Amani Malla v The Trustee for Lz Unit Trust 51
[2024] FWC 1472
•2 AUGUST 2024
| [2024] FWC 1472 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Amani Malla
v
The Trustee For Lz Unit Trust 51
(U2023/9787)
| DEPUTY PRESIDENT CROSS | SYDNEY, 2 AUGUST 2024 |
Application for an unfair dismissal remedy - whether matter settled – s.399A Application – application to recuse due to pre-judgment – application to recuse dismissed.
On 9 October 2023, Ms Amani Malla (the Applicant) filed a Form F2 Application for an unfair dismissal remedy (the UD Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). Ms Malla had been employed by The Trustee For Lz Unit Trust 51 (the Respondent).
An issue subsequently arose as to whether the UD Application had settled, and on 26 April 2024, the Respondent filed a Form F1 Application relying on sections 399A(1)(c), 400A and/or 587(1)(b) and/or (c) of Act (the Strike Out Application) seeking that:
(a) The Applicant’s Unfair Dismissal Application be dismissed; and
(b) The Applicant be ordered to pay the Respondent’s costs of and incidental to the Strike Out Application; and/or.
(c) The Applicant to pay the Respondent’s costs incurred from 15 December 2023 to date; and
(d) Any other order the Fair Work Commission sees fit.
The Strike Out Application particularly alleged that:[1]
(a) The UD Application ought to be dismissed on the basis that the Applicant has unreasonably failed to discontinue the application after a settlement agreement had been concluded pursuant to section 399(1)(c) of the Act.
(b) Further and in the alternative, the UD Application was therefore frivolous, vexatious or without reasonable prospects of success within the meaning of section 587(1)(b) and/or (c) of the Act and on that basis, ought to be dismissed.
On 14 May 2024, the Applicant filed an application seeking that the Commission as presently constituted (the Commission) recuse itself from determining the Strike Out Application (the Recusal Application) having prejudged the issue to be determined in the Strike Out Application.
The Recusal Application was heard on 5 June 2024 and is the subject of this decision.
Background
On 27 November 2023, the UD Application was listed to settle directions for the filing of materials and the hearing of the UD Application, and a possible member assisted conciliation. Directions were agreed, and with the consent of the parties a member assisted conciliation occurred. At the directions hearing the Applicant was represented by a Solicitor, Mr Jones, and the Respondent was represented by Ms Schumacher, a Special Counsel of Barry Neilsen Law.
At the conclusion of the member assisted conciliation the Commission’s transcript recording was recommenced, and the following transcript was recorded:[2]
THE DEPUTY PRESIDENT: Thank you. So the terms of settlement as I understand them are as follows –
(1) the applicant will be permitted to attend the respondent's premises to uplift her teaching resources. And it is understood that such attendance will be accompanied by an escort.
(2) The respondent shall provide the applicant with the letter of termination that will provide for resignation.
MR JONES: Well, we don't require resignation.
THE DEPUTY PRESIDENT: Okay, that's fine.
(1) The respondent shall pay to the applicant two weeks' pay, subject to the deduction of taxation.
(2) The parties will enter into a deed of release that will provide for mutual non-disparagement, mutual confidentiality and mutual releases but for workers' compensation and superannuation.
Now, Mr Jones, are they the terms upon which the applicant is agreed to settle her claim?
MR JONES: Yes.
THE DEPUTY PRESIDENT: Thank you. Ms Schumacher, are they the terms upon which the respondent has agreed to settle the applicant's claim?
MS SCHUMACHER: Yes.
THE DEPUTY PRESIDENT: Well, I note that the parties will have to engross a deed before payment is made but upon the parties doing so, if a notice of discontinuance can be filed with my Chambers so that the matter can be vacated? I will not be issuing the draft directions agreed to at the beginning of this hearing and I await the provision of the notice of discontinuance.
MR JONES: Thank you.
THE DEPUTY PRESIDENT: Anything Mr Jones?
MR JONES: That's fine. Thank you, Deputy President.
THE DEPUTY PRESIDENT: Ms Schumacher?
MS SCHUMACHER: No, that's all. Thank you very much, Deputy President.
On Thursday 21 December 2023, my Chambers received correspondence from the Applicant’s Solicitor, Mr Jones, advising:
Good Afternoon,
We have attempted to resolve the matter of behalf of the Applicant. However, some issues or items remain outstanding which the Respondent cannot locate.
The Applicant is unwilling to finalise the matter whilst these personal items are outstanding. This office cannot take this matter nay further on that basis the further conduct of this matter will be by the Applicant herself.
Regards,
Nic Jones
Gorman Jones Lawyers
Further correspondence passed between the parties and the Commission, and the matter was listed for further directions hearing on 31 January 2024. In that directions hearing the following transcript was recorded:[3]
THE DEPUTY PRESIDENT: This matter has been brought back on because I understand there has been difficulties with enacting the settlement. Is that the case, Ms Malla?
MS MALLA: Correct. And because they haven't released all of my items.
THE DEPUTY PRESIDENT: And there's been an explanation as to that in an email received from the respondent.
MS MALLA: Well, like I said in the email everything was still in the office on the day that they dismissed me. So I would need an explanation to where my belongings are.
MS SCHUMACHER: If I may?
THE DEPUTY PRESIDENT: Yes.
MS SCHUMACHER: I think the difficulty has arisen because, in part, the respondent's purchased this business and all of the assets that were included in the business. And the applicant is now saying that various items, including for instance drawer units, trellis and various resources were actually her personal items. And the difficulty is that the respondent was not aware that there were certain items within the premises of that nature that were not part of the business that it was purchasing. And so it's treated all items within the business as it's own items.
It isn't able to now verify that that's correct that the applicant owned those items and hadn't been reimbursed by the previous owners for those items. And whilst it's gone through to look for them it's not able to find all of the items that are on Ms Malla's list. A large number of the items were found and were returned and there is a notebook that will be posted to the applicant. But the other items, whilst the respondent has searched for them it's simply not able to find those items and it may be because it believes those items were part of the business that it's dealt with them as part of – as items that they own.
MS MALLA: Sorry. I am going to stop you there. They actually were purchased by myself so the business did not purchase those.
MS SCHUMACHER: That may be the case but that's not something that the respondent was able to know.
THE DEPUTY PRESIDENT: Well, let me be abundantly clear. There was a settlement of the unfair dismissal claim. That involved the applicant attending with an escort and obtaining what she said was hers. Now if there's disputes about ownership of property that's a matter for the local court. The unfair dismissal was settled on terms that involved allowing a resignation of termination, two weeks' pay and the execution of the deed of release.
Now, am I correct in understanding that there are problems with the deed of release, Ms Malla?
MS MALLA: Correct.
[Emphasis added]
The above underlined words are the words that the Applicant relies upon as constituting prejudgment (the Impugned Words). The directions hearing continued for around 15 minutes more, and traversed issues regarding the contents of the Deed of Release, an alleged three day underpayment, and the return of items said to belong to the Applicant.
Other transcript of 31 January 2024, that is not relied upon as constituting prejudgment, but which would seem to be relevant, includes the following (emphasis added):[4]
THE DEPUTY PRESIDENT: Well, let me be abundantly clear. On the last occasion when there was a settlement you were represented by Mr Jones.
MS MALLA: Mm-hm.
THE DEPUTY PRESIDENT: And he, as a lawyer, on your behalf settled your case on terms. Now, that doesn't mean that you can simply walk away from that. That's a contract. A binding contract what was said at the time.
MS MALLA: A contract for what?
THE DEPUTY PRESIDENT: Settlement of your claim.
MS MALLA: For them firing me for no reason?
THE DEPUTY PRESIDENT: No settling the claim that you had made.
MS MALLA: It's not settled in my eyes.
THE DEPUTY PRESIDENT: It is settled. Because on the last occasion, Mr Jones, on behalf of you indicated that the terms of settlement were acceptable.
MS MALLA: Mr Jones no longer represents me. Mr Jones no longer represents me.
THE DEPUTY PRESIDENT: Well, that doesn't mean that you start again. Mr Jones was representing you at the relevant time when you settled the case.
MS MALLA: Well, let me just go back to your email where you said that the case will be closed if we hadn't – like nothing else to say. Sorry, I can't remember the words that you said in there. So what's the difference between you closing the case yourself, than me saying that I don't want to sign the deed because I don't agree with it. I have been bullied. I have been harassed. I have been put – let down – like in so many ways after nearly three weeks of the company taking over that's all I went through. And I am still going through it now. They're holding my items against me. I know exactly where they are. Not to mention when they took over, they personally put items in the bin and destroyed it while I was there. So if you can't tell me that this is bullying and harassment and I have to sign a deed that I don't agree with – I'm just lost for words.
MS SCHUMACHER: Deputy President if it assists the matter to settle we would be happy to use the Fair Work Commission if that – a summary that would be more – if Ms Malla would be more comfortable with the Fair Work Commission terms.
THE DEPUTY PRESIDENT: Yes. You can. Ms Malla there are standard terms of settlement as opposed to a deed of release. And what Ms Schumacher is saying well that can be used in lieu of the deed of release that you have.
MS MALLA: Can you explain that more please?
THE DEPUTY PRESIDENT: There are terms of settlement.
MS MALLA: Mm-hm.
THE DEPUTY PRESIDENT: That are generic.
MS MALLA: Mm-hm.
THE DEPUTY PRESIDENT: That outline settlements. And frankly, you just fill in – for example, in your case.
MS MALLA: Mm-hm.
THE DEPUTY PRESIDENT: The compensation is two weeks' pay subject to the deduction of taxation. It would note, I think – the standard terms note mutual non-disparagement and confidentiality - - -
MS MALLA: And what about the - - -
THE DEPUTY PRESIDENT: - - -and the release of all claims but for workers' compensation and superannuation.
MS MALLA: And what about the items that are missing?
THE DEPUTY PRESIDENT: That's a matter for the local court.
MS MALLA: I understand you said that. Yes.
THE DEPUTY PRESIDENT: I'm here to determine unfair dismissals and that was – my task was resolved - - -
MS MALLA: Mm-hm.
THE DEPUTY PRESIDENT: - - -by the settlement that was reached. The respondent, I'm quite sure, wants to pay you two weeks' pay and be done with this matter. Now, you're saying the deed of release is a problem. Ms Schumacher has said well she can provide the terms in a basic terms of settlement document. And upon you signing that document then you will be paid the pay – the two weeks' pay. Is that acceptable?
MS MALLA: I'm not sure. I'll have to think about it.
THE DEPUTY PRESIDENT: And I have been very clear in the sense of if a matter is settled, it is settled. There's a binding agreement. Now you can attempt to argue against that if you wish.
MS MALLA: Mm-hm.
THE DEPUTY PRESIDENT: But having been involved in what occurred and having recorded it in transcript the terms of settlement seemed very clear.
MS MALLA: To one of the parties.
THE DEPUTY PRESIDENT: To me.
MS MALLA: Mm.
THE DEPUTY PRESIDENT: Now if you need to go and get advice, what I have just put to you you can. But I think I have made it abundantly clear. It's time to complete the settlement - - -
….
MS SCHUMACHER: Deputy President if it assists the matter to settle we would be happy to use the Fair Work Commission if that – a summary that would be more – if Ms Malla would be more comfortable with the Fair Work Commission terms.
THE DEPUTY PRESIDENT: Yes. You can. Ms Malla there are standard terms of settlement as opposed to a deed of release. And what Ms Schumacher is saying well that can be used in lieu of the deed of release that you have.
MS MALLA: Can you explain that more please?
THE DEPUTY PRESIDENT: There are terms of settlement.
MS MALLA: Mm-hm.
THE DEPUTY PRESIDENT: That are generic.
MS MALLA: Mm-hm.
THE DEPUTY PRESIDENT: That outline settlements. And frankly, you just fill in – for example, in your case.
MS MALLA: Mm-hm.
THE DEPUTY PRESIDENT: The compensation is two weeks' pay subject to the deduction of taxation. It would note, I think – the standard terms note mutual non-disparagement and confidentiality - - -
MS MALLA: And what about the - - -
THE DEPUTY PRESIDENT: - - -and the release of all claims but for workers' compensation and superannuation.
MS MALLA: And what about the items that are missing?
THE DEPUTY PRESIDENT: That's a matter for the local court.
MS MALLA: I understand you said that. Yes.
THE DEPUTY PRESIDENT: I'm here to determine unfair dismissals and that was – my task was resolved - - -
MS MALLA: Mm-hm.
THE DEPUTY PRESIDENT: - - -by the settlement that was reached. The respondent, I'm quite sure, wants to pay you two weeks' pay and be done with this matter. Now, you're saying the deed of release is a problem. Ms Schumacher has said well she can provide the terms in a basic terms of settlement document. And upon you signing that document then you will be paid the pay – the two weeks' pay. Is that acceptable?
MS MALLA: I'm not sure. I'll have to think about it.
THE DEPUTY PRESIDENT: And I have been very clear in the sense of if a matter is settled, it is settled. There's a binding agreement. Now you can attempt to argue against that if you wish.
MS MALLA: Mm-hm.
THE DEPUTY PRESIDENT: But having been involved in what occurred and having recorded it in transcript the terms of settlement seemed very clear.
MS MALLA: To one of the parties.
THE DEPUTY PRESIDENT: To me.
…
THE DEPUTY PRESIDENT: Well, Ms Malla, I've tried to explain to you how these settlements work - - -
MS MALLA: So - - -
THE DEPUTY PRESIDENT: - - -and how they're enacted and how deeds of release work and how terms of settlement work.
MS MALLA: Okay.
THE DEPUTY PRESIDENT: You can take my advice if you wish. If you do not wish then it would seem that steps will – well, I won't outline the steps that we'll follow. It's a matter for you parties. But I can simply advise that one cannot simply just walk away from agreements and expect to be able to run one's case. But you can take that advice if you wish. Otherwise, anything further from you Ms Schumacher?
MS SCHUMACHER: No, Deputy President. We simply wish to complete the settlement that was agreed between the parties and I think it's everyone's best interests to complete the settlement, pay the settlement moneys and for everyone to move on with their lives.
THE DEPUTY PRESIDENT: Well, if you can send over the standard – the terms of settlement in this case with the standard Fair Work Commission terms then at least Ms Malla can have a look at that.
MS SCHUMACHER: I will circulate those, Deputy President, and hopefully they're on acceptable terms and can be executed.
THE DEPUTY PRESIDENT: Okay. Anything further today, Ms Malla?
MS MALLA: Sorry?
THE DEPUTY PRESIDENT: Is there anything further you wish to put today?
MS MALLA: So with the unfair dismissal – so the unfair dismissal that was placed through by myself due to the reasons of the unfair dismissal and all of the evidence provided that it is unfair what happens with that? And all of the allegations that they made against me. What happens with that? They terminated me under circumstances that are untrue. What happens with this? This is what – like I mean - - -
THE DEPUTY PRESIDENT: You settled that claim. What I have asked Ms Schumacher to do is to send over to you the generic terms of settlement document with a hope that that will resolve the concerns that you have about the deed of release. But otherwise the matter is settled.
MS MALLA: The matter is not settled. Okay. But thank you.
[Emphasis added]
On 25 March 2024, the matter was brought on again by the Commission, settlement having not been concluded. On that occasion Ms Schumacher continued to represent the Respondent and Mr K Bolwell, a Solicitor of WorkLawyers, appeared for the Applicant. In those proceedings the following transcript was recorded:
THE DEPUTY PRESIDENT: Okay. Permission is formally granted. This matter has been before the Commission a number of times and I note that there was previously agreement to settle the matter and there has been some discussion both in hearings or listings and in correspondence regarding the production of or the provision of materials that were said to be owned by the applicant. Where's the matter at now, Mr Bolwell?
MR BOLWELL: Thank you, Deputy President. The two paths that are before you. One is we've put a settlement offer to the respondent in writing on 21 March and reasonably we haven't had a response back yet, but we expect one sooner or later.
The other path is consistent with the notice of listing and the proposed directions in that notice of listing whereby if we can't get a settlement then we seek to take the matter to arbitration by way of a hearing, Deputy President.
THE DEPUTY PRESIDENT: Well, I don't know that that second path naturally follows either from my directions or based on the history of the matter but Ms Schumacher what do you have to say?
MS SCHUMACHER: We haven't had an opportunity to take – well – we haven't had an opportunity to respond as yet to the applicant's settlement offer. In respect of the matter it would still be our preference to resolve the matter today. I was of the understanding from the notice of listing that you may be minded to assist the parties with a further member assisted conciliation conference. And that seems like a sensible way forward to us to try and seek to settle the matter today.
Notwithstanding it appears that the in principle settlement that was previously reached has fallen over. But there has been a lot of correspondence backwards and forwards about personal items. There seems to be some movement of goal posts in relation to those but it would be our preference to try and wrap everything up if we can.
THE DEPUTY PRESIDENT: Is your proposal that I speak again separately with the parties to see what their positions are?
MS SCHUMACHER: Yes, it is.
THE DEPUTY PRESIDENT: And is that your position Mr Bolwell?
MR BOLWELL: Yes, Deputy President.
THE DEPUTY PRESIDENT: Okay. Well, I'll speak with the applicant first. So, Ms Schumacher, if you can leave the call - - -
[Emphasis added]
At the conclusion of the off-record discussions, the proceedings on 25 March 2024 resumed and the following transcript was recorded (Emphasis added):[5]
I have asked Ms Schumacher to confirm in writing exactly the terms of the offer so there can be no question about what it is that you are considering. I have also raised with the respondent the provision to both parties of the video of the two former occurrences before me so that there can be a full understanding by the parties of what occurred. Because, particularly for you, Mr Bolwell you're new into the matter. So it might assist you. Do you have any objection with the respondent having access to that?
MR BOLWELL: Well, it's a matter for you, Commissioner. It's your commission. So I think that it would be helpful to work out precise terms of what happened before if it comes to it. So, yes, that's fine.
THE DEPUTY PRESIDENT: Yes. Well, then that video will be issued to both parties. I don't intend to make directions because I note that it's anticipated that if the matter doesn't resolve there will be an application by the respondent to strike the matter out. Upon receipt of that directions will be issued to the parties if it occurs and the matter will be programmed for hearing of the application filed.
Anything further today, Mr Bolwell?
MR BOLWELL: Is the Deputy President minded to issue a recommendation to my client?
THE DEPUTY PRESIDENT: No.
MR BOLWELL: Thank you.
THE DEPUTY PRESIDENT: Anything further today, Ms Schumacher?
MS SCHUMACHER: No. Nothing from us.
THE DEPUTY PRESIDENT: Okay, well if the parties could communicate to my Chambers after Thursday afternoon as to the disposition of the matter. The matter is adjourned indefinitely. Thank you very much.
[Emphasis added]
There was no subsequent resolution of the matter and on 26 April 2024, the Respondent filed the Strike Out Application. Directions were made for the filing of materials in the Strike Out Application on 29 April 2024. Those directions were vacated before the Applicant filed any materials due to the filing of the Recusal Application.
On 14 May 2024, the Applicant filed the Recusal Application, which was heard on 5 June 2024 (the Hearing). While the Respondent attended the hearing of the Recusal Application, they did not wish to make any submissions.
Applicant’s Submission
The Applicant submitted that the relevant requirement is for a tribunal to bring an unprejudiced mind to the matter at hand. The Applicant referred to R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (Angliss Group), wherein the High Court held:[6]
Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.
The Applicant submitted that a range of Superior Courts and Tribunals have applied and refined the decision of Angliss Group in a way that is more strict, with the authorities now only requiring a “reasonable suspicion of pre-judgment” and not the more flexible “unprejudiced mind”. The Applicant referred to the Judgment of Mason CJ and McHugh J in Webb v The Queen, (Webb) where their Honours found:
"When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case . ... The principle behind the reasonable apprehension or suspicion test is that it is of `fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done'."
The Applicant contended the Impugned Words went further than was permissible and allowed by the leeway provided by the High Court in Angliss Group. Instead, the Impugned Words went far further.
Consideration
This matter brings into focus the distinction between judgment and recitation of facts by a decision maker. The importance of the weight given to a decision makers view of the facts of a matter were highlighted by Mason CJ and McHugh J in Webb, where they observed:[7]
…That does not mean that the trial judge's opinions and findings are irrelevant. The fair-minded and informed observer would place great weight on the judge's view of the facts. Indeed, in many cases the fair-minded observer would be bound to evaluate the incident in terms of the judge's findings.
The matter said to be prejudged is the Strike Out Application. It is important to note that the Impugned Words were stated on 31 January 2024, almost three months before the commencement of the Strike Out Application.
On 31 January 2024, in dealing with what had become a self-represented litigant, the Commission referred to what in fact had occurred on 27 November 2023. In the Hearing the Applicant’s representative was asked whether the Impugned Words incorrectly summarised what occurred on 27 November 2023.[8] The Applicant’s position was encapsulated by the following exchange:[9]
THE DEPUTY PRESIDENT: The applicant is represented by Mr Jones - and you are, once again, getting to see how I handle my conciliations because I outlined the terms - you will see that - and then each party indicates whether what has been read onto the transcript reflects what they have settled for, which, over the page, Mr Jones does, and Ms Shinn-Margaret - which is Ms Schumacher - indicates for the respondent that they are the terms upon which they have agreed.
Now my question to you is this: the words that you complain about that are then uttered on 31 January, are you saying they do not accurately reflect the terms of settlement?
MR BOLWELL: I'm saying the next words of 31 January, they describe your understanding of the settlement having happened, and that's the line that you're not permitted to cross, as I see it, under the High Court decisions of Ebner, et cetera, because there is a dispute about settlement.
THE DEPUTY PRESIDENT: Is it?
MR BOLWELL: Yes. Otherwise, my client would have signed the deed, would have got the property back, and would have left with two weeks' pay with a smile on her face, but she hasn't done that. Now, whether she's right or wrong - it might even be the case that we lose the battle and lose the war - but - I don't mean it disrespectfully - if we are stuck with you, we are certainly going to lose the war because you are going to find that she settled.
THE DEPUTY PRESIDENT: I still don't know what your case is.
MR BOLWELL: Well, you don't need to know.
The principles relating to disqualification on the ground of apprehended bias were summarised by Middleton J in Kirby v Centro Properties Limited (No 2).[10] Of particular
relevance to this matter is the following:
“The principles respecting disqualification for apprehended bias represent a balance between two competing policy considerations, namely the maintenance of public confidence in the judicial system, by ensuring that the public perceive that cases are decided only by reference to the evidence before the court, and the need for judges to discharge their duties unless good reason is shown.
…
In Ebner, the majority in the High Court affirmed that the application of this test involves two steps. First, there must be identification of what it is that might lead a judge to decide the particular questions before him or her other than on the merits. Second, having identified the factors or circumstances that might influence a departure from meritorious decision-making, it is “no less important” to articulate the “logical connection” between those factors and the fear that the judge might not apply proper judicial method (that is, merits based decision-making) in resolving the controversy on the facts and the law (at [8]).
…
Needless to say, disqualification of a judge by reason of prejudgment must be “firmly established”: Cabcharge at [25]; Re JRL at 352. Judges should not accede too readily to recusal by reason of apprehended bias.”(Emphasis added).
Where an apprehension of bias is said to arise by reason of prejudgment, the principles outlined by the Full Court of the Federal Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission,[11] apply:
“The test for apprehended bias is the same wherever it arises, although the context in which it falls to be applied will clearly affect how the test is applied. One particular occasion of apprehended bias is where it is said, as Cabcharge had alleged here, that the judge has relevantly prejudged matters in controversy. In this context, disqualifying bias results in a state of mind that is not open to persuasion. That is, in this species of apprehended bias, “[t]he state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 … at 531-2 [71]-[72] per Gleeson CJ and Gummow J. That is, in such a case as the present, it must be firmly established that a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of prejudgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view: see Re JRL; Ex parte CJL (1986) 161 CLR 342 … at 352 per Mason J.”
In this matter, it cannot reasonably be said that there exists a state of mind that is not open to persuasion because the case sought to be advanced by the Applicant remains unknown due to:
(a) The directions for the filing of the materials in support of the Strike Out Application being vacated upon the filing of the Recusal Application; and
(b) The position of the Applicant that the Commission does not need to know the case it will seek to advance in order for it to be prejudged.
The identified factor of prejudgment is the Impugned Words. The Impugned Words were merely statements of what factually occurred on 27 November 2023. Insofar as the Impugned Words are criticised for describing the Commission’s understanding of a settlement having happened, such an expression of understanding is unremarkable where the Applicant’s then Solicitor responded to the Commission’s enquiry on 27 November 2023 as to settlement as follows:[12]
Now, Mr Jones, are they the terms upon which the applicant is agreed to settle her claim?
MR JONES: Yes.
THE DEPUTY PRESIDENT: Thank you. Ms Schumacher, are they the terms upon which the respondent has agreed to settle the applicant's claim?
MS SCHUMACHER: Yes.
In the totality of all the relevant circumstances, there is no logical connection between the Impugned Words and any reasonably apprehended deviation from the course of deciding the case in the Strike Out Application, which remains unknown, on its merits.
The Recusal Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr K Bolwell on behalf of the Applicant.
Ms L Schumacher on behalf of the Respondent.
Hearing details:
Sydney.
In-Person.
5 June 2024.
[1] Strike Out Application at [10] and [11].
[2] PN52 – PN68.
[3] PN75 – PN87.
[4] Transcript PN110 – PN147; PN122 – PN145 and PN171 – PN184.
[5] PN213 – PN222.
[6] (1969) 122 CLR 546; 1969 ALR 504, at P. 554. And Webb v R (1994) 181 CLR 41; 122 ALR 41.
[7] Webb, Judgment of Mason CJ and McHugh J, at [11].
[8] Transcript PN 96, 98, 100 and 105.
[9] Transcript PN109 to 115.
[10] (2011) 202 FCR 439, at [8] to [23].
[11] [2010] FCAFC 111 at [25].
[12] PN59 – PN62.
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