Chen v Monash University

REASONS FOR JUDGMENT 1 The appellant, Dr Qizhi Chen, requested that I recuse myself from sitting as the judge managing her appeal on the grounds of my connection with Monash University. Her application was made initially by letter dated 31 March 2015 and then orally at the case management hearing of her appeal on 9 April 2015. Her letter identified her ground for my recusal as being that: [I am] a panel member of Monash University (Attachment). As such, the case is currently virtually managed by the Respondent University, which is inappropriate. Her letter contained, as an attachment, a print of a page from the website of the Faculty of Law at Monash University, which stated that I have taught in the law faculty and that I am "a member of the Monash University Law Postgraduate Advisory Panel specialising in Commercial Law and [was] a recipient of the Monash University Distinguished Alumni Award". The course identified on the website was a course taught in 2011 called "Remedies in Commercial Disputes". Dr Chen added to her grounds for seeking my recusal at the hearing on 9 April 2015 that it was not appropriate for me to manage her appeal because it concerned discrimination law and that the details appearing on the Monash University Faculty of Law website indicated that I was a specialist in commercial law. Dr Chen was informed at the case management hearing on 9 April 2015 that I had rejected her request that I recuse myself but that I would provide these written reasons later. Dr Chen, at the hearing, also sought, but was refused, that I give her a complete statement of all or any past or current involvement by me with Monash University. 2 It is important that a "judge should not disqualify himself or herself on the basis of bias or a reasonable apprehension of bias unless substantial grounds are established": Bienstein v Bienstein (2003) 195 ALR 225, 233 [36]. A reasonable apprehension of bias exists when a fair-minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the questions that need to be decided. In applying that test it is important to bear in mind that the relevant apprehension must be that of a fair-minded lay observer with sufficient understanding of the circumstances of the case to make a reasonable judgement: Johnson v Johnson (2000) 201 CLR 488, 492 [11]. It is an objective test that requires a consideration of what is said to base the apprehension and how that may bear upon an appearance of impartiality. The test is not satisfied merely because a litigant has an apprehension arising from a relationship that the judge may have with someone connected with a proceeding, however reasonable the litigant may believe the apprehension to be. The question, therefore, is not whether there is an association with Monash, nor whether Dr Chen has an apprehension which she believes to be reasonable, but rather whether a fair-minded lay observer with sufficient understanding of the circumstances would apprehend that the association in question is such that an impartial and unprejudiced mind might not be brought to bear upon the matters to be decided in her case. Recusal on the basis of a judge's claimed association requires, therefore, a consideration of how, if at all, the association could bear upon the impartiality required of a judge. That, as explained in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345 [8], involves two steps: 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. The logical connection claimed by Dr Chen in her application between the matter and the feared deviation from the course of deciding her case on its merits is her claim that past teaching in the law faculty and membership of an advisory panel in the law faculty of Monash University meant that her case was "virtually managed by" Monash University. There is, however, no such logical connection between the management of her appeal and either past teaching in the law faculty or by membership of an advisory panel in an unrelated faculty of the university. Her claim which is the subject of the appeal was of discrimination concerning the engineering faculty and none of the matters raised by her in her appeal were in any way connected with either the law faculty or the advisory board of the law faculty. The management of Dr Chen's appeal cannot be affected in the sense of not bringing an impartial mind to resolving the issues required to be decided in the management of her appeal (see Bienstein at 231 [30]). The matters which she describes would not cause a fair-minded member of the public reasonably to apprehend that a judge who had taught at Monash University, or was a member of an advisory panel in an unrelated faculty of the university, would not bring an impartial mind to the management of her appeal in a case against that university which did not involve the law faculty or the advisory panel. The suggestion by Dr Chen that I lacked the relevant expertise in discrimination law similarly fails to make the logical connection needed to justify recusal. 3 Dr Chen's claim for disclosure of all past and continuing association was also rejected. It may be accepted, of course, that a judge should disclose associations which make it necessary or appropriate to be recused from hearing or determining a case (see S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, 369 (Kirby P)), but it is neither necessary nor desirable to itemise associations which do not reasonably bear upon whether the judge should recuse himself or herself. An application by a litigant, including an unrepresented litigant, for a judge's recusal does not impose upon the judge an obligation to itemise details of associations which do not warrant recusal. In Buzzacott v Hill (Transcript, 1 April 1999, Federal Court of Australia, 5; quoted in Dr Melissa A Perry, Disqualification of Judges: Practice and Procedure (2001) Australian Institute of Judicial Administration, 14, fn 20), O'Loughlin J said: It is not the responsibility of a judge to say to any litigant, 'Here is a list of the people for whom I acted when I was a practising lawyer' and, more, 'These are the activities of particular clients.' The system doesn't work that way. It would be bogged down if a judge had to be answerable to every litigant…for every client that he or she ever acted for. In Limbo v Little (1989) 65 NTR 19, the Full Court of the Supreme Court of the Northern Territory decided that a litigant could not question a judge or magistrate to ascertain facts which might lead to an application of disqualification on the grounds of reasonable apprehension of bias: see also Eastman v Somes (No 2) 27 ALD 525, 526 and R v Chairman of General Sessions at Hamilton; Ex parte Atterby [1959] VR 800, 802. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.