Ms Jane Massey v Brighter Access Ltd

[2024] FWC 2000

[2024] FWC 2000

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.596 – Representation by lawyers and paid agents

Ms Jane Massey & Ors
v

Brighter Access Ltd & Ors

(U2023/12620)

Various industries

DEPUTY PRESIDENT WRIGHT SYDNEY, 30 JULY 2024

Application under section 596 for representation by lawyers and paid agents – consideration of application for recusal on grounds of perceived apprehended bias – application refused

Background and submissions

1. The Applicants[1] seeking to be represented by Employee Dismissals have requested that I recuse myself from the Full Bench dealing with whether they should be granted permission to be represented on the ground of a reasonable apprehension of bias.

1. The primary basis for the recusal requests is the following paragraph from the Full Bench decision in Samuel Howell v Elite Elevators Corporation Pty Ltd [2023] FWCFB 265 (Howell v Elite Elevators – Discontinuance Decision) and the fact that I was a member of the Full Bench in that case along with the President, Justice Hatcher and Commissioner Crawford:

“We note that the respondent’s attendance at the hearing before the President on 14 December 2023 is likely to have caused it to incur legal costs. That hearing was necessitated by Employee Dismissals’ conduct in filing an unauthorised and invalid notice of discontinuance. Section 376(2)(b) of the FW Act authorises the Commission to make an order for costs against (relevantly) a paid agent acting as representative for a party in a s 365 matter where the agent caused the costs to be incurred because of ‘an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute’. We draw attention to the fact that s 377 requires any such costs application to be filed within 14 days after the Commission finishes dealing with the dispute.”

1. The Applicants made the same following submission with reference to the above paragraph from Howell v Elite Elevators – Discontinuance Decision:

“… the Applicants in these proceedings are unlikely to receive a fair hearing in circumstances where Deputy President Wright and Commissioner Crawford have, on one view, gone as far as to encourage the respondent in Howell to make an application for costs against Employee Dismissals…”

1. The Applicants also referred to Employee Dismissals being denied procedural fairness in relation to the Howell v Elite Elevators – Discontinuance Decision, and associated proceedings conducted solely by the President.

1. The Applicants also referred to my potential involvement in a Paid Agents Working Group established by the President as an additional factor in favour of a finding of apprehended bias.

Legal principles

1. A Full Bench provided the following summary of the principles concerning apprehended bias in Woodside Energy Ltd v The Australian Workers’ Union [2022] FWCFB 192:

“The applicable principles concerning apprehended bias are as stated in the High Court decision in Ebner v Official Trustee in Bankruptcy.[2] In summary, a judge or tribunal member is disqualified if a fair-minded lay observer might reasonably apprehend that they might not bring an impartial mind to the resolution of the question they are required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[3] The application of the apprehension of bias principle requires two steps: first, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.[4] 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]

Some additional propositions are relevant to this appeal. First, disqualification on the ground of apprehended bias must be “firmly established”,[6] and a finding of apprehended bias is not to be reached lightly.[7] Second, an apprehension that an issue may be decided adversely to a party does not constitute an apprehension that the issue might be determined other than impartially.[8] Third, where apprehended bias is asserted on the basis of a previous expression of opinion on an issue by the decision-maker, consideration of whether the “logical connection” required by the second step identified in Ebner exists will require an analysis of the role and importance of that issue in the matter to be determined.[9] Finally, where an apprehension of bias is said to arise by reason of prejudgment, the following principles stated by the Federal Court Full Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission[10] apply:

The test for apprehended bias is the same wherever it arises, although the context in which it falls to be applied will clearly affect how the test is applied. One particular occasion of apprehended bias is where it is said, as Cabcharge had alleged here, that the judge has relevantly prejudged matters in controversy. In this context, disqualifying bias results in a state of mind that is not open to persuasion. That is, in this species of apprehended bias, “[t]he 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”: see Minister for Immigration andMulticultural Affairs v Jia Legeng (2001) 205 CLR 507 … at 531-2 [71]-[72] per Gleeson CJ and Gummow J. That is, in such a case as the present, it must be firmly established that a reasonable observer might conclude that the decision-maker might not bring to his or her task an impartial mind by reason of prejudgment, in the sense that the decision-maker might be so committed to a conclusion as to be incapable of persuasion to a different view: see Re JRL; Ex parte CJL (1986) 161 CLR 342 … at 352 per Mason J.”

Consideration

1. After considering all the submissions and the principles identified above, I have decided not to recuse myself from the Full Bench dealing with these applications.

1. The Howell v Elite Elevators – Discontinuance Decision was directed at a very specific legal issue, namely, whether a valid notice of discontinuance had been filed in relation to Mr Howell’s application. The outcome was based on an assessment of all the relevant facts and consideration of whether a notice of discontinuance filed by Employee Dismissals purportedly on Mr Howell’s behalf constituted a valid notice of discontinuance under the then Fair Work Commission Rules 2013. The paragraph relied upon by the applicants where reference is made to the ability to apply for costs was informative only and was not directed at resolving any disputed issue before the Full Bench. No subsequent costs application was made. In any case, the issue of costs is not a matter before the Full Bench in the present applications.

1. The issue the Full Bench has been directed to determine for these applications is whether permission for representation should be granted to each of the applicants under s.596 of the FW Act. I do consider my involvement in a previous Full Bench decision concerning the validity of a notice of discontinuance has a sufficient “logical connection” to the issues the Full Bench needs to determine in this case. My involvement in a decision concerning different provisions of the FW Act and different parties does not demonstrate that I may not approach these applications in an impartial and unprejudiced way.

1. The Applicants’ primary assertion of apprehended bias appears to be that a fair hearing is “unlikely” because I was a member of a Full Bench which, on one view, went as far as to encourage the respondent in the Howell v Elite Elevators – Discontinuance Decision to make an application for costs against Employee Dismissals. It has not been articulated in the submissions how a comment in a prior matter outlining costs provisions in the Act reveals any fixed view on Employee Dismissals itself or any matter of fact or law that is capable of carrying over to consideration of the legal issues in this case.

1. Justice Mason of the High Court stated the following in Re JRL; Ex parte CJL:[11]   

“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 that 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… 

…

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.”[12]

1. I consider it would be contrary to the interests of justice as described above by Mason J for us to decline to perform my statutory functions in this case merely because I was a member of the Full Bench in the Howell v Elite Elevators – Discontinuance Decision.

1. I do not consider the fact that I was a member of the Full Bench in the Howell v Elite Elevators – Discontinuance Decision is sufficient to establish a reasonable apprehension of bias.

1. I do not consider it is appropriate in determining the recusal request to assess or determine whether procedural fairness was afforded to Employee Dismissals in separate Commission proceedings. A denial of procedural fairness in a different case can be contested by an aggrieved party. I have not been provided with any material that suggests a denial of procedural fairness has been established by Employee Dismissals in relation to any previous case.

1. I am not a member of the Paid Agents Working Group and do not need to consider the Applicants’ submissions concerning this issue.

1. For the reasons identified above, I reject the requests for me to recuse myself from these matters and have determined that I will continue as a member of the Full Bench.

DEPUTY PRESIDENT

Hearing details:

Matter determined on the papers.

Final written submissions:

14 May 2024, for the Applicant.

SCHEDULE A

U2023/12620	Ms Jane Massey v Brighter Access Ltd
U2023/12590	Brent Cameron v BHP
C2024/756	Mr Antony Zebisch v MTM Critical Metals Limited
U2024/633	Danielle Windsor v Helping Hand Aged Care Inc
U2024/451	Lee Follett v BHP WAIO Pty Ltd
C2023/8063	Ms Karen Westergreen v Southern Cross Care Tasmania Inc
C2024/819	Mr Troy Leyshon v Mexican Express Pty Ltd
C2024/822	Mr Mathew Vendittelli v Crushing Services International Pty Ltd
C2024/1058	Pucho Paye v Plumb Now Pty Ltd
C2024/825	Ms Nancy Lopez v Safe Steps Family Violence Response Centre Inc
C2024/832	Gaelle Danre v Drummond Street Services Incorporated
C2024/917	Ms Sarah Wallace v The Trustee For Kemp Family Trust
C2024/945	Ms Tasneem Sayed v Goldstar Assets Pty Ltd
U2024/882	Ms Leah Haak v Optimum Performance Training Pty Ltd
U2024/1434	Jemaya Schubert v Crown Worldwide Australia Pty Ltd
U2024/1682	Hanna Wittner v Glad Security Pty Ltd
U2024/1679	Mark Giddings v Alcoa Of Australia Limited
U2024/1616	Ms Rachael Tucker v B & T BEANS PTY LTD
U2024/1452	Tanisha Vargas v The Trustee For Brightlite Unit Trust
U2024/1425	Mr Kaliam Simpson v South Coast Mariculture Pty Ltd
U2024/1373	Mr Deng Mabuoc v Marathon Food Industries Proprietary Limited
U2024/1298	Jenna Robertson v Australian Leisure And Hospitality Group Pty Limited
U2024/1146	Mr Darren Ferguson v Reid Stockfeeds Pty Ltd
U2024/1673	Mr Billy Angelis v Arthur, Shaun Nicholas
U2024/1986	Ms Jo-Anna Mealamu v Connectability Care Services Pty Ltd
U2024/453	Mr Darrell Kay v Fulton Hogan Construction Pty Ltd
C2024/657	Mr Jeremy Johnston v Odell Resources Pty Ltd
U2024/1154	Mr Faiga Su’A v Darley Aluminium Trading Pty Ltd
C2024/1361	Mr Anthony Harpur v Rebian Investments Pty Ltd
C2024/1352	Mr Michael Brook v Australian Postal Corporation
U2024/2339	Mr Shawn Stowe v Karuah Local Aboriginal Land Council
U2024/2692	Ms Sharon Phillis v Ultimate Cleaning & Gardening Solutions Pty Ltd
U2024/2691	Mr Ric Belic v DNA Construction Pty Ltd
C2024/1157	Mr David Mcintosh v Mulpha Hotel Pty Ltd TA Hayman Island
C2024/416	Mr Giorgio Gava v Laguna Beach Pty Ltd
C2024/1622	Mr Dylan Carroll v Indco Pty Ltd
U2024/3430	Ms Rachael Kumar v Healthx Group Pty Ltd
U2024/3241	Mr Liam Christinus v Mercy Education Limited
U2024/3240	Mr Mark Dowley v Sandalford Wines Pty Ltd
U2024/2533	Mr Robert Dalrymple v Etex Holding Australia Ii Pty Ltd
U2024/3028	Mr Peter Williams v Meridan State College P&C Association
U2024/2921	Mr Matthew Cahill v The Athenaeum Club
U2024/2922	Mr Justin Wei v Coles Supermarkets Australia Pty Ltd
U2024/1438	Ms Tracey Bradshaw v Skyline Landscape Management Pty Ltd
C2024/1709	Mr Stuart Peters v The Trustee for the Motorcycle Holdings Group Unit Trust
U2024/3118	Mr David Thomson v Young Guns Container Crew (Qld) Pty Ltd

[1] Listed at Schedule A to this Decision.

[2] [2000] HCA 63, 205 CLR 337

[3] Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ

[4] Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ

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

[6] Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J, 360 per Wilson J

[7] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, 268 CLR 76 at [56] per Nettle and Gordon JJ

[8] Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J

[9] British American Tobacco Australia Ltd v Peter Gordon and Anor [2007] NSWSC 109 at [97]

[10] [2010] FCAFC 111 at [25]

[11] Re JRL; Ex parte CJL [1986] HCA 39, 161 CLR 342 at 352 per Mason J

[12] Ibid.

Printed by authority of the Commonwealth Government Printer

<PR777627>