These proceedings involve an application for review of the decision dated 3 August 2021 of the NSW Education Standards Authority (NESA), the Respondent, to recommend to the Minister for Education and Early Childhood Learning that the registration of Yeshiva College Bondi Limited (the Applicant) for Kindergarten to Year 10 be cancelled under s 59 of the Education Act 1990 (the Act), and that the application for renewal of registration be refused under s 56 of the Act.
The hearing for this matter was listed for 4 days on 10, 11, 14 and 15 March 2022. At the commencement of the hearing on 10 March 2022 after taking appearances, I made two disclosures to the parties which resulted in an application from the Respondent for my disqualification as the Tribunal Member hearing this matter. The following are the ex-tempore decision and reasons I delivered orally at the hearing shortly thereafter.
[2]
Ex tempore decision
At the commencement of these proceedings I made the following two disclosures to the parties:
1. I attended a school called Yeshiva College for my primary school education in the 1980s. Although it has a similar name to the Applicant, it was and is an entirely different entity. The word "yeshiva" is Hebrew for "learning centre". The school I attended was a Jewish primary school which, as I understand it, went into liquidation in the early 2000s and was renamed Kesser Torah College.
2. Having reviewed the file prior to the commencement of the hearing, a director of the Applicant is known to me by association. Rabbi Menachem Dadon, who is a director of the Applicant, is the husband of a primary school classmate. I was not aware until reviewing the file that he was involved in the Applicant's school in any way. I would not classify my association with Rabbi Dadon as close or familiar.
Senior Counsel for the Respondent then also raised an additional matter, that being my appearance as counsel in a hearing some ten years ago in proceedings against the Respondent when it was known as 'The Board of Studies'. I acknowledged that I appeared for the Applicant in the matter of ANC High School Pty Ltd v The Board of Studies [2012] NSWADT 125 which was heard by this Tribunal's predecessor in May 2012.
After providing the parties with an opportunity to obtain instructions, the Respondent sought my disqualification on the grounds of there being a reasonable apprehension of bias arising from the two disclosures I had made.
In support of their application, the Respondent referred to paragraphs 18 to 21 of the affidavit of Rabbi Dr David Slavin, which they stated disclosed a close association. Those paragraphs recount the history of the Applicant's school and seek to associate the Applicant with the primary school I attended in the 1980s. However, as is made clear at paragraph 19 of that affidavit, "the original school relocated to Dover Heights and became the school known as Kesser Torah College". At paragraph 20 Rabbi Dr Slavin stated that in 2007 Rabbi Pinchus Feldman opened a new school called Cheder Chabad Lubavitch, which became Yeshiva College Bondi Limited.
The Respondent also submitted that Rabbi Dadon's role as a 'responsible person' within the meaning of s 3 of the Education Act 1990, being a director of the Applicant, was so significant that any social association with him would give rise to a reasonable apprehension of bias.
The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is objective: "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced 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) 205 CLR 337; applied in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 and Charisteas v Charisteas [2021] HCA 29; distinguished in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; see also Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71; Barakat v Goritsas (No 2) [2012] NSWCA 36 and Isbester v Knox City Council (2015) 255 CLR 135.
The application of the test 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"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits: Ebner at [8]. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed: Ebner at [8]; Charisteas at [11].
In my view the Respondent has failed to satisfy the second and third parts of the test. The logical connection between the disclosed matters and any feared departure from me deciding the case on its merits is extremely remote and is unsupported by the evidence referred to by the Respondent. Rabbi Dr Slavin's evidence makes clear that the Applicant is an entirely new school and separate entity to the school I attended over 30 years ago. The fact that in 2007, some 15 - 20 years after I attended Primary School, a new school was started at or near the original school site which was later named "yeshiva" is not enough to warrant a reasonable apprehension of bias, especially in circumstances where the word "yeshiva" means "learning centre" in Hebrew and is used by hundreds, if not thousands, of Jewish educational institutions worldwide, akin to the word "college" used by many schools.
My distant association with a director of the Applicant is also not sufficient for me to accede to the Respondent's request that I disqualify myself from hearing and determining this matter. Where association with somebody with an interest in the litigation is relied upon there must be shown to be a logical connection between the matter complained of and the feared deviation from impartial decision making: Smits v Roach (2006) 227 CLR 423. While the fact that a judge or tribunal member knows a party or witness may be a ground for disqualification, this depends entirely on the degree and the circumstances of the acquaintanceship and association. Here, we are not talking about a party or a witness, but rather a director of a party, who is not the subject of any findings by the Respondent, is not the subject of any issue for determination by the Tribunal, has not provided any evidence in these proceedings, and is not the subject of any evidence in these proceedings upon which the Tribunal may be required to make a finding of fact. More significantly, the association is one that is distant and remote, connected to the director's wife rather than the director himself, and is from a childhood friendship rather than current social interactions.
In relation to my acting as counsel against the Respondent when it was the Board of Studies, that occurred over ten years ago. Given the time that has passed there is no logical connection giving rise to a reasonable apprehension of bias in relation to that matter either.
An indication by a party that it wishes a judge to disqualify himself or herself is not of itself a proper ground for the judge to recuse: Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45. Judges are required to discharge their professional duties unless disqualified by law. They should not accede too readily to applications for disqualification, otherwise litigants may succeed in effectively influencing the choice of judge in their own cause: see, for example, Ebner at [19]-[23]; also Re JRL; Ex p CJL (1986) 161 CLR 342 at 352; Attorney General of New South Wales v Lucy Klewer [2003] NSWCA 295; and Raybos Australia Pty Limited v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272.
In the circumstances, I refuse to disqualify myself from hearing and determining this matter.
[3]
Order
1. The Respondent's application for disqualification of the Tribunal Member is refused
[4]
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
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
[5]
Amendments
20 April 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act the name of the Respondent has been corrected from 'National' to 'NSW' where mentioned (other than case name).
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 April 2022