Re O'Donnell & Ors; Ex parte The Hellenic Club of Canberra Limited

The applicant, The Hellenic Club of Canberra Limited, sought a writ of prohibition against Bernard O'Donnell and John Barry, and the Federated Liquor and Allied Industries Employees Union of Australia. The dispute concerned proceedings before a Board of Reference established under the Liquor and Allied Industries Hotels, Hostels, Clubs and Boarding Establishments Etc. (A.C.T.) Consolidated Award. The Board was convened to hear a dispute regarding the dismissal of an employee, which effectively functioned as a reinstatement application. The applicant contended that the composition and conduct of the Board, particularly the involvement of Mr Barry, violated principles of natural justice.

The central legal issue before the High Court was whether the appearance of natural justice was prejudiced by Mr Barry's dual role as a member of the Board of Reference and as an advocate for the employee and the Union. The applicant argued that Mr Barry, who sat on the Board as the employee's representative, also acted as an advocate for the employee and the Union, addressing the Board on matters of fact and advising it from the bench. This conduct, the applicant submitted, created an unacceptable appearance of bias and a failure to accord natural justice, citing authorities such as *R v Watson; ex parte Armstrong*.

The Court was required to consider whether Mr Barry's participation as both a decision-maker and an advocate for one of the parties before the Board of Reference constituted a breach of the rules of natural justice. The applicant's argument focused on the appearance of bias, asserting that a reasonable observer would perceive that justice could not be seen to be done when a member of the tribunal also acted as a prosecutor or advisor to the tribunal on matters within his knowledge. The Court's reasoning would likely involve an examination of the principles of procedural fairness and the prohibition against bias in administrative decision-making, particularly in the context of industrial arbitration and conciliation.