Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AMH v Western New South Wales Local Health District [2014] NSWCATAP 33 Hearing dates: 14 April 2014 Decision date: 14 July 2014 Jurisdiction: Appeal Panel Before: S Higgins, Principal Member S Montgomery, Senior Member M Bolt, General Member Decision: The appellant's application for leave to extend her appeal to a review of the merits of the decision of the Tribunal at first instance is refused. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - appeal - application for leave to extend the appeal to a review of the merits - apprehension of bias Legislation Cited: Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Cases Cited: AEZ v Commissioner of Police NSW Police Force [2013] NSWADT 90 AMH v Western New South Wales Local Health District [2013] NSWADT 282 Ebener v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245; [2005] NSWCA 456 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 Nicholls v Director General, Department of Education and Training [2010] NSWADTAP 35 VU v NSW Trustee and Guardian [2011] NSWADTAP 45 Category: Principal judgment Parties: AMH (appellant) Western New South Wales Local Health District (respondent) Representation: P Ginters (respondent) Applicant (self-represented) Henry Davis York (respondent) File Number(s): AP 14/0002 Publication restriction: Pursuant to s 75(2)((b) of the Administrative Decision Tribunal Act 1997, the Tribunal made an order prohibiting the disclosure of the name of the appellant. Decision under appeal Jurisdiction: 150001 Citation: [2013] NSWADT 282 Date of Decision: 2013-12-05 00:00:00 Before: P Molony, Judicial Member File Number(s): 123198 reasons for decision Introduction 1The appellant, AMH, has appealed a decision of the Administrative Decisions Tribunal (the Tribunal), in its General Division. In that decision, dated 5 December 2013, the Tribunal affirmed the decision of the respondent, Western New South Wales Local Health District, to refuse the applicant access to some of the information for which she had sought access, under the Government Information (Public Access) Act 2009 (the GIPA Act): AMH v Western New South Wales Local Health District [2013] NSWADT 282 (the Tribunal's decision). 2The appellant is an employee of the respondent and the information for which she sought access was as follows: All documentation in relation to an outside contracted solicitor [name] regarding a complaint of bullying and harassment against [AMH] and documents prior to an interview conducted on 7/03/08 and in particular the report which followed her investigation. 3In accordance with the GIPA Act, the respondent identified the relevant documents it held, containing the information sought by the appellant. This included the investigation report and transcripts of interviews with employees in the course of the investigation of the complaint made against the appellant. In his decision, at [6], the Judicial Member explained that the decision the subject of review, was the respondent's decision to refuse the appellant access to: (a) the information in the investigator's report, which 'might identify employees' of the respondent, who had provided information in the course of the investigation; and (b) the information in the transcripts of the investigator's interviews with employees. 4We note that the appellant's application came before the Tribunal at a planning meeting on 18 September 2012, 31 October 2012 and 2 April 2013. On 2 April 2013, the Judicial Member made orders for the parties to file and serve evidence and written submissions. The Judicial member also made an order that following the filing and serving of this material, the application was to be referred to him for a decision on the papers: see s 76 of the Administrative Decisions Tribunal Act 1997 (as it applied at that time). 5The Tribunal's decision was published 5 December 2013. In that decision, with the exception of the information in Document 31, the Tribunal affirmed the abovementioned decisions of the respondent to refuse the appellant access to the information sought. The exception is not the subject of this appeal so we have not considered it further. 6In her Notice of Appeal, the appellant said she was appealing 'on the merits of the decision'. She did not specify any questions of law arising from the Tribunal's decision, but in identifying why she was asking the Tribunal to extend her appeal to the merit, she said: 'I feel the merits of the decision have been biased.' Transitional matters 7The appellant's Notice of Appeal was filed in the Civil and Administrative Tribunal of New South Wales (NCAT), on 8 January 2014. The appeal is an appeal from a decision of the ADT, dated 5 December 2013. 8NCAT was established, on 1 January 2014, pursuant to s 3 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). On the establishment of NCAT, the ADT was abolished: see cl 3 of Schedule 1 of NCAT Act. 9By operation of cl 10(1) of Schedule 1 of the NCAT Act (existing unexercised appeal right), this appeal is taken to have been duly commenced in NCAT and may be heard and determined by NCAT. For this purpose and under cl 10(3), NCAT has and may exercise all the functions which the ADT previously had and the applicable legislation is that which would have applied if the NCAT Act had not been enacted. 10As a consequence, the Administrative Decisions Tribunal Act 1997(ADT Act), as in force at 31 December 2013 applies to this appeal. In particular, the provisions of Part 1, of Ch 7, of the ADT Act, which deals with internal appeals to the Appeal Panel of the ADT, applies to this appeal even though it is being heard by the Appeal Panel of NCAT. Hearing of the Appeal 11This appeal came before, Judge O'Connor, Deputy President Appeals, on 7 February 2014. His Honour made orders that the appellant file and serve written submissions 'as to why the Appeal Panel should exercise its discretion to extend the appeal to the merits under s 113(2)(b) of the [ADT Act]'. Orders were also made for the respondent to file and serve written submissions in reply. His Honour is also recorded as having noted that if the appeal was out of time, leave was granted for the appeal to continue. 12The appeal was heard on 14 April 20014. The applicant appeared in person, by telephone. Mr P Ginters, of counsel, appeared on behalf of the respondent. 13In accordance with the directions of Judge O'Connor, on 7 March 2014, the appellant filed and served written submissions. In those submissions, the appellant said that she appealed 'under a question of law in that the Judicial Member's findings may indicate an appearance of bias and possibly improper purpose.' She contended that 'an appearance of bias' is evidenced at [59], [60] and [61] of the Tribunal's. The appellant went on to assert that the alleged 'appearance of bias' and an allegation of improper purpose warranted an appeal on merits. 14On 27 March 2014, the respondent filed detailed written submissions in reply. These submissions contended that the appellant's assertions of bias and improper purpose were not made out so as to warrant the intervention of the Appeal Panel. The respondent also noted that the matter was listed for hearing on the issue of leave to appeal on the merits and not a hearing, as of right, on a question of law. 15There is no dispute that the decision of the Tribunal is an 'appealable decision' under s 112 of the ADT Act. A person's rights of appeal, in regard to an 'appealable decision', is set out in s 113 the ADT Act, which relevantly provides: 113 Right to appeal against appealable decisions of the Tribunal (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. (2A) ... 16The Court of Appeal, in Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245; [2005] NSWCA 456, at [14] and [60] to [63], held that para 113(2)(a) and (b) provided distinct sources of appeal to the Appeal Panel and were not cumulative. That is., a person could make an application for leave to appeal on the merits, without first establishing a question of law. 17As noted above, in her Notice of Appeal the appellant expressly stated that her appeal was a merits appeal. She did not state that she was appealing on a question of law. However, in her Notice of Appeal she did make reference to the decision having been biased. 18In its submissions, the respondent noted that 'an allegation of apprehended bias, if made out, can be characterised as constituting a lack of procedural fairness, and accordingly raise a question of law.' The respondent went on to contend that the appellant's Notice of Appeal did not raise any question of law. In his oral submissions, Mr Ginters reiterated that the matter was only listed for a hearing as to whether leave should be granted to allow the appellant to appeal on the merits of the Tribunal's decision. Leave was sought on the grounds of bias and it was for the appellant to persuade the Appeal Panel that this ground was made out and if so persuaded, the Appeal Panel should exercise its discretion to grant leave under paragraph 113(2)(b) of the ADT Act to extend the appeal to the merits. 19We proceeded to hear the appellant's application accordingly, but note that in a practical sense it would not have made any difference had we proceeded to hear the appellant's appeal as of right, under para 113(2)(a), and/or an application for leave to appeal on the merits, under para 113(2)(b). Our findings would have be the same, as the only ground relied on by the appellant for the leave application was that of bias, which arguably raises a question of law as noted by the respondent: see VU v NSW Trustee and Guardian [2011] NSWADTAP 45 and Nicholls v Director General, Department of Education and Training [2010] NSWADTAP 35. The Tribunal's decision and the appellant's arguments 20At [34] of the Tribunal's decision, the Judicial Member set out the Tribunal's task in determining the appellant's application for review. Put simply, that task was to determine whether the respondent had established (s 105 of the GIPA Act places the onus on the respondent) the following: (a) a disclosure of the information in issue would give rise to one or more of the public interest considerations against disclosure (see s 14 of the GIPA Act), and (b) on balance, the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure of the information in issue (see ss 12 and 13 of the GIPA Act). 21In regard to the public interest considerations against disclosure, the Judicial Member, at [39] to [41], noted that common to all the public interest considerations against disclosure in the table to subs 14(2), is that a disclosure of the information in issue 'could reasonably be expected' to have the nominated effect as set out in the table. The Judicial Member also cited the well accepted meaning of 'could reasonably be expected' in the context of the GIPA Act and other legislation proving for access to government information. 22The Judicial Member found, at [83], that the respondent had established that public interest considerations against disclosure of the information in issue, on balance, outweighed the public interest considerations in favour of disclosure. That is, the Judicial Member found that the respondent had established that there was an overriding public interest against disclosure, in accordance with the public interest test in s 13 of the GIPA Act. 23In regard to the public interest considerations against disclosure of the information in issue, the respondent relied on a number of those prescribed in the table to subs 14(2) of the GIPA Act: see at [37] to [68] of the Tribunal's decision. For the purpose of this appeal the relevant public interest consideration against disclosure is that prescribed in cl 3(f) of the table, which provides: 3 Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) ... ... (f) expose a person to a risk of harm or of serious harassment or serious intimidation, (g) ... 24The Judicial Member dealt with this public interest consideration against disclosure, at [57] to [62], in the Tribunal's Decision. At [57], the Judicial Member cited, in part, the decision in AEZ v Commissioner of Police NSW Police Force [2013] NSWADT 90. This decision being a previous decision of the Tribunal in regard to the construction and application of this particular public interest consideration against disclosure. We note that no issue has been taken in regard to this paragraph. 25The Tribunal went on to say the following, at [58] to [61], of its decision: 58 In the present case each of the employees who were interviewed during the course of the investigation have expressed concern as to what might occur if AMH becomes aware they did so and of what they said. AMH denies that she has any intention of taking "any sinister actions" aimed at persons who provided information to the investigation. She suggested that she already knows who those people are (without naming them) and suggests that the fact that she has taken no actions against them is indicative of her present intentions. It is nonetheless clear from AMH's statement that she believes that information given to the investigation was "inaccurate and misleading" and that when she identifies who provided that information - I anticipate on commencing proceedings that will correct the record and remove those inaccuracies which are recorded against my name, and will attempt to remedy those wrongs that have been occasioned against me. 59 At a planning meeting held in December 2010 I inadvertently mentioned the name of one of the employee who spoke with the investigation and who had written to the Tribunal asking to be joined to the proceeding at that time. Ms Anderson, the solicitor for the Agency has filed an affidavit in which she has outlined her observations of AMH when that occurred. There is no dispute that AMH said, "Well, I will talk with her on Monday." There is a dispute about her body language at the time. AMH in her affidavit explained - I say that at no time did I make the comment in a stern, forthright or challenging manner. I say that I had no reason to be surprised or aggravated by the mentioning of this persons name and I say that I did not move my seat towards the table in a curt and forthright manner. I say that I made the comment referred to in paragraph 41 as an acknowledgement that the person referred to by Judicial Member Maloney (sic) is a very good friend and colleague of mine and in reference to the fact that I see this person almost on a daily basis, I was simply referring to the fact that I will see her on Monday. 60 I do not accept AMH's evidence in this regard. Her explanation of the words she uttered, in the context in which they were uttered, is both implausible and artificial. In the context I understood them to be a clear statement of AMH's intention to approach the person concerned to discuss the investigation. Given the allegations of serious bullying and harassment by AMH considered by the investigation and documented in its report, AMH's "Well, I will talk with her on Monday" takes on a more sinister and concerning aspect. One that lends weight to the concerns expressed by employees of the Agency, who interacted with AMH, regarding the potential for further serious bullying and harassment. 61 In the light of all the evidence I accept that one could reasonably expect that release of all the information in issue could reasonably be expected to expose persons to a risk of serious harassment or intimidation. The exception to this is document 31. 26At [79] to [80], of the Tribunal's Decision, the Judicial Member set out his findings as to the weight he gave to the public interest considerations against disclosure, as established by the respondent, in regard to the information in issue. These findings are described as follows: 79 Those public interest considerations in favour of disclosure are to be weighed against each of the public interest considerations against disclosure I have found above. Insofar as it the information concerns identifying information relating to others, such as addresses and qualifications, AMH has indicated she does not press for access. This leaves a body of personal information much of which goes to the interpersonal relationship between persons with whom AMH works, and which readily allows those individuals to be identified. I think the public interest consideration against disclosure of that personal information deserves considerable weight. 80 I am satisfied that the public interest consideration against disclosure of information that could expose a person to a risk of harm, or of serious harassment, or serious intimidation, is a factor meriting great weight in this case. The protection of individuals from future harassment and harm is a very persuasive factor. 81 I also accept that maintaining the confidentiality of information given to the Agency in confidence and which is necessary for the Agency to manage its human resources is deserving of some weight. The other public interest considerations against disclosure that I have referred are also deserving of weight, although, in my view, in the circumstances of this case, less weight than that given to the other factors I have discussed. 27The appellant contends that the Judicial Member made a 'leap from his inadvertent name mentioning', at [59] of the decision, 'to the contents of the Information in Issue, of which serious bullying and harassment' was claimed by the respondent. The appellant went on to say that: '... it would appear that the Judicial Member has taken as evidence the statements contained in the Information in Issue as fact to influence his decision process rather than offer an impartial judgment of AMH's behaviour against his own questionable behaviour (at his own admission through the inadvertent comment) in the room of the planning meeting on 31 October 2012.' 28The appellant went on to assert that the Judicial Member's inadvertent name mentioning was unhelpful and: '... [may] possibly be thought of as questionably intentional. For the Judicial Member to go on to use his own interpretation of the situation to form part of a Reason for Decision when AMH was both anxious and naive and without legal representation in the planning meeting situation may possibly be construed as improper purpose on the part of the Judicial Member.' Consideration 29While we understand that the appellant is dissatisfied with the decision of the Tribunal, for the reasons set out below, we are not persuaded by her arguments that the Tribunal's reasons for decision evidence 'bias' by the Judicial Member in making the findings he made. 30As noted by the respondent, it is well established that 'bias' is a breach of the obligation to accord procedural fairness, sometimes called the 'rules of natural justice'. In this regard, subs. 73(2) of the ADT Act provides that while the Tribunal is not bound by the rules of evidence it is 'subject to the rules of natural justice'. 31There are two aspects to bias, actual bias and apprehended bias. As actual bias by the Judicial Member has not been raised by the appellant we have not considered this any further. However, for completeness, we find that there is no evidence on which such an argument could be made. 32The apprehension of bias principle and its application were discussed by the High Court in Ebener v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, at [3] to [8], per Gleeson CJ, McHugh, Gummow and Hayne JJ, as follows: 3. Fundamental to the common law system of adversarial trial is that it is conducted by an independent and impartial tribunal. .... It is unnecessary, however, to explore the historical origins of the principle. 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. ... 5. ... 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, ..., 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 [citations omitted]. That principle gives effect to the requirement that justice should both be done and be seen to be done [citations omitted], 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. 33In a more recent case, Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48, the High Court (per Gummow ACJ, Hayne, Crennan and Bell JJ) said the following: 31. It has been established by a series of decisions of this Court [citation omitted] that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in 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. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied. 32. As the plurality in Johnson v Johnson [citation omitted] explained, "[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues." 33. Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias. ... 34In our view, when objectively assessed, the Judicial Member made his findings as to whether the disclosure of the information in issue could reasonably be expected to expose persons to a risk of serious harassment or intimidation, on the basis of all the material before him, including the affidavit evidence of the respondent's solicitor, Ms Anderson, and that of the appellant. 35We note that the affidavit of Ms Anderson was filed and served subsequent to the 31 October 2012 planning meeting (i.e. on or about 7 December 2012) and the appellant filed and served her affidavit almost two months after that (i.e. on 28 February 2013). We also note that in December 2012, the respondent provided to the Tribunal, in confidence (see s 107 of the GIPA Act), statements made by some of the employees who had been interviewed during the course of the investigation (see at [29] of the Tribunal's Decision, where the Judicial Member sets out the information before him). These statements were made for the purpose of the appellant's GIPA application and the appellant was given a redacted copy of these statements. The redactions were the names of the employees who made the statement and any information that may identify that person. However, the copy of the statement released to the appellant included the person's reasons for objecting to the disclosure of the information that the person had given to the investigator. We note these reasons included concerns about being bullied or intimidated by the appellant if the information they provided to the investigator were to be released to the appellant. 36In our view, the remarks of the Judicial Member, at [60], about concerns expressed by the employees is a reference to the concerns as expressed in these employee statements prepared for the purpose of the GIPA Act and not a reference to what was asserted against the appellant in the course of the investigation. 37In her affidavit, the appellant addressed these concerns, as well as those raised by Ms Anderson in her affidavit. 38Accordingly, we do not accept the appellant's contention that the Judicial Member took as fact the statements contained in the information at issue. 39Nor do we accept that the Judicial Member's disclosure of the name of one of the employees, who was interviewed by the investigator, evidences a lack of impartiality by the Judicial Member in determining the appellant's application for review. While disclosure of this nature should be avoided (see s 107 of the GIPA Act), in this instance, the disclosure was clearly inadvertent. It was made at a planning meeting where the only persons in attendance were the appellant and the solicitor for the respondent and no information, other than the name of the particular employee was disclosed. At no time following the disclosure, did the appellant ask the Judicial Member to recuse himself. On the contrary, she complied with the orders that were made on this day and those that were made at the subsequent planning meeting in April 2013. 40Accordingly, in accordance with the two step test as described in Ebener (supra), at [8], we do not accept the appellant's contention that the Judicial Member's inadvertent disclosure was such that a fair-minded lay observer might reasonably apprehended that the Judicial Member did not bring an impartial and unprejudiced mind to the determination of the appellant's review application. The Judicial Member's observation of the appellant when he made the inadvertent disclosure, was clearly a matter relevant to the issue as to whether the respondent had established that a disclosure of the information in issue 'could reasonably be expected to' expose a person to a risk of harm or of serious harassment or serious intimidation. It was not the only matter before the Judicial Member in regard to this issue, but it was a matter raised by the respondent in Ms Anderson's affidavit and responded to by the appellant in her affidavit in reply. In reaching his conclusions, the Judicial Member was clearly entitled to have regard to all the information before him, including his own observations of the appellant at the 31 October planning meeting. 41We note that at no time following his inadvertent disclosure and prior to the publication of the Tribunal's Decision, did the appellant object to the Judicial Member determining her application. She had ample opportunity to do so, if this was of concern to her following the 31 October 2012 planning meeting. We can only assume it was of no concern to her. Conclusion and Orders 42For the reasons set out above, we find that the appellant has failed to establish that the decision of the Judicial Member was biased. And on this basis the appropriate order is to refuse the appellant's application for leave to appeal on the merits. 43Accordingly, we order: (1)The appellant's application for leave to extend her appeal to a review of the merits of the decision of the Tribunal at first instance is refused. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ******** 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: 14 July 2014