Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Avery v Registrar, Births Deaths and Marriages [2014] NSWCATAP 19 Hearing dates: 10 April 2014 Decision date: 20 May 2014 Jurisdiction: Appeal Panel Before: N Hennessy, LCM, Deputy President S Frost, Senior Member P Smith, General Member Decision: 1. The Appellant's application for N Hennessy LCM, Deputy President, to recuse herself for bias is refused. 2 The Appellant's application for adjournment of the hearing on 10 April 2014 granted. 3. The issues on the appeal can adequately be determined in the absence of the parties. 4. The Respondent is to file and serve any further material in reply within 28 days of the date of these reasons. 5. The Appellant has a further 14 days to file and serve any submissions in response. Catchwords: PRACTICE AND PROCEDURE - bias -evidence of fraud - adjournment- inadequate medical evidence - whether appeal should be determined 'on the papers' without an oral hearing Legislation Cited: Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Cases Cited: Avery v Registry of Births Deaths and Marriages [2008] NSWADTAP 68 Avery v Registrar of Births, Deaths and Marriages [2010] NSWCA 72 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 Gray t/as Clarence Valley Plumbing Services v Ware Building Pty Ltd [2013] NSWCA 261 Magjarraj v Asteron Life Limited [2009] NSWSC 1433 Texts Cited: JRS Forbes, Justice in Tribunals (3rd ed 2010, The Federation Press) Category: Interlocutory applications Parties: Stephanie Avery NSW Registry of Births, Deaths and Marriages Representation: Zelie Heger (Respondent) Crown Solicitors Office (Respondent) File Number(s): 1390051 Decision under appeal Citation: [2013] NSWADT 298 Date of Decision: 2013-12-24 00:00:00 Before: P Molony File Number(s): 133081 reasons for decision Application for disqualification for bias 1This matter was listed for hearing before an Appeal Panel of the Civil and Administrative Tribunal on 10 April 2014. Prior to the hearing the Appellant, Ms Avery, applied for certain members to be disqualified from hearing the appeal. Those members were the members who had constituted the Appeal Panel of the Administrative Decisions Tribunal in a previous proceeding where she and the Respondent were also parties: Avery v Registry of Births Deaths and Marriages [2008] NSWADTAP 68. The Panel in that case was N Hennessy LCM, Deputy President, R Handley, Judicial Member and M Bolt, Non-Judicial Member. Mr Handley is not a member of the NSW Civil and Administrative Tribunal and Ms Bolt was not assigned to sit on this appeal. Magistrate Hennessy was assigned to sit on the appeal. The Appellant's application will be considered in relation to that member only. 2In its written submissions dated 11 March 2014, the Respondent provided a brief chronology of the litigation between the two parties since 1997. One issue in the 2008 proceedings before the Appeal Panel was whether the Respondent should have included the name "Stephanie Tatiana Avery" as a "former name" on a Change of Name Certificate. In 2007 Ms Avery had applied to change her name to Tatiana Igorevna Orechkina. In accordance with legislative provisions, the Registrar was required to record certain particulars on the Change of Name Certificate including "any other former names of the person": Births, Deaths and Marriages Registration Regulation 2006, cl 8(d). Ms Avery said that she had mistakenly been issued with a driver's licence in the name of Stephanie Tatiana Avery and that is the only reason she had ever used the name. 3In the 2008 decision the Appeal Panel found that the Tribunal had made an error of law by interpreting the phrase "any other former name of the person" as including a name that a person had used on occasions. The Appeal Panel decided that to be a "former name" a person must use an alternative name consistently, not merely on a few occasions. The Appeal Panel granted leave for the appeal to extend to the merits of the Tribunal's decision. It then decided that "Stephanie Tatiana Avery" was a former name. The Appeal Panel concluded that: In our view, despite the fact that the name Stephanie Tatiana Avery was originally included on Ms Avery's driver's licence by mistake, she did not seek to alter the name on the licence for 10 years. In December 2007, she identified the name she was using at present as Stephanie Tatiana Avery. She also signed a document using that name at that time. In accordance with the common law principles on change of name by usage or reputation, Ms Avery assumed or acquired the name Stephanie Tatiana Avery in addition to the name, Stephanie Tatiana Patricia Avery. Proof of intention to assume or acquire a name is not required, nor is it relevant that original use of that name was mistaken 4The Court of Appeal dismissed an appeal by Ms Avery from the Appeal Panel's decision: Avery v Registrar of Births, Deaths and Marriages [2010] NSWCA 72. One ground of appeal that was rejected at [121] was that there was evidence of bias in the text of the decision. 5The substantive issue in the current appeal is whether the Respondent has power to cancel a previous registration (24637/07) and issue a certificate in the same terms as an earlier registration (11367/97). The Tribunal decided that the Respondent did not have the power to cancel the registration. The Appellant has appealed against that decision. 6We have assumed that the Appellant is relying on both actual bias and apprehended bias on the basis of Hennessy LCM's involvement in the previous litigation. In her application for disqualification filed on 11 February 2014, the Appellant gives the following reasons for the application: "bias, impartiality, expected intention to cover up unlawful procedures in the NSW BDM Registry and fraud on the Register as it was so in previous litigations. Attitude to act in excess of powers in order to affirm unlawful procedures in the BDM Registry (law making exercises in the decision of the Appeal Panel in 2008 in the case of Avery v BDM Registrar, waving government policies etc) Illegal outcomes in previous decisions would most likely lead to cover up in relevant issues. 7She alleges that in the 2008 decision the Appeal Panel affirmed the Registrar's decision knowing that the disputed record was a fraud and that the Registrar provided to Ms Avery and the Tribunal false information. Ms Avery provides particulars of those allegations. Ms Avery also speculates that having agreed with the Registrar's decision on one occasion, Hennessy LCM is likely to agree with the Registrar's decision in this case. 8The basic principles in relation to applications for recusal for bias are set out (with references omitted) in JRS Forbes, Justice in Tribunals (3rd ed 2010, The Federation Press): [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. 9The test for apprehended bias is that "... 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] HCA 63; (2000) 205 CLR 337, at [6]. In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, McColl JA (with whom Giles and Tobias JJA agreed) said; (citations omitted) A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be 'distinctly made and clearly proved. A finding of actual bias should not be made lightly; cogent evidence is needed; a finding of bias is a grave matter. 10A judicial officer should not lightly recuse herself in response to allegations of bias. Too readily acceding to such requests would subvert the judicial process by allowing litigants to, in effect, choose the person whom they feel would be most favourable to their case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [19] per Gleeson CJ, McHugh, Gummow and Hayne JJ. 11The Appellant has provided no evidence, apart from her own assertion for the allegations of fraud, corruption and bias. In relation to a claim of apprehended bias, we accept that a decision-maker who makes findings of fact in particular proceedings may appear to be biased if called on to decide the same issues in subsequent litigation: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2. But if the same factual issue arises in this case, the Appellant would be prevented from re-litigating the matter by the principle of issue estoppel. 12The present appeal concerns the power of the Respondent to cancel the registration and the appropriateness of issuing a certificate recording the registration of a previously registered name. The present appeal does not require Hennessy LCM to make findings on factual matters that were considered in the previous litigation. The Appellant's application for Hennessy LCM to disqualify herself for bias is refused. Application for adjournment 13On 7 April and again on 9 April 2014, Ms Avery, applied in writing for an adjournment. She attached a medical certificate signed by "Martin Duffy" to the 7 April application stating that she is suffering from "a medical condition" and is "unsuitable for normal duties from 7 April to 10 April 2014." She attached the same medical certificate to the 9 April application with the following words added after the words "medical condition"; "rendering patient unable to attend tribunal hearing related to serious medical condition." The words "Consultant in Emergency Medicine" and a phone number were added after the name "Martin Duffy". 14The Appellant did not attend the hearing on 10 April 2014 and the Respondent opposed the application for an adjournment. 15The nature of Ms Avery's medical condition and its expected duration were not clear from either of the certificates she provided. Courts have been highly critical of medical certificates purporting to support an application for adjournment which refer to "some undisclosed and undiagnosed 'medical condition' culminating in the assertion that a person is unfit to attend court or unfit for a court hearing." Such opaque evidence leaves the decision maker with no basis on which to assess the merits of the application for adjournment or to know how long it is expected that the person will continue to suffer from the condition: Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [22]; Gray t/as Clarence Valley Plumbing Services v Ware Building Pty Ltd [2013] NSWCA 261 at [30] - [37]. 16The decision to adjourn a hearing is a discretionary one. Despite the inadequacy of the medical evidence the Panel decided to adjourn the matter. Hearing 'on the papers'? 17The Appeal Panel sought submissions from the Respondent as to whether this was a case where an order should be made dispensing with a hearing: Administrative Decisions Tribunal Act 1997, s 76. That provision states that: The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties. 18This provision, rather than s 50 of the Civil and Administrative Tribunal Act 2013, applies because the appeal was lodged on 30 December 2013. The appeal is a 'pending proceeding' and the provisions of any Act, statutory rule or other law that would have applied to the proceedings had the Civil and Administrative Tribunal Act 2013 (NSW) not been enacted, continue to apply: Civil and Administrative Tribunal Act, Sch 1, cl 7. 19Pursuant to s 76 of the Administrative Decisions Tribunal Act, the Tribunal does not need to obtain the consent of the parties before deciding to determine proceedings 'on the papers' but in this case the Tribunal did give the parties an opportunity to make submissions on that point. 20The Respondent submitted that the appeal should be heard on the papers because the Appellant had filed an extremely detailed Notice of Appeal covering more than 20 pages and had also filed several applications for interlocutory decisions together with lengthy submissions. The Respondent had provided detailed written submissions in response. 21In written submissions following the adjourned hearing, the Appellant objected to the hearing being determined 'on the papers'. She also filed some 150 pages of written submissions elaborating on the grounds of appeal. 22The principles of open justice do not always require an oral hearing. That is plain from the fact that the Tribunal has power to determine proceedings without conducting a hearing in certain circumstances. The appeal does not involve disputed questions of fact. The Appellant has not sought leave to challenge findings of fact or sought to lead further evidence. We agree with the Respondent that the legal issues are not complex and, to the extent that they require explanation, they have been comprehensively dealt with in the written material filed by each party. 23English is not the Appellant's first language but she has provided detailed written submissions addressing the issues she wishes to raise. She would suffer no disadvantage in terms of the Appeal Panel understanding her submissions if the proceedings are determined on the basis of written submissions. We are satisfied that the issues for determination can be adequately determined in the absence of the parties. 24Although the Appeal Panel made no direction to do so, the Appellant has filed further material in support of her appeal. In those circumstances we direct that the Respondent file and serve any further material in reply to that material within 28 days of the date of these reasons. The Appellant has a further 14 days to file and serve any submissions in response. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 20 May 2014