Jason Deeney Chris Hughes Richard Park Denis Seiffertv Patrick Projects Pty Ltd

[2017] FWC 5613

[2017] FWC 5613

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Deeney
Chris Hughes
Richard Park
Denis Seiffertv
Patrick Projects Pty Ltd
(U2014/982, U2017/983, U2017/1008, U2017/1059)

DEPUTY PRESIDENT BULL PERTH, 30 OCTOBER 2017

Application for Commission member to disqualify himself from hearing applications based on reasonable apprehension of bias. Satisfaction of required test not substantiated, application dismissed.

[1] These unfair dismissal applications were listed for hearing on 23 and 24 October 2017. Upon commencement of the hearing, Mr Christopher Strauss, on behalf of the applicants Jason Deeney, Richard Park, Christopher Hughes and Denis Seiffert (the applicants), made an application for the Commission as presently constituted to refrain from further hearing the matters based on a reasonable apprehension of bias.

Applicants’ oral submissions

[2] Mr Strauss advised that he had recently made a complaint to the President of the Fair Work Commission (the Commission) regarding the handling of the applications by the Commission, traversing a variety of subjects and involving a number of members of the Commission. 1 One of the subject matters raised in the complaint was an apprehension of bias on my behalf. Mr Strauss quoted from the President’s response, where he was advised that he should raise any issue of apprehended bias at the commencement of the proceedings. Hence this application.

[3] Mr Strauss pointed to a number of events in support of this application. The first event raised related to an email sent from my chambers on 26 July 2017, to each of the 4 applicants advising that their application had been allocated to myself. The allocation occurred following the resignation from the Commission, effective from 12 April 2017, of Senior Deputy President Drake who had been dealing with the applications since October 2015. The 4 applications had previously been part of a group of 6 joined applications, which included the unfair dismissal applications of Christopher Strauss (U2014/5970) and Daniel King (U2014/7097). Matters U2014/5970 and U2014/7097 were finally dealt with by way of appeal decisions on 21 June 2017, and 7 July 2017 respectively. 2

[4] The 26 July email referred to the 2 appeal decisions issued in respect of the Strauss and King applications and asked the applicants whether they intended to pursue their applications and if so that their applications would be listed for directions. It is noted that all 4 applications were filed with the Commission in March/April 2014, some three and a half years ago. Mr Strauss contends that the email indicates that the Commission has already ‘formed a view’.

[5] On 7 August 2017, an email addressed to my Chambers was received stating that “The applicants, Deeney, Hughes, Park and Seiffert intend to continue their application.” The email was sent from the address [email protected] which did not identify a specific sender but stated:

“Regards

This is a Group Email Delivery Service

Concurrent Applicants – Not Represented

● Danny King

● Jason Deeney

● Chris Hughes

● Richard Park

● Denis Seiffert

● Christopher Strauss”

[6] On receipt of this email the applications were listed for mention/directions by telephone for 21 August 2017. 3 On 18 August my chambers requested, by email, that the applicants provide their written authority that Mr Strauss was authorised to act on their behalf.

[7] Mr Strauss submitted that, by the Commission not ‘holding the respondent to the same test’, supported his apprehension of bias application.

[8] A telephone directions conference was held on 31 August 2017, at which Mr Strauss represented the applicants and Mr Michael Stutley from K&L Gates represented the respondent. Mr Stutley suggested that the applications could be dealt with on the papers on the basis that no new evidence was to be tendered and no cross examination was required by either party. Mr Strauss states he was not advised in advance of the possibility that that this submission would be made and that it demonstrated that I was trying to follow the respondent’s path and avoid hearing the matter.

[9] On 20 October 2017, I delivered a decision 4 permitting the legal representation of the respondent previously granted5 by the Commission and upheld on appeal6 to remain in place. Mr Strauss submitted that this decision was further evidence of an apprehension of bias.

[10] Mr Strauss requested that the unfair dismissal applications be adjourned on the basis of the apprehension of bias, and be dealt with by another member of the Commission.

Respondent’s submissions

[11] Mr Fletcher, on behalf of the respondent, objected to the application that the Commission as presently constituted not continue to hear the applications and referred the Commission to the test to be applied as espoused by the High Court in Ebner v Official Trustee 7, in which Gleeson CJ, McHugh, Gummow and Hayne JJ said:

“… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question the judge is required to decide.”

[12] Mr Fletcher submitted that the grounds for the application fell well short of meeting this test and, in respect of the decision concerning legal representation, was no more than disagreement with the outcome.

Consideration

[13] A the conclusion of the submissions of both parties I stated on transcript that I did not consider the argument of the applicants had demonstrated that I should recuse myself from further hearing the matters.

[14] Mr Strauss confirmed that he wanted the hearing adjourned to file an appeal firstly against the decision of 20 October 2017 to not revoke permission for the respondent to be legally represented and secondly to appeal the decision not to disqualify myself from hearing the applications.

[15] Mr Strauss acknowledged that an adjournment to allow the 2 appeals to be heard and determined would further delay the hearing of the applications, possibly into 2018; Mr Strauss stated that the applicants were ‘in no particular rush’. On this basis the matters were adjourned to allow the appeals process to take its course and for the Commission to put in writing the reasons for finding that a reasonable apprehension of bias had not been established.

[16] In dealing with an application for a decision maker to decline to proceed to hear a matter on the basis of a reasonable apprehension of bias, the considerations are relatively straight forward. The rule against bias is a principle of natural justice. 8

[17] In Re J.R.L.; Ex parte C.J.L.  9(JRL), Mason J, said (at 352):

“It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. 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 or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally 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 case tried by someone thought to be more likely to decide the case in their favour.”

(Footnotes omitted, my underline)

[18] In Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (Cth) 10, Hayne J, referred to the decision in JRL and stated:

“[12] The principles about apprehension of bias must be understood in the context of a judicial system founded in precedent and directed to establishing, and maintaining, consistency of judicial decision so that like cases are treated alike and principles of law are applied uniformly. The bare fact that a judicial officer has earlier expressed an opinion on questions of law will therefore seldom, if ever, warrant a conclusion of appearance of bias, no matter how important that opinion may have been to the disposition of the past case or how important it may be to the outcome of the instant case. Fidelity to precedent and consistency may make it very likely that the same opinion about a question of law will be expressed in both cases. But that stops well short of saying that the judicial officer will not listen to and properly consider arguments against the earlier holding. As Lush J said in Ewert v Lonie:

“Every reasonable man knows that consistency in decision is one of the aims of judicial or quasi-judicial institutions, but if he is exercising his quality of reasonableness he does not suppose that a tribunal will refuse to entertain or will fail to give proper attention to a submission opposed to its former decision merely because it is so opposed. In this case, the reasonable onlooker might have thought that the appellants would not have much chance of succeeding, but this is not the same thing as feeling or believing that they would not get a proper hearing. It is not a characteristic of the law’s reasonable man either to be irrationally suspicious of every institution or authority or to think that every cynical appraisal represents an absolute truth.”

The “fair and unprejudiced mind” which must be brought to bear upon the determination of litigation is, as the Court said in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group, “not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.”

(References omitted.)

[19] The High Court set out the test out the objective test of the “fair-minded lay observer” in Johnson v Johnson 11:

“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”

[20] The characteristics of the fair-minded lay observer were described by the majority in Johnson v Johnson 12in the following manner:

“The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial.''

Whilst the fictional observer, by reference to whom the test is formulated, 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. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.”

(Footnotes omitted, my underline)

[21] The application of the objective test of the “fair-minded lay observer” was also set out in Ebner v Official Trustee. 13 The High Court further articulated the application of the principle as follows:

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

[22] In the joint reasons of Kiefel, Bell, Keane and Nettle JJ in Isbester v Knox City Council  14 the following observations were made:

“[20] The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.

…

[22] It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different.”

(Footnotes omitted)

[23] The above decisions establish that an apprehension of bias submission must be “firmly established” 15 with decision makers not readily agreeing to disqualify themselves as they have a duty to hear and determine matters in the absence of proper grounds for disqualification. A fair-minded observer is not ‘a reckless, irrational, perhaps even malevolent-minded person’.16

[24] As has been stated, these applications commenced with their filing in March/April 2014 and it is a matter of Commission record that the respondent is represented by the legal firm K&L Gates. While I have had no involvement in these applications until being allocated the files upon the resignation of SDP Drake, it was understood that the current applications had been held in abeyance until the final decisions in matters U2014/5970 and U2014/7097 were known, which was not until July 2017.

[25] In proceeding to hear and determine the remaining applications following such a lengthy time lapse since their filing, it is incumbent upon the Commission to ascertain whether the applicants wish to still proceed with their applications, considering the vicissitudes that can occur during a 3 year period.

[26] On receipt of an email on 7 August 2017, from what was stated to be a Group Email Delivery Service confirming that all applicants wished to continue their applications, and a further email on 9 August from the same email address which provided the contact telephone number of Mr Strauss, it was also incumbent upon the Commission to ascertain that the applicants had authorised Mr Strauss to act on their behalf, there being no written record (to my knowledge) to this effect. Mr Strauss was advised of this in the telephone directions conference held on 31 August 2017, and that the issue of his representation was resolved on the basis that the authorisations sought had been received.

[27] I do not consider that in adopting this course a reasonable apprehension of bias could possibly arise in the mind of fair-minded lay observer.

[28] A telephone directions conference was conducted on 31 August 2017, to confirm what, if any, additional material was to be filed by both parties and their available hearing dates. During the telephone conference the respondent’s representative raised whether the applications were to be dealt with ‘on the papers’; this course was not adopted by the Commission and the matters were listed for hearing on 23 and 24 October 2017. I am unable to rationalise the applicants’ submission that this was in any way favourable to the respondent and an attempt to avoid hearing the matter.

[29] The decision to not revoke the respondent’s permission to be legally represented in these applications is to be appealed by the applicants. It is not appropriate that I make any comment on whether the decision and the reasons are grounds for a reasonable apprehension of bias; Mr Strauss was advised of this at the hearing. It is invariably the case that in any arbitration one party may feel aggrieved with the outcome; such dissatisfaction, without more, is not sufficient to establish a reasonable apprehension of bias.

[30] More relevantly, in these matters there has been no expression by myself regarding the merits of the applications. There has been nothing put before the Commission that suggests a reasonable person would apprehend that I would do other than determine the applications on their legal and factual merits. There has been no statement made or actions taken by the Commission as presently constituted that would suggest any sense of prejudgment or predisposition. There is no basis upon which a fair-minded observer might reasonably apprehend that the Commission, as presently constituted, might not bring an impartial mind to the resolution of the questions that the Commission is required to decide.

[31] To pass these applications on to another member of the Commission would be a failure to discharge my duty to hear and determine the matters in a fair and just manner.

[32] The application to recuse myself from hearing these applications is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Christopher Strauss on behalf of the Applicants

Mr Duncan Fletcher, solicitor, K & L Gates, on behalf of the Respondent

Hearing details:

2017

23 October

 1   A copy of the complaint was not been provided to the Commission as presently constituted

 2   [2017] FWCFB 2809, [2017] FWCFB 2810

 3   This date was subsequently changed to 31 August

 4   [2017] FWC 5429

 5   [2016] FWC 4189

 6   [2016] FWCFB 5069

 7 (2000) 205 CLR 337

 8   UFU v MEFSB (2005) 141 IR 438 at 455 [62]

 9 (1986) 161 CLR 342

 10 (1999) 74 ALJR 68; 166 ALR 302

 11 (2000) 201 CLR 488 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

 12   Ibid at 493

 13 (2000) 205 CLR 337 per Gleeson CJ, McHugh, Gummow and Hayne JJ at 345

 14 (2015) 89 ALJR 609 at 614 [22]

 15   Footnote 9 above

 16   Trade Union Royal Commission; Decision on disqualification application, 31 August 2015, Heydon J at [197]

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