Discussion
9While it is by no means clear, the Applicant appears to argue that the Planning Meeting referred to were preliminary conference under section 74 of the ADT Act, and objects to my determining the matter under section 74(5). That section provides:
(1) The Tribunal may, before formally commencing to determine an application, confer informally with, or arrange for a member or assessor to confer informally with, the parties to the proceedings in a preliminary conference and make any determination with respect to the proceedings that is agreed to by the parties.
(2) If proceedings are referred under this section to a member or an assessor and the parties agree to the determination of the member or assessor, the determination has effect as a decision of the Tribunal.
(3) (Repealed)
(4) If the proceedings are not determined under this section and proceed for a formal determination by the Tribunal:
(a) evidence is not to be given, and statements are not to be made, concerning any words spoken or acts done at a conference held in accordance with this section unless the parties otherwise agree, and
(b) any member or assessor who presided over a preliminary conference in respect of the proceedings may participate as a member of the Tribunal determining the proceedings, or as an assessor in those proceedings, unless:
(i) a party to the preliminary conference objects to the member or assessor further participating in the proceedings, and
(ii) the party demonstrates in that objection that the further participation of the member or assessor is likely to prejudice the party's case.
(5) For the purposes of subsection (4) (b), a party objects to a member or assessor further participating in proceedings only if:
(a) the objection is lodged with the Registrar within 14 days after the conclusion of the preliminary conference (or within such other period as may be prescribed by the rules of the Tribunal), and
(b) the objection is in such form as may be prescribed by (or approved under) the rules of the Tribunal.
(6) The President may direct that a preliminary conference is to be held under this section in the case of any applications made to the Tribunal of a kind specified in the direction.
10The Planning meeting conducted on 10 September 2013 and 8 October 2013 were not listed as or conducted as preliminary conferences under section 74. I made no determination of the issues during that hearing. I made directions for the filing of further material and submissions and decided to determine the issue on the papers.
11In the circumstances, section 74 of the ADT has no role to play.
12The law in relation to the issue of bias is settled. In the present matter I understand that the Applicant is alleging Apprehended Bias and not actual bias.
13Apprehended bias exists when 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. In Ebner, a majority of the High Court explained that application of this principle 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. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
14In LB v Hunter New England Area Health Service [2009] NSWADT 101, Deputy President Handley considered the types of bias. At paragraph 9 of his decision he referred to an explanation of the bias rule in a publication of the Commonwealth Administrative Review Council, Decision Making: Natural Justice (Best Practice Guide 2, August 2007), at pp 3 - 4:
'Actual bias' means that the decision maker has a predisposition to decide the matter otherwise than with an impartial and unprejudiced mind. 'Apparent bias' means that in the circumstances a fair-minded observer might reasonably suspect that the decision maker is not impartial. In most cases, apparent bias is enough to disqualify a person from making a decision.
Whether a decision maker is disqualified or not is a legal question. A decision maker is not disqualified simply because a person whose interests are affected by the decision alleges bias or asks for a different decision maker. It is not about whether an affected person thinks the decision maker is biased; it is about whether a fair-minded observer would reasonably suspect bias.
An apprehension or suspicion of bias can arise from things the decision maker says or does not say that suggest he or she is either partial or hostile to one side or has formed prejudgments and is not open to persuasion. A closed mind might be demonstrated by ignoring evidence or dismissing it for insufficient reason. Actual or apprehended bias can arise if a decision maker plays conflicting roles, such as making allegations and fact finding."
15The Appeal Panel discussed the subject in Khera v Law Society of New South Wales (LSD) [2005] NSWADTAP 29:
Bias
6 A fundamental requirement of procedural fairness is that any proceedings must be conducted by a court or tribunal without bias. Justice 'should manifestly and undoubtedly be seen to be done': R v Sussex Justices; Ex p McCarthy [1924] 1 KB 256 at 259. Bias can be actual or ostensible.
Actual Bias
7 Drummond J in Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 summarised the principles relating to actual bias at 133-134 (citations omitted):
'(a) Actual bias exists where the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.
(b) The emphasis is upon the state of mind which affects the decision-making rather than elements of the process of decision-making taken in isolation.
(c) Proof of an intentional state of mind adverse to the party is not the only way of proving actual bias. Such bias may be subconscious, provided it is real.
(d) It is not sufficient proof of actual bias to show that the decision-maker has expressed views adverse to the party's position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings. Though relevant to proof of actual bias, displays of irritation or impatience and the use of sarcasm by the decision-maker during the hearing are not, without more, generally sufficient to establish such bias, proof of which requires a finding on a question of fact, having regard to all the circumstances of the case.'
8 Present Case. The appellant represented himself at hearing, as he has done before the Appeal Panel. He points to the fact that many of his numerous applications and objections were rejected. He claims that similar submissions from the Law Society were treated inconsistently with the rulings he received. The fact that numerous applications or objections are made and most are rejected may indicate no more than that the applications or objections were of little or no merit.
9 We have reviewed the transcript. It reflects no more than the kind of cut and thrust between the parties and with the bench that might be expected in a vigorously contested proceeding where the appellant's career is at stake. Some indication that the Tribunal was not actually biased against the appellant is provided by the fact that it did not find proven the allegations of misconduct made against the appellant in respect of three of the six matters it examined. ...
Apprehended Bias
10 On the other hand, an allegation that a court or tribunal appears to be biased, and therefore its decision should be set aside, is less difficult to establish.
'[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': Ebner v The Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group [2000] HCA 63; (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] (footnotes omitted).
11 Their Honours continued:
'That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.'
12 The 'reasonable apprehension' test is less stringent than the approach preferred in the United Kingdom (at least in the case of criminal adjudications: de Smith, Wolff & Jowell, Judicial Review of Administrative Action (5th ed 1995) [12-011]) - the 'real danger' test: see generally the discussion in Webb v R [1994] HCA 30; (1994) 181 CLR 41 at 50 ff per Mason CJ, McHugh J; and at 71 per Deane J. In the High Court cases prior to Ebner, the fair minded lay observer was usually also described as a 'fair minded and informed' observer, and we have approached the question raised by this case on that basis. The following observations of Deane J in Webb v R at 73 are, we consider, of direct relevance to this case (citations omitted):
'If the test of a reasonable apprehension on the part of a fair-minded observer with knowledge of the material objective facts fell to be applied by reference only to those facts that were apparent at the time, there would be much to be said for the view that the real likelihood or real danger test should be retained to be applied in cases where some of the damaging material facts - whether prior, contemporaneous or subsequent - as ascertained by the appellate court were not known at the time of the proceedings. 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, as distinct from a detailed knowledge of the law or knowledge of the character or ability of the members of the relevant court.'
13 Recently the Court of Appeal referred to the special considerations that can affect the application of the principle to specialist tribunals. In Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Ors [2004] NSWCA 291, Giles JA (with whom Sheller and Ipp JJA agreed) said:
'22 In determining whether a decision-maker is disqualified by reason of an appearance of bias the question is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-4; Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 at [6]; Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 75 ALJR 982 at [27].
23 The nature of the tribunal and the proceedings must, however, be taken into account. In Re Finance Sector Union of Australia; ex parte Illaton Pty Ltd [1992] HCA 30; (1992) 66 ALJR 583 at 583 it was said that "the precise practical requirements of [the Livesey] principle vary from case to case. They will be influenced by the nature, function and composition of the particular tribunal ". Speaking of the Australian Industrial Relations Commission, it was said at 583-4 -
"The nature of industrial relations in this country makes it inevitable, that in a particular industry, the leading employer and employee organisations, and their officers, will be frequently involved in dispute with one another. Obviously the functioning of the Commission requires that its members participate in the determination of matters in circumstances where they have a familiarity with the industry in which the particular dispute arises, with the context of that dispute and, inevitably, with facts relevant to the dispute and with one or more of the parties to the dispute. In that regard, it has long been recognised that, in most cases, that familiarity is an advantage rather than a disqualifying factor."
24 Again, in Re Polites; ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78 it was said at 86-7 that -
" ... the test in Livesey cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal's power's exercised. Qualification for membership cannot disqualify a member from sitting."
25 And again, the system of judicial appointment from senior practitioners means that there will often have been past professional association between a judge and counsel or solicitors appearing in proceedings, or even a party. Mere past association will generally not be held to give rise to a reasonable apprehension of bias, although it is a question of degree: see Re Polites; ex parte Hoyts Corporation Pty Ltd at 91 and other cases collected in Aussie Airlines Pty Ltd v Australian Airline Pty Ltd [1996] FCA 1308; (1996) 135 ALR 753 at 759-61. In Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272 at 276 it was said that public knowledge and acceptance of such past professional association was "built into the legal system".'
16While the Applicant has referred to a number of authorities not mentioned by the Respondent, the position remains that the test as to whether there is a reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power being exercised. As noted, the test requires two steps: Ebner v Official Trustee in Bankruptcy.
17As was noted by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson at paragraph [11] (citations omitted):
That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. 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." 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".
18As Ms Johnson has submitted, the High Court has held that a decision maker should not be too ready to agree to a request by a party that he or she disqualify themselves.
19In McGovern v Ku-ring-gai Council [2008] NSWCA 209 Spigelman CJ (with whom Campbell JA agreed) said:
"14 Although the Australian test for apprehended bias, as expressed in terms of two "mights", sets a low threshold, with respect to a pre-judgment case the identification of what constitutes a lack of 'impartiality' or of 'prejudice' in the mind of the decision-maker involves an issue of some specificity.
15 The test for pre-judgment in Australian law is, in my opinion, to the same effect as that identified by the Supreme Court of Canada in Old St Boniface Residents Association v Winnipeg (City) [1990] 3 SCR 1170 where, in the terminology of the majority judgment: the decision-maker must be "capable of being persuaded" (at 1197c); pre-judgment is of such an "extent" that contrary representations "would be futile" (at 1197d-e); statements said to constitute pre-judgment must be an "expression of final opinion ... which cannot be dislodged" (at 1197f); the position of the person must be "incapable of change" (at 1197g). The "incapable of persuasion" test was applied again in Save Richmond Farmland Society v Richmond [1990] 3 SCR 1213 at 1224g.
16 A similar approach has been adopted in Australia on pre-judgment issues in Jia Legeng where, in the joint judgment of Gleeson CJ and Gummow J, their Honours referred to a test of whether the decision-maker "is open to persuasion" (at [71] and [105]), or whether the "conclusion already formed [is] incapable of alteration, whatever evidence or arguments may be presented" (at [72]).
17 To similar effect are the observations of Hayne J, namely, that a decision-maker will apply his or her opinion "without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case" (at [185]). His Honour went on to refer to the test terms of whether "the evidence will be disregarded" (at [186])."
20The planning meetings were not recorded and therefore it is not possible to refer to a transcript of what transpired, however, my recollection accords with that of Ms Johnson.
21I do not accept that the matters to which the Applicant has referred establish that I am actually biased.
22Nor do I consider that an informed, fair-minded lay observer, with knowledge of the issues raised by the Applicant, might reasonably apprehend that there is the possibility I might not bring an impartial and unprejudiced mind to the determination of these matters.
23I note the view expressed by Basten JA in Barakat v Goritsas (No 2) [2012] NSWCA 36 at paragraphs [10] - [14] in regard to the question of whether findings or comments made in the course of interlocutory proceedings were likely to offend the rule against apprehended bias if they are not directly related to a disputed issue:
10. In Ebner, there were two cases before the Court in each of which it was said that the trial judge was disqualified by reason of a shareholding in, either a party to the proceedings or, in the case of Mrs Ebner, a person with an interest in the outcome of the proceedings. A similar principle applies in circumstances where the conduct of the trial judge is said to give rise to an apprehension of bias, because "the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making": Michael Wilson & Partners [Ltd v Nicholls [2011] HCA 48; 86 ALJR 14] at [63].
11. These comments illustrate the risk which can arise if the term "prejudgment" is used imprecisely. Properly used, it must refer to the apparent formation of a view on the part of the trial judge in respect of an issue which will (or may) need to be determined at the trial. Adapting the "central and determinative question" identified by the plurality in Michael Wilson & Partners, at [68], it is necessary to ask, "might what was done in connection with [the interlocutory] applications reasonably cause a fair-minded lay observer to apprehend that the judge might not bring an impartial mind to the resolution of a question for decision at the trial?"
12. It is, accordingly, incumbent upon the party seeking recusal to identify the issues which will need to be determined, the conduct which gives rise to the apprehension and the logical connection between the conduct and the issues. There was a tendency in the applicants' submissions to gesture rather too sweepingly towards statements made by the judge expressing frustration with the applicants or, more usually, their counsel, without seeking to articulate the relevant reasoning by which the fair-minded lay observer would attribute a level of prejudgment warranting recusal.
13. For example, significant reliance was placed upon language used by the judge in the course of exchanges with senior counsel for the applicants which were said to reflect scepticism and later disdain for the applicants' case. Those submissions, however, did not squarely engage with the critical issue. The fair-minded lay observer must be taken to have heard the whole of the exchanges between counsel and the bench on the relevant days, with some understanding of what was appropriate conduct for both counsel and the court and what was not. The fair-minded lay observer is unlikely to apprehend bias against one party merely because the trial judge describes the behaviour of counsel for that party as disgraceful or tendentious, unless the observer would consider such epithets inapt to the extent of being unreasonable and indicative of an inability to bring an impartial mind to bear on the issues in dispute. For example, to describe as "tendentious" a submission which did not come to grips with the issues which has been identified, or needed to be identified might be seen as reasonable, particularly if counsel had been given more than one opportunity to address the issue. To describe the labelling of a submission by counsel as "tendentious" as "a very serious accusation" might itself fall into the characterisation it sought to dismiss: applicants' written submissions at par 80. That is because the complaint failed to identify in what way the "accusation" was not reasonable, given the context in which it was used.
14. It is necessary, rather, to commence by identifying the subject matter of the contempt proceeding, which his Honour listed for hearing before himself, and any conduct which might demonstrate a prejudgment of the issues to be determined in that proceeding.
24In the present matters it is incumbent upon the Applicant to "identify the issues which will need to be determined, the conduct which gives rise to the apprehension and the logical connection between the conduct and the issues". In my view he has not done so.
25I consider that the Applicant's complaint is really one that he did not like and disagrees with the directions I made. As a result, he claims that he will not get natural justice. I do not agree
26In my view, the issues raised by the Applicant do not provide a ground for disqualification. As a result I refuse the Applicant's application that I disqualify myself.
27These matters should be relisted for a planning meeting to determine the further conduct of the proceedings no less than 28 days from the date of this decision.