Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Application for recusal - Membership of Legal Profession Complaints Committee and Legal Practice Board - Whether there is a reasonable apprehension of bias

Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337

Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260

Neil v Legal Profession Complaints Committee [2017] WASCA 109

Neil v Legal Profession Complaints Committee [No 2] [2012] WASCA 150

Smits v Roach (2006) 227 CLR 423

(This judgment was delivered extemporaneously on 18 August 2017 and has been edited from the court's record of the decision.)

1 These reasons concern three appeals instituted by the appellant against decisions of the State Administrative Tribunal in proceedings under the Legal Profession Act 2008 (WA). In those proceedings, the Tribunal found that the appellant had engaged in professional misconduct, and imposed an employment condition on his practising certificate. The background to the appeals is dealt with in the previous decision of this court refusing a stay of the order imposing the employment condition.[1]

2 On 18 August 2017, several questions in the appeals raised by Registrar's Notices to Attend or applications in the appeals were listed for the court's determination. At the commencement of that hearing, the appellant made an oral application that I recuse myself from the further hearing of the appeals. What follows are my reasons for refusing to do so.

3 The appellant has applied for me to recuse myself on the basis that I was formerly a member of the Legal Profession Complaints Committee and the Legal Practice Board. My membership of the Board and Committee ceased when I was appointed to this court in October 2014. The Committee's application in this matter was filed in the Tribunal on 17 November 2015, over a year after I ceased to be a member of the Committee and the Board. I have no memory of dealing, and there is no basis for concluding that I had any dealing, with the complaint in this matter.

4 The evidence in the Tribunal indicates that the complaint which was the subject of the Tribunal proceedings was made to the Board in January 2014. At that stage I was a member of the Committee. When I was a member of the Committee the matters to be the subject of proceedings in the Tribunal were considered first by one of two panels of the Committee. I sat on one of those panels. The process was that, after a complaint had been investigated by the Law Complaints Officer or the Board's staff, the panel members would be provided with a report by the Law Complaints Officer or staff member with relevant materials attached. The panel would then make a decision to refer the matter to the Tribunal or take some other action provided for in the Act. As a member of the Committee, I was not involved in the investigation of complaints before that stage.

5 Given that the Committee's application to the Tribunal was filed on 17 November 2015, the fair inference is that the relevant panel's decision was made well after I was appointed to the court in October 2014. In the ordinary course, well over a year would not elapse between the panel's decision to refer the matter to the Tribunal (after the matter had already been investigated) and the filing of the application in the Tribunal.

6 The appellant also refers to the Committee dealing with other matters concerning him in the past. I have no recollection of dealing with any of those prior matters. There is no suggestion that those matters were in any way concerned with the complaint by the appellant's client in the current matter.

7 The test to be applied in determining whether a judge should recuse himself or herself by reason of reasonable apprehension of bias is well established. A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[2]

8 In my view, nothing in the fact that I was previously a member of the Board and Committee might lead a fair minded lay observer to apprehend that I might not bring an impartial mind to the resolution of the appellant's grounds of appeal. My association with those bodies ceased on my appointment to the court. There is no reason for me to have any interest in whether the disciplinary applications subsequently instituted by the Committee should succeed or fail. There is no logical connection between my past association with the Committee and Board and any feared deviation from the course of deciding the appeals on their legal and factual merits.

9 A similar objection to a judge who was a former member of the Committee sitting in proceedings involving the Committee has been raised and rejected in other cases, including a case involving the present appellant.[3]

10 The appellant also relies on the outcome of the stay application with which I dealt, a decision in which he evidently disagrees, as providing a relevant logical connection. In my view, a fair minded lay observer could not apprehend bias in the relevant sense from the result of the stay application, reflecting the court's expressed view of the merits of that application.

11 Mr Neil also refers to the fact that allegations are made by him against staff assisting the Committee. I have no contact with the staff members against whom allegations are made, other than past professional contact involved in the operation of the Committee. Again, it does not seem to me that a fair minded lay observer could apprehend bias in any relevant sense from the fact of those allegations being made.

12 Therefore, for reasons I have given, I refuse the application that I recuse myself from the further hearing of these appeals.

[1] Neil v Legal Profession Complaints Committee [2017] WASCA 109.

[2] See Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach (2006) 227 CLR 423 [53] - [60].

[3] See Neil v Legal Profession Complaints Committee [No 2] [2012] WASCA 150 [4], [9] and [13] (a case in which special leave was refused at [2013] HCASL 189 [6]) and cases there cited, as well as Lashansky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260 [10] - [15], [70] and [74].