Worldon v Transport Accident Commission of Victoria; Islam v Transport Accident Commission of NSW

District Court of NSW|2022-07-26|Before: Mr J

Background

Given the issues raised by the plaintiff, it is necessary for me to set out a number of matters, particularly those relating to the Commission's website, as this is knowledge which would not be available to the plaintiff and in terms of dealing with this application, it is appropriate that this be disclosed.
I was appointed as a District Court Judge and as President of the then Workers Compensation Commission in January 2019. At that time, the Court of Appeal decision in Attorney General for New South Wales v Gatsby [12] was a matter generally being considered by tribunal heads such as myself, especially the question of what were the powers being exercised and whether the particular institution was a court. Later in 2019, I decided the matter of Mahal v State of New South Wales (No 5) [13] in my capacity as a Presidential Member of the Commission, which found, consistent with the Court of Appeal authority of Orellana-Fuentes v Standard Kitting Mill Pty Ltd [14] that the Workers Compensation Commission was not a court. I also recall that during the development of the PIC Act, this issue was the subject of discussion and this led to the insertion of Div 3.2 into the PIC Act, which specifically dealt with the issue of federal jurisdiction, and my recollection is that this approach was consistent with the post Gatsby approach taken to the NCAT legislation. As a consequence of the above, the federal diversity jurisdiction is an issue that I am aware of as having an impact on tribunal operations.

Consideration

The plaintiff's submissions are in very general terms. Doing the best I can, I have endeavoured to discern the nature of the complaint being raised and to address it in terms. In so doing, I have given the widest scope to the plaintiff's concerns in order to deal with this matter.

Concern One

Concern One is set out above, but in broad terms alleges that I have a conflict of interest in determining the correctness or otherwise of a decision made by a member of the Commission, that member being Ms Johns.
The decision of Ms Johns, Motor Accidents Division Head of the Commission, is annexure B to the affidavit of Rita Furfaro sworn 9 June 2022 and filed by the plaintiff in these proceedings. The document is entitled "Statement of Reasons" (reasons). Ms Johns called for submissions from the parties, the now plaintiff filed submissions, the insurer did not.
At paragraphs [6]-[11] of the reasons, Ms Johns recounts submissions received from the plaintiff regarding the issue of whether or not federal jurisdiction had been enlivened in this matter. No issue has been taken in this recusal application that that is anything other than an accurate reflection of what was then put on behalf of the plaintiff. The plaintiff, Ms Johns recorded, submitted the following: "9. The claimant submits that the insurer is not a State nor a resident of a State but rather a private entity. Therefore, the claimant submits that the requirements have not been established for the operation of a federal jurisdiction in this matter. 10. The claimant notes that the Commission has stated that a Court has not determined if the TAC is a State and until it does, the TAC cannot be considered a State and therefore no jurisdictional issue arises. 11. The claimant submits that the court does not have the jurisdiction to deal with a medical dispute and same has to be dealt with by a qualified medical assessor appointed by the Commission."
Ms Johns then proceeded to "posit an opinion" having considered the matter. Ms Johns when doing this referenced the Court of Appeal Authority of Gatsby before stating: "13. … I am of the opinion that the Commission does not have jurisdiction to determine this dispute, primarily because the Claimant resides in NSW and the Insurer is the TAC. 14. The Commission maintains that the District Court is the appropriate venue to determine the issue of jurisdiction in matters such as these." (emphasis added)
Ms Johns then proceeded to dismiss the matter.
I will therefore initially deal with the issue of actual bias.

Actual bias

Actual bias has not been established with respect to this concern. My reasons are as follows.
Ms Johns, as Division Head, is a principal member of the Commission. Each member of the Commission, including Ms Johns, is an independent decision-maker. In the Statement of Reasons, Ms Johns was not ruling authoritatively on the question of federal jurisdiction. Rather, it is clear from a fair reading of her decision that she was stating an opinion, consistent with her reference to Gatsby. [15] The "opinion" in this matter is not mine, I had no role in its making. This is clear from a reading of the Statement of Reasons.
Further, the matter now presented to this Court is being argued by the plaintiff on a different basis than that which was submitted to Ms Johns. As I have set out above, the plaintiff before Ms Johns asserted that the defendant, TAC, was a private company and not part of the State. In these proceedings the plaintiff has filed submissions dated 15 July 2022, wherein a different assertion is made. In answer to the third question that I posed for consideration, the plaintiff's position now is that the defendant is in fact part of the State of Victoria and sets out reasons why that is the case. [16]
Concern One also misunderstands the nature of the proceedings currently before this Court. This is not an appeal or a review of Ms Johns' reasons. Rather, it is the Court independently exercising its statutory duty under s 26(3) of the PIC Act in determining whether this matter would involve an exercise of federal jurisdiction. This is a different undertaking to that which was undertaken by Ms Johns. As I have described in Collier above, three elements are necessary to exist to make out a claim of actual bias. Taking Ms Johns' decision on its face, her opinion was that due to the status of the defendant, namely that the defendant was in Victoria and the plaintiff resided in New South Wales, federal jurisdiction was potentially involved. [17] The plaintiff has not pointed to any opinion said to be held by me with respect to that question. The absence of any such stated opinion which has been proven as a fact is fatal to any allegation of actual bias. As a result, there is no basis for any concern about the mind that I would bring to the resolution of this question.
The claim of actual bias under this concern is not established.

Apprehended bias

This submission suggests that as a result of Ms Johns expressing her view about federal jurisdiction by dismissing the plaintiff's application, that I have a conflict of interest in attempting to determine the correctness of that view.
In terms of the Ebner test, [18] which I have set out at [33] above, it requires the establishment of two matters. The first limb requires the identification of what it is said might lead the Judge to decide a case other than on its legal and factual merits. In this case, it is asserted that as I am the President of the Commission, and a Commission member expressed a view about federal jurisdiction in her decision dismissing the matter, this would lead to a view that I would endorse that decision, or the opinion posited by the Commission member, rather than dealing with the case on its legal and factual merits. As I have described above in relation to the allegation of actual bias, the function the District Court is performing in relation to this matter is that as set out in s 26(3) of the PIC Act. That is a completely different process than that which was conducted before Ms Johns. The matter before the Court is not an appeal or a review of Ms Johns' decision, but rather an independent assessment by the District Court under s 26(3) of the PIC Act. Further, the plaintiff has not pointed to any opinion said to be held by me on the opinion posited by Ms Johns about the nature of the defendant. The allegation that as President I have some "interest" in this litigation, and it seems that the interest asserted is the upholding of Ms Johns' opinion, has not been established. As was said in Ebner, "[t]he 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". [19] No such articulation under the second limb of Ebner has been submitted. At its highest, the plaintiff's submission infers that my mind will not be open to argument and that rather, I will be concerned in upholding a decision by a Commission member. As I have stated above, this submission is without foundation, given that the task allocated to this Court under s 26 is not an appeal or review from that member's decision. It is a completely separate exercise of power.
As neither limb of the Ebner test has been satisfied, the claim of apprehended bias is not made out, and the assertion with respect to Concern One has not been established.

Concerns Two and Three

Concerns Two and Three are related, in that they concern matters appearing on the Commission website. I have set out beneath the heading "background" above, the various matters within my knowledge regarding the development of the federal diversity jurisdiction section of the Commission's website. I will consequently deal with them together.

Actual bias

As I have outlined above, there are three elements which must exist to establish actual bias. [20]
The first is a contention that I, as the decision-maker, have an opinion on a relevant aspect of the matter in issue. In terms of this element, I accept that in the video on the website I expressed a view that the Commission was not a court. However watching the video as a whole, the remarks were prefaced by a comment that I was not giving legal advice nor a constitutional lecture and that this information was presented as guidance and direction for practitioners. For the purposes of this first element, I accept that I have expressed an opinion on the first of the three questions I have asked the parties to address in this matter.
The second element requires the proving that I will apply that opinion to the matter in issue. The problem with this submission is that there is no contradictor, to the contrary there is agreement on the matter in issue. As senior counsel for the plaintiff rightly conceded at the hearing of this application, on the first question of whether the Commission is a court or not, there is no contest amongst the parties. Namely, the submissions filed by both parties, as I have stated above, both assert that the Commission is not a court. The third element requires the decision-maker to proceed to make the decision without giving fresh consideration to whatever the facts or arguments might be. There is no contradictor in this matter that the Commission is not a court on reading of the submissions filed by both parties, and senior counsel for the plaintiff's own assertion was that there appeared to be a "broad consensus" amongst the parties in this respect. [21] There is therefore no identification of the contradictor's facts or arguments that I would fail to consider.
The second and third elements are thus not established.
I would also remark that with regard to Questions Two and Three which I have posited for answering in these proceedings, neither has been addressed in terms on either the Commission website or video, save and except for one matter. By decision dated 22 July 2022, his Honour Judge Wilson SC of the District Court issued a decision in Condon v Bartley & ors [22] where his Honour inter alia dealt with the status of the defendant in these proceedings. [23] Reference to that decision of his Honour has recently (26 July 2022) been placed on the Commission's website. The plaintiff has not drawn my attention to any publication where I have expressed a view with respect to Questions Two and Three. In the absence of such a view existing, none of the elements of actual bias have been satisfied by the plaintiff. However I would remark that in relation to Question Three, there is also no dispute between the plaintiff and defendant regarding the answer to that question, both contend that the defendant is part of the State of Victoria.

Apprehended bias

Apart from reference to his Honour Judge Wilson's recent decision, about which I have said nothing, there is no opinion posited either by me on the video or on the Commission website regarding the status of the defendant which is the subject of no dispute amongst the parties. Likewise, there is no discussion or mention on the Commission's website or in the video regarding the answer to the second question, namely whether the Commission decision-maker in this matter will be exercising judicial or administrative power. The plaintiff has not made any submission which points to any circumstance where I have posited an opinion on the possible answers to Questions Two and Three.
The only issue that apprehended bias could therefore arise in respect of is the view expressed that the Commission is not a court. The matter for consideration here is whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial or unprejudiced mind to the resolution of this question.
Much has been written about the qualities of the fair-minded lay observer. In Pollard v Wilson, [24] McClellan CJ at CL (Macfarlan and Young JJA agreeing) said that: "The 'fair minded lay observer' is not completely unaware of the trial process. He or she will be aware that modern judges in the interests of effective case management may intervene and may engage in robust dialogue with the bar: Johnson at [13], [46]. The observer is also assumed to understand that when, during the course of proceedings, a judge expresses views which suggest that he or she may be inclined to a particular view of any issue, judges are not taken, on that account alone, to have prejudged any outcome: Johnson at [13], [46]." [25]
This observer is also assumed to have knowledge of all of the material and objective facts associated with the case. [26] The observer will also have regard to the fact that 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". [27]
Observing the website, the fair-minded lay observer would: 1. Read the contents of the website and view the video as a whole. Having done so, the observer would note that I have made no remark or advanced any opinion with respect to the answers to Questions Two and Three. This observer would also remark that the matter upon which an opinion was expressed was the status of the Commission as not being a court. 2. With respect to the video, understand that the remarks there were prefaced by the comment that legal advice was not being given, that it was not a constitutional lecture, and that the information was provided for the guidance and direction of practitioners. 3. Understand that the website and the video expressed a view that the Commission was not a court, and with respect to the website referenced a decision of a higher court (Gatsby). 4. Understand that the question as to whether or not the Commission was a court was a legal conclusion to be reached after considering various matters pertaining to the Commission structure and the application of decided authority to that structure. 5. Also be aware that parties to litigation submit arguments with respect to matters in dispute. In this case, the fair-minded observer would be taken to the view that I expressed that the Commission was not a court (prefaced by the comments in the video) and that neither of the parties in this litigation have argued any differently. Indeed, both parties make the same case in answer to the first question. 6. In the circumstances, the reasonable lay observer would consider that there was broad agreement, or no dispute, with respect to the answer to the first question. 7. Additionally, the same observer might enquire as to whether or not the Judge had previously expressed a view in a decided case about the status of a tribunal. Such an enquiry would reveal that in Mahal [28] I, sitting as President of the then Workers Compensation Commission, expressed views about the status of that Commission as not being a court, based upon the Court of Appeal matter of Orellana-Fuentes. Indeed in the plaintiff's submissions, the matters of Orellana-Fuentes and Mahal are specifically referred to and relied upon in support of the answer to Question One. [29] 8. Understand that I as a Judge have sworn a judicial oath, which is a matter that the bystander would take into account. [30] 9. Understand that consistent with the objects of the PIC Act, the Commission is expected to be open and transparent about its processes and to publicise and disseminate information concerning those processes, [31] and that the content on the Commission's website was placed there in furtherance of those objects.
As I have described above, the fact that a trial Judge has expressed a view in a prior decision, as I have done in Mahal which is relied upon by the plaintiff in answer to the first question, is not normally a reason for disqualification. With respect to extra-judicial publications or items such as the video on the Commission website, a similar approach is taken. The exception would be if the view is expressed in such unqualified or strong terms that the Judge would not be able to hear the matter with an open mind. In Gaudie, the Supreme Court dealt with an application for disqualification with respect to a Magistrate who had expressed views in the media about various matters and who had dismissed a disqualification application. Johnson J described the views as being "vehemently and trenchantly expressed, and was not mild or circumspect". [32] His Honour noted that in the disqualification applications that were made against the Magistrate, the first one had been rejected in a peremptory manner, accompanied by a pointed remark. [33]
Whilst the remarks in Gaudie, as his Honour stated, were made in very strong terms, his Honour found as follows: "Given the unusual accumulated statements and events relied upon in this case, and the strength of the language used by the Magistrate, the conclusion should be reached that the bystander might reasonably apprehend that the Magistrate might not bring an impartial mind to the resolution of the questions that his Honour would be required to decide in the criminal prosecution against the Plaintiff. This conclusion is reached as a matter of real and not remote possibility, and not probability". [34]
Whilst the language on the website or the video is not couched in as strident terms as were discussed in Gaudie, the question to be answered is whether or not the bystander would reasonably apprehend that I would not bring an impartial mind to the resolution of Question One in these proceedings. Whilst I accept that I posited a view in the video which was to the effect that the Commission was not a court, I do not accept that the view was expressed in such uncompromising or trenchant terms as described in Gaudie so as to lead to the conclusion that I could not be persuaded to a contrary view. However, this question in these proceedings is by and largely academic, as there is no contradictor to the proposition that the Commission is not a court. I accept that as a Judge I am not bound by the parties' submissions and have to reach an independent view about the correctness of any proposition which is advanced by the parties, but that is not what I am considering for the purposes of this application. The question to be considered is whether or not I bring an open mind or a mind capable of being persuaded by the parties with respect to the question to be argued. The lay observer in such a circumstance would conclude that this is a question about which legal minds do not differ. In these circumstances, the application for disqualification can be seen to be somewhat artificial. Namely, the submission proceeds on the basis that my mind will not be open to consider an argument that will not be put.
I find that the second limb of Ebner has not been established and with respect to Concerns Two and Three the claims of bias, either actual or apprehended, have not been made out.

Concern Four

As senior counsel for the plaintiff stated, this concern is speculative in its nature. The plaintiff has raised the possibility that I as President of the Commission have received legal advice about the various matters, which I take to mean the three questions, which are to be decided in this matter, before deciding the substantive matter pursuant to s 26(3) of the PIC Act. Although not articulated by the Plaintiff, if this request is speculating that I am in possession of any legal advice about s 26 of the PIC Act, the answer is that I am not.
With respect to Questions Two and Three, no such legal advice was commissioned or received by the Commission. With respect to Question One, views have obviously been posited on the Commission's website and in the video, which I have discussed above. That material was a product of discussions amongst Commission management as to how to deal with the issues being raised by practitioners regarding matters potentially affected by the federal diversity jurisdiction. I was involved in such discussions and drafted the content that I read on the video. The view expressed in that content is, as I have said above, consistent with a view I reached in the matter of Mahal and which is a view about which there is no disputation in this matter. I would not term the discussions as constituting legal advice as the plaintiff has speculated, but it is true that the discussions involved identifying what was necessary in terms of content to place on the website to assist users, consistent with the PIC Act mandate I have referenced above. This material was created by staff and approved by me. The material placed on the website is consistent with the discussions had about the creation of this section of the website.
As I have stated above, the only question where a view has been posited is with respect to Question One. As I have stated above, there is a degree of artificiality regarding this complaint in that the argument, so it goes, is to the effect that I would not have an open mind to an argument which is not going to be conducted. In any event, I do not accept that the views were expressed with such vehemence (in the Gaudie sense) that it would lead the lay observer to conclude that I have either a closed mind or am not open to argument on that matter.
Concern four is a derivation of that raised in the earlier concerns and has not been made out for the reasons previously expressed and the answer I have given to senior counsel's speculative question about whether or not the Commission had received legal advice.

General

Whilst the plaintiff has raised the four issues of concern which I have dealt with above, there were general concerns later submitted by senior counsel for the plaintiff. These general concerns were expressed in the following manner: "We submit that when those four matters are taken into account and given that there are a wide variety of other District Court Judges available to hear the matter where no such issues arise, the most appropriate course is to not have your Honour as a District Court Judge ruling on PIC-related activities for the reasons that we've articulated …" [35]
In short, there is a suggestion or an inference from the plaintiff's submission that the Commission has taken a "corporate or Commission view" of certain matters, that I am a part of the creation of that corporate view and as a consequence I am not bringing either an open mind or a mind open to persuasion in the matters to be decided. This submission has not been established. If one considers the complaint in relation to Concerns Two and Three in respect of the Commission website and video, no view has been posited regarding Questions Two and Three on the Commission website. The view posited in relation to Question One needs to be considered in context, namely the entirety of the information and procedural guidance given to practitioners on the website. Additionally with respect to Question One, this also needs to be considered in the circumstances where there is no disputation amongst the parties with respect to the answer to Question One. I would remark that the plaintiff has not drawn to my attention any matter said to posit a view (either by the Commission or myself) about s 26(3) of the PIC Act for the purposes of this recusal application.
Further, this general concern does go further and suggests that there is a conflict or other problem with me as a District Court Judge ruling on "PIC-related activities". As I have set out above, the matter currently before the Court involves a consideration of this Court's jurisdiction under s 26(3) of the PIC Act. The requirement to be satisfied of the matters referred to in that subsection resides with the District Court. It is not an appeal or a review from Ms Johns' dismissal of the application made to the Commission, although I do accept that that was the mechanism by which the matter is now placed before the District Court. Ms Johns was not making a decision (and this is clear from a reading of her reasons), she posited an opinion about the matter potentially being affected by the federal diversity jurisdiction and that was all. The submissions before Ms Johns about the status of the defendant were the opposite of what is now submitted by the plaintiff. Certainly, the one question which is in dispute, Question Two, was not the subject of any decision or opinion of Ms Johns nor has it been adverted to in any Commission publication. It is consequently difficult to discern the nature of the concern being raised in this instance.
As I have said above, under s 10(1) of the PIC Act, the President has to be a Judge of a Court of record. It seems that the suggestion is that immediately by accepting the appointment as President, there is consequently created an appearance of conflict in the discharge of both roles in cases of disputes which may involve both the Commission and the Court. The inference arising from this suggestion is that the Commission and this Court are somehow in competition with each other or that their interests diverge, hence the creation of the concern expressed by senior counsel for the plaintiff. There has been no articulation, other than the mere assertion, as to how one appointment is said to influence the other and a consequence of which would produce a recusal in this matter. This assertion does not satisfy the principles which I have outlined above, which are to be applied in the case of disqualification applications.
Moreover, I do not accept that this is a concern. Under the PIC Act, various functions are divided between the two institutions, and in this circumstance under Div 3.2 for sound constitutional reasons, the responsibility to decide matters associated with the federal diversity jurisdiction must sit with a court of the State. It is simply a division of responsibility which ensures that each institution is deciding matters within power.
Finally, I will deal with the suggestion made by senior counsel for the plaintiff, and I place it no higher than that, that the Court has "generated" this dispute because the parties' filed consent orders which have not been made. The suggestion, so it goes, is that either the District Court, the Commission or both desire an answer to the questions which have been posed in this litigation and as a consequence is burdening the parties' legal teams with regulated costs in having to deal with this disputed matter. [36]
A consideration of the plaintiff's written submissions filed in this matter reveals that the suggestion made by her senior counsel is incorrect. The proposed consent orders purport to grant leave to the plaintiff to make her compensation matter application to the District Court pursuant to s 26(3)(b) of the PIC Act.
Senior counsel for the plaintiff accepted, quite properly, that the Court does not have to accept the consent position of the parties if it believes the position is legally incorrect. [37] The plaintiff's written submissions assert that if it was accepted that a medical assessor was not exercising judicial power, which I note is her position in response to Question Two, then the summons to this Court ought be dismissed. [38] In this circumstance, the making of the consent orders would not be legally sound. The plaintiff then considers the alternative in her written submissions, submitting that if it is found that the medical assessor was exercising judicial power, as a consequence federal jurisdiction would arise, and the orders in the summons should be made, and thus the consent orders accommodate that possibility. [39] As can be seen from the plaintiff's own submissions, the answer to Question Two goes directly to the identity of the correct institution in which this dispute is to be decided. Clearly there is an issue of principle which needs to be decided, particularly in circumstances where the two parties have different arguments regarding this matter, and where the plaintiff's written submissions acknowledge that the outcome of Question Two will have a bearing on the orders sought in the summons, and as a consequence, the consent orders.
No dispute has been "generated", to use the plaintiff's term. Indeed the plaintiff's own written submissions, which I have referred to above, undermine this assertion. To the contrary, the Court is properly exercising its power under s 26(3) of the PIC Act in endeavouring to satisfy itself whether or not the determination of the matter by the usual decision-maker would involve an exercise of federal jurisdiction. No issue of concern consequently arises. I also note, that upon filing of the consent orders, the parties were advised that I would give consideration to the consent orders when the matter is to be heard on 7 September 2022.
For the reasons which I have described above, the plaintiff's recusal application is refused. I would remark that the recusal application as it applies to Questions Two and Three has no foundation. The recusal application as it applies to Question One, once relevant authority has been considered, also falls away. There being no reason at law established for me to be disqualified, my duty is to hear and determine the matter under s 26 of the PIC Act 2020. The matter remains listed for hearing before me on 7 September 2022 at 10am. Given the outcome of the plaintiff's application, I will hear from the parties at the conclusion of argument on 7 September next with respect to the question of the costs of the disqualification application, which at present I will reserve.

Orders

Ms Worldon's application that I recuse myself is refused.
I note that the plaintiff in the related matter, Mr Islam, has indicated that he will be bound by any order made in respect of this application. As a matter of formality, I do not recuse myself from hearing Islam (2022/112245).
I reserve the question of costs of this application to the hearing on 7 September 2022.

Endnotes

Transcript 26 July 2022 (T), T 4.2-8.
Ms M Johns is the Division Head of the Personal Injury Commission Motor Accidents Division and a Principal Member of the Commission.
T 6.13-18.
T 6.20-32.
T 17.17-19.
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352.
[2018] NSWCA 36 (Collier), [27].
[1983] HCA 17; 151 CLR 288 (Livesey).
[2011] HCA 48; 244 CLR 427(Nicholls).
Nicholls, [31].
Gaudie v Local Court of New South Wales and Anor [2013] NSWSC 1425 (Gaudie), per Johnson J, [175] and following.
[2018] NSWCA 254 (Gatsby).
[2019] NSWWCCPD 42 (Mahal).
[2003] NSWCA 146 (Orellana-Fuentes), per Ipp JA.
See reasons, [12]-[13].
Plaintiff's written submissions, [54]-[68].
Ms Johns' reasons, [13].
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner).
Ebner, [8].
Collier, [27].
T 14.25-30.
[2022] NSWDC 282 (Condon).
Condon, [44]-[49].
[2010] NSWCA 68 (Pollard).
Pollard, [93], citing Johnson v Johnson [2000] HCA 48; 201 CLR 488 (Johnson).
Webb & Hay v R [1994] HCA 30; 181 CLR 41.
Johnson, [12].
Mahal, [257]-[262].
Plaintiff's written submissions, [10].
Johnson, [12].
Section 3(b) and 3(f) of the PIC Act.
Gaudie, [180].
Gaudie, [186].
Gaudie, [197].
T 6.20-26.
T 18.5-15.
T 17.5-7.
Plaintiff's written submissions, [69].
Plaintiff's written submissions, [72]-[76]. 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: 29 August 2022

Actual bias

If a Judge is affected by actual bias, this would disqualify the Judge from sitting. Gleeson JA in Collier v Country Women's Association of New South Wales [7] discussed the principles with respect to actual bias in the following terms: "In Reid v Commercial Club (Albury) Ltd, the following summary of principles was stated: [68] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited. [69] Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented': Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127]. [70] As Gleeson CJ and Gummow J observed in that case at [71]: 'The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.' [71] In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case. [72] His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded. [73] The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290: 'The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned.'" (emphasis added)
As can be seen from this authority, an allegation of actual bias must be clearly proven based on cogent evidence. The three elements referred to by Hayne J must be established.

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