The section 96 Challenge to Dr Paver's Appointment
68 Section 96(1) permits the person under review to challenge the appointment of a member of a Professional Services Review Committee on the grounds that the member:
(a) is biased or is likely to be biased; or
(b) is likely to be thought, on reasonable grounds, to be biased.
If the Director decides that such a challenge is justified, the Director is required to revoke the appointment. Section 96(6) requires the Director to give written notice of the decision made to the person under review.
69 Dr Chandra is not seeking judicial review of any decision made by Dr Paver to refuse to disqualify himself by reason of actual or apprehended bias. No such application has been made to Dr Paver. As I have already said, there is no reliance in this proceeding on s 5(1)(a) of the ADJR Act, which provides a breach of the rules of natural justice as a ground for judicial review.
70 The decision the subject of judicial review is confined to the Director's decision by letter of 15 December 2009 refusing the s 96(1) application made by Dr Chandra. That decision is attacked by Dr Chandra on a limited basis, confined to a challenge based on the Director having failed to consider the criterion in s 96(1)(b) of the Act in rejecting Dr Chandra's s 96(1) application. It is said by Dr Chandra that the failure involved an improper exercise of the power (s 5(1)(e) of the ADJR Act) and also an error of law (s 5(1)(f) of the ADJR Act). The error of law is said to be that the Director identified the wrong issue or asked the wrong question in relation to the operation and application of s 96(1). Dr Chandra's fundamental point is that the Director failed to apply the test that s 96(1) required him to apply by not addressing the second limb of that provision.
71 There is no issue before me that, given the nature of the challenge made by Dr Chandra, the Director was bound to take into account, consider and determine the criteria in both of the limbs of s 96(1) of the Act. Clearly, the second limb of s 96(1) was a relevant consideration.
72 The inference that Dr Chandra asks me to draw is that the Director did not take into account the criterion in s 96(1)(b). Dr Chandra relies on the words used by the Director in the second sentence of the Director's letter of 15 December 2009: see [36] above. The inference that Dr Chandra asks me to draw is based on the failure of the Director in the second sentence to refer expressly to the criterion found in s 96(1)(b), having expressly referred to the criterion of s 96(1)(a).
73 It is to be noted that the second sentence deals with the non-acceptance of Dr Chandra's s 96(1) challenge to Dr Paver's appointment. That sentence is not an expression of the Director's reasons for decision, but it can be characterised as an expression of the basis for the decision. There was no obligation upon the Director to provide the basis for his decision. Compliance with the requirements of s 96 required no more than a decision that the challenge was not justified and written notice of that decision to Dr Chandra: see s 96(3) and (6).
74 However, the Director appears to have travelled beyond his obligation under s 96 and provided to Dr Chandra an expression of the basis for his decision that Dr Chandra's challenge was not justified. The Director having done that, Dr Chandra is entitled to contend that there is a basis for an inference to be drawn that the Director did not consider the second limb of s 96(1) when he made his decision.
75 The respondents contend that the second sentence is merely an example of the kind of "unhappy phrasing" referred to in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. They contend that it is plain from the whole course of correspondence between the Director and Dr Chandra's solicitors that Dr Chandra had made an application against Dr Paver (and Mr Ham and Professor Cooper) based on both limbs of s 96(1), and that the Director was addressing in his responses the whole of those challenges. They say that it is clear that when the Director referred in correspondence to "the allegation of bias" or "the claim of bias", he was dealing with and responding to the challenge made under both limbs of s 96(1). In that context, the respondents contended that the reference to "your client's claim of bias against Dr Paver" (first sentence of the letter of 15 December 2009) is to be understood as a clear reference by the Director to the whole of the challenge made. In that context, the respondents say that the Court should be loathe to assume that the Director somehow forgot about s 96(1)(b) because of the way he phrased his finding in the second sentence.
76 The respondents' position is that the second sentence is a badly expressed notification of a decision which considered and rejected both of the s 96(1) limbs of the challenge made to Dr Paver's appointment.
77 Dr Chandra accepts that the Director decided to reject both limbs of the challenge. He says, however, that the second sentence demonstrates that the Director did that without considering the criterion in s 96(1)(b). Dr Chandra's acceptance that both limbs of the challenge were rejected was perhaps a necessary concession to the prospect that in the absence of such a finding, it is likely that no decision to reject the challenge made pursuant to s 96(1)(b) was made by the Director and that accordingly, there can be no judicial review of a decision not made.
78 Section 13(1) of the ADJR Act enables a person who is entitled to make an application under s 5 of that Act to request the decision maker to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and giving reasons for the decision. Despite his obvious entitlement to do so, no such request was made by Dr Chandra. Reasons for decision compliant with the requirements of s 13 would have clearly identified whether or not the Director took into account the criterion in s 96(1)(b).
79 I will return later to the failure of Dr Chandra to have made a request for the Director's reasons for decision.
80 Without reference to any reasons for decision from the Director, the Court is left with the far more difficult task of determining whether an inference should be drawn of the kind contended for by Dr Chandra from the terms of the second sentence.
81 In undertaking that task, it is important to appreciate that a notification of the basis of a decision is conceptually distinct from the decision itself: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [30] per Gaudron J; Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 at [31] and Alexander v Australian Community Pharmacy Authority (2010) 265 ALR 424 at [61]. What I need to be satisfied of, if Dr Chandra is to succeed, is that the decision of the Director is infected with error. Dr Chandra cannot succeed simply by establishing that the Director's expression of the basis for his decision is infelicitous: see Tisdall v Webber [2010] FCA 501 at [13]-[14] per Ryan J.
82 As a matter of logic it does not follow that an inadequate notification of the basis for a decision is the result of an inadequate decision. That is so because it may well be the case that the failure of the Director to refer (in the second sentence) to the s 96(1)(b) criterion, is a failure in the process of communication of the basis of his decision and not a failure in the decision making process itself: see Alexander at [88]-[89].
83 Even where a decision maker is bound to provide reasons for decision which refer to the relevant considerations taken into account in the making of that decision, the fact that a relevant consideration has not been referred to in the decision maker's reasons for decision is not determinative of whether that consideration was or was not in fact taken into account in the making of the decision: see Alexander [61], [84]-[90].
84 As the analysis of the authorities in Alexander demonstrates, the whole of the circumstances of the decision must be taken into account. An inference may not be drawn from the failure by the decision maker to refer to a relevant consideration where there are contra-indications supporting an inference that the matter was considered: see, as well, the authorities cited by Hely J in Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747 at [20].
85 I have come to the view that the Director did not fail to take account of the criterion in s 96(1)(b). In my view, it is more probable that the failure of the Director is a failure to express clearly the basis for his decision, rather than a failure in the decision-making process itself.
86 Once it is accepted, as Dr Chandra has and as I do, that the decision of the Director included a rejection of that part of the challenge based on s 96(1)(b), it becomes difficult to construe the notification given in the second sentence as anything other than an imperfect expression of the basis for that decision.
87 In reaching that conclusion I take into account a number of matters. It is apparent that the submissions before the Director made by Dr Chandra prominently dealt with the allegation that Dr Paver is likely to be thoughton reasonable grounds to be biased. The fact that an issue was prominent in a decision maker's deliberations tends to support an inference that the issue was considered rather than not. The more attention that is given to an issue, the less probable it is that in reaching its decision the decision maker either wilfully ignored or overlooked the issue: see Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675 at 686 per Stephen J (with whom Gibbs, Mason and Aickin JJ agreed) and Alexander at [95].
88 It is notable in that respect that in the first sentence of the Director's letter of 15 December 2009, the Director says that he has "carefully considered" the further background information which was provided to him in the letter of 11 December 2009. That information, as the letter of 11 December 2009 shows, formed the basis for Dr Chandra's submission that there are irrefutable grounds that Dr Paver "is or is likely to be biased, or is likely to be thought, on reasonable grounds, to be biased". It is difficult to accept that, having carefully considered the information provided, the Director then ignored the criteria in s 96(1)(b), the terms of which he was specifically referred to.
89 Further, I take into account that this was not an exercise (as is often the case) where a decision maker is left to identify what considerations are relevant to the ultimate conclusion required. The exercise required of the Director was in no respect abstract or obscure. It was identified for him in straightforward criteria set out in s 96(1) of the Act. In that context it is more likely that the exercise was properly undertaken: Alexander [92].
90 That is especially so given that (as was conceded by Dr Chandra's counsel) the Director is experienced and that as part of his functions he deals from time to time with challenges made under s 96(1) of the Act. It is more likely that the task required by s 96(1) was properly undertaken in circumstances where the Director was experienced with and had regular dealings with the requirements of that provision: Alexander [93].
91 Finally, I note that the second sentence does not contain a precise or exact repetition of the terms of s 96(1)(a). The word "is" does not appear in the second sentence following the word "or", as it does in s 96(1)(a). What does follow the word "or" in the second sentence, is the word "likely" and the phrase "to be biased". That word and that phrase appear in s 96(1)(b). I recognise, of course, that they also appear in s 96(1)(a). However, the significant commonality in the words used in s 96(1)(a) and (b) supports the contention that the second sentence is the product of looseness in language, unhappy phrasing or imprecision: see Alexander at [68] and the cases there referred to.