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Stephen Hanson v Regional Express Holdings Ltd

Stephen Hanson v Regional Express Holdings Ltd

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Case Copied 22 February 2021 73 min read

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[2021] FWC 951

FAIR WORK COMMISSION

DECISION

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

Stephen Hanson
v
Regional Express Holdings Ltd
(AB2019/196)

DEPUTY PRESIDENT BOYCE

SYDNEY, 22 FEBRUARY 2021

Application for recusal — private communication between Associate and legal representative for applicant — apprehended bias — three-step test in Ebner v Official Trustee in Bankruptcy not satisfied — no question of principle — recusal application dismissed.

Introduction

[1] On 20 August 2020, Regional Express Holdings Ltd (REX) filed a Form F1 (Recusal Application) with the Fair Work Commission (Commission). 1 By way of that Application, REX seeks an order that I recuse myself from further dealing with Mr Stephen Hanson’s anti-bullying application (Bullying Application) (made pursuant to s.789FC of the Fair Work Act 2009 (Act).

[2] REX’s Recusal Application relies upon ‘apprehended’, not ‘actual’ bias.

[3] I accept the concession by REX as to the absence of actual bias.

[4] In making its Recusal Application, REX has sought to challenge, or put in issue, a number of long standing and fundamental principles concerning the law of apprehended bias. It follows that many of REX’s arguments as to the law are fallacious. Not only has REX’s approach made this decision significantly longer than it would otherwise have been, but it also means that it might be easy for a reader to get lost in the detail of REX’s submissions, and the detail of these reasons. In an effort to militate against this, I have organised my reasons under a number of headings.

Overview of REX’s Recusal Application

[5] REX’s contentions as to apprehended bias primarily centre upon the assertion that, in the facts and circumstances of this case, an ex parte telephone conversation between my Associate and Mr Hanson’s lawyer might cause a fair-minded and informed lay observer to reasonably apprehend that I might not bring an impartial mind to the determination of these proceedings. I have rejected this assertion, along with other related assertions by REX as to apprehended bias. My reasons for those conclusions, and my determination to dismiss REX’s Recusal Application, are set out following.

Directions and hearing

[6] On 20 August 2020, I issued directions to REX and Mr Hanson to file submissions and evidence in respect of the Recusal Application. A hearing was held on 27 October 2020 in Sydney. Mr D Mahendra (of counsel), instructed by Mr D Trindade of Clayton Utz lawyers, appeared with permission for REX. Ms L Saunders (of counsel), instructed by Mr S Morgan, lawyer, of the Australian Licensed Aircraft Engineers Association (ALAEA), appeared with permission for Mr Hanson. 2

ALAEA’s dispute application resolved

[7] The Bullying Application was heard together with the ALAEA’s application to resolve a dispute (Dispute Application) under the Regional Express Aircraft Engineers Agreement 2018-2021 (Agreement).

[8] I issued my decision dismissing the Dispute Application on 29 July 2020 in The Australian Licensed Aircraft…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 951
Decision Date: 22 FEBRUARY 2021

CaseChat Overview and Summary

The case of Stephen Hanson v Regional Express Holdings Ltd involved an application by the applicant, Stephen Hanson, for the judge to recuse themselves from the proceedings. Hanson's application was grounded in an alleged private communication between the judge and his legal representative. The dispute was heard in the Federal Circuit Court of Australia, where Hanson sought to have the judge removed due to concerns about potential bias. Hanson argued that the private communication had the potential to give rise to a real danger of partiality on the part of the judge, thereby affecting the fairness of the proceedings.

The court was tasked with determining whether the private communication between the judge and Hanson's legal representative was sufficient to establish a real likelihood of bias. The central legal issue was whether the three-step test articulated in Ebner v Official Trustee in Bankruptcy was satisfied, which requires the court to consider whether a fair-minded observer might reasonably apprehend that the judge might be biased. Additionally, the court needed to assess whether there was a question of principle involved that would necessitate the recusal of the judge.

In evaluating the application, the court examined the content and context of the private communication. It determined that the communication did not meet the threshold required to establish a real danger of bias under the Ebner test. The court found that the private communication was not of a nature that would lead a fair-minded observer to apprehend bias. Moreover, the court concluded that no question of principle was involved that would necessitate the recusal of the judge. Consequently, the application for recusal was dismissed. The court held that there was no evidence to support the claim that the judge's impartiality had been compromised in any way that would necessitate their recusal from the proceedings.

Orders