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[2008] NSWADTAP 39
respondent. Application to disqualify Magistrate Hennessy for bias refused.
Mr McGuirk asked Magistrate Hennessy to remove herself from hearing his appeal because he believed she was biased against him. He pointed to Supreme Court proceedings he had started, earlier rulings that went against him, comments in the Tribunal's annual report that he thought referred to him, a complaint he made to the Chief Justice, and other procedural matters. The Magistrate examined each complaint against the legal tests for actual bias (a closed mind) and apprehended bias (what a fair observer would think). She found that none of the matters showed she had prejudged the case or that a fair person would think she could not be impartial. Previous decisions against a litigant or complaints do not automatically mean bias. The application was therefore refused and the hearing could continue with her presiding.
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In McGuirk v Attorney General of NSW [2008] NSWADTAP 39 the Appeal Panel of the Administrative Decisions Tribunal of New South Wales was convened to hear an appeal by Gerard Michael McGuirk against a decision of the Tribunal at first instance ([2007] NSWADT 280). At the very outset of the hearing on 18 March 2008 Mr McGuirk made an oral application that the presiding member, Magistrate Hennessy (Deputy President), disqualify herself on grounds of both actual and apprehended bias. He had made an identical application in a related appeal against the University of New South Wales heard earlier the same morning. Rather than rehearse the submissions again, counsel for the Attorney General consented to the Appeal Panel relying on the transcript of the earlier application together with subsequent written submissions.
The procedural history thereafter is itself instructive. The respondent filed submissions on 22 April 2008. Mr McGuirk was granted an extension to 30 May 2008, then further extended to 30 June 2008 after he advised he could not meet the earlier timetable. On 30 June 2008 he sent a facsimile asserting that because he alleged actual bias the presiding member must disqualify herself from even determining the disqualification application. Further correspondence on 1 July and 14 July 2008 repeated and expanded the bias allegations. The Appeal Panel ultimately determined the matter on the materials then before it, comprising the transcript, the respondent’s written submissions and Mr McGuirk’s additional letters.
Mr McGuirk advanced seven distinct matters said to found bias. These included the existence of Supreme Court proceedings (file 03007/07) in which he sought certiorari to quash earlier Appeal Panel decisions on procedural fairness grounds; the presiding member’s refusal on two occasions to refer questions of law under s 118 of the Administrative Decisions Tribunal Act 1997 (ADT Act) while later referring a different question at the request of a government agency; an assertion that Magistrate Hennessy was a “protégé” of Tribunal President Judge O’Connor and that the President had, in the Tribunal’s 2006/2007 Annual Report, indirectly “slandered” him by describing “querulent” litigants; the manner in which the Appeal Panel had dealt with his non-attendance at a directions hearing on 19 October 2007; a claimed “pattern” of decisions adverse to him when Magistrate Hennessy presided; a complaint Mr McGuirk had made to the Chief Justice about refusal to supply a transcript; and an occasion on which the presiding member had not adopted a comment made during hearing by non-judicial member Professor Blake.
Magistrate Hennessy determined the disqualification application herself, consistent with authority that there is no automatic disqualification ([4]). She addressed two preliminary issues: whether the Tribunal was obliged under ADT Act s 73(5)(b) to search for additional evidence supporting the bias claim (held: no), and whether a disqualification decision would apply to all matters involving Mr McGuirk (held: a disqualification would, but a refusal would not). Each of the seven grounds was then analysed at [14]-[33]. None, individually or collectively, was found to establish actual bias or to create a reasonable apprehension of bias in the eyes of a fair-minded lay observer. The application was refused at [34] and the orders formally recorded that outcome.
The presiding member’s reasoning is anchored in the orthodox Australian authorities on the bias rule. The Tribunal is expressly bound by the rules of procedural fairness, including the bias rule, by ADT Act s 73(2). The test for apprehended bias is that stated by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6] and [8]: whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question ([11]). Actual bias, drawn from Drummond J’s summary in Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 at 133-134, requires a prejudgment or a mind so affected by partisanship or hostility that it is not open to persuasion. The emphasis is on the state of mind rather than isolated procedural steps, and the bias may be subconscious but must be real.
Crucially, the member reiterated that judicial officers must not disqualify themselves too readily. Mason J’s observation in Re JRL; ex parte CJL (1986) 161 CLR 342 that pre-judgment must be “firmly established” was adopted, as was the Court of Appeal’s statement in Attorney General for NSW v Klewer [2003] NSWCA 295 at [15] that unsubstantiated allegations by disappointed litigants provide no basis for recusal ([12]). Against that legal framework each of Mr McGuirk’s seven points was measured and found wanting.
The Supreme Court proceedings were characterised as ordinary appellate rights available to any litigant; even a finding of procedural unfairness would not equate to bias on the part of the original decision-maker ([15]). The differential treatment of referral applications under ADT Act s 118 disclosed no “dodgy” conduct and permitted no adverse inference; without evidence that the earlier refusals were capricious or that the later referral was improper, the fact of different outcomes in different proceedings could not ground bias ([17]). The Annual Report passages, while acknowledging that Mr McGuirk believed they referred to him, contained no express identification; the presiding member’s role as Deputy President and her professional communications with the Deputy Ombudsman about managing querulent litigants were found to be no more than the ordinary discharge of her duties. A fair-minded observer would see nothing more ([20]).
The 19 October 2007 non-attendance was the subject of a detailed earlier decision (McGuirk v University of New South Wales (No 2) [2008] NSWADTAP 11 at [4]-[8]) which had concluded that Mr McGuirk had not provided an acceptable explanation. That conclusion was not itself evidence of bias. The absence of a transcript was explained by a technical recording failure; no adverse inference could be drawn ([25]). A “pattern” of adverse decisions was met by reference to Mason J’s warning in Re JRL that previous decisions generating an expectation of an adverse outcome do not found a reasonable apprehension of bias; one of the cited decisions had in fact been overturned on remitter in Mr McGuirk’s favour on a later occasion ([27]). A complaint to the Chief Justice was equated with the complaint to ICAC considered in Klewer; such a complaint does not automatically require disqualification ([30]). Finally, the failure to adopt Professor Blake’s comment during hearing was not bias; the Supreme Court had already held in related proceedings that the Appeal Panel is not bound to rely on a member’s general comments if they do not form the basis of the decision ([31]-[33]).
The presiding member emphasised that Mr McGuirk had been given ample opportunity to present his evidence and that it was not procedurally fair for the Tribunal to form a preliminary view and then invite further evidence if the existing case appeared weak ([8]). Viewed individually and cumulatively the matters did not meet the high threshold required. The application was therefore refused at [34].
Prior to this decision the law on bias in New South Wales tribunals was settled by High Court and Court of Appeal authority. Ebner had clarified the two-step apprehension-of-bias test and emphasised that the observer is fair-minded and lay, not unduly suspicious. Re JRL and Klewer had stressed that disqualification is not lightly granted and that disappointed litigants’ allegations alone are insufficient. Li provided the authoritative summary of actual bias principles. The ADT Act s 73(2) and s 73(5)(b) had been on the statute book since 1997, but their precise interaction with bias applications had not been extensively explored in the Appeal Panel.
This decision did not change the law. It applied those established principles to a concrete, multi-faceted application brought by a serial litigant. It confirmed that a decision-maker must determine their own disqualification application ([4]), that s 73(5)(b) does not impose an inquisitorial duty to hunt for supporting material ([8]), and that the principles apply equally to allegations of actual and apprehended bias. The decision reinforced the proposition that a “pattern” of adverse outcomes or collateral complaints will rarely suffice without evidence of a closed mind. It also clarified the limited precedential effect of a refusal to disqualify: such a refusal binds only the instant proceedings, whereas a disqualification on non-specific grounds may have broader application ([9]).
Subsequent decisions of the Tribunal and courts have continued to cite Ebner and Klewer in the same manner. The doctrinal position remains unchanged: the threshold is high, the observer is fair-minded, and unsubstantiated assertions by litigants who have repeatedly been unsuccessful do not compel recusal.
Paragraph [4]: “As far as I am aware, there is no situation where a decision maker is automatically disqualified without determining the issue him or herself: Ebner … at 356-357.”
Plain English: A judge does not have to step aside just because someone asks; the judge must decide whether the request is justified.
Paragraph [11]: The full statement of the Ebner test and the Li summary of actual bias principles.
Plain English: You must step down only if you have already made up your mind against the person or if an ordinary reasonable member of the public would think you probably cannot be fair. Irritation or earlier rulings against someone are not enough by themselves.
Paragraph [12]: Quotation from Klewer that unsubstantiated allegations by disappointed litigants provide no basis for recusal, coupled with Mason J’s warning that pre-judgment must be “firmly established”.
Plain English: Just because you have lost before and are angry does not mean the judge is biased. The law protects judges from having to step aside on flimsy complaints.
Paragraph [20]: Conclusion on the Annual Report and Ombudsman communications: “In my view, a fair minded observer would conclude that I have done nothing more or less than carry out my duties as a Deputy President of the Tribunal.”
Plain English: Talking to officials about how to manage difficult repeat litigants is part of a judge’s normal job; a reasonable person would not see it as plotting against Mr McGuirk.
Paragraph [27]: Quotation from Mason J in Re JRL about previous decisions not grounding apprehension of bias.
Plain English: The fact that a judge has ruled against you several times before does not mean they cannot give you a fair hearing on the next case. Each case must be judged on its own merits.
Paragraph [34]: “I am not persuaded on the basis of any of the matters put forward by Mr McGuirk, either individually or collectively, that I am actually biased against him or that a fair-minded person would reasonably apprehend that I would not decide his application fairly and impartially.”
Plain English: Looking at everything Mr McGuirk said, both separately and together, none of it proves bias. The case can therefore continue with the same presiding member.
This decision is triggered whenever a litigant in the Administrative Decisions Tribunal (or analogous NSW tribunals) applies for a member to disqualify themselves on bias grounds and the application rests on one or more of the following commonly encountered allegations: (1) the existence of parallel Supreme Court proceedings alleging procedural unfairness by the same member; (2) a history of refused interlocutory applications (such as referrals under ADT Act s 118) contrasted with grants to other parties; (3) claimed associations between the member and senior tribunal officers or ombudsmen who have made general statements about “querulent” or repeat litigants; (4) dissatisfaction with the handling of non-attendance at hearings and subsequent directions made on the papers; (5) a statistical “pattern” of adverse decisions when the member has presided; (6) complaints made by the litigant to the Chief Justice or other oversight bodies about the member’s conduct; or (7) failure by the panel to adopt an observation made by a non-judicial member during the hearing.
The precedent applies with greatest force where the allegations are not proceeding-specific but reflect a broader grievance accumulated across multiple files, where the applicant has been given an opportunity to file evidence and submissions, and where the claimed bias is said to be both actual and apprehended. It is particularly relevant to self-represented serial litigants in freedom-of-information and administrative review matters. The decision stands for the proposition that such patterns, without concrete evidence of a closed mind or reasonable apprehension in the Ebner sense, will not compel disqualification.
Although the judgment itself cites earlier authorities, the principles it articulates have been applied in subsequent Tribunal and court decisions. The clear statement at [4] that a decision-maker must determine their own disqualification application has been followed in later Appeal Panel matters where similar self-disqualification requests were made. The interpretation of ADT Act s 73(5)(b) as imposing no inquisitorial duty to search for bias evidence has been relied upon to reject arguments that the Tribunal must investigate a litigant’s claims of collusion or systemic bias.
The rejection of the “pattern of decisions” argument by reference to Mason J in Re JRL has been cited in cases where applicants have tabulated adverse outcomes and invited an inference of institutional bias. Later panels have reiterated that each decision must be assessed on its merits and that statistical success rates against applicants in freedom-of-information cases do not demonstrate bias. The discussion at [9] concerning the limited precedential effect of a refusal to disqualify has guided panels in deciding whether an earlier refusal bars a fresh application in a new file; the distinction drawn there (disqualification may have wider effect, refusal does not) has been treated as authoritative.
The decision has been treated as an orthodox application of Ebner, Klewer and Re JRL rather than as creating new doctrine. No later court has overruled or criticised it. It is routinely cited in the Tribunal’s bias jurisprudence as an example of the high threshold that must be met and of the need to avoid allowing disappointed litigants to force recusal by the mere making of serious but unsubstantiated allegations.
The judgment leaves open what additional material, if any, might tip the balance in a future application by the same litigant. At [9] the presiding member expressly contemplated that Mr McGuirk could bring a fresh application in future proceedings if he had additional grounds. The precise content of such “additional” grounds was not spelled out. Would concrete evidence of ex parte communications, or a direct personal remark by the member, cross the line? The decision does not say.
A second open question concerns the interaction between s 73(5)(b) and bias applications where the applicant asserts that the very process of determining the bias claim is infected by bias. Mr McGuirk’s 30 June 2008 facsimile raised this meta-argument; the panel dealt with it by reference to Raybos but did not explore its outer limits. Whether a decision-maker can ever be required to stand aside from deciding their own disqualification on the basis that the act of deciding itself demonstrates bias remains untested in this specific factual matrix.
Third, the judgment notes at [28] that authorities on bad faith (SZFDE and Sun Zhan Qui) were irrelevant to the bias question. The boundary between bad-faith decision-making and actual bias is therefore left for another day. Finally, the precise scope of a disqualification order’s application across multiple files is only sketched at [9]; later panels will need to decide how “the same parties” and “non-specific grounds” are to be interpreted when some but not all files share factual overlap. These questions remain live notwithstanding the careful analysis in McGuirk v Attorney General of NSW [2008] NSWADTAP 39.
CITATION: McGuirk v Attorney General of NSW [2008] NSWADTAP 39 This decision has been amended. Please see the end of the decision for a list of the amendments.
APPELLANT (Gerard) Michael McGuirk PARTIES: RESPONDENT Attorney General of New South Wales
BEFORE: Hennessy N - Magistrate (Deputy President); Fitzgerald K - Judicial Member; Antonios Z - Non Judicial Member
DECISION UNDER APPEAL: McGuirk v Attorney General of New South Wales [2007] NSWADT 280
LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 Re JRL; ex parte CJL (1986) 161 CLR 342 CASES CITED: Attorney General for NSW v Klewer [2003] NSWCA 295 McGuirk v University of New South Wales (No 2) [2008] NSWADTAP 11 University of New South Wales v McGuirk [2006] NSWADTAP 38 McGuirk v University of New South Wales [2007] NSWSC 806
APPELLANT In person REPRESENTATION: RESPONDENT A Johnson, solicitor
ORDERS: Application to disqualify Magistrate Hennessy for bias refused.
REASONS FOR DECISION Introduction 1 At the beginning of the hearing of this appeal on 18 March 2008, Mr McGuirk applied for me, the Presiding member, to disqualify myself for actual or apprehended bias. Mr McGuirk had made an identical application in another Appeal Panel hearing involving himself and the University of New South Wales that morning. (File No 089003). Rather than re-hear Mr McGuirk's submissions in relation to that application, Ms Johnson, representing the Attorney General of NSW, agreed to rely on the transcript of the morning's proceedings and prepare written submissions. Ms Johnson filed and served submissions on 22 April 2008. Because the transcript had not become available as early as anticipated, the Appeal Panel gave Mr McGuirk an extension of time to 30 May to file and serve his submissions in reply. 2 Mr McGuirk wrote to the Tribunal on 8 May 2008 saying that he would be unlikely to be able to comply with that timetable and provided reasons for his inability to do so. On 13 June 2008, the Registrar wrote to Mr McGuirk saying that in view of the content of his letter the Appeal Panel was prepared to allow him until 30 June 2008 to file any submissions in reply. The letter noted that the Appeal Panel was not prepared to leave the matter in abeyance pending advice from Mr McGuirk as to when he may be able to provide the submissions. Mr McGuirk was also told in that letter that if no further submissions were received by 30 June 2008, his application would be determined on the basis of the transcript of his oral submissions and the written submission from the Attorney General of NSW. 3 On 30 June 2008 the Tribunal received a facsimile from Mr McGuirk noting the content of the 13 June 2008 letter to him and submitting that because he was alleging actual bias against me I must disqualify myself from hearing the application. The solicitor for the Attorney General of NSW, responded quoting Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd 6 NSWLR 272 at 276 as authority for the proposition that a request for recusal based on actual bias should be dealt with in the same way as a request based on an apprehension of bias. Mr McGuirk replied on 1 July 2008 submitting that the decision in Raybos does not stand for that proposition. The letter also contained further allegations of bias and further elaboration on the relevant legal principles. Those allegations are of the same flavour as those raised by Mr McGuirk in his oral submissions. On 14 July 2008, Mr McGuirk wrote again to the Tribunal advising that he was unable to comply with the 30 June direction. He did not indicate in that letter when he may be in a position to file any further material. In the absence of any such indication and given that Mr McGuirk did provide further submissions on 30 June and 1 July, we have decided to make a decision on the basis of the material currently before us. 4 As far as I am aware, there is no situation where a decision maker is automatically disqualified without determining the issue him or herself: Ebner v Official Trustee (2000) 205 CLR 337 at 356-357. 5 I must determine the application for disqualification myself. It is not a question for the Appeal Panel as a whole. Support for that view can be found in the decision of Kartinyeri and Anor v Commonwealth of Australia (1998) 156 ALR 300, [1998] HCA 0052 where Callinan J decided for himself whether he should be disqualified from hearing a matter. Preliminary issues 6 Two preliminary issues. Mr McGuirk raised two issues which need to be addressed before considering the substance of his application. The first is whether I am obliged to identify evidence in addition to that presented by Mr McGuirk, which is relevant to his application for disqualification. The second issue is whether Mr McGuirk is entitled to make an application for me to disqualify myself from hearing any matter to which he is a party or whether a separate application has to be made in relation to each proceeding. 7 Obligation on Tribunal to identify relevant evidence. The Tribunal, including the Appeal Panel, has a statutory obligation ". . . to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings": Administrative Decisions Tribunal Act 1997, section 73(5)(b). Mr McGuirk relied on this provision to support his submission that as well as the matters he has brought to my attention, I should make my own enquiries as to whether there is any other relevant material that would enable me to determine whether I should disqualify myself for actual or apprehended bias. He also said that if I consider that the evidence he has provided is insufficient he would be willing to provide further evidence in support of his application. 8 Section 73(5)(b) requires the Tribunal to ensure that relevant material is disclosed so that it can determine relevant facts in issue. It does not require the Tribunal to search for material itself or to conduct its own investigations. It obliges the Tribunal to direct the parties to disclose material if it considers that certain material is relevant to a fact in issue. In this case, Mr McGuirk has made an application for me to disqualify myself. It is not my duty to identify material that may support that application. Nor would it be procedurally fair for me to consider Mr McGuirk's application on the basis of the existing evidence, form a preliminary view as to the strength of that evidence, and then give him an opportunity to adduce further evidence if I considered the existing evidence to be inadequate. 9 Single or multiple applications? The second issue is whether an application for bias can relate to all proceedings to which Mr McGuirk is a party and I am the presiding member. The answer to that question depends on two things. Firstly, whether the application is based on allegations which are specific to the proceedings and secondly whether the other party or parties have been given an adequate opportunity to respond to such an application. In this case, the factual matters on which Mr McGuirk relied are not particular to these proceedings. Consequently if my decision is that I should disqualify myself, then that decision will apply to all proceedings involving the same parties. However, if I decide that I should not disqualify myself, then that decision applies only to these proceedings. Mr McGuirk would be able to make a new application for disqualification in future proceedings if he has additional grounds for doing so. Basis for application 10 Mr McGuirk put forward seven matters which he said supported his application for disqualification for actual or apprehended bias. In summary, those matters were that: (i) Mr McGuirk has brought proceedings in the Supreme Court requesting that orders made by the Appeal Panel when I was presiding, be quashed because he was not afforded procedural fairness; (ii) when I was presiding, the Appeal Panel refused his applications to refer two questions of law to the Supreme Court, but referred a different question of law when a party represented by the Crown Solicitor's Office requested a referral; (iii) I am a "protégé" of the Tribunal's President, Judge O'Connor, and Judge O'Connor has "slandered" him, although not by name, in the Tribunal's 2006/2007 Annual Report; (iv) following a hearing on 19 October 2007, which Mr McGuirk did not attend, the Appeal Panel determined applications made by Mr McGuirk on the material then before it and written submissions from the parties; (v) when I have been presiding the Appeal Panel has made a "pattern" of decisions in favour of the respondent; (vi) Mr McGuirk complained to the Chief Justice of New South Wales that I had refused to provide him with a transcript of proceedings; and (vii) when I was presiding, the Appeal Panel failed to adopt a view expressed by another Appeal Panel member during the course of the hearing. Legal Principles relating to disqualification for bias 11 The Tribunal is bound by the rules of procedural fairness which comprise the hearing rule land the bias rule: ADT Act, section 73(2). The bias rule requires a decision maker to disqualify him or herself from hearing a matter if he or she is actually biased or a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] and [8]. The rule against bias is designed to ensure that public confidence in the administration of justice is maintained. The principles in relation to actual bias were summarised by Drummond J in Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 at 133-134 (citations omitted): (a) Actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant. (b) The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation. (c) Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias. Such bias may be subconscious, provided it is real. (d) It is not sufficient proof of actual bias to show that the decision-maker has expressed views adverse to the party's position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings. Though relevant to proof of actual bias, displays of irritation or impatience and the use of sarcasm by the decision-maker during the hearing are not, without more, generally sufficient to establish such bias, proof of which requires a finding on a question of fact, having regard to all the circumstances of the case. 12 The point has often been made that judicial officers must not disqualify themselves too readily. In Re JRL; ex parte CJL (1986) 161 CLR 342 Mason J said that for an application for disqualification to succeed, it is not enough for a fair minded observer to reasonably apprehend that the decision maker will make a decision adversely to one party. Any pre-judgement on the part of the decision maker must be "firmly established". In Attorney General for NSW v Klewer [2003] NSWCA 295, the Court of Appeal (Davies AJA, Mason P and Meagher AJA agreeing) noted these comments and added at [15] that: Unsubstantiated allegations . . . made by disappointed litigants provide no basis upon which a judicial officer, who has been allocated to a particular matter, should recuse. 13 In summary, Mr McGuirk must firmly establish either that I am actually biased against him or that a fair-minded person would reasonably apprehend that I would not decide his application fairly and impartially. Application of legal principles to the facts 14 Supreme Court proceedings. Mr McGuirk said he has brought proceedings in the Supreme Court seeking orders in relation to the conduct of the Appeal Panel. He said that he intends to apply to amend the orders he is seeking. My understanding is that Mr McGuirk has applied to the Supreme Court for certain orders including an order of certiorari to quash a decision of the Tribunal and for consequential relief asserting that the Tribunal did not afford him procedural fairness. According to Mr McGuirk, I should disqualify myself from hearing any further matters in which he is a party on the basis that he has made that application to the Supreme Court (Supreme Court file number 03007/07). 15 Conclusion. The fact that Mr McGuirk has appealed against a decision of the Appeal Panel and one of the grounds of appeal is procedural unfairness, does not give rise to actual or apprehended bias. Parties are entitled to appeal against Tribunal decisions on a question of law and do so regularly. Even if the Supreme Court finds procedural unfairness, that does not mean that I am biased or that a fair-minded person would reasonably apprehend that I would not decide the application fairly and impartially. 16 Refusal to refer questions of law. Mr McGuirk's second point was that he has applied to the Appeal Panel on two occasions to have a question of law referred to the Supreme Court pursuant to s 118 of the ADT Act. He says that when I was presiding the Appeal Panel refused both those applications. He also says that subsequently an Appeal Panel over which I presided referred a different question of law to the Supreme Court at the request of a party represented by the Crown Solicitor's Office. He says that the referral of that matter was "dodgy" and that the Appeal Panel's decision not to refer the questions of law that he identified to the Supreme Court cost him $20,000. 17 Conclusion. While there was no evidence before the Appeal Panel of these assertions, I accept, for the purpose of these proceedings, that the Appeal Panel refused to refer two questions of law to the Supreme Court but referred a different question in other proceedings at the request of lawyers for a government agency. However, without evidence or elaboration from Mr McGuirk, I do not accept his opinion that the referral of the question to the Supreme Court was "dodgy", or that the Appeal Panel's failure to refer a question or questions at his request cost him $20,000. No adverse inference can be drawn from the fact that the Appeal Panel referred a different question from the question that Mr McGuirk posed, in separate proceedings. That conduct does not constitute actual or apprehended bias. 18 Association with President O'Connor. Mr McGuirk's third point was that in the Tribunal's 2006/2007 Annual Report President O'Connor slandered him, although not by name, implying that he had abused members of the Registry and that he was a vexatious litigant. Although not identified, I assume that the passages from the Annual Report to which Mr McGuirk is referring are as follows: Litigants running their own cases are commonplace in tribunals. They are much rarer in the court system. An increasingly difficult management problem for tribunals is the repeat litigant. While the repeat litigant is not unknown in the court system, the barriers to access typical of the court system place constraints on their activity. For several years now, one of the most popular subjects at tribunal and court conferences has been how to respond to the 'querulent' litigant. 'Querulent' is a term invented by a professor of forensic psychiatry to describe a person who has an obsession with pursuing a perceived wrong, and who will try many avenues of complaint and hearing. Studies of this type of behaviour have found that often a real injustice was suffered, but it went unrecognised. The person now has a distorted sense of the significance of the matter, and of the role played by the various institutions and officials to whom the problem has been taken. The original wrong may well disappear entirely from view, as the person pursues procedural complaints against the officials and institutions with whom he or she has dealt along the way. Sometimes obsessive behaviour has a deeper explanation connected with psychiatric conditions or other disabilities. These users will often file mountains of paper, they will regularly arrive at the counter seeking attention or make numerous phone or fax calls. They may become personally abusive to tribunal staff. They will often make formal applications in connection with their filed claims on narrow, procedural points necessitating the giving of notices to their opponent, and the convening of hearings. These activities can place major strain on the capacity of complaint handling institutions including tribunals. . . It is becomingly increasingly clear that complaint-handling institutions need greater gateway powers to manage the kind of behaviours mentioned. Important work has been done in recent years by the National Committee of Australian Ombudsmen. The Deputy Ombudsman for New South Wales (Mr C Wheeler) has been examining the subject. The Council of Australasian Tribunals in New South Wales (COAT), a voluntary association of tribunal members and others interested in the work of tribunals, is beginning work on what registries might do to develop common standards and practices to deal with the activities of repeat litigants and those who engage in abusive and other unreasonable behaviour. 19 Mr McGuirk acknowledges that he was not mentioned in the Annual Report, but says that President O'Connor was referring to him. He also said that I am President O'Connor's "protégé" and, impliedly, that I share the opinion that he attributes to President O'Connor. Mr McGuirk also mentioned a "persistent complaint project" that he says is being conducted by the New South Wales Ombudsman's Office. He asserted that Mr Chris Wheeler, the Deputy Ombudsman, President O'Connor and I have been exchanging e-mails. He also asserted that I have been colluding with Mr Wheeler in an attempt to prevent people intent on exposing corruption from lodging their applications. 20 Conclusion. There is no factual basis for the inference that President O'Connor was referring to Mr McGuirk in the passages quoted above or that I endorse any particular view because I am a Deputy President of the Tribunal. I am aware of the project being undertaken by the Ombudsman's Office in relation to unreasonable conduct of complainants. I have spoken to Mr Wheeler and exchanged emails with him in relation that project. Those communications occurred in the context of my duties as a Deputy President of the Tribunal. I do not agree with the inference that Mr McGuirk draws that I am colluding with Mr Wheeler in an attempt to prevent applicants from exposing corruption. In my view, a fair minded observer would conclude that I have done nothing more or less than carry out my duties as a Deputy President of the Tribunal. 21 Procedure after non-appearance on 19 October 2007. The fourth point relates to hearings which were set down on 19 October 2007. Mr McGuirk did not appear that day and was not able to be contacted by phone. He does not object to the fact that the Appeal Panel proceeded with his matter on that day however he objects to the manner in which the Panel subsequently proceeded. In particular he says that he had a reasonable excuse for not attending and that an adverse implication can be drawn from the fact that no transcript of the proceedings was made available even though the Appeal Panel undertook to provide him with the transcript. 22 Conclusion. The history of that matter has been set out in a previous decision of the Tribunal: McGuirk v University of New South Wales (No 2) [2008] NSWADTAP 11 (10 March 2008) at [4] to [8]: 4 A hearing date suitable to the parties and the Appeal Panel members was not able to be arranged until 19 October 2007. McGuirk did not appear on that date. Mr Singleton, representing the University, made submissions on the question of whether the correct and preferable decision was for the University to give Mr McGuirk access to the Kirby memorandum notwithstanding that it was an exempt document. Given Mr McGuirk's non-attendance, the Appeal Panel made the following directions: 1. The Appeal Panel will ask Mr McGuirk to provide an explanation for his non-attendance on 19 October 2007, within 7 days. If an explanation is provided, the Tribunal will seek submissions from the University as to whether the explanation is adequate and whether Mr McGuirk should be permitted to file any further material in relation to this matter. The Appeal Panel will then determine that issue on the papers. 2. If the Appeal Panel decides that Mr McGuirk has provided an adequate explanation for his non-attendance, he will be directed to file and serve any further submissions in relation to the 'override discretion' within a further 21 days. The University will be given a further 21 days to file and serve any submissions in reply. The Appeal Panel will then determine the 'override discretion' issue. 5 On 22 October 2007, the Tribunal wrote to Mr McGuirk advising him of these directions. On 22 November 2007 Mr McGuirk wrote to the Tribunal advising that he had not had an opportunity for at least a month to review the matters that he currently has before the Tribunal. He says he phoned the Registry on that day and subsequently conducted a thorough search of his 'in tray' and discovered an unopened envelope from the Tribunal containing the 22 October 2007 letter. He says that notwithstanding that he did not read that letter until 22 November 2007, he advised the Tribunal of the reason for his non-attendance on 19 October in a facsimile sent on 23 October 2007. That facsimile explained Mr McGuirk's non attendance in a separate matter (053437) on 23 October 2007. In explaining the reasons for his non-attendance on that day, Mr McGuirk referred to the fact that he had made an application to the Local Court in Burwood on 19 October 2007 for a warrant to be issued pursuant to section 229 of the Criminal Procedure Act 1986 for the arrest of the Commissioner of the New South Wales Police, Andrew Scipione. Mr McGuirk apologised for his non-attendance on 23 October 2007. Mr McGuirk submitted that he clearly had good reasons not only for failing to attend the Tribunal on 19 October 2007, but also for failing to comply with the directions for filing further material. 6 By letter of 28 November 2007, the University submitted that Mr McGuirk's explanation of his non-attendance was not adequate for the following reasons: 1. Mr McGuirk admits that he did not write to the Tribunal advising of his reasons for non-attendance until 23 October 2007, four days after the hearing day. 2. Mr McGuirk was always aware that the matter was listed for hearing on 19 October 2007 as early as 6 August 2007, when the Tribunal wrote to him. Despite this, he offers no reason for his discourtesy in failing to inform the Tribunal or the University before the hearing date, of his intention to not attend the hearing. 3. The reasons for his non-attendance, as set out in his letter of 23 October 2007 are not a sufficient excuse for his non-attendance. There is no rule of law, or ethical or other code of conduct applicable to Mr McGuirk (who is not legally qualified) that requires that criminal proceedings (of which in any event he was an applicant) take precedence over civil proceedings. It was always open to him to instruct a lawyer to appear on his behalf in either set of proceedings but he chose not to do so. 4. The fact that Mr McGuirk is involved as an applicant in a large number of different legal actions is no excuse for his failure to notify the Tribunal of this proposed non-attendance. 7 On 5 December 2007 the Registry wrote to the parties advising that the Appeal Panel was of the view that Mr McGuirk has not provided an acceptable explanation for his non-attendance on 19 October 2007 and that consequently the appeal will be determined on the basis of the submissions before the Tribunal on that date. The parties were also advised that reasons for the Appeal Panel's view that Mr McGuirk's explanation was not acceptable would be provided in the reasons for decision. We now provide those reasons. 8 We accept that Mr McGuirk was in another court on 19 October 2007. However, he had been on notice of the hearing since 6 August 2007. If he was unable to attend on that day, he should have advised the Tribunal and the University prior to the hearing. He has not explained his failure to do so. Furthermore, Mr McGuirk had an opportunity to provide written submissions following the decision in the first matter. He has had ample opportunity to bring any relevant matters to the Appeal Panel's attention. Consequently, we will determine the remaining issue on the basis of the evidence before the Tribunal, written submissions from both parties and Mr Singleton's oral submissions to the Appeal Panel. 23 In relation to the submission that Mr McGuirk had a reasonable excuse for not attending the hearing on 19 October 2007, the Appeal Panel in that matter came to a different view. That view does not disclose actual or apprehended bias. 24 In relation to Mr McGuirk's assertion that the Tribunal had failed to supply a transcript, I refer to the Registrar's correspondence with Mr McGuirk dated 30 October 2007, as follows: I refer to the Tribunal's previous correspondence in relation to these matters in which you were informed that copies of the transcripts of the proceedings on 19 October 2007 would be posted out to you when they became available. The agency responsible for recording proceedings in the Tribunal has advised that the monitor did not record these proceedings. We have not been provided with any further explanation for this error. Unfortunately that means that there are no transcripts available in relation to the proceedings on 19 October 2007. 25 In my view, this explanation is self-explanatory and disposes of any submission that an adverse implication can be drawn from the fact that a transcript was not available. 26 Pattern of adverse decisions. The fifth point was that when I have been presiding the Appeal Panel has made several decisions against him. He quoted two decisions. The first was University of New South Wales v McGuirk [2006] NSWADTAP 38 where the Appeal Panel set aside the Tribunal's decision to grant access to a copy of a legal advice prepared by Bret Walker SC and Andrew Bell. The second was McGuirk v University of New South Wales (GD) [2007] NSWADTAP 4 where the Appeal Panel set aside the Tribunal's decision on the ground that it had no jurisdiction to review the University's decision to refuse to continue to deal with Mr McGuirk's application under the Freedom of Information Act 1989 (FOI Act). Mr McGuirk suggested that I analyse the Tribunal's decision because in his view, in 80% to 90% of freedom of information cases the Tribunal has found against the applicant. He said that the only possible inference which can be drawn from that statistic is that the Tribunal is biased in favour of the executive government. 27 Conclusion. Although the Appeal Panel made a decision adverse to Mr McGuirk in the first matter, when the matter was remitted by the Supreme Court on a different question, the Appeal Panel decided to give Mr McGuirk access to the legal advice: University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8. In relation to the second matter, Mr McGuirk said that while he agrees that one-off adverse decisions do not indicate bias, there is a pattern of decision-making against him and other applicants. He offered to present a full history of the Appeal Panel's decisions. As I have said, Mr McGuirk has had an opportunity to present his evidence and it is not incumbent on me to give him a further opportunity to bolster that evidence if I consider it insufficient to make out his case. In any event, as Mason J said in Re JRL; Ex parte CJL (1986) 66 ALR 239 at 245 and 246: 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 either 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. 28 In addition, Mr McGuirk asserted that I was not acting in good faith in making these decisions and relied on several decision including SZFDE v Minister for Immigration and Ethnic Affairs [2007] HCA 35; 81 ALJR 1401at [13] and Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 563-264. Neither of these decision is relevant to my determination of actual or apprehended bias in the circumstances of this case. 29 Complaint to Chief Justice. Mr McGuirk asserted that he has made a complaint about me to the Chief Justice of New South Wales and that he received a reply to that correspondence. Mr McGuirk said that the context was that he had applied for a transcript of proceedings in relation to an appeal to the Supreme Court but that I had declined to make the transcript available. 30 Conclusion. I have no recollection of this incident nor was I advised that any complaint had been made to the Chief Justice about it. It is very difficult for me to reply to an allegation without knowing the details. In relation to the complaint Mr McGuirk says he made to the Chief Justice, in Attorney General for NSW v Klewer [2003] NSWCA 295, the Court of Appeal found that making a complaint to the Independent Commission Against Corruption (ICAC) did not raise an apprehension of bias. The Court agreed at [14] that the making of a complaint to bodies such as ICAC or the Judicial Commission about a judge hearing that person's case, will not automatically mean that the judge should disqualify him or herself. That principle applies equally to complaints to the Chief Justice of New South Wales. 31 Comment by Appeal Panel member. Mr McGuirk said that in the course of proceedings in another matter involving him and the University of New South Wales, the non-judicial member, Professor Blake, made a point which the Appeal Panel ultimately did not adopt. Mr McGuirk said that I had overruled Professor Blake and that that indicated bias. The Supreme Court rejected Mr McGuirk's submission that this disclosed an error of law in McGuirk v University of New South Wales [2007] NSWSC 806 (25 July 2007). In that case, Associate Justice Harrison said at [28] to [30]: 28 Counsel for Mr McGuirk referred to passages of the transcript where Professor Blake, a member of the Appeal Panel, commented: "That is certainly not my experience. That in fact chancellors and vice chancellors have a great deal of implied authority and daily are making decisions in terms of the day to day running of the university. And I would have thought whether or not to release the documents would be very much within the normal discretion of the chancellor and would not be dependent on a resolution. Now it would be an extraordinary legalistic university that only gave the chancellor power pursuant to a resolution." 29 Counsel for Mr McGuirk submitted that the Appeal Panel was entitled to draw upon Professor Blake's expertise and should have considered and averted to it in its reasons and by failing to do so erred in law. 30 The Appeal Panel is not bound to rely upon the expertise and general comments of one of its members. Nor is it mandatory for reference to be made to comments of the Tribunal member during the hearing if they do not form the basis of its decision. There is no error of law. 32 Professor Blake did not give a dissenting decision in the matter before the Appeal Panel. 33 Conclusion. The Supreme Court has found that the Appeal Panel is not bound to rely on expertise or general comments made by one of its members in the course of a hearing. Nor does a failure to do so indicate actual or apprehended bias. Conclusion 34 I am not persuaded on the basis of any of the matters put forward by Mr McGuirk, either individually or collectively, that I am actually biased against him or that a fair-minded person would reasonably apprehend that I would not decide his application fairly and impartially. Orders Application to disqualify Magistrate Hennessy for bias refused.
24/07/2008 - Respondent name changed. - Paragraph(s) 1, 2, 3
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
McGuirk
Attorney General of NSW
[1998] HCA 0052
[2007] HCA 35
(2000) 205 CLR 337
(2000) 96 FCR 125
(1986) 161 CLR 342
(1998) 156 ALR 300
(1986) 66 ALR 239
(1997) 151 ALR 505
Application to disqualify Magistrate Hennessy for bias refused.