Solicitors: Office of the Legal Services Commissioner (defendant)
File Number(s): 2018/197067
[2]
Judgment
Ms Withana of counsel seeks to read the affidavit of John McKenzie affirmed on 6 February 2019. Mr McKenzie is the Legal Services Commissioner and is the only defendant in these proceedings.
The affidavit is essentially formal, inasmuch as it provides a narrative of the steps taken in the decision-making process which has been impugned by Mr Hastwell's application for judicial review, and annexes material documents referred to in the body of the affidavit.
Mr Hastwell objects to the reading of the affidavit on the basis that Mr McKenzie is not present for cross-examination, of which he informs me he has provided notice.
Ms Withana has informed me that Mr McKenzie can be made available but she seeks a ruling, effectively under s 192A of the Evidence Act 1995 (NSW) as to whether the cross-examination proposed would be permitted. She seeks that ruling in advance of Mr McKenzie attending to give evidence.
The reason why this ruling is sought is that Mr Hastwell has made it very clear that he wishes to cross-examine Mr McKenzie about ground 6 in his second further amended summons filed on 7 December 2018. That ground is expressed in the following terms:
Denial of procedural fairness and natural justice because of an apprehension of association bias.
What Mr Hastwell means by that has been addressed in the evidence he read earlier today and he has made it clear on transcript a couple of times this morning what course he wishes to pursue. Perhaps to put it in context I will refer to some of the evidence I was taken to during the argument on this point.
Annexure HGH38 is an email from Mr Hastwell to the Commissioner and his officer responsible for the daily conduct of the investigation. The email deals with a number of topics but the second topic is a question couched in the following terms:
Also, did you get my email dated 21 April 2018. Could you please confirm whether anyone working on the matter has any association with the Freemasons as there may be conflicts of interest.
The email of 21 April is at HGH37 and asks the same question, couched in a similar way. I should say that there is no basis explained in those emails for posing such a question.
Initially it might be said that the Commissioner, through his officers, attempted to deflect the question, simply saying, in a letter of 8 May 2018:
This office declines to respond to your request for privacy reasons.
In a later email of 11 May 2018, Mr Hastwell joined issue with that response, stating, "The Commission should disclose a conflict of interest and how it is to be managed." A response to that email was again sought on 24 May 2018.
A fuller response to the question was provided by letter dated 30 May 2018 in these terms, omitting numbering.
In an email dated 21 April 2018 to this office, you asked, 'Do either of you or anyone working on this file have any association with the Freemasons, as there may be a conflict of interest?' You pressed for a response to this question in an email dated 4 May 2018 (and which then generated an email dated 8 May 2018). I point out that:
1.1 At no time have you disclosed the reason for your question, and what relevance it has to this investigation. This office does not know why you have repeatedly posed this question.
1.2 In any event, and critically, it is not the practice of this office to identify, obtain or disclose information about the religious (or similar) background of anyone employed by this office. It is difficult to conceive of the circumstances in which this would be appropriate in the New South Wales Public Service.
In the course of his address Mr Hastwell referred me to the leading authority of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. He also stated that he was apprehensive because of something he had been told, as he mentioned earlier today, that there was such an association involving the Commissioner, the solicitor and the expert whose report had been impugned as part of his complaint. Although I note that Ms Withana submitted that Mr Hastwell's apprehension was never spelt out in those terms in any of the correspondence.
However, Mr Hastwell has drawn to my attention his email of 31 May. I shall set that out in full:
Further to my email earlier today regarding my request that the Commission inform me whether a conflict of interest exists and how it is to be managed, I would like to add that if someone working on this investigation/matter has an association with the Freemasons and if Harmers Workplace Lawyers also has an association with the Freemasons, there is clearly a conflict of interest which must be disclosed and managed.
The Freemasons are not a benign organisation and their members work across government organisations as well as private practice. Unfortunately, conflicts of interest do arise in public office which, for the retention of public trust and in the interests of procedural fairness, must be disclosed and managed appropriately.
I believe the Commissioner is under an obligation in this regard. I understand that ICAC has published guidance for New South Wales public bodies.
In the course of her address, Ms Withana took me to the decision of Basten JA, sitting as a single judge of appeal in Makucha v Sydney Water Corporation [2011] NSWCA 234 at para 9. His Honour was concerned with the case of a judge of this court who declined to disclose his religious affiliations and connections. Of this, Basten JA said:
There is, however, no basis in principle or judicial practice which warrants a party questioning a judge as to his or her circumstances or beliefs. Should that occur, the proper course, and indeed the only proper course to be taken, is that adopted by the trial judge in the present case, which was to refuse to answer such questions. That being so, the refusal to answer such questions cannot give rise to a reasonable apprehension of bias. For that further reason the application must fail.
Although expressed in the context of a judicial determination, it is quite clear that the principles of natural justice, or procedural fairness, extend beyond the judiciary and to the role played by administrative decision-makers in the public administration of the State.
Ms Withana also referred me to the decision of the High Court in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at 21. There, a unanimous court said the following:
The principal governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an 'interest' in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.
Their Honours went on to point out that that principle had been applied to many other kinds of decision-making and decision-makers. Indeed, Isbester concerned administrative action taken under the Domestic Animals Act 1944 (Vic) to authorise the destruction of a dog.
Mr Hastwell read para 6 of the judgment in Ebner to me. What is clear about Ebner is that it establishes an objective test. The question is not about the subjective feelings or apprehensions of the parties to the litigation. Nor is it about the subjective beliefs or suspicions of members of the public who might be in court observing the judicial process. Rather, it is based upon reasonable grounds for an apprehension that there might be a deviation from the proper course of justice. What it requires is, first, a factual foundation for the apprehension. And secondly, a logical articulation of the relevant path of deviation from lawful decision-making.
I must say, with respect, that neither of those grounds is satisfied in this case. Mr Hastwell's subjective concerns are not evidence that there is any association between the Commissioner and any person interested in his investigation. Nor has there been any articulation, if there were such an association, of how it might affect in an impermissible way the Commissioner's decision-making in the present case. I am not persuaded that there is any proper ground for cross-examination of the Commissioner on the basis of speculation about a possible association based on hearsay, even the source of which is not identified in the evidence.
Given the complete absence of any foundation for any charge of an association, or any charge based upon that association, of apprehended bias, the Commissioner's response, in my judgment, was proper. Indeed, to quote Basten JA, it was "the only proper course to be taken" in the circumstances.
In an earlier judgment today I referred to Mr Hastwell's argument based upon the decision of the High Court of Australia in Jones v Dunkel (1959) 101 CLR 298. I said then, and I repeat now, that the permissible inferential reasoning process countenanced by that case cannot be engaged by a complete absence of any evidence whatsoever to found the inference sought. And in this case, there is a complete absence of any evidence whatsoever to support the inference of association Mr Hastwell seeks to have drawn.
In those circumstances, I accept Ms Withana's submission that any cross-examination based purely upon speculation would be impermissible by counsel, and it is equally impermissible on the part of a self‑represented litigant. One acknowledges the disadvantages self‑represented litigants labour under, but those disadvantages do not amount to a privilege above that enjoyed by counsel who have a right of audience in our courts.
Accordingly, I rule under s 192A of the Evidence Act 1995 (NSW) that the questions Mr Hastwell wishes to ask Mr McKenzie are inadmissible, and I will not permit cross-examination on those topics.
[3]
Amendments
28 October 2019 - Spelling of Plaintiff's name
28 October 2019 - Representation - Spelling of Plaintiff's name
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Decision last updated: 28 October 2019