s.372 - Application to deal with other contravention disputes

Application to deal with other contraventions dispute - recusal application dismissed

• [1] Mr Adrian Lal has applied to the Commission to deal with a general protections dispute not involving dismissal pursuant to section 372 of the Fair Work Act 2009 (Cth) ("the Fair Work Act"). Mr Lal asks that I recuse myself from dealing with the dispute on the basis of my former association with Maurice Blackburn Lawyers, which often acts for the Respondent in this matter, the Transport Workers' Union of Australia ("TWU").

• [2] I was a Principal of the firm Maurice Blackburn Lawyers ("Maurice Blackburn") for slightly more than five years, commencing in 2008. The firm acted for the TWU or branches of it during that time, and I personally acted for the TWU or branches of it during that time.

• [3] Mr Lal argues that my previous professional role at Maurice Blackburn gives rise to a reasonable apprehension of bias because a reasonable observer might perceive there is an ongoing relationship between me, the TWU, and Maurice Blackburn.

• [4] On 19 August 2025 I issued directions to deal with Mr Lal's application for my recusal ("the recusal application"). Mr Lal was to file any further materials in support of the recusal application by 26 August 2025. Mr Lal filed written submissions and a statutory declaration on 25 August 2025. I have considered both the submissions and the declaration.

• [5] My directions of 19 August also allowed for the TWU to file materials if it wished to be heard on the recusal application. It did not do so. Consequently the directions allowing for Mr Lal to file materials in reply were not enlivened. The directions provided that the recusal application would be decided on the papers subject to any direction or order to the contrary. No party sought a direction or order to the contrary.

• [6] In addition to filing submissions and a statutory declaration on 25 August 2025, Mr Lal has subsequently sent various items of correspondence in respect of the recusal application. I do not take those items of correspondence as additional submissions, and in any event leave to file additional submissions is not granted.

• [7] The test for apprehended bias is usually drawn from the High Court decision in Ebner v Official Trustee in Bankruptcy[1] ("Ebner"). Ebner has been applied by Full Benches of this Commission.[2] I have considered the principles in Ebner and I consider that Mr Lal has articulated the factual basis and the logical connection referred to in Ebner. However, I do not consider any apprehension of bias to be reasonable, having regard to the following:

(a) I do not have the power to determine the dispute, given the matter was brought under section 372 of the Fair Work Act, so this is not a matter in which I will be called upon to make a substantive decision;

(b) a basis for disqualification has not been firmly established;

(c) recusing myself on that basis would be inconsistent with the reasoning in Re Polites; Ex parte Hoyts Corporation Pty Ltd;[3]

(d) a prior relationship as a legal adviser does not of itself disqualify the former adviser from sitting in proceedings before the tribunal of which they are member; and

(e) tribunal members should not grant recusal applications too readily.[4]

• [8] Mr Lal's recusal application is dismissed. The matter will be listed for conference in due course.

[1] (2000) 205 CLR 337, [2000] HCA 63.

[2] Including Re Construction, Forestry, Maritime, Mining and Energy Union [2019] FWCFB 214; 283 IR 415 and Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction [2019] FWCFB 3855; 287 IR 30.

[3] [1991] HCA 25; 173 CLR 78.

[4] Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352 (Mason J).

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