Industrial Court of New South Wales CITATION: Kennett & Anor v Mayrana Pty Ltd and Others (No 2) [2006] NSWIRComm 264 Matter Number IRC 3679 of 2003 _____________________________ KEITH FRANKLIN KENNETT First Applicant KF KENNETT NOMINEES PTY LIMITED (ACN 007 739 568) Second Applicant MAYRANA PTY LTD (ACN 101 363 688) First Respondent GARRATTS LIMITED (ACN 000 003 725) Second Respondent CHRISTOPHER CAMPBELL Third Respondent PARTIES: MIKE TRAYNOR Fourth Respondent Matter Number IRC 3680 of 2003 _____________________________ MYONG HO PAK Applicant MAYRANA PTY LTD (ACN 101 363 688) First Respondent GARRATTS LIMITED (ACN 000 003 725) Second Respondent CHRISTOPHER CAMPBELL Third Respondent MIKE TRAYNOR Fourth Respondent FILE NUMBER(S): IRC 3679 and IRC 3680 of 2003 CORAM: Schmidt J CATCHWORDS: Notices of motion - application for disqualification - respondents opposing application - question of reasonable apprehension of bias arising from earlier participation in appeal proceedings - leave to appeal not granted, because public interest test not satisfied - reasonable apprehension of bias not made out - orders refused LEGISLATION CITED: Industrial Relations Act 1996 Crewdson v New South Wales Department of Community Services and Ors (No 13) [2006] NSWIRComm 50 Johnson v Johnson (2000) 201 CLR 488 Kennett and Anor v Mayrana Pty Ltd and Ors and Myong Ho Pak v Mayrana Pty Ltd and Ors [2005] NSWIRComm 367 CASES CITED: Re J.R.L.; ex parte C.J.L. (1986) 161 CLR 342 Smits v Roach [2006] HCA 36 Webb and Hay v The Queen (1991) 181 CLR 41 WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65 HEARING DATES: 16/08/06 EXTEMPORE JUDGMENT DATE: 08/16/2006 APPLICANT: Mr GH Healey, consultant SOLICITORS: GH Healey & Co FIRST, SECOND AND FOURTH RESPONDENTS: LEGAL REPRESENTATIVES: Mr AJ Bulley of counsel SOLICITORS: Gordon & Johnstone THIRD RESPONDENT: Mr GA Covington, solicitor SOLICITORS: Colin Biggers & Paisley JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 16 August 2006 Matter No IRC 3679 of 2003 KEITH FRANKLIN KENNETT AND ANOTHER v MAYRANA PTY LTD AND OTHERS Application under s.106 of the Industrial Relations Act 1996 Matter No IRC 3680 of 2003 MYONG HO PAK V MAYRANA PTY LTD AND OTHERS Application under s.106 of the Industrial Relations Act 1996 EXTEMPORE JUDGMENT (No 2) [2006] NSWIRComm 264 1 This judgment concerns motions filed by the applicants on 15 August 2006, seeking orders that I not hear any interlocutory or substantive applications in these matters. The orders were sought in circumstances where it was said that I had 'decided final issues to the Applicant when sitting as a member of the Full Court of the Commission'. 2 The disqualification application arose in circumstances where these matters had been allocated to Justice Staunton for hearing, but were recently re-allocated to me, for reasons relating to the hearing of unconnected proceedings. 3 The question of my involvement in a related Full Court matter was first raised by one of the respondents when the matter was first mentioned before me on 9 August. On 11 August, two other motions filed by the applicants were listed for hearing on 16 August. On 15 August, the disqualification application was filed. The respondents opposed the application. 4 The applicants' motion was supported by an affidavit sworn by Mr Gregory Harrison Healey, a consultant to the applicants' solicitors. The Full Court proceedings referred to were Kennett and Anor v Mayrana Pty Ltd and Ors and Myong Ho Pak v Mayrana Pty Ltd and Ors [2005] NSWIRComm 367. There the Full Court refused the applicants leave to appeal a costs order made by Marks J in interlocutory proceedings, where his Honour had ordered that that the applicants bear the respondents' costs, as agreed or assessed, in relation to interlocutory matters arising during the course of case management procedures. The cost orders were payable forthwith. 5 The view taken by the Full Court at [14] was that: The issues raised by the appeal do not go to questions of principle. They concern alleged errors in Marks J's exercise of the discretion to award costs, at an interlocutory stage of the proceedings, against a party in default of directions given by the Court as to the preparation of the matter for hearing. His Honour concluded in his decision that this had resulted in repeated appearances before him, which would have been unnecessary had the Court's directions been complied with. The transcript referred to by the appellant confirms that his Honour was directing his enquiries to what had occurred since the conciliation in December 2004. We are satisfied that the public interest test in s 188 is not satisfied by the matters raised and the arguments advanced. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380). 6 At [15] it was observed: As has oft been observed, leave to appeal will not lightly or automatically be granted. (See Perrott v Xcellenet Australia Ltd and Ors (1998) 84 IR 255.) The matters were before Marks J for case management. There will be occasions when it is appropriate for the Court to make orders against a party in default of directions given in the case management process. His Honour concluded that this was such a case. Nothing advanced has convinced us that his Honour's decision involves appellable error, or that it meets the public interest test. 7 It is in those circumstances that the application for disqualification comes forward. The law in relation to the determination of a disqualification application is well settled. For recent discussions of the law by the High Court, see Johnson v Johnson (2000) 201 CLR 488 and Smits v Roach [2006] HCA 36 and by a Full Bench of this Court, Crewdson v New South Wales Department of Community Services and Ors (No 13) [2006] NSWIRComm 50.) The application requires a consideration of the question of reasonable apprehension of bias. As to this test, it was observed in Re J.R.L.; ex parte C.J.L. (1986) 161 CLR 342 at 352, by Mason J that: It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey (1983) 151 CLR 288 has lead to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decision of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. 8 In WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65, Wright J, President summarised the principles relevant to applications for disqualification, as: (1) The test to be applied is that of reasonable apprehension of bias. A judge should not sit to hear a case if in all circumstances the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. However, it would be an abdication of judicial function for a judge to automatically disqualify himself whenever requested to do so by one party on the grounds of apparent bias, regardless of the wishes of the other party to the suit. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit. By acceding too readily to suggestions of appearance of bias, judges may encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. A judge therefore has a duty to disqualify himself or herself only for proper reason, namely, where there is an actuality of bias or the existence of grounds for reasonable apprehension of bias, and the judge equally has a duty in other circumstances not to disqualify himself or herself. ... (3) In determining whether a fair-minded person would entertain a reasonable apprehension of bias, that person is expected to know the objective facts and the legal history of the matter, but not to have any individual knowledge of the judge concerned. (4) The mere claim that there is an appearance of bias does not establish that a reasonable apprehension exists, as this is a matter which must be determined objectively. Reasonable apprehension of bias must usually be firmly established. The ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice ... 9 Here, the application comes forward in circumstances where apprehension of bias is said to arise from the fact that, as a member of the Full Court, I had cause to consider whether a costs order made against the applicants at an earlier interlocutory stage of the proceedings by Marks J, was one against which leave to appeal could properly be granted, having regard to the relevant statutory scheme and the applicable principles. Leave to appeal was refused by the Full Court, because it took the view that the public interest test could not be satisfied in the circumstances. That test is imposed by s 188 of the Industrial Relations Act 1996 ('the Act'), which provides: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. 10 The argument pressed for the applicants relied on the High Court's judgment in Webb and Hay v The Queen (1991) 181 CLR 41 at [12], where it was observed that disqualification by reason of apprehended bias encompasses at least four categories, one of which was disqualification by conduct, including public statements. In this case, the Full Court's judgment was submitted to be such a statement, made after the Full Court, of necessity, formed views as to the applicants' conduct which were adverse to the applicants, so that an intelligent observer could thereby have no confidence that the balance of the case could be decided impartially, on the evidence led, by the Court as presently constituted. This followed, notwithstanding that the applicants' conduct was not expressly dealt with in the judgment. Of necessity, that conduct must have been considered by the Full Court and views adverse to the applicants formed, in order for the conclusion to be reached, that the public interest test could not be met. 11 The submission had to be developed in this way, because on the face of the Full Court's judgment, there was no consideration by the Full Bench of the matters which the applicants sought to agitate on appeal, which went to errors which it was asserted his Honour had made in exercising the discretion to make a costs order against the applicants, in the circumstances before him. The Full Bench said nothing about the applicants' conduct. The decision turned on the question of leave to appeal from the discretionary costs order made, that being the test imposed as I have noted, by s 188 of the Act. 12 In my view, it follows that, contrary to the case advanced for the applicants, the Full Bench did not form views adverse to the applicants as to their conduct before Marks J. The appeal was dismissed because the requisite public interest in the matters sought to be raised on appeal was not demonstrated - the matter was not found to be 'of such importance that, in the public interest' leave should be granted. There was no adverse finding made about the conduct of the applicants. Because leave to appeal was refused, it was not necessary for the Court to deal with that conduct. Contrary to the argument pressed by Mr Healey, it is well settled that even if the Full Court had formed views favourable to the applicants as to their conduct, that would not necessarily have resulted in either leave to appeal being granted, or the appeal being upheld. The appeal was brought against a discretionary decision. Just because members of an appeal bench might have exercised a discretion differently to a trial judge, is not a basis either for leave to appeal to be granted, or an appeal to be upheld. Something more must be demonstrated, in appeals where a public interest test is imposed. 13 In those circumstances, I am unable to come to the conclusion that the parties or the public might entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the questions which now arise in these proceedings. They appear to be threefold. The first, a consideration of motions which the applicants have filed, seeking to be relieved of the obligation to produce certain documents to the respondents, before the respondents file their evidence in the proceedings. The second, a consideration of the claims which the applicants seek to advance in the proceedings, which are brought under s 106 of the Industrial Relations Act 1996. Finally, an argument which the respondents will press at the hearing, that the Court does not have jurisdiction to entertain the claims brought. 14 I am satisfied that none of those matters have such a connection with the question which was earlier decided by the Full Court of which I was a member, that a reasonable apprehension could now arise that I might not bring an impartial or unprejudiced mind to the resolution of what now remains to be determined in these proceedings. In Smits it was observed at [56] that: GUMMOW AND HAYNE JJ. The first matter which calls for attention is the treatment by the New South Wales Court of Appeal of the issue of apprehended bias. That required attention to and application of what was decided by this Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. In their joint judgment, Gleeson CJ, McHugh, Gummow and Hayne JJ said that the applicable principle requires two steps and continued (2000) 205 CLR 337 at 345 [8]: "First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." 15 Here the 'logical connection' between the matter raised and the deviation from deciding these matters on their merits, has not been established. 16 I am also satisfied that to accede to the application for disqualification in the present circumstances, would be to fall into the type of error discussed in the authorities, to which I have referred. Those authorities are, of course, binding upon the Court as presently constituted and must be adhered to. Orders 17 For those reasons, the orders which the applicants seek are refused. ------------------------ 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. 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