The applicant in these proceedings, Mr Turner, has applied for me to disqualify myself from hearing this matter. The respondent, the Commissioner of Corrective Services, does not press a particular position in relation to the application but provided written submissions.
These proceedings concern written allegations of contempt under s 73 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). Mr Turner has made those allegations against the Commissioner in relation to the conduct of the Commissioner's officers and the solicitors in these proceedings. The substantive proceedings are for a review of a determination made by the Commissioner under the Government Information (Public Access) Act 2009 (NSW).
The relevant conduct or circumstances relied on by Mr Turner as a basis for the application for me to disqualify myself can be summarised as follows:
1. my involvement in hearing and determining an internal appeal to which Mr Turner was a party: Turner v Commissioner of police, NSW police force [2014] NSWCATAP 4;
2. the fact that in 2013, Mr Turner lodged "a number of complaints" regarding my "unlawful actions and unreasonable decisions"; and
3. remarks I allegedly made in these and other proceedings in which Mr Turner is a party.
[2]
The rule against bias
The rule against bias is a principle of procedural fairness preventing decision makers from making decisions if they are actually or ostensibly biased. 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 a Tribunal be independent and impartial.
Mr Turner uses words and phrases in his submission such as "conflict of interest" and "bias" but does not state whether or not he is asserting actual or apprehended bias. In the absence of any alleged conduct which would amount to actual bias, I have assumed that he intends to rely on apprehended bias and that the basis of that apprehension is that I have pre-judged his case.
The general test for apprehended bias is whether 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: Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11]. The two step process involved was explained by the High Court in Ebner v Official Trustee in Bankruptcy in the following way at [8]:
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.
For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker must not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [67] Gummow ACJ, Hayne, Crennan and Bell JJ.
A decision maker has an obligation to hear and determine the matter unless reasonable apprehension of bias can be established: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [19]; Bienstein v Bienstein (2003) 195 ALR 225 at [35]-[36]
An application for disqualification should be determined by the decision-maker whose disqualification is sought, and should not involve a contest on the facts: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436; Wentworth v Graham [2003] NSWCA 240.
[3]
Internal appeal decision
Beginning in 2012, Mr Turner has applied to the Administrative Decisions Tribunal and, since 1 January 2014, to the Civil and Administrative Tribunal, for the review of several determinations made under the Government Information (Public Access) Act 2009. The respondents to these proceedings have been the Director of Public Prosecutions, the Commissioner of Police and the current respondent, Corrective Services NSW. In all, seven written reasons for decision have been published one of which I presided over: Turner v Commissioner of police, NSW Police Force [2014] NSWCATAP 4.
In that decision, the Commissioner of Police appealed from a decision of the Tribunal granting Mr Turner an extension of time to lodge an application for review under the Government Information (Public Access) Act. Mr Turner relied on extensive written submissions and gave oral evidence at the hearing of the appeal. I decided that the Tribunal had denied the Commissioner procedural fairness and misconstrued the provision relating to the extension of time. I extended the appeal to the merits of the Tribunal's decision and refused to extend the time for Mr Turner to apply for a review of the Commissioner's decision. I was not satisfied that he had provided a "reasonable excuse" for the entire period of delay. One of Mr Turner's submissions in the internal appeal proceedings was that he had been physically assaulted and his life threatened whilst in prison. Those events were said to have delayed the lodging of the application. He wished to have the proceedings adjourned so that the Tribunal could require Corrective Services to provide copies of all relevant information relating to the alleged assaults and intimidation. I made the following findings and decisions in relation to that matter:
44. I refused the application for an adjournment because despite being asked several times, Mr Turner was unable to indicate a date or even a period of time during which these assaults were alleged to have occurred. I reminded him that it was only relevant to these proceedings if they had occurred, or if the effects were ongoing, between April and November 2012. Mr Turner responded by saying that he did not have a copy of his journal with him so he could not verify the dates. While I accept that Mr Turner is disadvantaged by not having his papers with him, he would be able to recall roughly when this assault was alleged to have occurred. Furthermore, he had an opportunity to check his journal prior to the hearing.
45. In his subsequent written submissions Mr Turner makes various allegations against prison officers in relation to events around February 2010. In the absence of any specific allegation within the relevant period, I am not satisfied that Mr Turner was assaulted or intimidated during the relevant period or that, even if he was, that that affected his ability to lodge an application within time. Consequently any alleged assaults or intimidating behaviour provides no justification for the late application.
The decision also addressed several other reasons Mr Turner put forward for the delay in lodging the application including administrative delays by the Tribunal, lack of access to his legal documents because of transfers and other issues within the prison and access to library material and paper.
Mr Turner submits that there is no merit in the internal appeal decision given the evidence he provided. In his view there was ample evidence in the 1,100 pages of material which justified the delay in lodging the application. He says that I unjustly excluded or ignored that evidence. He also asserts that the proceedings were unconstitutional and that I perverted the course of justice but provides no understandable basis for those assertions.
As I understand it, Mr Turner's submission is that the fact that I excluded or ignored relevant evidence means that I might not decide the contempt proceedings on its merits. The criticisms Mr Turner makes of my decision do not lead to the conclusion that I might not decide these proceedings impartially. Any findings about Mr Turner's credibility were confined to his particular account of events and were not directed to him as a witness in general terms. It is normally only a ground for disqualification if a decision-maker has made findings in related proceedings which are critical of the recollection, credit and behaviour of those who are also parties to a case in which the same issues of fact and credit would arise for determination: Livesey v NSW Bar Association (1983) 151 CLR 288. This is not such a case. The same issues of fact and credit do not arise in the contempt proceedings.
[4]
Lodgement of complaints
Mr Turner submits that the fact that he has lodged complaints against me, specifically to the Judicial Commission, means that I am biased against him. He provided a copy of a letter that he had written to the Judicial Commission dated 17 September 2013. That letter largely repeats the concerns he has expressed about the internal appeal decision. He provided a response to that letter dated 28 October 2013 in which the Chief Executive, Mr E Schmatt, wrote that if he wished the Judicial Commission to examine any alleged misconduct by a judicial officer he must provide details of the conduct and ensure that the particulars are verified by statutory declaration. Mr Turner did not provide details of any other complaint he has made about me but also mentioned the Independent Commission Against Corruption.
The fact that Mr Turner has made a complaint about me to the Judicial Commission, or to any other body, does not mean that I should disqualify myself for bias. In Attorney General of NSW v Lucy Klewer [2003] NSWCA 295 Davies AJA held at [20] that:
… it is not good policy and certainly not appropriate that a judicial officer should disqualify himself just because one of the parties before him has lodged a complaint with the Independent Commission Against Corruption. A judicial officer should disqualify himself only if there are facts which raise a reasonable apprehension of bias on his or her part.
[5]
Remarks made in current and related proceedings
Mr Turner also points to remarks he says I made in these proceedings. Firstly he says that I made the comment at a preliminary hearing that I had not read the evidence and would not read the evidence. Secondly, in other contempt proceedings before the Tribunal where the Commissioner of Police is the respondent, I demanded that he not write a letter in relation to the contempt issues to any person other than myself.
As I understand it, Mr Turner's submission is that these comments mean that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the contempt proceedings.
Mr Turner did not provide a transcript of the alleged remarks but, accepting for the purpose of these proceedings, that I told Mr Turner that I had not read all the material he had filed in relation to the allegations of contempt, a fair-minded lay observer would appreciate that the matter was not being heard on that day and that directions were made for Mr Turner to file and serve evidence in proper form. In those circumstances there is no basis for disqualifying myself.
In relation to the alleged remark that all correspondence in relation to the contempt application should be filed in these proceedings a fair minded lay observer would appreciate that applications for contempt under s 73 of the NCAT Act are required to be heard either by the President or by another member who is a current or former NSW judicial officer: NCAT Act, s 27(1)(b). Because I am a current NSW judicial officer, I am presiding in these proceedings. In those circumstances it is logical that all evidence and submissions in relation to this matter should be lodged in the current proceedings.
[6]
Orders
The applicant's application for Magistrate Hennessy to disqualify herself from hearing this matter is refused.
[7]
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: 20 January 2016