SCHROEDER & OTHERS & HSU -v- MILDURA BASE HOSPITAL [1997] IRCA 130

DECISION NO:130/97 C A T C H W O R D S INDUSTRIAL LAW - termination of employment - bias - reasonable apprehension of bias by reason of prejudgment. Workplace Relations Act 1996 s.170EA CASES: Livesey v The New South Wales Bar Association, 151 CLR 288 ANA v Spedley Securities, 26 NSWR 411 SCHROEDER & OTHERS & HSU -v- MILDURA BASE HOSPITAL No. VI-1236 of 1996 No. VI-1237 of 1996 No. VI-1246 of 1996 No. VI-1247 of 1996 No. VI-1248 of 1996 Before: Ryan JR Place: Melbourne Date: 9 April 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-1236 of 1996

B E T W E E N :

SCHROEDER & HSU Applicant

AND

MILDURA BASE HOSPITAL Respondent VI-1237 of 1996

B E T W E E N :

WINSLOW & HSU Applicant

AND

MILDURA BASE HOSPITAL Respondent VI-1246 of 1996

B E T W E E N :

TWOMEY & HSU Applicant

AND

MILDURA BASE HOSPITAL Respondent VI-1247 of 1996

B E T W E E N :

SPOONER & HSU Applicant

AND

MILDURA BASE HOSPITAL Respondent VI-1248 of 1996

B E T W E E N :

DAVEY & HSU Applicant

AND

MILDURA BASE HOSPITAL Respondent MINUTES OF ORDERS Judicial Registrar Ryan 9 April 1997 THE COURT ORDERS: 1. That the Motions be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-1236 of 1996 VI-1237 of 1996 VI-1246 of 1996 VI-1247 of 1996 VI-1248 of 1996 B E T W E E N : SCHROEDER & OTHERS & HSU Applicant AND MILDURA BASE HOSPITAL Respondent Before: Ryan JR Place: Melbourne Date: 9 April 1997 REASONS FOR JUDGMENT NOTICE OF MOTION (Delivered ex tempore) (Revised from the transcript) In Mildura on 3 September 1996, a number of separate applications by former members of the nursing staff at the respondent's nursing home at Mildura Base Hospital were called over. The applications were all under s170EA of what is now the Workplace Relations Act 1996 and sought remedy for what was claimed in each case to be unlawful termination of employment. The parties in all the matters agreed that the application by the manager or charge nurse of the nursing home should be heard first and that the remaining applications, although separate applications, be heard together and after the application by the charge nurse. On 6 March, I delivered judgment in the first application, that is in Lloyd and ANF (Victorian Branch) v Mildura Base Hospital. The applicants in the other matters, that is the applicants other than the union, the Health Services Union (HSU), were all enrolled nurses who worked at the nursing home and were subject to the overall supervision of the charge nurse, Ms Lloyd. By Notices of Motion, stamped as filed on 3 April and returnable today 9 April, the Applicants, that is the former enrolled nurses and their union HSU, have moved that I disqualify myself from hearing the remaining applications. Mr Langmead as the solicitor for the Applicants, in an affidavit stated as affirmed on 4 April but perhaps 1 April and stamped as filed in the Court on 3 April, states in paragraphs 3 and 4 as follows: (3) The course of events which were the subject of the earlier matter are the same as or very similar to the events which are the subject of proceedings in this matter. (4) Ryan JR made decisions in the earlier matter which, with respect, give rise to a reasonable apprehension of bias in his hearing this matter. Today, Mr Langmead based the application that I disqualify myself on findings on page 13 of the judgment in Lloyd which are as follows: "The Respondent held an honest belief on reasonable grounds after adequate investigation. The belief was that the Applicant was responsible for