Able Demolitions and Excavations Pty Ltd v State of Victoria [2004] VSC 511

Able Demolitions and Excavations Pty Ltd v State of Victoria [2004] VSC 511 - VSC 2004 case summary — Zoe

[16]

Each party must bear its own costs of complying with this Clause and the parties must bear equally the costs of any mediator engaged. After the expiration of the prescribed period, a party that has complied with this Clause may terminate the mediation process by giving notice to the other party. If in relation to a dispute a party breaches any provision of this Clause, the other party need not comply with this Clause in relation to that dispute." "47.2 Further Steps Required Before Proceedings Alternative 2 A party served with a notice of dispute may give a written response to the notice to the other party and the Superintendent within 28 days of the receipt of the notice. Within 42 days of the service on the Superintendent of a notice of dispute or within 14 days of the receipt by the Superintendent of the written response, whichever is the earlier, the Superintendent shall give to each party the Superintendent's written decision on the dispute, together with reasons for the decision. If either party is dissatisfied with the decision of the Superintendent, or if the Superintendent fails to give a written decision on the dispute with the time required under Clause 47.2 the parties shall, within 14 days of the date of receipt of the decision, or within 14 days of the date upon which the decision should have been given by the Superintendent confer at least once to attempt to resolve the dispute and failing resolution of the dispute to explore and if possible agree on methods of resolving the dispute by other means. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved or if at any time after the Superintendent has given a decision either party considers that the other party is not making reasonable efforts to resolve the dispute, either party may, by notice in writing delivered by hand or sent by certified mail to the other party, refer such dispute to arbitration or litigation."

[60]

"17. It was submitted on the part of Able that the material demonstrated that I had an association with the union movement distinct from the traditional barristerial one. Rather, the material was said to demonstrate that the work I performed in the past and in the future would be akin to `an affiliation' (said by Mr Jewell to be used loosely) rather than `cab rank' retainer practice. The material was said to demonstrate that rather than `just acting in the traditional barristerial sense of taking a brief for one party or the other over the course of time and just doing the job of a barrister: there was something akin to an alignment, something akin to an affiliation with the interests of one side rather than the other'. ... In short compass Able's submissions depend upon me having an association of a character something akin to an affiliation with unions and their interests. The facts relied upon Able to make good its submissions are in effect that I was a principal in a law firm which `habitually' acted for unions and their interests prior to coming to the bar in 1996, that in the course of my professional life I have practiced in industrial and employment law representing, among others, unions, their officers and members and that I did so in the Building Industry Royal Commission. Whilst it is true that the briefs I have taken whilst at the bar in industrial matters predominantly (but not exclusively) have been for unions and their members I reject the contention that that amounts to a disqualifying association or affiliation. There is no evidence to sustain the contention I have acted in breach of the bar's `cab rank' rule. At most, the fact that the predominance of my practice in industrial law has been on behalf of unions and their members (without acceding to the following proposition), might evidence a predisposition or inclination that falls well short of that state of mind described in Jia as being `so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.' There is no evidence to suggest activity on my part other than me acting in a professional capacity."

[113]

"... it is not uncommon for judges to decline to sit in cases where a witness who is a close friend will give evidence, certainly where it is of a kind which is likely to be challenged. Nor is it uncommon to find in any authorities and elsewhere numerous examples of cases where judges, arbitrators and tribunal members have been held disqualified or have disqualified themselves by reason of a former (or existing) professional relationship with a witness or party. Even there the nature and extent of the relationship is all important for, by reason of the cab-rank principle, most judges will have acted on a number of occasions for certain parties, particularly corporations, in cases of no great consequence and in circumstances where it would be almost impossible to recall every such occasion. Likewise arbitrators may have acted, if barristers, as counsel or, if expert witnesses, may have given evidence, on behalf of a wide variety of clients who may become a party to a particular arbitration. The perception of possible bias will vary according to whether the tribunal is a judge holding a permanent appointment or whether the tribunal member is an arbitrator appointed amended defence hoc for a particular case, for there the frequency of appearances for a particular client may reasonably lead to a perception that the client might in the future only retain the arbitrator in his professional role if the dispute is resolved in its favour. Likewise it would be unthinkable for a barrister with a general retainer or a solicitor whose firm is ordinarily retained by a client to accept appointment as an arbitrator in a matter involving that client, unless the other party were to waive any objection. Disputes as to apprehension of possible bias, however, may arise where a judge has been briefed before appointment on one or more occasions by a particular client in respect of complex matters or relating to its business as a whole, as can be seen from the discussion in cases such as S. & M. Motor Repairs Pty. Ltd. v. Caltex Oil (Aust.) Pty. Ltd. (1988) 12 N.S.W.L.R. 358 and Precision Fabrication Pty. Ltd v. Roadcon Pty. Ltd (1991) 104 F.L.R. 260."[20]

[119]

"In my view the first matter that a fair minded observer would have regard to as part of his or her knowledge when considering the facts and circumstances relied on by the defendant would be the fact that [the special referee's] professional dealings with the plaintiff's solicitors subsequent to 21 April and before 25 June did not in any way relate to the subject proceedings, nor did it relate to any party the subject of the proceedings. It related to an entirely separate matter which was the subject of this professional relationship between [the special referee] and the plaintiff's solicitors. In Aussie Airlines v Australian Airlines [1996] FCA 1308; (1996) 65 FCR 215, Merkel, J, when considering whether a personal relationship which existed between himself and counsel appearing for one of the parties in proceedings before him might give rise to a reasonable apprehension of bias, drew a distinction between such personal relationship between a judge and counsel appearing before him as against the relationship existing between the judge and the party to the proceedings on which he was sitting. At p231 His Honour expressed the view that a fair minded observer would be aware of the importance and substance of such a distinction. With respect to the latter relationship he said `there may, by reason of the perceived prospect of favour, be a cogent and rational link between the association and its capacity to influence the decision to be made'; whereas in the former situation `there was no such link as the observer must be taken to have understood the professional role of counsel'. In my view, in so drawing this distinction, his Honour expressed in another manner that for a possible apprehension of partiality or prejudice to arise from the association or relationship between the presiding judge and another to be a disqualifying factor, the possible apprehension on the part of the observer arising out of such a relationship , must in all the circumstances be reasonable. In the circumstances of this case, a fair minded observer would be aware and have knowledge that [the special referee] was a practising barrister, who, in addition to acting as a mediator and a special referee, acted for persons in a professional capacity, having been retained to do so by solicitors for such persons. The observer would know and appreciate that in consequence [the special referee] would from time to time have a professional relationship with such solicitors while acting on behalf of their clients. Such observer would know that a barrister may be acting professionally for a person against another whose solicitor had at the time retained him to act for another client or had previously done so or was likely to do so in the future. The observer would know that the relationship existing by acting for another client of that solicitor, or having done so, would not affect the manner in which counsel performed his professional duties to his client. Such is the common role, duties and functions of counsel and could not be said reasonably by a person aware of such facts to give rise to any conflict of interest or disqualify counsel from acting for his client."

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Judgment (151 paragraphs)

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Legislation Cited (8)

Cases Cited (11)