Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burns v McKee [2015] NSWCATAD 158 Hearing dates: 25 May 2015 Date of orders: 25 May 2015 Decision date: 25 May 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President Decision: Application for disqualification of member for apprehended bias upheld Catchwords: PROCEDURAL FAIRNESS – apprehended bias - private conversation with a party Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Category: Procedural and other rulings Parties: Garry Burns (Applicant) Geoff McKee (Respondent) Representation: Garry Burns (Applicant in person) Robert Balzola and Associates (Respondent) File Number(s): 1410520 Publication restriction: None ex tempore decision 1. HER HONOUR: Mr Balzola, the solicitor for the respondent, has applied for me, the presiding member Magistrate Hennessy, to recuse myself from hearing this matter on the ground of apprehended and/or actual bias. 2. The application for recusal was based on evidence given by the respondent, Mr McKee, and is set out at paragraph 12(a) of his affidavit sworn on 25 May 2015. The material that is relevant to the application is as follows: "On June 4 2014, I attended a case conference between Burns and Sunol and presided over by N Hennessy, LCM, Deputy President. I attended at the invitation of Mr Sunol and his wife because Mr Sunol was complained about for linking to my son's writings. When we walked into the room, Mr Burns was already present and in private conversation with the presiding member. This was the first time I had laid eyes on Mr Burns or had anything to do with him." 1. I do not read the remainder of that paragraph because it is not relevant to the present application. 2. The second basis for the application for refusal is set out in paragraph 12(d) of the same affidavit: "On January 20 2015 in Burns v Gaynor [2015] NSWCATAD 24 an unexpected and surprising decision was made by N Hennessy (It has got MLC but it is supposed to be LCM for Local Court Magistrate) Deputy President to reject Mr Gaynor's evidence that the serial complaints against him from Mr Burns were vexatious. This was despite many pages of sworn evidence providing examples of such vexatiousness. Therefore, I am not confident that this affidavit outlining similar vexatiousness will help me. I say that this decision suggests bias for the decision was overruled in an appeal made by Mr Gaynor. 1. The remainder of that paragraph is not relevant. 2. Case conferences are held in matters relating to complaints under the Anti-Discrimination Act 1977 (NSW) that have been referred to the Tribunal by the President of the Anti-Discrimination Board. Those matters are listed for what is called a "case conference." That is usually the first opportunity the parties have to meet and for the Tribunal to consider the complaint. Case conferences are not recorded and are not held in a hearing room. The Registry staff do not have any role to play in ushering parties in to the room where the case conference is held. The parties are admitted by the member conducting the case conference at the scheduled time. 3. Mr McKee alleges, and there is no evidence to the contrary, that he witnessed Magistrate Hennessy and Mr Burns, who is the complainant in these proceedings, speaking with one another prior to the respondent in those proceedings, Mr Sunol, and Mr McKee as an observer, entering the room. 4. The test for actual and apprehended bias is set out by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. In summary, that test 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. 5. There is no evidence as to the content of the conversation Mr McKee says that he witnessed between Magistrate Hennessy and Mr Burns. Nevertheless, a fair minded lay observer might reasonably apprehend that having a conversation with a party who is now an applicant in these proceedings without the other party being present would lead that person to apprehend that the Magistrate in this case might not bring an impartial and unprejudiced mind to the resolution of the question. For that reason I recuse myself and we will reschedule the matter for another day. Having made that finding, there is no need to address Mr McKee's alternative ground for recusal. 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: 30 July 2015