NSW Education Standards Authority v Yeshiva College Bondi Limited

NCAT Appeal Panel|2022-04-29|Before: Jennifer Boland AM

Introduction

On 10 March 2022 a senior member of the Tribunal was to commence hearing a review under the provisions of the Administrative Decisions Review Act 1997 (NSW). The review was sought by Yeshiva College Bondi Limited (the College) in respect of a decision by the NSW Education Standards Authority (NESA) made under the Education Act 1990 (NSW) to recommend to the Minister for Education and Early Childhood Learning that the College's registration to conduct a Kindergarten to Year 10 school be cancelled and that renewal of the registration be refused.
At the commencement of the hearing the senior member made two disclosures to the parties. First, she explained that in the 1980's she attended a school called Yeshiva College for her primary school education. She explained to the parties that word "Yeshiva" is Hebrew for "learning centre". She also explained she understood that the school she attended went into liquidation and was renamed Kesser Torah College. Secondly, she explained that a director of the College was known to her "by association". She said the director is the husband of a "primary school class-mate".

Documents relied on in this application for leave to appeal

We were provided with the original application by the College for a review of the decision to recommend refusal of its registration and renewal of its registration, and the material in support of that application. This material was read by the senior member prior to her disclosures to the parties. We also had the benefit of the Notice of Appeal. In that Notice, the grounds of appeal sought to be relied on are expressed as follows: 1. The Senior Member made an error by refusing to disqualify herself in circumstances in which a fair-minded lay observer might reasonably have apprehended that she might not bring an impartial mind to the resolution of the questions she was required to decide in the proceedings because of: a. the Senior Member undertaking primary school at the predecessor of the school that is the subject of the proceedings, having regard to the connections between those schools, and b. further or alternatively, the Senior Member's association with the wife of a current director of the Applicant.
The grounds relied on for leave to appeal are as follows: 1. In circumstances where the Senior Member is affected by apprehended bias, any decision the Senior Member makes in the substantive proceedings would be affected by jurisdictional error and liable to be quashed: see eg CNY 17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, 97-98 [54] (Nettle and Gordon JJ). So would be any refusal to grant leave to appeal from the disqualification decision: see eg Wattie v Industrial Relations Secretary [2018] NSWCA 124 [181]-[186] (McColl JA, Macfarlan JA agreeing). In those circumstances, the Appeal Panel must as a condition of its jurisdiction to grant or refuse leave, or alternatively ought to, determine the substantive question of apprehended bias. 2 The issue of apprehended bias raised in the appeal is an issue of public importance, going to the perception of the fair administration of justice in this Tribunal. 3. There will be clear injustice to the parties if the Senior Member decides the case in circumstances in which she is affected by apprehended bias.
The College filed a Reply to the Appeal on 31 March 2022.
In its submissions NESA seeks leave to rely on an affidavit of Mark Sullivan affirmed on 6 April 2022. It is acknowledged this affidavit was not before the senior member. We refer to the submissions in support of reliance on this affidavit below. The submissions also refer to the affidavit of Rabbi Dr David Slavin affirmed 6 December 2021, which affidavit was in the file read by the senior member prior to the commencement of the proceedings. No objection was taken by the College to us reading this affidavit. It is referred to by the senior member at [6] of her reasons. Further, as earlier noted, no objection was taken to us reading other affidavits filed on behalf of the College to be relied on in the substantive proceedings.

The proceedings before the Tribunal

On 3 August 2021 NESA made a recommendation to the Minister for Education and Early Childhood Learning that the registration the College for Kindergarten to Year 10 be cancelled under s 59 of the Education Act 1990 (NSW) and also recommended to the Minister that the application for renewal of registration for the school be refused under s 56 of the Education Act.
On 31 August 2021 the College filed an Administrative Review Form in the Tribunal. The grounds relied on in the application assert the Tribunal should find the correct and preferable decision is that a recommendation be made that the College's registration not be cancelled and instead renewed under s 56 of the Education Act. In the alternative, the College seeks that the Tribunal should recommend to the Minister that the registration not be cancelled and instead the period of registration be extended to enable compliance with requirements identified in the internal review report of NESA.
Two directions hearings were held in October 2021 and the matter was listed for hearing for four days commencing on 10 March 2022 before the senior member.
The senior member read the filed material prior to the hearing and at the commencement of the hearing made two disclosures to the parties. As earlier noted, we do not have a transcript of the senior member's disclosures, but there was no issue before us that the disclosures are other than accurately recorded in the ex-tempore reasons delivered by the member on 10 March 2022 and subsequently set out in her settled reasons provided to the parties.
The disclosures, as set out in the senior member's reasons, and which led to the application for the senior member to recuse herself, are as follows: 1. I attended a school called Yeshiva College for my primary school education in the 1980's. Although it has a similar name to the Applicant, it was and is an entirely different entity. The word "Yeshiva" is Hebrew for "learning centre". The school I attended was a Jewish primary school which, as I understand it, went into liquidation in the early 2000s and was renamed Kesser Torah College. 2. Having reviewed the file prior to the commencement of the hearing, a director of the applicant is known to me by association. Rabbi Menachem Dadon, who is a director of the Applicant, is the husband of a primary school classmate. I was not aware until reviewing the file that he was involved in the Applicant's school in any way. I would not classify my association with Rabbi Dadon as close or familiar.
An application by NESA for the Tribunal to be reconstituted under s 52 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) after the senior member's refusal to disqualify herself was rejected on the basis the proceedings had not commenced and because the senior member had not become "unavailable". There was, therefore, no requirement for re-constitution under s 52.

Material relied on in the Administrative Review proceedings

As earlier noted, the senior member read the material before making the disclosures which lead to the application for her recusal.
The College relied on an affidavit of Rabbi Dr David (known as Dovid) Slavin affirmed on 6 December 2021. Under the heading "Background to Yeshiva College" he deposed as follows at para 10: Yeshiva College is registered to provide NSW Education Standards Authority (NESA) accredited education for Kindergarten to Year 10 students. It also provides religious education to students in accordance with Chabad beliefs, Chabad being a form of Judaism.
Under the heading "Original Management" Rabbi Dr Slavin deposed as follows: 18 The first school to be located at the Yeshiva Centre was established by Avraham Rabinovitch in 1956. This school was known as Yeshiva College and was a Jewish day school. 19 In the period from 1968 to 2003, Yeshiva Centre and the Yeshiva College were managed by Rabbi Pinchus Feldman. Following financial difficulties, Rabbi Pinchus Feldman ceded control of Yeshiva College in 2003. The original school was relocated to Dover Heights and became the school now known as Kesser Torah College. 20 In 2007 Rabbi Pinchus Feldman opened a new school called Cheder Chabad Lubavitch. He was assisted by his son, Rabbi Yosef Feldman. 21 In 2008, the current proprietor of the school was incorporated as a company limited by guarantee (Yeshiva College Bondi Limited).
At para 28 of his affidavit, Rabbi Dr Slavin deposes that Rabbi Pinchus Feldman remained at the College as the "Spiritual Leader", and this position was terminated in 2013.
At para 29, Rabbi Dr Slavin explains: Shaina Feldman, who was the principal at Yeshiva College since its inception in 2007, stayed on as principal and would remain so until 2017.
At para 81 of his affidavit Rabbi Dr Slavin sets out the names of the current directors of the College. He deposes: The Board of Directors of Yeshiva College is currently comprised of myself, Rabbi Menachem Dadon, David Benhamou and Aharon Zaetz, and meets approximately 8 to 10 times a year.
Also in the material before the senior member was an affidavit of Shaina Feldman. Ms Feldman deposes that she is the head of the girls' school at the College and that she has worked at the College since 2007.
Ms Feldman further deposes that: I taught at Yeshiva College (which later became Kesser Torah College) on a casual basis in approximately 1997.
It was not in dispute before us that the school known as Yeshiva College and attended by the senior member was located on the same site as the current College. Nor was it in dispute that both the school attended by the senior member, Kesser Torah, and the College provide education in accordance with Chabad beliefs and principles.
We examine in more detail later in these reasons, when discussing the affidavit of Mr Sullivan, matters relevant to the corporate history of the College, its teachers and curriculum.
Also in the material read by the senior member was an affidavit of Joseph Segelman (also known as Yossi Segelman) sworn 4 December 2021. Mr Segelman deposes that he is business manager of the company which operates the College.
Mr Segelman deposes at par 9 of his affidavit that "In 1999 as a teacher at the Yeshiva College, after observing that it was under-resourced and that the community did not appear to fully grasp its unique nature, I became Yeshiva College's first Director of Development".
He also deposes that in 2003 "after a legal battle concerning the Flood Street properties, Yeshiva College was placed into administration, as a result of which I was made redundant".
Under the heading "Background to Yeshiva College" Mr Segelman deposes at para 18: Yeshiva College is a school that follows the Orthodox Jewish Hasidic movement known as "Chabad". Unlike some other orthodox religions or movements, Chabad focusses on the outside world, and seeks an open relationship with non-orthodox Jews.
Mr Segelman, at para 27 of his affidavit, sets out an explanation of Jewish Chassidic Orthodox traditions which include: 1. Separation of boys and girls' education after year 1 2. A discipline system based on Torah values; 3. Encouraging children to participate in community programs including those relevant to their Jewish heritage.
At para 29, Mr Segelman deposes that the school "that is most similar to Yeshiva College in terms of adopting the more Chassidic Orthodox traditions is Kesser Torah College, and as it offers instructions in years 11 and 12, some Yeshiva College students have elected to go there after completing year 10 at Yeshiva College".
At paras 30 and 31 Mr Feldman deposes that all students in the 2020 graduating class (4 students) chose to go overseas to a Yeshiva high school in Toronto, Canada. He states that some former students of the College have elected to attend High School at Yeshivah College in Melbourne, which is not connected with the College but follows the same Chabad ethos.
At the conclusion of his affidavit under the heading "The Yeshiva College experience cannot be replaced at another school" Mr Feldman deposes because of the "strong Jewish and general leadership values taught at Yeshiva College, which are not replicated elsewhere" that, if the College closed, in 5 years there would be no more Judaic day camps as the students of the College are the leaders in these camps, that in 10 years there would be no more Australian-educated rabbis, and that in 20 years there would be a loss to the Australian community because of the deficit of "quality spiritual leadership, which is critical for the survival of a Jewish community".

The relevant provisions of the NCAT Act

Part 6 of Div 2 of the NCAT Act deals with internal appeals. Section 80 of the NCAT Act provides as follows: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note - Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
Section 81 provides as follows: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
Section 4 of the NCAT Act defines interlocutory decisions of the Tribunal (being a decision made by the Tribunal under legislation). The definition includes "the disqualification of any member".

Leave to appeal - relevant principles and NESA's submissions on this question

The factors to be consider in determining whether or not to grant leave to appeal are well established and explained in Collins v Urban [2014] NSWCATAP 17 citing BHP Billiton Ltd v Dunning [2013] NSWCA 421.
In this case it was submitted we should grant leave to appeal because the proposed appeal raises questions of public importance going to the perception of fair administration of justice in the Tribunal. It was further submitted that because of apprehended bias, the senior member could not afford the parties a procedurally fair hearing such that any decision she made would be affected by procedural error.
We again note that the College did not oppose the granting of leave to appeal. We consider the proposed appeal does raise a question of public importance being the perception of fair administration of justice in the Tribunal. In this regard we are cognisant of the objects of the NCAT Act and in particular the objects set out in s 3 (f) and (g) of that Act namely: (f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and (g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.
Accordingly, we are satisfied it is appropriate to grant leave to appeal.

Application to adduce fresh evidence, or evidence in addition to or substitution for the evidence received at first instance.

NESA sought to adduce evidence in addition to the evidence which was before the senior member. NESA advanced two bases for the admission of an affidavit of Mark Sullivan affirmed on 6 April 2022. Mr Sullivan is the solicitor having the carriage of the matter on behalf of NESA.
The relevant principles to be applied in determining whether or not to admit fresh evidence are usefully explained by the Appeal Panel of this Tribunal in ZOF v NSW Trustee and Guardian [2020] NSWCATAP 167 at [37]-[38]. We are satisfied in accordance with those principles that it is appropriate to admit the evidence of Mr Sullivan to properly determine this appeal, which goes to the foundation of the independence and impartiality of the Tribunal. In reaching this conclusion we accept the submissions of NESA on this topic.
NESA submitted we should receive this affidavit because the senior member's disclosures were only made known to the parties immediately prior to the commencement of the first day of the hearing, and NESA did not have any opportunity to gather or put on evidence or to make any detailed submissions before the disqualification decision. We pause to note that no procedural fairness ground is agitated in the Notice of Appeal. However, we are cognisant that in Polsen v Harrison [2021] NSWCA 23 at [46 (xiv)] the Court of Appeal explained: (xiv) there is to be attributed to the fair-minded observer a broad knowledge of the material objective facts as ascertained by the appellate court [36] and the "actual circumstances of the case" [37] as though the observer was sitting in the court;[38] [footnotes omitted]
In the same paragraph the court said: (xvii) the knowledge that the fair minded observer is taken to have is not limited to those facts and matters that were known at the time of an application for recusal and includes published statements made by the judge (whether prior, contemporaneous, or subsequent to the recusal application);[43] [footnotes omitted]
It is also relevant that we refer to the authorities cited in those two sub-paragraphs.
Footnote 36 refers to the decision of the High Court in Webb v R (1994) 181 CLR 41 at 73. There Deane J (as his Honour then was) said: In my view, however, the material objective facts are not so confined for the purposes of the test. The fair-minded observer is a hypothetical figure. While the question is not settled by any decision of the Court, it appears to me that the knowledge to be attributed to him or her is a broad knowledge of the material objective facts as ascertained by the appellate court ((96) See Laws v. Australian Broadcasting Tribunal (1990) 170 CLR at 87 per Mason CJ and Brennan J: "we must attribute to him or her knowledge of the actual circumstances of the case"; S. and M. Motor Repairs v. Caltex Oil (1988) 12 NSWLR 358 at 368-369, 381; Morris (1991) 93 Cr App R 102 at 106 per Farquharson LJ: "a reasonable and fair minded person sitting in the court and knowing all the relevant facts", as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court ((97) See Livesey v. New South Wales Bar Association (1983) 151 CLR at 299; Vakauta v. Kelly (1989) 167 CLR at 573, 585; Laws v. Australian Broadcasting Tribunal (1990) 170 CLR at 87-88, 98.[our emphasis]
It is further submitted we should receive the affidavit because the respondent's records annexed to the affidavit demonstrate the connection between "the School and the Predecessor School".
Counsel for the College, at para 5 of her submissions, argues that as it appears NESA seeks leave to appeal on a question of law, the receipt of fresh evidence is not warranted. It is further submitted that if leave to appeal is granted, the College considers the appeal would not be by way of new hearing and that accordingly s 80 (3) (b) of the NCAT Act has no application.
The submissions go on to point out that documents annexed to Mr Sullivan's affidavit, which include an ASIC search of Kesser Torah College Limited, documents submitted by the College to the Board of Studies (the predecessor of NESA), and newspapers articles, were not before the senior member when she made her decision.
At para 7 it is submitted: Yet in any appeal from a decision maker's refusal to recuse themselves, it would seem rational that, absent compelling evidence that was not before the decision maker at first instance that displays an obvious logical connection between the matter and the feared departure, the appeal should be determined on the basis of the material before the original decision maker. That is because, in considering the impression that would be created in the mind of the fictional observer if the decision maker continued to participate in the determination, "the relevant principles are concerned with appearance, rather than reality, and from the perspective of fictional observer chosen to secure the outcome that the public have confidence in the administrative of justice.[footnote omitted]
It is submitted that the documents annexed to Mr Sullivan's affidavit would not be available to a party who was unconnected to the parties and are unnecessary to determine whether there is a reasonable apprehension of bias.
Counsel for the College submits that if we admit the further evidence that, as the senior member pointed out in her reasons NESA, has failed to establish the "second and third parts of the test" [referred to in the authorities cited below] because the fact a new school was started on the same site some 15 to 20 years after she attended primary school and it carried the same name as the school she attended is not enough to warrant a reasonable apprehension of bias.

Principles relevant to the application of s 80 (3) NCAT Act

We are satisfied that, as explained in Webb and confirmed in Polsen v Harrison, as we have determined to grant leave and to determine the appeal, it is appropriate and necessary that all material, including material that was not before the senior member, should be before this Appeal Panel to determine, on an objective basis, the issue of apprehended bias. Accordingly, we propose to admit the affidavit of Mr Mark Sullivan affirmed on 6 April 2022 in these proceedings.

Affidavit of Mark Sullivan

Mr Sullivan annexes to his affidavit an ASIC search for Kesser Torah College Limited. The search reveals the company, being a company limited by guarantee, having the current name Kesser Torah College was first registered on 24 September 1986 as Yeshiva College Ltd. The records disclose the original directors included Pinchus Feldman and later, in 1996, Pnina Feldman and Yossi Feldman.
The search discloses under the heading "Former Organisation Details" from 24 September 1986 to 13 August 2003 the relevant entity was Yeshiva College Ltd, a company limited by guarantee. Yeshiva College was first registered in 1986.
Annexure 2 to Mr Sullivan's affidavit is an application by a school to be known as Yeshiva College Bondi dated 30 March 2007 signed by the proposed proprietor of the school Rabbi Pinchus Feldman OAM and the proposed principal Mrs Pnina Feldman.
Annexure 3 to Mr Sullivan's affidavit is a schedule headed "Yeshiva College Bondi Staff Qualifications July 2008. Included in the schedule's list of teachers and their qualifications, is Mrs Shaina Feldman. Mrs Feldman is noted to have taught at Kesser Torah and Yeshiva until 2003.
Annexure 6 to Mr Sullivan's affidavit is an application for renewal of registration for a non-government school dated 15 July 1998 signed by Rabbi Feldman. Rabbi Feldman principal's statement discloses: Yeshiva College is an amalgamation of already registered Primary and High Schools. The High School consists of the former Boys and Girls High Schools which were inspected in 1996, at which time both received accreditation to the year 2002.
At para 3 of his report Rabbi Feldman explains that the girls high school was located at the former Dover Heights TAFE and the boys high school site is the former Yeshiva Primary School.
At para 4 Rabbi Feldman states: …In a school previously registered to 2002 which is only "new" in the sense that it has amalgamated and in the process acquired new premises, the need for the High School to tender for inspection all its curricular and assessment documentation for three years in succession when the first set of documents qualified each school for registration until the Year 2002, no new cohorts have come on line, and the range of courses offered has altered barely if at all, seems excessive.
The Inspector's report dated 8 November 2000 which is part of Annexure 7 refers to inspection of Yeshiva College (Boys High school). Under the heading "school context" it is noted that the College includes a Primary school, a Girls High School (both located at Dover Heights) and a Boy's High School located in Bondi.
A press clipping from the Sydney Morning Herald dated 13 August 2003 being Annexure 8 to Mr Sullivan's affidavit relates to a dispute between Rabbi Pinchus Feldman and his brother-in-law agitated in the Supreme Court of New South Wales over failure to repay loans resulting in the school's 45 boys' high school pupils moving to Dover Heights.
A further press clipping from The Australian refers to the settlement of the dispute between Rabbi Feldman and his brother-in-law. The article notes that in 1994 a Melbourne related Rabbi and business man provided $5M to offset a $10M debt owed by Yeshiva College which had campuses in Bondi and Dover Heights, Sydney. The article notes that the college was run by Mrs Feldman and her husband Rabbi Pinchus Feldman and that in August 2003 the Feldman's were ordered out of the Yeshiva Synagogue and the Yeshiva Boys High School in Bondi. The article also records: In December 2003, the Yeshiva's Dover Heights property was handed to Meir Moses and a new board, Blake Napier Ltd, who changed the name of the facility to Kesser Torah College.
Annexure 10 to Mr Sullivan's affidavit comprises a bundle of documents from the Board of Studies (the predecessor of NESA) including a recommendation for the registration of Rabinovitch Yeshiva College Bondi for students in Years K to 6 to 31 December 1992. The principal's application for renewal of registration discloses the school was first registered in 1966. In support of the renewal registration under the heading "The Principal is invited to summarise the ethos, educational philosophy and aims underlying the foundation and administration of the school" the document discloses the following: The Rabinovitch Yeshiva College was founded with the aim of providing an extensive and thorough grounding in the religious practice, morals and ethics of Judaism in the Orthodox Jewish Tradition. Great emphasis is placed on Orthodox learning and values and the school caters primarily for that part of the Jewish community which is deeply committed to Judaism. At the same time it is the aim of the College to provide a course of secular studies in conformity with the guidelines laid down by the N.S.W Board of Studies in "Curriculum Requirements for N.S.W. Schools (1991) …
Contained in the same bundle of documents is a letter or statement headed "Rabinovitch Yeshiva College Primary School" which notes: The two curriculum components for pupils attending the Yeshiva College Primary School are Jewish Studies and secular studies. The Jewish Studies Curriculum is broad and thorough. The following learning areas are introduced in Stage One and expanded throughout Stages Two and Three: HEWBREW: Classical Hebrew Language and Grammar Ivrit (Modern Hebrew) CHUMASH: The Study of Torah NACH: Jewish History LUACH: Jewish calendar The area of Personal Development is regarded as being within the domain of Jewish Studies, as Talmudic Laws are specific in this requirement. Ivrit (Modern Hebrew) is taught as a language other than English by Jewish studies teachers. Jewish Studies account for one third of the day. Many elements of the Board of Studies Curriculum for Key Learning Areas are addressed within the framework of the Jewish Studies Curriculum and presented in Jewish context - reading, writing, talking and listening, mathematical applications, social and cultural traditions, music, visual arts, craft and drama. The mode of discourse in all areas of Hebrew Studies promotes quick thinking, verbal expertise and strong analytical skills with regard to both written and spoken argument. The Secular Studies Curriculum targets firstly the Key Learning Areas of English and Mathematics as essential areas of learning. While actual time expended varies from Transition through Year Six according to the needs of each class, teachers time table approximately one third of each day for these areas.
In summary we consider the evidence filed in the review application and the evidence before us establishes: 1. In 1986 a company limited by guarantee called Yeshiva College Ltd was registered. Its directors included Rabbi Pinchus Feldman and Pnina Feldman. The company operated a day school 36 Flood Street Bondi. The curriculum taught at the school was based on Chabad beliefs. 2. As a result of a dispute between Rabbi Pinchus Feldman and his wife on the one hand and their brother in law and brother on the other, Yeshiva College Ltd was placed into administration and in April 2004 the company name was changed to Kesser Torah College Limited. As a result of the dispute the Bondi land was no longer available to the school (which at that time was a Boys High School with the Girls High School being located at Dover Heights) and as a consequence the consolidated school moved to Dover Heights. 3. In 2007 the dispute between Rabbi Pinchus Feldman, his wife and brother in law and brother was settled. A new corporate entity, Yeshiva College Bondi Limited was registered in 2008 and it re-commenced operating a school known as Yeshiva College at the original Bondi site. The principal and spiritual director of the school was Rabbi Pinchus Feldman and he remained as spiritual director until 2013. Some teachers who taught in the school at Bondi prior to 2003 also became part of the teaching staff at College. The curriculum taught at the school from 2007 to date is, as was the case in the original school, based on orthodox Jewish beliefs in the Chabad tradition with those beliefs integrated into the NESA curriculum. 4. The original school had, the present College has, a small cohort of students (approximately 60 students at present). Neither the original school nor the present College provide teaching to enable students to obtain the New South Wales Higher School Certificate. 5. The teachers at the original school comprised religious teachers (non NESA or Board of Studies accredited) as well as accredited teachers. The present College has both religious teachers (non accredited NESA teachers) as well as accredited teachers. 6. Non-compliance issues requiring consideration in the review application include - whether there is appropriate supervision by NESA accredited teachers, whether proper compliance policies have been adopted and implemented by the College Board (which includes Rabbi Dadon) including adherence to Working with Children check compliance.

The relevant law - apprehended bias

We commence by noting that the respondent's submissions acknowledge the relevant principles are set out in the senior member's decision.
A useful starting point for consideration of the relevant principles is the decision of the High Court of Australia in Johnson v Johnson [2000] HCA 48; 201 CLR 488; 174 ALR 655; 74 ALJR 1380. At [11]-[12] the plurality explained: It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) 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 the judge is required to decide[4]. That test has been adopted, in preference to a differently expressed test that has been applied in England[5], for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done[6]. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision."[7] The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise 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 or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial"[8].
We pause at this point to note that the majority of the authorities on this topic to which we have been directed are ones in which a judge has been asked to recuse herself or himself, with the exception of Webb v The Queen (1993-1994) 181 CLR 41 and Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20. In this Tribunal, members do not take an oath or affirmation of office but are required to adhere to the Tribunal's Code of Conduct. Notwithstanding the lack of oath or affirmation, we consider that the objects of the NCAT Act enshrine principles of fairness and impartiality analogous to a judge determining a matter on its merits "without fear or favour affection or ill-will". We also have regard to the decision of the plurality in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644; 75 ALJR 277 [2000] HCA 63 where their Honours explained at [4]-[5]: The principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision making and decision maker. Most often it now finds its reflection and application in the body of learning that has developed about procedural fairness[8]. 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. Two examples will suffice to make the point. First, as Mason CJ and Brennan J said in Laws v Australian Broadcasting Tribunal[9]: "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[10]; Salemi v MacKellar [No 2][11]; FAI Insurances Ltd v Winneke[12]." [footnotes omitted] Secondly, few administrative decision makers would enjoy the degree of independence and security of tenure which judges have. These differences, however, must not obscure the fundamental principle. That principle is obviously infringed in a case of actual bias on the part of a judicial officer or juror.
It is also relevant that we refer to the earlier decision of the High Court in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342. In that case, Mason J emphasised the importance of a judicial officer not too readily recusing herself or himself. His Honour explained: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
The touchstone for determination of this appeal may be found in the decision of the High Court in Ebner. There the plurality referred to the two "mights" (i.e. that a fair minded lay observer might reasonably apprehend that a decision maker might not bring an impartial mind to the issue at hand) and the assessment of the logical connection to the apprehension of bias and the matter to be determined.
The principles espoused in Ebner are cogently explained in the more recent decision of Charisteas v Charisteas [2021] HCA 29. Importantly there the High Court emphasised the appearance of bias when a trial Judge had a social relationship with a barrister appearing before him. The court explained: The apprehension of bias principle is that "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"[4]. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal[5]. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits[6]. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed[7].
Later, their Honours at [18] said, again with reference to the decision in Ebner: The apprehension of bias principle is so important to perceptions of independence and impartiality "that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined" (emphasis added) [16]. No prediction by the court is involved in deciding whether a judge might not bring an impartial mind to bear[17]. No question as to the understanding or motivation of the particular judge arises.[footnotes omitted]

NESA's submissions in support of the appeal

We had the benefit of comprehensive written submissions from senior and junior counsel for NESA, Ms C. Ronalds AO and Mr D Fuller. Senior counsel for NESA expanded on these submissions in her oral arguments before us. Ms Ronalds explained that NESA relied on the "fourth category" of apprehended bias being the last of categories set out by Deane J in Webb.
We pause at this point to refer to the third and fourth classifications of apprehended bias referred to by Deane J. These are explained by his Honour at p 74 as follows: The third category is disqualification by association. It will often overlap the first ((99) (e.g., a case where a dependent spouse or child has a direct pecuniary interest in the proceedings.) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third ((100) (e.g., a case where a judge is disqualified by reason of having heard some earlier case: see, e.g., Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Australian National Industries v. Spedley Securities (1992) 26 NSWLR 411.) and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.
Ms Ronalds also placed significant emphasis on the relevant principles which are succinctly summarised by the New South Wales Court of Appeal in Polsen v Harris at [23]-[24] and in particular at [46]. We note that the Court of Appeal stresses at [46 (iv] that a finding of apprehended bias is not to be made lightly, while earlier noting at [46 (iii)] "there is an unavoidable level of imprecision in the standard of what a fair-minded lay observer 'might' apprehend, such that a fanciful or speculative possibility must be clearly distinguished from the requisite 'firmly-established' apprehension of bias".

Consideration

We commence by recording that the material now before us to assess, on an objective basis, whether a fair mind lay observer might reasonably consider that the senior member might not bring an impartial mind to the review application is far more extensive than that which was before the senior member at the time of her decision.
We are satisfied that objectively viewed, while the school located at the Bondi site today is operated by a different corporate entity to that which operated the primary school attended by the senior member, the College is in reality the successor of the earlier school. But for the dispute between Rabbi Feldman and his brother-in-law, the school would, in all probability, have continued to operate at Bondi. The essential ethos and principles on which the original school operated and the present school operates is unchanged. Each school taught or teaches an integrated curriculum based on orthodox Jewish Chabad beliefs using a mixture of Jewish non accredited NESA teachers and accredited NESA teachers. The original school enrolled, and the present school enrols, a relatively small number of students and neither school offered curriculum leading to the School Certificate (when available) or the High School Certificate.
NESA submitted that a fair minded reasonably informed member of the public might consider that the senior member might not bring an independent impartial mind to the review application because her formative education was an education based on Jewish Orthodox Chabad beliefs taught in a small school which was the predecessor school of the present College and in particular given the influence of Rabbi Feldman and Pnina Feldman on the ethos and curriculum in the school she attended and the College. In short, it is submitted that "there were and remain significant connections between the current school and the predecessor school".
It is also submitted, and we accept the evidence before us establishes the "manager" of the predecessor school at the time the senior member attended it, is the person who established the current school.
The submissions also point out that the current Acting Principal of the College taught at the predecessor school and has been at the current school since its inception in 2007. It is not however suggested that Ms Shaina Feldman taught during the time the senior member attended the predecessor school. Rather we discern reliance is placed on this fact to establish close links between the predecessor school and the College.
NESA's submissions record: This is a distinctive form of education: a curriculum infused with religious content, taught within a framework of orthodox religious tradition, to a substantial degree by religious educators. It is an important part of NESA's case in the substantive proceeding that the School's mode of education prioritises religious education over properly delivering the legally required NSW curriculum and has non NESA accredited Jewish educators "team teaching" with NESA accredited teachers to deliver those 'integrated' lessons. Accordingly, the religious aspect of the teaching methodology at the School, which also appears to have been the approach adopted at the predecessor School, is a significant issue in the substantive proceedings.
The submissions also refer to Mr Segelman's evidence of the similarities between the College and Kesser Torah as both adopted more Chassidic Orthodox traditions.
We are satisfied that the matters which might lead the reasonable observer to form the view that the senior member might decide the matter other than on the merits are the fact the senior member attended a predecessor school of the College and her childhood friendship with the wife of a current director of the College.
The connection between the two matters articulated above is the close interconnected nature of the school attended by the senior member and the College. We accept, having regard to the evidence before the member, and particularly in light of the fresh evidence that the integrated teaching curriculum based on Chabad beliefs taught in both schools, and the involvement of Rabbi Feldman in the establishment of both schools leads to the conclusion that, although operated through different corporate entities, the underlying ethos and philosophy of the schools is identical. It is this ethos and philosophy to which the senior member was exposed in her formative primary school years.
Although we accept the senior member attended the school in the 1980's this is not a matter where the articulation of what a fair minded observer might apprehend is "fanciful" or "speculative". In reaching this conclusion we accept the submissions on behalf of NESA that, because of the requirement for the senior member to determine the "core" issue of whether NSW education standards are, or can be adequately delivered in the context of the integrated Chabad curriculum, there is a logical connection between her attendance at the predecessor school and the issues requiring determination. These issues include decision making about the same type of curriculum, uncommon in New South Wales, that she was taught in her primary and formative educational years.
Further, although we note in her reasons the senior member referred to her associated with Rabbi Dadon's wife as "a childhood friendship rather than current social interactions", NESA's submissions point out this disclosure was made "without elaboration". We observe that at [11] of her reasons the senior member recorded: Here we are not talking about a party or a witness, but rather a director of a party, who is not the subject of any findings by the respondent, is not the subject of any issue for determination by the Tribunal, has not provided any evidence in these proceedings, and is not the subject of any evidence in these proceedings upon which the Tribunal may be required to make a finding of fact. More significantly, the association is one that is distant and remote, connected to the director's wife rather than the director himself, and is from a childhood friendship rather than current social interactions.
The attendance at the predecessor school and having a friendship with the wife of a current director is articulated by NESA as one of the factors evincing a logical connection between those matters which might suggest apprehended bias and the senior member deciding the case on its merits.
There is a paucity of evidence about the strength of the connection between the senior member and Rabbi Dadon's wife. If this was the only basis advanced to demonstrate a "logical connection" to establish that the senior member might be thought unable to decide the case on its merits we would not uphold the appeal.
We accept, however, that notwithstanding that Rabbi Dadon has not filed an affidavit in the proceedings, he is a director of the College and as such has responsibility for matters of governance of the College including ensuring compliance with NESA policies in respect of curriculum, teacher qualifications and appropriate maintenance of Working with Children checks. The actions or inaction of all directors of the Board and their capacity to implement strategies to overcome deficits identified in the inspector's report will be subject of consideration on the review. The directors' actions and proposals are particularly relevant as the orders sought by the College in the alternative propose the College be given time to rectify breaches. Thus, we are satisfied that the association with Rabbi Dadon's wife, whilst of itself insufficient to require the senior member to recuse herself, when considered in the context of all issues to be determined on the review is a matter the appearance of which may give rise to an apprehension of bias and has a sufficient connection to issues to be determined in the review that it cannot be entirely discounted or ignored. This is because the member hearing the review will be required to assess the actions of the directors to date, and their proposals going forward. A fair minded observer might conclude that the senior member may be influenced by past relationships, particularly a relationship formed in the relatively close knit community of the predecessor school.
We conclude our consideration noting that although NESA referred to the senior member's appearance in ANC High School Pty Ltd v The Board of Studies in its recusal application, that matter was not pursued in the Appeal.

Conclusions

For the reasons articulated above, we are satisfied that leave to appeal should be granted, the appeal allowed and the senior's member's decision of 10 March 2022 set aside.
We have concluded, on all the evidence before us, that a fair minded lay observer might reasonably apprehend that the senior member might not bring an impartial mind to the review application. Accordingly, we will order that the matter be referred to the President to reconstitute the Tribunal to determine the review application.
We are conscious that, as articulated by Mr Segelman in his affidavit, the issues to be determined between the parties raise very significant matters of importance to the College, its students and their parents and to NESA in its regulatory role.
As we noted at the commencement of our reasons, the extension of registration of the College will expire at the end of Term 2 of 2022. It is therefore of significance to both parties that the real issues in dispute should be heard and determined promptly. Our decision that the appeal against the senior member's recusal should be upheld will now enable the matter to be heard expeditiously and hopefully avoid further delays in determining the real issues in dispute between the parties.

ORDERS

Our orders will be: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of the Senior Member of 10 March 2022 is set aside and the Respondent's application for disqualification of the Senior Member is allowed. 4. The matter is referred to the President of the Tribunal for reconstitution under s 27 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 5. The matter is to be listed for directions at a date and time to be notified to the parties by the Registrar to fix new hearing dates.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 13 May 2022

Education Act 1900(NSW)

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