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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gutwein v Ellis

Details

AGLC: Gutwein v Ellis [2022] TASSC 17
Case: [2022] TASSC 17
Decision Date: 11 March 2022

CaseChat Overview and Summary

The case of Gutwein v Ellis involved a dispute in Tasmania, brought before the Industrial Commission. The nature of the dispute pertained to an application for the disqualification of a Deputy President of the Commission on the grounds of apprehended bias. The applicant, Gutwein, argued that the Deputy President should be disqualified due to their prior authorship of an industrial agreement relevant to the case and their association with the industrial organisation, evidenced by the honorary award of "life membership." The respondent, Ellis, was the Secretary of the industrial organisation.

The legal issues before the court were twofold: whether the Deputy President's prior authorship of the industrial agreement constituted a ground for disqualification due to apprehended bias, and whether the honorary award of "life membership" to the Deputy President by the industrial organisation gave rise to a reasonable apprehension of bias. The applicant contended that these factors created a sufficient basis for the Deputy President's disqualification, whereas the respondent argued against any such apprehension of bias.

The court examined the grounds for disqualification, considering the principles established in the case of Ebner v Official Trustee in Bankruptcy. It was determined that the mere authorship of an industrial agreement did not, in itself, establish a reasonable apprehension of bias. Similarly, the honorary award of "life membership," while indicative of an association, did not reach the threshold required for disqualification. The court found that the Deputy President's appointment and their conduct did not demonstrate any bias or partiality that would undermine the fairness of the proceedings.

In conclusion, the court ruled against the application for disqualification. The relief sought in the nature of prohibition was refused, as the court found no reasonable apprehension of bias on the part of the Deputy President. This decision underscores the high threshold required to successfully challenge the impartiality of a judicial officer in industrial matters.

Orders