Victorian Civil and Administrative Tribunal|2005-02-17|Before: Brennan J, Deane J, Stuart Morris J

The application that I disqualify myself from the hearing of this proceeding is refused.

1 The background to this matter is set out in my reasons for orders made on 22 September 2004 in VCAT Proceeding V6/2004. On that day I found the respondent, Dr Varnavides, guilty of contempt of the tribunal by disobeying an order of the tribunal, made on 12 August 2004, that he not practise dentistry in Victoria until 16 January 2006 or further order. That charge was found proved on the basis of evidence that Dr Varnavides practised dentistry on 24 August 2004.

2 The Dental Practice Board of Victoria has now initiated the current proceeding, which brings a further charge against Dr Varnavides, alleging that he was in contempt of the tribunal by disobeying the order of 12 August 2004 by practising dentistry in Victoria on occasions after 24 August 2004.

3 On 15 February 2005 I made certain directions as to the conduct of the current proceeding. On that day Mr Alger, on behalf of the respondent, was content that I give the directions, but submitted that I should disqualify myself from the hearing of the application. I indicated that I would rule on that application in writing.

4 Mr Alger submitted that there was a reasonable apprehension of bias if I was to hear the application. He submitted that this was a proper basis for the disqualification of a judge: that is, a judge should disqualify himself where, in all the circumstances, a reasonable minded observer or a party might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. Mr Alger specifically referred to a decision of Brennan J of the High Court of Australia in ; , at paragraph 12. In fact the reference in question should be to the judgment of Deane J in that case (at page 74). His Honour identified that one of the criteria which might require the disqualification of a judge is the possession of extraneous information. He continued (excluding citations of other cases) as follows:

The fourth is disqualification by extraneous information. It will commonly overlap the third (eg a case where a judge is disqualified by reason of having heard some earlier case) and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.

Mr Alger submitted that as I had recently heard and determined a similar application (Proceeding V6/2004) there was a reasonable apprehension of bias because the knowledge acquired in that case was prejudicial to the respondent yet irrelevant to the matter now before the tribunal.

5 In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 the majority of the High Court of Australia made the following useful and important statement about the issue of judicial bias:

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. [My emphasis.]

6 I am not persuaded that there is any basis - let alone a substantial basis - for concluding that I should disqualify myself from hearing and deciding the current proceeding. As Beach J observed in Kay v Legal Profession Tribunal [2000] VSC 463 judicial officers are frequently called upon to deal with the same offender on more than one occasion. In that case Beach J said:

The fact that during the course of dealing with a particular offender on one occasion the judicial officer makes a strong comment adverse to the offender is in my opinion, and without more, no warrant for suggesting that if called upon to deal with the offender on another occasion the judicial officer will not deal with him impartially or without prejudice.

Similarly, in Ewart v Lonie [1972] VicRp 32; [1972] VR 308 Lush J rejected a contention that there was a reasonable apprehension of bias on the part of the Town Planning Appeals Tribunal because it was constituted in the same manner as it had been in determining an earlier application concerning the subject land. These decisions are consistent with the approach taken by the High Court in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, even though the outcomes were different.

7 When it comes to quoting decisions of the High Court of Australia, there is always a tendency to focus upon lofty statements of principle rather than the ratio decidendi of the case. Mr Alger quoted statements of principle from the Livesey case, but I think it is better to focus upon the essential basis why the High Court, in that case, decided that a reasonable apprehension of bias existed. The High Court found that two New South Wales judges had heard the case in circumstances where they had previously heard and determined another case about the same facts, but between different parties; and, in doing so, had made factual findings that were relevant to the second case and had expressed strong views about the credibility of a witness whose evidence might be led in the second case. In this context the Court said (at page 300):

It is, however, apparent that ... a fair minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.

My decision in V6/2004 involved the same parties. It did not include any finding of fact which will be a live and significant issue in the current proceeding. Nor did I express any views about the credit of a witness in that proceeding which would be significant in the context of the current proceeding.

8 Although it is true that I am aware of the evidence which was given in relation to the contempt charge based upon the events of 24 August 2004, this knowledge, even if irrelevant to the current proceeding, is not prejudicial to impartially determining whether there has been a breach of my order of 12 August 2004 on the other occasions the subject of the current proceeding. If a judge finds that a person practised dentistry on a particular date this does not mean that the same judge is unlikely to impartially determine, on the basis of evidence presented in another proceeding, whether the person has practised dentistry on other occasions. Knowledge of the earlier act does not poison the mind so as to prevent a fair consideration of other circumstances. Disqualification on the basis of possessing extraneous information is to be confined to circumstances where the information is both irrelevant and prejudicial to the current proceeding.

9 A reasonable person would not apprehend that I would be partial in hearing and determining the current proceeding. I am not at liberty to decline to hear this case without good cause. Good cause has not been shown.

Dental Practice Board of Victoria v Varnavides (Occupational & Business) [2005] VCAT 240 (17 February 2005)

Dental Practice Board of Victoria v Varnavides

At a glance

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Decision date

Before

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Judgment (10 paragraphs)

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Cases Cited (3)

Dental Practice Board of Victoria v Varnavides (Occupational & Business) [2005] VCAT 240 (17 February 2005)