Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337
Outcome: followed
to the first point, the applicant submitted that a fair-minded lay observer seeing the letter might reasonably apprehend that the Tribunal might not bring an impartial mind to bear on the issues before it. The situation it was said is not analytically different from a Supreme Court judge trying a criminal case seeking advice from the police. For that reason a case of apprehended bias is made out: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 344 [6] . As to the apprehension of bias ground, on the resumed hearing of the appeal, the Tribunal, in its submissions, referred to what was said in the joint judgment in Ebner at 345, [8]: 'The apprehension of bias principle ... [in its] application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The 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. Only then can the reasonableness of the asserted apprehension of bias be assessed.' The need for this two step process was affirmed in Smits v Roach [2006] HCA 36 ; (2006) 228 ALR 262 at [53] , [56]. Applying the two steps in Ebner , the Tribunal in its submissions asked and answered the following two rhetorical questions: (a) What is said by the applicant to be the conduct which gives rise to the apprehension? It is said to be the writing of a letter by the Director of the Tribunal, Ms McDonald, to APRA inviting assistance from APRA. This letter follows a s 64 referral. (b) What is the 'logical connection between the matter and the feared deviation from the course of deciding the case on its merits'? No such connection has been articulated by the applicant. It is difficult to see what the connection could be, given that the author of this letter is a staff member of the Tribunal, and not one of the two members appointed pursuant to s 7 and constituted pursuant to s 9 to conduct this review. More so because the person who made the referral was the Tribunal Chairperson himself, and not one of the two constituted members. The Tribunal submitted that the two step process set out in Ebner cannot be satisfied in the present case. Moreover, taking into account the factors set out above, the Tribunal submitted no fair-minded lay observer, informed of the nature of the Tribunal's jurisdiction, the way it conducts its hearings and the presence of its obligations under ss 64 and 64A of the Complaints Act, combined with other features of its legislative scheme, would apprehend that contact by Tribunal administrative staff would mean that the two Tribunal members constituted to deal with this review would not bring impartial minds to the review. Further, no such fair-minded lay observer, properly informed, would apprehend that a referral made by the Tribunal Chairperson pursuant to a statutory duty would mean that the two (other) Tribunal members constituted to hear this review would not bring impartial minds to their task. As to the denial of procedural fairness ground, the Tribunal submitted that, once the subject matter of the s 64 referral is understood, it cannot sensibly be argued that whether APRA's investigations would or would not ultimately determine that the applicant had breached the standards set out in reg 4.15 was in any remote way 'relevant and probative to the issues the applicant was making submissions about'. There were no findings about a breach of such standards made by the Tribunal, nor were those standards put in issue. Accordingly, there was no occasion at all for disclosure of the referral to the applicant. In any event, so the submission went, there is no substantive unfairness because the applicant was aware of the referral to APRA. By an email dated 3 June 2005 (that is, two days after the letter of 1 June 2005 [57]), Mr Ian Yard-Smith, counsel for the applicant, stated that he had 'just been discussing this matter with Suzette Wilson from APRA'.