The Applicant has made application that I disqualify myself from further dealing with this proceeding (the Application).
[2]
Background
The substantive proceedings were set down for final hearing on 23 February 2022.
The proceedings relate to the Applicant's application to the Tribunal pursuant to the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) for an administrative review of certain conduct of the Respondent which had been the subject of an Applicant's request for an internal review by the Respondent.
On 23 February 2022, I heard the parties opening oral submissions, dealt with the tender of documentary evidence, and heard part of the Applicant's cross-examination of the Respondent's only witness.
The hearing remains part-heard and was adjourned following the Applicant's failure to appear after the luncheon adjournment.
Given the non-appearance of the Applicant, I indicated to the Respondent that I proposed to adjourn the proceedings and provide the Applicant with two options being:
1. that the parties have an opportunity to file and serve any further written submissions and the application be decided based on the written evidence and submissions as well as the oral evidence and submissions made at the part-heard hearing; or
2. that the matter be set down for a further day.
The Respondent consented to this course and available dates where taken.
By way of correspondence, the Tribunal gave the Applicant the two alternatives described above. By way of subsequent correspondence, the Applicant indicated that he was available for a telephone hearing on certain available dates including 3 May 2022. The matter was set down to finalise the hearing. Since that time, with the consent of the parties, that hearing date has been vacated and the substantive proceeding will be determined without a further oral hearing.
By application dated 6 March 2022, the Applicant sought that I recuse myself in respect of the substantive proceedings on the following basis:
"Respectfully, I perceive that several procedural fairness issues have arisen in the hearing. I have a lack of confidence that Senior Member Little adequately understands the complexities of my case."
The parties were ordered to file and serve written submissions and any evidence in respect of the Application with such submissions including any objection to the Application being decided on the papers and the basis of that objection.
The Respondent filed and served written submissions consistent with that timetable. By way of those submissions, the Respondent opposes the Application on the basis that the Applicant has failed to identify any matter that would lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the questions before me. This comprises the documents relied upon by the Respondent in respect of this Application.
The Applicant has failed to file and serve any written submissions or evidence in respect of his application and has communicated to the Tribunal that he does not intend to do so. As such the basis of the application is limited to that which is extracted at paragraph [9], above.
No objection was taken by either party to deciding the Application on the papers.
My reasons for declining the request that I recuse myself are as follows.
[3]
Recusal applications
A decision maker has an obligation to hear and determine a matter unless a reasonable apprehension of bias can be established: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [19]; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [35]-[36]; see also Charisteas v Charisteas [2021] HCA 29. The general test for apprehended bias, whether in a court or in a tribunal, is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy at [11].
The two-step process involved was explained by the High Court in Ebner v Official Trustee in Bankruptcy at [8]:
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.
For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker might not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67], per Gummow ACJ, Hayne, Crennan and Bell JJ.
The Applicant contends that there is a reasonable apprehension of bias on two bases:
1. due to alleged procedural fairness; and
2. the Applicant's opinion that I do not adequately understand the complexities of his application.
I reject each of the Applicant's contentions for the reasons below.
[4]
Consideration
In respect of the Applicant's contention related to procedural fairness, the Applicant has not tendered any evidence nor made any further submission other than what is provided in the Application. As such, the nature and character of the alleged procedural issues is unclear as is how any such alleged procedural issues gives rise to an apprehension of bias.
I reject, as a matter of fact, that the procedure adopted by the Tribunal is respect of the hearing of this matter has been unfair to either party. In respect of that part-heard hearing:
1. both parties were given an opportunity to open by way of an oral address;
2. all documentation sought to be relied upon by the parties was accepted by the Tribunal; and
3. the Applicant's request to cross-examine the Respondent's witness was facilitated.
The only procedural controversy which arose between the parties was in respect of the objections taken by the Respondent, from time to time, to the questions posed by the Applicant during the Applicant's cross-examination of the Respondent's witness. However, the act of making a ruling on an objection, in and of itself, could not be construed as excessive intervention or denial of procedural fairness to give rise to an apprehension of bias. Rather, it was a function that I was compelled to perform given my role as the Senior Tribunal Member hearing the matter.
Nor would the Respondent's success in respect of certain objections provide a circumstance that would create an apprehension of bias in a fair-minded observer. Consistent with the decision of the Full Court of the Federal Court (Kenny, Bromberg and Anderson JJ) said in Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v CQZ15 [2021] FCAFC 24 at [91], a fair-minded observer would understand:
1. the legal framework of the Tribunal and its power of administrative review;
2. the Tribunal's jurisdiction in respect of that administrative review; and
3. the impugned conduct or controversy as between the parties.
As such, a fair-minded observer would understand that the rulings on objections were open to the Tribunal given that the Applicant's approach during cross-examination was, at times, inconsistent with s 55(1) of the PPIP Act. Section 55(1) provides for a person who has made an application for internal review under s 53 and is not satisfied with the findings, to apply to the Tribunal for an administrative review of the conduct complained of in the s 53 application. As such, ventilating matters and making accusations, either by way of cross-examination or otherwise, that fall outside of that ambit was unhelpful to the Tribunal: See for example KT v Sydney Local Health Network [2011] NSWADT 171 at [15]. Conduct outside of the conduct complained of, such as allegations of general wrongdoing, professional negligence, or professional misconduct as against the witness or allegations of wider systemic issues involving the Respondent, were not before the Tribunal. Questions posed to the witness attempting to establish as such were objectionable because at best they were lacking in probative value or, at worst were unfair to the witness.
Otherwise, interventions during the hearing on the Tribunal's own accord were few and varied in substance and consistent with notions of procedural fairness. They included, inter alia, assisting the Applicant, with the Applicant's consent, in asking questions in a form acceptable to the Tribunal; requesting that the Respondent's witness refrain from critiquing the quality of the questions posed by the Applicant; and to explain the jurisdiction of the Tribunal in the context of the Applicant's application.
The Tribunal's conduct, as a matter of procedure was consistent with the overriding purpose as it facilitated the just and expeditious resolution of the real issues at a minimum of expense in the context of balancing the Applicant's right to be heard with the need to afford fairness to the Respondent and to its witness.
The Applicant's other contention is that in his opinion, I do not adequately understand the complexities of his application.
The Applicant's opinion of my understanding, without more, is not a "matter" for the purposes of stage one of the reasonable apprehension of bias test and does not provide a basis for a reasonable apprehension of bias in a fair-minded observer, in any case.
The fact that a decision maker makes a decision adverse to a party (in respect of an objection or otherwise), is not sufficient to show that the decision maker lacks understanding, is biased, is abusing the decision maker's power or that the decision maker could not fairly and impartially determine the matter.
Overall, I fail to see how the decisions that I have made in this matter to date in any way indicate an abuse of my power or that a reasonably fair-minded lay observer with a knowledge of the material and facts in the proceedings, would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the adjudication of the Applicant's case. That is, that the person would believe that I might not be open to persuasion.
In conclusion, the issues raised by the Applicant do not provide a ground for disqualification. For the reasons I have given I decline to disqualify myself. In my opinion, there is no proper basis for disqualification and given the amount of time and resources that have already gone into attempting to resolve this matter it would be contrary to the public interest to do so. I intend to proceed to hear and determine the application consistent with the orders made on 13 April 2022.
However, the Applicant should be given sufficient time to consider his position and whether he wishes to pursue this issue elsewhere. The time as between this decision and the timetable allowing for further written submissions has been set consistent with this consideration.
[5]
Costs
The Respondent makes application for its costs.
Section 60 of the Civil and Administrative Tribunal Act 2013 provides that each party in the Tribunal shall pay the party's own costs. However, the Tribunal may award costs only after it is satisfied that there are "special circumstances" warranting an award of costs.
In CEU v University of Technology Sydney [2017] NSWCATAD 280, the Tribunal stated:
"As the section makes plain, costs in the Tribunal do not follow the event. To justify an order for costs, an applicant must first satisfy the Tribunal that there are 'special circumstances' warranting it. To establish special circumstances, 'it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional': Gaynor v Burns [2015] NSWCATAP 150 (overturned on different grounds in Burns v Corbett; Gaynor v Burns [2017] NSWA 3, but remaining a useful guide to the section); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]."
The Respondent fails to sufficiently articulate the facts upon which it relies to contend that the circumstances are "special" for the purposes of section 60 (nor the facts to justify an award of $990). The submission of the Respondent in support of this application is limited to:
"The [Respondent'] submits that there is no basis for the application, and it should be refused. The Council seeks its costs of $990 for preparing these submissions"
I am not satisfied on the basis of this submission, or otherwise, that the circumstances are such so as to correctly be satisfied as "special circumstances" so as to enliven the Tribunal's jurisdiction to award costs. I reject the Respondent's application.
[6]
Decision
1. The Applicant's application that I disqualify myself from further dealing with his application is refused.
2. In respect of the part-heard final hearing of the substantive proceedings, within 28 days of this decision, the parties to file and serve any additional written submissions upon which that party wishes to rely.
[7]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 April 2022