Chandrasekaran v Royal Australian and New Zealand College of Psychiatrists

The application for disqualification 39 At the interlocutory hearing on 27 May 2020 it was understood that an application was then being made for the immediate reconstitution of the Court. Dr Chandrasekaran also filed in Court on 4 June 2020 an Interlocutory Application to that effect. 40 It was understood that an application for disqualification of the Court as presently constituted was founded upon there being a reasonable apprehension of bias as against Dr Chandrasekaran and in favour of the Respondent. Such an application was not unexpected. Dr Chandrasekaran had previously, for example on 28 April 2020, expressed a concern as to what she perceived to be too great a willingness to accept submissions as made by Counsel for the Respondent. If there was a willingness to accept Counsel's submissions, that was because the submissions were sound. And any acceptance of any submission was not done without affording Dr Chandrasekaran repeated opportunities to advance her own submissions. 41 On 4 June 2020, Dr Chandrasekaran articulated the bases upon which disqualification was sought as being founded upon: the October 2019 judgment making no reference to vicarious liability, which was said to constitute the bulk of the submissions put forward by Counsel for Dr Chandrasekaran; the October 2019 judgment not referring to Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4) [2016] FCA 33, which was included in the submissions of the Respondent; and the submissions drafted by Dr Chandrasekaran being publicised in part in the October 2019 judgment, which goes to the broader point that the privacy of the Respondent was prioritised over that of Dr Chandrasekaran. These bases have been considerably supplemented by the further submissions filed by Dr Chandrasekaran subsequent to the conclusion of the hearing. These further bases are set forth in 16 numbered paragraphs and include: the manner in which applications for subpoenas were resolved; the manner in which the Applicant has been variously identified as Dr Chandrasekaran and, on other occasions, Ms Chandrasekaran; and concluding with a submission which reads (without alteration): "[k]eeping the Applicant exposed to psychological and physical violence as part of the campaign of harassment through delay to proceedings". The factual accuracy of many of the submissions made, with respect to even an unrepresented Applicant, is seriously open to question. The "delay" which has occurred was largely due to extending Dr Chandrasekaran repeated opportunities to attempt to articulate her case. But Dr Chandrasekaran is unrepresented. There is no questioning the genuineness of her belief as to the manner in which she advances her submissions. 42 Any application for disqualification, it is now well recognised, must be "firmly established": Re JRL, Ex parte CJL (1986) 161 CLR 342. Mason J there observed at 352: It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson [(1976) 136 CLR 248] and Livesey [(1983) 151 CLR 288] has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established" (…) . Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. (some citations omitted) 43 It is equally well-recognised that, as a "general rule" a judge "should not accede to an unfounded disqualification application": Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [1999] VSCA 35 at [89], (1999) 2 VR 573 at 603 per Callaway JA. A judge "should not be quick to disqualify himself or herself from hearing a case for a reasonable apprehension of bias" (Patel v Minister for Immigration and Citizenship (No 4) [2012] FCA 1170 at [80], (2012) 208 FCR 128 at 149 per Collier J) and "should not recuse himself or herself from hearing a particular case without there being a proper and substantial reason for doing so" (Rana v Commonwealth of Australia [2013] FCA 189 at [36] per Mansfield J). 44 The application for disqualification was refused on 27 May 2020 and, upon reconsideration and after hearing further oral submissions from Dr Chandrasekaran on 4 June 2020 and subsequent written submissions, the conclusion previously expressed is adhered to. A reasonably informed by-stander, it is respectfully considered, would form the view that she has been given every opportunity to formulate and reformulate her case in a balanced and impartial manner. If anything, with respect, the informed by-stander would be more inclined to believe that it is the Respondent that has been treated in a less than fair manner.