Mr Michael PriestleyvDepartment of Parliamentary Services

[2010] FWA 5619

Note: An appeal pursuant to s.604 (C2010/4569) was lodged against this decision.

[2010] FWA 5619

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Michael Priestley
v
Department of Parliamentary Services

(2010/2852)

Mr Michael Priestley
v
Department of Parliamentary Services

(2010/2853)

VICE PRESIDENT LAWLER SYDNEY, 2 AUGUST 2010

Application for disqualification for apprehended bias

[1] Mr Priestley made application for me to disqualify myself from dealing further with matters C2010/2852 and C2010/2853 1. I refused that application on 27 July 2010. These are my reasons for refusing that application.

[2] Mr Priestley has alleged actual bias as well as apprehended bias. There is nothing in the material relied upon that could be regarded as establishing actual bias. Principles relevant to the resolution of the disqualification application in this case were collated by the Full Bench in Oram v Derby Gem Pty Ltd 2:

“[107] The test to be applied in Australia in determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. 3 In Laws v Australian Broadcasting Tribunal4 Gaudron and McHugh JJ noted:5

“When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion irrespective of the evidence or arguments presented to him or her.”

[108] The relevant ground for disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially and without prejudice, rather than that he or she will decide the case adversely to one party. 6 Mere predisposition or inclination for or against a particular argument or conclusion is not sufficient. In The Minister for Immigration and Multicultural Affairs v Jia7 Gleeson CJ and Gummow J, with whom Hayne J agreed, said8:

“Decision makers, including judicial decision makers, sometimes approach their task with a tendency of mind or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”

[109] Moreover, judicial officers have a duty not to accede too readily to a disqualification application In Re J.R.L ex parte C.J.L 9, Mason J, in an oft-quoted passage, stated:

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

[110] Far from being inappropriate, the expression of a provisional view on a particular issue or warning parties of the consequences of a provisional view will typically be entirely consistent with the requirements of procedural fairness.”

[3] The most recent consideration of disqualification for apprehended bias in the High Court, Ebner v Official Trustee 10, reaffirmed again the conventional test set out above.

[4] The bases for that application are set out in two letters both dated 21 July 2010 and a letter of 23 July 2010. I will deal with each in turn.

First letter of 21 July 2010

[5] Mr Priestley’s first letter of 21 July 2010 relevantly states:

“In the decision your Honour referred to the Applicant as "a low level resource". Your Honour made this reference in two long summations to justify the adverse and unlawful actions taken against the Applicant by the Respondent.

Your Honour's description is demeaning of the Applicant and is indicative of the bias against the Applicant, having refused to accept in evidence the Discoverer Reports for Mr Robertson which show that Mr Robertson was underemployed for a considerably long period, close to a year in the relevant years between 2007 and 2008.¹

The epithet "low" has a pejorative and demeaning connotation when used to describe persons. It generally means inferior, below par, of lesser ability, lacking the requisite attributes when describing a person. The Macquarie Dictionary (3^1T1 Edition) lists the following meanings:

19. assigning or attributing no great amount, value, or excellence: a low estimate of something. 21. far down in the scale of rank or estimation: low birth. 22. of inferior quality or character: a low type of intellect.23. lacking in dignity or elevation, as of thought or expression.

Your Honour's conduct of the proceedings in Matter No. DR2009/1356, which is the subject of appeal on the grounds of misconduct, and fractious remarks often directed at the Applicant emboldened the Respondent to take further adverse actions against the Applicant, as detailed in the two applications listed for mention and conference.

Having dismissed Matter No. DR2009/1356 without having heard the Applicant, your Honour expressed his preconceived views about the two applications in the decision:2

[58] Mr Priestley has filed two further applications in matters C2010/2852 and C2010/2853. Those matters are allocated to myself but have not yet been dealt with beyond conducting a telephone mention on 1 April 2010. One at least of those applications appears to a further agitation of issues related to and arising out of then underlying dispute.

Your Honour also showed bias at the mention conducted on 1 April 2010 when your Honour without prompting from Mr Boyer invited him to take an open position on jurisdiction when Mr Boyer had expressed no view:

PN126 THE VICE PRESIDENT: Do you take any issue that steps required to be taken by the dispute resolution procedure before the dispute is referred to the tribunal have not yet been taken, or do you accept that the matters are, as it were, properly before the tribunal in a procedural sense?

PN127 MR BOYER: I would believe that in relation to - - -

PN 128 THE VICE PRESIDENT: And if you don't want to adopt a final position on that you may, but you may not have - - -

PN 129 MR PRIESTLEY: Your Honour, may I record my objection to your question to Mr Boyer.

PN 130 THE VICE PRESIDENT: Yes, it's noted, Mr Priestley, and I will come back to it in a moment. Yes, Mr Boyer, the question is, what is the position of the department? Does it accept that the matters are properly before the tribunal in a procedural sense; namely, that any preconditions that need to have been satisfied prior to referral have in fact been satisfied or is there going to be an argument about an absence of jurisdiction because of a failure to follow procedure in the disputes resolution procedure?

PN 131 MR BOYER: The department's position is that, no, we will not argue that there is a procedural issue here.

In these circumstances, your Honour's continued hearing of the two applications would be in breach of sections 577, 578 and 640 of the Fair Work Act 2009 and the Applicant's workplace rights, within the meaning of workplace right in paragraphs 341(1)(a) and (b) of the Act.”

[6] In relation to my alleged description of Mr Priestley as a “low level resource”, the relevant paragraph in my decision reads:

“[56] Moreover, subject to any specific legal constraints, it is entirely reasonable and open to an employer such as DPS, in relation to the Parliamentary Library, to make changes to its structure and or the way in which its resources are deployed in response to changes in the demands or needs or its clients, changes in the importance of, or priority given to, the various issues on which it is expected provide advice, or to improve the overall effectiveness of its service delivery. Indeed, it is entirely unremarkable that such changes should occur and as the Parliamentary Library seeks to adapt to the changes in needs and priorities of its clients. In a case such as the present, there is no warrant whatever for a tribunal such as Fair Work Australia second-guessing the DPS’s decision that Mr Robertson’s skills were better utilised in a specialist North-East Asia role and to devote a lower level resource, Mr Priestley, to trade research. Subject to legal constraints arising through statute (for example, occupational health and safety legislation), the contract of employment and any applicable collective agreement, an employer is free to assign any work to an employee that is within the employee’s skills and competence. I am satisfied that there was no such constraint on the allocation of trade related duties previously performed by Mr Robertson as part of his work in position number 20109 to Mr Priestley. There is no suggestion in this case that that work outside Mr Priestley’s skills or competence. On the contrary, it is part of Mr Priestley’s case that such work is within his skills and competence but that he should be placed in a higher classification and or receive higher pay for that work. There was no obligation on DPS to accede to those demands. It was well open to DPS to decide that it would devote a lower level resource - Mr Priestley - to that work.”

(emphasis added)

[7] I did not describe Mr Priestley as a “low level resource”, but rather as a “lower level resource” and, in context, that was clearly a description by reference to a comparison with Mr Robertson. This difference is important. The reference to “lower level resource” in that context does not carry the inappropriately pejorative overtones for which Mr Priestley contends. Moreover, and perhaps more importantly, it is an accurate description having regard to what I understood to be the facts of the matter at the time I prepared my decision. I understood that it was part of Mr Priestley’s case that Mr Robertson had been placed in a position with a higher classification than that of Mr Priestley (and was thus regarded as a higher level resource when compared to Mr Priestley) and was performing the trade related duties that are at the heart of this case out of that higher position, which duties the DPS sought to have Mr Priestley perform out of his lower classification position.

[8] I note that I had gathered that Mr Robertson had been placed in a higher classification from various things said by Mr Priestley and from the monetary component of his claim. It appears that I was mistaken in reaching that understanding of the facts and that, at all times, Mr Robertson was in a position with the same classification as Mr Priestley. I do not see this error as affecting the outcome of the matter because even if Mr Robertson was in a position with the same classification, it was open to the DPS to consider Mr Robertson as a resource whose skills were better deployed in the specialist North-East Asia role and to have the work previously performed by Mr Robertson by another researcher or researchers in the Parliamentary Library.

[9] I note also that the “underlying dispute” in matter DR2009/1365 was a dispute over the legal right of the respondent to require Mr Priestley to undertake trade-related work that was previously done by another officer (Mr Robertson) in what had been the FADT section and, if it has such a right, whether Mr Priestley is entitled to be reclassified to a higher level or, at least, receive higher pay. It has become apparent that Mr Priestley’s fundamental complaints extend to a complaint about the imposition upon him of an unreasonable workload independently of whether the DPS has the legal right to assign him duties previously undertaken by Mr Robertson. I should make it clear that my decision in matter DR2009/1365 does not deal with a dispute over excessive workload or harassment constituted by the unreasonable overloading of Mr Priestley with additional work.

[10] Mr Priestley identified the allegedly “fractious remarks” I am supposed to have made as being contained in transcript PN540. That paragraph is as follows:

“THE VICE PRESIDENT: I think I need to be candid with Mr Priestley as a matter of fairness. Mr Priestley, I have a provisional view and let me emphasise that it's a provisional view. It's not a view which is fixed. It is a view which I am open to be shifted from by argument. But I have a provisional view, a starting point view, that this whole matter is just an absurdity. That it is entirely proper and reasonable for employers to make changes to the way in which they choose to deploy their resources to perform the work - 11 that is the stuff of the employer's business and that - just hear me out please - if the Department of the Parliamentary Library in its wisdom or otherwise - and employers are allowed to make bad business decisions as well as good ones - decides that they wish to redeploy a higher level resource such as Mr/Dr Robertson for some other duties or functions or research, then they're entitled to do that.”

[11] The transcript continues:

“And if they decide they want to reorganise and restructure how the work that he was performing is done, and to have a lower level resource devoted to it, then subject to statutory duties in relation to for example, occupational health and safety and whatever other statutory constraints are available, that's their perfect right. And the idea that hundreds of thousands of dollars of taxpayers' money is being spent on this particular case, about whether you should or should not be performing trade research, is a circumstance that causes me to seriously think that I ought to decline to deal with the matter further in the public interest. The reason why I'm so concerned to look at duty statements and contractual documents is because if you've got a contractual right not to do that work, then that right must be upheld. And to the extent that the Commission has jurisdiction to deal with it, then that right will be upheld, and that's the reason why I've been focussed on the contractual documents.

MR PRIESTLEY: Your Honour, I've heard that summary before.”

[12] I can see nothing that I said in PN504 which might fairly be described as a “fractious” remark such as to require me to disqualify myself. On the contrary, PN504-5 contains a perfectly permissible statement of provisional view of the sort that is endorsed as proper by the authorities outlined in the extract above.

[13] Turning to the mention of 1 April 2009, it is a not uncommon practice for judges and judicial officers to seek a statement of position from a party on a provisional basis, particularly at the first mention of a matter, recognising that it may be unfair to require an unqualified statement of position at a first mention. In the extract relied upon by Mr Priestley I was doing nothing more than that, recognising the possibility that the respondent may not, at that time, have received final advise in relation to any jurisdictional objection.

Second letter of 21 July 2010:

[14] Mr Priestley’s second letter of 21 July 2010 relevantly states:

“It is evident from your Honour's decision on 20 July 2010 and reasoning for the conclusions drawn in summation that your Honour relied upon information and departmental documents provided by the Respondent's solicitors which were not disclosed to the Applicant. It is also clear that your Honour used the information selectively.

The information was the bundle of documents produced by Blake Dawson to the Tribunal on 4 August 2009 in compliance with the Order made on 7 July 2009.1

Your Honour cancelled the schedule listing for return of order to produce without providing an opportunity to the parties to make submissions for the future conduct of the proceedings.

The Applicant has applied to the Full Bench to direct your Honour to provide the Applicant a copy of the information produced by Blake Dawson.

Having relied upon that information produced by Order at the request of the Applicant, I ask that you disclose the documents willingly and to do so forthwith.”

[15] I did not rely on any information other than information drawn from:

• documentary material admitted into evidence (including documents and an accompanying submission filed by Mr Priestley in response to directions issued on 14 July 2009 and subsequently marked as Exhibit 6).



• the oral evidence; and



• the written and oral submissions of the parties (including the document marked as MFI 1, being Mr Priestley’s statement of the matters in dispute, filed and served in compliance with the directions issued on 11 May 2009 which I have treated as a submission as to Mr Priestley’s contentions in relation to the matters in dispute.

[16] In particular, I did not place any reliance on “information and departmental documents provided by the respondent's solicitors which were not disclosed to the Applicant”. Mr Priestley withdrew his assertion to the contrary by email dated 23 July 2010 sent at 6.44pm.

[17] In relation to the contention that I “cancelled the schedule listing [on 5 August 2009] for return of order to produce without providing an opportunity to the parties to make submissions for the future conduct of the proceedings”, I note that the future conduct of the matter was the subject of extensive discussions on 7 July 2009. A fair reading of the transcript will disclose that:

• I made it clear that I did not regard the documents sought in the order for production as capable of being relevant to the respondent’s jurisdictional objection or the narrow s.111(1)(g) [sic 12] case (ie. the case confined to a consideration of the effect of Mr Priestley’s contract of employment).



• I made it clear that if the jurisdictional objection or the narrow s.111(1)(g) case was resolved in favour of the Department then that would be the end of the matter before me and there would be no utility in the production of the documents in question.

• Mr Priestley nevertheless sought production of the documents and the respondent agreed to submit itself to an order for production even though I had indicated that I would not issue the order at that stage if the respondent objected.



• After argument in relation to the categories in the draft order for production, an order for production issued but only on the basis that Mr Priestley would use those documents in the preparation of his evidence in the broader case (which evidence would only be of use in the event that I rejected the respondent’s jurisdictional objection and its narrow s.111(1)(g) case). Mr Priestley wanted this to occur rather than await the decision on the jurisdictional objection and the narrow s.111(1)(g) case and only then undertake the work involved in preparing his evidence on the broader case.

[18] I cancelled the listing in question because I had not yet produced my decision on the respondent’s jurisdictional objection and the narrow s.111(1)(g) case and I took the view that it would have been wasteful and of no utility for that mention to proceed before that decision was produced. In the circumstances of this case, there was no occasion to hear “submissions on the future conduct of the case” until that decision was produced. I note that I received no objection from Mr Priestley to the cancellation of the listing at the time.

Letter of 23 July 2010

[19] Mr Priestley’s letter of 23 July 2010 relevantly states:

“On 13 April 2010, I wrote to Fair Work Australia requesting, among other things, a copy of the memorandum on file by Commissioner Deegan to which the attached email of 7 April 2009 from Mr Wang (the associate) to Ms Greening (Director, HR, DPS) refers.

Ms Greening's email dated 2 April 2009 reads:

"DPS attended conciliation on Monday 30 March with respect to the above matter and I was wondering if there would be any record from the hearing?

During conciliation, Commissioner Deegan was able to narrow Mr Priestley's matters to one point only — the power of the Secretary to change the functions of a position without the consent of the individual — narrowed to Mr Priestley's case only, and it would be helpful for all parties concerned if a record had been made regarding this matter, especially if it goes to arbitration.

Please feel free to phone me on 6277 2706 should you wish to discuss further."

In response to Ms Greening's request for a transcript of the conciliation conference held in Canberra on 30 March 2009, Mr Wang replied on 7 April 2009:

"Firstly, there is no recording of conferences.

In regards to the narrowed down point, Commissioner Deegan will put a memorandum on the file to ensure this is noted for Arbitration." (emphasis added [by Mr Priestley])

Your Honour's refusal to afford me an opportunity to sight that advice which was prepared after private conciliation had failed, is further grounds for your Honour's recusal.

[20] The memorandum in question is as follows:

FILE NOTE

DR2009/1356

Priestley v Department of Parliamentary Services

“Mr Priestley has notified a dispute. At conciliation it was agreed that the dispute could be narrowed to the question:

“Does Mr Priestley’s employer have the right to direct him to undertake research in a particular field?”

This has been characterised as the power of the Secretary to change the functions of the position without the consent of the individual” - see email from DPS dated 2 April 2009.

B. Deegan

Commissioner

20 April 2009”

[21] To the best of my present recollection, I paid no attention to the Commissioner’s memorandum in the conduct of this matter (not that it would have been improper to read a memorandum of that sort which advised a refinement of the matter in dispute). Rather, I approached this matter in the same way that I approach all matters for arbitration where a prior conciliation has been conducted by another member; namely, that I take no notice of anything to do with the conciliation unless and until a party seeks to rely upon something said or done in or as a consequence of the conciliation. The mention of the matter on 29 April 2009 was primarily focused on ascertaining what the issues in dispute were between the parties. It should have been apparent from that mention that I had no clear notion of precisely what was in dispute between the parties and that I was certainly not proceeding on the basis that the dispute had been confined as indicated in the Commissioner’s memorandum.

[22] Mr Priestley’s letter of 13 April 2010 ‘required’ the provision to him of certain documents “[f]or the purposes of referring certain matters to the Full Bench of FWA for determination”. I formed a provisional view that Mr Priestley’s ‘requirement’ was misconceived in circumstances where the decision was still outstanding and that there could in any event, in the particular circumstances of this case, be no utility whatever in the provision of the memorandum in question. (Mr Priestley was given a full opportunity to specify the matters in dispute - see paras [17] - [18] of the primary decision [2010] FWA 2684 - such that the Commissioner’s memorandum was superceded by events). The distractions of other work meant that I did not revisit that provisional view, as I had planned to do, before receiving Mr Priestley’s letter of 23 July 2010. I cannot see that the failure to provide the memorandum could be regarded a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

Other matters raised in oral submissions on 27 July 2010

[23] In oral submissions on 27 July 2010 Mr Priestley canvassed the matters dealt with above but also raised a further issue, namely my refusal to issue an order for the production of documents that he had sought requiring the production of “Instrument delegating the Secretary’s power under s 25 of the Parliamentary Service Act 1999 to make directions in relation to an employee’s duties” but then relying on s.25 in my decision.

[24] I did not rely on s.25 because there had been a delegation of that power and an allocation of duties to Mr Priestley pursuant to such delegation. Rather, I relied on the existence of s.25 as relevant to whether or not Mr Priestley’s contract of employment could be regarded as preventing the assignment of duties previously performed by Mr Robertson to Mr Priestley (a matter that went to the heart of the underlying dispute). Given the absence of any contractual term expressly confining the duties that Mr Priestley could be required to perform pursuant to his contract of employment to the duties attaching to his particular position at the time he was engaged by the DPL, s.25 was a powerful factor against construing the relevant documents as giving rise to such a term as a matter of construction or by implication.

Conclusion

[25] In my view, none of the matters relied upon by Mr Priestley could give rise to a reasonable apprehension in a fair-minded lay observer that I might not bring an impartial and unprejudiced mind to the resolution of the questions I am required to decide in relation to the matters to which the application relates. I am not satisfied that I should disqualify myself. In those circumstances, I have a duty to deal with the matters. Mr Priestley’s application for disqualification is dismissed.

VICE PRESIDENT

Appearances:

Mr M. Priestley, the applicant, appeared in person.

Mr B. Boyer, appeared for the respondent.

Hearing details:

2010.

Canberra:

July 27.

 1   I note that matter number C2010/2853 was resolved in conference later on 27 July 2010.

 2 (2004) 134 IR 379

 3 Johnson v Johnson (2000) 201 CLR 488 at para [11]; Livesey v. New South Wales Bar Association (1983) 151 CLR 288 at pp 293-294; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41.

 4 (1990) 170 CLR 70

 5   at 100

 6   Re J.R.L ex parte C.J.L (1986) 161 CLR 342 at 352

 7 (2001) 178 ALR 421

 8   at p 438

 9 (1986) 161 CLR 342

 10 (2000) 205 CLR 337 at [6]

 11   This dash has been added to the transcript to better convey the meaning of what has been transcribed.

 12   As noted in the primary decision, the reference to s.111(1)(g) was an error and should have been a reference to s.111(1)(e) albeit that the old s.111(1)(g) contained the power that was subsequently found in s.111(1)(e).

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