Maher v Adult Guardian & Anor [2011] QCA 225

Issue: apprehended bias in circumstances where the first instance decision maker Senior Member Ms Endicott also presided on the appeal.

The court:

[12] The first respondent (the Adult Guardian) did not appear on the hearing. Counsel for the second respondent (the Public Trustee), Mr Whiteford, frankly and helpfully addressed submissions to the court which supported the applicant and sought this Court’s opinion on the appropriateness of the constitution of QCAT for the determination of the applicant’s proceedings before it.

[13] There is no doubt that the applicant feels a keen sense of grievance at the manner in which her proceedings were disposed of. She deposed:

“A fundamental issue in the proceedings before (the Guardianship Tribunal) in 2009 … was whether I was an appropriate or more appropriate guardian than a Government entity. … I am also now further aggrieved by the fact that the Senior Tribunal Member Mrs Clare Endicott presided on the QCAT Appeal Tribunal which again made a determination adverse (to) myself in that it was ultimately decided in effect that I was still not more appropriate as a guardian and administrator than the … Respondents. I am aghast that such an ultimate finding … could be made … by a person who had also been involved in an earlier related decision … (on) 16 July 2009. I believe that … a person who was previously involved in the same type of decision as to my level of appropriateness should never have presided, least of all made a determination adverse to me … .”

[14] There is considerable substance in the applicant’s complaint about the constitution of QCAT which determined her application and appeal. Although it can have no practical effect in her case we consider that we should grant leave to appeal and determine the appeal on the ground of apprehended bias because the issue is an important one which goes to public confidence in the processes of QCAT and the decision of this Court may assist to avoid similar problems in the future. The court heard argument on the point raised by the appeal, as well as the application for leave to appeal.

[18] The applicant submitted:

“… there was (and remains), as a matter of possibility (real not remote), a reasonable apprehension of bias because a hypothetical lay observer would apprehend that Mrs Endicott was biased when she approached her QCATA determinations of 10 March 2011 given that she had previously, in the … Decision of 16 July 2009, determined issues or „found a state of affairs‟ which were the same or similar … to be determined in the (appeal) proceedings. One main ‘state of affairs’ was that the Applicant/Appellant was not an appropriate Guardian. … a hypothetical lay observer would undoubtedly perceive bias in that … the Applicant/Appellant (could not) now persuade Mrs Endicott that she was ‘more appropriate’ than the (Adult Guardian) … when Mrs Endicott had initially appointed the Adult Guardian in the first place … .”

[19] The submission should be accepted. In its most recent discussion on this point in British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 Heydon, Kiefel and Bell JJ said (at [126]):

“In Livesey it was said that a fair-minded observer might entertain a reasonable apprehension of bias if a judge sits to hear a case after the judge has, in a previous case, expressed “clear views” about a question of fact constituting a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question”. (footnote omitted)

The reference was to Livesey v New South Wales Bar Association (1983) 151 CLR 288.

[20] Their Honours went on:

“[139] It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public‟s perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.” (footnote omitted)

[21] Their Honours concluded:

“[145] Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial. Judge Curtis’s expressed acknowledgment of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the Laurie proceedings.”

[22] We consider that the fair minded lay observer knowing the relevant facts would entertain a reasonable apprehension of bias in the constitution of QCAT given Ms Endicott’s prior involvement in determining, adverse to the applicant, the same issues which arose for determination in the appeal.

[23] The circumstances giving rise to the apprehension are exacerbated by the most unfortunate appearance of secrecy in the choice of members to constitute QCAT for the hearing and the mode of proceeding. We do not attribute any impropriety at all to those involved in the selections, but the result has been most unhappy. However, the process and result have not been consonant with QCAT’s objects stated in s 3 of the QCAT Act to deal with matters “in a way that is … fair, just …” and enhances “the openness and accountability of public administration”. By QCAT proceeding as it did the applicant was not given any opportunity to express her opposition to Ms Endicott’s participation. The applicant was not aware until 18 March 2011, after her proceedings had been dismissed, that they had been heard or that Ms Endicott had heard them. A tribunal member, or judge, in Ms Endicott’s position should have alerted the applicant (and the other parties) to the proposed constitution of QCAT and asked whether there was objection to it. Objection would have been well founded, as we have pointed out.

[24] Danckwerts LJ noted in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 at 602 that the apprehension of bias in a tribunal member may be increased if the member omitted to disclose his or her prior involvement in a matter and did not ask whether there was objection to his or her continuing to sit. The observation has added pertinence where the tribunal member knows of her involvement, and knows that the litigant does not, and will not know until after the proceeding is determined.

[25] The appeal should be allowed and the decision of the Queensland Civil and Administrative Tribunal made on 10 March 2011, and the orders made on 14 March 2011 be set aside. The result will be that the decision of QCAT of 28 April 2010 refusing to review the earlier decisions to appoint the respondents respectively as guardian and administrator will stand, leaving those orders of appointment unaffected until they came to an end pursuant to s 26(1)(d) of the Guardianship and Administration Act 2000 consequent upon Mr Maher’s death.

Brisbane Barrister – David Cormack

 

 

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