Captain Anthony Lucas v Qantas Airways Limited
[2023] FWC 878
•13 APRIL 2023
| [2023] FWC 878 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Captain Anthony Lucas
v
Qantas Airways Limited
(C2023/1371)
| COMMISSIONER P RYAN | SYDNEY, 13 APRIL 2023 |
Dispute about a matter arising under the enterprise agreement – application for recusal
Introduction
On 15 March 2023 Captain Anthony Lucas (Applicant) made an application pursuant to s.739 of the Fair Work Act 2009 (FW Act) in respect of a dispute with Qantas Airways Limited (Respondent) (Application). The Applicant is the President of the Australian and International Pilots Association (AIPA).
The dispute concerns the allocation of pilots employed as Second Officer under Training (SOT) to aircraft upon completion of their training.
In the Application, the Applicant states that the dispute is about whether the allocation to aircraft should be in accordance with seniority or whether clause 19.1.2 of the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 (Agreement) means Qantas is required to obtain AIPA’s consent, so that direct allocation would be valid. Furthermore, the Application states the dispute also relates to the issue of vacancies.[1]
Clause 19.1 of the Agreement states:
19.1 Allocating pilots to an aircraft type
19.1.1 Aircraft types in this Agreement are rated in the following descending order:
(a) A380 aircraft;
(b) B747 aircraft;
(c) A330/A350 SFF aircraft, A350 aircraft and B787 aircraft;
(d) A330 aircraft.
19.1.2 Upon completion of training, a SOT will be allocated by the Company to the B787, A330 or A330/A350 SFF aircraft rather than the B747 and A380 aircraft unless there are insufficient bids from suitably qualified pilots employed prior to the commencement of clause 32.7, or otherwise agreed with the Association for operational reasons. The Association will not unreasonably withhold agreement.
On 30 March 2023, the Applicant filed a Form F1 application seeking that I recuse myself from further dealing with the Application (Recusal Application).
The Recusal Application was heard before me on 4 April 2023.
The Applicant was represented by Mr E Dalgleish, the AIPA’s head of legal. I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Respondent was represented by Mr M Follett.
A witness statement was tendered from Ms Emma Ford, a lawyer employed by the AIPA (Exhibit 1). Exhibit 1 sets out a chronology of events and attaches material such as transcripts of proceedings before the Commission, correspondence and other documents. Ms Ford was not required for cross examination.
Background
The filing of the Application followed the discontinuance of a related application for the Commission to deal with a dispute filed pursuant to s.739 of the FW Act[2] (Previous Application).
The Previous Application was filed on 25 October 2022. Following conferences before the Commission, the Previous Application was unable to be resolved and was set down for hearing on 14-16 March 2023. The questions for arbitration were developed and directions determined in a conference before the Commission on 5 December 2022.[3] The notice of listing, which included the directions and questions for arbitration, was issued to the parties on 8 December 2022.[4]
The questions for arbitration in the Previous Application were as follows:
Questions for Arbitration:
1.If there are currently sufficient bids to the A380 from suitably qualified pilots currently employed by Qantas, then is it that SOTs cannot be allocated by Qantas to the A380?
2.What obligations does clause 19.1.2 impose, if any, upon the Association, in relation to:
a.the phrase otherwise agreed with the Association for operational reasons; and
b.the phrase the Association will not unreasonably withhold agreement?
3.In relation to Qantas’ proposed allocation of SOTs to the A380:
a.has the Association unreasonably withheld its agreement; and/or
b.is the Association now unreasonably withholding its agreement?
Two of the witness statements filed on behalf of Captain Lucas as part of materials filed in reply stated that legal advice was sought from Mr Ian Neil SC. The two statements also referred to the effect of that advice and stated that the AIPA had acted on Mr Neil’s advice.
This prompted the respondent in the Previous Application, Qantas Airways Limited (QAL), to file an application for an order requiring the production of the legal advice.
The parties were given the opportunity to file submissions in support of, or in opposition to, the application for the order for production, in advance of the matter being determined at the commencement of proceedings on 14 March 2023.
At the commencement of proceedings on 14 March 2023, there was discussion about whether those parts of the witness statements that referred to the effect of that advice and that the AIPA had acted on the advice would be excised. There was no agreement between the parties on this point. QAL then abandoned the application for the order for production but sought a ruling on the admissibility of those parts of the materials filed in reply that referred to the effect of Mr Neil’s advice and that the AIPA acted upon it.[5]
After hearing from the parties on this point and taking a short adjournment, I made a ruling that those parts of the materials filed in reply that referred to the effect of Mr Neil’s advice and that the AIPA had acted upon that advice were inadmissible on the basis of relevance and that to admit those paragraphs would be unfairly prejudicial to QAL when the full context of the legal advice was not before the Commission.[6]
Following opening submissions, an issue arose as the suitability of the questions for arbitration and whether further requests by QAL pursuant to clause 19.1.2 for the AIPA’s agreement made after the filing of the Previous Application were properly before the Commission.[7]
After hearing from the parties, the following position was put to the parties: that question 3(a) would be referrable to at least the initial request by QAL and whether any requests made by QAL after the filing of the Previous Application were within the jurisdiction of the Commission would be determined as part of my consideration.[8]
Mr Dalgleish sought an adjournment to seek instructions from Captain Lucas. Upon the resumption of the proceedings, Mr Dalgleish informed me that he was instructed to immediately discontinue the Previous Application to pursue an alternative application.[9] A Form F50, notice of discontinuance was filed with my Chambers a short time later.[10] The Previous Application was concluded on that basis.
As noted above, the Application presently before the Commission was filed on 15 March 2023.
On 16 March 2023, the matter was listed for mention and directions and the parties also participated in conciliation. The matter was then adjourned until 20 March 2023 to allow the parties to have further discussions with respect to resolving the dispute.
On 17 March 2023, the Applicant filed an application pursuant to s.615 of the FW Act, requesting the President of the Commission refer the Application to a Full Bench of the Commission.
On 20 March 2023, the parties participated in a conference and conciliation before the Commission. The matter was then adjourned until 29 March 2023 to allow the parties to have further discussions with respect to resolving the dispute.
On 28 March 2023, both parties filed their proposed questions for arbitration with my Chambers.
On 29 March 2023, in a conference before the Commission, the parties advised that they have been unable to resolve the dispute. I then proceeded to deal with framing the questions for arbitration and setting the directions and hearing dates. In the absence of agreement between the parties as to the questions for arbitration, I determined that there would be two questions to be answered to resolve the dispute. The first question was set in broad terms and I provided the parties with an opportunity to submit their proposed final wording for the first question by 4:00pm that day. I advised the parties that I would settle the wording for question 1 having regard to the submissions filed. The second question was determined during the proceedings on 29 March 2023.
I also determined, after hearing from the parties, the timetable for the filing of materials and the hearing dates. The parties were advised that the notice of listing and directions would be issued once I had received the parties further submissions on the wording of question 1 and settled that question.
Both parties filed their proposed wording for question 1 later that day. The Applicant also proposed a variation to question 2.
At approximately 2:45pm on 30 March 2023, the Applicant filed the Recusal Application.
On 31 March 2023, my Chambers sent correspondence to the parties as follows:
Dear parties,
C2023/1371 - Captain Anthony Lucas v Qantas Airways Limited
I refer to the above matter.
During the proceedings before the Commission on Wednesday, 29 March 2023, the hearing dates and directions were set and were to be formally issued by the Commission following the settlement of the questions for arbitration. The parties provided their proposed wording for question 1 later that day in accordance with the direction of the Commission.
Yesterday, and prior to the notice of listing and directions being formally issued, the Applicant filed an application seeking that Commissioner Ryan recuse himself from matter C2023/1371 – Captain Anthony Lucas v Qantas Airways Limited.
Commissioner Ryan has given consideration to how the matter will proceed and advises the parties as follows:1. The notice of listing and directions for the substantive hearing will be issued shortly. The directions will include the questions for arbitration which have been settled taking into account the proposed wording submitted by the parties.
2. The recusal application filed by the Applicant will be listed for hearing at 10:00am on Tuesday, 4 April 2023 by Microsoft Teams Video. A notice of listing will be issued later today.
3. The notice of listing and directions for the substantive hearing are being issued in the normal course and the parties should not infer that any views in relation to the recusal application have been formed. In the event that the recusal application is upheld, the notice of listing and directions issued for the substantive hearing will be vacated.
Later that day, my Chambers issued a notice of listing for the substantive hearing of the Application, which included the directions and questions for arbitration.[11] The questions for arbitration are:
Questions for determination:
1. In relation to Qantas’ proposed direct allocation of 20 SOTs to the A380 in the training year ending on 30 June 2023, has the Association unreasonably withheld its agreement under clause 19.1.2 of the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 at any time during the period between on or around 14 September 2022 and on or around 28 February 2023?
2. If the answer to question 1 is yes, and Qantas directly allocates SOTs to the A380, do the by-pass provisions in clause 16 apply?
The Recusal Application
The Recusal Application seeks that I recuse myself from further dealing with the Application. The basis for the Recusal Application was set out as follows:[12]
The risk of bias is triggered by the concern as to whether the decision maker can navigate a path of impartiality in the face of evidence and submissions from both the part heard application (C2022/7094) and the related proceedings (C2023/1371).
Where there are different and potentially conflicting bodies of evidence and submissions, the risk of extraneous information such as overlapping legal and factual issues, being the commonality of the issues and the potential contamination of the extraneous information, such an approach raises a risk of bias.
In written submissions filed shortly before the hearing of the Recusal Application, the Applicant elaborated on the grounds for the Recusal Application and seeks that I recuse myself based on actual and apprehended bias with respect to the follow matters or events:
(i)That I had part-heard the Previous Application and that “where there are different and potentially conflicting bodies of evidence and submissions, the risk of extraneous information such as overlapping legal and factual issues, being the commonality of the issues and the potential contamination of the extraneous information, such an approach raises a risk of bias”;[13]
(ii)That in the Previous Application I made a ruling that those parts of Captain Lucas’ materials filed in reply that referred to the effect of Mr Neil’s advice and that the AIPA had acted upon that advice were inadmissible and that Application will require the Commission to carefully consider material previously filed, including the legal advice obtained from Mr Neil SC;[14]
(iii)That in the Previous Application there was discussion with Counsel about changing the questions for arbitration, namely question 3(b);[15]
(iv)That I have determined the questions for arbitration in the Application against the Applicant’s interests;[16] and
(v)That I issued correspondence to the parties on 31 March 2023 following the filing of the Recusal Application in which I stated that the questions for arbitration have been settled taking into account the proposed wording submitted by the parties.[17]
Relevant Legal Principles
In Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction[18] (Watpac), the Full Bench of the Commission set out the principles relating to disqualification on the ground of apprehended bias as follows:[19]
[29] The principles relating to disqualification on the ground of apprehended bias are not seriously in contest. These principles are found in Ebner v Official Trustee in Bankruptcy and were usefully summarised by Middleton J in Kirby v Centro Properties Limited (No 2) as follows:
‘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.
The apprehension of bias principle is stated in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] where Gleeson CJ, McHugh, Gummow and Hayne JJ said (subject to qualifications relating to waiver and necessity):
“... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”
The question is one of possibility (real and not remote), not probability. If there is an appropriate apprehension of bias, then the judge must disqualify himself or herself, no matter what case management considerations arise in the efficient and effective determination of a proceeding.
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]).
The mere fact that a judge has made a particular finding on a previous occasion does not necessarily give rise to an apprehension of bias. Nevertheless, in some situations previous findings may lead to disqualification and “what kind of findings will lead to relevant apprehension of bias must depend upon their significance and nature”: Gascor v Ellicott [1997] 1 VR 332 at 348 (Ormiston JA); see also at 342 (Tadgell JA with whom Brooking JA agreed); and see Cabcharge 5 at [34].
However, as the majority observed in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283, the lay observer is the “yardstick”, and in this regard:
“... the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature” (at [139]). (Emphasis in original.)
The application of these principles does not change merely because a judge expressly acknowledges at the hearing of the first proceeding that different evidence may be led in the later proceeding, casting new light on the facts he or her had found in the previous proceeding. This is assumed to occur in any event. Such an acknowledgment does not necessarily remove the impression created by reading the earlier judgment that the views there stated might influence the determination of the same issue in a later judgment: see Laurie at [145] per Heydon, Kiefel and Bell JJ. [Emphasis in reported judgement]
These principles must be carefully applied. It has been said that: “... disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party”: Cabcharge at [32]; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 (Mason J).
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.
To apply these principles in any given case is a matter of judgment and evaluation depending on the exact circumstances. Undoubtedly, the question of an apprehension of bias requires one to focus on the issues that the judge is called upon to decide - see eg British American Tobacco Australia Ltd v Gordon (2007) NSWSC 109 at [97] per Brereton J. No strict approach should be taken in identifying the legal and factual issues. The issues before a judge sought to be disqualified may well be different in some respects to those issues determined in the earlier proceeding. At the core of the inquiry is an examination of the legal and factual issues on foot and the extent to which previous findings may, in the eyes of the fair-minded lay observer, impact on the judge’s ability to decide the matter other than on its merits.
Because the test of apprehended bias involves “a fair-minded lay observer” who is observing a judge, the assumed characteristics of each need to be considered.
A judge is trained and is required “to discard the irrelevant, the immaterial and the prejudicial”: see Vakauta v Kelly (1988) 13 NSWLR 502 at 527 (McHugh JA), adopted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584-585 (Toohey J); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12] (Gleeson CJ,Gaudron, McHugh, Gummow and Hayne JJ); and Laurie at [80] (Gummow J); and at [140] (Heydon, Kiefel and Bell JJ).
As to the “reasonable observer”, in Laurie at [145], Heydon, Kiefel and Bell JJ affirmed that a reasonable observer would note the possibility of the evidentiary position changing between the previous proceeding and the subsequent proceeding.
In R v Burrell (2007) 175 A Crim R 21; [2007] NSWCCA 79 at [11], McClellan CJ at CL (with whom the other members of the New South Wales Court of Criminal Appeal agreed) stated that:
“The ordinary fair minded person understands that in the exercise of the judicial function it will be necessary, from time to time, for a judge to reconsider matters which have previously been considered or which may have been pronounced upon by that particular judge.”
In Sengupta v Holmes [2002] TLR 351, at [35]-[37], Laws LJ (Jonathan Parker LJ agreeing) stated that the fair-minded observer would recognise that a professional judge would be capable of departing from an earlier expressed opinion.
However, as I have indicated, applying these principles will be a matter of judgment and evaluation in the circumstances. The application of these principles to particular facts in earlier authorities, concerning as they do, the particular circumstances that may or may not have lead a judge to be disqualified, are not to be elevated to the “principles” to be applied. Nor is the application of the principles in any given case to be used as a gloss upon those principles. As the authorities demonstrate, including Laurie, the principles are relatively well established, but in the application of these principles reasonable minds may differ as to the result.”
(footnotes omitted)
In Construction, Forestry, Maritime, Mining and Energy Union[20], the Full Bench set out a more succinct summary of the applicable principles based upon a reasonable apprehension of bias as follows:
[12] The principles applicable to an application for recusal based upon a reasonable apprehension of bias were comprehensively stated in the judgment of Gleeson CJ and McHugh, Gummow and Hayne JJ in the High Court decision in Ebner. In summary, as relevant to the CFMMEU’s recusal application:
• the governing principle is that a decision-maker is disqualified if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide;
• deciding whether a decision-maker might not bring an impartial mind to the resolution of a question that had not yet been determined is a question of possibility (real and not remote), not one of probability or prediction;
• the application of the apprehension of bias principle requires two steps: (1) identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits; and (2) an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits;
• only once these two steps are undertaken can the reasonableness of the asserted apprehension of bias be assessed; and
• it is not possible to state in a categorical form the circumstances in which a decision-maker may properly decline to sit, since relevant circumstances will vary.
In the decision of the Full Court of the Federal Court of Australia in Getswift Limited v Webb[21], the Full Court summarised the four categories of case in which the impartiality of a court may be, or may appear to be compromised, as identified by Deane J in Webb v The Queen[22], as follows:[23]
(1) interest – where the judge has an interest in the proceedings, whether pecuniary
or otherwise, giving rise to a reasonable apprehension of prejudice, partiality or prejudgment;
(2)conduct – where the judge has engaged in conduct in the course of, or outside, the proceedings, giving rise to such an apprehension of bias (including prejudgment);
(3)association – where the judge has a direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings; and
(4)extraneous information – where the judge has knowledge of some prejudicial but inadmissible fact or circumstance giving rise to the apprehension of bias.
The Applicant also relies on actual bias. Actual bias is different to an apprehension of bias. “A claim of actual bias requires proof that the decision-maker approached the issues with a closed mind or had prejudged the matter and for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand.”[24]
Demonstrating actual bias carries a heavy onus and is difficult to prove.[25] Actual bias is assessed by reference to conclusions that might reasonably be drawn from evidence about the actual views and behaviour of the decision-maker and requires clear and direct evidence that the decision-maker was in fact biased.[26]
Summary of the Applicant’s Submissions
The Applicant submitted that a person making an application to the Commission is entitled to a fair hearing and to have their case determined on its merits.
The Applicant submitted that it is a well-established principle that subsequent related proceedings should not be allocated to and heard by the same decision-maker or Judge who has presided over the related proceedings a short time before.
The Applicant submitted that in these proceedings, the risk of bias is triggered by the concern as to whether the decision-maker can navigate a path of impartiality in the face of the evidence and submissions from both the Previous Application and the matter that is presently before the Commission.
In particular, the Applicant submitted that the determination of the questions for arbitration in both matters, the ruling on the admissibility of the legal advice of Mr Neil SC, and the discussion with Counsel about changing the questions for arbitration in the Previous Application, form a sufficient basis for me to recuse myself on the basis of actual or apprehended bias.
In relation to the legal advice ruling, the Applicant submitted that there was no prejudice to the Respondent and that the existence of the legal advice was relevant to whether the actions of the AIPA were reasonable. In support of this submission, the Applicant cited the decisions in Mann v Carnell (1999) 201 CLR 1 (Mann) and Secure Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51.
In relation to the changing of the questions for arbitration in the Previous Application, the Applicant submitted that this was not agreed and that the Applicant was ‘caught off guard and by surprise’ that the Respondent’s case was limited to any requests made pursuant to clause 19.1.2 of the Agreement up to 14 September 2022.
The Applicant submitted that where there are different and potentially conflicting bodies of evidence and submissions, the risk of extraneous information such as overlapping legal and factual issues raises the risk of bias.
The Applicant cited GetSwift where the Full Court observed that a reasonable apprehension of bias may arise from the decision-maker receiving extraneous information, including knowledge of some prejudicial but inadmissible fact or circumstance. This can arise even in circumstances where the decision-maker has not consciously considered the extraneous material because of “sub-conscious” influence.[27]
In a slightly different context of Advocate and Judge, the Applicant cited the decision in Isbester v Knox City Council[28], where His Honour, Gageler J observed:
[r]arely could a fair-minded observer not think it appropriate to say of a person: ‘[i]f he is an accuser he must not be a Judge’. That is because a person who has been the adversary of another person in the same or related proceedings can ordinarily be expected to have developed in that role a frame of mind which is incompatible with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations relevant to the making of a decision which has the potential adversely to affect interests of that other person.
With reference to relevant authorities[29] and the Commission’s Fair Hearings Practice Note, the Applicant submitted that:
· I was the decision-maker who part heard the Previous Application;
· I have knowledge of the parties’ submission and evidence dependent of both sets of proceedings;
· The Application will require me to carefully consider the material previously filed, including the legal advice of Mr Neil SC and jurisdictional questions to even hear the matter on the basis of the questions for arbitration; and
· A reasonable minded member of the public might reasonably apprehend that I will not bring an impartial and unprejudiced mind to the resolution of the questions for arbitration given the views expressed in the Previous Application.
The Applicant submitted that in relation to the subconscious influence of extraneous information received by a primary Judge (or decision-maker) in a prior proceeding, it is not necessary to show that the information has in fact worked to the prejudice of the applicant, it is enough that it might do so.[30]
The Applicant submitted that while it is generally the court’s view of the public view, not the court’s own view which is determinative, in Livesey v New South Wales Association[31], it was held that a party’s view may, in particular circumstances, be relevant as to whether a reasonable apprehension of bias or prejudgement exists.
In relation to actual bias, the Applicant referred to the Commission’s ‘preference’ of the Respondent’s questions for arbitration over the Applicant’s notwithstanding that it was the Applicant who filed the Application. The Applicant submitted that in those circumstances it is the Applicant that determines the questions for arbitration. The Applicant submitted that the questions for arbitration determined or settled by the Commission are ‘loaded’ where the facts are presupposed by the question.
Summary of the Respondent’s Submissions
The Respondent submitted that the Recusal Application is completely lacking in merit and an attempt to delay the resolution of the dispute.
The Respondent submitted that the Recusal Application is premised upon a sweeping proposition that a Member of the Commission cannot deal with the same, or related matters twice.
With reference to relevant authorities[32], the Respondent submitted that the four categories of case giving rise to an apprehension of bias are well established.
In relation to the category of interest the Respondent submitted that the Applicant has not identified any direct or indirect interest, pecuniary or otherwise, which would give rise to an apprehension of bias.
In relation to the category of conduct, the Respondent submitted that the only conduct that is relevant to this category is the Commission’s determination of questions for arbitration and the legal advice ruling in the Previous Application. The Respondent submitted that the determination or setting of the questions for arbitration is a simple exercise within the Commission’s decision-making authority in the context of the Commission’s general control over the conduct of proceedings before it.
The Respondent submitted that the Applicant’s contention regarding the legal advice ruling goes no higher than a complaint that the Commission ruled against the Applicant on that point. The Respondent submitted that there is no evidence before the Commission that the Applicant will seek to tender the advice of Mr Neil SC in the Application and the Applicant has not otherwise identified how the ruling in the Previous Application gives rise to an apprehension that I will not bring an impartial mind to every other question or issue to be determined in the proceedings.
In relation to the category of association, the Respondent submitted that this category applies where the judge (or decision-maker) has a direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The Respondent submitted that it is not clear what association that the Commission, as presently constituted, is said to have had to a person or persons involved in the Application, nor why that gives rise to any relevant reasonable apprehension of bias.
The Respondent submitted that the Recusal Application appears to be premised on upon the fourth category of case being extraneous information – that submissions and evidence were received in the Previous Application and there will be submissions and evidence received in the Application, which gives rise to an apprehension about my ability to be impartial in this matter. The Respondent submitted that in almost all of the cases dealing with extraneous information, a bias application is brought on the basis that there was some prejudgement or views form in the earlier proceeding.
The Respondent submitted that although the evidence is yet to be filed in these proceedings, the evidence will be substantively the same, relating to exactly the same subject matter over substantially the same period. In this respect, the Respondent submitted that the Application is essentially a case that was started, then stopped and has now restarted. It involves the same parties, the same chronology and substantially the same facts, and that the height of any conduct or prejudgement was some rulings on the admissibility of some evidence.
The Respondent submitted that the Recusal Application should be dismissed.
Consideration
The basis for disqualification is not merely that the member’s past decisions, on questions of fact or law, might lead to a reasonable expectation that she or he will decide the case adversely to one of the parties. Nor is it that the decision-maker has had previous contact or experience, as a member of the Commission, with the facts involved in the particular matter with the context in which the particular matter arises, or with one or more of the parties involved in the particular matter.[33]
The crux of the Applicant’s case is that I was the decision-maker in the Previous Application and that I am the decision-maker in the Application. The Applicant relies on actual bias as well as apprehended bias.
It is difficult to distil from the Applicant’s submissions whether actual bias is relied on for all of the grounds identified at [31]-[32] above. Accordingly, I have considered each of the grounds for the Recusal Application in relation both actual bias and apprehended bias.
I now turn to a consideration of each of the grounds for the Recusal Application.
Part-heard Previous Application
The substance of this ground is that I had part-heard the Previous Application and that “where there are different and potentially conflicting bodies of evidence and submissions, the risk of extraneous information such as overlapping legal and factual issues, being the commonality of the issues and the potential contamination of the extraneous information, such an approach raises a risk of bias.[34]
However, both parties acknowledged during the hearing of the Recusal Application that both sets of proceedings involve the same parties, the same application, and largely the same factual background and the same evidence.[35]
The Applicant’s contention that my role as decision-maker in the Previous Application gives rise to actual bias or apprehended bias on the basis of receiving extraneous information, including knowledge of some prejudicial or inadmissible fact, is to be considered in the context of the extent to which the Previous Application was heard and determined and the relevant authorities.
The extent of any rulings or findings made in the Previous Application was limited to the development of the questions for arbitration with the parties on 5 December 2022, the uncontested tender of a witness statement of Mr Mark Knight and my ruling in relation to the admissibility of advice of Mr Neil SC.
While the parties submit that the factual background and evidence will be largely the same, beyond the tender of Mr Knight’s witness statement and the legal advice ruling, no other evidence was tendered in the Previous Application and, importantly, no other views or findings were made. In this respect, the circumstances of the matter before me can be distinguished from the circumstances that arose in GetSwift – which involved the same Judge giving consideration to two related matters at the same time where there was a significant difference in the evidence between each matter – and Isbester – which involved the same council officer investigating a matter involving a dog attack, determining the charges to be laid and participating in the decision-making process as part of a panel.
In British American Tobacco, the plurality held that whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial.[36]
In ResMed Limited v Australian Manufacturing Workers Union[37], Wigney J stated that:
…it is necessary to appreciate that an ordinary fair-minded observer would understand that, like a judge, a member of the FWC would, from time to time, be required to reconsider matters which might have been previously pronounced upon by the member, and would be capable of departing from an earlier expressed opinion if there was reason to do so: R v Burrell [2007] NSWCCA 79; (2007) 175 A Crim R 21 at [11]; Sengupta v Holmes [2002] EWCA Civ 1104; [2002] TLR 351 at [35]- [37]; Kirby v Centro Properties Ltd(No 2) (2011) 202 FCR 439 at [20]-[22]. Once that is appreciated, there could be no basis for finding that a fair-minded observer might reasonably apprehend that Vice President Hatcher might not bring an impartial mind to any issue that might arise in relation to the construction of the AMWU’s rules.[38]
Of note in the current Application is that the Applicant is yet to file the materials in support of his case. Furthermore, it is incumbent upon me that the Application be determined on the basis of the material before the Commission. I do not know how I will decide the matter and will not know until after I have heard from the parties and considered the material they put.
Having regard to the matters that I have set out above, I am not persuaded that my role in part hearing the Previous Application could lead to a conclusion that I have a closed mind or have prejudged the matter giving rise to actual bias, so much is clear from the determination of different questions for arbitration in the current Application.
Turning to apprehended bias, the first step in Ebner requires the identification of the factor which it is said might lead the decision-maker to decide a case other than on its legal and factual merits. I am not persuaded that this ground is a factor that would lead me to decide this case other than on its legal and factual merits.
In relation to the second step set out in Ebner, I do not consider there is a logical connection between my role in part hearing the Previous Application and the possibility that I might depart from impartial decision making, either because I have prejudged this Application or for any other reason.
Furthermore, I do not consider that my role as decision-maker in the Previous Application might reasonably be apprehended, by a fair-minded lay observer having regard to all the circumstances, that I might not bring an impartial mind to the determination of the Application.
Legal Advice Ruling
The Applicant submitted that my ruling was a sufficient basis for me to recuse myself on the basis of actual or apprehended bias. The Applicant places particular importance upon the existence of the legal advice as relevant to whether the actions of the AIPA were reasonable and relies on the decision of the High Court in Mann in support of its contention that privilege had not been waived.
However, the effect of my ruling did not affect those parts of the witnesses that referred to advice being sought from Mr Neil SC. My ruling determined that those parts of the materials filed in reply that referred to the effect of the advice of Mr Neil SC advice and that the AIPA had acted upon that advice were inadmissible on the basis of relevance and that to admit those paragraphs would be unfairly prejudicial to QAL when the full context of the legal advice was not before the Commission.
In British American Tobacco, the plurality held:[39]
139. It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.
140. Of course judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence. Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding. This is not a case of that kind. It does not raise considerations of case management and the active role of the judge in the identification of issues with which Johnson was concerned. At issue is not the incautious remark or expression of a tentative opinion but the impression reasonably conveyed to the fair-minded lay observer who knows that Judge Curtis has found that BATAS engaged in fraud and who has read his Honour's reasons for that finding.
(Emphasis added, footnotes omitted).
In my view, the legal advice ruling was a routine ruling in relation to the admissibility of particular parts of witness statements.
The Applicant submitted that the advice of Mr Neil SC will need to be considered as part of the current proceedings. However, at this stage of the proceedings, the Applicant has not filed any materials and therefore it is unknown as to what extent the Applicant may seek to tender the advice of Mr Neil SC or materials that refer to the advice.
Although I made the legal advice ruling in the context of the Previous Application, I do not know how I will decide any contested issues relating to the admissibility of evidence that may arise in these proceedings.
Having regard to the matters that I have set out above, I am not persuaded that legal advice ruling could lead to a conclusion that I have a closed mind or have prejudged the matter giving rise to actual bias.
Turning to apprehended bias and the first step in Ebner, I am not persuaded that this ground of the Recusal Application is a factor that would lead me to decide this case other than on its legal and factual merits.
In relation to the second step set out in Ebner, I do not consider there is a logical connection between the legal advice ruling and the possibility that I might depart from impartial decision making, either because I have prejudged this Application or for any other reason.
Furthermore, I do not consider that the manner in which I dealt with the legal advice ruling might reasonably be apprehended, by a fair-minded lay observer who had observed the proceedings, that I might not bring an impartial mind to the determination of the Application.
In this respect, a fair-minded lay observer would recognise that a professional judge (or decision-maker) would be capable of departing from an expressed opinion or ruling.[40]
Previous Application – changing questions for arbitration
As noted above, in the Previous Application an issue arose as the suitability of the questions for arbitration and whether further requests by QAL pursuant to clause 19.1.2 for the AIPA’s agreement made after the filing of the Previous Application were properly before the Commission.[41]
After hearing from the parties, the following position was put to the parties: that question 3(a) would be referrable to at least the initial request by QAL and whether any requests made by QAL after the filing of the Previous Application were within the jurisdiction of the Commission would be determined as part of my consideration.[42] QAL agreed to proceed based on that position.[43]
I then sought the views of Captain Lucas. The transcript records the following exchange between Mr Dalgleish and myself:[44]
PN401
THE COMMISSIONER: Yes, Mr Dalgleish, then, on the questions – Question 3(a) is referable to at least the 14 September decision and potentially others to the extent that I can consider as part of the determination of the dispute matters that have occurred after the filing of the application.
PN402
MR DALGLEISH: Commissioner, I'd like to thank counsel for their submissions. I'd like to thank you for requesting a response to Question 3. Counsel is quite right – we're in a private arbitral sphere. Counsel is quite right that this dispute arose as the result of the 20 August request. Counsel is quite right that a decision was made on 14 September 2022. Counsel is quite right when he says that there were a series of other requests made. That's apparent at 2346 of the court book, RAL6, a letter of 15 February 2023 that was an example of a further request for another request which was linked to the 20 August 2022 request. That's the only distinguishing feature I'd make there in relation to that counsel said.
PN403
Counsel is quite right when he says this arbitration as it presently stands might be beyond the four walls of the initial dispute. Counsel is quite right when he says it might be beyond jurisdiction to look at the subsequent and relevant conduct, no doubt, of the three or four additional requests. And counsel is quite right when he talks about subsequent conduct and hence why it put it in the reply submissions on page 89 which I don't have in the court book, the principle that subsequent conduct or post-agreement conduct is not available as an aid to interpretation has been found by the High Court of Australia and the requisite footnote is there that's Agricultural Rural Finance Pty Ltd. It's a well-known case at 35.
PN404
I go on to talk more about that issue, obviously, at paragraph 13 and 14. I did say at 14, despite the above authorities it has been held that even when the tribunal turns to look at subsequent conduct at the present dispute the highest it can be put post-agreement conduct amounted to little more than the absence of the resolution of the complaint about the terms of the conditions of employment. And I've written therefore Captain Green – of course it's a typographical error – should be for Captain Lucas. As the Full Bench said in Berri, such evidence is insufficient to establish a common understanding. Of course at paragraph 15 I talk about an exclusionary rule in relation to subsequent conduct. So at this point I'd ask for a short adjournment and I'll get some instructions from Captain Lucas as to how he'd like to proceed with the arbitration, if it please the Commission.
PN405
THE COMMISSIONER: In terms of the questions?
PN406
MR DALGLEISH: I would say that 3(a) is fine; 3(b) is probably still problematic but I understand where counsel is coming from and both myself and counsel have made a valid point in relation to 3(b).
PN407
THE COMMISSIONER: How long do you think you would need?
PN408
MR DALGLEISH: Five minutes.
As noted above, upon the resumption of proceedings, Mr Dalgleish informed me that he was instructed to immediately discontinue the Previous Application to pursue an alternative application.
At no stage did I make any ruling or determination in relation to changing the questions for arbitration in the Previous Application. At its highest, after hearing from the parties, I put a position to the parties and sought their views in response to an issue raised by the parties. In seeking the views of parties, Mr Dalglish confirmed that question 3 (a) was “fine” and that question 3 (b) was “problematic” but indicated both parties had made valid points. Mr Dalgleish then sought an adjournment to seek instructions from Captain Lucas.
Ultimately any determination or ruling on this issue, if required, would have been made taking into consideration any further submissions put on behalf of Captain Lucas. That did not occur because the matter was discontinued by Captain Lucas upon the resumption of proceedings.
Having regard to the matters that I have set out above, I am not persuaded that the exchange I had with the parties could lead to a conclusion that I have a closed mind or have prejudged the matter giving rise to actual bias.
Turning to apprehended bias and the first step in Ebner, I am not persuaded that this ground of the Recusal Application is a factor that would lead me to decide this case other than on its legal and factual merits.
In relation to the second step set out in Ebner, I do not consider there is a logical connection between the exchange I had with the parties and the possibility that I might depart from impartial decision making, either because I have prejudged this Application or for any other reason.
Furthermore, I do not consider that the manner in which I dealt with this issue might reasonably be apprehended, by a fair-minded lay observer who had observed the proceedings, that I might not bring an impartial mind to the determination of the Application.
Current Application – Determination of questions for arbitration
This ground is based on my determination of the questions for arbitration in the current Application.
While it is common in applications for the Commission to deal with a dispute that the parties will agree to questions that are to be determined in resolution of the dispute, it is ultimately a matter for the Commission to be satisfied that the questions posed properly characterise the dispute.
In the absence of agreed questions, it is open to the Commission to determine the questions to be answered in a way that properly characterises the dispute and that will lead to a resolution of the dispute. In this respect, I do not accept the Applicant’s submission that an applicant to a dispute application determines the questions for arbitration.
As noted above, the parties did not agree on the questions for arbitration. Accordingly, during the proceedings on 29 March 2023, I considered it necessary to determine the questions for arbitration taking into consideration the nature of the dispute.
The dispute concerns whether the bypass provisions in clause 16 of the Agreement apply in circumstances where Qantas directly allocates a SOT to an aircraft contrary to the order established in clause 19.1.1 of the Agreement where there are sufficient bids from suitably qualified pilots and the AIPA has not otherwise agreed.
In characterising the dispute, the transcript of the proceedings records the following exchanges between Mr Dalgleish and myself:
PN26
MR DALGLEISH: No, that's quite right. You're quite right, and that's why, Commissioner, paragraphs 11 to 13 are very important in the re-filing of the dispute, because you're quite right. There is no withholding of agreement. The question is whether bypass pay of 16.5 applies. That's really what we're here to sort out, which is why the matter was discontinued and refiled.
…
PN48
So the whole point is arbitration. I mean, this is why we discontinued - because it seemed to us that Qantas don't even understand their own agreement. We've written that back seven months ago so if you talk about what is the most common sense thing to do, commercial common sense tells that when someone writes that back to you, they had given you either express consent or implied consent. Go ahead and do it. Then it's for the Association, whether it wishes to take action in relation to not – the non-paying of bypass. Now, Qantas' position is that they don't want to pay bypass. Well, they're entitled to take that position as, you know, as a separate entity. They can directly allocate, use direct entry on to the A380 for the SOTS and their position can be, 'We're not going to pay bypass'. And that's okay, they can take that position. Our position is, 'You can use direct entry, you know, for those suitably qualified pilots that put in sufficient bids. You can bypass all them as long as you pay bypass'. So I don't know what's been going on for at least six requests and six responses but we have given consent.
…
PN144
THE COMMISSIONER: So if the question then becomes - really, if it boils down to it and the issue between the parties is whether bypass pay applies or not - - -
PN145
MR DALGLEISH: To - to clause - yes, that's right. That's right, that's right. I mean, that's really - - -.
(Emphasis added)
After hearing from the parties in relation to the questions for arbitration, I expressed a provisional view, in broad terms, on the proposed questions for arbitration.[45] The parties had a further opportunity to make submissions in relation to my provisional view,[46] before I confirmed my provisional view in relation to the questions for arbitration.[47] However, in relation to question 1, the parties were provided with a further opportunity to submit in writing their proposed wording in relation to the specific dates or date range over which the Respondent made requests to the AIPA for their agreement under clause 19.1.2 of the Agreement.[48]
In relation to question 1, it is in almost identical terms to that proposed by the Applicant, which was acknowledged by the Applicant during the proceedings on 29 March 2023.[49]
In relation to question 2, there was some dispute between the parties. The Applicant submitted that question 2 should be determined irrespective of the answer to question 1, as the resolution of the dispute is dependant upon a determination as to the proper construction of clause 19.1.2.[50]
The Respondent submitted that as the AIPA has withheld its agreement to allow to the Respondent to directly allocate SOTS under clause 19.1.2, the issue of whether the bypass provisions apply in circumstances where the AIPA has agreed to direct allocation is hypothetical.[51]
While I determined that question 2 would be answered if the AIPA was found to have unreasonably withheld its agreement, I indicated to the parties that matters raised by the Applicant, including the proper construction of clause 19.1.2, are matters that may need to be considered as part of the arbitration proceedings.[52]
Having regard to the matters that I have set out above, I am not persuaded that the way in which I dealt with the framing and determination of the questions for arbitration could lead to a conclusion that I have a closed mind or have prejudged the matter giving rise to actual bias. Indeed, my indication to the parties regarding matters that may need to be considered as part of the arbitration proceedings is indicative of an open and impartial mind.
Turning to apprehended bias and the first step in Ebner, I am not persuaded that this ground is a factor that would lead me to decide this case other than on its legal and factual merits.
In relation to the second step set out in Ebner, I do not consider there is a logical connection between my actions in determining the questions for arbitration in the current proceedings and the possibility that I might depart from impartial decision making, either because I have prejudged this Application or for any other reason.
Furthermore, I do not consider that the manner in which I dealt with this issue might reasonably be apprehended, by a fair-minded lay observer, that I might not bring an impartial mind to the determination of the Application.
31 March 2023 correspondence
I have given consideration to this ground of the Recusal Application in the context of the content of the correspondence and the timing of when it was issued to the parties by my Chambers.
As set out above, the directions, hearing date and the questions for arbitration were determined during the proceedings on 29 March 2023, save for the wording of question 1 in relation to the specific dates or date range over which the Respondent made requests to the AIPA for their agreement under clause 19.1.2 of the Agreement.
After receiving further submissions from the parties on 29 March 2023, I proceeded to settle the wording for question 1 on the morning of 30 March 2023 and provided instructions to my Chambers to issue the notice of listing and directions, including the questions for arbitration.
Prior to my chambers issuing the notice of listing and directions, the Recusal Application was filed. I then gave consideration as to how Application should proceed before communicating that to the parties in the correspondence issued on 31 March 2023.
While I proceeded to issue the notice of listing and directions for the substantive hearing of the party, the hearing dates and directions reflected what was determined in the proceedings on 29 March 2023, as did question 2. The only unresolved matter as at the conclusion of the proceedings on 29 March 2023, was the wording of question 1 in in relation to the specific dates or date range over which the Respondent made requests to the AIPA for their agreement under clause 19.1.2 of the Agreement.
The correspondence stated that while the notice of listing and directions relevant to the substantive hearing of the matter would be issued, I would proceed to hear the Recusal Application the following week and if the Recusal Application is upheld, the directions and hearing dates would be vacated.
Having regard to the matters that I have set out above, I am not persuaded that the issuing or content of the 31 March 20023 correspondence could lead to a conclusion that I have a closed mind or have prejudged the matter giving rise to actual bias.
Turning to apprehended bias and the first step in Ebner, I am not persuaded that this ground of the Recusal Application is a factor that would lead me to decide this case other than on its legal and factual merits.
In relation to the second step set out in Ebner, I do not consider there is a logical connection between my actions the issuing or content of the 31 March 20023 correspondence and the possibility that I might depart from impartial decision making, either because I have prejudged this Application or for any other reason.
Furthermore, I do not consider that the manner in which I dealt with this issue might reasonably be apprehended, by a fair-minded lay observer who has observed the proceedings on 29 March 2023 and read the correspondence dated 31 March, that I might not bring an impartial mind to the determination of the Application.
Conclusion
I do not consider that any of the grounds relied upon by the Applicant demonstrate a reasonable basis to conclude actual bias on the basis that I have a closed mind or have prejudged the Application, or that I cannot be swayed by the evidence and submissions that will ultimately be filed in the proceedings.
I am also of the view that in relation to each of the grounds relied on the test for apprehended bias has not been made out and that it cannot be said that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the matter before me.
Accordingly, I decline to recuse myself from further dealing with the Application.
The Recusal Application is dismissed.
COMMISSIONER
Appearances:
Mr E Dalgleish for the Australian and International Pilots Association.
Mr M Follett of counsel for the Respondent.
Hearing details:
2023.
Sydney (via Microsoft Teams video-link):
4 April.
[1] See part 2.1 of the Application.
[2] Captain Anthony Lucas v Qantas Airways Limited (2022/7094).
[3] Exhibit 1, Annexure EF1.
[4] Exhibit 1, Annexure EF6.
[5] Exhibit 1, Annexure EF2 at PN10-PN117.
[6] Exhibit 1, Annexure EF2 at PN159-PN166.
[7] Exhibit 1, Annexure EF2 at PN288-PN410.
[8] Exhibit 1, Annexure EF2 at PN389-PN406.
[9] Exhibit 1, Annexure EF2 at PN411-PN416.
[10] Exhibit 1, Annexure EF3, Annexure EF2 at PN429.
[11] Exhibit 1, Annexure EF7.
[12] Recusal Application, Part 2.2 at [3]-[4].
[13] Applicant’s Written Submissions at [20]. See also [12],[19] and [37].
[14] Ibid at [12]-[13], [38].
[15] Ibid at [12].
[16] Ibid at [7], [30]-[31].
[17] Ibid at [6]-[9].
[18] [2019] FWCFB 3855.
[19] Watpac at [29], citing Kirby v Centro Properties Limited (No 2) [2011] FCA 1144 at [8]-[23].
[20] [2019] FWCFB 214 at [12].
[21] [2021] FCAFC 26 (GetSwift).
[22] Webb v The Queen (1994) 181 CLR 41 (Webb).
[23] GetSwift at [29].
[24] Woolston v Uniting Church in Australia Property Trust [2015] FWC 5853 at [12] citing Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700 at [37]-[39].
[25] Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 1488.
[26] Woolston v Uniting Church in Australia Property Trust [2015] FWC 5853 at [13].
[27] GetSwift at [38]-[39].
[28] [2015] HCA 20 (Isbester).
[29] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 (Ebner); Webb.
[30] Citing GetSwift at [37]-[38]; British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 (British American Tobacco) at [39] (per French CJ).
[31] [1983] HCA 17; (1983) 151 CLR 288
[32] GetSwift, British American Tobacco and Webb.
[33] See [33] above and Re Finance Sector Union of Australia; Ex parte Illaton Pty. Limited (1992) 107 ALR 581 at 583.
[34] See Applicant’s Submissions at [20].
[35] Transcript 4 April 2023 at PN160, PN190.
[36] British American Tobacco at [145] (per Heydon, Kiefel and Bell JJ).
[37] [2015] FCAFC 106.
[38] Ibid at [45].
[39] British American Tobacco at [139]-[140] (per Heydon, Kiefel and Bell JJ).
[40] Sengupta v Holmes [2002] TLR 351 at [35]-[37].
[41] Exhibit 1, Annexure EF2 at PN288-PN410.
[42] Exhibit 1, Annexure EF2 at PN389-PN406.
[43] Exhibit 1, Annexure EF2 at PN390, PN396.
[44] Exhibit 1, Annexure EF2 at PN401-PN408.
[45] Transcript 29 March 2023 at PN174-PN176.
[46] Ibid at PN177-PN203.
[47] Ibid at PN204-PN206.
[48] Ibid at PN298.
[49] Ibid at PN185.
[50] Ibid at PN185-187.
[51] Ibid at PN177-181.
[52] Ibid at PN33, PN186 and PN301-PN307.
Printed by authority of the Commonwealth Government Printer
<PR761077>
3
1
0