JUDGMENT
1 HIS HONOUR: By his Amended Summons filed in Court today, the plaintiff seeks declarations of actual and apprehended bias and denial of natural justice on the part of the first defendant and consequential orders, including that the further hearing of proceedings before the first defendant be heard by that Tribunal differently constituted.
2 The proceedings arise out of a complaint to the Tribunal against the plaintiff by the Veterinary Surgeons Investigating Committee alleging professional misconduct and that he was not a person of good character, contrary to s 26(1)(c) and (e) of the Veterinary Surgeons Act 1986.
3 The complaint involved allegations of dishonesty and fraud in the proposed export of ram semen to another country, the giving of false certificates that tests had been carried out when they had not, and a fraudulently concocted laboratory report which was based on subsequently acquired knowledge.
4 Of the ten particulars alleged in the complaint, seven were found to be established.
5 The plaintiff's complaints are twofold, firstly that natural justice was denied him in that he was not afforded a separate hearing on penalty after the Tribunal had made its findings that the complaint was established, and secondly, that the Tribunal as presently constituted should not proceed further in the matter because of actual or apprehended bias arising from the publication of its proposed orders as "Orders".
6 The course of the proceedings may be summarised as follows: The complaint against the plaintiff was heard by the Tribunal over a period of six days from 12 to 19 August 2002. On the last of those days, before making a determination as to whether the complaint had been established in whole or in part, the Tribunal, notwithstanding the objections of counsel for the plaintiff, heard submissions on penalty.
7 The Tribunal reserved its decision. Judgment was given on 30 September 2002 when the Tribunal found seven of the ten heads of complaint established and published its reasons.
8 It then expressed its then opinion on penalty (paragraphs 196-203 of judgment) and at paragraph 205 under the heading "Proposed Orders" noted that at the hearing plaintiff's counsel had requested an opportunity to address the Tribunal in relation to its proposed orders and went on:
"On the basis of that request, the following orders are proposed, that:
(1) The [plaintiff's] name be removed from the Register of Veterinary Surgeons and that he be permitted to apply for restoration of his name after two years."
9 After orders for costs and orders in relation to the disclosure of names of the plaintiff and witnesses, the Tribunal ordered that if either party wished to address the Tribunal on the appropriateness of those "proposed orders", they were to contact the Tribunal within fourteen days.
10 The cover sheet of the judgment ran for one and a half pages and set out in the usual form the name of the Tribunal, the parties, file no., hearing dates, etcetera, with the headings in heavy type in the left hand column and the details in lighter type in the right hand column. The last item in the left hand column, in heavy type, was the word "ORDERS".
11 In the right hand column the first words in capital letters, but not in heavy type, were "PROPOSED ORDERS:" and the proposed orders were set out.
12 Not only were hard copies made available to those, including the parties, who applied for them, but the decision was published on the Tribunal's internet website.
13 Pursuant to paragraph 206 of the Reasons for Decision, the plaintiff sought a hearing for further submissions in relation to penalty. This was granted and the further hearing took place on 9 December 2002.
14 On that date, as appears from the transcript (Exhibit A), the first submission made by Senior Counsel for the plaintiff was that the Tribunal members should disqualify themselves on the basis of bias and/or prejudice, firstly because of the circumstances pertaining to the publishing of the decision, including on the internet, and secondly, because submissions on penalty having already been received, the Tribunal had indicated its proposed orders, and not only had it indicated its proposed orders, but having regard to the way the cover sheet had been set out, they had been indicated as "Orders".
15 The Tribunal members refused to disqualify themselves. They were asked for reasons, which the parties were informed would be delivered in due course.
16 The Tribunal then proceeded to hear extensive evidence and further submissions on penalty, at the end of which it reserved its decision. That decision has not yet been given and the Tribunal has undertaken that it will not give it prior to 24 March 2003. The Tribunal subsequently delivered its Reasons for rejecting the application to disqualify itself on the ground of bias.
17 In relation to the first ground, the denial of natural justice, Ms Stenmark SC, who appears for the plaintiff, relies on the decision of the Court of Appeal in Hall v New South Wales Trotting Club Limited [1977] 1 NSWLR 378 where Hutley JA said at 382:
"The duty of a domestic tribunal to hear the accused is not in my opinion fully performed by hearing him on part of the case. Once there is a finding of guilt the stewards must consider the penalty. … The person found guilty cannot really address until he knows of what he has been found guilty".
See also Samuels JA at 391.
18 This decision was followed by Holland J in Malone v Marr [1981] 2 NSWLR 894 where his Honour held that a domestic tribunal in dealing with alleged misconduct for which it has power to penalise must always distinguish procedurally between the question of guilt and the question of penalty; and after a finding of guilt the accused must be given an opportunity to address the tribunal on penalty.
19 However, in both those cases the person accused was not given any opportunity to address on penalty. Here the plaintiff was given two opportunities to address on penalty, firstly on 19 August 2002 and secondly on 9 December 2002.
20 For the reasons given by Hutley JA, it is generally desirable that addresses on penalty follow a determination of guilt so that the person accused knows precisely the ambit of the findings to which submissions on penalty need to be addressed.
21 But it seems to me that the rule is not inflexible, and provided there is an ample opportunity to address on penalty, there is no breach of any rules of natural justice or procedural fairness.
22 The second issue raised is that issue of bias particularly, as I understand it, apprehended bias. The test for apprehended bias is conveniently set out in Re JRL ex parte CJL (1986) 161 CLR 342 at 351 to 352 and arises if the parties or the public entertain a reasonable apprehension that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the issues.
23 As Mason J said at 352:
"There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be firmly established".
24 The submission really, as I understand it, took two forms, firstly, that the manner in which the cover sheet of the judgment was set out indicated that striking off the Register was the order that the Tribunal intended to make, and that any reasonable person seeing the cover sheet in that form would apprehend such order was to be made, notwithstanding the use of the other words "Proposed Orders".
25 In my view there is no substance in this submission. The words "Proposed Orders" appeared quite clearly and no-one looking at the document, either in hard copy or on the internet website, could have been under any misapprehension but that these orders were merely proposed, and were not final, particularly the plaintiff and his legal advisers, who presumably would have read the judgment carefully and noted that provision had been made for further submissions to be made on penalty.
26 The other basis on which it is submitted that there is a reasonable apprehension of bias is that by expressing these "Proposed Orders" prior to hearing the further and final submissions on penalty, a reasonable person would apprehend that the Tribunal had pre-judged the matter and that it was not going to be impartial.
27 In this regard I was referred to a number of cases including Vakauta v Kelly (1989) 167 CLR 568 and Re Watson ex parte Armstrong (1976) 136 CLR 248, and it was submitted that a reasonable bystander would understand that the Tribunal was not merely expressing preliminary views, but was adamant in its view and was satisfied that the plaintiff should be removed from the Register no matter what further submissions were put.
28 I can see no basis for such apprehension. The Tribunal certainly has expressed a view, but has made it clear that it is not a final view.
29 The question of apprehended bias in this context was most recently considered by the High Court in Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17, 205 CLR 507 where Hayne J, with whom Gleeson CJ and Gummow J agreed on this issue, said at [185]:
"Saying that a decision maker has pre-judged or will pre-judge an issue, or even saying that there is a likelihood that a reasonable observer might reach that conclusion, is to make the statement which has several distinct elements at its roots. First, there is the 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 that 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 what may be the facts and arguments relevant to the particular case. Most importantly there is the assumption that the question which is said to have been pre-judged is one which should be considered afresh in relation to the particular case."
30 His Honour went on to say that often enough allegations of actual bias through pre-judgment have been held to fail at the third of steps so identified and that allegations of apprehended bias through pre-judgment are often dealt with similarly.
31 As in any case which involves the imposition of a penalty arising in a disciplinary, domestic or criminal tribunal, the decision maker cannot disregard what has gone before in the same case because that material bespeaks what level of penalty is to be imposed, and to express a view as to the seriousness of the facts found and how the seriousness of such facts may affect the penalty will often be helpful to the respondent's legal representatives.
32 In this case there is no evidence and no basis for apprehending that the Tribunal will disregard the evidence which it heard or the submissions made to it on 9 December. There has been no failure to hear evidence of or submissions on penalty after finding the facts of the complaint established, and when used in conjunction with the words "Proposed Orders" it could not, in my view, lead to a reasonable apprehension in that the Tribunal will apply its earlier opinions to the matter in issue without giving the matter fresh consideration in the light of additional evidence and submissions.
33 Finally, reference was made to the Tribunal's reasons for refusing to disqualify itself, handed down on 7 February 2003 and, it was submitted, that it applied the wrong test, namely the test applicable to actual bias. However, after referring to the relevant authorities, the Tribunal went on to say that there was nothing about the publication of the proposed orders which would engender suspicion in the minds of the public that it may not bring a fair and unprejudiced mind to the consideration of the final orders.
34 In my view "suspicion" is something less than reasonable apprehension, and I am satisfied the Tribunal gave the application that it disqualify itself proper consideration in accordance with the proper legal principles.
35 For these reasons, the Summons is dismissed with costs.
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