Azar v Ritchie & Anor [2006] NSWIRComm 295

Industrial Court of New South Wales

CITATION: Azar v Ritchie & Anor [2006] NSWIRComm 295

APPELLANT Nayla Azar

PARTIES: FIRST RESPONDENT James Ritchie

SECOND RESPONDENT J D Ritchie Pty Ltd

FILE NUMBER(S): IRC 2639 of 2006

CORAM: Staff J

CATCHWORDS: Courts and judges - Apprehended bias - Disqualification of judge - Familial association - Brother-in-law of judge partner in law firm acting for respondent - Sister previously worked in firm as solicitor - Whether apprehension of bias reasonable - Application for disqualification declined

CASES CITED: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Smits v Roach [2006] HCA 36

HEARING DATES: 07/09/2006

DATE OF JUDGMENT: 09/14/2006

APPELLANT Nayla Azar In Person LEGAL REPRESENTATIVES: FIRST AND SECOND RESPONDENTS Solicitor: Mr T Unsworth TressCox

JUDGMENT:

- 1 - INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: STAFF J 14 September 2006

Matter No IRC 2639 of 2006

NAYLA AZAR V JAMES RITCHIE AND ANOTHER

Application by Nayla Azar for leave to appeal and appeal against a decision of Chief Industrial Magistrate Hart on 28 June 2006 in matter no. CIM 106663/06

JUDGMENT

[2006] NSWIRComm 295

1 At the outset of these proceedings, I disclosed to the parties that I had a brother-in-law who was a partner in the firm of TressCox, solicitors for James D Ritchie Pty Ltd and Dr James Ritchie ("the respondents"). I also disclosed that my sister had worked for this firm as a solicitor. She is currently on maternity leave. 2 Ms Azar ("the appellant") who appeared in person, objected to me continuing to sit on the appeal. 3 The Full Bench adjourned the proceedings to enable me to consider the application by Ms Azar which I treated as being based on an apprehension of bias. 4 After considering two recent decisions of the High Court of Australia, which I will refer to in these reasons, I declined the application to disqualify myself from sitting as a Member of the Full Bench and hearing the appeal. 5 These are the reasons for my decision. 6 The principles that are required to be applied to an application such as this enables it to be disposed of shortly. 7 In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the High Court considered the question of reasonable apprehension of bias and whether a judge should have disqualified himself. The background, as summarised in the headnote, was that at the commencement of a trial in the Federal Court of Australia, the judge disclosed to the parties that he was a director of the trustee of a family trust, which owned approximately 8,000 - 9,000 shares in a bank and that he was a "contingent beneficiary" of the trust. The bank was not a party to the proceedings, but had a pecuniary interest in the outcome. The respondent objected to the judge hearing the matter. The judge refused to disqualify himself, conducted the trial and gave judgment in favour of the applicant. 8 The court (Glesson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that the judge should not have disqualified himself from delivering judgment in the matter. In a joint judgment (Gleeson CJ, McHugh, Gummow and Hayne JJ) stated at [6] - [8]: