Singh v Medical Council of NSW

Apprehended bias - relevant principles

1. The relevant principles are well known, but their application in particular cases will not necessarily be clear. A concise statement for present purposes may be found in the decision of the High Court of Australia in Ebner v Official Trustee in Bankruptcy [2000] HCA 63. In a joint judgement, Gleeson CJ, McHugh, Gummow and Hayne JJ said; 6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), 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[13]. That principle gives effect to the requirement that justice should both be done and be seen to be done[14], 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. 7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. 8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) 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. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
2. It is also necessary to set out an extract from the judgement of Deane J in the High Court of Australia in Webb and Hay v R [1994] HCA 30,(1994) 181 CLR 41.At CLR 71. His Honour said; There is support in some learned writings ((94) See, e.g., Evans, De Smith's Judicial Review of Administrative Action, 4th ed., (1980) at 264.) and judgments ((95) See, e.g., Reg. v. Altrincham Justices; Ex parte Pennington (1975) QB 549 at 553-554.) for the view that the reasonable apprehension or suspicion test and the real likelihood of danger test should both be retained and applied, either alternatively or cumulatively, depending upon the appropriateness of one or both to the circumstances of the particular case. I do not accept that view. 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 which 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 ((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.). The material objective facts include, of course, any published statement, whether prior, contemporaneous or subsequent, of the person concerned. If, in the particular case, the proper conclusion is that a fair-minded lay observer with a broad knowledge of those facts would not entertain a reasonable apprehension of bias, that is the end of the issue of disqualification by reason of an appearance of bias. Strictly speaking, it is unnecessary for the purposes of the present case, where no allegation of actual bias has been made, to decide whether an appellate court should entertain such an allegation. I would, however, indicate that I consider that the reasonable apprehension test is of such broad and general application that it is unnecessary and inappropriate for an allegation of actual bias to be raised before or determined by an appellate court ((98) See, e.g., R. (De Vesci) v. Justices of Queen's County (1908) 2 IR 285 at 294; Reg. v. Barnsley Licensing Justices (1960) 2 QB 167 at 187; Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR at 356- 357.).
3. In Carver v Law Society of NSW 43 NSWLR 71, the NSW Court of Appeal dealt with circumstances where the conduct of a solicitor had been investigated by a Mr Clisdell, a solicitor appointed for that purpose by the Law Society. Mr Clisdell was at relevant times a member of the Council of the Law Society and of its Professional Conduct Committee. Later, Mr Clisdell was appointed a member of a Tribunal charged with considering whether the solicitor had been guilty of professional misconduct, he having been previously involved with investigating and considering that conduct. The Court of Appeal determined that the earlier involvement of Mr Clisdell in the conduct of the solicitor was such that he should be disqualified from sitting on the Tribunal on the grounds of apprehended bias.
4. The principal judgement was of Powell JA (Stein JA and Sheppard AJA agreeing). His Honour assumed, as was conceded by the parties, that the principles of apprehended bias applied to the members of the Tribunal established under the Legal Profession Reform Act 1993.
5. After citing the extract from the judgement of Deane J in Webb set out above, his Honour said "While I accept that the mere fact that a judge, or a person in the position of the judge, is a member of a body which is a party to a proceeding may not necessarily give rise to a reasonable apprehension of bias….. nonetheless it seems to me that, any person, who was at a relevant time, a member of the governing body, or of a relevant committee of the body, which initiated the proceeding in question, is to be regarded as being disqualified by interest or association or both from sitting as, or as a member of, any Tribunal called upon to determine the proceeding in question, and it matters not that it may not be shown that the person in question took part in the relevant decision….. (at p 99).
6. In those proceedings, the evidence was that Mr Clisdell had no recollection of his dealings with the solicitor prior to his appointment to the Tribunal. His Honour was of the opinion that the mere fact that Mr Clisdell had no such recollection did not detract from the interest or association which he had had in fact with the circumstances and conduct of the solicitor under investigation.
7. Given the nature and extent of the jurisdiction and powers of this Tribunal, it is irrefutable that the principles of apprehended bias will apply to its members. There is reference to some of the relevant authorities in the decision in Khera v Law Society of NSW [2005] NSWADTAP 29 commencing at [13].

The application of the apprehended bias principles to these proceedings

1. On one approach, the conduct of the appellant which was the subject of the consideration by Dr Wroth is not in dispute in these proceedings. The primary concern of the Tribunal in dealing with the appeal is to consider whether or not any breach by the appellant of the practice conditions is such as to warrant suspension of his registration, or the making of any other order as permitted under the National Law in these appeal proceedings.
2. However, the respondent submitted (and the appellant agreed) that this case arguably involves more than non-compliance with the practice conditions. Counsel for the respondent said; "The question is whether in the context of the appellant's long history, his non-compliance means suspension is necessary to protect the health or safety of any person or persons or is otherwise in the public interest. Whilst it is true that the current proceedings are not an appeal from the decision to impose additional conditions in 2010, the question of the appellant's insight into the deficiencies previously identified in his practice of medicine, is very much relevant to the proceedings." Once one of the parties has raised the possibility that in the course of dealing with these proceedings this Tribunal might arguably need to take into account matters concerning the overall competence of the appellant to practice medicine, this would prima facie attract the notion of interest and association referred to in the judgements of Deane J and Powell JA extracted above. On this basis the principle of apprehended bias would apply. In these circumstances Dr Wroth has decided to stand down from the Tribunal and not participate in these proceedings further.
3. The circumstances in which this problem has arisen at late notice are unfortunate. It should be said that as part of her commitment to the medical profession Dr Wroth assists on many occasions in assessing the performance of medical practitioners on behalf of the Council and other professional bodies. She has often assisted in examining and assessing the competence of medical practitioners. In the circumstances it would have been impossible for her to identify the appellant as a person with whom she had previously had dealings on behalf of the Council without access to the relevant documentation. We note that the Council has in place a protocol to avoid this type of situation arising. Both parties have had the relevant documentation in their possession, presumably for some time. No good purpose would be served in considering this aspect of the matter further.

Further conduct of the proceedings

1. One member of the Tribunal having stood down, it then became necessary to consider the further conduct of these proceedings. The determination of this issue was, in one sense, more difficult than the application of the apprehended bias principles.
2. The determination of this matter requires the consideration of two Statutes, the National Law, and the Civil and Administrative Tribunal Act 2013.("the CATA"). In general terms, the National Law deals inter-alia with the regulation of health practitioners. Part 8 of that Act deals, in general terms, with the performance and conduct of health practitioners. For the purpose of Part 8 certain matters are dealt with by this Tribunal. "Tribunal" is defined in Sec 138 to mean the Civil and Administrative Tribunal ("NCAT"). NCAT is established by the CATA. That Act contains detailed provisions dealing with the jurisdiction and powers of NCAT, and ancillary matters. Sec 165A of the National law makes it clear that in relation to Division 10, which deals with the constitution and proceedings of NCAT for the purposes of the National Law, those provisions are to apply despite anything to the contrary in the CATA.
3. The relevant provisions within the National Law are in the following terms; 165A Relationship with NCAT Act [NSW] The provisions of this Division are intended to apply despite anything to the contrary in the Civil and Administrative Tribunal Act 2013. Subdivision 2 Constitution of Tribunal 165B Constitution of Tribunal for complaints, applications and appeals [NSW] (1) If a complaint is referred to the Tribunal or an application or appeal is made to the Tribunal under this Law - (a) the Tribunal must inform the Council for the health profession of the referral, application or appeal; and (b) the Council for the health profession must select 3 persons (whether or not they are currently Division members) to sit as members of the Tribunal in the proceedings. Note. Schedule 5 to the Civil and Administrative Tribunal Act 2013 provides the President must appoint a person as an occasional member for particular proceedings entered in the Health Practitioner Division List if that person has been selected for participation in the proceedings in accordance with any applicable procedures specified by or under this Law. If a person selected under subsection (1) (b) is not already a Division member, the President will be required to appoint the person as an occasional member in relation to the proceedings. (2) Except as provided by subsections (4) and (5), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by - (a) 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and (b) 2 health practitioners selected for appointment by the Council as occasional members under subsection (1) (b) who are registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal; and (c) 1 lay person (that is, a person who is not registered in the health profession) selected for appointment by the Council as an occasional member under subsection (1) (b) from among a panel of lay persons for the time being nominated by the Minister. (3) If the health profession has divisions, at least one and, if practicable, both, of the health practitioners referred to in subsection (2) (b) must be registered in the same division of the health profession as the health practitioner or student the subject of the inquiry or hearing. (4) The Tribunal, when constituted to hear appeals under this Law that are restricted to points of law, is to be constituted by - (a) in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; or (b) in any other case, 1 Division member who is an Australian lawyer of at least 7 years' standing. (5) The Tribunal, when constituted to exercise a function under section 146D or 148G, is to be constituted by a Division member selected by the Tribunal List Manager. (6) A person is not to be selected to sit on the Tribunal if the person is a member of the Council. (7) An inquiry or appeal conducted or heard by the Tribunal under this Law may relate to more than one health practitioner or student if the complaint or complaints the subject of the inquiry or appeal arise from the same conduct. 165C Effect of vacancy on Tribunal [NSW] (1) If one of the members (other than the presiding member) constituting the Tribunal for the purpose of conducting a hearing under this Law vacates office for any reason before an inquiry or appeal is completed or a decision is made in respect of an inquiry or appeal, the inquiry or appeal may be continued and a determination made by the remaining members of the Tribunal. (2) If more than one of the members vacate office, or the presiding member vacates office, for any reason before the Tribunal has completed an inquiry or appeal or made a determination in respect of an inquiry or appeal, the inquiry or appeal is terminated. (3) When an inquiry or appeal is terminated, the Tribunal may be reconstituted in accordance with this Division for the purposes of conducting a new inquiry or appeal in respect of the matter concerned. (4) In this section: presiding member means the member referred to in section 165B (2) (a). The notation contained within Sec 165 B (1) (b) makes it clear that a member of NCAT constituted for the purpose of dealing with a matter under the National Law must be appointed an occasional member of NCAT.
4. The relevant provisions within CATA dealing with occasional members are as follows; 11 Appointment of occasional members (1) The President may, by written instrument, appoint a person to be an occasional member in relation to particular proceedings before the Tribunal if: (a) the person is qualified to be appointed as a member of the kind concerned, and (b) the President is satisfied that the appointment of the person as a member is necessary to enable the Tribunal to be properly constituted to exercise its functions in the proceedings. Note. Section 13 makes general provision with respect to qualifications for appointment. A Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the assignment of members to that Division based on particular skills, expertise or qualifications. (2) Without limiting clause 12 of Schedule 2, the President may delegate the function of appointing occasional members to sit as Division members for a Division of the Tribunal to the Division Head of the Division or a List Manager of a Division of the Tribunal. (3) The instrument of appointment of an occasional member is to specify: (a) whether the member has been appointed as a Deputy President, principal member, senior member or general member, and (b) the proceedings in relation to which the member has been appointed as an occasional member. (4) An occasional member who is appointed to be a member in relation to proceedings that are allocated to a Division of the Tribunal is taken to be assigned as a Division member of that Division. (5) A person who is appointed as an occasional member holds office as such until the proceedings in relation to which the member has been appointed as an occasional member have been finally determined, unless the person sooner vacates office. (6) The proceedings in relation to which an occasional member has been appointed as an occasional member are not finally determined for the purposes of subsection (5) until: (a) the proceedings are withdrawn by a party before the substantial merits of the proceedings are considered by the Tribunal, or (b) the proceedings are dismissed by the Tribunal (as constituted by or with the member) before the substantial merits of the proceedings are considered by the Tribunal (including, where required, the giving of reasons for the dismissal and the determination of costs), or (c) the Tribunal (as constituted by or with the member) has completed all the processes necessary to decide the substantial merits of the proceedings (including, where required, the giving of reasons for the decision and the determination of costs), whichever occurs first.
5. Sec 7 of CATA deals with the circumstances in which an occasional member may be taken to have vacated his or her "office." There is, in our opinion, some significance in referring to the position of a member, including an occasional member as the holder of an office, for reasons to which we shall shortly refer. Sec 7 is in the following terms; 7 Vacancy in office of member (other than President) (1) The office of a member (other than the President) becomes vacant if the member: (a) dies, or (b) in the case of a term member - completes a term of office and is not re-appointed, or (c) in the case of an occasional member - when the proceedings in relation to which the member has been appointed as an occasional member have been finally determined for the purposes of section 11, or (d) resigns the office by written instrument addressed to the Minister, or (e) is nominated for election as a member of the Legislative Council or of the Legislative Assembly or as a member of a House of Parliament or a legislature of another State or Territory or of the Commonwealth, or (f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (g) becomes a mentally incapacitated person, or (h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or (i) is removed from office under subclause (2). (2) The Governor may remove a member (other than the President) from office for incapacity, incompetence or misbehaviour.
6. Sec 7 is confined in its terms to the circumstances in which a person ceases to be a member, including an occasional member. It does not appear to us to cover the circumstances in which a member of the Tribunal determines on his or her own volition to stand down as a member of the Tribunal in the context of particular proceedings.
7. There is a provision within CATA dealing with the reconstitution of a Tribunal during the course of the proceedings if a member "becomes unavailable for any reason" by the replacement of a member. Sec 52 is in the following terms; 52 Reconstitution of Tribunal during proceedings (1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if, before the matter is determined, the member: (a) becomes unavailable for any reason, or (b) ceases to be a member, or (c) ceases to have a qualification required for participation in the proceedings. (2) The President may not replace a member unless the President has first: (a) afforded the parties an opportunity to make submissions about the proposed replacement, and (b) taken any such submissions into account. (3) The Tribunal as so reconstituted is to have regard to the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.
8. However, Sec 52 needs to be considered in the context of Sec 165C of the National Law which we have set out above. By reason of Sec 165A it is necessary to determine whether there is anything within Sec 52 which detracts from the operation of Sec 165C. Prima facie Sec 52 applies to the circumstances of these proceedings in that a member of this Tribunal has become unavailable, and arguably, by stepping down, has ceased to be a member. Moreover, prima facie, Sec 165C does not apply because it refers to a member who "vacates office". This would appear to be a reference to the holding of an office as a member of the Tribunal. Accordingly, it may be that if a person merely steps down as a member of a particular Tribunal, but nevertheless does not formally resign his or her office, then he or she has not vacated the office of member. If this is correct, then Sec 165C would have no application to those circumstances. Whilst it might be argued that in some circumstances the situation pertaining to a member of the Tribunal may ipso facto bring about the termination of his or her office because of the provisions of Sec 7 of CATA (eg death), this is not the situation which applies in the circumstances of these proceedings. In making these observations we acknowledge that Sec 11(5) of CATA provides that an occasional member may vacate his or her office prior to the final determination of the proceedings with respect to which the appointment as a member has been made. Despite the assistance of the parties by way of submissions, we remain unsure whether a determination made by a member that he or she should stand down would ipso facto bring about a termination of the office of occasional member, or whether some other additional step is necessary for this to occur.
9. Even if Sec 165C does not apply, and Sec 52 of CATA does apply, it is still necessary to consider the effect of Sec 165A of the National Law. This leads to a determination about whether the provisions of Sec 52 of CATA are contrary to anything contained in Sec 165C. In a narrow sense, Sec 52 of CATA deals only with the circumstances of the replacement of a member and Sec 165C facilitates the continuation of proceedings upon the vacation of office of a member. The former deals with membership only and not office, and the latter deals only with the vacation of office. The former would prima facie involve the exercise of a discretion on the part of the President after undertaking the mandatory step of canvassing submissions from the parties, and the latter might arguably involve the exercise of discretion on the part of the remaining members of the Tribunal. It is certainly arguable that both provisions could sensibly operate together, and to this extent the provisions of Sec 165A would not be attracted so as to give pre-eminence to Sec 165C.
10. The review of the relevant legislative provisions which we have undertaken above has highlighted some uncertainty as to the application of some of these provisions to the circumstances of these proceedings. Our tentative conclusion is that in all the circumstances the provisions of Sec 52 of CATA apply and that Sec 165C of the National Law does not apply.
11. In the course of submissions counsel for the respondent said "it is arguable, although by no means certain, that the matter could proceed with the remaining members." Whilst we have reached a contrary conclusion, we would add that that conclusion is also by no means certain.
12. The submissions of the parties about these matters and our consideration of them have been overtaken by the pragmatic approach that both parties ultimately adopted at the conclusion of the hearing. They pointed out that they wished to avoid any uncertainty as to the validity of the further conduct of the proceedings to minimise the prospects of any appeal, that even though a large quantity of evidence had been adduced it was in documentary form and no oral evidence had yet been given in the proceedings, that the spirit and intent of the National Law was that two medical practitioners participate in the proceedings as well as the two other members, and that the proceedings were required to be dealt with promptly and without undue delay. Given the joint position of both parties, we were persuaded that in all the circumstances of these proceedings, the most effective and pragmatic course of action was to facilitate the reconstitution of the Tribunal administratively and arrangements have been made for a hearing at the earliest possible date. (We are conscious that this will also avoid the necessity for a further hearing or other process before the President as required by Sec 52(2) of CATA). We have arranged for this to occur.

Order

1. We did not make any formal order at the conclusion of the proceedings, but it is appropriate that we do so. We order that the proceedings before this Tribunal as presently constituted are terminated. 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: 10 February 2015