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 34 DECISION : The third opponent to be granted an indemnity certificate.

CATCHWORDS : Costs - Suitors' Fund Act 1951 - Chairperson of Tribunal refused to disqualify self for reasonable apprehension of bias - refused application for stay to allow refusal to be "taken to another place" - relief in the nature of prohibition granted against Tribunal continuing hearing with that Chairperson - GREAT a court for purposes of Act - relief was appeal for purposes of Act - whether Chairperson's refusal to disqualify himself a decision of a court for the purposes of the Act - whether Chairperson's refusal of a stay a decision of a court for the purposes of the Act - held no and yes - indemnity certificate issued. D Australian Broadcasting Commissioner v Bond (1990) 170 CLR 321; Australian National Industries Ltd v Spedley Securities Ltd (in liquidation) (1992) 26 NSWLR 411; Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497; Barton v Walker (1979) 2 NSWLR 740; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501; Bromley v Housing Commissioner of New South Wales (1985) 4 NSWLR 407; Brooks v The Upjohn Company (1998) 85 FCR 469; Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Ors [2004] NSWCA 291; CASES CITED : Director-General of Social Services v Chancey (1980) 31 ALR 571; Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45; Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48; Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491; re Oscar [2002] NSWSC 887; ex parte Parsons (1952) 69 NW (NSW) 380; Production Spray Painting & Panelbeating Pty Ltd v Newnham (1991) 27 NSWLR 644; Rajski v Wood (1989) 18 NSWLR 512; Reid v Sydney City Council (1994) 35 NSWLR 719; Southern Equities Corporation Ltd (in liquidation) v Bond (2000) 18 SASR 339. Commissioner of Corrective Services - Claimant PARTIES : Government and Related Appeals Tribunal - First Opponent (submitting) 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 Appeal 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

Wednesday 22 September 2004 COMMISSIONER OF CORRECTIVE SERVICES v GOVERNMENT AND RELATED EMPLOYEES APPEAL TRIBUNAL & ANOR (NO 2) Judgment 1 SHELLER JA: I agree with Giles JA. 2 GILES JA: These reasons address a costs question left outstanding on the substantive disposal of the proceedings, see Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Ors [2004] NSWCA 291. 3 Mr Ellam appealed to the Tribunal against the Commissioner's decision to dismiss him. The hearing of the appeal was undertaken by the Tribunal constituted by three members of whom Mr Hopkins was Chairperson. The Commissioner applied for an order in the nature of prohibition that the Tribunal be restrained from further hearing the appeal with Mr Hopkins as a member, on the ground of reasonable apprehension of bias in the further participation of Mr Hopkins in the decision of the appeal. In reasons published on 31 August 2004 it was held that reasonable apprehension of bias in the further participation of Mr Hopkins in the appeal had been established, and the order was made. 4 My reasons, with which Sheller and Ipp JJA agreed, included - "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." 5 Mr Ellam filed written submissions. The Commissioner advised that he did not wish to put submissions in response. 6 Section 6(1) of the Suitors' Fund Act 1951 ("the Act") relevantly provides - "6(1) If an appeal against the decision of a court - (a) to the Supreme Court on a question of law or fact; or (b) … succeeds, the Supreme Court may, on application, grant to the respondent to the appeal … an indemnity certificate in respect of the appeal." 7 In general terms, an indemnity certificate entitles the respondent to be paid from the Suitors' Fund amounts reimbursing costs payable and paid by the respondent to the appellant and the respondent's own costs. In Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 it was said of s 6(1) in its then form (at 494) - "The section appears in a statute the purpose of which is the relief of a party who incurs or becomes liable for costs not through his own decision or conduct but because of some error of law of the court appealed from: see Moffitt J, as he then was, in Acquilina v Dairy Farmers Co-operative Milk Co Ltd (1965) 82 WN (Pt 1) (NSW) 531 at 534. The history of the legislation, and indeed its terms, make it plain that the purpose which must be kept in mind in its interpretation and application is the relief of litigants against the costs inevitably incurred when appeal review discloses an error of law requiring correction. The object is to ensure that litigants do not, as in the past, bear the costs thereby occasioned but that these costs are spread, by way of the fund, to mitigate the hardship to litigants that would otherwise flow." 8 In 1985 s 6(1) was limited to appeal on a question of law. It now extends to a question of law or fact. The beneficial purpose remains. 9 By the definition in s 2(1) "appeal" includes "any proceeding in the nature of an appeal". Original proceedings invoking the supervisory jurisdiction of the Supreme Court by way of orders in the nature of prohibition and certiorari have been held to be appeals for the purposes of the Act, see ex parte Parsons (1952) 69 WN (NSW) 380, Production Spray Painting & Panelbeating Pty Ltd v Newnham (1991) 27 NSWLR 644 and re Oscar [2002] NSWSC 887. "Court" is not defined in the Act, but consideration of the nature and function of a number of tribunals not designated as courts in the light of the purpose of the Act has led to them being held to be courts for its purposes, see generally Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 512-4, 515-6. The Tribunal was held to be a court for the purposes of the Act in Reid v Sydney City Council (1994) 35 NSWLR 719. 10 Thus far, the requirements of s 6(1) are satisfied. But the appeal must be against "the decision of a court", that is, a decision of the Tribunal. 11 As related in the reasons of 31 August 2004, the Commissioner requested that Mr Hopkins disqualify himself from further hearing of Mr Ellam's appeal and Mr Hopkins gave reasons in which he declined to do so. There was a decision of Mr Hopkins in the ordinary sense of that word: I will assume that it was a decision for the purposes of the Act. Any appeal against the decision was on a question of law or fact, those words appearing to cover the field. Mr Ellam's primary submission was that the Commissioner's application was an appeal against the decision of the Tribunal because an appeal against Mr Hopkins' refusal to disqualify himself. 12 In Barton v Walker (1979) 2 NSWLR 740 it was held that a motion to a judge to disqualify himself is not cognisable, that disqualification was adequately dealt with by an informal practice whereby the individual judge determined his own disqualification, and that there was no order by the judge from which an appeal could be brought. Samuels JA, with whom Reynolds and Glass JJA agreed, said (at 749-50) - "It is, however, to my mind, a matter of real difficulty to conceive of an order directed by the judge to the judge forbidding himself to hear the case; at least in the absence of statutory regulation. Moreover, there would appear to be no way of enforcing such an order, since committal or sequestration of property (Pt. 42, r. 6 (2) (a) and (b)) can hardly be regarded as appropriate remedies to be enforced against a judge for disobedience of his own order. It is no answer to this problem to assert that, upon a motion of the kind in contemplation, other ancillary orders of a more regular kind might be sought and made (e.g. for relisting before a registrar) about which the same question of enforcement would not, or might not, arise. The fundamental conceptual difficulty, granted the possibility of the judge changing his mind, remains unresolved. The further difficulty encountered is that of the judge acting as judge in his own cause. How does the judge deal with assertions of fact which he knows to be incorrect? They might not be challenged by the party not moving. How can the judge himself introduce evidence, upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate? The problems are compounded when one comes to consider the case of a collegiate court. Suppose a challenge is made to one judge of the three rostered to hear the case. How is the matter to be dealt with? Does that judge hear the "motion" and make an "order" which may affect the court's business, something which he would ordinarily have no power to do? Or do his colleagues determine the application, and make an "order" which binds him, something which they would ordinarily have no power to do? Or is another division of the court to be assembled to decide the matter? In the Supreme Court of the United States, where disqualification for interest is not wholly uncommon, the decision is for the individual justice alone: Disqualification of Judges, John P. Frank (1970) 35 Law and Contemporary Problems 43, at p. 46, published by School of Law, Duke University. These considerations, in my view, clearly show that a motion to disqualify a judge of the Supreme Court is not cognizable. The present informal practice is sensible and adequate; the absence of complaint by the profession or by law reformers tends to show that it has not been abused." 13 In Rajski v Wood (1989) 18 NSWLR 512 Kirby P noted (at 517) that Barton v Walker had been applied in many cases. In Australian National Industries Ltd v Spedley Securities Ltd (in liquidation) (1992) 26 NSWLR 411 his Honour suggested (at 423) that it "may one day be necessary to review" the holding in Barton v Walker. The decision has been questioned, see Brooks v The Upjohn Company (1998) 85 FCR 469 at 480. It was not suggested in the present case that the day had come. 14 Barton v Walker was again applied in Rajski v Wood, in that case resulting in inability to seek a declaration that a judge was disqualified or an order restraining the judge from continuing to sit in the proceedings. 15 Kirby P identified (at 518) "the essential reason that lies behind the holding in Barton" - "This is that no appeal lies to this Court from the decision of the judge on this issue precisely because no order or other determination is made which is susceptible to appeal. If an order is later made which (as of right or by leave) is susceptible to appeal, the Court may, in my opinion, consider in conjunction with any such appeal (or summons for leave to appeal) an attack on the order based upon arguments as to its invalidity grounded in the actual or apprehended bias of the judge who made it."

The reasoning goes beyond appeal, however, as its application in Rajski v Wood shows. 16 Hope JA said (at 524-5) - "It is beyond argument that the relief sought in this paragraph falls within the principles laid down in Barton v Walker [1979] 2 NSWLR 740. It was there held that if a Supreme Court judge declines to disqualify himself for bias or apprehended bias, the litigant who has sought the disqualification cannot go to any other judge of the court or to the Court of Appeal simply seeking a declaration that the judge has bias or apprehended bias, or that he is or should be disqualified, nor can an appeal be brought to this Court to challenge what he has done. Further, no prerogative relief will lie against him, since he is a judge of the Supreme Court, and no relief can be granted by way of injunction to restrain him from sitting in any, or any particular proceedings. It follows that the application in the summons for the second declaration cannot be allowed to proceed. The only curial relief available to a litigant in such a case is to raise the matter as a ground in any appeal which he is otherwise entitled to bring." 17 Mr Ellam submitted that whether a judicial officer's refusal to disqualify himself constituted an order was a different question from whether the refusal constituted a decision for the purposes of the Act, and that Mr Hopkins' refusal to disqualify himself was nonetheless a decision for the purposes of the Act. The submission did not engage the reasoning in Barton v Walker. It can be said that the judicial officer has made a decision in the ordinary sense of the word, but the decision is not a decision of the court or other tribunal. It is the outcome of an informal practice, which may be material to an order later made and the subject of challenge, but only the order later made is a decision of the court or tribunal. Still less in a collegiate court or tribunal is the refusal by one of its members to disqualify himself a decision of the court or tribunal. The question for s 6(1) is not one of a decision, but of a decision of a court. 18 The order in the nature of prohibition was directed to the Tribunal, without offence to the principles in Barton v Walker. It was not necessary for the relief that there had been a decision of the Tribunal, although that does not deny that it was an appeal against a decision of the Tribunal. In my opinion, however, Mr Hopkins' refusal to disqualify himself was not a decision of the Tribunal, and thus not "the decision of a court". 19 I do not overlook s 41(3) of the Government and Related Employees Appeal Tribunal Act ("the GREAT Act"). By s 41(2) the decision of the Tribunal on any matter arising for its determination is the decision of a majority of the members of the Tribunal present and voting, save that - "(3) The decision of the Senior Chairperson or a Chairperson, as the case may be, at a sitting of the Tribunal on any question of law or procedure which may arise in the hearing of an appeal before the Tribunal shall be the decision of the Tribunal/"

Even if disqualification be a question of law or procedure within s 41(3), on the reasoning in Barton v Walker disqualification is not a matter for the decision of the Tribunal. Mr Hopkins' refusal to disqualify himself was outside the statutory singularity given to a Chairperson in relation to questions of law or procedure. 20 Mr Ellam's subsidiary submission relied on a different decision. After Mr Hopkins had refused to disqualify himself the Commissioner applied "for a stay of proceedings in this matter: that you refrain from further hearing this matter to allow [the Commissioner] to take your decision to another place". Mr Hopkins refused a stay. As it happens, he cited Rajski v Wood for inability to appeal or obtain prerogative relief and apparently reasoned that there was no basis for a stay because his decision could not be taken to another place. 21 Mr Ellam submitted that there "would be a 'decision' where a refusal of the officer of a court to disqualify himself or herself is accompanied by some other (even procedural) decision or order". Although not focussed on a decision of the Tribunal, this took up the notion that an appeal may be brought from an order made by a judge who has refused to disqualify himself on the ground that the judge should have disqualified himself. It may be the order finally disposing of the proceedings, or it may be an interlocutory, even procedural, order. The order provides the appellable decision. Appeal on this basis was recognised in the passages from Rajski v Wood earlier set out and in Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45, and is illustrated in Australian National Industries Ltd v Spedley Securities Ltd (in liquidation) (order refusing to list proceedings for hearing before another judge), Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 (order for a new trial consequent upon disqualification), Brooks v The Upjohn Company (orders fixing trial date and as to costs) and Southern Equities Corporation Ltd (in liquidation) v Bond (2000) 18 SASR 339 (order refusing to list proceedings for hearing before another judge). 22 Mr Ellam then submitted that the refusal of a stay "was a 'decision' in relation to which relief was sought in the summons and accompanying notice of motion before the Court of Appeal". When focussed on a decision of the Tribunal, what the submission meant was that the Commissioner's application was an appeal against the "decision" of the Tribunal because it was an appeal against the refusal of a stay. 23 In Director-General of Social Services v Chaney (1980) 31 ALR 571 at 590 Deane J said - "In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word 'decision' may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word 'decision' has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate (see, for example, Registrar of Workers Compensation Commission v FAI Insurance Ltd ([1977] 1 NSWLR 422] or be limited to referring only to a determination which effectively disposes of the matter in hand (see, for example, Winter v Winter [[1933] NZLR 289 at 295] and Penniel v Driffill [1980] WAR 30 at 32])." 24 Later illustrations of "decision" meaning final or operative determination are Bromley v Housing Commissioner of New South Wales (1985) 4 NSWLR 407 and Australian Broadcasting Commission v Bond (1990) 170 CLR 321. A later illustration of "decision" extending to an interlocutory determination is Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501. 25 In my opinion, in the Act the word extends to a determination such as that made by the refusal of a stay. In Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd it was said (at 494) that, as beneficial legislation, the Act "should not be narrowly construed by imposing on its language meanings which would frustrate its plain purpose, where other meanings are equally available". A narrow construction of "decision" was not taken, and it was held that it encompassed an expression of opinion short of a final or operative determination. 26 Mr Hopkins made a decision, in the ordinary sense of the word, on a matter in issue, being a determination which the GREAT Act itself regarded as a decision (see s 41(3) referring to a decision on a question of procedure). His refusal of a stay was not expressed as an order, but had that effect: it amounted to an order dismissing the application for a stay. The result was that, unless relief were granted in the exercise of the supervisory jurisdiction of this Court, the hearing of the appeal would continue notwithstanding the claim of reasonable apprehension of bias. In my opinion, conformably with the purpose of the Act the refusal of a stay was a decision within its scope. 27 The hearing had been listed to continue on 26 August 2004. In context, the application made to Mr Hopkins was really for an adjournment - as it was put, to "refrain from further hearing" the appeal while his decision was reviewed. There was no suggestion of anything else which the Tribunal might do which it should stay from doing. 28 Looked at as an application for an adjournment, Mr Hopkins' refusal of a stay was a decision of the Tribunal because he was sitting alone and exercising the Tribunal's power under s 46 of the GREAT Act - " 46 Adjournment (1) The Tribunal may from time to time adjourn the hearing of an appeal to such times, dates and places and for such reasons as it thinks fit.

(2) In the absence from a sitting of the Tribunal of one or two members of the Tribunal, the remaining member or members may exercise the Tribunal's powers under subsection (1)." 29 Looked at more widely, s 41(3) made Mr Hopkins' decision on a question of procedure arising in the hearing the decision of the Tribunal. The application was of that kind, concerning not the substance of the appeal but when it would continue. 30 On either view, the refusal of a stay was the decision of the Tribunal. 31 There was not an appeal as in the cases earlier mentioned, but their reasoning must be adapted to where there is an application for an order in the nature of prohibition or certiorari. Was the Commissioner's application an appeal (in the extended sense under the Act) against that decision? 32 As a result of the refusal of a stay, the hearing of Mr Ellam's appeal by the Tribunal would continue on 26 August 2004. The Commissioner's application for an order in the nature of prohibition was directed to preventing the continuation of the hearing. Although it was not necessary for the relief there had been a decision of the Tribunal, in fact there had been a decision of the Tribunal which the grant of the relief would negate. That being so, in my opinion the answer to the question just posed is yes, and there was an appeal against a decision of the Tribunal. The requirements of s 6(1) are fully satisfied. 33 There is no sufficient discretionary reason to decline to grant an indemnity certificate. Mr Ellam opposed disqualification and opposed the Commissioner's application in this Court, but he was entitled to do so and it was understandable that he should wish to preserve the stage which his appeal had reached. In my opinion, he should be granted an indemnity certificate, and I propose that it be so ordered. 34 IPP JA: I agree with Giles JA.

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