Doyle and Western Suburbs District Rugby League Football Club Limited

[1994] IRCA 79

C A T C H W O R D S

NATURAL JUSTICE - apprehension of bias of Judicial Registrar - Registrar reading affidavit containing recommendation of Commissioner resulting from conciliation

PRACTICE AND PROCEDURE - application to review decision to refuse to refer question to Judge - application for Judge to hear application after Judicial Registrar had commenced to do so - Power of Court

Industrial Relations Act 1988, ss376, 377

Keating v Teico Investments Pty Ltd, 14 September 1994,
unreported decision of Industrial Relations Court of
Australia, Northrop J
Johns v Australian Securities Commission (1992) 35 FCR 16
Brennan v Minister for Immigration, Local Government and
Ethnic Affairs (1991) 28 ALD 178
Amoe v Director of Public Prosecutions (Nauru) (1991) 66 ALJR
29

No. NI 527 of 1994

BRIAN GERARD "MICK" DOYLE v WESTERN SUBURBS DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED

MOORE J

SYDNEY

27 OCTOBER 1994

IN THE INDUSTRIAL RELATIONS                 )
  )
COURT OF AUSTRALIA   )  No. NI 527 of 1994
  )
NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN:  BRIAN GERARD "MICK" DOYLE

Applicant

AND:  WESTERN SUBURBS DISTRICT RUGBY
  LEAGUE FOOTBALL CLUB LIMITED

Respondent

JUDGE:        Moore J

PLACE:        Sydney

DATE:          27 October 1994

REASONS FOR JUDGMENT

On 11 July 1994 an application was made under s170EA of the Industrial Relations Act 1988 ("the Act") by Brian Doyle ("the employee") in relation to the termination of his employment by Western Suburbs District Rugby League Football Club Limited ("the Club").

The application was referred to the Australian Industrial Relations Commission ("the Commission") for conciliation but the conciliation proceedings were not successful and a member of the Commission certified to that effect on 3 October 1994.  The application was then listed for hearing by a Judicial Registrar and the hearing commenced on Thursday, 13 October 1994 and continued the following day.

On 21 October 1994 the respondent filed a notice of motion seeking the following orders from a Judge of the Court:

"1.That the exercise of power delegated under s.376 of the Industrial Relations Act 1988 by Judicial Registrar Patch in the above proceedings be reviewed.

2.That the power of the Court to hear and determine the proceedings in NI 527 of 1994, be exercised by a Judge.

3.In the alternative to Order 2, that further proceedings in NI 527 of 1994, other than the review sought, be stayed pending the review.

4.Such other orders as the Court thinks fit.

The time before which this Notice is to be served is abridged to 10.00am on 24 October 1994."

I heard the application as an urgent one on the afternoon of Tuesday, 25 October 1994 as the Judicial Registrar was due to continue the hearing on Thursday, 27 October 1994.  I dealt with the application instanter and dismissed it but I did so on the basis that I would publish my reasons as soon as possible.  I reserved the question of costs.  These are my reasons.

The affidavit in support of the notice of motion does not provide any real detail as to what occurred on Thursday, 13 October 1994 though counsel appearing for the Club outlined some of the events of that day as did the solicitor appearing for the employee.  I was provided with reasons for judgment published by the Judicial Registrar on 14 October 1994.

What appears to have occurred is that an affidavit was filed by a witness to be called on behalf of the employee which included as an annexure a letter setting out the recommendations of the member of the Commission who conducted the conciliation.  The affidavit including this material was read by the Judicial Registrar before the hearing commenced.  Objection was taken to this material and the Judicial Registrar refused to admit it.  Its rejection was not opposed by those appearing for the employee.  However, an application was then made that the Judicial Registrar disqualify himself from further hearing the matter on the basis that an apprehension of bias arose as a result of him having read this material.  The Registrar refused to disqualify himself and also refused to refer certain questions to a Judge of the Court for determination.  The Registrar was also asked to stay the proceedings until further order.

I should also mention that an article appears to have been published by the Sydney Morning Herald on the morning of the first day of hearing which appears to have summarised the published recommendations of the Commissioner.

Both the orders sought by the Club from the Judicial Registrar and the orders sought in the application I am hearing are, to an extent, unclear.  I will deal with what I understood to be the issues in what I consider is a logical order.

The Club seeks an order from a Judge of the Court that the application be heard and determined by a Judge.  That application raises for consideration the provisions of s378.  Section 378(2) provides:

"If a Judicial Registrar proposes to exercise in a particular case a power delegated under section 376 but has not begun to exercise the power in that case, a Judge may order that the power be exercised in that case by a Judge."

The order sought is that the power to hear and determine the application under s170EA be exercised not by the Judicial Registrar but by a Judge. The power of a Judge under s378(2) to make an order to this effect is qualified. An order can only be made if the Judicial Registrar has not begun to exercise the power that the Judge is being asked to exercise. In this case the Judicial Registrar had commenced to exercise the power to hear and determine the application and it is plain that the pre-condition to the exercise by a Judge of the power to make an order under s378(2) is not satisfied: see Keating v Teico Investments Pty Ltd, 14 September 1994, unreported decision of Industrial Relations Court of Australia, Northrop J.

The Club also seeks a review of the exercise of the power of the Judicial Registrar when he refused to refer certain questions to a Judge of the Court. Jurisdiction to review the exercise of a power by a Judicial Registrar arises under s377 which provides:

"377(1) A party to proceedings may apply to the Court to review a Judicial Registrar's exercise in the proceedings of a power delegated under section 376. An application must be made within the period prescribed by the Rules of the Court or such further period as is allowed in accordance with the Rules.

(2)        On an application under subsection (1) or of its own motion, the Court may review a Judicial Registrar's exercise of a power so delegated.  The Court may make whatever order it considers appropriate in relation to the matter in relation to which the power was exercised.

(3)        On the application of a party or of its own motion, the Court may refer to a Full Court of the Court an application under subsection (1)."

I should also refer to O74 of the Industrial Relations Court Rules which provides:

"DELEGATION OF POWERS TO JUDICIAL REGISTRARS

Interpretation

1.In this Order "Judicial Registrar" means a person appointed under section 375 of the Act.

Powers of Judicial Registrars

2.In relation to any proceeding in the Court, in so far as that proceeding relates to:

(a)a claim for an amount of not more than $10,000 or such greater amount as the regulations may from time to time prescribe; or

(b)a claim that the termination of an employee's employment was unlawful, or that the proposed termination of an employee's employment would be unlawful, whether because of the Act or any other law (including an unwritten law) of the Commonwealth or of a State or Territory;

all the powers of the Court are delegated to each Judicial Registrar.

Prescribed time in relation to review

3. For the purposes of section 377(1) of the Act, the time prescribed in relation to an application to review the exercise of a power by a Judicial Registrar is 21 days or such further time as is allowed by the Court or a Judge for special reasons upon application at any time."

The difficulty confronting the Club is that s377 operates only on powers that have been delegated under s376. While it is true that the delegation resulting from the combined operation of s376 and O74 is that the Judicial Registrar may exercise all the powers of the Court in a prescribed matter, I am not aware of any power that enables the reference of a matter from one Judge of the Court to another which is, in essence, the power the Club has asked the Judicial Registrar to exercise when asking him to refer a question to a Judge of the Court. It is true that s416 enables a single Judge exercising the jurisdiction of the Court to refer a question of law for the opinion of a Full Court. However this is not what was sought by the Club assuming, for present purposes, that the questions posed by the Club are questions of law. They were:

"1.What status is to be given to statements made by Commissioners of the Australian Industrial Relations Commission when conciliating pursuant to section 170D(e) of the Industrial Relations Act.

2.Whether any statements made by a Commissioner are privileged and not to be communicated outside the conference room.

3.Whether the publication of statements made by a Commissioner during the conciliation proceedings, such publication being made during the court proceedings, constitutes contempt of this court.

4.Whether the publication of statements made by a Commissioner during the conciliation conference and reproduced in an affidavit for the court proceedings should result in a costs order being made against the legal representatives who prepared the affidavit if, as a result, the hearing of the application has had to be vacated."

It is unnecessary for me to consider in detail the true character of these questions though it is plain that even if they are questions of law they are not questions of law arising in the application made under s170EA and are, at best, collateral to it as the tender of the letter containing the statements made by the Commissioner was rejected, on a consensual basis, by the Judicial Registrar. The statements of the Commissioner are not part of the evidence in the proceedings and there can be no live issue about their status. I should add that in so far as a question is posed about certain conduct being in contempt of the Court, the course implicit in the posing of the question is misconceived. There are settled procedures for dealing with alleged contempt of a court and I know of no basis upon which a court would deal with the matter in the way proposed by the Club. The power I am being asked to review is not a power delegated under s376 and I have no power to review it. Were I to have power to do so I would not interfere with what is a transparently correct decision of the Judicial Registrar.

The next issue concerns the question of bias which, in my opinion, is the only matter of substance raised in the notice of motion. I am prepared to proceed on the basis that a decision of a Judicial Registrar not to disqualify himself for reasons of apprehended bias involves the exercise of a power delegated by the combined operation of s376 and O74. I have already set out the basis upon which the allegation of apprehended bias is founded. It is that the Judicial Registrar read a letter setting out the recommendations of a Commissioner resulting from the conciliation process conducted by the Commissioner. This general issue of a Judge reading inadmissible evidence prior to ruling on its admissibility was considered by a Judge of the Federal Court in Johns v Australian Securities Commission (1992) 35 FCR 16 at 37. In that matter Heerey J said:

"It is an everyday task for judges to disregard evidence which has been successfully objected to as irrelevant or otherwise inadmissible.  This is one of the fundamental skills that a legally qualified tribunal of fact brings to bear - in contrast with a jury where exposure to inadmissible evidence of a substantial nature often does require the discharge of the jury.  In Amoe the High Court was dealing with a criminal trial but one conducted by a judge in Nauru sitting without a jury.  The Court said (at 34):

'If a judge, trying a case without a jury, comes to the conclusion that the prejudicial effect of an answer would outweigh its probative value, must he or she disqualify him or herself?  The answer must surely be that it is only in the most exceptional case that a judge is required to disqualify him or herself because a prejudicial question has been asked or answered.  In a trial before a judge without a jury, prejudicial questions and answers are perceived as having a different effect from that which, by the common law tradition, they have in a trial by jury.'

It is true that the High Court goes on to say (at 34) that:

'From time to time, cases occur where the nature of the prejudicial material and its relationship with the issues which have to be decided is such that the appearance of impartiality is necessarily destroyed by a judge deciding the case after hearing or reading such material.  In such a case, the prudent judge will disqualify him or herself from further hearing the matter, irrespective of the degree of confidence that the judge has in his or her ability to determine the case uninfluenced by the prejudicial material.  If the judge fails to do so, it will fall on the appellate court to set aside any resulting conviction.'"

This aspect of his Honour's judgment, unlike others, was not the subject of appeal: see (1992) 35 FCR 146 (Full Court of the Federal Court), (1993) 116 ALR 567 (High Court). I should also refer to another judgment of Heerey J in Brennan v Minister for Immigration, Local Government and Ethnic Affairs (1991) 28 ALD 178 in which his Honour refused to disqualify himself on the basis that he had read "without prejudice" correspondence between the parties that was contained in affidavit material filed in Court. In my opinion the reading of the material by the Judicial Registrar does not create an apprehension of bias that would require the Judicial Registrar to disqualify himself. He has said that he will take no account of the material. While he later goes on to say in his decision that if he is unable to do so the material is trivial, I do not doubt that his primary intention, namely to disregard the material, will be given effect to. The material itself is not of the special class referred to in the passage from Amoe v Director of Public Prosecutions (Nauru) (1991) 66 ALJR 29 quoted by Heerey J in Johns, supra.  The Judicial Registrar was correct in concluding that he should not disqualify himself for reasons of apprehended bias.

I should add by way of a more general concluding observation, that it is plainly undesirable that the details of what occurs in the conciliation process before the Commission are published in any general way let alone provided to the Court.  The process of conciliation is one designed to enable a full and frank exchange of views between the parties with a view to settling the application on an agreed basis.  If parties are aware that their discussions or the views of the Commission may later be published generally then their preparedness to be frank, or even to participate in the process at all, may diminish.  Moreover, the publication of the details of the conciliation process or any view the Commissioner may have formed as to an appropriate result, either generally or in documentation filed in the Court, will lead to concerns of the type that the Club has had in these proceedings.  Even though the Club's concern does not constitute, in law, a ground for the disqualification of the Judicial Registrar who has been made aware of the views of the Commissioner, it is undesirable for reasons which I hope are obvious, that such concerns are permitted to arise at all.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:

Date:27 October 1994

Counsel for the Applicant:  Mr A. Moses

Solicitor for the Applicant:  Messrs Marsdens

Solicitor for the Respondent:  Mr R. McClelland

of Turner Freeman

Date of hearing:  25 October 1994

Date of judgment:  27 October 1994