Bernadette Minato v Palmer Corporation Ltd

[1995] IRCA 316

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
  VI 1891 of 1995

B E T W E E N:

Muininder SANDHU
Applicant

A N D

PACIFIC DUNLOP TYRES PTY LIMITED and
GOODYEAR TYRES PTY LIMITED (t/as South Pacific Tyres)
Respondent

VI 1890 of 1995

B E T W E E N:

Paul JOGINDER
Applicant

A N D

PACIFIC DUNLOP TYRES PTY LIMITED and
GOODYEAR TYRES PTY LIMITED (t/as South Pacific Tyres)
Respondent

REASONS FOR DECISION

12 July 1995  PARKINSON JR  

These are my written reasons for decision in relation to an application made by the applicants that I disqualify myself from further hearing or determining their applications made pursuant to S170EA of the Industrial Relations Act 1988. On 7 July 1995 I informed the parties of my decision that I would not disqualify myself on the grounds of reasonable apprehension of bias. I advised that written reasons for that decision would be provided. These are those reasons.

The applicants’ counsel Mr Bingham submitted that my decisions in relation to other applications pursuant to S170EA made in relation to this respondent and in respect of the same circumstances at least in terms of timing surrounding the termination of employment, meant that a reasonable apprehension of bias existed.

In previous decisions concerning applicants whose employment was terminated by this respondent in the same time frame as that of the current applicants, I have made various findings of fact in relation to both the process adopted by the respondent and in respect of the application of that process to various individual applicants. 

In the present proceedings as far as I am able to establish from Mr Bingham’s submissions and the limited affidavit evidence filed in support of the motion, the applicants’ case is that their employment was terminated during the course of the process adopted by the respondent, but that they were selected for redundancy because of their race. The issue in these proceedings is the application of the selection criteria for redundancy to the applicants, either by their supervisor or in the process of the adoption of the broad scale restructuring program. The applicants submit that because I have in previous decisions made findings as to the bona fides of the restructuring program, in the circumstances this establishes a basis for a reasonable apprehension of bias in the applicants.

During the course of this application I was careful to ascertain from counsel for the applicants exactly what aspect of the termination and its circumstances formed the basis for the application being made, and the complaint by the applicants as to the termination.  It being true to say that I have already, on the evidence in the previous proceedings, made findings as to the bona fides of the process of restructuring adopted by the respondent.  This finding did not however extend to any general finding in relation to other aspect of the process, including its implementation and the selection of the persons to be made redundant.

It is these latter matters which are the substance of the present applicants’ complaint in the proceedings.  It might be also said that to the extent that the restructuring process enabled selection on the basis of race, the applicants are contesting the bona fides of the restructuring process. Although this latter submission was not expressly put, it is to be gleaned from the submissions made by counsel for the applicants. I accept that this may well be part of the case of the applicants. I do not accept however that either of these matters are matters upon which I have ruled in any previous proceedings.

Nor do I accept the submission for the applicants that merely by virtue of finding in favour of the respondent in two of the three previous matters, I have by implication made findings as to the credit of witnesses to be the subject of cross-examination as to their credit in the present proceedings.  The applicants’ counsel  was unable to point to any aspect of the decisions previously made which made any finding as to truth or credit or veracity in relation to any witness to be called in the present proceedings. Further, no example was given of issues of credit or truth or veracity raised with witnesses in the course of the previous proceedings which might give rise to an implication that such a finding was made in the previous decisions.

The applicants’ counsel referred to the decision of the High Court in Livesey v NSW Bar Association (1983) 151 CLR 288 wherein the court established a number of principles in relation to such applications. The respondent’s counsel referred to the decision of the High Court in Re Polites; ex parte The Hoyts Corporation Pty Ltd (1991) 100 ALR 634 and Re JRL; ex parte CJL (1986) 161 CLR 342. In the former decision, there was an extensive consideration of the principles established in Livesey. The relevant paragraph may be found at page 352 and is also reproduced in Polites at page 639:

“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 led to an increase in the frequency of applications by   litigants that judicial officers should disqualify themselves from      sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct         during the litigation. It needs to be said loudly and clearly that the        ground of disqualification is a reasonable apprehension that the     judicial officer will not decide the case impartially or without      prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions 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.”

Finally, it is in the nature of the proceedings arising under the Industrial Relations Act 1988 that there will frequently be cases where a number of litigants will make claims in relation to or arising out of similar or the same circumstances of termination of employment. It is not uncommon or unusual for the matters to be heard and determined by a judicial officer who has a familiarity with the background to the matter. This of itself does not mean that the judicial officer, merely by that knowledge, could in the sense described in Livesey at pages 293-4, reasonably be apprehended as not bringing an impartial or unprejudiced mind to the questions involved in the proceedings.

It is for the reasons set out above that I dismissed the application made in the notice of motion filed 3 July 1995.

Addendum
At the convening of the hearing of the substantive proceedings on 12 July 1995 counsel for the applicants Ms McNiff, on instructions, renewed the application that I disqualify myself on the grounds of reasonable apprehension of bias. No additional submissions were put in relation to the basis of the application.  These reasons had not been published at that time. I refused that application and advised counsel that I was refusing the application this day for the same reasons given in these written reasons for decision. 

I certify that this and the five (5) preceding pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate:
Dated:  12 July 1995

Solicitors for the applicant:  Patrick Robinson & Co
Counsel appearing for the applicant:                  Mr P Bingham

Solicitors for the respondent:  Freehill Hollingdale & Page
Counsel appearing for the respondent:               Mr M McDonald

Date of hearing:  7 July 1995