PD v President, Australian Human Rights Commission

1. The interlocutory application for the disqualification of Rangiah J be dismissed.
2. The applicant pay the second respondent's costs of the interlocutory application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The applicant's principal proceeding seeks declarations including that, in making a decision not to recommend payment of compensation for the applicant's detention from 2017, the first respondent failed to accord procedural fairness (the Substantive Proceeding). 2 The interlocutory application presently before the Court seeks my disqualification for apprehended bias. 3 The principles concerning disqualification for apprehended bias are well-known. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the High Court held at [6] that apprehended bias is established: …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 In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, Gaudron and McHugh JJ observed at 100 that: …what must be firmly established is a reasonable fear that the decision-maker's 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 arguments presented to him or her. 5 The mere fact that a judge has previously decided a case or made rulings against a party is not enough, without more, to establish apprehended bias. As Kourakis CJ explained in Zanker v Kupsch [2014] SASCFC 13 at [76]: Apparent bias cannot be shown by an adverse conclusion in itself. It must appear from a matter external to the trial or an indication of prejudgment, that is a judgment formed on something other than the totality of the evidence given in a case. (See also Re JRL ; Ex parte CJL (1986) 161 CLR 342, Mason J at 352, Hamod v State of New South Wales (No 11) [2008] NSWSC 967 at [9].) 6 In Re JRL at 352 emphasised the importance of judicial officers discharging their duty to sit and not acceding too readily to suggestions of apprehension of bias. 7 The applicant's application for my disqualification is based upon my involvement in three previous cases in which the applicant was a party. They are: Minister for Home Affairs v [PD] (2019) 269 FCR 536; [PD] v Carter [2020] FCA 828 (affirmed on appeal in [PD] v Carter (Delegate of Finance Minister) [2021] FCAFC 16); [PD] v Finance Minister [2020] FCA 829 (affirmed on appeal in [PD] v Finance Minister [2021] FCAFC 17). 8 The applicant submits that, as a result of rulings I gave and other aspects of my involvement in those cases, a fair-minded lay observer might think that I might not bring an unbiased and impartial mind to the determination of the Substantive Proceeding. 9 In Minister for Home Affairs v [PD], I was part of a majority of the Full Court that dismissed an appeal by the Minister for Home Affairs against a judgment that had found in favour of the present applicant. In the course of the majority's reasons, it was held that the Minister's finding that the grant of a pardon or appeal for the applicant was unlikely was not legally unreasonable. It is this finding that the applicant complains of. 10 The applicant's argument that my involvement in Minister for Home Affairs v [PD] gave rise to an apprehension of bias was specifically considered by the Full Court in [PD] v Finance Minister. There, the Full Court stated at [12]: In addition, [PD] raised in her notice of appeal an allegation that the learned primary judge ought to have disqualified himself, because there existed a reasonable apprehension of bias. That was said to be found in his Honour's participation in the joint majority judgment in Minister for Home Affairs v [PD] (2019) 269 FCR 536 and in observations made, at [137], as to what might be the fate of any Attorney-General's reference to the Queensland Court of Appeal in relation to convictions earlier recorded against [PD]. We did not understand [PD] to press this allegation in oral submissions on the hearing of the appeal. It had not been raised before the learned primary judge, when, consistently with the general rule, it ought to have been if the objection were not to be regarded as having been waived: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 (Michael Wilson), at [76]. Further, and in any event, there is nothing in his Honour's participation in the joint majority judgment in that case in the Full Court remotely capable of giving rise to a reasonable apprehension that his Honour might not have brought an impartial and unbiased mind to the resolution of the issues raised in the original jurisdiction in the present proceeding. That is the relevant test: Michael Wilson, at [31], and the authorities cited at fn 27. 11 The views expressed by the Full Court apply equally in respect of my hearing of the Substantive Proceeding. My involvement in Minister for Home Affairs v [PD] cannot possibly give rise to a reasonable apprehension that I might not bring an impartial mind to the resolution of the Substantive Proceeding. 12 In [PD] v Carter, I dismissed the applicant's application for judicial review. The Full Court dismissed the appeal. The Full Court noted at [14] that the applicant "sensibly" did not press a contention that I should have disqualified myself. 13 The applicant's present complaint about my involvement in [PD] v Carter seems to be that I made rulings against her in case management hearings and in the principal proceeding. That I found against the applicant cannot give rise to an apprehension of bias. The applicant also seems to complain that in case management hearings I ruled against her too quickly, that I said little in the hearing and that the hearing took only an hour. The applicant has not alleged that there is more that she wished to say at the hearings, nor that she was prevented from saying anything more. I cannot see how these circumstances might cause a fair-minded lay observer to think that I might not be able to bring an impartial mind to the Substantive Proceeding. 14 The applicant also submits that there was a regulation relevant to the decision in [PD] v Carter and that I must have known about the regulation but "kept silent". She alleges that I did so, "because of [her] conflict with the Federal Court of Australia". The applicant has not explained precisely how the regulation might have assisted her, and she does not appear to have raised the issue in her appeal to the Full Court. There is absolutely no basis for inferring that I must have known about a regulation that the applicant had not referred to and that I deliberately refrained from referring to the regulation because of the applicant's supposed "conflict" with the Court. I do not accept that the circumstances might give rise to a reasonable apprehension in a fair-minded lay observer that I might not bring an impartial mind to the resolution of the Substantive Proceeding. 15 In [PD] v Finance Minister, I dismissed the applicant's application for judicial review. The applicant complains that I refused to hear her grounds of review other than the ground of legal unreasonableness. However, as I said in my reasons in that case at [26], the applicant did not raise or argue any other grounds. In the appeal, the Full Court confirmed at [6] that no other grounds had been raised. I cannot see that the circumstances might give rise to a reasonable apprehension in a fair-minded lay observer that I might not bring an impartial mind to the resolution of the Substantive Proceeding. 16 There are a number of other allegations made by the applicant. For example, in relation to the Full Court's judgment in [PD] v Finance Minister, the applicant comments that: I suspect that the Full Court which heard an appeal from his Honour's decision had pre-determined to justify his Honour's decision and carried out the pre-determination… The applicant alleges that the Full Court made errors. She makes similar allegations in respect of the Full Court's decision in [PD] v Carter. It is unnecessary for me to respond to these allegations in order to determine the present application. 17 Whether the cases involving the applicant that I have previously decided are considered individually or in combination, I cannot see any substance in the applicant's application for my recusal from hearing the Substantive Proceeding. 18 The interlocutory application will be dismissed. I will order that the applicant pay the second respondent's costs of the interlocutory application. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.