Mr Antony Sorensen v Curtin University

[2022] FWC 2762

[2022] FWC 2762

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Antony Sorensen

v

Curtin University

(U2022/4224)

DEPUTY PRESIDENT BINET PERTH, 28 OCTOBER 2022

Application for an unfair dismissal remedy - Application for the recusal of Deputy President Binet.

1. On 11 April 2022, Mr Antony Sorensen (Mr Sorensen) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Curtin University (Curtin). 

1. Mr Sorensen was dismissed from his employment as a Campus Patrol Officer when Curtin determined that he was unable to meet the inherent requirements of his role because he did not comply with then prevailing mandatory vaccination requirements.

1. Mr Sorensen did not indicate in his Application that he had a representative.

1. On 14 April 2022 Mills Oakley filed by email, copied to Mr Sorensen, a Form F53 – Notice of Representative Commencing to Act (Form F53).

1. On the same day Mr Sorensen sent an email to the FWC Registry stating that he would “like to nominate a speaker on my behalf – Alex Smith” (Mr Smith).  Mr Smith did not then and has not subsequently filed a Form F53.

1. On 5 May 2022, Curtin University filed a Form F3 - Employer Response to Unfair Dismissal Application, noting it had no jurisdictional objections to the Application. 

1. The Application was listed for telephone conciliation before a Staff Conciliator on 13 May 2022 but the issues between the parties could not be resolved.

1. The Application was allocated to my Chambers on 16 May 2022. On 19 May 2022 an email was sent from Chambers to Mr Sorensen drawing his attention to a page on the FWC website containing summaries of recent decisions involving dismissals in relation to mandatory vaccinations.

1. Mr Sorensen indicated that he wished to proceed with the Application and on 24 May 2022 directions for the filing of materials in advance of a hearing were issued to the parties (Directions). 

1. The Directions required Mr Sorensen to file his materials by 4pm (AEST) on 2 June 2022.  The Directions also directed the parties to jointly prepare an agreed statement of facts and jointly file a digital court book compiling all filed materials. 

1. Mr Sorensen forwarded his materials to the FWC shortly before 4pm (AEST) on 2 June 2022.  The materials were not received by Chambers inbox at this time, potentially because of the size of the attachments.  Consequently at 5pm (AEST) on 2 June 2022 Chambers sent an email to Mr Sorensen advising him that Chambers had not received his materials and that Curtin may apply to have the Application dismissed on the grounds that he had failed to comply with the Directions.

1. On 3 June 2022 Curtin advised Chambers that it had received Mr Sorensen’s materials prior to 4pm on 2 June 2022 and therefore did not intend to apply for the Application to be dismissed.

1. The Directions directed the parties to file any submissions seeking leave to be represented at the hearing by 4pm on 2 June 2022 and any objections to leave to be represented by 4pm on 9 June 2022.

1. On 2 June 2022 in accordance with the Directions Mills Oakley filed submissions seeking leave for Curtin to be represented by Mills Oakley at the hearing of the Application. 

1. Mr Sorenson did not file any submissions seeking leave to be represented at the Hearing nor did he file any objection to Curtin being represented within the timeframe set out in the Directions.

1. On 16 June 2022 Mr Sorenson wrote to Chambers asserting that Curtin’s legal representatives had not filed a Form F53. The same day Mills Oakley forwarded a copy of the Form F53 it had filed on 14 April 2022 to Mr Sorensen reminding him that a copy had been forwarded to him on 14 April 2022.

1. Mr Smith responded to Mills Oakley on behalf of Mr Sorenson as follows:

“The Applicant notes that he received the Form 53 on 14 April 2022. However, the Applicant’s representative was not informed of the Respondent’s request for representation at any point after the Applicant nominated a representative on 14 April 2022 at 7.35pm. The Applicant also notes that no Directions Hearing was scheduled or held – the point at which the Form 53 would be lodged, discussed, and decided. As per the Fair Work Commission Rules 2013, subsection 596(2) of the Act and rule 11, this indicates a breach in procedural fairness and due diligence, amounting to manufactured consent, thus making the Respondent’s Form 53 void ab initio.   Regards,   Alex Smith (representing the Applicant – Antony Sorensen) “

1. Notwithstanding that the period for objections to the granting of leave had expired Mr Sorensen was given a further period of time to file any objections he wished to make.

1. On 20 June 2022 Mr Smith sent an email to Chambers on behalf of Mr Sorensen in relation to the question of granting leave.  In that email Mr Smith submitted that leave for Curtin to be represented should be refused on the grounds that it had been refused by Deputy President Clancy in relation to another application Mr Smith described as “a similar case involving claimed vaccination directions”.  In the same email Mr Smith indicated that Mr Sorensen refused to liaise with Mills Oakley with respect to the preparation of the Digital Court Book.

1. On 24 June 2022 the parties were advised that the Application would be listed for a short hearing for the parties to be heard with respect to whether leave to be represented should be granted to Curtin.

1. On 28 June 2022 Mr Sorensen filed further submissions with respect to his objection to Curtin being granted leave to be represented at the Hearing.

1. On 21 July 2022 the parties were offered an opportunity to participate in a conciliation conference.  On 25 July 2022 both indicated that they were willing to participate in conciliation.

1. On 29 July 2022 the parties were sent a Notice of Listing for an in-person conciliation conference on 11 August 2022 (Conciliation Conference).  The Notice of Listing invited the parties to file submissions with respect to the granting of leave to be represented at the Conciliation Conference.

1. On 4 August 2022 Curtin filed submissions seeking leave to be represented at the Conciliation Conference.

1. On 5 August 2022 Mr Sorensen sent an email to Chambers stating as follows:

“Attendance in person will not be possible due to the Applicant's representative's distance and the Applicant's health issues preventing in-person attendance. Please provide Microsoft Teams links or phone conference link details.”

1. On 8 August 2022 Chambers replied to Mr Sorensen as follows:

“I note that the Applicant and his representative are seeking leave to appear via Microsoft Teams or phone conference. To assist the Deputy President in determining whether to grant leave to appear remotely, the Applicant is requested to providing supporting documentation regarding the health issues that prevent him from appearing in person. Additionally, the Respondent is invited to provide any objections to the Applicant's request to appear remotely by 4pm Today, 8 August 2022.

Further, it appears that the Applicant has not sought leave to be represented by a lawyer or paid agent at the Member Conciliation listed for 10:00AM AWST on Thursday, 11 August 2022. Submissions in support of such a request were due by 4pm on 4 August 2022. Should the Applicant wish to be represented by a lawyer or paid agent at the Member Assisted Conciliation, submissions in support of this request are to be filed by 4pm Today, 8 August 2022.”

1. On the same day Mr Sorensen informed Chambers that he refused to provide any details or evidence in relation to his request to appear remotely.  In the same correspondence Mr Sorensen stated that as his representative was not a paid agent or lawyer he refused to submit a Form 53 or file submissions seeking leave to be represented.  In separate correspondence Mr Sorensen objected to Curtin being granted leave to be represented at the conciliation conference.

1. Later the same day Curtin filed submissions in support of the Conciliation Conference being held in person.  Those submissions highlighted issues involved in online proceedings and expressed the view that based on the previous staff conference the Conciliation Conference would likely to be more successful if held in person.

1. On 9 August 2022 Mr Sorensen was provided with a further opportunity to provide further information and/or evidence in support of his application for leave to attend the Conciliation Conference remotely.  The same correspondence also asked him to clarify the capacity in which his representative wished to participate in the Conciliation Conference.

“The Applicant is advised that should he wish to provide further detail in relation to the health issues which prevent him from attending the Commission in person, this will assist his application for leave to attend remotely via video. If the Applicant does not wish to provide further detail on this matter, the Deputy President will determine his application on the limited material before her and determine whether to adjourn the application, proceed in person or grant Mr Sorensen leave to attend by video conference.

The Applicant is reminded that the conference is private. As such, you may seek leave for a lawyer or paid agent to represent you at the conference and speak on your behalf, or you may appear and speak on your own behalf, and have a support person attend with you. A support person is not able to speak on your behalf.  The Applicant must advise Chambers by 2pm today Tuesday 8 August 2022 whether Mr Smith is a support person, paid agent or lawyer so that a determination can be made whether Mr Smith will be granted permission to participate in the proceedings.”

A decision in relation to request by the Respondent for leave to be represented will then be made.”

1. At 10:30am (AEST) on 10 August 2022 the parties were informed that Curtin’s application for leave to be represented had been declined.  In relation to the Mr Sorensen’s request he was informed as follows:

“The Deputy President notes that the Applicant is seeking to be represented by Mr Smith, and that it is stated Mr Smith is not a lawyer of paid agent. No submissions have been provided in support of the request.  The Applicant has been declined leave to be represented by Mr Smith.  Mr Smith may participate in the capacity of a support person.  If the Applicant would like to have Mr Smith appear in the capacity of a support person please inform Chambers and a videolink will be provide to Mr Smith.    The Deputy President has determined not to grant the Applicant's request to appear remotely, as insufficient information was provided to satisfy the Deputy President that there are grounds for doing so.     If the issues between the parties are not resolved at the Conference a Mention will be listed to determine whether leave should be granted to the parties to be represented at the Hearing.    All other Parties located in Western Australia must attend the Conference in-person.”

1. At 9:57am on 11 August 2022 three minutes prior to the commencement of the Conciliation Conference Mr Sorensen sent an email to Chambers stating that he was medically unfit to attend the conference.  The email attached a medical certificate stating that:

“This is to certify that Mr Anthony George Sorensen is unable to work from 11/8/22 to 12/18/22 inclusive due to a medical condition.”

1. Curtin’s representatives were already at the FWC at the time the email was sent.

1. Later the same day Curtin filed an application pursuant to section 399A of the FW Act seeking that the FWC dismiss the Application (Dismissal Application).  Curtin sought the dismissal of the Application on the grounds that Mr Sorensen had failed to comply with directions of the FWC in relation to:

1. the filing of objections to representation;
2. the filing of a digital court book;
3. filing of an agreed statement of facts; and
4. attending the Conciliation Conference.

1. On 18 August 2022 the parties were informed of the outcome of the Dismissal Application as follows:

“On 11 August 2022 Curtin University applied to have the Application Dismissed pursuant to s 399A of the Fair Work Act 2009 (Cth). The Deputy President has considered the submissions made by the parties. She notes the following:

-          The medical certificate was provided only shortly before the commencement of proceedings.  -           The medical certificate certified the Applicant unfit for work only on the day on which the proceedings were scheduled to occur. 
-          The medical certificate was provided after leave to be represented and leave to participate by video conference was declined. 
-          The medical certificate certifies the Applicant unfit for work not unfit to participate in proceedings. 
-          The Applicant declined to provide any evidence to support his assertion that he was unfit to participate in the proceedings.   

However, the Deputy President has narrowly decided to grant Mr Sorensen's adjournment application on the basis that the medical certificate used 'template language' and declined to dismiss the Application. Any further adjournments sought on medical grounds which are not supported by adequate evidence that the Mr Sorensen is unfit to participate in the proceedings will not be granted.    

The Application will be listed for an in person hearing at 10am (AWST) Thursday 25 August 2022 to determine whether leave to be represented at the hearing of the merits of the Application should be granted unless the  Parties inform Chambers by 12pm (AWST) tomorrow 19 August 2022 that they do not wish to be heard orally and are content for the question of the grant of leave to be represented to be determined 'on the papers'.   

The Application will be listed for an in person hearing at 10am (AWST) Friday 30 September 2022 to determine the merits of the Application.”  

1. On 19 August 2022 Curtin advised Chambers that it wished to be heard orally in relation to its application for leave to be represented at the hearing of the merits of the Application.  On the same day Mr Sorenson indicated that he preferred for the issue to be determined on the papers due to “ongoing health issues creating literacy and comprehension issues”.  He provided no details of health issue or how it impacted on his literacy or comprehension.

1. On 23 August 2022 the parties were informed that the Application would be listed for a short hearing on 25 August 2022 to determine whether leave to be represented should be granted.

1. On 24 August 2022 Mr Sorensen informed Chambers that he believed that I should recuse myself from determining the Application.  The same day he was informed by Chambers that if he made a formal application for recusal then the hearing listed for 25 August 2022 would be vacated and directions issued to the parties inviting them to file materials in relation to his recusal application.  Later the same day Mr Sorensen made a formal application for me to recuse myself from determining the Application (Recusal Application).

1. Directions were issued to the parties on 25 August 2022 directing Mr Sorensen to file submissions and evidence in support of his Recusal Application and inviting Curtin to file materials in response.  The Recusal Application was listed for hearing on 30 September 2022.

1. On 9 September 2022 Curtin advised Chambers that they did not intend to file any materials in relation to the Recusal Application.

1. On 16 September 2022 Mr Sorensen filed a digital court book containing all the materials filed in relation to the Recusal Application.  On 23 September 2022 Mr Sorensen was asked to confirm whether he was happy for the Recusal Application to be determined on the papers.

1. On 26 September 2022 Mr Sorensen advised Chambers that Mr Smith “is withdrawn by the Applicant due to personal circumstances” and should be removed from all correspondence with immediate effect.  In the same correspondence Mr Sorensen sought an adjournment of the hearing of the Recusal Application for fourteen days “to appoint a new Representative and to submit any relevant paperwork.”

1. On 28 September 2022 Mr Sorensen was informed that:

“The Deputy President has granted Mr Sorenson an adjournment of the Recusal Hearing listed for Friday 30 September 2022 to obtain legal advice as to whether he should proceed with the Recusal Application.  If Mr Sorensen decides to proceed with the Recusal Application and informs Chambers in writing by 4pm (AWST) Thursday 13 October 2022 that he wishes to be heard orally the Recusal Application will be listed for a hearing at 10am (AWST) Tuesday 18 October 2022.     

Mr Sorensen if your current representative is no longer acting for you then he must file a Form F54.  Any new representative will need to file a Form F53.  If you intend to seek leave for that representative to represent you at the Recusal Hearing they should file written submission in support of the application by 4pm (AWST) Thursday 13 October 2022.”

1. On 10 October 2022 Mr Sorensen informed Chambers that he wished for the Recusal Application to be determined ‘on the papers’.

Evidence

1. The Recusal Directions directed Mr Sorensen to file submissions and evidence in support of the Recusal Application and invited Curtin to file any submissions and evidence in response.

1. Mr Sorensen did not file any witness statements.  Instead, he filed a document containing a mixture of submissions and evidence signed by himself and Mr Smith.

1. Curtin University chose not to file any submissions or evidence in relation to the Recusal Hearing.

1. In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

Consideration

1. Mr Sorensen submits that I should recuse myself from any further involvement in the determination of the Application on the basis of apprehended bias.

1. The grounds on which Mr Sorensen relies for his Recusal Application are that:

“1. Untenable demands have been placed upon the Applicant with regard to the Applicant's private medical information and health issues.

2. The unreasonable demands for an in-person hearing when the Applicant and his Representative, Alex SMITH, had provided valid grounds for a Microsoft Teams meeting with regards to ongoing health issues for the Applicant and Mr SMITH currently being interstate. Chambers and the Respondents have been notified of this on multiple occasions.

3. The Chambers has also probed into details of the Applicant’s health issues which breaches the Privacy Act (Cth) 1988 and offered no laws relied upon to require the Applicant to disclose these details.

4. The Applicant submits that the first unsuccessful conciliation was due to no remedy being offered by the Respondent and not due to the mode of communication (a telephone conversation). Hence, the mode of communication was not an issue.

5. It is noted that the Respondent’s previous representative, Mills Oakley, requested an in-person conciliation purporting that the first telephone conciliation was unsuccessful due to it being remote, however it was unsuccessful due to no remedy being offered.

6. The Chambers can be seen to be granting the Respondent’s requests, i.e. allowing in-person vs remote conferences, more than the Applicant’s, therein lies the bias and discrimination toward Applicant and Representative.

7. All requests have been more than reasonable given Microsoft Teams has been the primary mode of hearings for some time now with little to no issues. In-person hearings have their own issues as Chambers and the Respondent would be well aware
of, given the number of cases dealt with. It is also noted that it is a Directions Hearing and that these take a minimal amount of time and given the current health issues, it is burdensome upon the Applicant.

8. It is also noted that the Respondent has made no offers to enable a settlement in any event. Therefore, a second conciliation would in our view amount to a waste of court resources. If the Respondent wishes to put forward a sensible offer, due consideration could be given and it could then be settled without imposing on further court resources.

9. The Chambers, Deputy President Binet, Respondent and the Respondent’s representatives consistently and erroneously referring to the Applicant’s representative as a “support person” in the attempt to silence and denigrate the Applicant’s representative, however according to the FWC rules, the Applicant is allowed unpaid representation in the full sense of the word, including negotiations and mediation, etc. without needing to seek approval for the representation and the Applicant is strongly objecting to the unfair and unreasonable restrictions being inferred through the correspondence from Chambers and the Respondent regarding this matter of representation. There is noticeable bias favouring the Respondent’s requests/needs at the expense of procedural fairness to Applicant. This is clearly evident and verifiable through the email correspondence between all parties ignoring the fact of the Respondent’s vast resources and capabilities with respect to the Applicant’s limited resources, health and abilities, demonstrating procedural unfairness and bias towards the Applicant.

1. Apprehended bias can only be found if it can be said a fair-minded and appropriately informed lay observer would reasonably apprehend that the decision maker might not determine the matter in an impartial and unprejudiced way:[1]

“… bias ‘connotes the absence of impartiality’ What constitutes impartiality is more than predilections.  It requires the decision-maker’s mind to be so made up or determined in favour of one conclusion, irrespective of the arguments put to him or her.”[2]

1. Disqualification is only established if there is:[3]

“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.”

1. In ALA15 v Minister for Immigration and Border Protection[4] the Full Court of the Federal Court set out the principles for determining a recusal application noting that:

“…(a)at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i)There must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(ii)There must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits;

(b)an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer.”  [FOOTNOTES OMMITTED]

1. It remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.[5]

1. The test for apprehended bias has:[6]

“a flexible quality, differing according to the circumstances in which a power is exercised.”

1. The test for apprehended bias recognises and accommodates differences between court proceedings and other kinds of decision-making.[7]  The context in which the test of apprehended bias falls to be applied will clearly affect how the test is applied.[8]  The fair-minded lay observer is taken to be aware of the nature of the decision and the context in which it is made as well as the circumstances leading to the decision.[9]

1. The context of proceedings before the FWC includes that it is a specialist tribunal established to deal with industrial matters in a practical, expeditious and effective manner. The FW Act directs the FWC to perform its functions in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities.

1. The parties were offered the opportunity to participate in the Conciliation Conference.  Mr Sorensen in fact accepted this offer prior to Curtin doing so.

1. The request that Mr Sorensen appear in person is factually not evidence of differential treatment of Mr Sorensen as compared to Curtin or as compared to any other party appearing before me.  Further Mr Sorensen has not explained how the request to appear in person, or his refusal to do so, might lead me to decide the Application other than on its legal and factual merits. 

1. The request to appear in person was made to both Mr Sorensen and Curtin.

1. The majority of proceedings before me are listed in person unless I am aware that parties and representatives are not located in the Perth metropolitan area.  I list matters in person for a variety of reasons which include that:

1. In my experience parties and representatives behave more courteously and collaboratively in person.  This facilitates conciliated outcomes avoiding the delay and cost of contested hearings. 

2. In person attendance avoids audio problems creating communication and comprehension issues delaying or prevent resolution of matters.

3. Parties, representatives and Members can move more swiftly between private sessions and more readily quorum.  This allows parties to efficiently seek advice and consider resolutions.

4. Proceedings are not delayed or prevented from proceeding due to unstable internet connections or hardware malfunctions. 

5. Documents and physical items can more easily be exchanged.  This allows parties, representatives and the FWC to be fully informed prompting fairer and quicker outcomes.

6. Resolutions can be documented, exchanged and executed immediately.

7. Body language which may assist in the assessment of credibility of evidence can far more easily be observed.

8. Heightened emotions can be more quickly identified and deescalated more readily in person.

9. Truthfulness is enhanced in the formal environment of court or conference room.

10. There are limited distractions in hearing or conference room where mobile devices are switched off as opposed to an uncontrolled home or work environment.

11. The formality of attendance at a hearing or conference rooms gives more gravitas to the proceedings and consequently the outcomes.

1. Each of these features of in person proceedings is consistent with the direction that the FWC perform its functions quickly and informally avoiding unnecessary technicalities.

1. Mr Smith informed Chambers he was not located in Western Australia.  Chambers was able to verify this information.  Mr Sorensen was informed that in those circumstances Mr Smith would be provided with a video link if he wished to participate in the proceedings in a capacity as a support person.

1. According to the Application Mr Sorensen is a resident of the Perth metropolitan area. He provided no evidence in support of any of his requests that he be granted leave to attend remotely.  The only evidence which he provided was provided three minutes before the Conciliation Conference which he failed to attend.  The medical evidence was provided to explain his absence from the Conference not in support of an application to participate remotely in the Conference.  The medical certificate indicated that Mr Sorensen was unable to work only on the day of the Conference not for any more extensive period.

1. The determination of Mr Sorensen’s requests for leave to be represented are not factually differential treatment of Mr Sorensen as compared to Curtin or as compared to any other party appearing before me.  Further Mr Sorensen has not explained how my treatment of his requests for leave to be represented might lead me to decide the Application other than on its legal and factual merits. 

1. Mr Sorensen was not denied ‘unpaid representation’.  It is clear from his numerous correspondence countersigned by Mr Smith that Mr Sorensen was in receipt of advice or assistance from Mr Smith.

1. On each occasion the Application was listed for a conference or hearing Mr Sorensen was invited to file submissions in support of Mr Sorensen advocating on his behalf at the conference or hearing.  Mr Sorensen declined to file any submissions even after being granted various extensions to do so.

1. On the one occasion that Mr Smith was refused leave to represent Mr Sorensen he was offered the opportunity to attend in his capacity as a ‘friend’ and support person.  Mr Sorensen was advised that Mr Smith would be provided with a video link in order to enable him to do so.

1. In relation Mr Sorensen’s request for leave to be represented at the Conciliation Conference, I reached the conclusion, based on the materials filed by Mr Sorensen and countersigned by Mr Smith, that Mr Smith’s involvement was unlikely to enable the matter to be dealt with more efficiently given the approach adopted by Mr Smith in his communication with Chambers and Curtin and Mr Smith’s apparent lack of knowledge of the processes of the FWC or the legal principles relevant to the Application.  It did not appear from Mr Sorensen’s exchanges with Chambers that he was not able to represent himself and he filed no evidence to suggest that this was the case.  Having declined to grant Curtin leave to be represented I was not satisfied that it was unfair not to permit Mr Sorensen to be represented. 

1. I note that Mr Sorenson did not appeal my decision to decline him leave to be represented at the Conciliation Conference.  I also note that Mr Smith’s conduct in similar matters has been the subject of criticism in similar proceedings before the FWC.   See for example Deputy President Clancy’s comments in Nigel Stock v Rocla Ltd:[10]

“My experience of Mr Smith was that despite evincing an attitude to the Commission that was belligerent, verging on dismissive, he has nonetheless been intent on persisting with certain submissions despite grudgingly acknowledging during the conduct of Scale that it was for a court to determine the legality or otherwise of public health orders and directives. In two matters in which he appeared before me, Mr Smith attempted to advance propositions that were plainly incorrect...”

1. It is factually incorrect to suggest that more procedural decisions were made in favour of Curtin than Mr Sorensen.  Notably all the procedural decisions of substance were made in favour of Mr Sorensen.  For example, he was granted extensions to file his submissions with respect to leave to be represented, his objection to Curtin being granted leave to be represented at the Conciliation Conference was upheld, Curtin’s Dismissal Application was dismissed and his adjournment request for the Recusal Hearing was granted.

Conclusion

1. Having considered the submissions of the parties, the evidence tendered and the relevant authorities I am satisfied that it is not appropriate to recuse myself.

DEPUTY PRESIDENT

[1] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].

[2] Metro Trains Melbourne Pty Ltd v ARTBU, CEPU, APESMA[2013] FWC 4034 at [32].

[3] Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Resmed Ltd v AMWU [2015] FCAFC 106; (2015) 232 FCR 152 at [32].

[4] [2016] FCAFC 30 at [35]-[36].

[5] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [21] per Kiefel CJ and Gageler J

[6] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [22]-[23].

[7] Ibid.

[8] Cabcharge Australia Ltd v ACCC [2010] FCAFC 111 at [25].

[9] Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [68]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [23].

[10] [2022] FWC 2597 at [36].

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