Industrial Relations Commission New South Wales Medium Neutral Citation: Scott White v Industrial Relations Secretary in respect of Corrective Services NSW [2022] NSWIRComm 1058 Hearing dates: 19 July 2022 Date of orders: 19 July 2022 Decision date: 19 July 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: Application dismissed. Catchwords: COURTS AND JUDGES — Bias — Applicable principles COURTS AND JUDGES — Bias — Application for recusal COURTS AND JUDGES — Bias — Apprehended bias Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 Category: Procedural rulings Parties: Applicant: Scott White Respondent: Industrial Relations Secretary in respect of Corrective Services NSW Representation: Applicant: Mr S White Respondent: Mr M Foran of Counsel File Number(s): 2022/00045725 Publication restriction: Nil EXTEMPORE decision 1. I have considered the submissions that were made in writing, and this is the decision that I make and the reasons for it. 2. The substantial application is one for relief from the New South Wales Industrial Relations Commission for a dismissal which is claimed to be unfair. That is, it is an application pursuant to s 84 of the Industrial Relations Act 1996 (NSW). 3. In conformity with the statutory requirements, the Commission conducted conciliation between the parties on 14 April 2022. Absent any issue of jurisdiction or objection, this is of course the foundational step required before the Commission can exercise any powers of arbitration. 4. At the commencement of the conciliation, the applicant raised a series of objections to the exercise of any powers by the Commission, despite this being his application. The applicant's objection referenced his understanding that the Commission members were employees of the Department of Communities & Justice, the respondent in this matter. 5. The Commission, as currently constituted, explained to the applicant that he could have confidence in the Commission's independence. It was explained that the Commissioners are not employees of the Department of Communities & Justice, or indeed of anyone, but independent statutory office holders. 6. It was also explained that, while the Department of Communities & Justice administratively managed Commissioners' pay, this was not in an employment capacity. It was further explained that the Commissioners are appointed with the same security of tenure as a Supreme Court Judge, only able to be removed by Parliament, in limited circumstances, precisely to ensure our independence. 7. In the event the applicant consented to conciliation, and it proceeded. Unfortunately, conciliation was not successful. 8. Following conciliation, the application was programmed for hearing by the making of the usual directions, except that as the applicant is self-represented, a longer than usual timetable was set. 9. At this point, the applicant again pressed his jurisdictional objections and reasserted that Commissioners were employees of the Department of Communities and Justice. It was again explained to the applicant that only the Commissioner has jurisdiction to determine his application. 10. The Commission at that time, declined to refer any question of law raised to the Supreme Court and the applicant was informed that he would need to file a notice of motion, should he wish to have any question of law referred by the Commission to the Supreme Court. 11. Subsequent to the hearing of the matter on 14 April 2022, the applicant continued to send correspondence to the registry. I note that since filing his application, the applicant has sent voluminous correspondence, often daily, hourly or even as often as four times in an hour. Often this has sought immediate rulings or decisions from the Commission, decisions which can only properly be made in open hearing or after formally taking submissions from other parties. 12. Among the correspondence received subsequent to the conciliation, was a letter which the Commission has treated as an application that I should disqualify myself in this matter, due to apprehended bias. Accordingly, the matter was listed today to hear submissions. 13. The applicant did not add to his written submissions and those were that, as a Commissioner, I am an employee of the Department of Communities and Justice. I am administratively paid by the Department of Communities and Justice on behalf of the Crown in right of New South Wales and therefore biased. 14. The respondent made no submissions. 15. In his earlier written submissions, the applicant referred to the High Court authority on the question of bias, Ebner v The Official Trustee in Bankruptcy [2000] HCA 63. 16. I accept as correct the case law as it was put by the applicant to this Commission. There are two preliminary parts of the decision of the majority that I wish to reference. On page 3 of the decision at [5] the majority said, Where, in the absence of any suggestion of actual bias, the question arises as to the independence or impartiality of a judge or other judicial officer or juror as here the governing principle is that subject to qualifications relating to waiver or necessity, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. 1. On page 7 of the same decision, at [19], again the majority found: If one party to a case objects to a particular judge sitting or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. 1. My findings as to facts in this matter: 1. As a Commissioner I am not an employee of the Department of Communities and Justice, or any other person for that matter. 2. Commissioners are paid by the Department of Communities and Justice as an administrative process only. It needs to occur somehow. 3. We are statutory independent office holders who can only be removed in the same way as a Supreme Court Judge. 1. Accordingly, there is no basis for the submission of the applicant. 2. A fair minded lay observed could not reasonably conclude that the facts would create an apprehension that a Commissioner of this Commission would not bring an impartial mind to the matters before the Commission. 3. It should be observed that the High Court has made clear that that the mere making of an application is not a proper basis to uphold the application. The application is to be based on substantive grounds and I have already partially referred to that. 4. At [20] the majority said: This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result of an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable. 1. As the High Court observed, it would readily become the case that a party could influence the composition of the tribunal, if the mere making of the application was to result in disqualification. 2. In any event, the parliament has created the remedy which the applicant seeks to invoke. The parliament only gave the power to give the remedy sought to this Commission. 3. Each of the matters raised by the applicant apply equally to every other member of this Commission. There is no-one other than the members of this Commission who can arbitrate on the arbitration of the applicant. 4. I do not accept that it comes to this, but if it did, the doctrine of necessity would require this Commission to continue to hear this application. Accordingly, I am bound, perhaps even more than persuaded, to reject the application that I disqualify myself. 5. The application is dismissed. C Muir Commissioner ********** Amendments 26 July 2022 - Change the heading Decision to Extempore Decision DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2022