King, Deeney & Othersv Patrick Projects Pty Ltd

[2018] FWC 5559

[2018] FWC 5559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 Appeal of decisions

King, Deeney & Others

v

Patrick Projects Pty Ltd

(C2018/3241)

VICE PRESIDENT HATCHER SYDNEY, 28 AUGUST 2018

Recusal Application

[1] This is an edited version of the decision given on transcript at the hearing of this matter on 20 August 2018.

[2] This proceeding involves an appeal by six individuals against a procedural decision made by a single member of the Commission not to join certain matters together for the purpose of their disposition.  The representative of the appellants at the commencement of the hearing confirmed something adverted to in written submissions which have been filed in the appeal, namely that there was an application for me to recuse myself from the Full Bench assigned to hear the appeal on the ground of apprehended bias. This decision deals with that application.

[3] The recusal application was advanced by reference to two procedural decisions which I had earlier made in connection with the appeal in my capacity as presiding member of the Full Bench.  The first was a decision not to provide the appellants with a free copy of the transcript, or in other words a copy of the transcript prepared at the Commission's expense, for the purpose of the preparation of the appeal book, and the second was a decision not to vary directions made in connection with the appeal to extend time to the appellants to file written submissions for the purpose of the appeal.

[4] I note in respect of the second matter that, notwithstanding the refusal of the request for an extension, the appellants were able to file extensive written submissions in respect of the appeal which have been received by the Commission. Mr Strauss on behalf of the appellants has properly conceded that they have suffered no prejudice as a result of that second decision.

[5] It has been put by Mr Strauss that the two procedural decisions I have just referred to constituted “bullying and intimidation” on behalf of myself.  Mr Strauss also submitted that he had “detected” a reluctance on behalf of presidential members of the Commission to vary previous procedural decisions which have been made. 

[6] The test in respect of an application of this nature is well established. The test is whether a fair minded observer would have a reasonable apprehension that the decision maker might not bring an impartial and unprejudiced mind to the proceedings with respect to a matter which is a live and significant issue in the proceedings.  I am not satisfied on the basis of what has been put that the test is satisfied.  I do not consider that a fair minded observer would, on the basis of the two procedural decisions I have referred to, have a reasonable apprehension that I would not bring an impartial and unprejudiced mind to the substantive matters raised by the appellants' appeal.

[7] In particular, I note that it is not suggested that there is any logical relationship between the matters which were subject of the procedural decisions and the substantive matters raised by the appeal.  Mr Strauss speculated that I might have some personal interest in the matter the subject of the appeal but conceded he was not able to identify what that interest was or, in fact, whether it actually existed.

[8] In the circumstances therefore, the recusal application is dismissed.

VICE PRESIDENT

Appearances:

C. Strauss on behalf of King & Others

Hearing details:

2018.

Sydney:

20 August.

Printed by authority of the Commonwealth Government Printer

<PR700075>