Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Ors

JUDGMENT OF : Sheller JA at 1; Giles JA at 2; Ipp JA at 36 DECISION : (1) Order that the Government and Related Employees Appeal Tribunal be prohibited from further hearing appeal 254 of 2003 between David Richard Ellam and the Commissioner of Corrective Services with Geoffrey Hopkins as a member; (2) Order that the third opponent pay the claimant's costs; (3) Reserve liberty to the third opponent to apply for the grant of an indemnity certificate pursuant to s 6(1) of the Suitors Fund Act 1951; (4) Direct that any such application be made by written submissions filed and served within seven days, any submissions from the claimant or notification that the claimant does not wish to put submissions within a further three days.

CATCHWORDS : Prohibition against Tribunal - reasonable apprehension of bias - Tribunal hearing disciplinary appeal against dismissal by Department - Chairperson's term of office to expire - appointment of replacement by application and selection process - Chairperson asks Department's representative sitting with him on the appeal about a reference from the Department - Department declines - application to Chairman to disqualify himself - application declined - HELD: reasonable apprehension of bias - order prohibiting Chairman's further participation in the hearing. D Aussie Airlines Pty Ltd v Australian Airline Pty Ltd (1996) 135 ALR 753; Barton v Walker (1979) 2 NSWLR 740 Ebner v Official Trustee (2000) 205 CLR 337; ex Parte Parsons (1952) 69 WN (NSW) 380; Livesey v New South Wales Bar Association (1983) 151 CLR 288; CASES CITED : Rajski v Wood (1989) 18 NSWLR 512; Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272; Re Finance Sector Union of Australia; ex parte Illaton Pty Ltd (1992) 66 ALJR 583; Re JLR; ex parte CJL (1986) CLR 342; Re Polites; ex parte Hoyts Corportion Pty Ltd (1991) 173 CLR 78; Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982. PARTIES : David Richard Ellam - Third Opponent FILE NUMBER(S) : CA 40686/04 COUNSEL : P Menzies QC & R J Bromwich - Claimant S Crawshaw SC & M Gibian - Third Opponent SOLICITORS : I V Knight, Crown Solicitor - Claimant Jones Staff & Co - Third Opponent

LOWER COURT Government and Related Employees Appeals Tribunal JURISDICTION : LOWER COURT GREAT 254/03 FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40686/04 GREAT 254/03

SHELLER JA GILES JA IPP JA

Tuesday 31 August 2004 COMMISSIONER OF CORRECTIVE SERVICES v GOVERNMENT AND RELATED EMPLOYEES APPEAL TRIBUNAL & ANOR Judgment 1 SHELLER JA: I agree with Giles JA. 2 GILES JA: Mr David Ellam was employed as an officer in the Department of Corrective Services ("the Department"). In July 2003 he was charged with breaches of discipline in that he was negligent in the performance of his duties, and on 30 September 2003 he was dismissed from his employment by reason of the breaches of discipline. Pursuant to s 24 of the Government and Related Employees Appeal Tribunal Act 1980 ("the Act"), on 10 October 2003 he appealed to the Government and Related Employees Appeal Tribunal ("the Tribunal") against the decision to dismiss him, claiming an order that he be reinstated. 3 In a formal sitting in accordance with ss 36 and 38 of the Act, the hearing of the appeal was undertaken by the Tribunal constituted by Mr Geoffrey Hopkins as Chairperson and Ms Kim Blinkhorn and Mr Pat Armstrong as the employer's and employee's representatives respectively. Ms Blinkhorn was an employee of the Department, holding the position of Assistant Director, Inmate Classification and Case Management, and had been a Departmental representative on the Tribunal for about four years. In accordance with s 14 of the Act, she must have been selected for the hearing by the Department from a panel of persons nominated by the Department. Mr Armstrong was also an employee of the Department, and in accordance with s 15 of the Act must have been selected by the Public Service Association of New South Wales ("the PSA"), an association of employees of which Mr Ellam was a member, from a panel of persons nominated by the PSA. Mr Ellam and the Commissioner were represented by solicitors and counsel. 4 By agreement between the parties, and with the concurrence of the Tribunal, there was first addressed whether Mr Ellam had committed the breaches of discipline alleged against him. Mr Ellam had been Officer in Charge of the Acute Crisis Management Unit at Cessnock Correctional Centre at a time when an inmate of the Centre was seriously assaulted and beaten by another inmate. Two breaches of discipline were particularised. The first was that Mr Ellam had failed to perform "key accountabilities" of his position in accordance with the Management Plan of the Acute Crisis Management Unit, in that he had failed to ensure that the daily multi-disciplinary case meeting took place. The second was that he had failed to act on information recorded in the Daily Log showing a need to place the attacking inmate in a single accommodation cell. After a hearing occupying fifteen days, in a decision published on 7 July 2004 the Tribunal decided by majority that Mr Ellam had committed a breach of discipline in the respect first particularised and decided that he had not committed a breach of discipline in the respect secondly particularised. 5 The appeal was listed for further hearing on 26 August 2004 for evidence and submissions on "penalty", meaning what decision should be made allowing or disallowing the appeal or otherwise with respect to it pursuant to s 48(2) of the Act. The decision could leave the dismissal on foot, could require reinstatement, or could involve an intermediate outcome such as a pecuniary impost or reduction in rank, position or pay. The further hearing and its outcome was of obvious significance to the parties. 6 This was an application by the Commissioner for an order in the nature of prohibition that the Tribunal be restrained from further hearing the appeal with Mr Hopkins as a member. The ground of the application was reasonable apprehension of bias in the further participation of Mr Hopkins in the decision of the appeal. The Tribunal submitted save as to costs. Mr Ellam opposed the application.

The circumstances of apprehension of bias 7 A Chairperson is appointed by the Governor pursuant to s 10(1) of the Act. By s 11, an appointment is for a term not exceeding seven years and the Chairperson is eligible, if otherwise qualified, for reappointment as a Chairperson. By para 4 of Schedule 1, a non-judicial Chairperson must devote the whole of his or her time to the duties of the office. 8 Mr Hopkins was a fulltime Chairperson. His term was to expire on 9 September 2004. 9 On or about 28 July 2004 Mr Hopkins was informed that his position as Chairperson would be advertised and that he could apply for the position. In his reasons on the disqualification application later mentioned ("the reasons") he said - "I inferred that the selection committee may or may not select me. I was provided with no other reasons as to why I was not to be reappointed without a selection process given that the four part-time Chairpersons of the Tribunal were to be appointed without a selection process." 10 The appeal was listed before Mr Hopkins on interlocutory matters on 28 July 2004. He informed the parties that his term of appointment expired on 9 September 2004, and indicated that it was "vital that the evidence and submissions be completed by 26 August 2004 so that I may write a decision". In the reasons he said that he was mindful "that the possibilities are that I will not be reappointed, I may be reappointed or that any decision about reappointment may not be completed by 9 September 2004". The possibilities would have been evident to the parties and any observer. 11 On 29 July 2004 Mr Hopkins and Ms Blinkhorn, together with a member described only as the PSA representative, sat on a promotions appeal. A promotions appeal pursuant to s 20 of the Act is distinct from a disciplinary appeal pursuant to s 24, in the different natures indicated by the labels and amongst other respects in that the Chairperson need not be legally qualified (s 13(2)) and the sitting is informal unless there is good and sufficient reason to the contrary (s 35). At the conclusion of their deliberations Mr Hopkins asked Ms Blinkhorn and the PSA representative if he could speak to them separately about a "personal matter". 12 The PSA representative left. Mr Hopkins said to Ms Blinkhorn, "I have just been advised yesterday that I will not be reappointed to my position here. I am really outraged by this decision and I intend to seek an appointment with the Minister". He appeared to Ms Blinkhorn to be upset when saying this. Mr Hopkins said, "Can you contact an appropriate person in the Department who could give me a reference?" He said, "I don't think a reference from you will carry any weight given that you are a panel member." 13 I infer that the Minister was the Minister for Industrial Relations, the Minister within whose responsibility lay appointment of the Senior Chairperson, also for a term not exceeding seven years with eligibility for reappointment (ss 7, 8), and of Chairpersons. 14 Ms Blinkhorn communicated with an officer of the Department concerned with probity matters. Some time during the week commencing 2 August 2004 she retrieved a voice mail message from Mr Hopkins asking whether she had had an opportunity to speak with somebody in the Department and that she return the call. She thereafter spoke to Mr Hopkins, said that her advice from a Departmental officer was that a reference from the Department "may be seen as inappropriate" and that "[t]here could also be a potential conflict of interest given you are making decisions in respect of Departmental matters". Mr Hopkins replied, "Yes, I can see how that can be perceived and I accept that it may not be appropriate". 15 In the reasons Mr Hopkins said that he spoke to other members of the Tribunal about a reference. The members were described by Mr Hopkins as members from each of the New South Wales Police, the Police Association of New South Wales and the Public Service Association, and must have been employer or employee representatives. He described these organisations as "stakeholders", apparently meaning in the Tribunal. 16 According to Ms Blinkhorn, after again sitting with Mr Hopkins on a promotions appeal on 10 August 2004 they parted with Mr Hopkins saying "I will send you an e-mail about a reference from you". She did not receive such an e-mail. In the reasons Mr Hopkins said, referring to what must have been the same occasion, that he asked Ms Blinkhorn whether or not she would provide him with a reference in her capacity as a Tribunal member, and that Ms Blinkhorn did not indicate whether or not she would do that. He said that he did not discuss the matter with Ms Blinkhorn again. 17 Mr Hopkins' position as Chairperson was advertised in the Sydney Morning Herald on 14 August 2004. According to the advertisement, applications for the position closed on 27 August 2004. The advertisement was not in evidence, and whether or not it called for references was not disclosed. It may readily enough be accepted that, whether or not called for, references could assist an application for the position. 18 Mr Hopkins sat as Chairperson on promotions appeals "involving the Department of Corrective Services" on 29 July and 10 and 17 August 2004. No more was disclosed as to these appeals. In none of these appeals did the Commissioner request that Mr Hopkins disqualify himself.

The disqualification application 19 On 12 August 2004 the Commissioner requested that Mr Hopkins disqualify himself from further hearing of Mr Ellam's appeal. Counsel for the Commissioner outlined the requests made to Ms Blinkhorn and made submissions. He said that the Department was put in an invidious situation, in that "[i]f it did supply a reference whilst the matter was part heard it would be improper and to refuse the request whilst the matter is part-heard leads to a reasonable apprehension that the Department will suffer some bias in its current part heard matter before you". Expressing the understanding that a similar request had been made to the PSA representative, he submitted that Mr Hopkins should not have approached either the Department or the PSA for a reference whilst a matter was part heard. Counsel for Mr Ellam also made submissions, to the effect that there was nothing improper in the requests made by Mr Hopkins and no occasion for him to disqualify himself. 20 On 18 August 2004 Mr Hopkins gave reasons in which he said that he did not accept "that an apprehension of bias on my part had been made out" and declined to disqualify himself. In the reasons Mr Hopkins explained that he was concerned to provide "the best evidence in my application for reappointment to this Tribunal", and that he considered that the best evidence would be evidence from the "stakeholder" organisations earlier mentioned, as organisations "involved with GREAT in respect of appeals", by way of a reference from persons from each of the organisations "attesting to the quality of work that I have undertaken". He envisaged sending the references, if obtained, to the selection committee and to the Minister. The reasons included - "In my thinking I also considered that other applicants for the position of a GREAT Chairperson will be able to present evidence as to their standard [of?] performance as legal practitioners and/or Tribunal members up to the date of a selection interview. I did not think it reasonable that I could not put my best case forward." 21 The reasons also included - "A Chairperson of GREAT is a statutory appointee. The person must apply to obtain the position. The person will either succeed or fail in any such application. The moderately informed bystander, in my conclusion, would think it absurd that a person who, believing that he is fit to do the job and would like to continue in his employment, should not put his best case forward when competing with other persons who are going to try and obtain that job. The moderate bystander would think 'why should someone not have a right to put their best case forward, if that can be done in a manner which does not interfere with his duty to his employer."

Discussion 22 In determining whether a decision-maker is disqualified by reason of an appearance of bias the question is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; Ebner v Official Trustee (2000) 205 CLR 337 at [6]; Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982 at [27]. 23 The nature of the tribunal and the proceedings must, however, be taken into account. In Re Finance Sector Union of Australia; ex parte Illaton Pty Ltd (1992) 66 ALJR 583 at 583 it was said that "the precise practical requirements of [the Livesey] principle vary from case to case. They will be influenced by the nature, function and composition of the particular tribunal". Speaking of the Australian Industrial Relations Commission, it was said at 583-4 - "The nature of industrial relations in this country makes it inevitable, that in a particular industry, the leading employer and employee organisations, and their officers, will be frequently involved in dispute with one another. Obviously the functioning of the Commission requires that its members participate in the determination of matters in circumstances where they have a familiarity with the industry in which the particular dispute arises, with the context of that dispute and, inevitably, with facts relevant to the dispute and with one or more of the parties to the dispute. In that regard, it has long been recognised that, in most cases, that familiarity is an advantage rather than a disqualifying factor." 24 Again, in Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 it was said at 86-7 that - " … the test in Livesey cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal's power's exercised. Qualification for membership cannot disqualify a member from sitting." 25 And again, the system of judicial appointment from senior practitioners means that there will often have been past professional association between a judge and counsel or solicitors appearing in proceedings, or even a party. Mere past association will generally not be held to give rise to a reasonable apprehension of bias, although it is a question of degree: see Re Polites; ex parte Hoyts Corporation Pty Ltd at 91 and other cases collected in Aussie Airlines Pty Ltd v Australian Airline Pty Ltd (1996) 135 ALR 753 at 759-61. In Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272 at 276 it was said that public knowledge and acceptance of such past professional association was "built into the legal system". 26 Being appointed for a fixed term and (generally) eligible for reappointment, a Chairperson will not uncommonly wish to obtain reappointment. The position will provide a satisfying occupation to its holder and valuable remuneration. The lay observer will perceive a Chairperson's interest in obtaining reappointment. 27 A Chairperson's appointment by the Governor is an appointment on the advice of the Minister, and in reality an appointment by the executive government. The Tribunal hears appeals largely, as indicated by its full title, by government employees, and a Chairperson is constantly deciding appeals in which one party is a governmental entity. To the extent to which the fair-minded lay observer might reasonably apprehend that a Chairperson might not be impartial and unprejudiced because the decisions affect the government which holds the power of reappointment, in some cases no doubt the Minister within whose responsibility lies the reappointment, knowledge and acceptance of that situation is built into the Act. (As shown by Mr Hopkins' reference to the appointment of part-time members, appointment may be without a selection process.) So also is there built in the participation in the decision of appeals by members nominated by the employer and the employee respectively. 28 But there is much more in the present case. The observer knows more than that Mr Hopkins is deciding appeals to which the Department, and other governmental entities, are parties. The observer knows that Mr Hopkins asked a favour of the Department, by providing a reference. Mr Hopkins did so by an approach to Ms Blinkhorn, but his objective was the Department. He put himself in an impossible position. Whether the request was left outstanding, whether the Department provided a reference, or whether the Department declined to provide a reference, in my opinion the fair-minded and informed observer might reasonably apprehend that his mind might be influenced. It might be influenced in favour of the Department, in hope of or in thanks for the reference; or it might be influenced against the Department because, apparently unlike the other so-called stakeholders, it was unwilling to provide a reference. 29 Nothing in a Chairperson's status as an appointee for a fixed term eligible for reappointment builds in acceptance of a Chairperson so conducting himself or herself, in aid of reappointment, as to become beholden to a party to a current appeal or disappointed by that party's response. The representative members being representative, it is all the more important that the Chairperson be and appear to be impartial and unprejudiced. The reappointment was plainly a matter of great importance to Mr Hopkins. Notwithstanding the caution in relation to disqualification identified in re JRL; ex parte CJL (1986) 161 CLR 342 at 352 and later decisions, I consider that reasonable apprehension of bias in the further participation of Mr Hopkins in the appeal has been established. 30 I respectfully do not agree with Mr Hopkins' view that he should be able to put his best case forward by obtaining a reference from the Department. Where there might be a reasonable apprehension that, from gratitude or disappointment as a result of requesting a reference, he might be partial and influenced in his decision in appeals to which the Department is a party, nothing in the nature of the Tribunal and its proceedings requires that this be accepted as built into its system of dispute resolution. In particular, the legislature's adoption of appointment for a term with eligibility for reappointment does not do so. The nature of the appointment gives the occasion for the vice in Mr Hopkins' conduct. It does not justify or excuse it. 31 I do not think that, as was submitted by Mr Ellam, the Commissioner waived any objection to Mr Hopkins sitting in this appeal because he did not object to Mr Hopkins sitting in the appeals of 29 July and 10 and 17 August 2004, or that the absence of requests that Mr Hopkins disqualify himself in those appeals indicates that his conduct was an acceptable aspect of the system within which the Tribunal operates. Save that they were promotions appeals, not disciplinary appeals, nothing is known of the other appeals. The Commissioner may not have been an active party, his participating officers may have been unaware of the relevant communications with Ms Blinkhorn, or for other reasons the absence of requests may be explicable. 32 Mr Ellam submitted that the Commissioner's application to this Court was premature and that, in the exercise of this Court's discretion, the Tribunal should be left to make its decision: he said that a decision in favour of the Commissioner would mean that apprehension of bias would "lose any weight". He understandably drew attention to the stage which the appeal had reached and the hardship if the hearing thus far is put at nought. It was common ground that the Act did not provide a means for substitution of another Chairperson for Mr Hopkins, and that unless the parties agreed otherwise the hearing would have to start afresh. 33 I do not think that we should condone a hearing infected by reasonable apprehension of bias. This application was heard on 24 August 2004. An interlocutory order was made whereby the Tribunal's hearing of 26 August 2004 could take place but the Tribunal could not deliver its decision or make any order determining the appeal. In my opinion, an order should be made prohibiting further continuance of the appeal with Mr Hopkins as Chairperson. Whatever the decision on "penalty" be, it must be a flawed decision because of the apprehension of bias. I am of this view notwithstanding the regrettable and undesirable prospect of a fresh start to the hearing. 34 Mr Ellam unsuccessfully opposed this application, and should pay the Commissioner's costs. He asked that, if relief was given, an indemnity certificate be granted pursuant to s 6(1) of the Suitors Fund Act 1951, submitting that the application was an appeal against the decision of a court within that provision. It may have been an appeal (ex parte Parsons (1952) 69 WN (NSW) 380) and the Tribunal may be a court, but I question whether Mr Hopkins' refusal to disqualify himself was the decision of the court: see Barton v Walker (1979) 2 NSWLR 740; Rajski v Wood (1989) 18 NSWLR 512. The submission was not developed, and Mr Ellam should have the opportunity to support his request more fully. If it is maintained, it can be determined on written submissions. 35 I propose the orders -

1. Order that the Government and Related Employees Appeal Tribunal be prohibited from further hearing appeal 254 of 2003 between David Richard Ellam and the Commissioner of Corrective Services with Geoffrey Hopkins as a member;

2. Order that the third opponent pay the claimant's costs;

3. Reserve liberty to the third opponent to apply for the grant of an indemnity certificate pursuant to s 6(1) of the Suitors Fund Act 1951;

4. Direct that any such application be made by written submissions filed and served within seven days, any submissions from the claimant or notification that the claimant does not wish to put submissions within a further three days. 36 IPP JA: I agree with Giles JA and would add the following comments. 37 The present tribunal system involves the appointment of tribunal members by contract, for a fixed period, and allows for their possible re-appointment for a further period, thereafter. Inherent in this system is a reasonable apprehension that a tribunal member may wish to please the government by making decisions of which it may approve (so as to secure re-appointment). The system also gives rise to the reasonable apprehension that a tribunal member might be grateful for being re-appointed, or disappointed or angry for not, and that these feelings might influence the member's decision. To this extent there is an appearance of lack of impartiality that is "built in" to the system. 38 These problems with the very nature of the system underline the care which tribunal members should take to do nothing that gives further cause for apprehension of bias. 39 The system did not require Mr Hopkins to seek a reference from the Department while the appeal was before him. Mr Hopkins' conduct in doing so might lead a fair-minded lay observer to apprehend, reasonably, that he might not decide the appeal before him in an impartial way. Such an apprehension would arise independently and separately from the system itself. The system did not excuse or justify Mr Hopkins' conduct. **********

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