Fisher v Edith Cowan University
[1996] IRCA 393
•23 August 1996
DECISION NO: 393/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPOYMENT - application for Judicial Registrar to disqualify himself on basis of REASONABLE APPREHENSION OF BIAS - motion acceded to.
Industrial Relations Act 1988 (C'th) s 170EA
Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Anr (1996) 135 ALR 753.
Australian National Industries Ltd v Spedley Securities (In Liquidation) (1992) 26 NSW LR 411.
AWU-Fime v Acton (1994) 57 IR 271.
Bradshaw v Kyle & Anr, unreported, Supreme Court of Western Australia, 9 February 1996, Library No. 960063.
Cottle v Cottle [1939] 2 AER 535.
Holmes v Nielsen [1979] Tasmanian Reports 89.
In the Marriage of Kennedy (1995) FLC 92-605.
Livesey v NSW Bar Association (1983) 151 CLR 288.
Metcalf & Ors v Permanent Building Society (In Liquidation) 20 June 1994 Supreme Court of Western Australia, Malcolm CJ, Nicholson & Anderson JJ, unreported.
Metropolitan Properties Company (FGC) Ltd v Lannon [1969] 1 QB 577.
Minister for Immigration and Ethnic Affairs & Anr v Mok Gek Buoy (1994) 127 ALR 223.
R v George & Ors (1987) 9 NSW LR 536.
R v Watson; Ex Parte Armstrong (1976) 136 CLR 248.
Re Finance Sector Union of Australia, Ex Parte Illaton Pty Ltd (1992) 66 AJR 583.
Re Renaud, Ex Parte CJL (1986) 60 ALJR 528.
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSW LR 358.
Stollary v Greyhound Racing Control Board (1972) 128 CLR 509.
Webb v R (1994) 181 CLR 41.
Winningham v R. (1995) 69 ALJR 775.
JRS Forbes, "Disciplinary Tribunals", 1995, Law Book Company, paragraph 15.17.
NATIONAL TERTIARY EDUCATION INDUSTRY UNION ON BEHALF OF MS LYNN FISHER v EDITH COWAN UNIVERSITY - WI 1061 of 1996
Before: RITTER JR
Place: PERTH
Date: 23 August 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1061 of 1996
B E T W E E N:
NATIONAL TERTIARY EDUCATION INDUSTRY UNION
ON BEHALF OF MS LYNN FISHER
Applicant
A N D:
EDITH COWAN UNIVERSITY
Respondent
MINUTE OF ORDERS
23 AUGUST 1996 RITTER JR
THE COURT ORDERS THAT:
The period of notice required for the making of this application under Order 19 rule 3 be abridged.
The balance of the hearing of the application under section 170EA of the Act is adjourned for hearing before another Judicial Registrar on 26 August 1996 at 10 am.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1061 of 1996
B E T W E E N:
NATIONAL TERTIARY EDUCATION INDUSTRY UNION
ON BEHALF OF MS LYNN FISHER
Applicant
A N D:
EDITH COWAN UNIVERSITY
Respondent
REASONS FOR DECISION
ON NOTICE OF MOTION
23 AUGUST 1996 RITTER JR
Ms Fisher has made an application under section 170EA of the Industrial Relations Act 1988 (C'th) ("the Act"). The applicant is the union of Ms Fisher, who was employed by the respondent as a lecturer, Level B, in Academic Dance Studies at the Western Australian Academy of Performing Arts. This is an academy of the respondent.
The applicant alleged that Ms Fisher's employment was terminated contrary to the Act on 31 December 1995, having commenced on 1 January 1993. The application was listed for trial to commence on 8 July 1996. However, on that date, I heard what was, by agreement between the parties, in effect, a preliminary issue instituted by a notice of motion, returnable at 10 am on 8 July 1996. This was an application pursuant to Order 20, rule 2(1)(a) of the Industrial Relations Court Rules that the application be dismissed. The basis of the notice of motion/preliminary issue was that the Court did not have jurisdiction under section 170EA of the Act because this was not an application to the Court in respect of termination of employment.
On 16 July 1996, I dismissed the notice of motion and ordered that the further hearing of the application be held at such time and in such manner as directed by the Court. Reasons for the decision were then published. At page 54 of my reasons, I stated that "the Court has jurisdiction to hear the application under section 170EA of the Act." This does not, of course, mean or indicate in any way that the applicant has any particular prospects of success with the application under section 170EA. All that this judgment does is determine that the Court has jurisdiction to hear the application under section 170EA. Whether or not the termination of the employment relationship by the respondent was unlawful is a separate matter. This will, of course, depend on whether there has been a breach of any particular section of the Act, including sections 170DC and 170DE. These are not matters on which I have as yet considered any evidence".
The application under section 170EA of the Act was listed for hearing before me on 22 and 23 August 1996.
On 20 August 1996, there was filed at the Court a notice of motion by the respondent's solicitors (appointed on 19 August 1996), seeking two orders. These were:-
That the hearing dates be vacated and the proceeding be subsequently relisted before a Judicial Registrar other than Judicial Registrar Ritter.
That the period of notice required for the making of this application under Order 19 rule 3 be abridged.
The notice of motion was heard on 22 August 1996. The argument of the notice of motion took the whole day. I then reserved my decision until 2.15 pm on 23 August 1996.
The notice of motion was supported by an affidavit of Dr Alan Cant. Dr Cant is the Assistant Director of Human Resources of the respondent.
The affidavit states the basis upon which it was submitted, that the application be relisted before a Judicial Registrar other than myself, as follows:-
"2.On 15 August 1996 the respondent received an application alleging unlawful termination of employment, filed in the Australian Industrial Relations Commission as application U61101/06. The application was made on behalf of Ms Nicola Ritter, by the National Tertiary Education Union, WA Division.
3.I am informed and verily believe that the abovementioned Ms Ritter is a lecturer in the Department of Computer Science at the respondent. I understand her application to be in relation to an alleged termination of employment by way of the expiry of her fixed term contract, and a failure by the respondent to offer a further contract after that expiry.
4.I am informed and verily believe that the abovementioned Ms Ritter has an immediate familial relationship with the Judicial Registrar listed to hear the present proceeding on 22 and 23 August 1996.
5.On my understanding of the issues involved in the present proceeding and Ms Ritter's application, there is substantial similarity in the matters which arise, both on factual and jurisdictional issues.
6.It is respectfully submitted that the facts described above are sufficient to give rise to a reasonable apprehension of bias in the Judicial Registrar listed to hear the present proceeding. It is further respectfully submitted that the Judicial Registrar should therefore not hear this matter and the matter should be relisted before another Judicial Registrar."
The applicant did not join with the respondent in seeking the orders sought in the notice of motion.
As set out above, paragraph 4 of the affidavit asserts that Ms Ritter had an "immediate familial relationship" with me. I stated to Mr Millar, for the respondent, at the outset of the proceedings that I did not understand what was meant by this expression. He said that it meant that Ms Ritter was a member of my immediate family and said that the information of Dr Cant and himself, who assisted Dr Cant in the drafting of the affidavit, was that Ms Ritter was my sister.
For the assistance of the parties and the interested public, I then advised the parties of the following:-
"The respondent's notice of motion seeks the hearing dates to be vacated and the proceedings to be subsequently relisted before a Judicial Registrar other than myself. The notice of motion is supported by an affidavit of Dr Alan Cant, Assistant Director of Human Resources of the respondent.
Paragraph 2 states that on 15 August 1996, the respondent received an application alleging unlawful termination of employment, filed in the AIRC as application U61101/96. The paragraph says that the application was made on behalf of Ms Nicola Ritter by the National Tertiary Education Union, WA Division.
In paragraph 3, Dr Cant says that he is informed that the application of Ms Ritter is "in relation to an alleged termination of employment by way of the expiring of her fixed term contract, and a failure by the respondent to offer a further contract after that expiry".
Paragraph 4 states that Dr Cant believes that "the abovementioned Ms Ritter has an immediate familial relationship" with me.
Paragraph 5 deposes that "on my understanding of the issues involved in the present proceeding and Ms Ritter's application, there is substantial similarity in the matters which arise, both on factual and jurisdictional issues".
Paragraph 6 asserts that "the facts described above give rise to a reasonable apprehension of bias" in me, and that I "not hear this matter".
For the assistance of the parties, I advise that Ms Nicola Ritter is my sister. I did not know that she had filed an application with the AIRC until District Registrar Richardson advised me of the affidavit of Dr Cant on 20 August 1996. I have not discussed Ms Ritter's application nor current employment situation with her. I have a limited knowledge of Ms Ritter's current employment situation from conversations with other family members. My understanding is that the position Ms Ritter applied for was a promotional position at Edith Cowan University and that she was not offered an interview.
As stated above, Dr Cant asserts a substantial similarity between Ms Ritter's application and the application before the Court on factual and jurisdictional issues. The jurisdictional issue in this application was decided in a judgment delivered on 16 July 1996 in Perth. Therefore, whether there is a similar jurisdictional issue raised in Ms Ritter's case would seem immaterial.
The factual situation of Ms Ritter's application, as my understanding above reflects, is different from that of Ms Fisher, who was not applying for a promotional position, as I understand it, was interviewed and was on a short list of two. It is also noted that Ms Ritter's application was only filed at the AIRC recently and is not and may never be referred to the Court under section 170ED of the Act. If it is, obviously, I will take no part in that application.
The parties should also be aware that I was absent from Western Australia in Melbourne, Adelaide and Christmas Island respectively from 21 to 27 July, 28 July to 4 August and 6 to 13 August, 1996, on court business and leave. The jurisdictional issue judgment in this matter was handed down by me on 16 July 1996. I do not know the date Ms Ritter filed her application but Dr Cant's affidavit states that the respondent received it on 15 August 1996. I do not know the date on which it is asserted by Ms Ritter that the respondent terminated her employment. I have not discussed with Ms Ritter her application for employment with Edith Cowan University, but my recollection is that I was aware from discussions with other family members that she was unsuccessful in her application, when I returned from Melbourne on 27 July 1996 or after I returned from Adelaide on 4 August 1996."
I advised the parties that I had insufficient details of Ms Ritter's application to enable me to assess the assertion made by Dr Cant in his affidavit that there was a substantial factual similarity between Ms Ritter's application and the application of Ms Fisher.
I therefore received from the parties as Exhibit NM1 the application which has been filed on behalf of Ms Ritter by the union. The document is signed by Mr Hodgson of the union and dated 9 August 1996. The document is an Australian Industrial Relations Commission pro forma Form 28, Application for Relief in Respect of Termination of Employment. At point 21 of the application, next to the heading Brief Summary of Reason/s Given for Termination (or attached), the form is left blank. I was advised by Mr Claydon that there was no attachment to the document. At point 11 of the form there is listed as the last date worked, 31 December 1996. At point 10 of the form it indicates that written notice of termination was given on 24 July 1996. These two parts of the form make it clear that the application of Ms Ritter is made in anticipation of an expiry of employment on 31 December 1996, having been advised in writing of this on 24 July 1996.
It was also confirmed to me by the parties that Ms Ritter had applied for a position in 1996 at a higher level than the one that she currently holds. I was advised that she is currently a lecturer, Level A, at Edith Cowan University. I was advised that the position she applied for was a lecturer, Level B. I was also advised that lecturer, Level B, is a higher level than lecturer, Level A.
Also, the parties confirmed that in this application, Ms Fisher was a lecturer, Level B, and that the position she applied for was that of a lecturer, Level B.
I was also provided with another document in relation to Ms Ritter's employment with the university, being a letter to Ms Ritter dated 16 April 1996. Omitting formal parts, this letter reads:-
"I am writing in regard to your current position in the university. This position expires at the end of 1996. In accordance with Edith Cowan University Policy, as negotiated between the NTEU (ECU Branch) and Edith Cowan University in July 1993, I advise that the position will not be ongoing and that the contract will conclude on its due date. The position itself will cease to exist and a new Level B position involving ISL activities is likely to be advertised. You are encouraged to apply for this position, although it must be made clear that there is no guarantee of your being the successful applicant.
I would take this opportunity to thank you for your contribution to the Faculty, and I wish you every success in the future.
Yours sincerely,
(Signed)
JM Remmer
Professor and Dean
Science, Technology and Engineering"
Mr Claydon submitted, and it was not disputed by Mr Millar, that this letter was one sent to Ms Ritter in accordance with standard university policy.
Nevertheless, there is some difference between that letter and a memorandum that Ms Fisher received from Duncan Ord, the Dean of School of Dramatic Arts dated 23 June 1995. This document reads:-
"You will be aware that your one year contract will expire at the end of 1995 and it is the decision of the School to formally advertise a three year appointment, now that we have had the opportunity of consolidating the Dance Department staff structure.
It is University and Academy Board policy that all positions be advertised, but obviously I strongly urge you to apply.
The selection criteria and duties and responsibilities for the position will be prepared by August/September with the selection process being undertaken throughout October. I will advise you when the advertisement for the position is to be placed before the public."
I should add that, prior to it being mentioned and tendered as an exhibit in Court, I had not seen, nor had any knowledge of, the letter from Edith Cowan University to Ms Ritter dated 16 April 1996. I should also add, for the information of the parties and the public, that my understanding of Ms Ritter's employment situation earlier this year was that she was on maternity leave, having given birth to a daughter in February 1996. I was aware that she had plans to and did return to her employment at the Edith Cowan University, and that she was contemplating further employment with the university, and/or studying for a PhD.
Contrary to the position prior to the hearing of this application, I am now aware that Ms Ritter received notification that her employment relationship with the university would not continue next year, by letter dated 24 July 1996.
THE BASIS OF THE APPLICATION
In general terms, the basis of the application before me is that the parties and/or the public may have a reasonable apprehension of bias if I were to hear Ms Fisher's substantive application. The basis of the submission is that there is a substantial similarity between Ms Fisher's application and the application of Ms Ritter, both on factual and jurisdictional issues. As stated earlier, I pay little regard to the suggestion that there are similar jurisdictional issues raised. This is because I determined the jurisdictional issue in relation to Ms Fisher's case on 16 July 1996.
In relation to the factual similarities between Ms Ritter's case and that of Ms Fisher, Mr Millar did not dispute the assertion that I made earlier that Ms Ritter was not shortlisted nor interviewed for the position that she applied for, whereas Ms Fisher was on a two-person short list and interviewed.
Mr Millar submitted that there was an overlap between the two applications, in that both applications would involve a consideration of the issue of there being a valid reason for termination of employment in the context of a selection committee making a decision to employ one person and not the applicant before the Court. He submitted that whether Ms Fisher or Ms Ritter were applying for a position of the same level or not was immaterial; the decision made by the university was not to offer further employment to the individuals in the following year. He also pointed to the fact that the union was representing both Ms Fisher and Ms Ritter and, obviously, the respondent was the same in each case.
Mr Millar submitted that the way in which the application of Ms Fisher is decided could give the union and/or Ms Ritter cause for optimism or pessimism, depending on the outcome.
Mr Millar also pointed to the fact that there are few, if any, decisions on the application of section 170DE of the Act, in the context of a failure to continue an employment relationship, where there had been an expiry of a fixed term contract and the decision not to continue to employ an applicant, where there was no dissatisfaction with the applicant's conduct or performance and where it was considered that another applicant had greater merit for the position. Mr Millar also submitted that the question of a remedy, if a contravention of the Act was found, could raise similar issues in the application of Ms Fisher and that of Ms Ritter.
Mr Millar emphasised that it was not being submitted that there was any actual bias in this case. It was, he submitted, a matter of perception.
OUTLINE OF THE APPROPRIATE TEST
In Webb v R (1994) 181 CLR 41 at 74, Deane J said that:-
"The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest; that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias." (omitting footnotes)
After the words "overlap the first", in relation to the third category, a footnote to the judgment says, "eg, a case where a dependent spouse or child has a direct pecuniary interest in the proceedings".
Mr Millar submitted that the apprehension of bias in this case was that of the third category, perhaps with an overlap with the first.
In Winningham v R. (1995) 69 ALJR 775, the High Court (Dawson, McHugh and Gummow JJ), in allowing a special leave application and appeal, said in a judgment delivered by Dawson J that "the test has been expressed in different ways, but it requires the question to be asked, whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter". His Honour stated that the law on the subject is well settled in this country in, for example, Webb v R. (1994) 181 CLR 41 at 47.
The page of Webb to which his Honour referred was a page from the judgment of Mason CJ and McHugh J, where their Honours said:-
"When it is alleged that a judge has been or might be actuated by bias, this court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case . . . the principle behind the reasonable apprehension or suspicion test is that it is of fundamental importance that justice not only be done, but should manifestly and undoubtedly be seen to be done." (omitting footnotes)
One of the footnotes to this passage of the judgment of their Honours is to the well known judgment of the High Court on this topic of Livesey v NSW Bar Association (1983) 151 CLR 288 at pages 293 - 294. There, five Justices of the High Court said, "That principle is that a judge should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it."
Reference can also be made to the discussion by Full Courts in AWU-Fime v Acton (1994) 57 IR 271 at 276 - 278; Re Finance Sector Union of Australia, ex parte Illaton Pty Ltd (1992) 66 ALJR 583, and Minister for Immigration and Ethnic Affairs & Anr v Mok Gek Buoy (1994) 127 ALR 223 per Black CJ, pages 224 226, and Sheppard J, pages 238 - 244.
THE OBLIGATIONS OF JUDICIAL OFFICE
The cases also make it clear that a judicial officer has an obligation to sit and hear the cases allocated to them, and should not lightly accede to an application that they excuse themselves on the basis of an apprehension of bias. Therefore, merely because such an application is made, or that a party asserts that they have an apprehension of bias, is insufficient for the judicial officer to excuse themselves. There is, as pointed out at paragraph 15.17 of the text Disciplinary Tribunals, JRS Forbes, Law Book Company, 1990, "concern lest the apparent bias test be manipulated by unmeritorious litigants to the detriment of the administration of justice". Forbes refers to the decision of Stollary v Greyhound Racing Control Board (1972) 128 CLR 509 at 519, where it was emphasised that the test of apparent bias "does not, of course, warrant fanciful and extravagant assertions and demands". The learned author continued that "the suspicions of the ultra-sensitive, paranoid or cynical" are not the legal standard. The party alleging bias must establish it by admissible evidence; mere assertions of suspicion are not enough. Although a finding of bias is not necessarily perjorative, it should not be lightly made". Forbes also refers to the decision of Re Renaud, Ex Parte CJL (1986) 60 ALJR 528, where Mason J said that "it seems that the acceptance by this court of the test of reasonable apprehension of bias in such cases as R v Watson; Ex Parte Armstrong (1976) 136 CLR 248 . . . has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves . . . 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 . . . [and not] that he will decide the case adversely to one party . . . although it is important that justice must be seen to be done, it is equally as important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their cases tried by someone thought to be more likely to decide the case in their favour".
It is clear, I think, that an application of an apprehension of bias should not be made lightly. After all, judicial officers take an oath or make an affirmation before proceeding to discharge the duties of their office.
Section 387 of the Act states that before proceeding to discharge the duties of his or her office, a Judicial Registrar must take an oath, or make an affirmation, in the form set out in section 473, before a Judge of the Court. Section 473 provides that the form of the oath is that the Judicial Registrar swears that they will well and truly serve in the office of Judicial Registrar of the Industrial Relations Court of Australia and that they will "do right to all manner of people, according to law, without fear or favour, affection or ill will".
An application to a Judicial Registrar that there is a reasonable apprehension that they will be biased in the hearing of a case is, in effect, a submission that if the Judicial Registrar hears the case, there might be a reasonable apprehension that they might not act in accordance with their oath of office.
In Metcalf & Ors v Permanent Building Society (In Liquidation) 20 June 1994, Supreme Court of Western Australia, Malcolm CJ, Nicholson & Anderson JJ, (unreported), the Chief Justice of Western Australia said at page 24 that "it is an abdication of the judicial function and an encouragement for procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he has been requested by one party to do so, on the grounds of a possible appearance of bias. The test, in every case, is whether there is a reasonable apprehension of bias. It is sometimes very easy for persons to assert an apprehension of bias in circumstances where no reasonable person would apprehend it".
Anderson J, who essentially agreed with the reasons expressed by Malcolm CJ, said at page 25 that "practitioners should not lightly request a judicial officer to disqualify himself on the ground of a reasonable apprehension of bias. Even although there might not be, in such a request, an allegation of actual bias, still the request carries the suggestion that the judge might not decide the case impartially or without prejudice. That is, of course, a serious matter. The suggestion should not be made unless there is a firm basis for it, if for no other reason than it ought not to be acceded to by the judge concerned unless the existence of a reasonable apprehension is firmly established to him. It is the judge's duty to sit on the cases assigned to him and it is in the public interest that he discharge that duty unless there is a good reason that he not do so".
Given this admonition, which I mentioned to Mr Millar early on in the hearing, I was surprised when, in the afternoon, he said that he had no "formal instructions" on whether the respondent would, at a later stage, submit that the decision made in this proceeding by me on the jurisdictional issue on 16 July 1996 could be infected by a reasonable apprehension of bias. He submitted that the respondent was "focussing on today's matter". He stated that "the university will have cause to take advice on the decision already made, in light of more recent events".
Mr Millar made this submission after I had adjourned, to enable him to take instructions on the attitude of the university on this issue, after it was raised by Mr Claydon in his submissions, which commenced in the afternoon session.
As stated, in light of the admonition by Anderson J in the Metcalf case, I was surprised by what Mr Millar told me, given that, as I had pointed out to him, the jurisdictional decision made by me in this matter was made on 16 July 1996, some eight days, as I am now aware, before Ms Ritter received written notification that she would not be employed by the university in 1997 on 24 July 1996. On 24 July 1996, I was hearing a case in Melbourne. Finally, Ms Ritter's application was not filed until 9 August 1996, on which date I was working for the Court on Christmas Island. Further, as stated earlier, I was not aware of the letter that Ms Ritter received from the university dated 16 April 1996.
Given all of this, I fully expected Mr Millar, on behalf of his client, to readily concede that there could be no possible suggestion of a reasonable apprehension of bias in my decision on the jurisdictional argument. In my view, if the respondent has a concern that that decision could be infected by a reasonable apprehension of bias, the concern is either fanciful or extravagant, or the result of the ultra-sensitive, paranoid or cynical, to use the phrases referred to in Forbes at paragraph 15.17, where reliance is placed on the decision of Stollary and also S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSW LR 358 at s374 per Kirby P.
Anderson J, in Metcalf, said at page 25 that "it goes without saying that it would be quite wrong to make an application for disqualification, with its serious connotations as regards judicial impartiality and with its potential for disruption and delay, for some collateral, tactical purpose." Certainly, from the submissions made by Mr Claydon, members of the Executive of the union hold the view that this was the reason for the application in this case.
THE ELEMENTS OF THE TEST OF APPREHENSION OF BIAS
As the authorities referred to earlier indicate:-
All of the circumstances of a case need to be taken into account. I have set out earlier in this judgment the relevant factual circumstances. As Street CJ said in R v George & Ors (1987) 9 NSW LR at 536, "It is not enough that there be some apprehension to some uninformed and uninterested person. It must be reasonable apprehension and it must be an apprehension which would be apparent to or entertained by a reasonable person with a full comprehension of the circumstances of each case."
The apprehension of bias can be that of either the parties and/or hypothetical members of the public. In this case, Mr Millar did not say that his client did not entertain an apprehension of bias, so it is both the resondent and the public I am to have regard to. In any event, the judgment of Sheppard J in Mok Gek Buoy at page 244 suggests that there is no difference, in looking at the matter from either viewpoint.
It is enough that the parties or the public might entertain an apprehension of bias.
The apprehension of bias must be a reasonable apprehension.
The reasonable apprehension is not of bias, but that the judicial officer might be biased.
The test of bias seems to be, generally, that the judicial officer could not bring an impartial and unprejudiced mind to the resolution of the question involved.
Here, as stated earlier and relying on the third category set out by Deane J in the decision of Webb, the apprehension is said to be based on the link between my hearing of this case and an interest that Ms Ritter, my sister, may have in the outcome of the hearing of the case. As Deane J stated, the category of disqualification consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in or otherwise involved in the proceedings.
The argument for the respondent here is that Ms Ritter is someone with whom I have a family relationship as a sibling, and who is interested in this proceeding. Interested, of course, does not mean in this context curious, but interested in a financial, tactical or juridical sense.
Both advocates advised that they had been unable to find a case on all fours with the matter before the Court; that is, where a relation of the judicial officer concerned is not a party to the proceedings but may, on the argument of Mr Millar, gain a juridical advantage, depending upon the outcome of the decision in Ms Fisher's application.
The parties sought to put before me some broadly analogous situations. Mr Millar cited the authority of Metropolitan Properties Company (FGC) Ltd v Lannon (1969) 1 QB 577. In that case, there was a contention of bias against the chairman of a rent assessment committee, making a determination under the Rent Act (UK) 1965. The committee was determining the fair rents of flats in Oakwood Court in a London registration area. The chairman, a solicitor, resided with his parents in Regency Lodge, in a different London registration area in a flat of which his father was a tenant and the landlords had recently applied to a rent officer for a determination of a fair rent. The Regency Lodge landlords were a company in the same group as the appellant landlord, and the chairman had advised his father about the fair rent for his flat, and had, from time to time, in his capacity as a solicitor, as had his partner, personally advised other Regency Lodge tenants in disputes with their landlords. The appellant landlords contended that the connection between the Oakwood Court and Regency Lodge flats was so close that the rents determined for Oakwood Court would have such a powerful effect on their determination to be made for Regency Lodge that the supposition of bias would inevitably rise. In the Court of Appeal, Denning MR said that "justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: 'the judge was biased'" (page 599). The Master of the Rolls also said, "In this case, he (the chairman of the rent committee) was not a tenant, but the son of a tenant. But that makes no difference. No reasonable man would draw any distinction between him and his father, seeing he was living with him and assisting him with his case." (page 600) The other members of the Court agreed.
In Cottle v Cottle (1939) 2 All ER 535, it was held that there was a reasonable apprehension of bias in a case where in a summons before justices alleging desertion by a husband, the chairman of a Magistrates Bench was a friend of the wife's mother. Mr Millar also cited In the Marriage of Kennedy (1995) FLC 92-605.
In Holmes v Nielsen (1979) Tasmanian Reports 89, Green CJ of the Supreme Court of Tasmania ruled that the Magistrate ought to have disqualified himself and not passed sentence against a person, when the Magistrate said in open court that he was a personal friend of the offender's father.
However, with reference to the last mentioned case, I note that in S & M Motor Repairs v Caltex Oil at page 370, Kirby P said that "particular sensitivity must be shown in cases which are criminal, or criminal in nature . . . this is because it is the public law which is being applied. The reputation and even the liberty of the persons before the Court are at stake".
In the same judgment at page 368, his Honour said that "the apprehension of bias may be grounded in prior judicial activity (as it was in Livesey) or in family, financial or professional relationships with one of the parties. The determination of whether there is, by the stated test, a reasonable apprehension of bias depends upon the full understanding of the facts from which it is suggested that such apprehension arises. In so far as such bias is said to arise from a relationship between the parties, it is clearly relevant to know the duration of that relationship, its intensity and nature, and the time that has elapsed between its last renewal and the performance of judicial functions said to be affected by it".
Interestingly, Forbes, at paragraph 15-62, merely says that "a close familial relationship warrants careful consideration", and at 15.63, "there is no magic in relationships of blood or marriage".
In this context, I raised with Mr Millar the issue of whether the nature of the relationship between me and Ms Ritter was relevant. Relations between siblings vary greatly. On the one extreme, they may be close or even inseparable confidants and friends; on the other hand, there may be a complete dissociation from and disintegration of the relationship, or intense hatred. (I stress this is not the situation here.) The application of the respondent carries with it the assumption that either the respondent or a fair minded member of the public might think that I could decide the Fisher case in favour of Ms Fisher, because I thought or hoped, consciously or unconsciously, that this may assist the application of Ms Ritter. If a person's sibling was disliked by them, then an apprehension of bias in favour of the sibling may not arise.
The respondent's submission also carries the assumption that the judicial officer in such a case would, consciously or subconsciously, want the sibling to have the tactical or juridical advantage which Mr Millar submits that Ms Ritter may have, if the Fisher case is decided in the applicant's favour. Maybe, for all the parties or the public know, my private belief is that Ms Ritter's interests would be best served if she was not re-employed by the respondent next year; or, a judicial officer in my position may, conceivably, hold the view that "a woman's place was in the home", and therefore even if they dearly loved their sister, strongly hoped that their application for reinstatement of employment should not succeed in the circumstances of this case. Perhaps there is no need to speculate on such issues. It is sufficient to say that apprehension and reality can be distinct and that the perception of the public is an elastic concept, and incapable of being known precisely.
What is relevant, in the end, is to consider what the respondent and/or reasonable members of the public might think. Is it conceivable that in the circumstances of this case, members of the public or the respondent may reasonably apprehend that the respondent had not been given a "fair go", to put it colloquially, because of the facts in this case, if I were to continue to hear it?
In Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Anr (1996) 135 ALR 753, a decision of Merkel J of the Federal Court of Australia, his Honour had to consider an application that he disqualify himself from hearing the application before the Court on the ground that senior counsel briefed to appear in the matter for the first and second respondents was someone with whom he had had a longstanding personal, professional and financial association. In his judgment, his Honour reviewed the law on apprehended bias. His Honour referred to the judgment of Deane J in Webb v R., involving his Honour's categorisation of the cases where bias is seen to be apprehended. At page 759, his Honour referred to Christopher Enright, "Judicial Review of Administrative Action" (1985) paragraph 7.4.9, where the learned author said that "family connections can be a cause of bias." His Honour referred to some cases and, at page 760, said that "in such cases, the question is not whether the mere existence of the association in question was disqualifying, but whether its nature and extent in the circumstances of the particular case resulted in the line being crossed. More precisely, the line to be crossed in each case is defined as whether the association is such that a reasonable bystander can say the adjudicator might not bring an impartial and unprejudiced mind to the resolution of the case. There must be something in the nature or the extent of the association which leads that bystander to conclude, whether for friendship, love, money, fear, favour or otherwise, the adjudicator might be influenced by it. Where the association in question is trivial, remote or indirect, the Courts might conclude that it is not a disqualifying one".
In the end, I accept the submission of Mr Claydon that the question is one of discretion involving matters of degree, evaluation and judgment. It is a judgment that can best be made in a calm and detached fashion. It is, of course, not always easy to be calm and detached when what is at issue is that a member of the public and/or one of the parties may have a reasonable apprehension that if one is to continue to hear a case, they may not be acting in accordance with their oath of office.
Also, different minds may view things differently. Kirby P, in Australian National Industries Ltd v Spedley Securities (In Liquidation) (1992) 26 NSW LR 411 at 417, said that:-
"It is no disrespect to the judges who have ventured their opinions upon the resolution of problems such as this to identify a certain ambivalence in the expression of the tests which are to be applied. One decision upholds the asserted apprehension of bias. The next dismisses it. One decision asserts the duty of the judicial officer to sit and not disqualify himself or herself. The next reverses a decision of a judge to sit, on the ground of apprehended bias. As in this case, different judges considering the same facts reach different conclusions. To say this merely acknowledges the unique features of each case; the differing composition of the courts and tribunals concerned; the inescapably different predilection and sensitivities of judges seeking to interpret the response of the hypothetical reasonable or fair-minded observer, and the ebb and flow of judicial opinion over time - there is no final or ultimate formula which can be easily applied to dispose of cases such as the present. In each case, the judicial officers concerned, whether at first instance or an appeal, must apply the well-worn words. But in the end, the response which each gives may be more instinctive and less deductive than the reasoning of the courts has tended to suggest."
This passage was cited with approval by Steytler J in Bradshaw v Kyle & Anr, unreported, Supreme Court of Western Australia, 9 February 1996, Library No. 960063 at pages 12 - 13.
It is, of course, important that judicial officers disclose to the parties a situation where there may be cause for concern on the grounds of a reasonable apprehension of bias. This is something which the judicial officer should be conscious of, and it can arise in an infinite variety of ways. For example, I have had occasion since my appointment as a Judicial Registrar, to advise parties in cases before me that I had served on committees with a legal practitioner who was being called to give evidence on behalf of an applicant and that, quite unknown to me, a niece of mine had applied for a job with a respondent to an application before me, and had supported her application with a reference that I had written for her some time earlier. In both instances, there was no objection to my continuing to hear the cases concerned.
Judicial officers will bring matters of this type to the attention of the parties because the judicial officer has a real interest in justice being done and being manifestly seen to be done. Kirby P in S & M Motor Repairs v Caltex Oil at 369 and following referred to some of these issues. Earlier in this judgment, his Honour referred to the fact that judges, by the nature of their office, aspire to achieve high standards of justice. The same can be said, from my experience, of the full time and part time Judicial Registrars of this Court. In particular, I should say that it is difficult to assess an application that a respondent or a fair-minded member of the public may apprehend that one will bring an impartial or prejudiced mind to the hearing of an application, when there is no direct involvement of one's family member, and where there may well be important factual differences between the application of Ms Fisher and the application of Ms Ritter. This is especially so when one has been brought up with a vital sense of honesty, integrity and intellectual probity.
In deciding this matter, I have been assisted by the statement by Kirby P on the enduring principle of judicial independence, which is set out at page 360 of the S & M Motor Repairs v Caltex Oil decision. It is, I think, worthwhile setting out two paragraphs which have been of particular assistance, as follows:-
"Judges, by the nature of their office, aspire to achieve high standards of justice and, by those standards, to contribute to the perception of justice held by particular litigants as well as by the community at large. Similarly, judges are aware of the necessary imperfections and practical limitations of any system of justice. To demand perfection would be unrealistic. The law does not demand it. Reasonable members of the public and so-called "right-minded observers" do not expect it. Even litigants, naturally sensitive to their own interests, rarely anticipate, if they are reasonable, perfection in our judicial processes. Most recognise that defects will arise, some of which need not be cured.
However, it is a tribute to the high standards which the judges usually attain, that the expectations of litigants and of the community remain very high indeed. Highest of all is the expectation that a litigant will have his or her case tried by a judge who is independent of the parties before the court. Learning and experience, clear expression and punctuality, promptness in decision-making and temperate behaviour in court are all important. But they pale into comparative insignificance beside the actuality and appearance of independence on the part of the judge. The other features are desirable and usual attributes of judges. But independence, with integrity, is the very heart of the matter. It is the reason why, in hotly contested disputes involving liberty, status, reputation, power and vast funds, our society entrusts decisions to judges and accepts their orders. Independence, and the manifest appearance of independence, are thus highly prized judicial qualities. At stake is not just the acceptance of a judge's decision by the litigants but also the acceptance by the community of the administration of justice by judges."
As stated earlier, the decision of a judicial officer faced with an application that they disqualify themselves on the grounds of a reasonable apprehension of bias will often be a difficult and finely judged decision. This has been such a decision. In the end, I have come to the conclusion that either the respondent or a reasonably well-formed and reasonable member of the public could form the impression that I may not, if I continued to hear this matter, bring an impartial mind to bear upon the questions at issue. This is because, for the reasons submitted by Mr Millar, there may be either a juridical or tactical advantage or disadvantage to Ms Ritter if this decision is decided, one way or the other.
I am confident that I could decide Ms Fisher's application without thought of the consequences for Ms Ritter. However, that is not the test. In Bradshaw, Steytler J quoted with approval from the judgment of Samuels JA in ANI Ltd v Spedley Securities, at 428, where his Honour said the reasonable observer "is not presumed to have any personal knowledge of the character or ability of the member of the relevant Court", quoting Livesey at 299. At the end of the day, I would not want it said that, in continuing to hear this case, I had compromised either the integrity of the Court, myself or my family; or leave the parties or the fair-minded observer thinking that justice was not done by my hearing the case. Whilst it is natural, I suppose, to want to hear cases and try to do justice between the parties, sometimes discretion is the better part of valour.
For these reasons, I will accede to the notice of motion.
I stated to the parties yesterday that the hearing of the substantive application would, irrespective of this decision, proceed on Monday, 26 August 1996 at 10 am, either before me (the case which I was going to hear on that day was adjourned yesterday afternoon) or before another Judicial Registrar. Therefore the orders that I will make will be as follows:-
The period of notice required for the making of this application under Order 19 rule 3 be abridged.
The balance of the hearing of the application under section 170EA of the Act is adjourned for hearing before another Judicial Registrar on 26 August 1996 at 10 am.
I certify that this and the preceding 25 pages are a true copy of the reasons for decision of Judicial Registrar Ritter.
Associate :
Dated : 23 August 1996
APPEARANCES
Representatives for the Applicant: Mr W Claydon
Mr N Hodgson
Organisation for the Applicant: National Tertiary Education Industry Union
Counsel for the Respondent: Mr R Millar
Solicitors for the Respondent: Mallesons Stephen Jaques
Dates of Hearing : 22 August 1996
Date of Judgment : 23 August 1996
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