Candetti Constructions Pty Ltd v Fonteyn

Candetti Constructions Pty Ltd sought permission to appeal from a decision of the Full Court of the Industrial Relations Court of South Australia. The dispute concerned a charge against Candetti Constructions under the Occupational Health, Safety and Welfare Act 1986 (SA). The same Industrial Magistrate who had previously sentenced Ace Panel Systems Pty Ltd for a similar offence presided over the trial of Candetti Constructions, which pleaded not guilty. At the commencement of its trial, Candetti Constructions indicated its consent to the Magistrate continuing to hear the matter. Following a finding of guilt, Candetti Constructions appealed, arguing the Magistrate should have recused himself due to a reasonable apprehension of bias.

The legal issues before the court were whether a reasonable apprehension of bias arose on the part of the Industrial Magistrate and, if so, whether Candetti Constructions had waived its right to object to the Magistrate presiding. The Senior Judge of the Industrial Court had found that a reasonable apprehension of bias was made out and that such a right could not be waived in criminal proceedings. However, the majority of the Full Court of the Industrial Relations Court found that no appearance of bias arose and that, in any event, there was a waiver.

The High Court held that permission to appeal should be granted but the appeal dismissed. It reasoned that, in accordance with the principles established in *Nudd v R* and *Smits v Roach*, a party is generally bound by the conduct of its counsel at trial. The court emphasised that the adversarial system operates on the basis that counsel has a wide discretion in conducting proceedings, and their decisions, including the failure to object to a judicial officer presiding, bind the client. Even if an appearance of bias did arise, the court concluded that, in the circumstances, any rights arising from such an apprehension were waived by Candetti Constructions' counsel.