The Broken Hill Town Employees’ Union on behalf of employees v The State of New South Wales [2023] NSWSC 457

Supreme Court New South Wales

Medium Neutral Citation: The Broken Hill Town Employees' Union on behalf of employees v The State of New South Wales [2023] NSWSC 457 Hearing dates: 26 April 2023 Date of orders: 26 April 2023 Decision date: 26 April 2023 Jurisdiction: Common Law Before: Walton J Decision: I do not disqualify myself from hearing this matter. Catchwords: CIVIL PROCEDURE - Circumstances raised which required the Court to consider whether there was a need for recusal – Court not disqualified itself Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: CNY17 v Minister for Immigration and Border Protection (2019) 94 ALR 140; [2019] HCA 50 Category: Principal judgment Parties: The Broken Hill Employees' Union on behalf of employees (Plaintiff) The State of New South Wales (First Defendant) Secretary of the Ministry of Health (Second Defendant) Far West Local Health District (Third Defendant) Representation: Counsel: A Knox (Plaintiff) with R Ferry (Plaintiff) M Foran (Defendants)

Solicitors: The Broken Hill Town Employees' Union (Plaintiff) Maddocks (Defendants) File Number(s): 2022/45861

JUDGMENT 1. The present proceedings concern a Statement of Claim filed on 4 August 2022 brought by the Broken Hill Town Employees' Union ("the Union") against three defendants, the first of which is the State of New South Wales. 2. The proceedings were bifurcated so that the claim before the Court today concerned part A-G of the Statement of Claim. In substance, that aspect of the Claim concerns a document produced by Benjamin William Stirling during the course of an industrial dispute, which was emailed to the parties to those proceedings by Mr Stirling. At the time, Mr Stirling was employed by the second defendant to the proceedings as Director of Industrial Relations and Change. The document came to be known in these proceedings as the "Agreed Way Forward" email. The Union contends, inter alia, that the Agreed Way Forward email is an industrial instrument within the meaning of that term under s 8 of the Industrial Relations Act 1996 (NSW) ("the Act"), which agreement was breached by the defendants, giving rights to the recovery of monies under Part 7 of the Act. 3. The Union foreshadowed that Mr Stirling was required for cross-examination and during the course of cross-examination intended to challenge his credibility, so far as it concerned representations as to his authority to act. His statement that the Agreed way forward email represented any agreement by the second defendant, referrable to the claims by employees represented by the Union and as to his understanding of the expression "test case" used in the Agreed way forward email (which, it may be observed, was a note taken by Mr Stirling at the request of Commissioner Murphy, who was undertaking the conciliation). 4. At the commencement of proceedings today, Mr Foran of counsel, who appeared for the defendants, properly raised by the Court's consideration, whether the Court may recuse itself in those circumstances, having regard to the fact that Mr Stirling was at one time my Tipstaff. 5. Notwithstanding the issue having been raised in that fashion, Mr Foran submitted that his clients were not seeking that the Court disqualify itself in the circumstances. Whilst recognising the issues arising, Mr Knox, who was given leave to appear on behalf of the Union, indicated that his instructions were to not seek recusal by the Court. Whilst acknowledging the submissions of the parties in that respect, it is ultimately for the Court itself to determine whether, in all the circumstances bearing upon the proceedings, it should recuse itself. 6. The essential question raised by Mr Foran was whether there was a reasonable apprehension of bias because of the prior work relationship between myself and Mr Stirling. 7. The test for a reasonable apprehension of bias is a test of a 'double might;whether a fair-minded, lay observer, might reasonably apprehend that the adjudicator might not bring an impartial and independent mind to the fair resolution of the issue to be decided: CNY17 v Minister for Immigration and Border Protection (2019) 94 ALR 140; [2019] HCA 50 at [18], [19] per Kiefel CJ and Gaegeler J and Edelman J at [132] and [133]. 8. It is plain from the submissions of the parties that the factor which may lead the Court to decide the proceedings otherwise than on an independent and impartial evaluation of the merits, is the fact that there existed a prior work relationship between the Court and Mr Stirling in the respective role as a Justice, then of the Industrial Relations Commission of New South Wales, and Tipstaff. That factor has the theoretical potential to act upon the independent and impartial evaluation because the Court may be perceived as having a more favourable disposition to Mr Stirling than may otherwise be the case when having to evaluation issues of credit of the kind earlier discussed. 9. That is the nature of the question posed by the circumstances, but not the resolution of it. The third and critical step is the assessment of whether a fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred. In other words, the determinative question is the Court's view of the public view, as opposed to the Court's own view. 10. In order to make that last assessment, it is necessary to consider that which does, in fact, make the totality of the circumstances included in the present matter. In those circumstances, to the best of the Court's recall, Mr Stirling's engagement as a Tipstaff, albeit exemplary, was twenty years or more ago. There has been no ongoing relationship or engagements with one possible, minor exception over ten years ago. When the nature of the credit issues, when properly understood, are taken into account in conjunction with those wider circumstances, I do not consider that a fair minded, lay observer (who is an intelligent person on the authorities), might reasonably apprehend that the articulated departure from an impartial and independent mind being applied to the fair resolution of the issues in the proceedings, might have occur: see CNY17 at [23]. 11. In all the circumstances, I do not disqualify myself from hearing this matter.