Smith v Daleco Pty Ltd
[1997] IRCA 133
•22 April 1997
DECISION NO:133/97
CATCHWORDS
INDUSTRIAL LAW - Decision of Judicial Registrar not to disqualify herself for reasons of apprehended bias - application to disqualify based on fact that the Judicial Registrar read material in the Court file that should not have been there and on the behaviour of Judicial Registrar - whether refusal to disqualify is amenable to review by judge - whether Judicial Registrar was biased - whether matter was part heard before Judicial Registrar
Workplace Relations Act 1996
Wyndham Lodge Nursing Home Inc v Reader(No.2) (1996) 65 IR 255
Shackley v Australian Croatian Club (1996) 141 ALR 736
Matar v Neutral Bay Foodhall (unreported, Industrial Relations Court of Australia, 26 July 1996)
Hitchcock v Warner Bros Movie World (1995) 130 ALR 337
Barton v Walker [1979] 2 NSWLR 740
Rajski v Wood (1989) 18 NSWLR 512
Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48
Mann v Northern Territory News (1988) 53 NTR 15
Livesey v New South Wales Bar Association (1983)151 CLR 288
Winningham v The Queen (1995) 69 ALJR 775
Doyle v Western Suburbs District Rugby League Football Club (1994) 57 IR 97
Re Judge Leckie; Ex parte Felman (1978) 52 ALJR 155
Victoria v The Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25
Vakauta v Kelly (1989) 167 CLR 568
Association of Professional Engineers Scientists and Managers of Australia on behalf of Cross v Deniliquin Council (1995) 129 ALR 418
Amoe v Director of Public Prosecutions (Nauru) (1991) 66 ALJR 29
Shaw v Shaw (1981) 55 ALJR 12
Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684
Wentworth v Rogers (No. 3) (1986) 6 NSWLR 642
The Queen v Lewis (1988) 165 CLR 12
No. NI 1945 of 1996
JENNIFER SMITH v DALECO PTY LTD
MOORE J
SYDNEY
22 APRIL 1997
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. NI 1945 of 1996
)
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: JENNIFER SMITH
Applicant
AND: DALECO PTY LTD
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 22 April 1997
ORDER OF THE COURT
THE COURT ORDERS THAT:
The application for review is dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. NI 1945 of 1996
)
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: JENNIFER SMITH
Applicant
AND: DALECO PTY LTD
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 22 April 1997
REASONS FOR JUDGMENT
Introduction
These proceedings concern a determination of a Judicial Registrar not to disqualify herself from hearing a matter on grounds of apprehended bias and related matters. On 17 May 1996 Ms Jennifer Smith filed an application under section 170EA (“the principal application”) of what is now the Workplace Relations Act 1996 (“the Act”). She alleged that her employment with Daleco Pty Ltd (“Daleco”) had been terminated in contravention of provisions of the Act. In the application she identified the period of her employment with Daleco by indicating it started on 2 November 1995 and the last day she worked was 14 May 1996.
The application was filed in the Registry of the Australian Industrial Relations Commission (“the Commission”). The Commission attempted to settle the matter by conciliation but it was unsuccessful. The application was referred to the Industrial Relations Court of Australia. In due course a trial date was set for 3 and 4 February 1997. The parties were informed of those dates by letter from the Registry of the Court dated 4 September 1996.
The course of the proceedings before the Judicial Registrar
On 3 February 1997 the matter came before Judicial Registrar Linkenbagh. After appearances had been taken, the Judicial Registrar was informed that there had been some discussions between the parties. Counsel for Daleco, Mr Reitano, indicated that it might be appropriate for there to be a further ten minutes of further discussion. It is plain that counsel for Ms Smith, Mr de Meyrick, thought this was desirable as well. Accordingly, the Judicial Registrar adjourned the proceedings for a brief period and said the following before adjourning:
“Well I have not had an opportunity to read the file so I do not know anything about it. I notice there are a few papers here, perhaps if you two go outside and talk and I go upstairs and read the file we might all be better informed in ten minutes time.“
The proceedings subsequently resumed. Counsel for Ms Smith commenced to open her case though he had not concluded the first sentence of the opening before the Judicial Registrar interrupted to indicate there were some preliminary matters she needed to know about. They concerned matters such as who were the solicitors instructing each of the counsel.
The Judicial Registrar then volunteered that:
“I have had a look at the file and this out of time question appears to me to be a problem.”
The Judicial Registrar then asked what the applicant said was the last date she worked and an answer was given by counsel of 14 March 1996. Her counsel indicated that there had been no written notice. The Judicial Registrar responded and alluded to letters whose meaning she said might not be entirely clear. It became apparent later in the hearing that this was a reference to documents that were in the Court file and which had been tendered in proceedings before the Commission. The Judicial Registrar then adverted to the prospect that written notice had been given which would have concluded on 21 March 1996.
The Judicial Registrar then said:
“(The) papers suggest that the applicant was charged with some criminal offence on 15 March and did not come to work on the 16th and did not come to work thereafter I presume, that does not exactly say that but I gather that is the case.”
Counsel for Ms Smith indicated that the evidence would disclose that Ms Smith presented herself on 28 March after a period of sick leave: “having suffered stress in respect of having been charged and interrogated ...”. Counsel for Ms Smith then went on to say: “Now with my respectful submission there has never been any written notice”.
The Judicial Registrar then raised another matter. She said:
“... there is a suggestion in the papers that the applicant had another job lined up to go to.”
The Judicial Registrar then asked about the other employment and counsel for Daleco indicated firstly that she did take up work with another employer though she disputed that she had had another employer lined up. After a number of related factual issues were canvassed, the Judicial Registrar observed that Ms Smith would not have received an income in relation to a seven week period in March to May. Counsel for Ms Smith agreed that the period identified was probably correct.
The Judicial Registrar then raised another matter. She said: “Is there consensus as to what happened to the police proceedings from a practical point of view again?” Her counsel indicated she had been found not guilty. The Judicial Registrar then went on to indicate that while two days of Court time had been set aside: “from a practical point of view at the most there is $2400, $2500 in it. Is not that how it goes?” Counsel for Ms Smith indicated that any compensation would not be limited to loss of pay. He said:
“There has been a considerable trauma for this particular applicant inasmuch as she was wrongly charged for an offence that was never put to her. She was never ever confronted with this alleged missing money.”
The Judicial Registrar then indicated that the respondent was not alleging that the missing money was the cause of termination but rather that termination arose by mutual agreement. There then followed an exchange between the Judicial Registrar and both counsel as to the relevance of Ms Smith having been charged.
It is necessary to set out some of what then appears in the transcript:
“J Registrar: The way I am thinking is your case is very strongly on these documents, these statutory declarations and so on, is that there was agreement to go their separate ways. If I find that there was no such agreement then you have no other case to put; is not that right?
Mr Reitano: It follows no valid reason for termination.
J Registrar: It follows there was no valid reason. So I am not interested in the police proceedings.
Mr de Meyrick: I agree with that. That is their case; they are saying that that was not the reason for the dismissal. What our case will be is that that was the reason and in fact ---
J Registrar: You do not have to prove that there was a reason. I have to be satisfied that there was no valid reason, that there was no reason. They are saying the reason was the mutual termination and they appear to be conceding that if they do not get up on that, to put it very colloquially, then they have not got a case and they all fall down and you win.
Mr de Meyrick: We accept that completely, but the circumstances were such that it then led to this particular applicant being charged ---
J Registrar: The police can investigate whatever information they receive from anybody. The respondent has no control over what the police do.
Mr de Meyrick: The respondent certainly does inasmuch as the information that they give to the police that leads to somebody being charged.
J Registrar: But the respondent did not do the charging. And that matter has been the subject of an exercise of discretion by the police to lay a charge and it has been the subject of a hearing in another court. So there, that is the wheels of justice.
Mr de Meyrick: I accept all that. What we are saying is that the circumstances that led to that dismissal, and we say it was a dismissal, and that it just suits the employer to construe the occasion that was dismissed before the police charge was laid and before the court case was held, that the respondent has taken the opportunity to get rid of the employee in those circumstances.
J Registrar: What is your case going to be as to what was said on the day?
Mr de Meyrick: The applicant will tell you that without knowing that she was being suspected and likely to be charged with this alleged embezzlement that she went to see the employer, spoke to Mrs Lopez and she spoke to her about the reduced hours which she had been reduced for about the last week of the period that she worked.
She went to speak to her on 14 March and she asked her about the reduced hours and Mrs Lopez took that opportunity to construe that as being a parting of the ways and simply said, well, you do not want to work here any more and you are resigning, are you? And she said, no, I am not resigning, I just want to talk about these reduced hours that you have put me on. And then has construed it as being a dismissal and the conversation was inconclusive on the Thursday night of the 14th. On the 15th, the next morning, the police knock on her door and she is taken to the Eastwood police station and charged.
They are the circumstances which led to the parting of the ways and it will be out place that so far as this conversation that appears in this letter in inverted commas, that that is just a convenient construction of the conversation on the previous Thursday night.”
The reference to a case being very “strongly” was a reference to the case of Daleco. The reference to the statutory declarations was a further reference to the documents in the Court file that the Judicial Registrar had read during the adjournment. Again, they formed part of a bundle of documents that had been tendered in the Commission.
After the exchanges appearing in the preceding quotation, the Judicial Registrar enquired of counsel for Daleco whether it proposed to call the people “whose statements are in the papers”. An indication was given that they would be. After a discussion about the identity of the makers of the statements, both counsel began to realise that the Judicial Registrar had access to material other than material filed in the Court itself. That having been made apparent the Judicial Registrar said:
“Maybe they should not be in this file, but look, the practices are beyond belief, really, sometimes and the fact is now that I have read them and I will just treat them as part of - whatever is in the court file I treat as being entitled to read. What I make of them, of course, is for later in the day but, anyway - all right. Did you have anything else you wanted to raise at this stage?”
After counsel for Daleco indicates not, the Judicial Registrar went on to say:
“Well, Mr de Meyrick, the applicant is facing the reality of the statements that are there; the matter will run if it needs to run but I think the parties have to be very practical about what they are going to achieve.” (emphasis added)
This was apparently a reference to the possibility of the matter settling and was understood as such by counsel for Ms Smith. He indicated that the issue of settlement had been explored and could continue to be explored.
The Judicial Registrar returned to the question of whether the application had been out of time. She indicated that if she were to find there was written notice she would not be in a position to deal with the issue of whether time was to be extended.
Counsel for Ms Smith then repeated two features of the case he proposed to argue. The first was that it would be contended that there was no written notice. The second was that the compensation that would be sought would not be limited to lost income but would also include compensation for the way she had been treated. The Judicial Registrar then proffered the view that anyone who believed a crime had been committed could report it to the police. It was then a matter for the police as to how the matter should proceed and whether proceedings should be initiated. There were then a series of exchanges between the Judicial Registrar and counsel for Ms Smith about the relevance of what was described as the “police proceedings” and the scope of the Court’s function in considering the application under 170EA. The exchange concluded with the following:
“Mr de Meyrick: True, true, but the employer also has a right to - in civil proceedings, and particularly proceedings, and there has been a number of cases from Byrne & Frew onwards that have indicated that the employer has an obligation to say to an employee that before I dismiss you these are the reasons, and we say that the employer kept these reasons to herself and took the opportunity to simply dismiss the employee on that basis and then has the temerity to write a letter and say, well, we parted companies and we decided to have a mutual resignation.
J Registrar: That may well be how the evidence turns out, but I think at this stage the parties have to be very practical. People who were there at this conversation know what happened, exactly what was said on both sides, both the parties must be aware that there are costs provisions in this act and you are both, I am sure, aware that I exercise my power to orders costs in appropriate circumstances.
Now, one of the parties - their stories are very different, one of the parties is obviously not telling the truth about what happened on this day and if I find that one of the parties is not telling the truth to the court about what really happened at this termination then there will be an order for costs that flows under either the 347 or 170EHR. I can get both parties; we used not be able to but we can get both parties now at costs. Now, they are very strong words, but in circumstances where there are two versions of events, then, clearly, one party is not telling the truth and the court will, you know, be very quick to perceive that and the consequences will flow.
So, I would urge you both to use the next 10 or 15 minutes; if it is not resolved by 11.30 it will proceed and it will be a very interesting hearing. All right, thank you.” (emphasis added)
There was then a short adjournment after which an application was made orally to the Judicial Registrar to disqualify herself. The following extract from the transcript contains the incomplete oral submissions made by counsel for Ms Smith and the decision of the Judicial Registrar given before the submissions had been completed:
“Mr de Meyrick: Judicial Registrar, thank you we have had the opportunity to read the documents from the file and with very great respect I feel obliged to make an application that you consider disqualifying yourself from the matter for the simple reason that we have never seen these documents before. They contain a great deal of prejudicial material and it was just unfortunate that somehow they got onto the file. We are not sure how and my learned friend tells me he is not sure how they got there also.
We do feel that they are very prejudicial and that as a result of you having had the opportunity to read them prior to the matter being commenced that it is probably now unable to be cured. We would certainly, if the matter runs, be contesting most of what is in these documents but unfortunately ---
J Registrar: Yes, I don’t know that it is a matter of - disqualify myself is a pretty strong word, Mr de Meyrick, look I can put them to one side and ignore them. It often happens in these matters that an applicant - this is the respondent in this case - but it often happens that an application attaches, you know, what might be seen as grossly misleading and prejudicial material to his application, it all gets onto the file we take the very practical view that, well, yes it is on the file, but the matter is determined on the evidence that is before the court once the hearing actually starts.
Now, I am not going to disqualify myself for that reason and I think the hearing should commence. Now, I will remove the documents from the file, Mr Reitano. Mr Reitano may wish to put those stat decs in as he finds evidence in chief and he can try and do that later on and we will argue about it if he doesn’t. But certainly the matter will proceed on oral evidence.” (emphasis added)
Counsel for Ms Smith then indicated he wished to test the decision of the Judicial Registrar refusing to disqualifying herself.
It is unnecessary to detail what occurred subsequently other than to note two matters. The first is that, beyond indicating that she did not propose to disqualify herself, the Judicial Registrar made no order dismissing the oral application to disqualify herself nor orders otherwise confirming she would hear the matter. She did, however, ultimately stand the matter over for directions on 24 April 1997 and indicated to the parties, and recorded on the Court file, that she regarded herself as part-heard. I was informed by counsel for Ms Smith in his written submissions that the Judicial Registrar indicated she was willing to refer the matter to another Judicial Registrar but felt constrained by the view she held that she was part-heard.
The application for review
The second is that on 3 February 1997 a notice of motion was filed on Ms Smith’s behalf seeking an order that the Judicial Registrar: “be disqualified from further hearing these proceedings.” An amended notice of motion was filed on 11 February 1997 seeking the following orders.
“1.That the proceedings in this matter before Linkenbagh JR are not (as yet) part heard and may be transferred to another Judicial Registrar or Judge of the Court for hearing.
2.That the Court’s file, having been found to contain material likely to be prejudicial to an impartial hearing of the matter, that material (comprising 14 pages of submissions, assertions, statutory declarations and other material, including comment in relation to the first conciliation between the parties), be removed from the file and the matter returned to the list for re-allocation.
3That in the alternative, there being reasonable apprehension of bias arising from the existence on the Court’s file of the material referred to in Order 2 proposed, and from its admission thereof into evidence without the right of objection by the party likely to be prejudiced thereby and from the Judicial Registrar’s reading thereof and her re-action thereto, Judicial Registrar Linkenbagh be disqualified from further hearing the matter and that the matter be returned to the list for re-allocation with the said material removed from the Court’s file.
4.Such other orders as the Court seems fit.”
The amended notice of motion was heard by me on 11 March 1997. The allegation of apprehended bias is now put on the basis that the Judicial Registrar had read material in the file that should not have been there, and also on the basis that she had conducted herself inappropriately prior to refusing to disqualify herself. While it is plainly desirable that a party raise directly with a Judge or Judicial Registrar all grounds upon which he or she is being asked to refrain from hearing a matter, I do not consider, as contended by counsel for Daleco, that further grounds cannot be relied upon by Ms Smith if this is a competent review: see Wyndham Lodge Nursing Home Inc v Reader (No.2) (1996) 65 IR 255 at 256.
Whether a power has been exercised that is amenable to review
It is now necessary to consider the nature of the jurisdiction Ms Smith seeks the Court to exercise. First, I am being asked to review the exercise by the Judicial Registrar of a delegated power. Such a review arises under s377(1) and (2) which provide:
“(1) A party to proceedings may apply to the Court to review a Judicial Registrar’s exercise in the proceedings of a power delegated under section 376. An application must be made within the period prescribed by the Rules of the Court or such further period as is allowed in accordance with the Rules.
(2) On an application under subsection (1) or of its own motion, the Court may review a Judicial Registrar’s exercise of a power so delegated. The Court may make whatever order it considers appropriate in relation to the matter in relation to which the power was exercised.“
Second, I am being asked, it would appear, to make a declaratory order concerning the status of the proceedings before the Judicial Registrar and related orders that would have the effect of the matter being heard by another Judicial Registrar.
Daleco takes issue with whether there has been a delegated power exercised by the Judicial Registrar which is amenable to review under s 377.
What acts of a Judicial Registrar are amenable to review is a vexed question. It has most recently been considered by a Full Court in Shackley v Australian Croatian Club (1996) 141 ALR 736. The issue was canvassed at some length by Wilcox CJ, whose reasons von Doussa J agreed with, though his Honour’s observations were plainly obiter dicta. Wilcox CJ observed at 741 that: “some confusion seems to have developed about the scope of the review power.” If, by that observation, his Honour was acknowledging that there was a divergence of views among Judges of the Court and views were held that did not conform with his own, then he was well able to make it. There plainly is a divergence of views.
Wilcox CJ’s approach to the question was encapsulated in passages appearing in Shackley at 742 and 743. His Honour first set out at 742 observations made in Matar v Neutral Bay Foodhall (unreported, Industrial Relations Court of Australia, 26 July 1996) which included the following:
“As the rules delegate to the judicial registrar “all the powers of the Court” in respect of unlawful termination claims, they plainly delegate the court’s powers to make interlocutory orders in respect of such claims. As s 377(1) authorises a party to apply for review of the “Judicial Registrar’s exercise in the proceedings of a (delegated) power”, it obviously extends to review of a judicial registrar’s exercise of power in connection with an interlocutory application. But the question remains: what is the relevant exercise of power?
It seems to me that there is a clear distinction between a ruling made in the course of a hearing, on the way to determination of a proceeding, and a ruling determining an interlocutory application commenced by notice of motion. In each case the ruling constitutes an exercise of delegated power. In each case it is interlocutory in nature, in the sense that it does not finally dispose of the principal proceeding. However, in the first case, the judicial registrar makes the ruling only in the course of performing a larger task, the hearing and determination of the proceeding itself. The performance of that task is the exercise of power that is subject to review; so no right of review is available until the task is complete. In the second case, the judicial registrar has only a limited task: to determine what orders to make in answer to a notice of motion. The trial of the principal proceeding might be taken by someone other than the judicial registrar who determined the notice of motion. If a judicial registrar’s task is limited to determining the notice of motion, that judicial registrar’s exercise of power is complete when he or she makes orders in respect of it. A right of review is then available.”
His Honour then said in Shackley at 743:
“In summary, I accept that a decision made in the course of a final hearing - eg, a decision about an adjournment or a ruling on evidence - does not enliven the right of review. The reason is that such a decision does not amount to a completed exercise of the relevant power, namely the power finally to determine (subject to possible review) the claim the subject of the delegation: see s 376(1). But it is another thing to say that a final decision on a discrete application - eg, the grant or refusal of an application for an extension of time to institute a principal proceeding, or for summary judgment, or to strike out the proceeding as against a particular respondent - does not amount to a reviewable exercise of power. Such an application may be interlocutory, in the sense that it does not finally resolve the controversy between the parties, but determination of the application completes the judicial registrar’s exercise of the relevant delegated power, that is the power to decide the application. Determination of that application may be the particular judicial registrar’s only association with the case. Unless the determination is reviewable at that stage, it could not be challenged at all. It would not suffice to wait until some other judicial registrar has finally disposed of the case; there may be no complaint about the way the other judicial registrar exercised power.”
In Shackley, North J indicated at 750 that he adhered to the view he had expressed in Spencer v Baseball Queensland Inc (unreported, Industrial Relations Court Australia, 15 July 1996) that: “s 377 does not give a party a right to review a decision of a judicial registrar in an interlocutory matter.”
The starting point in determining the scope of the power conferred on a Judge by s 377 is the language of the section. Section 377(2) states a judge “may review a Judicial Registrar’s exercise of a power” delegated under s 376. Section 376(1) authorises the delegation of all or any of the Court’s powers in relation to proceedings in the Court of the type referred to in s 376(1)(a),(b) or (c). By O74 of the Industrial Relations Court Rules (“the Rules”) all powers of the Court are delegated in relation to proceedings of specified types which reflect paragraphs (a), (b) and (c) of s 376(1). Plainly the powers delegated include not only the power to determine an application, whether it is an interlocutory application or the substantive application invoking the Court’s jurisdiction, but all powers that can be exercised in determining any such application. The powers are those conferred by the Act, the Rules or powers which are necessary or incidental to the exercise of the statutory powers conferred on the Court: see Parsons v Martin (1984) 5 FCR 235 at 241; Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 630; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 561.
The language of ss 376 and 377 does not suggest any limit exists on the character of the power which, when exercised, might be the subject of review. It is consistent with the language of ss 376 and 377 that the exercise of a power determining or disposing of an application, whether an interlocutory application or the substantive application, might be reviewed. However it is also consistent with the language of ss 376 and 377 that any other delegated power might, when exercised by a Judicial Registrar, be amenable to review.
However, as I discussed in Hitchcock v Warner Bros Movie World (1995) 130 ALR 337 at 342:
“Section 378 provides some indication that the reference to “a power delegated under section 376” in s 377 should not be read as widely as the terms of s 377 might at first suggest. It is to be remembered that ss 376-378 are part of a scheme dealing with the delegation of powers by the court and the control of the exercise of that delegated power by the court. Section 378 also refers to “exercise of a power delegated under section 376”. However, it speaks of “an application for” the exercise of such a power and the “hear[ing of] the application”. Many powers that might be delegated under s 376 would not be exercised upon application which would require a hearing and I have already referred to some in the illustrations I gave earlier. This would suggest that the powers to which at least s 378 relates are not all powers delegated under s 376 and that s 378 relates only to all or some of the powers that would be exercised upon application. Sections 377 and 378 are intended to provide different, though complementary, means by which a judge may exercise the relevant delegated power: the former after its exercise and the latter before its exercise. The scope of s 377 is intended to be the same as s 378. Both relate to powers exercised upon application.”
In my opinion and for these reasons, the type of power which, when exercised, may be reviewed is the power to determine an application. Not only does the language of s 378 point to this construction of s 377, but it is a construction consistent with the purpose of the scheme which I discuss in Hitchcock at 343 but do not repeat. Moreover, if s 377 is construed this way then more probably than not all delegated power exercised so as to deal with “the more important aspects of contested matters”, as discussed by Mason CJ and Deane J in Harris v Caladine (1991) 172 CLR 84 at 94, would be amenable to review. By a slightly different route, I have come to a similar conclusion as Wilcox CJ in Shackley.
Accordingly it is necessary to ascertain whether the Judicial Registrar has exercised a power to determine an application. Generally, the determination by a judge of an application that she or he disqualify herself or himself is, without more, not appealable: see Barton v Walker [1979] 2 NSWLR 740. It was necessary for the aggrieved litigant to await final judgment and then, if minded, appeal from that judgment. The obvious inconvenience in following that course was adverted to by Kirby P in Rajski v Wood (1989) 18 NSWLR 512. In Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 Gummow and Heerey JJ, in a joint judgment with which Davies J agreed, reviewed a number of comparatively recent authorities and concluded that an order made by a judge affecting rights of parties, consequential upon a judge deciding to disqualify himself, could properly be the subject of an appeal. Raised for consideration in the appeal might be the correctness of the decision to disqualify. In reaching that conclusion, Gummow and Heerey JJ endorsed the views of Kirby P in Rajski concerning inconvenience which related also to circumstances where a judge had refused to disqualify himself or herself. However in Barton v Walker a reason given for the unavailability of an appeal was that a decision not to disqualify did not involve the making a judgment, decree or order which is a common statutory formulation of what is appealable. That is not to say that more fundamental reasons have not been advanced for treating a decision whether to disqualify as not amenable to appeal at least if it is a decision not to sit: see Mann v Northern Territory News (1988) 53 NTR 15.
It is apparent, in my opinion, from the reasons for judgment of Gummow and Heerey JJ that there has developed a less tentative approach to scrutinising at the earliest opportunity, by way of appeal, a challenged decision of a judge concerning an allegation of apprehended bias. It puts in train the process described by the High Court in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294:
“Once it is accepted that a judge should not automatically stand aside whenever he is requested so to do, it is inevitable that appellate courts, removed from the pressure of a possible need for immediate decision and enjoying the advantages both of hindsight and, conceivably, further material and information, will on occasion conclude that a decision of a judge at first instance that he should sit was mistaken and has resulted in a situation where one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or pre-judgment. Such a conclusion does not involve any personal criticism of the judge at first instance or any assessment of his qualities or of his ability to have dealt with the case before him fairly and without pre-judgment or bias. It is simply an instance of the ordinary working of the appellate process in which the views of the judges who constitute the appellate court prevail over the views of the judge or judges who constituted the court from which the appeal is brought.”
In the present case, the power to review does not depend upon the Judicial Registrar having made an order, judgment or decree. As noted earlier, no orders were made other than, perhaps, an order standing the matter over for directions on 24 April 1997. It is only necessary, to adopt the language of s 378 imported into s 377 in the way discussed earlier, that she has “determine(d) the application”. In my opinion she has. An oral application was made to the Judicial Registrar that she disqualify herself. She expressed the concluded view that she was not going to disqualify herself. In so doing, in my opinion, she determined the application. Accordingly, she has exercised, in my opinion, a delegated power that is amendable to review.
While I share Wilcox CJ’s view that an exercise of power resolving an interlocutory issue is amenable to review, I would not embrace his reasons for reaching that conclusion. The characterisation by Wilcox CJ of the power as a “relevant power”, coupled with the notion of the completion of its exercise, is, in my opinion, an arbitrary one though plainly it is intended to provide some point of rational distinction between powers that, when exercised, should not be amenable to review because it would be clearly impracticable to do so (such as a ruling on evidence) and others that should. While this arbitrary distinction has the benefit of simplicity and practicability, what I perceive to be its shortcomings are illustrated by this case.
The rejection of the application to the Judicial Registrar to disqualify herself was not the “completion of the exercise of a relevant power” in the sense that having disposed of that matter the principal application might then be heard and determined by a Judicial Registrar other than Judicial Registrar Linkenbagh. The rejection by her of the application that she disqualify herself was neither the determination of a discrete interlocutory application nor the determination of the principal application. As I discuss later, the Judicial Registrar did not, as a matter of fact, become part-heard after refusing to disqualify herself. She may well have, however, commenced to hear the principal application after so refusing or the application to disqualify may have been made during the hearing of the principal application itself. In those circumstances, in my opinion, her rejection of the application to disqualify herself would still have been amenable to review.
It concerns a matter fundamental to the administration of justice, impartial adjudication and the appearance of impartial adjudication, and is, in my opinion, a matter over which a judge should be able, and was intended, to exercise an immediate supervisory role. In the present case, s 377 confers power to exercise that supervisory role at this point in the proceedings before the Judicial Registrar. This approach to the operation of s 377 is consistent with the language of s 376 to s 378, the purpose of s 377 and the approach manifest in the joint judgment of Gummow and Heerey JJ in Gas and Fuel Corporation Superannuation Fund v Saunders (supra) concerning the timely review of a judgment dealing with an allegation of apprehended bias.
Is a case of apprehended bias made out
This then leads to a consideration of whether the Judicial Registrar’s decision not to disqualify herself was correct. That arises in the context of a judge exercising the power to determine whether the Judicial Registrar should not hear the principal application for reasons of apprehended bias. It has recently been said by the High Court in Winningham v The Queen (1995) 69 ALJR 775 that the law on the subject of what constitutes apprehended bias is well settled. The Court described the law in the following way (at 775):
“That test has been expressed in different ways but it requires the question to be asked whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter.”
In so far as the Judicial Registrar simply read documents on the file that should not have been there and contained material which might reasonably be viewed as prejudicial to the interest of Mrs Smith, the principles are, in my opinion, also well established. They were discussed in Doyle v Western Suburbs District Rugby League Football Club (1994) 57 IR 97 at 100-101:
“I have already set out the basis upon which the allegation of apprehended bias is founded. It is that the Judicial Registrar read a letter setting out the recommendations of a Commissioner resulting from the conciliation process conducted by the Commissioner. This general issue of a Judge reading inadmissible evidence prior to ruling on its admissibility was considered by a Judge of the Federal Court in Johns v Australian Securities Commission (1992) 35 FCR 16 at 37. In that matter Heerey J said:
“It is an everyday task for judges to disregard evidence which has been successfully objected to as irrelevant or otherwise inadmissible. This is one of the fundamental skills that a legally qualified tribunal of fact brings to bear - in contrast with a jury where exposure to inadmissible evidence of a substantial nature often does require the discharge of the jury. In Amoe the High Court was dealing with a criminal trial but one conducted by a judge in Nauru sitting without a jury. The Court said (at 34):
‘If a judge, trying a case without a jury, comes to the conclusion that the prejudicial effect of an answer would outweigh its probative value, must he or she disqualify him or herself? The answer must merely be that it is only in the most exceptional case that a judge is required to disqualify him or herself because a prejudicial question has been asked or answered. In a trial before a judge without a jury, prejudicial questions and answers are perceived as having a different effect from that which, by the common law tradition, they have in a trial by jury.’
It is true that the High Court goes on to say (at 34) that:
‘From time to time, cases occur where the nature of the prejudicial material and its relationship with the issues which have to be decided is such that the appearance of impartiality is necessarily destroyed by a judge deciding the case after hearing or reading such material. In such a case, the prudent judge will disqualify him or herself from further hearing the matter, irrespective of the degree of confidence that the judge has in his or her ability to determine the case uninfluenced by the prejudicial material. If the judge fails to do so, it will fall on the appellate court to set aside any resulting conviction.’”
This aspect of his Honour’s judgment, unlike others, was not the subject of appeal: see (1992) 35 FCR 146 (Full Court of the Federal Court), (1993) 116 ALR 567 (High Court). I should also refer to another judgment of Heerey J in Brennan v Minister for Immigration, Local Government and Ethnic Affairs (1991) 28 ALD 178 in which his Honour refused to disqualify himself on the basis that he had read “without prejudice” correspondence between the parties that was contained in affidavit material filed in Court. In my opinion the reading of material by the Judicial Registrar does not create an apprehension of bias that would require the Judicial Registrar to disqualify himself.”
The rationale for this approach was explained by Jacobs J in Re Judge Leckie; Ex parte Felman (1978) 52 ALJR 155 at 160:
“There is no rule that, when information about a matter outside the evidence or prior to a hearing inter partes is made known to a judge, that judge is or even may be disqualified upon the ground that there may be a real and reasonable suspicion that the information may create prejudice in the mind of the judge. It may be different in some circumstances when the tribunal is a quasi-judicial one because its members are not necessarily trained to act free of prejudice. It may be different again when a judicial tribunal is composed of lay persons. But a judge is selected for judicial office of his learning and training in law, his integrity and capacity of impartiality. The combination of these factors results in a judge being assumed to be able to bring a detached mind to his task of judgment even if material may have been placed before him which results in a prima facie view being formed by him on those facts. The clearest example is the application for ex parte injunction.”
See also the observations of Mason J and Toohey J to similar effect in, respectively, Victoria v The Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 102 and Vakauta v Kelly (1989) 167 CLR 568 at 584.
The office of Judicial Registrar is a judicial office. Its features were discussed in Association of Professional Engineers, Scientists and Managers Australia on behalf of Cross v Deniliquin Council (1995) 129 ALR 418 at 420:
“Judicial registrars are appointed by the Governor-General (see s 375), must have the same qualifications as those required for appointment as a judge (see ss 381 and 362(3)), and receive a salary determined by the Remuneration Tribunal: see s 383. Judicial registrars hold office for a fixed term (see s 382(2)), until they resign (see s 385) or are removed by the Governor-General for specified reasons: see s 386. They take an oath of office in relevantly the same terms as that taken by a judge: see ss 387, 473 and 368. Section 379 is headed “Independence of Judicial Registrars” and states that a judicial registrar is not subject to direction or control when exercising delegated powers. However, judicial registrars are not judges in the sense that their office is not one crated in conformity with the provisions of s 72 of the Constitution.”
The assumption referred to by Jacobs J in Re Judge Leckie should, in my opinion, be made in relation to a person occupying the office of Judicial Registrar and, in particular, the Judicial Registrar whose decision is the subject of review in these proceedings. Thus, the mere reading of the material by the Judicial Registrar does not sustain the conclusion that there is an apprehension of bias in the way discussed in Winningham unless the material was of the special character described by the High Court in Amoe v Director of Public Prosecutions (Nauru) (1991) 66 ALJR 29 at 34.
In the present case there are ten documents which I infer were read by the Judicial Registrar. Three were statutory declarations from what appear to have been employees of Daleco working with Ms Smith. Daleco operates a hairdressing salon. The statutory declarations concern events, including conversation involving Ms Smith, leading to the termination of her employment. Oral evidence reflecting their contents would probably have been relevant admissible evidence had each of the declarants been called by Daleco at the hearing of the s 170EA application of Ms Smith. It was proposed they would be. By reading the statutory declarations the Judicial Registrar was doing no more than reading documents akin to affidavits in a Court file that might constitute evidence in chief at a trial. Their contents were unexceptionable and there was, in my opinion, nothing untoward in the Judicial Registrar reading them.
Two of the documents were letters dated 22 March and 29 March 1996 to Ms Smith from, in one instance Ms Pamela Lopez who is described in the letter as the owner of Daleco’s business, and the other from Ms Lopez and Ms Nicole Mannix who appears to be the manager of the salon operated by Daleco. The letter of 22 March 1996 contains a number of annexures. That letter, including the annexures, is probably relevant and admissible evidence that would have been tendered by Daleco and admitted. It is thus likely it would have been read by the Judicial Registrar at the trial. The same is true of the letter of 29 March 1996. Again there was nothing untoward in the Judicial Registrar reading them.
Another of the documents was an undated and brief letter of reference relating to Ms Smith containing the assertion that her employment had been terminated by mutual agreement. Whether this letter was relevant admissible evidence is less certain. However I do not consider that anything flows from the Judicial Registrar having read it.
The other four documents are each signed by Ms Lopez. One, in substance, is an unsophisticated written submission, in point form, saying the principal application should be dismissed because it was out of time, there had been no dismissal (that is, termination at the initiative of the employer) and because it was a vexatious claim. It contains a number of assertions of fact and points of argument and refers to the statutory declarations I earlier discussed. With two possible exceptions, most of its contents, while argumentative, would have emerged in some form or another in the hearing of the principal application. The two possible exceptions concern a reference to an alleged earlier claim by Ms Smith for “wrongful dismissal” and a reference to a discussion with a clerk of the Commission possibly about, it would appear, Ms Smith’s failure to turn up to a conciliation conference. Both matters may have been raised in cross examination of Ms Smith in the hearing of the principal application. Even if it cannot be assumed they would have been, they are matters that the Judicial Registrar was well able to put to one side and ignore.
The next document was a more detailed note concerning Ms Smith’s alleged failure to attend a conciliation conference. For the reasons just given, there was nothing untoward, in my opinion, in the Judicial Registrar being made aware of its contents. The same is also true of the next document which was Ms Lopez’s account of Ms Smith’s alleged failure to turn up for work on 16 March 1996. It is likely that evidence would have been given about it at the hearing of the s 170EA application.
The last document is different in character. It is a narrative of events concerning the discovery that there was apparently a discrepancy in the takings from the salon suggesting money had been stolen, the reporting of the matter to the police and their investigations, and the arrest and charging of Ms Smith. That the contents of such a document became known to the Judicial Registrar may reasonably give rise to concern. However, as soon as the Judicial Registrar adverted to this matter, counsel for Ms Smith indicated that the evidence would show that Ms Smith had suffered stress at having been charged and interrogated. He later said, in discussing what compensation would be sought, that the evidence would show she suffered considerable trauma for being wrongfully charged with an offence in circumstances where she was never confronted by her employer with the allegation of theft. It is thus plain the it was going to be part of the evidentiary case of Ms Smith that she was charged and interrogated for an alleged theft from the workplace. In those circumstances, the fact that the Judicial Registrar became aware of those matters by reading a document in the file is, in my opinion, of no great significance. In other circumstances it might be.
However, not only did the Judicial Registrar read the material, but it founded various comments by her addressed to the parties during the exchanges I summarised earlier. Counsel for Ms Smith relied on not only the fact that the Judicial Registrar had read the documents but also the way she conducted herself thereafter. From reading the material, the Judicial Registrar had gleaned that it was at least alleged that Ms Smith had been sent letters concerning the termination of her employment which may indicate that the employment was terminated by agreement, that proceedings had been brought against her by the police involving an allegation of theft from the workplace and that there was an allegation that she had organised other employment before leaving the employment of Daleco. The observations made by the Judicial Registrar suggested that she had, at least tentatively, formed the preliminary view that the first matter gave rise to an issue about whether Ms Smith’s application had been made within time and also that Daleco’s case would succeed or fail depending on whether it could prove that there was an agreement to terminate Ms Smith’s employment. They also suggested she had formed the preliminary view that the second matter, the prosecution by the police, was generally not a matter relevant to Ms Smith’s application. They also suggested she had formed the preliminary view that, in relation to the third matter, by taking up employment shortly after her employment with Daleco terminated, Ms Smith’s compensation would be limited.
Of significance, in assessing the combined effect of the Judicial Registrar reading the material and what she later said about it, was that it was all said in the broad context of the Judicial Registrar endeavouring to have the parties consider settling the matter if it was one capable of settlement. Indeed, the proceedings were, prior to the application to the Judicial Registrar to disqualify herself, directed to three matters. The first concerned administrative matters such as who the solicitors were. The second and third, which were related, were the identification of the issues and whether, having regard to the identified issues, there was scope for the matter to be settled.
I accept that the Judicial Registrar took, at times, a fairly robust approach when endeavouring to focus the parties’ attention on the issue of settlement. Another judicial officer may have been more restrained and limits exist on how far a judicial officer may properly go in trying to induce settlement, as illustrated by Shaw v Shaw (1981) 55 ALJR 12. However, I do not consider any of the statements of the Judicial Registrar evidences prejudgment in the relevant sense. It may be accepted that the Judicial Registrar’s observations concerning costs probably misstated, at least impliedly, the scope the Court’s power in relation to costs in circumstances where an application failed or succeeded because one party’s account of the facts was not accepted. However the entire statement concerning costs was not directed to one party only, though I accept that the reference to s 347 would have relevance only to Ms Smith.
I also accept, as submitted by counsel for Ms Smith, that the Judicial Registrar should probably have recognised that the documents she read, or at least some of them, were plainly documents that should not be on the file and thus should not be read in the sense of being read with care with a view to absorbing their contents. However, it would have been necessary for her to have at least skimmed them to ascertain their character. While the Judicial Registrar indicated documents had been read, I am left not knowing the care with which they were read. I should not assume, adverse to the Judicial Registrar, that she did anything more than simply skim them and, in so doing, gleaned the information she later raised with the parties. As was pointed out by Kirby P in Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684 at 688-689, while it is “unnecessary to be too tender about the sensibilities of the judge” concerned, the judge plays no role in contesting factual or other issues in any review of a decision not to disqualify. Accordingly, as his Honour said “the appellate court for its part should exercise restraint in expressing findings about, or criticism of, the conduct of the primary judge.”
While it was not relied on by counsel for Ms Smith, I think it is regrettable that the Judicial Registrar did not permit him to complete his submission as to why she should disqualify herself, before, as appears from the transcript to have happened, pronouncing her decision. It is a difficult submission for a barrister or solicitor to make and if properly made, as was the case here, should be entertained by the judicial officer to whom it is made with the solemnity it warrants. Courtesy, at the very least, would dictate that the person making it be permitted to put the submission fully.
However, having regard to all the matters that have been raised, counsel for Ms Smith has not, in my opinion, demonstrated that in all the circumstances the parties or the public might entertain a reasonable apprehension that the Judicial Registrar might not bring an impartial and unprejudiced mind to the resolution of Ms Smith’s application.
Was the Judicial Registrar part-heard
The notice of motion also seeks to raise the issue of whether the Judicial Registrar was correct in concluding that she was part-heard. It is not entirely clear the context in which this issue is said to arise. I do not understand that Ms Smith has made application under s 378(3) that a judge exercise the power to hear and determine the principal application on the basis that the Judicial Registrar has not begun to exercise the power to do so.
It is a fundamental aspect of our system of administration of justice that once a judge has embarked upon the final hearing of a matter, the judge should hear and determine it. The issue was considered by the New South Wales Court of Appeal in Wentworth v Rogers (No. 3) (1986) 6 NSWLR 642. Kirby P summarised the relevant principles at 649. They included:
“1. If specific provision is made by statute for the reconstitution of the court following the death, illness, resignation, prolonged absence or other incapacity of a judge who has part heard a case, the legislation will govern the substitution: Chua Chee Chor v Chua Kim Yong.
2. Statute apart, the primary rule is that once a court embarks upon the hearing of the case, prima facie the court as so constituted should conclude the hearing and any reconstitution of the court in the middle of the proceedings will be an irregularity warranting intervention on appeal or review to require a new trial de novo.
3. The primary rule is subject to the exception that if an ancillary, severable and distinct matter is severed and not dealt with in an earlier proceeding, it may be determined by another judge, or an appeal court including another judge: Orr v Holmes.
4. ...”
However, the principles, so stated, leave unanswered the question of whether, in a particular matter, a judge has “embark[ed] upon the hearing of the case” or when a judge is “part heard”.
This issue arose in the The Queen v Lewis (1988) 165 CLR 12. The High Court was called upon to consider the circumstances in which an application for leave to appeal had been heard and determined by the Court of Criminal Appeal in the Northern Territory. An application for leave to appeal had come before the Court, constituted by three judges, on 7 May 1987. The appellant was not legally represented. The matter also came before the Court constituted in the same way the following day. There was then a discussion about the grounds of appeal raised by the appellant and the manner in which the appeal might proceed. The Full Court gave directions about the manner in which the evidence in the appeal should be presented. The application for leave to appeal was heard by the Court on 1, 2 and 3 July 1987, though one of the Judges who had earlier sat no longer formed part of the Court. Another Judge sat with two of the original judges.
An issue was raised in the High Court about the legal consequences of these changes to the composition of the Court. In a joint judgment, the High Court said (at 15-16):
“The first ground on which special leave is sought is that the Court erred in changing its membership in the course of the hearing of the appeal. Of course, it is of fundamental importance that a court which enters upon the exercise of jurisdiction should see the matter through to finality. If through force of circumstances that cannot be done then the hearing must be commenced de novo unless there is some other more convenient arrangement which has the consent of all the parties and is not inimical to the proper adjudication of the matter. In the present case, however, the Crown’s criticism of the Court in this regard is not well founded. The proceedings of 7 and 8 May 1987 were no more than a preliminary examination of the issues sought to be raised by the respondent in order to determine the manner in which the hearing should proceed. In short, it was no more than a directions hearing a concluded with the Court giving the necessary directions. It did not embark on a hearing of the merits of the application.”
I earlier summarised the course the proceedings took in this matter before the Judicial Registrar on 3 February 1997. While it is not free from difficulty, the better view appears to me that the Judicial Registrar did not embark upon the hearing of the matter. I have already indicated that a large part of the hearing before her was taken up with an attempt by her to identify the issues. As earlier discussed, that task was, in my opinion, plainly undertaken principally for the purpose of focusing the parties attention on settling the matter.
My conclusion that the Judicial Registrar had not embarked upon a hearing of the matter is reinforced by a number of the remarks she made which I highlighted in some of the extracts from the transcript to which I earlier referred. She first said that: “The matter will run if it needs to run”; second: “It will proceed and it will be a very interesting hearing”; and third: “I think the hearing should commence”.
It seems to me to be plain from these passages that the Judicial Registrar was adopting the approach of endeavouring to facilitate a settlement of the matter but on the basis that, if her endeavours were unsuccessful, the hearing would commence. At the time the application that the Judicial Registrar disqualify herself was rejected, the hearing had not commenced. Nothing that occurred thereafter indicates that the status of the proceedings altered.
It follows, in my opinion, that the view adopted by the Judicial Registrar that she was part-heard was wrong. It is thus my view that she had not begun to exercise the power to hear and determine the principal application on its merits though I do not see the utility of making a declaratory order to that effect. It would be open to a party to make application under s 378 for a judge to exercise the power. However, no such application has been made and s 378 only authorises a judge to make an order that a judge exercise the power if an application is made to that effect.
I dismiss the application for review by Ms Smith.
I certify that the preceding thirty-four (34) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.
Associate:
Alexandra George
Dated: 22 April 1997
APPEARANCES
Counsel for the Applicant: Mr J de Meyrick
Solicitor for the Applicant: A C Knibb Kaine & Associates
Counsel for the Respondent: Mr J H Pearce
Solicitor for the Respondent: Taylor & Scott
Dates of Hearing: 11 March 1997
Date of Judgment: 22 April 1997
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