The Trustee for Hanna 5 Trust T/A Little Henri v The Trustee for B Positive Trust T/A Positive HR Pty Ltd
[2023] FWC 935
•21 APRIL 2023
| [2023] FWC 935 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.376 - Application for costs orders against lawyers and paid agents
The Trustee For Hanna 5 Trust T/A Little Henri
v
The Trustee for B Positive Trust T/A Positive HR Pty Ltd
(U2023/1561)
| COMMISSIONER LEE | MELBOURNE, 21 APRIL 2023 |
Application for recusal from hearing application for costs orders against lawyers or paid agents-no basis for recusal-request for recusal denied.
Introduction
During a Mention Hearing on the 21 March 2023 to deal with the programming of a costs application made by the Respondent in C2022/7662, Ms Jessica Bilston-Gourley made an application that I recuse myself from hearing the matter. This decision deals with that application for recusal.
Background
On 18 November 2022 Mr Joshua Bilston-Gourley (the Applicant) made an application to deal with contraventions involving dismissal under s.365 of the Fair Work Act 2009 (Act) (C2022/7662). The Trustee for Hanna 5 Trust T/A Little Henri (Little Henri) was named as the Respondent in that matter. In the Form F8, Mr Joshua Bilston-Gourley listed Ms Jessica Bilston-Gourley, Founder & Director of The Trustee for B Positive Trust T/A Positive HR Pty Ltd as his lawyer or paid agent. The Respondent in the Form F8A raised a jurisdictional objection that the Applicant was not dismissed.[1]
On 15 December 2022 the matter was listed for Mention Hearing to determine the future programming of the jurisdictional objection. During this Mention Hearing Ms Jessica Bilston-Gourley stated that she was a paid agent for Mr Joshua Bilston-Gourley.
On 20 December 2022 my Chambers sent directions to the parties. The Respondent filed their materials in accordance with the directions.
Ms Jessica Bilston-Gourley, as the Applicants representative failed to comply with the direction to file submissions by Friday, 27 January 2023. Subsequently, the matter was listed for a non-compliance hearing on 31 January 2023.
At the non-compliance hearing, Ms Jessica Bilston-Gourley indicated that she and Mr Joshua Bilston-Gourley could not comply with the directions due to the death of a family member.
Ms Jessica Bilston-Gourley requested an extension of “a fortnight”.[2] I granted the Applicant an extension of one week from the date of the hearing on the basis that Ms Jessica Bilston-Gourley would provide a medical certificate substantiating her reasons for requesting an extension. Mr Joshua Bilston-Gourley was required to file with the Commission and serve on the Respondent their materials by no later than 5.00pm, Tuesday, 7 February 2023. The amended directions only applied on the basis that Ms Jessica Bilston-Gourley provided a medical certificate substantiating the reasons for requesting an extension of time to file their materials by 3 February 2023. A medical certificate was not supplied by the time stipulated. Ultimately, on 7 February 2023 Ms Jessica Bilston-Gourley lodged a Form F50 on behalf of the Applicant, Mr Joshua Bilston-Gourley.
Costs Application (U2023/1561)
On 21 February 2023 The Trustee for Hanna 5 Trust trading as Little Henri (Little Henri) made an application for costs against The Trustee for B Positive Trust T/A Positive HR Pty Ltd (a paid agent in relation to a general protections matter) (B Positive) under s.376 of the Act.
On 28 February 2023, the costs application was listed for Mention Hearing on 7 March 2023. Ms Jessica Bilston-Gourley sought an adjournment of that listing in order to access legal representation. Subsequently, the matter was relisted for Mention Hearing on 21 March 2023.
On 21 March 2023, the Mention Hearing took place to discuss with the parties any directions to set to further progress the matter to a decision point.[3]
During the Mention Hearing, Ms Jessica Bilston-Gourley stated she had made a request to have me removed from dealing with the matter and had sent an email to the Fair Work Commission to that effect.[4] I was not previously made aware that there was an application for me to recuse myself and to date have not been advised that an email was sent to the Commission requesting I recuse myself. However, I accepted Ms Jessica Bilston-Gourley’s verbal application at the Mention Hearing for me to recuse myself.[5] Both Ms Jessica Bilston-Gourley and the representative for Little Henri were content for me to determine the recusal application on the basis of their oral submissions.[6]
I sought directions be made for filing materials relevant to the recusal application, Ms Jessica Bilston-Gourley stated “I've provided everything verbally today. You can use the transcript for it.”[7] The representative for Little Henri also relied on the submissions made at the hearing.
Grounds for the Recusal Application
It appears that the recusal application by Ms Jessica Bilston-Gourley is advanced on four grounds:
- That Ms Jessica Bilston-Gourley has been unfairly treated by me as I did not provide a sufficient extension of time for the Applicant in the previous application (C2022/7662).
- that I am biased as I was involved in conciliating a matter in which she was the Applicant approximately 5 years ago.
- that the current cost application should be dismissed and not progress.
- that I am “extremely rude” and “misogynistic”[8]
I take the application to be one made based on the apprehension of bias principle. There are several and sometimes overlapping categories of cases involving disqualification by reason of the apprehension of bias. These include interest, conduct, association and extraneous information.[9]
The principles stated by High Court in Ebner v Official Trustee in Bankruptcy[10] concerning apprehended bias apply to Ms Jessica Bilston-Gourley’s recusal application. In short compass, a judge or tribunal member 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 or tribunal member is required to decide. This principle gives effect to the requirement that justice should both be done and be seen to be done, which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[11]
The application of the apprehension of bias principle requires two steps: first, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits; and second, there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits.[12] It remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.[13]
In the previous application, Ms Jessica Bilston-Gourley, as a representative for Mr Joshua Bilston-Gourley believed she had been unfairly treated as I did not provide a sufficient extension of time to lodge materials. Ms Jessica Bilston-Gourley did not comply with the directions issued and did not contact my Chambers to advise that the Applicant required an extension. It was not until the non-compliance hearing that Ms Jessica Bilston-Gourley informed me that an extension was required due to personal circumstances. I granted a one-week extension to file materials on the basis that relevant medical certificates would be provided. I considered that in the interest of justice for both parties, an additional one week was reasonable. It is not clear how my conduct is biased against Mr Joshua Bilston-Gourley or his representative Ms Jessica Bilston-Gourley as I provided them additional time to file materials after they did not comply with the initial directions issued.
Ms Jessica Bilston-Gourley submitted that because I conducted a conciliation in a separate matter in which she was the Applicant, an event that occurred approximately 5 years ago, I was biased. I have no recollection of this matter which I indicated at the Mention Hearing. Further Ms Jessica Bilston-Gourley herself stated “I'm sure you don't remember that Commissioner Lee, but I very well remember”[14] and “Five years ago, which you don't recall…”.[15] It is not clear how conducting a conciliation conference in a previous matter, which I do not recall and Ms Jessica Bilston-Gourley indeed offered that I was unlikely to recall could lead me to decide this matter other than on its legal and factual merits or might cause me to be biased.[16]
Ms Jessica Bilston-Gourley states the current cost application should not progress. As no directions have been set, Little Henri has not been provided with an opportunity to file any further material they wish to file in support of their application. It is a matter for me to decide if the costs application has any merit, not Ms Jessica Bilston-Gourley. I have not dismissed the application in order to determine the matter on its factual merits and to do that, Little Henri must be provided with an opportunity to make submissions. Ms Jessica Bilston-Gourley will be given the opportunity to respond to those submissions.
Ms Jessica Bilston-Gourley stated that she believes I am “extremely rude” and “misogynistic”.[17] Ms Jessica Bilston-Gourley did not provide any further explanation, evidence or reasons substantiating her contention regarding my conduct. Ms Jessica Bilston-Gourley’s conduct at both the Non-compliance Hearing and the Mention Hearing was excessively argumentative, she regularly interrupted and spoke over me. As a result of Ms Jessica Bilston-Gourley conduct, I was required to direct her to cease speaking in order for me to conduct the Mention Hearing in an orderly fashion. I reject the claims made by Ms Jessica Bilston-Gourley as to my conduct.
Ms Jessica Bilston-Gourley has not identified any factor which it could be said might lead me to decide a case other than on its legal and factual merits. Nor is there any logical connection between the matters raised and the apprehended deviation from the course of deciding the case on its merits Accordingly, I decline to recuse myself from further dealing with the Application and the Recusal Application is dismissed.
Parties will be issued with directions for the filing of materials for the s.376 application for costs.
COMMISSIONER
[1] Form F8A questions 2.2.
[2] PN12.
[3] PN9.
[4] PN46 – PN48.
[5] PN88.
[6] PN89.
[7] Ibid.
[8] PN108.
[9] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74; cited in Lidong Han v State of Victoria (Department of Education and Training) [2022] FWC 2948 at 6.
[10] [2000] HCA 63, 205 CLR 337; cited in cited in Lidong Han v State of Victoria (Department of Education and Training) [2022] FWC 2948 at 5.
[11] Ibid at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ cited in Lidong Han v State of Victoria (Department of Education and Training) [2022] FWC 2948 at 5.
[12] Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
[13] CNY17 v Minister for Immigration and Border Protection [2019] HC A 50, 268 CLR 76 at [21] per Kiefel CJ and Gageler J.
[14] PN52.
[15] PN63.
[16] Ibid at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ cited in Lidong Han v State of Victoria (Department of Education and Training) [2022] FWC 2948 at 5.
[17] PN108.
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