at page 18 to the effect that: "There is no material distinction in principle between being a member of the Law Society and being an employee of the complainant." mis-states the conclusions reached by the Court of Appeal in Carver. The ratio in Carver related to membership of a governing body of a professional association. The facts, and the principles derived from the judgment in Carver can therefore be distinguished from the current facts. Carver related to membership of a governing body whereas Member Bubniuk had no relevant position covering, or connection with the governance or the relevant decision making of the Legal Aid Commission. 30 For completeness, we should also deal with the allegation made by the Law Society in its letter dated 14 October 2008 to Mr Tsalidis; that letter appearing as Annexure A to the affidavit of Raymond John Collins sworn on 4 December 2009. The Law Society's allegation is set out in paragraph 8 of that letter and is part of the Law Society's attempt to identify the issues that appeared to arise from the original complaint. Paragraph 8 alleges that one such issue is that Mr Tsalidis: "… 8. Displayed lack of concern for the interests of the client when in conversation with Ms Healey, told her "Why do you care? It's only Legal Aid"." 31 In the views of Members Currie and Fairlie, the appearance of this allegation in an annexure to an affidavit filed on behalf of the Law Society does not alter the Tribunal's conclusions set out in paragraph 27 above. That is, the existence of this allegation in an affidavit which was considered by all three members of the Tribunal, including Member Bubniuk, does not help the Respondent to establish that the apprehension in this case proceeded reasonably from a logical connection between the facts and the feared deviation from the course of proper judicial conduct. In our view, the existence of that allegation and the knowledge of it by Member Bubniuk does not elevate the apprehension of bias by Member Bubniuk to a reasonable apprehension. 32 For these reasons, the Tribunal dismissed the motion for recusal. 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