Gutwein v Ellis - [2022] TASSC 17

[2022] TASSC 17

COURT: SUPREME COURT OF TASMANIA

CITATION: Gutwein v Ellis [2022] TASSC 17

PARTIES: GUTWEIN, Peter (The Honourable)

as Minister administering the State Service Act 2000
v
ELLIS, Neroli (Deputy President, Tasmanian Industrial Commission) (First Respondent) and
Australian Nursing And Midwifery Foundation (Tasmanian Branch) (Second Respondent)

FILE NO:  239/2022
DELIVERED ON:  11 March 2022
DELIVERED AT:  Hobart
HEARING DATES:  10, 22 February 2022
JUDGMENT OF:  Brett J

CATCHWORDS:

Industrial Law – Tasmania – Industrial Commission – Procedure – Industrial dispute referred to Deputy President for hearing and determination – Application for disqualification for apprehended bias on basis that Deputy President authored an industrial agreement relevant to the dispute when Secretary of the industrial organisation party to the dispute – Further ground of apprehended bias on basis of alleged ongoing association arising from honorary award of "life membership" of organisation made after appointment to Industrial Commission – Refusal to disqualify – Relief in the nature of prohibition refused.

Livesey v New South Wales Bar Association (1983) 151 CLR 288; Re Polites; Ex Parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; Ebner v Official Trustee [2000] HCA 63, 205 CLR 337; Charisteas v Charisteas [2021] HCA 29, 393 ALR 389, followed.
R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [2001] AC 119, discussed.
Industrial Relations Act 1984 (Tas), ss 5(4)(b)(ii), 15(1)(d), 29(1), 31(1), 55(1), 58.
Fair Work (Registered Organisations) Act 2009 (Cth).
Aust Dig Industrial Law [3383]

REPRESENTATION:

Counsel:

Applicant: M Jehne
First Respondent: S Bendeich

Second Respondent: E White

Solicitors:

Applicant:  Office of the Solicitor General
First Respondent:  Office of the Crown Solicitor
Second Respondent:  Gordon Legal

Judgment Number: [2022] TASSC 17
Number of paragraphs: 37

Serial No 17/2022
File No 239/2022

THE HONOURABLE PETER GUTWEIN as Minister Administering the State Service Act 2000 v DEPUTY PRESIDENT ELLIS (TASMANIAN INDUSTRIAL COMMISSION) and AUSTRALIAN NURSING AND MIDWIFERY FOUNDATION (TASMANIAN BRANCH)

REASONS FOR JUDGMENT BRETT J

11 March 2022

The first respondent holds office as a Commissioner and the Deputy President of the Tasmanian Industrial Commission (the Commission). I will hereafter refer to the first respondent as the Deputy President. She was appointed to that role by the Governor on 18 September 2017. The appointment commenced in October 2017 and was for a period of five years. For approximately 15 years prior to her appointment, the Deputy President had served as the State Secretary of the second respondent, the Tasmanian Branch of the Australian Nursing and Midwifery Federation (ANMF).
On 25 January 2022, the ANMF applied to the Commission for an urgent hearing in respect of an industrial dispute, which it claimed had arisen between it and the applicant. The asserted dispute related to, among other things, what the ANMF asserted to be inadequate staffing levels and unreasonable workloads of nurses employed in the public health system in Tasmania, particularly in the context of the COVID-19 pandemic. As he was empowered to do by s 15(1)(d) of the Industrial Relations Act 1984 (the Act), the President of the Commission allocated the industrial dispute to the Deputy President for "hearing and determination". However, when the matter first came before the Deputy President, the applicant submitted that she should disqualify herself from hearing the dispute on the ground of apprehended bias. Apprehended bias was said to arise because of the involvement of the Deputy President in the negotiation and finalisation of an industrial agreement, said to be relevant to the proceedings, prior to her appointment and in her capacity as Secretary of the ANMF. It was not asserted then, and has not been asserted in the proceedings before me, that there is any actual bias on the part of the Deputy President in respect of this dispute.
The ANMF opposed the application and the Deputy President refused to disqualify herself. The proceedings stand adjourned before her, presumably awaiting my decision. The applicant now seeks relief in the nature of prohibition restraining the Deputy President from hearing and determining the dispute. The Deputy President has submitted to the jurisdiction of this Court, and the ANMF has been joined as a party to these proceedings and will act as contradictor.

Apprehended bias

The rationale and principles of the apprehended bias rule were recently revisited and summarised by the High Court in Charisteas v Charisteas [2021] HCA 29, 393 ALR 389 at [11]-[12]:
"11 Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that '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 principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, 'it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits'; and, second, there must be articulated a 'logical connection' between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
12 As five judges of this Court said in Johnson v Johnson, while the fair‑minded lay observer 'is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice'." [Footnotes omitted.]
Although these comments were made in the context of a judge, it is not in dispute in this case that the apprehended bias rule applies to a Commissioner allocated to hear and determine an industrial dispute under the Act. However, it is also common ground that the context of the assessment of reasonableness must be modified to take into account the nature of the jurisdiction to be exercised by the Deputy President: Re Polites; Ex Parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78. In particular, rather than applying "ordinary judicial practice", the context will be that appropriate to a Commissioner appointed in accordance with qualifications prescribed by the Act, and dealing with an industrial dispute in accordance with practice and legislation applicable to the Commission.
In this case, the applicant identifies the following matters as factors which might lead a fair minded lay observer to conclude that the Deputy President might not bring an impartial mind to the hearing and determination of the industrial dispute:
·     The Deputy President, as Secretary of the ANMF, was the author of and signatory to an industrial agreement which the applicant says is central to the determination of the dispute. The applicant asserts that the Deputy President will be required to interpret and apply the agreement, and is compromised in this regard by her involvement in its creation. In particular, a fair-minded observer would conclude that it would be impossible for her to consider the meaning of the document objectively having regard to its text, and ignore her subjective intention as one of the persons who actually drafted the document.
·     The Deputy President in her capacity as Secretary of the ANMF was involved in prior proceedings relating to the interpretation and application of the agreement.
·     The Deputy President has an ongoing interest in the Union as a "life member". The apprehension of bias arising from this factor is said to be compounded by the failure of the Deputy President to disclose this life membership during the hearing of the recusal application.
As noted in Charisteas, in order to determine whether these factors give rise to apprehended bias sufficient to require the disqualification of the Deputy President from hearing and determining this dispute, it is necessary to examine the "logical connection" between the factor and "the departure from the required standard of impartiality". The purpose of doing so will be to determine whether the fair minded lay observer would have a reasonable apprehension of bias on the part of the Deputy President.

Authorship of the industrial agreement

The agreement in question is the Nurses and Midwives (Tasmanian State Service) Interim Agreement 2013. The parties to the agreement are the applicant, the ANMF and the Health Services Union. It was approved by the Commission and registered under the Act in November 2013, thereby becoming binding on the parties and their members: see s 58 of the Act.
As already noted, it is common ground that the Deputy President was the Secretary of the ANMF when the agreement was formed, and she signed it on behalf of that organisation. In order to assess the extent of the "logical connection" between that fact and the role to be performed by her in respect of the subject dispute, it is necessary to consider how the agreement will be relevant, if at all, to the dispute. This will involve consideration of the Deputy President's jurisdiction in respect of the dispute.
The application which commenced the proceedings was made pursuant to s 29(1) of the Act. That section provides that "an organisation ... may apply to the President for a hearing before a Commissioner in respect of an industrial dispute". Relevant definitions contained in s 3 are:
"industrial dispute means a dispute in relation to an industrial matter –
(a)that has arisen; or
(b)that is likely to arise or is threatened or impending."
"industrial matter means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes –
(a)a matter relating to –
(i) the mode, terms and conditions of employment; or
...
(b) a breach of ... a registered agreement."
Section 31(1) deals with the Commissioner's powers in respect of a hearing under s 29. That section provides as follows:
"(1) Subject to this section, where the Commissioner presiding at a hearing under section 29 is of the opinion, after affording the parties at the hearing a reasonable opportunity to make any relevant submissions and considering the views expressed at the hearing, that anything should be required to be done, or that any action should be required to be taken, for the purpose of preventing or settling the industrial dispute in respect of which the hearing was convened, that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken."
It can be observed from these statutory provisions that both the concept of an industrial dispute, and the jurisdiction of the allocated Commissioner to prevent or settle the dispute, are extremely broad. The concept of the dispute itself includes aspects of dispute that have both arisen and are likely to arise or threatened or impending. The subject matter of the dispute can be any matter pertaining to the relations of employers and employees. This includes, but is not limited to, the breach of an industrial agreement.
The relevance of the agreement to this case arises because in its application for an urgent hearing, the ANMF described the industrial dispute in the following terms:
"2.1 relates to an alleged breach of the Nurses and Midwives (Tasmanian State Service) Interim Agreement 2013 ('the Agreement'), Appendix C Nursing Hours per Patient Day Model."
The agreement deals with a number of aspects of the industrial relationship between public sector nurses and the government. It appends a document entitled "Heads of Agreement", which sets out various terms and conditions of employment of nurses in the public sector, including matters such as wages, career structure, etc. These are described in the agreement proper as "New terms and conditions of employment." Clause 5.3 of this document is headed "Safe staffing levels." It includes the following:
"Safe staffing levels will be based on efficient and effective care, system improvement, workload management and affordability. The staffing levels will be determined using the NHPPD model and guiding principles together with other relevant tools and processes."
The NHPPD model is a document, which is a further appendix of the agreement. It sets out a number of duties of the employer, which are described in general and aspirational terms. It also sets up a committee for ongoing monitoring of workloads, and a grievance procedure. Clause 6 is entitled "NHPPD Guiding Principles". This clause contains a table which sets out quantitative standards of staff levels, determined on the basis of general criteria. The criteria makes relevant factors such as the complexity, nature and quantity of patient care required in particular wards.
The applicant's argument is that the dispute will require the Deputy President to determine whether there has been a breach of the model, in particular the staffing levels quantified by cl 6. The applicant argues that this determination will necessarily require interpretation of cl 6. There is an identified dispute between the applicant and the ANMF as to whether the hours referred to in the table are intended to be applied absolutely, or are to be averaged across rosters. The applicant will argue that the latter is desirable and intended by the model, and hence the agreement, because of considerations arising from the nature of the work in question and the operation of the workplace generally. The applicant's submission is that the Deputy President will be required to interpret cl 6 in order to resolve this dispute.
The evidence relevant to the Deputy President's involvement in the agreement, and the model annexed to it, is as follows:
· According to the testimony of Ms Caroline Saint, who is, and has been at all relevant times, an industrial officer of the ANMF, the model was first developed in 2002. It was based on an industrial agreement adopted in Western Australia. The Deputy President was the Secretary of the ANMF at the time. She also represented the ANMF in 2006 in an industrial dispute heard by Deputy President Shelley, concerning whether there had been a breach of the benchmark hours under the model in respect of staffing levels of nurses in public hospitals. Although this issue involved the application of the table in cl 6, my review of the reasons for decision of Deputy President Shelley indicate that there was no effective dispute about the breach. The argument seems largely to have been about jurisdiction.
· As already noted, it is uncontroversial that the Deputy President signed the interim agreement in 2013 in her capacity as Secretary of the ANMF. Ms Saint confirmed in a general way that the Deputy President was personally involved in the negotiation of the agreement, but did not give any detail as to what this entailed. Of course, the Deputy President is not and never was a party to the agreement. It is clear from s 55(1) of the Act that an industrial agreement is entered into by the relevant organisations only, and this is obvious in any event on the face of the agreement.
· There was general reference in the submission made by the ANMF representative in the recusal hearing to ongoing negotiations and developments in respect of staffing levels and the application of the model, after September 2017 when the Deputy President's role as Secretary of the ANMF ended upon appointment to the Commission. In the Deputy President's reasons for refusing the disqualification application, she made the following point:
"I'm so far removed from this, I was unaware of ongoing discussions or any amendments or any consultation in regards to the enterprise agreement for the nurses. As I said, it's now been four and a half years. The initial 18 months of my appointment, I did not hear any matters in regard to any nursing disputes that arose, and the President did hear all of those matters."
There is no other evidence concerning the Deputy President's involvement in this agreement.
In Re Polites, the High Court considered the question of apprehended bias in the context of a deputy president of the Australian Industrial Relations Commission. The Deputy President was sitting as part of a Full Bench, which was determining "a number of matters relating to the terms and conditions of employment of employees of" a number of employers, one of which, the Hoyts Corporation Pty Ltd, was a motion picture exhibitor. The industrial hearing was taking place in 1989. In July and August 1986, the Deputy President, who was then in practice as a solicitor, had provided advice to Hoyts as to ways in which it could protect itself from industrial demands by its employees at that time. The advice was not followed by Hoyts. The Deputy President had acceded to an application that he disqualify himself from further participation on the Full Bench.
The High Court (Brennan, Gaudron and McHugh JJ) referred to the "double might test" in Livesey v New South Wales Bar Association (1983) 151 CLR 288, which is reproduced in the passage quoted above from Charisteas, and noted that:
"Again, the test in Livesey cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal's powers exercised. Qualification for membership cannot disqualify a member from sitting."
The High Court went on to consider the qualifications for appointment of a Deputy President and then said:
"The prior involvement of a Deputy President with associations or with governments who are frequently parties to proceedings before the Commission cannot be sufficient by itself to amount to a disqualification from sitting in a particular case; nor can the prior acquisition of 'skills and experience' amount to such a disqualification. Deputy Presidents who are appointed on account of their industrial background are not disqualified merely because persons with that background have a measure of knowledge or are likely to have a particular attitude to the exercise of the Commission's powers. To adopt the words of the Privy Council in Labour Relations Board of Saskatchewan v John East Iron Works Ltd, their background will not necessarily lead them 'to act otherwise than judicially, so far as that word connotes a standard of conduct', even though the background which carries experience and knowledge acquired extra-judicially 'assuredly means that the subject-matter is such as profoundly to distinguish such a tribunal from the courts … '
A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of 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 legal adviser should not sit. A fortiori, if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination." [Footnote omitted.]

The Court then considered for itself the relationship between the advice given in 1986 and the issues arising in 1989. It noted that there was such a relationship but concluded that although the advice "may be relevant" to the questions to be ultimately determined, it would be wrong to uphold the Deputy President's decision to disqualify himself on such non-specific and speculative grounds. It concluded that "there is no foundation for a reasonable apprehension" of bias.
Adopting a similar approach to that taken by the High Court, it is necessary that I examine the real connection between the involvement by the Deputy President in the creation of the agreement, and the issue she may need to determine in this case. Although it seems to be a matter of dispute, I will proceed on the basis most favourable to the applicant, that is that the Deputy President will need to determine whether the benchmark staffing levels contained in cl 6 of the model are absolute or are to be applied on an averaged basis. In my view, this point of interpretation, considered within the wider context of the dispute, and the Deputy President's jurisdiction in respect of it, is unlikely to be a matter of great significance. Counsel for the applicant, Mr Jehne, argued that the "justiciable issue" (his words), before the Deputy President, was constrained by the terms of the application to the question of whether there has been a breach of the agreement. I do not accept this. When regard is had to the balance of the application, which sets out the full circumstances said to give rise to the dispute and the remedies sought, as well as the matters advanced to the Deputy President in the initial hearing on 31 January, it is very clear that the question of whether there has been a technical breach of the agreement is likely to be of little significance in the resolution of the dispute by the Deputy President. As I have already discussed, the definition of an industrial dispute and the power and responsibility of a Commissioner to prevent or settle it are within a very broad ambit. The dispute can include aspects which are both retrospective and prospective, and the ambit of the dispute can expand and change as the proceedings progress. It is obvious to me that the essence of this dispute is the general adequacy of staffing levels and the safety implications of workloads of public sector nurses, particularly within the context of the COVID-19 pandemic. It is clear that the ANMF has utilised the procedure in s 29 with a view to ensuring that these asserted problems are addressed by the applicant on an urgent and widespread basis. There is no doubt that the agreement and benchmarked staffing levels within the agreement will have some relevance to the resolution of this wider problem, but the ambit of the dispute extends far beyond that isolated issue. The Deputy President is being asked to deal with contemporary and allegedly urgent problems in the workplace and will appropriately be more concerned about real conditions and issues on the ground, than technical issues of interpretation.
Furthermore, and in any event, it is difficult to discern any significant link between the Deputy President's involvement with the model during her time as Secretary of the ANMF, and the question of its application to the contemporary issues in the workplace. There is absolutely no evidence that she drafted the document nor had any particular view about its contents, apart from general agreement on behalf the organisation of which she was Secretary. The model, at the most, creates benchmarks of guidance in respect of appropriate staffing levels. Its application will be relevant to provide guidance and context in respect of the industrial matters that comprise the dispute, but strict application is unlikely to be determinative in that regard.
In my view, a fair minded observer with appropriate knowledge of the background of the Deputy President and the circumstances of the existing dispute, and the Deputy President's jurisdiction in respect of it, could not reasonably conclude that she might not bring an impartial mind to the question of the prevention or settling of this industrial dispute. I am not satisfied that apprehended bias is established on the basis of her involvement in the creation, execution and registration of the industrial agreement, or the model appended to it.

Life membership

As I understand the applicant's argument, it is not contended that, taken alone, the fact that the Deputy President held the office of Secretary of the ANMF prior to her appointment constitutes a basis for a reasonable apprehension of bias. However, if I am wrong and there is any residual concern about this, then the comments of the High Court in Re Polites would seem to resolve this question. The pre-conditions for appointment as a Commissioner are set out in s 5(4) of the Act. In the case of the Deputy President, her qualification for appointment is contained in s 5(4)(b)(ii) which states:
"(b)(she) is a person who–
...
(ii) has served at a high level in a position or office in an industry or the trade union movement or in the service of a government or an authority of a government."
The comments of the High Court in Re Polites are apposite. The Deputy President cannot be disqualified because of qualifications for her appointment to the Commission. An apprehension of bias on the part of a hypothetical fair minded observer on that basis alone would not be reasonable.
However, the applicant does rely on what is asserted to be an ongoing association between the Deputy President and the ANMF, evidenced by the award to her of a "life membership" in 2018, well after her appointment to the Commission. A Facebook post placed in evidence by the applicant discloses that the award was made to the Deputy President at an event described as the "Annual Delegates Conference" of the ANMF, by Ms Emily Shepherd. Ms Shepherd replaced the Deputy President as the Secretary of that organisation. The applicant also asserts that it is of some relevance that the Deputy President did not disclose the existence of the "life membership" during the disqualification hearing. The applicant became aware of the Facebook post and the existence of the "life membership" after that hearing, as a result of enquiries made on his behalf.
There was considerable debate in the hearing before me as to the significance of the conferral of life membership on the Deputy President, in terms of her ongoing role and association with the ANMF. The applicant's counsel argued that the rules of the organisation impliedly provide for membership of this nature, and hence the ongoing association would be as a permanent member. Counsel for the ANMF pointed to the provisions of the Fair Work (Registered Organisations) Act 2009 (Cth) and the rules of the ANMF, both of which, it was submitted, make it clear that the Deputy President cannot by law be a member of the ANMF and, further, that designation as a life member does not, under the legislation or the rules, require or constitute actual membership.
I am satisfied that, irrespective of the award of a so-called "life membership," the Deputy President has, as a matter of legal reality, no ongoing involvement in the organisation, either on the basis of membership or any other lawful relationship. The rules of the Tasmanian branch of the ANMF make no provision for admission of a "life member" as a member of the organisation. There is provision for the admission of a "Distinguished Honorary Member", but the rule dealing with same, r 90.1, also provides that a person holding that title "shall not be entitled to take part in any elections or to vote on any matter" and "shall be exempt from payment of any membership fees or subscriptions whatsoever". The rule dealing with eligibility for actual membership restricts members to defined classes of "employees engaged in the nursing industry or midwifery industry" and, in the case of Tasmania, other "employees primarily engaged in providing nursing care under" the supervision or at the direction of "a registered nurse, registered midwife, enrolled nurse or medical practitioner" and are employed in certain defined circumstances. Clearly, the Deputy President does not fall within these categories. Further, it would seem impossible for the Deputy President to be a member of the ANMF having regard to s 171A of the Fair Work (Registered Organisations) Act.
Counsel for the applicant contended that notwithstanding the legal position, the hypothetical fair minded observer would not have knowledge of the legal niceties of this question and would identify life membership as establishing an ongoing interest in and sympathy for the organisation, and by extension, for arguments advanced by it before the Commission. It was also contended that although the failure to disclose the existence of the life membership does not, of itself, permit a hypothetical fair minded observer to apprehend bias, it does constitute evidence which such an observer would take into account in confirming the existence of bias on the basis of ongoing association.
There is no question that ongoing association between the decision-maker and a party to litigation, can enliven the apprehended bias principle. Ongoing association is closely related to another recognised ground of apprehended bias, an interest in the outcome of the case. The applicant's counsel relied, by way of example, on a decision of the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [2001] AC 119 in which it was held that a judge was automatically disqualified from hearing a case in which an organisation of which he was an unpaid director and chairman, had a real and direct interest in the outcome of the litigation. There is a need for caution in the application of that case to the circumstances of the case before me, because there are differences between the formulation of the rule applied in England with respect to the question of disqualification, and the apprehended bias principle, but there is no dispute that the same result would have resulted from the application of the apprehended bias principle. However, as with all such cases, the outcome in Re Pinochet was dependent on the facts of that case. Ultimately, the significance of an ongoing association is a question of fact and degree, and must be measured against the reasonable apprehension of a fair minded observer. This is apparent from comments of the members of the House of Lords, notwithstanding the different legal context. For example, Lord Browne-Wilkinson said:
"It is important not to overstate what has been decided. It was suggested in argument that a decision setting aside the order of 25 November 1998 would lead to a position where judges would be unable to sit on cases involving charities in whose work they are involved. It is suggested that, because of such involvement, a judge will be disqualified ... Only in cases where a judge is taking an active role as trustee or director of a charity which is closely allied to enacting with a party to litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties."
In a similar vein, it is clear also that the significance of a failure to disclose such an association is highly dependent on the facts of the particular case. At its highest, a failure to disclose will provide some evidence affecting a reasonable apprehension of bias arising from other factors. This was explained by the High Court in Ebner v Official Trustee [2000] HCA 63, 205 CLR 337 at [70], albeit in the closely analogous context of a failure by the judge to disclose a shareholding in a litigant company:
"[70] It is, however, neither useful nor necessary to describe this practice in terms of rights and duties. At most, any 'duty' to disclose would be a duty of imperfect obligation. A failure to disclose is relevant (if at all) only because it may be said to cast some evidentiary light on the ultimate question of reasonable apprehension of bias. A failure to disclose has no other legal significance. In particular it does not, of itself, give a litigant any right to have the judge desist from further hearing the matter or to have the ultimate decision in the matter set aside for want of procedural fairness." [Footnote omitted.]
In this case, I am satisfied that neither the conferral of "life membership" on the Deputy President, nor the asserted failure to disclose that association, give rise to a reasonable apprehension of bias. I am satisfied that the purported "life membership" did not in legal or factual reality create any ongoing direct association or involvement in the ANMF. It was nothing more than the conferral of an honorary title as recognition for and in gratitude of many years of service to the organisation. I accept the argument of counsel for the applicant that the hypothetical fair minded observer should not be attributed with detailed knowledge of the legal provisions relating to members of the organisation, but on the other hand, the question must be asked as to what knowledge the observer would have had of the award in any event. At the most, the observer would have been aware of the Facebook post provided to me in evidence. Any reasonable observer looking at that document would immediately comprehend, in my view, that the so-called life membership was, in fact, simply an award in recognition of past service, as I have already described it. The observer would also be aware that the Deputy President had accepted the position on the Commission, and that she would be aware of the practice of impartiality associated with that role. This awareness, and the Deputy President's understanding of the need for impartiality and her willingness to recuse herself in appropriate circumstances, would be confirmed to the observer by the voluntary decision of the Deputy President to disqualify herself from all cases involving the ANMF for a period of 18 months after appointment. Counsel for the applicant contended that this decision confirmed the basis for apprehension of bias by a fair minded observer, and submitted that there could be no satisfactory time limit on such apprehension, but as I commented during the course of submissions, it is not unusual for magistrates and judges, upon appointment, to put in place on a voluntary basis a temporal buffer in respect of certain types of cases or litigants. This is done to address perception and the potential for an apprehension of bias arising from relationships and interests which were active during practice. At the very least, this decision on the part of the Deputy President would have conveyed to the hypothetical fair minded observer, that she was well aware of the need to exercise impartiality and had terminated any ongoing real or practical involvement with that organisation.
I take a similar view in relation to the failure to disclose the life membership. In my view, having regard to the circumstances surrounding the award of that title and its lack of significance in terms of any form of ongoing association between the Deputy President and the organisation, a hypothetical fair minded observer would not have drawn any conclusion from the failure to disclose the award, apart from its lack of significance in terms of her impartiality in respect of the dispute. In this regard, the High Court in Ebner said at [69] and [72]:
"[69] As a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying.
...
[72] Disclosure of association may raise more difficult questions than are presented by the straightforward case of ownership of shares in a corporation. It is impossible to identify all of the kinds of association which might be thought to reveal a serious possibility of being potentially disqualifying. As we have said earlier, the application of the apprehension of bias principle requires identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and the articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits."
I am satisfied that in this case it was not necessary for the Deputy President to disclose the purported life membership. It did not give rise to or reveal a serious possibility of disqualification on the basis of either bias or apprehended bias. As the High Court said in Ebner, it was of no "legal consequence" and "did not deprive the applicant of an opportunity to advance any argument or inform him of any facts which would have given rise to a contrary conclusion. [Her] silence could not reasonably support an inference of want of impartiality".

Conclusion

It follows that the applicant has failed to make out the grounds of the application and is not entitled to the relief that he seeks. Accordingly, the application should be dismissed and the general order discharged. I so order.