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[2001] SAWCT 130
procedural. The application for disqualification was dismissed. The stay imposed on 12 July 2001 remained in place ([31]-[32]).
No linked legislation citations have been extracted yet.
The worker asked the Deputy President to step aside, alleging that he was biased. The Tribunal applied the established tests for apprehended and actual bias. It found that the worker had not provided evidence establishing actual bias and that the hearing record did not support a reasonable apprehension of bias. The application was dismissed, while the earlier stay remained in place.
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2,274 words · generated 01/10/2026
In Moore-McQuillan v WorkCover/VACC Insurance (Wolf Air and Dive Shop) [2001] SAWCT 130, Acting Deputy President GMM Thompson determined an application by worker Markham Moore-McQuillan asking him to disqualify himself from the worker's Tribunal matters. The judgment was delivered on 8 November 2001. The application was dated 27 August 2001 and covered files 7493 of 2000, 1200, 1679 and 2176 of 2001 ([1]).
The worker's application alleged that the Deputy President was biased and prejudiced. Its accompanying statement complained about earlier Tribunal decisions, the handling of income maintenance and benefits, and an asserted prior relationship from the time the Deputy President practised in Broken Hill. It also raised concerns about the worker's treatment at the Tribunal and his financial circumstances ([2]). These were allegations made by the worker, not findings that the judgment adopted as established facts.
The application followed earlier hearings before the Deputy President. On 17 May and 12 July 2001, the worker appeared before him in connection with applications before the Tribunal ([3], [10]). At the 12 July hearing, the worker accused the Deputy President of bias and asked him to step aside. The judgment records repeated interruptions and abusive language during the hearing ([4]-[9]). The Deputy President stopped the proceedings and imposed a stay pending a further undertaking to behave appropriately ([8], [12]).
The Deputy President treated the current application as one for disqualification. He noted that the worker had filed no affidavit supporting the allegations and described what he heard at the application hearing as a series of grievances and abuse ([13]-[15]). He considered the legal test for apprehended bias and the distinct claim of actual bias, then dismissed the application ([19]-[31]). The judgment states that the stay imposed on 12 July remained in force ([31]-[32]).
The decision is therefore procedural and narrow. It does not determine the merits of the worker's underlying compensation matters. It decides whether the Deputy President should withdraw from them on the basis of the allegations and material presented in this disqualification application.
The Tribunal treated apprehended bias and actual bias as related but distinct questions. For apprehended bias, it set out the test of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the issue requiring decision ([19]). It also described the hypothetical observer as reasonable and emphasised that the observer considers how the decision and decision-making process would appear ([20]).
Applying that test, the Deputy President considered the record of the proceedings and rejected the worker's claim. He said that a fair-minded observer reading the transcript or being present in court would see that the worker had been treated with courtesy and patience ([26]). His conclusion was not simply that he personally considered himself unbiased. It was a conclusion about what the hypothetical observer would reasonably infer from the material and conduct described in the judgment.
The worker also appeared to allege actual bias. The Deputy President stated that there was no evidence of actual bias, observing that the worker had not filed an affidavit in support of his allegations ([22]-[23]). He then quoted the formulation from Laws v The Australian Broadcasting Tribunal: where suspected prejudgment is relied on, the fear must be firmly established that the decision-maker's mind is so prejudiced towards a conclusion already reached that it would not change regardless of the evidence or arguments ([24]).
The Tribunal also rejected the idea that an applicant can establish bias merely by preferring another decision-maker or anticipating an adverse result. The judgment says that neither actual nor apprehended bias is made out simply because a different judicial officer would be preferred, or because the judicial officer might decide against the applicant's interests ([25]). This passage distinguishes dissatisfaction with a decision-maker from evidence that the decision-maker cannot approach the matter impartially.
The asserted Broken Hill association was separately addressed. The Deputy President noted that the worker had not raised it at an earlier major hearing before him, and said he had no recollection of any association from his practice in Broken Hill, which had ended about fifteen years earlier ([29]). Those observations formed part of his treatment of the allegation; they were not a general rule that a prior association can never give rise to disqualification.
Finally, the Deputy President described the application as an exercise in “Judge shopping” and quoted the need for a “real and substantial basis for withdrawal” ([30]). That characterisation followed his conclusion that the legal test was not met. The operative order was dismissal of the disqualification application, with the existing stay remaining ([31]).
The judgment presents itself as applying existing authority rather than changing the law. It states that the law on disqualification of judicial officers was “quite clear” and refers to Kola v District Court of South Australia and Another and Johnson for the apprehended-bias test ([19]-[20]). It also refers to Duke Group (in Liquidation) v Pilmer and Others (No 3) as further exposition of the principles ([21]).
For actual bias based on suspected prejudgment, the Tribunal relied on the passage from Laws requiring a firmly established reasonable fear that the decision-maker's mind is fixed in favour of a conclusion and will not be altered by evidence or argument ([24]). It also referred to IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd and Another, and to the Full Tribunal's earlier decision in Moore-McQuillan v Sun Alliance (Wolf Air Dive Shop), when discussing the relationship between apprehended and actual bias ([27]).
The “before” position, as expressed in this judgment, was that disqualification was assessed by established tests: the reasonable observer test for apprehended bias and the stated threshold for actual bias based on suspected prejudgment. The “after” position in this case was an application of those tests to this worker's allegations and the available record. The judgment does not purport to create a new test or alter the cited authorities.
The decision's own effect is limited to the application before it. It dismissed the request to disqualify this Deputy President and left the earlier stay in place ([31]-[32]). The supplied judgment does not include later decisions about this case, so it cannot establish whether, or how, later courts or tribunals treated it.
At [19], the Tribunal states the central apprehended-bias question: whether a fair-minded lay observer might reasonably think the judge might not bring an impartial and unprejudiced mind to the matter. In plain English, the focus is not only on the decision-maker's own view of their impartiality. It is on the reasonable appearance of the decision-making process to an appropriately informed observer.
At [20], the judgment emphasises that the observer is hypothetical and reasonable, and that the question concerns how the decision and process might appear when reasonably considered. It also notes that the observer is taken to understand that a professional judge is trained and required to put aside irrelevant, immaterial and prejudicial matters. The passage therefore cautions against treating every adverse interaction or strong disagreement as proof of bias.
At [24], the passage from Laws addresses suspected prejudgment. In plain English, a concern that a decision-maker has already formed a view is not enough by itself. The claimed fear must be firmly established, and must concern a mind so committed to a conclusion that evidence or argument would make no difference. The judgment applies this as the relevant formulation for the actual-bias allegation it understood the worker to make.
At [25], the Deputy President says that a preference for a different decision-maker, or the possibility of an adverse decision, does not establish bias. The practical significance is that the application must concern impartiality, not merely dissatisfaction with the officer or the anticipated result.
At [26], the Deputy President reaches his assessment of the material before him. He says a fair-minded observer would find no basis for apprehended bias and would instead see courtesy and patience in the record. That is the application-specific conclusion, rather than a freestanding rule about how all claims involving judicial conduct must be decided.
At [30], the judgment quotes the statement that there must be a “real and substantial basis for withdrawal.” In context, the passage reinforces that a judicial officer should not withdraw simply because a party raises the possibility of bias. The operative result appears at [31]: the application was dismissed.
This decision is most directly relevant to a disqualification application where a party alleges that a judicial officer should step aside because of actual or apprehended bias, and where the argument rests on the officer's previous decisions, the course of a hearing, or an asserted prior connection. It shows the Tribunal identifying the correct question as whether the stated facts meet the applicable bias test, rather than whether the party has confidence in or prefers the decision-maker ([19]-[25]).
The case also illustrates the evidentiary significance the Tribunal attached to the absence of supporting material. The worker filed no affidavit to support his allegations, and the Deputy President treated that absence as relevant to the actual-bias claim ([15], [22]-[23]). The judgment does not establish that an affidavit is always required for a disqualification application. It records that none was filed in this case and assesses the application on that basis.
A second fact pattern the case addresses is an allegation of bias arising from the way a party has been treated during difficult or disorderly proceedings. The Deputy President examined the hearing history, including the worker's interruptions and abusive language, and concluded that the transcript showed courtesy and patience rather than a basis for apprehended bias ([4]-[9], [26]). The decision does not say that a litigant's conduct can never be relevant to bias. It shows that the Tribunal considered the context and the transcript when applying the reasonable-observer test.
The judgment also deals with a claimed professional association from many years earlier. The Deputy President considered the timing, the lack of any earlier objection at a major hearing, and his lack of recollection ([28]-[29]). The decision does not provide a detailed test for when a past association will require disqualification. Any application of this aspect would need to account for the facts and the authorities relevant to the particular relationship.
The case is not authority, on the text supplied, for resolving the merits of compensation claims, the validity of benefit decisions, or the lawfulness of the earlier stay. Those subjects appear as grievances in the worker's statement, but the decision before the Tribunal was the disqualification application.
The judgment provided here does not identify any later court or tribunal decision citing, following, distinguishing or otherwise treating Moore-McQuillan v WorkCover/VACC Insurance [2001] SAWCT 130. Its “Last Updated” date is 27 June 2002, but that information alone does not establish subsequent treatment.
The cases discussed in the judgment are authorities the Deputy President referred to in reaching his decision, not later treatment of this decision. They include Kola, Johnson, Duke Group, Laws, IOOF, Webb, and the earlier Full Tribunal decision in Moore-McQuillan v Sun Alliance ([19]-[27]). The judgment also refers to Emanual Investments, Re Polities and JRL in its concluding discussion ([30]). They should not be described as later courts' treatment of the 2001 decision.
Accordingly, based only on this judgment, the later-treatment position is undetermined. A separate review of subsequent judgments or a citator would be needed to assess whether later courts have relied on or limited this decision. No claim about that subsequent history can safely be made from the supplied text alone.
The judgment does not explain in detail what evidence, beyond the hearing transcript and the worker's submissions, was available to the Tribunal when it assessed apprehended bias. It records that no affidavit was filed and describes the Deputy President's view of the transcript, but does not reproduce every part of the record ([14]-[15], [23], [26]). This limits how far the reasoning can be applied to a different evidentiary record.
The decision also does not determine whether the worker's allegations about benefits or other treatment were correct. Those claims formed part of his complaints, but the question decided was whether the Deputy President should disqualify himself. The judgment's conclusions on bias should not be treated as findings deciding the underlying compensation disputes ([2], [13], [31]).
The asserted Broken Hill connection receives only brief treatment. The Deputy President noted that the worker did not raise it during an earlier major hearing and that he had no recollection of the alleged association ([29]). The judgment does not set out the nature of the prior representation, the precise circumstances of any association, or whether documents existed about it. It therefore does not provide a broad rule about the disqualifying effect of past professional relationships.
Nor does this decision explain the legal basis or duration of the stay imposed on 12 July 2001. It records that the stay followed the worker's conduct at the hearing and that it remained after the disqualification application was dismissed ([8], [12], [31]-[32]). The supplied reasons do not determine any separate challenge to the stay.
Finally, the judgment does not report any later appeal or subsequent judicial consideration. It gives appeal information under s 86(1) of the Act, including a 14-day filing period for an appeal that is available, but that notice does not show that an appeal was brought or decided ([32]).
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1 This is the judgment in an application by Markham Moore-McQuillan a worker dated 27 August 2001 seeking the following orders.
"1/that DP Thomspom (sic) stand aside due to his bias and prejudicial action towards the Worker. That a another DP be appoint (sic) to hear this matter ASAP. AS the Worker is financially crippled by the actions of DP Thompsom (sic) and WorkCover the Worker be paid to attend the WCT.
2/The matters file no 7493/00, 1200/00, 1679/01, 2176/01 be heard ASAP so the Worker is not placed in further financial difficulty.
3/If the matter before the application is to set a date then the Worker allowed to listen in on the phone to save added and unnecessary expense.
TAKE NOTE that this matter has been listed for directions hearing in Court as in Chambers before"
2 To that application there was annexed a "Statement" from the applicant worker:-
I M MOORE-MCQUILLAN of PO Box 306 Morphett Vale SA make this statement.
1/It appears to me that the Tribunal is acting without authority in ordering that I apologize or the WCT will withhold Justice from me. Further there is no section of `the Act' that gives the WCT the power to do this. To further remove all income and withhold all benefits over this issue is both illegal and beyond the scope of the WCT.
2/I have on many occasions informed the WCT of ADP Thompson's prejudiced and biased attitude toward me. I have supplied to the Tribunal affidavits of people before ADP Thompson where the ADP has slandered and talked of me in damaging terms and slanderous terms. I do have a conflict with ADP Thompson and this starts from the time he represented me in Broken Hill. It is fair to say that ADP Thompson and I do not get along and it is also fair to say that ADP Thompson has and does use his position to further inflict his prejudiced and biased attitude onto myself. If the WCT need a statue or precedent then Brown and Dixon v Police should be followed.
3/Whilst I am to apologize for my conduct I do so with the acceptance that ADP Thompson also apologizes by accepting this. I also believe that at no time will I ever receive a fair and just hearing (Brown and Dixon v Police) in the WCT or from ADP Thompson and that this is punishment for exposing the scheme critical list.
4/The Tribunal and ADP Thomspom (sic) has sided with WorkCover by removing all benefits and income maintenance through prejudice and bias. In Feb of 2001 ADP Thomspom (sic) did allow the removal of benefits from the worker by saying that WorkCover have not refused benefits but are just not going to pay for them. This has further placed me in financial difficulty, which must be a great source of enjoyment for the WCT. It is obvious that the Tribunal will never believe me or any of my doctors but will take the word of any WorkCover personnel as gospel with no proof required.
5/While the WCT and ADP state they are not prejudice or bias, this is not true a common person who enters the WCT can see the bias. See (Brown and Dixon v Police)
6/I do have a Post Traumatic Stress condition which is not made any better by being lied to by DP's, having excessive surveillance, entry and removal of documentation, abusive staff at the WCT, being followed by Sheriffs, allowing Mr. O Downs to have his own security staff, and being assaulted in the WCT by WorkCover only to be told "bad luck".
7/. I am still under medical supervision with Dr Lukcas and my condition has not improved; however DP Dr Thompson believes he is trained well enough in this medical field to make a finding otherwise. I have supplied medical cert and the WCT have been told of my condition but the WCT have chosen not to believe this. I also have a further cert attached to this
8/ It is beyond me why I have to put up with being stalked and harassed by WorkCover operatives or F Carbone's agent's every time I attend the WCT. Both Fred Morris and Mark Caligerous (sic) save an undertaking to the WCT and DP McCusker that WorkCover would not be doing surveillance or harassment. However this was not the truth and when the WCT was notified nothing was none (sic). WorkCover were not penalized like the WCT has done to me. While I am asked to give undertakings to the WCT I can only give the same undertaking as WorkCover have shown to do.
9/ It is both unfair to insist the Worker spend money that he does not have whether it be $2.90 but the cost of a phone call is only 25 cents and a far cheaper alternative that the DP, due to his prejudice, refused to allow.
10/. The Worker is in finaicially difficulty and does not have enough funds to attend the WCT or process this. The Worker is in receipt of disability benefits from center link (sic) and is also expected to pay for all medical requirements, etc for treatment of the Workers injuries.
11/. The amount indispute should be paid to the Worker ASAP. It should also be noted that Mr O Downs did inform M Duncan casemanager that he was to refuse all benefits and send then (sic) all to the WCT and let the WCT sort them out. This is also against the Act but with "A"DP Thompsom (sic) open prejudice towards the worker has allowed this to flourish.
12/ This matter should be heard by another DP ASAP so that the Worker is not expected to suffer anymore financial hardship.
3 The background of the matter is that on 17 May this year and again on 12 July this year the worker appeared before me as the Chamber Judge in the process of the passage of some of his applications before the Tribunal.
4 The hearing on Thursday 12 July culminated in the worker indulging in a tirade of abuse. He said among other things:-
"You have been - you have personal knowledge of my case from when you were a lawyer in Broken Hill and when you represented me. You have been - have gone out of your way not to act in a fair, conscionable, equitable or whatever manner you want to do by the Act, you have been both biased, prejudicial and vindictive. Even with the authority of Brown, Dixon v The Police you shouldn't even be sitting there".
"If you don't step aside then we'll have to go to an appeal because you need to step aside. You are both biased and prejudicial. You should not - do you remember you even said - you have slandered me in your Chambers, you've slandered me in front of Matilda Baldwin and the lawyers that were present. You have gone out of your way to be both unjust and unfair and I wish that you would step aside."
6 I began to deliver judgment on the oral application then before me. Before I could finish, Mr Moore-McQuillan continued to interrupt. I rejected the application. I said I would not stay proceedings at this stage I would continue to deal with the application that was before me.
7 Mr Moore-McQuillan continued to interrupt and said "Are you admitting that you are not biased, prejudiced and have acted in an unjust manner towards me"?
8 I attempted to continue to hear the application. Mr Moore-McQuillan refused to behave himself. He said:-
"Why we're here why don't we just kick the shit out of Mr Moore-McQuillan".
BENCH: That's enough. I'm not going to have that sort of language any more.
MOORE MC-QUILLAN: Well, at the moment I'm saying you must step aside.
BENCH: I will stay this matter permanently until - and any other matters before me - until Mr Moore-McQuillan gives a further undertaking to behave himself. I will not have foul and abusive language used in my Court.
BENCH: The matter is stayed permanently. Thank you, gentlemen.
MOORE-MCQUILLAN: The matter is not stayed permanently. You are biased and prejudicial. Thank you very much. You can consider yourself off the bench."
9 I then invited the security officer to escort Mr Moore-McQuillan from the Court as he was going he said:-
"I'm going anyway, pal, so don't worry about it, all right? We can go round to Norwood and - - -."
I treat that as a threat to my personal safety and the safety of my family.
10 This follows a tirade of unseemly and filthy language used on a previous occasion ie 17 May this year when I stayed matters pending an apology.
11 An apology albeit unsatisfactory was proffered to a Full Court. At that stage the worker had an appeal pending from a decision of Deputy President McCouaig. I refer to that judgment of the Full Tribunal wherein is set out extensive passages from the transcript of the hearing before Deputy President McCouaig. Those passages illustrate the desire of Mr Moore-McQuillan not to be bound by the ordinary canons of reasonable behaviour. His behaviour before Deputy President McCouaig was distinguished by filthy and disgusting language.
12 At this stage his substantive application before me was stayed permanently on 12 July 2001.
13 The present application is for me to disqualify myself.
14 I heard nothing but a litany of rambling incoherent grievances real and supposed from Mr Moore-McQuillan.
15 He filed no affidavit to support his allegations. He sat at the bar table and uttered, in a stream of consciousness fashion, a tirade of abuse.
16 It may well be that Mr Moore-Quillan takes the view that any person who is subjected to the type of abuse that he proffers in Court, would necessarily be biased in the technical legal, sense ie unable to bring an unclouded mind to the disposition of Mr Moore-McQuillan's matters.
17 On the other hand it may well be that his abusive conduct and language which is used on select occasions has for its purpose, unsettling the judicial officer and deflecting that officer from the performance of the officer's duties ie his harangue directed towards harassment of the Bench.
18 I like my learned colleague Deputy President McCouaig take the view that this behaviour is deliberate and calculated.
19 The law on disqualification of judicial officers is quite clear. It was reiterated by the Chief Justice in K_ola v District Court of South Australia and Another_ Judgment 2001 SASC 268 (6 August 2001) at 5 quoting Johnson 2000 HCA 48:-
"The test to be applied in determining whether a Judge is disqualified by reason of the appearance of bias is whether a fair minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question that Judge is required to decide."
20 The Chief Justice then went on to say that in a question of apprehended bias the focus is on how the decision and the decision making process might appear reasonably considered.
"The hypothetical reasonable observer of the Judge's conduct is postulated and in order to emphasis that the test is objective, is founded in the need for public confidence in the judiciary and is not based purely upon the assessment by some Judges of the capacity or performance of their colleagues. At the same time two things need to be remembered: the observer is taken to be reasonable and the person being observed is `a professional judge whose training tradition and oath and and affirmation require the judge to discard the irrelevant the immaterial and the prejudicial'."
21 The Chief Justice further adumbrated these principles in Duke Group (in Liquidation) v Pilmer and Others (No 3) on 13 August 2001 SASC 215 particularly at 9 and following.
22 Those cases deal with apprehended bias. However as I understand Mr Moore-McQuillan's application he relies upon an allegation of actual bias.
23 If that is the case, there was no evidence thereof.
24 In any event Gaudron and McHugh JJ in Laws v The Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100 said:-
"When suspected prejudgment of an issue is relied upon to ground the disqualification of the decision maker what must be firmly established, is a reasonable fear that the decision makers mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or the arguments presented to him or her."
25 The ground for disqualification based upon either actual or apprehended biased is not made out by the applicant demonstrating that a different judicial officer would be preferred, or that on the evidence the judicial officer concerned might find adversely to the applicant's interests.
26 In my view, no fair minded observer could come to the conclusion that there was any basis for the applicant's allegation of apprehended bias. On the contrary a fair minded observer would be compelled to the conclusion upon reading the transcript and being present in Court, that I have treated Mr Moore-McQuillan with the upmost courtesy and patience, indeed patience in the face of some of the most extraordinarily insolent behaviour I have experienced in four decades in Court.
27 The Full Tribunal mentioned in Moore-McQuillan v Sun Alliance (Wolf Air Dive Shop) [2001] SAWCT 99 at par 28 quoting from Webb v The Queen and quoting from Doyle CJ in IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd and Another [1999] SASC 249; (1999) 78 SASR 151 at 187:-
"If the reasonable apprehension is satisfied it will be unnecessary to consider an allegation of actual bias. If that test is not satisfied I find it difficult to understand how an allegation of actual bias could succeed."
28 I simply say for completeness in regard to Mr Moore-McQuillan's statement:-
"I do have a conflict with ADP Thompson and this starts from the time he represented me in Broken Hill".
29 (a) It is of some interest to note that I decided JD1/1998 Moore-McQuillan v WorkCover Corporation/VACC Insurance Worksafe (SA) Pty Ltd (Wolf Air and Dive Shop). That hearing took place on a number of days in September and October 1997. The judgment was delivered on 19 January 1998. There was never any suggestion at that hearing (which was the first of the major Moore-McQuillan hearings in this Tribunal), that I had had any association with him in Broken Hill or that he apprehended bias because of that association.
(b) I can say for myself, that happily I have no recollection whatsoever of any association I had with Mr Moore-McQuillan when I was in practice at Broken Hill. That practice ended a decade and a half ago. Unlikely as it seems, his activities in Broken Hill whatever they were, have failed to leave any imprint whatsoever on my memory.
30 In all the circumstances I find that the application this morning is nothing more than an exercise in Judge shopping. I conclude by quoting Olssen J in Emanual Investments Pty Ltd (S6177) 30 May 1997 at 18:-
"It is timely to draw attention to what fell from the High Court in Re Polities and in JRL. It is not in the interests of the due administration of justice that judicial officers should to readily disqualify themselves from continuing to preside simply because of parties seeks to ventilate the issue of possible bias. There must be a real and substantial basis for withdrawal."
Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.
Moore-McQuillan
Workcover/Vacc Insurance
(1990) 170 CLR 70
(1999) 78 SASR 151
The application for disqualification was dismissed. The stay imposed on 12 July 2001 remained in place ([31]-[32]).