Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2025
  4. Chief Executive, Department of Justice v Wise and Wise Real Estate Pty Ltd & Anor - [2025] QCAT 222

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Chief Executive, Department of Justice v Wise and Wise Real Estate Pty Ltd & Anor[2025] QCAT 222

Chief Executive, Department of Justice v Wise and Wise Real Estate Pty Ltd & Anor[2025] QCAT 222

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Chief Executive, Department of Justice v Wise and Wise Real Estate Pty Ltd & Anor [2025] QCAT 222

PARTIES:

Chief Executive, Department of justice

(applicant)

v

Wise and Wise Real Estate pty ltd

(first respondent)

CARLY DAKOTA WISE

(second respondent)

APPLICATION NO/S:

OCR345-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

13 May 2025

HEARING DATE:

On-Papers hearing

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo AM

Member D Brown

ORDERS:

The application for recusal dated 2 May 2025 is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PRACTICE AND PROCEDURE – BIAS – application for miscellaneous matters – application to recuse on the grounds of actual bias and apprehended bias – rulings made in on-the-papers directions and hearings – no bias or apprehended bias shown

Property Occupations Act 2014 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Queensland Civil and Administrative Tribunal Rules 2009 (Qld)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Charisteas v Charisteas [2021] HCA 29

Craven & Ors v Kataria & Ors [2024] QCATA 127

Department of Justice v Wise and Wise Real Estate Pty Ltd & Anor [2025] QCAT 93

Dural (a pseudonym) v The Queen [2021] VSCA 82

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Johnson v Johnson [2000] HCA 48

LJY v Occupational Therapy Board of Australia [2025] QCAT 96

Maffey v Mueller [2016] QCATA 19

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15

Re JRL; Ex parte CJL (1986) 161 CLR 342

Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591

Tessa v Director of Public Prosecutions (Cth) [2022] VSCA 61

Vakauta v Kelly [1989] HCA 44

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Applicant:

Reedy, J – Principal Legal Officer, Legal Advice and Advocacy, Department of Justice

Respondents:

Self-represented

REASONS FOR DECISION

Background

  1. [1]
    The Chief Executive, Department of Justice (previously known as the Department of Justice and Attorney-General) (‘DOJ’) filed an application on 21 December 2021 seeking the tribunal conduct proceedings to decide whether a discipline ground is established against the respondents Wise and Wise Real Estate Pty Ltd (‘Wise and Wise Realty’) and Ms Carly Dakota Wise (‘Ms Wise’). The orders sought by the DOJ are that the respondents be disqualified from holding any form of licence or registration certificate as a real estate agent under the Property Occupations Act 2014 (Qld) (‘POA’).
  2. [2]
    The application has been on foot for three and a half years and is currently listed for six days of hearing across a two-week period from 21 May 2025 to 3 June 2025. There have been two prior five-day hearings listed in November 2024 and March 2025. Both hearings were vacated based on applications made by the respondents.
  3. [3]
    In addition to these discipline proceedings, Ms Wise has also filed an application for judicial review in the Supreme Court (filed on 14 March 2025) and an appeal in the Appeal Tribunal seeking to appeal the orders and directions made at a Directions hearing on 4 March 2025 (filed on 1 April 2025). Both applications are still before the courts and no stay has been issued in either proceeding.
  4. [4]
    Ms Wise has filed three prior stay applications within the Tribunal, all of which have been refused. The most recent application was determined on 1 May 2025. Written reasons were provided to the parties for each stay application.
  5. [5]
    On 7 May 2025 Ms Wise filed a form 40 application, dated 2 May 2025, seeking the recusal of Member D Brown. Ms Wise asserts that she attempted to lodge the application on 2 May 2025, but it did not transmit successfully. Nothing significant flows from the difference in dates between 7 May 2025 when the application was received and 2 May 2025 when Ms Wise had intended to send the application.
  6. [6]
    The grounds of the recusal, as noted in the application, are:
    1. Despite three prior recusal applications, Member Brown continues to preside over this matter demonstrating:
      1. (i)
        Persistent bias, hostility, and disregard for procedural fairness;
      1. (ii)
        Repeated factual and legal errors, particularly regarding jurisdiction under s 36(2) of the Property Occupations Act 2014 (Qld);
      1. (iii)
        A pattern of ignoring lawful objections, including completely disregarding the third recusal application.
      1. (iv)
        Ongoing suppression of evidence, refusal to allow proper submissions, and enforcement of oppressive directions.
  7. [7]
    Ms Wise has filed three previous applications for recusal on 2 December 2024, 19 January 2025 and 6 February 2025. All three applications largely raise the same issues. The prior applications for recusal were refused. Written reasons were provided to the parties on 26 February 2025.[1] Ms Wise asserts in her cover email attaching the application for recusal that there was an error and breach of natural justice in Member D Brown determining the previous recusal applications.
  8. [8]
    As there is a need for a prompt decision due to impending court dates on 14 and 21 May 2025, and in line with Ms Wise’s request that the matter be brought immediately before the Tribunal for determination, this matter has been determined on the papers based on Ms Wise’s application, without seeking further submissions from the applicants. The Tribunal notes that a lengthy decision on recusal was determined only two months prior, which included the submissions of the applicant.

Legal Principles

  1. [9]
    The principles as to bias and apprehension of bias are well settled. The Tribunal accepts that, as stated by Ms Wise, these principles give effect to the requirements that it is fundamentally important that the Tribunal be independent and impartial, and justice should both be done and be seen to be done.
  2. [10]
    To establish actual bias, the party alleging bias must show that the tribunal member was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”.[2]
  3. [11]
    A decision-maker may have a preliminary position about an application, and the question is not whether a decision-maker’s mind is absent of any view, but whether they are open to persuasion.[3] As Gleeson CJ and Gummow J observed in Minister for Immigration and Multicultural Affairs v Jia Legeng:

Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.[4]

  1. [12]
    To establish that a decision-maker has prejudged or will prejudge an issue, or that there is a real likelihood that a reasonable observer might reach that conclusion, involves three steps.
    1. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case.
    2. The second is the contention that the decision-maker will apply that opinion to the matter in issue.
    3. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.[5]
  2. [13]
    A finding of actual bias is a grave matter and should not be made lightly. It must be clearly proved, and cogent evidence is required.[6]
  3. [14]
    The test for apprehended bias is whether a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide.[7] As identified in Ebner v Official Trustee in Bankruptcy[8] and followed in Michael Wilson & Partners Ltd v Nicholls,[9] the majority in the High Court confirmed that the apprehension of bias principle is to be applied by a two-step process.
    1. First, it requires the identification of what it is said might lead the decision maker to decide a case other than on its legal and factual merits; and
    2. Second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
  4. [15]
    The bare assertion that a decision-maker appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.[10]
  5. [16]
    The level of knowledge and sophistication which a fair-minded observer hypothetically brings to the question is that of a lay person (not a lawyer), informed as to the relevant facts of the case and sufficiently knowledgeable and informed to be capable of bringing a rational and reasonable assessment to bear.[11] The fair-minded lay observer has attributed to him or her knowledge that the judge/tribunal member is a professional lawyer, whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial. A conclusion that there is a reasonable apprehension that the judge/tribunal member might be biased should not be drawn lightly.[12]
  6. [17]
    The fact that a party has their claim dismissed is not evidence of apprehended bias. The fact that errors may have occurred in reaching a decision is also not evidence of apprehended bias.[13] As noted in Sayed v National Disability Insurance Agency (No 2):[14]

Allegations of actual or apprehended bias are serious matters and must be assessed carefully by the Court. It is regrettable if a litigant in this Court forms the impression that the presiding judge prejudged the litigant’s case so as to be unable or unwilling to decide it impartially. However, statements made or rulings given by a judge addressing matters of practice and procedure in the course of a case management hearing must be assessed in the context of ordinary judicial practice. That includes the necessity for active case management in order to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.[15]

  1. [18]
    The onus is on the person bringing the application for recusal to demonstrate the actual bias or apprehension of bias. This must be firmly established by adducing evidence which establishes, or from which a reasonable inference may be drawn, that the decision-maker did not or may not, in fact, bring an impartial mind to the resolution of the question the decision-maker is required to decide. Therefore, Ms Wise must demonstrate:
    1. the fact, circumstances 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.[16]

Consideration

Determination of prior recusal application

  1. [19]
    Ms Wise asserts that there is a legal principle that a member cannot decide their own bias or recusal. Ms Wise seeks to rely on Re JRL; Ex parte CJL (1986) 161 CLR 342, at 352, as authority for her position.  This reference does not support her position but in fact states:

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established.”

…..

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

  1. [20]
    Ms Wise also seeks to rely on section 220(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) to support her position that a direction can be made that another member determine the recusal and/or that the matter be stayed pending the determination. Section 220 relates to the Tribunal’s ability to exclude a disruptive person from the Tribunal and is not relevant to this situation and does not provide the power Ms Wise asserts.
  2. [21]
    There is no such legal principal that a member or judge should not determine an application for their own recusal. The practise in all courts is for the decision of disqualification or recusal to be determined solely by the judge/member concerned.[17] A member or judge determining an application in relation to their own recusal does not breach natural justice or invalidate any subsequent directions or determinations as asserted by Ms Wise.

Bias, hostility, and disregard for procedural fairness

  1. [22]
    Ms Wise has raised allegations that Member D Brown relied on incorrect facts and incorrect law and made misstatements. This assertion is not supported by any evidence. Even if this was the case, the correct course of action would be to appeal the decision. Simply demonstrating that a member has made errors in law or facts, or misstated evidence does not give raise to assertions of bias or demonstrate a reasonable apprehension of bias.
  2. [23]
    Ms Wise raised allegations of collusion; attempts to pervert the course of justice, and misfeasance. There is however no evidence provided to support these serious allegations and Ms Wise’s concerns appear to be based solely on the fact that decisions were made, or directions issued which she perceived were not in the respondents’ favours.
  3. [24]
    Ms Wise provided a number of legal principles and examples of where actions by a decision maker may give rise to an apprehension of bias but has not linked any of those actions to this matter or to the actions of Member D Brown. Ms Wise references only the conduct of Adjudicator Mewing, which is unrelated to these proceedings.
  4. [25]
    Issues of bias, hostility and procedural fairness have all previously been determined in the prior recusal application. Ms Wise has not raised any evidence of new issues which would cause a fair minded observer to consider that Member D Brown has predetermined the matter or that she might not bring an impartial mind to the determination of the matter.

Jurisdictional issues

  1. [26]
    Ms Wise’s concerns about jurisdiction under s 36(2) of the Property Occupations Act 2014 (Qld) have already been determined by the Tribunal in the Tribunal’s decision on 17 March 2025 in relation to the respondents’ numerous applications for strike outs. Oral reasons were provided on 17 March 2025 and a written version of the reasons were provided to the parties on 19 March 2025.[18]  The Tribunal does not agree with Ms Wise’s position in relation to section 36(2) being relevant to these proceedings and has held that the Tribunal does have jurisdiction to determine the substantive matter and there are no grounds to strike out the proceeding due to a failure to give the respondents an information notice.
  2. [27]
    Ms Wise’s recourse if she is unhappy with these decision is to appeal the decision. Ms Wise’s disagreement or dissatisfaction with the decision, and/or even if legal errors were to be identified, is not evidence of bias or an apprehension of bias and does not support a finding for recusal.

Ignoring lawful objections including disregarding the third recusal application.

  1. [28]
    Ms Wise has not provided any specifics of what she states is the evidence of Member D Brown ignoring lawful objections. While Ms Wise has sent numerous emails to the Tribunal stating she does not agree with the jurisdiction, that the proceedings should be immediately stayed, that Member Brown should not issue any further direction and that she will not comply with any directions of the Tribunal, these emails have no legal standing. While Ms Wise may hold this belief about jurisdiction, this belief is wrong. The Tribunal is empowered under the QCAT Act to determine the application and issue directions it considers necessary for the speedy and fair conduct of the proceedings.[19]
  2. [29]
    Ms Wise asserts that there has been a third application for recusal which has not been addressed. As noted above, the prior three applications made in December 2024 and January and February 2025 have been determined. Ms Wise asserts there is a further application for recusal filed on 13 March 2025.
  3. [30]
    There is no evidence on the Tribunal file that Ms Wise filed any application for recusal on 13 March 2025. Nor was a copy of this alleged application provided with this application for recusal, despite Ms Wise attaching other applications including her appeal application and a prior stay application which has already been determined by the Tribunal.
  4. [31]
    Four emails were received from Ms Wise on 13 March 2025. One related to witnesses for the hearing due to commence 17 March, one requested representation by a non-legal person and one was alleged to be a notice of breach of jurisdiction and procedural fairness and an immediate request for summary dismissal. This email did not raise the issue of recusal and no applications were attached. The only attachment to the third email was a Microsoft Word document. The last email received was in relation to Ms Wise stating she would not attend the hearing on 17 March 2025 as she was “medically incapable”.
  5. [32]
    Since 13 March 2025 Ms Wise has sent numerous emails to the Tribunal, asserting amongst other things that she does not agree the Tribunal has jurisdiction, the application should be permanently stayed, Member D Brown is biased and should be removed from dealing further with the proceedings and that she will not comply with any directions of the Tribunal or from Member D Brown. There has however not been any formal application for recusal received by the Tribunal since the last application was sent on 6 February 2025 until the Form 40 application received on 7 May 2025.
  6. [33]
    A party cannot simply send emails or Word documents to the Tribunal and expect the Tribunal to determine some urgent issue prior to the next hearing date. If a party wishes to make an interlocutory application to be determined prior to the next hearing date, then in line with the Queensland Civil and Administrative Tribunal Rules 2009 (Qld)[20] it needs to be made in the approved form.

Ongoing suppression of evidence, refusal to allow proper submissions, and enforcement of oppressive directions.

  1. [34]
    Ms Wise has attached a copy of her appeal documents which related to an appeal of directions issued on 4 March 2025. Ms Wise asserts that this document “gives extensive details [of] [M]ember Browns breaches in each direction and reasons.” This includes a 244 page document which is repetitious and restates issues which have already been determined by the Tribunal in the  prior recusal application.
  2. [35]
    Any concerns that Ms Wise has in relation to the directions issued on 4 March needs to be dealt with by the Appeal Tribunal. The directions on 4 March 2025 were issued after a two-hour directions hearing in which the directions were discussed with the parties before being made. While a party may not agree with a direction, the Tribunal has a wide discretion to issue directions that it considers necessary for the speedy and fair conduct of proceedings.[21] The Tribunal also has discretion to refuse to allow a party to call evidence in a matter if the Tribunal  considers there is already sufficient evidence about the matter before the Tribunal.[22] If Ms Wise considers that this discretion has miscarried, then the correct course of action is to seek leave to appeal the decision to issue the directions.
  3. [36]
    Ms Wise asserts there is suppression of evidence, but has not raised what that is, other than including in her appeal documents concerns about the Tribunal’s prior decision about  an application for further documents to be produced by the DOJ and a refusal to allow Ms Wise to seek to “cross examine” people who are not being called by the applicant as witnesses. This included the Attorney General, Ms Reedy who is the lawyer conducting the case on instructions for the applicant and other lawyers who represented people in other cases involving Ms Wise.[23]
  4. [37]
    In relation to the prior decision about production of further documents, this has been addressed in the prior recusal decision.[24] Ms Wise has not provided any new evidence about this issue to demonstrate how it evidences bias or gives rise to an apprehension of bias, other than to state her ongoing unhappiness with the decision. As this issue has already been addressed in the prior recusal decision, there is no need to address it further here.
  5. [38]
    In relation to the request to call additional witnesses, the power to require witnesses to attend is a discretionary decision and the Tribunal has the power to refuse to allow a party to call for evidence on a matter if the Tribunal considers there is already sufficient evidence about the issue before the Tribunal.[25] The directions dated 4 March 2025 allow the respondents to call seven witnesses who they wish to question but who are not being called by the applicant, but refused to allow them to call any other witnesses without leave of the Tribunal. This decision was made at the directions hearing, after considering both the written application and submissions made by the respondents and some brief oral submissions. Brief oral reasons were provided at the directions hearing for the decision.
  6. [39]
    As Ms Wise has done, if she is unhappy with the decision and believes the exercise of the discretion has miscarried, she can appeal the decisions, but the decision not being in her favour does not demonstrate bias. This is particularly so noting that the application was not just dismissed without proper consideration and Ms Wise was granted leave to call some of the witnesses requested.
  7. [40]
    Ms Wise raises concerns about the directions issued on 5 May 2025 and states that these directions demonstrate further bias by Member D Brown by way of denial of natural justice and procedural fairness. Ms Wise’s submissions fail to recognise that the Tribunal is constituted by a panel of Judicial Member Rinaudo AM and Member D Brown with Judicial Member Rinaudo being the presiding member. Therefore all directions are the views of the panel as opposed to just Member D Brown.
  8. [41]
    Ms Wise’s assertions in her submissions about the directions are also inaccurate. Ms Wise asserts that her application for a stay filed on 23 April was dismissed without providing detailed reasons. Ms Wise also asserts there was a failure to publish reasons for the refusal of the stay application which offends against section 214(2) of the QCAT Act which she asserts mandates the Tribunal to act fairly and transparently where medical incapacity is raised. Section 214 of the QCAT Act deals with offences by witnesses for failing to attend or failing to take an oath or answer questions. It is not relevant to this issue and does not support Ms Wise’s position.
  9. [42]
    In addition Ms Wise’s assertions that written reasons were not provided is factually incorrect. Written reasons were provided to the party together with the decision on 1 May 2025. If Ms Wise believes there are legal errors in the decision to refuse the stay, her recourse is to appeal to the Court of Appeal. Ms Wise’s dissatisfaction with the decision or the reasons provided is not evidence of bias or evidence upon which a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the final determination of the matter.
  10. [43]
    Ms Wise further asserts that there was a “refusal to list medical evidence for hearing”. It is unclear what Ms Wise is referencing as the application to vacate the hearing based on the medical evidence has been listed for a hearing on 14 May 2025 to hear and determine the application.
  11. [44]
    Ms Wise also raises concerns about inequity in the directions which she asserts further demonstrates bias. These allegations are disputed by the Tribunal and there is no bias demonstrated in the directions.
  12. [45]
    The directions issued on 1 May were provided to the parties at 1.25pm. The direction required Ms Wise to file any application she seeks to make to vacate the hearing or waive or extend a time limit by 4.00pm on Friday 2 May 2025. The reason the direction was required was that Ms Wise has attached a medical certificate to an email she sent to the registry in response to an amended notice of hearing. In this email Ms Wise stated that the Tribunal was acting ultra vires and breaching procedural fairness. Ms Wise did not state the relevance of attaching the medical certificate, nor did she make any application to vacate the hearing or extend any filing date.
  13. [46]
    As the Tribunal Hearing was due to commence in less than three weeks, there was a need for prompt action.  As the available hearing date to determine any application to vacate the hearing was in eight business days, tight filing timeframes were needed. As such the respondents were provided with one business day to file any application in the prescribed form and the DOJ as the applicants were provided five business days to respond. These directions are consistent with section 45 of the QCAT Act which requires each party to a proceeding to act quickly in dealings relevant to the proceeding. In addition, the matter is listed for a hearing on 14 May 2025 in which the parties are able to present any further oral submissions to the Tribunal, prior to the Tribunal’s determination of the application.
  14. [47]
    Disagreement with a ruling made by a judge or tribunal member does not establish bias or apprehended bias.[26] There are other avenues for a party who consider they have not been afforded procedural justice or who believe a decision reveals error, but a party’s grievances with respect to procedural matters is quite different to the question of judicial bias, and a claim of breach of procedural fairness does not in and of itself demonstrate bias.[27]
  15. [48]
    The speed with which issues of practice and procedure may be addressed and determined in a case management hearing may surprise self-represented litigants. It is necessary for the Court to conduct case management hearings and resolve issues of practice and procedure with expedition to ensure that the limited resources of the Courts and Tribunals are applied in the most efficient manner in the public interest.[28]
  16. [49]
    Tribunal members are entitled to regulate the manner in which a proceeding will be heard and the order in which matters relevant to a proceeding will be dealt with and how and when material is to be provided to the Tribunal. The public interest demands that hearings be managed having regard to the pressure on court time and taking into account the interest of all litigants. A fair-minded observer would be taken to have, at least in a very general way, some knowledge of the fact that tribunal members may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted.[29]
  17. [50]
    Ms Wise has not articulated in any detail how or why she believes Member D Brown is biased against her and has predetermined the matter in the DOJ’s favour, other than that there have been decisions made or directions issued that she does not agree with. While Ms Wise may have a belief, she has provided no evidence upon which to demonstrate that Member D Brown has any opinion on a relevant aspect of the matters in issue in this particular case, or that she will apply that opinion to the matter without considering the evidence or giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the case.
  18. [51]
    Ms Wise has provided no cogent evidence which supports a finding of actual bias, or which would lead a fair minded observer to have an apprehension of bias. The mere fact that the respondents have been unsuccessful in a number of interlocutory applications is not evidence of bias. In addition the fact that the last two trial listings in November 2024 and March 2025 have been vacated, despite strong opposition by the applicant, would seem to evidence that Member D Brown does not have a closed mind and is not so committed to a conclusion already formed that she is incapable of alteration. On the contrary, it would seem to demonstrate that the matter is being determined by considering the facts and law specific to the issues in dispute.

Case law relied upon

  1. [52]
    In the authorities provided by Ms Wise she seeks to rely upon the cases of ‘Re Bowen [2010] QCAT 246’; ‘Baha v Queensland Police Service [2011] QCAT 156’; ‘Brock v Medical Board [2020] QCAT 223’ and ‘TCT v Office of the Health Ombudsman [2021] QCAT 44’ which she states support her application for recusal. These cases do not exist, and the citations provided belong to other cases on unrelated issues which do not support the findings Ms Wise asserts.
  2. [53]
    Ms Wise has been advised in previous decisions[30] about the use of inaccurate citations and non-existent cases. This includes advising Ms Wise that the cases of TCT v Office of the Health Ombudsman, Re Bowen and Brock v Medical Board do not appear to be genuine cases and the citations she has provided belong to other irrelevant cases.[31] Despite being advised of this, Ms Wise has again sought to provide submissions to the Tribunal with these false case citations.
  3. [54]
    Queensland Courts have issued Guidelines for the Use of Generative Artificial Intelligence (AI) Guidelines for Responsible Use by Non-Lawyers. These guidelines apply in the Tribunal and can be found on the Tribunal’s website at: https://www.qcat.qld.gov.au/__data/assets/pdf_file/0004/798907/artificial-intelligence-guidelines-for-non-lawyers.pdf.
  4. [55]
    The guidelines set out amongst other things that:
    1. Generative AI Chatbots can make up fake cases, citations and quotes, or refer to legislation, articles or legal texts that do not exist. They can provide incorrect or misleading information about the law or how it may apply in a particular case or get facts wrong;
    2. Litigants before the Tribunal including those that are self-represented are responsible for:
      1. (i)
        understanding the capabilities and limitations of Generative AI Chatbots; and
      1. (ii)
        checking all information a litigant relies on or provides to the Tribunal is accurate; and
      1. (iii)
        that the accuracy of any information a litigant gets from a Generative AI Chatbot must be checked before using that information in Tribunal proceedings.
  5. [56]
    The respondents should take heed of the warnings as raised by the Deputy President in LJY v Occupational Therapy Board of Australia[32] that:

including non-existent information in submissions or other material filed in the Tribunal weakens their arguments. It raises issues about whether their submission can be considered as accurate and reliable. It may cause the Tribunal to be less trusting of other submissions which they make. It wastes the time for Tribunal members in checking and addressing these hallucinations. It causes a significant waste of public resources.[33]

Conclusion

  1. [57]
    Ms Wise’s arguments do not establish a logical connection between the alleged deviation and the source of the bias. She has raised numerous legal principles about procedural fairness and bias and relies on numerous sections of the QCAT Act and other Acts that she believes are relevant to this matter but has failed to apply those principles or provisions to the facts of this case to evidence how Member D Brown’s conduct falls short of the expectation of a tribunal member or why a fair-minded observer would have any apprehension that Member D Brown might not bring an impartial mind to the determination of the matter.
  2. [58]
    A party’s objection to a particular decision-maker sitting or continuing to sit should not prevail unless it is based upon persuasive substantive evidence demonstrating that the decision-maker should be disqualified from hearing or deciding the case. As noted in Ebner:[34]

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

… if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.[35]

  1. [59]
    Ms Wise has asserted she has lost confidence in the Tribunal and Member D Brown; she does not think it is tenable for Member D Brown to continue to hear the matter as she believes there is strong evidence of bias; and she feels silenced and severely disadvantaged. While Ms Wise may hold these views, she has not provided any evidence to support these beliefs and the test is not a subjective test. It is not about what Ms Wise feels but about what a fair minded observer would consider. I do not consider Ms Wise has established any basis upon which a fair minded observer would consider Member D Brown has formed any fixed views about the disciplinary proceedings or Ms Wise that are incapable of alteration or that she might not bring an impartial mind to the determination of the disciplinary proceedings.
  2. [60]
    A member has a duty to hear cases for which they are scheduled and should recognise that disqualification places a burden on the Tribunal and the member’s colleagues  and may cause delay to the parties if another member is not readily available. In the circumstances of this matter, given the proceedings have been on foot for three and a half years and two prior hearing listings have had to be vacated, ongoing delays are not in the interest of justice and need to be avoid, unless absolutely necessary.
  3. [61]
    It is neither necessary nor appropriate for Member D Brown to recuse herself or stand down from hearing the matter. Accordingly the application for recusal is refused and the panel constituted of Judicial Member Rinaudo AM and Member D Brown will continue to hear the matter as scheduled at the Interim Hearing on 14 May 2025 and the Tribunal Hearing on 21 May, 27-29 May and 2-3 June 2025.

Footnotes

[1]  These reasons can be found at Department of Justice v Wise and Wise Real Estate Pty Ltd & Anor [2025] QCAT 93.

[2]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 [72].

[3]   Ibid [72].

[4]  Ibid [71].

[5]  Ibid [185].

[6]  Ibid [69].

[7]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (‘Ebner’); Charisteas v Charisteas (2021) 273 CLR 289; and QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15.

[8]  (2000) 205 CLR 337.

[9]  [2011] HCA 48.

[10]  Ibid [63].

[11]Tessa v Director of Public Prosecutions (Cth) [2022] VSCA 61 quoting Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.

[12]Vakauta v Kelly [1989] HCA 44 [10].

[13]Craven & Ors v Kataria & Ors [2024] QCATA 127 [65]. 

[14]  [2022] FCA 1591.

[15]  Ibid [9].

[16]Maffey v Mueller [2016] QCATA 19 [49].

[17]  The Council of Chief Justices of Australia and New Zealand, Guide to Judicial Conduct (Australasian Institute of Judicial Administration, 3rd ed, 2023).

[18]  Paragraphs 26 to 30 specially deal with the s 36(2) jurisdictional issue.

[19]  QCAT Act, s 62(1).

[20]  Rule 7.

[21]  QCAT Act, s 62(1).

[22]  Ibid, s 95(2).

[23]  These people had previously been identified as witnesses in this case, but their complaints are no longer being relied upon. The lawyers had never been identified as witnesses and have not provided any statements in this matter.

[24]Department of Justice v Wise and Wise Real Estate Pty Ltd & Anor [2025] QCAT 93 at [77]-[82].

[25]  QCAT Act, s 95(2).

[26]Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591 [27].

[27]Dural (a pseudonym) v The Queen [2021] VSCA 82 [33].

[28]Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591 [10]; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 [92]-[93].

[29]Johnson v Johnson [2000] HCA 48 [13].

[30]Department of Justice v Wise and Wise Real Estate Pty Ltd & Anor [2025] QCAT 93 at [69]-[73].  Written reasons for stay decision on 19 March 2025 at [17]-[20].

[31]  Written reasons for stay decision on 19 March 2025 at [17]-[18].

[32]  [2025] QCAT 96.

[33]  Ibid [26].

[34]  [19].

[35]  Ibid, [20].

Close

Editorial Notes

  • Published Case Name:

    Chief Executive, Department of Justice v Wise and Wise Real Estate Pty Ltd & Anor

  • Shortened Case Name:

    Chief Executive, Department of Justice v Wise and Wise Real Estate Pty Ltd & Anor

  • MNC:

    [2025] QCAT 222

  • Court:

    QCAT

  • Judge(s):

    Judicial Member Rinaudo AM

  • Date:

    13 May 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Charisteas v Charisteas [2021] HCA 29
1 citation
Jump To
Cite 1 - [2021] HCA 29
Charisteas v Charisteas (2021) 273 CLR 289
1 citation
Jump To
Cite 1 - (2021) 273 CLR 289
Craven v Kataria [2024] QCATA 127
2 citations
Jump To
Cite 1 - [2024] QCATA 127
Cite 2 - [2024] QCATA 127
Department of Justice v Wise and Wise Real Estate Pty Ltd [2025] QCAT 93
4 citations
Jump To
Cite 1 - [2025] QCAT 93
Cite 2 - [2025] QCAT 93
Cite 3 - [2025] QCAT 93
Cite 4 - [2025] QCAT 93
Dural (a pseudonym) v The Queen [2021] VSCA 82
2 citations
Jump To
Cite 1 - [2021] VSCA 82
Cite 2 - [2021] VSCA 82
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
3 citations
Jump To
Cite 1 - (2000) 205 CLR 337
Cite 2 - (2000) 205 CLR 337
Cite 3 - (2000) 205 CLR 337
Health Ombudsman v De La Rey [2020] QCAT 223
1 citation
Jump To
Cite 1 - [2020] QCAT 223
Johnson v Johnson (2000) HCA 48
2 citations
Jump To
Cite 1 - (2000) HCA 48
Cite 2 - (2000) HCA 48
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
1 citation
Jump To
Cite 1 - (1990) 170 CLR 70
LJY v Occupational Therapy Board of Australia [2025] QCAT 96
2 citations
Jump To
Cite 1 - [2025] QCAT 96
Cite 2 - [2025] QCAT 96
Maffey v Mueller [2016] QCATA 19
2 citations
Jump To
Cite 1 - [2016] QCATA 19
Cite 2 - [2016] QCATA 19
Mango Property Pty Ltd v Body Corporate for West End Central Commercial CTS 33391 [2011] QCAT 156
1 citation
Jump To
Cite 1 - [2011] QCAT 156
Medical Board of Queensland v Tarvydas [2010] QCAT 246
1 citation
Jump To
Cite 1 - [2010] QCAT 246
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48
2 citations
Jump To
Cite 1 - [2011] HCA 48
Cite 2 - [2011] HCA 48
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
2 citations
Jump To
Cite 1 - (2001) 205 CLR 507
Cite 2 - (2001) 205 CLR 507
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
2 citations
Jump To
Cite 1 - [2023] HCA 15
Cite 2 - [2023] HCA 15
Re JRL; Ex parte CJL (1986) 161 CLR 342
2 citations
Jump To
Cite 1 - (1986) 161 CLR 342
Cite 2 - (1986) 161 CLR 342
Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591
4 citations
Jump To
Cite 1 - [2022] FCA 1591
Cite 2 - [2022] FCA 1591
Cite 3 - [2022] FCA 1591
Cite 4 - [2022] FCA 1591
Tessa v Director of Public Prosecutions (Cth ) [2022] VSCA 61
2 citations
Jump To
Cite 1 - [2022] VSCA 61
Cite 2 - [2022] VSCA 61
Vakuata v Kelly [1989] HCA 44
2 citations
Jump To
Cite 1 - [1989] HCA 44
Cite 2 - [1989] HCA 44
Winn v Boss Lawyers Pty Ltd [2021] QCAT 44
1 citation
Jump To
Cite 1 - [2021] QCAT 44

Cases Citing

Case NameFull CitationFrequency
Chief Executive, Department of Justice v Wise and Wise Real Estate Pty Ltd & Anor [2025] QCAT 3243 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.