Transport Appeal Boards New South Wales Medium Neutral Citation: Kyriakou v State Transit Authority [2011] NSWTAB 6 Hearing dates: 7 April 2011 Decision date: 07 April 2011 Jurisdiction: Civil Before: Bishop C Decision: Leave refused. Notice of Motion dismissed Catchwords: INTERLOCUTORY APPLICATION - Notice of Motion - order sought for Leave to request disqualification on grounds of bias - relevant authorities - Notice of Motion dismissed and application refused. Legislation Cited: Evidence Act 1995 Uniform Civil Procedure Rules 2005 Cases Cited: Crewdson v New South Wales Department of Community Services & Anor (No 8) [2004] NSWIRComm 6 Crewdson v New South Wales Department of Community Services and Ors (No 13) [2006] NSWIRComm 50 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Galea v Galea (1990) 19 NSWLR 281 Re: JRL; Ex parte CJL (1986) 161 CLR 342 Livesey v New South Wales Bar Association (1983) 151 CLR 288 New South Wales Teachers Federation v Director-General, Department of Education and Training [2008] NSWIRComm 175 Pascale Bourot v NSW Department of Public Works and Services & Anor [2003] NSWIRComm 431 Workcover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65 Category: Interlocutory applications Parties: Andrew Kyriakou (Applicant on Notice of Motion) State Transit Authority Division of NSW Government Service (Respondent) Representation: Andrew Kyriakou (Appellant) Elizabeth Allen (Respondent) State Transit Authority File Number(s): TAB 1348 and 1617 of 2010 DECISION 1Mr Kyriakou has moved on Notice of Motion, filed on 1 April 2011, for an order for leave to request that I disqualify myself from further hearing his appeals. 2The Notice of Motion is strongly opposed by Ms Allen appearing on behalf of the State Transit Authority (STA). 3Mr Kyriakou's has pressed disqualification on grounds he contends arise from my conduct of the proceedings on the second day of the substantive hearing of his appeals on the 24 February 2011. 4Mr Kyriakou contended that " During the course of the proceedings, it became clearly apparent to me that Commissioner Bishop was not fulfilling her sworn duty and responsibility in terms of being objective, fair, equitable or indeed partial (sic) during the trial." 5He then went on to outline some 7 instances where he essentially contended that, inter alia, I did not display objectivity, treated him unfairly in comparison with how STA was treated, made a ruling without hearing him fully, conducted proceedings inappropriately, allowed objections pressed by STA and was biased towards him. 6Following the commencement of proceedings, at the request of the parties, an adjournment was taken during which both Mr Kyriakou and Ms Allen were given access to the transcript of proceedings for the 24 February which was only received in my Chambers at 9.30 am this morning. 7On resumption, Mr Kyriakou made further oral submissions during which he referred to a number of specific extracts of that transcript in support of his submissions and his contention that I did not conduct proceedings on that day appropriately at all times. 8Those submissions also dealt with the test Mr Kyriakou submitted was usually applied in cases concerning disqualification that being what a "reasonable person" would apprehend. He essentially contended that application of that would show apprehended or actual bias on my part. In support of his submissions he cited relevant extracts from the following cases: Galea v Galea (1990) 19 NSWLR 281; Re: JRL; Ex parte CJL (1986) 161 CLR 342; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Livesey v New South Wales Bar Association (1983) 151 CLR 288. 9Ms Allen agreed with Mr Kyriakou's submission that the test was not what Mr kyriakou's opinion was, but what a "reasonable person" would consider. She submitted that the matters that were raised by Mr Kyriakou were procedural issues and not issues that raised apprehended or actual bias. In relation to self-represented litigants it was always necessary to intervene where necessary and there was a need to conduct proceedings within certain confines otherwise prejudice would arise for the opposing party. 10It was submitted that whilst appeals before the Board were not bound by the rules of evidence it was relevant to consider the following provisions of the Evidence Act 1995: s.26 Court's controls over questioning of witnesses, and s.41 Improper questions. 11Reference was also made to relevant extracts from the following decisions: Crewdson v New South Wales Department of Community Services & Anor (No 8) [2004] NSWIRComm 6; New South Wales Teachers Federation v Director-General, Department of Education and Training [2008] NSWIRComm 175 and Workcover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65 12It was submitted that Mr Kyriakou had raised no grounds of actual or apprehended bias only a number of procedural issues; to grant the application would be considerably prejudicial to STA, its Officers and witnesses; there was no proper basis for disqualification and as such it would be contrary to the public interest to grant such; considerable time and expense had already been expended on these proceedings and no comment had been made by Mr Kyriakou that his case had already been decided. 13I have carefully considered the submissions of the parties and the authorities cited. 14Mr Kyriakou is a self-represented litigant. Any intervention that I have made has been with the intent of assisting him and facilitating the expeditious hearing of this matter, and with the focus remaining on the issues that are relevant for the Board to hear and determine. 15From a practical point of view, as the respondent puts their case first in appeals before the Board, this has meant that Mr Kyriakou has been the advocate who has spent the overwhelming majority of the hearing to date on his feet, either conducting cross-examination of STA witnesses, or examination-in-chief of witnesses that have appeared in response to Summonses to Give Evidence issued by Mr Kyriakou and as such that evidence has not been supported by filed witness statements. Leave was granted to Mr Kyriakou for the issuing of such Summonses in accordance with the Uniform Civil Procedure Rules 2005 by the Board by decision of 28 January 2011. 16In considering the application made by Mr Kyriakou I have been guided by decisions of the Full Bench of the Industrial Relations Commission in Pascale Bourot v NSW Department of Public Works and Services & Anor [2003] NSWIRComm 431, and Crewdson v New South Wales Department of Community Services and Ors (No 13) [ 2006] NSWIRComm 50 and of Boland J in Crewdson v New South Wales Department of Community Services & Anor (No 8) [2004] NSWIRComm 6. 17In Bourot the Full Bench relevantly observed: 37 Two things must be observed about the submissions advanced. A trial judge is not obliged to give reasons for, or an explanation of, every ruling made at a trial. Were it otherwise, the trial process would become unmanageable. While an unrepresented litigant is entitled to be given some assistance by the Court, for example by way of explanation of the Court's processes, there is a limit to the assistance which may properly be expected or given. The trial judge must refrain from advising either party and must ensure that justice is achieved for both parties, including the party which is represented. A rejection by a trial judge of an issue unsuccessfully raised by a party, or even a series of them, is not a proper basis for a finding of apprehended bias. Nor is a typographical error in a judgment, even if it be in relation to the use of an unfortunate word such as 'psychotic'. 18In Crewdson (No 8) Boland J summarised the relevant authorities as follows: 25 In Strathfield Group Ltd V Hall (2002) 121 IR 158 a Full Bench of the Commission was called upon to consider whether statements made by Marks J at the conclusion of his judgment at first instance would cause a fair minded observer to entertain a reasonable apprehension that his Honour did not bring an impartial and unprejudiced mind to the determination of the proceedings. The Full Bench rejected the appellant's contention that the remarks by Marks J "could create in the mind of the fictional "fair-minded lay observer" a reasonable apprehension that "an impartial and unprejudiced mind" had not been brought to the resolution of the proceedings" (at [55]). In arriving at their conclusions the Full Bench referred to the relevant principles as follows: 51 The test of apprehended bias was stated recently by Gleeson CJ, Gaudron , McHugh , Gummow and Hayne JJ in Johnson v Johnson (2000) 201 CLR 488 at 492 in this way: It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether 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. (eg Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v New South Wales Bar Association (1983)151 CLR 288; Vakauta v Kelly (1989)167 CLR 568; Webb v The Queen (1994)181 CLR 41. 52 The test of apprehended bias is "based upon the need for public confidence in the administration of justice". The Court also emphasised (at 493) that: ... the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial". ( Vakauta v Kelly (1988) 13 NSWLR 502 at 527 per McHugh JA, adopted in (1989) 167 CLR 568 at 584-585 per Toohey J.) 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 ( Webb v The Queen (1994) 181 CLR 41 at 73 per Deane J), the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. 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. 53 The circumstances in which a judge will be required to disqualify himself or herself were considered by Wright J, President, in WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65 His Honour set out (at [15]) a summary of the principles derived from the relevant cases and from an article by Professor Allars - "Procedural Fairness: Disqualification Required by the Bias Rule" (1999) 4 The Judicial Review 269. The principles emphasise that: The mere claim that there is an appearance of bias does not establish that a reasonable apprehension exists, as this is a matter which must be determined objectively. Reasonable apprehension of bias must usually be firmly established. 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 or favourably to one party or the other. 54 It may be noted that the authorities on "reasonable apprehension" have often arisen in circumstances where a party has made an application that the judge disqualify himself or herself during the course of the trial, or at least before judgment is delivered. However, in certain circumstances, it may be appropriate to entertain an application for apprehended bias on a basis which only becomes known after the judgment has been delivered; see, for example: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. 19His Honour then went on to observe: 26 There is no doubt that Mr Crewdson apprehends that I will not decide the case impartially or without prejudice. But it is not the subjective apprehension of Mr Crewdson that will determine whether or not I should disqualify myself from further hearing his application. Rather, it is "whether 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": Johnson v Johnson at 492. 20In Crewdson (No 13) separate judgements were issued by Wright J President, Walton J, Vice-President and Backman J. However all three judgements dismissed Mr Crewdson's application that the Full Bench disqualify itself on the basis of apprehended bias or actual bias. 21In the course of his judgement the President, Wright J, referred to his earlier decision in WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited (as cited with approval by Boland J above), but cited further relevant passages from Professor Allar's article as follows: (3) In determining whether a fair-minded person would entertain a reasonable apprehension of bias, that person is expected to know the objective facts and the legal history of the matter, but not to have any individual knowledge of the judge concerned. (4) The mere claim that there is an appearance of bias does not establish that a reasonable apprehension exists, as this is a matter which must be determined objectively. Reasonable apprehension of bias must usually be firmly established. The ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice ... 22His Honour then went on to observe as follows: 17 The importance of those passages for the present application is that they stress the need for an application such as the present to be properly established; that is, the ground or grounds of the application must be "firmly established"; further, that there is an obligation on judicial officers to discharge their duty to sit. It is relevant, because of its importance to the present proceedings, to stress one of the passages in the above extract by repeating it: [I]t would be an abdication of judicial function for a judge to automatically disqualify himself whenever requested to do so by one party on the grounds of apparent bias ... 18 In other words, simply because it may be unpleasant to continue to sit in a case or a litigant makes impassioned and repeated pleas that a judge not sit, neither of those circumstances results in the situation where the application should succeed. Indeed, it would be an abdication of judicial function to grant the application in this matter. 23The principles enunciated in the cases above are equally applicable in appeals before a Transport Appeals Board. I also adopt those principles. 24Mr Kyriakou has taken exception to the way in which I have conducted certain aspect of these proceedings. All parties appearing before the Board have the right to argue their case in a full, frank and forceful manner and thoroughly test the opposing evidence. It has been my intention to ensure that that is done in an appropriate and relevant way and my rulings, and any intervention that has been made, has been consistent with this general approach. 25Mr Kyriakou as a self-represented litigant has been afforded the usual degree of latitude in the conduct of his appeals as would customarily be extended to self-represented litigants appearing before both the Board and the Industrial Relations Commission. 26However it should be said that Mr Kyriakou has become emotional on occasions and his questioning of some STA witnesses has been extensive, detailed and at times intense and somewhat vigorous. 27I have not conducted the proceedings in these appeals in any way that departs from my usual practice and procedure and there has been no intention on my part to treat Mr Kyriakou any differently to the manner in which I would normally interact with counsel, solicitors, industrial officers or lay advocates. Depending on the nature of the issues/questions to be determined in the various matters before me that interaction has, of necessity, prompted intervention on my part where I considered it was required and, at times, that has involved lively debate with advocates. 28To paraphrase what was said in Crewdson (No 8) it is not the subjective apprehension of Mr Kyriakou that will determine whether or not I should disqualify myself from further hearing his appeals. Rather, it is "whether 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" ( Johnson v Johnson) . 29Having carefully considered Mr Kyriakou's submissions and those of Ms Allen on behalf of STA and the various authorities cited above, I consider that there is no proper basis for disqualification. I therefore decline to disqualify myself from Mr Kyriakou's appeals. 30Leave as sought is not granted and the Notice of Motion is dismissed. Elizabeth Bishop Commissioner ********** 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. Decision last updated: 08 April 2011