Moles v The University of Adelaide [2001] FCA 1666

FEDERAL COURT OF AUSTRALIA

Moles v The University of Adelaide [2001] FCA 1666

PRACTICE & PROCEDURE – Courts and the judicial system – Apprehension of bias – Whether comments at interlocutory stage make out a claim for apprehended or imputed bias Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 176 ALR 644 applied

Bullock v The Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 referred to

Minister for Immigration and Multicultural v Jia [2001] HCA 17; (2001) 178 ALR 421 applied

R v Watson; Ex parte Armstrong (1976) 136 CLR 248 referred to

Re Morling; Ex parte Australasian Meat Industry Employees Union and Others (1985) 66 ALR 608 followed

ROBERT NELSON MOLES, NATIONAL TERTIARY EDUCATION INDUSTRY UNION v THE UNIVERSITY OF ADELAIDE

S 169 OF 2001

MARSHALL J

MELBOURNE

26 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY S 169 OF 2001

BETWEEN: ROBERT NELSON MOLES

FIRST APPLICANT

NATIONAL TERTIARY EDUCATION INDUSTRY UNION

SECOND APPLICANT

AND: THE UNIVERSITY OF ADELAIDE

RESPONDENT

JUDGE: MARSHALL J

DATE OF ORDER: 26 NOVEMBER 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The applicants' motion date 20 November 2001 be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY S 169 OF 2001

BETWEEN: ROBERT NELSON MOLES

FIRST APPLICANT

NATIONAL TERTIARY EDUCATION INDUSTRY UNION

SECOND APPLICANT

AND: THE UNIVERSITY OF ADELAIDE

RESPONDENT

JUDGE: MARSHALL J

DATE: 26 NOVEMBER 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 On 25 September 2001, the applicants filed an application and accompanying statement of claim in the South Australia District Registry of the Court. In the application relief was sought inter alia by way of a penalty on the respondent for alleged breaches of an industrial award and "an order for specific performance of the first Applicant's appointment". 2 On 12 November 2001, the Court heard the applicants' application for interlocutory relief. The applicants sought that the Court make the following order: "That pending the hearing and determination of the matter, the respondent treat the first applicant as holding a position as Associate Professor in the University of Adelaide." 3 In an ex-tempore judgment recorded on transcript ("the interlocutory judgment") the Court refused the application for interlocutory relief. That judgment was in the following terms: "This matter is urgent in the sense that a judgment on an interlocutory point has to be given by Friday. I [have] formed a clear view about my approach to the resolution of the interlocutory issue and I don't think in the circumstances that the parties would be necessarily assisted by me taking everything back to Melbourne in a hurry and working out some long-winded reason for coming to the view that I've come to on the interlocutory issue. What I propose to do is just explain now in very short terms on an ex-tempore basis the view I've taken, and make an appropriate order and to give further directions for the trial of the proceeding. The view I've taken in the matter is that interlocutory relief should not be granted. In coming to that view I'm prepared to assume that there is a serious issue to be tried without necessarily finding either way, given the volume of material and the shortness of time available and given that all those matters will be ventilated in the trial. I think this is one of those cases where I can do no more than assume a serious issue to be tried. I can't say whether the serious issue is very serious or whether it is less serious in the sense that it is barely arguable but nonetheless, raising a serious issue to be tried as discussed by [Justice]Woodward in Bullock's case in 5 FCR 464 at 472. On the question of balance of convenience, I'm concerned that it appears that at least the second applicant took a deliberate path to ventilate the matters at the heart of the dispute between the parties in the commission as at 8 June 2001 rather than come to the court where the matter could have been raised in court at that stage, and the application for interlocutory relief could have been dealt with in far less hurried and harried circumstances. I also consider that overwhelmingly damages would be an adequate remedy. I say "overwhelmingly" advisedly because I understand that that there will be a difficult hiatus between 17 November and the giving of any judgment in the trial in respect to the position of the first applicant and his standing in the tertiary academic community. But any disadvantage in that is ameliorated to the extent that the court will cooperate beyond what it would ordinarily be prepared to do in arranging an urgent trial. I thought in the circumstances it is important to set out those brief reasons now so that the parties know where they stand now, so directions can be made now for the pursuing of that urgent trial. So the formal order I make on the application for interlocutory relief is that the application for interlocutory relief be dismissed. I will now hear counsel on the question of progressing towards a trial. I have the first week of February available. With some arm-twisting of the Full Court coordinating people I might be able to take the second as well, although I'll have to see about it. It may be that at least we can finish the evidence in the first week and set down a short timetable for the receipt of written submissions. Alternatively, if the evidence requires two weeks we might have to do that."