Stephen Hanson v Regional Express Holdings Ltd
[2021] FWC 951
•22 FEBRUARY 2021
| [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 Engineers’ Association v Regional Express Holdings. 3
[9] Whilst the Dispute Application concerned the construction of the Agreement, the core aspect of the dispute was whether certain actions taken by REX against Mr Hanson were “disciplinary”. If a finding was made that such actions were disciplinary, the ALAEA asserted that in the events that have happened, REX acted contrary to the terms of clause 35 of the Agreement. My ultimate findings, leading to the dismissal of the Dispute Application, were:
“[21] Despite the real concerns of the ALAEA and Mr Hanson as to the terms of the File Note having been intentionally drafted by REX so as to cast Mr Hanson in an unfavourable light, REX’s unequivocal statement that the File Note does not equate to or impose disciplinary action means that the File Note cannot be used as reference point or foundation for future decisions by REX as to disciplinary action against Mr Hanson, and/or the termination of his employment.
[22] The manner in which the Investigation has been conducted, and the contents of the File Note, are to be considered as part of Mr Hanson’s separate bullying at work claim against REX (and other individually named respondents) under Part 6-4B of the Act. Whether the suspension of Mr Hanson’s company certification authority is indeed a requisite (and reasonable) response by REX to its operational and regulatory obligations will also be considered as part of Mr Hanson’s bullying at work claim”. 4
[10] Neither party has sought to appeal my decision in the Dispute Application.
Mr Hanson’s substantive Bullying Application
[11] Ms Saunders summarises the Mr Hanson’s Bullying Application as follows:
“In short, Mr Hanson contends that he has been, and absent the Commission’s intervention is likely to continue to be, subjected to a course of conduct by a group of individuals which:
a. was inconsistent with Rex’s legal obligations under both the [applicable enterprise] Agreement and the Civil Aviation Act 1988 (Cth);
b. was otherwise unreasonable management action;
c. created a risk to health and safety, both by generating a hostile work environment and by its chilling effect on making safety reports;
d. in fact resulted in him suffering a psychological injury; and
e. for these reasons, constituted him being ‘bullied at work’ within the meaning of s.789FD,
and that orders should be made under s.789FF stopping this from recurring”. 5
[12] A central aspect of Mr Hanson’s Bullying Application are his assertions that he has been targeted for being involved in and/or reporting safety concerns in respect of REX aircraft. He says that such targeting constitutes bullying within the meaning of the Act, not least because it is contrary to Civil Aviation Safety Authority (CASA) principles that require aviation operators not to punish people for actions, omissions or decisions that they make or take in respect of safety matters, other than in circumstances where such actions, omissions or decisions constitute gross negligence, recklessness, wilful violations or destructive acts (Just Culture). 6
[13] As I understand it, and by way of summary, the goal of a Just Culture is to avoid a culture in which safety issues are not reported, or under-reported, because people are punished for their involvement in, or reporting of, such safety issues. If such a culture were allowed to develop unaddressed, then it may well lead to an increased risk to aviation safety, aviation employees, and the general flying public.
[14] According to Mr Hanson, whilst REX may say that it has only placed “file notes” on his personnel file regarding various safety incidents, these file notes need to be considered in light of all the events that have happened (including by reference to the conduct of the individually named respondents). In other words, although it might be said that the file notes represent innocuous outcomes of the various investigations conducted by REX, the events leading up to the issuing of the file notes, and the wording and conclusions set out in the file notes, give rise to the very kind of bullying behaviour (creating a ‘risk’ to Mr Hanson’s health and safety), that ought enliven the Commission’s intervention under the Act. This is especially so given that the file notes placed on Mr Hanson’s personnel file are being used (at least in part) by REX as a reason to justify REX’s continued refusal to reinstate authorisations required by Mr Hanson to perform his role as a Licensed Aircraft Maintenance Engineer (concerning his ability to taxi and certify aircraft), and the removal of monetary allowances or payments that attach to such authorisations.
[15] By way of context and summary, and without making any specific findings for the purposes of this Recusal Application, and without attributing any specific conduct to any of the named individual respondents, the Bullying Application concerns four incidents:
(i) First Incident: On 3 July 2017, Mr Hanson was taxiing an aircraft (REX SAAB 340, registration VH-ZLA) from the tarmac (F15B) to a REX maintenance hangar. It was at this time that the left wing-tip of the aircraft struck an open industrial skip-bin lid, causing damage to the wing tip’s strobe-light lens cover. Shortly after the First Incident, it was found that the line markings between the taxi line and the “no storage or parking zone” (where the skip bin was positioned) were incorrectly marked on the tarmac as to wing clearance. Corrective action was taken to remark these lines, and the location where the skip bin was being stored (at the time of the incident) was re-marked as a permanent “no storage” zone. Mr Hanson asserts that despite various countervailing matters giving rise to the First Incident — including incorrect line markings on the tarmac, and the poor positioning of the skip bin by a waste contractor — REX seeks to hold Mr Hanson responsible for the collision, and punish him (including by refusing to reinstate his aircraft taxiing authorisation). Further, the manner in which REX approached the investigation of the First Incident, in the events and delays that have happened, can hardly be said to be reasonable management action. Indeed, Mr Hanson says that even if the investigation process and its outcomes in relation to the First Incident might arguably be said to have constituted reasonable management action (which Mr Hanson says do not), at the very least, such management action was unnecessarily drawn out and, inter alia, has not been conducted in a reasonable manner.
(ii) Second Incident: On 27 October 2018, Mr Hanson attended upon an aircraft in respect of a REX Aircraft Maintenance Log (AML) Report. That AML Report was completed by a pilot, who stated “dust cover from first officer’s control column missing” (Dust Cover AML). The Dust Cover AML had been “deferred” by REX engineering (meaning it was non-safety critical, and could be rectified at a later date). However, upon subsequently attending the aircraft and inspecting the identified “dust cover”, Mr Hanson saw that the dust cover was not missing. Upon further inspection, Mr Hanson identified that the “dust boot” to the pilot’s steering column was defective and needed to be replaced. Mr Hanson assumed that the pilot was wrongly referring to the “dust boot” and not the “dust cover”, and that the pilot meant to state in the Dust Cover AML that the dust boot was damaged and required replacement. Not content to merely rely upon his own ‘assumption’, Mr Hanson reported the discrepancy to his supervisor, who advised him to replace the defective dust boot. It was later identified via a CASA audit that the missing or defective part was not the dust cover or the dust boot, but a missing dust plug on the aircraft steering column that prevents dust from entering the steering column. Mr Hanson asserts that despite the Dust Cover AML (completed by the pilot) specifying the wrong missing part, and despite clarifying the matter with his supervisor at the time, REX has unreasonably held him responsible for the error, and engaged in an investigation process that has not been conducted in a reasonable manner.
(iii) Third Incident: Early in the morning (pre-dawn) on 10 April 2019, Mr Hanson was performing a Line Check 1 (LC1) inspection on a REX aircraft that was scheduled to depart with passengers that morning. Whilst completing the LC1 inspection, Mr Hanson noticed what he considered to be metal corrosion (i.e. rust) on the aircraft’s propeller shaft. Mr Hanson reported the corrosion on the propeller shaft to REX engineering, who determined to remove the aircraft from scheduled passenger services that day (and use a replacement aircraft instead). Remedial action via clad plating to the propeller shaft occurred prior to it being put back into service. Mr Hanson asserts that after he reported the suspected corrosion on the propeller shaft, he was subjected to an investigation that was conducted in an unreasonable manner, and unreasonable management action was taken against him. In short, Mr Hanson says that he has been punished by REX for noticing and/or reporting what he perceived to be a corroded propeller shaft, including via the removal of his authorisations to certify REX aircraft. He highlights that his concerns as to the corrosion on the propeller shaft were not other than genuine safety concerns, and identifies that his concerns were all the more compounded having regard to his awareness of another REX aircraft that lost its propeller shaft whilst in flight over Sydney. He also notes that remedial action to the propeller shaft occurred prior to the aircraft being placed back into active passenger service, meaning that his concerns over the corroded propeller shaft were hardly unfounded.
(iv) Fourth Incident: On 30 June 2019 REX went public in relation to its dispute with Mr Hanson, and issued a media release, naming Mr Hanson as a “disgruntled engineer” who has been raising “wild” and “baseless” accusations, “first with the Fair Work Commission and then to [CASA]”. The media release was subsequently redacted to remove only Mr Hanson’s name, and reissued in the same terms. Mr Lim Kim Hai (REX Executive Chairman) described the original media release naming Mr Hanson as a “COMPLETE DISASTER” (uppercase in email from Mr Lim). 7 Mr Hanson says that even with his name removed from the media release, it was readily apparent to his work colleagues that the revised REX media release was referring to him. Mr Hanson says this incident is a further example of the repeated and vindictive bullying behaviour that has been taken against him by REX.
[16] I note that REX defends the Bullying Application. In summary, REX argues that the named individual respondents have not bullied Mr Hanson, and/or that any action taken against Mr Hanson in relation to the first three incidents has been reasonable management action carried out in a reasonable manner. 8 In relation to the Fourth Incident, REX says that as none of the individual named respondents was responsible for the media release, in that it was issued by an employee of REX who is not a party to the Bullying Application, no claim of bullying arises (and/or no relief can be granted) in respect of same. In mounting its defence, REX does not dispute that if bullying has occurred, it would give rise to a risk to Mr Hanson’s health and safety.9
Factual overview of events leading to REX’s Recusal Application
[17] On Friday, 14 August 2020, at my direction, my Associate contacted Mr Hanson’s lawyer (Mr Morgan) by telephone. Given that I was soon to publish my decision in the Bullying Application, I directed my Associate to inquire with the legal representatives of each party as to Mr Hanson’s current employment status, and whether he remained off work on Workers’ Compensation (Status Inquiry).
[18] In his witness statement tendered at the hearing of the Bullying Application, Mr Hanson gave the following unchallenged evidence:
“All of this [alleged bullying] has become way too much for me and I am now off work on workers’ compensation. Attached to this statement and marked “SH-26-1” through to “SH-26-3” are copies of my Workers Compensation Certificates of Capacity.
I need to go back to work, but I need protection. I do not have a choice to go anywhere else. Firstly, I only have a licence to work on REX aircraft, and therefore if [I] could go anywhere else I would have to drop back to being a Aircraft Maintenance Engineer (AME) as opposed to a LAME [Licensed Aircraft Maintenance Engineer]. This would probably result in a $30,000 pay-cut. Secondly, the industry is very small and my name is out there as a result of REX identifying me. I know it will be very hard to get another job”. 10
[19] On the question of how Mr Hanson’s injury arises from his work (and the bullying he alleges to have been subject to at the REX workplace), Mr Hanson’s Workers’ Compensation Certificate of Capacity dated 5 July 2019 (as tendered without objection at the hearing of the Bullying Application) reads:
“Psychological injury from bullying and harassment by management and HR over a prolonged period. Feels targeted, intimidated and threatened by management. His role requires him to certify aircraft, but he gets in trouble when he raises safety concerns”. 11
[20] Given the time between that evidence, and the time I proposed to issue my decision in the Bullying Application, I considered Mr Hanson’s employment status immediately prior to my decision being issued an important matter to clarify and otherwise be updated upon. Indeed, if Mr Hanson was no longer employed by REX, or had been medically certified as being permanently unfit for work at REX, or on permanent restrictions, this would give rise to issues concerning the utility of any findings to be made in the proceedings, and/or any recommendations or orders as to ultimate relief (if any).
[21] It is not in contest that the clarification sought pursuant to the Status Inquiry essentially only relates to issues in the proceedings concerning relief (i.e. not questions of liability). 12 This is especially so given that REX did not raise any issue (including any jurisdictional issue) in the proceedings concerning Mr Hanson’s assertion that the alleged bullying behaviour (if proven) created a “risk” to his health and safety.13
[22] Sometime on Friday, 14 August 2020, my Associate verbally advised me that he had contacted Mr Hanson’s lawyer about the Status Inquiry by telephone, and that Mr Hanson’s lawyer had stated that his “understanding” was that Mr Hanson:
(a) remained employed by REX; and
(b) was off work on Workers’ Compensation.
[23] At this time, my Associate also advised me that Mr Hanson’s lawyer prefaced the foregoing answer by stating that he would need to double check on this understanding, and would confirm the position after making further relevant inquiries. I understood from this that Mr Hanson’s lawyer’s response to the Status Inquiry required further and subsequent confirmation by him.
[24] On Tuesday, 18 August 2020 at 2:02pm AEST, Mr Hanson’s lawyer sent the following email to my Chambers, copying in REX’s lawyer (Mr Trindade):
“Dear Associate
As per our discussion last week (on 14 August 2020) in response to the Deputy President’s enquiries:
1. Mr Hanson only holds licences to certify REX aircraft and therefore Mr Hanson has to, and wants to, return to REX in order to resume his career as a LAME (i.e. Mr Hanson will not be able to work for another maintenance organisation as a LAME); and
2. It is my understanding that Mr Hanson is still presently receiving weekly payments of workers compensation, and that Mr Hanson’s nominated treating doctor will not certify Mr Hanson as fit to return to work unless he has the protection of bullying orders.
The respondent’s legal representative is copied into this correspondence”.
(hereinafter, Lawyer Disclosure) 14
[25] My Associate forwarded me the Lawyer Disclosure at 2.03pm AEST on Tuesday, 18 August 2020. I have no recollection of when I read this email. The electronic properties to the email appear to indicate that I ‘read’ the Lawyer Disclosure at 4.02pm AEST on 18 August 2020. That said, I do not proclaim to be a computer expert.
[26] I equally have no independent recollection of what was occupying my time on 18 August 2020. Having gone back and reviewed my diary and email interactions on 18 August 2020, such records indicate that five unfair dismissals were being heard together by me that day (i.e. five employees dismissed by the one employer). That hearing turned into a Commission assisted conciliation, to which I was actively involved in until around 2.00pm AEST (when the matters collectively settled). I received 29 emails on 18 August 2020. It was necessary for me to respond to six of them. The emails received and responded to by me concerned the approval of two enterprise agreements, the finalisation of an enterprise agreement decision, the drafting of an unfair dismissal decision, a request for amended directions in two matters, and case law I provided to my Associate to assist him in drafting a research memorandum for me on a point of law. The short point is that even putting aside the electronic properties as to when I read the Lawyer Disclosure, it appears that I was somewhat occupied all day on 18 August 2020.
[27] Later on 18 August 2020, at 3:43pm AEST, my Associate sent the following email to Mr Hanson’s lawyer, copying in REX’s lawyer:
“Dear Mr Morgan,
The email below is noted, with thanks”.
[28] The foregoing email was not sent by my Associate on my instructions. As I pointed out during the hearing on 27 October 2020, I am aware that my Associate regularly responds to emails he receives to the Chambers email Inbox with a polite acknowledgement of receipt, and does so as a matter of courtesy and professionalism. Such acknowledgement equally serves to ensure that anxious parties are aware that their email communication has been received, alleviating them of the need to chase up my Associate with further emails containing queries such as “Did you get my email?”. 15
The Clatz Letter
[29] On Wednesday, 19 August 2020 at 10:22am AEST, by way of email attachment, REX’s lawyer sent my Chambers a letter, which reads:
“Dear Deputy President Boyce
AB2019/196 Application by Hanson
We act for the Respondents in this matter.
It has come to the Respondents' attention that after judgment being reserved on 18 February 2020 the following has occurred:
1. On 14 August 2020 your Associate contacted the Applicant's Representative (Mr Morgan of the ALAEA) seeking information on your Honour's behalf.
2. Mr Morgan provided information to your Associate, which was then presumably communicated to your Honour.
3. None of the Respondents, nor us as the Respondent's Representative were party to, or aware of those communications or of any information being passed to the Commission in those communications.
4. Neither your Honour nor your Associate advised the Respondents that private communications with the Applicant had occurred.
5. At 2:02 pm on 18 August 2020 we received a copy of an email from Mr Morgan to your Associate confirming that communications had occurred on 14 August 2020 in response to enquiries from your Honour.
6. At 3:43 pm on 18 August 202 your Associate replied to Mr Morgan by email (copied to us) noting Mr Morgan's email.
Private communications between a member of the Commission (or his or her Chambers) and a party to a proceeding, in respect of the proceeding, should not occur. This is even more so the case when this occurs after judgment has been reserved and where the communication is initiated by the Commission.
The communications between your Associate (on your behalf) and Mr Morgan give rise to a reasonable apprehension of bias of the kind identified by the High Court in Re JRL; Ex parte CJL [1986] HCA 39. Accordingly, the Respondents respectfully request that your Honour recuse yourself from further hearing or determining the matter and refer the matter to the President of the Fair Work Commission for allocation to another member of the Commission. The Respondents consider that your Honour's recusal is necessary and appropriate to ensure that, as put by Chief Justice Barwick in Re JRL (at para [11]):
"justice must not only be done but must manifestly be seen to be done; when a judge has received private representations concerning a case, the court will not inquire whether the representations in fact worked to the prejudice of the party against whose interests they were made - it is enough that they might do so”.
(hereinafter Clatz Letter) 16
[30] I observe that the Clatz Letter makes no inquiry, and seeks no clarification, of me or my Chambers as to the circumstances surrounding the Lawyer Disclosure. Further, it does not suggest that there be any opportunity for Mr Hanson to have any say as to my recusal, or that a hearing need occur prior to me making my determination as to recusal. Rather, the Clatz Letter simply asserts that my recusal is not only appropriate, but “necessary”.
Disclosure and response to Clatz Letter
[31] At 12:09pm AEST on Wednesday, 19 August 2020, by way of email, my Associate replied to the Clatz Letter on my behalf as follows:
“Dear Mr Trindale [sic]
AB2019/196 - Application by Hanson
Your correspondence to the Deputy President of today’s date is noted.
Should the Respondent wish to press its claim for recusal, it should do so by way of formal application (i.e. by filing a Form F1). It is noted that judgement in the substantive proceedings is imminent.
Alternatively, having regard to what follows, the Respondent is invited to respond to the contents of Mr Morgan’s email of 18 August 2020 (should it wish to do so).
By way of disclosure, the Deputy President notes as follows:
1. On or about 14 August 2020, in preparing his written reasons for decision in this matter, the Deputy President considered it appropriate to inquire of the parties as to the current employment status of Mr Hanson. He initially instructed his Associate to contact the ALAEA by telephone to inquire “only” as to the current employment status of Mr Hanson. The Deputy President’s Associate contacted Mr Morgan of the ALAEA by telephone in respect of this inquiry. The contents of Mr Morgan’s email reply of 18 August 2020 go beyond the communication that was had over the telephone, albeit they reflect Mr Morgan’s response (during the discussion with the Associate), being that his understanding was that the Applicant remains employed by the Respondent, but also remains off work on Workers’ Compensation. At the conclusion of the conversation, Mr Morgan stated to the Deputy President’s Associate that he wished to seek instructions so as to confirm his understanding of Mr Hanson’s employment status. Mr Morgan’s understanding, and his desire to obtain instructions as to that understanding, was the only information passed onto the Deputy President.
2. Prior to your correspondence of today, it was the Deputy President’s intention to also have his Associate contact the Respondent’s legal representatives to clarify its position as to Mr Hanson’s employment status prior to any judgement being delivered. That was to occur after Mr Morgan had clarified his understanding of Mr Hanson’s employment status, which Mr Morgan did by way of email yesterday.
3. Upon reflection, the Deputy President readily concedes that the inquiry made would have been more appropriately (and properly) done by simply emailing both parties. The Deputy President apologies for any concern caused as a result of his approach to the making of the inquiry.
4. Absolutely no other communications with any person about this matter have occurred since judgement was reserved (by the Deputy President, his Associate, or anyone on his behalf).
Your correspondence appears to take the position that the communication between the Deputy President’s Associate and Mr Morgan is a black and white case of apprehended bias, giving rise to a “necessity” for the Deputy President to immediately disqualify himself from the proceedings. That is not the legal position, and is a selective gloss on the case quoted. Indeed, it is a gloss on all case law concerning recusal for apprehended bias. In this regard, the Deputy President notes the statement of Justice Mason in Re JRL; Ex parte CJL (1986) 161 CLR 342 (“Re JL”) (at 351):
“As McInerney J. pointed out, the receipt by a judge of a private communication seeking to influence the outcome of litigation before him places the integrity of the judicial process at risk. A failure to disclose that communication will seriously compromise the integrity of that process. On the other hand, although the terms of a subsequent disclosure by the judge of the communication and a statement of its effect in some, perhaps many, situations will be sufficient to dispel any reasonable apprehension that he might be influenced improperly in some way or other, subsequent disclosure will not always have this result. The circumstances of each case are all important. They will include the nature of the communication, the situation in which it took place, its relationship to the issues for determination and the nature of the disclosure made by the judge”.
The Deputy President further points out that the concerns you raise in this matter are in no way comparable with the factual circumstances in Re JL.
The Deputy President will not be referring this matter to the President. As you ought be aware, the President does not have authority to interfere with the decisions of other Members, including procedural decisions, except in properly constituted appeal proceedings. Under s.582(3) of the Fair Work Act 2009, Commission Members are not subject to direction from the President or anyone else about decisions they make in matters allocated to them”.
(hereinafter Commission Disclosure)
[32] I observe that I state in the Commission Disclosure that the contents of the Lawyer Disclosure:
(a) “go beyond the communication that was had over the telephone, albeit they reflect Mr Morgan’s response (during the discussion with the Associate), being that his understanding was that the Applicant [Mr Hanson} remains employed by the Respondent, but also remains off on Workers’ Compensation”;
(b) “[Mr Hanson’s lawyers] understanding, and his desire to obtain instructions as to that understanding, was the only information passed onto the Deputy President”; and
(c) that I instructed my Associate to make an inquiry of the ALAEA “only as to the current employment status of Mr Hanson”.
[33] Despite not challenging the Commission Disclosure, or making any further inquiries of me about it, REX seeks to rely upon what is said in (a) to argue either a gap in the Commission Disclosure, or an inconsistency in the Commission Disclosure, or an inconsistency between the Lawyer Disclosure and the Commission Disclosure. I reject the argument, and the inconsistent formulation of the words of the Commission Disclosure as asserted by REX.
[34] Items (a), (b) and (c) must be read together, and the Commission Disclosure must be read as a whole. The only information passed onto me by my Associate as to his conversation with Mr Morgan on 14 August 2020 was as set out in (b). This is consistent with my statement in (a) that, to my knowledge, the Lawyer Disclosure goes beyond what was discussed with my Associate. It is also consistent with the limited inquiry I directed my Associate to make in (c). I say more about REX’s assertions as to inconsistency, and its unsuccessful attempt to ground its Recusal Application upon same, later in this decision.
[35] At 4:50pm AEST on Wednesday, 19 August 2020, REX’s lawyer wrote to my Chambers, putting the Commission on notice that the Respondents intended to file a Form F1 (containing a formal application for recusal). I repeat that at no time prior to or after filing the Form F1 has REX sought to clarify with me, or obtain further particulars concerning, the contents of the Commission Disclosure.
Direction to Reply
[36] On Thursday, 20 August 2020 at 12:04pm AEST, my Associate sent an email on my behalf, directing REX to confirm by way of return email that Mr Hanson’s current employment status is that he remains employed by REX, but is otherwise off work on worker’s compensation (Direction To Reply). That email reads:
“Dear parties,
AB2019/196 - Application of Hanson
I refer to the email below.
By 12:00pm AEST (midday) on Friday, 21 August 2020, the Deputy President requests that the Respondent confirms that the Applicant’s employment status is that he remains employed by REX (but is otherwise on worker’s compensation)”.
[37] At 1.20pm AEST on Thursday, 20 August 2020, REX filed a Form F1 seeking my recusal.
[38] On Friday, 21 August 2020 at 10:18am AEST, and in respect of the Direction to Reply, REX’s lawyer wrote to my Chambers as follows:
“Dear Associate
Thank you for your email.
Given that the Respondents have made application that the Deputy President recuse himself, we consider that the appropriate course would be to stay this direction until the recusal application is heard and determined. Accordingly we request that the direction be stayed.
We would be grateful if you could bring this request to the Deputy President's attention”.
[39] Later that same day at 10:56am AEST, my Associate replied to REX’s lawyer on my behalf as follows:
“The Deputy President advises that the direction will not be stayed.
The Deputy President expects that the Respondent will comply with the direction as put in my email of 20 August 2020”.
[40] Later that same day at 11:45am AEST, REX’s lawyer wrote to my Chambers as follows:
“Dear Associate
Thank you for email.
As directed, the Respondent (Regional Express Holding Ltd) confirms that "the Applicant’s current employment status is that he remains employed by REX, but is otherwise on worker’s compensation."
Please note that in circumstances where an application for recusal has been made and a stay of the direction has been sought and refused, the compliance of the Respondent with the direction from the Deputy President does constitute an acceptance of, or consent to, the Deputy President continuing to hear and determine the proceeding and the Respondent maintains its application for recusal”.
[41] I note that REX’s lawyer shortly followed this correspondence with the following clarification:
“Dear Associate
I apologise for the error in the below email - the word "not" was missing from the third paragraph which should read:
Please note that in circumstances where an application for recusal has been made and a stay of the direction has been sought and refused, the compliance of the Respondent with the direction from the Deputy President does not constitute an acceptance of, or consent to, the Deputy President continuing to hear and determine the proceeding and the Respondent maintains its application for recusal”.
[42] I observe that whilst REX’s lawyer advises that the foregoing response is without prejudice to REX’s position that I recuse myself, he confirms (on behalf of REX), as a matter of fact, that Mr Hanson’s employment status is broadly consistent with that stated by Mr Hanson’s lawyer in the Lawyer Disclosure (i.e. Mr Hanson remains employed by REX, and remains on worker’s compensation).
The role of Mr Hanson in these recusal proceedings
[43] The Clatz Letter states that my recusal is “necessary”. It asks that I immediately recuse myself and refer the matter to the President for reallocation to another member of the Commission. In doing so, the Clatz Letter asserts that my determination as to recusal should be made by me absent any input from Mr Hanson. That said, during the hearing, REX’s counsel sought to recalibrate the REX position by falling back to the trite proposition that it is a matter for the Commission as to how its proceedings are conducted:
“THE DEPUTY PRESIDENT: I mean I'm reading this [the Clatz Letter] as an application. You put it as high as an actual application for recusal.
MR MAHENDRA: There doesn't have to be an application for you to recuse yourself. If pure attention is drawn to the relevant facts, then it's a matter for you as to whether you recuse yourself.
THE DEPUTY PRESIDENT: Well, where's the - is there any opportunity for Mr Hanson to reply to this?
MR MAHENDRA: Mr Hanson shouldn't be taking a position on this application.
THE DEPUTY PRESIDENT: Well, he's not taking a position.
MR MAHENDRA: He is, he's opposing it. That's abundantly clear from the submissions.
THE DEPUTY PRESIDENT: No, he's entitled to put his views, isn't he, in the context of the implications of me having to recuse myself at this stage of the proceedings?
MR MAHENDRA: If you consider that to be appropriate, then certainly you've got the discretion to invite that. It's certainly not a right that a party has. A judge, on his own motion, may decide, "Okay, there's an issue here and I need to recuse myself".
THE DEPUTY PRESIDENT: So he's not entitled to have any say, it's really just up to me?
MR MAHENDRA: It is up to you. Absolutely”. 17
[44] In regard to the foregoing transcript exchange, I make the following points:
(a) REX’s approach as to how the Recusal Application should be dealt with is significantly inconsistent. In this regard, firstly, in the Clatz Letter, REX requests that I immediately recuse myself in Chambers (and without further hearing). Secondly, in its written submissions, REX spends a number of paragraphs setting out the reasons why it considers an oral hearing must occur (and objects to its Recusal Application being determined without an oral hearing). Thirdly, at the hearing, REX’s counsel submitted that the process to be adopted is a matter for the Commission.
(b) The fact that it is a matter for the Commission as to how it conducts proceedings before it, including pursuant to its statutory and inherent powers, is not to the point. Mr Hanson’s counsel highlighted that whilst recusal proceedings are not inter parties, any determination that I recuse myself from these proceedings would have a significant effect upon Mr Hanson’s case, and him personally. This is especially so where the hearing was conducted over six days, with a high degree of contested evidence, and I have already determined (and issued my reasons for decision in) the Dispute Application. Hence, Mr Hanson does not appear in the recusal proceedings in opposition to the Recusal Application, but essentially appears as a contradictor to areas of approach urged upon the Commission by REX that are fallacious and/or erroneous, and might give rise to an injustice being visited upon Mr Hanson if accepted. I wholly concur with these submissions by Mr Hanson’s counsel. Indeed, in my view, it would only be in the most unusual of circumstances that a determination as to recusal would be made on the basis of assertions set out in a letter to chambers. The issues in REX’s Recusal Application are not unusual. Rather, the issue of ex parte communications giving rise to apprehensions of bias are matters that have been adjudicated upon multiple times before, in courts and tribunals across Australia.
Apprehended bias is not to be accepted too readily
[45] REX’s approach to my recusal, as urged upon me in the Clatz Letter, is also contrary to legal authority. A decision-maker should not disqualify himself or herself without good cause, and must not reach that conclusion lightly. 18
[46] In Clenae Pty Ltd v ANZ Banking Group Ltd, 19 Callaway JA observed:
“As a general rule, it is the duty of a judicial officer to hear and determine the cases allocated to him or her by his or her head of jurisdiction. Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded disqualification application”. 20
[47] In Re JRL; Ex parte CJL (Re JRL), 21 Mason J stated:
“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit 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”. 22
[48] In Johnson v Johnson (Johnson), 23 Kirby J stated:
“Such considerations lay behind the salutary warning given in Re JRL; Ex parte CJL that judicial officers in Australia were obliged to discharge their professional duties unless disqualified by law. They were told not to accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek such disqualification without justification. Applications of that kind might sometimes be made in the hope of securing an adjudicator more sympathetic to a party's cause. Or they might be made because of the strategic advantage that may thereby be secured, especially the interruption of lengthy proceedings and the delays consequent upon obtaining a fresh start in a busy court or tribunal”. 24
(footnotes omitted)
[49] In Antoun v R, 25 Kirby J stated:
“Impartial hearings and over-ready disqualification
It is true that, in the oft-repeated words in Re JRL; Ex parte CJL, this Court has "loudly and clearly" expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose amongst the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases. It was not questioned in this appeal.
The duty to discharge judicial functions is necessarily subject to any disqualifying conduct on the part of the judge subject to a recusal submission. The observations in Re JRL are a corrective to over-ready disqualification …”. 26
[50] From the case law extracts set out above, the short point is that claims as to recusal, in relation to bias or apprehended bias, are serious matters that require proper scrutiny, lest they become encouragement to, or grist to the mill for, the ill-informed and/or unworthy advocate. The submission by REX’s counsel that I could have simply treated the Clatz Letter as the only foundation for me to “necessarily” and/or immediately recuse myself from the determination of the Bullying Application, would not only be an approach bad at law, but bad in terms of procedure and natural justice. To the extent that REX asserts otherwise, I reject the assertion.
Legal principle – apprehended bias
[51] In Ebner v Official Trustee in Bankruptcy (Ebner), 27 the majority of the High Court stated of the ‘apprehension of bias principle’:
“[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
[7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror”. 28
[52] ‘Impartiality’ arises from a finding as to ‘prejudgement’, and refers to what goes on (actual bias), or appears to go on (apprehended bias), in the mind of the decision-maker. ‘Independence’ concerns the relationship of the decision-maker to others. Ultimately, the core principle behind both impartiality and independence is that of ‘prejudgement’. Of note is the public lamentation by the Hon. Michael Kirby AC CMG 29 of the transformation in Ebner away from an assessment of “independence” as a stand-alone test for bias:
“The question arose in the decision in Clenae Pty Ltd and Ors v Australia and New Zealand Banking Group Ltd [(2000) 205 CLR 337; [2000] HCA 63].That was one of two appeals, heard at the same time, concerned with aspects of the law of judicial recusal in Australia. They were heard by the High Court of Australia and decided in December 2000. The companion decision was Ebner v Official Trustee in Bankruptcy [(2000) 205 CLR 337 at 346-347; [2000] HCA 63, [13]-[16]]. In Ebner the Court unanimously dismissed an appeal from the Federal Court of Australia [Ebner v Official Trustee in Bankruptcy (1999) 91 FCR 353]. It affirmed the decision of that Court rejecting an obligation for recusal. However, in Clenae the Court was divided [Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting]. By majority it held that the judge in question in that case, (Mandie J, in the Supreme Court of Victoria) had not been disqualified so that his decision (and that of the Court of Appeal of Victoria affirming it [Clenae Pty Ltd v ANZ Banking Group Ltd [1999] 2 VR 573]) should stand. I dissented.
In reaching their conclusion in Clenae, the majority held that there was no separate rule of automatic disqualification that applied where a judge had a direct pecuniary interest in a party to a case over which the judge was presiding. Instead of applying a principle framed in terms of the independence of the judge from the parties, Clenae held that the proper approach was to apply the ‘apprehension of bias principle’ to all cases of suggested recusal. Thus, the test for all cases in which it was suggested that a judge was disqualified, by reason of interest, conduct, association, extraneous information or some other circumstance, was whether the judge might not bring an impartial mind to the resolution of the question which the judge was required to decide. It was thus a test of impartiality. Not independence”. 30
(my emphasis)
How to ‘apply’ the principle of apprehended bias
[53] The ‘principle of apprehended bias’ does not exist in a vacuum (let alone an idealistic vacuum). Referring to broad statements of the principle is all well and good, but the decided cases fall within a much narrower compass. Indeed, no matter how many times one may shout out a principle from the rooftops, the actual question for determination in cases of apprehended bias is the proper ‘application’ of the principle. In this regard, the majority of the High Court stated in Ebner:
“[8] 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”. 31
(my emphasis)
[54] When referring to the “test” to be applied based upon the foregoing passage from Ebner, and flowing from the words of the last sentence (commencing with “only then”), 32 Gageler J identified the ‘application’ of a three-step approach in Isbester v Knox City Council:33
“The first is that it is an "objective test of possibility, as distinct from probability". The second is that its application necessarily involves three analytical steps. Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way”. 34
[55] In Minister for Immigration and Multicultural Affairs v Jia Legeng, 35 Hayne J set out the three-step test from Ebner in a different way (in terms of contentions):
“Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case”. 36
[56] In CNY17 v Minister for Immigration and Border Protection (CNY17), 37 Kiefel CJ and Gageler J identified the application of the third step in the Ebner as critical:
“Taking those two steps is necessary to provide the foundation for the third and critical step in the application of the bias rule. That is the step of assessing whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred”. 38
(my emphasis)
[57] In respect of recusal applications based upon apprehended bias, the ‘application’ of the test in Ebner has been described as “not in doubt”. 39
The three-step test in Ebner is to be ‘applied’ in all cases of apprehended bias in Australia
[58] The established categories of apprehended bias giving rise to recusal (or disqualification) are broadly:
(a) interest;
(b) conduct;
(c) association; or
(d) extraneous information. 40
[59] REX has not identified the category or categories of apprehended bias it relies upon in advancing its Recusal Application. Despite this unhelpful lack of precision, and without seeking to discount or otherwise undermine REX’s contentions, it would appear that in essence REX relies upon the following categories of apprehended bias:
(a) "conduct, either in the course of, or outside, the proceedings" (arising from the ex parte communication between my Associate and Mr Hanson’s lawyer, on 14 August 2020); and "cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias" (arising from the contents of the email sent by Mr Hanson’s lawyer to my Associate on 18 August 2020) (together Recusal Issue One); and
(b) "conduct, either in the course of, or outside, the proceedings" (arising from the so-called “emphatic” language used in the Commission Disclosure, including to the extent that this disclosure replies to the Clatz Letter) (Recusal Issue Two).
[60] REX’s case therefore falls squarely within categories of apprehended bias (i.e. conduct and extraneous information) that the High Court has repeatedly said are subject to the proper application of the three-step test laid down in Ebner. As the majority (Gummow ACJ, Hayne, Crennan and Bell JJ) of the High Court stated in Michael Wilson & Partners Limited v Nicholls: 41
“Apprehended bias – the test to be applied
It has been established by a series of decisions of this Court (see, for example, Livesey v New South Wales Bar Association (1983) 151 CLR 288; Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Smits v Roach (2006) 227 CLR 423; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283) that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. No party to the present appeal sought in this Court, or in the courts below, to challenge that this was the test to be applied.
As the plurality in Johnson v Johnson explained, ‘[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues’”. 42
[61] More recently, in CNY17, a unanimous High Court (Kiefel CJ, Gageler, Nettle, Gordon and Adelman JJ) again approved the test in Ebner as the one to be applied in all cases of apprehended bias. 43
[62] Notwithstanding REX’s counsel’s submissions to the contrary, 44 I consider that I am bound to follow and properly ‘apply’ the three-step test set down in Ebner in making my determination in this Recusal Application (for all categories of asserted apprehended bias). Indeed, it appears to me to be without any doubt that the test under Australian law, across the board in cases of alleged apprehended bias, is the three-step test set out in Ebner. That test is essentially one of “impartiality”, with the requirement for a “logical connection” to be clearly identified before any finding as to “prejudgement” can “reasonably” be assessed. Many refer to the Ebner test as the ‘might’ and ‘might not’, or double ‘might’, test.45
[63] In this case, it would be wrong at law to apply the test set down in Ebner in a manner different to that laid down by the High Court. For example, it would be wrong at law to recuse myself only because an ex parte communication is the foundation for, or conduct giving rise to, asserted apprehended bias. In other words, no matter what authorities, other than Ebner, might be submitted by REX to apply (in addition to or in substitution for the application of the test in Ebner), the principle of precedent requires that the three-step test in Ebner always be applied to determine whether there is ‘prejudgement’ that can “reasonably” be said to give rise to impartiality.
[64] For clarity, I am not aware of there being any foundation at law to the contention that there are subclasses of the Ebner test to be applied concerning questions of apprehended bias in Australia. Nor would it be correct to assert, as REX does, that the three-step test in Ebner only applies to cases of apprehended bias “generally” 46 (howsoever one might choose to define the word ‘generally’).
The law of apprehended bias is all about ‘prejudgement’ not ‘predisposition’
[65] A finding as to ‘actual’ bias is based upon ‘prejudgement’ incapable of being altered by evidence or argument (i.e. not ‘predisposition’). To be disqualified for actual bias it must be definitively established that a decision-maker is so committed to a particular outcome that he or she will not alter that outcome, regardless of evidence or argument presented.47 This requires an assessment of the state of mind of the decision-maker.48
[66] Just like actual bias, ‘apprehended’ bias is also directed to ‘prejudgement’. In other words, the tests as to both actual and apprehended bias are not directed towards a mere ‘predisposition’. 49
[67] It is equally important to note that the test as to apprehended bias depends upon whether there is a “real”, rather than a “remote”, “possibility” (not probability) of bias. 50 The fact that a party might have concerns that a decision will not be made in their favour has never been a ground that supports a claim as to apprehended bias.
[68] In pointing out that “natural justice does not require the absence of any predisposition or inclination”, 51 Gleeson CJ and Gummow J of the High Court made the point that:
“[d]ecision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion”. 52
The test in Ebner is about ‘apprehended’ bias, not ‘suspicion’ of bias
[69] Apprehended bias is founded upon a ‘perception’, not a ‘suspicion’. As the High Court stated in Livesey v New South Wales Bar Association: 53
“Although statements of principle commonly speak of “suspicion of bias”, we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning”. 54
[70] The foregoing is consistent with:
(a) the decision of the English Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd (Locabail), 55 which identifies that a test based upon “reasonable suspicion” is something different to a test based upon an ‘apprehension’ of bias;56 and
(b) the statement by Kirby J in Johnson that the fair-minded and informed lay observer is not “unduly sensitive or suspicious”. 57
‘Logical connection’ required for apprehended bias
[71] In the case of Hot Holdings Pty Ltd v Creasy, 58 Gleeson CJ stated:
“… it is not sufficient to address the issue, at a high level of generality, by reference to ethical standards … Nor is it sufficient to characterise the "process" as "tainted", and note that an observer who knew some of the facts, but not others, might be suspicious about what had gone on”. 59
(my emphasis)
[72] Consistent with the three-step test set out in Ebner, a party applying for a decision-maker to recuse himself or herself must be able to identify a “logical connection” between the alleged apprehension of bias, and the prejudgement leading to an asserted finding as to impartiality. Bare assertions are not sufficient. 60 Asserted apprehensions of bias must be reasonable. The test is taken from the perspective of a hypothetical fair-minded and informed lay observer, and is not concerned with fanciful apprehensions of bias.61 A party’s subjective or idealistic views as to the appropriateness or ethics of particular conduct or communications are irrelevant.62
[73] In the absence of the key component of ‘logical connection’ in any claim as to apprehended bias, it will never be sufficient for one to simply assert that an absence of impartiality (or bias) exists. Indeed, just because it might be said that a decision-maker lacks independence (real or apprehended), or has a particular disposition, does not mean that they are impartial, or will otherwise be impartial. To suggest otherwise would be to totally misunderstand and misapply Ebner.
[74] In Michael Wilson & Partners Ltd v Nicholls, 63 the majority (Gummow ACJ, Hayne, Crennan and Bell JJ) stated:
“… the bare assertion that the judge appeared to be biased through prejudgement would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgement and the possibility of departure from impartial decision making”. 64
(my emphasis)
[75] Dr Matthew Groves, 65 of the Monash University Law Faculty, makes the following observations of the test in Ebner:
“One practical obstacle of this test is the requirement that those claiming bias must explain the ‘logical connection’ between the suggested source of bias and its supposed effect. A party claiming bias cannot simply point to an alleged source of bias and presume that its effect is so obvious it can be inferred without any real explanation. A claim that does not clearly explain why a source of alleged bias may have the supposed effect is likely to be rejected as a ‘bare assertion’ of an interest. This second step of the Ebner test requires rigour because the courts have stressed that a claim of bias must be ‘firmly established’. It is not enough that the facts raised in support of the claim create ‘a vague sense of unease or disquiet’ in the fair-minded and informed observer whose judgment is used to determine bias claims”. 66
(citations omitted)
[76] It follows from the authorities and academic extract quoted above that any determination as to apprehended bias in the context of “logical connection” is not one to be determined simply based upon what those in the legal profession (including decision-makers or lawyers) consider to be appropriate conduct, or purportedly unassailable ‘golden rules’ of conduct. Any claim as to logical connection will never be grounded upon the mere assertion that ‘one plus one equals two’. Further, overemphasising some facts, minimising others, and casting other facts as irrelevant, can only give rise to error in that the entire factual matrix will not have been taken into account when assessing the relevant logical connection.
Private (ex parte) communications are not sufficient, in and of themselves, to establish a ‘logical connection’
[77] In Construction, Forestry, Mining and Energy Union v LCR Group Pty Ltd (LCR Group) the Full Bench of this Commission stated: 67
“[30] The circumstances in which ex parte communications between a party to proceedings and a judge or a tribunal member might give rise to a reasonable apprehension of bias were discussed by the Federal Court Full Court in John Holland Rail Pty Ltd v Comcare as follows:
“[11] As initially propounded before us, John Holland’s argument apparently assumed (contrary to the analysis in relevant authorities) the existence of a general rule that any unilateral communication by a party with a judge’s chambers is a serious impropriety the acquiescence in which, by an associate, could give rise to a reasonable apprehension of bias in the judge.
[12] The rule is that a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case. See, for example, Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (“Re JRL”) at 346 (Gibbs CJ) and 350 (Mason J), both citing Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322 at 337 and Reg. v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122 at 127. In this context, communications made by one party without the knowledge of the other are governed by the principle that a judge should disqualify himself from hearing a matter where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issues in the case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (“Ebner”) at 344; British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; [2011] HCA 2 (“British American v Laurie”) at 464-5, [139]-[140]; Re JRL at 351. This is the apprehension of bias principle.
[13] In the course of argument, counsel for John Holland qualified the above submission, contending that a unilateral communication between a party (or practitioner) and judge’s chambers would give rise to a reasonable apprehension of bias, unless it were established by affidavit evidence (or, presumably, a similarly high degree of proof) that the unilateral communication related solely to procedural or practical matters. We return to this submission hereafter.
...
[22] As already stated, the authorities do not support the proposition that there is any necessary impropriety if a party or practitioner communicates unilaterally with a judge’s chambers. Whether or not such a communication is improper depends on all the circumstances, including, principally, its nature, subject matter, and perhaps, its sequence and extent. There is no impropriety in a party’s unilateral communication with chambers in relation to procedural, administrative or practical matters, although a sustained sequence of communications not circulated to the other parties, even in relation to matters of this kind, could, at a certain point, become unprofessional or improper in the absence of some good reason: see, for example, Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540.
[23] On the other hand, save in the unusual circumstances warranting an ex parte application, it is clearly improper for parties or their practitioners to attempt to communicate unilaterally with a judge’s chambers in relation to the substantive issues in the litigation. Every communication of this kind must be circulated to, or made in the presence of, the other parties (unless the other parties have previously consented to its unilateral communication to the judge: see Fisher at 352). Breach of that principle is not only an impropriety on the part of the party making the communication but may, in certain circumstances, found, or be a factor contributing to, a reasonable apprehension of bias, alternatively, lack of procedural fairness, on the part of the judge. It does not follow from this, however, that the mere making of a unilateral communication raises a presumption of impropriety (as John Holland’s argument assumed), thereby casting on the parties involved (including the practitioner, chambers staff who received or engaged in the communication and, in some cases, the judge) an onus to prove the contrary by means of affidavit or a similar level of proof. In the present case, moreover, the mere fact that Comcare’s solicitor declined to make an affidavit setting out his conversation with the judge’s associate could not make out a case for apprehended bias that did not otherwise arise”.
[31] Although John Holland concerned a unilateral communication initiated by a party with a judge’s chambers and not the opposite situation here where the communication was initiated by the tribunal member, we nevertheless considered that the principle stated in John Holland was applicable. We therefore approached the issue on the basis that an ex parte communication, even about a substantive issue, would not automatically constitute a basis for a reasonable apprehension of bias, but it might do depending on the circumstances of the particular case. The two-step test in Ebner remained to be satisfied.
[32] While the simple fact of the ex parte communications might have been sufficient to satisfy the first step of the test, we did not consider, in relation to the second step, a fair-minded observer might perceive a logical connection between those communications and the possibility that the Senior Deputy President might not bring an impartial mind to the issue”. 68
(my emphasis)
[78] In adopting the reasoning of the Full Bench above, I point out that ex parte communications do not give rise to an assumption as to the existence of a ‘bright line’ rule when it comes to assertions of apprehension of bias. It follows that it is not sufficient for a party to simply demonstrate or assert the existence of such a hard and fast (or drop dead) rule as to ex parte communications without identifying how the rule is said to apply to the facts and circumstances of a particular case.
[79] REX’s written and oral submissions refer me to various authorities that (in summary) state that there is (or in effectively is) a “golden rule” that there should be no ex parte communication between a decision-maker and a party (and/or their legal representative) to proceedings, or a witness in the proceedings. 69 The golden rule is said to be even more important after judgement has been reserved. For the purposes of this decision, I need not quarrel with, or otherwise challenge, the existence of this golden rule. Indeed, these proceedings concern a claim as to an apprehension of bias, not the existence of a golden rule. In this regard, the golden rule is not a bright line rule, a hard and fast rule, nor a drop-dead rule in cases of apprehended bias. The existence of the golden rule is simply one matter, albeit an important matter, amongst a whole range of matters in all the circumstances of the case, that the fair-minded and informed lay observer will take into account.
[80] Further, I note that REX has identified from the authorities it relies upon that an ex parte communication in breach of the golden rule can never be “innocuous” 70, and if it has the “purpose” of “influencing” a decision-maker, the communication may amount to contempt, even serious contempt.71
[81] I note that I reject the assertion that Mr Hanson’s lawyer, via the Lawyer Disclosure or otherwise, has sought to “influence” me in my determination of these proceedings (see paragraphs [146] to [149] of this decision).
[82] I equally reject REX’s submissions, to the extent that they seek to assert, directly or indirectly, that a breach of the golden rule becomes the main or central determinative factor, or the most significant or over-riding consideration (in the mind of the fair-minded and informed lay observer) on the issue of prejudgement, because a breach of the golden rule:
(a) can never be innocuous; and/or
(b) has the potential to amount to, or be conflated with, contempt.
[83] An assertion of this kind is not supported by cases such as Ebner, Locabail, and the decision of the Full Bench of the Commission in LCR Group.
[84] There are no separate or free-standing rules of automatic recusal or disqualification in cases of apprehended bias, nor are there rules that elevate breaches of, for example, the golden rule, into an issue beyond but one of the factors to be taken into account by the fair-minded and reasonable lay observer. This is so whether or not such ex parte communication:
(a) occurs after judgement has been reserved; and/or
(b) was initiated by the decision-maker themselves.
[85] The fact that a one-sided communication, at the time it is made, occurs absent the consent or knowledge of the party that is not involved in or otherwise aware of the communication, is essentially the definition of an ex parte communication. Indeed, to the extent that REX has sought in these proceedings to split up and/or break down the specific elements of the ordinary meaning of the term “ex parte communication”, it takes its case no further.
[86] In his oral submissions, REX’s counsel drew heavily from the judgement of the New South Wales Court of Appeal in The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (Tynan Motors). 72 The difficulties in placing any particular reliance upon the decision in Tynan Motors in the facts and circumstances of this Recusal Application are that:
(a) the comments of each member of the Court in Tynan Motors, on the question of apprehended bias arising from an ex parte communication, are all in obiter, with the ultimate question as to the existence of apprehended bias left undecided. 73 Further, the obiter remarks of the court do not deal with the three-step test set down in Ebner;74
(b) unlike in this Recusal Application, where the ex parte communication occurred between an Associate and a lawyer for a party, Tynan Motors concerned an ex parte communication directly between a judge and counsel for one of the parties;
(c) Tynan Motors concerns an appeal in which the conduct said to give rise to apprehended bias appears not to have been fully investigated in the court below. 75 As Young CJ states “Although I do take a serious view of this matter, it may be that it is just a storm in a teacup which, if it were able to be fully investigated, would just pass one by”.76 Conversely, in this Recusal Application, the conduct complained of by REX has been disclosed, with the contents of such disclosure set out in the unchallenged Commission Disclosure, the Lawyer Disclosure, the transcript of hearing on 27 October 2020, and these reasons.
(d) Young CJ, who authored the leading judgement in Tynan Motors, makes the point that where a suspicion is raised in relation to the existence of, or content of, an ex parte communication between a judge and a lawyer for a party, and the lawyer involved fails to give evidence in respect of such communication, the Court’s suspicion deepens. However, there is no analogy to be made in this regard with this Recusal Application. Mr Morgan, as lawyer for Mr Hanson, has confirmed that the best evidence of his conversation with my Associate is as contained in the Lawyer Disclosure.
[87] To the extent that REX relies upon the case of Re JRL, 77 I do not consider it on point, other than to the extent that Mason J refers to the capacity for a subsequent disclosure to “dispel” any issue as to apprehended bias (including by reference to the fact that such disclosure will be taken into account (in full) by the fair-minded and informed lay observer when applying the three-step test set out in Ebner).78
[88] I also note that the facts of Re JRL are not the facts of this case in that:
(a) the question as to apprehended bias in Re JRL arises from a private communication directly between a counsellor (witness) and a judge;
(b) it appears that there was not full disclosure by the judge of the private communication; 79
(c) in terms of what was disclosed by the judge, the High Court found that the communication that did occur between the counsellor and the judge was made “with a view to influencing the conduct of the case”, 80 by a witness (counsellor) that strongly supported the wife’s case and expressed that view to the judge privately on the ultimate issue for determination in the proceedings.81 It was in those circumstances that the High Court said that subsequent disclosure, in those specific facts and circumstances, could not cure what had already transpired;82 and
(d) the private communication (discussion) that was had between the counsellor and the judge was not authorised by the relevant legislation and the applicable family court rules. 83
[89] For the purposes of this decision, I also adopt the analysis and conclusions on Re JRL by Brereton J in Carbotech-Australia Pty Ltd and Anor v Yates & 14 Ors, 84 and by the majority of the Full Court in Charisteas.85
[90] To the extent that REX relies upon the cases of Haldane v Chegwidden (Haldane) 86 and The City of St Kilda v Evindon Pty Ltd (City of St Kilda), 87 I do not consider them to be decisions that alter the law as to apprehended bias as recited in this decision. Further, I note that:
(a) both of these decisions predate Ebner;
(b) neither of these decisions apply the three-step test in Ebner;
(c) the decision in Haldane concerns ex parte communications directly between a decision-maker and a witness; and
(d) the decision in City of St Kilda concerns ex parte communications that occurred directly between a decision-maker and a legal representative.
[91] It is always fraught to compare fact scenarios in apprehended bias claims on the basis that a particular set of facts might be said to be more or less akin to the facts being considered. As Robertson J stated in SZRUI v Minister for Immigration and Citizenship: 88
“It would be an error, in my opinion, to judge one set of facts against another and to reason that, because the present case may be thought to have less extreme facts than another it would or should follow that the present case does not show a reasonable apprehension of bias. In each case the question of fact must be addressed: has apprehended bias been made out in that a properly informed lay person might reasonably apprehend that, as a matter of possibility (real and not remote) the Tribunal might not have brought an impartial mind to bear on the decision in that it had, from that perspective, formed the fixed view that the applicant had fabricated his account of events upon which he based his application for a protection visa and thus that his application failed?”. 89
The importance of ‘context’ to the hypothetical fair-minded and informed lay observer
[92] A party must positively satisfy the decision-maker that the test for apprehended bias is established.
[93] A hypothetical fair-minded and informed lay observer does not rely upon inaccurate or incomplete information. 90
[94] Case law on the question of apprehended bias is replete with statements as to the importance of focusing very (very) close attention to “context”, 91 which is highly fact, and degree, sensitive.92 This is consistent with the test for apprehended bias being an objective one.93 In other words, the focus as to the “setting” in which particular issues as to bias are said to have arisen is perhaps the most important matter to consider when one turns to assess “the ‘logical connection’ between the suggested source of bias, and its supposed effect”94 as to prejudgement leading to impartiality.
[95] This issue of ‘context’ envelopes into the nature of the hypothetical person known, amongst other names, as the “fair-minded and informed lay observer”.
[96] In Johnson, Kirby J articulated the position of the fair-minded and informed lay observer as follows:
“The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. 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. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. 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”. 95
(footnotes omitted)
[97] In Helow v Home Secretary (Helow), 96 Lord Hope of Craighead, citing Kirby J in Johnson, made the following observations about the hypothetical fair-minded and informed lay observer:
“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, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The “real possibility” test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively.
…
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 has 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”. 97
[98] In Isbester v Knox City Council, 98 the High Court majority stated of the knowledge of the hypothetical fair-minded and informed lay observer:
“The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision”. 99
(my emphasis)
[99] In Shaw v The Official Trustee in Bankruptcy of the Australian Financial Security Authority, 100 Wigney J further summarised the position of the fair-minded and informed lay observer:
“The fair-minded lay observer is “postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”: Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [12]. While the fictional or hypothetical observer is not a lawyer and is not assumed to have a detailed knowledge of the law, they are taken to be reasonable and to not be “wholly uninformed and uninstructed about the law in general or the issue to be decided”: Johnson at [53] (per Kirby J citing R v George (1987) 9 NSWLR 527 at 536, per Street CJ). It is necessary to attribute to the fair-minded lay observer knowledge of all of the circumstances of the case: CUR24 v Director of Public Prosecutions [2012] NSWCA 65; 83 NSWLR 385 at [39]”. 101
[176] In preparing these reasons, I have taken the time to listen to and assess the audio file of the hearing on 27 October 2020. That audio file, in my assessment, identifies that on various occasions, many of the statements reflected on transcript, 221 were made by REX’s counsel in a high-pitched voice and patronising tone, whilst other exchanges appear to reflect a predisposition not to engage with, or otherwise provide clarification on, issues raised by me.222
[177] The tentative views of a decision-maker, asking for clarification, putting alternative propositions to counsel, and/or raising or expressing doubts designed to query submissions made as to the facts or the law, so as to elicit further more relevant submissions on the issues to be decided, will not create an apprehension of bias under the three-step test in Ebner. 223 Indeed, decision-makers should not sit silent through a hearing, as such silence can in and of itself amount to a denial of procedural fairness. Further, impatience, irritation, sarcasm or rudeness, in and of themselves, are unlikely to be of such a nature that the three-step test in Ebner will be satisfied.224
[178] To the extent that the conduct of the hearing might be said to breach the fair hearing rule, or to the extent that exchanges between myself and REX’s counsel might be advanced as yet a further bolt-on recusal claim or application, I would reject them. Having reviewed the transcript, and listened to the audio file, in my view, the exchanges between REX’s counsel and myself go no further than exchanges concerning relevant inquiries or clarifications. The fact that REX’s counsel sought to respond to these inquiries by repeatedly making overtly transparent statements on transcript as to so-called ‘interruptions’ is of no particular concern to me, but I do consider it is appropriate to highlight and draw direct attention to same in this decision. In the context of the contentions being advanced by REX in this case as to the law, it is hardly surprising that I sought clarification from REX’s counsel at the hearing on REX’s submissions.
Conclusion
[179] For the reasons set out in this decision, REX’s Recusal Application is dismissed. An order to that effect will be published in due course.
DEPUTY PRESIDENT
Appearances:
Mr D Mahendra (of counsel), instructed by Mr D Trindade of Clayton Utz lawyers, appeared with permission for the Respondent.
Ms L Saunders (of counsel), instructed by Mr S Morgan, lawyer, of the Australian Licensed Aircraft Engineers Association (ALAEA), appeared with permission for the Applicant.
Hearing details:
A hearing was held on 27 October 2020 in Sydney.
Printed by authority of the Commonwealth Government Printer
<PR727192>
1 I note that REX brings this Recusal Application on behalf of itself and on behalf of the individually named respondents Mr Mark Burgess, Ms Maree Penglis, and Mr Png Yeow Tat. (Form F1, 20 August 2020, Item 1.1). Where I refer to “REX” in this decision, I include all respondents unless stated otherwise.
2 Permission for each party to be legally represented was determined in The Australian Licensed Aircraft Engineers’ Association v Regional Express Holdings[2020] FWC 3988, at [3]. Legal representation was not opposed by either party.
3 [2020] FWC 3988.
4 Ibid, at [21]-[22].
5 Applicant’s Submissions on Evidence, 19 December 2019, at [2].
6 Exhibit R9, Annexure “MB-6”, p.344 (definition of “Just Culture” as at October 2018).
7 Exhibit A13, email from Lim Kim Ha to Joanne Patrick, Chris Hine, and John Sharp, 30 June 2019, at 3.10am, Subject “RE: Stephen Hanson – Further Bullying Conduct”.
8 Section 789FD(2) of the Fair Work Act 2009.
9 Note, for example, Transcript, 27 October 2020, at PN469 to PN473.
10 Exhibit A1, at [118]-[199]; As to this evidence being “unchallenged” by REX in the proceedings, see Transcript, 27 October 2020, at PN457 to PN472.
11 Exhibit A1, Annexure “SH-26-1” (pp.70-84), see also Annexures “SH26-2”, “SH-26-3” (pp.85-93).
12 Transcript, 27 October 2020, at PN439; PN442. This does not mean that questions of apprehended bias can only be raised where they concern an issue of liability in a proceeding: Vakauta v Kelly (1989) 167 CLR 568.
13 Section 789FD(1)(b) of the Fair Work Act 2009. Transcript, 27 October 2020, at PN469 to PN473. REX’s position is that the alleged bullying did not occur, and if it did occur, the conduct engaged in by the named individual respondents was nonetheless reasonable management action carried out in a reasonable manner (cf: s.789FD(2) of the Fair Work Act 2009).
14 I refer to the 18 August 2020 email from Mr Morgan as the ‘Lawyer Disclosure’ in that it is a disclosure by a lawyer (Mr Morgan) to REX and the Bullying Respondents. It reflects Mr Morgan’s understanding and recollection of his conversation with my Associate on 14 August 2020.
15 Transcript, 27 October 2020, PN386.
16 Whilst Clayton Utz Lawyers are often abbreviated to “Clutz”, I consider the abbreviation somewhat unfortunate, and have therefore used the abbreviation “Clatz”.
17 Transcript, 27 October 2020, PN629 to PN638.
18 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [19]-[23]; Honda Australia Motorcycle v Johnstone [2005] VSC 387; Re JRL; Ex parte CJL (1986) 161 CLR 342, at 352; Attorney General of New South Wales v Lucy Klewer [2003] NSWCA 295; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272.
19 [1999] 2 VR 573.
20 Ibid, at [89(e)].
21 (1986) 161 CLR 342.
22 Ibid, at 352; see also Wilson J at 359-360.
23 [2000] HCA 48; 201 CLR 488.
24 Ibid at [45].
25 [2006] HCA 2; (2006) 224 ALR 51.
26 Ibid, at [34]-[35].
27 (2000) 205 CLR 337.
28 Ibid, at 344 to 345, [6] to [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
29 Justice of the High Court of Australia (1996-2009); President of the New South Wales Court of Appeal (1984-1996); Chairman of the Australian Law Reform Commission (1975-1984); Rapporteur, Judicial Integrity Group of the United Nations Office on Drugs and Crime (UNODC) (2000-2014).
30 Hon. Michael Kirby AC CMG, Judicial Recusal: Differentiating Judicial Impartiality and Judicial Independence, British Journal of American Legal Studies, Volume 4, Spring 2015, pp.1-18. Citation: 4 Br. J. Am. Leg. Studies (2015).
31 Ibid, at 344 to 345, [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
32 Ibid.
33 (2015) 255 CLR 135
34 Ibid, per Gageler, at [59].
35 (2001) 205 CLR 507.
36 Ibid, per Hayne J, at 564, [185].
37 [2019] HCA 50; (2019) 94 ALJR 140.
38 Ibid, at [21].
39 Antoun v R (2006) ALJR 497; [2006] HCA 2, at [82] per Callinan J (to which Heydon J concurred, at [91]).
40 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at 348-349, [24]; Webb v The Queen (1994) 181 CLR 41 at 71, [74]).
41 (2011) 244 CLR 425.
42 Ibid, at [31]-[32].
43 [2019] HCA 50; (2019) 94 ALJR 140.
44 See, for example, Transcript, 27 October 2019, PN35.
45 Arising from Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at 344, [6]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140 at [132], per Eldelman J.
46 Transcript, 27 October 2019, PN35.
47 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.
48 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, at [33].
49 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531-532, [71]-[72], per Gleeson CJ and Gummow J.
50 Young v Judge Nixon [2008] VSCA 5; Gascor v Ellicott [1997] 1 VR 332; Hodgson v County Court of Victoria [2004] VSC 501; Webb & Hay v R (1994) 181 CLR 41; [1994] HCA 30; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Johnson v Johnson (2000) 201 CLR 488; AJH Layers v Careri (2011) 34 VR 236, [20].
51 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [71].
52 Ibid, at 532, [72].
53 (1983) 151 CLR 288.
54 Ibid, at 294.
55 [2000] QB 451.
56 Ibid, at [21].
57 (2000) 201 CLR 488, at 509, [53].
58 (2002) 210 CLR 438.
59 Ibid, at 447.
60 Young v Judge Nixon [2008] VSCA 5; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; AJH Layers v Careri (2011) 34 VR 236, [22].
61 Gascor v Ellicott [1997] 1 VR 332.
62 R v Nicholas (2000) 1 VR 356; [2000] VSCA 49; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Frugtniet v DPP, Unreported, VSC, 15 April 1996.
63 (2011) 244 CLR 427.
64 Ibid, at [63].
65 BA LLB (Hons), PhD, Senior Lecturer, Faculty of Law, Monash University, Australia. Dr Groves is currently the Professor of Public Law at the Law School of La Trobe University.
66 Dr Matthew Groves, Public Statements by Judges and the Bias Rule (2014), Monash University Law Review, Vol 40, No 1, 2014: 115-147, at 120.
67 [2016] FWCFB 916.
68 Ibid, at [30]-[32]. See also: United Voice v Broadspectrum (Australia) Pty Ltd[2017] FWCFB 871.
69 Re JRL (1986) 161 CLR 342 at 346, 349 to 352; The Anderson Group Pty Ltd v Tynan Motors Pty Ltd [2006] NSWCA 22; 65 NSWLR 400 at [16] to [17], [140] to [146]; Haldane v Chegwidden (1986) 41 SASR 546 at 554 to 555, 559 to 564; The City of St Kilda v Evindon Pty Ltd [1990] VR 771 at 774 to 778.
70 The Anderson Group Pty Ltd v Tynan Motors Pty Ltd [2006] NSWCA 22; 65 NSWLR 400 at 405, [17].
71 Re JRL (1986) 161 CLR 342 at 350.
72 [2006] NSWCA 22; 65 NSWLR 400 at [16] to [17], [140] to [146].
73 Ibid, at 417, [146].
74 Ibid, at 401, point 0.6 of page, Basten JA, Young CJ in Eq, and Santow JA agreeing; 404-405, [16]; 416, [139].
75 Ibid, at [146].
76 Ibid, at 417, [146].
77 Re JRL (1986) 161 CLR 342 at 346, 349 to 352.
78 Ibid, at 351.
79 Ibid, at 345 to 346.
80 Ibid, at 347, 349 and 351.
81 Ibid, at 356 to 357.
82 Ibid, at 357.
83 Ibid, at 355.
84 [2008] NSWSC 540, at [47] to [53].
85 [2020] FamCAFC 162, at [177]. “In this respect, the circumstances of this case can be distinguished from Lilydale and JRL as in both those cases, the judge was in private contact with a key witness, neither of whom was subject to the same professional obligations which apply to counsel.” In this case, Mr Hanson’s lawyer is subject to the professional obligations that apply to a lawyer, and the communication with Mr Hanson’s lawyer was had between my Associate and Mr Hanson’s lawyer (not myself as decision-maker). It goes without saying that the fact that I directed my Associate to communicate with Mr Hanson’s lawyer on my behalf cannot alter the actual facts as to the manner in which the actual communication occurred.
86 (1986) 41 SASR 546 at 554 to 555, 559 to 564.
87 [1990] VR 771 at 774 to 778.
88 [2013] FCAFC 80.
89 Ibid, at [99] per Robertson J.
90 Honda Australia Motorcycle v Johnstone [2005] VSC 387; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Victoria v Psaila [1999] VSCA 193.
91 See, for example, Johnson v Johnson (2000) 201 CLR 488, per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ at [13], and per Kirby J at [53]; British American Tobacco (2011) 242 CLR 283, per French CJ at[47]-[48], and per Heydon, Kiefel and Bell JJ at [144]; Isbester v Knox City Council [2015] HCA 20, per Kiefel, Bell, Keane and Nettle JJ at [20] and [23], per Gageler J at [57].
92 Akers v Kirkland [2019] EWHC 2176 (citing Locabailv Bayfield Properties [2000] QB 451).
93 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, at [76].
94 Public Statements by Judges and the Bias Rule (2014), Groves M, Monash University Law Review, Vol 40, No 1, 2014: 115-147, at 120.
95 (2000) 201 CLR 488, at [53].
96 [2008] 1 WLR 2416.
97 [2008] 1 WLR 2416, at 2418, [2] to [3].
98 [2015] HCA 20.
99 Ibid, at [23].
100 [2020] FCA 1570.
101 Ibid, at [8].
102 (2011) 244 CLR 425.
103 Ibid, at [31]-[32].
104 Ibester v Knox City Council (2015) 255 CLR 135, at [23] (per Kiefel, Bell, Keane and Nettle JJ).
105 [2020] FCAFC 42, at [21].
106 Johnson v Johnson (2000) 201 CLR 488, at [14].
107 Ibid, at [12].
108 Ibid, at [53]; Helow v Home Secretary [2008] 1 WLR 2416, at 2418 [2], 2421 [14], 2427 [39].
109 Ibid.
110 Ibid.
111 Ibid.
112 Livesey v New South Wales Bar Association (1983) 151 CLR 288, at 293-294; Re JRL; Ex parte CJL (1986) 161 CLR 342, at 355, 359, 368, 371-372; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, at 87-88, and 95.
113 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, at [37]. In this case, the Mason CJ and Brennan J attributed knowledge to the fair-minded and informed lay observer that included the circumstances that led to the bringing of the proceedings and the fact that the legal effect of the defences filed would not amount to an admission or belief.
114 In McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504, at 507, [6], Spigelman CJ stressed that relevant statutory provisions must be part of a fair-minded and informed lay observers considerations from the very outset, and not merely some form of qualification at the end of such an assessment. See also, Ibester v Knox City Council (2015) 255 CLR 135, at [23] (per Kiefel, Bell, Keane and Nettle JJ); Greyhound Racing NSW [2006] NSWCA 333, unreported, Beazley, Hodgson and Basten JJA, 27 November 2006, at [111].
115 [2020] FamCAFC 162.
116 Ibid, at [171].
117 Johnson v Johnson (2000) 201 CLR 488, at [12], citing Vakauta v Kelly (1988) 13 NSWLR 502, at 527, adopted in Vakauta v Kelly (1989) 167 CLR 568, at 584-585.
118 Helow v Home Secretary [2008] 1 WLR 2416, at 2422 [23]. See also Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016 332 ALR 128, at [232]; Charisteas v Charisteas [2020] FamCAFC 162, at [176].
119 Charisteas v Charisteas [2020] FamCAFC 162, at [139] to [144], per Strictland and Ryan JJ. Whilst special leave to appeal has been granted by the High Court in respect of this decision, with a hearing likely to occur sometime in 2021, the aspect of the judgement relied upon by Strictland and Ryan JJ is grounded in the decision of Brereton J in Carbotech-Australia Pty Ltd and Anor v Yates & 14 Ors [2008] NSWSC 540, at [52] (the latter as referred to in Construction, Forestry, Mining and Energy Union v LCR Group Pty Ltd [2016] FWCFB 916, at [30], citing John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34).
120 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, at [64].
121 See, for example, Dovade Pty Ltd v Westpac Banking Corporation (1999) 46 NSWLR 168; (1999) 150 FLR 336, at [104]-[108]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at [70] and [171] .
122 Johnson v Johnson [2000] HCA 48; 201 CLR 488, at [45].
123 Helow v Home Secretary [2008] 1 WLR 2416, at [39].
124 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, at [63] and [67].
125 c.f. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at the second last sentence of paragraph [7]. See also, Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, at [26] and [58].
126 Charisteas v Charisteas [2020] FamCAFC 162, at [174], per Strictland and Ryan JJ, citing Whalebone v Auto Panel Beaters & Radiators Pty Ltd (In liq) & Ors [2011] NSWCA 176, at [23].
127 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, 480, [25].
128 Ibid, at 481, [26].
129 See, for example, Re JRL; Ex parte CJL (1986) 161 CLR 342, at 372; Vakauta v Kelly (1989) 167 CLR 568, at 572 and 577; Webb v The Queen (1994) 181 CLR 41, at 53, 91 to 92 (cf: 62 and 79). See also Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29, at [37] to [39].
130 [2020] FamCAFC 162.
131 Ibid, at [178].
132 See Smith v Kvaerner Cementation Foundations Ltd [2007] 1 WLR 370, at [30].
133 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, at [18] to [19], [51] and [55].
134 [2020] FCA 1890.
135 Ibid, at [62]-[63].
136 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436; Wentworth v Graham [2003] NSWCA 240.
137 See paragraphs [132] to [145] of this decision.
138 Transcript, 27 October 2020, at PN571.
139 Transcript, 27 October 2020, at PN258 to PN263.
140 Transcript, 27 October 2020, at PN406 to PN411; PN431 to PN437.
141 Transcript, 27 October 2020, at PN425 to PN426.
142 Transcript, 27 October 2020, at PN31; PN173; PN339; PN413; PN448; PN660.
143 Transcript, 27 October 2020, at PN62 to PN69.
144 Transcript, 27 October 2020, at PN70 to PN87; PN229.
145 Transcript, 27 October 2020, at PN231.
146 Transcript, 27 October 2020, at PN85.
147 Transcript, 27 October 2020, at PN238 to PN251; PN362-PN363.
148 Transcript, 27 October 2020, at PN15 to PN18; PN35.
149 Transcript, 27 October 2020, at PN165 to PN168; PN344 to PN347.
150 Transcript, 27 October 2020, at PN217.
151 Transcript, 27 October 2020, at PN183 to PN191; PN499.
152 Transcript, 27 October 2020, at PN599 to PN600; PN610; PN612; PN636.
153 Transcript, 27 October 2020, at PN541; PN616; PN642; PN644; PN647.
154 Transcript, 27 October 2020, at PN554.
155 Transcript, 27 October 2020, at PN685.
156 Transcript, 27 October 2020, at PN686 to PN687; PN719.
157 Transcript, 27 October 2020, at PN688 to PN689.
158 Transcript, 27 October 2020, at PN693; PN721; PN725.
159 Ibid.
160 Transcript, 27 October 2020, at PN695 to PN699.
161 Transcript, 27 October 2020, at PN734 to PN736.
162 Transcript, 27 October 2020, at PN700 to PN703.
163 Transcript, 27 October 2020, at PN711.
164 (1986) 161 CLR 342.
165 Ibid, at 351.
166 Transcript, 27 October 2020, at PN712.
167 (2006) NSWLR 400.
168 Transcript, 27 October 2020, at PN718.
169 Transcript, 27 October 2020, at PN720 to PN721.
170 Transcript, 27 October 2020, at PN740.
171 Transcript, 27 October 2020, at PN741 to PN745.
172 Transcript, 27 October 2020, at PN746 to PN747.
173 Transcript, 27 October 2020, at PN748 to PN749.
174 See also Transcript, 27 October 2020, at PN743 to PN745.
175 The reference to prejudgement in REX’s submissions is only raised in relation to the Commission Disclosure, as it responds to the assertions made in the Clatz Letter.
176 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, at [63].
177 Transcript, 27 October 2020, PN35; PN493; PN660; PNM746.
178 Transcript, 27 October 2020, PN35.
179 Transcript, 27 October 2020, PN425 to PN426.
180 A copy of the correspondence from REX’s lawyer to Mr Hanson’s lawyer dated 2 September 2020 forms Attachment 1 to the Form F51 request filed by REX on 4 September 2020.
181 Transcript, 27 October 2020, PN117.
182 Transcript, 27 October 2020, at PN104 to PN119.
183 See especially at Transcript, 27 October 2020, at PN61 to PN107; PN274 TO PN295.
184 Transcript, 27 October 2020, PN73; PN79, PN81.
185 Transcript, 27 October 2020, at PN425 to PN426.
186 Note paragraphs [31] to [34] of this decision.
187 The position is not different to an admission as to a fact, made in civil proceedings before a court, that requires leave to subsequently depart from.
188 [2020] FamCAFC 162.
189 Ibid, at [178].
190 Jones v Australian Competition and Consumer Commission [2002] FCA 1054, at [100], per Weinberg J.
191 (2008) 72 NSWLR 504.
192 Ibid, at 525, [106].
193 REX does not outline or otherwise articulate what such evidence would go to, or identify a relevant witness that it would be relying upon to give such evidence. In making assertions such as “if we had known we would have brought evidence”, the party making such an assertion needs to outline and/or specify what such evidence concerns. A failure to do so undermines the credibility of the assertion.
194 Transcript, 27 October 2020, PN406 to PN411.
195 [2015] FWC 4007 (Appeal dismissed in ResMed Ltd v AMWU (2015) 232 FCR 152).
196 Ibid, at [8].
197 See extract at paragraph [19] of this decision.
198 Transcript, 27 October 2020, PN522.
199 Whilst an issue in a proceeding may be “relevant”, it does not follow that such an issue is a live, significant or material issue in proceedings. For example, in this case, REX has never sought to challenge the relevant issue that if bullying has occurred, it poses a risk to Mr Hanson’s health and safety.
200 See extract at paragraph [11] of this decision.
201 See extract at paragraph [18] of this decision.
202 Transcript, 27 October 2020, PN69.
203 Transcript, 27 October 2020, PN164, PN231, PN316, PN387, PN524.
204 Transcript, 27 October 2020, PN413.
205 Transcript, 27 October 2020, PN478.
206 Transcript, 27 October 2020, PN499 (note PN505 concerning REX’s counsel’s concession that the Status Inquiry was, of itself, a valid inquiry to make).
207 Transcript, 27 October 2020, at PN599 to PN600; PN610; PN612; PN636.
208 Helow v Home Secretary [2008] 1 WLR 2416, at [6].
209 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, at 447.
210 Transcript, 27 October 2020, PN601 to PN604.
211 Transcript, 27 October 2020, PN541; PN554; PN584; PN596 to PN598.
212 Kwan v Kang [2003] NSWCA 336 at [55], [69], [95] to [97]; Anton v The Queen (2006) 80 ALJR 497; [2006] HCA 2 at [27], [29] to [33], [36] to [37], [56].
213 (2003) 195 ALR 225.
214 Ibid, at [34].
215 Transcript, 27 October 2020, PN700.
216 Transcript, 27 October 2020, PN693, PN721 and PN725.
217 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.
218 Sharma v Minister for Immigration and Border Protection [2017] FCAFC 227.
219 Transcript, 27 October 2020, PN18; PN22; PN43; PN75; PN121; PN227; PN353; PN355; PN357 to PN364.
220 Transcript, 27 October 2020, PN357 to PN364.
221 Transcript, 27 October 2020, PN18; PN22; PN43; PN75; PN121; PN227; PN353; PN355; PN357 to PN364.
222 Audio file of hearing on 27 October 2020, at 8.30 minutes to 9.16 minutes; 17.44 minutes to 17.50 minutes; 24.40 minutes to 27.00 minutes; 31.00 minutes to 33.30 minutes; 37.00 minutes to 38.30 minutes; 52.00 minutes to 55.00 minutes.
223 Vakauta v Kelly (189) 167 CLR 568, at 571; Anderson v National Australia Bank [2007] VSCA 172, at [81]
224 Galea v Galea (1990) NSWLR 263, at 281; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 131 FCR 102.
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