Quach v New South Wales Civil and Administrative Tribunal

GLEESON JA: Application is made by Mr Michael Van Thanh Quach by notice of motion filed 5 April 2022 to set aside a vexatious proceedings order made by the Court on 20 October 2017. [1] This is the fifth such application by Mr Quach; his four previous applications were unsuccessful.

The notice of motion also seeks an order, relevantly, that I recuse myself for apprehended bias given my participation as a member of the Court which dismissed Mr Quach’s fourth application to set aside this order on 18 November 2020. [2]

Questions of bias should be addressed first, as the High Court explained in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd. [3] That is because the necessary result, if bias is established, is a retrial. [4]

The test for apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias. [5] The test for recusal is whether a fair-minded lay person might reasonably consider that the judicial officer might not carry out their judicial functions with an impartial and unprejudiced mind. [6]

The application of the double “might” test requires two steps. First, identification of what it is said might lead the decisionmaker 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. [7]

In considering the recusal application, I am mindful that it is the duty of a judicial officer to determine matters which come before the judge and not to withdraw unless there are reasons which require the judge to do so. As Mason J said in Re JRL; Ex parte CJL [8] :

In this case, the decision of the Court in November 2020 dismissing Mr Quach’s application did not involve findings adverse to Mr Quach’s credibility. To the extent that Mr Quach raises arguments on the present application similar to the legal arguments which were rejected by the Court when dismissing his previous application, my involvement in the Court’s November 2020 decision is not a reason for apprehending an inability to deal fairly, according to law, with the further application made by Mr Quach.

Applying the double “might” test, I am satisfied that a fair-minded lay person would not reach the conclusion that I might not bring an impartial and unprejudiced mind to the resolution of the questions for decision on the notice of motion. [9]

For these reasons, I decline the recusal application.