Hattabi v Queensland[2020] QCAT 397

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   I am scheduled to hear this matter on Wednesday 14 October, Thursday 15 October, and Friday 16 October 2020 at Brisbane.
2. [2]
   This matter concerns a claim by Mustapha Hattabi against the State of Queensland and four police officers in relation to alleged discrimination against him.
3. [3]
   I caused the Registry to send an email to the parties on 9 October 2020, advising them of a circumstance as follows:

Member Paratz AM advises that:

1. a)his son has recently commenced employment as a Legal Officer with the Queensland Police Service Legal Unit in Brisbane
2. b)to the best of his knowledge, his son has not had, and does not have, any involvement with this matter
3. c)he considers that he is able to hear and decide this matter fairly and impartially

The Member has requested that you advise the Tribunal in writing by 1:00pm on Monday, 12 October 2020, whether you object to the Member hearing this matter, and set out the basis of your objection.

If any party has an objection, the Member will consider the objection, and advise the parties as to whether he proposes to proceed to hear the matter, or to make other directions.

4. [4]
   Mr Hattabi advised the Tribunal by email from Toula Hattabi dated 10 October 2020 that he objected to my hearing the matter as follows:

I Mustapha Hattabi have objections to Member Paratz AM hearing this matter and below are set out the basis of my objections.

1. I question the ability of the member to be totally impartial with an immediate family member being part of the QPS Legal Unit as an employee.
2. We acknowledge impartiality.
3. We believe you would anticipate an innate defence in such circumstances.
4. Also, a subconscious mindset to defend the police community and an immediate member of his family would cause serious concerns.
5. This is objectionable and it has to be fair with no conflict of interest and that includes a family member working directly in the QPS Legal Unit.
6. I question the member’s ability to be conscious and subconsciously impartial with his son working in the QPS Legal Unit.
7. The fact that this has raised a concern to the Crown, not a matter of the son knowing about the discrimination case, is very concerning.
8. I question the members subconscious impartiality considering this matter with police and my predicament.
9. Considering the nature of the issue, how can the member be impartial pertaining to matters of the police force with my case and his son working in the QPS legal unit.
10. We couldn’t agree the member would be impartial and question his impartiality.

Therefore, we have serious objections in this case and with all due respect to Member Paratz AM, we feel this will be unsuitable.

5. [5]
   The Respondents advised the Tribunal by email from their representative, Crown Law, on 12 October 2020, that the Respondents do not object to my hearing the matter.
6. [6]
   The Council of Australasian Tribunals’ Practice Manual (5^th Edition) 2020 advises as follows at 3.4.9.3:

If a member makes a disclosure of potentially disqualifying circumstances, the tribunal should then invite the parties to make submissions. The question of whether a party wishes to object or to waive objection should also be addressed. The ARC’s A Guide to Standards of Conduct for Tribunal Members advises:

• Although as a matter of law waiver may be implied, it is suggested that it is a tribunal member’s responsibility expressly to raise the question of consent with the potentially prejudiced party. 107

• Consent of the parties is not the determinative factor. Even if the parties waive objection, the member may decide not to sit if they consider that disqualification is the proper course. 108

If the parties do not waive objection, the member will need to consider the submissions of the parties and decide whether to stand down. The following points should be noted:

• A member is not automatically obliged to stand down where objection is taken following disclosure.

• The fact that one or more of the parties has an actual suspicion that the member is biased does not satisfy the test for apprehended bias. The test is an objective one, requiring consideration of what a fair-minded observer would reasonably apprehend.

• The member should consider all the circumstances, including the stage of proceedings at which objection is taken, and any costs and delays that might result.

Courts have cautioned judges and tribunal members not to acquiesce too readily to applications for them to stand down, since this can cause hardship to parties, particularly if the matter is part heard. To stand down when there are no legal grounds for disqualification may even amount to an abdication of the member’s duty. 109

The member may also consider whether standing down without sufficient grounds would encourage tactical objections and abuse of process in other cases. 110 If the member decides to sit, the reasons for that decision should be recorded. So too should the disclosure of relevant circumstances. 111

[Footnotes as follows:]

107 Administrative Review Council, above n 15 at 39.

108 AIJA, above n 40, 15.

109 See, for example, Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) (1991) 173 CLR 78.

110 Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294.

111 Administrative Review Council, above n 15 at 13.

7. [7]
   The question of when a Member should stand down when a question as to bias is raised, was discussed by the Appeal Tribunal in Maffey v Mueller [2016] QCATA 19, where Justice Carmody noted as follows:

[45] The applicant submits that the Magistrate erred by failing to recuse himself on the ground that the Magistrate was disqualified for bias.

[46] The principles governing judicial recusal are well established. The applicant must show either: (a) actual bias; or (b) apprehended bias.

[47] To prove actual bias, the applicant must adduce evidence which establishes, or from which a reasonable inference may be drawn, that the decision-maker did not, in fact, bring an impartial mind to the resolution of the question the decision-maker was required to decide.

[48] To prove apprehended bias, the applicant must establish that:

a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide...

[This] 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.^[1]

[49] Therefore, the applicant must demonstrate:

1. the fact, circumstance or event which constitutes the source of the bias or prejudice;

2. a feared deviation as a result of the bias or prejudice; and

3. a logical connection between the source of the bias or prejudice and the feared deviation as a result of the bias or prejudice.

8. [8]
   I do not consider that the fact of my son’s recent employment with the Queensland Police Legal Unit will affect my impartiality in conducting and deciding this matter, with which he has had no involvement to the best of my knowledge.
9. [9]
   The respondents are represented by The Principal Lawyer, Workplace Law, Public Law Branch for Crown Solicitor, Crown Law, which is a separate office to the Queensland Police Legal Unit.
10. [10]
    I acknowledge Mr Hattabi’s concerns, and apprehended the parties may have such concerns, which is why I have made disclosure of the circumstance.
11. [11]
    The circumstance does not disclose any actual bias, but I appreciate that a question of apprehended bias needs to be considered.
12. [12]
    The test as to apprehended bias is whether a fair-minded layperson might reasonably apprehend the decision-maker may not bring an impartial mind to the resolution of the question the decision-maker is required to decide.
13. [13]
    I do not consider that the fact that my son is currently employed by the Queensland Police Legal Unit as an admitted lawyer, would cause a fair-minded layperson to consider that would automatically mean that I would not bring an impartial mind to a matter involving police in Queensland, and would cause me to not make a proper finding against police where required.
14. [14]
    I do not consider that my son’s employment would automatically cause me to have ‘a subconscious mindset to defend the police community’ or affect my ‘subconscious impartiality’ as submitted by Mr Hattabi, and am confident that no such subconscious issue will affect my hearing and consideration of the matter.
15. [15]
    I do not consider that the submissions of Mr Hattabi establish a logical connection between the source of his concerns as to bias or prejudice, and a deviation from a fair and just hearing and determination a result of his concerns as to bias or prejudice.
16. [16]
    My duty as a Member of the Tribunal is to comply with the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) as set out in section 3 of that Act, and specifically in this instance to have regard to sections 3(a) and 3(b) as follows:

3 Objects

The objects of this Act are—

1. (a)
   to establish an independent tribunal to deal with the matters it is empowered to deal with under this Act or an enabling Act; and
2. (b)
   to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick

17. [17]
    I consider that I am able to fulfil my duty as a member of the Tribunal accordingly, notwithstanding the circumstance of which I have made disclosure.
18. [18]
    Having considered the submissions of the parties as to a circumstance of which I have made disclosure, I do not consider that I should stand down from hearing the matter, and will proceed to hear it as scheduled.