Brian Gerard "Mick" Doyle and Western Suburbs District Rugby League Football Club

[1994] IRCA 116

IN THE INDUSTRIAL RELATIONS COURT )
 OF AUSTRALIA  )

)No. NI 527 of 1994

NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN:BRIAN GERARD "MICK" DOYLE

Applicant

AND:WESTERN SUBURBS DISTRICT RUGBY LEAGUE FOOTBALL CLUB

Respondent

CORAM:WILCOX CJ

PLACE:    SYDNEY
DATE:     26 OCTOBER 1994

EXTEMPORE REASONS FOR JUDGMENT

WILCOX  CJ:  This is an application made by a notice of motion filed today whereby the respondent in a part-heard matter before Judicial Registrar Patch seeks leave to appeal against a judgment given yesterday by Moore J and an order that the further hearing of the matter before the Judicial Registrar be stayed pending the hearing of that appeal.  In my view, there is no merit in this application.

The matter that concerned Judicial Registrar Patch was whether he should accede to an application made by the respondent in the principal proceeding that he disqualify himself on the basis of apprehended bias. The apprehension of bias was said to arise out of the fact that he had read material which referred to a view expressed by a member of the Industrial Relations Commission at the conciliation conference held by the Commission pursuant to s.170ED of the Industrial Relations Act 1988. Judicial Registrar held that the material was inadmissible and rejected it. No complaint, of course, is made of this ruling. However, it is said that the fact that he read the material would now cause a reasonable observer to apprehend that he would be unable to deal with the case before him on its merits.

It seems to me that that submission cannot be upheld.  It is an everyday occurrence for judges and other judicial registrars to read evidentiary material that is tendered to them and to reject it.  Sometimes this is material in affidavits, sometimes it is in other documents.  It not infrequently happens that the rejected material contains statements which, if any notice was taken of them, might be regarded as prejudicial to one party or the other.  If it is correct to say that a person, acting judicially who reads a prejudicial statement and then rejects it, should then disqualify himself or herself from further participation in the proceeding on the ground of apprehended bias, it is no exaggeration to say that a large proportion of cases would abort in mid-hearing.  I invited counsel to direct my attention to any authority which goes as far as his proposition requires.  Not surprisingly, he was unable to cite any authority.

Counsel points out that he does not yet have the benefit of reasons for the decision of Moore J yesterday.  This means he has not been able to go through the reasoning in order to consider whether there is some question of principle.  However, I cannot think it is at all likely that there would be such a question.  The particular objection relates to the course taken by the Judicial Registrar in relation to particular material.  It is very difficult to see that any question of principle can emerge.

I was invited to take the view that, because there were no reasons, this was a sufficient reason to give leave to appeal and, in the meantime, to stay the early hearing of the part-heard case.  To accede to that submission would be to allow a party, which wished to frustrate the orderly completion of a hearing, to do so almost at will.  A point could be taken, however tendentious, and then an application made to a judge for an order interfering with the further hearing of the case.  If that application was made at a time when it was impracticable for the judge to give reasons for a decision rejecting the application - or perhaps counsel would say if it was not possible to obtain the reasons in writing so they may be adequately studied before the resumption of the part-heard case - then, on this reasoning, the matter would have to be adjourned.  I cannot imagine anything less compatible with the evident intention of the legislature that unlawful termination cases be handled in an efficient manner and finalised as soon as possible.  In my view, there is no merit in either of the applications made to me today.  I refuse the relief sought in the notice of motion.

[Counsel addressed]

Mr Moses has reminded me that he also complained of the fact that the Judicial Registrar declined to refer four questions to a judge.  The four questions can only be described as raising academic issues concerning the status of statements made by commissioners of the Industrial Relations Commission when conciliating pursuant to s.170DE, and whether the republication of such a statement constitutes a contempt of the Court.  In my view, the Judicial Registrar was correct in not referring those questions to the Court.  He had already rejected the tender of evidence about the statements, so there was no practical utility in him considering, or a judge of the Court considering, academic questions about the status of such statements or the matter of privilege.  Insofar as the questions asked about contempt of court, this was simply no concern of the Judicial Registrar.  In my view he would have erred had he acceded to the invitation that was put to him.  He would have allowed himself to be distracted from the task on which he was engaged.  Accordingly, there is no merit whatever in that attack.

[The solicitor for the applicant sought costs.]

Mr McClelland, on behalf of the applicant in the principal proceeding, has sought an order for costs of the motion. Section 347 of the Industrial Relations Act provides that a party to a proceeding shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.  For the purpose of the application of that subsection a notice of motion can constitute a proceeding.  The question, therefore, is whether the applicant on the notice of motion, that is to say, Western Suburbs District Rugby League Football Club Limited instituted the notice of motion vexatiously or without reasonable cause.

In my opinion that question should be answered in the affirmative. It seems to me abundantly clear that there was no reasonable cause for the notice of motion. It is not a question of whether or not there are deficiencies in the legislation in respect of the confidentiality of proceedings before the commission. The question is whether there is any basis for suggesting that leave should be given to appeal the decision of Moore J and, in the meantime, the further proceedings before the Deputy Registrar should be stayed. For the reasons I have already given, I think there is no merit whatever in those suggestions. This should have been obvious to the applicant in motion before filing a notice of motion. Consequently the exception in s.347 applies. I order that the applicant on the notice of motion, Western Suburbs District Rugby League Football Club Limited pay the costs incurred by the respondent to the notice of motion Brian Gerard 'Mick' Doyle in respect of the notice of motion.

I certify that this and the preceding five (5) pages
are a true copy of the Reasons for Judgment
of the Honourable Chief Justice Wilcox.

Associate:

Dated:     26 October 1994

APPEARANCES

Solicitor for the Applicant:              R McClelland of Turner Freeman

Counsel for the Respondent:               A Moses

Solicitors for the Respondent:      Marsdens

Date of hearing:  26 October 1994