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

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Department of Justice v Wise and Wise Real Estate Pty Ltd & Anor [2025] QCAT 93 PARTIES: 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: 26 February 2025 HEARING DATE: On-Papers hearing HEARD AT: Brisbane DECISION OF: Member D Brown ORDERS: The applications for recusal dated 2 December 2024, 19 January 2025 and 6 February 2025 are 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 during directions hearing – no bias or apprehended bias shown – application for directions to disclose documents – application previously made and refused by the Tribunal Property Occupations Act 2014 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Bendall v Michel and Anor; Michel and Anor v Belle Property [2013] QCATA 7 Charisteas v Charisteas [2021] HCA 29 Cook v ASP Ship Management Pty Ltd (2008) 105 ALD 453 Craven & Ors v Kataria & Ors [2024] QCATA 127 DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270 Dural (a pseudonym) v The Queen [2021] VSCA 82 -- 1 of 19 -- 2 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Isbester v Knox City Council (2015) 255 CLR 135 Johnson v Johnson [2000] HCA 48 Kirk v Industrial Relations Commission of New South Wales [2010] 239 CLR 531 Maffey v Mueller [2016] QCATA 19 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 Minister for Immigration & Multicultural Affairs v Capitly [1999] FCA 193 Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 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 Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591 Souwer & Anor v Hodkinson & Anor [2020] QCATA 133 Tessa v Director of Public Prosecutions (Cth) [2022] VSCA 61 Vakauta v Kelly [1989] HCA 44 Westpac Banking Corporation v Forum Finance Pty Ltd (Apprehended Bias Application) [2022] FCA 981 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] 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] The application has been on foot for three years and was listed for a five-day hearing in Southport on 11 to 15 November 2024 (‘November hearing’). -- 2 of 19 -- 3 [3] On 1 October 20241 Ms Wise filed an application to vacate the November hearing and move the hearing date to a date after 1 February 2025. Ms Wise provided a medical certificate with the application dated 25 September 2024. On 15 October 2024 Ms Wise filed a further application to delay the hearing until after February 2025 and reattached the medical certificate dated 25 September 2024. [4] On 25 October 2024 the DOJ filed submissions in response to the application for an adjournment, confirming they opposed the application. [5] I conducted a directions hearing on 29 October 2024 to determine a number of prehearing issues including the request to vacate the hearing and a request for documents to be provided/further and better particulars. [6] On 29 October 2024, prior to the direction hearing commencing, Ms Wise provided a further medical certificate dated 28 October 2024. [7] On 29 October 2024 after giving my decision refusing to vacate the November hearing, Ms Wise raised that there were further medical concerns that had not been put to the tribunal that would demonstrate she was not medically fit to participate in the proceedings and requested further time to provide this material to the tribunal. [8] Directions were issued on 29 October 2024 which directed amongst other things that Ms Wise must file any further medical evidence she wished to rely upon in support of the application for an adjournment by 4:00pm on 1 November 2024 and that the matter was listed for a further directions hearing on 4 November 2024. [9] At the directions hearing on 4 November 2024, in line with Ms Wise’s application, I vacated the November hearing and relisted the matter for hearing on 17 to 21 March 2025. [10] Directions were issued on 4 November 2024 that directed amongst other things that the DOJ must not file any material in the tribunal before 20 January 2025 and Ms Wise must not file any material in the tribunal before 3 February 2025 without leave of the tribunal. Leave would only be granted if the parties demonstrated an urgent reason for filing and if Ms Wise provided a letter from her doctor confirming she was capable of participating in legal proceedings. [11] These directions were discussed with and agreed to by the parties at both directions hearings. The basis of the directions, as explained to the parties at the directions hearings, was to ensure Ms Wise took the break from the legal proceedings that her doctor was recommending. Recusal application [12] Ms Wise brought an application on 2 December 2024 seeking I recuse myself from hearing this matter as a result of my involvement at the directions hearings on 29 October 2024 and 4 November 2024. 1 Document sent at 9:06pm on 30 September 2024 and received by the tribunal on 1 October 2024. -- 3 of 19 -- 4 [13] Ms Wise filed two further applications for recusal2 on 19 January 20253 and 6 February 2025. All three applications largely raise the same issues. [14] The applications filed on 2 December 2024 and 19 January 2025 also sought direction requiring a party to produce documents. Those applications have been considered in a separate written decision. [15] Ms Wise’s applications state I have heard this matter on three occasions. This is incorrect. My involvement in directions hearings has been limited to 29 October 2024 and 4 November 2024. [16] Ms Wise raises a number of issues in her material, but the grounds for recusal can be summarised as follows: (a) Actual bias. (b) Apprehension of bias and lack of impartiality. (c) Breach of procedural fairness and natural justice. (d) Disadvantage to respondents due to withholding of discovery documents critical to their defence. (e) Violations of legal and ethical obligations under relevant Queensland legislation. [17] Directions were filed after each application was received to provide the DOJ an opportunity to respond to the application. Submissions were received from the DOJ on 24 January 2025 and 14 February 2025 [18] In short, the submissions filed by the DOJ dispute the facts alleged by Ms Wise and assert that they do not amount to anything more than bare assertions as Ms Wise has not articulated any connection between my conduct and the outcome that Ms Wise hypothesises will result from the conduct. The DOJ’s primary position is that there is no legitimate basis for contending that I would deviate from determining the application other than based on the facts and legal merits of the matter and that I should not be disqualified from hearing or deciding the case.4 Legal Principles [19] 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. [20] 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”.5 2 Ms Wise has sent multiple documents to the Tribunal in relation to these applications, some of which are duplicates of others. Only those documents entitled first, second and third application have been referred to as fresh applications. 3 Received by the registry on Monday 20 January 2025 as the document was sent by email on Sunday 19 January 2025. 4 DOJ submissions dated 24 January 2025, [15]. 5 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 [72]. -- 4 of 19 -- 5 [21] 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.6 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.7 [22] 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. (a) 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. (b) The second is the contention that the decision-maker will apply that opinion to the matter in issue. (c) 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. 8 [23] A finding of actual bias is a grave matter. An allegation of actual bias must be distinctly made and clearly proved. A finding of actual bias should not be made lightly; and cogent evidence is required.9 [24] 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.10 [25] As identified in Ebner v Official Trustee in Bankruptcy11 and followed in Michael Wilson & Partners Ltd v Nicholls,12 the majority in the High Court confirmed that the apprehension of bias principle is to be applied by a two-step process. (a) 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 (b) 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. 6 Ibid [72]. 7 Ibid [71]. 8 Ibid [185]. 9 Ibid [69]. 10 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. 11 (2000) 205 CLR 337. 12 [2011] HCA 48. -- 5 of 19 -- 6 [26] 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.13 [27] 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.14 [28] 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.15 [29] 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.16 [30] As noted in Sayed v National Disability Insurance Agency (No 2):17 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.18 [31] The onus is on the person bringing the application for recusal to demonstrate the actual bias or apprehension of bias which 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. [32] Therefore, Ms Wise must demonstrate: (a) the fact, circumstance or event which constitutes the source of the bias or prejudice; (b) a feared deviation as a result of the bias or prejudice; and (c) a logical connection between the source of the bias or prejudice and the feared deviation as a result of the bias or prejudice.19 13 Ibid [63]. 14 Tessa v Director of Public Prosecutions (Cth) [2022] VSCA 61 quoting Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70. 15 Vakauta v Kelly [1989] HCA 44 [10]. 16 Craven & Ors v Kataria & Ors [2024] QCATA 127 [65]. 17 [2022] FCA 1591. 18 Ibid [9]. 19 Maffey v Mueller [2016] QCATA 19 [49]. -- 6 of 19 -- 7 Consideration [33] At the outset it is important to understand what the recusal application is not about. While Ms Wise raises concerns about the quality of evidence to support the application for discipline proceedings and alleges certain conduct by the DOJ and the Office of Fair Trading (‘OFT’), or witnesses for the DOJ, including making some serious allegations, this is not the forum to deal with the strength of the substantive case or concerns about the DOJ/OFT or their witnesses. Accordingly, it is not appropriate to comment on the strengths of the evidence in the substantive application or the conduct of the DOJ/OFT or any witness, other than to the extent it is relevant to, and necessary for, the recusal application. Actual bias [34] Ms Wise’s initial application for recusal raised only the issue of apprehension of bias but the second and third applications appear to raise allegations of actual bias. [35] The assertions of actual bias by Ms Wise appear to arise from the reference in the directions issued on 11 December 2024 about the lack of a medical certificate, which Ms Wise asserts is a deliberately false statement. She also asserts that the refusal of her application for further documents/material demonstrates fraudulent concealment of critical information. [36] Ms Wise has not articulated in any detail how or why she believes I am biased against her and have predetermined the matter in the DOJ’s favour, other than that I have made decisions or directions that she does not agree with. [37] While Ms Wise may have a belief, she has provided no evidence upon which to demonstrate that I have any opinion on a relevant aspect of the matters in issue in this particular case; or that I 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. [38] The way the two directions hearings were conducted, and in particular the granting of the adjournment of the hearing, sits at direct odds with Ms Wise’s allegation of actual bias and prejudgement. On the contrary, it evidences that I did not have any bias or predetermined view of any issues in dispute. After initially refusing Ms Wise’s application, I allowed further evidence to be filed when Ms Wise identified there was more information which could be put to the tribunal on the relevant issues and based on the new evidence and further submissions made at the second direction hearing, I altered my decision and granted the application. Apprehension of bias [39] Ms Wise asserts that the conduct during the direction hearings, the orders made and the directions I have issued all demonstrate an apprehension of bias and breaches of procedural fairness and natural justice resulting in disadvantage to the respondents and violation of legal and ethical obligations. [40] Ms Wise raised numerous issues which she asserts demonstrate why a fair-minded observer would have an apprehension of bias. I deal with each issue in brief below. Medical evidence [41] Ms Wise asserts that my dealing with the medical evidence demonstrates both actual bias and apprehension of bias. -- 7 of 19 -- 8 [42] Firstly, Ms Wise states that I deliberately issued directions on 11 December 2024, which had an untrue statement which demonstrates a breach of procedural fairness, bias and breach of section 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). [43] The DOJ does not agree that the directions were made fraudulently or contained misrepresentation or breaches of the QCAT Act. The DOJ asserts that Ms Wise has failed to demonstrate how in issuing these directions the tribunal acted unfairly against the substantive merits of the case or the principles of natural justice. [44] The paragraph in the direction Ms Wise takes issue with states: 1. The Tribunal notes that… … (c) Ms Wise sought to file an application for miscellaneous matters (recusal and application to produce documents) on 2 December 2024 at 6.11pm. The application contained no evidence or submissions as to why the matter was urgent and no letter from a doctor confirming Ms Carly Dakota Wise was capable of participating in legal proceedings. [45] Ms Wise asserts the statement in the direction is untrue as she provided a medical certificate to the tribunal on 2 December 2024. [46] It is unclear what the bias or prejudice is to her from this direction as it is nothing more than a notation. The only thing which flowed from it was that, in line with the previous directions issued on 4 November 2024, the application for miscellaneous matters (recusal and application to produce documents) would be considered by the tribunal on a date after 4 February 2025. [47] The ruling does not in any sense affect Ms Wise’s legal rights and interests. [48] An error in issuing directions does not in and of itself demonstrate evidence of bias. However, in this case, Ms Wise is mistaken and there was no error in the directions. [49] Ms Wise asserts that she sent the doctor’s certificate to the tribunal on 2 December 2024 and that I had the medical certificate when making the directions on 11 December 2024. This is not what the tribunal file reflects. [50] Ms Wise’s application for recusal was sent on 2 December 2024 at 6:11pm. The only medical certificate attached to the email was the one dated 25 September 2024 which was relied on to seek the adjournment of the November hearing. Ms Wise’s email attaching the application stated, “I kindly request leave due to medical reasons and confirm that a medical certificate from Dr. Kate will be provided tomorrow, following my scheduled appointment” and “[t]he medical certificate and a detailed letter will be supplied to QCAT by tomorrow as per this timeline”. [51] No further emails were received from Ms Wise until 16 December 2024. While it is accepted that the email on 16 December 2024 attached a medical certificate dated 2 December 2024, when the directions were issued on 11 December 2024, they were accurate as no medicate certificate had been received by the tribunal. -- 8 of 19 -- 9 [52] The medical certificate Ms Wise provided dated 2 December 202420 did not state Ms Wise was capable to participate in ongoing legal proceedings, only that her doctor supported her lodging documents on 2 December 2024 as Ms Wise had told her doctor that she had a legal matter due that day and she had already completed the paperwork. The doctor’s letter strongly recommended against undertaking any further legal work until March 2025. [53] As there is no error in the directions issued, there is no evidence to support a claim of actual bias. [54] Ms Wise further raised that the tribunal’s dealing with medical certificates demonstrates an apprehension of bias. Ms Wise asserts that unreasonable pressure was placed on her by requiring her to provide three medical certificates21 and that the tribunal “demanded” the third more detailed medical certificate. Ms Wise also referred to the directions hearing on 29 October 2024 as being a “3-hour interrogation” of her medical evidence. [55] Ms Wise also raises that the tribunal “scrutinised” her medical certificate, which she asserts impinges on principles of fairness and respect for professional medical assessment and demonstrated unfairness and bias. She relies upon the authority of Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka22 which she states cautioned against non-expert scrutiny of professional medical assessments. That does not appear to be a finding in that decision, and the decision does not deal with the court’s scrutiny of medical assessment [56] The DOJ disputes Ms Wise’s assertion, stating Ms Wise was permitted, but not obliged, to file further medical evidence if desired as despite the DOJ’s initial objections, I afforded the respondents a further opportunity to provide more comprehensive medical evidence that supported Ms Wise’s reported health concerns.23 [57] The DOJ further states that the direction hearings did not occur in the manner as described in Ms Wise’s recusal application and Ms Wise addressed the tribunal in relation to a vast number of issues that she sought to ventilate at the directions hearing, and the focus was not just the adjournment application and the medical certificates, as evidenced by the numerous matters addressed in the tribunal directions dated 29 October 2024.24 [58] I do not accept that my directions and/or consideration of the medical certificates at the direction hearings on 29 October 2024 or 4 November 2024 would cause a fair- minded observer to have any reasonable apprehension that I might not bring an 20 There were three versions of the medical certificate provided dated 2 December 2024, but the contents were largely the same in all three documents. The first was received on 16 December 2024, the second received on 20 January 2025 (in an email sent on Sunday 19 January 2025) which had an additional sentence added about Ms Wise having already completed the paperwork, which was redacted and also changed the words stress and health to mental health but the word “mental” was redacted. The third version was received on 6 February 2025 and was a duplicate of the version received on 20 January 2025, but with no redactions. 21 Ms Wise’s first request for recusal dated 2 December 2024, [2.3.2]. 22 (2001) 206 CLR 128. 23 DOJ’s first submissions filed 24 January 2025, [32]. 24 Ibid [29]-[30]. -- 9 of 19 -- 10 impartial mind to, or deal with, the matter other than based on the facts and merits of the matter. [59] In relation to Ms Wise’s application to vacate the hearing dates listed for November 2024, it was evident that the two medical certificates by Dr Katherine Morgan that Ms Wise had provided to the tribunal of her own volition did not align with Ms Wise’s submissions regarding her reported health concerns. Ms Wise requested an opportunity to submit additional medical evidence to the tribunal to substantiate the more significant and serious health issues she had asserted. I provided her with an opportunity to do so, but at no time was she required to do so. This was reiterated on more than one occasion at the directions hearing. [60] Ms Wise was seeking to rely on the medical certificate to vacate a five-day hearing, only a few weeks before the hearing was to occur, when the proceedings had already been on foot for close to three years awaiting determination. The authorities25 clearly demonstrate there is a need to thoroughly consider a medical certificate to determine if it demonstrates a party’s unfitness to participate in proceedings, and have reiterated that the notion that a few stereotyped, perfunctory or uninformative lines upon a medico’s letterhead would guarantee an adjournment is misplaced.26 [61] The DOJ submissions in the proceedings were that the medical certificate did not support a finding that Ms Wise was not fit and the certificates were not sufficient to support an application to vacate the hearing, given the interests of justice warranted the matter proceeding. In those circumstances I would have been in error had I not considered the medical certificates to determine whether they supported the submissions made by Ms Wise and was sufficient to evidence a genuine need for an adjournment of the hearing. [62] I therefore find there is no basis upon which a fair minded observer would consider I have predetermined the matter or that I might not bring an impartial mind to the determination of the matter, based on my dealing with the medical certificates. Lack of impartiality/Contradiction with tribunal precedent [63] Ms Wise raises that my involvement in the two directions hearings could influence my impartiality at the hearing and a new member should be appointed to be consistent with the principles of natural justice and procedural fairness and to ensure an unbiased and fresh evaluation of the argument. [64] Ms Wise has not clearly articulated why my involvement in two directions hearings would so influence my impartiality that I might not determine the matter based on the factual and legal merit and has provided no evidence to support this position. [65] Ms Wise’s position that a new members is needed to comply with principles of natural justice and procedural fairness appears to come from a belief that Senior Member Aughterson27 (‘SM Aughterson’) had recused himself, citing the need for procedural fairness. Ms Wise perceives that my continued involvement breaches the same 25 Minister for Immigration and Multicultural Affairs v Capitly (1999) 55 ALD 365, 372; Cook v ASP Ship Management Pty Ltd (2008) 105 ALD 453; Souwer & Anor v Hodkinson & Anor [2020] QCATA 133; Bendall v Michel and Anor; Michel and Anor v Belle Property [2013] QCATA 7. 26 Souwer & Anor v Hodkinson & Anor [2020] QCATA 133 [11]. 27 Who previously issued directions and resided over the majority of the directions hearings since the matter had commenced. -- 10 of 19 -- 11 principle applied by SM Aughterson which she asserts would undermine the general impartiality of and integrity in proceedings.28 [66] This position is not supported by the DOJ who states the submission SM Aughterson recused himself or was disqualified from presiding over the matter is fundamentally wrong.29 Ms Wise’s position is also inconsistent with her application for miscellaneous matters filed on 22 October 2024, where she brought an application for the recusal of SM Aughterson, which was later withdrawn at the directions hearing on 29 October 2024. [67] SM Aughterson did not recuse himself from the hearing. While he may have given indications to the parties that he would not conduct the hearing and another member would be determining the substantive matter, at no time did he recuse or disqualify himself. [68] Ms Wise asserts that “procedural fairness requires that adjudicators who participate in procedural hearings must not preside over substantive hearings”. Ms Wise relies upon three case law authorities30 to support her position being: (a) Kirk v Industrial Relations Commission of New South Wales (‘Kirk’)31 which she states “highlights the critical need for decision-makers to approach proceedings without previous bias that may arise for earlier participation”. (b) Isbester v Knox City Council (‘Isbester’)32 which she states emphasized that any prior involvement by a decision-maker in preliminary matters could compromise the appearance of impartiality; and (c) Barton v State of Queensland [2011] QCA 151 which she asserts states “a decision-maker cannot be involved in prior rulings and later determine the final outcome”.33 [69] There are some issues with the authorities Ms Wise seeks to rely upon. [70] The case of Kirk is a well-known High Court decision about the constitutional limits on State Courts’ powers and the doctrine of jurisdictional error. The case is about the power to judicially review administrative decisions and does not raise issues of decision-maker bias or recusal, or make the statements asserted by Ms Wise. [71] In relation to the case of Isbester Ms Wise appears to misunderstand the decision. While the decision is about apprehended bias, that matter is about a decision maker in a panel who has been a prosecutor/accuser in an earlier proceeding relating to the defendant. It does not relate to a tribunal member/decision maker determining preliminary matters and then determining the substantive matter in the same proceedings. [72] The case of Barton v The State of Queensland does not appear to be a legitimate case. The reference “[2011] QCA 151” related to a case of Robina Syndicate Pty Ltd v RPA Properties Pty Ltd and in a brief search I could not locate any case entitled Barton v 28 Second application for recusal dated 20 January 2025. 29 DOJ first submissions filed 24 January 2025 [37]. 30 First application for recusal dated 2 December 2024, page 4 para [5]. 31 [2010] 239 CLR 531. 32 (2015) 255 CLR 135. 33 Ms Wise’s submissions dated 14 February 2025, received on 17 February 2025. -- 11 of 19 -- 12 The State of Queensland”. The case of Robina Syndicate Pty Ltd v RPA Properties Pty Ltd does not support the position put forward by Ms Wise and is an appeal from the civil jurisdiction of the Supreme Court on the issue of interpretation of a contract. There is no application for recusal or issues about decision-maker bias raised in that matter. [73] No findings of credit are attributed to Ms Wise due to these errors, nor is the tribunal suggesting Ms Wise sought to knowingly mislead the tribunal. The tribunal accepts that Ms Wise is not legally qualified, and it appears the supports or systems she used to assist her in drafting her submissions have misguided her. [74] While in some circumstances the determination of interlocutory applications may disqualify a decision-maker from hearing a proceeding, that will only occur if the decision-maker has been required to make adverse credit findings or otherwise make statements or rulings that prejudge an issue to be determined in the proceeding or create a reasonable apprehension of such prejudgment.34 None of those circumstances exist in the present case. [75] As observed by Perry J in DOQ17 v Australian Financial Security Authority (No 2)35 generally speaking, interlocutory rulings ought not to be regarded as giving rise to a reasonable apprehension of bias or actual bias because they necessarily precede the final resolution of the proceedings and therefore do not finally determine any of the issues. [76] It is a standard position for the same member or judge to deal with the interlocutory matters before a hearing. A fair-minded observer would not consider this evidence of bias or that I might not bring an impartial mind to the determination of the matter, simply due to having conducted two directions hearings. Disclosure/Request for further material [77] Ms Wise asserts that my decision to refuse her applications requesting the DOJ provide her with further documents is evidence of either bias or apprehension of bias. [78] While it is accepted Ms Wise disagrees with the decision, disagreement with a ruling made by a judge or tribunal member does not establish bias or apprehended bias.36 [79] Ms Wise contends that the above ruling was made without proper consideration and without procedural fairness or giving her an opportunity to be heard. I reject that contention. Ms Wise filed multiple submissions in relation to the numerous applications she made for further documents to be provided and was afforded an opportunity to be heard and provide further submission at the directions hearing before the decision was made. [80] There are other avenues for a party who considers 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, 34 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 [72]-[73]; Westpac Banking Corporation v Forum Finance Pty Ltd (Apprehended Bias Application) [2022] FCA 981 [7]-[11]. 35 [2018] FCA 1270; 363 ALR 681 [15]. 36 Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591 [27]. -- 12 of 19 -- 13 and a claim of breach of procedural fairness does not in and of itself demonstrate bias.37 [81] Ms Wise further states that the refusal to make orders in her favour about the disclosure of further material suggest fraudulent concealment of critical information, further disadvantaging the respondents and breaching transparency and accountability principles. I reject that the decision demonstrates fraudulent concealment or breach of transparency and accountability. While Ms Wise holds this view, she has not provided any evidence to support this belief. One of the reasons for refusing the application was the tribunal was not satisfied that any such documents were even in existence. [82] There is no basis to think that my rejecting Ms Wise’s application for further documents might lead me to decide the substantive application other than on the respective legal and factual merits. Strike-out applications [83] Ms Wise raises that I refused to allow the strike-out applications to be considered prior to the hearing which contradicted SM Aughterson’s previous directions allowing them to be heard on the papers, which disadvantages her and has increased costs and stress for her unnecessarily.38 [84] Even if those assertions were correct, additional stress or costs to a party are not evidence of an apprehension of bias which would lead a fair-minded observer to consider I might decide the matter other than on the facts and legal merits. [85] In this case, I made no such determination about when the strike-out applications were to be determined. It was SM Aughterson who issued directions on 21 October 2024 vacating the previous directions and directing that the strike-out applications would be determined at the tribunal hearing. [86] The only determination in relation to the strike-out applications that I made was that the strike-out applications for the 10 people who were no longer witnesses in the case be dismissed, given that those strike-out applications did not need to be determined as that material was not being relied upon. [87] It was reiterated to Ms Wise at the directions hearing that the determination about the strike-out applications being heard at the hearing had already been made. The previous decision was confirmed and reiterated in the directions issued on 29 October 2024, simply to provide clarity to the parties, given some of the strike-out applications were dismissed. [88] Ms Wise’s confusion appears to come from her belief that she “appealed” SM Aughterson’s decision that the strike-out be heard at the hearing and brought it to my attention”.39 However Ms Wise did not appeal the decision. She did not file any appeal documents nor seek leave to appeal. She simply filed a further Form 40 application for miscellaneous matters. As the issue had already been determined and Ms Wise did not seek to appeal or use any of the other avenues available to a party to reopen or rehear a matter and instead just resubmitted the same application that had 37 Dural (a pseudonym) v The Queen [2021] VSCA 82 [33]. 38 First application for recusal dated 2 December 2024, page 3, point 4. 39 First application for recusal dated 2 December 202, page 7 point 10. -- 13 of 19 -- 14 already been determined by SM Aughterson, there was no legitimate basis upon which the tribunal could reconsider or overturn the decision already made. [89] There is no basis upon which a fair minded observer would consider that my directions in relation to the strike out might lead me to decide the substantive applications otherwise than on their respective legal and factual merits. Additional witness [90] In her first application, Ms Wise asserts that I “initially prohibited her relying on further witness and affidavits but allowed the DOJ to rely upon three new complainants”.40 [91] This is not correct. Ms Wise was not prohibited from relying on further witnesses or filing further affidavits. Directions issued on 4 November 2025 prohibited Ms Wise from filing material for a period of time until the start of February to ensure she followed her doctor’s advice to rest but provided a further filing date for any further material in late February 2025. [92] Ms Wise states in her second application for recusal that “On 29 October 2024, in Paragraph 4 of her directions, Member Brown permitted three new complainants to be added to the applicant’s claim”. Ms Wise asserts that this demonstrates bias and unfairness as it prejudices the respondents (in the substantive matter) without proper notice or opportunity to address these new allegations.41 [93] Direction 4 of the directions dated 29 October 2024 states: The counter applications sought to be filed by the Respondent Ms Carly Dakota Wise against potential witnesses Tara McTaggart, Cameron McDougall, Ian McDougall, Dwayne Vale, Sharon Vale, Mia Behlau and Kevin Fothergill are struck out pursuant to section 47(1)(a) and (b) of the Queensland Civil and Administrative Tribunal Act 2009. [94] This direction has nothing to do with the material relied upon by the DOJ and does not allow additional witnesses. [95] I made no orders or directions about the allowance of material from new witnesses at the directions hearings. While there were discussions of this issue, it was only to try and clarify for Ms Wise that this decision had already been made by the tribunal. [96] The three additional witness statements relied upon by the DOJ were filed prior to my involvement in the matter. [97] The DOJ emailed the tribunal on 17 July 2024 identifying that they were seeking to file further material and formally made an application on 26 July 2024 seeking to file three further witness statements. Ms Wise was included in both of these communications. [98] Directions were issued on 24 July 2024 by SM Aughterson allowing the DOJ to file any further material by 12 August 2024. Ms Wise had until 23 September 2023 to file any response. 40 Ibid, page 3, point 4. 41 Second request for recusal dated 19 January 2025, page 3. -- 14 of 19 -- 15 [99] The additional affidavits relied upon by the DOJ were filed on 12 August 2024. Ms Wise has now had six months to provide a response to those statements. Ms Wise’s assertions she has not had a reasonable opportunity to address the allegations in these three statements cannot be substantiated. [100] As I did not make the order or decision, there is no basis upon which a fair-minded observer would have any apprehension of bias in relation to me determining the substantive hearing. Interruptions/Procedural fairness/right to be heard [101] Ms Wise asserts that there were frequent interruptions when she spoke during the directions hearing, she was talked over and I yelled and screamed, thereby impeding her ability to present her case as she was not given the right to be heard. Ms Wise asserts that Ms Reedy, the representative from the DOJ, was allowed to speak without interruptions indicating preferential treatment. [102] Ms Wise also raises that “direct evidence from the respondent was not allowed to be presented causing significant disadvantage”.42 Ms Wise does not expand further on what this evidence was, and it is unclear what this relates to. I dispute there was any disadvantage to Ms Wise as other than making submissions, no evidence was presented at either directions hearing by either party. [103] The DOJ disputes Ms Wise’s recollection of the directions hearings and states she was afforded ample opportunity to address the tribunal matters relevant to determination.43 They state that Ms Wise was not constantly or unnecessarily interrupted and there was not differential treatment. There were occasional redirections made where relevant and appropriate to ensure expeditious resolution of the relevant issues was achieved and that I remained attentive and receptive to Ms Wise throughout both directions hearings and never once stated any disbelief or comments as to the veracity of the respondents’ submissions.44 [104] The DOJ states that the respondents were afforded considerable time to address the tribunal in respect of a vast number of issues she sought to ventilate as part of her numerous applications filed prior to the directions hearing, as evidenced by the number of matters addressed on the directions.45 Ms Wise was reminded throughout the course of both directions hearings to limit submissions to the matters for determination at the directions hearing and was directed not to interject during the tribunal’s addressing of the parties. The purpose of such guidance was to ensure the record accurately reflected the determinations reached by the tribunal member and to ensure the tribunal was not led into error by deciding matters that were appropriate for final hearing.46 [105] I reject Ms Wise’s contention that in addressing the issue at the directions hearings the respondents were not given an opportunity to be heard or that I yelled or screamed at Ms Wise. Multiple issues were determined at the directions hearings, most of which related to issues or applications made by the respondents, and all parties were provided a reasonable opportunity to be heard. Before each determination at the hearing, both 42 First application for recusal dated 2 December 2024, page 2 point 3.1. 43 DOJ submissions dated 24 January 2025 [23]. 44 Ibid [19]. 45 Ibid [30]. 46 Ibid [24]. -- 15 of 19 -- 16 parties presented submissions and were asked if there was anything further to raise before the determinations were made. [106] Any exchange with Ms Wise was in the context of the tribunal maintaining control over the proceedings and ensuring the efficient use of time. I was doing no more than my required duty in managing a procedural hearing in a busy tribunal. [107] Noting the ultimate decision in relation to the adjournment of the hearing was made in Ms Wise’s favour, it is difficult to substantiate a complaint that she was not heard or able to present her case. [108] 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 are applied in the most efficient manner in the public interest.47 [109] As observed in Johnson v Johnson48 in the context of an allegation of apprehended bias: ... the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. [110] A tribunal member is 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. 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. [111] As was said by Kirby J in Johnson v Johnson:49 [A fair-minded observer] would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. [The observer] must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. [The observer] will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, [the observer] would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.50 47 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]. 48 [2000] HCA 48 [13]. 49 [2000] HCA 48. 50 Ibid [53]. -- 16 of 19 -- 17 [112] For those reasons, I reject Ms Wise’s contention that, in addressing issues at the directions hearing, I displayed bias or that a reasonable apprehension of bias arose. Other issues [113] Ms Wise claims there were violations of legal and ethical obligations by misrepresenting evidence, refusing discovery, and allowing new complainants without notice. I have addressed these issues and Ms Wise has not provided any other evidence of any violation of legal or ethical obligations. [114] Ms Wise states that there was breach of the Public Services Act 2008 (Qld) (‘Public Services Act’). The Public Services Act is no longer in existence and was replaced by the Public Sector Act 2022 (Qld) (‘Public Sector Act’). Neither the Public Services Act or the Public Sector Act is relevant to this matter or my role as a tribunal member. [115] Ms Wise raised concerns that I referred to certain complainants as witnesses which resulted in inaccuracies in directions and a breach of procedural fairness.51 It is unclear what this argument is about and how this linguistic issue has any impact on the respondents, or why this would affect my ability to determine the substantive matter according to the legal and factual issues in the case. [116] In an email accompanying the second application for recusal, Ms Wise alleges that there is an apprehension of bias and/or actual bias as I am a Southport member and have some connection to Adjudicator Mewing who has heard previous matters which Ms Wise was a party to and whom Ms Wise has made a previous recusal application about. [117] This assertion lacks any evidentiary foundation. I am not a Southport tribunal member, and the directions hearings that Ms Wise raises issues about were both conducted at Brisbane. Many members and adjudicators do have a close working relationship and proof of some unspecified connection or even a friendship with another member or adjudicator who is not directly associated with these discipline proceedings could not, in and of itself, led to a fair-minded observer having an apprehension of bias. However, in this case, I have no such connection with Adjudicator Mewing. [118] Ms Wise raises concerns that I had not immediately recused myself, when it was first raised by her in December 2024, and as such she raised in her second and third applications that my “failure to recuse myself” shows bias. This position is erroneous as there had been no decision on the recusal application at the time so there was no “refusal” to recuse. Had I immediately recused myself upon the tribunal receiving the application, without seeking the views of the DOJ or properly considering whether Ms Wise’s grounds were made out, I would have been in error, as I would have failed to allow procedural fairness to all parties and failed to determine the application on the factual and legal merits. [119] Ms Wise also asserts that my directions allowing the DOJ to provide a response to her application demonstrates bias. She however does not expand upon that statement to evidence how it establishes bias. Procedural fairness and natural justice is to be provided to all parties, not just respondents or unrepresented litigants. The DOJ is equally entitled to know about any application in the proceedings and have a reasonable opportunity to respond. I would have been in error had I not issued those 51 First application for recusal filed on 2 December 2024, page 2 point 3.1. -- 17 of 19 -- 18 directions and allowed the DOJ an opportunity to express their view on the application. [120] Ms Wise asserts that my handling of the case has caused her distress and added to her stress about the proceedings and as such I should recuse myself. It is clear that the proceedings in general are very stressful for Ms Wise, and this is evidenced by her medical certificate. While that is an unfortunate consequence of the proceedings, the fact Ms Wise was stressed by the proceedings is not evidence of bias or a ground for recusal. Conclusion [121] 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 my conduct falls short of the expectation of a tribunal member or why a fair-minded observer would have any apprehension that I might not bring an impartial mind to the determination of the matter. [122] 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. [123] At noted in Ebner:52 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 intolerable53. [124] I do not consider Ms Wise has established any basis upon which a fair minded observer would consider I had formed any views about the disciplinary proceedings or Ms Wise that are incapable of alteration or that I might not bring an impartial mind to the determination of the disciplinary proceedings. [125] In the directions hearing I was not required to make, and nor did I make, any determination or finding of credit or determination of any issue that was to be decided at the final hearing. Of course, if I had formed any views which would prevent me from hearing the proceeding on its merits and without prejudice or favour in relation 52 [19]. 53 Ibid, [20]. -- 18 of 19 -- 19 to any party, I would be duty bound to recuse myself. I have not done so because I do not have any such view. [126] My duty as a member of the tribunal is to comply with the objects of the QCAT Act as set out in section 3, which includes to establish an independent tribunal to deal with the matters it is empowered to deal with under this Act or an enabling Act,54 and to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.55 [127] I do not consider that it is appropriate that I should recuse myself or stand down from hearing the matter. Accordingly the application for recusal is refused and I will proceed to hear the matter as scheduled at the directions hearing on 4 March 2025 and the tribunal hearing on 17 to 21 March 2025. 54 QCAT Act s 3(a). 55 Ibid; s 3(b). -- 19 of 19 --