FEDERAL COURT OF AUSTRALIA Miller v University of New South Wales (No 2) [2001] FCA 1198 COURTS AND JUDGES – judges – whether judge disqualified on ground of apprehended bias - claim of unrepresented litigant struck out – misunderstanding of basis upon which claim advanced – same claim available on alternative statutory basis not struck out Workplace Relations Act 1996 (Cth) ss 178, 179, 179A, 413A Federal Court Rules O 11 r 8, O 35 r 7(1) and r (2)(e) R v Watson; Ex parte Armstrong (1976) 136 CLR 248, cited Livesey v New South Wales Bar Association (1983) 151 CLR 288, cited Re JRL; Ex parte CJL (1986) 161 CLR 342, applied Grassby v R (1989) 168 CLR 1, cited Webb v R (1996) 181 CLR 41, cited Johnson v Johnson (2000) 201 CLR 488, cited DAVID MILLER v UNIVERSITY OF NEW SOUTH WALES N 907 of 2000 BRANSON J SYDNEY 29 AUGUST 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 907 of 2000 BETWEEN: DAVID MILLER APPLICANT AND: UNIVERSITY OF NEW SOUTH WALES RESPONDENT JUDGE: BRANSON J DATE: 29 AUGUST 2001 PLACE: SYDNEY REASONS FOR DECISION 1 Dr Miller has requested that I disqualify myself on the ground of apprehended bias from continuing to sit as the docket judge, and ultimately as the hearing judge, in this proceeding. 2 The background to Dr Miller's request is as follows. On 22 August 2000 Dr Miller, who at that time was not legally represented, filed an application and statement of claim in the proceeding. He alleged breaches of cl 14 of the University of New South Wales (Academic Staff) Enterprise Agreement 1997-8 ("the Certified Agreement") and sought relief under ss 413A, 178, 179 and 179A of the Workplace Relations Act 1996 (Cth) ("the Act"). 3 On 18 September 2000 the respondent filed a notice of motion seeking orders either striking out the application or standing over the hearing of the matter until the determination of a related matter by the Full Court of this Court. Argument on the motions of which notice had been given by the notice of motion was heard on 20 October 2000. Dr Miller presented argument on the motions personally. 4 On 7 November 2000 I published reasons for decision and made the following orders: "1. The claim for relief made by the applicant pursuant to s 179 of the Workplace Relations Act 1996 (Cth) be dismissed. 2. Until further order, no formal step be taken in this proceeding without the leave of the Court. 3. Each party have liberty to apply on three days' written notice to the other." 5 My reasons for decision indicate that I rejected the contention of the respondent that the Court does not have jurisdiction to grant Dr Miller relief pursuant to either ss 413A or 178 of the Act. The respondent had contended that the Court lacked jurisdiction because Dr Miller was not an employee whose employment was subject to the certified agreement at the time that this proceeding was instituted. 6 My reasons further indicate that I understood the claim made by Dr Miller under s 179 of the Act to be a claim for salary and other entitlements advanced on the basis that the purported termination of his employment by the respondent had been of no force and effect. I regarded such a claim as inconsistent with Dr Miller's acceptance of the fact of his dismissal in other proceedings in this Court and before the Australian Industrial Relations Commission. I also regarded his pleading of such a claim as falling within O 11 r 8 of the Federal Court Rules which is concerned with "departure". I was mindful of the fact that Dr Miller sought, and I had upheld the jurisdiction of the Court to grant, relief under s 178 of the Act. Subsections 178(6), (6A) and (6B) provide as follows: "178(6) Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under an award, order or agreement, the court may order the employer to pay to the employee the amount of the underpayment. 178(6A) Where, in a proceeding against an employer under this section, it appears to the court concerned that the employer has not paid an amount to a superannuation fund that the employer was required, under an award, order or agreement, to pay on behalf of a person, the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund. 178(6B) Without limiting the generality of subsection (6A), the court concerned may order that the employer pay to the superannuation fund referred to in subsection (6A), or another superannuation fund, an amount equal to the amount (in this subsection called the "unpaid amount") that the employer failed to pay together with such additional amount as, in the opinion of the court, represents the return that would have accrued in respect of the unpaid amount had it been duly paid by the employer." 7 There seemed to me to be no need for Dr Miller to place reliance on s 179 of the Act if that which he sought from the respondent under that section was the payment of monies due to him, or the payment of monies required to be paid to his superannuation fund, under the certified agreement by reason of his having been dismissed summarily rather than on the six months' notice to which he claimed to be entitled. The claim for such payments, in the view which I took of s 178 of the Act, fell squarely within the terms of that section. Reliance by Dr Miller on s 179 of the Act, which is principally concerned to make clear that an employee can obtain recovery under an award, order or agreement for up to six years after the relevant payment ought to have been made, seemed to me to be explicable only on the basis that he wished to secure his position should his claims under s 178 fail with the consequence that he wished to argue that his purported dismissal was of no force and effect. 8 It now seems clear that I did not make my concerns about the basis upon which Dr Miller placed reliance on s 179 of the Act clear to the parties. I deeply regret the misunderstanding that consequently arose. 9 In view of the fact that order 1 of the order made by me on 7 November 2000 was based on a misunderstanding, an application could have been made to me to set aside the order at any time before the order was drawn up, or possibly even after it was drawn up (O 35 r 7(1) and r (2)(e) of the Federal Court Rules). In the event, the order was set aside by consent by the Full Court of this Court. 10 Against this background I turn to consider whether I should accede to the request that I disqualify myself from further involvement in this proceeding. The relevant principles are uncontentious. I must disqualify myself if, in all of the circumstances, the parties or a fair-minded lay observer, might entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the issues involved in the proceeding (R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Grassby v R (1989) 168 CLR 1; Webb v R (1994) 181 CLR 41; Johnson v Johnson (2000) 201 CLR 488). However, I have a duty to continue my involvement in the proceeding if grounds for my disqualification do not exist. As Mason J said in Re JRL; Ex parte CJL at 352: "[I]t is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of 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." 11 Dr Miller's written submissions to the Full Court, which were prepared by the senior counsel who argued on his behalf the application for me to disqualify myself, conveniently set out the basis of Dr Miller's claim under s 179 of the Act in the following paragraphs: "10. The claim under s 179 is based upon clause 14.0(d)(ii) of the certified agreement. Paragraph (48) of the Statement of Claim (AB p14) sets out the basis for claiming the amount set out in paragraph (4) of the Application. It is asserted in paragraph (48) that, in the absence of serious misconduct justifying summary dismissal, the Appellant is entitled to a period of notice and/or compensation as set out in clause 14.0(d)(ii) of the Agreement (AB p41). The relevant period of notice and/or compensation is asserted by the Appellant to be six months by virtue of an agreement made between the Respondent and the Appellant on 24 December 1981. 11. Accordingly the question as to whether the Appellant is entitled to the relief set out in paragraph (4) of the Application is dependent upon whether or not serious misconduct (however defined) can be shown. In the absence of serious misconduct the Appellant is entitled to notice or compensation as set out in clause 14.0(d)(ii). 12. As the question of whether or not the Appellant was guilty of serious misconduct has not been determined by the Court it cannot be said that the Appellant's claim under s 179 disclosed 'no reasonable cause of action'". 12 A claim so formulated is a claim which I have always regarded as open to be advanced by Dr Miller under s 178 of the Act. If I am wrong about the proper statutory basis for the claim no doubt counsel will assist me with appropriate submissions at the hearing. They will be able to do so against the background that Dr Miller's claim under s 179 of the Act has been restored. However, the fact that I have always regarded the claim as open to be advanced under s 178 of the Act indicates, as is the fact, that I had not formed any views as to its sustainability when I ordered that the claim for relief under s 179 of the Act be dismissed. The claim for relief which I understood that I was ordering to be dismissed was a quite different claim – and one which I now understand is not, and was not at any time, advanced by Dr Miller. 13 In all of the circumstances I do not consider that the parties, or a fair-minded lay observer, might entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the issues involved in this proceeding. I am therefore of the view that I have a duty to continue to sit. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Branson. Associate: Dated: 29 August 2001 Counsel for the Applicant: Mr W Haylen QC Solicitor for the Applicant: RL Whyburn & Associates Counsel for the Respondent: Mr RM Goot SC Solicitor for the Respondent: Minter Ellison Date of Hearing: 3 July 2001 Date of Judgment: 29 August 2001