No judgment structure available for this case.

[2020] FWC 181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 789FC - Application for an order to stop bullying

Daniel Krcho
(AB2018/637)

DEPUTY PRESIDENT SAMS

SYDNEY, 23 JANUARY 2020

Application for an FWC order to stop bullying – second application for interim orders – unsuccessful appeal – third application for interim orders, seeking recusal of Commission member – anonymisation of applicant and his wife’s names – orders sought to substantially vary earlier interim orders decision subject to unsuccessful appeal, restoration of undertaking and confidentiality of medical and financial records – recusal application ‘conditional’ on the Commission agreeing to vary earlier decision and restore Undertaking that no action be taken by the University to effect applicant’s dismissal until his stop bullying application is determined – applicant now given show cause letter for failing to comply with direction to attend an Independent Medical Examination (‘IME’) – whether direction lawful and reasonable – applicant’s continued refusal to attend IME – application to vary earlier decision refused – undertaking not restored – application to anonymise applicant and wife’s names refused – confidentiality orders relating to medical records refused – limited confidentiality orders relating to financial circumstances – recusal application refused – principles for interim orders not established – no reasonable prospects of success – balance of convenience does not favour interim orders being granted – application for interim orders refused, save for order at [63].

BACKGROUND

[1] In a decision of the Full Bench of the Fair Work Commission (the ‘Commission’) on 10 December 2019, Krcho v Hiss & University of New South Wales and Others[2019] FWCFB 8269, which refused permission to appeal and dismissed an appeal filed by Daniel Krcho (the ‘applicant’), against my decision of 31 July 2019 in Daniel Krcho [2019] FWC 5278 (the ‘31 July 2019 Decision’), the Full Bench said in a postscript:

‘[64] Since finalising the draft of this decision but before its publication, Dr Krcho applied (by correspondence dated 23 November 2019 but received on 25 November 2019) to the Full Bench seeking an order to prevent his dismissal arising from correspondence sent to him by the University dated 19 November 2019. The letter concerns events which post-date the Deputy President’s decision the subject of this appeal.

[65] The Presiding Member conducted a mention on 9 December 2019 at which Dr Krcho was advised that the Full Bench would not deal with the application as it does not raise any matter relevant to establishing whether the Deputy President erred in the Decision. Dr Krcho’s application will be allocated to the Deputy President for hearing and determination. The University has undertaken not to take any further step in relation to the matter canvassed in its correspondence of 19 November 2019 until the hearing and determination of Dr Krcho’s application mentioned at [64].”

[2] Upon remittal to me, the foreshadowed application from the applicant, for urgent interim orders, was programmed for expedited hearing on 20 December 2019. The parties agreed that I determine the urgent application ‘on the papers’; namely, on the submissions of the parties. Directions were issued and later amended twice at the applicant’s request, to allow him further time to respond to the submissions of the University of New South Wales (‘the University’ or ‘UNSW’) and the other named respondents. Despite the objection of the University to the extended timetable proposed by the applicant, I allowed the applicant’s reply submissions to be filed on 9 January 2020.

[3] The applicant’s application in his original submission of 16 December 2019 reads:

‘1.) Pursuant to the recommendation of the FWC FB (10/12/2019) [at 58] the applicant hereby applies for (quoting): “variation of [His Honour’s published] the Decision [dated 31/07/19] (and the Reasons for Decision)” as per the applicants request itemized in this application,

(a) in this context, please kindly re-establish your earlier removed respondent’s undertaking to the FWC (originally issued by DP Hampton) until the entire Stop Bullying Application at the FWC has been finalized,

2.) in case this application for variation in full, or any part of it is denied, then pursuant the apprehended bias principle we respectfully ask that His Honour DP Sams proceeds to disqualify himself from any further dealing with this matter,

High Importance

Confidential & Personal Information

1.) 16/09/2019 – IME Report Dr. Leonard Chin

2.) 04/03/2019 – IME Report Dr. Bertucen – Extract

3.) 24/09/19 – POWED Triage Admission Referral- Re-traumatization

03C.) 11/01/2011 – IME Report Dr. Roberts – Extract

03K.) 08/08/2019 – IME Report Dr. Brierley

4.) 23/11/2019 – Applicant’s Response to Prof Hoffman’s Show Cause Letter dated 19/11/2019”’

[4] In short form, it is apparent that the applicant seeks at least four orders under the following headings:

(1) The deletion and/or variation of a significant number of paragraphs in the 31 July 2019 decision, which the applicant agrees with, or claims are errors of fact and law. (The Variation application);

(2) The reinstatement of the undertaking given by the University in earlier proceedings between Hampton C, in 2018, which I had released the University from in the 31 July decision. (The Undertaking application);

(3) That I disqualify myself from further dealing with the applicant’s matter if I refuse to grant (1) and (2) above, ‘in full or part of it (the ‘Recusal application’); and

(4) That I retrospectively order the anonymisation of the identity of the applicant and his wife and suppress the publication and distribution of their personal health and financial information, including removing all such references from my 31 July 2019 decision. (The Confidentiality application).

SUBMISSIONS

For the applicant

[5] I do not intend to rehearse all the submissions of the applicant, as for the most part they are onerously repetitive and/or deal with the applicant’s substantive stop bullying application. Nevertheless, I have carefully perused the applicant’s submissions and have taken them into account. However, in order to give the reader an appreciation of what the Commission is being asked to determine in this interlocutory application, I will reproduce what I apprehend to be a summary of the applicant’s case, by quoting directly from his submissions.

‘1. On recommendation of the FWC FB Please kindly make the following variations to your published interim decision in full, as per request below:

a) Please kindly retrospectively anonymise the identity of the applicant and his wife in your published interim decision, on the grounds that your Interim Decision contains serious factual errors resulting in unnecessary, unreasonable and irreparable damage to the applicant’s reputation, career and any future employment elsewhere, and also

b) Issue suppression order for publishing and further distribution of your original Decision dated 31/07/19, and also

c) Remove all applicant’s and his wife’s personal, including sensitive personal information (such as health and financial information, including leave entitlements details), from your published decision,

i) On the grounds that the Sensitive Personal Information regarding the applicant’s health provided to the FWC by the employer is false (as the applicant has always maintained) – and as is now clear from the 9 consistent IMEs Reports available to date (4 of which were available for his Honour’s consideration at the relevant time, but were neglected from mention), and also

ii) On the grounds that unprotected public disclosure of the applicant’s financial information or of his socio-economic status is a serious breach of his Privacy, and

d) Please also kindly remove (reformulate) your paragraph [6-7] and paragraphs [25-26] on the grounds that they are incorrect and prejudiced (as explained in detail further below), but also because the applicant already previously explained (also in his Application 22/07/19), post is not his preferred method of communication. His preferred method of correspondence is the secure employment email, which has been inappropriately blocked by the respondent in breach of its own ITC Policy, dictating use of official employment accounts for all employment related matters, which the Stop-Bullying Application represents, and …

e) Please also kindly remove (rephrase) your paragraphs [30-33] on the same grounds (as per facts and explanation further below), as it is not correct that the respondent’s coercive IME direction dated 27/06/19 (made under duress, and without consent), or any later IME Directions were reasonable and lawful.

His Honour ought to have correctly found that the employer’s IME Direction (27/06/19) to collect/obtain additional, unnecessary (at that time), excessive, intrusive, IME Report from a GP (which was made under duress), was not likely to have been made for an appropriate purpose, was in fact in breach of the PPIPA, in breach of the applicant’s privacy rights, and was hence excessive, unnecessary, (at that time), made outside due process, and was hence unreasonable and unlawful Direction.

Please kindly rephrase your paragraphs [30]-[33] to reflect the correct facts and circumstances (at that time) leading to correct conclusion that the employer’s directions dated 27/06/19, as well as its later IME Directions, were unreasonable and unlawful.

In respect, please also kindly duly acknowledge the existence of the 6 IMEs (which have been available to the FWC at that time), and duly consider their content, which have medical information unnecessary and unreasonable;

f) Please also kindly re-establish your earlier removed respondent’s undertaking to the FWC grounds that:

1.) Your removal of the undertaking was unfair and unjust because it was based on the respondent’s skilful deception convincing the Commission [at 25] that the delay in proceedings was caused by the applicant, while in fact the delay has been caused by the respondent’s abuse of power and psychiatry by commissioning retaliatory malicious misdiagnosis from Dr. Deepinder Miller (dated 20/11/2018 and 27/11/2018) which labelled the applicant mentally ill (hence unable to continue in his FWC matter).

2.) This means that the respondent has abused your removal of the undertaking by

i) Its excessive issuance of 7 additional, unnecessary, excessive, invasive, re-traumatizing (i.e. unreasonable & unlawful) IMEs for inappropriate purpose without genuine need for them, and outside proper due process

ii) By breaching its PPIPA obligations to the applicant crucial for validity of the IME process, and the resulting IME Report,

iii) Resulting in the 3rd Show Cause Letter dated 19/11/19.

iv) It needs to be noted that the unnecessary and excessive Directions were issued for inappropriate purpose of justification of applicant’s termination of his employment before the substantive matter can be heard.

(5) We respectfully ask His Honour Deputy President Sams to disqualify himself from any further dealing with this matter because he has previously (31/07/2019) unfairly prejudiced the matter on the following topics/issues:

a) Application (22/07/2019, 31/07/2019, & 19/08/19) for anonymisation of applicant and his wife in the Decision;

c) (sic) Application (22/07/2019, 31/07/2019) for urgent stay of the Proceedings until the respondent restores the applicant’s access to this employment documents, records and evidence necessary for running of his case, including his email account;

d) Application (22/07/2019, 31/07/2019) for urgent stay of the Proceedings until the applicant is cleared by specialist psychiatrist as mentally fit (and mentally credible) to run his case;

e) Unfair aware (on 19/11/2018, on 31/07/2019) of external legal representation to the respondent without proper form application, despite applicant’s objections (19/11/18, 22/07/2019) not allowing him to be properly heard on that issue;

f) Application for (22/07/2019, 31/07/2019) Interim order to prevent employment termination, or reinstatement of the respondent’s undertaking to the FWC

g) Refusal to deal (31/07/2019) with the respondent’s breach of the applicant’s Privacy deliberately caused by the respondent’s coercive and unlawful Direction (made under duress) dated 27/06/2019 – amounting to continuous bullying even during the FWC process’. (original emphases omitted)

For the University

[6] Solicitors for the respondent set out the principles the Commission is to apply in determining an application for interim orders. The University’s response to the applicant’s application is summarised at paras 6-20 of its submissions as follows:

‘6. The University opposes the making of any interim orders to prevent it from taking any further steps in relation to the Allegations Letter and the Applicant’s response to that letter.

7. There is not a serious question to be tried to justify the making of an interim order.

8. In all the circumstances, as outlined below, the Allegations Letter issued by the University does not amount to bullying. It is culmination of more than a year of attempts by the University to assist the Applicant to safely and durably return to work; but the Applicant has resisted every endeavour of the University. The University’s directions were lawful and reasonable: see Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603 at [67] to [69]; Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 at [61] to [64], and disobedience of an employer’s direction can provide a basis for consideration of dismissal: Adami v Maison de Luxe Ltd (1924) 35 CLR 143 at 151 and R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601.

9. Care needs to be taken that this anti-bullying jurisdiction is also not used to prevent legitimate management action: Applications by Hien, Le; Sankey, Joseph; Soy, Bora [2019] FWC 4274 at [15].

10. Further, the balance of convenience does not warrant an interim order. The Applicant has been too unwell to pursue his substantive bullying application (continuing) but wishes to return to work. The University has been endeavouring to assist in that regard, but the Applicant has resisted every endeavour of the University. Even if the University was satisfied the Applicant was fit to return to work, the Applicant refuses to engage with Career Capital to assist with a successful return to work. The Applicant’s refusal is contrary to his obligations under s 28 of the Work Health and Safety Act 2011 (NSW), in particular ss 28 (c) and (d). The University’s right to manage its employees (and their disobedience and lack of co-operation) must weigh against the balance of convenience in favour of the Applicant. The Applicant responded to the Allegations Letter and it is appropriate the University deals with the response. If a decision is ultimately made to terminate employment, the Applicant would have other substantive rights to challenge his dismissal: Daniel Krcho [2019] FWC 5278 at [29].

11. In respect of anonymity and suppression, the University says:

(a) The FW Act has a presumption that any hearing will be held in public: see section 594; also see Justin Corfield [2014] FWC 4887 at [20], followed in Bowker & Ors v DP World Melbourne Limited[2014] FWC 7381 at [6] and Application by Mac [2015] FWC 774, VP Hatcher said at [6] to [7]. This is reflective of the ‘open justice’ principle.

(b) Critically, there is no evidence upon which the Commission could reasonably reach the conclusion that it is necessary to make an order as to anonymity in the interests of the administration of justice.

(c) Further, given the decision in Daniel Krcho [2019] FWC 5278 has been published for over three months, and not overturned on appeal (see Dr Daniel Krcho v. University of New South Wales & Ors[2019] FWCFB 8269), an order as to suppression is not appropriate.

12. It is not proper for the Applicant to also seek editing and or altering / redrafting of the decision in Daniel Krcho [2019] FWC 5278. The decision was upheld on appeal: Dr Daniel Krcho v University of New South Wales & Ors[2019] FWCFB 8269. The criticisms made by the Applicant in ASoD were not accepted by the Full Bench.

13. In ASoD the Applicant requests this Commission “also kindly re-establish your earlier removed respondent’s undertaking”. The University:

(a) opposes any such request; and

(b) other than the limited undertaking given to DP Gostencnik3, give no further undertakings.

14. For the reasons set out below, the recusal application is without basis.

15. The University seeks the Application be dismissed.

Recusal application

16. The Applicant asserts that DP Sams is biased. The University disagrees.

17. The test is whether in all the circumstances a fair-minded lay observer may entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the issue before him or her: Johnson v Johnson (2000) 201 CLR 488 at 492 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at 437 [31] per Gummow ACJ, Hayne, Crennan and Bell JJ. Disqualification is only appropriate when a reasonable apprehension of bias is “firmly established”: Re JRL; ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. As is identified below, no plausible basis for bias is identified.

18. The Applicant complained about bias to the Full Bench of the Fair Work Commission in an appeal from the decision in Daniel Krcho [2019] FWC 5278. A lot of the same complaints are made in ASoD. The relevant complaints and the University’s responses in the Full Bench proceedings were as follows (and are adopted here):

52. A basis for the bias complaint is that DP Sams was apparently “clearly commandeering” at the hearing (AB, p.8). The Appellant at AB, p.8 extracts PN 51 from the Transcript in support of that proposition. Notably, the extract in the Appeal, includes an exclamation mark (!) at the end of DP Sams statement that is not in the Transcript (AB, p. 306).

53. The Appellant then relies on an assertion that DP Sams “protected the respondent” from answering the Appellant’s question (AB, pp. 8-9). Such a basis misunderstands the nature of the hearing before DP Sams which was to hear submissions from each party; not cross-examination. In any event, the University answered the question asked by the Appellant (see PN 285 and 510 to 522 at AB, pp. 328 and 350) and the fact the Appellant did not find the University’s answer satisfactory does not mean DP Sams is biased in the relevant legal sense.

54. The Appellant then relies on the fact the Respondents were allowed to tender and rely on a bundle of documents (AB, p. 9). As a matter of procedural fairness, the Respondents were entitled to respond to the Interim Application after being served with it on 24 July 2019. The bundle (AB, p.386) was discrete; it contained material that was seen by, and known to, the Appellant previously (other than case extracts). As said above, the relevance of the material was explained by the Respondents at the hearing (see Transcript, PN 214 and PN 227 to 317 at AB, pp. 320 to 332). Also, as said above, the Appellant was given an adjournment in the hearing (PN 324), of 35 minutes (AB, p.333), to prepare a response, and was content with the course (PN 328 to 332). No bias is demonstrated, including on the grounds of the conduct of the hearing of the Interim Application.

55. The Appellant complains about the giving of an ex tempore decision as demonstrating bias (AB, p.9). For the reasons set out below at paragraphs [58] to [60] of these submissions, this basis for alleging bias is without merit. As is plain from the Transcript, DP Sams considered the Interim Application and heard all submissions before giving his decision.

56. The Appellant also complains about exchanges between him (and his wife) with DP Sams. There is no bias in a member of the Commission having exchanges with a party to understand the case and to focus the submissions on issues immediately relevant to the proceedings.

57. Further, the making of general observations, like that at paragraph [7] of the Decision, do not itself establish bias or prejudgment. So much is apparent when regard is had to the actual decision that properly sets out the relevant factual context, the relevant legal principles and applies those principles to the facts in an orthodox manner.

19. The Full Bench dismissed the Applicant’s appeal: Dr Daniel Krcho v. University of New South Wales & Ors[2019] FWCFB 8269. (See Tab 44 of “Respondents’ Documents”). At paragraph [59], all appeal grounds were found to be unlikely to be upheld.

20. To the extent the Applicant supports the claim of apprehended bias by cavilling with the findings of DP Sams in the Daniel Krcho [2019] FWC 5278, this argument is misplaced. The appeal from DP Sams’ decision was dismissed. The Full Bench made no findings of significant errors of fact or otherwise.’

Submissions in reply

[7] The applicant’s reply submissions are headed:

‘Subject:

(1) Response in reply relevant to and extending the applicant’s earlier Application (dated 16/12/2019) for:

a) Either Full Variation of His Honour’s Interim Decision 31/07/19 or

b) His Honour’s DP Sam’s Disqualification.

(2) Application to The Director, Client Services, Fair Work Commission, for immediate removal of His Honour DP Sams from any further management of the applicant’s case if Full Variation is unachievable,

(3) Application to Honourable Charles Christian Porter MP – Attorney-General for Australia for immediate investigation into FWC’s processes.

The only matters from the above which I am able to deal with concern 1(a) and (b).

[8] A summary of the applicant’s claims is to be found at 96-105 which reads:

‘96. The respondent’s unreasonable obstruction of applicant’s access to his employment email account and records amounts to an attempt to prevent due course of justice and obstruct justice.

97. Consequently, under such unfair and disadvantageous circumstances it should not be the applicant’s duty to provide to the FWC these employment documents and relevant evidence because the respondent is unreasonably preventing the applicant’s access to them.

98. Considering that it appears that the FWC does not intend to interfere with the employer’s decision regarding its ban of the applicant’s access to his email account and employment records (as per His Honour’s DP Gostencnik's Mention (09/12/2019 at 09:00 at PN45)),

a) in contradiction to its duty under s.577 of the FWA to ensure that the FWC process is fair, just, informal, avoiding unnecessary technicalities, is open, and transparent, and that the applicant receives his opportunity to be fully heard and listened to, to avoid bias in the relevant legal sense,

b) the FWC’s should then run the case through an alternative, active and inquisitorial method, as an broadened assistance lent to the disadvantaged, under resourced and unrepresented litigant.

99. On the basis of the 11 IME Records declaring the applicant fit for work and NOT Delusional, the respondent needs to be reminded of its responsibilities, as well as of its Model Litigant Obligation to the FWC, and ordered to fully remove the access ban, so that the applicant can access his office to collect the remainder of his necessary evidence, and to access his employment email records and relevant evidence, and progress the FWC matter.

100. Since the respondent banned the applicant from work on the basis of its purchased misdiagnosis, which misdiagnosis has in the meantime been repudiated by a number of medical doctors and specialists, who all declared the applicant as mentally healthy and fit to return to his work, with Dr. Brierley and Dr. Bertuchen even stating that return to work is most beneficial for the applicant’s health, the respondent’s justification for its ban of the applicant from work no longer exists. For this reason, the Respondent should be ordered to immediately allow the Applicant’s unobstructed return back to his work.

101. In order to follow due process, the Respondent needs to be ordered to postpone any disciplinary/punitive actions against the Applicant until after the FWC matter has been finalised.

102. In order to follow due process, the Respondent needs to be ordered to postpone the Career Capital (or alike) processes and/or to redirect them onto the relevant entities responsible for the bullying of the Applicant, i.e. the UNSW HR/ER.

103. Based on the medical records dating back to 21/11/2018 (already with the Respondent), UNSW needs to be ordered to:

a) return back to the Applicant all his misspent leave entitlements, and to

b) apologise to the Applicant for the prolonged psychological torment caused by the purchased misdiagnosis, followed by his quarantine and the 7 months of victimization by isolation.

104. The Respondent needs to be ordered to refrain from abusing its power by exerting undue pressure (exercised through its abuse of process) onto medical practitioners and the applicant in relation to his ability to continue in his FWC application, because that amounts to bullying and a Contempt of Court.

105. Respondent’s refusal to act honestly and candidly before the Commission, as a consequence of its prohibitions dated 04/01/2019 (in AB, p.719-720) and 14/02/2019 (in AB, p.721, dot point 9, & in HT26/07/19 PN207), but also as a consequence of its provision of false and misleading document to FWC (as to the applicant’s misdiagnosis), has resulted in public defamation of the applicant and consequently in an irreparable damage caused to his earning capacity, and as such amounts to undue interference with the justice process, preventing the due course of justice, resulting in obstruction of justice, and its miscarriage (in the Interim Hearing 26/07/2019, and its resulting published Interim Decision 31/07/2019), for which caused unfairness, injustice and harm the applicant now seeks remedy – through proper Variation of the decision.’

[9] In total, the reply submissions are 49 pages with 151 pages of attachments previously provided to the Commission. The applicant entirely misses the point of reply submissions. Just as reply submissions are not to be used as an opportunity to agitate new matters, it is not an opportunity to repeat the same material which was contained in a party’s submissions in chief.

[10] While I accept the applicant expressly responded to the University’s submissions of 2019, it was done primarily by repeating, ad nauseum, all of the same complaints, allegations and criticisms that the applicant has claimed on numerous earlier occasions, containing the usual flourish of extravagant language and inappropriate and improper accusations. However, there now appears to be a ‘ramping up’ of the attacks on Mr J Mattson, the respondent’s solicitor, as the following extracts reveal:

‘10.) Mr. Mattson’s claims in his par. 12 are misleading. Considering that he is a lawyer such vexation and lies attempting to mislead the injured and unrepresented party are grossly inappropriate. On these grounds also we ask that the External Legal Counsel is instantly prohibited from representing the respondent. It is not correct that the Interim Decision was upheld on Appeal, because the leave to Appeal was denied due to being out of time, hence there was no Appeal, hence Mr Mattson’s second claim, that the applicant’s criticisms made in his Appeal Application were not accepted by the Full Bench, is also incorrect.”

…

14.) To address Mr. Mattson’s par. 19.

Mr. Mattson appears to be ignoring the fact that the grounds for a leave to Appeal are different from the grounds in this application.

This he does intentionally in order to mislead. This is a sign of extreme dishonesty, lack of respect for the law, for the legal process, legal profession, and demonstrates a lack of candour to the FWC, and certainly an absolute lack of respect for his disadvantaged opponent, i.e. the legally untrained, unexperienced, unrepresented and injured victim of the respondent’s prolonged bullying.”

[11] I have considered all the applicant’s submissions and reviewed his list of cited cases, although most of these cases are not directly relevant to the facts and circumstances of this matter, and/or were decided in other jurisdictions (including the United Kingdom), under very different legislative regimes. Nevertheless, I have endeavoured to cover the primary arguments of the applicant which are now set out.

CONSIDERATION

[12] It may reasonably be accepted that all of the orders sought by the applicant in his latest application are in the nature of ‘interim’ or ‘interlocutory’ orders. The principles to be applied by the Commission to applications of this type, are well known. However, I note the applicant’s submissions rarely seek to engage with these principles or entirely misunderstand them. I repeat what I said in the 31 July 2019 decision at [17] – [19]:

‘[17] Section 589 of the Act provides as follows:

‘589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC’s power to make decisions.’

[18] As s 589(2) does not limit the Commission’s powers to make an interim decision to particular species of applications or exclude others, it may be safely assumed that the making of interim orders in a stop bullying application is a power available to the Commission. Put another way, there is no express or inferred statutory provision which would exclude the Commission from exercising such a power in s 789FC applications; see: Worker A, Worker B, Worker C, Worker D and Worker E v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others listed in Schedule A [2016] FWC 5848 and Application by Bayly (‘Bayly’) [2017] FWC 1886.

[19] The Commission is frequently called upon, in all of its areas of jurisdiction under the Act, to make interim decisions and/or orders. The principles to be applied in such circumstances are well established and are often referred to as the tests of whether prima facie firstly, there is a serious question to be tried, and secondly, whether the balance of convenience favours the order for interim relief. In Quinn v Overland [2010] FCA 799, Bromberg J set out at [45] and [46] the two main considerations as follows:

‘[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57 at [65], [19].

[46] The requirement of a “prima facie case” does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase “serious question” to convey the strength of the probability: Australian Broadcasting Corp v O’Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].’

[13] For the reasons that follow, I am not satisfied that the applicant has established an arguable case that he has a serious issue to be tried which would be lost if the interim orders are not granted. This would be sufficient to dismiss the application for interim orders. However, for completeness, I also consider that the balance of convenience does not fall in the applicant’s favour. These are my reasons.

General Observations

[14] It is commonly understood that once a recusal application is made against a judge or judicial officer, all associated proceedings in which the recusal applicant is involved, are immediately put on hold, or stayed, pending the determination of the recusal application. It does not make sense for other associated proceedings to continue with such a ‘cloud’ over their conduct of the member being alleged.

[15] However, in an unprecedented move, the applicant’s recusal application in this case, is conditional, in the sense that he will not press for my recusal, on the condition that I grant ‘in full’ the entirety of the variations he seeks to the 31 July 2019 decision, including my release of the Undertaking of the University not to take steps to terminate his employment until his substantive stop bullying application is determined. I will say more about this condition later.

[16] The applicant said that the variations he seeks were ‘[o]n recommendation of the FWC FB’. They are nothing of the sort. There were no recommendations of the Full Bench; let alone that it had impliedly ‘recommended’ anything which is now sought by the applicant in his interim orders application. The applicant’s submissions are replete with repeated and ‘loaded’ words and phrases, carelessly thrown around as allegations and which, for the most part, are without evidentiary foundation (let alone having never been properly explained or tested). At this point, they reflect little more than the applicant’s subjective unsubstantiated beliefs. They include, but are not limited to:

Allegations against the University:

• Vexatious manipulation of the process;

• Covert, spying and stalking;

• Fraud;

• Obstruction of justice;

• Malicious retaliation;

• Defamation and deception;

• Intimidation, duress, coercion and smear;

• Mala fide fraud;

• Abuse of psychiatry and OH& S Policies for improper purpose;

• Fabricating fake reasons;

• Counterproductive retaliating nonsense (sic);

• Top down mob based ‘conspiracy to terminate employment’; and

• Frivolous and vexatious psychological games.

[17] This is not to forget the outrageous, and probably libellous claim, that Dr Miller’s report was a ‘purchased, fraudulent, invalid misdiagnosis’. It is apposite to refer to the judgement of the Federal Court in Chan v Harris (No.2) [2010] FCA 1393 where the Court held at paras 66 and 67:

‘66. The Court accepts the submissions of Corrs that in the absence of any evidence such allegations should never have been made. The allegations suggest serious misconduct by three legal practitioners. In Bahonko v Nurses Board of Victoria [2008] FCAFC 29 Gyles, Stone and Buchanan JJ stated at [10]:

‘The processes of the Court and the Court itself are brought into disrespect if unreasonable relaxation of ordinary standards is extended to litigants in person simply for the reason that they are without legal assistance. There is no basis to think that the rights of any litigant in person are infringed or diminished by the steady insistence that proceedings in this Court are not be used as a means of sullying the reputation of other parties to the proceedings or third parties who are not directly involved in the proceedings at all.’

67. To the same effect Mansfield J in Kowalski v Chief Executive Officer of Medicare Australia [2010] FCA 413; (2010) 185 FCR 42 said at [34]:

‘First, as has been remarked in other judgments in which Mr Kowalski has been a party, he is prone to make scandalous offensive and unsubstantiated allegations about public figures, about judges or administrative decision makers, and about the solicitors and counsel appearing in those matters. Even allowing for him being a litigant in person, those allegations are entirely inappropriate. He seems to be unable to accept that others might in good faith take a different view about certain things. Whether or not a different view is erroneous, there is no basis for asserting that the person taking that view is attempting to pervert the course of justice, or is lying, or is acting unprofessionally. Those sorts of assertions, or like offensive epithets, should not be tolerated.’’

[18] I will come back later to the colourful epithets, used to describe my alleged conduct in support of the applicant’s recusal application. At this juncture, I am reminded what Pembroke J said in Zepinic v Chateau Constructions (Aust) Limited [2017] NSWSC 582 where His Honour said at para 47:

‘47. Mr Zepinic’s conduct is an extreme example, but given his constant resort to exaggerated description and unjustified language, it is useful to recall the advice of Atticus Finch to his daughter Scout. She said: ‘Atticus told me to delete the adjectives and I’d have the facts’: To Kill a Mockingbird, Harper Lee, ch 7. And it is worth repeating my own words in McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717 at [32]:

‘... The promiscuous use of extravagant language tends to obscure the value that may exist in the underlying submission. It is timely to repeat the compelling wisdom of the words attributed to Lord Bingham of Cornhill by Lord Mackay of Clashfern in his address at the Thanksgiving Service for Lord Bingham; The Times, 26 May 2011:

The effective advocate is not usually he or she who stigmatises conduct as disgraceful, outrageous, or monstrous, but the advocate who describes it as surprising, regrettable or disappointing.

48. What is clear is that Mr Zepinic, in his own right and on behalf of his wife and daughter, has become a ‘vexatious’ litigant in every sense of the word. Not only has he pursued one hopeless claim after another, but he has criticised or condemned his own solicitors and sought to disqualify judges who have made orders against him. His obsessive behaviour is wasteful and destructive. And it has been exacerbated by his dishonesty, which takes it to a new level of seriousness. It must be stopped. It is contrary to the public interest.”

[19] The applicant continues to strenuously object to the University being represented by a lawyer. It is open for the applicant at any time in a conference/hearing to object to the Commission continuing to allow permission for the University to be represented by a lawyer, pursuant to s 596 of the Act. However, in the present circumstances this is irrelevant, as the application for interim orders is to be decided, by consent, ‘on the papers’. I refer to what the Full Bench said in the appeal at [6]:

‘[6] The Respondents sought permission to be represented by a lawyer. Dr Krcho opposed permission being granted, however, as the appeal was to be determined on the papers, permission to be legally represented is not required. Pursuant to Rule 12(1)(b) of the FWC Rules, if a person is not participating in a conference or hearing, that person may be represented by a lawyer or paid agent in the matter without the permission of the Commission.’

[20] In addition, I note that:

(a) there was no objection to Mr Mattson’s appearance in the proceedings on 26 July 2019; and

(b) it does not appear that any grounds of appeal of the decision of 31 July 2019 (the ‘Decision’) related to permission for the University to be represented by a lawyer. There is certainly no reference to such a ground of appeal in the Full Bench decision.

Further, it does not appear the applicant has established any connection between the principles for the making of interim orders and the legal representation of the University.

[21] The applicant continues to assert his severe disadvantage and unfairness, given he and his wife’s lack of legal training in the face of the University being legally represented. It is difficult to reconcile this complaint with the applicant’s claims of breaches by the University and others of Federal and State laws, arguments going directly to legal questions and his citing of numerous authorities in support of his submissions. I turn now to the Variation application.

Variation application

[22] The essence of what the applicant seeks by these orders is to challenge my conclusions and findings in respect of the 31 July 2019 decision, which he appealed and for which the Full Bench refused permission to appeal and dismissed his appeal on 10 December 2019. The applicant seeks to delete numerous paragraphs in the Decision or the rephrasing of paragraphs, with which he does not agree.

[23] Most of the applicant’s 41 pages of closely typed and highlighted submissions and 70 pages of annexures, and 49 pages and 151 pages of annexures in reply, have been previously agitated before me in earlier proceedings, including persistent allegations of ‘mob bullying’ and unlawful conduct by the University which have never been tested, let alone determined by the Commission. In reading the applicant’s submissions to the Full Bench, he repeated most of the same extravagant arguments he put before me. Indeed, the applicant’s appeal grounds were distilled by the Full Bench into five key themes:

‘[25] The notice of appeal contains 73 paragraphs in which Dr Krcho advanced his grounds of appeal. 31 In addition, Dr Krcho filed written submissions on 16 September 2019 and 22 October 2019 pursuant to the directions made by the Presiding Member. The appeal grounds are set out in submission form but may conveniently be grouped into five key themes by which Dr Krcho contends the Deputy President erred by:

(1) variously displaying bias towards the Respondents and by denying procedural fairness to Dr Krcho; 32

(2) making significant errors of fact through inter alia his failure to deal with “crucial events, facts and dates” said to show the University’s unreasonable and vexatious conduct which in the result produced a decision contrary to the overwhelming weight of the evidence; 33

(3) making significant errors of law through inter alia his failure to exercise power to compel the University to explain why it sought to compel Dr Krcho to produce medical material or attend an examination under threat of dismissal; 3

(4) inappropriately refusing (or otherwise adjourning) each of the orders sought by Dr Krcho; 35 and

(5) allowing the Respondents permission to be legally represented at the hearing.’

[24] The Full Bench found at [59]:

‘[59] Having regard to the above matters, we do not consider that Dr Krcho has established an arguable case that the Deputy President erred in his consideration of the application in the manner contended. In our view, none of the appeal grounds are likely to be upheld; some of the grounds are futile for the reasons we have identified; and the balance of the orders sought by the application the subject of the Decision are moot for the reasons earlier described. Dr Krcho is not prevented from making a further application for interim relief should there be a change in his circumstances.’

[25] These themes are reflected in the same repetitive, argumentative, accusatory, and in some cases scandalous and offensive material that have been agitated in earlier proceedings. I do not intend to answer every point or submission of the applicant in the present matter, most of which are irrelevant for present purposes, as it is plainly obvious that unless I agree to make all of the variations and orders he seeks, it would not matter what I say or determine, he will not accept any Commission outcome which he does not agree with.

[26] The applicant was previously reminded the decisions of the Commission are final, unless otherwise quashed or varied by a Full Bench of the Commission on appeal. The applicant availed himself of the opportunity to appeal the 31 July 2019 decision which was wholly unsuccessful. The appeal was dismissed with permission to appeal refused, pursuant to s 604 of the Act. This means the 31 July 2019 decision is final and stands on the record. It is not open for the applicant to seek to delete paragraphs or have paragraphs altered or rephrased to his liking, simply because he does not agree with the Decision. This must be a fortiori when his appeal of the 31 July 2019 decision was left intact and unscathed by the Full Bench. In my view, what the applicant seeks is improper and a waste of the Commission’s resources, paid for by the taxpayer, and which might otherwise be utilised in determining properly prosecuted cases.

[27] On one view, the present application may be seen as perilously close to constituting an abuse of process. There is a public interest consideration in the need for finality in litigation. As Gleeson J said in Minister for Immigration [2002] HCA 11 at [7] and [8]:

‘7. In Chandler v Alberta Association of Architect Sopinka J, speaking for the majority in the Supreme Court of Canada, pointed out that, as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction, or because there has been a change of circumstances. However, the Court held that the principle of functus officio should not be strictly applied if the tribunal has failed to discharge its statutory function and "there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation.

8. The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?’ (my emphasis)

This judgment was referred to in Panayiotou v University of Adelaide [2019] FWCFB 8487 where the Full Bench said at [49]:

‘[49] As noted by a Full Bench in Snyder there are sound public policy reasons why the Commission should not readily accede to an application for permission to appeal in circumstances where there has been a previous appeal of the same decision. The public policy benefits associated with providing finality in litigation tells against such a course. As Gleeson CJ observed in Minister for Immigration and Multicultural Affairs v Bhardwaj, albeit in a different context:

“The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration.”’ (endnotes omitted)

[28] The applicant’s claim to have the 31 July 2019 decision varied or rephrased, as proposed, is rejected and dismissed.

The Undertaking application

[29] I readily acknowledge that unlike the two earlier unsuccessful application for interim orders, there is now a different factual circumstance which was not in existence previously and why, inter alia, those earlier applications were not granted. This new circumstance is the University’s letter to the applicant of the 19 November 2019, which emerged during the period the Full Bench had reserved its decision in the appeal. There is little doubt that, for the first time, the applicant has been required to ‘show cause’ why his employment should not be terminated for failing to comply with a reasonable and lawful direction of the employer to attend an Independent Medical Examination (‘IME’) to assess his fitness for work. So much is clear from the following extract from the letter.

‘Allegations and Opportunity to Provide a Response

UNSW now alleges that you failed to attend the scheduled independent medical appointment and thereby you have failed to comply with lawful and reasonable directions of your employer.

It appears from your communications to us that you never had any intention to comply with the direction. Despite endeavours to explain the basis and reason for the direction, you refused to comply.

Further, it appears to UNSW that you have not, and are not willing to, co-operate with UNSW in its endeavours to work towards a return to work, including through a facilitation process with Career Capital.

Consistent with Clause 35.1(b) of The University of New South Wales (Professional Staff) Enterprise Agreement 2018 [(‘Agreement’)], you are invited to submit a response to the allegations set out above.

Any response, if provided, is to be submitted to me in writing by no later than 4.00pm on Friday 29 November 2019.

It is your responsibility to ensure that this timeframe is met.

No findings or decisions have been made at this stage in relation to the allegation.

Once I have received your response, I will consider next steps, one which may be making a recommendation to the Vice President Human Resources to terminate your employment in accordance with Clause 35.2 of the Agreement.

If that occurs, you will have a further period of five working days to provide a response to the Vice President of Human Resources in respect of that recommendation, prior to him making a final decision regarding your employment.’

[30] Accordingly, I accept that this letter now includes a prospect that the applicant may be dismissed, according to the University’s disciplinary policy and process and the Agreement, after he responds to what is commonly understood to be a Show Cause letter of the 19 November 2019.

[31] Unsurprisingly, the applicant maintains that the University’s direction to attend an IME is both unlawful and unreasonable. His consistent arguments are not new and were rehearsed and decided in the 31 July 2019 decision. I need only repeat my conclusion at [21]-[23] and [29]:

‘[21] It cannot seriously be disputed that an employer is able to direct an employee to attend a medical examination to establish whether the employee is fit to continue, or resume their duties, and perform the inherent requirements of their role. In Blackadder, Madgwick J said at 68-69:

‘68. It is, in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee’s continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/or lift.

69. The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of “necessity” accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450.

This is particularly so where there is conflicting medical opinions or, as is the case in this instance, the applicant rather unusually claims he is fit to return to work; albeit, under specific conditions acceptable only to the applicant and not to the University, and where the University has a specialist psychiatrist’s (Dr Miller) opinion that the applicant is unfit for work, with no prospective date for a return. The applicant disputes this opinion and asserts - entirely inappropriately in my view - that the Doctor’s report is a ‘malicious misdiagnosis’.

[22] It is also curious and difficult to reconcile that the applicant claims he is fit to work, yet he says he is unfit to conduct proceedings in his stop bullying application. This is why I have adjourned these proceedings generally until he can demonstrate he is fit to conduct his case.

[23] It is equally unarguable that an unreasonable refusal to attend a medical examination may be a valid reason for an employee’s dismissal under s 387 of the Act. It is patently clear that the applicant has refused to attend his own doctor for an updated assessment on his capacity to attend work, except on his own terms.

…

[29] In any event, even if the applicant’s substantive stop bullying application is dismissed, he will have other rights to challenge that decision in the Commission and/or the Courts. In the event he is successful in challenging his dismissal, it may result in orders of reinstatement. Moreover, even if the applicant is dismissed, it does not automatically follow that his stop bullying application must be dismissed, as there is no longer a risk of him being bullied at work, which is a jurisdictional prerequisite for any stop bullying application to succeed: s 789FF(1)(b)(ii). See also: Shaw v Australia and New Zealand Banking Group Limited t/a ANZ Bank; Bianca Haines [2014] FWC 3408 and Alley Renee Hamilton [2019] FWC 1816. Although rare, stop bullying applications have been stayed in such circumstances; see: Bayly, G.C. [2014] FWC 6988 and Applications by Hien, Le; Sankey, Joseph; Soy, Bora [2019] FWC 4274 (although stayed by consent).’

[32] Further, I quote what I said in Applications by Hien, Le; Sankey, Joseph; Soy, Bora [2019] FWC 4274 at [15]-[16]:

‘[15] At this point, the question arises, however, if there is a serious issue to be tried, in circumstances where two bullying investigations have said there is not (albeit this is strongly disputed by the Union) and more importantly, for present purposes, whether the Commission should interfere in the employer’s prerogative to institute disciplinary proceedings which might result in dismissal, and for which the applicants will have recourse to other provisions of the Act to challenge the fairness of such dismissals. I have recently said that it is not acceptable to use the stop bullying jurisdiction of this Commission as a shield or ‘stalking horse’, to prevent, delay or deflect justifiable disciplinary outcomes, or to claim that the disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying. It demeans and undermines the important work of the Act’s stop bullying provisions to prevent workplace bullying; see: Karki [2019] FWC 3147.

[16] I emphasise that even if the applicants are dismissed, there is no automatic rule that their stop bullying applications must be dismissed on the grounds of them having no prospects of success. So much is clear from the recent decision of Hampton C in Dr Ng [2019] FWC 3055.

See also: Ingall v Virgin Australia Airlines Pty Ltd T/A Virgin Australia [2019] FWC 4947 at [99] and Application by Jennings [2019] FWC 8609.’

[33] Lest there be any doubt, I cite the following passage from King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta; Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta v King [2014] FWCFB 2194. At [26], the Full Bench said:

‘[26] It is well established that an employee has an obligation, implied by law, to comply with the lawful and reasonable directions of his or her employer. The circumstances in which an employer’s direction will be lawful were described by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan in the following terms:

“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.” (endnotes omitted)

Further, in Briggs v AWH Pty Ltd [2013] FWCFB 3316 at [8]:

“[8] The determination of whether an employer’s direction was a reasonable one (there being, as earlier stated, no contest in this case that AWH’s direction was lawful) does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan 13 in the following terms:

"But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled."’

[34] I do not accept the direction that the applicant attends an IME in circumstances where there are conflicting medical reports, including differences in diagnoses and what Return to Work (‘RTW’) conditions should apply, which the applicant himself relies on, is an unreasonable or unlawful direction. Further, in circumstances where the applicant has twice refused to attend arranged IMEs, without reasonable (or any) explanation/s, and his continued refusal to engage with Career Capital, (even though he was encouraged to do so by his preferred doctor) constitutes a reasonable and lawful basis for the University to have issued the ‘show cause’ letter, dated 19 November 2019.

[35] In any event, the undertaking given to Commissioner Hampton in 2018 was not expressed, or intended to be a perpetual, unequivocal guarantee the University would take no disciplinary action against the applicant until his substantive application was determined. So much so is clear from para 2 of the Undertaking which reads:

‘2. If the circumstances, referred to in paragraph 5.2 of the Respondents’ submissions dated 25 October 2018, substantially change such that the Applicant’s employment is at threat, the University will:

a. give the Applicant notice of the change, and

b. take no action to implement the change until the resolution of any further application by the Applicant for an interim order, provided that the Applicant makes such a further application for an interim order within 7 days after the Applicant receives the notice referred to in (a).”

On any view, the qualifications set out in para 2 above, have been met.

[36] Accordingly, I have no intention of interfering in that process, and in addition to the same reasons why I refuse to vary the 31 July 2019 decision, it follows I will not reinstate the Undertaking which released the University from at [25] of the Decision.

Recusal application

[37] Firstly, I note that since I have been allocated this matter on 2 November 2018, I have been involved in a number of phone conferences, directions hearings and formal proceedings. In all these earlier proceedings, the applicant and his spokesperson (his wife) have raised numerous complaints about the conduct of the proceedings, but have not sought my recusal in this matter. That said, I accept unreservedly, their right to do so – albeit, procedurally incorrectly in the applicant’s recent appeal.

[38] It is necessary to set out the principles relevant to an application for recusal based open a reasonable apprehension of bias. These principles were recently helpfully set out in Bronze Hospitality Pty Ltd v Hansson [2019] FWCFB 3456 where the Full Bench said at [22]:

‘[22] 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 14 and were usefully summarised by Middleton J in Kirby v Centro Properties Limited (No 2)15 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 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.”” (endnotes omitted)

[39] Also pertinent to this case, the Full Bench in Grabovsky v United Protestant Association NSW Ltd T/A UPA [2019] FWCFB 8605 at [49] said:

‘[49] We stated that the fact that we have previously made decisions adverse to the Appellant is not determinative, relying on Kirby v Centro Properties Limited (No.2) and what was outlined by Justice Mason (as he then was) in Re J.R.L.; Ex parte C.J.L.:

“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.”’ (endnote omitted)

[40] As mentioned, the applicant sought to have the Full Bench recuse me from further dealing with his matter, despite no recusal application having ever been made to me in the conventional way. The respondent summarised these complaints and its response in submissions before the Full Bench which are repeated in the present matter as follows:

‘18. The Applicant complained about bias to the Full Bench of the Fair Work Commission in an appeal from the decision in Daniel Krcho [2019] FWC 5278. A lot of the same complaints are made in ASoD. The relevant complaints and the University’s responses in the Full Bench proceedings were as follows (and are adopted here):