Ms Rachael Roberts v View Launceston Pty Ltd as trustee for the View Launceston Unit Trust T/A View Launceston

[2015] FWC 1858

[2015] FWC 1858

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Ms Rachael Roberts
v
VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Unit Trust T/A View Launceston; Ms Lisa Bird; Mr James Bird
(AB2015/160)

Real estate industry
DEPUTY PRESIDENT WELLS	HOBART, 29 OCTOBER 2015

Application for an FWC order to stop bullying. Issued on transcript 14 October 2015.

[1] This matter is an application pursuant to section 789FC of Part 6-4B of the Fair Work Act 2009 to be known as the Act, by Ms Rachel Roberts, the applicant, for an order to stop bullying at her workplace. The applicant's workplace is View Launceston, and the application named two individuals, Mr James Bird and Mrs Lisa Bird, collective View Launceston, and Mr and Mrs Bird are the respondents in this matter.

[2] A hearing was held on 26, 27 and 28 July 2015, and my decision was published on 23 September 2015.  I concluded that the applicant had been bullied at work by a named individual, and that an order pursuant to section 789FF sub-section (1) should issue.  A notice of listing was issued for a conference in accordance with my decision.  This conference was to allow the parties to discuss the form the order should take.  Subsequent to that listing on 7 October 2015, the respondent's representative, Mr Damien Durkin, made a recusal application.

[3] Mr Durkin, in supporting correspondence, advised he was making the application as I was "directly concerned in a Fair Work action" commenced by a former work colleague of mine, and which was to be heard in the Federal Court of Australia, now to be known as the FCA, later this month.  Mr Durkin's correspondence did not identify the nature of the matter before the FCA, however Mr Durkin did state:

[4] “I note that Mr Harpham has alleged that you bullied him as an employee while you occupied the position of State Secretary at the CEPU.”

[5] It was said by Mr Durkin that I was bound to disclose this information to the parties prior to the hearing of this matter as I may be "conflicted".  However, Mr Durkin did not indicate how such a conflict might arise.  Mr Durkin then indicated in his written submission that his clients had taken the view that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the application before me.  Mr Durkin requested that I disqualify myself from further hearing of this matter and cancelled the conference as listed.

[6] The date and time set aside for the conference was then used to list the hearing of this recusal application today.  Following the submissions of this hearing and having considered the written material provided by Mr Durkin, this is my decision as to whether I should grant the recusal application and not deal further with this matter.

The legal principle

[7] The principle of apprehended bias is formulated in terms of what a fair-minded observer might reasonably apprehend, hence the particular wording used by Mr Durkin in his correspondence of 8 October 2015.  Phrases that have been used to describe this principle include the lay observer, fair-minded observer, fair-minded lay observer, and reasonable or fair-minded observer, which can be found in decisions which will be end-noted to this decision. These phrases are used to make it clear that the test is an objective one, with its focus being the reasoned impression capable of being properly formed, not by the judicial officer, but the notional observer as described.  Kirby J observed in Johnson v Johnson:

“…all that is involved in these formulae is a reminder to the adjudicator that, in deciding whether there is an apprehension of bias, it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence that must be owned and maintained.”¹

[8] Kirby J further observed in that decision, what are the attributes of the notional fair minded observer. He said:

“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 … 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.”² (footnotes omitted)

[9] Further, Lord Hope of Craighead said in the case of Helow v Home Secretary [2008] 1 WLR 2416 at 2418 [2]-[3]:

“The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious. … Her approach must not be confused with that of the person who has brought the complaint. … The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weakness. …

Then there is the attribute that the observer is “informed”. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she had read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”

[10] As to the general principle of bias, the High Court relevantly remarked in Re JRL Ex parte CJL:

“…Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duties as set out 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.”³

[11] In addition, the High Court held in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner):

“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The 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. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

[12] This application for recusal is made by the respondents and is based on an apprehension of bias and not actual bias.⁴

Submissions

[13] In its submissions the respondent stated that whilst they were not in possession of the pleadings from the current FCA matter Mr Durkin had had a discussion with the applicant, Mr Harpham in that matter, and that Mr Harpham had accused me of being a bully, which formed part of his FCA application.  It was further submitted that the respondents rely on comments of the High Court in Vakauta v Kelly [1989] 167 CLR 568. Mr Durkin said that decision held that comments made by a Judge or in a decision to give rise to an apprehension of bias, and therefore my conclusion in the published decision in this matter, where I preferred the evidence of one party over another, could be infected with bias. He said the bias arose as a reasonable person may conclude that I was attempting to place myself in the best light before the FCA proceedings. In my view these submissions are nebulous and unauthentic.

Consideration

[14] The matter before the FCA is what is known as a fast track application, and relates to Part 3-1 of the Act - General Protections. It is not an application under Part 6-4B, workers bullied at work.  I am not a party to the current FCA application, and was called on to provide evidence on events which occurred during some of the time period captured under the FCA application.  The matter is yet to be heard and determined. The respondent's suggestion that I failed in my duty to disclose matters relevant to an apprehension to bias in relation to the FCA application is erroneous.  The application currently before the FCA is not relevant to the matter before me now in this Commission. 

[15] As held in Ebner there is a two-step process in identifying an apprehension of bias.  The first, to establish the matter which is said to possibly give rise to the bias, and second, to establish a logical link between the matter and the inability of the decision maker to decide the case on its merits.  This recusal application fails on both counts.

[16] Mr Durkin's assertion in relation to the matters before the FCA established no conflict and no causal link between my role as a witness in that matter and an ability to make impartial decisions in this anti-bullying application before the Fair Work Commission.  There is no suggestion that any party to the current FCA proceedings are also parties to the matter currently before me.  I am unaware of any connection that will give rise to a possibility of bias.

[17] I have carefully considered the matters that have arisen in this recusal application, together with the well-established legal principles and the relevant codes and guides of conduct.  I have concluded that the arguments advanced by the respondents do not establish a necessity for me to have disclosed my involvement as a witness in the proceedings currently before the FCA.  Further, there is no basis to the assertion that a fair-minded observer, who is apprised of the facts, will constitute an apprehension of bias in this matter.

Conclusion

[18] For the reasons given above, the application that I recuse myself and not further deal with this application, is not granted.  I will now hear argument on the forms the order should take.

DEPUTY PRESIDENT

Appearances:

Ms R Roberts, the applicant

Mr D Durkin, for the Respondent

Hearing details:

2015

October 14

1 Johnson v Johnson (2000) 201 CLR 488 at [52]

2 Ibid at [53]

3 Re JRL Ex parte CJL [1986] 161 CLR 342 at 352

4 Application for recusal, supporting correspondence

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