FZK v Department of Communities and Justice

Category: Procedural rulings

Parties: FZK (Appellant)
Department of Communities and Justice (Respondent)

Representation: Appellant (self-represented)
Solicitors:
Department of Communities and Justice (Respondent)

File Number(s): 2026/00204270

Publication restriction: Pursuant to an order made on 1 June 2026 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the appellant is prohibited. The appellant is to continue to be known by the pseudonym FZK.

REASONS FOR DECISION

1. SEIDEN SC DCJ, DEPUTY PRESIDENT: The underlying proceedings concern asserted contraventions, by the respondent, of the Privacy and P**ersonal Information Protection Act 1998 (NSW) (the Privacy Act) in deciding not to amend records held by the respondent containing the appellant’s personal information.

2. Prior to the hearing of the appeal, the appellant sought the recusal of each member constituting the Appeal Panel. Written submissions were provided in the case of one member. At the commencement of the hearing of the appeal, the Appeal Panel heard oral argument from the appellant in relation to each recusal application.

3. The respondent indicated that they did not support the recusal applications but did not make submissions.

4. After a short adjournment, the Appeal Panel refused the applications for recusal and indicated that written reasons for decision would follow. This decision contains the written statement of reasons as to why the recusal applications were refused.

5. As is appropriate where a panel of members is constituted, both members are required to turn their minds to each of the recusal applications: 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). In this case it means each member must turn their minds to their own recusal application and to the application in relation to the other member of the Appeal Panel.

6. Before turning to the recusal applications, it should be noted that the appellant indicated that the underlying proceedings are extremely important to them and that through what they consider is a denial of justice, the appellant has suffered substantial damage, for which they intend to seek compensation. They say that bringing the recusal applications is necessary to mitigate damage and to give the members of the Appeal Panel an opportunity to step away.

The recusal applications

The basis of the applications

7. The appellant relies on actual, rather than apprehended, bias. The appellant contended that, in each case, the member of the Appeal Panel is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: relying on Minister for Immigration and Multicultural Affair**s v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72]. That pre-judged conclusion is said to be, in relation to each member of the Appeal Panel, that the decision each member will make will inevitably be adverse to the appellant in whatsoever proceedings they are a party.

The legal principles

8. The principles of actual bias were set out in FZK v Secretary, Department of Communities and Justice [2025] NSWCATAP 120 (the 2025 Decision) at [21] - [29]:

“21 The onus of demonstrating grounds for recusal on the basis of actual bias lies with the party asserting it: Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 106, 107 (per French J) cited with approval in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [37] (per Gleeson CJ and Gummow J).

22 The focus of an enquiry into actual bias is upon whether the judge is sufficiently impartial to permit justice to be done: QYFM at [120] (per Edelman J).

23 A finding of actual bias requires a finding that a judge was ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’: Jia Legeng at [72].

24 A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun) at 127 (per Burchett J). As was said by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97] (and the authorities cited therein), a claim of actual bias must be distinctly made and clearly proved, should not be made lightly, and requires cogent evidence.

25 Actual bias requires an ‘assessment of the state of mind of the judge in question’: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [33]. The only person truly capable of knowing whether actual bias is present in the person’s mind is the subject judge, but an objective assessment must also be undertaken by the subject judge and others: QYFM at [115]-[120].

26 Actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 at 289-290 (per Finkelstein J).

27 In Jia Legeng, Hayne J noted that bias may be occasioned by an interest in the outcome, by affection or enmity, or by prejudgment: at [183]. His Honour set out several distinct elements underlying the assertion that a judge has prejudged or will prejudge an issue on the basis of an opinion they hold (at [185]):

First, there is a contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case.

Secondly, there is the contention that the decision-maker will apply that opinion to the matter in issue.

Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.

28 His Honour observed, at [186], that allegations of actual bias through prejudgment often fail at the third step. This is because, notwithstanding whatever preconceived opinions are held or even expressed by the decision-maker, it does not follow that the evidence will be disregarded.

29 These principles would equally apply to a decision-maker in the Tribunal.”

9. Impartial decision-makers are necessary for the Tribunal to achieve its object of resolving “the real issues in the proceedings justly, quickly, cheaply and with as little formality as possible” (s 3(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act)) and to facilitate the “guiding principle” of “the just, quick and cheap resolution of the real issue in the proceedings” (s 36(1) of the NCAT Act). It is therefore necessary for each member of the Appeal Panel to seriously reflect on their own conscience and to consider the issues raised from an objective perspective. Where there is bias, there is jurisdictional error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [6].

10. Nonetheless, it is also important not to accede to a recusal application where it is not necessary to so do. The decision maker must discharge their duty to sit. It was said in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Mason J); [1986] HCA 39 as follows:

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour”.

11. I consider that these comments also extend to actual bias.

The recusal application against Seiden SC DCJ

12. The appellant indicated that this recusal application relied on the same grounds that were the subject of the decision in FZK v Secretary, Department of Customer Service [2026] NSWCATAP 253 (the 2026 Decision). In the interests of expediency, the appellant said that they would not rehearse all the contentions in that case and that it was sufficient to signal that they were still relied upon. However, the appellant indicated several aspects of the 2026 Decision that revealed a misunderstanding of their case.

13. In the 2026 Decision, I said at [7]-[8]:

“The recusal application and the grounds relied on, as identified in the application of 30 July 2026, in terms, are as follows:

‘I apply for your recusal from these and all my proceedings on actual bias:

1. You reserved costs (Attachment 1) when the Respondent admits they didn’t apply until these proceedings

2. You acted like a con-man to defraud me (Attachment 2)

3. Knowingly false: pure question of law, because “pure” doesn’t exist in Chief Justice’s publication (Attachment 3)’

During the hearing, the appellant relied on an additional ground:

That these proceedings concern the appellant and the same respondent, and the same question, in a matter previously dismissed by Judge Seiden.”

14. I then said at [13]:

“The appellant’s case is that regardless of the merits, how good or bad the appellant’s case may be, I will always decide adversely to the appellant. The proposition is that I am (borrowing the words from Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72] (Gleeson CJ and Gummow J)) ‘so committed to a conclusion [that the appellant must fail] already formed as to be incapable of alteration, whatever evidence or arguments may be presented.’ This is said to be proved because that has been the appellant’s experience across a range of proceedings; which concerned different issues, situations, gravity, consequence and impact.”

15. The 2026 Decision sets out the reasons why I did not recuse myself in relation to those grounds, at [14]-[40]. Senior Member Lo Surdo SC agreed at [42].

16. Before considering whether the result should be the same in this decision, it is necessary, first, to consider the asserted misunderstandings and additional points raised by the appellant in this recusal application.

17. The appellant contends, with respect to Ground 1, that the Appeal Panel in the 2026 Decision misunderstood the essence of their claim. Ground 1 was concerned with an order made in connection with an adjournment sought by the appellant and granted by a partially, differently constituted Appeal Panel. The decision in the substantive appeal with which the adjournment application was concerned was, ultimately, dismissed: FZK v Department of Customer Service [2024] NSWCATAP 185 (the 2024 Decision). The solicitor appearing for the respondent informed the Appeal Panel at the hearing of the adjournment application that the respondent wished to reserve their position on costs. In addition to granting the adjournment, the Appeal Panel made the following order (Order 2):

“2. Costs reserved of today.”

18. The appellant submitted that the Appeal Panel should not have made an order reserving costs, because neither party had applied for costs and the appellant had not been given an opportunity to make submissions about the issue. Further it was contended that as the appellant obtained the order they sought (an adjournment) the starting position was that they were entitled to their costs, as the winning party, not the respondent who was seeking to reserve their position on costs.

19. In the 2026 Decision, the Appeal Panel rejected the contention that Order 2 justified a conclusion of bias on several bases. The reservation of costs on an interlocutory application does not mean that the Tribunal has expressed any opinion about whether costs should be awarded or by whom they should be paid: Kitay v Frigger [No 2] [2024] WASC 113 (S) at [53] (per Hill J). It does not signal a prejudgment. Further, the mere fact that an applicant for an adjournment has “won” the adjournment does not mean that the starting position is that they get their costs. Adjournment applications are often granted on the basis that the other party gets their costs thrown away: Owners - Strata Plan No 93543 v Zhang (No 2) [2021] NSWSC 360. In any event, prejudgment cannot be read into anything said about costs being reserved, even if the reservation is due to the urging of one party.

20. The appellant had also submitted that orders ultimately made in the 2024 Decision, after the appeal had been dismissed, setting down a timetable for either party to make a costs application, signalled a prejudgment; including because a self-represented party is not entitled to their costs. Nevertheless, the fact that a timetable for the making of a costs application is set, subsequent to the dismissal of an appeal, also does not signal prejudgment; even if it invited both parties to make a costs application and only one had been, ultimately, successful and even where there are parties who are self-represented at the hearing. To include all parties in the timetabling orders signals the absence of prejudgment.

21. The appellant also contends that the Appeal Panel, in the earlier decision or decisions, missed the point that the appellant was making – that the costs-related orders were intimidatory. For example, as the respondent in the 2024 Decision had not made a costs application but only reserved their position on costs, for the Appeal Panel to reserve the costs and set a timetable for the making of any costs application was intimidatory. That position is said not to have been ameliorated by the fact that, in those proceedings, no costs application was made and no costs order ever made.

22. Contrary to the appellant’s contentions, the setting of a timetable and the reserving of costs are ordinary incidents of proceedings in the Tribunal. Ultimately, the Tribunal must afford procedural fairness and give the parties a reasonable opportunity to be heard, before making a decision: NCAT Act, s 38(5). In the absence of a contention that a decision affecting the appellant’s rights was made, without affording an opportunity for them to be heard, the making of the orders which did not culminate in a costs orders, do not provide the evidence needed to establish actual bias. As identified in the principles set out above, a person seeking the recusal of a decision-maker on the grounds of actual bias has a heavy burden.

23. Furthermore, the appellant maintained that in earlier decisions, especially on the question of what is a question of law for the purposes of s 80 of the NCAT Act, I have been wrong to conclude that the question must be a “pure” question of law. The mere repetition of earlier held views was said to “not reassure the appellant that there is no bias”. The appellant contends that the frequency with which I have said, in earlier cases, that a question of law must be a pure question of law, proves a fixed view. It was also said that it was wrong to rely on earlier decisions where I was one of the decision makers. This is because “one cannot be a judge in one’s own cause”. Further still, it was said that no weight should have been given to the recent decision of Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2026] NSWCATAP 127 at [24]-[33], in the 2026 Decision (at [34]) not only because I was a member of the Appeal Panel, but also because the appellant takes issue with the credibility of the other member of the Appeal Panel in that case. Nevertheless, reiteration of a view expressed in an earlier decision, after further reflection, does not prove bias. In the 2026 Decision, Star Training was expressly referred to, to demonstrate that further refection can and does indeed occur.

24. In the 2026 Decision, the Appeal Panel said, at [35]:

“To have earlier made a decision on the construction of a statute, which may ‘generate an expectation’ that a judicial officer is ‘likely to decide issues in a particular case adversely to one of the parties’, does not mean the judicial officer ‘will approach the issues in that case otherwise than with an impartial and unprejudiced mind’: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Mason J); [1986] HCA 39.”

25. Ultimately, the Appeal Panel, when determining the substantive issues on this appeal, will, again, consider the question of the meaning of question of law, under s 80.

26. Contrary to the appellant’s contention, even if wrong at law, the statement in earlier cases that a question of law must be a pure question of law, for the purposes of s 80 of the NCAT Act, does not prove bias.

27. The result is that there is no basis for my recusal on the ground of actual bias.

The recusal application against Senior Member MacIntyre

28. I have had the advantage of reading the draft reasons for decision of Senior Member MacIntyre in relation to the appellant’s disqualification application against him.

29. I agree that there was no basis for him to recuse himself and that it was appropriate for the appellant’s application to be refused.

30. EA M****ACINTYRE, SENIOR MEMBER: I have considered the draft reasons for decision of Judge Seiden SC in relation to the recusal application made against her. I agree with her Honour’s reasons and with the conclusion that the application should be refused.

31. I now separately address the appellant’s recusal application against me. In doing so, I adopt the summary of the applicable law set out at [6] and [9]-[11] above.

32. The application for me to recuse myself from hearing this appeal was brought on the basis that I had earlier determined an application under the Government Information (Public Access) Act 2009 (NSW) concerning access to the appellant’s medical records kept by the Northern Sydney Local Health District: FZK v Northern Sydney Local Health District [2025] NSWCATAD 218. Subsequently, the appellant made an application that the reasons be amended under s 63 of the NCAT Act (the slip rule). However, that application was refused. No written statement of reasons for the refusal was provided.

33. The appellant’s main premise is that not providing a written statement of reasons for decision constitutes an “admission” that I had no reason to refuse the application under the slip rule and “those errors were not accidental but intentional”. This is said to demonstrate that I was:

“so committed to [my] decision, knowing [I have] no evidence, still proceeded.”

34. Pursuant to s 62(2) of the NCAT Act, the Tribunal must provide written notice of a decision within 28 days of a request to do so, unless one of the exemptions in s 62(2A) applies. Section 62(2A) provides as follows:

(2A) Subsection (2) does not apply to the following decisions of the Tribunal—

(a) a decision to make an order dispensing with a hearing of the Tribunal under section 50(2),

(b) a decision to grant an adjournment,

(c) a decision under section 60 not to award costs, except where a party has argued there are special circumstances warranting an award of costs,

(d) a decision to award costs in proceedings of either of the following kinds—

(i) proceedings for the exercise of a function of the Consumer and Commercial Division of the Tribunal,

(ii) an internal appeal against a decision of the Consumer and Commercial Division of the Tribunal,

(e) if the parties have consented to the making of an order—a decision to make the order,

(f) other minor procedural decisions that do not have a final or determinative impact on the rights of a party.

35. Not providing reasons is said to prove that I in fact had no reasons for refusing the application under s 63. This is said to prove that the decision was not justifiable, which in turn is said to be indicative of bias. The making of a decision without reasons is said to suggest that I was intent on making a decision against the appellant.

36. Contrary to the appellant’s contentions, a decision made without providing a written statement of reasons does not prove that there were no reasons for the decision and does not prove bias. First, even assuming that I was wrong in not providing written reasons for my decision to refuse an amendment under the slip rule – and that written reasons were indeed required under s 62 of the NCAT Act – that does not prove bias. Given that exceptions to the requirement to provide a written statement of reasons exist, even if there had been an error, this does not prove bias. Secondly, it is a wrong premise to say that the fact a decision-maker did not provide a written statement of reasons means that they did not have any intelligible reasons at all. Section 62 expressly identifies the circumstances when a Tribunal Member need not provide a written statement of reasons. Even assuming s 62 was engaged and not one of the enumerated circumstances applied, this would be an error but not demonstrate bias.

37. No appeal from the refusal to amend under the slip rule was filed and no appeal relating to not providing a written statement of reasons was filed. A recusal application is not an opportunity to address asserted errors in a decision.

38. For these reasons, I refused the appellant’s application that I recuse myself.

Orders

1. The application that Seiden SC DCJ recuse herself is refused.
2. The application that EA Macintyre SM recuse himself is refused.

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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