Rong, Guo Wei v Minister for Immigration & Ethnic Affairs [1995] FCA 29

Although adopting different views as to the scope of the statutory immunity, counsel agreed that the protection and immunity of a Justice of the High Court were those accorded to a judge of a superior court at common law. Mr Basten does not appear for Ms McIllhatton, who has made a submitting appearance in these proceedings. Accordingly, he could not invoke the statutory immunity, if that immunity were one which only Ms McIllhatton, as a Tribunal member, could assert. The need to explore this issue was, however, obviated because Mr Markus, solicitor, announced his appearance for Ms McIllhatton. Mr Markus stated that he had been instructed that Ms McIllhatton asserted the statutory immunity to the extent (if any) that it was necessary for her to do so. There has therefore been no occasion to consider whether Ms McIllhatton is competent (as opposed to compellable) to give the evidence Mr Rares seeks to elicit in cross examination. In Duke of Buccleuch v Metropolitan Board of Works (1872) LR 5 HL 418, the question was whether evidence given by an umpire or arbitrator was admissible in proceedings to enforce his award. The answers given by Cleasby B. (at 432-433) were as follows: "1. That the umpire was a competent witness, like any other person, to prove matters material to the issues. 2. That questions might be properly put to him for the purpose of proving the proceedings before him, so as to arrive at what was the subject-matter of adjudication when the proceedings closed, and he was about to make his award. 3. That as regards the effect of the award no questions could properly be put to the umpire for the purpose of proving how it was arrived at, or what items it included, or what was the meaning which he intended at the time to be given to it."

His Lordship also said this (at 433): "First: With regard to the competency of the umpire as a witness, I am not aware of any real objection to it. With respect to those who fill the office of Judge it has been felt that there are grave objections to their conduct being made the subject of cross-examination and comment (to which hardly any limit could be put) in relation to proceedings before them; and, as everything which they can properly prove can be proved by others, the Courts of law discountenance, and I think I may say prevent them being examined. But those objections do not apply at all to a person selected as arbitrator for the particular occasion by the parties, and he comes within the general obligation of being bound to give evidence. The practice entirely agrees with this; for it is every day's practice for the arbitrator to make an affidavit where a question arises as to what took place before him, and I have known him to be examined as a witness without objection."

Dord Chelmsford (at 457-458) gave his reasons for rejecting the evidence: "To ask the umpire, as the counsel for the Defendants did, what led him to the conclusion as to the proper sum to be awarded was really to inquire what passed through his mind before he formed his judgment. It would be, in my opinion, contrary to all principle so to scrutinise the exercise by an arbitrator of a discretionary power to award compensation; and I think that all the questions put with this object were objectionable, and the evidence given upon them ought to be struck out."

In Hennessy v Broken Hill Co. Pty Ltd (1926) 38 CLR 342, at 349, the joint judgment of Knox CJ, Gavan Duffy and Starke JJ stated the relevant principle as follows: "Even Judges are competent witnesses, though they may not be compellable to testify as to matters in which they have been judicially engaged; but their evidence has been received upon matters which did not involve the exercise of their judicial discretions and powers.... Arbitrators, too, are equally competent as witnesses, though they cannot be compelled to testify as to the reasons which influenced them in the exercise of their discretionary powers or to explain, vary, contradict or extend their awards...."

In Zanatta v McCleary [1976] 1 NSWLR 230 (NSW CA), it was sought to read affidavits, deposing to an out of court statement by a judge concerning his reasons for reaching a particular decision. The affidavits were rejected and counsel indicated his intention to call the judge as a witness. Samuels JA (at 239) observed that the Duke of Buccleuch's Case concerned the evidence of arbitrators, but that their privileges could not be greater than those of judges. "Hence, in my opinion, the principle is this: A judge of a court of record cannot be compelled to testify to the considerations which led him to his decision, or to the manner in which he has exercised his judicial powers."

In the light of these authorities Mr Basten submitted that Ms McIllhatton could not be asked about her reasoning processes or motivation for reaching her decision. Mr Basten accepted that Ms McIllhatton: (a) could be asked about conversations (not relating to the prior conduct of proceedings by her) that occurred outside court; (b) could be asked about events occurring in the courtroom, but when the tape recorder was turned off; and (c) could be cross-examined as to credit in relation to those issues. However, in Mr Basten's submission, the cross-examination could not trespass into the considerations which led Ms McIllhatton to reach the conclusions she did, nor into the way in which she exercised her powers. Mr Rares made two answers to those submissions. First, he cited a passage in the judgement of Lord Reading CJ in Recher & Co v North British and Mercantile Insurance Company [1915] 3 KB 277 (KBD), at 287: "We have been referred to the case of Duke of Buccleuch v Metropolitan Board of Works..., but an examination of that case shows that it is not an authority for the proposition that an arbitrator, or a person in the position of this auditor, cannot be cross-examined for the purpose of testing the evidence which he has given, or can only be cross-examined in the very limited way permitted by the umpire in this case. It must be borne in mind that the evidence under discussion in the Duke of Buccleuch's Case was evidence in chief, to which very different considerations apply. The House of Lords did no doubt limit materially the questions which could be put in examination in chief to an arbitrator; but, when evidence has been given in chief, the cross-examination of the witness, so long as it is directed to a relevant issue, cannot be limited in the way contended for, nor is there anything in the Duke of Buccleuch's Case which does so limit it."

Mr Rares pointed out that Ms McIllhatton had sworn an affidavit and that the affidavit had been read in the proceedings (although it did not deal with her reasoning processes or motivation). Mr Rares contended that, in accordance with the passage in Recher, cross-examination could not be limited, so long as it was confined to a relevant issue. I do not think that the principle applied in Recher is applicable to the circumstances of the present case. In Recher, a policy of insurance provided that the amount of all losses under the policy should be assessed by the insurer's auditors. The auditors' certificates were put in evidence in one arbitration and an auditor was called as a witness to state that he was satisfied that the losses had in fact been sustained. It was in this context that the ruling was made. The extent to which an auditor, or an arbitrator agreed between the parties, may be cross-examined involves, in my view, different considerations to those applicable to a judicial officer, or to a Tribunal member clothed with the statutory immunity of a judicial officer. As Samuels J.A. said in Zanatta v McCleary (at 239), the policy reasons for the immunity of judges are stated concisely in the passage cited earlier from the judgment of Cleasby B. in the Duke of Buccleuch's Case. Cleasby B. specifically distinguished between the position of a judge and that of an arbitrator (the position of the auditor in Recher being different again). In a particular case it may be appropriate, or even necessary for a judge (or a Tribunal member having the immunity of a judge) to give evidence about the course of events occurring in his or her courtroom: compare Xiang Sheng Li v Refugee Review Tribunal, Moore J, Federal Court of Australia, 14 December 1994, unreported, at 14. If that were sufficient to expose the judge to cross-examination on his or her reasoning processes or motivation, the rationale for the immunity, if not destroyed, would be severely undermined. The position might be different if the judge chooses to give evidence in chief about his or her reasoning processes or motivation. However, this is not the present case and I prefer to express no view about it. Mr Rares' second argument proceeded from the proposition that an allegation of actual bias, if made out, involves the Tribunal in what is commonly described as a jurisdictional error. That being so, Mr Rares argued, evidence relating to the member's motivation cannot be characterised as infringing the immunity enjoyed by her "in the performance of [her] duties as a member", within the meaning of s.60(1) of the Administrative Appeals Act 1975. It follows that cross-examination of the member can take place where the objective is to demonstrate actual bias. The difficulty with this argument, as Mr Basten pointed out, is that it proves too much. It is not only bias on the part of a Tribunal that establishes jurisdictional error. Such error may be constituted, for example, by a failure to comply with the requirements of procedural fairness or natural justice, a misconstruction of the governing legislation, or a failure to take account of relevant considerations: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL), at 171; The Queen v Dunphy; ex parte Maynes (1978) 139 CLR 482, at 496; BHP Petroleum Pty Ltd v Balfour (1987) 71 ALR 711 (H Ct). The point has recently been illustrated by two decisions of the New South Wales Court of Appeal, holding that a denial of procedural fairness in the course of sentencing is a jurisdictional error, amounting to a refusal to exercise jurisdiction: Kopuz v District Court of New South Wales (1992) 28 NSWLR 232; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. If Mr Rares' argument were correct, any allegation of procedural unfairness and most allegations of error of law, would make the Tribunal member compellable (not merely by way of cross-examination after having chosen to give evidence in chief) to give evidence about his or her reasoning processes or motivation in making a decision. This would, in my view, effectively negate the purpose underlying the grant of statutory immunity in s.166G(1) of the Migration Act 1958. The grant of protection and immunity is expressed to extend to a member "in the performance of [her] duties as a member". In my view, without stating the scope of the immunity exhaustively, where the member embarks on an inquiry that the Tribunal is authorised to undertake, conduct in the course of that inquiry is properly characterised as "performance of [the member's] duties as a member". This accords with the broad view taken by the High Court of the phrase "performance of any duty": Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1, at 6; Herscu v The Queen (1991) 173 CLR 276, at 282-283. The statutory immunity therefore applies notwithstanding that an allegation of bias is made in relation to the Tribunal. Mr Rares referred me to Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 19. There the Court refused special leave to appeal from a decision of the New South Wales Court of Appeal (Ex parte Electronic Rentals Pty Ltd; Re Anderson (1970) 72 SR (NSW) 532). Windeyer J., with whom Barwick C.J. and Owen J. agreed, held that in criminal proceedings in which the validity of certain informations was challenged, it was competent for the justices of the peace who signed the informations to give evidence of the circumstances in which they came to do so. That evidence was that the justices had been misled and had not read the documents they were asked to sign (and in one case the justice thought he was merely witnessing legal document). Windeyer J. referred (at 37) to the Duke of Buccleuch's Case as authority for the proposition that an arbitrator "may be questioned as to what matters were presented for his consideration. He cannot be asked what passed in his mind leading him to exercise his discretion in the way he did in relation to any matter he had to decide." His Honour considered that this principle did not apply to the case before him "Their evidence was not of what led them to exercise a discretion. What they said was that they did not exercise any discretion at all - in effect that they did not know what they were doing beyond signing their names. They were told, they said, that their signatures were required as witnesses: that is to say that they were asked to authenticate the acts of another person. But what they actually signed were summonses purporting to be their own acts, commands issued by them as a result of informations duly laid. They were, they say, misled. I cannot agree that their evidence to the magistrate was in the circumstances inadmissible..."

See also Ex parte Electronic Rentals Pty Ltd (1970) 72 SR(NSW) 532, at 539, per Asprey J.A. I do not think that the holding in Electronic Rentals leads to the conclusion that the Tribunal member can be examined as to her reasoning processes or what passed through her mind. Windeyer J. did not cast doubt on the principle applied in the Duke of Buccleuch's Case, nor on the rationale for that principle. The evidence that was admitted was to the effect that the justices did not understand that they were exercising a statutory function, in part at least because they were misled. This is quite different, in my opinion, from adducing evidence as to how and why a Tribunal member performed her functions, with a view to establishing that she displayed actual bias. Accordingly, I do not think that Electronic Rentals casts doubt on the propositions I have accepted. I was also referred by Mr Rares to Re Whitely and Roberts' Arbitration [1891] Ch. 558 (Ch D). In that case evidence was admitted that an arbitrator had made an out of court admission that he had been bribed by one of the parties. Kekewich J. admitted the evidence, on the basis that it did not relate to what occurred in the course of the award, but to what took place beforehand (at 567). This is different from the evidence Mr Rares seeks (or hopes) to adduce and to which Mr Basten objects. Mr Basten accepts that evidence may be adduced of transactions or events occurring outside the Tribunal, not relating to the members' reasoning processes. I should add that I do not think there is anything in the judgment of Mason J. in The Queen v Marks; ex parte Australian Building Construction Employees Builders Labourers' Federation (1981) 147 CLR 471, at 483-484, that is inconsistent with what I have said. It follows that I accept Mr Basten's submissions. I shall rule on particular questions asked of Ms McIllhatton in accordance with these reasons. I certify that this and the preceding 11 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. Associate: Dated: 13 February, 1995 Heard: 8 February, 1995 Place: Sydney Decision: 13 February, 1994 Appearances: Mr S. Rares SC with Ms R. Sofroniou and Mr M. Lawler, instructed by Walsh James Solicitors, appeared for the Applicants. Mr J. Basten QC with Mr N.J. Williams, instructed by the Australian Government Solicitor, appeared for the First Respondent. Mr A. Markus of the Australian Government Solicitor, for Ms McIllhatton.