Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union on behalf of Acre and others and Liverpool City Council [2016] NSWIRComm 1000 Hearing dates: 11 January 2016 Decision date: 15 January 2016 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The disqualification application by the Liverpool City Council is dismissed. Catchwords: INTERLOCUTORY DECISION – applications for relief in relation to unfair dismissal – apprehension of bias – disqualification application – application dismissed Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: Re JRL; Ex parte CJL ([1986] 161 CLR 342 Vakauta v Kelly ([1989] 167 CLR 568 Re Polites; Ex Parte Hoyts Corporation Pty Ltd ([1991] HCA 25) Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [(1986) 6 NSWLR 272] S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd [(1988) 12 NSWLR 358] Caltex Refining Co Pty Ltd & Anor v Australian Workers Union, NSW Branch ([1990] 35 IR 100) Brake and Service Centre Drummoyne Pty Ltd & Ors v Majik Markets Pty Ltd ([1990] 35 IR 351) Australian Medical Association (NSW Branch) v Minister for Health (NSW) ([1991] 38 IR 144) Workcover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited ([2000] NSWIRComm 65 (28 April 2000) Crewdson v New South Wales Department of Community Services and Ors (No 13) ([2006] NSWIRComm 50 (30 March 2006) R v Judge Russell; Ex parte Reid [(1984) 35 SASR 417; 7 IR 1] Precision Fabrication Pty Ltd v Roadcom Pty Ltd [(1991) 104 FLR 260] Category: Procedural and other rulings Parties: New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union on behalf of Acre and others (Applicant) Liverpool City Council (Respondent) Representation: Counsel: D Mahendra (Respondent) Solicitors: D Papps New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): IRC 553, 554, 555 and 556 of 2015 INTERLOCUTORY DECISION 1. Before the Commission are four applications for relief in relation to unfair dismissal. The applicants are former employees of the Liverpool City Council (the Council) and are represented by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (the USU). 2. Each of the applicants was dismissed from his employment with the Council on 18 August 2015. The unfair dismissal applications were filed on 24 August 2015 and were initially allocated to Commissioner Newall for conciliation. A conciliation conference was convened on 14 September 2015 but the applications remained unresolved. Directions were made for the filing and serving of evidence. Eight witness statements, including a statement from each of the applicants, were filed by the USU on 26 and 27 October 2015. On 30 November 2015 the Council filed six witness statements. On 2 December 2015 the Industrial Registrar notified the parties that the applications were listed for arbitration over seven days from 14 to 22 March 2016. 3. Following my appointment as a Commissioner of this Commission, which took effect on 4 December 2015, the applications were allocated to me to conduct the arbitration. By correspondence dated 10 December 2015, the solicitors for the Council wrote to the Industrial Registrar expressing concern that the circumstances surrounding the allocation of these matters to me have given rise to a reasonable apprehension of bias on my part. In this regard, the Council's solicitors noted that: (i) I (prior to my appointment) acted for the USU on a number of occasions and I have "a close professional working relationship with Mr Mark Dunstan (the advocate for the USU in these proceedings) and Ms Sandie Morthen (the relevant USU Organiser in the proceedings)". (ii) Over the course of the last 12 months, I (prior to my appointment) appeared for the USU against the Council in matters before the Commission in at least two separate sets of proceedings. 1. Although the correspondence of 10 December 2015 does not specify, it is my understanding that the two separate sets of proceedings referred to were: (i) IRC 7 and 69 of 2015 being an application, and related dispute proceeding, before a Full Bench of the Commission concerning a claim by the USU on behalf of Child Care Staff at the Council for an award regulating hours of work (Re Liverpool City Council 36 Hour Week (72 Hour Fortnight) Child Care Staff Award 2015 [2015] NSWIRComm 22). (ii) IRC 143 of 2015 being a dispute proceeding before Acting Justice Kite resulting from a section 130 notice by the USU concerning a proposed organisational change at the Council. 1. Reference was made in the solicitors' letter of 10 December 2015 to the dissenting judgement of Kirby P (as his Honour then was) in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd [(1988) 12 NSWLR 358]. That matter involved an appeal from a refusal by the judge at first instance, Bryson J, to disqualify himself from determining the matter before him on the grounds of reasonable apprehension of bias. The disqualification application by S & M Motor Repairs was based on the proposition that, because Bryson J had acted as a barrister over many years in a large number of matters for Caltex Oil and associated companies, he should refrain from determining the case in which Caltex Oil was a party. 2. The solicitors' letter cited a passage from the judgement of Kirby P at 368-9 as follows: Necessarily, where what is alleged is a reasonable apprehension of bias, the fact situations will greatly vary. Thus the apprehension of bias may be grounded in prior judicial activity (as it was in Livesey) or in family, financial or professional relationships with one of the parties. The determination of whether there is, by the stated test, a reasonable apprehension of bias depends upon a full understanding of the facts from which it is suggested that such apprehension arises. In so far as such bias is said to arise from a relationship between the parties, it is clearly relevant to know the duration of that relationship, its intensity and nature and the time that has elapsed between its last renewal and the performance of judicial functions said to be affected by it. [Emphasis added] I will discuss further this dissenting judgement of Kirby P, as well as the joint judgement of the majority of the Court of Appeal (Priestley and Clarke JJA), later in these reasons for decision. 1. By correspondence dated 11 December 2015 the USU stated that it "does not agree with the contents [of] the respondent's letter and does not consent to a change in [the] decision-maker." 2. I determined to treat the correspondence from the Council's solicitors to the Registrar of 10 December 2015 as an application that I disqualify myself from arbitrating these matters and listed the proceedings for the purpose of hearing that application on Monday 11 January 2016. 3. At the outset of the hearing of this disqualification application I made available to the parties a document which listed every matter in which I have acted for the USU. The contents of that document are set out hereunder: (a) IRC 629 of 2013 – Stanton C Notification under section 130 by USU of a dispute with Newcastle City Council re Paul Parker. (b) 1RC 976 of 2013 – Harrison DP Notification under section 130 by USU of a dispute with Newcastle City Council re half-day paid leave [2014] NSWIRComm 15 (4 April 2014). (c) IRC 175 of 2014 – Full Bench City of Sydney Wages/Salary Award 2014 [2014] NSWIRComm 49 (23 September 2014). (d) IRC 863 of 2014 – Newall C and later Walton P Award application by USU against Fairfield Council seeking to preserve conditions of employment. (e) IRC 879 of 2014 – Full Bench Notification under section 130 by USU of a dispute with Kempsey Shire Council re disadvantage to new employees re RDO system on public holiday occurrence. (f) IRC 7 and 69 of 2015 – Full Bench Liverpool City Council 36 Hour Week (72 Hour Fortnight) Child Care Staff Award 2015 [2015] NSWIRComm 22 (28 August 2015). (g) IRC 143 of 2015 – Acting Justice Kite Notification under section 130 by the USU of a dispute with Liverpool City Council concerning a proposed organisational change. (h) IRC 243 of 2015 – Tabbaa C Notification under section 130 by USU of a dispute with Goldenfields Water Council re a number of issues. In addition, I provided the USU with legal advice on five other unrelated industrial issues over the same period of time. 1. With respect to the two matters involving the Council, I advised the parties that I last appeared in the Commission on 11 March 2015 in relation to the matter listed above at (f), and on 20 April 2015 in relation to the matter listed at (g). My most recent appearance in the Commission in any matter for the USU was on 14 October 2015 in relation to the matter listed at (e). 2. There does not appear to me to be any commonality or overlap of issues between the four unfair dismissal applications presently before the Commission and any of the matters in which I appeared for, or provided advice to, the USU. Nevertheless, concern was expressed on behalf of the Council that, when both of the matters referred to at paragraph 4 above are considered together, the circumstances do give rise to a reasonable apprehension of bias on my part. 3. At the hearing of the disqualification application on 11 January 2016 Mr D Mahendra of counsel appeared for the Council and Mr D Papps appeared for the USU. 4. Mr Mahendra submitted that his client's disqualification application was "finely balanced". He said that he had been unable to find a case where a tribunal member had acted for a party before it within the previous twelve months. Counsel conceded that simply acting for or against a party was not enough to support a disqualification application. However, he was unaware of any case in which the tribunal member had acted for one party against the other party in the proceedings before the tribunal, as was the case here. 5. Mr Mahendra noted that the two matters referred to at paragraph 4 above involved direct briefs from the USU without the involvement of solicitors. 6. Counsel again referred the Commission to the judgement of Kirby P in S & M Motor Repairs at 368-9 and the High Court judgement in Vakauta v Kelly ([1989] 167 CLR 568 at 585) where Toohey J, on the issue of the level of sophistication that should be attributed to the reasonable or fair-minded observer, makes specific reference to the judgement of Kirby P in S & M Motor Repairs at 375-6. 7. Counsel also referred the Commission to the Court of Appeal judgement in Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [(1986) 6 NSWLR 272], in particular, to the following passage from the judgement of Priestley JA at 276: It has long been accepted that a judge should not sit on a case involving a person with whom he has a connection which might in fact or in appearance affect his impartiality; when the judge's connection is less than that there is no reason why he should not sit. In such a case, if a request is made to him not to sit, which seems to him proper in the sense that it is not prompted by the motive described by Mason J at the end of the above cited passage (from Re Renaud; Ex parte CJL (1986) 60 ALJR 528 at 531-2), and all parties are agreed, and another judge is readily available without inconvenience either to other litigation or the general administration of the court, then the judge may properly agree to the request. 1. For the sake of completeness, I set out what Priestley JA said immediately following the passage relied upon by Mr Mahendra: In the present case the other parties were not agreeable to the claimants' request to Powell J, it was not convenient to transfer the proceedings to yet another judge and Powell J did not think he should disqualify himself. He did not think that the degree of his acquaintance with the defendant solicitors would in fact or in objective appearance affect his impartiality. By the standards upon which the courts base themselves in this country and upon the evidence before this Court that conclusion was amply justified. In refusing to disqualify himself he was, in my opinion, correctly carrying out the duty spoken of by Mason J, that is that judges should not, by too readily acceding to unwarranted requests for disqualification on the ground of alleged bias or appearance of bias, encourage parties to believe they can obtain a judge to hear their case who they think more likely to decide it in their favour. 1. Mr Papps, for the USU, opposed the disqualification application by the Council. Mr Papps also relied upon the judgement of Kirby P in S & M Motor Repairs, in particular, on a passage from that judgement which I discuss below. Mr Papps, in the context of an industrial tribunal such as this Commission, referred to the "closed fraternity of barristers" and submitted that the acceptance of disqualification applications, such as the present one, could lead to a situation where there were no Commissioners available to hear disputes. 2. In reply, Mr Mahendra repeated that he had been unable to find a case where the tribunal member had acted for one party against the other in the proceedings. I referred him to the judgement of the High Court in Re Polites; Ex Parte Hoyts Corporation Pty Ltd ([1991] HCA 25) and gave him the opportunity to provide the Commission with a short note on that case. Mr Mahendra availed himself of that opportunity and provided a note in which he distinguished the facts in Re Polites from those in the present case in that in Re Polites the disqualification application was not made until the hearing before the Full Bench of the Commission had occupied 27 hearing days, produced 2,500 pages of transcript and 96 exhibits had been tendered. Further, the relationship between Polites DP and Hoyts was for a short time in July and August 1986 and the hearing of the matter before the Full Bench, of which Polites DP was a member, commenced on 23 November 1989, some three years later. 3. I now return to the dissenting judgement of Kirby P in S & M Motor Repairs. His Honour stated a number of principles applicable to the issue of judicial disqualification (at 367-373). Those principles may be summarised as follows: 1. In the case of actual bias, a judge must disqualify himself or herself immediately. 2. The test for apprehension of bias is whether a reasonable or fair minded person would hold such apprehension. 3. The determination of whether there is a reasonable apprehension of bias depends upon a full understanding of the facts from which it is suggested that such an apprehension arises, including, in cases where such bias is said to arise from a relationship between the parties, the duration of that relationship, its intensity and nature and the time that has elapsed between its last renewal and the performance of judicial functions said to be affected by it. It was this part of the judgement of Kirby P which was specifically cited by the Council's solicitors in their letter of 10 December 2015 and by Mr Mahendra at the hearing on 11 January 2016. 1. If a judge prefers, because of some past association, not to sit in cases involving particular parties for fear of actual or imputed bias, he or she will so indicate and, "save for necessity", will not sit in such cases. In cases where a judge has had any connection with a party or with issues raised in the litigation a judge may prefer not to sit or will announce that connection to the parties to allow any objection to be made to that judge sitting on the case. It would seem that, in the present case, matters have moved beyond this point. However, in the context of this principle, it should be noted that, at the commencement of the hearing of this disqualification application, I provided the parties with as comprehensive a statement as I was able, without breaching lawyer/client confidentiality, of the past relationship between myself as a barrister and the USU and its officers. Further, his Honour's reference to "necessity" has, given the limited resources available to the Commission, some relevance to the present application. 1. At the heart of the respect which the courts enjoy is the recognition of judicial neutrality and impartiality. 2. There is a particular need for sensitivity where questions of the status of parties may be involved or in cases which are criminal or criminal in nature, as is a proceeding for contempt. 3. Judges operate in a practical world, dealing with practical questions. In his elaboration of this principle, Kirby P cited with approval the judgement of the Full Court of the Supreme Court of South Australia in R v Judge Russell; Ex parte Reid [(1984) 35 SASR 417; 7 IR 1]. In that matter the Court unanimously refused an order for prohibition against a judge of the Industrial Court. The order had been sought by a party to proceedings before that particular judge. Walters J, with whom the other members of the Full Court agreed, explained his reasons for refusing prohibition (at 422; 4): For my part, I find it difficult to believe that a fair-minded observer would have reasonable grounds for apprehending that simply because a member of a small industrial Bar had identified himself, in his professional duties as a barrister, with the interests of a particular employer in matters of industrial disputation, he would, on his appointment to judicial office in the Industrial Court, be unable to bring a fair and unprejudiced mind to the decision of matters involving the party for whom he has formerly acted. To take the obverse position, I could scarcely believe that simply because a barrister practising in the field of industrial law had commonly acted in a professional capacity in the interests of employees, any reasonable observer would have grounds for apprehending that on the appointment of that barrister to judicial office in the Industrial Court, he would be unable to bring a fair and unprejudiced mind to the resolution of matters arising before him. This part of the judgement of Kirby P was specifically relied upon by Mr Papps in opposing the disqualification application and would seem to have particular relevance to the present application. Kirby P then cited extensively from the judgement of the Court of Appeal in Raybos Australia in which the Court made similar observations. 1. Exceptions are provided to the necessity of disqualifications where, for example, it is essential and inescapable that the judge should sit. Special rules apply in courts of limited numbers which must be constituted in a particular way. At the present time, this Commission is comprised of a President and four Commissioners, of which I am one. Commissioner Newall has conducted conciliation of the four unfair dismissal applications and, as a consequence of that, may be objected to from arbitrating these matters by any of the parties pursuant to section 173 of the Act. If I disqualified myself from hearing these matters, and objection was taken to Commissioner Newall hearing them, that would mean that they would need to be heard by the President or one of the two remaining Commissioners. The difficulties in constituting an appeal bench would be manifest. Whilst these circumstances may not necessarily meet the test of "necessity", they cannot be ignored in the determination of this disqualification application. 1. The entitlement to a judge who is manifestly impartial is a public as well as a private right. 2. General principle would suggest that orders made by a judge who acts although disqualified for bias or reasonable apprehension of bias would be void, except perhaps in superior courts of record. 1. In applying these principles to the matter then before the Court of Appeal, Kirby P held that there was a reasonable apprehension of bias on the part of Bryson J because of his past association with Caltex Oil and that he should have disqualified himself from sitting on the case. The other members of the Court of Appeal, Priestley and Clarke JJA, reached the opposite conclusion. After referring to the judgement of Gibbs CJ in Re JRL; Ex parte CJL ([1986] 161 CLR 342 at 349) their Honours stated (at 378-9): The disqualification test as stated by Gibbs CJ (and see also Mason J (at 351), Wilson J (at 359), Brennan J (at 368) and Dawson J (at 371), shows that what must be decided by a court when dealing with the question which was before Bryson J is whether in fact it is reasonable for the parties or public to apprehend that the judge might not be impartial. Whether such an opinion would be reasonable in the present case seems to us to involve more than asking whether an observer, thinking that the judge had until recently been the "Caltex barrister", would apprehend possible partiality. The question is whether that observer would reasonably apprehend possible partiality. Would it be reasonable for an observer, of average intelligence and having, let it be supposed, little knowledge of the legal system, on hearing what the judge said about having often worked for Caltex when he was a barrister, to say at once that he apprehended the judge might therefore favour Caltex in the litigation, consciously or unconsciously? And, later, their Honours stated (at 380-1): For the apprehension of the parties or the public to be reasonable, we think it must arise upon an understanding of the actual circumstances in which the claim of possible bias is made. In the present case, a reasonable person knowing nothing of the way in which barristers do their work might, on first thought, in fact apprehend possible bias. We do not think such a judgement would be reasonable, because founded on insufficient knowledge for arriving at such a judgement. The reasonable observer would, in our opinion, need to inform himself of the circumstances in which the judge had done legal work for Caltex, before being able to form a reasonable judgement on the question of possible bias. Once he understood, in general outline, the way in which barristers carry out the work they do, upon the instructions of solicitors, for clients, and upon understanding, again in a general way, the difference between a large business organisation and the people who work for it, it seems to us that it would no longer be reasonable to apprehend possible bias on the judge's part. 1. By majority, Priestley and Clarke JJA held that the appeal against the judgement of Bryson J should not succeed on the ground of reasonably apprehended possibility of bias (at 381). 2. In Caltex Refining Co Pty Ltd & Anor v Australian Workers Union, NSW Branch ([1990] 35 IR 100) the Industrial Commission in Court Session considered an application by the AWU that Hungerford J not sit as a member of the Full Bench on the ground that his Honour, when practising as a barrister, had acted in a number of matters for Caltex. In dealing with the disqualification application, the Commission cited the joint judgement of Priestly and Clarke JJA in S & M Motor Repairs and also cited the judgement of the Full Court of the Supreme Court of South Australia in Russell. The Commission then stated (at 102): In our opinion it is unlikely that there is any member of almost any industrial bench who has not either appeared for major union parties on the one hand, or major employer parties on the other during his career, most likely many times over. To admit a question on disqualification because of apprehended bias on that ground may disqualify the entire Bench. There is no evidence before us that his Honour ever formed any view adverse either to the union or any members of it and indeed the only secure evidence we have is that he formed a view about questions of law raised by a solicitor and submitted to him for answer. After consultation with his Honour, under the circumstances the proposal that his Honour should stand down is rejected. 1. In Brake and Service Centre Drummoyne Pty Ltd & Ors v Majik Markets Pty Ltd ([1990] 35 IR 351) Hungerford J considered an application by Dr Woods, on behalf of the applicants in an unfair contract case, that he disqualify himself from sitting, again on the basis that, as a barrister, he had acted for Caltex, the owner of the respondent company in the proceedings. His Honour cited a number of authorities including Russell, S & M Motor Repairs and Caltex Refining Co and determined as follows (at 356): In my view, that conclusion by the Court Session (in Caltex Refining Co) is of direct relevance to the present matter before me. The real effect of Dr Woods submission would be that any member of the Bar who had acted for a person should, on assuming judicial office, refrain from hearing any case involving that person as a party. I would consider that result to be well outside the stated test for judicial disqualification as I have earlier outlined it on the authorities. I can well understand a litigant not experienced nor versed in legal procedures to have a feeling of concern in learning that the judge to hear his case had earlier whilst at the Bar acted for the opposing party; but that litigant, I feel, does not come to the court unaided and without the benefit of legal advice. Certainly is that so with the present applicants, who can call on senior counsel for advice, which no doubt has already occurred, as to the manner in which barristers operate for clients on instructions. Once explained, I would feel comfortable that the reasonable litigant on balanced and further consideration should not entertain any future apprehension. In all of the circumstances, I see no ground to prevent my continuing to hear the present applications. I decline to disqualify myself. 1. Of particular relevance to the present application is the judgement of the High Court in Re Polites. Deputy President Polites had been a member of a Full Bench of the Australian Industrial Relations Commission which had been hearing a number of matters relating to the terms and conditions of employment of employees of the Hoyts Corporation (Hoyts) and related companies. Prior to his appointment to the Commission, the Deputy President, in his capacity as a solicitor, had provided Hoyts with certain industrial relations advice concerning its dealings with the Australian Theatrical and Amusement Employees Association (ATAEA). After the Full Bench hearing had progressed significantly, Polites DP accepted a submission made on behalf of the ATAEA that, by reason of the advice previously tendered by him to Hoyts, his continued presence as a member of the Full Bench of the Commission created what his Honour described as "a situation where a fairminded observer might reasonably perceive that I could not … determine the issues" on the material before the Commission in the proceedings. 2. Hoyts made an application to the High Court for a writ of mandamus directing Polites DP to sit as a member of the Full Bench to hear and determine the matters before it. In granting the application by Hoyts, the Court (Brennan, Gaudron and McHugh JJ) stated: 9. ………………… The prior involvement of a 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 Saskatchewan v. John East Iron Works, Ld. (7) (1949) AC 134 at p 151, their background will not necessarily lead them "to act otherwise than judicially, so far as that word 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 ..." 10. A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A fortiori, if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination. And further: 16. The issues before the Commission range over virtually every aspect of the employment relationship between the prosecutors and their employees. They include the relationship existing since the events of 1988 and the relationship to be prescribed for the future. It must be accepted that the interposition of subsidiary companies for the purpose of "enabling labour to be employed on terms and conditions other than those prescribed by the awards" may be relevant to a number of issues which will fall for decision in the proceedings before the Commission. For example, it may well bear on the terms to be prescribed for employment of labour (including whether the employment of casual labour should be allowed) and for termination of employment. 17. No narrow view can be taken of the issues before the Commission. Even so, it is difficult to see how the letter of advice of 1 August 1986 could give rise to a reasonable apprehension that Mr Deputy President Polites might not bring an impartial and unprejudiced mind to their resolution. True it is that Hoyts' aspirations as to staffing levels and rates of pay were being pursued in 1986 as they are being pursued currently before the Commission but the negotiating advice contained in the paragraph numbered "1" in the letter has long since become irrelevant to their determination. The commercial necessity to open the Chadstone multiplex and the consequent incentive to enter into a new agreement appears to have made the negotiating advice outdated and irrelevant. The advice contained in the paragraph numbered "2" as to Hoyts' right to make an application to the Commission is no more than uncontentious legal advice as to the jurisdiction of the Commission (or of its predecessor, the Conciliation and Arbitration Commission). The course of action canvassed in that paragraph that Hoyts might "refuse to enter into the proposed agreement until a suitable compromise is found" was not acted on in the event: Hoyts did enter into a further Canberra agreement in 1986. That advice is of no more than historical relevance. 18. However, the advice that companies other than Hoyts might be formed to employ labour at multiplex cinemas comes closer to the issues to be determined by the Commission. Delarene and Rampton were incorporated to employ staff in Hoyts theatres on terms other than those binding on Hoyts under the applicable awards. As earlier indicated, the appropriateness and fairness of that course of action may fall for consideration by the Commission. But, if so, a judgment can be formed only in the context of the circumstances obtaining in 1988 when that action was taken. Those circumstances were very different from the limited and specific circumstances calling for advice in 1986. The position in 1986, at least so far as concerned those giving the advice, was that a new employment situation was about to occur which, according to their instructions, was different from the situation generally obtaining in the industry. In that context, the advice merely detailed available negotiating options. In particular, it carried no recommendation as to the wisdom, reasonableness or appropriateness of the course of action indicated, whether generally or in the limited circumstances in which that advice was given. In the light of these considerations and the fact that appointees to the Commission will often have had a close association with parties before, or with issues to be determined by, the Commission, it would not be open to the parties or to a member of the public to entertain a reasonable apprehension that, by reason of the advice given in the quite different circumstances of 1986, Mr Deputy President Polites might not bring an impartial and unprejudiced mind to the assessment of the prosecutors' conduct in 1988 or to the determination of appropriate wages and conditions, whether they be determined retrospectively to 1988 or otherwise, for employees in Hoyts theatres. 1. Even though Polites DP himself had accepted the strength and validity of the apprehension of bias submission put by the union and had disqualified himself from remaining on the Full Bench of the Commission, the High Court held that he was wrong to do so. Ultimately, the Court issued a writ of mandamus directed to Polites DP directing him to hear and determine, as a member of the Full Bench, the proceedings then before the Commission. 2. I accept that there are points of distinction between the facts in Re Polites and those in the present case (see paragraph 19 above). However, the High Court judgement in Re Polites contains statements of general principle which extend beyond the facts of that case and which have been applied in quite different factual circumstances, as is discussed below. 3. The judgement in Re Polites has been applied on a number of occasions in this jurisdiction in relation to apprehended bias applications. Hungerford J cited this authority when declining to disqualify himself in Australian Medical Association (NSW Branch) v Minister for Health (NSW) ([1991] 38 IR 144). The basis of the disqualification by the Australian Medical Association (AMA) was summarised by Hungerford J in the following terms (at 148): It will be clear that the basis for the AMA's application for disqualification is my appearance as counsel for the Commonwealth Department of Health as an intervener during the immediately prior arbitration relating to VMOs under sessional contracts conducted by Macken J in 1985; in that arbitration, the Commonwealth Department specifically addressed the so called "Medicare effect" for the purpose of excluding any compensation for it in the rates of remuneration to be fixed by Macken J for VMOs. His Honour declined to accept the submissions so put and included a Medicare effect component in the sessional rates determined; in the present arbitration, the AMA seeks to continue the Medicare component as a basis on which the sessional rates should be fixed. The Minister, on the other hand, seeks sessional rates for VMOs to be fixed for the future by excluding compensation for the Medicare effect as it was based on the erroneous principle of income maintenance in doctors' remuneration. Therefore, so the AMA put, because I as counsel in the 1985 proceedings put submissions and cross-examined witnesses for the purpose of persuading Macken J to the contrary view I should not now sit in judgement on the question whether compensation for the Medicare effect should continue to be included in any new determination. It is emphasised by the AMA that the arbitrator in the present proceedings will be required necessarily to review and rule upon the very issues debated in 1985, including an evaluation of the cross-examination [and] of the submissions made by me in 1985. 1. I note that, in the present matter, the Council does not assert that there is any overlap or commonality of issues between the four unfair dismissal applications presently before the Commission and any of the matters in which I acted for the USU. 2. Unlike the situation in Re Polites, in the AMA matter the disqualification application by the AMA was made prior to the commencement of the hearing proper before Hungerford J, as has occurred in the present matter. Like the situation in Re Polites, in the AMA matter there was a gap of several years between the 1985 proceedings and the disqualification application by the AMA, but this factor does not appear to have had any bearing on the decision of Hungerford J to reject the disqualification application. 3. In Workcover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited ([2000] NSWIRComm 65 (28 April 2000)) the then President of the Commission, Wright J, was asked to disqualify himself from hearing a prosecution brought under the Occupational Health and Safety Act 1983, because his Honour, when practising as a barrister, had acted as prosecutor for the WorkCover Authority in a previous prosecution against the same defendant, Concrete Constructions Group. 4. In his judgement Wright J referred to a paper by one of Australia's pre-eminent administrative and public law scholars, Professor Margaret Allars, entitled "Procedural Fairness: Disqualification Required by the Bias Rule" ((1999) 4 The Judicial Review 269), in which the professor discussed at length the High Court judgement in Re Polites, stating in part: An increase has occurred in the frequency of applications by litigants that judges should disqualify themselves from sitting in particular cases on account of their participation in proceedings involving one of the litigants or on account of conduct during the litigation. See observations in Re JRL; Ex parte CJL [1986] HCA 39; (19 86) 161 CLR 342 at 352 per Mason J. 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 (ibid at 352; Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (1986) 6 NSWLR 272; R v George, Harris and Hilton (1987) 9 NSWLR 527; Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 at 49). 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 (Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (198 6) 6 NSWLR 272; Rajski v Wood (1989) 18 NSWLR 512 at 519 per Kirby P). Too readily acceding to a request for disqualification may provide a basis for judicial review just as does an inappropriate refusal to disqualify. This was powerfully reinforced by the High Court's decision in 1991 in Re Polites; Ex parte Hoyts Corp Pty Ltd [1991] HCA 25; (1991) 173 CLR 78. A deputy president of the Australian Industrial Relations Commission was requested to disqualify himself at a point when the Commission's hearing was in its twenty-seventh day, and encompassed 2500 pages of transcript, 96 exhibits and inspections by a commissioner in the United States of America. The deputy president acceded to the request, disqualifying himself on the ground of his previous relationship with one of the parties as a legal adviser. By a majority the High Court held that the deputy president should not have disqualified himself and granted mandamus to compel him to sit. (incorporating relevant footnotes) ………………….. Generally a prior relationship of legal adviser and client does not disqualify the former adviser, on becoming a member of a tribunal or court, from sitting in proceedings before that tribunal or court to which the former client is a party. Re Polites; Ex parte Hoyts Corp Pty Ltd [1991] HCA 25; (199 1) 173 CLR 78 at 87. (at [12]-[13]) (NOTE: There appears to be a slight error in this extract from Professor Allars' paper. The judgement in Re Polites was not by a majority, but by a unanimous judgement of a three member High Court). 1. Wright J then referred to the judgement of Mildren J of the Supreme Court of the Northern Territory in Precision Fabrication Pty Ltd v Roadcom Pty Ltd [(1991) 104 FLR 260] wherein his Honour distilled the relevant legal principles to be applied to disqualification applications. One of the principles enunciated by Mildren J, at paragraph 6, stated in part: 6. It is common practice for a judge to disqualify himself where a former client of his, whilst at the bar, becomes a litigant in a matter to come before him: Lyle v Christian Ivanoff Pty Ltd (1977) 16 SASR 476 at 484, per Bright J. (at [14]) 1. Wright J then summarised the relevant principles in the following terms (at [15]): 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. (2) For example, a prior relationship of legal adviser and client does not, generally speaking, disqualify the former adviser, on becoming a member of a tribunal or court, from sitting in proceedings before that tribunal or court to which the former client is a party. Similarly, there is no rule of practice that a judge who has previously appeared as counsel against a party who is now a litigant in a matter to come before him or her, or has appeared in peripheral litigation involving that party, should disqualify himself or herself merely on that account. However, if the judge has previously been briefed as counsel in the matter before the court he or she should not sit. Similarly, if the correctness or appropriateness of advice given to a client is a live issue for determination by the tribunal or court, the position is also very different. The erstwhile legal adviser should not sit. (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, rather than that he will decide the case adversely or favourably to one party or the other. 1. It should again be noted that the application that Wright J disqualify himself was made prior to the commencement of the hearing proper, unlike the situation in Re Polites. Further, it does not appear that the time gap of several years between his Honour's previous role as prosecutor against Concrete Constructions Group and the disqualification application was accorded any relevance by his Honour. 2. In Crewdson v New South Wales Department of Community Services and Ors (No 13) ([2006] NSWIRComm 50 (30 March 2006)) the then Vice-President of the Commission, Walton J, dealt with an apprehended bias disqualification application in the following manner: 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 ] HCA 48; (2000) 20 1 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] HCA 39; (19 86) 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 ] HCA 39; (1 976) 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 [19 91] HCA 25; (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. [19 49] 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). 1. In applying the principles enunciated in the authorities referred to above and, in particular, the four principles summarised by Wright J in Workcover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited, I have determined to reject the application that I disqualify myself from hearing and determining the four unfair dismissal applications presently before the Commission. I do so for the following reasons: 1. Prior to my appointment to this Commission, I acted in my capacity as a barrister in a number of matters for the USU, including two matters against the Council. However, none of those matters involved any of the issues, or classes of issues, that are likely to arise for determination in the four unfair dismissal applications presently before the Commission. 2. The authorities referred to above make it clear that prior involvement as a lawyer for one of the parties in the proceedings is not, of itself, sufficient to ground an apprehended bias application. This is particularly so in the case of an industrial tribunal, such as this Commission. 3. Whilst I accept the force of the Council's submissions that the facts of this case are unusual, given that I have so recently acted for the USU against the Council in two separate sets of proceedings, I do not accept that, in applying the tests as set out in the authorities, those facts are sufficient to establish a reasonable apprehension of bias on my part. 4. Given the current number of Commission members, if I disqualify myself from hearing these applications, it is possible that the Commission's capacity to hear and determine the applications, including any appeal proceedings which might arise from such determinations, could be compromised. 5. These applications are currently listed for hearing before me on seven consecutive hearing days commencing on Monday 14 March 2016. This is almost eight months since the date of the dismissals. Acceptance by me of the Council's disqualification application would inevitably lead to further delay in the finalisation of these applications. Such further delay does not serve the interests of justice and would be inconsistent with the obligations imposed upon the Commission by the Act and, in particular, by sections 162 and 163 as well as the objects of the Act set out in section 3. 6. In particular, I read the judgement of the High Court in Re Polites as a clear directive to members of industrial tribunals, such as this Commission, to decline from acceding to disqualification applications based only upon some prior involvement as a lawyer for one of the parties in the proceedings before the tribunal. 1. For these reasons, the disqualification application by the Council is dismissed. 2. The proceedings are adjourned for hearing before the Commission as presently constituted commencing on Monday 14 March 2016. ********** Amendments 15 January 2016 - Paragraph 7 numbering deleted. Subsequent paragraphs renumbered accordingly. 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. Decision last updated: 15 January 2016