Gary Alexander Haynes and Scoresby Transport Pty Ltd

[1994] IRCA 190

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI207 of 1994

BETWEEN:

GARY ALEXANDER HAYNES
Applicant

AND

SCORESBY TRANSPORT PTY LTD
Respondent

REASONS FOR JUDGMENT
(Delivered Ex Tempore - Revised from Draft Transcript)

2 November 1994  Judicial Registrar M. D. Murphy

Counsel for the Respondent in this matter has made an application that I disqualify myself, presumably on the grounds of a reasonable apprehension of bias (because he and I have in recent days had discussions “between counsel” in a matter in which we are both involved in the Employee Relations Commission of Victoria).  I refuse that application.  I refer to the High Court decision in Re Polites and Anor; Ex parte The Hoyts Corporation Pty Limited and Ors, (1991) 38 IR 114. In that case a member of the Full Bench of the Australian Industrial Relations Commission had previously been a solicitor for and given advice to one of the parties in the matter. The matter had proceeded part heard and he had disqualified himself.

One of the parties in those proceedings then took an application for a writ of mandamus before the High Court seeking to set aside his decision to disqualify himself.  The High Court did set aside that decision and discussed the position of a reasonable apprehension of bias.  At p120 the Court (Brennan, Gandron and McHugh JJ) said:

A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or a court, for that matter) from sitting in proceedings before that tribunal (or court) to which the former client is a party.  Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court) the erstwhile the legal adviser should not sit.

In this case there is no suggestion that there has been any discussion between the Court and counsel for the Respondent in relation to this proceeding.  The High Court found in that case that the fact that a member of the bench had been a previous legal adviser to one of the parties to the proceeding was insufficient to justify disqualification.  The facts in this matter are even further removed, and as counsel for the Applicant, indicated, if counsel for the Respondent’s application was to succeed it would mean that any member of the Court who has had previous discussions with a member of counsel would be forced to disqualify himself or herself.

It is the Court's opinion that no member of the community could have a reasonable apprehension that the Court would not bring a fair and impartial mind to the matters before the Court in these proceedings and for these reasons I reject the application.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment of Judicial Registrar M. D. Murphy as recorded in the draft transcript and revised by the Judicial Registrar on 8 November 1994.

Associate:

Dated:  

Solicitors for the Applicant: Counsel for the Applicant:	Messrs Slater & Gordon Mr C. Thomson
Solicitors for the Respondent: Counsel for the Applicant:	Mr R. Spicer
Dates of hearing:	2 November 1994
Date of Judgment:	2 November 1994