Industrial Court of New South Wales CITATION: Landman & Anor v Grange Securities Limited [2006] NSWIRComm 183 MATTER NUMBER IRC 2823 OF 2005 ________________________________ GERARD LANDMAN Applicant/Respondent on Notice of Motion GRANGE SECURITIES LIMITED (ACN 066 797 760) Respondent/Applicant on Notice of Motion PARTIES: MATTER NUMBER IRC 4560 OF 2005 ________________________________ MICHAEL CLAPHAM Applicant/Respondent on Notice of Motion GRANGE SECURITIES LIMITED (ACN 066 797 760) Respondent/Applicant on Notice of Motion FILE NUMBER(S): IRC 2823 and 4560 of 2005 CORAM: Schmidt J CATCHWORDS: Notice of Motion - application for disqualification of hearing of motion on jurisdiction - jurisdiction considered during conciliation proceedings - section 109 of the Industrial Relations Act 1996 - disqualification on the basis of apprehended bias LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Crewdson v New South Wales Department of Community Services and Ors (No 13) [2006] NSWIRComm 50 HEARING DATES: 25/05/06 DATE OF JUDGMENT: 05/25/2006 APPLICANTS: Mr P Ginters of counsel SOLICITORS: Gilbert & Tobin LEGAL REPRESENTATIVES: RESPONDENT: Mr N Napper, solicitor SOLICITORS: Deacons JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 25 May 2006 Matter No IRC 2823 of 2005 GERARD LANDMAN v GRANGE SECURITIES LIMITED Application under s.106 of the Industrial Relations Act 1996 Matter No IRC 4560 of 2005 MICHAEL CLAPHAM v GRANGE SECURITIES LIMITED Application under s.106 of the Industrial Relations Act 1996 REASONS FOR DECISION [2006] NSWIRComm 183 1 Today I disqualified myself from hearing a jurisdictional motion in these matters. These are the reasons for that decision. 2 The proceedings were each brought under s 106 of the Industrial Relations Act 1996 ('the Act'). A conciliation pursuant to s 109 of the Act was conducted in Mr Landman's case by Staff J and in Mr Clapham's case by myself. Neither conciliation produced an agreement. In each case, after the conciliation Grange Securities Limited ('Grange') filed a motion challenging the Court's jurisdiction to hear the applications. The motions were allocated to me for hearing and have been listed for that purpose on 16 June. 3 When directions were given for the hearing of the jurisdictional motions on 27 April, neither party raised any objection to my hearing the motions. On 22 May, however, Grange filed a motion seeking that I not hear the jurisdictional argument. Questions of bias were said to arise because the Court's jurisdiction to hear Mr Clapham's application was the subject of consideration at the conciliation conference. 4 Grange's solicitors had earlier raised this issue with the applicants' solicitors, who took the view that the application for disqualification should be raised by motion. When the matter was mentioned, the applicants' position was that they did not oppose the application, but did not wish to be heard on its merits. 5 The law in relation to applications for disqualification was most recently considered by the Full Court in Crewdson v New South Wales Department of Community Services and Ors (No 13) [2006] NSWIRComm 50. 6 The Court's usual practice in applications brought under s 106 is that the matter is conciliated by one member of the Court and heard by a different member. That is not an invariable practice. In some cases the judge who conciliated the matter also hears it, if conciliation fails, without any party objecting. 7 In a case where there is a question as to the Court's jurisdiction to deal with the claim brought under s 106, that issue is normally raised in the respondent's reply to the summons. Sometimes, if it has not been there raised, jurisdiction is an issue raised at the conciliation, as the result of the directions which the Court gives for preparation of the matter for conciliation. These directions require parties to give notice of any other issues of fact or law which may require consideration at trial, if not already raised in the pleadings. In that way, jurisdictional issues arise to be dealt with at some conciliations conducted under s 109 of the Act. Views about the prospects of the jurisdictional and other issues lying between the parties are then explored at the conciliation, with the assistance of the presiding member. 8 Of necessity, views which the member of the Court or Commission expresses at the conciliation about any issues, are tentative in that they are formed at a very early stage of the litigation cycle, at a time when the conciliator has access to limited information, no evidence being on and witnesses affidavits having not even been filed. All that is known, in a factual sense, is what the parties assert in their pleadings. Much can alter between conciliation and trial, even the amendment of the parties' pleadings, in ways which affect jurisdictional issues. Such developments are unknowable at conciliation. 9 Section 109 of the Act requires that: 109 Conciliation of applications to be attempted first (1) The Commission must endeavour, by all means it considers proper and necessary, to settle a matter under this Division by conciliation. (2) When, in the opinion of the Commission, all reasonable attempts to settle the matter by conciliation have been made but have been unsuccessful, the Commission is to determine the matter in accordance with this Act. (3) Nothing in this section prevents further conciliation from being attempted at any time before the Commission makes such an order. (4) Any member of the Commission (whether or not a judicial member) may undertake the conciliation of a matter under this Division. 10 It follows that if the statutory obligation is to be met, so as to ensure that a conciliation has real prospects of success, it is necessary for the member conducting the conciliation to assist the parties by exploring with them the prospects of success which the various claims which are advanced and resisted, may have. 11 That exercise having been undertaken, the possibility of a reasonable apprehension of bias arising, if the judge who conciliated the matter is also allocated the matter for hearing, can plainly arise. That is a matter for the parties to the proceedings to consider and raise, if there is such a concern in a case where a matter is allocated to a judge for hearing, who also conducted the conciliation. If such a concern does arise, the party who has the concern, should obviously raise it promptly, both with the other parties to the proceedings and with the Court, so that as a matter of proper case management, unnecessary time and costs are not incurred. 12 In this case, I am satisfied that a reasonable apprehension of bias could arise from circumstances where I have unsuccessfully conciliated one of these matters, where the prospects of success of the jurisdictional argument which the respondent now seeks to press in both matters, was the subject of consideration. I do not accept that it can be a question of actual bias, because, as I have noted, the time at which the conciliation is conducted and the limited information available to the conciliator at that point, means, of necessity, that such views may alter in the light of evidence which is led at any hearing of the jurisdictional question. All views which the conciliator and indeed, the parties have formed before that hearing, can only be preliminary and may alter in the light of evidence led at the hearing. 13 Nevertheless, I was satisfied that the proper course in these circumstances, was that I disqualify myself, for these reasons given. ------------------------ 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.