DeMarco v Macey

1. [1]

   HER HONOUR: This matter involves judicial review of a decision from the NSW Administrative Tribunal involving alleged bias and denial of procedural fairness.

2. [2]

   The plaintiff is Mr Godfrey Demarco (“the appellant”). The first defendant is David Macey. The second defendant is Debbie Macey (“the respondents”). They are husband and wife. C Lambert of Counsel appeared for the plaintiff. C Mobellan of Counsel appeared for the respondents. The parties relied on a court book (Ex A(1)-(2)). In addition, the appellant relied upon the transcript before the Appeal Panel (Ex B) and Exhibit 4 before the Tribunal Member (Ex C). The first defendant relied upon his affidavit filed 5 April 2022 (Ex 2).

3. [3]

   By summons filed 27 October 2021 the appellant seeks the following orders:

   1. (1)

      Leave to appeal from the whole of the decision below.

   2. (2)

      Appeal allowed.

   3. (3)

      The whole of the decision of the Tribunal below be set aside.

   4. (4)

      The matter be remitted back to the Civil and Administrative Tribunal of NSW for rehearing de novo.

4. [4]

   On 18 March 2022, Lonergan J granted a stay a proceedings on the following basis:

5. [5]

   On 7 April 2022, I made an order extending both stays of proceedings until this judgment is handed down.

Background

1. [6]

   A dispute arose between the respondents, who are husband and wife, and the builder, Mr DeMarco. The respondents engaged the builder to carry out renovations on their property. For convenience and without meaning any disrespect, I shall refer to the parties by name.

2. [7]

   On 8 July 2020, the NSW Civil and Administrative Tribunal (“NCAT”) determined the principal proceedings in favour of a money order payable by the appellant (respondent at first instance) to the respondents (applicants at first instance) in the amount of $317,919 in Proceedings HB 19/08505: See De Marco v Macey [2021] NSWCATAP 291 (“Appeal Determination”) at [2].

3. [8]

   On 7 August 2020, De Marco filed an Appeal in relation to the first instance decision (Appeal Determination at [22]).

4. [9]

   On 28 September 2021 in Demarco v Macey (No. 2) [2021] NSWCATAP 354, the Appeal Panel made orders in respect of the Appeal Determination that the order made by the Tribunal on 8 July 2020 was varied to substitute for the builder to pay the owners the amount of $389,184 (instead of $317,919) (at [64]); and the appeal was otherwise dismissed. On 9 November 2021, the appellant was ordered to pay the respondents’ costs.

5. [10]

   In short, subject to correcting an arithmetical error at first instance (Appeal Determination [4] to [15]), the Appeal Panel rejected all of the appellant’s other grounds of appeal. The submission challenges the decision made in relation to the correction of the arithmetical error has not been specifically raised as a ground in this appeal, but the order in which the Appeal Panel dealt with it is the subject of challenge in this Court. Therefore, it does not arise for determination in this Judgment.

The appeal to this Court

1. [11]

   On 27 September 2021, the appellant filed two summonses in this Court. One is a summons commencing an Appeal, the second is a summons Seeking Leave to appeal pursuant to Part 50 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”).

Grounds of Appeal

1. [12]

   It is unclear whether, from the appellant’s grounds of appeal, whether he is seeking judicial review or an appeal. However, in my view, it should be treated as an appeal. This is because the appellant’s first recourse from the Appeal Panel is his statutory right of appeal pursuant to s 83(1) of the NCAT Act, to which I will return.

2. [13]

   The grounds of appeal set out in the appellant’s summons filed 27 October 2021 are as follows:

   1. (1)

      The Appeal Panel erred at law in not quashing the orders of the Tribunal and ordering/remitting the matter for rehearing before a different Tribunal Member on the grounds of apprehended and or actual bias on the part of the Tribunal Member. (Apprehended or actual bias)

   2. (2)

      The Appeal Panel erred at law by acting on wrong principle and or taking into consideration irrelevant matters when:

   3. (3)

      The Appeal Panel erred at law in not quashing the orders of the Tribunal and ordering/remitting the matter for rehearing before a different Tribunal Member on the grounds that:

3. [14]

   Appeal ground (1) articulated in this Court is much wider than the actual appeal ground raised before the Appeal Panel.

Extension of time to appeal

1. [15]

   The first preliminary issue to be determined is whether the appellant should be granted an extension of time to file the summons, although it was framed in his summons as seeking leave to appeal. On 26 October 2021, the appellant who was self-represented attempted to file this summons in the Equity Division. It was rejected by the Registry. He was advised to file the summons in the Common Law Division. He did this the following day, namely 27 October 2021. The respondent does not oppose an extension of time being granted. Taking these circumstances into account, it is my view that the appellant’s explanation is satisfactory. Hence, I extend the time for filing the summons up to and including 27 October 2021.

Leave to appeal

1. [16]

   The second preliminary issue to be determined is whether leave to appeal should be granted.

2. [17]

   Section 83(1) of the NCAT Act reads:

3. [18]

   In BHP Billiton Ltd v Dunning [2013] NSWCA 421 (“BHP Biliton”) the Court of Appeal set out the following principles with respect to a grant to leave to appeal;

4. [19]

   Further, as was said in Collins v Urban [2014] NSWCATAP 17 (“Collins”) at [84]:

5. [20]

   There being the real possibility that the Tribunal was biased and the Appeal Panel erred in not quashing the orders of the Tribunal and remitting the matter for rehearing before a different Tribunal Member on the grounds of apprehended bias and that the failure of the Appeal Panel to accord the appellant natural justice or procedural fairness resulted in the hearing of the Appeal before the Appeal Panel miscarrying. These are issues of principle, questions of public importance or policy which have a general application to the administration of justice and therefore the Court should grant leave for the Appeal under section 83(1) of the NCAT Act.

6. [21]

   This Court should also exercise its discretion to grant leave as if the decision of the Appeal Panel is allowed to stand, it is more than merely arguable, that it will work a grave injustice on the appellant.

7. [22]

   The respondents submitted that, firstly there is no basis upon which the Court would grant leave as required by s 83 of the NCAT Act because the appellant has failed to identify any issues of principle; any questions of general public importance; or any injustice going beyond it being reasonably arguable that the primary judge was in error.

8. [23]

   Secondly, even if leave to appeal under section 83 of the CAT Act ought to be granted, the Appeal Panel did not err as submitted by the appellant in the summons.

9. [24]

   Appeal grounds 1 and 2 raise the issues of apprehended bias. In my view, they raise questions of general public importance and matters concerning the administration of justice. On this basis, I will grant leave to appeal.

Grounds of Appeal before the Appeal Panel

1. [25]

   To determine the grounds of appeal in the appeal before this Court, it is necessary to set out the grounds of appeal raised before the Appeal Panel, as these grounds confine the appeal grounds that can be raised in this Court. In Metwally v University of Wollongong [1985] HCA 28 at 71, the High Court emphasised that it is elementary that a party is bound by the conduct of their case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against them, to raise a new argument which, whether deliberately or by inadvertence, they failed to put during the hearing when they had an opportunity to do so. This applies to the circumstances of the matter before this Court. Had the appellant raised more far reaching grounds before the Appeal Panel it would have had the opportunity to consider them.

2. [26]

   The Grounds of Appeal raised before the Appeal Panel relevant to this current appeal are as follows: (Ex A(2), 548-9)

   1. (1)

      The Tribunal erred in law when it failed to accord the appellant, who was self- represented, procedural fairness when it refused to give the appellant sufficient time to consider and respond to the extensive oral submissions of the solicitor for the respondent.

   2. (2)

      The Tribunal also erred in law when having not provided the appellant sufficient time to consider and respond to the oral submissions of the solicitor for the respondent it ended the hearing without notice thereby failing to observe the two basic requirements of natural justice; (i) to ensure that the appellant received a fair hearing and (ii) to ensure the appellant was not subjected to actual or apprehended bias.

3. [27]

   It should be noted that the allegations of actual bias or apprehended bias raised in the grounds of appeal are limited to two topics. The first one is when Tribunal Member failed to allow the self-represented appellant sufficient time to consider and respond to extensive oral submissions. The second one was when the Tribunal Member ended the hearing without notice and failed to ensure that appellant was not subjected to actual or apprehended bias. Alternatively, the appellant says that he was denied procedural fairness.

The Appeal hearing before the Appeal Panel

1. [28]

   On 2 November 2020, the Tribunal Member’s decision was appealed before the Appeal Panel. Both parties were legally represented. C Mobellen appeared for the respondents. C Lambert appeared for the appellant. At the hearing, the following exchanges took place between the Tribunal Members and the appellant’s counsel: (T17.12-23.49)

2. [29]

   I accept that the extract of the transcript above reveals that Counsel for the appellant withdrew his submission that the Tribunal Member had predetermined the proceedings on the basis of her comments “I will not tolerate the extreme lying which you have been since you walked into this room, spinning story after story. You know what I'm talking about…”. However, it is my view that the allegation of apprehended bias was not withdrawn.

The Senior Tribunal Member’s decision dated 8 July 2022

1. [30]

   The hearing before the Senior Tribunal Member took over 4 days on 27 September 2019, 3 December 2019 and 18-19 May 2020 (via telephone).

2. [31]

   The reason that I reproduce this portion of the Senior Tribunal Members decision at [25]-[40] is that it was considered and largely adopted in the Appeal Panel’s decision:

The Appeal Panel’s decision dated 28 September 2021

1. [32]

   The Appeal Panel was comprised of Principal Member Simon and Senior Member Burton (“the Appeal Panel”).

2. [33]

   The Appeal Panel recorded:

3. [34]

   The submissions made by counsel for the appellant before the Appeal Panel and set out earlier go way beyond the grounds of appeal articulated in the Notice of Appeal.

4. [35]

   Under the heading, “Consideration and conclusion on appeal grounds, Procedural Fairness”, the Appeal Panel stated at [37]:

5. [36]

   That transcript and the written and oral submissions concerning the transcript before the Tribunal Member were also before this court and I have carefully read them.

6. [37]

   At [38]-[55] the Appeal Panel continued:

Judicial Grounds (1)-(2) – Actual and apprehended bias

1. [38]

   In these grounds of appeal, the appellant contends that the Appeal Panel erred at law in not quashing the orders of the Tribunal and ordering/remitting the matter for rehearing before a different Tribunal Member on the grounds of apprehended and or actual bias on the part of the Tribunal Member. Further, it is argued that the Appeal Panel erred at law by acting on wrong principle and or taking into consideration irrelevant matters when: considering the ground of apprehended and or actual bias on the part of the Tribunal Member; and or dismissing the ground of apprehended and or actual bias on the part of the Tribunal Member.

2. [39]

   The parties have referred to many authorities concerning: actual, apprehended and unconscious bias. I shall reproduce the most relevant ones here.

3. [40]

   In Polsen v Harrison [2021] NSWCA 23 (“Polsen”), the Court of Appeal set out the principles that underpin the test of the reasonable fair minded lay observer at [46]:

4. [41]

   In VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 (“VFAB”), Kenny J in the Federal Court said at [81]:

5. [42]

   Recently, in the decision concerning bias in Choi v Secretary, Department of Justice and Communities [2022] NSWCA 172, Ward P stated:

6. [43]

   These principles of apprehended bias also apply to a Senior Tribunal Member.

7. [44]

   I have confined the appellant’s submissions to those that relate to the grounds articulated in the Notice of Appeal.

8. [45]

   Although it is true to say an allegation of conscious pre-judgment or conscious bias was withdrawn, it is not true to say that the potential for unconscious bias was withdrawn and the appellant proceeds on this aspect of Grounds (1) and (2).

9. [46]

   On the final day of the hearing when the self-represented applicant has been forced on by the Tribunal to make closing submissions, other than on one occasion, the Tribunal Member is entirely non-responsive, for the most part says nothing but “Mn-hmm” and immediately soon after this exchange abruptly terminates the proceedings without notice.

10. [47]

    It should be observed that on a plain reading of the face of the transcript it cannot be said that the comments directed by the Senior Tribunal Member at the appellant throughout the proceedings, could or should be characterised as simple frustration. The frequency and very nature of the comments in and of themselves, although perhaps engendered by the Tribunal Members “evident frustration” are both hostile and at times derogatory.

11. [48]

    The Appeal Panel’s decision makes no reference to the objective informed fair-minded observer anywhere in its’ decision nor does it make any reference to the individual exchanges relied upon by the appellant in its submissions before the Appeal Panel, nor does it make any reference to what might have been the cumulative effect of the comments by the Tribunal Member.

12. [49]

    In fact, the reasoning of the Appeal Panel amounts to the following invalidly premised syllogism; (i) the Tribunal expressed evident frustration with the appellant; (ii) the Tribunal expressed an equal if not greater level of frustration with the respondent; therefore (iii) the appellant was accorded procedural fairness, natural justice and a fair hearing.

13. [50]

    The reasoning of the Appeal Panel is fallacious as both the major and minor premises are negative and therefore, as per the rules of syllogistic reasoning it follows the conclusion cannot be positive. It goes without saying that reasoning of this nature does not satisfy the test required by the authorities for either actual or apprehended bias and is an irrelevant consideration.

14. [51]

    In light of the comments and conduct of the Senior Tribunal Member there was an objective possibility that an informed fair-minded observer might apprehend that the Tribunal Member would not determine the matter impartially.

15. [52]

    It is arguable that these comments and conduct are (i) the factor which might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits; (ii) the comments and conduct caused a deviation from a neutral evaluation of the merits in that the Tribunal member did not have an open mind to the arguments and evidence that was put before her by the appellants; and (iii) there was a reasonable apprehension of her not having an open mind to the arguments and evidence put before her by the appellant and therefore a reasonable apprehension that she would decide the matter otherwise than as a result of neutral evaluation of the merits of the matter.

16. [53]

    Contrary to what is asserted at appeal submission [15], the Appeal Panel addressed the questions of bias and fair hearing.

17. [54]

    Given the appellant does not dispute that it withdrew any allegation of any inference of pre-judgement (NCAT Appeal Determination [48]), the appellant has not identified how it was open to it now to raise the issue of actual unconscious bias in these proceedings. There is no evidence that the issue of actual unconscious bias was raised during the hearing of the Appeal.

18. [55]

    It is evident that the Appeal Panel considered the issue of bias on a cumulative basis and respectfully correctly when it considered the approach of the Tribunal on the whole as being “in an even-handed manner”.

19. [56]

    To the extent that the real gravamen of the appellant’s complaint is that the NCAT Appeal Panel should have considered each and every ‘intervention’ by the Tribunal at first instance. The appellant does not articulate how it presented its case in that manner before the Appeal Panel. It is not evident that it asked the Appeal Panel to “consider each of these individual comments” (Appeal Submissions [36]). Hence, the appellant should not be permitted to raise the issue anew in these proceedings.

20. [57]

    The question that arises is whether the appellant has identified the ‘hypothetical factor’ in relation to which the Senior Member at first instance might have decided the case other than on its legal and factual merits which are said to give rise to an apprehension of bias.

21. [58]

    In any event, the appellant does not articulate how any error in the NCAT Appeal Panel’s approach in this respect led it into material error of law.

22. [59]

    In reply, the appellant’s submissions covered topics that were not articulated as grounds of appeal in the summons. As the allegations of bias against a Tribunal Member are of a very serious nature the appeal grounds need be set out with precision. I need only refer to a few of them which are somewhat repetitive.

23. [60]

    The test for determining bias, in particular apprehended bias, is not whether the Appeal Panel considers the Tribunal’s conduct to be even-handed. Rather, it 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 to be decided. It should be noted by this Court that the term ‘fair minded lay observer’ appears nowhere in the decision of the Appeal Panel.

24. [61]

    Therefore, the reasonableness test as to whether or not a fair-minded lay observer would have apprehended bias on the part of the Tribunal is relatively low. And it is submitted that the conduct of the Tribunal in this matter satisfied this relatively low test and the Appeal Panel erred at law in failing to find apprehended bias on the part of the Tribunal.

25. [62]

    In identifying that rationale, Lord Hewart was not referring to the fundamental importance that justice should manifestly and undoubtedly be seen by other members of the judiciary. His Lordship was referring to the fundamental importance that justice being manifestly and undoubtedly being seen to be done should be the perception of both the parties and the general public.

26. [63]

    It is difficult to understand how the Appeal Panel could have come to the ‘cumulative’ conclusion that the Tribunal’s conduct did not give rise to a reasonable apprehension of bias when it entirely failed to consider the nature of any of the individual comments made by the Tribunal member.

27. [64]

    I agree that on appeal the issue of bias should normally be dealt with first. However, this issue was not set out in the Grounds of Appeal in this Court, but more importantly this issue was not set out in the Appeal Grounds before the Appeal Panel nor was this principle drawn to its attention. What was addressed first by the Appeal Panel was an arithmetical correction of little moment. For these reasons, it is my view that the Appeal Panel did not make an error of law here.

28. [65]

    Earlier in this judgment, I accepted that at the hearing before the Tribunal Member, Counsel for the appellant withdrew his submission that the Tribunal Member had predetermined the proceedings. It follows that the appellant was no longer alleging actual bias. However, he did not withdraw his submission in relation to apprehended bias.

29. [66]

    The relevant test, where there is an application for a judicial officer to disqualify himself or herself for apprehended bias is as to whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide. The application of this (double might) test requires two steps: first, identification of what it is said might lead the decision-maker to decide a question other than on the merits of that question; and, second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits (citations omitted). An application was not made by the appellant to the Tribunal member to disqualify herself but he was no doubt unaware that he could have done so as a self-represented litigant.

30. [67]

    The respondent has submitted that the specific language used in the Appeal Panel’s judgment demonstrates that it had given proper consideration to the totality of the comments made by the Tribunal Member over the course of the hearing in deciding that there was no bias.

31. [68]

    The Appeal Panel did not make any specific reference to the language used by the Senior Tribunal Member. In my view, it is inaccurate to classify the number of the exchanges between the appellant and the Tribunal Member over 4 days namely on 27 September 2019, 3 December 2019 and then 18-19 May 2020 (these last two days were by telephone) as “mere frustration”. To give a few examples, the Tribunal Member expressed that she was “sick of” the way the appellant was responding to her questioning, she questioned the appellant’s intellect, asking whether a simple task was “beyond [him]”, and at one point regrettably saying to him “I will not tolerate the extreme lying which you have been doing since you walked into this room spinning story after story. You know what I’m talking about. I’m sick of you telling me there’s an easier – what’s easier and then we just go on and on and on and its not easy in the end. Do you know what’s easy? What you signed up for under the contract.” She explicitly expressed her “frustration” with the appellant on numerous occasions and her belief that the appellant was deliberately being difficult “as a ploy”, noting at one point that she needed to take a break because she was at risk of saying something that she might “regret” on the basis that the appellant was “incapable.”

32. [69]

    Isolated incidences of frustration expressed by judicial officers or Tribunal Members do not give rise to an apprehension of bias in the mind of a reasonable person. However, at this hearing over four days there were numerous demeaning, belittling and condescending comments made to the unrepresented appellant. It is not to the point, as the Appeal Panel stated at [49], that the Tribunal Member expressed at points an equivalent, if not greater level of frustration with the respondents.

33. [70]

    I have found this to be a difficult decision. I accept that the appellant was a difficult litigant. However, there are grounds to think that the numerous unfavourable and critical comments made by the Tribunal Member might have led her to lose objectivity so as to decide a question other than on its merits. There is a logical connection between this behaviour and the apprehended or feared deviation from the course of deciding the question other than on its merits. In these circumstances, it is arguable that a fair minded lay observer might reasonably apprehend that the Tribunal Member might not have brought an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide. The Appeal Panel did not properly address the issue of apprehended bias. In this regard, the Appeal Panel erred in law. Its decision should be set aside.

Judicial Ground (3) – Denial of procedural fairness

1. [71]

   In these grounds of appeal the appellant submits that the Appeal Panel erred at law in not quashing the orders of the Tribunal and ordering/remitting the matter for rehearing before a different Tribunal Member on the grounds that: the appellant was denied procedural fairness and or afforded natural justice; and or the hearing miscarried.

2. [72]

   The 6 key issues in relation to procedural fairness are: (1) the issue of the Tribunal starting without the appellant present; (2) the issue of the respondent talking with his solicitor while under cross examination; (3) the failure of the Appeal Panel to ensure the appellant understood his rights; (4) the procedural unfairness of Exhibit A4; (5) the procedural unfairness of requiring the appellant to cross-examine the respondent without the respondent providing a prior written statement as to contract termination; and (6) the issue of the failure of the Tribunal to assist the self-represented plaintiff’s informal application for an adjournment and the abrupt termination of the proceedings by the Tribunal.

3. [73]

   Only some of these key 6 issues may amount to a denial of procedural fairness but as the proceedings are to be remitted to a differently constituted Appeal Panel it is more appropriate that they be dealt with there after it considers the issue of apprehended bias. Some of the issues raised overlap and the arguments concerning apprehended bias.

Result

1. [74]

   The result is that the decision of the Appeal Panel dated 28 September 2021 is set aside. The matter is to be remitted to a differently constituted Appeal Panel to be dealt with according to law.

Costs

1. [75]

   Costs are discretionary. Costs normally follow the event. The defendants are to pay the plaintiff’s costs.

   1. (1)

      Leave to extend the time to file the summons up to and including 27 October 2021 is granted.

   2. (2)

      Leave is granted to appeal.

   3. (3)

      The decision of the Appeal Panel dated 28 September 2021 is set aside.

   4. (4)

      The matter is remitted to a differently constituted Appeal Panel according to law.

   5. (5)

      The defendants are to pay the plaintiff’s costs.