For the reasons discussed above, I do not accept the claim of both actual and apprehended bias against Principal Member Blake in this matter and dismiss the application for recusal.
[2]
(1) The application of the Appellant that Principal Member G Blake AM SC disqualify himself is dismissed.
[3]
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.
Parties
Applicant/Plaintiff:
FZK
Respondent/Defendant:
Australian Securities and Investments Commission [2025] NSWCATAP 196;
Legislation Cited (1)
Administrative Tribunal Act 2013
Cases Cited (17)
G BLAKE AM SC, PRINCIPAL MEMBER: These are the reasons for my order dismissing the application of the appellant that I recuse myself on the ground of actual bias (the 16 July 2025 FZK recusal application) at the commencement of the hearing of the appeal. These reasons are to be read with, and use the same abbreviations as in, the decision in the appeal: FZK v Australian Securities and Investments Commission (No 2)[2025] NSWCATAP 197 (FZK v ASIC (No 2)).
Following my reasons are the reasons of Senior Member N Kennedy dismissing the 16 July 2025 FZK recusal application.
As the Appeal Panel was constituted by two members, it was necessary for each member to consider their position; and in particular, whether they considered that the Appeal Panel could discharge its function as presently constituted: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs(2023) 279 CLR 148; [2023] HCA 15 at [30]- [35] (Kiefel CJ and Gageler J); at [94]-[105] (Gordon J); at [131]-[133] (Edelman J); at [193] (Steward J).
The background of the appeal, the decision under appeal and the issues for determination in the appeal are set out in FZK v ASIC (No 2) at [6]-[11], [18]-[19], [29].
As set out below, the evidence for the 16 July 2025 FZK recusal application included a complaint made by FZK against me which was the ground of her recusal application against me in an appeal from a decision of the Tribunal in the Administrative and Equal Opportunity Division in which an order was made prohibiting the publication or disclosure of the name of the appellant, and in respect of whom the pseudonym FZK was used. To ensure the integrity of this order, an order to the same effect was made in this appeal: FZK v ASIC (No 2) at [31].
In these reasons, I have first set out the grounds of the 16 July 2025 FZK recusal application, the evidence and submissions, and the applicable principles, before considering the grounds relied on by FZK.
The general principles applicable to a recusal application and the principles specific to a recusal application for actual bias have recently been set out by Deputy President Seiden SC DCJ in FZK v Secretary, Department of Communities and Justice[2025] NSWCATAP 120 (FZK v Secretary, DCJ) at [17]-[29]. I have used the same abbreviations in these reasons where I have referred to authorities set out in that decision.
In explaining how these principles should be applied, Deputy President Seiden observed in FZK v Secretary, DCJ at [37]:
FZK relied on the 28 October 2024 FZK Complaint in making a recusal application against me in another appeal which I dismissed, whether the ground for the application was actual bias or apprehended bias, in the context of her application for summary dismissal of the appeal: Northern Sydney Local Health District v FZK (No 2)[2024] NSWCATAP 246 (NSLHDv FZK (No 2)) at [19]-[42]. In dismissing recusal application against me so far as it was based on the ground of actual bias I applied the principles in Reid v Commercial Club (Albury) Ltd[2014] NSWCA 98 at [68]- [74]. I do not consider that there is any difference between these principles and the principles referred to in FZK v Secretary, DCJ at [17]-[29].
The appeal was allowed and the order under appeal was set aside: Northern Sydney Local Health District v FZK[2025] NSWCATAP 62.
The nature of this appeal is very different to that under consideration in the NSLHDv FZK (No 2). No issues of credit arose in the NSLHDv FZK (No 2) and they do not arise in this appeal. There is no commonality of issues. FZK did not challenge my decision in NSLHDv FZK (No 2) and I do not see any reason to depart from my findings in that decision. Adopting the words of Garling J in Gillies v State of New South Wales (No 3)[2024] NSWSC 1058 (Gillies (No 3)) at [84] (leave to appeal from which was refused: Gillies v State of New South Wales[2025] NSWCA 98), I do not accept that I am actually biased.
I do not consider that I have any preconceived ideas about the matters in issue in this appeal, or FZK, and consider myself to be open to persuasion.
The Appeal Panel considered the test for apprehended bias in Department of Communities and Justice v Zonnevylle[2020] NSWCATAP 8 at [22] - [24], where the Tribunal stated:
22. The High Court of Australia has given guidance on how to determine whether apprehended bias is established in various decisions. In Ebner v Official Trustee in Bankruptcy[2000] HCA 63; (2000) 205 CLR 337, at [6] the Court said:
The test for apprehended bias is an objective test, being "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson(2000) 201 CLR 488; [2000] HCA 48 at [11], which was affirmed in Charisteas v Charisteas(2021) 273 CLR 289:[2021] HCA 29.
The test is applied in a two step process outlined in Ebner v Official Trustee in Bankruptcy(2000) 205 CLR 337; [2000] HCA 63 at [8]: firstly, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; secondly, there must be an articulated "logical connection" between that matter and the feared departure from the judge deciding the case on its merits.
In relation to the letter of complaint dated 28 October 2024, various statements of Principal Member Blake are referred to within the complaint and also in the recusal application in the matter Northern Sydney Local Health District v FZK (No2) [2024] NSCATAP 246 (NSLHD v FZK (No 2)). It is noted that Principal Member Blake's decision in NSLHD v FZK (No2) has not been disturbed. The statements highlighted by the appellant do not bear any relationship to the current matter before the Appeal Panel and I do not accept that any fair-minded lay observer would consider that the statements identified would indicate that Principal Member Blake would not bring an impartial mind to the issues to be decided in this matter. I also do not accept that any fair-minded lay observer would identify any logical connection between these statements and any feared departure from Principal Member Blake deciding the current matter on its merits.
The Appeal Panel considered actual bias in Saeedi v Fisher & Paykel Appliances Pty Ltd[2016] NSWCATAP 235 at [45]- [46]:
45. Mr Saeedi alleges actual bias. The onus of demonstrating actual bias lies with Mr Saeedi as the party asserting bias and is a heavy onus to discharge (per French J in Jia v Minister for Immigration and Multicultural Affairs[1998] FCA 768; (1998) 84 FCR 87 at 106, 107, cited with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia Legeng[2001] HCA 17; (2001) 205 CLR 507 at 520). An allegation of actual bias must be distinctly made and clearly proved; cogent evidence is required to support a finding of actual bias; that finding should not be made lightly: South Western Sydney Area Health Services v Edmonds[2007] NSWCA 16 at [97].
46. In Minister for Immigration and Multicultural Affairs v Jia Legeng, Hayne J wrote at [183]:
The test for actual bias was addressed in Watkins v Woolworths Limited[2017] NSWCATAP 125 at [40]:
(2021) 273 CLR 289
(2000) 205 CLR 337
(2000) 201 CLR 488
(2001) 205 CLR 507
(2023) 279 CLR 148
(1969) 122 CLR 546
(1998) 84 FCR 87
In relation to the letter of complaint dated 18 May 2025, the appellant refers to a number of statements and orders made by Principal Member Blake in previous matters in both the Appeal Panel and in the Consumer and Commercial Division, as well as raising statements of Principal Member Blake from the call over in this matter on 23 April 2025.
The statement of refusal to amend a respondent's name in the Consumer and Commercial Division raised by the appellant is not supported by any evidence. It appears that Principal Member Blake made orders, as related by the appellant, the appellant did submit an ASIC extract and also did email the registry seeking the respondent's name to be amended, as related by the appellant. However, the appellant has not provided any refusal by Principal Member Blake to amend the respondent's name. There is evidence the respondent's name was amended at the next hearing by another member.
I do not accept that the appellant has identified any actual statement of Principal Member Blake in this instance. Even had a refusal to amend a respondent's name been issued by Principal Member Blake, I do not accept that any fair-minded lay observer would consider the refusal indicated that Principal Member Blake would not bring an impartial mind to the issues to be decided in this matter. I also do not accept that any fair-minded lay observer would identify any logical connection between such a refusal and any feared departure from Principal Member Blake deciding the current matter on its merits.
The appellant refers to matter 2025/34387, where Principal Member Blake on 29 January 2025 did not make an ex parte stay order, as his reasons indicated he was not satisfied it was in the interests of justice. Additionally, the appellant refers to matter 2024/382100, in which Principal Member Blake on 15 October 2024 does make an ex parte stay. In both of these matters, on these dates, Principal Member Blake also made directions for both parties to file and serve any evidence and submissions in relation to a stay and the matters were set down to a call over and hearing, where the stay applications were considered in light of any further evidence served, and submissions, made in accordance with Principal Member Blake's directions.
The statements highlighted by the appellant do not bear any relationship to the current matter before the Appeal Panel and I do not accept that any fair-minded lay observer would consider that the statements identified would indicate that Principal Member Blake would not bring an impartial mind to the issues to be decided in this matter. I also do not accept that any fair-minded lay observer would identify any logical connection between these statements and any feared departure from Principal Member Blake deciding the current matter on its merits.
The final issue raised in the 18 May 2025 letter of complaint, was that Principal Member Blake muted the appellant during the call over and hearing and therefore perverted the course of justice by preventing the appellant from making comments on the record. It is important to note that the reasons for the decision make clear that the muting of the appellant occurred during the delivery of the reasons for the decision, after submissions had been made and Principal Member Blake was delivering his decision in relation to the recusal application.
I do not accept that any fair-minded lay observer would consider that the action of muting a party interrupting the delivery of an oral decision would indicate that Principal Member Blake would not bring an impartial mind to the substantive issues to be decided in this matter. I also do not accept that any fair-minded lay observer would identify any logical connection between these the muting of the appellant during the delivery of reasons in a previous hearing due to interruption and any feared departure from Principal Member Blake deciding the current matter on its merits.
In relation to the email sent to the appeal registry on 14 May 2025 and the relating decision made on 26 May 2025, the appellant raised Principal Member Blake's refusal to make corrections pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to the reasons of 23 April 2024 further demonstrated actual bias against the appellant. The reasons for the decision of 26 May 2025 clearly articulate the circumstances in which corrections can be made pursuant to s 63 of the NCAT Act and that the corrections sought by the appellant did not raise obvious errors within the scope of s 63 of the NCAT Act. Further, it is noted that the decisions of 23 April 2025 and 26 May 2025 remain undisturbed.
I do not accept that any fair-minded lay observer would consider that the refusal to make corrections to the reasons of 23 April 225 pursuant to section 63 of the NCAT Act, would indicate that Principal Member Blake would not bring an impartial mind to the substantive issues to be decided in this matter. I also do not accept that any fair-minded lay observer would identify any logical connection between this refusal and any feared departure from Principal Member Blake deciding the current matter on its merits.