Kelsey v Logan City Council & Ors
[2018] QIRC 99
•25 July 2018
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Kelsey v Logan City Council & Ors [2018] QIRC 099 |
PARTIES: | Kelsey, Sharon Rae Marie v Logan City Council & Smith, Timothy Luke & Dalley, Cherie Marie & Lutton, Russell Bruce & Swenson, Stephen Frederick & Smith, Laurence William & Pidgeon, Philip Wayne & Schwarz, Trevina Dale & Breene, Jennifer Rachael Julie |
CASE NO: | PID/2017/3 |
PROCEEDING: | Application for Interim Orders |
DELIVERED ON: | 25 July 2018 |
HEARING DATES: | 5 March 2018 |
MEMBER: HEARD AT: | Thompson IC Brisbane |
ORDERS: | 1. The Commission (as constituted) recuses itself from hearing and determining the Applications in terms of objections to the Attendance Notice to Produce. 2. The Commission (as constituted) recuses itself from hearing and determining the substantive Application. |
| CATCHWORDS: | INDUSTRIAL LAW – PUBLIC INTEREST DISCLOSURE – Applications in Existing Proceedings - Notices of Objection - Attendance Notice to Produce issued to the Crime and Corruption Commission - Applications for Industrial Commissioner to recuse himself from hearing or determining the Application to set aside the Attendance Notice to Produce - Application for the Industrial Commissioner to recuse himself or be prohibited from further hearing or determining the substantive Application - Fair-minded Lay Observer - Apprehended Bias - Grounds - Authorities - The Commission (as constituted) recuses itself from hearing and determining the Applications in terms of objections to the Attendance Notice to Produce - Commission does not accept that the Respondents have established based on the relevant test that a fair-minded lay observer might reasonably apprehend that the Commission (as constituted) would not bring an impartial mind to hearing and determining the substantive Application as a consequence of the Interlocutory Decision of 4 May 2018 - The Commission (as constituted) nevertheless recuses itself from hearing and determining the substantive Application on other grounds. |
LEGISLATION: CASES: | Public Interest Disclosure Act 2010 (Qld) Industrial Relations Act 2016 (Qld), s 451, s 452, s 531 Kelsey v Logan City Council & Ors [2018] QIRC 053 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Re JRL; Ex parte CJL (1986) 161 CLR 342 City of St Kilda v Evindon [1990] VR 771 |
| APPEARANCES: | Mr C. Murdoch QC, instructed by Minter Ellison Lawyers for the Applicant. |
Decision (No. 2)
Background
On 18 July 2018 the First, Second and Third to Ninth Respondents made separate Applications in Existing Proceedings in which they sought the following Orders:
First Respondent
1. Industrial Commissioner Thompson cease hearing or determining application no. PID/2017/3;
or alternatively
2. Industrial Commissioner Thompson cease hearing or determining the applications by the Second Respondent and the Third to Ninth Respondents to set aside the Attendance Notice to Produce dated 28 June 2018 issued by the Commission in these proceedings and directed to the Crime and Corruption Commission;
and in either case,
3. Application PID/2017/3 or alternatively, the application referred to in paragraph 2 herein, be referred to another member of the Queensland Industrial Relations Commission for hearing and determination.
Second Respondent
(a) Pursuant to sections 451 and 452 of the Industrial Relations Act 2016 (Qld) and/or rule 41 of the Industrial Relations (Tribunal) Rules 2001 (Qld) (Rules), Industrial Commissioner Thompson is recused from presiding over and making a determination on the Second Respondent's application seeking that the Applicant's Form 32B - Attendance Notice to Produce issued to the Crime and Corruption Commission (CCC) filed 28 June 2018 (the Notice) be set aside.
(b) Pursuant to sections 451 and 452 of the Industrial Relations Act 2016 (Qld) and/or rule 41 of the Rules Industrial Commissioner Thompson is recused from presiding over and making a determination on any further matters relating to PID/2017/3, including the substantive hearing which is due to commence in the Queensland Industrial Relations Commission (ORC) [sic] on Monday 30 July 2018.
Third to Ninth Respondents
1. Industrial Commissioner Thompson be prohibited from further hearing or determining the application to set aside the attendance notice filed on 6 July 2018 by the third to ninth respondents;
2. Further and/or alternatively, the Industrial Commissioner Thompson be prohibited from further hearing or determining matter PID/3/2017 [sic];
3. Such further or other orders as the Commission considers appropriate.
Material Facts
Each of the Respondents relied upon a range of material facts to support the Applications that included:
First Respondent
On 28 June 2018 the Commission issued an Attendance Notice to Produce to the Crime and Corruption Commission (CCC) requesting the production of certain documents in the following categories of documents:
1. Documents evidencing communication or collaboration between Mayor Timothy Luke Smith (Mayor) and Councillors Dailey, Lutton, Swenson, Laurence Smith, Pidgeon, Schwarz and/or Breene in relation to matters involving Ms Kelsey and her employment (including applications with a self-deleting function etc); and
2. Documents (including notes or records of any interactions (including discussions, correspondence, meetings etc) of the Mayor and the Mayor and/or Councillors Dailey, Lutton, Swenson, Laurence Smith, Pidgeon, Schwarz and/or Breene in which matters related to Ms Kelsey's employment, probation, termination or matters relating to her making of a public interest disclosure or the commencement by her of legal proceedings was discussed.
The CCC produced documents and recordings to the Industrial Registry on 5 July 2018 along with certain correspondence to the Commission for a purpose not clear to the First Respondent. Further the First Respondent nor its representative have not sighted or inspected the documents or correspondence produced to the Commission.
The Second and Third to Ninth Respondents respectively filed Applications to set aside the Attendance Notice on the following grounds:
a. the applicant had not made any reasonable attempts to obtain the documents pursuant to sub division 7A of the rules;
b. the Attendance Notice was an abuse of process; and/or
c. the Attendance Notice impermissibly sought documents that were not relevant and was fishing expedition.
Importantly, it was not merely an objection to the documents in the possession of a party being admitted into evidence, but was an Application to set aside the very process by which the documents were compelled to be brought to the Commission. If the objection Application was to succeed the process would be set aside and returned to the owner. If on the other hand the process was not set aside, questions of inadmissibility would need to be considered as a separate question.
In correspondence from the CCC (dated 10 July 2018) to Solicitors for the Third to Ninth Respondents it was asserted that:
Without the provision of the documents, the QIRC, may be in a position where it is denied access to important evidence that is relevant to facts in issue in the proceedings. Further, the documentation increases the chances of parties being able to appropriately test the veracity of evidence and decreases the chances of the QIRC having false evidence placed before it which is uncontested.
At hearing on 11 July 2018 Industrial Commissioner Thompson informed the parties, firstly, that:
a. [at page 4-3 of the Transcript of Proceedings, at lines 20 to 26] "Well, the schedule, without necessarily going - the schedule identifies - it identifies matters related to communications between parties. It notifies identifications relating to group communications, extraction reports. It identifies transcripts of CCC closed investigative hearings which identifies, amongst others, the councillors that you represent, Mr Massy. And it also identifies exhibits that have been produced, and it also deals with lawfully intercepted information under the TIA Act.";
and later that
b. [at page 4-39 of the Transcript of Proceedings, at lines 16 to 20] "Now, I've had access or custody of those documents since Friday of last week and in that period of time I made a decision to determine - I read all of the material contained within those documents. I did not access any of the audio material that was provided but in terms of having to decide what was relevant or otherwise, I have - I have read that material.";
and that
c. the Commissioner had read that material after having received the applications to set aside the Attendance Notice and after examining the grounds relied upon in those applications so as to appreciate the nature of those applications.
It can be reasonably inferred that the documents read by the Industrial Commissioner were:
a. that fact, and
b. the fact that the documents emanated from the CCC who was then engaged in a related investigation; and
c. the fact that the documents were listed as including interviews with Respondents who had provided witness statements in the proceedings, and intercepted telecommunications
In the opinion of the CCC the material was likely to bear directly on the central issue in the proceedings, namely the veracity of the evidence of the Second and Third to Ninth Respondents.
The object and purpose of the Applications to set aside the Attendance Notice to Produce was to prevent any material procured by the coercive powers of the CCC and produced by way of an alleged abuse of process being introduced into and tainting the proceedings.
The act of the Industrial Commissioner reading that material had vitiated any right the Respondents may have had to exclude the material being viewed by the Industrial Commissioner by the setting aside of the Notice. If the Notice was set aside the parties have no choice other than assume that the critical and sensitive issue of the credibility of the witnesses in the proceedings would be assessed without any conscious or unconscious regard to whatever material on that subject the Industrial Commissioner may have already read. The parties cannot know what had been read by the Industrial Commissioner and cannot address any subconscious tendency for the Industrial Commissioner to be influenced by it.
A fair-minded lay observer might reasonably apprehend that the Industrial Commissioner might not bring an impartial mind to the question of whether the Attendance Notice should be set aside because:
a. It might reasonably be apprehended that having reviewed the documents which have been produced the Commissioner might not be able to determine the objection to the existence of the Attendance Notice and may be swayed or influenced by an impermissible knowledge of what the documents themselves contain; and
b. it might reasonably be apprehended that having read the documents and the correspondence, with the implication that the CCC considers them to have a bearing on issues of credit, the Commissioner may be influenced in his decision to either confirm or reject the Notice by the consideration that:-
i.rejection of the Notice may give rise to a level of objection and difficulty arising out of his prior reading of the sensitive but inadmissible material;
whereas
ii. confirmation of the Notice would not give rise to that difficulty.
Further to be considered were the previous findings and/or assertions made by the Industrial Commissioner in paragraphs [75], [76], [95] and [123] of the interim reinstatement Decision handed down by the Commission on 4 May 2018.
The content of paragraphs [75] and [76] constituted an expression of a conclusion adverse to the Third to Ninth Respondents without any evidence to support such a conclusion. The second sentence at paragraph [95] constituted a significant and contentious finding about a matter which was also adverse to the Third to Ninth Respondents in the absence of any evidence to support such a conclusion. Such a finding goes directly to a critical consideration in the proceedings, as to the reason why the Respondents acted as they did and whether they were feigning an appearance of matters that was untrue. A significant and evaluative conclusion in favour of the Applicant at paragraph [123] without the benefit of the full evidence to be called in the proceedings proper or any cross‑examination of witnesses.
A fair-minded lay observer might reasonably apprehend from each of the foregoing matters and the reversal of the onus of proof in paragraph [132] as well as the orders made in the interim hearing that the Industrial Commissioner had formed a concluded view in relation to critical aspects of the proceedings which may hinder the bringing of an impartial mind to bear on the evidence as a whole.
Accordingly the Industrial Commissioner should cease hearing the matter in its entirety and cause the hearing to be transferred to another Member of the Commission so that the Applications to set aside the Notice to Produce and the trial itself can be heard without being affected by such considerations.
Second Respondent
The Second Respondent in terms of material facts relied upon separate affidavits filed in support of the Applications to which the following documentation was attached:
· CCC correspondence to McInnes Wilson cc Gadens, Minter Ellison and King and Company (dated 10 July 2018);
· Gadens correspondence to the CCC (dated 10 July 2018);
· CCC correspondence to Gadens (dated 12 July 2018);
· Decision of Industrial Commissioner Thompson in Kelsey v Logan City Council & Ors[1];
[1] Kelsey v Logan City Council & Ors [2018] QIRC 053
· Decision of Martin J in Dalley& Ors v Kelsey & Ors[2];
[2] Dalley& Ors v Kelsey & Ors [2018] ICQ 006
· email from Gadens to the Industrial Registrar and Notice of Objection filed by the Second Respondent to the Commission (dated 5 July 2018);
· email from Gadens to Associate to Industrial Commissioner Thompson - copied to the parties to the proceedings (dated 5 July 2018) at 5.57 pm;
· email from Minter Ellison to Associate to Industrial Commissioner Thompson - copied to the parties to the proceedings (dated 5 July 2018) at 6.59 pm;
· email from Gadens to Associate to Industrial Commissioner Thompson - copies to the parties to the proceedings (dated 5 July 2018) at 8.07 pm;
· correspondence with the Registrar and Form 4 Application in Existing Proceedings filed by the Second Respondent in the Commission on 9 July 2018; and
· transcript from s 48 Application for an injunction about a reprisal in the matter (dated 11 July 2018).
Third to Ninth Respondents
On 4 May 2018 the Commission published a decision in respect of the Applicant's claim for interlocutory relief.
On 28 June 2018 the Commission issued an Attendance Notice to the CCC requiring the production of certain documents with the CCC producing certain documents on 5 July 2018 to the Industrial Registry.
On 6 July 2018 the Third to Ninth Respondents filed an Application seeking to set aside the Attendance Notice.
At the hearing of the Interlocutory Application on 11 July 2018 Industrial Commissioner Thompson informed the parties that:
a. the documents produced by the CCC included a schedule which listed the material produced which included transcripts of CCC closed investigative hearings (which included, amongst others, the third to ninth respondents), exhibits produced, and information intercepted information [sic] under the Telecommunications Interception Act; and
b. after receiving the applications to set aside the Attendance Notice and reviewing the grounds relied upon, the Industrial Commission read all of the documents produced by the CCC, but did not listen to any of the audio files.
On the basis that a fair-minded lay observer might reasonably apprehend that the Industrial Commissioner might not bring an impartial mind to the resolution of the question that he is required to decide, namely whether the Attendance Notice be set aside, the Third to Ninth Respondents seek such an order.
The particulars relied upon were:
a. It might reasonably be apprehended that having reviewed the documents which have been produced the Industrial Commissioner might not be capable of determining the objection on the basis of relevance on the face of the Attendance Notice and without regard to the documents produced.
b. Further and/or in the alternative, it might reasonably be apprehended that having reviewed the documents which have been produced the Industrial Commissioner might not be capable of determining the objection on the basis that having seen the documents the Industrial Commissioner would be more likely to hold that the Attendance Notice was not an abuse of process to prevent a situation where the Industrial Commissioner had received a secret submission from a third party, the CCC, where the parties were not, and could not be, aware of the contents of that submission.
Further and/or alternatively the Third to Ninth Respondents seek the order on the basis that they will be denied procedural fairness in respect of the relevance objection if the Industrial Commissioner had reviewed the documents but they cannot. In those circumstances the Third to Ninth Respondents will be denied the opportunity to make submissions about the relevance of the documents.
Additionally and/or alternatively the Third to Ninth Respondents seek an order that the Industrial Commission not have any further role in hearing and/or determination of PID/2017/3 on the basis that a fair-minded lay observer might reasonably apprehend that the Industrial Commissioner might not bring an impartial mind to the resolution of the question that he is required to decide, namely whether the Applicant should have the relief set out in the Further Amended Application.
The particulars relied upon were:
a. It might reasonably be apprehended that by virtue of the Industrial Commissioner's conduct in:
i.making findings of fact in the Interlocutory Decision at [76], [95] and [123], notwithstanding that there had been no final hearing; and
ii.reviewing the document produced by the CCC in the face of the application from the third to ninth respondents that the Attendance Notice should be set aside because the applicant sought to obtain documents which were not available in this proceeding,
the Industrial Commissioner might not be capable of determining the substantive matter on the legal and factual merits.
Arguments
The First, Second and Third to Ninth Respondents provided both written and oral submissions in the proceedings with the First and Second Respondents adopting the content of the Third to Ninth Respondent's submission delivered in the first instance.
Third to Ninth Respondents
Orders were sought that the Industrial Commissioner recuse himself from:
· hearing or determining the Interlocutory Application to set aside the Attendance Notice on the grounds that failing to do so would deny the Third to Ninth Respondents procedural fairness in respect of that Application; and
· further and in the alternative an order is sought that the Industrial Commissioner recuse himself from further hearing or determining the substantive matter.
The Third to Ninth Respondents did not allege actual bias of any kind.
Facts
Factual matters relied upon included:
· issuing of Attendance Notice to the CCC on 28 June 2018;
· hearing on the Interlocutory Application on 11 July 2018 where the Industrial Commissioner informed the parties of the documents produced by the CCC (schedule of listed documents) and having read all documents but not listened to the audio files;
· Third to Ninth Respondent's Application to set aside the Attendance Notice to Produce.
Reference was made to the following extracts from the Decision delivered by Industrial Commissioner Thompson in Kelsey v Logan City Council & Ors[3]:
[3] Kelsey v Logan City Council & Ors [2018] QIRC 053
At [76] the Industrial Commissioner made the following finding in respect of the meeting at which the first respondent decided to terminate the applicant's employment:
[76]A more usual approach would have been for a replacement motion to be moved separately upon resolvement of the termination.
At [95] of the Interlocutory Decision the Industrial Commissioner found:
[95]The Third to Ninth Respondents, with the benefit of legal advice given on 7 February 2018, collectively adopted the position of departing from the usual practice of consultation, or discussion prior to voting on a motion and further not exercising the option of open debate before voting to terminate the Applicant's employment contract. This collective action was primarily in my view taken so as not to expose the individual Councillors to allegations that in effecting the termination they had taken into account the PID, material or those proceedings.
Then at [123] of the Interlocutory Decision the Industrial Commissioner found:
[123]Overall it would be reasonable to conclude that her performance was "middle of the road" without being outstanding and unsatisfactory in respect of matters relating to risk management.
Principles
The principles in respect of apprehended bias were well settled with the test described by the High Court of Australia in Ebner v Official Trustee in Bankruptcy[4] (Ebner) at paragraph [33] where Gleeson CJ, McHugh, Gummow and Hayne JJ stated:
…whether 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 was required to decide. That is the test to be applied in the present appeals, and it reflects the general principle which is to be applied to problems of apprehended bias, whether arising from interest, conduct, association, extraneous information, or some other circumstance.
[4] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
In Webb v The Queen[5] (Webb) Deane J identified four main categories of apprehended bias as being:
· disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, where pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or pre-judgement;
· disqualification by conduct, including published statements, which category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias;
· disqualification by association, which will often overlap the first and consists of cases where the apprehension of pre-judgement 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; and
· disqualification by extraneous information, which 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.
[5] Webb v The Queen (1994) 181 CLR 41
Further in Ebner the application of the test for apprehended bias identified the following two-step process:
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.
An application that considered recusal on the basis of pre-judgement was identified as Livesey v New South Wales Bar Association[6] where Mason, Murphy, Brennan, Deane and Dawson JJ stated:
In a case such as the present where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on the evidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in some previous case may result in an appearance of pre-judgment can be a difficult one involving matters "of degree and particular circumstances may strike different minds in different ways" (per Aickin J. in Shaw (1980) 55 ALJR, at p 16 ).
[6] Livesey v New South Wales Bar Association (1983) 151 CLR 288
Also in the context of questions of pre-judgement in British American Tobacco v Laurie[7] Heydon, Kiefel and Bell JJ observed:
It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.
[7] British American Tobacco v Laurie (2011) 242 CLR 283
Other authorities cited in terms of principles were:
· Johnson v Johnson[8]; and
· Together Queensland, Industrial Union of Employees v Executive Director, Public Service Employees Industrial Relations, Public Service Commission[9].
[8] Johnson v Johnson (2000) HCA 48
[9] Together Queensland, Industrial Union of Employees v Executive Director, Public Service Employees Industrial Relations, Public Service Commission [2015] ICQ 23
Grounds
The Application for recusal was advanced on three separate grounds being:
· a reasonable apprehension of bias might arise where the Industrial Commissioner has reviewed the documents the subject of an Application to set aside the Attendance Notice to Produce on the basis that the documents sought are not relevant, because the proper course is for the relevance objection to be determined on the face of the Attendance Notice to Produce and without regard to the documents produced;
· a reasonable apprehension of bias might arise where the Industrial Commissioner having reviewed all of the documents produced by the CCC is required to rule on whether the parties should be provided with those documents. In circumstances where the Industrial Commissioner has reviewed those documents, a range of adverse consequences (such as the recusal of the Industrial Commissioner from the substantive hearing and the loss of the trial dates) will flow from that fact if the documents are not provided to the parties. The existence of those adverse consequences might interfere in the correct determination of the Application to set aside the Attendance Notice to Produce; and
· a denial of procedural fairness will occur because, in circumstances where the parties seek to have the Attendance Notice to Produce set aside on the grounds of relevance and where the Industrial Commissioner has reviewed the documents for the purposes of determining relevance, the parties will be denied the opportunity of making any submissions about the documents themselves and whether they are relevant.
The Application for recusal in respect of the substantive matter was advanced on the basis that a reasonable apprehension of bias might arise by reasons of the Industrial Commissioner's findings of fact made in the Interlocutory Decision coupled with the Industrial Commissioner's conduct in voluntarily choosing to review the documents produced by the CCC in circumstances where there was an Application to set the Attendance Notice to Produce aside which expressly asserted that the documents obtained by way of coercive powers should not be introduced in this matter.
Ground One
The correct approach to an application to set aside a subpoena on the basis it seeks documents which are irrelevant is for a court to determine that objection on the face of the document itself. In Hunt & Boyce v De Pinto[10] (Hunt & Boyce) Perry J had been required to determine a matter where in the first instance the trial judge had reviewed the documents the subject of the subpoena. His Honour held at paragraph [453]:
Furthermore, I do not think that in a case where the objection taken is that the subpoena, or a part of it, is "fishing", the appropriate procedure is for the judge at the outset to take the documents into his or her custody and then peruse them to see if any of them might be relevant to the proceedings. To countenance such a course would be simply to pass the fishing rod to the judge.
[10] Hunt & Boyce v De Pinto (1995) 77 A Crim R 447
Further at paragraph [454] he held:
In my view, consent with the dicta to which I have referred in Alistair, a mere "fishing" expedition should not be allowed, and before the court should proceed to inspect the documents sought to be produced, it must be "on the cards" that the documents "will materially assist the defence" or, having regard to the terms of s 25 of the District Court Act, it must be "on the cards" that the documents sought to be produced will be of "evidentiary value" in the proceedings.
Similarly in Dingle & Anor v Commonwealth Development Bank of Australia[11] (Dingle) Pincus J in resolving an objection to a subpoena, for amongst other reasons, relevance, his Honour held:
The remaining point is that production of some of the documents was objected to on the ground that they are claimed to be irrelevant in the second suit. It was suggested by counsel that I should inspect the documents to see if they are properly so described. In my opinion, a Court should not ordinarily undertake that task. The question is whether to permit the subpoena to stand would be to sanction an abuse of the Court's process: Purnell Bros Pty Ltd v. Transport Engineers Pty Ltd (1984) 73 FLR 160 at p 175. In that case, the subpoena was set aside partly on the ground that the document "could not ... be relevant to any issue which might legitimately arise ..." (p 175). It does not appear to me to accord with the practice of Court that, if an objection to producing documents on subpoena is taken on the ground of relevance, the Court should necessarily consider each document one by one to see if it appears to be relevant. The question whether all or any of the documents can get into evidence is, of course, another matter.
[11] Dingle & Anor v Commonwealth Development Bank of Australia (1989) 91 ALR 239
In the case of the Hunt & Boyce and Dingle authorities they made it clear with regards to the proper course to be observed being that the Commission was not required to and ought not, assess the documents to ascertain whether they were relevant.
The first element of the test in Ebner is made out by the Industrial Commissioner having reviewed the documents and as identified in Webb the Commission had access to extraneous information.
The second element of the test in Ebner is made out because the Industrial Commissioner having seen whether the documents were relevant or irrelevant a fair-minded lay observer might consider the Industrial Commissioner might be unable to determine the question of relevance in accordance with the legal principal, namely on the face of the Attendance Notice to Produce because the Industrial Commissioner is seized with information as to whether the documents produced are in fact relevant or not.
It was submitted that a logical connection between the possession of the extraneous information and the feared deviation from the determination of the Application on its legal merits had been established.
In these circumstances, a fair-minded lay observer might consider that the Industrial Commissioner might be unable to put out of his mind the conclusions drawn as to the relevance or otherwise of the documents produced. It is submitted that would lead to the matter being determined otherwise than in accordance with legal principle.
Ground Two
One of the grounds for having the Attendance Notice set aside related to the abuse of process on the basis that the material the subject of the Attendance Notice had been obtained by way of the CCCs coercive powers and that such powers were not available to the Applicant in civil penalty litigation. It would be an abuse for the Applicant to have access to documents she could not otherwise have access to in the course of the civil penalty litigation.
The second apprehended bias ground advanced was the Industrial Commissioner having reviewed what might be considered to have, both received extraneous information and have an interest in the disposition of the Interlocutory Application. In this particular case the grounds overlapped as identified in Webb.
If the Attendance Notice to Produce was to be set aside none of the parties would have access to the confidential material obtained by the CCC however the Industrial Commissioner will have received and read the material that included both the CCC correspondence and documents produced that the parties would not have been able to gain access to and would not be able to address the Industrial Commissioner on. This situation might give rise to a reasonable apprehension of bias which would lead to the Industrial Commissioner needing to recuse himself from the substantive hearing of the matter.
In these circumstances a fair-minded lay observer might consider that it might lead to the Industrial Commissioner determining the Interlocutory Application in such a way so as to ensure all parties have access to documents if released. A reasonable observer might consider that this prospect would operate on a subconscious level and might lead to a deviation in the determination of the Interlocutory Application in such a way so as to avoid either a recusal or the trial dates being lost.
If the Application to set aside the Attendance Notice to Produce was allowed the Third to Ninth Respondents would formally reserve their rights to make an Application that the Industrial Commissioner recuse himself from hearing the substantive matter.
Ground Three
The third ground relied upon was in the alternative to Grounds One and Two.
The Commission is bound to conduct itself in a way which is procedurally fair with the content of any of the obligation of procedural fairness will vary according to the circumstances which arise.
In this case, the Commission had, of its own volition, inspected the documents the subject of the Attendance Notice to Produce and the Application to set aside. Those documents cannot be provided to parties without destroying the subject matter of the Interlocutory Application. The effect of the Commission having received the material in the circumstances has led to a denial of procedural fairness which will have a material impact on the outcome of the Interlocutory Application to set aside the Attendance Notice to Produce. The Application should be allowed.
Application that the Industrial Commissioner recuse himself from the substantive matter
In addition to the Application that the Industrial Commissioner recuse himself from the Application to set aside the Attendance Notice to Produce it was also sought that the Industrial Commissioner recuse himself from the hearing and the determination of the substantive matter.
The broader Application for recusal was made on the basis that a fair-minded lay observer might apprehend that the Industrial Commissioner might not bring an impartial mind to the resolution of the proceedings because of:
· findings made in the Interlocutory Decision; and
· the conduct of the Industrial Commissioner in reviewing the documents produced by the CCC prior to the hearing of the Third to Ninth Respondent's Interlocutory Application being heard.
In relation to the findings made in the Interlocutory Decision, it can be seen that:
· the finding at [76] was about the important matter of whether the meeting of 7 February 2018 was conducted in accordance with usual practice or whether the decision to terminate proceeded as a fait accompli;
· the finding at [95] amounts to a finding that there was a collective decision to depart from the usual practice of having open debate for the purpose of ensuring that the respondents were not exposed to allegations that they had voted to terminate the applicant for a proscribed reason; and
· the finding at [123] was about one of the central issues in the case namely, the standard of the applicant's performance.
Each of these findings were made without qualification or doubt with having the appearance that the Industrial Commissioner was persuaded of the correctness of the conclusion expressed. These can be contrasted with the observations at [99] and [126] about topics which might be the subject of further inquiry at that trial.
Further the making of such findings at an interlocutory stage was highly unusual given there had been no cross-examination and the Industrial Commissioner had not had the opportunity to see the Respondents give evidence and evaluate their credibility. Despite this, crucial findings had been made. Given the highly unusual approach of the Industrial Commissioner of making such findings at an interlocutory stage and the importance of the issues decided a reasonable observer might possibly apprehend that at a trial the Industrial Commissioner might not move its mind from the position reached on one set of materials even if different materials were presented at the trial.
The prospect that a reasonable observer might so apprehend is increased by the Industrial Commissioner's conduct in respect of the documents produced by the CCC where by choice he read documents obtained by coercive powers despite an Application to have that Attendance Notice to Produce set aside. The conduct of the Industrial Commissioner was of a type that might give the appearance of a decision maker who was actively seeking out material which might undermine the evidence given by the Third to Ninth Respondents. The conduct might cause a fair-minded lay observer to apprehend that the Industrial Commissioner might not be capable of bringing an impartial mind to bear on the resolution of the substantive Application. Further the conduct should not be considered in isolation, rather it must be considered in conjunction with the findings made in the Interlocutory Decision. Two highly unusual pieces of conduct serve to compound one another.
When the two matters are considered cumulatively the test identified in Ebner is satisfied.
Conclusion
It was respectively submitted that for the reasons advanced by the Third to Ninth Respondents the Commission as currently constituted should recuse itself from:
· the Interlocutory Application to set aside the Attendance Notice to Produce. That Application should be heard and determined by a Member of the Commission who has not reviewed the documents or been informed as to their contents; and
· the substantive hearing of the matter.
Second Respondent
The Application of the Second Respondent applied for Industrial Commissioner Thompson to recuse himself or be recused from:
· further hearing and determining the Application by the Second Respondent to have the Notice to Produce to the CCC set aside; and
· further hearing and determining the proceeding at all.
The Industrial Commissioner ought to be recused because of apprehended bias with reliance upon the matter of New Acland Coal Pty Ltd v Smith & Ors[12] where Bowskill J in setting aside a decision of the Land Court for apprehended bias stated:
[104] It is a fundamental principle of the procedural fairness of the system of decision-making, which applies to courts as well as to other tribunals, that the decision-maker be independent and impartial.
[105] That principle is infringed in cases of actual bias, but also in cases of apprehension of bias. Bias, whether actual or apprehended, connotes the absence of impartiality. Whatever its cause (be it interest in the outcome, affection or enmity, or prejudgment), "the result that is asserted or feared is a deviation from the true course of decision-making".
[12] New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88
The following matters are what might be said to lead the Industrial Commissioner to decide the Application and the case other than on its legal and factual merits:
(a) The fact that the Commissioner read the material produced by the Crime and Corruption Commission (referred to as the "CCC" below) - especially given the nature of the documents apparently produced and that the material was obtained using the compulsive powers of the CCC;
(b) The fact that the CCC appears to have communicated to the Commissioner in terms that were not apparently communicated to the parties;
(c) The fact that the Commissioner read the material despite knowing, or in circumstances where he ought to have known, that the parties were applying to set aside the notice to the CCC;
(d) The fact that the Commissioner read the material despite knowing, or in circumstances where he ought to have known, that the parties objected to any of the material being viewed by anyone;
(e) The fact that the Commissioner read the material before hearing from the parties including in circumstances where the Second Respondent's solicitors had asked for an urgent hearing of the Application; and
(f) The fact that the Commissioner read the material in circumstances where he had made numerous comments which could be said to be favorable [sic] to the Applicant's case (that is the Applicant in the proceeding) and adverse to the Respondents in the reasons delivered on 4 May 2018.
It was acknowledged that at the previous hearing Industrial Commissioner Thompson had (quite properly) confirmed to the parties that he had read the material produced by the CCC.
The fact that the material had been read by the Industrial Commissioner might lead him to decide the Application other than on its merits because he is aware of the contents of the documents produced and may well be influenced one way or the other rather than according to the merits of the Application or indeed the proceedings. The reading of documents may be reasonably thought to possibly include the Industrial Commissioner to grant the Application and potentially influence the conduct of the proceedings as a whole if he formed the view that the documents assisted the Applicant in the proceedings or were otherwise important.
The possibility of such a scenario and the perceptions it creates were sufficient to justify the recusal sought. It was acknowledged that the Industrial Commissioner believed he had not been infected by what he had read but that is not the question. The question is that posed by the High Court of Australia in Ebner:
…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 Courts have been clear there is no need to inquire into whether there actually was any bias but rather the focus is on the impression to the public and the fair-minded lay observer and the potential effect on the impartiality of the process.
Whilst the lack of relevance was a ground for the Applications before the Industrial Commissioner it was the case that the authorities suggest the correct custom was not to read the material in such Applications. The fact that the Industrial Commissioner had read the material before the parties were heard objectively suggests it was possible he desired to know what was in the documents and whether they assisted the Applicant's case.
The covering letter provided to the Commission by the CCC apparently communicated directly to the Commission as to, amongst other things, what use could be made of the documents. The Industrial Commissioner indicated concerns that the parties may not have wanted the letter prior to the hearing which may objectively give rise to the possibility that the Industrial Commissioner might decide the proceedings adversely to the Respondents. The communication between the CCC and the Industrial Commissioner gives rise to concern that the Industrial Commissioner was possibly being directed by, in effect an authority which is apparently investigating potential offences by the Respondents and may be adversely influenced by the communication.
A High Court authority suggests that communication between third parties and a Court or Tribunal in the absence of the parties is sufficient to give rise to a reasonable apprehension of bias in circumstances which are sufficiently analogous to the present. See Re JRL; Ex-parte CJL[13]. The Second Respondent submits that the fact of the communication between a body with the CCCs functions in these circumstances, which produced documents to the Commission with a covering letter is sufficient to give rise to a reasonable apprehension that justifies the recusal from the hearing of the Application and the proceedings. In City of St Kilda v Evindon[14] it was stated:
When the occurrence of the undisclosed telephone conversation became known to them, the City of St. Kilda, the objectors or members of the public might reasonably have feared or apprehended that Mr Webb might have failed in two respects to reach his decision on the appeal in accordance with the requirements of natural justice. They might reasonably have apprehended in the circumstances that he might not have brought an impartial and unprejudiced mind to the determination of the appeal; and also that he might have received undisclosed information supporting Evindon's case, which influenced his decision on the appeal.
…Citizens are generally aware that it is the accepted practice that no party or representative of a party should have a private communication with a judge or a member of a tribunal who is to hear a case. The mere knowledge that there had been an undisclosed departure from that proper practice would have tended to produce doubts and reduce confidence in the member of the tribunal who presided at the hearing. People would be inclined to wonder why the breach of practice had occurred and how far it had gone. It could be thought that Mr Hooper appeared to be able to have access to the presiding member and that could fuel speculation that the member was partial to or predisposed towards Evindon or its counsel. There could well be concern that, there having been a breach of practice, it might have amounted to more than merely informing the member that there was thought to be a problem if Mr Buckley sat. There might be a fear that he had been told something about the case or those involved in it which would lead to his favouring Evindon and being prejudiced against those who opposed its appeal.[13] Re JRL; Ex parte CJL (1986) 161 CLR 342
[14] City of St Kilda v Evindon [1990] VR 771
The Second Respondent had advised Industrial Commissioner Thompson's Associate of the need for an urgent hearing, objected to the documents having been produced and objected to any person viewing the documents. At no stage was the possibility of a review by the Industrial Commissioner communicated to the parties. The fact that he reviewed the documents in the face of those communications gives rise to a reasonable concern that he might also, in the future, disregard the Respondent's submissions and the possibility that the Industrial Commissioner had wished to know what was in the material despite the objections.
The fact that the Industrial Commissioner had read the CCC material taken in combination with comments made in the reasons delivered in the 4 May 2018 Decision is also cause for reasonable apprehension. The particular paragraphs were identified as [94], [126], [130] and [132] of the Interlocutory Decision.
When the previous conduct of the Industrial Commissioner relating to adverse comments about the Respondents and having applied an incorrect legal test to require them to extinguish the Applicant's prospects, then taken with the decision to review the documents against the objections of the Respondents, there was sufficient reason to create a perception that justifies the recusal sought.
First Respondent
The First Respondent sought orders necessary to give effect to the cessation by Industrial Commissioner Thompson from hearing and determining the Applications by the Second and Third to Ninth Respondents to set aside the Attendance Notice to Produce issued by the Commission and/or alternatively, the cessation by the Industrial Commissioner from hearing or determining the substantive Application in this matter in its entirety and the allocation of all matters to another Member of the Commission.
The First Respondent did not allege actual bias of any kind by the Industrial Commissioner but relied on the ground of apprehended bias.
The Law
The legal principles under which apprehended bias is a basis for excluding a judge or tribunal member from deciding a matter before them was well settled with the following authorities cited:
· Ebner; and
· British American Tobacco v Laurie[15]:
It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature.
[15] British American Tobacco v Laurie (2011) 242 CLR 283
In this matter the problem arose from a combination of conduct:
· the interim reinstatement Decision; and
· the extraneous information (CCC material).
The issue of conduct involves consideration of the general conduct of the Tribunal Member, including published statements, where the content of the public statements in the course of proceedings gives rise to an apprehension of bias. Disqualification by extraneous information arises where the knowledge of some prejudicial but inadmissible fact or circumstances gives rise to an apprehension of bias.
Interest of the First Respondent
The First Respondent has a vital interest in the trial of this matter being conducted expeditiously and with as much finality as the judicial system can provide. Given the seriousness of the issues the First Respondent is concerned to ensure the trial does not proceed in circumstances where there is a significant issue of potential pre-judgement and the receipt of extraneous information, which, if not addressed now, may simply dwell over these proceedings throughout the pending trial and give rise to a substantive ground of appeal at the end of these proceedings. An appeal on that basis may lead to the whole of the proceedings being set aside irrespective of the merit or otherwise of the determination by the Commission. In the case where there is a realistic prospect of such an outcome the Commission should approach this matter with great caution and should not embark upon a course which has the potential to lead to that result.
The Application is one with real substance in that the Industrial Commissioner had:
(a) expressed apparently concluded views in relation to matters which are central to the issues that are yet to be decided at the trial (in the interim reinstatement decision); and
(b) received and read materials which, so far as the scope and purpose of those materials has been revealed to the Respondents, are materials which have not been admitted into evidence and on the basis of the objections taken by all of the Respondents, are highly unlikely to ever be admitted into evidence by reason of the issues raised in the objections to the notice to attend; and
(c) there is a real and logical connection between those matters and the perception of the hypothetical observer that human frailty might intrude, and cause the trial to miscarry.
The documents were produced by the CCC in response to a general request by the Applicant and as such it can be reasonably inferred that they are documents which the CCC had decided have a bearing upon the issues identified in the Attendance Notice to Produce. In fact the CCC had actually corresponded with the parties in terms that strongly asserted that the documents would assist the Commission in determining the truth or otherwise of evidence provided in the proceeding, including the extraordinary assertion that the documentation would ensure that the evidence which was "false" was not uncontested.
The CCC had plainly entered into the fray (the civil proceedings) in the most partisan way and in circumstances where they were not a party to those proceedings. The correspondence from the CCC identifies material that:
…must fall into the category of extraneous materials which are prejudicial to someone, central to the Commission's decision-making role and not admitted or admissible in the proceedings.
Whilst it not necessary to attribute any form of fault in relation to these events it was noted that the Applicant at a very late stage in these proceedings commenced the process to obtain the material which was enthusiastically embraced by the CCC. As a consequence these actions caused the Commission to come into possession of documents in respect of which a contest was immediately called by the Respondents placing the Commission in a somewhat difficult position.
The First Respondent simply relies upon the known fact that the Commission was given access to materials and read them in circumstances where the materials are inadmissible and not admitted. The material was on the description provided by the CCC highly sensitive and controversial, the type referred to earlier in the submission when considered in the concept of human frailty and dictates that the Industrial Commissioner should now consider himself to be disqualified from hearing both the Application for the setting aside of the Attendance Notice to Produce and the substantive matter as a whole.
Applicant
The Applicant in wishing to put things in context, listed four separate forms of interlocutory orders that were currently before the Commission, being:
· Applications made by the Second and Third to Ninth Respondents to set aside the Attendance Notice to Produce;
· Application by the Applicant to inspect and copy documents produced by the CCC under the Attendance Notice to Produce;
· Applications made by the various Respondents seeking to have the Commission as currently constituted recuse itself from hearing and determining the Applications to set aside the Attendance Notice to Produce; and
· Applications made by the various Respondents to have the Commission as currently constituted recuse itself from hearing and determining the substantive Application before the Commission.
The position of the Applicant was that both the recusal Applications be dismissed however given the grounds advanced in respect of the recusal Application it was the Applicant's view the Application regarding the Attendance Notice to Produce be determined first and if it is found for the Respondents then somebody else hears the set aside Application.
It was the contention of the Applicant that the second tranche of the Respondent's recusal Applications relating to the substantive Application ought not be heard until there had been a determination, one way or another, in respect of the Attendance Notice to Produce. It was plain that each of the various recusal Applications were made in respect of the substantive matter include, as at least a partial basis for Applications, that the Commission had seen material that it ought not have seen if the objections to the Attendances Notice to Produce are set aside and the documents are released to the parties then that aspect of the Respondent's complaint falls away.
The Respondents had addressed the Commission on what was the relevant principle to be applied in respect of recusal, being whether a fair-minded lay observer might reasonably apprehend that the Commission might not bring an impartial and unprejudiced mind to the questions the Commission must decide. In Ebner the application of the fair-minded lay observer test in respect of apprehension of bias was:
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…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 Industrial Commissioner is required to consider the test in the context of what a fair‑minded lay observer might reasonably apprehend requiring consideration of the facts and context that led to the Application being made.
On 5 July 2018 Angela Szczepanski (Szczepanski) a Solicitor of Gadens Lawyers acting for the Second Respondent forwarded an email to Industrial Commissioner Thompson's Associate at 5.57 pm requesting that the Industrial Commissioner:
…withhold any party or member of the public from inspecting the documents before the objections have been heard and a determination made.
The email made no objection to the Industrial Commissioner inspecting any of the documents. The Associate forwarded correspondence to the Solicitors acting for the various parties advising that Industrial Commissioner Thompson had custody of the documents in his Chambers and they would remain so until the matter of the objections was dealt with. There was a further email from Szczepanski on 5 July 2018 where the Second Respondent agreed that the matter could be heard on 11 July 2018 on the:
…basis that the parties will not inspect the documents and they will not be released to the public pending the determination of the objections on this date.
The Commission, it was submitted, had the power under r 60 of the Industrial Relations (Tribunals) Rules 2011 (Rules) to inspect a "document or thing" that had been produced to the Court, Commission or Registrar:
60 Inspection of document or thing produced under attendance notice
(1)A document or thing produced to the court, commission or registrar, whether produced voluntarily or under an attendance notice, may be inspected by -
(a) the court, commission or registrar; and
(b) with permission of the court, commission or registrar - a party.(2)However, information obtained from the document must not be made public without the permission of the court, commission or registrar.
(3)If the court, commission or registrar considers that part of a document does not relate to a matter in issue, the court, commission or registrar may order that the part be closed.
[37] In [132] he said that evidence from the Councillors had not established any grounds that would extinguish all prospects for Ms Kelsey at trial. In doing that he applied a condition which is inconsistent with the requirements in ABC v O’Neill. In an application of this type, the decision-maker is required to consider whether the applicant has established a prima facie case. This was reversed by the Industrial Commissioner when he, effectively, asked whether such a case had been disproved. He was not, at that point, considering the possible application of the reverse onus.
[38] The Industrial Commissioner erred by not applying the correct test to determine whether a prima facie case existed. That is a sufficient basis to allow the appeal. There were other grounds which were advanced, but (apart from one) they were put in the alternative and need not be considered. The other, independent ground was that the Industrial Commissioner had not assessed the strength of the prima facie case he had found to exist. That step is a requirement of the process to be undertaken on an application of this type. It is a step which the Industrial Commissioner does not appear to have taken.
Interestingly, the Appeal Decision did not canvas the issue of apprehended bias arising from the Commission's findings in the Interlocutory Decision of 4 May 2018.
I do not accept that the Respondents have established based on the relevant test that a fair-minded lay observer might reasonably apprehend that the Commission (as constituted) would not bring an impartial mind to hearing and determining the substantive Application as a lone consequence of the Interlocutory Decision of 4 May 2018.
Accessed CCC Documents
In respect of the second limb of the reasoning relied upon by the Respondents in seeking the recusal of the Industrial Commissioner from participating further in the substantive proceedings, I am of the view that a fair-minded lay observer having the knowledge that the decision maker in PID/2017/3 had reviewed transcript of proceedings involving the Third to Ninth Respondents with the CCC in circumstances where coercive powers were relied upon and in circumstances where that material was unlikely to be admissible in the proceedings before the Commission, that having to determine at a point, matters where the credibility of the Third to Ninth Respondents would be paramount, there might be a question over the ability of the Industrial Commissioner to bring an impartial mind to that task.
The Commission is drawn in these particular circumstances to the commentary in Ebner where it was stated:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty.
I adopt the previously mentioned reasoning in paragraph [131] of this Decision regarding the Commission's (as constituted) conduct in accessing what may be best described as competing accounts of the Third to Ninth Respondents in these proceedings and another place.
The Commission (as constituted) recuses itself from hearing and determining Application PID/2017/3.
The file will be returned forthwith to the Registry.
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