FEDERAL COURT OF AUSTRALIA Setka v Gregor [2011] FCAFC 64 Citation: Setka v Gregor [2011] FCAFC 64 Appeal from: Gregor v Setka [2010] FMCA 690 Parties: JOHN SETKA v MURRAY GREGOR File number: VID 10 of 2011 Judges: LANDER, TRACEY AND YATES JJ Date of judgment: 12 May 2011 Catchwords: PRACTICE AND PROCEDURE – bias – recusal application – reasonable apprehension of bias test applied no bias may be reasonably apprehended – application refused Legislation: Workplace Relations Act 1996 (Cth) s 767 Cases cited: Cabcharge Australia Limited v Australian Competition and Consumer Commission [2010] FCAFC 111 cited Ebney v Official Trustee in Bankruptcy (2000) 205 CLR 337 cited Livesey v New South Wales Bar Association (1983) 151 CLR 288 applied McCreed v The Queen (2003) A Crim R 417 cited Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd (2005) 144 FCR 264 cited Re JRL; ex parte CJL (1986) 161 CLR 342 cited, applied Date of hearing: 9 May 2011 Place: Melbourne Division: GENERAL Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: Mr P G Priest QC Solicitor for the Appellant: Slater and Gordon Counsel for the Respondent: Mr J L Bourke QC & Ms J M Maclean Solicitor for the Respondent: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 10 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: JOHN SETKA Appellant AND: MURRAY GREGOR Respondent JUDGEs: lander, TRACEY and yates jJ DATE: 12 may 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT TRACEY J 1 There is, pending before the Court, the hearing of an appeal brought by Mr John Setka. He appeals against the imposition on him, by a Federal Magistrate, of a penalty of $6,000 for contravention of s 767 of the Workplace Relations Act 1996 (Cth) ("the Act"). 2 I am one of three judges of the Court whom the Chief Justice has determined should hear the appeal. The appeal is fixed for hearing on 12 May 2011. 3 By notice of motion dated 9 May 2011, Mr Setka sought an order that I disqualify myself from further hearing and determining the matter. 4 The Full Court heard argument on the motion on the afternoon of 9 May 2011. At the conclusion of argument I declined to rule on the motion but announced that I had come to the firm view that I should not withdraw from the bench which is to hear the appeal: see Cabcharge Australia Limited v Australian Competition and Consumer Commission [2010] FCAFC 111 at [12]; Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd (2005) 144 FCR 264 at 275. I advised the parties that I would publish reasons for my decision at a later date. These are those reasons. 5 The application was made on the ground of apprehended bias. It was based on the fact that, on 24 May 2002, I examined Mr Setka before the Royal Commission into the Building and Construction Industry. I did so as Senior Counsel Assisting the Royal Commission. I examined Mr Setka about his conduct on a certain building site some two years earlier. That examination continued over 20 pages of transcript. Towards the end of the examination I put two propositions to Mr Setka. They were that his conduct reflected an attitude that he would "use industrial muscle in preference to negotiation" whenever it suited him and that his conduct at the building site reflected an attitude of "wholesale disregard for the rule of law." 6 Senior counsel for Mr Setka submitted that these propositions could only have properly been put to Mr Setka if there was a foundation for them in the evidence he had given to the Royal Commission. A reasonable observer might reasonably apprehend that I would not have put these propositions to Mr Setka had I not considered that there was a proper basis to do so and that such a view might influence my decision on the present appeal. 7 Counsel for the respondent drew the Court's attention to various authorities which, they contended, tended against any decision that I should withdraw from the hearing of the appeal. 8 The parties both accepted that the relevant test of disqualification was that propounded by the High Court in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4, namely, "that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." (emphasis added). See also Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 (per Gleeson CJ, McHugh, Gummow and Hayne JJ). 9 The test falls to be applied in a wide range of circumstances. The apprehension, in a case such as the present, is that the judge, by reason of past conduct, might prejudge issues in controversy in a matter before him. In Re JRL; ex parte CJL (1986) 161 CLR 342 at 352 Mason J said that: "There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and that this must be 'firmly established' … Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty and do not, by acceding too readily to suggestions that appearance of bias, encourage parties to believe that by seeking the disqualification of a judge they will have their case tried by someone thought to be more likely to decide the case in their favour." (citation omitted). 10 In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 Gleeson CJ and Gummow J described the state of mind which needs to be demonstrated to establish bias as being "one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented." 11 In McCreed v The Queen (2003) A Crim R 417 the Court of Criminal Appeal in Western Australia dealt with an allegation that the trial judge was biased because he had prosecuted the defendant some 12 years earlier when Crown counsel. The Court unanimously rejected the defendant's grounds including those relating to bias. Steytler J observed (at 423-424) that: "… each case must necessarily depend on its individual circumstances. It is important, in every case, to consider all factors which might be relevant, including such matters as the nature of the offence for which the defendant was previously prosecuted, the nature of that (sic) the subject of the current trial, any relevant circumstances attending the prior prosecution, whether there is any connection between the two cases, whether the current trial is or is not to be a jury trial and the amount of time which has passed since the occasion of the prior prosecution by the trial judge." See also at 430-431 (per Miller J). 12 A number of considerations have led me to the view that I should not withdraw from the hearing of this appeal. The first is the differing nature of the two proceedings and my role in them. The Royal Commission was governed by terms of reference. Its proceedings were inquisitorial in nature. The role of counsel assisting was to lead and test evidence on which the Royal Commissioner might ultimately make findings and recommendations. As was the case with other witnesses, Mr Setka was not the respondent to any proceeding. The matter presently pending before the Court is an appeal from the Federal Magistrates Court. The Federal Magistrate heard the evidence called by the applicant (the respondent on the appeal) and determined that a contravention of the Act had occurred. He imposed a pecuniary penalty. The facts found by the Federal Magistrate are not disputed by Mr Setka on the appeal. The grounds relied on by him will require the Court to determine whether or not the Federal Magistrate had power to impose the impugned penalty and, if so, whether that penalty was manifestly excessive. 13 The fact that I considered that there was a proper basis, on the evidence given by Mr Setka, to justify the two propositions which I put to him as counsel in 2002 cannot support an allegation of prejudgment of the discrete legal issues arising on this appeal. The fact that I may have held the relevant belief nine years ago says nothing about the manner in which I might deal with the legal issues which fall for determination on the appeal. In particular, my questioning of Mr Setka about his attitudes to the performance of his duties as a union organiser can in no way be suggestive of my being committed to a conclusion as to the outcome of the appeal and, much less, my commitment to any such conclusion being so firm as to render me incapable of altering it regardless of any argument which might be presented at the hearing. On no view could such attitudes (even assuming that I believed that Mr Setka subscribed to them in 2000 and 2002 and continued to do so in 2010 when the incident which led to the alleged contravention of the Act occurred) be seen as having any bearing on the outcome of the appeal. 14 It is also to be noted that no issue relating to Mr Setka's credit arises in the present appeal. He did not give any evidence before the Federal Magistrate and the Federal Magistrate made no adverse findings about Mr Setka's credibility. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 12 May 2011