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Federal Court of Australia - Full Court Decisions |
Last Updated: 7 March 2003
INDUSTRIAL LAW - workplace relations - termination of employment - arbitration by member of Australian Industrial Relations Commission - member requested private conference with representatives of one party late in proceeding - made comments on problems in that party's case and suggested implications beyond individual case - comment in strong terms - whether apprehended bias - member refused to disqualify herself - Full Bench allowed appeal - whether error by Full Bench - whether conciliation by member conducting arbitration proper - whether consenting to participate in private conference amounted to waiver of right to object to what was said - whether possibility of jurisdictional error
NATURAL JUSTICE - bias - whether reasonable apprehension - member of Australian Industrial Relations Commission suggested private conference with one party at late stage of arbitration of application related to termination of employment - whether disqualified by comments made in strong terms about party's case - relevance of particular practice of tribunal - relevance of opinion of Full Bench about propriety of member's conduct
Workplace Relations Act 1996 (Cth) ss 45, 170CE, 170CF, 170CG
Johnson v Johnson [2000] HCA 48 (2000) 201 CLR 488 at [11] - cited
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 299 - 300 - cited
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 - cited
Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56 at [12] - cited
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571 - cited
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100 - cited
Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 317 - cited
Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 15 - cited
Richmond River Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1992) 34 FCR 385 at 395 - cited
Barton v Walker [1979] 2 NSWLR 740 at 751 - cited
Brooks v The Upjohn Co (1998) 85 FCR 469 at 472 - 477 - cited
Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 476 (2001) 194 ALR 638 at [113] - [116] - cited
Re McJannet; Ex parte Australian Workers' Union of Employees, Queensland [No 2] [1997] HCA 40; (1997) 189 CLR 654 at 656 - 657 - referred to
IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION, CERTIORARI AND MANDAMUS AGAINST A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CONSISTING OF THE HONOURABLE VICE PRESIDENT ANTHONY MCINTYRE, SENIOR DEPUTY PRESIDENT JAN MARSH AND COMMISSIONER DAVID HOFFMAN AND COMMONWEALTH BANK OF AUSTRALIA LIMITED
EX PARTE ANDREW DOUGLAS HEAP
N 1121 of 2002
GRAY, RYAN AND GYLES JJ
7 MARCH 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
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1. The application be dismissed.
2. The question of costs be reserved.
3. If the second respondent wishes to apply for costs, it file and serve written submissions on the question of costs on or before 21 March 2003.
4. If the second respondent does not file written submissions in accordance with paragraph 3, there be no order as to costs.
5. If the applicant opposes any application for costs, it file and serve written submissions on the question of costs on or before 4 April 2003.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
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JUDGES: |
GRAY, RYAN AND GYLES JJ |
DATE: |
7 MARCH 2003 |
PLACE: |
SYDNEY |
THE COURT:
The nature of the proceeding
1 This application has been brought following the refusal of a Senior Deputy President of the Australian Industrial Relations Commission ("the Commission") to disqualify herself from continuing to hear a proceeding, following an allegation by one party of apparent bias on her part, and a decision of a Full Bench of the Commission allowing an appeal from the Senior Deputy President's decision.
2 On 3 September 2002, the applicant or prosecutor, Mr Heap, applied to the High Court of Australia, pursuant to s 75(v) of the Constitution, for an order nisi, calling upon the Honourable Vice President McIntyre, Senior Deputy President Marsh and Commissioner Hoffman of the Commission, and on the Commonwealth Bank of Australia Limited ("the Bank"), to show cause why writs of certiorari, prohibition and mandamus should not issue out of the High Court directed to them. By order of Gaudron J, made on 18 October 2002, the High Court remitted further proceedings in the application to this Court.
The facts
3 Mr Heap was employed by the Bank from December 1968 until 26 October 2001, when the Bank dismissed him on the ground that he was redundant. On 14 November 2001, Mr Heap began a proceeding against the Bank in the Commission, pursuant to s 170CE of the Workplace Relations Act 1996 (Cth) ("the WR Act"). The proceeding was numbered U2001/6793. Mr Heap contended that the termination of his employment by the Bank was harsh, unjust and unreasonable.
4 Conciliation took place pursuant to s 170CF of the WR Act on 12 and 20 December 2001. No agreement was reached between the parties and a certificate was issued pursuant to s 170CF(2). Mr Heap then elected pursuant to s 170CFA(1) of the WR Act to proceed to arbitration. The arbitration was conducted by a Senior Deputy President on 12 and 19 March and 21, 24 and 30 May 2002.
5 On 24 May 2002, after she had heard all of the evidence in the case, the Senior Deputy President adjourned the hearing for a short time, to read written submissions supplied respectively by counsel for Mr Heap, and by Mr Perry, a solicitor appearing for the Bank. After the hearing resumed, counsel for Mr Heap made oral submissions. At the conclusion of those oral submissions, the Senior Deputy President asked:
"Does either party have any objection to my having a short conference with the representatives of the respondent?"
6 Counsel for Mr Heap took no objection. Mr Perry stated that he had no instructions. The Senior Deputy President said to Mr Perry:
"I want to have a short discussion with you about this matter. Conciliation, I suppose, it might be to raise some issues that might require addressing. Do you want to seek instructions?"
(The punctuation in this extract is as it appears in the transcript of the proceeding. The transfer of the comma from after the word "suppose" to after the word "be" would appear to make the second sentence read more sensibly.) Mr Perry asked if he could make a quick phone call and the Senior Deputy President agreed to this.
7 On the same day, the Senior Deputy President had a conference with Mr Perry and Mr Strauss, another solicitor from Mr Perry's firm, who was assisting him. The conference took place in the absence of any other person. Subsequently, each of Mr Perry and Mr Strauss swore an affidavit as to what had occurred in the course of that conference. The Senior Deputy President referred to two issues that she apparently saw as creating difficulties for the Bank, and which she described as having wider implications for the Bank than the particular case. She expressed concern that employees of the Bank taking approved long service leave or extended leave were at risk of losing their jobs when they returned. She expressed the view that this was unfair. The second issue was that the Bank did not appear to have given "all due consideration", in accordance with the relevant enterprise bargaining agreement, to finding an alternative position for Mr Heap when he became redundant. The Senior Deputy President expressed concern about the effectiveness of the system or policy used by the Bank to identify vacant positions that could be filled by redundant employees.
8 The Senior Deputy President then made a comment. Mr Perry did not hear the comment, other than the opening words, which he said were, "Your client has more problems than ...". Mr Strauss, who told Mr Perry about the remainder of the comment, recalled that the Senior Deputy President said:
"I have a number of concerns in relation to the Bank's case that I would like to discuss with you. You're in a position worse than a man with a wooden leg in a bush fire."
9 Following the making of this comment, Mr Perry suggested that he would prefer to adjourn the proceeding, in order to seek instructions as to the matters raised by the Senior Deputy President. According to the affidavit of Mr Perry, the Senior Deputy President then said:
"This employee is a skilled and long serving employee. I can't understand why they would not take him back."
Mr Perry replied:
"It is true that we have raised no performance issue. However, my client's position is that there is no job for him and he is redundant. He will be very likely to face redundancy again if he goes back."
The Senior Deputy President said:
"Well, consider this matter with your client. If they do not want to do anything, you can come back and make your submissions and tell me why these things are not problems."
It appears that the matter was adjourned informally, as the hearing was not resumed on that day.
10 When the hearing resumed on 30 May 2002, senior and junior counsel appeared for the Bank. They submitted that the Senior Deputy President was required to disqualify herself on the basis of apprehended bias. In the course of those submissions, the Senior Deputy President indicated that the accurate version of what she said was:
"Your client has more problems in this case than a man with a wooden leg in a bush fire."
11 At the conclusion of the submissions on behalf of the Bank, without hearing from counsel for Mr Heap, and without giving reasons, the Senior Deputy President refused to disqualify herself. The hearing of Mr Heap's application then continued. The senior and junior counsel withdrew and Mr Perry made his oral submissions. Counsel for Mr Heap replied. The Senior Deputy President reserved her decision.
12 On 4 June 2002, the solicitors for the Bank filed an appeal pursuant to s 45 of the WR Act against the decision of the Senior Deputy President on 30 May 2002 to refuse to disqualify herself. In essence, the ground of appeal was that the fact that the conference with the Bank's representatives had taken place, the stage of the arbitration at which it had occurred and what the Senior Deputy President had said during the conference gave rise to a reasonable apprehension of bias on her part.
13 The Full Bench first heard submissions on the appeal on 28 June 2002. On 15 July 2002, the Full Bench published a decision, holding that an appeal lay pursuant to s 45(1)(g) of the WR Act, because the decision of the Senior Deputy President was a decision that she had jurisdiction to deal with Mr Heap's application. The Full Bench also decided to ask the Senior Deputy President to give reasons for her decision not to disqualify herself, before the Full Bench considered the further progress of the appeal.
14 By letter dated 19 July 2002, the solicitors for the Bank raised the contention that the Full Bench should decide the appeal on the basis of the material already before it and requested that the appeal be re-listed for the purpose of further submissions in relation to that issue. The letter was sent by facsimile to the Commission on that day. On 22 July 2002, the Commission replied by facsimile, requesting the submissions in writing by 5.00 pm on 24 July 2002. On 25 July 2002, the Bank's solicitors made submissions in writing to the Full Bench. In a decision published on the same day, the Full Bench rejected the submissions and decided that its decision of 15 July 2002 would stand.
15 On 26 July 2002, the Senior Deputy President published her reasons for her decision to refuse to disqualify herself from further hearing Mr Heap's application. On 1 August 2002, the Full Bench heard further submissions. Counsel for the Bank sought to call further evidence. Counsel for Mr Heap opposed the admission of further evidence, and indicated that she was content for the Full Bench to determine the Bank's appeal on the evidence before it on 28 June 2002 (ie, without examining the reasons of the Senior Deputy President). Counsel for the Bank indicated that, if the Full Bench were prepared to adopt this course, they would not pursue the application for the admission of further evidence. The Full Bench then resolved to determine the application on the evidence before it on 28 June 2002, without regard to the reasons of the Senior Deputy President.
16 On 2 August 2002, the Full Bench published a written decision. It granted leave to appeal on the ground that the matter was of such importance that, in the public interest, leave should be granted. It allowed the appeal. Pursuant to s 45(7)(a) of the WR Act, the Full Bench quashed the Senior Deputy President's decision. Pursuant to s 45(7)(b), it made an order and decision that the Senior Deputy President was disqualified from further hearing Mr Heap's application. It announced that it would take steps to have Mr Heap's application heard, as soon as possible, by another member of the Commission.
The Commission's reasons for decision
17 In the course of its written decision, the Full Bench referred to the absence of any dispute between the parties that, as to disqualification by reason of the appearance of bias, 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".
The quotation is from the judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson [2000] HCA 48 (2000) 201 CLR 488 at [11]. The Full Bench rejected a submission that, merely by conferring with the representatives of one party in the absence of another, the Senior Deputy President had exhibited bias, because she had done so with the previous knowledge and consent of the other party. After referring to a number of authorities, the Full Bench quoted from the judgment of the High Court in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 299 - 300, where the Court said:
"each case must be determined by reference to its particular circumstances."
18 The Full Bench then said:
"We turn then to the `particular circumstances' of the present case. The central facts appear to us to be that, during the hearing of Mr Heap's application under s.170CE(1), [the Senior Deputy President], without objection by either party, conferred with the Bank's legal representatives. The conference occurred after both parties had handed to her Honour their written submissions, after her Honour had read these submissions, after Ms Howell had made her oral submissions and before Mr Perry made his oral submissions. During the conference, her Honour referred to a number of matters about which she asked the Bank to make submissions and, in the course of the conference, said to the Bank's representatives `your client has more problems than a man with a wooden leg in a bushfire'.In deciding this case we are required to focus on the `particular circumstances' to which we have earlier referred. In doing this, we have come to the conclusion that her Honour disqualified herself from further hearing and determining Mr Heap's s.170CE(1) application by reason of the appearance of bias (in the form of prejudgment) because, we think that a fair-minded lay observer might reasonably apprehend that her Honour might not bring an impartial and unprejudiced mind to the resolution of the question her Honour was required to decide. It follows from our conclusion that, in our view, her Honour was in error in refusing to disqualify herself."
Mr Heap's case
19 The draft order nisi submitted to the High Court sought a writ of prohibition, or an order in the nature of prohibition, prohibiting the Full Bench from giving effect to, enforcing or relying upon its decision, a writ of certiorari to remove the decision or order into court for the purpose of quashing it, and a writ of mandamus, or an order in the nature of mandamus, commanding the Full Bench to hear and determine in accordance with law the proceeding before it.
20 The draft order nisi contained three grounds. Essentially, they were:
* The Full Bench fell into jurisdictional error or failed to exercise its jurisdiction in accordance with the law in that it held that the Senior Deputy President should have disqualified herself from hearing Mr Heap's application on the ground of apprehended bias.
* The Full Bench failed to give reasons, or failed to give proper and sufficient reasons, for holding that the Senior Deputy President should have disqualified herself.
* The Full Bench failed to apply the proper test to determine whether the Senior Deputy President should have disqualified herself.
21 At the hearing of the application in this Court, counsel for Mr Heap contended that the Full Bench failed to apply the correct test for the disqualification of a quasi-judicial decision-maker by reason of the apprehension of bias, and thereby fell into error. The error was a jurisdictional error, because the decision was one concerning the jurisdiction of the Commission. The result of the error was that the Full Bench held that the Senior Deputy President did not have jurisdiction to continue to deal with Mr Heap's application pursuant to s 170CE of the WR Act, and that another member of the Commission did have such jurisdiction. Counsel for the Bank took issue with the proposition that there was error, and contended, in the alternative, that any error was not jurisdictional.
The question of error
22 Counsel for Mr Heap conceded that the Full Bench stated correctly the test for disqualification by reason of apprehended bias, in the passage it quoted from Johnson v Johnson. They also conceded that there had been no dispute before the Full Bench that this was the test. Their contention, therefore, was that the Full Bench fell into error in the application of the test to the facts of the case, rather than in the statement of the test.
23 Counsel for Mr Heap cited a number of authorities in support of the proposition that the expression of an opinion by a decision-maker, in the course of hearing a case, even where the opinion is expressed in strong terms, is not sufficient to give rise to an apprehension of bias on the part of a reasonable observer, unless it indicates so great a prejudice in favour of a conclusion already formed that the decision-maker will not alter that conclusion, irrespective of the evidence or arguments presented. See Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352 per Mason J, Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56 at [12], Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571 per Brennan, Deane and Gaudron JJ, Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 100 per Gaudron and McHugh JJ, Johnson v Johnson [2000] HCA 48 (2000) 201 CLR 488 at [11], Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 317, Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 15 per Murphy J and Richmond River Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1992) 34 FCR 385 at 395. All of these authorities are referred to in the decision of the Full Bench of 2 August 2002 as having been cited to it.
24 At best, the argument on behalf of Mr Heap seems to be that the Full Bench wrongly characterised the remark of the Senior Deputy President about the man with a wooden leg in a bushfire. It took this remark to be an expression of a conclusion already formed that she would not alter, whatever the arguments presented to her. Instead, it should have taken the remark, coupled with the reference to the problems identified by the Senior Deputy President, to be merely the expression of a provisional opinion and an invitation to make submissions on the issues that appeared to the Senior Deputy President to be problems for the Bank in the particular case and beyond. Counsel for Mr Heap submitted that, had the same thing been said in open court, it would have been unexceptionable. The fact that it had been said in the course of a private conference, which had been undertaken with the consent of both parties, and in the exercise of the conciliation function, could not make it exceptionable.
25 The argument was based on the assumption that the Senior Deputy President was properly engaged in conciliation at that stage of the case. It is not clear that this was so in fact. The reference to conciliation in the invitation to a private conference was tentative. Counsel for Mr Heap relied on s 170CG(2) of the WR Act, to justify the exercise of the conciliation function by the Senior Deputy President at that stage. That subsection is found in subdiv B of Div 3 of Pt VIA of the WR Act, which deals with applications to the Commission for relief in respect of termination of employment. Section 170CE provides for the making of applications to the Commission. Section 170CF provides that the Commission must attempt to settle the matter to which an application relates by conciliation. If the Commission is satisfied that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful, it is required to issue a certificate that it is so satisfied. By s 170CG(1), only if such a certificate has been issued, and the applicant has elected pursuant to s 170CFA(1), (2), (3) or (5) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable, may the Commission proceed to arbitrate the matter. Section 170CG(2) then provides:
"Neither the making of an election under subsection 170CFA(1), (2), (3) or (5) to proceed to arbitration nor the commencement of that arbitration prevents further conciliation of the matter being attempted, or the parties from settling the matter, at any time before an order is made under section 170CH."
Section 170CH empowers the Commission, on completion of the arbitration, to make an order that provides for a remedy, if it has determined that the termination was harsh, unjust or unreasonable.
26 Seen in its context, s 170CG(2) appears to be nothing more than a provision designed to overcome possible perceptions that, once the Commission is seised of a matter relating to a termination of employment in its capacity as an arbitrator, the matter can only be resolved by arbitration. It makes clear that settlement by agreement of the parties, whether produced by conciliation or otherwise, always remains open. It does not, in its terms, authorise the particular member of the Commission who has embarked on the arbitration to adopt the role of conciliator in the course of the arbitration. It may be that s 105 of the WR Act authorises a member of the Commission to exercise conciliation powers in the course of performing the function of arbitrating an industrial dispute in some circumstances. The functions of conciliation and arbitration in respect of applications relating to termination of employment have been codified in subdiv B of Div 3 of Pt VIA in terms different from those relating to industrial disputes. No doubt, this is for good reasons. The nature, and very often the generality and multiplicity, of the issues involved in an industrial dispute call for a different approach from the individual and specifically factual issues usually to be found in determining whether a termination of employment was harsh, unjust or unreasonable.
27 Even if, as a matter of law, it is open to a member of the Commission exercising the function of arbitration with respect to a termination of employment to engage in conciliation in the course of the exercise of that function, there is every reason to take the view that the member should be reluctant to do so. The possibility that the member might be told something in conciliation that would influence his or her decision as an arbitrator is so great that it ought to lead to extreme reluctance to mingle the two functions. There is also the risk that what the member says will exhibit prejudgement, will be perceived (rightly or wrongly) to be applying undue pressure, or will be seen as endeavouring to assist one side or the other. The risk that the exercise of the conciliation function in conjunction with the arbitration process might taint the latter is exacerbated where the member of the Commission confers privately with one party only. The longer the arbitration has been running, the greater is the risk that the time and effort put into it will be wasted if an attempt to conciliate fails. In the present case, the Senior Deputy President, at her own request, conferred with the representatives of the Bank, in the absence of Mr Heap or his counsel. She did so at a very late stage of the proceeding, when all that remained was for Mr Perry to put his oral submissions on behalf of the Bank. At the very least, the circumstances required that all present be very circumspect in what they said.
28 To say that the Senior Deputy President might have said in open court what she chose to say in private conference may be true, to the extent that she identified problems faced by the Bank, even though she expressed herself strongly and in striking language. The same is hardly to be said in relation to the other aspects of what was said, especially the reference to wider implications for the Bank than the individual case, which might have been regarded as urging, in effect, surrender in the proceeding. The fact that the Senior Deputy President chose to say what she said privately to the representatives of one party is significant. It is usual for words to acquire their connotation from the circumstances in which they are spoken. In particular, in the context of a late stage of an arbitration proceeding in respect of a termination of employment, the choice of a private conference as the occasion for raising with a party perceived problems with the party's case might easily give rise to an apprehension that more was intended than merely that the party should give attention to those issues in oral submissions. It was open to the Full Bench to take the view that the choice of a private conference was intended to communicate to the Bank that it was headed for an adverse result in the arbitration and to apply pressure to it to take the opportunity to settle the case on terms attractive to Mr Heap, so as to avoid the implications for other cases foreseen by the Senior Deputy President.
29 In its decision of 2 August 2002, the Full Bench recited what it saw as the "particular circumstances" of the case. It did not specify precisely which of these circumstances led to its conclusion that the Senior Deputy President was disqualified on the ground of apprehended bias. Nor did it say how it was that it came to that conclusion. It is clear from its citation of the authorities referred to above that the Full Bench appreciated that a decision-maker can quite properly draw attention to the problems in a party's case, even in strong words, without causing a reasonable bystander to apprehend that he or she may not bring an impartial and unprejudiced mind to the resolution of the question. The vice found by the Full Bench must have arisen from either or both of the circumstance that the words were spoken in private conference, albeit with the consent of the parties, and the circumstance of the late stage of the proceeding at which the conference occurred. That is apparent from the identification by the Full Bench of the "particular circumstances" with which it was concerned. The former is more likely to have weighed heavily in the Full Bench's view than the latter, because of the likelihood that the privacy of the conference lent to the words a connotation and an air of menace that they might not have had otherwise.
30 Once it is recognised that it was open to the Full Bench to hold that the element of privacy caused the Senior Deputy President's words to give rise to an apprehension of bias, it is necessary to acknowledge the expertise of the Full Bench in the area in which it was dealing. Not only did each of the members of the Full Bench have the skills and experience in the field of industrial relations that s 10(1)(b) of the WR Act makes a prerequisite to appointment to the Commission, but each is in fact experienced as a member of the Commission. Each is no doubt very familiar with the manner in which the Commission operates, including the manner in which it deals with applications relating to termination of employment, and with the exercise of the functions of arbitration and conciliation. Each was prepared to say that the combination of circumstances in the present case was such that a reasonable bystander might have apprehended bias on the part of the Senior Deputy President. This Court should give great weight to the view of the Full Bench, especially when it is informed by such experience. If those steeped in the methods of the Commission regarded what the Senior Deputy President did as outside the appropriate manner of exercising the functions of arbitration and conciliation in a termination of employment proceeding, it is a large step for this Court to say they were wrong.
31 In any event, the opinion of the Full Bench is decisive in another way. In our opinion, for the reasons we have stated, the circumstances would cause an ordinary bystander, familiar in general with the manner in which courts and quasi-judicial tribunals operate, to have a reasonable apprehension of bias, which would only be dispelled if there were special practices operating in a particular tribunal, well known to all who were familiar with it. If the Full Bench had indicated that what was done was commonplace according to the practices and procedures of the Commission, a difficult question would arise. The decision of the Full Bench suggests that this is not the case.
32 For these reasons, counsel for Mr Heap has failed to demonstrate that the Full Bench was in error in its conclusion that the Senior Deputy President was wrong to refuse to disqualify herself from further arbitrating Mr Heap's application with respect to the termination of his employment.
33 We should add that we agree with the submission of counsel for the Bank that the voluntary participation of its representatives in the meeting in private did not preclude the Bank from subsequently seeking to disqualify the Senior Deputy President. The complaint of the Bank is not merely that the discussion was in private, but as to what was said in private. Agreement to participate did not amount to a waiver in advance of the right to object, no matter what occurred at the meeting.
Jurisdictional error
34 Strictly speaking, the conclusion that there was no error on the part of the Full Bench renders it unnecessary to consider the question of jurisdictional error. In deference to the arguments put, however, it is appropriate to deal briefly with the subject. There might be some doubt as to the correctness of the Full Bench's view, in its decision of 15 July 2002, that a right of appeal against a refusal of a member of the Commission to disqualify himself or herself on the ground of apprehended bias was given by s 45(1)(g) of the WR Act. See Barton v Walker [1979] 2 NSWLR 740 at 751, cf Brooks v The Upjohn Co (1998) 85 FCR 469 at 472 - 477 and Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 476 (2001) 194 ALR 638 at [113] - [116]. Both parties conducted the present proceeding in the Commission and the Court on the basis that the Full Bench was correct in this respect. It is therefore inappropriate to decide that question. Nor is it appropriate to decide whether the Full Bench ought to have refused leave to appeal under s 45(1), choosing to await the outcome of the arbitration before the Senior Deputy President. It is sufficient to point out that that course would have permitted the Bank, if it had lost the arbitration, to use as one of its grounds of appeal the allegation of apprehended bias on the part of the Senior Deputy President. It would have enabled the Full Bench to have the whole case before it and, if it thought fit to do so, to have decided the substantive issues itself or, if issues of credit were of importance, to have directed that another member of the Commission arbitrate it again.
35 On the assumption that the Full Bench had before it a proper appeal, pursuant to s 45(1)(g) of the WR Act, and on the assumption that it stated correctly the test to be applied in a case of apprehended bias on the part of a decision-maker, no question of jurisdictional error by the Full Bench appears to arise. It cannot be contended that the Full Bench failed to deal with the substance of the appeal before it, or misunderstood its function in doing so. Even if it could be established that it arrived at the wrong answer, it did not do so by asking itself the wrong question. If, in applying the correct test to the facts of the case, it made an error, that would appear to be an error within the limits of its jurisdiction. The mere fact that the result could be said to be that a member of the Commission who was seised of the case has had it removed from her, and that a member of the Commission who was not seised of it has been given responsibility to arbitrate it, does not give any decision of the Full Bench the character of a decision with respect to the jurisdiction of the Commission. There is a distinction between a wrong decision as to which member of the Commission is to exercise the undoubted jurisdiction of the Commission, on the one hand, and on the other a wrong decision as to the constitutional or statutory limits of the jurisdiction of the Commission itself. It follows that, even if the conclusion of the Full Bench that the Senior Deputy President should have disqualified herself was the result of error, it was unlikely to have been regarded as jurisdictional error.
Conclusion
36 For the foregoing reasons, the application must be dismissed. Ordinarily, costs would follow the event. Section 347 of the WR Act deprives the Court of power to make an order for costs in a proceeding in a matter arising under the WR Act. The prohibition is removed in the case of an application under s 170CP (of which the present application is not one) and in the case of a proceeding instituted vexatiously or without reasonable cause. In addition, the High Court of Australia in Re McJannet; Ex parte Australian Workers' Union of Employees, Queensland [No 2] [1997] HCA 40; (1997) 189 CLR 654 at 656 - 657, held that, in cases in which the jurisdiction given by s 75(v) of the Constitution is invoked, the question may arise whether the proceeding is one in a matter arising under the WR Act for the purposes of s 347. The question appears to be whether the limits on jurisdiction, or the duty to exercise jurisdiction, in issue in the proceeding are derived from the WR Act or from the Constitution.
37 The Court has not heard argument on the question of costs. It is therefore appropriate to reserve to the Bank the right to apply for costs and to direct that, if it wishes to apply for costs, there be a program for the filing of written submissions on the question, to enable the Court to determine any such application.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. |
Associate:
Dated: 7 March 2003
Counsel for the Applicant/Prosecutor: |
Mr S Rothman SC and Ms C Howell |
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Solicitor for the Applicant/Prosecutor: |
Geoffrey Edwards & Co |
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Counsel for the Second Respondent: |
Mr N Hutley SC and Mr P McGuire |
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Solicitor for the Second Respondent: |
Freehills |
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Date of Hearing: |
3 March 2003 |
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Date of Judgment: |
7 March 2003 |
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