Kumari v State of New South Wales, NSW Treasury

"Dear Parties,

When the matter is called again at 2pm this afternoon, Commissioner McDonald will inform the parties that she does not intend to disqualify herself from hearing the notices of motion filed in the proceeding or the Applicant's substantive application for relief from victimisation on the basis of apprehended bias. However, in light of the material filed in support of the disqualification application, it may be the case that the Applicant objects to Commissioner McDonald exercising arbitration powers in circumstances where she attempted conciliation of the matter. In those circumstances, the Applicant has a statutory right pursuant to s 173 of the Industrial Relations Act 1996 to request that a different member of the Commission exercise arbitration powers in respect of the matter.

Commissioner McDonald is prepared to deliver reasons for her decision not to disqualify herself from hearing the proceeding, however, this may not be necessary if the Applicant wishes to exercise her right under s 173 in any event.

Accordingly, the Applicant should be prepared to indicate her position at 2pm."

1. When the matter was called at 2pm, I asked Mr Thakur whether the Applicant wishes to exercise her rights pursuant to s 173. Mr Thakur requested time to seek instructions from his client in that regard.
2. I should also note that Mr Poberezny-Lynch for the Respondent has drawn to my attention the decision of Dadley v Commissioner of Fire and Rescue NSW [2022] NSWIRComm 1025, which may be authority for the proposition that an application for a matter to be dismissed on the basis it was frivolous or vexation was an interlocutory step before an arbitration, such that it may be that the exercise of the right under s 173 would not preclude me from hearing the Respondent's notice of motion.
3. In light of the fact that Mr Thakur has sought additional time to seek instructions from his client, the adjournment that I propose to grant will also provide the Respondent with an opportunity to consider her position in the event that the applicant does decide to exercise her rights pursuant to s 173.
4. Mr Thakur indicated that, in any event, his client wished that I deliver my reasons for deciding not to recuse myself. Before delivering these reasons, I enquired of Mr Thakur whether there was any additional submissions he wished to make that might dissuade me from the course I had already otherwise indicted I proposed to take. Mr Thakur indicted that everything had been mentioned in the documents filed and the Applicant otherwise reiterated the matters set out in those documents.

1. The test for determining whether a judge or commissioner should disqualify himself or herself by reason of apprehended bias is the objective "double might" test: "Whether the 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 [emphasis added]": Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner and Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; applied in Michael Wilson & Partners Ltd v Nicolls (2011) 244 CLR 427; Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289; and QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 at [50], [175], [292]; distinguished in British American Tobacco Australia Services Limited v Lawrie (2011) 242 CLR 283; and see also Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71; Barakat v Goritsas (No 2) [2012] NSWCA 36; and Isbester v Knox City Council ([2015] HCA 20; 2015) 255 CLR 135.
2. Some 23 principles to be applied when determining a disqualification application on the grounds of apprehended bias were helpfully set out by the Court of Appeal (Bell P, Basten and Simpson JJA) in Polsen v Harrison [2021] NSWCA 23 at 46. I have had regard to those principles. In particular, I have had regard to the following principles numbered 12, 14 to 16 and 21 to 22 in the court's judgment:

"12. Interventionist comments or conduct by a judge will not unilaterally create an apprehension of bias in the mind of the reasonable lay observer who is taken to understand that such interventions are often motivated by the judge's desire to understand the evidence and to advance the trial process;

...

14. there is to be attributed to the fair-minded observer a broad knowledge of the material objective facts as ascertained by the court and the 'actual circumstances of the case', as though the observer was sitting in the court;

15. the fair-minded lay observer is taken to know the nature of the decision, the circumstances which led to the decision and the context in which it was made;

16. the context which must be considered includes the legal statutory and factual context in which the decision is made and 'the totality of the circumstances', although the fair-minded lay observer will not be taken to have a detailed knowledge of the law or legal principles;

...

21. The fair-minded lay observer would not reasonably apprehend bias on the part of a judge from a short emotional exchange taken out of context and weighed in isolation;

22. The fair-minded lay observer will have regard to the cumulative effect of comments made by a judge and not to particular individual statements removed from their context."

1. Judges are required to discharge their professional duties unless disqualified by law. They should not accede too readily to applications for disqualification otherwise litigants may succeed in effectively choosing the choice of judge, influencing the choice of judge in their own case: see JRL; Ex p CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; Attorney-General of New South Wales v Lucy Klewer [2003] NSWCA 295; Ebner v Official Trustee, above at [19] to [23]; and Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272.

1. The first paragraph of the 24 pages of submissions attached to the Applicant's notice of motion reads as follows:

"This submission supports the Applicant's Notice of Motion seeking, among other relief, to set aside the Procedural Ruling of the Commission, dated 15 April 2025. This ruling follows a series of procedural steps in a matter concerning allegations of workplace discrimination and victimisation. The Applicant contends that both the conduct of the proceedings and the substance of the Commission's decision resulted in multiple breaches of procedural fairness, a misapplication or legal standards and apprehended bias. The Applicant seeks relief, including the recusal of the current Commissioner J McDonald, the setting aside of the decision, the reinstatement of the Applicant's prior application and any further orders deemed necessary to ensure a fair and just process in accordance with s 3(a) of the Industrial Relations Act 1996 (NSW)."

1. The so-called "Procedural Ruling of the Commission, dated 15 April 2025" is my interlocutory decision dismissing the Applicant's motion seeking an order that the Respondent comply in full with what was described as the "Commission's direction made on 20 March 2025": Kumari and State of New South Wales, NSW Treasury [2025] NSWIRCom 1015 (Decision).
2. I dismissed the motion on the basis that, inter alia, I had not in fact made a direction on 20 March 2025 but, rather, had made a suggestion, at best a recommendation, for the Respondent to respond to correspondence sent on behalf of the Applicant.
3. The Applicant made an application out of time for leave to appeal and appeal against my Decision. The Applicant sought an extension of time to seek leave to appeal and a stay of my Decision. That application was heard and dismissed by President Taylor five days ago, on 15 May 2025: Kumari and State of New South Wales, NSW Treasury [2025] NSWIRComm 13.
4. Despite failing in her attempt to have the Decision set aside, it seems that this is again what the Applicant is attempting to do with the notice of motion submitted this morning and the thrust of the submissions are directed toward attempting to demonstrate that the Decision is wrong and infected by error. Such an approach appears to be entirely misconceived, but that is not a matter with which I am presently concerned. What I have to presently consider is whether there is a sound basis to conclude that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions I am required to decide.
5. To the extent that the Applicant contends that a fair minded observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the issues in dispute in these proceedings because I have made an earlier interlocutory decision during the course of conciliation against the Applicant, but which did not involve any matters of credit or any matters that affect the applicant's rights, is not a sufficient reason for me to disqualify myself.
6. The mere fact that a judge or a commissioner has made an adverse decision or decisions against a party is not a sufficient reason for the judge or commissioner to disqualify himself or herself from dealing with subsequent applications concerning the same party. The test for apprehended bias is concerned with prejudice and impartiality, not an individual litigant's expectations or predictions as to the outcome of the case: Mohareb v State of New South Wales (No 2) [2024] NSWCA 69 at [11]. That is so, as the Court of Appeal in Mohareb confirmed, even where the party moving for disqualification asserts, as the Applicant does in this case, that the earlier decision is infected by numerous errors. That may include assertions of a denial of natural justice and procedural fairness, although of course the nature of the decision, the circumstances which led to the decision and the context in which it was made will still be relevant.
7. The submissions contain some paragraphs that refer directly to apprehended bias (the balance being principally directed to alleged errors in the Decision). At para 4.2.4, under the heading "Premature findings and apprehended bias", extracts from the transcript of 4 April 2025 are set out, containing remarks I made that day that the Applicant submitted reflect "a premature conclusion on the merits of the case". Those remarks were made during an on-the-record conciliation, in the general context of me attempting to understand the Applicant's case. They fall squarely within principle 12 identified by the Court of Appeal in Polsen v Harrison.
8. At 4.4 of the submissions, under the heading "Apprehended bias - tone and conduct of Commissioner", the Applicant referred to extracts of transcripts of proceedings on 20 March 2025, 4 April 2025 and 15 April 2025, and submitted that I made a series of remarks "that gave rise to a reasonable apprehension of bias and imposed an unfair procedural burden on the applicant".
9. I do not propose to read out the remarks, as they are extensive. However, the Applicant submitted that such remarks "caused confusion, distress and concern over the fairness of the proceedings". Again, a reasonable lay observer will be taken to understand that interventions are often motivated by the judicial officer's desire to better understand the case being put and to advance the conduct of the proceedings. This is precisely what I was attempting to do, as the President acknowledged in his decision dismissing the applicant's application for an extension of time for leave to appeal, at [39] of his decision.
10. I also note that the Applicant's legal representative attended on each occasion before me via AVL, I understand from India. The audio on each occasion has been difficult to hear. There has been distortion and lag. To the extent that I spoke over the Applicant's solicitor, that is regrettable and I certainly apologise.
11. As a general observation, the submissions appear to confuse the Applicant's substantive application for relief from victimisation about which no decision has been made and the Decision, which merely concerned the provision of correspondence by the Respondent to the Applicant in the course of the conciliation which I considered might assist to resolve the matter, which ultimately has no bearing on the Applicant's substantive claim.
12. The making of the Decision has no impact on my approach to the substantive claim made in this matter, which I will, of course, consider with an open mind.

1. In the circumstances, I decline to recuse myself by reason of apprehended bias. That part of the Applicant's motion seeking that I be recused from any further involvement in the proceedings due to apprehended bias is dismissed.
2. However, as I have indicated, the Applicant has a statutory right pursuant to s 173 of the Industrial Relations Act 1996 to request that a different member of the Commission exercise arbitration powers. This is so because I attempted conciliation of the matter, although I observe in this instance the conciliation proceeded entirely on the record and I was not made privy to any confidential or privileged information. As I have already indicated, the Applicant's solicitor has requested a period of time in order to obtain instructions as to whether the Applicant wishes to exercise her rights pursuant to s 173 and, in the circumstances, I am prepared to allow that time.