Mr Tanka Jang Karki v The Star Pty Limited t/a the Star Sydney

[2018] FWC 7463

[2018] FWC 7463

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 789FC - Application for an order to stop bullying

Mr Tanka Jang Karki

v

The Star Pty Limited t/a The Star Sydney; Ms Jessica Sykes

(AB2018/599)

DEPUTY PRESIDENT SAMS SYDNEY, 13 DECEMBER 2018

Application for recusal of Commission member – application for a stop bullying order – unrepresented applicant – preliminary conference – alleged actual or apprehended bias and pre-judgment – principles dealing with recusal applications –– no steps proposed or taken adverse to applicant’s interests – applicant encouraged to seek advice as to issues arising from his application – no actual or apprehended bias – recusal application dismissed –further programming.

BACKGROUND

1. This decision will determine a preliminary application filed by Mr Tanka Jang Karki (the ‘applicant’), seeking that I recuse myself from any future involvement in his application for a stop bullying order against The Star Casino, Sydney (‘The Star’). For the purposes of this decision it is helpful to set out a short background to the applicant’s recusal application.

1. On 27 September 2018, the applicant filed an application pursuant to s 789FC of the Fair Work Act 2009 (the ‘Act’) in which he alleges he has been bullied at work, as a Bellman, by his Manager at The Star. He described this alleged bullying behaviour as ‘publicly abusing, threatening and harassing’.

1. In its response to the s 789FC application, The Star claimed that Mr Karki’s application arose from a ‘one off’ incident on 27 August 2018 in which he was observed by Front Office Manager, Ms Jessica Sykes, using his personal mobile phone while on duty in full view of guests. This was contrary to The Star’s Policies and Procedures. Following a meeting on 3 September 2018 to discuss this incident, the applicant received a written warning, which he strongly disputes. He remains at work.

1. In accordance with my usual procedures, I convened a preliminary conference of the parties on 1 November 2018. Mr Karki appeared for himself and Ms Delinavelli with Ms Ede, Ms Sykes and Ms Posetti appeared for The Star. The purpose of the conference was to explore whether the application might be able to be resolved, without resort to more formal proceedings. My practice is not to record these conferences, as I use this forum to discuss settlement of the matter privately with the parties, in both joint and separate sessions.

1. Plainly, if the proceedings were recorded it would inhibit open, frank and confidential discussions, if one of the parties subsequently sought to access the transcript of the proceedings for a subsequent purpose. It is particularly necessary to stress that in these conferences, the Commission does not receive formal evidence; let alone make findings as to factual matters in dispute or on jurisdictional objections based on the material which has been filed on a preliminary basis, or discussed informally during the conference. I understand why some parties, particularly an unrepresented applicant in anti-bullying matters, might expect swift and final findings by the Commission, based solely on the information set out in their application. Obviously, this would be totally inappropriate and contrary to the principles of natural justice.

1. It must further be said that there is an obligation on a Member of the Commission, to at least point out to unrepresented litigants the relevant legislative provisions they will need to address if the matter proceeds to formal hearing. It is also incumbent on a Member, while always making it clear that no final view is being expressed, to point out any obvious weaknesses in either sides case. This is not to be interpreted as expressing any final view, but merely to be helpful. It goes without saying that a Member must always ensure a degree of caution and balance in either advising a party of their rights, or expressing a view or opinion, which might be misinterpreted as a final and conclusive one.

1. It was in this context, and in my usual way, that I explained to the applicant a number of jurisdictional objections which The Star had raised, including but not limited to:

1. The warning he received and about which he complained, was a ‘one off’ incident and s 789FD of the Act defines bullying as repeated unreasonable behaviour.
2. Whether the disciplinary action was reasonable management action carried out in a reasonable manner (S 789FD(2));
3. Whether there was a future risk that the applicant would be bullied at work (s 789FF); and
4. The relevance of the applicant not making a complaint in accordance with The Star’s Bullying and Harassment Policies.

1. I explained to the applicant that these are difficult legal questions, about which the Commission cannot form a final view unless a proper case is prepared and conducted in open court. In these circumstances, I strongly recommended he seek legal, or other advice as to his matter. Despite him agreeing to his case being adjourned for 7 days to allow him to obtain that advice, I proposed 14 days. This adjournment was agreed to by all parties.

1. Shortly thereafter the applicant lodged a complaint with the President of the Commission about my handling of the 1 November 2018 conference. I need not traverse the complaint to the President, although it was largely in the same terms as this current recusal application. Seemingly arising from the President’s response, the applicant sent a one line email to my Chambers on 19 November 2018, as follows:

‘Your Honour, I would like you to recuse yourself from the matter AB2018/599 as I am concerned your continuing the case would be partial. I would apologize for any inconvenience created’.

1. The next day, the applicant was advised as follows:

‘Dear Mr Karki

Thank you for your email of yesterday. His Honour has aked me to advise you that a one sentence request for a recusal is an insufficient basis for your application to be accepted and detailed reasons are required. Accordingly, his Honour directs that you file an appropriate application with supporting submissions and directs as follows:

A. The applicant (Mr Karki) to file and serve an appropriate application with supporting submissions in respect to Deputy President Sams recusing himself from hearing Mr Karki’s substantive s 789FC application by no later than 4pm on 4 December 2018.

B.     The respondent, should it wish to do so, can file any submissions in respect to the applicant’s recusal application by no later than 4pm on 11 December 2018.

C.     All further programming of the substantive stop bullying application is suspended until the recusal application is determined by His Honour’.

1. On 1 December 2018, the applicant sent a short submission as follows:

‘Your honour,

I have applied the case at fair work commission and the hearing was on 1^st of November AB2018/599 at your chamber. on that day ,as soon as your honour entered the chamber you complained about the nature of the case brought. Your honour interrogated me about the case and objected every answer I provided as if you were the attorney of the defendant. Your honour did accept anything the defendant provided as the evidence.
Your honour also tried to scare me by giving the outcome that could be in favor of the defendant. I would be ended up paying their legal fee. Your presentation on the case made me feel that I was a culprit to bring the case to the fair work commission. Your honour was angry and tough towards me while you were soft and kind to the defendant. The while scenario made me feel your honour was not impartial and if the case be heard by your honour I wouldn’t get a fair judgment.
Under these circumstances, I would like your honour to recuse from the case. I also apologize any inconvenience caused by my decision’.

1. On 5 December 2018, The Star set out its submissions as follows:

‘AB2018/599 - Application by Karki, Tanka Jang

We refer to your email to Ms Delinavelli dated 3 December 2018 which attaches the email from the Applicant dated 1 December 2018 seeking for His Honour to recuse himself from hearing this matter, due to alleged bias. The Star responds as follows.

A difficulty is that it is not all that clear what specific matters are relied on by the Applicant as part of an actual or apparent bias assertion. The matters referred to by the Applicant are expressed in particularly general terms. Additionally, it is not clear at which part of the conference these matters are said to have occurred, including when the parties were in joint or private session.

However, the primary concern appears to relate to the Deputy President’s approach to matters raised in support of the Applicant’s bullying claim. Importantly, The Star submits the allegation of bias is not made out merely because the Deputy President expressed views as to the apparent merits of the claim, based even on the Applicant’s own account.

In other words, the ground of disqualification has to involve a reasonable apprehension that the Deputy President will not decide the case impartially; not that the party believes the case might be decided adversely to that party (Re Renaud [1986] HCA 39). Mere assertions of suspicion are not enough.

Conciliators typically and regularly test the strengths and weaknesses of the parties’ respective cases. For the Deputy President to reflect a view that, on the material available, the Applicant’s claim has issues does not suggest the Deputy President’s mind is ‘not open to persuasion’ (Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17).  

The Applicant’s submission then goes on to refer to comments made about what the outcome could be, ie. in favour of Respondent; and that costs could be ordered. Again, this is unexceptional, and typical of the warning which can and should be given when a weak case is advanced at conciliation.        

Finally, the Applicant describes how he felt during the process; which might be the case subjectively speaking, but this does not reflect the correct test. It is an objective test, based on what the fair minded observer might reasonably apprehend.

In the circumstances, The Star submits there is no basis for recusal.’

RELEVANT PRINCIPLES

1. There are no provisions in the Fair Work Act dealing with applications for recusal of Commission members in matters filed under the Act. However, there is a long line of authority in the Courts and Tribunals which has established a guiding set of principles to be applied when a Judge or Judicial Officer is faced with a recusal application. I intend to deal with some of these authorities below.

1. The starting point is the notion that a judge should not too hastily recuse oneself simply because a party demands it. In Antoun v Queen [2006] HCA 2, Kirby J said at [34]:

‘It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL30, this Court has "loudly and clearly" expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose amongst the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases. It was not questioned in this appeal.’

1. Earlier at para [32] Kirby J said:

‘In this, the approach of this Court has now travelled beyond the apparent approbation of judicial silence expressed in R v Watson; Ex parte Armstrong. In the United States of America, such silence has been held, on occasion, to constitute a denial of due process. It deprives the party who will ultimately be affected by judicial conclusions of the "opportunity, before judgment, to be heard to correct and to persuade". Just as the judge should, to a proper extent, listen, so the judge should, to a proper extent, express any tentative views.’ (endnotes removed)

1. In Johnson v Johnson [2000] HCA 48, the plurality of the High Court, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said at para [46]:

‘If a court of appeal were deciding an allegation of prejudgment for itself, according to its own knowledge and standards, a number of considerations might be taken into account in a case such as the present:

1. Appellate judges realise that most adjudicators strive to be independent and impartial and to make adjustments (so far as they can) for factors of which they are aware which might impact on their decision-making. By their training and experience, most such adjudicators are conscious of the high expectations imposed upon them.

2. Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator's undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.

3. Changes that have come about in the administration of justice, including the increase in the number of trials by single judges, have also required, to some extent, an adjustment to the rules of reticence in judicial observations that may still be appropriate where trials, criminal or civil, are conducted before a jury. One of the reasons for such changes has been the desire to increase the efficient management of the trial process. Yet it is in that context that the expressions of preliminary and tentative views may sometimes appear to an outsider to indicate prejudgment. Although some adjudicators may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.’ (my emphasis)

1. The concept of the ‘reasonable bystander’ test was expressed by Kirby J in Johnson v Johnson; (although noting that His Honour characterised the ‘reasonable bystander’ as the ‘fictitious bystander’. At para [53] His Honour said:

‘The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious (my emphasis).

1. Further, Kirby and Crennan JJ relevantly said in Concrete Pty Ltd v Parramatta Design [2006] HCA 55 at para [112]:

‘Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.’ (my emphasis)

1. In Michael Wilson v Nicholls [2011] HCA 48, Callinan J (with whom Kirby, Crennan and Gummow JJ agreed) set out the relevant law in relation to apprehended bias. At para [31]-[33], the High Court said:

‘It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied.

As the plurality in Johnson v Johnson explained, "[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues."

Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias. The respondents did not submit in this Court or in the courts below that the trial judge had in fact prejudged any issue.’

1. Further, at [63], [67] and [69] the High Court added:

‘In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that "[t]he 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". So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.

…

As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.

…

Here, however, it was said that "the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern". That concern was identified as the possibility "in such circumstances that the judge's mind will become familiar with the character of the plaintiff's case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure" (emphasis added). But the existence of a "concern" described as the possibility of placing the evidence led at trial into a "pre-existing mental structure" does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.’ (my emphasis)

1. More recently, the High Court (Kiefel CJ, Bell, Gageler and Nettle JJ said in Isbester v Knox City Council (2015) 89 ALJR 609 stated at [20]:

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

CONSIDERATION

1. I would firstly observe that unfortunately, but perhaps understandably given the applicant’s self-representation, that he has not cited any reference or authority to support his grounds for recusal or his short submission in that regard. Doing the best I can from his submission, I consider that his application is predicated on an allegation of apprehended bias, rather than actual bias, as he points to no actual procedural step I have taken, or conclusion I have come to, on any matter. This must be so, because the conference on 1 November 2018 was preliminary in nature (as I earlier described) and I have taken no steps or made any decisions adverse to either parties’ interests. Indeed, on one view, the reasonable bystander, might consider that in allowing the applicant an opportunity to adjourn the matter for 2 weeks in order for him to seek advice, was a step in the applicant’s favour, particularly given the statutory imperative in the Commission’s stop bullying jurisdiction to deal with such applications promptly (s 789FE(1)).

1. That said, I appreciate that the applicant feels aggrieved by the warning he received on 3 September 2018. I also apprehend that he sees his grievance as relatively straightforward and uncontroversial. In the applicant’s submission he refers to the conference as a hearing. This corroborates my apprehension that he expected some finality that day. He is reminded that filing a stop bullying application is a very serious matter which involves accusations of bullying against another person/s, which may have long term consequences for all those involved, including for the applicant’s health and safety. This is why considerable care must be taken to ensure the parties appreciate and understand the complex and technical processes involved in pressing their respective cases in a full hearing.

1. It must also be said that the applicant’s submission is expressed in general non-specific terms. He identified no particular example of what he describes as my interrogation of him; my objection ‘to every answer’ I provided as if you were the attorney for the defendant’; and that I was ‘angry and tough’ with him. As to the applicant alleging he felt scared during the conference, he certainly did not raise this at the time or give any indication that I was acting inappropriately. In any event, mere general assertions and claims of how someone feels in proceedings, are not a sufficient basis for a recusal application to succeed.

1. Regrettably, in hindsight, the conference on 1 November 2018 was not recorded or transcribed. However, I am satisfied that had it been, and from the submissions of both parties, that a reasonable fair minded observer would not apprehend any lack of impartiality by me in the conference. Accordingly, the application that I recuse myself from further dealing with this matter is refused.

Further programming

1. As The Star has foreshadowed a number of jurisdictional objections to this application proceeding to its merits, I issue the following directions:

1. The respondent (The Star) is directed to file with the Fair Work Commission, and serve on the applicant, an outline of submissions, witness statements and other documentary material the respondent intends to rely on in support of its jurisdictional objection to the application in this matter by no later than 4 January 2018.

2. The applicant (Mr Karki) is directed to file with the Fair Work Commission, and serve on the respondent, an outline of submissions, witness statements and other documentary material the applicant intends to rely on in opposition to the respondent’s jurisdictional objections to the application in this matter by no later than 6 February 2018.

3. The respondent is directed to file with the Fair Work Commission, and serve on the applicant, any material in reply to the applicant’s material by no later than 13 February 2018.

4. The matter will be listed for hearing at 9.30am on 18 February 2019.

DEPUTY PRESIDENT

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