Re Australian Theatrical and Amusement Employees' Association; Ex parte The Hoyts Corporation Pty Limited

The matter before the High Court of Australia concerned an application for a writ of prohibition against Mr Deputy President Polites of the Australian Industrial Relations Commission. The applicants were The Hoyts Corporation Pty Limited and Delarene Pty Ltd. The Deputy President did not appear and submitted to the jurisdiction of the Court. The respondents, the Australian Theatrical and Amusement Employees' Association, were not represented and indicated they would reserve argument on the orders if the application was successful.

The central legal issue was whether Mr Deputy President Polites should be disqualified from hearing and determining a dispute before the Australian Industrial Relations Commission. This question turned on whether he had previously provided advice to one of the applicants, Hoyts Corporation Pty Ltd, in 1986 concerning a "live and significant issue" in the matter presently before the Full Bench of the Commission. The applicants argued that the advice given in 1986 related only to employer tactics in a dispute that was resolved that year, and did not touch upon the merits of that dispute. They contended that a new and distinct dispute arose in 1988, which was the subject of the current proceedings.

The applicants submitted that the test for disqualification required the Court to be clearly satisfied of a "real likelihood of bias." They argued that the issues to be determined in the current proceedings before the Full Bench could not, on any view, be considered the same as those upon which the Deputy President had advised in 1986. The applicants also highlighted that allowing the disqualification to stand would result in substantial injustice. The Court was referred to authorities, including the JRL case, which articulated the standard required for disqualification.