Industrial Relations Commission of New South Wales CITATION: Crewdson v New South Wales Department of Community Services and Ors (No 13) [2006] NSWIRComm 50 APPELLANT Gerard Crewdson PARTIES: RESPONDENT New South Wales Department of Ageing, Disability and Home Care New South Wales Department of Community Services Sydney South West Area Health Service FILE NUMBER(S): IRC 4851 of 2005 CORAM: Wright J President; Walton J Vice-President; Backman J CATCHWORDS: Appeal - Application for leave to appeal and appeal - Declaratory relief - Court and judges - Application by appellant for Full Bench to disqualify itself on basis of apprehended bias or actual bias - No basis for application to succeed - Application dismissed. Johnson v Johnson (2000) 201 CLR 488 Re J.R.L.; ex parte C.J.L. (1986) 161 CLR 342 CASES CITED: Re Polites and Anor; Ex Parte the Hoytes Corporation Pty Limited and Others (1991) 173 CLR 78 R v Russell; ex parte Reid (1984) 7 IR 1 WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65 HEARING DATES: 16/02/2006 EXTEMPORE JUDGMENT DATE: 02/16/2006 APPELLANT Mr G Crewdson in person LEGAL REPRESENTATIVES: RESPONDENTS Ms E Brus of counsel Solicitor: NSW Crown Solicitor JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President BACKMAN J Thursday 16 February 2006 Matter No IRC 4851 of 2005 GERARD CREWDSON v DIRECTOR GENERALS NSW DEPARTMENT OF AGEING DISABILITY AND HOME CARE/DEPARTMENT OF COMMUNITY SERVICES AND ANOTHER Application by Gerard Crewdson for leave to appeal and appeal from a decision of Justice Boland given on 26.8.2005 and interlocutory decisions made between 8.5.2001 and 26.8.2005 in matter no IRC 3140 of 2001 JUDGMENT OF THE COURT (Extempore) [2006] NSWIRComm 50 1 PRESIDENT: I invite his Honour, the Vice-President, to deliver judgment first in this matter. 2 WALTON J, Vice-President: This short extempore judgment concerns an application by Mr Gerard Crewdson that I disqualify myself from hearing his application for leave to appeal and appeal against the decisions of Boland J in matter IRC 3140 of 2001 on the grounds of reasonable apprehension of bias. 3 The test which governs such application is well-known and has been referred to in recent years by the High Court in Johnson v Johnson (2000) 201 CLR 488 and by Wright J, President in this Court in WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65: whether a fair-minded lay-person might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to make. 4 Before considering Mr Crewdson's application, it is important to bear in mind two cases in which the High Court of Australia cautioned against inappropriate readiness to disqualify oneself. In the first case, Re J.R.L.; ex parte C.J.L. (1986) 161 CLR 342, Mason J held (at 352): 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 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 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. 5 In the second case, Re Polites and Anor; Ex Parte the Hoytes Corporation Pty Limited and Others (1991) 173 CLR 78, (which concerned a Deputy President of the Australian industrial Relations Commission who had previously given one of the parties legal advice as its solicitor pertaining to industrial relations), Brennan, Gaudron and McHugh JJ held at 87: The prior involvement of the Deputy President with associations or with governments who are frequently parties to proceedings before the Commission cannot be sufficient by itself to amount to a disqualification from sitting in a particular case; nor can the prior acquisition of "skills and experience" amount to such a disqualification. Deputy Presidents who are appointed on account of their industrial background are not disqualified merely because persons with that background have a measure of knowledge or are likely to have a particular attitude to the exercise of the Commission's powers. To adopt the words of the Privy Council in Labour Relations Board of Saskatcheqan v John East Iron Works, Ltd. [1949] AC 134 at p 151, their background will not necessarily lead them "to act otherwise than judicially, so far as that work connotes a standard of conduct" even though the background which carries experience and knowledge acquired extra-judicially "assuredly means that the subject-matter is such as profoundly to distinguish such a tribunal from the courts... 6 I am satisfied the test stated in Johnson v Johnson and refined by Re J.R.L.; ex parte C.J.L. and Re Polites could not be satisfied in the present application. Two identifiable themes predominate. First, Mr Crewdson's claims concerning my practice as an industrial barrister before being appointed to the Bench. And secondly, his claims concerning an unrelated Full Bench proceeding in which I presided. 7 There does not appear to be any rational connection between matters in which I have acted as a barrister on behalf of un-named unions and other parties and Mr Crewdson's present application, which does not involve any union. Furthermore, it is clear from the High Court's decision in Re Polites that, even if there was some rational basis for the complaint, it would be inappropriate to disqualify myself on the basis of apprehension of bias on the basis of this background of industrial experience and knowledge (see also R v Russell; ex parte Reid (1984) 7 IR 1). 8 Nor does there appear to be any rational connection between the present application and the Full Bench decision referred to by Mr Crewdson which involved the issue of medical retirement on psychiatric grounds, not in the least because, on the written submissions of the respondent, rather than relating only to retirement - this case raises separately the issue as to whether there was a binding Deed of Release. Again, even if Mr Crewdson's assertions were not bereft of reason ... [Reading of judgment interrupted by the appellant - see transcript of proceedings] ... such an argument could not form the basis of my disqualification in the light of the strong words of Mason J in Re J.R.L.; ex parte C.J.L. rejecting previous decisions of the judicial officer in question - without more - as a basis for disqualification. Both of Mr Crewdson's assertions may thus be dismissed instantly. I do not intend to be distracted from hearing this matter impartially by disqualifying myself when it would be wrong do so. 9 In supporting the general propositions described above Mr Crewdson made some additional factual assertions and slurs. They may be dismissed at once as being without foundation and indeed wrong. Thus, to the extent there is any suggestion of actual bias, it is rejected. 10 This is not the end of the matter. The unsubstantiated allegations are not only serious but malicious; put in a way that goes beyond anything which might have been justifiably undertaken in the legitimate interests of pursuing Mr Crewdson's case before the Court; and are potentially both legally scandalous and in contempt of Court. Mr Crewdson has abused the privilege of appearing before this Court and has done so by his most recent conduct during the course of my reading this judgment. 11 Having given the matter careful consideration, I have decided to adopt the same generosity of approach shown by Boland J in a similar application for disqualification brought by Mr Crewdson in these proceedings at first instance. That is, to regard the potentially contemptuous statements by Mr Crewdson in his written submissions as simply a poor and misguided choice of language, driven by his enduring, difficult circumstances. 12 However, the issue of contempt may have to be dealt with separately at a later date if the circumstances require and if there is a proper basis to do so. This will depend upon the future conduct of Mr Crewdson. Similarly, the material which is, in all likelihood, legally scandalous, may be removed from the Court file at a later date, once the Court has considered and determined the application for leave to appeal and the appeal (given the ultimate disposal of the application for leave to appeal this should not occur forthwith). 13 The application is refused. 14 PRESIDENT: I have had the significant advantage of hearing delivered the judgment of his Honour, the Vice-President in respect of the applicant's application for the Full Bench to disqualify itself which, of course, includes an application that his Honour disqualify himself. 15 I would respectfully associate myself with his Honour's reasons and would generally adopt them in respect of the disqualification application insofar as it applies to me. 16 However, because the application as to my sitting in this matter seems to travel somewhat further than that made as to the other members of the Full Bench, I should add some additional remarks. In my judgment in WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited [2000] NSWIRComm 65 I sought to distil the principles relevant to applications for disqualification. Although there are some differences between that case and this, the following extracts from paragraph [15] of that judgment are relevant: [15] The judgment of Mildren J sets out relevantly the principles to be applied, except to the extent that some of the matters referred to in paragraph 6 of the extract have to be now considered as considerably qualified by the judgment of the High Court in Re Polites . For that reason, Professor Allars' paper provides a more contemporary and thus complete perspective. For present purposes, and notwithstanding some oversimplification, the principles derived from Professor Allars' article and the cases that have been referred to, may be summarised as follows: (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 ... 17 The importance of those passages for the present application is that they stress the need for an application such as the present to be properly established; that is, the ground or grounds of the application must be "firmly established"; further, that there is an obligation on judicial officers to discharge their duty to sit. It is relevant, because of its importance to the present proceedings, to stress one of the passages in the above extract by repeating it: [I]t 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 ... 18 In other words, simply because it may be unpleasant to continue to sit in a case or a litigant makes impassioned and repeated pleas that a judge not sit, neither of those circumstances results in the situation where the application should succeed. Indeed, it would be an abdication of judicial function to grant the application in this matter. 19 The applicant's application concerning me is wide ranging and seems to raise allegations of apprehension of bias and also of actual bias. I do not intend to repeat, in terms, those allegations. But I do not accept any bias in either respect has been established. Perhaps it would be appropriate to conclude by referring to one other matter. 20 The applicant has taken exception to the way in which certain proceedings in this matter have been conducted. It might be accepted that as they progressed I took the view that a degree of precision was required to ensure that the applicant's propensity to divert the proceedings, possibly often without meaning to do so, should be kept in check. That was done for two reasons: first, to enable the Full Bench to properly understand the applicant's case giving due regard to the fact that he is unrepresented, although accepting also he is a person of great intelligence; second, to prevent him from straying into areas which are irrelevant, inappropriate and improper. The application is refused insofar as it relates to me. 21 BACKMAN J: I discern no specific allegation made by the applicant in these proceedings which has been directed toward me which would form the basis of disqualifying myself from hearing the application for leave to appeal and appeal against the decision of Boland J in Matter No IRC 3140 of 2001. Accordingly, the application that I should disqualify myself on the grounds of reasonable apprehension of bias should be 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.