FZK v Secretary, Department of Communities and Justice

1. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) Gaudron J at [83] held:

"It is not in doubt that the requirement that courts be and appear to be impartial dictates the result that a judge is disqualified by actual bias and, also, by the appearance of bias. The test in this country with respect to the appearance of bias is '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 [he or she] is required to decide'."

1. The question is one of "possibility (real and not remote), not probability": Ebner at [7].
2. In practice, the application of this test involves the following steps:

(1) the party seeking disqualification must identify what it is that might lead the judicial officer (or Tribunal member) to decide the case other than on its legal and factual merits: Ebner at [8];

(2) the party seeking disqualification must then articulate the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the case on its merits: Ebner at [8].

1. Once the matter suggesting bias has been identified, and the logical connection between the matter and the feared deviation has been articulated, the party seeking disqualification must establish that there is an ensuing apprehension of bias and that the apprehension is reasonable: Ebner at [8].

1. As to actual bias, a finding of actual bias is a grave matter. It must be clearly proved and cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.
2. The Appellant relied on the decision of the Appeal Panel reported as FZK v Department of Customer Service [2024] NSWCATAP 185 to support their application and the grounds set out by her Honour (the Privacy Decision).

1. Ground (1) misconstrues the reasons in the Privacy Decision. The reservation of the question of costs to a later date was not "ultra vires". The position of the parties as to the costs of the adjournment application was reserved for later determination, if required.
2. The question of costs reserved is a standard practice which the reasonable bystander is taken to be aware of and the reasoning in the Privacy Decision does not give rise to a reasonable apprehension of bias on the part of her Honour.
3. Grounds (2), (3) and (4) assert false, or false and intimidatory, statements in the Privacy Decision.
4. In my view, the reasoning at [133] of the Privacy Decision makes clear what the reservation of costs related to, namely, costs in the adjournment application. Whatever may have been said at the adjournment hearing does not alter that position. There is nothing false or intimidatory about the reasoning at [133]. Ground 2 does not provide any basis for recusal.
5. The claimed "false statement" in Ground (3)(a) related to [87] of the Privacy Decision. It states:

"The Appeal Panel is satisfied that the provision of access to an individual's personal information under s 14 of the Privacy Act, alone, does not constitute use for the purpose of s 16 of the Privacy Act. Section 16 is not a prerequisite to s 14 of the Privacy Act."

1. That paragraph is not a false statement. Even if it were it could not possibly support a claim for bias on the part of her Honour, apprehended or actual as it does not satisfy the tests as is made clear below.
2. Relying on s 63 of the NCAT Act, the Appellant had sought a correction of the order reserving costs in an earlier adjournment application.
3. The Appeal Panel held at [119]:

"At the hearing on 1 August 2024, the Appeal Panel explained that the reservation of the issue of costs did not operate as an award of costs and that costs would be awarded only if a party actually made an application for costs; and then only if both parties were given an opportunity to make submissions about the issue. Significantly, Mr Allchurch also confirmed at the hearing that the respondent had not yet applied for costs and indicated that the respondent would continue to reserve its position as to costs until the Appeal Panel decided the appeal".

"124. At general law, the reservation of costs on an interlocutory application by a court does not mean that the court has expressed any opinion about whether costs should be awarded or by whom they should be borne: Kitay v Frigger [No 2] [2024] WASC 113 (S) at [53] (Hill J) citing How v Earl of Winterton (No 4) (1905) 91 LT 763 at p 765 (Kekewich J). The same principle applies in the Tribunal. The effect of a reservation of costs is not to award costs. Rather, it is to leave the determination of the issue to a later date.

125. By order 2, costs have not been awarded against either party. Costs will not be awarded unless there is an application for costs and the Appeal Panel decides it is appropriate to award costs after giving each party an opportunity to make submissions about it. In this regard, s 60(1) of the NCAT Act generally requires each party to pay their own costs. Section 60(2) provides that the Tribunal may award costs only if it is satisfied that there are special circumstances warranting an award of costs.

126. There is no obvious error in order 2 requiring a correction. The correction application is therefore dismissed."

1. The challenge in Ground (3)(b) to the statement at [58] in the reasons of the Privacy Decision that the question of law must be a pure question of law ignores decisions of the Appeal Panel of the Tribunal to that effect (see, for example, Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158) and is not false.
2. The challenge in Ground (3)(c) to what was held at [67] of the Privacy Decision, that what is reasonable in any given situation requires an analysis of facts and circumstances in the context of the statutory test because reasonableness is not a disputed fact in these proceedings, does not render the statement false.
3. The complaint in Ground (3)(d) in respect of paragraph [92] of the Privacy Decision ignores the context set out at [90] and [91] of the reasons. The Appellant had raised as a ground of appeal in that case that the Department's records about their special leave are erroneous. The Tribunal at first instance did not make a finding about whether the records were erroneous. The question of "no evidence" for a factual finding which was not made did not raise a question of law. The Tribunal held that it did not have jurisdiction to do so.
4. There is nothing false about this reasoning. The Applicant's contentions misconstrue the reasoning.
5. There were no false or "intimidatory statements" in the reasons based on what is raised in Ground (3).
6. Grounds (2), (3) and (4) therefore proceeded on a misinterpretation of the reasons in the Privacy Decision and have no substance. There is no objective basis for regarding the reasoning relied upon by the Appellant as false or intimidatory.
7. Ground (4), the reference to "serious offences" under the Crimes Act 1900 (NSW), is completely misconceived and should not have been raised. There was no false or intimidatory statement in the Privacy Decision. A party is not entitled to raise such serious allegations in the absence of any valid basis for doing so. No valid basis exists in this case.
8. In my view the grounds raised by the Appellant for recusal did not satisfy the test for apprehended bias set out above in that:

(1) the Applicant's views and grounds are purely subjective and the fair-minded lay bystander, with knowledge of all the material and objective facts, and the proper context in which the reasons in the Privacy Decision are expressed, read fairly, would not reasonably apprehend that her Honour might not, at the end of the hearing of the appeal, and having heard all of the parties, bring an impartial and unprejudiced mind to the resolution of the questions on the issues raised;

(2) there is no logical connection between the matters the subject of the appeal before us, concerning principally the question of compliance, or non-compliance, with a summons to produce documents, and the subject matter and reasons in the Primary Decision to suggest that what is decided in that case underpins the Appellant's application;

(3) there is no objective basis established for a feared deviation from the course of deciding the appeal on its merits.

1. A reasonable bystander is taken to have knowledge of all matters and objective facts and practices and procedures relevant to the issues in dispute including, in this case, the question of costs and rulings on costs reserved as set out in the Privacy Decision (see, for example, CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385; [2012] NSWCA 65 at [57]; Duncan v Ipp [2013] NSWCA 189 at [154]- [156]).
2. As to actual bias, the analysis of the grounds raised by the Appellant led me to form the view that there were no matters which may give rise to a potential for actual bias based on the grounds raised by the Appellant. No clearly proven or cogent evidence is put forward by the Appellant to support the claim and no basis, in my view, for making a finding of such gravity.

1. For the reasons set out above, I was satisfied that the Appeal Panel will be able to discharge its obligations of impartiality in dealing with the appeal before us and rejected the application for the recusal of her Honour based on both apprehended and actual bias.

(1) The application by the appellant that Judge Seiden SC recuse herself, is refused.

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.