Magazzu v Business Licensing Authority [2001] VSC 5

Supreme Court of Victoria|2001-01-31|Before: Eames J

For the reasons which I have discussed, the submissions made by counsel for the Authority amounted to a request that the Tribunal reconstitute itself, or else, amounted to support for Tribunal's intimation that it proposed to do so. Even if the submissions of counsel did not constitute such an application, the Tribunal was entitled of its own volition, through one of its members, to raise the question of its reconstitution, provided that notice was given to the parties of its consideration of the issue and the parties were permitted to make submissions. Thus, even if the question was raised at the instigation of the Tribunal then because it gave the parties the opportunity to be heard, before it finally resolved to adopt that course, s.108 was complied with. Although the terms of the order made by Kellam J are incorrect insofar as they state that the plaintiff had applied only for the disqualification of "a member" of the Tribunal, rather than all members, nothing turns of that error, because once the Tribunal, in compliance with s.108, had determined that it should be reconstituted, it was then mandatory, pursuant to s.108(3)(b), for the President to reconstitute the Tribunal, as was done. In any event, the affidavit of Mr Levine makes it clear that the Tribunal was well aware that the application which had been made was for the disqualification of all members, not just Mr Reid, but it rejected that application.

GROUND 3: PERMITTING MR REID TO FURTHER PARTICIPATE IN THE HEARING.

A second complaint raised in ground 3 is that the Tribunal, having already decided that Mr Reid was tainted by apprehended bias, and that he should not sit on the Tribunal, nonetheless sat with him as a member for the purpose of deciding the question whether it should be reconstituted in consequence of Mr Reid's withdrawal. Mt Tehan submitted that once it was announced that, on account of apprehended bias, Mr Reid would withdraw from the Tribunal it was entirely inappropriate that he continue to sit for the purpose of considering whether s.108 should be applied.

The terms of s.108(3)(a) expressly stipulate that an application to reconstitute must be considered by the Tribunal "as presently constituted". Thus, if Mr Reid withdrew from the Tribunal the remaining two members could not consider and decide whether it was appropriate that he be replaced. Mr Tehan submitted that the clear terms of that subsection could not be applied where the reason for reconstitution related to a question of apprehended bias of a member, because once the announcement was made that Mr Reid was standing down from the Tribunal, that decision took effect immediately, so that the Tribunal, as constituted by three members, no longer existed. Even if that was not so, it was contrary to principles of natural justice that the Tribunal as previously constituted should further deal with any matter concerning the case, so Mr Tehan submitted.

In my opinion, the announcement that Mr Reid was withdrawing from the Tribunal did not operate immediately so that he thereupon ceased to be a member of the Tribunal. He remained a member until the Tribunal ceased to sit with him as a member or until it was reconstituted. In my view, it is fanciful to suggest that the continued presence of Mr Reid for the purpose of enabling consideration as to reconstitution tainted the Tribunal with apprehended bias, even if Mr Reid participated in the deliberations of the Tribunal as to whether it should be reconstituted. But were I wrong as to that, then the obligation imposed by s.108(3) collided with what Mr Tehan submitted was the requirement of natural justice, namely, that the Tribunal immediately cease to function, at all, once it was announced that Mr Reid would retire. In other words, even if it was open to the Tribunal to reject the application that all of its members be disqualified from sitting, Mr Tehan's submission was that the practical effect would be the same because once the announcement was made that Reid, alone, would retire the Tribunal ceased to have three members and could not consider whether it might be reconstituted.

The contention raised by Mr Tehan requires consideration of the doctrine of necessity which has an important and well recognised application in some circumstances where there has been an apparent denial of natural justice before a tribunal.

In Ebner v Official Trustee in Bankruptcy[3], the High Court, discussed the application of principles of natural justice, in particular as to allegations of apprehended bias, as they affected non judicial tribunals. In the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ their Honours held, at par [4], that: "The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making". To illustrate that point their Honours cited with approval a passage from the judgment of Mason CJ and Brennan J in Laws v Australian Broadcasting Tribunal[4] as follows:

"The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. Those rules may be excluded by statute: Twist v Randwick Municipal Council[5]; Salemi v Mackellar [No 2][6]; FAI Insurances Ltd v Winneke.".[7]

In discussing the rule of necessity in Laws Deane J was in general agreement with Mason CJ and Brennan J. Deane J held:

"That rule operates to qualify the effect of what would otherwise be actual or ostensible disqualifying bias so as to enable the discharge of public functions in circumstances where, but for its operation, the discharge of those functions would be frustrated with consequent public or private detriment. There are, however, two prima facie qualifications of the rule. First, the rule will not apply in circumstances where its application would involve positive and substantial injustice since it cannot be presumed that the policy of either the legislature or the law is that the rule of necessity should represent an instrument of injustice. Second, when the rule does apply, it applies only to the extent that necessity justifies[8]."

In my opinion, the rule of necessity discussed in the passages above appropriately may be applied to the requirement of s.108 that the Tribunal "as presently constituted" consider the question of reconstitution. The exceptions discussed by Deane J do not apply. In considering the question of reconstitution pursuant to the terms of sub section (3) the Tribunal, having rejected the contention that all members must be disqualified, was acting in compliance with the legislative provision which compelled all present members to address the question of reconstitution. Even assuming that, having regard to the principles which I will later discuss, the continued presence of Reid on the Tribunal for the limited purpose of considering reconstitution would justify a complaint of apprehended bias against the Tribunal, (which I doubt to be the case) it was an instance of a breach of principles of natural justice of such inconsequence, in the circumstances, that the actions of the Tribunal would be excused by reference to the rule of necessity. The presence of Reid (who took no part in the discussion after the Tribunal returned to announce that Reid would withdraw) during the short period when the question of reconstitution was being discussed, could not, in my view, constitute "positive and substantial injustice" to the plaintiff.

GROUNDS 1 AND 4: SHOULD ALL MEMBERS HAVE DISQUALIFIED THEMSELVES?

The primary ground argued by Mr Tehan, which arises under both Grounds 1 and 4, was the contention that the Tribunal should have acceded to the application that it disqualify itself, and that rather than be content that one member, only, retired, the Tribunal was bound to have concluded that a reasonable apprehension of bias applied to and disqualified all members of the Tribunal.

The principles of natural justice do not differ significantly as between what might be expected of judges of a court and persons hearing appeals before a quasi judicial tribunal[9], and the test as to whether conduct amounts to actual or apprehended bias, is the same for tribunals as for courts of law[10]. However, what justice requires in a given case may vary according to the circumstances of each case, including the nature of the inquiry which is being conducted by the tribunal, the nature and functions of the tribunal and the relationship between the tribunal and the person to whom procedural fairness must be accorded [11].

As to the functions of the Tribunal, s.97 of the VCAT Act requires that it act fairly and according to the substantial merits of the case, and by s.98(1)(a) it is bound by the rules of natural justice. At the same time, the Tribunal may inform itself as it sees fit (s.98(1)(c)) and must conduct the proceeding with as little formality and technicality and must determine each proceeding "with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit"[12]. The Tribunal is given power to conduct proceedings, where it deems it appropriate, by informal evidence gathering processes, such as by telephone or video links (s.100(1)) and may, with the consent of the parties, conduct proceedings entirely on the basis of documents (s.100(2)). The Tribunal may refuse to accept additional evidence from a party when it considers that sufficient evidence has already been received (s.102(2)) and whilst evidence may be taken on oath or by affirmation it need not be taken in that manner (s.102(3)). As noted earlier, the Tribunal members were not all required to hold legal qualifications.

As these provisions demonstrate, the Tribunal system created by the VCAT Act places an emphasis on prompt, efficient and inexpensive disposition of proceedings, and its proceedings are of a more informal nature that those of a court.

In Ebner v Official Trustee in Bankruptcy[13] the High Court most recently considered the question of bias and reasonable apprehension of bias and in their joint judgment Gleeson CJ, McHugh, Gummow and Hayne JJ held as follows, in par [6] (omitting citations):

"6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

As their Honours made clear[14], subject to the need to accommodate differences between court proceedings and proceedings before other kinds of tribunals, that test would be as applicable to this tribunal as to a court. The test is concerned with the question whether the tribunal might not decide the case impartially, not whether the tribunal will decide the case adversely to the person complaining of bias[15]. In determining whether there were grounds for a reasonable apprehension of bias I am not bound to place weight on any opinion expressed by the impugned tribunal[16]. In this case no actual statement was made by the Tribunal with respect to the proposition that the two remaining members may have themselves been tainted by apprehended bias, but it must follow from the fact that the Tribunal refused to disqualify all of its members that the members rejected any such suggestion.

The position of Amor was significant in that not only was he to be later called as a witness before the reconstituted Tribunal, he acted, in effect, before the Tribunal, in the role and with the relationship to counsel for the Authority, in its opposition to the plaintiff's application, as would the informant in a police prosecution. Furthermore, Amor had written reports to the Authority in the course of the investigation of the plaintiff's application for a licence which were adverse to the interest of the plaintiff. Amor's position in the conduct of the case was similar to that of Smith, the manager of greyhound races and member of the Greyhound Racing Control Board in Stollery v Greyhound Racing Control Board[17]. In that case, however, Smith, having acted as informant against Stollery, and having given evidence to the Board, remained in its presence (and in the absence of Stollery) while the Board deliberated as to its findings on a complaint of misconduct against Stollery. Barwick CJ noted that Smith stood in a special relationship to Stollery and to the Board in that he was under a duty to report to the Board and was personally involved in the incident under investigation. Barwick CJ held that he was in the position of "Accuser".

The Chief Justice adopted the approach of Lord Hewitt L.C.J in R v Sussex Justices; Ex parte McCarthy, who held[18] that in such cases the issue is not to determine what actually was done by the person whose presence at the relevant tribunal is said to create an apprehension of bias, but to determine what might appear to be done. Lord Hewitt held that: "Nothing is to be done which creates even a suspicion that there has been improper interference with the course of justice". Applying that test, Barwick CJ concluded that Smith's presence during the Board deliberations would produce the result that "a reasonable man could very properly suspect that the clear opportunity which Mr Smith had for influencing the decision of the Board might very well have been used"[19]. In the present case it was accepted before the Tribunal, no doubt having regard to the timing in which it occurred, among the other circumstances, that the contact between Reid and Amor necessitated Reid's withdrawal. But was Reid's presence on the Tribunal both before and after his contact with Amor such as to create in the mind of a reasonable observer the suspicion of improper interference with the decision-making of other members of the Tribunal[20]?

Whilst the position of Amor vis a vis the Authority was similar, during the conduct of its own inquiry into the licence application, to that of Smith during the disciplinary hearing before the Greyhound Racing Board in Stollery, he had no similar relationship to the Tribunal. Whilst Amor continued to play a role akin to informant in his relationship to counsel for the Authority in its opposition to the plaintiff's review proceedings under the VCAT Act, Amor had no relationship to the Tribunal itself, apart from being a witness before it.

It should be noted that bias was neither alleged nor proved against Reid. What was submitted was that there was a reasonable apprehension of bias. It was specifically stated by counsel for the plaintiff, in submissions before the Tribunal, that actual bias was not being alleged, even as against Reid. The critical question is whether in all the circumstances of the case the remaining two members of the Tribunal were placed in such a position by virtue of the conduct of Reid, which led to the withdrawal of Reid, that the fair minded bystander might have entertained a reasonable apprehension of bias as against the remaining members of the Tribunal.

In the joint judgment in Ebner, their Honours held, at par [7]:

"7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

In the present case there was no attempt made to go behind the oral or written reasons for decision which were articulated by the Tribunal, so as to evaluate what might have been any unstated factors which influenced the decision. In his affidavit, nothing is said by Mr Levine as to whether Reid, before his departure from the Tribunal, had made any comment to the other members which might have tainted them with any bias which he might have held in favour of the witness Amor and/or against the plaintiff.

The joint judgement in Ebner continued, in par [8]:

"8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that the judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed".

Mr Tehan acknowledged that in the present case it was difficult to articulate the logical connection between the departure from proper conduct in this case - namely, the fact that Reid had spoken to Amor and having offered, then gave him a lift back to the police station - and the feared deviation from impartial decision-making by a tribunal which was to be no longer constituted with Mr Reid as one of its members. Mr Tehan submitted that a reasonable observer might conclude that the conduct of Reid would have tended to enhance the standing of Amor in the eyes of the other members. Furthermore, he submitted, the observer might suspect that Reid may have also made comments to the other members, in private, which reflected a favourable attitude towards Amor and, thus, undermined the credibility of the plaintiff.

Mr Tehan submitted that among the factors which applied and which made the connection between the admitted conduct of Reid and the feared departure from fairness in decision-making of the other members more real, here, was the fact that whilst he had been present (and before Reid had made inappropriate contact with Amor) Reid had firmly questioned the plaintiff, in a manner amounting to cross examination and which strongly suggested that he disbelieved the evidence of the plaintiff.

There are, indeed, a number of passages in the transcript of the plaintiff's evidence before the Tribunal where Reid's incredulity at the answers being given seems apparent. It must be noted, however, that Reid was not alone in his apparent incredulity. The two other members also questioned the applicant in a similar way, and with a similar indication that they disbelieved the plaintiff's evidence. It was unnecessary in the appeal before me to consider whether the answers of the plaintiff might reasonably have attracted such disbelief, but it was not argued that the Tribunal members' responses to the evidence, and the eventual adverse finding of the Tribunal, were so unreasonable as to manifest, of themselves, apparent bias by the Tribunal members.

As Mr Tehan pointed out, the credibility of the plaintiff was very important if he was to succeed in his application. In the decision which was made on 3 August 2000, the Tribunal, as reconstituted, noted that the Authority had contended that it had been a false assertion by the plaintiff that he had carried on the business prior to 13 June 1995. If he had not done so then he was ineligible to be granted a licence under s.69 of the Prostitution Control Act. It was contended, in effect, that he was merely a front person for a man named Harvey, a person who had been convicted for the offence of child prostitution and was thus ineligible for a licence. The Authority contended that Harvey (among others), had himself run this and other brothels at the relevant time (and continued to do so or to be the beneficial owner), and had adopted that subterfuge in order to overcome the licence requirements imposed by the new legislation.

At various points in the reasons for decision of the reconstituted Tribunal its members said of the plaintiff's evidence that it was "unpersuasive" and was "confusing and variable", and the Tribunal said that, "We believe that the Applicant obfuscated and deliberately gave vague and contradictory evidence". The Tribunal held that the plaintiff was not a person of good repute, having regard to character, honesty and integrity, as required by s.38(1)(a) of the Prostitution Control Act.

As noted above, for the application for disqualification of all members of the Tribunal to have succeeded, it must first have been established what the conduct was that might have led the fair minded observer to conclude that the Tribunal as a whole, and not merely Reid, might not reach a conclusion based on the legal and factual merits of the case before it. Put another way, the question was, and remains, whether a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question which it was required to decide[21]. Secondly, it must be shown that there was a connection between the conduct of Reid - in speaking to Amor and giving him a lift - and the feared result that the Tribunal, even if reconstituted, might not decide the case on its legal and factual merits, with the consequence that a fair minded observer might reasonably have an apprehension of bias in the decision-making process.

Mr Tehan submitted that the fact that the credibility of his client was so important to the outcome of his review before the Tribunal meant that very little would be required to be done by Reid to raise the suspicion that the decision-making process of the other members of the Tribunal had been tainted by his conduct. The mere fact that he had demonstrated a friendship with Amor was sufficient to suggest to the other members that that fact should be taken into account when determining the credibility of the plaintiff, rather than their decisions being based, solely, on the evidence before them.

One issue which arose in the proceedings concerned the contention of the plaintiff that although there were two adjoining brothel premises using the same reception area they were not run by the same person. Insofar as the layout of the premises suggested otherwise, the plaintiff contended that his solicitor had written to the Licensing, Gaming and Vice Squad seeking any advice as to how the adjoining businesses should be structured, and had received no reply. The two businesses had been conducted, in such manner, for a considerable time, to the knowledge of the police, the plaintiff said, and no criticism had ever been ventured as to the appearance which might have been given that they were conducted by the same person. Had that suggestion been made, then, so the plaintiff contended to the Tribunal, steps would have been taken to make the position clear. The Tribunal said in its reasons that the plaintiff, by his evidence, inferred that "if there was any confusion (or even any breaches of the Act) the blame lay at the feet of the (Authority) or Victoria Police for not giving timely responses to requests for advice".

Mr Tehan submitted that having regard to the fact that the evidence of the plaintiff amounted to an attack, as he described it, on the conduct of the police, and having regard to the fact that the credibility and character of the plaintiff was very much in issue the association and apparent friendship between a member of the Tribunal (who was himself a senior police officer) and a police officer who was in effect responsible for the conduct of the case in opposition to the plaintiff's application - and who was to be a witness in the case - was a very serious instance of apprehended bias, and the apprehension of bias must, in those circumstances taint all members of the Tribunal, not just Mr Reid. Having regard, too, to the fact that all members of the Tribunal adopted such a critical manner of questioning, the fair minded bystander would be concerned that such hostility may have been a product of bias of Reid, Mr Tehan submitted. Furthermore, the fact that Reid did not announce at the outset of the hearing, or at any time, that he was a "friend" of Amor, and the fact that he sat silent while the application was made, and did not volunteer, publicly, any explanation for his conduct, nor volunteer that he had not merely offered a lift to Amor (as the Chairman had announced) but that Amor had actually accepted the lift, were factors which highlighted the seriousness of this instance of apprehended bias, Mr Tehan submitted.

As I have noted, it was submitted in the case before me that Mr Reid had failed to disclose a friendship with the witness, Mr Amor. There is, in fact, no evidence that there was a friendship, other than merely that the two knew each other through membership of the police force. That could hardly be a matter of surprise. Mr Reid was appointed to the Tribunal specifically because he held the rank of Inspector of Police. The Act provided for a person of such description to be a member of the Tribunal. In those circumstances it could not be a matter of surprise to any party that Mr Reid may have known police officers who might be called as witnesses in such an application.

Mr Reid disqualified himself from the Tribunal, but the mere fact that he knew Amor, and did not disclose that fact, would not, in my opinion, have justified a suspicion of bias being held with respect to him by a fair minded observer, let alone with respect to the remaining two members of the Tribunal. In Ebner, at par 73 in the joint judgment, the High Court dealt with the question whether the trial judge in that case should have disclosed to the parties, prior to delivery of judgment, that after the evidence had been completed and while the case was reserved for judgment he had, as beneficiary under a will, acquired shares in the bank which was one of the parties. The court held that his failure to make such disclosure was of no legal consequence and that he had a clear duty to deliver his judgment. The court added: "His failure to make disclosure did not deprive the appellants of an opportunity to advance any argument or inform him of any facts which would have given rise to a contrary conclusion. His silence could not reasonably support an inference of want of impartiality". In the present case, Reid's failure to disclose that he knew Amor, likewise, did not deprive the plaintiff of the opportunity to advance any argument in support of his case, nor could it reasonably support an inference of bias.

Mr Tehan placed emphasis on the decision in R v Lilydale Magistrates' Court: Ex Parte Ciccone[22], an instance where a magistrate travelled to a view, when accompanied by counsel for one side only, in a vehicle was driven by a witness in the case. McInerney J held that such conduct clearly breached the canons of conduct for judges and legal practitioners which required that the judicial officer not act in such a way as to create a suspicion of there having been private communications with one of the parties. His Honour considered that the same principle applied to quasi judicial tribunals[23]. The primary difference between the circumstances of that case and the present relates to the statutory qualification for membership of the Tribunal in contrast to the position of the magistrate in conducting judicial proceedings. Whilst the principles stated by McInerney J are applicable in the present case, especially with respect to the position of Reid, they need to be balanced against the considerations discussed by Brennan, Gaudron and McHugh JJ in Polites[24] where their Honours, having considered the test for bias which had been applied in Livesey v New South Wales Bar Association[25], observed:

"Again, the test in Livesey cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal's powers exercised. Qualification for membership cannot disqualify a member from sitting[26]."

In Re Finance Sector Union of Australia Ex Parte Illation Pty Ltd[27] Deane, Toohey and Gaudron JJ considered the position of a Deputy President of the Industrial Relations Commission and noted as to principles of law concerning bias "the precise practical requirements of that principle vary from case to case. They will be influenced by the nature, function and composition of the particular tribunal". Their Honours observed that the High Court had repeatedly stressed the need for caution before concluding that a member of a statutory tribunal should be prevented from discharging his or her duties by reason of a claimed apprehended bias. Their Honours emphasised that a basis for such disqualification must be established, over and above the mere fact that the tribunal member by virtue of his or her experience had some knowledge of the facts, or of the parties involved in a dispute. In rejecting the allegation of apprehended bias, their Honours observed that the members of the Industrial Relations Commission were required to have familiarity with the industry in which the particular dispute arose, and that meant that the members would have familiarity with facts relevant to any dispute, and with one or more of the parties. In Re Polites: Ex Parte Hoyts Corporation Pty Ltd[28], Brennan, Gaudron and McHugh said of a Deputy President of the Commission, that such a person is appointed on account of his or her background in the industry and is not disqualifed because he or she has a measure of knowledge or is likely to have a particular attitude to the manner in which the Commission should exercise its powers. Their Honours adopted the words of the Privy Council in Labour Relations Board of Saskatchewan v John East Iron Works Ltd[29], to the effect that the fact that such members held knowledge and information acquired extra judicially profoundly distinguished such a body from a court, and did not mean that they were precluded by reason of apprehended bias from performing their statutory functions. In my view, similar considerations apply here. Both Reid and Ms Snow were appointed because of their experience and past association with the industry. It may well have been that Ms Snow also knew Amor, or knew of him. Indeed, she may also have had some awareness of the plaintiff and those said to be associated with him. It would not be surprising if that were so; but the intention of the Parliament, as reflected by the legislation, was that such awareness of people in the industry would be a qualification, not a disqualification (subject, always, to instances where past awareness involved bias as to witnesses or applications, or prejudgment of the particular issue for determination[30]).

In Laws, the Broadcasting Tribunal was proposing to hold an inquiry into allegations that a radio station, and its presenter, had breached the conditions of its licence. Three members drawn from the Tribunal had earlier conducted a preliminary inquiry and reported to the Tribunal adversely to the appellant, who had then issued defamation proceedings which were being defended with a defence of truth. In Laws[31] Deane J, dissenting, on the facts, but in a passage not at odds with the principles of law adopted by the majority, observed that acquaintanceship with or preconceived views about a party which would disqualify a judge might not disqualify a member of a tribunal which was entrusted with functions requiring a continuing relationship with persons engaged in an industry, so that in performing its functions it was unavoidable that the tribunal and its members will have an ongoing relationship with licensees under the Act and will also have recurrent contact and dealings with at least some of the individuals in the industry. Indeed, his Honour held, even if the members of the tribunal held general views about members of the industry or individuals, as opposed to prejudged opinions as to the very issue involved in the hearing, that would not necessarily constitute disqualifying bias, given "the need to adjust the content of the requirements of procedural fairness to what is appropriate to the circumstances of the particular case[32]."

The critical question in Laws, as in the present case, however, was not whether some members of the tribunal were tainted by apprehended bias, but whether all members of the tribunal were disqualified by virtue of the taint attached to that minority of members. Deane J concluded that in the circumstances of the case the decision of the earlier panel, although comprised of only three members of the Broadcasting Tribunal would lead to an apprehension of bias against all members because, among other matters, the earlier panel had reported its findings to the Tribunal as a whole (which had adopted them). The majority in Laws held that so long as the members of the earlier panel were excluded from subsequent panels sitting on the issue, different panels could be allocated to the further inquiry. The general discussion of Deane J as to the nature of the relationship between a statutory tribunal and the members of the industry with which it is concerned are apposite in the present case, and merit quoting at length. His Honour held [33]:

"In most cases where a statutory tribunal can be validly constituted by some only of its members, the actuality or the appearance of disqualifying bias on the part of a particular member or particular members will affect those members only and will not taint the tribunal as a whole. If, for example, the actuality or appearance of bias on the part of a particular member or particular members results from a relationship or activities unconnected with membership of the relevant tribunal, there is not, without more, any reason in fairness, principle or common sense why the other members of that tribunal or the tribunal itself should be affected or disqualified. Even where the actuality or the appearance of bias on the part of a particular member or particular members has resulted from the discharge of the relevant tribunal's functions, it will ordinarily be possible to say that neither the parties nor a fair minded, informed lay observer would entertain a reasonable apprehension that the tribunal as a whole was affected by the disqualifying bias of the particular member or members. The circumstances of a particular case may, however, be such as to give rise to a reasonable apprehension that the relevant tribunal as an institution is affected by disqualifying bias. One possible example of such a case is where the identity of the members of a tribunal who are involved in prejudgment of issues is effectively shielded by the institutional facade. Another possible example is where the circumstances are such as to give rise to a reasonable apprehension that all members of the tribunal are affected. Ultimately, the central question in the present appeal is whether the Tribunal, as an entity, is itself affected by the actuality or appearance of disqualifying bias in the conduct of the proposed inquiry."

In my opinion, it was not reasonably open to a fair minded and informed observer to apprehend or suspect that by virtue of the actions of Reid in offering, and then giving, a lift to Amor from the vicinity of the VCAT hearing to the police station that the other members of the Tribunal might not bring an impartial mind to the resolution of the question which the Tribunal had to decide. Nothing in what Reid did, might reasonably lead a fair minded observer to conclude that Reid may have prejudiced the other members of the Tribunal against the plaintiff's cause. Insofar as Reid's questioning of the plaintiff may have had a bearing on the assessment of the plaintiff's credibility in the eyes of the other members, that fact could not taint the other members with apprehended bias. The questioning occurred before the inappropriate contact with Amor was made by Reid, and even if the conduct of Reid might have led an observer to conclude that his questioning was motivated by bias (which was not, in fact, alleged in this case) the public questioning of itself could not give rise to an apprehension of bias as against other members, even if they were influenced by the questioning conducted by Reid.

As to the suggestion that the apprehension of bias was enhanced by virtue of the fact that Reid and the other members displayed incredulilty at the evidence of the plaintiff, the fact that members of a tribunal form tentative views which are adverse to a party, even if those views are formed strongly and quickly, does not demonstrate, of itself, that the tribunal is biased. As was observed in the joint judgment in Johnson v Johnson, when considering comments or questions made at an early stage of a trial by a judge, "The hypothetical observer is no more entitled to make snap judgments than the person under observation"[34]. The reasonable bystander is neither complacent nor unduly sensitive or suspicious[35]. It must be stressed that the principles of natural justice ensure that a party to proceedings is entitled to a hearing free from the suspicion of bias, not to a hearing free from expressions of disbelief or adverse findings by the tribunal as to his or her evidence.

There is no evidence, at all, that Reid sought to improperly influence the other members of the Tribunal in any private conversation, let alone that any such attempt might have led the Tribunal members to decide the case otherwise than on its merits. In my view, it would not be reasonably open for a fair minded observer to be suspicious that such conduct may have occurred by virtue of the fact that Reid offered, and gave, a lift to Amor. The fair minded and informed observer would not, in my view, be a person who had no regard, at all, for the integrity and sense of fairness of members of such a tribunal. It is to be borne in mind that the Chairman swore an affidavit as to the events, and did not suggest that any such conduct had occurred. The observer would have regard to the fact that the rejection of the application that all members should withdraw, of itself suggested that neither remaining member of the Tribunal considered that their decision-making had been in any way tainted by conduct of Reid.

In my opinion, the Tribunal was entitled to conclude that it was unnecessary that all members disqualify themselves from the further hearing of the Review, and the complaints raised by grounds 1 and 4 of the appeal are not made out.

I conclude, therefore, that the appeal should be dismissed. I will hear counsel for the parties as to costs

[2] See Vakuata v Kelly [1989] HCA 44; [1989] 167 CLR 568, at 572, per Brennan, Deane and Gaudron JJ; at 577-8, per Dawson J.

[5] [1976] HCA 58; (1976) 136 CLR 106, at 109-110, 118-119.

[7] [1982] HCA 26; (1982) 151 CLR 342, at 348-349, 362-363.

[8] Laws v Australian Broadcasting Tribunal, supra, at 96.

[9] City of St Kilda v Evindon Pty Ltd [1990] VicRp 67; [1990] V.R. 771, at 775.

[10] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, at 47, per Mason CJ and McHugh J.

[11] Stollery v Greyhound Racing Control Board, [1972] HCA 53; (1972) 128 CLR 509, at 519, per Barwick CJ.; see too Laws v Australian Broadcasting Corporation, supra, at 90, per Deane J, and National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 C.L.R. 296, at 311-312, per Gibbs C.J.

[14] [2000] HCA 63, at par [4].

[15] Re J.R.L; Ex parte C.J.L [1986] HCA 39; (1986) 161 C.L.R 342, at 352, per Mason J; adopted in Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 C.L.R. 78, at 86.

[16] Re Polites, supra, at 89, per Brennan, Gaudron and McHugh JJ.

[18] R v Sussex Justices; Ex Parte McCarthy [1924] 1 KB 256, at 258-259.

[20] The hearing of evidence resumed on 9 February 2000 - the day following the withdrawal of Reid - and the plaintiff completed his evidence before the newly constituted Tribunal. Amor also gave evidence. Written submissions were filed by counsel for the parties in about June 2000, and the decision was announced on 3 August 2000.

[21] Johnson v Johnson [2000] HCA 48; (2000) 74 ALJR 1380, at 1382, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

[24] Re Polites; Ex Parte Hoyts Corp Pty Ltd, supra, at 87

[25] Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288, at 293-294.

[30] See Laws v Australian Broadcasting Tribunal, at 91, per Deane J.

[35] Johnson v Johnson, at 1391, per Kirby J.

Civil and Administrative Tribunal Act 1998

Civil and Administrative Tribunal Rules 1998

Civil and Administration Tribunal Act 1998

At a glance

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Judgment (78 paragraphs)

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Legislation Cited (4)

Cases Cited (11)