Background
The Health Care Complaints Commission brought disciplinary proceedings against Dr Andrew Foong concerning allegations that he improperly issued COVID-19 vaccine exemption certificates, improperly prescribed ivermectin and engaged in related professional misconduct. At the first stage of the proceedings, the NSW Civil and Administrative Tribunal found him guilty of unsatisfactory professional conduct and professional misconduct. The Commission’s sole expert, general practitioner Dr Emery Kertesz, provided peer-opinion evidence about the standards expected of a general practitioner.
Before the Tribunal determined the resulting orders, Dr Foong sought the recusal of Principal Member Ainslie-Wallace for apprehended bias. Sixteen years earlier, she and Dr Kertesz had served together on a Medical Tribunal panel in unrelated disciplinary proceedings. The Principal Member had no recollection of that case or the panel’s composition and refused to recuse herself. Dr Foong sought leave to appeal that interlocutory ruling.
The Court’s Holding
The Court of Appeal granted leave because one proposed ground raised an issue of principle and public importance, but unanimously dismissed the appeal. Applying the fair-minded-lay-observer test, the Court held that the brief professional association in one proceeding 16 years earlier did not create a reasonable apprehension that the Principal Member might assess Dr Kertesz’s evidence other than on its merits.
Any extraneous impression the Principal Member might have formed could, at most, have concerned Dr Kertesz’s expertise or general trustworthiness. But his expertise as a general practitioner and his honesty were not in issue; the challenges concerned the accuracy and reasoning of aspects of his opinions. There was therefore no logical connection between the alleged predisposition and a feared departure from impartial decision-making. The Court also rejected the claim that the Principal Member had failed to address whether she possessed extraneous information, and ordered Dr Foong to pay the Commission’s appeal costs.
Key Takeaways
- Prior service by a decision-maker and an expert witness on the same tribunal does not, without more, establish apprehended bias.
- The applicant must identify both the potentially disqualifying factor and a logical connection between that factor and a feared departure from deciding the live issues on their merits.
- Assessing challenged expert reasoning differs from deciding the credibility of a lay witness, particularly where the expert’s honesty and relevant qualifications are accepted.
Why It Matters
The decision clarifies how apprehended-bias principles apply in specialist disciplinary tribunals, where professionals may serve as adjudicators in one matter and give expert evidence in another. Recusal remains fact-specific, but a remote and transient professional association will not ordinarily suffice when the alleged favorable impression concerns matters that are not genuinely disputed.
The Court also cautioned that treating prior joint tribunal service alone as disqualifying could discourage experts from serving on tribunals and provide litigants with a means of tribunal-shopping.