Heap, in the matter of an Application for Writs of Prohibition, Certiorari and Mandamus against the Australian Industrial Relations Commission [2003] FCAFC 36

FEDERAL COURT OF AUSTRALIA Heap, in the matter of an Application for Writs of Prohibition, Certiorari and Mandamus against the Australian Industrial Relations Commission [2003] FCAFC 36

INDUSTRIAL LAW – workplace relations – termination of employment – arbitration by member of Australian Industrial Relations Commission – member requested private conference with representatives of one party late in proceeding – made comments on problems in that party's case and suggested implications beyond individual case – comment in strong terms – whether apprehended bias – member refused to disqualify herself – Full Bench allowed appeal – whether error by Full Bench – whether conciliation by member conducting arbitration proper – whether consenting to participate in private conference amounted to waiver of right to object to what was said – whether possibility of jurisdictional error

NATURAL JUSTICE – bias – whether reasonable apprehension – member of Australian Industrial Relations Commission suggested private conference with one party at late stage of arbitration of application related to termination of employment – whether disqualified by comments made in strong terms about party's case – relevance of particular practice of tribunal – relevance of opinion of Full Bench about propriety of member's conduct

Workplace Relations Act 1996 (Cth) ss 45, 170CE, 170CF, 170CG Johnson v Johnson [2000] HCA 48 (2000) 201 CLR 488 at [11] – cited

Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 299 – 300 – cited Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 – cited Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56 at [12] – cited Vakauta v Kelly (1989) 167 CLR 568 at 571 – cited Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 – cited Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 317 – cited Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 15 – cited Richmond River Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1992) 34 FCR 385 at 395 – cited Barton v Walker [1979] 2 NSWLR 740 at 751 – cited Brooks v The Upjohn Co (1998) 85 FCR 469 at 472 – 477 – cited Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 476 (2001) 194 ALR 638 at [113] – [116] – cited Re McJannet; Ex parte Australian Workers' Union of Employees, Queensland [No 2] (1997) 189 CLR 654 at 656 – 657 – referred to