Lawrance v President, Administrative Appeals Tribunal

REASONS FOR JUDGMENT 1 The applicant applies by notice of motion dated 8 March 2005 to have me disqualify myself from dealing with this matter on the ground of bias. The applicant alleges a reasonable apprehension of bias and actual bias. The grounds of the application are set out in an affidavit of the applicant sworn 8 March 2005 which includes an annexed affidavit of 7 March 2005 which I read. 2 The grounds are stated in [2] of the affidavit of 8 March 2005 in which the applicant says she believes that it is more probable than not that I will not bring an impartial or unprejudiced mind to the resolution of the questions involved. She says in [3] of the affidavit that she holds this apprehension because of the decisions and orders made by me in matter N1642 of 2004 on 9 December 2004 and 10 February 2005, as well as orders which I made and my conduct in relation to matter N55 of 2005. 3 I will set out a very brief chronology for the record. 4 Matter N1642/2004 was before me for directions on 9 December 2004. On that date I ordered the applicant to file and serve any amended application on or before 30 December 2004 and I stood the matter over for further directions on 10 February 2005 at 9.30 am. 5 On 13 January 2005 the applicant filed the present proceedings in matter N55 of 2005 and made an application for an urgent hearing on her application for interlocutory relief, being an injunction preventing Senior Member Kelly of the Administrative Appeals Tribunal ("AAT") from making a decision or taking any further steps in "The CRS matter of N55/2004 in the Administrative Appeals Tribunal". 6 On 25 January 2005 my associate wrote to Ms Lawrance. The letter included the following paragraph in relation to the applicant's request for an urgent hearing:- "I note the court is currently in vacation. In accordance with Federal Court Practice Note 7, his Honour seeks a concise affidavit detailing your precise reasons for seeking a hearing prior to 10 February 2005. This affidavit should include particulars of the decision or further steps of Senior Member Kelly that you seek to have restrained." 7 There was no reply to this letter. 8 On 10 February 2005, matters N1642/2004 and N55/2005 were before me for directions. In matter N1642/2004 I gave the applicant leave to discontinue the proceedings and I ordered her to pay the costs of the proceedings. In matter N55/2005 the applicant made an application for interlocutory injunctive relief. I dismissed the application for injunctive relief and gave an ex tempore judgment. I listed the matter for final hearing on 2 March 2005 at 2.15 pm. 9 Apparently on or shortly after 10 February 2005 the applicant filed an application for leave to appeal from my order refusing interlocutory injunctive relief. That application was filed in the Registry and was not listed before me. I am told today that it has been listed for hearing on 11 April 2005 before another judge. 10 On 8 February 2005 my associate received a telephone message from Ms Smith who is the fourth respondent in these proceedings (N55/2005). 11 On 11 February 2005 my associate spoke to Ms Smith in the United States of America and my associate made a file note of the conversation. The file note of the conversation was sent to the parties in the proceedings (N55/2005) on 15 February 2005 by a registrar of the court. 12 On 2 March 2005 the proceedings were listed before me for final hearing. The applicant failed to appear at the hearing. I did not dismiss the proceedings but I made orders and gave an ex tempore judgment. 13 It is inappropriate that I say anything further in relation to what is contained in Ms Lawrance's affidavits or in relation to what she has put to me this morning other than to say that I have considered the tests for reasonable apprehension of bias and actual bias and I do not consider that they are satisfied. 14 The test for reasonable apprehension of bias was recently reaffirmed by the High Court in re Refugee Tribunal; ex parte H (2001) 179 ALR 425 at [27] the test for apprehended bias in relation to Curial proceedings is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. 15 In re JRL; ex parte CJL (1986) 161 CLR 342 at 352, Mason J said: "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." 16 I have taken these comments into account and I do not consider that a fair‑minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the questions to be decided in these proceedings by reason of any of the matters that have been put to me by Ms Lawrance. 17 The test for actual bias was summarised succinctly by Von Doussa J in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36]. His Honour said:- "Actual bias arising from prejudgment involves a state of mind by the decision-maker whilst exercising the decision-making power that is so committed to a conclusion already formed to be incapable of alteration whatever evidence or argument may be presented." 18 His Honour referred to the observations of the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [71]-[72]. 19 I do not believe and indeed I have not formed any conclusion about any of the issues which fall for resolution in the proceedings. I do not have a mind which is blank, but I am open to persuasion on all of the issues which will fall for consideration. 20 I have considered the further matters which were put to me this morning by Ms Lawrance, I have also considered all of the authorities to which she referred. 21 For the reasons which I have set out above, the order that I will make is that the motion be dismissed. 22 I propose to list the matter for hearing on 3 June 2005 to have determined the matter referred to in [4] and [5] of the orders which I made on 2 March 2005. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J.