Together Queensland, Industrial Union of Employees v Executive Director, Public Sector Employees Industrial Relations, Public Service Commission
[2014] QIRC 211
•11 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Together Queensland, Industrial Union of Employees v Executive Director, Public Sector Employees Industrial Relations, Public Service Commission [2014] QIRC 211 |
PARTIES: | Together Queensland, Industrial Union of Employees v Executive Director, Public Sector Employees Industrial Relations, Public Service Commission |
CASE NO: | B/2014/36 |
PROCEEDING: | Application that the Vice President recuse herself from a Full Bench of the Commission hearing CA/2013/8 on the ground of apprehended bias |
DELIVERED ON: | 11 December 2014 |
HEARING DATE: | 30 October 2014 |
MEMBER: | Vice President Linnane |
ORDERS : | The application that the Vice President recuse herself from further hearing CA/2013/8 be dismissed. |
| CATCHWORDS: | APPREHENSION OF BIAS - Application that the Vice President recuse herself from further hearing CA/2013/8 - Category of bias alleged is disqualification by conduct - Test to be applied is whether a fair-minded lay observer might reasonably apprehend that the Vice President might not bring an impartial and unprejudiced mind to the resolution of the question the Vice President will be required to decide in CA/2013/8 - Exchanges on transcript relied upon - Onus is on Applicant to establish a proper basis for its recusal application - Held that Together Queensland had not established any proper basis for its recusal application - Application dismissed. |
| CASES: | Industrial Relations Act 1999, ss 149(2), 149(5) Together Queensland Industrial Union of Employees and Others AND Chief Executive of the Public Service Commission (CA/2013/8) - Decision |
| APPEARANCES: | Mr K. McKay for Together Queensland, Industrial Union of Employees. Mr J. Murdoch QC, Counsel instructed by Minter Ellison Lawyers for the Executive Director, Public Sector Employees Industrial Relations, Public Service Commission. |
DECISION
Together Queensland, Industrial Union of Employees (Together Queensland) applies to have me recuse myself from a Full Bench established to hear matter CA/2013/8. The basis for the Application is apprehended bias. CA/2013/8 is an application pursuant to s 149(2)(b) of the Industrial Relations Act 1999 (Act) by Together Queensland for an interim wage increase of 2.35% and an operative date for that increase of 31 January 2013 (Interim Application) in respect of the State Government Departments Certified Agreement 2009 (Core Agreement).
Together Queensland and the Executive Director, Public Sector Employees Industrial Relations, Public Service Commission (Public Service Commission) are parties to a proceeding for an arbitrated determination under s 149 of the Act in respect of the Core Agreement (CA/2012/289). CA/2012/289 was referred to a Full Bench consisting of the Vice President, Deputy President Bloomfield and Industrial Commissioner Thompson on or about 31 January 2013. The same Full Bench has before it the Interim Application in CA/2013/8.
It should be noted that in B/2014/36, Together Queensland seeks also to have Deputy President Bloomfield recuse himself from further hearing CA/2013/8 on the ground of apprehended bias. Deputy President Bloomfield will hear and determine that aspect of this application. This decision concerns only those matters in B/2014/36 that relate to the Vice President.
Brief History of the Matter
At an early stage in the Interim Application, the Public Service Commission submitted that it opposed the hearing and determination of that application contending that the Full Bench had no jurisdiction to make the orders sought by Together Queensland. That jurisdictional issue was then listed for hearing on 13 March 2013 with directions issued for the filing and service of any evidence and written submissions by both the Public Service Commission and Together Queensland. Both parties complied with those directions.
The Full Bench was thus appraised of the position of both parties prior to the hearing of oral submissions on 13 March 2013. On 28 March 2013, the Full Bench delivered its decision on the jurisdictional matter: see Together Queensland Industrial Union of Employees and Ors v Chief Executive of the Public Service Commission (CA/2013/8).[1] The Full Bench determined that it did not have the jurisdiction to make the order sought by Together Queensland under s 149(2)(b) of the Act and dismissed CA/2013/8.
[1] Together Queensland Industrial Union of Employees and Ors v Chief Executive of the Public Service Commission (CA/2013/8) - Decision <>
Together Queensland then sought to appeal that decision to the then President of the Industrial Court of Queensland. Their Application to Appeal was filed on 18 April 2013 (C/2013/15). On 3 May 2013, Together Queensland filed an Amended Application to Appeal wherein an additional order was sought i.e. "that the Court determine the Appellant's application in Matter No. C/2013/8 or remit the cause to a differently constituted Full Bench of the Commission or to a single member of the Commission to act according to law to determine the Appellant's application in Matter No. CA/2013/8". The grounds relied upon in support of that order were as follows:
· "on 13 March 2013, members of the Full Bench of the Commission, the course of proceedings about whether the Commission had jurisdiction to grant the relief sought by the Appellant in matter No. CA/2013/8, expressed views about the merits of the Appellant's application in Matter No. CA/2013/8 that give rise to an apprehension of bias"; and
· "on 29 April 2013, members of the same Full Bench of the Commission, the course of proceedings in Matter No. CA/2012/289, made a decision to suspend Directions 3 to 10 in that matter following the Appellant making its application to appeal against the decision of the Full Bench of the Commission given on 28 March 2013 in Matter No. CA/2013/8".
Hall P in his decision of 3 June 2013 granted Together Queensland's application to amend its Application to Appeal: see Together Queensland, Industrial Union of Employees v Chief Executive of the Public Service Commission and Ors (C/2013/15).[2] In paragraph [11] of that decision Hall P stated:
"Mr Murdoch SC is right to submit that a terse exchange of views between Bench and Bar falls well short of prejudgment and apprehended bias. However, on a perusal of the Appellant's particulars, the Appellant has an arguable case about the nature of the exchanges."
[2] Together Queensland, Industrial Union of Employees AND Chief Executive of the Public Service Commission and Others (C/2013/15) - Decision < type="1">
In his decision on the Appeal, Hall P allowed the appeal and remitted the matter back to the same Full Bench to be heard and determined according to law: see Together Queensland, Industrial Union of Employees v Chief Executive of the Public Service Commission and Ors No. 2 (C/2013/15).[3] In that decision Hall P said the following:
[3] Together Queensland, Industrial Union of Employees AND Chief Executive of the Public Service Commission and Others (C/2013/15) - Decision (No. 2) < its Amended Application to Appeal, the Appellant has raised an issue about whether the matter should be remitted to the Full Bench or remitted to the Commission for allocation to a differently constituted Full Bench. An allegation of apprehended bias is levelled against each of the Presidential Members, viz., Vice President Linnane and Deputy President Bloomfield, who sat at first instance.
[11]Robust though the exchanges were, they are largely explicable on the basis of misunderstanding. The Vice-President quite failed to understand the submission of Mr McKay for the Appellant, about the Commission's capacity to cope with the worst-case scenario, viz., the case in which the quantum of the interim increase exceeded the quantum of the final increase ultimately determined. Ms Ralston for the Appellant, wrongly understood the Vice President to be suggesting that, the grant of an interim increase might lead to a change in the ambit of the matter which had reached the Commission for arbitration. In fact, the suggestion was that the grant of an interim increase might cause the Respondent to vary its submissions and limit its concessions in the final arbitration. The difficulty is with the proposition, put from the Bench in the course of exchanges, that there should not be an interim increase.
[12]… the Respondent may well, for example, raise the 'flood-gate' illustrations in support of an argument under s. 331(b) of the Act that the Commission should refrain from hearing the matter. The Respondent may well raise the illustrations in support of a submission that the Appellant has failed to make out its case. On one view, the Members of the Bench have decided that those issues, rather than lack of jurisdiction, bar an interim increase."
The Public Service Commission then applied to the Supreme Court of Queensland for review of the then President's decision. On 6 June 2014, Justice Philip McMurdo delivered his decision in Chief Executive of the Public Service Commission v President of the Industrial Court of Queensland & Anor.[4] Two issues were before Justice McMurdo i.e.
· whether the Commission had jurisdiction under s 149(2)(b) of the Act to grant an interim wage increase; and
· whether in considering any interim wage increase application, the Commission must consider the matters referred to in s 149(5)(a), (b), (c) and (d) of the Act as it was when the interim application was before the Full Bench.
[4] Chief Executive of the Public Service Commission v President of the Industrial Court of Queensland & Anor [2014] QSC 122.
Justice McMurdo found that the Commission did have jurisdiction under s 149(2)(b) of the Act to hear and determine an application for an interim wage increase however, in determining any such an application, Justice McMurdo held that those matters referred to in the then s 149(5)(a), (b), (c) and (d) of the Act must be considered by the Full Bench.
Law
The application before me is that in a mention of CA/2013/8 on 20 February 2013, in the hearing of CA/2013/8 on 13 March 2013, in a Mention of CA/2012/289 on 29 April 2013 and in the decision of the Full Bench in CA/2013/8 released on 30 April 2013 I made statements which give rise to a reasonable apprehension of bias. The law to be applied in considering such an application is well settled. The test to be applied 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": see Johnson v Johnson.[5] In Livesey v New South Wales Bar Association the High Court further stated that:
"… it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court."[6]
[5] Johnson v Johnson [2000] HCA 48; 201 CLR 488; 174 ALR 655; 74 ALJR 1380.
[6] Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288.
The onus is on Together Queensland to establish a proper basis for its recusal application. In Re JRL; Ex parte CJL the High Court cautioned against judges too readily acceding to recusal applications:
"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey (1983) 151 CLR 288 has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will decide the case impartially or without prejudice, rather than that he will not decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established': Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp. 553-554; Watson (1976) 136 CLR 248, at p. 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at p. 14; 32 ALR 47, at pp. 50-51. 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."[7]
[7] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342.
Further, in New South Wales Teachers Federation and Director-General, Department of Education and Training at [36] Justice Schmidt stated:
"In our legal system, parties do not choose their judges and judges do not choose their cases, they are allocated according to the system which each Court has established for the proper disposition of that Court's work, in accordance with the statute which regulates the operation of that Court. The easy course, of always acceding to a disqualification application when it is made, is not one available to judicial officers."[8]
[8] New South Wales Teachers Federation and Director-General, Department of Education and Training [2008] NSWIRComm 175.
In Ebner v Official Trustee in Bankruptcy the High Court observed that the apprehension of bias principle requires two steps i.e.
"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."[9]
[9] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277 at [8].
Thus, the question for me to determine is, whether or not, in all the circumstances, a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues required to be decided in the Interim Application i.e. given comments made by me on transcript and in a decision of the Full Bench released on 30 April 2013. That is, to identify the first step discussed by the High Court in Ebner v Official Trustee in Bankruptcy.[10] The next step is to articulate the logical connection between that matter and the feared deviation from the course of deciding the matter on its merits.
[10] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277.
Grounds for Recusal
Statements made on 20 February 2013: On this day Together Queensland had initially sought the joinder of other matters (at that time still in s 148 proceedings) with the Interim Application. It was indicated by the Public Service Commission that it would oppose the joinder of those matters and it sought to have this issue revisited at a later time. Mr Chris Murdoch, Counsel for the Public Service Commission, then sought to be heard on the Interim Application i.e. that the Public Service Commission contended that the Full Bench had no jurisdiction to grant an interim wage increase. Mr Murdoch then sought a date for the hearing of the discrete issue of the Commission's jurisdiction to grant an interim increase. Mr Murdoch further submitted that if the Full Bench found that it had jurisdiction then dates already allocated to the substantive matter could be utilised "to have an argument in respect of whether or not an interim should be awarded".
My response and the words relied upon by Together Queensland were as follows:
"Thank you. I suppose my view, and I haven't consulted on this, is that it takes just as long to argue an interim increase as it does - because the same type of evidence needs to be adduced as it does for the final."
and further:
"So it's going to take up - if there was an interim increase, you must adduce the same kind of evidence."
and shortly thereafter Mr McKay for Together Queensland says:
"If I may, your Honour, in respect of this matter, we think that the issue of jurisdiction could be dealt with by written submissions and I just wish to raise in terms of the interim application that we're actually seeking - the interim wage increase that we're seeking is not what we're seeking in the final determination. It is a lower amount. So the issues that you've raised about the same …
I then responded:
"But that doesn't matter. You've still got to justify that … with evidence … and that means calling all the people that you'll be calling … at the final hearing."
and Mr McKay responded:
"Your Honour, not necessarily requiring the same amount of evidence or the same type of evidence in that the submission that we are seeking in terms of the interim wage increase we say does not prejudice the employer in terms of the final wage outcome, given that that was what they actually offered to the employees."
and I responded:
"But isn't - given that they offered it, that's off the books now, isn't it?"
Apparently, it was the comment that a hearing of an interim wage increase would take just as long as a hearing of the final wage increase which has caused Together Queensland to form the view that I have predetermined how the interim wage increase would proceed. On the appeal to the Industrial Court of Queensland, Hall P had expressed a tentative view that s 149(5) would not apply to a decision about an interim wage increase, however, Justice McMurdo in the review decision held that:
"[36]Any consideration of an application for an interim wages increase would have to include a consideration of the likely ultimate outcome of the arbitration. It could not be thought that the Commission could award an interim wages increase with no regard to the merits of the respective cases. In turn, that assessment of the likely outcome of the arbitration would require the Commission to consider everything which might bear upon that outcome. In particular, it would require the Commission to consider the matters specified within s 149(5). That is consistent with the words of s 149(5) because the Commission, when assessing the likely outcome of the arbitration, would be 'considering the matters at issue'. Thus it would be open to the Commission to order an interim wage increase if the Commission was satisfied that the increase would not exceed what might ultimately be ordered. But to reach that point, the Commission would have to consider the matters in s 149(5)."[11]
[11] Chief Executive of the Public Service Commission v President of the Industrial Court of Queensland & Anor [2014] QSC 122.
Together Queensland submit that the abovementioned comments of mine disregarded "the fact that the Applicant's interim wage increase application is a different application, with different considerations, to the final relief sought by the Applicant in the determination proceedings". It was further submitted that the statements made on 20 February 2013 were not a tentative view designed to assist the parties in framing their respective cases. The further submission of Together Queensland was that a reasonable observer would conclude that I might not bring to the task of determining the Interim Application an impartial mind "by reason of pre-judgment, in that the Applicant's interim wage increase application could never be successful in the absence of the hearing of the determination proceedings and that Vice President Linnane would be incapable of persuasion to a different view".
Nothing that I said in the course of the exchange on 20 February 2013 indicates that I have predetermined the outcome of the Interim Application or that I would decide the Interim Application other than on its legal and factual merits. There was no "provisional view" expressed by me in that exchange as to the legal and factual merits of the Interim Application: see para [12] of the Together Queensland's Outline of Submissions. What I did indicate was that the length of the hearing of the Interim Application was likely to be a similar length to the determination of the final hearing on wage increases. The view I expressed on 20 February 2014 was based on my interpretation of s 149(5) of the Act and the matters that the Full Bench were required to consider before making a determination on the Interim Application. The decision of Justice McMurdo has confirmed my view in that regard because the matters outlined in the then s 149(5) of the Act will need to be considered in the Interim Application.
On the hearing of this Application, Together Queensland further submitted that it would be asking the Full Bench hearing the Interim Application to draw an inference that an interim wage increase of 2.35% could be granted based on the fact that the Queensland Government had, in negotiations for a new certified agreement in 2012, offered a 2.35% wage increase. It was further submitted that if the Full Bench drew such an inference, then the matters outlined in the then s 149(5) of the Act would not need to be considered. Mr Jim Murdoch QC, Counsel for the Public Service Commission, correctly identified that Together Queensland was only one of the parties to the Interim Application and he confirmed that the Public Service Commission will wish to adduce evidence on the s 149(5) matters even if Together Queensland did not wish to address such matters.
Together Queensland has failed to establish a reasonable apprehension of bias by reason of prejudgment in respect to this exchange on 20 February 2013. There is no logical connection between my comments about the length of the hearing of the Interim Application and the stated "feared deviation" from the course of my deciding the Interim Application on its merits.
Statements made on 13 March 2013 - First Exchange: Together Queensland further relies upon statements I made during the course of the hearing of the jurisdictional application in the Interim Application on 13 March 2014. The first of those exchanges occurred after Mr McKay for Together Queensland commenced his reply to Mr Murdoch's submission on jurisdiction. The exchange is as follows:
"Mr McKay:What we have put before this Commission is an application to seek an order that will have effect for a limited period of time. So it's not in any way the final resolution of the matter. We have suggested a quantum that is not the final quantum that we are seeking. We are suggesting an operative date which is not the final operative date that we are seeking.
The quantum that we had suggested was at the time of making the application, the quantum that we understood that the respondent would be seeking in the determination. If that has changed, that is something that can be discussed in terms, or we go over that when we actually deal with the merit of the case, not the jurisdictional argument, which is all that we're dealing with today.
The other issue is that my friend has tried to run a roundabout argument and bringing in merit issues to try and oust any jurisdictional basis for their claim on the basis that because we're seeking a date for the operation of the interim agreement - the interim wage increase, that would be before the final determination, that is something that prejudges the final outcome, or actually creates a final outcome, that is clearly incorrect.
Your Honour, in terms of …
Vice President: Does that mean the issue of operative date must be determined for the whole amount ….
Mr McKay:No, your Honour
Vice President: … ahead of time?
Mr McKay:No, your Honour, because what we're saying is this is an interim step and what we're saying is the operative date for the interim of that wage increase, we are arguing the 31st of January. The Commission has powers to grant - to have a different outcome. The final outcome we're seeking is for an operative date which predates the 31st of January.
Vice President: And what if you get January 2014 as the operative date, or whenever the matter gets on for hearing …
Mr McKay:For the final determination?
Vice President: … or July 2013 as the operative date?
Mr McKay:Well, the Commission has in its powers in making the final determination to make - to address issues about the merits of the case.
Vice President: So you retrieve moneys from employees?
Mr McKay:Or the Commission if they felt there was an increase granted that provided in the interim stage, it can adjust the quantums. The issues are the quantum can be adjusted; should there be a merit for that?
Vice President: But if there's an operative date only of July this year, how do you adjust quantum?
Mr McKay:These are issues that go to merit, not jurisdiction, your Honour.
Vice President: But all I'm saying is would you have to determine the operative date for the whole thing before you could grant an interim.
Mr McKay:No. No, your Honour, we don't say that is a necessity, and that's something that should be determined in the argument for the merit of an interim wage increase, not the jurisdiction.
Vice President: Yes, I understand that, but I'm just saying from my perspective you would need to determine the operative date for the final thing before you could grant any interim increase, even if you had power.
Mr McKay:Well, we take - we note your comments but we respectfully don't agree and during the merit argument, we will provide reasons as to why that's not necessarily the case."
In that exchange, Together Queensland submits that a reasonable observer would conclude that I "might not bring to the task of determining the Applicant's interim wage increase application, an impartial mind by reason of pre-judgment, in that the Applicant's interim wage increase application could never be successful in the absence of an operative date in the determination proceedings" and that I "would be incapable of persuasion to a different view". There is nothing in the exchange relied upon by Together Queensland which could arguably give rise to an inference of apprehended bias. The transcript reveals that I did not express any concluded view about how s 149(5) should be applied to the application for an interim pay increase.
In the exchange, I was attempting to understand Together Queensland's position on how the Commission should deal with a possible overpayment to employees covered by the Core Agreement in circumstances where the interim pay increase was greater than the pay increase ordered by the Full Bench in the final determination. Together Queensland were submitting that the Full Bench need not take into account the matters outlined in s 149(5) of the Act when determining the quantum and the operative date of the interim wage increase. Thus, the potential for overpayments was a real issue. Mr McKay avoided answering my question by repeatedly responding that these were issues that go to merit and not jurisdiction.
Once again, Together Queensland has not established, whether firmly or otherwise, a reasonable apprehension of bias by reason of prejudgment of the merits issue of the Interim Application in respect of this exchange on 13 March 2013. On this occasion, Members of the Full Bench had been provided with written submissions from both Together Queensland and the Public Service Commission well prior to the hearing on 13 March 2014 and I had read those submission prior to the hearing. No logical connection has been advanced by Together Queensland between my suggestion that the operative date for the substantive matter might need to be determined prior to any decision on an operative date of the Interim Application and any "feared deviation" from the course of my deciding the Interim Application on its merits.
Statements made on 13 March 2013 - Second Exchange: Together Queensland further relies upon an exchange between myself and Mr McKay following an exchange between Deputy President Bloomfield and Mr McKay on 13 March 2013. Deputy President Bloomfield had stated that in order to determine the Interim Application "we would have to hear all of the arguments from the government as to why it believes 2.35 is supportable under 149(5), because we can't make any order unless we're satisfied - unless we've considered and in our decision addressed the elements set out in 149(5)". Mr McKay had argued strongly against the view Deputy President Bloomfield expressed. This exchange between myself and Mr McKay followed:
"Mr McKay:And with respect, and this is a point that I think the Commission is missing, whilst we could ask for 2.35, there is nothing preventing the Commission of ordering a different amount or from a different date.
Vice President: But only if it's heard the matters under subsection (5).
Mr McKay: No.
Vice President: The Commission can't determine any matter on wages, in my view, without considering all of the issues under subsection (5). It must.
Mr McKay: With respect, we would say that view is in error.
Vice President: How do we determine anything without going to subsection (5)? Any amount of money whatsoever without going looking at the State's financial position?
Mr McKay: You're not obliged to.
Vice President: Look, I'm not saying whether you're obliged to or not. I'm just saying how does one determine it?
Mr McKay:Well, in respect of that particular issue, your Honour, prior to the change in legislation, there would not have been a requirement ever to look at the State's fiscal position.
Vice President: But there is now.
Mr McKay:There is now, and the final determination, and the final determination only.
Vice President: Well, your argument is basically then that there'll be no interim increase because unless …
Mr McKay:No, I'm not saying that.
Vice President: Yes, you are, because you're saying that you don't have to take into account the things under subsection (5) in an interim increase.
Mr McKay:Yes, and what we're saying both parties in the final determination are saying there should be an increase of some nature.
Vice President: But we're not dealing with the final determination. You're dealing with an interim determination where one party says 2.35 and the other party says zero, so zero is the issue unless you take into account all of subsection (5).
Mr McKay:With respect, we find that view is just erroneous, your Honour."
Together Queensland contends that this second exchange made, in the course of hearing the jurisdictional matter in the Interim Application, also gives rise to a reasonable apprehension of bias. Once again, any statement by me was in relation to questions of law raised by the Public Service Commission in relation to its jurisdictional argument in the Interim Application. The Full Bench has not heard any evidence or argument on the merits of an interim wage increase and has not made any determination in that regard. Since 13 March 2013, the Supreme Court has confirmed that the matters outlined in the then s 149(5) are factors that must be considered by the Full Bench in determining the Interim Application.
At the hearing on 13 March 2013, the Full Bench had before it written submissions by both Together Queensland and the Public Service Commission which had been filed prior to the hearing on that day. I had read those written submissions, the authorities and the relevant legislation prior to the commencement of that hearing. In this regard note is made of the High Court's reference in Helljay Investments Pty Ltd v Deputy Commissioner of Taxation to the following:
"The 'fair and unprejudiced mind' which must be brought to bear upon the determination of litigation is, as the Court said in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group, 'not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it'."[12]
[12] Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56; 74 ALJR 68; 166 ALR 302 at [12].
There is nothing in either exchange on 13 March 2013 that would give rise to a reasonable apprehension that I would not determine the Interim Application in a manner that was consistent with the law. Together Queensland have failed to show any logical connection between my comments about the consideration of s 149(5) matters in any determination of the Interim Application and their submission that there is a reasonable apprehension of bias by reason of prejudgment.
Statements made on 29 April 2013: Together Queensland also relies upon statements made by me in a Mention of CA/2012/289 on 29 April 2013. At this time directions had been given for the further conduct of CA/2012/289 and the Public Service Commission had sought the vacation of directions given that Together Queensland had filed an appeal against the Full Benches determination given on 28 March 2013. The exchange followed an attempt by Together Queensland to tender correspondence from McCullough Robertson, Solicitors acting for the Queensland Government in the Fire Services determination in CA/2012/56. The correspondence had nothing whatsoever to do with the matter then before the Full Bench. The document was sought to be tendered as an alternative to the vacation of hearing dates of CA/2012/289. The exchange relied upon is between myself and Ms Ralston representing Together Queensland:
"Ms Ralston: Vice President, for the purposes of what is currently Exhibit 12, the position that we're advancing is that it serves to provide an example, a further example of how the government is instigating a series of caveat arrangements in other matters before Full Benches of this tribunal so that the matters progress but there's a protective mechanism around them in relation to anything that might occur outside of the immediate known environment of the legislative and administrative arrangements.
Vice President: But CA56 is in a totally different environment. They've got set dates and they know where they're going.
Ms Ralston:Yes, we …
Vice President: Okay, the financial …
Ms Ralston:Yes, we had set dates as well.
Vice President: Well, no, we don't necessarily.
Ms Ralston:We have an argument - we have an argument from the PSC representatives to abandon those dates.
Vice President: But there's now an appeal. If that's successful, there's now another hearing on an interim increase. If you're not successful, then it might go back to a hearing proper. But there's a totally different set of circumstances in the appeal to what's on before the fire Full Bench because they've got absolute set dates for hearing.
Ms Ralston:Well, at this stage …
Vice President: Ours is very iffy at the present time because if you're successful, then the hearing of the interim increase has got to be heard.
Ms Ralston:Yes, that's right.
Vice President: Which could take three to four months and new sets of directions would have to be issued.
Ms Ralston:In relation to two distinctive matters.
Vice President: No, in relation to the interim increase.
Ms Ralston:Yes, the interim increase is a distinctive matter to CA/2012/289, which is the determination.
Vice President: And that would take precedence. So the general matter would have to be set aside to hear the interim increase.
Ms Ralston:Well, in our submission, it wouldn't need to be set aside, the two could run concurrently.
…
Vice President: Substantive.
Deputy President Bloomfield: … substantive case? It's a logical nonsense, with respect.
Ms Ralston:Well, they can run concurrently in the sense of the directions orders that have been issued have dates for - perspective to when potentially the appeal matter could be listed. So at this stage we've got an unknown in regard to when the appeal will be heard, we've got a mention on the 7th of May and then dates to be determined from that. So what the PSC representatives are asking you to do is to jump ahead of what's occurring in a separate matter and the time frames that might be attached to that matter and abandon all of the dates that have been set by this tribunal in regard to progressing this matter.
Vice President: But they're also saying their outcomes document will be totally different depending upon the outcome of the appeal.
Ms Ralston:No, no, what Mr Murdoch said was that there would be some issues in relation to the amounts and the periods that may alter as a result of the appeal application if it was successful and then subsequently a merit argument was successful. So he's alerted us to only two issues, the quantum and the dates.
Vice President: But their position, if, say, you're successful and you got an interim increase of 2.5 I think you asked for.
Deputy President Bloomfield: 2.35.
Vice President: 2.35, 2.35 and the government's position is two percent, so - of course the whole thing would change. Their whole outcomes would change because you've already got .35 per cent more than what they say you should have.
Ms Ralston:Yes, but what Mr Murdoch is raising, Vice President, is that the only two issues in contention in the document that they are required to prepare, were required to prepare as of 4 p.m. this afternoon, are those matters that relate to the amount, that's the quantum, and the period, that's the duration.
Mr Murdoch: I shouldn't - I don't want to interrupt but that's not what I said.
Vice President: I didn't think it was either.
Mr Murdoch: That's not what I said.
Vice President: But if in fact - if, in fact, you were to get a 2.35 per cent increase, I'm sure their outcomes document - as an interim increase - would be totally different because they would have all sorts of other issues that they would want in any arbitration. They're not just going to sit there and say "Well, yes, we will take 2.3" they will want productivity increases hell west and crooked if you got an interim increase. A whole range of their outcomes would be changed given that the - I don't even know what their set position is at the present time, it might be more than 2.35, but you're asking for 2.35, if their position is less than that, then they're going to want all sorts of changes to their outcomes document, not just on quantum.
Ms Ralston:The situation, Vice President, is that the legislation is clear in regard to the matters that are taken forward for the purposes of the section 149 matters. They're the matters at issue at the time of conciliation. We have produced a document in consultation with the PSC, an agreed document, which outlines the position against each of the key matters. So it doesn't contain the drafting of the clauses, but it does reflect the position against each and every one of the matters in dispute between the parties. That is an intractable document, intractable. The only issue, the only issue that is at odds within that document is a claim now about the quantum. Now, it's all right for Mr Murdoch to say, "No, there might be more issues," but there will not be more issues because the matters were settled. They were settled at conciliation. They are the matters coming forward for arbitration. So the only matters in contention - the only matters in contention are quantum and the period, that's it.
Vice President: And they're big matters.
Ms Ralston:Yes."
This exchange had absolutely nothing to do with the Interim Application. The exchange occurred in an application to vacate directions in CA/2012/289 i.e. as Ms Ralston often stated in another "distinctive matter". Any statement made about the content of the Public Service Commission's position should an interim wage increase be granted in the Interim Application, was a correct statement. The example of "productivity increases" was simply that - an example. The matters in issue in CA/2012/289 had not been considered by the Full Bench as at 29 April 2013. Clearly, both Together Queensland and the Public Service Commission may change their positions as a result of any determination of the Interim Application. To suggest, as Together Queensland submitted, that directions for the further conduct of the substantive application should have proceeded in circumstances where there was a real likelihood of the Interim Application having to be heard, has proved to be anything but reasonable.
It is now December 2014 (i.e. some 20 months after the vacation of those directions) and the Interim Application has yet to have directions made for the further conduct of the matter. Any determination made by the Full Bench to vacate the directions in CA/2012/289 has proved, beyond any doubt, to have been a correct decision. Both parties would have been put to costs in the preparation of a case that, at best, will now be heard in 2015 and not in 2013 as was envisaged on or about 29 April 2013.
That was the issue for determination on 29 April 2013. Nothing in the exchange of 29 April 2013 would lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial and unprejudiced mind to any determination of the merits of the Interim Application. Nothing in what I said on 29 April 2013 would lead the fair-minded lay observer to the view that I would decide the Interim Application on anything other than on its legal and factual merits. The merits of the Interim Application have not been before the Full Bench at this time. There has not been the articulation by Together Queensland of any logical connection between what was said by me on this occasion and the "feared deviation from the course of deciding" the Interim Application on its merits.
Decision of the Full Bench released on 30 April 2013: This was the decision of the Full Bench to vacate directions previously issued in CA/2012/289 following the filing of an Appeal to the Industrial Court of Queensland. The decision itself is said by Together Queensland to be a ground for recusal. No particulars of this ground have been identified except that the Full Bench decided to suspend Directions 3 through 10 (inclusive) in CA/2012/289. These directions were suspended pending the outcome of the Appeal in C/2013/15 to the President of the Industrial Court of Queensland. That decision of the Full Bench went on to state that the Full Bench "will further list CA/2012/289 within approximately 48 hours of the release of any decision by the President in C/2013/15 to discuss the reinstatement of the suspended provisions, modified as necessary to accommodate his decision, and as many of the currently listed hearing dates as possible". There was no appeal to the Industrial Court of Queensland by Together Queensland from this decision of the Full Bench.
When I pressed Mr McKay towards the end of the hearing for some details as to this ground of recusal, his response was that Together Queensland had not abandoned the ground as it was part of the application. I then asked what were the particulars of the ground and how did the decision show apprehended bias. The response I received was that "your Honour has formed predetermined views on some of the issues that we raised". I then asked Mr McKay to indicate what part of the decision he was referring to. The response I received was as follows:
"We actually say that by abandoning the directions order, it takes on board the issues that we say that the issues have to - that you've abandoned the directions order because one party might be prejudiced in terms of not knowing the outcome of 289 shows that - sorry - the outcome of the interim shows that there's a predetermined view in terms - that your predetermined view has crystallised itself into action."
The decision in Chief Executive of the Public Service Commission v Together Queensland, Industrial Union of Employees and Ors (CA/2012/289)[13], released on 30 April 2014, was a unanimous decision of the Full Bench. Mr McKay's response to why Industrial Commissioner Thompson was not included in the recusal application given that Together Queensland was relying upon the decision of the Full Bench, he responded:
"Yes, but what we're saying is you had indicated predetermined views in the proceedings, and we say that has crystallised in that action. We can't draw the same conclusion about Commissioner Thompson because he has not given any indication of a predetermined view".
[13] Chief Executive of the Public Service Commission AND Together Queensland Industrial Union of Employees and Others (CA/2012/289) - Decision <>
I am unable to find anything from this decision which would cause a fair-minded lay observer to reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the Interim Application. As Mr Murdoch QC submitted, the decision was procedural in nature and nothing about it went to the merits of the Interim Application.
Conclusion
Together Queensland sought to have the audio recordings of each of the exchanges referred to in this decision available for the hearing suggesting that they may "add a tone and colour not apparent from the printed words in the transcript": see Keating v Morris & Ors; Leck v Morris & Ors [2005] QSC 243 at [50] per Moynihan.[14] Those audio recordings were played during the hearing of this Application. Having heard the audio recordings I found nothing that would add a "tone and colour not apparent from the printed words in the transcript".
[14] Keating v Morris & Ors; Leck v Morris & Ors [2005] QSC 243.
The authorities indicate that an application for recusal should be approached with caution. Further, it is for Together Queensland as the Applicant to provide the substantial evidence necessary to justify the recusal.
In this case, I am not satisfied that Together Queensland has met the onus which falls upon it, to establish a logical connection between the comments made by me on transcript and the possibility of deviation from the course of determining the Interim Application on its merits. Together Queensland has not provided the evidence necessary for me to recuse myself from further hearing the Interim Application. Any comments I made in the exchanges referred to in this decision were made in jurisdictional and/or procedural arguments. The merits of the Interim Application have not been before the Full Bench and so I have made no pre-determination of the merits argument and no pre-determination is revealed in any of the comments made me and referred to in the course of this decision.
In fact, the decision of Justice Philip McMurdo in the Supreme Court review matter has confirmed that my preliminary views about s 149(5) of the Act in respect of an interim wage increase were correct. It was thus very appropriate that I raise those preliminary views with Together Queensland, who were taking a very firm contrary view. This gave Together Queensland the opportunity to try and convince me of their contrary view.
There has been nothing raised by Together Queensland in this Application which would cause me to recuse myself on the ground of apprehended bias. Given the grounds relied upon by Together Queensland in this application, no fair minded lay observer (and not necessarily one which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclinations of mind upon or with respect to it) would reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of the Interim Application.
In the circumstances, I am unable to conclude that a basis for the recusal application has been made out. Accordingly, I dismiss the application insofar as it relates to the Vice President. There is still that part of the application insofar as it relates to Deputy President Bloomfield to be heard and determined.
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Most Recent CitationTogether Queensland, Industrial Union of Employees v Executive Director, Public Sector Employees Industrial Relations, Public Service Commission [2015] ICQ 23
Cases Citing This Decision1
Cases Cited10
Statutory Material Cited0
Chief Executive of the Public Service Commission v The President of the Industrial Court of Queensland [2014] QSC 122Johnson v Johnson [2000] HCA 48Livesey v New South Wales Bar Association [1983] HCA 17