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Bar Talk
11 November, 2004  
Lord Archer - still ducking and weaving

Retired barrister and tax recalcitrant Lord (Stephen) Archer is pulling out all stops to prevent further unpleasant action by the Bar ‘n Grill. This includes a case that the Administrative Decisions Tribunal displayed “iciness” towards him and is hopelessly biased against him. The tribunal found for itself.

Stephen Archer, the flushed-faced tax recalcitrant and multiple bankrupt, formerly of the Sydney Bar ‘n Grill, is convinced the Administrative Decisions Tribunal has it in for him.
image Not only is the three person ADT panel hearing an application by the Grill to strike him from the roll biased against him, but so too is the entire ADT.

Fair minded lay observers, Archer told the tribunal, could only concluded that since his score at the ADT was 40-love, it is a completely compromised outfit.

Its latest decision, in which the three members dismissed his plea to disqualify themselves on grounds of actual and apprehended bias, must confirm his darkest suspicions.

The tribunal, composed of Prof Michael Chesterman, Sharron Norton SC and non-judicial member C. Bennett, not only had to locate the “fair minded lay person” but, in the process, try not to look too ridiculous in trying to “distance” themselves from their own decisions “in a way that is far from straightforward”.

As the panel solemnly put it: “Doing the best that we can, our conclusion is that the respondent (Lord Archer) has failed to ‘firmly establish’ apprehended bias.”

Chesty, Sharron and Bennett were swayed by a number of considerations including: the fact that they decided against His Lordship in three out of three cases (now four out of four) that didn’t mean there could be an apprehension of bias; the reserved judgments they delivered summarised the arguments of both sides; they stated and applied the law to the facts “as correctly as we were capable of doing”; and because no specific details were given about the allegation of “iciness” towards Archer no finding could be made in relation to “enmity”.

One of the Archer’s additional points was that Sharron Norton was actually biased against him because she is a card carrying member of the Bar ‘n Grill.

Importantly, she did not disclose that fact at the commencement of the hearing.

Judicial Member Norton had no trouble dismissing such extravagance in a separate judgment. She pointed out that the authorities said that members of governing councils should be disqualified from sitting as members of disciplinary tribunals, “by interest or association or both”.

Since she was not, and never had been, a member of the council or of a conduct committee of the Grill, there was no need to disqualify herself. So there.

Also, she was never asked to disclose the fact that she was a member of the bar association. In any event this “could not have come as a surprise to the respondent”.

The Bar ‘n Grill’s web site says that on April 21 last the ADT handed down a decision on an application from the rouge-chopped tax toad for the separate determination of a preliminary question that the matters set out in the information filed by the Grill were incapable of constituting professional misconduct.

The tribunal dismissed the strike out application and Archer has lodged “an holding appeal”.

This is all part of a fiercely contested struggle to get Archer struck off the roll.

The other two tribunal decisions subject to challenge by the ex-barrister were a decision to reject his application to strike out 16 summonses to produce documents on the grounds of abuse of process and oppression, plus a decision in March this year to allow the bar to file its application out of time because it had advanced a “reasonable explanation” for the delay.

Lord Archer alleged that the ADT had reached all three decisions without reason or explanation, and that any comprehensible reasoning was so absent that a finding of actual and apprehended bias was “inescapable”. There was also the question of “a degree of iciness towards him”.

The tribunal sought to get to grips with the extent of the legal knowledge or analytical skill required by the “fair minded lay person” in order to catch a whiff of apprehended bias.

To this end it was guided by Kirby P in S & M Motor Repairs Pty Ltd v Caltex Oil Australia Pty Ltd, as approved by Toohey J in Vakauta v Kelly, that one should not attribute to the fair-minded lay observer a “sophistication and knowledge about the law and its ways which I believe to be quite atypical of the general community”.

The metaphor proposed by Kirbs as appropriate was of a “robust discussion between reasonably ordinary citizens on the Emu Plains omnibus”.

In concluding that the allegation of actual bias was unsubstantiated, the tribunal judged that any defects that existed in their previous decisions still could not support the contention that they had reached a predetermination against Lord Archer.

Seems as though his Lordship is having an absolute hoot in his forced retirement.