Underwood v Metro North Hospital and Health Service

[2022] QCATA 145

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Underwood v Metro North Hospital and Health Service [2022] QCATA 145

PARTIES:

Helen Underwood

(applicant/appellant)

v

metro north hospital and health service

(respondent)

APPLICATION NO/S:

APL105-20 and APL153-21

MATTER TYPE:

Appeals

DELIVERED ON:

18 October 2022

HEARING DATE:

17 October 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Forrest SC

ORDERS:

1.     The application seeking my recusal or disqualification from hearing the appeals in these matters is dismissed.

2.     The application seeking vacation of the dates set for the hearing of the appeals in these matters is dismissed.

3.     The Appellant shall now file and serve her written submissions in the appeals by close of business on Friday, 4 November 2022.

4.     The Respondent shall now file and serve its written submissions in the appeals by close of business on Friday, 11 November 2022.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application for miscellaneous matters – applications for recusal and for hearing dates to be vacated

COURTS AND JUDGES – JUDGES – DISQUALIFICATION FOR INTEREST OR BIAS – GENERALLY – application for sessional judicial member at QCAT allocated the hearing of the appeals to recuse himself or to be disqualified – no bias or apprehended bias shown – other grounds rejected

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CASE MANAGEMENT – OBJECTS – application for hearing dates to be vacated – no basis for vacation demonstrated – public interest in a timely, final determination considered

Gallo v Dawson (1990) 93 ALR 479

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Charisteas v Charisteas [2021] HCA 29

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

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)

REASONS FOR DECISION

1. The Applicant, Ms Helen Underwood, has two substantive appeals against decisions of the Information Commissioner in separate external review applications that are currently listed to be heard by me on 16 November and 21 November this year respectively.

2. I heard and determined an application by the Information Commissioner to be removed as a Respondent to each of those appeals in August of this year. That was opposed by Ms Underwood. I ordered that the Information Commissioner be removed as Respondent to each of those appeals.

3. Ms Underwood subsequently filed a number of applications in the matters. By one of those, she seeks to be relieved of the requirement to provide a list of documents to the Respondent to the Appeals that she wanted to be included in the Appeal Book to one of the appeals. By another, she seeks that I recuse myself from hearing the appeals, and by the third application she seeks to have the dates for the hearing of those two appeals vacated and to be relieved of the obligation to file her written submissions in the substantive appeals by 3 October 2022 and to be permitted to file them not before 31 January 2023.

4. Initially, I directed that the QCAT Registry list the hearing of these applications for an oral hearing on the afternoon of Monday, 17 October 2022. Ms Underwood then informed the Registry that she was prepared for the applications to be heard on the papers and sought that the oral hearing be vacated. I was subsequently informed by the Registry that Ms Underwood had indicated that she would attend an oral hearing if required but was still prepared for the applications to be determined on the papers. I directed the Registry ascertain the Respondent’s position and was informed that the Respondent did not require an oral hearing. I then informed the Registry that I would determine the matters on the papers.

5. I was asked by the Registry if I required anything further of Ms Underwood before determining the applications, such as a medical certificate. I told the Registry that Ms Underwood could provide any further information, including a medical certificate, that she wanted to. I have not been provided with any further information or any further medical certificates provided to the Registry by Ms Underwood.

6. I am informed in the determination of the applications by having read two documents, namely:

   (1)A 23 page document in the form of a Form 40 with attached pages (“the recusal application”); and

   (2)A 10 page document in the form of a Form 42 with attached pages (“the hearing vacation application”).

The Recusal Application

1. In the recusal application, Ms Underwood asserts a number of apparent grounds in support of the application for me to recuse myself (or to be replaced as the member hearing the appeals). Those include that I am only a part-time sessional judicial member of the Tribunal rather than a permanent member and, therefore, only available to sit at times that suit me and not the needs of the Tribunal. They also include that I behaved in a fashion at the hearing on 22 August that should affect my on-going qualification to hear and determine these matters. She asserts that I behaved in a manner that was beyond “insulting”, “rude”, “demeaning”, and “disrespectful”, as well as being “pompous” and a “smart alec”. Ms Underwood asserts that I mocked her for exercising her right to appeal the decisions and to make submissions. She asserts that I refused to accept the additional medical certificate she sought to hand up. She asserts that the fact that I prepared a decision without a transcript was “an appalling, shocking and disgraceful practice”. Ms Underwood also asserts that during the oral hearing on 22 August I did not discuss or consult with her directions that I was proposing to make. She also asserts “there is a bias when a decision is made without a transcript of the hearing” and that I have a vested/conflicted interest in respect of the decision I made in that previous hearing. She asserts that I voiced criticisms of her in absolute terms.

2. Ms Underwood refers to the two types of bias, namely actual bias and apprehended bias and cites judicial authority that underpins the principles applying to the determination of allegations of apprehended bias, such as Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and the recent decision of the High Court in Charisteas v Charisteas [2021] HCA 29 confirming the correctness of Ebner. However, I respectfully say, I am unable to discern whether Ms Underwood is asserting that she has demonstrated actual bias or apprehended bias or both in this case.

3. With respect to Ms Underwood, she has not persuaded me that I should recuse myself from the matters.

4. That I am a sessional judicial member of the Tribunal, validly appointed, and not a permanent member makes no difference to whether I am suitable for hearing the appeals. I was allocated the appeals by the President and I intend to discharge my responsibility to hear and determine them, true to my affirmation of office.

5. I respectfully reject Ms Underwood’s assertion that the manner in which I conducted the hearing on 23 August was in any way “insulting”, “rude”, “demeaning”, and “disrespectful”.  I do not accept that it in any way affects my qualification to hear the appeals. I respectfully reject the assertion that I mocked Ms Underwood or that I “refused to accept” the medical certificate she sought to hand up. I recall considering that the medical certificate was not being handed up to support any relevant application such as an adjournment or an application to extend any relevant directions. I was hearing the Information Commissioner’s application to be removed as a Respondent to the appeals. I was aware that Ms Underwood has had health issues and did not consider it necessary to read any further medical certificate. I told her that she did not need to hand it up. I did not “refuse to accept” it.

6. The assertion that preparing a decision without a transcript was “an appalling, shocking and disgraceful practice” and demonstrates bias is also not correct. Judges are expected, where possible, to hear and determine matters as expeditiously as possible and requiring a transcript is certainly not mandated and delivering a decision without one is hardly exceptional and certainly does not demonstrate bias.

7. I reject the assertion that I criticised Ms Underwood in absolute terms and my reference in my previous decision to the well-known quote of McHugh J (formerly of the High Court) in Gallo v Dawson (1990) 93 ALR 479 at 481 was not said as a form of mockery or to demean Ms Underwood. Rather, the reference is to highlight the fact that litigants who are not lawyers, who do not have legal representation, cannot simply, for that fact alone, be excused from having to comply with procedural law and rules, or have the substantive law applied in their cases any differently from how it is always to be applied.

8. Having regard to the well-known passage that was quoted by Ms Underwood when she was raising the point of apprehended bias in her recusal application, I do not accept that the fair-minded observer would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the appeals when I ultimately have to consider them.

9. Respectfully, I dismiss Ms Underwood’s application for me to recuse myself.

The Hearing Vacation Application

1. Ms Underwood applies for the hearing of the Appeals, currently set for later in November 2022, to be vacated and pushed on to dates in 2023. Although she has missed the date for filing her written submissions, which was set for 3 October, she asks for that to be extended to 31 January 2023. Ms Underwood has not provided the Tribunal with any further evidence as to why the matters should be pushed out, simply saying in her hearing vacation application that she is too busy to prepare and that her capacity to prepare is being impacted by her health.

2. Again, with respect to Ms Underwood, these matters have been pending in this Tribunal for a long time now.  As the former Chief Justice of the High Court, French CJ, said in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [24]:

   Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. 

3. I am not here saying that I am satisfied that Ms Underwood has made a late and deliberate tactical change in the direction of her conduct of these appeals, but rather I am referring to the learned Chief Justice’s words as I consider them otherwise applicable in the circumstances of these appeals. There is a public interest in a timely, final determination of these appeals that transcends just the immediate needs of the parties. I am simply not persuaded by Ms Underwood that there are good grounds to disregard that public interest and to vacate the appeal hearing dates that are still one month away and to push them into next year. The appeals have been set down for hearing in November since May this year. The direction requiring Ms Underwood to file her written submissions by 3 October has been in place since then, too. Whilst that date has passed without Ms Underwood’s compliance, Ms Underwood has not established that she simply cannot be ready in time for the hearing of the appeals if she is given a new date by which she is to file her submissions.

4. I will dismiss her application for the hearing dates to be vacated but I will extend the time by which she is file her written submissions to the close of business on Friday, 4 November, giving the Respondent until close of business on Friday, 11 November to file their written submissions in reply.

5. Furthermore, as I am conscious that Ms Underwood seeks, retrospectively, to be relieved from having to provide the Respondent a list of further documents that she wanted included in a Supplementary Appeal Book, I must consider that.

6. That direction was made after the hearing of the 22 August 2022 because Ms Underwood said that she was unhappy with the Appeal Book that had been sent to her as it did not contain all the documents that she asserted it should contain. It had not been put together following consultation between the parties and agreement as to its content, as happens in other appellate jurisdictions such as in the Supreme Court’s Court of Appeal. I made the direction to give Ms Underwood the opportunity to have the input into the content of the Appeal Book that I considered she apparently sought.

7. It seems she has not availed herself of that opportunity and no longer wishes to. Accordingly, I will discharge that direction.

8. I order as set out at the commencement of these reasons.