Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BVT v Children's Guardian (No 2) [2016] NSWCATAD 266 Hearing dates: 2 November 2016 Date of orders: 22 November 2016 Decision date: 22 November 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: The application filed 6 October 2016 for the proceedings to be heard by a Tribunal Member other than Senior Member M Anderson and General Member O'Halloran is refused. Catchwords: ADMINISTRATIVE LAW – application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 – prior refusal of application – appeal to Supreme Court allowed on an error of law – remittal of application by Supreme Court to be determined according to law – error of law identified by the Supreme Court - no order made by Supreme Court as to constitution of the Tribunal to rehear the application – original hearing by two member panel - whether an apprehension of bias is present - whether the matter should be heard by different Members of the Tribunal if no apprehension of bias found – no apprehension of bias present – matter may be heard by the named Members of the Tribunal subject to availability. Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Cases Cited: Attorney General of New South Wales v Lucy Klewer [2003] NSWCA 295 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Barakat v Goritsas (No 2) [2012] NSWCA 36 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 BVT v Children's Guardian [2016] NSWCATAD 12 BVT v Office of the Children's Guardian [2016] NSWSC 1169 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 Isbester v Knox City Council (2015) 89 ALJR 609 Johnson v Johnson (2000) 201 CLR 488 Jorgensen v Shorten [2016] NSWSC 1631 McGuirk v Director General, Attorney General's Department (GD) [2007] NSWADTAP 38 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Raybos Australia Pty Limited v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 Re JRL; Ex p CJL (1986) 161 CLR 342 Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71 Wentworth v Graham [2003] NSWCA 240 Category: Procedural and other rulings Parties: BVT (Applicant) Children's Guardian (Respondent) Representation: Counsel: G Moore (Applicant) J Harris (Respondent) Solicitors: Legal Aid NSW (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1610559 Publication restriction: Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. reasons for decision 1. This is an application to recuse members of the Tribunal in the rehearing of the application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW). The rehearing is scheduled for 14 December 2016. The publication restriction imposed in the proceedings BVT v Children's Guardian [2016] NSWCATAD 12 is continued. 2. An application for an enabling order was heard previously by the Tribunal on 17 December 2015 and reasons were published on 13 January 2016 in the decision BVT v Children's Guardian [2016] NSWCATAD 12. The Tribunal panel which heard that matter was Senior Member M Anderson and General Member M O'Halloran. The application was refused on the basis that the applicant had failed to discharge the onus to prove that he is not a risk to children. The applicant appealed to the Supreme Court which determined the amended summons. Justice Adamson in the published decision BVT v Office of the Children's Guardian [2016] NSWSC 1169 found that there were errors of law in the original Tribunal decision. The matter was thus remitted to be heard according to law. Because no order was made that the matter should be heard by a differently constituted Tribunal, the matter was listed by the Tribunal before Senior Member M Anderson for directions. In the event that it is determined that Senior Member M Anderson ought not or should not hear the matter, another member of the Tribunal is able to preside in the rehearing. The General Member allocated to hear the matter this time will, irrespective of this outcome of this application, be a different member because General Member O'Halloran is not available to hear the matter. 3. At the directions listing on 20 September 2016 the matter was set down for rehearing on 14 December 2016. Also at that time directions were made for filing of an application and submissions in the event that the applicant sought the recusal of the Tribunal panel. That application was made on 6 October 2016. The basis for the application is solely on the grounds of apprehended bias. The date for oral submissions was also set for 2 November 2016. On that date the parties made submissions and provided evidence in the form of the reasons of Justice Adamson in the Supreme Court and the transcript of the hearing in the Tribunal on 17 December 2015. Written submissions were also received. The Supreme Court decision 1. Justice Adamson referred to the Tribunal's reasons in relation to the circumstances of the offence which rendered the applicant a disqualified person and the sentencing procedure when the applicant pleaded guilty to the offence at paragraphs [50] to [53] of the Supreme Court decision. Her Honour found that the error of law was for the Tribunal to find that the plea of guilty established the police facts as the circumstances surrounding the offence, in the absence of remarks on sentence or transcript of the sentencing, and that the other witnesses' statements were accepted by the Court and apparently by the disqualified person with the benefit of legal advice. [1] 2. Justice Adamson stated [2] : "The Tribunal was not bound by the laws of evidence: s 38 of the NCAT Act. It was therefore entitled to take into account the contents of the documents produced by the District Court, including: the plaintiff's record of interview; the witness statements; and the police facts, although the witness statements and police facts would not have been admissible as evidence under the Evidence Act 1995 (NSW). If that is what the Tribunal had done in the present case, there could have been no proper grounds for complaint. However, by elevating the matters in these documents to the status of findings by the sentencing judge and admissions made by the plaintiff, the Tribunal misapprehended the legal effect of the plaintiff's plea." 1. Justice Adamson stated later in her Honour's reasons: "[72] Whether the reasons of the Tribunal are adequate depends on the circumstances of the individual case: Mifsud v Campbell (1990) 21 NSWLR 725 at 728. Although the Tribunal's reasons are detailed and address each of the relevant statutory factors, they do not, in my view, explain why the considerable length of time since the index offending; his youth and intoxication at the time; his extended period of non-offending; and his prolonged sobriety, were insufficient to discharge the onus. The cumulative effect of these matters was such as to lead to an inference of successful rehabilitation as well as a distinction between youthful conduct characterised by crime and intemperance, on the one hand, and more recent adult conduct characterised by emotional stability, temperance and a positive contribution to the caring of children (through his assisting in the raising of his partner's own children and, more recently, her grandchildren), on the other. … [74] This is not to say that the Tribunal was bound to come to a particular result (the grant of an enabling order) by reason of these matters, though they were apparently powerful considerations. However, the Tribunal was, as part of its obligation to give reasons, obliged to explain to the plaintiff why his conduct over the last 35 years, as well as his sobriety over the past 10 years, was insufficient to discharge the onus under the [Child Protection (Working with Children) Act], of establishing that he did not pose a risk to the safety of children… [75] In my view, the Tribunal failed to give sufficient reasons to explain why these matters were not enough to discharge the onus that fell on the plaintiff. Accordingly, its reasons were such as to lead to "a sense of injustice" (Beale v GIO of NSW (1997) 48 NSWLR 430 at 444 per Meagher JA) and promote a "sense of grievance" (Mifsud v Campbell at 728 per Samuels JA). 1. It is therefore clear from the reasons in the Supreme Court that the error of law about the facts established by the plea of guilty, and the failure to sufficiently explain why the onus was not discharged by the disqualified person are the grounds upon which the Supreme Court set aside the decision of the Tribunal. 2. Justice Adamson was not satisfied that the assertion that the decision was legally unreasonable was made out. [3] 3. Justice Adamson also stated [4] : "… The Tribunal's assessment of the plaintiff's credibility and acknowledgement of guilt of the offence in 1973 appears to have been substantially influenced by the error made which is identified in grounds 1 and 2 [of the amended summons]. Accordingly, the decision must be set aside in order that the plaintiff can have his application for an enabling order determined according to law." 1. The finding of errors of law was sufficient for the setting aside of the Tribunal's determination and remittal of the proceedings for rehearing. The relevant order made by her Honour remitting the matter back to the Tribunal did not require that the constitution of the Tribunal to hear the remitted application not include Senior Member M Anderson and/or General Member M O'Halloran. [5] That is an order which can be made by the Supreme Court and may be sought by the plaintiff in an application of this type and from this Tribunal before the Supreme Court. However, that is an order which is within the Supreme Court's discretion and subject to argument before the Supreme Court. Mr Moore informed the Tribunal in his oral submissions that the order was not sought before Justice Adamson due to his oversight. It was apparently not an order sought in the amended summons. The legal principles 1. On an application for recusal on the grounds of apprehension of bias the test is well-established in the law and can be stated as: "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 (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; applied in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; distinguished in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; see also Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71; Barakat v Goritsas (No 2) [2012] NSWCA 36 and Isbester v Knox City Council (2015) 89 ALJR 609. 2. Such an application should be determined by the person whose disqualification is sought, and should not involve a contest on the facts: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436; and Wentworth v Graham [2003] NSWCA 240. 3. An indication by a party that it simply wishes a decision-maker to disqualify himself or herself is not a proper ground for the person to recuse themselves: Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45. It is also accepted from that decision that the fact that a decision-maker has decided an issue in a particular way and is likely to decide it in the same way when it arises again, does not automatically give rise to an apprehension of bias: see also McGuirk v Director General, Attorney General's Department (GD) [2007] NSWADTAP 38. 4. Tribunal members are required to discharge their professional duties unless disqualified by law. A Tribunal member should not accede too readily to applications for disqualification, otherwise litigants may succeed in effectively influencing the choice of the decision maker in their own cause: see Re JRL; Ex p CJL (1986) 161 CLR 342 at 352; Attorney General of New South Wales v Lucy Klewer [2003] NSWCA 295; Ebner v Official Trustee, above, at [19]–[23]; and Raybos Australia Pty Limited v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272; Jorgensen v Shorten [2016] NSWSC 1631. 5. Mr Moore referred to the decision of the High Court in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427. The plurality in that matter summarised the statements made in other authorities and earlier in their own joint reasons to the following effect [6] : "As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear on the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or commit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of enquiry (by first assuming existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" impermissibly confuses the different enquiries that the two different allegations (actual bias and apprehended bias) required to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment." (emphasis in original, citations omitted) 1. Mr Moore referred the Tribunal to paragraphs [31] and following for the exposition of the correct test. The plurality expressed the test to be applied in this way [7] : "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 (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. As the plurality in Johnson v Johnson 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.' Because the test is objective it is important to keep an enquiry about apprehension of bias distinct from any inquiry about actual bias. An enquiry 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…"(emphasis in original, citations omitted). 1. Mr Moore referred the Tribunal to the decision of the High Court in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283. This decision expresses the same test as referred to earlier. In those proceedings the trial judge made a finding of fraud in relation to the document retention policy of the company. The nature of the fraud was extremely serious. This was held by the majority to be sufficient to satisfy a reasonable observer that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. Submissions of the parties 1. It was the submission of the applicant that the prior determination of the application by the Tribunal may give rise to an apprehension of bias. It was also submitted that there was a determination about the credit or perhaps more precisely the credibility of the applicant and effectively a cross examination of the applicant by the Presiding Member between pages 19 and 26 of the transcript of 17 December 2015. It is submitted by the applicant that this gives rise to an apprehension of bias. 2. The respondent did not disagree with the statement of the law made by the applicant and did not take a position either way on the application. Determination 1. The fact that a decision-maker has decided an issue in a particular way and is likely to decide it in the same way when it arises again, does not automatically give rise to an apprehension of bias: Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45; McGuirk v Director General, Attorney General's Department (GD) [2007] NSWADTAP 38. 2. On the further hearing of the application for an enabling order the applicant will be able to present evidence which addresses the risk issue. That may be the same evidence or could include additional evidence to that led in the original hearing. The Tribunal will be required to assess that evidence at the time of hearing and after considering further submissions. 3. It is, with respect, not correct to say that the disqualified person's credibility was affected by the error in relation to the plea of guilty. The Tribunal did not proceed to make a determination concerning the credibility of the applicant. The judgment, when read as a whole, explains that the evidence of the disqualified person and the professionals with whom he consulted, identified the disqualified person could not properly remember the events which led to his prosecution, either because he was drunk all the time as he said, or due his cognitive limitations which are evident to the psychologist and the psychiatrist, or because he did not want to recall the events due to a sense of shame or unconcern. 4. The questions which were asked of the applicant recorded in the transcript on 17 December 2015 gave the applicant an opportunity to reply to, for the first time orally and on affirmation, the evidence which is at variance to his own account of what happened many decades ago. The dictates of procedural fairness required that he be given that opportunity. The Tribunal thereafter did not proceed to make a determination concerning the credibility of the applicant. Nor did the Tribunal make a determination on the balance of probabilities concerning the evidence given by the applicant and the statements recorded in the material provided from the police brief. Instead, the Tribunal relied upon the plea of guilty to attempt to establish the accepted circumstances of the offence, and in the process fell into error. As Justice Adamson stated, the Tribunal could have made a determination as to the circumstances of the offence on the balance of probabilities using the documents produced from the District Court as the basis for such a determination weighed in light of the applicant's primary evidence and responses and other statements to professionals, and there would have been no error in that process. 5. The applicant relied the evidence of Ms Hare, psychologist, in the original proceedings. That witness was able to say something about the various versions of events described in the original judgment as follows [8] : "[43] The applicant presented to Ms Hare (Exhibits A2 and A3) "as an inconsistent historian" which she considered reflected poor memory rather than a conscious attempt to mislead her: Exhibit A2 [10]. … [45] After Ms Hare was given copies of further material provided to the Children's Guardian she was able to say in Exhibit A3 at [3]: "Having reviewed the material, it is clear that [the applicant] provided me an account of the trigger offence that was inconsistent with events outlined in the additional material."" 1. The statement of the Tribunal to similar effect is that [9] : There is clear evidence upon which the Tribunal has to rely and it contradicts the stated memory, or lack of memory, of the applicant. 1. Whether the disparity is described as "inconsistent" or contradictory the factual statement of the difference is the same. There is no determination that the applicant is deliberately misleading or lying to the Tribunal and his own psychologist. The statements from the applicant's own witness and the Tribunal are simply observations about the obvious differences in the accounts. There was no finding that the applicant was not a witness of truth when he said he had no memory or had a different memory of the events. The Tribunal's statement agreed with the statement of Ms Hare and she clearly did not exhibit any apprehension of bias against the applicant. 2. The issues to be determined by the Tribunal are not whether the applicant is credible or has a good (or bad) memory but whether the applicant poses a risk to the safety of children. No finding about the applicant's credibility has been made. 3. An independent lay observer in these circumstances would not reasonably apprehend that the Tribunal Member might not bring an impartial and unprejudiced mind to the resolution of the question the Tribunal Member is required to decide. The test is an objective one and requires an assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the Tribunal Member might not bring an impartial mind to bear on the issues that are to be decided. 4. The applicant has not objectively demonstrated the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the Tribunal Member might not bring an impartial mind to bear on the issues that are to be decided. 5. The application therefore should be refused. 6. The order of the Tribunal is: 1. The application filed 6 October 2016 for the proceedings to be heard by a Tribunal Member other than Senior Member M Anderson and General Member O'Halloran is refused. Endnotes 1. BVT v Office of the Children's Guardian [2016] NSWSC 1169 at [54]-[59]. 2. Ibid at [58]. 3. Ibid at [83]. 4. Ibid at [84]. 5. Ibid at [85](3). 6. At [67] 7. At [31]-[33]. 8. BVT v Children's Guardian [2016] NSWCATAD 12 at [45]. 9. Ibid at [46]. 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: 22 November 2016